SIXTH AMENDMENT AND WAIVER
TO AMENDED AND RESTATED CREDIT AGREEMENT
THIS SIXTH AMENDMENT AND WAIVER TO AMENDED AND RESTATED CREDIT
AGREEMENT (“Sixth Amendment”), dated as of
June 8, 2009, is made and entered into by and between
MOTORCAR PARTS OF AMERICA, INC. , a New York corporation
(“Borrower”), and UNION BANK, N.A. , a national
banking association formerly known as Union Bank of California,
N.A. (“Bank”).
A. Borrower and Bank are parties to that
certain Amended and Restated Credit Agreement dated as of
October 24, 2007, as amended by (i) that certain First
Amendment dated as of January 14, 2008, (ii) that certain
Second Amendment dated as of May 13, 2008, (iii) that
certain Third Amendment dated as of August 19, 2008,
(iv) that certain Fourth Amendment dated as of
January 30, 2009 and (v) that certain Fifth Amendment
dated as of April 6, 2009 (as so amended, the
“Agreement”), pursuant to which Bank agreed to make
various credit facilities available to Borrower in the respective
amounts provided for therein.
B. Pursuant to Section 6.5(a) of the
Agreement, Borrower agreed, among other things, to achieve, on a
consolidated basis with its Subsidiaries, EBITDA of not less than
Four Million Five Hundred Thousand Dollars ($4,500,000) for each
fiscal quarter ending after December 31, 2008. Borrower failed
to comply with Section 6.5(a) of the Agreement for the fiscal
quarter ended March 31, 2009, which failure constitutes an
Event of Default under Section 8.1(c) of the
Agreement.
C. Pursuant to Section 6.5(b) of the
Agreement, Borrower agreed, among other things, to achieve, on a
consolidated basis with its Subsidiaries, total EBITDA of not less
than Nineteen Million Five Hundred Thousand Dollars ($19,500,000)
as of the last day of each fiscal quarter ending after
December 31, 2008, for the four (4) consecutive fiscal
quarters ending on such date. Borrower failed to comply with
Section 6.5(b) of the Agreement as of the close of the fiscal
quarter ended March 31, 2009, which failure constitutes an
Event of Default under Section 8.1(c) of the
Agreement.
D. Borrower has requested that Bank agree
to waive the Events of Default described in Recitals B and C
hereinabove. Bank is willing to so waive such Events of Default,
subject, however, to the terms and conditions of this Sixth
Amendment.
E. In
addition to the foregoing waivers, Borrower has requested that Bank
agree to amend the Agreement in certain respects. Bank is willing
to so amend the Agreement, subject, however, to the terms and
conditions of this Sixth Amendment.
In
consideration of the above recitals and of the mutual covenants and
conditions contained herein, Borrower and Bank agree as
follows:
1.
Defined Terms . Initially capitalized terms used
herein which are not otherwise defined herein shall have the
meanings assigned thereto in the Agreement.
(a) Subject to the
terms and conditions set forth in this Sixth Amendment, Bank hereby
waives the Events of Default that occurred under
Section 8.1(c) of the Agreement as a result of
Borrower’s failure to
comply with
Section 6.5(a) and Section 6.5(b) of the Agreement, all
as more specifically described in Recitals B and C
hereinabove.
(b) The
waivers provided for in subsection (a) of this Section 2
are limited precisely as written and shall not be deemed to excuse
Borrower’s further performance of Section 6.5(a) or
Section 6.5(b) of the Agreement, as amended by this Sixth
Amendment, or of any other condition, covenant or term contained in
the Agreement, as amended by this Sixth Amendment, or any other
Loan Document. Any failure or delay on the part of Bank in the
exercise of any right, power or privilege under the Agreement, as
amended by this Sixth Amendment, or any other Loan Document shall
not operate as a waiver thereof.
3.
Amendments To The Agreement .
(a) Section 1
of the Agreement is hereby amended by adding new definitions of
“ Reserve ” and “ Reserve
Amount ” thereto in the appropriate alphabetical
order, which shall read in full as follows:
“‘
Reserve ’ shall mean a borrowing reserve
established in connection with the Revolving Credit Commitment,
which Reserve shall remain in effect thereunder if and only if
Borrower is a party to any factoring program or similar arrangement
with a factor reasonably satisfactory to Bank, pursuant to which
the accounts receivable of Borrower owing by its largest account
debtor are being factored by such factor.”
“‘
Reserve Amount ’ shall mean the amount of the
Reserve, which shall be Seven Million Five Hundred Thousand Dollars
($7,500,000) from and after the effective date of the Sixth
Amendment.”
(b) Section 1
of the Agreement is hereby further amended by adding a new
definition of “ Sixth Amendment ” thereto
in the appropriate alphabetical order, which shall read in full as
follows:
“‘
Sixth Amendment ’ shall mean that certain
Sixth
|
