AMENDMENT NO. 3 TO CREDIT AGREEMENT
THIS AMENDMENT NO. 3 (this "Amendment No. 3") is entered into as of
December 18, 2008, by and among SMP MOTOR PRODUCTS LTD., a corporation
amalgamated under the laws of Canada ("Borrower"), 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 "Credit Party", and collectively, "Credit
Parties"), lenders who are party from time to time to the Credit Agreement
("Lenders"), GE CANADA FINANCE HOLDING COMPANY, a Nova Scotia unlimited
liability company, for itself, as Lender, and in its capacity as Agent for
Lenders ("Agent"), and GE CAPITAL MARKETS, INC., as Lead Arranger and
Bookrunner.
BACKGROUND
Borrower, Agent and Lenders are parties to a Credit Agreement dated as of
December 29, 2005 (as amended, restated, supplemented or otherwise modified from
time to time, the "Loan Agreement") pursuant to which Agent and Lenders provide
Borrower with certain financial accommodations.
Borrower has 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 Borrower 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; provided, however, that
all capitalized terms not otherwise defined herein or in the Loan Agreement
shall have the meanings given to them in the US Credit 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 1.3(b)(i) is amended as follows:
(i) By deleting therefrom "Section 6.8(a)" and substituting
therefore "Sections 6.8(a) and (h)"; and
(ii) By adding at the end of the first parenthetical thereof
the proviso "; provided, however, that in the case only of asset
dispositions permitted by Section 6.8(h) of the US Credit Agreement,
cash proceeds of such asset dispositions shall be excluded from the
mandatory prepayment requirements of this Section 1.3(b) only to the
extent that (x) such cash proceeds are applied in accordance with
the requirements of Section 1.3(b)(ii) of the US Credit Agreement
and (y) the amount of such cash proceeds is added to the amount of
the Canadian Reserve under the US Credit Agreement to the extent
necessary based upon any reduction to the SMP Canada Borrowing Base
due to such asset dispositions under Section 6.8(h) of the US Credit
Agreement".
(b) Section 1.5(a) is amended and restated as follows:
"On and after the Amendment No. 3 Effective Date, Borrower
shall pay interest to Agent, for the ratable benefit of
Lenders in accordance with the Loan 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 and absent the existence of a Default or
Event of Default, the applicable LIBOR Rate plus the
Applicable Revolver LIBOR Margin per annum.
(c) Annex A is amended as follows:
(i) The following defined terms are added in their appropriate
alphabetical order:
(A) "Amendment No. 3" means that certain Amendment No. 3
to Credit Agreement dated as of December 18, 2008 by and among
SMP Canada, SI, MCC, SMP, Agent, and the Lenders party
thereto."
(B) "Amendment No. 3 Effective Date" means the date on
which the conditions precedent set forth in Section 3 of
Amendment No. 3 are satisfied.
(ii) Each of the following defined terms is amended as
follows:
(A) 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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(B) 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."
(d) Clause (c) of Annex C is amended as follows:
(i) By deleting from the second sentence thereof (x) the
phrase ", such bank agrees, from and after the receipt of a notice
(an "Activation Event") from Agent (which Activation Notice may be
given by Agent at any time at which (1) an Event of Default has
occurred and is continuing or (2) an event or circumstance having a
Material Adverse Effect has occurred, (any of the foregoing being
referred to herein as an "Activation Notice") and (y) the phrase
"from and after receipt of an Activation Notice from Agent upon the
occurrence of an Activation Event" in clause (iii) (B).
(ii) By deleting from the third sentence thereof the phrase
"From and after the date Agent has delivered an Activation Notice to
any bank with respect to any Blocked Account(s)".
3. Conditions of Effectiveness. This Amendment No. 3 shall become
effective upon satisfaction of the following conditions precedent: Agent shall
have received (i) four (4) copies of this Amendment No. 3 executed by Borrower
and Lenders, (ii) four (4) copies of Amendment No. 4 to Second Amended and
Restated Credit Agreement dated as of the date hereof by and among the Credit
Parties, lenders party thereto, General Electric Capital Corporation, as lender
and as agent for lenders, Bank of America, N.A., as lender and as a
co-syndication agent, Wachovia Bank, N.A., as lender and as a co-syndication
agent, and JP Morgan Chase Bank, N.A., as lender and as documentation agent,
which amendment shall have been duly executed and delivered by the parties
thereto, (iii) payment to each Lender of an amendment consent fee equal to 0.50%
of the amount of each Lender's Term Loan Commitment under the Loan Agreement and
payment of all fees and expenses due and payable to Agent's own account in
connection with this Amendment No. 3 and the Loan 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.
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4. Representations and Warranties. Borrower hereby represents and warrants
as follows:
(a) This Amendment No. 3 and the Loan Agreement, as amended hereby,
constitute legal, valid and binding obligations of Borrower and are
enforceable against Borrower in accordance with their respective terms.
(b) Upon the effectiveness of this Amendment No. 3, 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. 3.
(c) No Event of Default or Default has occurred and is continuing or
would exist after giving effect to this Amendment No. 3.
(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.
3 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. 3 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
Province of Ontario and the laws of Canada applicable therein.
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7. Headings. Section headings in this Amendment No. 3 are included herein
for convenience of reference only and shall not constitute a part of this
Amendment No. 3 for any other purpose.
8. Counterparts; Facsimile. This Amendment No. 3 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.
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IN WITNESS WHEREOF, this Amendment No. 3 has been duly executed as of the
day and year first written above.
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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Name:
Title:
[Additional Signature Page to Follow]
BANK OF AMERICA, N.A., by its
Canada Branch
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:
[Additional Signature Page to Follow]
WELLS FARGO FINANCIAL CORPORATION
CANADA
By:
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Name:
Title:
WACHOVIA CAPITAL FINANCE CANADA
By:
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Name:
Title:
The following Persons are signatories to this Amendment No. 3 in their capacity
as Credit Parties and not as Borrower.
MARDEVCO CREDIT CORP.
By:
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Name:
Title:
STANRIC, INC.
By:
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Name:
Title:
STANDARD MOTOR PRODUCTS, INC.
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: