AMENDMENT NO. 1 TO CREDIT AND SECURITY AGREEMENT
Exhibit
99.1
AMENDMENT
NO. 1
This Amendment No. 1 to Amended
and Restated Credit and Security Agreement (this “Amendment”), dated as of
November 2, 2007, is made by and among STONERIDGE, INC., an Ohio
corporation (the “Parent”), STONERIDGE ELECTRONICS, INC.,
a Texas corporation (“Electronics”), STONERIDGE CONTROL DEVICES,
INC., a Massachusetts corporation (“Controls”), STONERIDGE-XXXXXX LIMITED, an
English corporation (the “English Borrower”), STONERIDGE ELECTRONICS
LIMITED., a Scottish corporation (the “Scottish Borrower” and
together with the English Borrower, the “UK Borrowers”), STONERIDGE FAR EAST LLC, a
Delaware limited liability company (“Far East”), as Guarantors,
various financial institutions which are a party hereto, NATIONAL
CITY BANK, a national banking association (“National City Bank”), as Lead
Arranger and the Issuer (as hereinafter defined), and NATIONAL
CITY BUSINESS CREDIT, INC., an Ohio corporation (“NCBC”), as administrative
agent and collateral agent (the “Agent”).
WITNESSETH:
WHEREAS, the Borrowers (as
hereinafter defined) have been extended certain financial accommodations
pursuant to that certain Credit and Security Agreement, dated as of
November 2, 2007, (as further amended, supplemented or otherwise modified
from time to time, the “Credit
Agreement”), among the Borrowers, various financial institutions (the
“Lenders”), National
City Bank, as Lead Arranger and LC Issuer and NCBC, as Agent;
WHEREAS, the Borrowers propose
to sell certain account receivables owing from General Motors Corporation, a
Delaware corporation or Chrysler LLC, a Delaware limited liability company, to
GM Supplier Receivables LLC, a Delaware limited liability company (“GM SPV”),
and Chrysler Receivables SPV LLC, a Delaware limited liability company
(“Chrysler SPV”), respectively, in connection with the United States Department
of the Treasury Auto Supplier Program (the “Supplier Program”);
WHEREAS, the Borrowers have
requested modification of the Credit Agreement (i) to permit such sale of
account receivables in connection with the Supplier Program and (ii) to the
extent such sale does occur, to permit a prior lien in favor of GM SPV or
Chrysler SPV in such account receivables in connection with the
Supplier Program; and
WHEREAS, the parties hereto
desire to amend certain provisions of
the Credit Agreement as outlined herein;
NOW THEREFORE, in
consideration of the mutual promises and agreements contained herein and other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, each of the parties hereto hereby agrees as follows:
Section
1. DEFINED TERMS.
Each
defined term used herein and not otherwise defined herein shall have the meaning
ascribed to such term in the Credit Agreement, as amended by this
Amendment.
Section
2 AMENDMENT TO THE CREDIT
AGREEMENT
The
Credit Agreement is hereby amended as follows:
2.1 Addition of Certain Defined
Terms. Section 1.3 (Definitions) of the Credit Agreement is
hereby amended to add the following definitions in proper alphabetical
order:
“Chrysler” means LLC, a
Delaware limited liability company.
“Chrysler Program Terms” means
the “Program Terms” attached to either of the Chrysler Supplier Purchase
Agreements.
“Chrysler SPV” means Chrysler
Receivables SPV LLC, a Delaware limited liability company.
“Chrysler Supplier Program
Receivables” means the “Eligible Receivables” (as defined in the Chrysler
Program Terms) purchased from the Borrowers by Chrysler SPV pursuant to either
of the Chrysler Supplier Purchase Agreements.
“Chrysler Supplier Purchase
Agreement” means that certain Supplier Purchase Agreement, dated as of
April __, 2009, among Controls, Chrysler SPV and Citibank, or that certain
Supplier Purchase Agreement, dated as of April __, 2009, among Parent,
Chrysler SPV and Citibank, as applicable, each executed pursuant to the Supplier
Program.
“Citibank” means Citibank,
N.A., a national banking association.
“EESA” means the Emergency
Economic Stabilization Act of 2008 (Pub. L. 110-343, enacted October 1,
2008) as amended.
“GM” means General Motors
Corporation, a Delaware corporation.
“GM Program Terms” means the
“Program Terms” attached to the GM Supplier Purchase Agreements.
“GM SPV” means GM Supplier
Receivables LLC, a Delaware limited liability company
“GM Supplier Program
Receivables” means the “Eligible Receivables” (as defined in the GM
Program Terms) purchased from the Borrowers by GM SPV pursuant to either of the
GM Supplier Purchase Agreements.
“GM Supplier Purchase
Agreement” means that certain Supplier Purchase Agreement, dated as of
April __, 2009, among Controls, GM SPV and Citibank, or that certain
Supplier Purchase Agreement, dated as of April __, 2009, among Parent, GM
SPV and Citibank, as applicable, each executed pursuant to the Supplier
Program.
“Supplier Program” means the
Auto Supplier Support Program established by the United States Department of the
Treasury pursuant to the authority granted to it by and under EESA.
2
“Supplier Program Receivables”
means the GM Supplier Program Receivables and the Chrysler Supplier Program
Receivables.
2.2 Amendment of Definition of “Permitted
Encumbrances”. The definition of “Permitted Encumbrances”
shall be amended in its entirety to read as follows:
“Permitted Encumbrances” shall
mean (a) Liens in favor of the Agent for the benefit of the Secured Creditors;
(b) Liens for taxes, assessments or other governmental charges that (i) are not
delinquent or (ii) which are being contested in good faith by appropriate
proceedings which stay the enforcement of any Lien and with respect to which
proper reserves have been taken in accordance with GAAP; provided, however that such
Liens shall have no effect on the priority of the Liens in favor of the
Agent (and the existence of such Liens shall not violate
Section 6.1); (c) deposits or pledges of cash to secure obligations under
worker’s compensation, social security or similar laws, or under unemployment
insurance or general liability or product liability insurance; (d) deposits or
pledges of cash to secure bids, tenders, contracts (other than
contracts for the payment of money), leases, statutory obligations, performance
bonds, surety and appeal bonds and other obligations of like nature arising in
the ordinary course of business; (e) mechanics’, workers’, materialmens’,
warehousemens’, common carriers’, landlords’ or other like Liens arising in the
ordinary course of business with respect to obligations which are not due or
which are being contested in good faith by a Loan Party or its Subsidiaries; (f)
Liens (including Liens in connection with capital leases) placed upon equipment
and real estate assets acquired to secure a portion of the purchase price
thereof; provided that (x) any
such Lien shall not encumber any other property of a Loan Party or any
Subsidiary thereof (other than insurance and other proceeds of such equipment
and real estate) and (y) the aggregate amount of Indebtedness secured by such
Liens incurred as a result of such purchases during any fiscal year shall not
exceed the amount provided for in Section 7.6; (g) zoning restrictions,
easements, encroachments, rights of way, restrictions, leases, licenses,
restrictive covenants and other similar title exceptions affecting Real
Property, none of which materially impairs the use of such Real Property or the
value thereof, and none of which is violated in any material respect by existing
or supporting structures or land use; (h) attachment and judgment Liens which do
not constitute an Event of Default under Section 10.6; (i) any Lien
existing on any property or asset prior to the acquisition thereof by the Parent
or any Subsidiary of the Parent; provided that (i)
such Lien is not created in contemplation of or in connection with such
acquisition, (ii) such Lien does not apply to Receivables or Inventory, (iii)
such Lien does not apply to any other property or assets of the Borrower or any
Subsidiary and (iv) such Lien does not (A) materially interfere with the use,
occupancy and operation of any Real Property, (B) materially reduce the fair
market value of such Real Property but for such Lien or (C) result in any
material increase in the cost of operating, occupying or owning or leasing such
Real Property; (j) liens in the Supplier Program Receivables granted to GM SPV
or Chrysler SPV, as the case may be, pursuant to any of the GM Supplier Purchase
Agreements or the Chrysler Supplier Purchase Agreements, as applicable, and (k)
the Liens listed on Schedule 7.2 to
this Agreement so long as the principal amount secured thereby is not hereafter
increased, and no additional assets become subject to such Liens.
3
2.3 Amendment to Section
4.20. Section 4.20 of the Credit Agreement shall be
amended in its entirety to read as follows:
4.20 Partial Release of
Liens.
Each
Lender hereby irrevocably authorizes the Agent, at its option and in its
discretion, to release any Lien granted to or held by the Agent upon any
Collateral which either: (a) (i) constitutes property being sold or disposed of
and the applicable Obligor certifies to the Agent that the sale or disposition
is made in compliance with the provisions of this Agreement (and the Agent may
rely in good faith conclusively on any such certificate, without further
inquiry), (ii) constitutes property covered by Permitted Encumbrances with
lien priority superior to those Liens in favor of the Agent hereunder, (iii)
constitutes property in addition to that addressed by clauses (i) and (ii)
above, with an aggregate fair market value of less than One Million Dollars
($1,000,000), and (iv) to the extent not restricted by Section 15.3(v),
constitutes property in addition to that addressed by clauses (i) through (iii)
above, as to which the Required Lenders have otherwise consented in writing to
the sale or other disposition thereof; or (b) to the extent not restricted by
Section 15.3(v), constitutes Supplier Program Receivables being sold or
otherwise transferred or disposed of pursuant to any of the GM Supplier Purchase
Agreements or the Chrysler Supplier Purchase Agreements, as the case may be, in
accordance with the Supplier Program and as permitted pursuant to
Section 7.1(a)(ix). In addition, each Lender hereby irrevocably
authorizes the Agent to execute and deliver, as Agent for the Lenders, a Lien
Priority Agreement to each of GM SPV and Chrysler SPV, as the case may be,
substantially in the form attached hereto as Exhibit M, in connection with
a release of any lien in the Collateral referenced in clause (b)
above.
2.4 Amendment to Section
7.1(a). Section 7.1(a) of the Credit Agreement shall be
amended by: (i) deleting the word “and” from the end of clause (vii)
thereof; (ii) deleting the punctuation from the end of clause (viii)
thereof and adding the phrase “; and” thereto; and (iii) by adding a
clause (ix) there to read as follows:
(ix) the
transfer, sale or other disposition of the Supplier Program Receivables pursuant
to any of the GM Supplier Purchase Agreements or the Chrysler Supplier Purchase
Agreements, as the case may be, in accordance with the Supplier Program, so long
as any proceeds thereof shall be treated as “Net Proceeds” for purposes of
Section 2.7(c) hereof.
Section
3 REPRESENTATIONS AND
WARRANTIES.
Each Borrower hereby represents and
warrants to the Lenders, the Agent, the Swingline Lender and the LC Issuer as
follows:
3.1 The Amendment. This
Amendment has been duly and validly executed by an authorized executive officer
of such Borrower and constitutes the legal, valid and binding obligation of such
Borrower enforceable against such Borrower in accordance with its
terms. The Credit Agreement, as amended by this Amendment, remains in
full force and effect and remains the valid and binding obligation of such
Borrower enforceable against such Borrower in accordance with its terms, except
as such enforceability may be limited by any applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditor’s rights generally or by equitable principles including principles of
commercial reasonableness, good faith and fair dealing (whether enforceability
is sought by proceedings in equity or at law).
4
3.2 No Default or Event of
Default. No Default or Event of Default exists under the
Credit Agreement as of the date hereof and no Default or Event of Default will
occur as a result of the effectiveness of this Amendment.
3.3 Restatement of Representations and
Warranties. The representations and warranties of such
Borrower contained in the Credit Agreement, as amended by this Amendment, and
the Other Loan Documents are true and correct on and as of the Amendment
Effective Date (as defined below) of this Amendment as though made on the
Amendment Effective Date, unless and to the extent that any such representation
and warranty is stated to relate solely to an earlier date, in which case such
representation and warranty shall be true and correct as of such earlier
date.
Section
4 CONDITIONS TO
EFFECTIVENESS.
The date and time of the effectiveness
of this Amendment (the “Amendment Effective
Date”) is subject to the satisfaction of the following conditions
precedent:
4.1 Execution. The
Agent shall have received counterparts to this Amendment duly executed and
delivered by an authorized officer of each other party hereto;
4.2 Designated
Account. The Agent shall have received evidence satisfactory
to it that the “Designated Account” (as defined in the GM Supplier Purchase
Agreements or the Chrysler Supplier Purchase Agreements, as the case may be) is
a Collection Account or Cash Concentration Account under Section 4.14(g) of
the Credit Agreement.
4.3 Payment of Costs and
Expenses. The Borrowers shall have paid all outstanding and
reasonable costs, expenses and the disbursements of the Agent and its advisors,
service providers and legal counsels incurred in connection with the
documentation of this Amendment, to the extent invoiced, as well as any other
fees payable on or before the Amendment Effective Date pursuant to any fee
letter or agreement, if any, with the Agent;
4.4 Payment of Amendment
Fee. The Borrowers shall have paid to the Agent, for the
ratable benefit of the Lenders which have executed this Amendment, a
non-refundable amendment fee, which shall be fully earned when paid, in an
amount of up to Fifty Thousand Dollars ($50,000); provided, however, each such
signing Lender’s share of such fee shall be equal to its respective Revolving
Percentage of such Fifty Thousand Dollars ($50,000);
4.5 Receipt of Supplier Program Purchase
Agreements. The Agent shall have received copies of the fully
executed GM Supplier Purchase Agreements and the Chrysler Supplier Purchase
Agreements, together with any exhibits or schedules thereto or any other
documents executed or delivered in connection with any of the foregoing;
and
4.6 Other. All
corporate and other proceedings, and all documents, instruments and other legal
matters in connection with the transactions contemplated by this Amendment shall
be reasonably satisfactory in form and substance to the Agent and its
counsel.
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Section
5 MISCELLANEOUS.
5.1 Governing Law. This
Amendment shall be governed by and construed in accordance with the laws of the
State of Ohio with out giving effect to the conflict of laws rules
thereof.
5.2 Severability. Any
provision of this Amendment which is prohibited or unenforceable shall be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions of this Amendment.
5.3 Counterparts. This
Amendment may be executed in any number of counterparts and by different parties
hereto on separate counterparts, each of which when so executed and delivered
shall be deemed to be an original, and all of which taken together shall
constitute but one and the same instrument.
5.4 Headings. Section
headings used in this Amendment are for the convenience of reference only and
are not a part of this Agreement for any other purpose.
5.5 Negotiations. Each
Borrower acknowledges and agrees that all of the provisions contained herein
were negotiated and agreed to in good faith after discussion with the Agent, the
Swingline Lender the LC Issuer and the Lenders.
5.6 Nonwaiver. The execution,
delivery, performance and effectiveness of this Amendment shall not operate as,
or be deemed or construed to be, a waiver: (i) of any right, power or remedy of
the Lenders, the Swingline Lender, the LC Issuer or the Agent under the Credit
Agreement or the Other Loan Documents, or (ii) of any term, provision,
representation, warranty or covenant contained in the Credit Agreement or any
Other Loan Document. Further, none of the provisions of this
Amendment shall constitute, be deemed to be or construed as, a waiver of any
Default or Event of Default under the Credit Agreement as amended by this
Amendment.
5.7 Reaffirmation. Each
Borrower hereby (i) ratifies and reaffirms all of its payment and performance
obligations, contingent or otherwise, under the Credit Agreement and each of the
Other Loan Documents to which it is a party and (ii) ratifies and reaffirms its
grant of security interests and Liens under such documents and confirms and
agrees that such security interests and Liens hereafter secure all of the
Obligations.
5.8 Release of
Claims. In consideration of the Lenders’ and the Agent’s
agreements contained in this Amendment, each Borrower hereby irrevocably
releases and forever discharge the Lenders, the Swingline Lender, the LC Issuer
and the Agent and their Affiliates, subsidiaries, successors, assigns,
directors, officers, employees, agents, consultants and attorneys (each, a
“Released
Person”) of and from any and all claims, suits, actions, investigations,
proceedings or demands, whether based in contract, tort, implied or express
warranty, strict liability, criminal or civil statute or common law of any kind
or character, known or unknown, which such Borrower ever had or now has against
Agent, any Lender or any other Released Person which relates, directly or
indirectly, to any acts or omissions of Agent, any Lender or any other Released
Person relating to the Credit Agreement or any Other Loan Document on or prior
to the date hereof.
6
5.9 Reference to and Effect on the Credit
Agreement. Upon the effectiveness of this Amendment, each
reference in the Credit Agreement to “this Agreement,” “hereunder,” “hereof,”
“herein,” or words of like import shall mean and be a reference to the Credit
Agreement as amended by this Amendment and each reference to the Credit
Agreement in any other document, instrument or agreement executed and/or
delivered in connection with the Credit Agreement shall mean and be a reference
to the Credit Agreement, as amended by this Amendment.
[SIGNATURES
FOLLOW]
7
Each of the parties has signed this
Agreement as of the day and year first above written.
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BORROWERS:
STONERIDGE,
INC.
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By:
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/s/
Xxxxxx X. Xxxxxxxxx
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Name:
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Xxxxxx
X. Xxxxxxxxx
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Title:
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Executive
Vice President, Chief Financial Officer and
Treasurer
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STONERIDGE
CONTROL DEVICES, INC.
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By:
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/s/
Xxxxxx X. Xxxxxxxxx
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Name:
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Xxxxxx
X. Xxxxxxxxx
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Title:
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Executive
Vice President, Chief Financial Officer and
Treasurer
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STONERIDGE
ELECTRONICS, INC.
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By:
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/s/
Xxxxxx X. Xxxxxxxxx
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Name:
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Xxxxxx
X. Xxxxxxxxx
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Title:
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Executive
Vice President, Chief Financial Officer and
Treasurer
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STONERIDGE-XXXXXX
LIMITED
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By:
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/s/
Xxxxxx X. Xxxxxxxxx
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Name:
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Xxxxxx
X. Xxxxxxxxx
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Title:
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Executive
Vice President, Chief Financial Officer and
Treasurer
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STONERIDGE
ELECTRONICS LIMITED
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By:
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/s/
Xxxxxx X. Xxxxxxxxx
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Name:
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Xxxxxx
X. Xxxxxxxxx
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Title:
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Executive
Vice President, Chief Financial Officer and
Treasurer
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(Witness)
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/s/
Xxxxxxx X. Xxxx
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(Print
Full Name)
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Xxxxxxx
X. Xxxx
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(Address)
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0000 Xxxx
Xxxxxx Xxxxxx
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Xxxxxx,
XX 00000
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8
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GUARANTOR:
STONERIDGE
FAR EAST LLC
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By:
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/s/
Xxxxxx X. Xxxxxxxxx
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Name:
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Xxxxxx
X. Xxxxxxxxx
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Title:
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Executive
Vice President, Chief Financial Officer and
Treasurer
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AGENT:
NATIONAL CITY BUSINESS CREDIT,
INC., as Agent
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By:
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/s/
Xxxxxxx X. Xxxxxxxxx
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Name:
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Xxxxxxx
X. Xxxxxxxxx
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Title:
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Vice
President
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ISSUER:
NATIONAL CITY BANK, as
Issuer
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By:
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/s/
Xxxxxxx XxXxxxxxx
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Name:
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Xxxxxxx
XxXxxxxxx
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Title:
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Vice
President
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9
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LENDERS:
NATIONAL CITY BUSINESS CREDIT,
INC., as a Lender
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By:
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/s/
Xxxxxxx X. Xxxxxxxxx
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Name:
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Xxxxxxx
X. Xxxxxxxxx
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Title:
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Vice
President
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Revolving
Commitment: $28,000,000
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Notice
Information:
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National
City Business Credit, Inc.
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0000
Xxxx Xxxxx Xxxxxx
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4th
Floor
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Locator
01-3049
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Xxxxxxxxx,
XX 00000
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Attention:
Xxxxxxx Xxxxxxxxx or
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Stoneridge
Account Manager
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Telephone:
(000)000-0000
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Telecopier:
(000)000-0000
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Email:
xxxxxxx.xxxxxxxxx@xxxxxxxxxxxx.xxx
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10
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COMERICA BANK., as a
Lender
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By:
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/s/
Xxxxxxx Xxxxxxx
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Name:
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Xxxxxxx
Xxxxxxx
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Title:
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Account
Officer
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Revolving
Commitment: $20,000,000
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Notice
Information:
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Comerica
Bank
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000
Xxxxxxxx
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0xx
Xxxxx
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Xxxxxxx,
XX
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Attention:
Xxxxxxx Xxxxxxx
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Vice
President
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Telephone:
(000) 000-0000
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Telecopier:
(000) 000-0000
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Email:
xxxxxxxxx@xxxxxxxx.xxx
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JPMORGAN CHASE BANK., as
a Lender
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By:
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Name:
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Title:
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Revolving
Commitment: $20,000,000
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Notice
Information:
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JPMorgan
Chase Bank, N.A.
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0000
X. Xxxxx Xxxxxx
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00xx
Xxxxx
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Xxxxxxxxx,
Xxxx. 00000
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Xxxxxxx
X. Xxxxxx, Assistant Vice President
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Tel:
000-000-0000
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Fax:
000-000-0000
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Email:
xxxxxxx.x.xxxxxx@xxxxx.xxx
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12
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PNC BANK, NATIONAL ASSOCIATION, as
a Lender
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By:
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/s/
Xxxx X. Xxxxx
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Name:
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Xxxx
X. Xxxxx
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Title:
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Vice
President
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Revolving
Commitment: $20,000,000
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Notice
Information:
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PNC
Bank, National Association
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One
PNC Plaza, Sixth Floor
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000
Xxxxx Xxx.
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Xxxxxxxxxx,
XX 00000
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Attention:
Xxxx X. Xxxxx
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Telephone:
(000) 000-0000
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Facsimile:
(000) 000-0000
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13
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FIFTH THIRD BANK., as a
Lender
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By:
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Name:
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Title:
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Revolving
Commitment: $12,000,000
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Notice
Information:
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Fifth
Third Bank
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000
Xxxxxxxx Xxx Xxxx
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Xxxxxxxxx,
Xxxx. 00000
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Xxx
Xxxxxxx, Vice President
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Tel:
000-000-0000
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Fax:
000-000-0000
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Email:
xxx.xxxxxxx@00.xxx
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14
Exhibit
L
Form of Lien Priority
Agreement
