CONSENT AND AMENDMENT NO. 5
TO SECOND AMENDED AND
RESTATED CREDIT AGREEMENT
THIS CONSENT AND AMENDMENT NO. 5 (this "Amendment No. 5") is entered into
as of May 1, 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 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 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. 5" means that certain Consent and
Amendment No. 5 to Second Amended and Restated Credit
Agreement dated as of May 1, 2009 by and among SMP, SI, MCC,
SMP Canada, Agent, and the Lenders party thereto.
(B) "Amendment No. 5 Effective Date" means the date on
which the conditions precedent set forth in Section 4 of
Amendment No. 5 are satisfied.
(C) "Exchange Offer" means SMP's Offer to Exchange 15%
Convertible Subordinated Debentures due 2011 for up to
$20,000,000 in Aggregate Principal Amount of 6-3/4%
Subordinated Debentures due 2009.
(D) "New Indenture" means that certain Indenture to be
dated as of May 6, 2009, between SMP and HSBC Bank USA, N.A.,
as trustee, and any documents, agreements or instruments
executed in connection therewith, each as amended, restated,
supplemented or otherwise modified from time to time.
(E) "New Indenture Maturity Reserve" means a reserve
which (i) during the period October 15, 2010 through November
14, 2010 equals one-sixth of the aggregate amount of the
debentures issued under the New Indenture, (ii) during the
period November 15, 2010 through December 14, 2010 equals
one-third of the aggregate amount of the debentures issued
under the New Indenture, (iii) during the period December 15,
2010 through January 14, 2011 equals one-half of the aggregate
amount of the debentures issued under the New Indenture, (iv)
during the period January 15, 2011 through February 14, 2011
equals two-thirds of the aggregate amount of the debentures
issued under the New Indenture, (v) during the period February
15, 2011 through March 14, 2011 equals five-sixths of the
aggregate amount of the debentures issued under the New
Indenture, and (vi) on and after March 15, 2011 equals one
hundred percent (100%) of the aggregate amount of the
debentures issued under the New Indenture.
(ii) Each of the following defined terms is amended as
follows:
(A) The definition of "Borrowing Availability" is
amended by adding ", the New Indenture Maturity Reserve" in
clause (y) following the words "the Canadian Reserve".
(B) 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 any exchange of the New Subordinated Debt for any
existing Subordinated Debt.
(C) The definition of "Excess Formula Availability" is
amended by adding ", the New Indenture Maturity Reserve"
following the words "Indenture Maturity Reserve".
(D) 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 sum of (1) 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, plus (2) the
aggregate face amount of any notes issued under the
Indenture which have been exchanged pursuant to the
Exchange Offer; provided, however, in no event shall the
amount of the Indenture Maturity Reserve be less than
$0.
(E) The definition of "Reserves" is amended by adding to
clause (d) thereof immediately following "the Indenture
Maturity Reserve" the phrase "and the New Indenture Maturity
Reserve".
(F) The definition of "Subordinated Debt Documents' is
amended in its entirety as follows:
"Subordinated Debt Documents" means, jointly and
severally, the Indenture and the New Indenture.
3. Consent. Notwithstanding anything to the contrary in the Loan
Agreement, the Requisite Lenders consent to SMP promulgating and effectuating
the Exchange Offer.
4. Conditions of Effectiveness. This Amendment No. 5 shall become
effective upon satisfaction of the following conditions precedent: Agent shall
have received (i) four (4) copies of this Amendment No. 5 executed by Borrowers
and Lenders, (ii) payment of an amendment consent fee for each Lender which
executes this Amendment No. 5 in an amount equal to the sum of (x) 0.25% of such
Lender's Commitment, plus (y) 0.25% of such Lender's affiliate's commitment
under the Canadian Loan Agreement, and (iii) 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.
5. Representations and Warranties. Each Borrower hereby represents and
warrants as follows:
(a) This Amendment No. 5 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. 5, 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. 5.
(c) No Event of Default or Default has occurred and is continuing or
would exist after giving effect to this Amendment No. 5.
(d) No Borrower has any defense, counterclaim or offset with respect
to the Loan Agreement.
6. 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.
5 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.
7. Governing Law. This Amendment No. 5 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.
8. Headings. Section headings in this Amendment No. 5 are included herein
for convenience of reference only and shall not constitute a part of this
Amendment No. 5 for any other purpose.
9. Counterparts; Facsimile. This Amendment No. 5 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.
IN WITNESS WHEREOF, this Amendment No. 5 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: