FOURTH AMENDMENT TO CREDIT AGREEMENT
Exhibit
10.1
Execution
Copy
FOURTH AMENDMENT TO CREDIT
AGREEMENT
THIS FOURTH AMENDMENT TO CREDIT
AGREEMENT, dated as of December 21, 2009 (this "Amendment"), is among Modine
Manufacturing Company, a Wisconsin corporation, any Foreign Subsidiary
Borrowers, the Lenders party hereto and JPMorgan Chase Bank, N.A., a national
banking association, as Swing Line Lender, as LC Issuer and as
Agent.
RECITAL
The Borrower, the Lenders party thereto
and the Agent are parties to an Amended and Restated Credit Agreement dated as
of July 18, 2008 (as amended or modified from time to time, the "Credit
Agreement"). The Borrower desires to amend the Credit Agreement and
the Agent and the Lenders are willing to do so in accordance with the terms
hereof.
TERMS
In consideration of the premises and of
the mutual agreements herein contained, the parties agree as
follows:
ARTICLE
1.
AMENDMENTS
The Credit Agreement shall be amended
as follows:
1.1 The
following definition is added to Article I of the Credit Agreement in
appropriate alphabetical order:
"MCS" means Modine Climate Systems
GmbH, a company organized under the laws of Germany.
1.2 The
following definition in Article I of the Credit Agreement is restated as
follows:
"Modine Holding Consolidated Group"
means Modine Holding GmbH and its Subsidiaries existing as of the First
Amendment Effective Date, and any other Foreign Subsidiary permitted under this
Agreement to be a Subsidiary of Modine Holding GmbH.
1.3 The
definition of "Dutch Holdco" in Article I of the Credit Agreement is
deleted.
1.4 Sections
6.4(f) and 6.4(g) of the Credit Agreement are restated as follows:
(f) [intentionally
omitted];
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(g) a loan by the Borrower
to Modine Holding GmbH consisting solely of the deferred payment for the sale of
MCS to Modine Holding GmbH permitted under Section 6.9(b)(iii) and a loan by the
Borrower to Modine Holding GmbH consisting solely of the deferred payment
portion of the sale of Modine Austria GmbH to Modine Holding GmbH permitted
under Section 6.9(b)(iv), provided that the terms of such loans may not be
amended without the consent of the Required Lenders and that the Borrower will
take or cause its Subsidiaries to take all action to ensure that all obligations
under such loans do and will rank at least pari passu in right of payment with
all of the present and future unsubordinated Indebtedness of Modine Holding
GmbH, except to the extent: (i) otherwise required under German law, or
(ii) such Indebtedness is secured by Permitted Encumbrances or other Liens
permitted under Section 6.6; and
1.6 Section
6.5 is restated as follows:
Section 6.5 Investments and
Acquisitions.
(a) The Borrower will not,
nor will it permit any Subsidiary to, make or suffer to exist any Investments
(including without limitation, loans and advances to, and other Investments in,
Subsidiaries), or commitments therefor, or to create any Subsidiary or to become
or remain a partner in any partnership or joint venture, or to make any
Acquisition of any Person, except:
(i)
Cash Equivalent Investments.
(ii) (x)
Existing Investments in Subsidiaries as of the First Amendment Effective Date,
but no increase in the amount thereof other than an increase in the registered
capital of Modine Thermal Systems (Changzhou) Co. Ld. in the amount of
$1,500,000, and (y) other Investments described in Schedule 6.5, but no increase
in the amount thereof, as reduced from time to time.
(iii) Investments
comprised of capital contributions (whether in the form of cash, a note, or
other assets) to a Subsidiary or other special-purpose entity created solely to
engage in a Qualified Receivables Transaction.
(iv) Rate
Management Transactions permitted by Section 6.20 and guaranties by the Borrower
and its Subsidiaries of such Rate Management Obligations.
(v) Loans
and advances permitted by Section 6.4.
(vi) The
Acquisition by Modine Holding GmbH of Modine Austria and of MCS in compliance
with the terms of this Agreement.
(vii)
The creation of any new Domestic Subsidiaries that become
Guarantors and any Investments therein or in any other Domestic Subsidiary that
is a Guarantor.
(viii) The
creation of any new Subsidiaries of Modine Holding GmbH and any Investments
therein or in any other member of the Modine Holding Consolidated Group,
provided that all such Investments are made solely by another member of the
Modine Holding Consolidated Group.
(ix) if
no Default or Unmatured Default shall have occurred and be continuing or would
be caused thereby, the creation of Subsidiaries in Korea and Investments in
Subsidiaries in Korea (other than Modine Korea), provided that the aggregate
amount (based on the amount thereof at the time invested, and without regard to
any subsequent write down or other decrease in the value thereof) of Investments
in such Korean Subsidiaries on or after the First Amendment Effective Date shall
not exceed $2,500,000.
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(x) The
creation or acquisition of any other new Foreign Subsidiaries not permitted
above and that are not Subsidiaries of Modine Holding GmbH and any Investments
therein, provided that all such Investments are permitted under Section
6.5(b).
(b) The Borrower and its
Subsidiaries may make and have outstanding other Investments, provided that no
Default or Unmatured Default exists at the time such Investment is made or would
be caused thereby and at no time shall the aggregate outstanding amount of all
such other Investments existing and permitted under this Section 6.5(b) exceed
$1,000,000.
Notwithstanding
anything herein to the contrary, the Borrower will not, nor will it permit any
Subsidiary to, make any Investments (including without limitation, loans and
advances to, and other Investments) to Modine Korea, any member of the Modine
Holding Consolidated Group (other than as permitted under Sections
6.4(g) or 6.5(a)(viii)) or any Domestic Subsidiary that is not a Guarantor at
any time on or after the First Amendment Effective Date.
1.7 Section
6.9 of the Credit Agreement is restated as follows:
Section 6.9 Consolidations, Mergers and
Sales of Assets. The Borrower will not, nor will it permit any
Subsidiary to, consolidate or merge with or into, or sell, lease or otherwise
transfer all or any substantial part of its assets to, any other Person, or
discontinue or eliminate any business line or segment, provided that:
(a) Subsidiaries of the
Borrower may merge into the Borrower or a Wholly-Owned Subsidiary.
(b) The foregoing limitation
on the sale, lease or other transfer of assets and on the discontinuation or
elimination of a business line or segment, and the limitations on the
dissolution or liquidation of Subsidiaries in Section 6.8, shall not prohibit,
subject to the applicable provisions of Section 2.3, the following:
(i)
sales of inventory in the ordinary course of
business;
(ii) sale
or other disposition of Modine Korea, whether by sale of Capital Stock or
assets, and other assets owned by Foreign Subsidiaries related to the
Korean-based vehicular HVAC business;
(iii) if
no Default or Unmatured Default shall have occurred and be continuing or would
be caused thereby, the sale of the Capital Stock of MCS owned by the Borrower to
Modine Holding GmbH in exchange for a promissory note issued by Modine Holding
GmbH to the Borrower (and pledged to Collateral Agent under the Collateral
Documents) in the approximate amount of the book value of the receivable owed to
MCS by Modine Holding GmbH, determined as of the date of the sale, provided that
such promissory note shall have a face amount of not less than €20,000,000 and
shall otherwise be reasonably acceptable to the Agent;
(iv) if
no Default or Unmatured Default shall have occurred and be continuing or would
be caused thereby, the sale of Modine Austria to Modine Holding GmbH, provided
that Modine Holding GmbH is a Wholly-Owned Subsidiary at the time of such sale,
for a purchase price based on the fair value of Modine Austria to be determined
based on a valuation by Ernst & Young or otherwise determined in a manner
acceptable to the Agent, provided that such price shall not be less than
€11,000,000 (as adjusted based on any changes to the balance sheet of Modine
Austria between March 31, 2009 and closing of the sale), and such purchase price
is payable as follows: (x) at least €1,500,000 payable in cash at the closing of
the sale, (y) the assignment to the Borrower by Modine Holding GmbH of an
existing loan in the amount of €3,500,000 owing by UK Dollar to Modine Holding
GmbH, which assignment shall be on terms and conditions satisfactory to the
Agent, and (z) the balance of the purchase price will be paid with a promissory
note with a maturity of not more than three years, interest payable at the rate
of one year EURIBOR + 300 bps, payable quarterly and reset annually on each
December 1 and otherwise on terms and conditions satisfactory to the Agent and
without any restrictions on the payment or prepayment thereof (whether in
connection with any agreement governing any Indebtedness of Modine Holding GmbH
or any of its Subsidiaries or otherwise);
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(v) leases,
sales or other dispositions of Property that, together with all other Property
of the Borrower and its Subsidiaries previously leased, sold or disposed of as
permitted by this clause (v) during the twelve-month period ending with the
month in which any such lease, sale or other disposition occurs, do not
constitute a Substantial Portion of the Property of the Borrower and its
Subsidiaries, provided that, after giving effect to any such lease, sale or
other disposition, no Default or Unmatured Default shall have occurred and be
continuing;
(vi) any
transfer of an interest in accounts or notes receivable and related assets
permitted under Section 6.17;
(vii) any
transfer of assets pursuant to an Investment permitted under Section
6.5;
(viii) the
dissolution or liquidation of any Subsidiary if its assets are transferred to
the Borrower or to a Guarantor that is a Domestic Subsidiary, and any other
transfer of assets from any Subsidiary to the Borrower or to a Guarantor that is
a Domestic Subsidiary; or
(ix) the
dissolution or liquidation of any Subsidiary of Modine Holding GmbH if its
assets are transferred to any other Subsidiary of the Borrower, and any other
transfer of assets from any Subsidiary of Modine Holding GmbH to the Borrower or
any Subsidiary.
(c) The foregoing limitation
on the discontinuation or elimination of any business line or segment shall not
prohibit the liquidation and dissolution of any Subsidiary or the
discontinuation or elimination of any business line or segment, provided that
(i) the Borrower shall have reasonably determined that such business line or
segment being discontinued or eliminated is a non-core business of the Borrower
and its Subsidiaries, (ii) any sale of assets relating to any discontinuation or
elimination of any business line or segment or any liquidation or dissolution of
any Subsidiary shall be subject to the limitation on the sale, lease or other
transfer of assets described in Section 6.9(b) and the prepayment requirements
under Section 2.3(b) and the other terms of this Agreement, and (iii) after
giving effect to any such liquidation or dissolution or discontinuation or
elimination of any business line or segment, no Default or Unmatured Default
shall have occurred and be continuing or would be caused thereby.
1.8 The
last paragraph of Section 6.16 of the Credit Agreement is
deleted.
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1.9 Section
6.21 of the Credit Agreement is restated as follows:
Section 6.21. Affiliates. The
Borrower will not, and will not permit any Subsidiary to, enter into any
transaction (including, without limitation, the purchase or sale of any Property
or service) with, or make any payment or transfer to, any Affiliate except (i)
pursuant to the reasonable requirements of the Borrower's or such Subsidiary's
business and upon fair and reasonable terms no less favorable to the Borrower or
such Subsidiary than the Borrower or such Subsidiary would obtain in a
comparable arms-length transaction, (ii) transactions between the Borrower or
any Subsidiary, on the one hand, and any Subsidiary or other special-purpose
entity created to engage solely in a Qualified Receivables Transaction, (iii)
transactions among the Borrower and Guarantors that are Domestic Subsidiaries;
(iv) transactions among members of the Modine Holding Consolidated Group; and
(v) transactions specifically permitted under this Agreement.
1.10 Reference
in Section 6.24(a) of the Credit Agreement to "$100,000" shall be replaced with
"$1,000,000" and reference in Section 6.24(b) of the Credit Agreement to
"$5,000,000" shall be replaced with "$7,500,000".
1.11 Section
10.12 of the Credit Agreement is amended by revising the last sentence to read
as follows: "Without limiting the foregoing, the Lenders hereby
irrevocably empower and authorize JPMorgan, in its capacity as Agent or as
Collateral Agent, to execute and deliver on their behalf any agreements,
documents or instruments as shall be necessary or appropriate to effect any
releases of, and the Agent and Collateral Agent (provided it is allowed to do so
under the terms of the Intercreditor Agreement) shall release, any Lien on the
Capital Stock of MCS in connection with the sale thereof under Section
6.9(b)(iii) or on the Capital Stock of Modine Austria connection with the sale
thereof under Section 6.9(b)(iv)."
ARTICLE
2.
REPRESENTATIONS
The Borrower represents and warrants to
the Agent and the Lenders that:
2.1 The
execution, delivery and performance of this Amendment are within its powers,
have been duly authorized by the Borrower and are not in contravention of any
requirement of law. This Amendment is the legal, valid and binding
obligations of the Borrower, enforceable against it in accordance with the terms
thereof, except to the extent the enforcement thereof may be limited by
bankruptcy, insolvency or similar laws affecting the enforcement of creditors'
rights generally.
2.2 After
giving effect to the amendments herein contained and the amendments to Note
Purchase Documents being delivered pursuant to Section 3.2 hereof, the
representations and warranties contained in the Credit Agreement and the
representations and warranties contained in the other Loan Documents are true on
and as of the date hereof with the same force and effect as if made on and as of
the date hereof, except to the extent any such representation or warranty is
stated to relate solely to an earlier date, in which case such representation or
warranty shall have been true and correct on and as of such earlier date, and no
Default or Unmatured Default exists or has occurred and is continuing on the
date hereof.
2.3 Complete
and correct copies of the amendment to the 2005 Note Purchase Agreement and the
amendment to the 2006 Note Purchase Documents are attached hereto as Schedule
2.3, such amendments are being executed simultaneously herewith and will be
effective on the date hereof, and no other agreements are being executed in
connection therewith.
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ARTICLE
3.
CONDITIONS
PRECEDENT
This Amendment shall be effective as of
the date hereof when each of the following has been satisfied:
3.1 This
Amendment shall be signed by the Borrower, the Agent and the Required
Lenders.
3.2 The
Lenders shall have received an amendment to the 2005 Note Purchase Documents and
an amendment to the 2006 Note Purchase Note Documents, and such amendments shall
be executed simultaneously herewith, shall be satisfactory to the Agent and
shall automatically become effective simultaneously with this
Amendment.
3.3 The
Consent and Agreement to this Amendment shall be signed by all parties
thereto.
3.4 The
Borrowers and the Guarantors shall have executed and delivered such other
agreements and instruments and satisfied such other conditions, if any, in
connection with this Amendment as required by the Agent.
ARTICLE
4.
MISCELLANEOUS.
4.1 References
in the Loan Documents to the Credit Agreement shall be deemed to be references
to the Credit Agreement as amended hereby and as further amended from time to
time. This Agreement is a Loan Document. Terms used but
not defined herein shall have the respective meanings ascribed thereto in the
Credit Agreement.
4.2 Except
as expressly amended hereby, each of the Borrower and each Guarantor agrees that
the Loan Documents are ratified and confirmed and shall remain in full force and
effect and that it has no set off, counterclaim, defense or other claim or
dispute with respect to any of the foregoing.
4.3 Each
of the Borrower and each Guarantor represents and warrants that it is not aware
of any claims or causes of action against the Agent, any Lender or any of their
respective affiliates, successors or assigns, and that it has no defenses,
offsets or counterclaims with respect to the
Obligations. Notwithstanding this representation and as further
consideration for the agreements and understandings herein, the Borrower and
each Guarantor, on behalf of itself and its Subsidiaries, employees, agents,
executors, heirs, successors and assigns (the "Releasing Parties"), hereby
releases the Agent, each Lender and their respective predecessors, officers,
directors, employees, agents, attorneys, affiliates, subsidiaries, successors
and assigns (the "Released Parties"), from any liability, claim, right or cause
of action which now exists or hereafter arises as a result of acts, omissions or
events occurring on or prior to the date hereof, whether known or unknown,
including but not limited to claims arising from or in any way related to this
Agreement, the other Loan Documents, all transactions relating to this Agreement
or any of the other Loan Documents or the business relationship among, or any
other transactions or dealings among the Releasing Parties or any of them and
the Released Parties or any of them.
4.4 Each
of the Borrower and each Guarantor acknowledges and agrees that each of the
Agent and the Lenders has fully performed all of its obligations under all Loan
Documents, and that all actions taken by the Agent and the Lenders are
reasonable and appropriate under the circumstances and within their rights under
the Loan Documents. The actions of each of the Agent and the Lenders
taken pursuant to this Agreement and the documents referred to herein are in
furtherance of their efforts as secured lenders seeking to collect the
obligations owed to them. Nothing contained in this Agreement shall
be deemed to create a partnership, joint venture or agency relationship of any
nature between the Borrower, its Subsidiaries, the Agent and the
Lenders. The Borrowers, its Subsidiaries, the Agent and the Lenders
agree that notwithstanding the provisions of this Agreement, each of the
Borrowers and its Subsidiaries remain in control of their respective business
operations and determine the business plans (including employment, management
and operating directions) for its business.
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4.5 This
Agreement may be signed upon any number of counterparts with the same effect as
if the signatures thereto and hereto were upon the same instrument and
signatures sent by facsimile or electronic mail message shall be enforceable as
originals.
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IN
WITNESS WHEREOF, the parties signing this Amendment have caused this Amendment
to be executed, delivered and effective as of the date first above
written.
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By:
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/s/ Xxxxxxx X. Xxxxxxxx
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Title:
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Vice
President, Finance & Corporate
Treasury
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JPMORGAN CHASE BANK,
N.A., as the Agent, as the Swing Line Lender, as the LC Issuer and
as a Lender
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By:
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/s/ Xxxxx X. Xxxxxxxx
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Title:
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Senior
Vice President
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BANK OF AMERICA, N.A.,
as a Documentation Agent and as a Lender
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By:
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Title:
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M&I XXXXXXXX & ILSLEY
BANK, as a Documentation Agent and as a Lender
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By:
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/s/ Xxxx X. Xxxxx
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Title:
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Senior
Vice President
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By:
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/s/ illegible
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Title:
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Asst.
Vice President
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XXXXX FARGO BANK, N.A.,
as a Documentation Agent and as a Lender
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By:
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/s/ Xxxxxxxx Xxxxx
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Title:
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VPI
Principal
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Commerzbank AG, as a
Lender
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By:
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/s/ Xxxxxxxx Xxxxxxxx
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Title:
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Director
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By:
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/s/ Xxxx Xxxxx
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Title:
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Director
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U.S. BANK, NATIONAL
ASSOCIATION, as a Lender
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By:
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/s/ Xxxxxxxx X. Xxxxxx
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Title:
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Vice
President & Senior Lender
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COMERICA BANK, as a
Lender
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By:
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/s/ Xxxxxxx X. Xxxxxxx
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Title:
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Vice
President
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CONSENT AND
AGREEMENT
As of the date and year first above
written, each of the undersigned hereby fully consents to the terms and
provisions of the above Amendment and the consummation of the transactions
contemplated thereby, and acknowledges and agrees to all terms and provisions of
the above Amendment applicable to it, including without limitation all
covenants, representations and warranties, releases, indemnifications, and all
other terms and provisions.
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MODINE,
INC.
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By:
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/s/ Xxxxxxx X. Xxxxxx
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Its:
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President
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MODINE
ECD, INC.
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By:
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/s/ Xxxxxx X. Xxxxx
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Its:
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President
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Exhibit
10.1
Schedule
2.3
[Complete
and correct copies of the amendment to the 2005 Note Purchase Agreement and the
amendment to the 2006 Note Purchase Documents]
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