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TECUMSEH PRODUCTS COMPANY
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AMENDMENT AND WAIVER NO. 1
TO NOTE PURCHASE AGREEMENT
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DATED AS OF JUNE 30, 2005
$300,000,000 4.66% SENIOR GUARANTEED NOTES DUE MARCH 5, 2011
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TECUMSEH PRODUCTS COMPANY
$300,000,000
4.66% SENIOR GUARANTEED NOTES DUE MARCH 5, 2011
AMENDMENT AND WAIVER NO. 1 TO NOTE PURCHASE AGREEMENT
As of June 30, 2005
TO EACH OF THE CURRENT NOTEHOLDERS
NAMED IN ANNEX 1 HERETO:
Ladies and Gentlemen:
TECUMSEH PRODUCTS COMPANY, a Michigan corporation (together with any
successors and assigns, the "COMPANY"), hereby agrees with each of you as
follows:
1. PRIOR ISSUANCE OF NOTES, ETC.
The Company issued and sold three hundred million dollars ($300,000,000)
in aggregate principal amount of its 4.66% Senior Guaranteed Notes due March 5,
2011 (the "NOTES", such term to include any such notes issued in substitution
therefor pursuant to Section 13 of the Note Purchase Agreement) pursuant to the
Note Purchase Agreement dated as of March 5, 2003 between the Company and the
purchasers named in Schedule A thereto (the "EXISTING NOTE PURCHASE AGREEMENT"
and, as may be amended pursuant to this Agreement and as may be further amended,
restated or otherwise modified from time to time, the "NOTE PURCHASE
AGREEMENT"). The Company represents and warrants to each of you that the
register kept by the Company for the registration and transfer of the Notes
indicates that each of the Persons named in Annex 1 hereto (collectively, the
"CURRENT NOTEHOLDERS") is currently a holder of the aggregate principal amount
of the Notes indicated in such Annex.
2. REQUEST FOR CONSENT TO AMENDMENTS
The Company requests that each of the Current Noteholders agree to the
amendments (the "AMENDMENTS") to, and waiver of certain rights (the "WAIVER")
under, the Existing Note Purchase Agreement provided for by this Agreement.
3. WARRANTIES AND REPRESENTATIONS
To induce the Current Noteholders to enter into this Agreement and to
agree to the Amendments and the Waiver, the Company warrants and represents to
you as follows (it being agreed, however, that nothing in this Section 3 shall
affect any of the warranties and representations previously made by the Company
in or pursuant to the Existing Note Purchase Agreement, and that all of such
other warranties and representations, as well as the warranties and
representations in this Section 3, shall survive the effectiveness of the
Amendments and the Waiver).
3.1 NO MATERIAL ADVERSE CHANGE.
Since the date of the financial statements of the Company filed with the
Securities and Exchange Commission with the Company's Quarterly Report on Form
10-Q for the period ended March 31, 2005, and except as reflected in or
contemplated by the financial forecasts provided to the Current Noteholders on
June 16, 2005 (the "PROJECTIONS"), and except for the Default or Event of
Default waived in Section 4.2 of this Agreement, there has been no change in the
business operations, profits, financial condition, properties or business
prospects of the Company except changes that, in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.
3.2 FULL DISCLOSURE.
Neither the financial statements and other certificates previously
provided to the Current Noteholders pursuant to the provisions of the Existing
Note Purchase Agreement nor the statements made in this Agreement nor the
Projections furnished by or on behalf of the Company to the Current Noteholders
in connection with the proposal and negotiation of the Amendments, taken as a
whole, contain any untrue statement of a material fact or omit a material fact
necessary to make the statements contained therein and herein, taken as a whole,
not misleading. There is no fact relating to any event or circumstance that has
occurred or arisen since June 16, 2005 that the Company has not disclosed to the
Current Noteholders in writing that has had or, so far as the Company can now
reasonably foresee, could reasonably be expected to have, a Material Adverse
Effect.
3.3 INTENT.
Neither the Company nor any Subsidiary is entering into the transaction
contemplated by this Agreement with any intent to hinder, delay or defraud
either current creditors or future creditors of the Company.
3.4 NO DEFAULTS.
No event has occurred and no condition exists that, upon the execution and
delivery of this Agreement and the effectiveness of the Amendments and the
Waiver, would constitute a Default or an Event of Default.
3.5 TRANSACTION IS LEGAL AND AUTHORIZED; OBLIGATIONS ARE ENFORCEABLE.
(a) The execution and delivery of this Agreement by the Company and
compliance by the Company with all of its respective obligations
hereunder:
(i) is within the corporate powers of the Company;
(ii) is legal and does not conflict with, result in any breach
in any of the provisions of, constitute a default under, or result
in the creation of any Lien upon any Property of the Company or any
Subsidiary under the provisions of, any agreement, charter
instrument, bylaw or other instrument to which it is a party or by
which it or any of its Property may be bound; and
(iii) does not give rise to a right or option of any other
Person under any agreement or other instrument, which right or
option could reasonably be expected to have a Material Adverse
Effect.
(b) This Agreement has been duly authorized by all necessary action
on the part of the Company and has been executed and delivered by one or
more duly authorized officers of the Company, and each constitutes a
legal, valid and binding obligation of the Company, enforceable in
accordance with its terms, except that such enforceability may be:
(i) limited by applicable bankruptcy, reorganization,
arrangement, insolvency, moratorium or other similar laws affecting
the enforceability of creditors' rights generally; and
(ii) subject to the availability of equitable remedies.
3.6 CERTAIN LAWS.
The execution and delivery of this Agreement by the Company and the
consummation of the transaction contemplated hereby:
(a) is not subject to regulation under the Investment Company Act of
1940, as amended, the Public Utility Holding Company Act of 1935, as
amended, the Transportation Acts, as amended, or the Federal Power Act, as
amended, and
(b) does not violate any provision of any statute or other rule or
regulation of any Governmental Authority applicable to the Company or any
Subsidiary.
3.7 GOVERNMENTAL CONSENT.
Neither the Company or any Subsidiary thereof, nor the nature of any of
its or their respective businesses or Properties, is such so as to require a
consent, approval or authorization of, or filing, registration or qualification
with, any governmental authority on the part of the Company as a condition to
the execution and delivery of this Agreement.
3.8 FEES.
Neither the Company nor any Subsidiary thereof has paid (or promised to
pay) any amendment fee or any other direct or indirect compensation to any party
to the Credit Agreement or to any other creditor of the Company or any
Subsidiary in connection with the transactions contemplated hereby.
3.9 AMENDMENT TO CREDIT AGREEMENT.
The Company has delivered to each of the Current Noteholders a true and
correct copy of the Credit Agreement and any and all amendments, modifications
and waivers in respect thereof.
4. AMENDMENTS; WAIVER
4.1 AMENDMENTS TO EXISTING NOTE PURCHASE AGREEMENT.
Subject to Section 4.3, the Existing Note Purchase Agreement is hereby
amended in the manner specified in Exhibit A to this Agreement.
4.2 WAIVER.
Subject to Section 4.3 from the period through and including August 8,
2005, the Current Noteholders hereby waive compliance by the Company with the
provisions of Section 10.3 of the Existing Note Purchase Agreement as at the end
of the fiscal quarter ended June 30, 2005. Notwithstanding the foregoing in no
event will the Company incur, or permit any Subsidiary to incur, during the
Temporary Waiver Period any Indebtedness (other than Indebtedness under existing
working capital credit facilities in accordance with the terms thereof on June
30, 2005, including the maximum amounts to be borrowed thereunder), if after
giving effect thereto, the Company would not be in compliance with the
provisions of Section 10.3 of the Existing Note Purchase Agreement without
giving effect to the Waiver contemplated hereby.
4.3 EFFECTIVENESS OF AMENDMENTS AND WAIVER.
The Amendments contemplated by Section 4.1 and Exhibit A and the Waiver
contemplated by Section 4.2 shall, in accordance with Section 17.1 of the
Existing Note Purchase Agreement, become effective (the date of such
effectiveness is herein referred to as the "EFFECTIVE DATE"), if at all, at such
time as the Company and the Required Holders shall have indicated their written
consent to such Amendments and such Waiver by executing and delivering the
applicable counterparts of this Agreement. It is understood that any Current
Noteholder may withhold its consent for any reason or for no reason, and that,
without limitation of the foregoing, any Current Noteholder hereby makes the
granting of its consent contingent upon satisfaction of each of the following
conditions:
(a) the Company shall have (i) paid all unpaid fees and
disbursements of Xxxxxxx & Xxxxxx reflected in invoices presented on or
before the date hereof and (ii) established a retainer for legal fees with
Xxxxxxx XxXxxxxxx LLP, special counsel to the Current Noteholders, in the
aggregate amount of $100,000 and pursuant to documentation satisfactory to
such special counsel; and
(b) the Company shall have paid $200,000 to Xxxxxx, Del Genio, Xxxxx
& Co. LLC ("XXXXXX"), financial advisor to the Current Noteholders,
pursuant to a retainer arrangement satisfactory to the Company, the
Required Holders and Xxxxxx.
(c) the Company shall have delivered to each of the Current
Noteholders a true and correct copy of any amendment or waiver to the
Credit Agreement entered into on or prior to the date hereof.
Any such amendment or waiver entered into in connection with the transaction
contemplated hereby shall be in form and substance satisfactory to the Required
Holders provided execution and delivery of this Agreement by the Required
Holders shall be deemed to be an affirmation that such amendment or waiver is so
satisfactory.
4.4 NO OTHER AMENDMENTS; CONFIRMATION.
Except as expressly provided herein, (a) no terms or provisions of any
agreement are modified or changed by this Agreement, (b) the terms of this
Agreement shall not operate as a waiver by any Current Noteholder of, or
otherwise prejudice any Current Noteholder's rights, remedies or powers under,
the Existing Note Purchase Agreement or any other Financing Document or under
any applicable law, and (c)
the terms and provisions of the Existing Note Purchase Agreement and each other
Financing Document shall continue in full force and effect.
5. DEFINED TERMS
Capitalized terms used herein and not otherwise defined herein shall have
the meanings ascribed to them in the Existing Note Purchase Agreement.
6. EXPENSES
Whether or not any of the Amendments or the Waiver becomes effective, the
Company will promptly (and in any event within thirty (30) days of receiving any
statement or invoice therefor) pay all fees, expenses and costs relating to this
Agreement, including, but not limited to, (a) the reasonable cost of reproducing
this Agreement and the other documents delivered in connection herewith and (b)
the reasonable fees and disbursements of the Current Noteholders' special
counsel, Xxxxxxx XxXxxxxxx LLP, incurred in connection with the preparation,
negotiation and delivery of this Agreement. The fees of Xxxxxx will be paid by
the Company pursuant to the retainer arrangement referenced to in Section
4.3(b). This Section 6 shall not be construed to limit the Company's obligations
under Section 15.1 of the Note Purchase Agreement.
7. MISCELLANEOUS
7.1 PART OF NOTE PURCHASE AGREEMENT, FUTURE REFERENCES, ETC.
(a) This Agreement shall be construed in connection with and as a part of
the Existing Note Purchase Agreement and, except as expressly amended by this
Agreement, all terms, conditions and covenants contained in the Existing Note
Purchase Agreement and the other Financing Documents are hereby ratified and
shall be and remain in full force and effect. Any and all notices, requests,
certificates and other instruments executed and delivered after the execution
and delivery of this Agreement may refer to the Note Purchase Agreement without
making specific reference to this Agreement, but nevertheless all such
references shall include this Agreement unless the context otherwise requires.
7.2 GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF MICHIGAN, UNITED STATES OF AMERICA,
EXCLUDING CHOICE-OF-LAW PRINCIPLES OF THE LAW OF SUCH STATE THAT WOULD REQUIRE
THE APPLICATION OF THE LAWS OF A JURISDICTION OTHER THAN SUCH STATE.
7.3 DUPLICATE ORIGINALS, EXECUTION IN COUNTERPART.
Two (2) or more duplicate originals hereof may be signed by the parties,
each of which shall be an original but all of which together shall constitute
one and the same instrument. This Agreement may be executed in one or more
counterparts and shall become effective at the time provided in Section 4.3
hereof, and each set of counterparts that, collectively, show execution by the
Company and each consenting Current Noteholder shall constitute one duplicate
original.
7.4 BINDING EFFECT.
This Agreement shall be binding upon and shall inure to the benefit of the
Company and the Current Noteholders and their respective successors and assigns.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK; NEXT PAGE IS SIGNATURE PAGE.]
If this Agreement is satisfactory to you, please so indicate by signing
the applicable acceptance on a counterpart hereof and returning such counterpart
to the Company, whereupon this Agreement shall become binding among the Company
and you in accordance with its terms.
Very truly yours,
TECUMSEH PRODUCTS COMPANY
By: /s/ XXXXX X. XXXXXXXXX
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Name: Xxxxx X. Xxxxxxxxx
Title: Vice President, Treasurer and
Chief Financial Officer
Accepted:
NEW YORK LIFE INSURANCE COMPANY
By: /s/ R. XXXXXX XXXXXXXX
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Name: R. Xxxxxx Xxxxxxxx
Title: Vice President
NEW YORK LIFE INSURANCE AND ANNUITY CORPORATION
BY: NEW YORK LIFE INVESTMENT MANAGEMENT LLC, ITS INVESTMENT MANAGER
By: /s/ R. XXXXXX XXXXXXXX
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Name: R. Xxxxxx Xxxxxxxx
Title: Vice President
NEW YORK LIFE INSURANCE AND ANNUITY CORPORATION
INSTITUTIONALLY OWNED LIFE INSURANCE SEPARATE ACCOUNT
BY: NEW YORK LIFE INVESTMENT MANAGEMENT LLC, ITS INVESTMENT MANAGER
By: /s/ R. XXXXXX XXXXXXXX
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Name: R. Xxxxxx Xxxxxxxx
Title: Vice President
STATE FARM LIFE INSURANCE COMPANY
By: /s/ XXXX X. XXXXXXXX
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Name: Xxxx X. Xxxxxxxx
Title: Vice President - Common Stocks
By: /s/ XXXXXXX X. XXXXXXX
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Name: Xxxxxxx X. Xxxxxxx
Title: Investment Officer
STATE FARM LIFE AND ACCIDENT ASSURANCE COMPANY
By: /s/ XXXX X. XXXXXXXX
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Name: Xxxx X. Xxxxxxxx
Title: Vice President - Common Stocks
By: /s/ XXXXXXX X. XXXXXXX
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Name: Xxxxxxx X. Xxxxxxx
Title: Investment Officer
GENERAL ELECTRIC CAPITAL ASSURANCE COMPANY
By: /s/ XXXXXX X. XXXXXX
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Name: Xxxxxx X. Xxxxxx
Title: Investment Officer
GE CAPITAL LIFE ASSURANCE COMPANY OF NEW YORK
By: /s/ XXXXXX X. XXXXXX
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Name: Xxxxxx X. Xxxxxx
Title: Investment Officer
EMPLOYERS REINSURANCE CORPORATION
By: GE ASSET MANAGEMENT INCORPORATED, its Investment Manager
By: GENWORTH FINANCIAL ASSET MANAGEMENT, LLC, its Investment Advisor
By: /s/ XXXXXX X. XXXXXX
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Name: Xxxxxx X. Xxxxxx
Title: Assistant Vice President
FIRST COLONY LIFE INSURANCE COMPANY
By: /s/ XXXXXX X. XXXXXX
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Name: Xxxxxx X. Xxxxxx
Title: Investment Officer
GE LIFE AND ANNUITY ASSURANCE COMPANY
By: /s/ XXXXXX X. XXXXXX
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Name: Xxxxxx X. Xxxxxx
Title: Investment Officer
GREAT-WEST LIFE & ANNUITY INSURANCE COMPANY
By: /s/ XXX XXXXXXXX
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Name: Xxx Xxxxxxxx
Title: Ass't. V.P., Investments
By: /s/ X.X. XXXXXX
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Name: X.X. Xxxxxx
Title: Ass't. V.P., Investments
LONDON LIFE INSURANCE COMPANY
By: /s/ B.R. XXXXXXX
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Name: B.R. Xxxxxxx
Authorized Signatory
By: /s/ D.B.E. XXXXX
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Name: D.B.E. Xxxxx
Authorized Signatory
THE GREAT-WEST LIFE ASSURANCE COMPANY
By: /s/ B.R. XXXXXXX
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Name: B.R. Xxxxxxx
Authorized Signatory
By: /s/ D.B.E. XXXXX
-------------------------
Name: D.B.E. Xxxxx
Authorized Signatory
LONDON LIFE AND CASUALTY (BARBADOS) CORPORATION
BY: ORCHARD CAPITAL MANAGEMENT, LLC, AS INVESTMENT ADVISER
By: /s/ XXX XXXXXXXX
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Name: Xxx Xxxxxxxx
Title: Ass't. V.P., Investments
By: /s/ X.X. XXXXXX
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Name: X.X. Xxxxxx
Title: Ass't. V.P., Investments
PACIFIC LIFE INSURANCE COMPANY
(NOMINEE: MAC & CO.)
By: /s/ XXXXX X. PATCH
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Name: Xxxxx X. Patch
Title: Assistant Vice President
By: /s/ XXXXX X. XXXXX
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Name: Xxxxx X. Xxxxx
Title: Assistant Secretary
JEFFERSON-PILOT LIFE INSURANCE COMPANY
By: /s/ XXXXX X. XXXXXXXX, XX.
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Name: Xxxxx X. XxXxxxxx, Xx.
Title: Vice President
JEFFERSON PILOT FINANCIAL INSURANCE COMPANY
By: /s/ XXXXX X. XXXXXXXX, XX.
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Name: Xxxxx X. XxXxxxxx, Xx.
Title: Vice President
JEFFERSON PILOT LIFEAMERICA INSURANCE COMPANY
By: /s/ XXXXX X. XXXXXXXX, XX.
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Name: Xxxxx X. XxXxxxxx, Xx.
Title: Vice President
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
BY: BABSON CAPITAL MANAGEMENT LLC, AS INVESTMENT ADVISER
By:
----------------------------
Name:
Title:
C.M. LIFE INSURANCE COMPANY
BY: BABSON CAPITAL MANAGEMENT LLC, AS INVESTMENT SUB-ADVISER
By:
----------------------------
Name:
Title:
MASSMUTUAL ASIA LIMITED
BY: BABSON CAPITAL MANAGEMENT LLC, AS INVESTMENT ADVISER
By:
----------------------------
Name:
Title:
ALLSTATE LIFE INSURANCE COMPANY
By: /s/ XXXXXX X. XXXXXX
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Name: Xxxxxx X. Xxxxxx
By: /s/ XXXXX X. XXXXXXX
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Name: Xxxxx X. Xxxxxxx
Authorized Signatories
ALLSTATE LIFE INSURANCE COMPANY OF NEW YORK
By: /s/ XXXXXX X. XXXXXX
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Name: Xxxxxx X. Xxxxxx
By: /s/ XXXXX X. XXXXXXX
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Name: Xxxxx X. Xxxxxxx
Authorized Signatories
AMERICAN HERITAGE LIFE INSURANCE COMPANY
By: /s/ XXXXXX X. XXXXXX
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Name: Xxxxxx X. Xxxxxx
By: /s/ XXXXX X. XXXXXXX
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Name: Xxxxx X. Xxxxxxx
Authorized Signatories
NATIONWIDE LIFE INSURANCE COMPANY
NATIONWIDE LIFE AND ANNUITY INSURANCE COMPANY
NATIONWIDE MUTUAL INSURANCE COMPANY
By: /s/ XXXX X. XXXXXXXXXX
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Name: Xxxx X. Xxxxxxxxxx
Authorized Signatory
TRANSAMERICA LIFE INSURANCE COMPANY
By: /s/ XXXX XXXXXXXXXX
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Name: Xxxx Xxxxxxxxxx
Title: Vice President
TRANSAMERICA OCCIDENTAL LIFE INSURANCE COMPANY
By: /s/ XXXX XXXXXXXXXX
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Name: Xxxx Xxxxxxxxxx
Title: Vice President
TRANSAMERICA LIFE INSURANCE AND ANNUITY COMPANY
By: /s/ XXXX XXXXXXXXXX
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Name: Xxxx Xxxxxxxxxx
Title: Vice President
HARTFORD LIFE INSURANCE COMPANY
BY: HARTFORD INVESTMENT SERVICES, INC., AS AGENT AND ATTORNEY-IN-FACT
By: /s/ XXX XXXXXXX
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Name: Xxx Xxxxxxx
Title: Senior Vice President
HARTFORD UNDERWRITERS INSURANCE COMPANY
BY: HARTFORD INVESTMENT SERVICES, INC., AS AGENT AND ATTORNEY-IN-FACT
By: /s/ XXX XXXXXXX
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Name: Xxx Xxxxxxx
Title: Senior Vice President
AMERICAN UNITED LIFE INSURANCE COMPANY
By: /s/ XXXXXXX XXXXXXX
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Name: Xxxxxxx Xxxxxxx
Title: V.P. Private Placements
PIONEER MUTUAL LIFE INSURANCE COMPANY
BY: AMERICAN UNITED LIFE INSURANCE COMPANY, ITS AGENT
By: /s/ XXXXXXX XXXXXXX
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Name: Xxxxxxx Xxxxxxx
Title: V.P. Private Placements
THE STATE LIFE INSURANCE COMPANY
BY: AMERICAN UNITED LIFE INSURANCE COMPANY, ITS AGENT
By: /s/ XXXXXXX XXXXXXX
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Name: Xxxxxxx Xxxxxxx
Title: V.P. Private Placements
AMERITAS LIFE INSURANCE CORP.
BY: AMERITAS INVESTMENT ADVISORS, INC., AS AGENT
By: /s/ XXXXXX X. XXXXX
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Name: Xxxxxx X. Xxxxx
Title: Vice President, Fixed Income Securities
ACACIA NATIONAL LIFE INSURANCE COMPANY
BY: AMERITAS INVESTMENT ADVISORS, INC., AS AGENT
By: /s/ XXXXXX X. XXXXX
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Name: Xxxxxx X. Xxxxx
Title: Vice President, Fixed Income Securities
AMERITAS VARIABLE LIFE INSURANCE COMPANY
BY: AMERITAS INVESTMENT ADVISORS, INC., AS AGENT
By: /s/ XXXXXX X. XXXXX
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Name: Xxxxxx X. Xxxxx
Title: Vice President, Fixed Income Securities
The undersigned Guarantors hereby acknowledge and agree to the terms and
provisions contained herein and consent to the Company's execution hereof:
MP PUMPS, INC.
By: /s/ XXXXX X. XXXXXXXXX
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Name: Xxxxx X. Xxxxxxxxx
Title: Vice President and Treasurer
TECUMSEH INVESTMENTS INC.
By: /s/ XXXXX X. XXXXXXXXX
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Name: Xxxxx X. Xxxxxxxxx
Title: Vice President and Treasurer
TECUMSEH COMPRESSOR COMPANY
By: /s/ XXXXX X. XXXXXXXXX
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Name: Xxxxx X. Xxxxxxxxx
Title: Vice President and Treasurer
LITTLE GIANT PUMP CO.
By: /s/ XXXXX X. XXXXXXXXX
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Name: Xxxxx X. Xxxxxxxxx
Title: Vice President and Treasurer
XXXXXXX HOLDINGS, INC.
By: /s/ XXXXX X. XXXXXXXXX
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Name: Xxxxx X. Xxxxxxxxx
Title: Vice President and Treasurer
TECUMSEH POWER COMPANY
By: /s/ XXXXX X. XXXXXXXXX
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Name: Xxxxx X. Xxxxxxxxx
Title: Vice President and Treasurer
CONVERGENT TECHNOLOGIES INTERNATIONAL, INC.
By: /s/ XXXXX X. XXXXXXXXX
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Name: Xxxxx X. Xxxxxxxxx
Title: Vice President and Treasurer
EVERGY, INC.
By: /s/ XXXXX X. XXXXXXXXX
-------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President and Treasurer
EUROMOTOR, INC.
By: /s/ XXXXX X. XXXXXXXXX
-------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President and Treasurer
TECUMSEH PUMP COMPANY
By: /s/ XXXXX X. XXXXXXXXX
-------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President and Treasurer
MANUFACTURING DATA SYSTEMS, INC.
By: /s/ XXXXX X. XXXXXXXXX
-------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President and Treasurer
XXXXXXX PRODUCTS, INC.
By: /s/ XXXXX X. XXXXXXXXX
-------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President and Treasurer
XXXXXX PROPERTY COMPANY, LLC
By: /s/ XXXXX X. XXXXXXXXX
-------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President and Treasurer
FASCO INDUSTRIES, INC.
By: /s/ XXXXX X. XXXXXXXXX
-------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President and Treasurer
XXX XXXXX GEAR COMPANY
By: /s/ XXXXX X. XXXXXXXXX
-------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President and Treasurer
TECUMSEH CANADA HOLDING COMPANY
By: /s/ XXXXX X. XXXXXXXXX
-------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President and Treasurer
ANNEX 1
CURRENT NOTEHOLDERS AND PRINCIPAL AMOUNTS
OUTSTANDING PRINCIPAL AMOUNT
NAME OF CURRENT NOTEHOLDER OF NOTES HELD AT JUNE 30, 2005
-------------------------------------------------------------- ------------------------------
New York Life Insurance Company $ 23,333,333.33
New York Life Insurance and Annuity Corporation $ 13,750,000.00
New York Life Insurance and Annuity Corporation $ 416,666.67
Institutionally Owned Life Insurance Separate Account
State Farm Life Insurance Company $ 31,666,667.00
State Farm Life and Accident Assurance Company $ 1,666,667.00
Hare & Co. $ 12,500,000.00
(as nominee for General Electric Capital Assurance Company)
Hare & Co. $ 4,166,667.00
(as nominee for GE Capital Life Assurance Company of New York)
Xxxx & Co. $ 4,166,667.00
(as nominee for Employers Reinsurance Corporation)
Hare & Co. $ 4,166,667.00
(as nominee for First Colony Life Insurance Company)
Hare & Co. $ 4,166,667.00
(as nominee for GE Life and Annuity Assurance Company)
Great-West Life & Annuity Insurance Company $ 12,500,000.00
London Life Insurance Company $ 8,333,333.33
Mac & Co. $ 4,166,666.67
(as nominee for The Great-West Life Assurance Company)
London Life and Casualty (Barbados) Corporation $ 4,166,666.67
Mac & Co. (as nominee for Pacific Life Insurance Company) $ 20,833,333.33
Jefferson-Pilot Life Insurance Company $ 7,500,000.00
Jefferson Pilot Financial Insurance Company $ 5,833,325.00
Jefferson Pilot LifeAmerica Insurance Company $ 3,333,333.00
Massachusetts Mutual Life Insurance Company $ 13,583,325.00
C.M. Life Insurance Company $ 2,666,666.67
Xxxxxxx & Co. (as nominee for MassMutual Asia) $ 416,666.67
Allstate Life Insurance Company $ 10,000,000.00
Allstate Life Insurance Company of New York $ 4,166,667.00
American Heritage Life Insurance Company $ 2,500,000.00
Nationwide Life Insurance Company $ 7,500,000.00
Nationwide Life and Annuity Insurance Company $ 6,250,000.00
OUTSTANDING PRINCIPAL AMOUNT
NAME OF CURRENT NOTEHOLDER OF NOTES HELD AT JUNE 30, 2005
-------------------------------------------------------------- ------------------------------
Nationwide Mutual Insurance Company $ 2,916,666.67
Transamerica Life Insurance Company $ 6,250,000.00
Transamerica Occidental Life Insurance Company $ 3,125,000.00
Transamerica Life Insurance and Annuity Company $ 3,125,000.00
Hartford Life Insurance Company $ 6,666,667.00
Hartford Underwriters Insurance Company $ 3,333,333.00
American United Life Insurance Company $ 6,250,000.00
Pioneer Mutual Life Insurance Company $ 625,000.00
The State Life Insurance Corp. $ 625,000.00
Ameritas Life Insurance Corp. $ 1,666,666.67
Xxxxxxx & Co. $ 833,333.33
(as nominee for Acacia National Life Insurance Company)
Ameritas Variable Life Insurance Company $ 833,333.33
EXHIBIT A
AMENDMENTS TO EXISTING NOTE PURCHASE AGREEMENT
1. Section 10.6 of the Existing Note Purchase Agreement is hereby amended
and restated in its entirety to read as follows:
"SECTION 10.6. PRIORITY DEBT. The Company will not, at any time, permit
Priority Debt to exceed 20% of Consolidated Net Worth determined as of the
end of the most recently ended fiscal quarter of the Company.
Notwithstanding the foregoing, the Company will not, and will not permit
any Subsidiary to, incur any Priority Debt (other than Indebtedness under
existing working capital credit facilities in accordance with the terms
thereof on June 30, 2005, including the maximum amounts permitted to be
borrowed thereunder) at any time during the Temporary Waiver Period and
after the expiration of the Temporary Waiver Period if the Required
Holders and the Company shall not have agreed to a further waiver or
amendment of the provisions of Section 10.3 of the Note Purchase Agreement
as at the end of the Temporary Waiver Period."
2. Section 10.8 of the Existing Note Purchase Agreement is hereby amended
by adding the following sentence at the end thereof:
"Notwithstanding the foregoing the Company will not, or will not permit
any Subsidiary to, incur any Priority Debt (other than Indebtedness under
existing working capital credit facilities in accordance with the terms
thereof on June 30, 2005, including the maximum amounts permitted to be
borrowed thereunder) at any time during the Temporary Waiver Period or at
any time when a Default or Event of Default exists or would be created
thereby."
3. Section 10.10 of the Existing Note Purchase Agreement is hereby amended
by adding the following sentences at the end thereof:
"Notwithstanding the foregoing at no time during the Temporary Waiver
Period will the Company make, or permit any Subsidiary to make, any Asset
Disposition (other than the sale of all of the registered shares of
Kulthorn Xxxxx Public Company held by the Company so long as (i) the
aggregate net proceeds thereof does not exceed $6,000,000 and (ii) all
such net proceeds are applied to a Special Debt Prepayment Application).
As used in this Section 10.10 "Special Debt Prepayment Application" means,
with respect to any Transfer of such registered shares, the application by
the Company of cash in an amount equal to the Net Sales Amount with
respect to such Transfer to pay Senior Debt, provided that in the course
of making such application the Company shall offer to prepay, at par, each
outstanding Note in principal amount which equals the Ratable Portion for
such Note together with interest accrued thereon as of the date of payment
(which offer shall be in writing and shall offer to prepay the Ratable
Portion of the Notes on a date which is not less than 30 days after the
date of the notice of offer). If any holder of a Note fails to accept in
writing such offer of prepayment within 15 days of receipt of the notice
of offer, then, for purposes of the preceding sentence only, the Company
nevertheless will be deemed to have paid Senior Debt in an amount equal to
the Ratable Portion for such Note. "Ratable Portion" for any Note on any
date means an amount equal to the product of (x) the Net Sales Amount
being so applied to the payment of Senior Debt multiplied by (y) a
fraction the numerator of which is the outstanding principal amount of
such Note on such date and the denominator of which is the aggregate
outstanding principal amount of Senior Debt on such date."
4. A new Section 10.12 is hereby added to the Existing Note Purchase
Agreement to follow Section 10.11 to read as follows:
"SECTION 10.12. RESTRICTED PAYMENTS. The Company will not, and will not
permit any Subsidiary to, make any Restricted Payment at any time during
the Temporary Waiver Period and after the expiration of the Temporary
Waiver Period if the Required Holders and the Company shall not have
agreed to a further waiver or amendment of the provisions of Section 10.3
of the Note Purchase Agreement as at the end of the Temporary Waiver
Period."
5. A new section 10.13 is hereby added to the Existing Note Purchase
Agreement to follow Section 10.12 to read as follows:
"SECTION 10.13. TEMPORARY WAIVER RESTRICTION. At no time during the
Temporary Waiver Period will the Company, or any Subsidiary (a) repay or
prepay any Indebtedness (other than (i) regularly scheduled payments in
the ordinary course of business pursuant to the terms of such Indebtedness
in effect on June 30, 2005 and (ii) payments of principal under the Credit
Agreement so long as the outstanding principal balance due thereunder
remains no less than the outstanding principal balance thereunder at the
close of business on June 30, 2005), (b) acquire, either directly or by
merger or otherwise, the assets or capital stock of any ongoing business
or (c) transfer any assets to a Special Purpose Subsidiary."
6. Schedule B to the Existing Note Purchase Agreement is hereby amended by
adding the following new definitions to appear in their proper
alphabetical order:
""DISTRIBUTION" means, in respect of any corporation, association or other
business entity:
(a) dividends or other distributions or payments on capital stock or
other equity interest of such corporation, association or other business
entity (except distributions in such stock or other equity interest); and
(b) the redemption or acquisition of such stock or other equity
interests or of warrants, rights or other options to purchase such stock
or other equity interests (except when solely in exchange for such stock
or other equity interests).
"FIRST AMENDMENT" means the First Amendment and Waiver No. 1 to Note
Purchase Agreement dated as of June 30, 2005 by and among the Company and
the Required Holders.
"FIRST AMENDMENT EFFECTIVE DATE" means the Effective Date (as such term is
defined in the First Amendment).
"RESTRICTED PAYMENT" means any Distribution in respect of the Company or
any Subsidiary (other than on account of capital stock or other equity
interests of a Subsidiary owned legally and beneficially by the Company or
another Subsidiary), including, without limitation, any Distribution
resulting in the acquisition by the Company of Securities which would
constitute treasury stock.
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"TEMPORARY WAIVER PERIOD" means the period commencing on the First
Amendment Effective Date through August 8, 2005."
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