WAIVER AND AMENDMENT NO. 5
TO
AMENDED AND RESTATED CREDIT AGREEMENT
This WAIVER AND AMENDMENT NO. 5 (this "Amendment") is entered into as
of this 9th day of May, 2005 by and among STANDARD MOTOR PRODUCTS, INC., a New
York corporation ("SMP"), STANRIC, INC., a Delaware corporation ("SI"), MARDEVCO
CREDIT CORP., a New York corporation ("MCC"),(SMP, SI and MCC are sometimes
collectively referred to herein as "Borrowers" and individually as a
"Borrower"), the other Credit Parties signatory to the Credit Agreement (as
herein defined), lenders who are party to the Credit Agreement ("Lenders"),
GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware corporation, in its capacity as
Agent for Lenders ("Agent"), BANK OF AMERICA, N.A., for itself, as Lender, and
as Syndication Agent, and GMAC COMMERCIAL FINANCE LLC (as successor by merger to
GMAC Commercial Credit LLC), for itself, as Lender, and as Documentation Agent.
WHEREAS, pursuant to that certain Amended and Restated Credit Agreement
dated as of February 7, 2003, by and among Borrowers, Credit Parties, Agent,
Syndication Agent, Documentation Agent and Lenders (including all annexes,
exhibits and schedules thereto, as from time to time amended, restated,
supplemented or otherwise modified, the "Credit Agreement"), Lenders have made
Loans to, and incurred Letter of Credit Obligations on behalf of Borrowers; and
WHEREAS, Borrowers have requested Agent and Requisite Lenders waive an
Event of Default existing with respect to the Fixed Charge Coverage Ratio as of
March 31, 2005 and to amend such covenant for subsequent fiscal periods, and
Agent and Requisite Lenders are willing to do so on the terms and conditions
hereafter set forth.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and in furtherance of the
Borrowers' duties to give further assurances to the Agent and Lenders pursuant
to the terms of the Credit Agreement, the parties hereto agree as follows:
1. DEFINITIONS. All capitalized terms not otherwise defined herein
shall have the meanings given to them in the Credit Agreement.
2. WAIVER. Subject to the satisfaction of the conditions precedent set
forth in Section 4 below Agent and Requisite Lenders hereby waive the Event of
Default existing pursuant to Section 8.1(b) of the Credit Agreement solely as a
result of Borrowers' failure to comply with the Minimum Fixed Charge Coverage
Ratio contained in Annex G for the Fiscal Quarter ended on March 31, 2005.
3. AMENDMENTS TO CREDIT AGREEMENT. Subject to satisfaction of the
conditions precedent set forth in Section 4 below, the Credit Agreement is
hereby amended as follows:
(a) Section 6.8(f) of the Credit Agreement is hereby deleted in its
entirety and replaced with the following:
"(f) the sale of any (x) Sun Trust Drafts pursuant to
the AutoZone/Sun Trust Program, and (y) Customer
Drafts pursuant to the applicable Customer Programs;
PROVIDED, HOWEVER, Borrowers shall not permit Early
Draft Sales to exceed 15% of Borrowers total net
sales for (a) the two (2) month period ending June
30, 2005, (b) the five (5) month period ending
September 30, 2005, (c) the eight (8) month period
ending December 31, 2005, (d) the eleven (11) month
period ending March, 2006 and (e) the four Fiscal
Quarters ending on the last day of each March, June,
September and December thereafter."
(b) Annex A of the Credit Agreement is hereby amended by adding the
following defined term in its appropriate alphabetical order:
"EARLY DRAFT SALES" shall mean the sale of SunTrust
Drafts and Customer Drafts more than ten (10) days
prior to the maturity date of such drafts to SunTrust
Bank, or such other acceptable bank with whom Agent
has entered into a satisfactory intercreditor
agreement regarding the payment of the purchase price
for the SunTrust Drafts and Customer Drafts being
sold to such bank.
(c) Annex E of the Credit Agreement is hereby amended by amending the
first sentence of Section (a) to provide as follows:
"(a) MONTHLY FINANCIALS. To Agent and
Lenders, within thirty (30) days after the end of
each Fiscal Month (other than January), financial
information regarding Borrowers and their
Subsidiaries, certified by the chief financial
officer or treasurer of Borrower Representative,
consisting of consolidated and consolidating (i)
unaudited balance sheets as of the close of such
Fiscal Month and the related statements of income and
cash flows for that portion of the Fiscal Year ending
as of the close of such Fiscal Month; (ii) unaudited
statements of income and cash flows for such Fiscal
Month, setting forth in comparative form the figures
for the corresponding period in the prior year and
the figures contained in the Projections for such
Fiscal Year, all prepared (other than the
Projections) in accordance with GAAP (subject to
normal year-end adjustments); (iii) a summary of the
outstanding balance of all Intercompany Notes as of
the last day of that Fiscal Month; (iv) a summary of
the total Net Sales as of the last day of that Fiscal
Month for such Fiscal Month and for the Fiscal Year
to date; and (v) a summary of the Early Draft Sales
as of the last day of that Fiscal Month for such
Fiscal Month and for the Fiscal Year to date."
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(d) Annex G of the Credit Agreement is hereby amended by amending
Section 2(b) in its entirety to provide as follows:
"(b) MINIMUM FIXED CHARGE COVERAGE RATIO. Borrowers
and their Subsidiaries on a consolidated basis shall
have, at the end of each Fiscal Quarter set forth
below, a Fixed Charge Coverage Ratio for the 12-month
period then ended (or with respect to the Fiscal
Quarters ending on or before December 31, 2005, the
period commencing on January 1, 2005 and ending on
the last day of such Fiscal Quarter) of not less than
the following:
FISCAL QUARTER FIXED CHARGE
ENDING COVERAGE RATIO
------ --------------
June 30, 2005 1.10 to 1.00
September 30, 2005 1.10 to 1.00
December 31, 2005 and each 1.10 to 1.00"
Fiscal Quarter ending
thereafter
4. CONDITIONS OF EFFECTIVENESS. This Amendment shall become effective
as of the date upon which Agent shall have received (i) ten (10) copies of this
Amendment executed by Borrowers, Requisite Lenders and each of the Guarantors,
and (ii) payment of an amendment fee of $100,000 which shall be paid to Agent
for the ratable benefit of those Lenders that execute this Amendment on or
before May 9, 2005 (which fee shall be charged by Agent to the Revolving Loan
balance).
5. REPRESENTATIONS AND WARRANTIES. Borrowers hereby represent and
warrant as follows:
(a) This Amendment and the Credit Agreement, as amended hereby,
constitute legal, valid and binding obligations of Borrowers and are enforceable
against Borrowers in accordance with their respective terms.
(b) Upon the effectiveness of this Amendment, each Borrower hereby
reaffirms all covenants, representations and warranties made in the Credit
Agreement as amended hereby and agree that all such covenants, representations
and warranties shall be deemed to have been remade as of the effective date of
this Amendment.
(c) No Event of Default or Default has occurred and is continuing or
would exist after giving effect to this Amendment.
(d) Borrowers have no defense, counterclaim or offset with respect to
the Credit Agreement.
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6. NO WAIVER. The execution, delivery and effectiveness of this
Amendment shall not operate as a waiver of any right, power or remedy of Agent
or any Lender, nor constitute a waiver of any provision of the Credit Agreement,
or any other documents, instruments or agreements executed and/or delivered
under or in connection therewith.
7. EFFECT ON THE CREDIT AGREEMENT. All references in the Credit
Agreement and the other Loan Documents to the Credit Agreement shall be deemed
to refer to the Credit Agreement as amended hereby.
8. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK (WITHOUT GIVING EFFECT TO ITS CONFLICTS OF LAW RULES).
9. HEADINGS. Section headings in this Amendment are included herein for
convenience of reference only and shall not constitute a part of this Amendment
for any other purpose.
10. COUNTERPARTS; FACSIMILE. This Amendment may be executed in any
number of several counterparts, each of which shall be deemed an original but
all of which together shall constitute one and the same instrument. Any
signature delivered by a party by facsimile transmission shall be deemed to be
an original signature hereto.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Amendment to be executed and delivered by its duly authorized officer as of the
date first set forth above.
STANDARD MOTOR PRODUCTS, INC.
By:
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Name:
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Title:
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STANRIC, INC.
By:
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Name:
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Title:
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MARDEVCO CREDIT CORP.
By:
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Name:
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Title:
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GENERAL ELECTRIC CAPITAL
CORPORATION,
as Agent and Lender
By:
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Name:
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Title:
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(SIGNATURES CONTINUED ON NEXT PAGE)
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GMAC COMMERCIAL FINANCE LLC,
as Documentation Agent and Lender
By:
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Name:
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Title:
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BANK OF AMERICA, N.A.,
as Syndication Agent and Lender
By:
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Name:
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Title:
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GE BUSINESS CAPITAL CORPORATION,
as Lender
By:
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Name:
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Title:
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CONGRESS FINANCIAL CORPORATION,
as Lender
By:
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Name:
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Title:
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(SIGNATURES CONTINUED ON NEXT PAGE)
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XX XXXXXX XXXXX BANK,
as Lender
By:
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Name:
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Title:
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HSBC BANK USA, NATIONAL ASSOCIATION,
as Lender
By:
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Name:
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Title:
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XXXXX FARGO FOOTHILL,
as Lender
By:
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Name:
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Title:
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XXXXXXX XXXXX CAPITAL, a Division of XXXXXXX XXXXX
BUSINESS FINANCIAL SERVICES INC.,
as Lender
By:
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Name:
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Title:
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(SIGNATURES CONTINUED ON NEXT PAGE)
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CONSENTED TO:
SMP MOTOR PRODUCTS LTD.
By:
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Name:
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Title:
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EAGLEMOTIVE CORPORATION
By:
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Name:
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Title:
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MOTORTRONICS, INC.
By:
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Name:
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Title:
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