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EXHIBIT 4(h)
FIFTH AMENDMENT TO NOTE AGREEMENTS
FIFTH AMENDMENT TO NOTE AGREEMENTS, dated as of September 22, 1995,
by and between THE STANDARD PRODUCTS COMPANY, an Ohio corporation (the
"Company"), and NATIONWIDE LIFE INSURANCE COMPANY and EMPLOYERS LIFE INSURANCE
COMPANY OF WAUSAU (collectively, the "Purchasers").
WITNESSETH THAT:
WHEREAS, the Company and each of the Purchasers entered into a
separate Note Agreement dated as of June 30, 1989, as amended by the
First Amendment to Note Agreement dated as of February 22, 1991, the Second
Amendment to Note Agreement dated as of June 30, 1991, the Third Amendment to
Note Agreement dated as of January 19, 1993, and the Fourth Amendment to Note
Agreement dated as of January 31, 1995 (collectively, the "Note Agreements"),
and under and subject to the terms and provisions of the Note Agreements, the
Company has issued its Senior Notes payable to the Purchasers; and
WHEREAS, the Company, ▇▇▇▇▇▇ Rubber Company ("▇▇▇▇▇▇"), ▇▇▇▇
Industries, Inc. ("▇▇▇▇"), 5 Rubber Corporation ("5 Rubber"), and The
Standard Products Funding Corporation, a Delaware corporation and a wholly
owned subsidiary of the Company (the "Receivables Subsidiary"), desire to enter
into a Purchase and Sale Agreement that will provide, among other matters: for
the sale by the Company, ▇▇▇▇▇▇, ▇▇▇▇ and 5 Rubber (each an "Originator"), and
the purchase by the Receivables Subsidiary, of all the receivables and related
assets ("Receivables") then and thereafter owned by the Originators at a
purchase price equal to the face amount thereof less certain discounts
(including program and other expenses); for a portion of the purchase price
owed by the Receivables Subsidiary for the Receivables purchased from the
Originators to be payable in the form of a promissory note; and for the
Originators to borrow money from time to time from the Receivables Subsidiary;
and
WHEREAS, the Company and the Receivables Subsidiary desire to enter
into a Receivables Purchase Agreement among the Receivables Subsidiary,
the Company, Clipper Receivables Corporation, State Street Boston Capital
Corporation and National City Bank that will provide, among other matters: for
the sale by the Receivables Subsidiary, and the purchase by Clipper Receivables
Corporation, of interests in the Receivables purchased from the Originators at
a purchase price equal to the face amount thereof less certain discounts
(including reserves); representations and warranties by the Company and the
Receivables Subsidiary; affirmative and negative covenants of the Company and
the Receivables Subsidiary, including certain reporting requirements and
financial covenants of the Receivables Subsidiary and of the Company and its
subsidiaries; the appointment of the Company as Master Servicer to collect the
Receivables; the grant of a security interest in the Receivables; liquidation
events; and
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indemnification obligations of the Company and the Receivables Subsidiary; and
WHEREAS, the parties desire to amend the Note Agreements;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein, the parties hereto agree as follows:
1. Effect of Amendments; Definitions.
Each of the Note Agreements shall be and hereby is amended as
provided in Section 2 hereof. Except as expressly amended in Section 2
hereof, the Note Agreements shall continue in full force and effect in
accordance with the provisions thereof on the date hereof. As used in each of
the Note Agreements, the terms "Note Agreement", "Agreement", "this Agreement",
"herein", "hereinafter", "hereto", "hereof", and words of similar import shall,
unless the context otherwise requires, mean that Note Agreement as amended and
modified by this Amendment. Capitalized terms used but not defined in this
Amendment (including the recitals hereto) shall have the meanings given to them
in the respective Note Agreements.
2. Amendments.
(a) Section 5.7(a)(3)(ii) of the Note Agreements is hereby deleted
and the following is substituted therefor:
"(ii) in the case of the issuance of any Debt of a Subsidiary
or any Funded Debt of the Company secured by liens permitted by
Section 5.8(i), the aggregate amount of (x) all Debt of Subsidiaries
plus (y) the aggregate amount of all Debt of the Company secured by
liens permitted by Section 5.8(i), shall not exceed 20% of
Consolidated Net Stockholder's Equity; provided, however, that at any
time that the Company or any Subsidiary has outstanding any
Receivables Obligations (as that term is defined in the definition of
Indebtedness), the foregoing aggregate amount shall not exceed 16% of
the Consolidated Net Stockholders Equity."
(b) Section 5.8(e) of the Note Agreements is hereby deleted and the
following is substituted therefor:
"(e) mortgages, liens or security interests (i) securing
Indebtedness of a Subsidiary to the Company or to another Subsidiary
or (ii) on or in any Receivables of a Subsidiary that secure or
purport to secure or otherwise relate to any Receivables Obligations
(as that term is
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defined in the definition of Indebtedness) of that Subsidiary,
but only to the extent those Receivables Obligations do not exceed
the Receivables Obligations Cap;"
(c) Section 5.8(i) of the Note Agreements is hereby amended by
deleting the phrase "(other than (A) Debt of a Subsidiary outstanding
as of July 2, 1989 and described on Annex B to Exhibit B hereto and (B) Silent
Channel Debt to the extent Silent Channel Debt does not exceed 12,500,000
pounds), shall not exceed an amount equal to 10% of Consolidated Tangible Net
Worth" and inserting in lieu thereof the following "shall not exceed an amount
equal to 20% of Consolidated Net Stockholder's Equity; provided, however, that
at any time that the Company or any Subsidiary has outstanding any Receivables
Obligations (as that term is defined in the definition of Indebtedness), the
foregoing aggregate amount shall not exceed 16% of the Consolidated Net
Stockholders Equity."
(d) Section 5.9(a)(3) of the Note Agreements is hereby deleted and
the following is substituted therefor:
"(3) any Subsidiary may sell, transfer or otherwise dispose of
all or any substantial part of its assets to the Company or any
Subsidiary, the Company may sell, transfer or otherwise dispose of
all or any part of its Receivables to any Subsidiary, and any
Subsidiary may sell, transfer or otherwise dispose of Receivables to
any Person, whether such sale is with or without recourse, if the
obligations of such Subsidiary to the purchaser thereof in respect of
such sale, transfer or disposition are Receivables Obligations (as
that term is defined in the definition of Indebtedness) of that
Subsidiary, but only to the extent those Receivables Obligations do
not exceed the Receivables Obligations Cap."
(e) Clauses (i) and (ii) of the last paragraph in Section 5.9 of the
Note Agreements is hereby deleted and the following is substituted therefor:
"(i) during the same fiscal year, exceeds (a) 15% of the
Consolidated Total Assets or (b) if during that fiscal year the Company
or any Subsidiary has outstanding any Receivables Obligations (as that term is
defined in the definition of Indebtedness), 10% of the Consolidated Total
Assets or (ii) since the date of this Agreement exceeds (a) 25% of Consolidated
Total Assets or (b) if the Company or any Subsidiary has outstanding any
Receivables Obligations (as that term is defined in the definition of
Indebtedness), 20% of the Consolidated Total Assets, determined, in each case,
as of the end of the immediately preceding fiscal year."
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(f) Section 8.1 of the Note Agreements is hereby amended as follows:
1. The definition of Indebtedness is amended by inserting the
following at the end of that definition:
"In addition, there shall be excluded from the definition of
Indebtedness any obligation of a Subsidiary arising from the sale by
that Subsidiary of Receivables to any other Person, whether on a recourse or
nonrecourse basis, that for purposes of generally accepted accounting
principles is not classified upon the balance sheet of that Subsidiary as a
liability of that Subsidiary (such obligations hereinafter referred to as
"Receivables Obligations")."
2. The following definitions are inserted in alphabetical
order:
"Receivables" means any right to payment from a Person, whether
constituting an account, chattel paper, instrument or general
intangible, arising from the sale of merchandise or provision of services by
the Company or any Subsidiary, and includes the right to payment of any
interest or finance charges and other obligations of such Person with respect
thereto, together with the following: (a) all rights to, but not any
obligations under, all related contracts or agreements pursuant to or under
which such Person is obligated to make payments with respect to the sale of
goods or provision of services; (b) all security interests, liens, guarantees,
and other agreements or arrangements of any nature whatsoever from time to time
supporting or securing any such right to payment; (c) all books and records
evidencing or otherwise relating to the foregoing; and (d) all collections and
other proceeds, including insurance policies, relating to any of the foregoing.
"Receivables Obligations Cap means, with respect to the portion of
the Receivables Obligations that would correspond to principal if those
Receivables Obligations were treated as indebtedness for purposes of generally
accepted accounting principles, an amount equal to Fifty Million Dollars
($50,000,000), which amount may be increased by Five Million Dollars
($5,000,000) during each fiscal year of the Company commencing July 1, 1996 and
July 1, 1997 so long as no Event of Default has occurred and is continuing at
the time of that increase."
3. Miscellaneous.
(a) This Amendment shall be construed in accordance with and
governed by the laws of the State of Ohio, without reference to
principles of conflicts of law.
(b) This Amendment may be executed in two or more counterparts, each
of which shall constitute an original, but all of which, when taken
together, shall constitute but one instrument.
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IN WITNESS WHEREOF, the parties have caused this Amendment to be
duly executed by their respective duly authorized officers as of the
day and year first above written.
THE STANDARD PRODUCTS COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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Title: Treasurer
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NATIONWIDE LIFE INSURANCE COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Vice President
Corporate Fixed-Income Securities
EMPLOYERS LIFE INSURANCE COMPANY OF
WAUSAU
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Attorney-in-fact
A SIMILAR AGREEMENT HAS BEEN EXECUTED WITH
THE AID ASSOCIATION FOR LUTHERANS
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