CONSENT AND AMENDMENT NO. 6 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
EXECUTION
COPY
CONSENT
AND AMENDMENT NO. 6
TO
SECOND AMENDED AND
RESTATED
CREDIT AGREEMENT
THIS
CONSENT AND AMENDMENT NO. 6 (this “Amendment No. 6”) is entered into as of June
26, 2009, 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”; and together with SMP and SI, each individually, a
“Borrower, and collectively, “Borrowers”), SMP MOTOR PRODUCTS LTD., a
corporation amalgamated under the laws of Canada (“SMP Canada”; and together
with Borrowers, each a “Credit Party”, and collectively, “Credit Parties”),
lenders who are party to the Credit Agreement (“Lenders”), GENERAL ELECTRIC
CAPITAL CORPORATION, a Delaware corporation, for itself, as Lender, and in its
capacity as Agent for Lenders (“Agent”), BANK OF AMERICA, N.A., for itself, as
Lender, and as a Co-Syndication Agent, WACHOVIA BANK, N.A., for itself, as
Lender, and as a Co-Syndication Agent and XX XXXXXX XXXXX BANK, N. A., for
itself, as a Lender, and as Documentation Agent.
BACKGROUND
Borrowers,
Agent and Lenders are parties to a Second Amended and Restated Credit Agreement
dated as of March 20, 2007 (as amended, restated, supplemented or otherwise
modified from time to time, the “Loan Agreement”) pursuant to which Agent and
Lenders provide Borrowers with certain financial accommodations.
Borrowers
have requested that Agent and Lenders make certain amendments to the Loan
Agreement, and Agent and Lenders are willing to do so on the terms and
conditions hereafter set forth.
NOW,
THEREFORE, in consideration of any loan or advance or grant of credit heretofore
or hereafter made to or for the account of Borrowers by Agent and Lenders, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Definitions. All
capitalized terms not otherwise defined herein shall have the meanings given to
them in the Loan Agreement.
2. Amendment to Loan
Agreement. Subject to satisfaction of the conditions precedent set forth
in Section 4 below, the Loan Agreement is hereby amended as
follows:
(a) Annex
A is amended as follows:
(i) The
following defined terms are added in their appropriate alphabetical
order:
(A) “Amendment No. 6”
means that certain Consent and Amendment No. 6 to Second Amended and Restated
Credit Agreement dated as of June 26, 2009 by and among SMP, SI, MCC, SMP
Canada, Agent, and the Lenders party thereto.
(B) “Amendment No. 6 Effective
Date” means the date on which the conditions precedent set forth in
Section 4 of Amendment No. 6 are satisfied.
(C) “Auto Supplier
Accounts” means the Accounts sold by any Borrower in connection with an
Auto Supplier Program to a special purpose vehicle that is an Affiliate of an
Account Debtor.
(D) “Auto Supplier
Program” means a program, pursuant to which a Borrower sells Auto
Supplier Accounts at a discount to a special purpose vehicle that is an
Affiliate of an Account Debtor, which program is (w) established by the United
States Department of the Treasury to support suppliers to the United States
automobile industry, (x) administered by a financial institution acceptable to
Agent in its sole discretion, and (y) on terms and conditions satisfactory in
all respects to Agent in its sole discretion.
(E) “Bank Product
Agreement” means, collectively, any of the following financial
accommodations or similar agreement entered into by any Borrower or any of its
Subsidiaries under which the counterparty of such agreement is (or at the time
such agreement was entered into, was) a Lender or an Affiliate of a Lender: (a)
credit cards, (b) credit card processing services, (c) debit cards, (d) purchase
cards, or (e) cash management, including controlled disbursement accounts or
services and Automated Clearing House processing of electronic funds transfers
through the direct Federal Reserve Fedline system.
(F) “Excluded Real
Property” means the Real Estate located in Disputanta, Virginia;
Greenville, South Carolina; Edwardsville, Kansas; Independence, Kansas; and
Mishawaka, Indiana.
(G) “New Subordinated
Debt” means the Subordinated Debt issued pursuant to the New
Indenture.
(H)
“2011 Note Purchase
Agreement” means that certain Note Purchase Agreement, by and among SMP
and the purchasers listed therein, pursuant to which SMP shall issue the 2011
Unsecured Notes, which 2011 Note Purchase Agreement shall be in form and
substance satisfactory to Agent in its sole discretion.
(I) “2011 Note Purchase Agreement
Reserve” means a reserve which (i) during the period October 15, 2010
through November 14, 2010 equals one-sixth of the aggregate principal amount of
the 2011 Unsecured Notes, (ii) during the period November 15, 2010 through
December 14, 2010 equals one-third of the aggregate principal amount of the 2011
Unsecured Notes, (iii) during the period December 15, 2010 through January 14,
2011 equals one-half of the aggregate principal amount of the 2011 Unsecured
Notes, (iv) during the period January 15, 2011 through February 14, 2011 equals
two-thirds of the aggregate principal amount of the 2011 Unsecured Notes, (v)
during the period February 15, 2011 through March 14, 2011 equals five-sixths of
the aggregate principal amount of the 2011 Unsecured Notes, and (vi) on and
after March 15, 2011 equals one hundred percent (100%) of the aggregate
principal amount of the 2011 Unsecured Notes, in each case less the aggregate
face amount of any notes issued under the 2011 Note Purchase Agreement which may
be repurchased or redeemed as provided herein, but in no event may the amount of
the 2011 Note Purchase Agreement Reserve be less than zero ($0).
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(J) “2011 Unsecured Debt”
means Indebtedness of SMP evidenced by the 2011 Unsecured Debt
Documents.
(K) “2011 Unsecured Debt
Documents” means the 2011Unsecured Notes and the 2011 Note Purchase
Agreement.
(L) “2011 Unsecured Notes”
means those certain 15% unsecured promissory notes due 2011 to be issued by SMP
in an aggregate principal amount not less than $4,000,000 pursuant to the 2011
Note Purchase Agreement, which 2011 Unsecured Notes shall be in form and
substance satisfactory to Agent in its sole discretion and subordinate to the
Obligations under the Agreement on the same terms as the New Subordinated
Debt.
(ii) Each
of the following defined terms is amended as follows:
(A) The
definition of “Borrowing Availability” is amended by adding “, the 2011 Note
Purchase Agreement Reserve” in clause (y) following the words “the Canadian
Reserve”.
(B) The
definition of “Borrowing Availability Reserve” is amended and restated as
follows:
“Borrowing Availability
Reserve” means a reserve equal to the amount of $15,000,000, except that
(a) effective as of the Convertible Debt Redemption Date, the amount of the
Borrowing Availability Reserve shall be $10,000,000 and (b) at any time, for
purposes of calculating Borrowing Availability under Section 6.1(vi)(x) and
Section 6.2(b)(x), (g)(x) and (h)(x), the amount of the Borrowing Availability
Reserve shall be deemed to be $0.”
(C) The
definition of “Commitment” is amended and restated as follows:
“Commitment” means (i)
as to any Lender, the aggregate commitment of such Lender to make Revolving
Credit Advances or incur Letter of Credit Obligations as set forth on Annex J to
the Agreement or in the most recent Assignment Agreement executed by such Lender
and (ii) as to all Lenders, the aggregate commitment of all Lenders to make
Revolving Credit Advances or incur Letter of Credit Obligations, which aggregate
commitment shall be One Hundred Ninety Million Dollars ($190,000,000) as such
amount may be adjusted, if at all, from time to time in accordance with the
Agreement including, without limitation, Section 1.18 hereof.”
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(D) The
definition of “Commitment Termination Date” is amended by amending and restating
clause (a) thereof as follows: “(a) March 20, 2013”.
(E) The
definition of “Convertible Debt Refinancing” is amended in its entirety as
follows:
“Convertible Debt
Refinancing” means any refinancing of, or amendment or modification to
(including, without limitation, extending the maturity date thereof), all or any
portion of the existing Subordinated Debt under the Indenture, but shall not
mean (x) any exchange of the New Subordinated Debt for any existing Subordinated
Debt, (y) any refinancing of the existing Subordinated Debt with the proceeds of
the 2011 Unsecured Notes or Advances, or (z) any refinancing of the New
Subordinated Debt or the 2011 Unsecured Notes with the proceeds of
Advances.”
(F) The
definition of “Eligible Real Estate” is amended by adding the following at the
end of the first sentence thereof:
“Notwithstanding
the foregoing to the contrary, “Eligible Real Estate” shall not include any
Excluded Real Property that is subject to a sale leaseback agreement pursuant to
Section 6.12.
(G) The
definition of “Excess Formula Availability” is amended by adding “, the 2011
Note Purchase Agreement Reserve” following the words “Indenture Maturity
Reserve”.
(H) The
definition of “Fixed Charges” is amended by amending and restating the last
sentence thereof as follows:
“Notwithstanding
anything herein to the contrary, Fixed Charges specifically exclude payments
made in connection with (a) repayments and/or redemptions on the applicable
scheduled maturity date of (i) the Subordinated Debt under the Indenture, (ii)
the New Subordinated Debt under the New Indenture
and (iii) the 2011 Unsecured Notes and (b)
payments made by SMP to Xxxxx Fargo Bank N.A. pursuant to the terms of the
mortgage encumbering the Real Estate located in Long Island City, New
York.”
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(I) The
definition of “Index Rate” is amended and restated as follows:
“Index Rate” means,
for any day, a floating rate equal to the highest rate of the following
three rates set forth in clauses (i), (ii) and (iii): (i) the rate publicly
quoted from time to time by The Wall Street
Journal as the “prime rate” (or, if The Wall Street
Journal ceases quoting a prime rate, the rate publicly quoted from time
to time as the “prime rate” by another national publication selected by Agent in
its sole discretion), (ii) the Federal Funds Rate plus 300 basis points per
annum and (iii) the sum of (A) the LIBOR Rate for a three month LIBOR Period
determined on the second full LIBOR Business Day next preceding the first day of
such LIBOR Period plus (B) the excess of the Applicable Revolver LIBOR Margin
over the Applicable Revolver Index Margin. Each change in any
interest rate provided for in the Agreement based upon the Index Rate shall take
effect at the time of such change in the Index Rate.
(J) The
definition of “LIBOR Rate” is amended and restated as follows:
“LIBOR Rate” means for
each LIBOR Period, a rate of interest determined by Agent equal to the offered
rate for deposits in United States Dollars for the applicable LIBOR Period that
appears on Reuters Screen LIBOR01 Page as of 11:00 a.m. (London, England time),
on the second full LIBOR Business Day next preceding the first day of such LIBOR
Period (or if no such offered rate exists, such rate will be the rate of
interest determined from such other reporting service or other information as
shall be mutually acceptable to Agent and Borrowers); provided that at no time
shall the LIBOR Rate be less than the LIBOR Rate for a three month LIBOR Period
determined on the second full LIBOR Business Day next preceding the first day of
such LIBOR Period.”
(K) The
definition of “New Indenture Maturity Reserve” is amended by adding the
following at the end of the first sentence: “, in each case less the aggregate
face amount of any debentures issued under the New Indenture which may be
repurchased or redeemed as provided herein, but in no event may the amount of
the New Indenture Maturity Reserve be less than zero ($0).”
(L) The
definition of “Rate Protection Agreement” is amended and restated as
follows:
“Rate Protection
Agreement” means, collectively, (a) any interest rate swap, cap, collar,
credit, commodity, floor, forward foreign exchange transaction, currency swap,
cross currency rate swap, currency option, or similar agreement entered into by
any Borrower or any of its Subsidiaries under which the counterparty of such
agreement is (or at the time such agreement was entered into, was) a Lender or
an Affiliate of a Lender or (b) any Bank Product Agreement entered into by any
Borrower or any of its Subsidiaries under which the counterparty of such
agreement is (or at the time such agreement was entered into, was) a Lender or
an Affiliate of a Lender, but only to the extent that the aggregate amount of
the outstanding obligations under such Bank Product Agreement shall not exceed
$5,000,000 at any one time (it being understood that such amount up to
$5,000,000 shall constitute a Rate Protection Agreement and such amount in
excess thereof shall not constitute a Rate Protection Agreement). For
the avoidance of doubt, “Rate Protection Agreement” shall not include any
interest rate swap, cap, collar, credit, commodity, floor, forward foreign
exchange transaction, currency swap, cross currency rate swap, currency option,
or similar agreement arranged by GE Capital and supported by
a Swap Related L/C.”
(M) The
definition of “Reserves” is amended by adding to clause (d) thereof immediately
following “the Indenture Maturity Reserve” the phrase “, the 2011 Note Purchase
Agreement Reserve”.
(N) The
definition of “Subordinated Debt Documents’ is amended and restated as
follows:
“Subordinated Debt
Documents” means, jointly and severally, the Indenture, the New Indenture
and the 2011 Unsecured Debt Documents.
(b) The
second Recital is amended and restated as follows:
“WHEREAS,
Borrowers have requested that Lenders (i) amend and restate the Original Credit
Agreement and (ii) extend revolving credit facilities to Borrowers of up to One
Hundred Ninety Million Dollars ($190,000,000) in the aggregate (plus an optional
Fifty Million Dollar ($50,000,000) accordion facility) for the purpose of (a)
providing working capital financing for the general corporate purposes of
Borrowers and (b) providing funds for other purposes permitted hereunder;
including, without limitation, the refinancing, repurchase and/or redemption of
Subordinated Debt, and for these purposes, Lenders are willing to make certain
loans and other extensions of credit to Borrowers of up to such amount upon the
terms and conditions set forth herein; and”
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(c) Section
1.1(a)(i) is amended by adding the following at the end thereof:
“Notwithstanding
the foregoing to the contrary, in the event that Borrower Representative shall
send notice to Agent (or one of Agent’s representatives identified on Schedule
1.1) that it requests a Revolving Credit Advance at any time that the aggregate
daily Borrowing Availability for all Borrowers (after giving effect to such
Advance) for any day is $20,000,000 or less, then Borrowers shall submit,
together with such notice, evidence that Borrowers are in compliance with the
Fixed Charge Coverage Ratio required under item 1(a) of Annex G, which evidence
shall consist of the most recent monthly financial statements already delivered
to Agent pursuant to item (a) of Annex E for the twelve month period then ended;
provided, however that if such notice shall be delivered at any time during the
period commencing on the Closing Date and ending December 31, 2009, such
evidence shall consist of the most recent monthly financial statements already
delivered to Agent pursuant to item (a) of Annex E during such
year.”
(d) Section
1.3 is amended as follows:
(1)
Clause (b)(ii) is amended by adding immediately following “any asset disposition
(excluding proceeds of asset dispositions permitted by Section 6.8(a))” the
phrase “, any sale leaseback permitted by Section 6.12”; and
(2) the
first sentence of clause (c) is amended by amending and restating the eight and
ninth priorities thereof as follows:
“eighth,
to any Rate Protection Obligations and Swap Related Reimbursement Obligations
which may be due and payable by such Borrower, ratably in proportion to the
aggregate amounts owed as to each Rate Protection Obligation and unpaid Swap
Related Reimbursement Obligation, as applicable, until the same have been paid
in full; and ninth, to any Rate Protection Obligations and unpaid Swap Related
Reimbursement Obligations which may be due and payable by each other Borrower,
ratably in proportion to the aggregate amounts owed as to each such Rate
Protection Obligation and Swap Related Reimbursement Obligation, as applicable,
until the same have been paid in full.”
(e) Section
1.5(a)(ii) is amended by amending and restating the second paragraph and the
grids therein as follows:
“Commencing
on the Amendment No. 6 Effective Date, the Applicable Revolver Index Margin
shall be 2.50%, the Applicable Revolver LIBOR Margin shall be 4.00%, the
Applicable Unused Line Fee Margin shall be 0.75%, and the Applicable L/C Fee
Margin shall be 4.00%; provided, however that upon the occurrence of the
Convertible Debt Refinancing Date, the Applicable Margins shall be set at Level
II of the Applicable Margin Grid set forth below, and commencing at the end of
each Fiscal Quarter thereafter and in accordance with clause (iii) below, the
Applicable Margins shall be subject to adjustment (up or down) prospectively
based on Borrower’s consolidated Excess Formula Availability for the four Fiscal
Quarters then ended, each in accordance with the following grids, which will be
in effect on and after the Amendment No. 6 Effective Date:
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|
If
Excess Formula Availability is:
|
Level
of Applicable Margins
|
|
<$40
Million
|
Level
I
|
|
≥$40
Million but ≤$60 Million
|
Level
II
|
|
>$60
Million
|
Level
III
|
|
Applicable
Margins
|
|||
|
Level
I
|
Level
II
|
Level
III
|
|
|
Applicable
Revolver Index Margin
|
2.75%
|
2.50%
|
2.25%
|
|
Applicable
Revolver LIBOR Margin
|
4.25%
|
4.00%
|
3.75%
|
|
Applicable
L/C Fee Margin
|
4.25%
|
4.00%
|
3.75%
|
|
Applicable
Unused Line Fee Margin
|
0.75%
|
0.75%
|
0.75%
|
(f) Section
5.11 is amended and restated as “Intentionally Omitted.”
(g) Section
6.1 shall be amended by amending and restating clause (i) thereof as follows:
“(i) Agent shall receive at least fifteen (15) Business Days’ prior written
notice of such proposed Permitted Acquisition, which notice shall include a
reasonably detailed description of such proposed Permitted Acquisition, and with
respect to any proposed Permitted Acquisition involving a purchase price
consideration (inclusive of any assumption of liabilities) in excess of
$20,000,000, Requisite Lenders shall have consented to such Proposed
Acquisition;”.
(h) Section
6.3(a) is amended by (A) deleting “and” at the end of clause (viii) of the first
sentence thereof and substituting “,” therefor, and (B) by adding at the end of
clause (ix) of the first sentence thereof immediately prior to “.” the following
“(x) Indebtedness under the 2011 Unsecured Debt Documents, and (xi) to the
extent that the purchase of Auto Supplier Accounts by any special purpose
vehicle pursuant to an Auto Supplier Program is judicially re-characterized as a
grant of collateral by any Borrower to secure financing, Indebtedness in respect
of the applicable Auto Supplier Program”.
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(i) Section
6.7 shall be amended as follows:
(i) By
deleting the “and” at the end of clause (c); and
(ii) By
adding immediately preceding the “.” at the end of clause (d) the
following:
“; and
(e) Liens in respect of any Auto Supplier Accounts of any Borrower owed by an
Account Debtor participating in any Auto Supplier Program securing Indebtedness
permitted under Section 6.3(a)(xi)”.
(j) Section
6.8 is amended by (A) deleting “and” at the end of clause (i) of the first
sentence thereof and substituting “;” therefor, and (B) by adding at the end of
clause (j) of the first sentence thereof immediately prior to “.” the phrase
“and (k) the sale of Auto Supplier Accounts in an aggregate amount not to exceed
$5,000,000 at any one time outstanding.”
(k) Section
6.10 is amended and restated as follows:
“6.10 Financial
Covenants. Any time the aggregate average daily Borrowing
Availability as to all Borrowers in the aggregate for any continuous thirty (30)
day period is less than $30,000,000 or the aggregate daily Borrowing
Availability for all Borrowers is $20,000,000 or less (it being understood and
agreed that for purposes of this sentence, average daily Borrowing Availability
shall be determined with the “Borrowing Availability Reserve” deemed to be $0),
Borrowers shall not breach or fail to comply with any of the Financial
Covenants. In the event the foregoing Borrowing Availability
threshold is violated, Borrowers shall be required to comply with the Financial
Covenants until Borrowers have maintained an average Borrowing Availability of
$30,000,000 or greater for a continuous ninety (90) day period, as determined by
Agent in its reasonable discretion.”
(l) Section
6.12 is amended by adding immediately following “any of its assets” the phrase
“other than sale leasebacks of the Excluded Real Property”.
(m) Section
6.18 is amended and restated as follows:
“6.18. Leases. No
Credit Party shall enter into any operating lease for (A) Equipment if the
aggregate amount of all such operating lease payments payable in any Fiscal Year
for all Credit Parties on a consolidated basis would exceed One Hundred Twenty
percent (120%) of the aggregate amount of all such payments in the prior Fiscal
Year or for (B) Real Estate if the aggregate amount of all such operating lease
payments payable in any Fiscal Year for all Credit Parties on a consolidated
basis would exceed One Hundred Twenty percent (120%) of the aggregate of all
such payments in the prior Fiscal Year plus the value of the annualized lease
payments with respect to any Excluded Property in which a sale leaseback
transaction was consummated for such property in the prior Fiscal
Year.”
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(n) Article
VI is hereby amended by adding at the end thereof the following new Section
6.21:
“6.21. No Amendment to Auto
Supplier Program Documents. No Credit Party shall, without the
prior written consent of Agent, amend or otherwise modify (or agree to an
amendment or other modification to) any term of any documents executed in
connection with any Auto Supplier Program.”
(o) Annex
B to the Agreement is amended by amending and restating the second sentence of
item (a) as follows:
“The
aggregate amount of all such Letter of Credit Obligations shall not at any time
exceed the lesser of (i) Fifteen Million Dollars ($15,000,000) (the “L/C
Sublimit”), (ii) the Maximum Amount less the aggregate outstanding principal
balance of the Revolving Credit Advances, and (iii) the Aggregate Borrowing Base
(adjusted as if no Letters of Credit are outstanding) less the aggregate
outstanding principal balance of the Revolving Credit Advances.”
(p) Annex
F to the Agreement is amended by amending and restating item (f) as
follows:
“(f) Each
Borrower, at its own expense, shall deliver to Agent (i) an appraisal of its
inventory not less than once during each year and (ii) such other appraisals of
its assets as Agent may request, no more frequently than once a year and, in the
case of clause (i) and (ii) above, at any time after the occurrence and during
the continuance of a Default or an Event of Default, which appraisals shall be,
in each case, conducted by an appraiser, and in form and substance reasonably
satisfactory to Agent; and”
(q) Annex
G to the Agreement is amended by amending and restating the first paragraph of
item 1 as follows:
1. Any
time the aggregate average daily Borrowing Availability as to all Borrowers in
the aggregate for any continuous thirty (30) day period is less than $30,000,000
or the aggregate daily Borrowing Availability for all Borrowers is $20,000,000
or less (it being understood and agreed that for purposes of this calculation,
Borrowing Availability shall be determined with the “Borrowing Availability
Reserve” deemed to be $0), Borrowers shall not breach or fail to comply with any
of the following financial covenants, with the Minimum Fixed Charge Coverage
Ratio to be measured, except as otherwise provided in paragraph (a) below,
commencing with the Fiscal Quarter immediately preceding the Fiscal Quarter in
which the foregoing Borrowing Availability threshold is violated and with each
such financial covenant being calculated in accordance with GAAP consistently
applied:
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(r) Annex
J to the Agreement is hereby deleted and replaced by the new Annex J attached
hereto.
3. Consent. Notwithstanding
anything to the contrary in the Loan Agreement, the Requisite Lenders consent to
SMP (i) repaying the existing Subordinated Debt under the Indenture on the
maturity date thereof with the proceeds of Advances and/or the proceeds of the
2011 Unsecured Notes so long as (x) the aggregate Borrowing Availability for all
Borrowers (after giving effect to such repayment) is not less than $30,000,000
and (y) no Default or Event of Default shall have occurred or be continuing or
would occur as a result of such repayment, (ii) refinancing, repurchasing or
redeeming the New Subordinated Debt under the New Indenture or the 2011
Unsecured Notes, in each case prior to the maturity date thereof, with the
proceeds of Advances so long as (x) the aggregate Borrowing Availability for all
Borrowers (after giving effect to such refinancing, repurchasing or redemption)
is not less than $40,000,000 and (y) no Default or Event of Default shall have
occurred or be continuing or would occur as a result of such refinance,
repurchase or redemption, and (iii) repaying the New Subordinated Debt under the
New Indenture or the 2011 Unsecured Notes, in each case on the maturity date
thereof, with the proceeds of Advances so long as (x) the aggregate Borrowing
Availability for all Borrowers (after giving effect to such repayment) is not
less than $30,000,000 and (b) no Default or Event of Default shall have occurred
or be continuing or would occur as a result of such repayment.
4. Repayment of Subordinated
Debt . In the event that SMP shall repay in full the existing
Subordinated Debt under the Indenture on the maturity date thereof in accordance
with the provisions of the Agreement, then effective upon such date of
repayment, Section 6.14(e)(iii)(w) shall be of no further force and
effect.
5. Conditions of
Effectiveness. This Amendment No. 6 shall become effective upon
satisfaction of the following conditions precedent: Agent shall have received
(i) four (4) copies of this Amendment No. 6 executed by Borrowers and Lenders,
(ii) four (4) copies of Amendment No. 4 to Credit Agreement dated as of the date
hereof by and among the Credit Parties, GE Canada Finance Holding Company, as
lender and as agent for lenders, the other lenders party thereto, and GE Capital
Markets, Inc., as lead arranger and bookrunner, which amendment shall have been
executed by the parties thereto, (iii) payment of an amendment consent fee for
each Lender which executes this Amendment No. 6 in an amount equal
to 0.50% of such Lender’s Commitment (after giving effect to this
Amendment No. 6), (iv) payment of all fees and expenses due and payable to
Agent’s own account in connection with this Amendment No. 6 and the Loan
Agreement, and (v) such other certificates, instruments, documents, agreements
and opinions of counsel as may be required by Agent or its counsel, each of
which shall be in form and substance satisfactory to Agent and its
counsel.
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6. Representations and
Warranties. Each Borrower hereby represents and warrants as
follows:
(a) This
Amendment No. 6 and the Loan 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 No. 6, each Borrower hereby reaffirms all
covenants, representations and warranties made in the Loan Agreement to the
extent the same are not 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 No. 6.
(c) No
Event of Default or Default has occurred and is continuing or would exist after
giving effect to this Amendment No. 6.
(d) No
Borrower has any defense, counterclaim or offset with respect to the Loan
Agreement.
7. Effect on the Loan
Agreement.
(a) Upon
the effectiveness of Section 2 hereof, each reference in the Loan Agreement to
“this Agreement,” “hereunder,” “hereof,” “herein” or words of like import shall
mean and be a reference to the Loan Agreement as amended hereby.
(b) Except
as specifically amended herein, the Loan Agreement, and all other documents,
instruments and agreements executed and/or delivered in connection therewith,
shall remain in full force and effect, and are hereby ratified and
confirmed.
(c) The
execution, delivery and effectiveness of this Amendment No. 6 shall not operate
as a waiver of any right, power or remedy of Agent or Lenders, nor constitute a
waiver of any provision of the Loan Agreement, or any other documents,
instruments or agreements executed and/or delivered under or in connection
therewith.
8. Governing Law. This
Amendment No. 6 shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns and shall be governed by and
construed in accordance with the laws of the State of New York.
9. Headings. Section
headings in this Amendment No. 6 are included herein for convenience of
reference only and shall not constitute a part of this Amendment No. 6 for any
other purpose.
10. Counterparts;
Facsimile. This Amendment No. 6 may be executed by the parties hereto in
one or more counterparts, each of which shall be deemed an original and all of
which when taken together shall constitute one and the same agreement. Any
signature delivered by a party by facsimile transmission or electronic mail
shall be deemed to be an original signature hereto.
11
IN
WITNESS WHEREOF, this Amendment No. 6 has been duly executed as of the day and
year first written above.
|
STANDARD
MOTOR PRODUCTS, INC.
|
|
|
By:________________________________
|
|
|
Name:
|
|
|
Title:
|
|
|
MARDEVCO
CREDIT CORP.
|
|
|
By:_________________________________
|
|
|
Name:
|
|
|
Title:
|
|
|
STANRIC,
INC.
|
|
|
By:_________________________________
|
|
|
Name:
|
|
|
Title:
|
|
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SMP
MOTOR PRODUCTS LTD.
|
|
|
By:____________________________
|
|
|
Name:
|
|
|
Title:
|
|
|
[Additional
Signature Page to Follow]
|
|
GENERAL
ELECTRIC CAPITAL
CORPORATION, as Agent and Lender |
|
|
By:____________________________
|
|
|
Name:
|
|
|
Title:
|
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|
BANK
OF AMERICA, N.A.,
|
|
|
as
Co-Syndication Agent and Lender
|
|
|
By:____________________________
|
|
|
Name:
|
|
|
Title:
|
|
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WACHOVIA
BANK, NATIONAL
ASSOCIATION, as Co-Syndication Agent and Lender |
|
|
By:____________________________
|
|
|
Name:
|
|
|
Title:
|
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JPMORGAN
CHASE BANK, N.A., as
Documentation Agent and Lender |
|
|
By:____________________________
|
|
|
Name:
|
|
|
Title:
|
|
|
[Additional
Signature Page to
Follow]
|
|
HSBC
BANK USA, NATIONAL ASSOCIATION,
as Lender |
|
|
By:____________________________
|
|
|
Name:
|
|
|
Title:
|
|
|
XXXXX
FARGO FOOTHILL, LLC,
as Lender |
|
|
By:____________________________
|
|
|
Name:
|
|
|
Title:
|
|
|
GE
BUSINESS FINANCIAL SERVICES, INC.,
as Lender |
|
|
By:____________________________
|
|
|
Name:
|
|
|
Title:
|
