FIRST AMENDMENT AGREEMENT
This FIRST AMENDMENT AGREEMENT ("THIS AGREEMENT"), dated as of
March 20, 2007 among SMP MOTOR PRODUCTS LTD., a corporation amalgamated under
the laws of Canada ("BORROWER"); the other Credit Parties signatory hereto; GE
CANADA FINANCE HOLDING COMPANY, a Nova Scotia unlimited liability company (in
its individual capacity, "GE FINANCE"), for itself, as Lender, and as Agent for
the Secured Parties; the other Lenders signatory hereto from time to time. GE
Capital Markets, Inc. shall act as Lead Arranger and Bookrunner.
RECITALS:
A. The parties hereto have entered into the Credit Agreement (the "CREDIT
AGREEMENT"), dated as of December 29, 2005, pursuant to which Lenders extended
term credit facilities to the Borrower of up to Seven Million US Dollars
($7,000,000) to enable the Borrower to make a loan or pay a dividend in an
amount not exceeding $7,000,000 to its parent corporation, Standard Motor
Products, Inc. ("PARENT"); capitalized terms used in this Agreement and not
otherwise defined in this Agreement shall have the meanings ascribed to them in
the Credit Agreement; and
B. The Term Loan in the aggregate principal amount of $7,000,000 was made to the
Borrower under the Credit Agreement and remains outstanding thereunder; and
C. The Borrower has secured all of its obligations under the Loan Documents by
granting to Agent, for the benefit of Agent and other Secured Parties, a
security interest in and lien upon, all of its existing and after-acquired
personal and real property; and
D. The Credit Parties other than the Borrower guaranteed the obligations of the
Borrower under the Loan Documents and secured all of their obligations under the
Loan Documents (including their obligations under their guarantees of the
obligations of the Borrower under the Credit Agreement) by granting to Agent or
the US Agent, as the case may be, for the benefit of Secured Parties, a security
interest in and lien upon substantially all of their existing and after acquired
personal and real property; and
E. The Borrower and the other Credit Parties have requested that the Lenders
increase the term credit facilities extended to the Borrower under the Credit
Agreement from Seven Million US Dollars ($7,000,000) to Twelve Million US
Dollars ($12,000,000) to enable the Borrower to make an additional loan or pay
an additional dividend in an amount not exceeding $5,000,000 to Parent and/or be
used for working capital and other general corporate purposes of the Borrower,
and the Lenders have agreed to provide such increase in the term credit
facilities extended to the Borrower under the Credit Agreement on the terms and
conditions set forth in this Agreement; and
F. Contemporaneously with the effectiveness of the amendments contemplated by
this Agreement, the US Credit Agreement is to be amended and restated to, among
other things, reduce the revolving credit facilities established thereunder from
US$305,000,000 to US$263,000,000 and to provide for an optional US$50,000,000
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accordion facility thereunder; to give effect to such reduced credit facilities
and certain other changes related thereto, the US Credit Agreement is being
amended and restated pursuant to an amended and restated credit agreement among
the parties to the US Credit Agreement (the "AMENDED AND RESTATED US CREDIT
AGREEMENT"); and
G. In order to give effect to the foregoing, the Borrower, Agent and Lenders
have agreed to amend the Credit Agreement on the terms and conditions set forth
herein, and the other Credit Parties have agreed to consent to the amendments
contemplated by this Agreement; and
H. These Recitals shall be construed as part of this Agreement.
NOW THEREFORE, in consideration of the mutual agreements
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. REFERENCES. Unless otherwise expressly stated herein, all references in this
Agreement to clauses, Sections, Articles, Exhibits, Annexes and Schedules are
references to clauses, Sections, Articles, Exhibits, Annexes and Schedules of or
to the Credit Agreement.
2. INCREASE OF TERM LOAN COMMITMENTS. Subject to the satisfaction of the
conditions set forth in Section 4 below, Lenders hereby agree to increase the
Term Loan Commitments from Seven Million US Dollars ($7,000,000) to Twelve
Million US Dollars ($12,000,000) to enable the Borrower to make an additional
loan to the Parent or pay an additional dividend to the Parent and/or for
working capital and other general corporate purposes of the Borrower, in an
aggregate amount not exceeding $5,000,000.
3. AMENDMENTS TO CREDIT AGREEMENT. Subject to the satisfaction of the conditions
set forth in Section 4 below, and to give effect to the increase of the Term
Loan Commitments contemplated by Section 2 hereof, the Credit Agreement is
hereby amended as follows:
(1) Each of the first recital of the Credit Agreement, Section 1.4 of the Credit
Agreement, and the definitions of the defined terms "Commitments" and "Term Loan
Commitment" in Annex A of the Credit Agreement is amended to change (A) each
reference therein to "Seven Million Dollars" to "Twelve Million Dollars", and
(B) each reference therein to "$7,000,000" to "$12,000,000".
(2) Section 1.1(a) of the Credit Agreement is hereby deleted and replaced
with the following:
(a) Subject to the terms and conditions hereof, each Lender agrees to
make term loans denominated in US Dollars (collectively, the "TERM
LOAN") to Borrower in an aggregate principal amount equal to its Term
Loan Commitment. The Borrower confirms that, on the Closing Date, the
Lenders made Term Loans to the Borrower in the aggregate principal
amount of $7,000,000. At any time up to the date which is one (1)
Business Day prior to the Commitment Termination Date, the Borrower may
borrow up to the remaining balance of the Term Loan Commitments. Any
further advance of funds under the Term Loan Commitments shall be made
on notice by Borrower to Agent at the address specified herein. Any
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such notice must be given no later than (1) noon (Toronto time) on the
Business Day of the proposed advance, in the case of an Index Rate
Loan, or (2) noon (Toronto time) on the date which is three (3)
Business Days prior to the proposed advance, in the case of a LIBOR
Loan. Each such notice (a "NOTICE OF ADVANCE") must be given in writing
(by telecopy or overnight courier) substantially in the form of Exhibit
1.1(a), and shall include the information required in such Exhibit and
such other information as may be reasonably required by Agent. If any
Borrower desires to have advances bear interest by reference to a LIBOR
Rate, Borrower must comply with Section 1.5(e). The obligations of each
Lender hereunder shall be several and not joint. The Term Loan shall be
evidenced by promissory notes substantially in the form of EXHIBIT 1.1
(each, a "TERM NOTE" and, collectively, the "TERM NOTES"), and, except
as provided in SECTION 1.12, Borrower shall execute and deliver each
Term Note to the applicable Lender. Each Term Note shall represent the
obligation of Borrower to pay the amount of the applicable Lender's
Term Loan Commitment, together with interest thereon as prescribed in
SECTION 1.5.
(3) Section 1.4 of the Credit Agreement is hereby amended by deleting the "." at
the end of the Section and substituting therefor "and/or for working capital and
other general corporate purposes of the Borrower.".
(4) The definition of "Commitment Termination Date" in Annex A of the Credit
Agreement is hereby amended by deleting "December 31, 2008" and substituting
therefor "March 20, 2012".
(5) Annex J of the Credit Agreement is hereby deleted and replaced by the new
Annex J attached hereto.
4. CONDITIONS PRECEDENT TO EFFECTIVENESS. This Agreement shall become effective
on the date upon which each of the following conditions is satisfied:
(a) FIRST AMENDMENT AGREEMENT. Agent shall have received this
Agreement or counterparts hereof duly executed and delivered
by the Borrower, each other Credit Party, the Agent and the
Lenders and the representations and warranties in Section 5
hereof shall be true and correct on and as of such date.
(b) AMENDED AND RESTATED CREDIT AGREEMENT. The Amended and
Restated US Credit Agreement shall have been executed and
delivered by all parties thereto and all conditions to
effectiveness thereunder shall have been satisfied or waived
in accordance with the conditions thereof, and the Agent shall
have received a fully executed copy of the Amended and
Restated US Credit Agreement.
(c) RESOLUTION AND OPINION. Agent shall have received such
documents and certificates as Agent or its counsel may
reasonably request relating to the authorization of and any
other legal matters relating to Borrower, the other Credit
Parties, this Agreement, the transactions contemplated hereby
and the Credit Agreement as amended hereby, including
certified copies of the resolutions of the directors or
shareholders of Borrower authorizing the execution, delivery
and performance of this Agreement and an opinion of external
Canadian legal counsel for the Borrower, all in form and
substance satisfactory to Agent and its counsel, acting
reasonably.
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(d) CLOSING FEE. Agent shall have received, for the account of and
distribution to the Lenders pro rata in accordance with their
respective Term Loan Commitments, a closing fee in the
aggregate amount of US$18,000 in immediately available funds
(which shall be fully earned and non-refundable as of the date
paid).
(e) OTHER DOCUMENTS. Agent shall have received such other
documents as Agent and Lenders may reasonably request.
5. REPRESENTATIONS. Each Credit Party represents and warrants to Lenders and
Agent that, as of the date hereof:
(a) This Agreement has been duly authorized, executed and
delivered by it, and this Agreement and the Credit Agreement,
as amended hereby, constitutes legal, valid and binding
obligations and are enforceable in accordance with their
respective terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other laws affecting
creditor's rights generally and subject to general principles
of equity, regardless of whether considered in a proceeding in
equity or at law.
(b) Upon the effectiveness of this Agreement, each Credit Party
hereby confirms that the representations and warranties made
by it in the Credit Agreement and the Collateral Documents are
true and correct on and as of such date, except to the extent
that such representation or warranty expressly relates to an
earlier date.
(c) Such Credit Party is in full compliance with its covenants in
the Credit Agreement and the Collateral Documents, and no
Default or Event of Default has occurred and is continuing on
the date hereof after giving effect to the amendments set
forth herein.
6. CREDIT AGREEMENT IN EFFECT. Except as specifically stated herein, the Credit
Agreement shall continue in full force and effect in accordance with the
provisions thereof and is hereby ratified and confirmed.
7. REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT. After this Agreement becomes
effective as provided herein, each reference in the Credit Agreement to "this
Agreement", "hereunder", "hereof", "herein", "hereto", "hereby" and similar
expressions, and each reference to "the Credit Agreement" and "the Agreement" in
any Schedule or Annex to the Credit Agreement and, unless the context otherwise
requires, any Collateral Documents shall mean and refer to the Credit Agreement,
as amended by this Agreement.
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8. CONFIRMATION OF GUARANTEES AND SECURITY. Each Credit Party other than
Borrower acknowledges, confirms and agrees that the guarantee executed by such
Credit Party to and in favour of Agent on behalf of the Secured Parties in
support of the obligations of Borrower under the Credit Agreement and the other
Loan Documents (collectively, the "GUARANTEES") remains in full force and
effect, unamended and supports the repayment of the Term Loan, as increased
hereunder. In addition, each Credit Party (including Borrower) acknowledges,
confirms and agrees that (i) all security granted by each Credit Party to and in
favour of Agent on behalf of the Secured Parties as security for the obligations
of such Credit Party under the Credit Agreement (including the Guarantees) and
the other Loan Documents to which it is a party (collectively, the "CREDIT PARTY
SECURITY") remains in full force and effect, unamended, and the security
interests, mortgages, charges, liens, assignments, transfers and pledges granted
by each Credit Party in favour of Agent on behalf of the Secured Parties
pursuant to the Credit Party Security continue to secure and extend to all
debts, liabilities and obligations of such Credit Party to Agent and the Secured
Parties (including the Guarantees), whether direct or indirect, absolute or
contingent, present or future, pursuant to, arising out of, or in connection
with, the Credit Agreement (as amended hereby) and the other Loan Documents to
which such Credit Party is a party; and (ii) the Guarantees and the Credit Party
Security are all hereby ratified and confirmed.
9. APPLICABLE LAW. This Agreement shall be construed in accordance with and
governed by the laws of Ontario and the laws of Canada applicable therein.
10. COUNTERPARTS. This Agreement may be executed in any number of counterparts,
each of which shall be an original but all of which, when taken together, shall
constitute one instrument. Delivery of an executed counterpart of a signature
page of this Agreement by facsimile shall be as effective as delivery of a
manually executed counterpart of this Agreement.
11. EXPENSES. Borrower agrees to reimburse Agent for its out-of-pocket expenses
in connection with this Agreement, including the reasonable legal fees and
disbursements of Blake, Cassels & Graydon LLP, counsel for Agent.
[BALANCE OF PAGE LEFT BLANK; SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this First
Amendment Agreement to be duly executed by their respective authorized officers
as of the date first above written.
SMP MOTOR PRODUCTS LTD.
By:
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Name:
Title:
GE CANADA FINANCE HOLDING COMPANY,
as Agent and Lender
By:
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Duly Authorized Signatory
BANK OF AMERICA N.A. BY ITS CANADA BRANCH
By:
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Name:
Title:
By:
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Name:
Title:
HSBC BANK CANADA
By:
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Name:
Title:
By:
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Name:
Title:
JPMORGAN CHASE BANK, N.A., TORONTO BRANCH
By:
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Name:
Title:
By:
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Name:
Title:
WELLS FARGO FINANCIAL CORPORATION CANADA
By:
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Name:
Title:
By:
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Name:
Title:
WACHOVIA CAPITAL FINANCE CANADA
By:
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Name:
Title:
By:
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Name:
Title:
The following Persons are signatories to this First Amendment Agreement in their
capacity as Credit Parties and not as Borrower.
STANDARD MOTOR PRODUCTS, INC.
By:
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Name:
Title:
STANRIC, INC.
By:
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Name:
Title:
MARDEVCO CREDIT CORP.
By:
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Name:
Title:
The undersigned is a signatory to this Agreement solely in its capacity as agent
on behalf of the Agent and Secured Parties hereunder under the Security
Agreement dated February 7, 2003, as amended, entered into between the
undersigned and the Credit Parties that are signatory thereto.
GENERAL ELECTRIC CAPITAL CORPORATION, as US Agent
By:
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Name:
Title:
ANNEX J (FROM ANNEX A - COMMITMENTS DEFINITION)
TO
CREDIT AGREEMENT
Lender(s):
GE Canada Finance Holding Company $ 4,385,542.17
HSBC Bank Canada $ 915,662.65
Wells Fargo Financial Corporation Canada $ 1,204,819.28
Wachovia Capital Finance Canada $ 1,975,903.61
Bank of America N.A. by its Canada Branch $ 2,216,867.47
JPMorgan Chase Bank N.A., Toronto Branch $ 1,301,204.82
Term Loan Commitment: $ 12,000,000
EXHIBIT 1.1(A)
TO
CREDIT AGREEMENT
FORM OF NOTICE OF BORROWING
[DATE]
Reference is made to that certain Credit Agreement dated as of
December 29, 2005 by and among the undersigned, SMP MOTOR PRODUCTS LTD., a
Canada corporation ("BORROWER"), the other Persons named therein as Credit
Parties, GE Canada Finance Holding Company, a Nova Scotia unlimited liability
company, as Agent on behalf of the Secured Parties, the other Persons party
thereto from time to time as Lenders (including all annexes, exhibits and
schedules thereto and as from time to time amended, restated, supplemented or
otherwise modified, the "CREDIT AGREEMENT"). Capitalized terms used herein
without definition are so used as defined in the Credit Agreement.
Borrower hereby gives irrevocable notice, pursuant to SECTION
1.1(A) of the Credit Agreement, of its request to borrow US$___________ under
the Term Loan Commitments by way of [AN INDEX RATE LOAN] or [A LIBOR LOAN,
HAVING A LIBOR PERIOD OF [ONE] [TWO] [THREE] MONTHS(S)].
Borrower hereby represents and warrants that all of the
conditions contained in Section 2.2 of the Credit Agreement have been satisfied
on and as of the date hereof, and will continue to be satisfied on and as of the
date of the advance requested hereby, before and after giving effect thereto;
and reaffirms the continuance of Agent's Liens, on behalf of the Secured
Parties, pursuant to the Collateral Documents.
IN WITNESS WHEREOF, Borrower has caused this Notice of
Borrowing be executed and delivered by its duly authorized officer as of the
date first set forth above.
SMP MOTOR PRODUCTS LTD.
By:
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Name: o
Title: o
By:
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Name: o
Title: o