AMENDMENT NO. 4 TO
SECOND AMENDED AND
RESTATED CREDIT AGREEMENT
THIS AMENDMENT NO. 4 (this "Amendment No. 4") is entered into as of
December 18, 2008, 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 JP MORGAN CHASE 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 3 below, the Loan Agreement is hereby amended as
follows:
(a) Section 1.5(a)(ii) is amended and restated as follows:
"(ii) On and after the Closing Date, Borrowers shall pay
interest to Agent, for the ratable benefit of Lenders in
accordance with the various Loans being made by each Lender,
in arrears on each applicable Interest Payment Date, at a
fluctuating rate equal to (A) the Index Rate plus the
Applicable Revolver Index Margin per annum or (B) at the
election of Borrower Representative, the applicable LIBOR Rate
plus the Applicable Revolver LIBOR Margin per annum, in each
case based on the aggregate Revolving Credit Advances
outstanding from time to time.
Commencing on the Amendment No. 4 Effective Date, the
Applicable Revolver Index Margin shall be 1.50%, the
Applicable Revolver LIBOR Margin shall be 2.75%, the
Applicable Unused Line Fee Margin shall be 0.375%, and the
Applicable L/C Fee Margin shall be 2.75%; provided, however
that upon the occurrence of the earlier of (A) March 31, 2009
and (B) 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 Closing Date:
--------------------------------------------------------------
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 2.25% 2.00% 1.75%
--------------------------------------------------------------
Applicable Revolver
LIBOR Margin 3.50% 3.25% 3.00%
--------------------------------------------------------------
Applicable L/C Fee
Margin 3.50% 3.25% 3.00%
--------------------------------------------------------------
Applicable Unused
Line Fee Margin 0.375% 0.375% 0.375%
--------------------------------------------------------------
(b) Section 1.6 is amended as follows:
(i) By deleting from the first sentence thereof the following:
"(i) to the extent Accounts which are permitted to be
paid after 90 days following their original invoice date
but within 210 days following their original invoice
date exceed $115,000,000 in the aggregate at any time or
from time to time such Accounts shall not constitute
Eligible Accounts to the extent of such excess, or
(ii)"; and
(ii) By amending and restating clauses (1)(i) and (r) in their
entirety as "[Intentionally Omitted]".
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(c) Section 1.8 is amended by deleting the last sentence thereof.
(d) The following Sections shall be added in their entirety in their
appropriate numerical order:
"5.11. Minimum Borrowing Availability. Effective as of the
Convertible Debt Redemption Date, Borrowing Availability as to
all Borrowers shall at all times be equal to or greater than
$25,000,000; provided, however, that such $25,000,000 amount
shall be reduced by one dollar for every dollar (a) the
initial loan under the Permitted Convertible Debt Refinancing
Facility is in excess of $40,000,000 and (b) of new cash
equity invested in SMP after the Amendment No. 4 Effective
Date; and provided, further, however, that the aggregate
dollar for dollar reduction under clauses (a) and (b) above
shall be limited to $10,000,000 so that Borrowing Availability
as to all Borrowers shall at all times be not less than
$15,000,000 or such greater amount as may apply after giving
effect to the first proviso of this Section 5.11."
"5.12. BSE Sale. (a) SMP Canada shall cause its share of the
cash proceeds of the BSE Sale to be distributed and/or lent to
SMP and SMP shall apply such amounts, together with its share
of the cash proceeds of the BSE Sale, to prepay the Loans in
accordance with the provisions of Section 1.3(b)(ii) of the
Agreement.
(b) The BSE Deferred Payment shall be evidenced by a
promissory note in form and substance reasonably satisfactory
to Agent, which promissory note, upon the consummation of the
BSE Sale, shall be duly pledged, endorsed and delivered to
Agent as collateral security for the Obligations hereunder and
shall be subject to a first priority Lien in favor of Agent,
for its benefit and for the ratable benefit of Lenders, and
SMP and SMP Canada shall execute and deliver such amendments
to the applicable Pledge Agreement as is reasonably requested
by Agent to evidence such Lien.".
(e) Section 6.3(a) is amended by adding at the end thereof the
following:
"Notwithstanding the provisions of Sections 6.3 or 6.19(a)(e)
hereof to the contrary, any Convertible Debt Refinancing or
Permitted Convertible Debt Refinancing Facility that requires
a junior Lien to be granted on any Collateral or any
"Collateral" under the Canadian Loan Agreement or "Collateral
Documents" (as each such term is defined in the Canadian Loan
Agreement) shall be permitted hereunder so long as the terms
and conditions of such Convertible Debt Refinancing and/or
Permitted Convertible Debt Refinancing Facility, as
applicable, the related intercreditor agreement, and all other
related documentation are satisfactory to Agent and Requisite
Lenders in their sole discretion."
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(f) Subsection 6.8 is amended as follows:
(i) By deleting the word "and" immediately prior to "(g) Draft
Monetization" in the first sentence thereof;
(ii) By adding the following phrase immediately following "(g)
Draft Monetization" in the first sentence thereof:
"; (h) the BSE Sale; (i) the sale of Borrowers' Real
Estate located in Reno, Nevada; and (j) the sale of
Borrower's Real Estate located in Grapevine, Texas".
(iii) By deleting from the second sentence thereof the phrase
"(b), (c) and (d)" and substituting therefore the phrase "(b),
(c), (d), (h) and (i)".
(g) The first sentence of Section 6.10 is amended in its entirety to
provide as follows:
"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 for any two (2)
days within any continuous thirty (30) day period 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."
(h) Section 6.14(e)(iii) is amended by adding immediately prior to
clause (x) thereof the following: "(w) the aggregate amount of such
refinanced, repurchased or redeemed Subordinated Debt shall not exceed
$50,000,000 until such time as the Permitted Convertible Debt Refinancing
Facility shall have closed and funded,".
(i) Section 6.19(a)(e) is amended by adding "except as otherwise
provided in the last sentence of Section 6.3," immediately prior to "grant
any security or collateral".
(j) Section 8.1(f) is amended by deleting "$250,000" and
substituting therefore "$2,000,000".
(k) Annex A is amended as follows:
(i) The following defined terms are added in their appropriate
alphabetical order:
(A) "Amendment No. 4" means that certain Amendment No.4
to Second Amended and Restated Credit Agreement dated as of
December 18, 2008 by and among SMP, SI, MCC, SMP Canada,
Agent, and the Lenders party thereto.
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(B) "Amendment No. 4 Effective Date" means the date on
which the conditions precedent set forth in Section 3 of
Amendment No. 4 are satisfied.
(C) "Borrowing Availability Reserve" means a reserve
equal to the amount of $15,000,000, except that for purposes
of calculating Borrowing Availability under Section 6.1(iv)(x)
and Section 6.2(b)(x), (g)(x) and (h)(x) and effective as of
the Convertible Debt Redemption Date, the amount of the
Borrowing Availability Reserve shall be deemed to be $0.
(D) "BSA" means Blue Streak America, Inc., a Florida
corporation.
(E) "BSE" means Blue Streak Electronics Inc., a Canadian
corporation.
(F) BSE Deferred Payment" means the deferred payments
payable to SMP and SMP Canada following the closing of the BSE
Sale pursuant to Schedule I to the BSE Inventory Purchase
Agreement.
(G) "BSE Final Purchase Price" means the purchase price
of the BSE Sale as set forth on Schedule I to the BSE
Inventory Purchase Agreement.
(H) "BSE Inventory Purchase Agreement" means that
certain Inventory Purchase Agreement by and among SMP and SMP
Canada, as sellers, and BSE and BSA, as purchasers, pursuant
to which SMP and SMP Canada shall sell certain inventory to
BSE and BSA, which agreement shall in final form conform in
all material respects to the terms and conditions of the draft
agreement dated November 14, 2008.
(I) "BSE Sale" means the sale by SMP and SMP Canada of
certain Inventory, shares and related assets for the BSE Final
Purchase Price pursuant to the BSE Inventory Purchase
Agreement, the BSE Stock Purchase Agreement, that certain
Stock Purchase Agreement (Israeli) by and between Autotech
Inc., an Israeli corporation and SMP, that certain Stock
Purchase Agreement (UK) by and between SMP Canada and BSE,
that certain Termination Agreement by and among Tadir, Inc.,
Autotech Inc., BSE, BSA, SMP Canada, SMP and Standard Motor
Products Holdings Ltd., a corporation incorporated under the
laws of England and Wales, and that certain Trademark License
Agreement by and between SMP, as licensor and BSE and BSA, as
licensees, in each case such agreement shall in final form
conform in all material respects to the terms and conditions
of the related draft agreement dated November 14, 2008.
(J) "BSE Stock Purchase Agreement" means that certain
Stock Purchase Agreement with Promissory Note by and among SMP
and SMP Canada, as sellers, and Tadir Inc., a Canadian
corporation, as purchaser, pursuant to which SMP and SMP
Canada shall sell their interests in the shares of BSE to
Tadir Inc, which agreement shall in final form conform in all
material respects to the terms and conditions of the draft
agreement dated November 14, 2008.
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(K) "Convertible Debt Redemption Date" means the date on
which Borrowers shall have deposited with the trustee or
paying agent under the Indenture an amount sufficient to pay
the redemption price of, and accrued interest on, all
Subordinated Debt under the Indenture that is outstanding at
such time following receipt by Agent of a request from
Borrower Representative for a Revolving Credit Advance in an
amount sufficient to make such payment in accordance with the
terms hereof.
(L) "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.
(M) "Convertible Debt Refinancing Date" means the date
of occurrence of the earlier of (a) the closing of the
Convertible Debt Refinancing and (b) Borrowers shall have
entered into a Permitted Convertible Debt Refinancing
Facility.
(N) "Cores NOLV Rate" means the rate set forth as the
Net Orderly Liquidation Value rate of Eligible Inventory
consisting of cores in the most recent appraisal prepared by
an independent appraisal firm acceptable to Agent.
(O) "Finished Goods NOLV Rate" means the rate set forth
as the Net Orderly Liquidation Value rate of Eligible
Inventory consisting of finished goods in the most recent
appraisal prepared by an independent appraisal firm acceptable
to Agent.
(P) "Permitted Convertible Debt Refinancing Facility"
means a new borrowing facility of at least $40,000,000, the
proceeds of which are intended to be utilized, either
substantially contemporaneously or on or before the maturity
of the Subordinated Debt under the Indenture, to refinance the
Subordinated Debt under the Indenture.
(Q) "Raw Materials NOLV Rate" means the rate set forth
as the Net Orderly Liquidation Value rate of Eligible
Inventory consisting of raw materials in the most recent
appraisal prepared by an independent appraisal firm acceptable
to Agent.
(R) "Receivables Advance Rate" means at any time, a rate
equal to the product of (a) 85% and (b) the rate set forth as
the Finished Goods NOLV Rate.
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(ii) Each of the following defined terms is amended as
follows:
(A) The definition of "Borrowing Availability" is
amended by adding the phrase "the Borrowing Availability
Reserve," immediately prior to "the Canadian Reserve" in the
last sentence thereof .
(B) The definition of "EBITDA" is amended by adding the
following at the end thereof:
"For purposes of this definition, the following items
shall be excluded from the calculation of "loss from
extraordinary items" in clause (c)(iii) of the first
sentence of this definition: (1) one-time charges
incurred by SMP in connection with the consolidation of
its manufacturing facilities in Long Island City, New
York, (2) one-time charges incurred by SI in connection
with the consolidation of all manufacturing facilities,
(3) one-time charges incurred by SMP in connection with
relocating its facilities from Reno, Nevada to
Disputanta, Virginia, (4) one-time charges incurred by
SMP in connection with relocating its facilities from
Grapevine, Texas and Edwardsville, Kansas to Reynosa,
Mexico, (5) one-time charges incurred by SMP in
connection with relocating its facilities from Corona,
California to Tijuana, Mexico, and (6) one-time charges
incurred by SMP in connection with certain contemplated
asset acquisitions and divestitures, but with respect to
all of the above one-time charges, such items shall only
be excluded from the calculation of "loss from
extraordinary items" in clause (c)(iii) of the first
sentence of this definition for any fiscal period in
2007, 2008, and 2009, respectively, to the extent that
the aggregate amount of such one-time charges exceeds
$11,000,000, $8,000,000 and $4,000,000 for 2007, 2008,
and 2009, respectively (and, thus, such excess amounts
shall not be added back to consolidated net income for
purposes of calculating EBITDA)."
(C) The definition of "Excess Formula Availability" is
amended by deleting from the second sentence thereof "is" and
substituting therefore "and the Borrowing Availability Reserve
shall be".
(D) The definition of "Fixed Charges" is amended by
adding at the end of the second sentence thereof the phrase
"and payments made by SMP to Wells 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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(E) The definition of "Indenture Maturity Reserve" is
amended in its entirety as follows:
"Indenture Maturity Reserve" means a reserve which (i)
during the period January 15, 2008 through April 14,
2008, equals $15,000,000, (ii) during the period April
15, 2008 through July 14, 2008, equals $30,000,000,
(iii) during the period July 15, 2008 through October
14, 2008, equals $45,000,000, (iv) during the period
October 15, 2008 through January 14, 2009, equals
$60,000,000, (v) during the period January 15, 2009
through February 14, 2009, equals $65,000,000, (vi)
during the period February 15, 2009 through March 14,
2009, equals $70,000,000, (vii) during the period March
15, 2009 through April 14, 2009, equals $75,000,000,
(viii) during the period April 15, 2009 through May 14,
2009, equals $80,000,000, (ix) during the period May 15,
2009 through June 14, 2009, equals $85,000,000, and (x)
on and after June 15, 2009, equals $90,000,000, in each
case less the aggregate face amount of any notes issued
under the Indenture which have been repurchased or
redeemed in accordance with Section 6.14(e)(iii) since
January 15, 2008; provided, however, in no event shall
the amount of the Indenture Maturity Reserve be less
than $0.
(F) The definition of "Index Rate" is amended and
restated as follows:
"Index Rate" means, for any day, a floating rate equal
to the higher of (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 highest per annum rate of interest published
by the Federal Reserve Board in Federal Reserve
statistical release H.15 (519) entitled "Selected
Interest Rates" as the Bank prime loan rate or its
equivalent) and (ii) the Federal Funds Rate plus 50
basis points per annum; provided that in no event will
the Index Rate plus the Applicable Revolver Index Margin
be less than the LIBOR Rate for a one month LIBOR Period
in effect on each day (based on the published rate as of
2 Business Days prior to each day) plus the Applicable
Revolver LIBOR 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.
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(G) 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. If no such offered rate exists, such
rate will be the rate of interest per annum, as
determined by Agent (rounded upwards, if necessary, to
the nearest 1/100 of 1%) at which deposits of United
States Dollars in immediately available funds are
offered at 11:00 A.M. (London, England time) on the
second full LIBOR Business Day next preceding the first
day of such LIBOR Period by major financial institutions
reasonably satisfactory to Agent in the London interbank
market for the applicable LIBOR Period and for an amount
equal or comparable to the principal amount of the Loans
to be borrowed, converted or continued as LIBOR Loans on
such date of determination.
(H) The definition of "MCC Borrowing Base" is amended as
follows:
(1) By amending and restating clause (a) as follows: "up
to an amount equal to the product of the Receivables
Advance Rate multiplied by the book value of MCC's
Eligible Accounts; and";
(2) Clause (b)(ii) is amended and restated as follows:
"(ii) 85% times the sum of (x) the product of the
Finished Goods NOLV Rate times MCC's Eligible Inventory
consisting of finished goods, (y) the product of the Raw
Materials NOLV Rate times MCC's Eligible Inventory
consisting of raw materials, and (z) the product of the
Cores NOLV Rate times MCC's Eligible Inventory
consisting of cores, with the value of the components of
Eligible Inventory valued at the lower of cost
(determined on a first-in, first-out basis) or market;
and".
(I) The definition of "Permitted Encumbrances is amended
as follows:
9
(1) By deleting "and" from the end of clause (k) and
substituting therefore ";"; and
(2) By adding at the end of clause (l) thereof the
following phrase: "; and (m) junior Liens granted
pursuant to the terms of the Convertible Debt
Refinancing so long as the terms and conditions of such
Convertible Debt Refinancing, the related intercreditor
agreement, and all other related documentation are
satisfactory to Agent and Requisite Lenders in their
sole discretion".
(J) The definition of "Reserves" is amended by adding to
clause (f) thereof immediately following "including, without
limitation," the phrase "the Borrowing Availability Reserve
and".
(K) The definition of "SI Borrowing Base" is amended as
follows:
(1) By amending and restating clause (a) as follows: "up
to an amount equal to the product of the Receivables
Advance Rate multiplied by the book value of SI's
Eligible Accounts; and"
(2) Clause (b)(ii) is amended and restated as follows:
"(ii) 85% times the sum of (x) the product of the
Finished Goods NOLV Rate times SI's Eligible Inventory
consisting of finished goods, (y) the product of the Raw
Materials NOLV Rate times SI's Eligible Inventory
consisting of raw materials, and (z) the product of the
Cores NOLV Rate times SI's Eligible Inventory consisting
of cores, with the value of the components of Eligible
Inventory valued at the lower of cost (determined on a
first-in, first-out basis) or market; and".
(L) The definition of "SMP Borrowing Base" is amended as
follows:
(1) By amending and restating clause (a) as follows: "up
to an amount equal to the product of the Receivables
Advance Rate multiplied by the book value of SMP 's
Eligible Accounts; and"
(2) Clause (b)(ii) is amended and restated as follows:
"(ii) 85% times the sum of (x) the product of the
Finished Goods NOLV Rate times SMP's Eligible Inventory
consisting of finished goods, (y) the product of the Raw
Materials NOLV Rate times SMP's Eligible Inventory
consisting of raw materials, and (z) the product of the
Cores NOLV Rate times SMP's Eligible Inventory
consisting of cores, with the value of the components of
Eligible Inventory valued at the lower of cost
(determined on a first-in, first-out basis) or market;
and".
10
(M) The definition of "SMP Canada Borrowing Base" is
amended as follows:
(1) By amending and restating clause (a) as follows: "up
to an amount equal to the product of the Receivables
Advance Rate multiplied by the book value of SMP
Canada's Eligible Accounts; and"
(2) Clause (b)(ii) is amended and restated as follows:
"(ii) 85% times the sum of (x) the product of the
Finished Goods NOLV Rate times SMP Canada's Eligible
Inventory consisting of finished goods, (y) the product
of the Raw Materials NOLV Rate times SMP Canada's
Eligible Inventory consisting of raw materials, and (z)
the product of the Cores NOLV Rate times SMP Canada's
Eligible Inventory consisting of cores, with the value
of the components of Eligible Inventory valued at the
lower of cost (determined on a first-in, first-out
basis) or market and Agent agrees that Hilco Real
Estate, LLC shall be deemed an acceptable appraiser with
respect to SMP Canada's Inventory; and".
(l) Annex C is amended by deleting "upon written notice from Agent"
from clause (c)(iii) thereof.
(m) Annex F is amended by deleting from paragraph (b) "$16,000,000"
and substituting therefore "$30,000,000".
(n) Annex G is amended as follows:
(i) By deleting from the first sentence of Item 1 the phrase
"Any time Borrowers' Borrowing Availability is less than
$30,000,000, 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" and substituting
therefore the following phrase:
"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 for any two (2) days
within any continuous thirty (30) day period 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,"; and
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(ii) By deleting from Item 1(a) the phrase "for the 12-month
period then ended" and adding at the end thereof the
following:
"The Fixed Charge Coverage Ratio shall be measured for
the 12-month period then ended; provided, however, that
notwithstanding any provisions herein to the contrary,
(v) the Fixed Charge Coverage Ratio for the Fiscal
Quarter ending March 31, 2009 shall be determined for
the one Fiscal Quarter period ending on such date, (w)
the Fixed Charge Coverage Ratio for the Fiscal Quarter
ending June 30, 2009 shall be determined for the two
Fiscal Quarter period ending on such date, (x) the Fixed
Charge Coverage Ratio for the Fiscal Quarter ending
September 30, 2009 shall be determined for the three
Fiscal Quarter period ending on such date, and (y) the
Fixed Charge Coverage Ratio for the Fiscal Quarter
ending December 31, 2009 shall be determined for the
four Fiscal Quarter period ending on such date, and (z)
the Fixed Charge Coverage Ratio for every Fiscal Quarter
thereafter shall be determined for the four Fiscal
Quarter period ending on the last day of the Fiscal
Quarter for which such determination is being made."
3. Conditions of Effectiveness. This Amendment No. 4 shall become
effective upon satisfaction of the following conditions precedent: Agent shall
have received (i) four (4) copies of this Amendment No. 4 executed by Borrowers
and Lenders, (ii) payment of an amendment consent fee to each Lender equal to
0.50% of the amount of each Lender's Commitment under the Loan Agreement, (iii)
payment of all fees and expenses due and payable to Agent's own account in
connection with this Amendment No. 4 and the Agreement and (iv) 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.
4. Representations and Warranties. Each Borrower hereby represents and
warrants as follows:
(a) This Amendment No. 4 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.
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(b) Upon the effectiveness of this Amendment No. 4, 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. 4.
(c) No Event of Default or Default has occurred and is continuing or
would exist after giving effect to this Amendment No. 4.
(d) No Borrower has any defense, counterclaim or offset with respect
to the Loan Agreement.
5. 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.
4 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.
6. Governing Law. This Amendment No. 4 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.
7. Headings. Section headings in this Amendment No. 4 are included herein
for convenience of reference only and shall not constitute a part of this
Amendment No. 4 for any other purpose.
8. Counterparts; Facsimile. This Amendment No. 4 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 shall be
deemed to be an original signature hereto.
13
IN WITNESS WHEREOF, this Amendment No. 4 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:
SMP MOTOR PRODUCTS LTD.
By:
-----------------------------------
Name:
Title:
[Additional Signature Page to Follow]
GENERAL ELECTRIC CAPITAL CORPORATION,
as Agent and Lender
By:
-----------------------------------
Name:
Title:
BANK OF AMERICA, N.A.,
as Co-Syndication Agent and Lender
By:
-----------------------------------
Name:
Title:
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Co-Syndication Agent and Lender
By:
-----------------------------------
Name:
Title:
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:
WELLS FARGO FOOTHILL, LLC, as Lender
By:
-----------------------------------
Name:
Title:
GE BUSINESS FINANCIAL SERVICES, INC.,
as Lender
By:
-----------------------------------
Name:
Title: