IMPORTANT NOTE: BRINGING THIS CREDIT AGREEMENT OR ANY CERTIFIED COPY OF THIS CREDIT AGREEMENT INTO THE REPUBLIC OF AUSTRIA AS WELL AS ANY WRITTEN CONFIRMATION OR WRITTEN REFERENCE TO THIS CREDIT AGREEMENT MAY CAUSE THE IMPOSITION OF AUSTRIAN STAMP...
Exhibit
10.1
IMPORTANT
NOTE:
BRINGING
THIS CREDIT AGREEMENT OR ANY CERTIFIED COPY OF THIS CREDIT AGREEMENT INTO THE
REPUBLIC OF AUSTRIA AS WELL AS ANY WRITTEN CONFIRMATION OR WRITTEN REFERENCE
TO
THIS CREDIT AGREEMENT MAY CAUSE THE IMPOSITION OF AUSTRIAN STAMP DUTY
TAX.
DATED
AS OF DECEMBER 13, 2005
AMONG
MODINE
HOLDING GMBH
AS
BORROWER,
AND
CERTAIN OF ITS SUBSIDIARIES
AS
GUARANTORS,
THE
LENDERS,
X.X.
XXXXXX EUROPE LIMITED
AS
AGENT,
X.X.
XXXXXX PLC
AS
LEAD ARRANGER AND SOLE BOOK RUNNER,
TABLE
OF CONTENTS
Page
Article
1
DEFINITIONS
Article
2
THE CREDITS
Section
2.1
|
Term
Loan.
|
Section
2.2
|
Required
Payments.
|
Section
2.3
|
Optional
Principal Payments.
|
Section
2.4
|
Method
of Selecting Initial Interest Periods for the Loans.
|
Section
2.5
|
Selection
of Interest Periods for Outstanding Advances.
|
Section
2.6
|
Method
of Borrowing.
|
Section
2.7
|
Interest
Rate, etc.
|
Section
2.8
|
Rates
Applicable After Default.
|
Section
2.9
|
Method
of Payment.
|
Section
2.10 Noteless
Agreement; Evidence of Indebtedness.
Section
2.11 Telephonic
Notices.
Section
2.12 Interest
Payment Dates; Interest Basis.
Section
2.13 Notification
of Advances, Interest Rates and Prepayments.
Section
2.14 Lending
Installations.
Section
2.15 Non-Receipt
of Funds by the Agent.
Section
2.16 Judgment
Currency.
Article
3
YIELD PROTECTION; TAXES
Section
3.1
|
Yield
Protection.
|
Section
3.2
|
Changes
in Capital Adequacy Regulations.
|
Section
3.3
|
Availability
of Types of Advances.
|
Section
3.4
|
Funding
Indemnification.
|
Section
3.5
|
Taxes.
|
Section
3.6
|
Lender
Statements; Survival of Indemnity.
|
Article
4
CONDITIONS PRECEDENT
Section
4.1
|
Conditions
to the Effective Date.
|
Section
4.2
|
Conditions
Precedent to Borrowing.
|
Article
5
REPRESENTATIONS AND WARRANTIES
Section
5.1
|
Corporate
Existence and Power.
|
Section
5.2
|
Authorization.
|
Section
5.3
|
Binding
Effect.
|
Section
5.4
|
No
Conflict; Government Consent.
|
Section
5.5
|
Financial
Statements; Material Adverse Change.
|
Section
5.6
|
Litigation
and Contingent Obligations.
|
Section
5.7
|
Compliance
with ERISA.
|
Section
5.8
|
Taxes.
|
Section
5.9
|
Subsidiaries.
|
Section
5.10 Not
an
Investment Company.
Section
5.11 Ownership
of Property; Liens.
Section
5.12 Material
Agreements; Default.
Section
5.13 Full
Disclosure.
Section
5.14 Environmental
Matters.
Section
5.15 Insolvency.
Section
5.16 Compliance
with Laws.
Section
5.17 Regulation
U.
Section
5.18 Public
Utility Holding Company Act.
Section
5.19 Post-Retirement
Benefits.
Section
5.20 Insurance.
Section
5.21 Plan
Assets; Prohibited Transactions.
Article
6
COVENANTS
Section
6.1
|
Information.
|
Section
6.2
|
Inspection
of Property, Books and Records.
|
Section
6.3
|
Restricted
Payments.
|
Section
6.4
|
Loans
or Advances.
|
Section
6.5
|
Investments
and Acquisitions.
|
Section
6.6
|
Negative
Pledge.
|
Section
6.7
|
Maintenance
of Existence.
|
Section
6.8
|
Dissolution.
|
Section
6.9
|
Consolidations,
Mergers and Sales of Assets.
|
Section
6.10 Use
of
Proceeds.
Section
6.11 Compliance
with Laws; Payment of Taxes and Other Claims.
Section
6.12 Insurance.
Section
6.13 Change
in
Fiscal Year.
Section
6.14 Maintenance
of Property.
Section
6.15 Environmental
Matters.
Section
6.16 Indebtedness.
Section
6.17 Sale
of
Accounts.
Section
6.18 Financial
Covenants.
Section
6.19 Guaranties.
Section
6.20 Rate
Management Transactions.
Section
6.21 Affiliates.
Section
6.22 Condition
Subsequent.
Article
7
DEFAULTS
Article
8
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
Section
8.1
|
Acceleration.
|
Section
8.2
|
Amendments.
|
Section
8.3
|
Preservation
of Rights.
|
Article
9
GENERAL PROVISIONS
Section
9.1
|
Survival
of Representations.
|
Section
9.2
|
Governmental
Regulation.
|
Section
9.3
|
Headings.
|
Section
9.4
|
Entire
Agreement.
|
Section
9.5
|
Several
Obligations; Benefits of this Agreement.
|
Section
9.6
|
Expenses;
Indemnification.
|
Section
9.7
|
Numbers
of Documents.
|
Section
9.8
|
Accounting.
|
Section
9.9
|
Severability
of Provisions.
|
Section
9.10 Nonliability
of Lenders.
Section
9.11 Confidentiality.
Section
9.12 Nonreliance.
Section
9.13 Disclosure.
Section
9.14 USA
Patriot Act.
Section
9.15 Place
of
Performance.
Article
10 THE AGENT
Section
10.1 Appointment;
Nature of the Relationship.
Section
10.2 Powers.
Section
10.3 Reliance;
Counsel.
Section
10.4 Delegation
to Sub-Agent.
Section
10.5 Resignation;
Successor Agent.
Section
10.6 Lender
Credit Decision.
Section
10.7 Agent’s
Reimbursement and Indemnification.
Section
10.8 Execution
of Collateral Documents.
Article
11 SETOFF; RATABLE PAYMENTS
Section
11.1 Setoff.
Section
11.2 Ratable
Payments.
Article
12 GUARANTY
Section
12.1 Representations,
Warranties and Covenants.
Section
12.2 Guaranty.
Section
12.3 Guaranty
Unconditional.
Section
12.4 Discharge
Only Upon Payment in Full; Reinstatement in Certain Circumstances.
Section
12.5 General
Waivers.
Section
12.6 Subordination
of Subrogation; Subordination of Intercompany Indebtedness.
Section
12.7 Contribution
with Respect to Guaranteed Obligations.
Section
12.8 Stay
of
Acceleration.
Section
12.9 No
Waivers.
Section
12.10 Expenses
of Enforcement, etc.
Section
12.11 Setoff.
Section
12.12 Financial
Information.
Article
13 BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
Section
13.1 Successors
and Assigns; Participations.
Section
13.2 Dissemination
of Information.
Section
13.3 Tax
Treatment.
Article
14 NOTICES
Section
14.1 Notices.
Section
14.2 Change
of
Address.
Article
15 COUNTERPARTS
Article
16 CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL
Section
16.1 CHOICE
OF LAW.
Section
16.2 CONSENT
TO JURISDICTION.
Section
16.3 WAIVER
OF JURY TRIAL.
ANNEX
I GUARANTY
JOINDER SUPPLEMENT
EXHIBITS
EXHIBIT
A-1 FORM
OF
AUSTRIAN OPINION
EXHIBIT
A-2 FORM
OF
U.S. OPINION
EXHIBIT
B COMPLIANCE
CERTIFICATE
EXHIBIT
C ASSIGNMENT
AND ASSUMPTION AGREEMENT
SCHEDULES
PRICING
SCHEDULE
SCHEDULE
1 EUROCURRENCY
PAYMENT OFFICES
OF
THE
AGENT
SCHEDULE
2 LENDING
INSTALLATIONS
SCHEDULE
3 MANDATORY
COST FORMULAE
SCHEDULE
5.6 LITIGATION
SCHEDULE
5.9 SUBSIDIARIES
SCHEDULE
5.14(a) ENVIRONMENTAL
MATTERS
SCHEDULE
5.14(b) HAZARDOUS
MATERIALS
SCHEDULE
6.5A EXISTING
INVESTMENTS
SCHEDULE
6.5B INVESTMENTS
RELATED TO MODINE AUSTRIA TRANSACTION
SCHEDULE
6.16 INDEBTEDNESS
AND LIENS
IMPORTANT
NOTE:
BRINGING
THIS CREDIT AGREEMENT OR ANY CERTIFIED COPY OF THIS CREDIT AGREEMENT INTO THE
REPUBLIC OF AUSTRIA AS WELL AS ANY WRITTEN CONFIRMATION OR WRITTEN REFERENCE
TO
THIS CREDIT AGREEMENT MAY CAUSE THE IMPOSITION OF AUSTRIAN STAMP DUTY
TAX.
This
Agreement, dated as of December 13, 2005, is among Modine Holding GmbH, a
company organized under the laws of Austria, Modine Manufacturing Company,
a
Wisconsin corporation, those of its Subsidiaries from time to time party hereto
as Guarantors, the Lenders and X.X. Xxxxxx Europe Limited, a company organized
under the laws of England and Wales, as Agent. The parties hereto agree as
follows:
ARTICLE
1
DEFINITIONS
As
used
in this Agreement:
“Acquisition”
means any transaction, or any series of related transactions, consummated on
or
after the date of this Agreement, by which the Parent or any of its Subsidiaries
(i) acquires any going business or all or substantially all of the assets
of any firm, corporation or limited liability company, or division thereof,
whether through purchase of assets, merger or otherwise or (ii) directly or
indirectly acquires (in one transaction or as the most recent transaction in
a
series of transactions) at least a majority (in number of votes) of the
securities of a corporation which have ordinary voting power for the election
of
directors (other than securities having such power only by reason of the
happening of a contingency) or a majority (by percentage or voting power) of
the
outstanding ownership interests of a partnership or limited liability
company.
“Administrative
Questionnaire” means an Administrative Questionnaire in a form supplied by the
Agent.
“Advance”
means at any time and with respect to any Interest Period extant at such time
that portion of the Loans sharing such Interest Period.
“Affiliate”
of any Person means any other Person directly or indirectly controlling,
controlled by or under common control with such Person. A Person shall be deemed
to control another Person if the controlling Person owns 10% or more of any
class of voting securities (or other ownership interests) of the controlled
Person or possesses, directly or indirectly, the power to direct or cause the
direction of the management or policies of the controlled Person, whether
through ownership of stock, by contract or otherwise.
“Agent”
means JPMEL in its capacity as contractual representative of the Lenders
pursuant to Article 10, and not in its individual capacity as a Lender, and
any
successor Agent appointed pursuant to Article 10.
“Aggregate
Commitment” means the aggregate of the Commitments of all the Lenders. The
Aggregate Commitment is EUR 71,000,000.
“Agreement”
means this credit agreement, as it may be amended or modified and in effect
from
time to time.
“Agreement
Accounting Principles” means generally accepted accounting principles as in
effect from time to time, applied in a manner consistent with that used in
preparing the financial statements referred to in Section 5.5.
“Anti-Terrorism
Order” means Executive Order No. 13,224, 66 Fed. Reg. 49,079 (2001) issued by
the President of the U.S. (Executive Order Blocking Property and Prohibiting
Transactions with Persons Who Commit, Threaten to Commit, or Support
Terrorism).
“Applicable
Margin” means, at any time, the percentage rate per annum which is applicable at
such time as set forth in the Pricing Schedule.
“Approved
Fund” is defined in Section 13.1(b).
“Arranger”
means X.X. Xxxxxx plc, a company organized under the laws of England and Wales,
and its successors, in its capacity as Lead Arranger and Sole Book
Runner.
“Article”
means an article of this Agreement unless another document is specifically
referenced.
“Assignment
and Assumption” means an assignment and assumption entered into by a Lender and
an assignee (with the consent of any party whose consent is required by
Section 13.1), and accepted by the Agent, in the form of Exhibit C or
any other form approved by the Agent.
“Authorized
Officer” means any of the Chief Financial Officer, Treasurer, or Controller of
the Borrower or Parent, as applicable, acting singly.
“Borrower”
means Modine Holding GmbH, a company organized under the laws of Austria, and
its successors and assigns.
“Borrowing
Date” means the date the Loans are made hereunder.
“Borrowing
Notice” is defined in Section 2.4.
“Business
Day” means (i) with respect to any borrowing, payment or rate selection of
Advances, a day (other than a Saturday or Sunday) on which (A) banks generally
are open in London for the conduct of substantially all of their commercial
lending activities and (B) the Trans-European Automated Real-Time Gross
Settlement Express Transfer System (TARGET) (or, if such clearing system ceases
to be operative, such other clearing system (if any) determined by the Agent
to
be a suitable replacement) is open for settlement of payment in Euros, and
(ii)
for all other purposes, a day (other than a Saturday or Sunday) on which banks
generally are open in Chicago and London for the conduct of substantially all
of
their commercial lending activities.
“CERCLA”
means the Comprehensive Environmental Response, Compensation and Liability
Act
of 1980, as amended by the Superfund Amendments and Reauthorization Act of
1986,
and as it may be further amended from time to time, 42 U.S.C.§§9601 et
seq.
“Capitalized
Lease” of a Person means any lease of Property by such Person as lessee which
would be capitalized on a balance sheet of such Person prepared in accordance
with Agreement Accounting Principles.
“Capitalized
Lease Obligations” of a Person means the amount of the obligations of such
Person under Capitalized Leases which would be shown as a liability on a balance
sheet of such Person prepared in accordance with Agreement Accounting
Principles.
“Cash
Equivalent Investments” means (i) short-term obligations of, or fully guaranteed
by, the United States of America, (ii) with respect to Investments of a Foreign
Subsidiary only, direct obligations of such Foreign Subsidiary’s Domestic
National Government maturing within one year, (iii) commercial paper rated
A-1
or better by S&P or P-1 or better by Xxxxx'x, (iv) demand deposit accounts
maintained in the ordinary course of business, (v) (1) preferred
stocks rated A3 or better by Xxxxx’x or A- or better by S&P,
(2) adjustable rate preferred stock funds rated A3 or better by Xxxxx’x or
A- or better by S&P, and (3) municipal notes with credit support
provided by, and putable (within a period not to exceed one year from date
of
acquisition) to, financial institutions rated A or better by Xxxxx’x, S&P,
or the Fitch Investor Service, (vi) tax exempt variable rate demand notes
rated AA or better by Xxxxx’x or S&P, provided that such notes permit the
Parent or applicable Subsidiary to require the issuer to repurchase such notes
after a period of not more than one year from date of acquisition thereof,
(vii) certificates of deposit issued by and time deposits with commercial
banks (whether domestic or foreign) having capital and surplus in excess of
$100,000,000, and (viii) repurchase agreements or like investment vehicles,
in each case rated A-1 or better by S&P or P-1 or better by Xxxxx’x and
having a maturity date not greater than 270 days; provided
in each
case that the same provides for payment of both principal and interest (and
not
principal alone or interest alone) and is not subject to any contingency
regarding the payment of principal or interest.
“Change
in Control” means (a) with respect to any Person or group of Persons acting in
concert which on the date of this Agreement owns 15% or more of the outstanding
shares of voting stock of the Parent, the acquisition by any such Person or
group of Persons acting in concert of beneficial ownership (within the meaning
of Rule 13d-3 of the Securities and Exchange Commission under the Securities
Exchange Act of 1934) of 30% or more of the outstanding shares of voting stock
of the Parent; or (b) with respect to any Person or group of Persons acting
in
concert (other than those described in clause (a) immediately above), the
acquisition by any such Person or group of Persons, of beneficial ownership
(within the meaning of Rule 13d-3 of the Securities and Exchange Commission
under the Securities Exchange Act of 1934) of 20% or more of the outstanding
shares of voting stock of the Parent; or (c) as of any date a majority of the
Board of Directors of the Parent consists of individuals who were not either
(i)
directors of the Parent as of the corresponding date of the previous year,
(ii)
selected or nominated to become directors by the Board of Directors of the
Parent of which a majority consisted of individuals described in clause (i),
or
(iii) selected or nominated to become directors by the Board of Directors of
the
Parent of which a majority consisted of individuals described in clause (i)
and
individuals described in clause (ii); or (d) as of any date the Borrower ceases
to be a direct or indirect Wholly-Owned Subsidiary of the Parent.
“Code”
means the Internal Revenue Code of 1986, as amended, reformed or otherwise
modified from time to time.
“Collateral
Documents” means, collectively, each agreement, instrument or document that may
at any time secure all or any part of the Secured Obligations.
“Collateral
Shortfall Amount” is defined in Section 8.1.
“Commitment”
means, for each Lender, the obligation of such Lender to make a Loan to the
Borrower in the amount set forth opposite its signature below.
“Consolidated
Adjusted EBITDA” means, as to any Person and with reference to any period,
Consolidated EBIT plus,
to the
extent deducted in determining Consolidated Net Income, depreciation and
amortization, all calculated for such Person and its Subsidiaries on a
consolidated basis. “Consolidated Adjusted EBITDA” for any period, as to any
Person, shall be calculated to be the actual amount for such period for such
Person and its Subsidiaries; provided,
upon
the consummation of any Acquisition, for calculations made from and after such
Acquisition, Consolidated Adjusted EBITDA shall be calculated on a pro forma
basis
including the target’s historical Consolidated Adjusted EBITDA for the
applicable period using historical financial statements obtained from the
seller, broken down by fiscal quarter in such Person’s reasonable judgment (the
amounts from which may be adjusted solely as may be necessary to comply with
Agreement Accounting Principles).
“Consolidated
EBIT” means, as to any Person and with reference to any period, Consolidated Net
Income plus,
to the
extent deducted from revenues in determining Consolidated Net Income, (i)
Consolidated Interest Expense, (ii) expense for federal, state, local and
foreign income and franchise taxes paid or accrued and (iii) extraordinary
losses incurred other than in the ordinary course of business, minus,
to the
extent included in Consolidated Net Income, extraordinary gains realized other
than in the ordinary course of business, all calculated for such Person and
its
Subsidiaries on a consolidated basis.
“Consolidated
Interest Expense” means, as to any Person and with reference to any period, the
interest expense of such Person and its Subsidiaries calculated on a
consolidated basis for such period including, without limitation, such interest
expense as may be attributable to Capitalized Leases, Receivables Transaction
Financing Costs, the discount or implied interest component of Off-Balance
Sheet
Liabilities, all commissions, discounts and other fees and charges owed with
respect to Letters of Credit and Net Xxxx-to-Market Exposure.
“Consolidated
Net Income” means, as to any Person and with reference to any period, the net
income (or loss) of such Person and its Subsidiaries calculated on a
consolidated basis for such period, excluding any non-cash charges or gains
which are unusual, non-recurring or extraordinary, and including, to the extent
not otherwise included in the determination of Consolidated Net Income, all
cash
dividends and cash distributions received by the Parent or any Subsidiary from
any Person in which the Parent or such Subsidiary has made an
investment.
“Consolidated
Net Worth” means as to any Person and at any time the consolidated stockholders’
equity of such Person and its Subsidiaries calculated on a consolidated basis
as
of such time.
“Consolidated
Total Debt” means as to any Person and at any time Indebtedness of such Person
and its Subsidiaries calculated on a consolidated basis.
“Contingent
Obligation” of a Person means any agreement, undertaking or arrangement by which
such Person assumes, guarantees, endorses, contingently agrees to purchase
or
provide funds for the payment of, or otherwise becomes or is contingently liable
upon, the obligation or liability of any other Person, or agrees to maintain
the
net worth or working capital or other financial condition of any other Person,
or otherwise assures any creditor of such other Person against loss, including,
without limitation, any comfort letter, operating agreement, take-or-pay
contract or the obligations of any such Person as general partner of a
partnership with respect to the liabilities of the partnership.
“Controlled
Group” means all members of a controlled group of corporations or other business
entities and all trades or businesses (whether or not incorporated) under common
control which, together with the Parent or any of its Subsidiaries, are treated
as a single employer under Section 414 of the Code.
“Credit
Parties” means the Borrower and the Guarantors.
“Default”
means an event described in Article 7.
“Designated
Financial Contract” means any financial contract evidencing any Rate Management
Obligations to which any Lender or affiliate of any Lender shall be a
party.
“Dollars”
and “$” shall mean the lawful currency of the United States of
America.
“Domestic
National Government” means, with respect to a Foreign Subsidiary, the national
government of the country in which the Foreign Subsidiary’s principal place of
business is located.
“Domestic
Subsidiary” means each Subsidiary of the Parent which is organized under the
laws of the United States of America or any state, territory or possession
thereof.
“Effective
Date” means the date on which (i) each of the conditions precedent described in
Section 4.1 has been satisfied, and (ii) this Agreement has been executed by
all
of the parties hereto.
“Environmental
Laws” means any and all federal, state, local and foreign statutes, laws,
judicial decisions, regulations, ordinances, rules, judgments, orders, decrees,
plans, injunctions, permits, concessions, grants, franchises, licenses,
agreements and other governmental restrictions relating to (i) the protection
of
the environment, (ii) the effect of the environment on human health, (iii)
emissions, discharges or releases of pollutants, contaminants, hazardous
substances or wastes into surface water, ground water or land, or (iv) the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of pollutants, contaminants, hazardous substances or
wastes or the clean-up or other remediation thereof, including, without
limitation, CERCLA.
“Environmental
Liabilities” means all liabilities (including anticipated compliance costs) in
connection with or relating to the business, assets presently or previously
owned, leased or operated property, activities (including, without limitation,
off-site disposal) or operations of the Parent and each of its Subsidiaries,
whether vested or unvested, contingent or fixed, actual or potential, known
or
unknown, which arise under or relate to matters covered by Environmental
Laws.
“Environmental
Proceeding” means any judicial or administrative proceeding arising from or in
any way associated with any Environmental Law.
“Environmental
Release” means releases as defined in CERCLA or under any other Environmental
Law.
“Equivalent
Foreign Rating” means, with respect to a rating issued by Xxxxx’x, an equivalent
rating issued by a recognized rating agency comparable to S&P or Xxxxx’x and
reasonably acceptable to the Lender.
“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended from
time
to time, and any rule or regulation issued thereunder.
“Euro”
and/or “EUR” means the euro referred to in Council Regulation (EC) No. 1103/97
dated June 17, 1997 passed by the Council of the European Union, or, if
different, the then lawful currency of the member states of the European Union
that participate in the third stage of Economic and Monetary Union.
“Eurocurrency
Payment Office” of the Agent shall mean the office, branch, affiliate or
correspondent bank of the Agent specified as the “Eurocurrency Payment Office”
for such currency in Schedule
1
hereto
or such other office, branch, affiliate or correspondent bank of the Agent
as it
may from time to time specify to the Borrower and each Lender as its
Eurocurrency Payment Office.
“EURIBOR”
means, with respect to an Advance for the relevant Interest Period or unpaid
sum
in Euro: (i) the applicable Screen Rate; or (ii) if no Screen Rate is available
for the relevant Interest Period, the arithmetic mean of the rates (rounded
upwards to four decimal places) as supplied to the Agent at its request quoted
by the Reference Banks to leading banks in the European interbank market, in
each case as of 11:00 a.m. (Brussels time) on the applicable Quotation Date
for
the offering of deposits in Euro and for a period comparable to the Interest
Period of the relevant Advance or unpaid sum.
“Excluded
Taxes” means, in the case of each Lender or applicable Lending Installation and
the Agent, taxes imposed on its overall net income, and franchise taxes imposed
on it, by (i) the jurisdiction under the laws of which such Lender or the Agent
is incorporated or organized or (ii) the jurisdiction in which the Agent’s or
such Lender’s principal executive office or such Lender’s applicable Lending
Installation is located.
“Exhibit”
refers to an exhibit to this Agreement, unless another document is specifically
referenced.
“Facility
Maturity Date” means September 30, 2009.
“Foreign
Subsidiary” means each Subsidiary which is not a Domestic
Subsidiary.
“Fund”
means any Person (other than a natural person) that is (or will be) engaged
in
making, purchasing, holding or otherwise investing in commercial loans and
similar extensions of credit in the ordinary course of its
business.
“Guarantors”
means the Initial Guarantors along with each additional Specified Domestic
Subsidiary that becomes a party to this Agreement by executing a supplement
hereto in the form attached as Annex
I.
“Guaranty”
means the guaranty set forth in Article 12 hereof, as such guaranty may be
amended or modified and in effect from time to time.
“Hazardous
Materials” includes, without limitation, (i) solid or hazardous waste, as
defined in the Resource Conservation and Recovery Act of 1980, or in any
applicable state or local law or regulation, (ii) hazardous substances, as
defined in CERCLA, or in any applicable state or local law or regulation, (iii)
gasoline, or any other petroleum product or by-product, (iv) toxic substances,
as defined in the Toxic Substances Control Act of 1976, or in any applicable
state or local law or regulation or (v) insecticides, fungicides, or
rodenticides, as defined in the Federal Insecticide, Fungicide, and Rodenticide
Act of 1975, or in any applicable state or local law or regulation, as each
such
act, statute or regulation may be amended from time to time.
“Holders
of Obligations” means the holders of the Obligations from time to time and shall
include (A) each Lender in respect of its Loan, (B) the Agent and the Lenders
in
respect of all other present and future obligations and liabilities of the
Borrower of every type and description arising under or in connection with
this
Agreement or any other Loan Document, (C) each indemnified party under Section
9.6 of this Agreement in respect of the obligations and liabilities of the
Borrower to such Person hereunder and under the other Loan Documents, and (D)
their respective successors, transferees and assigns.
“Indebtedness”
of a Person means, without duplication, such Person’s (i) obligations for
borrowed money, (ii) obligations representing the deferred purchase price of
Property or services (other than accounts payable arising in the ordinary course
of such Person’s business payable on terms customary in the trade), (iii)
obligations, whether or not assumed, secured by Liens or payable out of the
proceeds or production from Property now or hereafter owned or acquired by
such
Person, (iv) obligations which are evidenced by notes, acceptances, or other
instruments, (v) obligations of such Person to purchase securities or other
Property arising out of or in connection with the sale of the same or
substantially similar securities or Property, (vi) Capitalized Lease
Obligations, (vii) obligations in respect of Letters of Credit, (viii)
Contingent Obligations in respect of Indebtedness of any other Person, (ix)
Off-Balance Sheet Liabilities, (x) Receivables Transaction Attributed
Indebtedness, and (xi) any other obligation for borrowed money or other
financial accommodation which in accordance with Agreement Accounting Principles
would be shown as a liability on the consolidated balance sheet of such
Person.
“Initial
Guarantors” means Parent, Modine Delaware LLC, a Delaware limited liability
company, Modine, Inc., a Delaware corporation, Modine Climate Systems Inc.,
a
Kentucky corporation, Thermacore International, Inc., a Pennsylvania
corporation, Thermacore, Inc., a Pennsylvania corporation, Thermal Corp., a
Delaware corporation, Xxxxxx Xxxxxxx, Inc., a Delaware corporation, Airedale
Inc., a Delaware corporation and Airedale North America, Inc. a Pennsylvania
corporation.
“Interest
Expense Coverage Ratio” means, as of any date of calculation, the ratio of (i)
the Parent’s Consolidated EBIT for the then most recently ended four fiscal
quarters to (ii) the Parent’s Consolidated Interest Expense for the then most
recently ended four fiscal quarters.
“Interest
Period” means, with respect to an Advance, a period of one, two, three or six
months (or,
with
respect to the EUR 30,000,000 portion of the Loans that is to be prepaid on
or
before December 30, 2005, such shorter period as may be agreed by the
Lenders and the Borrower) commencing on a Business Day selected by the Borrower
pursuant to this Agreement. Such Interest Period having a period of one, two,
three or six months shall end on the day which corresponds numerically to such
date one, two, three or six months thereafter, provided,
however,
that if
there is no such numerically corresponding day in such next, second, third
or
sixth succeeding month, such Interest Period shall end on the last Business
Day
of such next, second, third or sixth succeeding month. If an Interest Period
would otherwise end on a day which is not a Business Day, such Interest Period
shall end on the next succeeding Business Day, provided,
however,
that if
said next succeeding Business Day falls in a new calendar month, such Interest
Period shall end on the immediately preceding Business Day.
“Investment”
of a Person means any loan, advance (other than commission, travel and similar
advances to officers and employees made in the ordinary course of business),
extension of credit (other than accounts receivable arising in the ordinary
course of business on terms customary in the trade) or contribution of capital
by such Person; stocks, bonds, mutual funds, partnership interests, notes,
debentures or other securities owned by such Person; any deposit accounts and
certificates of deposit owned by such Person; and structured notes, derivative
financial instruments and other similar instruments or contracts owned by such
Person.
“JPMEL”
means X.X. Xxxxxx Europe Limited, a company organized under the laws of England
and Wales, in its individual capacity, and its successors.
“Lenders”
means the lending institutions listed on the signature pages of this Agreement
and their respective successors and assigns.
“Lending
Installation” means, with respect to a Lender or the Agent, the office, branch,
subsidiary or affiliate of such Lender or the Agent with respect to Euro listed
on Schedule
2
or
otherwise selected by such Lender or the Agent pursuant to Section 2.9,
provided,
however,
that no
such office, branch, subsidiary or affiliate shall be located in the Republic
of
Austria.
“Letter
of Credit” of a Person means a letter of credit or similar instrument which is
issued upon the application of such Person or upon which such Person is an
account party or for which such Person is in any way liable.
“Leverage
Ratio” means, as of any date of calculation, the ratio of (i) the Parent’s
Consolidated Total Debt outstanding on such date to (ii) the Parent’s
Consolidated Adjusted EBITDA for the then most recently ended four fiscal
quarters.
“Lien”
means any lien (statutory or other), mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance or preference, priority or other
security agreement or preferential arrangement of any kind or nature whatsoever
(including, without limitation, the interest of a vendor or lessor under any
conditional sale, Capitalized Lease or other title retention
agreement).
“Loan”
means any Lender’s term loan pursuant to Section 2.1. References to “the Loans”
mean all such term loans.
“Loan
Documents” means this Agreement (including the Guaranty) and the Collateral
Documents.
“Mandatory
Costs” means, with respect to an Advance, the percentage rate per annum from
time to time determined in accordance with the applicable mandatory cost formula
set forth in Schedule 3.
“Material
Adverse Effect” means a material adverse effect on (i) the business, Property,
condition (financial or otherwise), results of operations, or prospects of
the
Parent and its Subsidiaries taken as a whole, (ii) the ability of the Borrower
or any Guarantor to perform its obligations under the Loan Documents to which
it
is a party, or (iii) the validity or enforceability of any of the Loan Documents
or the rights or remedies of the Agent or the Lenders thereunder.
“Modine
Austria” means Modine Austria GmbH, a company organized under the laws of
Austria.
“Modine
Manufacturing Credit Agreement” means the Amended and Restated Credit Agreement
dated as of October 27, 2004 by and among the lenders named therein,
JPMorgan Chase Bank, N.A., as Agent and X.X. Xxxxxx Securities Inc., as Lead
Arranger and Sole Book Runner, as amended.
“Moody’s”
means Xxxxx’x Investors Service, Inc.
“Multiemployer
Plan” means a Plan maintained pursuant to a collective bargaining agreement or
any other arrangement to which the Parent or any member of the Controlled Group
is a party to which more than one employer is obligated to make
contributions.
“Net
Xxxx-to-Market Exposure” of a Person means, as of any date of determination, the
excess (if any) of all unrealized losses over all unrealized profits of such
Person arising from Rate Management Transactions. “Unrealized losses” means the
fair market value of the cost to such Person of replacing such Rate Management
Transaction as of the date of determination (assuming the Rate Management
Transaction were to be terminated as of that date), and “unrealized profits”
means the fair market value of the gain to such Person of replacing such Rate
Management Transaction as of the date of determination (assuming such Rate
Management Transaction were to be terminated as of that date).
“Non-U.S.
Lender” is defined in Section 3.5(d).
“Obligations”
means all unpaid principal of and accrued and unpaid interest on the Loans,
all
accrued and unpaid fees and all expenses, reimbursements, indemnities and other
obligations of the Borrower to the Lenders or to any Lender, the Agent or any
indemnified party arising under the Loan Documents.
“Off-Balance
Sheet Liability” of a Person means (i) any repurchase obligation or liability of
such Person with respect to accounts or notes receivable sold by such Person,
(ii) any liability under any Sale and Leaseback Transaction which is not a
Capitalized Lease, (iii) any liability under any so-called “synthetic lease”
transaction entered into by such Person, or (iv) any obligation arising with
respect to any other transaction which is the functional equivalent of or takes
the place of borrowing but which does not constitute a liability on the balance
sheets of such Person, but excluding from this clause (iv) Operating
Leases.
“Operating
Lease” of a Person means any lease of Property (other than a Capitalized Lease)
by such Person as lessee which has an original term (including any required
renewals and any renewals effective at the option of the lessor) of one year
or
more.
“Operating
Lease Obligations” means, as at any date of determination, the amount obtained
by aggregating the present values, determined in the case of each particular
Operating Lease by applying a discount rate (which discount rate shall equal
the
discount rate which would be applied under Agreement Accounting Principles
if
such Operating Lease were a Capitalized Lease) from the date on which each
fixed
lease payment is due under such Operating Lease to such date of determination,
of all fixed lease payments due under all Operating Leases of the Parent and
its
Subsidiaries.
“Other
Taxes” is defined in Section 3.5(b).
“Parent”
means Modine Manufacturing Company, a Wisconsin corporation.
“Participants”
is defined in Section 13.1(c).
“PBGC”
means the Pension Benefit Guaranty Corporation, or any successor
thereto.
“Permitted
Encumbrances” means:
(a) Liens
for
taxes, assessments or governmental charges or levies on the Parent’s or a
Subsidiary’s Property if the same shall not at the time be delinquent or
thereafter can be paid without penalty, or are being contested in good faith
and
by appropriate proceedings and for which adequate reserves in accordance with
Agreement Accounting Principles shall have been set aside on the books of the
Parent or such Subsidiary.
(b) Liens
imposed by law, such as carriers’, warehousemen’s and mechanics’ liens and other
similar liens arising in the ordinary course of business which secure payment
of
obligations not more than 60 days past due.
(c) Liens
arising out of pledges or deposits under worker’s compensation laws,
unemployment insurance, old age pensions, or other social security or retirement
benefits, or similar legislation.
(d) Utility
easements, building restrictions and such other encumbrances or charges against
real property as are of a nature generally existing with respect to properties
of a similar character and which do not in any material way affect the
marketability of the same or interfere with the use thereof in the business
of
the Parent or its Subsidiaries.
(e) Liens
existing on the date hereof and described in Schedule
6.16.
(f) Liens
incurred in connection with any transfer of an interest in accounts or notes
receivable or related assets as part of a Qualified Receivables
Transaction.
(g) Liens
created after the date hereof by conditional sale or other title retention
agreements (including Capitalized Leases) or in connection with purchase money
Indebtedness with respect to equipment and fixtures acquired by the Parent
or
its Subsidiaries in the ordinary course of business, involving the incurrence
of
an aggregate amount of Indebtedness of no more than $10,000,000 outstanding
at
any time for all such Liens (provided that such Liens attach only to the assets
financed and such Indebtedness is incurred within 30 days following such
purchase and does not exceed 100% of the purchase price of the subject
assets).
(h) In
addition to Liens otherwise described in clauses (a) through (h) above, Liens
securing an aggregate amount of Indebtedness outstanding at any time of no
more
than $10,000,000.
“Person”
means any natural person, corporation, firm, joint venture, partnership, limited
liability company, association, enterprise, trust or other entity or
organization, or any government or political subdivision or any agency,
department or instrumentality thereof.
“Plan”
means an employee pension benefit plan which is covered by Title IV of ERISA
or
subject to the minimum funding standards under Section 412 of the Code as to
which the Parent or any member of the Controlled Group may have any
liability.
“Pricing
Schedule” means the Schedule attached hereto identified as such.
“Property”
of a Person means any and all property, whether real, personal, tangible,
intangible, or mixed, of such Person, or other assets owned, leased or operated
by such Person.
“Pro
Rata
Share” means, with respect to a Lender, a portion equal to a fraction the
numerator of which is such Lender’s Commitment (or, once the Loans have been
made, the outstanding amount of such Lender’s Loan) and the denominator of which
is the Aggregate Commitment (or, once the Loans have been made, the aggregate
outstanding amount of the Loans).
“Qualified
Receivables Transaction” means any transaction or series of transactions that
may be entered into by the Parent or any Subsidiary pursuant to which the Parent
or any Subsidiary may sell, convey or otherwise transfer to a newly-formed
Subsidiary or other special-purpose entity, or any other Person, any accounts
or
notes receivable and rights related thereto on a limited recourse basis,
provided that (i) such sale, conveyance or transfer qualifies as a sale under
Agreement Accounting Principles and (ii) the Receivables Transaction Attributed
Indebtedness incurred in such transaction or series of transactions does not
exceed fifteen percent (15%) of the total assets of the Parent and its
Subsidiaries on a consolidated basis at any one time outstanding.
“Quotation
Date” means, with respect to any Interest Period, the date that is two Business
Days prior to the first day of such Interest Period.
“Rate”
means, with respect to an Advance for the relevant Interest Period, a per annum
rate of interest equal to the sum of (i) EURIBOR, plus (ii) the Applicable
Margin, plus (iii) Mandatory Costs.
“Rate
Management Transaction” means any transaction (including an agreement with
respect thereto) now existing or hereafter entered into by the
Borrower which
is
a rate swap, basis swap, forward rate transaction, commodity swap, commodity
option, equity or equity index swap, equity or equity index option, bond option,
interest rate option, foreign exchange transaction, cap transaction, floor
transaction, collar transaction, forward transaction, currency swap transaction,
cross-currency rate swap transaction, currency option or any other similar
transaction (including any option with respect to any of these transactions)
or
any combination thereof, whether linked to one or more interest rates, foreign
currencies, commodity prices, equity prices or other financial measures.
“Rate
Management Obligations” of a Person means any and all obligations of such
Person, whether absolute or contingent and howsoever and whensoever created,
arising, evidenced or acquired (including all renewals, extensions and
modifications thereof and substitutions therefor), under (i) any and all Rate
Management Transactions, and (ii) any and all cancellations, buy backs,
reversals, terminations or assignments of any Rate Management
Transactions.
“Receivables
Transaction Attributed Indebtedness” means the amount of obligations outstanding
under the legal documents entered into as part of any Qualified Receivables
Transaction on any date of determination that would be characterized as
principal if such Qualified Receivables Transaction were structured as a secured
lending transaction rather than as a purchase.
“Receivables
Transaction Financing Cost” means such portion of the fees, service charges, and
other costs, as well as all collections or other amounts retained by purchasers
of accounts or notes receivable and rights related thereto pursuant to a
Qualified Receivables Transaction, which are in excess of amounts paid to the
Parent and its Subsidiaries under any Qualified Receivables Transaction for
the
purchase of accounts or notes receivable and rights related thereto pursuant
to
such Qualified Receivables Transaction and are the equivalent of the interest
component of the financing if the transaction were characterized as a secured
lending transaction rather than as a purchase.
“Reference
Banks” means, in relation to EURIBOR, the Agent and any other bank or financial
institution appointed as such by the Agent.
“Register”
is defined in Section 13.1(b).
“Regulation
D” means Regulation D of the Board of Governors of the Federal Reserve System
as
from time to time in effect and any successor thereto or other regulation or
official interpretation of said Board of Governors relating to reserve
requirements applicable to member banks of the Federal Reserve
System.
“Regulation
U” means Regulation U of the Board of Governors of the Federal Reserve System
as
from time to time in effect and any successor or other regulation or official
interpretation of said Board of Governors relating to the extension of credit
by
banks for the purpose of purchasing or carrying margin stocks applicable to
member banks of the Federal Reserve System.
“Related
Parties” means, with respect to any specified Person, such Person's Affiliates
and the respective directors, officers, employees, agents and advisors of such
Person and such Person's Affiliates.
“Reportable
Event” means a reportable event as defined in Section 4043 of ERISA and the
regulations issued under such section, with respect to a Plan, excluding,
however, such events as to which the PBGC has by regulation waived the
requirement of Section 4043(a) of ERISA that it be notified within 30 days
of
the occurrence of such event, provided,
however,
that a
failure to meet the minimum funding standard of Section 412 of the Code and
of
Section 302 of ERISA shall be a Reportable Event regardless of the issuance
of
any such waiver of the notice requirement in accordance with either Section
4043(a) of ERISA or Section 412(d) of the Code.
“Reports”
is defined in Section 9.6(a).
“Required
Lenders” means Lenders in the aggregate having at least fifty-one percent (51%)
of the Aggregate Commitment, or, once the Loans have been made, Lenders in
the
aggregate holding at least fifty-one percent (51%) of the aggregate outstanding
amount of the Loans; provided that, if there shall be two or more Lenders,
Required Lenders shall constitute at least two Lenders.
“Restricted
Payment” means, with respect to any Person, (i) any dividend or other
distribution on any shares of such Person’s capital stock (except dividends
payable solely in shares of its capital stock) or (ii) any Stock Purchase
Restricted Payment.
“S&P”
means Standard and Poor’s Ratings Services, a division of The McGraw Hill
Companies, Inc.
“Sale
and
Leaseback Transaction” means any sale or other transfer of Property by any
Person with the intent to lease such Property as lessee.
“Schedule”
refers to a specific schedule to this Agreement, unless another document is
specifically referenced.
“Screen
Rate” means, in relation to EURIBOR, the percentage rate per annum determined by
the Banking Federation of the European Union for the relevant interest period,
displayed on the appropriate page of the Telerate screen. If the agreed page
is
replaced or service ceases to be available, the Agent may specify another page
or service displaying the appropriate rate after consultation with the Borrower
and the Lenders.
“Section”
means a numbered section of this Agreement, unless another document is
specifically referenced.
“Secured
Obligations” means, collectively, (i) the Obligations and (ii) all Rate
Management Obligations owing to one or more Lenders.
“Selection
Notice” is defined in Section 2.5.
“Single
Employer Plan” means a Plan maintained by the Parent or any member of the
Controlled Group for employees of the Parent or any member of the Controlled
Group.
“Specified
Domestic Subsidiary” means, at any time, each Domestic Subsidiary other than
(i) Domestic Subsidiaries that do not conduct a business of any kind and do
not own or possess any assets and (ii) so long as they remain private
charitable foundations, Modine Foundation, Inc., a Wisconsin corporation, and
Modine Manufacturing Company Foundation, Inc., a Wisconsin
corporation.
“Stock
Purchase Restricted Payment” means, with respect to any Person, any net payment
declared or made on account of the purchase, redemption, retirement, acquisition
or sale of (A) any shares of such Person’s capital stock or (B) any option,
warrant or other right to acquire shares of such Person’s capital
stock.
“Subsidiary”
of a Person means (i) any corporation more than 50% of the outstanding
securities having ordinary voting power of which shall at the time be owned
or
controlled, directly or indirectly, by such Person or by one or more of its
Subsidiaries or by such Person and one or more of its Subsidiaries, or (ii)
any
partnership, limited liability company, association, joint venture or similar
business organization more than 50% of the ownership interests having ordinary
voting power of which shall at the time be so owned or controlled. Unless
otherwise expressly provided, all references herein to a “Subsidiary” shall mean
a Subsidiary of the Parent and shall include the Borrower as a Subsidiary of
the
Parent.
“Substantial
Portion” means, with respect to the Property of the Parent and its Subsidiaries,
Property which represents more than 15% of the consolidated assets of the Parent
and its Subsidiaries or property which is responsible for more than 15% of
the
consolidated net sales or of the consolidated net income of the Parent and
its
Subsidiaries, in each case, as would be shown in the consolidated financial
statements of the Parent and its Subsidiaries as at the beginning of the
twelve-month period ending with the month in which such determination is made
(or if financial statements have not been delivered hereunder for that month
which begins the twelve-month period, then the financial statements delivered
hereunder for the quarter ending immediately prior to that month).
“Taxes”
means any and all present or future taxes, duties, levies, imposts, deductions,
charges or withholdings, and any and all liabilities with respect to the
foregoing, but excluding
Excluded
Taxes and Other Taxes.
“Transferee”
is defined in Section 13.2.
“Unfunded
Liabilities” means the amount (if any) by which the present value of all vested
and unvested accrued benefits under all Single Employer Plans exceeds the fair
market value of all such Plan assets allocable to such benefits, all determined
as of the then most recent valuation date for such Plans using PBGC actuarial
assumptions for single employer plan terminations.
“Unmatured
Default” means an event which but for the lapse of time or the giving of notice,
or both, would constitute a Default.
“Wholly-Owned
Subsidiary” of a Person means (i) any Subsidiary all of the outstanding voting
securities of which shall at the time be owned or controlled, directly or
indirectly, by such Person or one or more Wholly-Owned Subsidiaries of such
Person, or by such Person and one or more Wholly-Owned Subsidiaries of such
Person, or (ii) any partnership, limited liability company, association, joint
venture or similar business organization 100% of the ownership interests having
ordinary voting power of which shall at the time be so owned or
controlled.
The
foregoing definitions shall be equally applicable to both the singular and
plural forms of the defined terms.
ARTICLE
2
THE
CREDITS
Section
2.1 Term
Loan.
Each
Lender severally agrees, on the terms and conditions set forth in this
Agreement, to make a single term loan to the Borrower on the Borrowing Date
in
an amount equal to such Lender’s Commitment. Amounts repaid on the Loans may not
be reborrowed.
Section
2.2 Required
Payments.
(a) On
or
before December 30, 2005, the Borrower will make a principal payment of EUR
30 million on the Loans.
(b) The
unpaid principal balance of the Loans and all other unpaid Obligations shall
be
paid in full by the Borrower on the Facility Maturity Date.
Section
2.3 Optional
Principal Payments.
The
Borrower may from time to time pay, subject to the payment of any funding
indemnification amounts required by Section 3.4 but without penalty or premium,
all outstanding Loans, or, in a minimum aggregate amount of EUR 5,000,000 or
any
integral multiple of EUR 1,000,000 in excess thereof, any portion of the
outstanding Loans upon written notice received by the Agent by 11:00 a.m.
(London time) three Business Days prior to the date of prepayment.
Section
2.4 Method
of Selecting Initial Interest Periods for the Loans.
The
Borrower shall select the Interest Period(s) applicable to the Loans by giving
the Agent irrevocable notice (a “Borrowing Notice”) not later than 11:00 a.m.
(London time) at least three Business Days before the Borrowing Date,
specifying:
(a) the
Borrowing Date, which shall be a Business Day not later than December 29,
2005, and
(b) the
Interest Period applicable to each Advance comprising the Loans and the amount
of each such Advance.
Section
2.5 Selection
of Interest Periods for Outstanding Advances.
Each
Advance shall continue until the end of the then applicable Interest Period
therefor, at which time: each Advance shall automatically continue with an
Interest Period of one month unless (x) such Advance is or was repaid in
accordance with terms hereof or (y) the Borrower shall have given the Agent
a
Selection Notice (as defined below) requesting that, at the end of such Interest
Period, such Advance continue for the same or another Interest
Period.
The
Borrower shall give the Agent irrevocable notice (a “Selection Notice”) of each
continuation of an Advance for a new Interest Period not later than 11:00 a.m.
(London time) at least three Business Days prior to the date of the requested
continuation, specifying:
(i) the
requested date, which shall be a Business Day, of such continuation,
and
(ii) the
duration of the Interest Period applicable thereto.
Section
2.6 Method
of Borrowing.
On
the
Borrowing Date, each Lender shall make available its Loan, not later than noon,
local time, in the city of the Agent’s Eurocurrency Payment Office, in Euro.
Unless the Agent determines that any applicable condition specified in
Article 4 has not been satisfied, the Agent will make the funds so received
from the Lenders available to the Borrower at the Agent’s aforesaid address.
Section
2.7 Interest
Rate, etc.
Each
Advance shall bear interest on the outstanding principal amount thereof from
and
including the first day of the Interest Period applicable thereto to (but not
including) the last day of such Interest Period at the Rate determined by the
Agent as applicable to such Advance based upon the Borrower’s selections under
Sections 2.4 and 2.5 and otherwise in accordance with the terms hereof. No
Interest Period may end after the Facility Maturity Date.
Section
2.8 Rates
Applicable After Default.
Notwithstanding
anything to the contrary contained in Sections 2.4, 2.5 or 2.7, during the
continuance of a Default or Unmatured Default the Required Lenders may, at
their
option, by notice to the Borrower (which notice may be revoked at the option
of
the Required Lenders notwithstanding any provision of Section 8.2 requiring
unanimous consent of the Lenders to changes in interest rates), declare that
no
Advance may be continued for an Interest Period in excess of one month. During
the continuance of a Default the Required Lenders may, at their option, by
notice to the Borrower (which notice may be revoked at the option of the
Required Lenders notwithstanding any provision of Section 8.2 requiring
unanimous consent of the Lenders to changes in interest rates), declare that
each Advance shall bear interest for the remainder of the applicable Interest
Period at the rate otherwise applicable to such Interest Period plus 2% per
annum, provided
that,
during the continuance of a Default under Section 7.7 or 7.8, the interest
rates
set forth in clauses (i) and (ii) above shall be applicable to all Loans without
any election or action on the part of the Agent or any Lender.
Section
2.9 Method
of Payment.
Each
Advance shall be repaid and each payment of interest thereon shall be paid
in
Euro. All payments of the Obligations hereunder shall be made, without setoff,
deduction, or counterclaim, in immediately available funds to the Agent at
(except as set forth in the next sentence) the Agent’s address specified
pursuant to Article 14, or at any other Lending Installation of the Agent
specified in writing by the Agent to the Borrower, shall be initiated by 12:00
noon (local time for such address or Lending Installation) on the date when
due
and shall (except as otherwise specifically required hereunder) be applied
ratably by the Agent among the Lenders. All payments to be made by the Borrower
hereunder shall be made in Euro on the date due in such funds as may then be
customary for the settlement of international transactions in Euro for the
account of the Agent, at its Eurocurrency Payment Office for such currency
and
shall be applied ratably by the Agent among the Lenders. Each payment delivered
to the Agent for the account of any Lender shall be delivered promptly by the
Agent to such Lender in the same type of funds that the Agent received at the
address of the Agent’s Eurocurrency Payment Office. The Agent is hereby
authorized to charge any account of the Borrower maintained with JPMEL or any
of
its Affiliates for each payment of principal, interest and fees as it becomes
due hereunder.
Section
2.10 Noteless
Agreement; Evidence of Indebtedness.
(a) Each
Lender shall maintain in accordance with its usual practice an account or
accounts evidencing the indebtedness of the Borrower to such Lender resulting
from each Loan made by such Lender from time to time, including the amounts
of
principal and interest payable and paid to such Lender from time to time
hereunder.
(b) The
Agent
shall also maintain accounts in which it will record (i) the amount of each
Loan
made hereunder and the Interest Period with respect thereto, (ii) the amount
of
any principal or interest due and payable or to become due and payable from
the
Borrower to each Lender hereunder, and (iii) the amount of any sum received
by
the Agent hereunder from the Borrower and each Lender’s share
thereof.
(c) The
entries maintained in the accounts maintained pursuant to paragraphs (a) and
(b)
above shall be prima facie
evidence
of the existence and amounts of the Obligations therein recorded; provided,
however,
that
the failure of the Agent or any Lender to maintain such accounts or any error
therein shall not in any manner affect the obligation of the Borrower to repay
the Obligations in accordance with their terms.
Section
2.11 Telephonic
Notices.
The
Borrower hereby authorizes the Lenders and the Agent to extend or continue
Advances and to transfer funds based on telephonic notices made by any person
or
persons the Agent or any Lender in good faith believes to be acting on behalf
of
the Borrower, it being understood that the foregoing authorization is
specifically intended to allow the Borrowing Notice and Selection Notices to
be
given telephonically. The Borrower agrees to deliver promptly to the Agent
a
written confirmation, if such confirmation is requested by the Agent or any
Lender, of each telephonic notice signed by an Authorized Officer. If the
written confirmation differs in any material respect from the action taken
by
the Agent and the Lenders, the records of the Agent and the Lenders shall govern
absent manifest error.
Section
2.12 Interest
Payment Dates; Interest Basis.
Interest
accrued on each Advance shall be payable on the last day of its applicable
Interest Period, on any date on which the Advance is prepaid, whether by
acceleration or otherwise, and at maturity. Interest accrued on each Advance
having an Interest Period longer than three months shall also be payable on
the
last day of each three-month interval during such Interest Period. Interest
on
Advances shall be calculated for actual days elapsed on the basis of a 360-day
year. Interest shall be payable for the day an Advance is made but not for
the
day of any payment on the amount paid if payment is initiated prior to 12:00
noon (local time of the applicable Lending Installation) at the place of
payment. If any payment of principal of or interest on an Advance shall become
due on a day which is not a Business Day, such payment shall be made on the
next
succeeding Business Day and, in the case of a principal payment, such extension
of time shall be included in computing interest in connection with such
payment.
Section
2.13 Notification
of Advances, Interest Rates and Prepayments.
Promptly
after receipt thereof, the Agent will notify each Lender of the contents of
the
Borrowing Notice, each Selection Notice, and each repayment notice received
by
it hereunder. The Agent will notify each Lender of the interest rate applicable
to each Advance promptly upon determination of such interest rate.
Section
2.14 Lending
Installations.
Each
Lender will book its Loans at the appropriate Lending Installation listed on
Schedule
2
or such
other Lending Installation designated by such Lender in accordance with the
final sentence of this Section 2.20. All terms of this Agreement shall apply
to
any such Lending Installation and the Loans shall be deemed held by each Lender
for the benefit of any such Lending Installation. Each Lender may, by written
notice to the Agent and the Borrower in accordance with Article 13, designate
replacement or additional Lending Installations through which Loans will be
made
by it and for whose account Loan payments are to be made.
Section
2.15 Non-Receipt
of Funds by the Agent.
Unless
the Borrower or a Lender, as the case may be, notifies the Agent prior to the
date on which it is scheduled to make payment to the Agent of (i) in the case
of
a Lender, the proceeds of a Loan or (ii) in the case of the Borrower, a payment
of principal, interest or fees to the Agent for the account of the Lenders,
that
it does not intend to make such payment, the Agent may assume that such payment
has been made. The Agent may, but shall not be obligated to, make the amount
of
such payment available to the intended recipient in reliance upon such
assumption. If such Lender or the Borrower, as the case may be, has not in
fact
made such payment to the Agent, the recipient of such payment shall, on demand
by the Agent, repay to the Agent the amount so made available together with
interest thereon in respect of each day during the period commencing on the
date
such amount was so made available by the Agent until the date the Agent recovers
such amount at a rate per annum equal to the interest rate applicable to the
relevant Loan or such higher rate as may be quoted by the Agent to such Lender
or the Borrower, as the case may be, as reflecting the Agent’s cost of
funds.
Section
2.16 Judgment
Currency.
If
for
the purposes of obtaining judgment in any court it is necessary to convert
a sum
due from the Borrower or any Guarantor hereunder in the currency expressed
to be
payable herein (the “specified currency”) into another currency, the parties
hereto agree, to the fullest extent that they may effectively do so, that the
rate of exchange used shall be that at which in accordance with normal banking
procedures the Agent could purchase the specified currency with such other
currency at the Agent’s main London office on the Business Day preceding that on
which final, non-appealable judgment is given. The obligations of the Borrower
in respect of any sum due to any Lender or the Agent hereunder shall,
notwithstanding any judgment in a currency other than the specified currency,
be
discharged only to the extent that on the Business Day following receipt by
such
Lender or the Agent (as the case may be) of any sum adjudged to be so due in
such other currency such Lender or the Agent (as the case may be) may in
accordance with normal, reasonable banking procedures purchase the specified
currency with such other currency. If the amount of the specified currency
so
purchased is less than the sum originally due to such Lender or the Agent,
as
the case may be, in the specified currency, the Borrower agrees, to the fullest
extent that it may effectively do so, as a separate obligation and
notwithstanding any such judgment, to indemnify such Lender or the Agent, as
the
case may be, against such loss, and if the amount of the specified currency
so
purchased exceeds (a) the sum originally due to any Lender or the Agent, as
the
case may be, in the specified currency and (b) any amounts shared with other
Lenders as a result of allocations of such excess as a disproportionate payment
to such Lender under Section 11.2, such Lender or the Agent, as the case may
be,
agrees to remit such excess to the Borrower.
ARTICLE
3
YIELD
PROTECTION; TAXES
Section
3.1 Yield
Protection.
(a) If,
on or
after the date of this Agreement, the adoption of any law or any governmental
or
quasi-governmental rule, regulation, policy, guideline or directive (whether
or
not having the force of law), or any change in the interpretation or
administration thereof by any governmental or quasi-governmental authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender or applicable Lending
Installation with any request or directive (whether or not having the force
of
law) of any such authority, central bank or comparable agency:
(i) subjects
any Lender or any applicable Lending Installation to any Taxes, or changes
the
basis of taxation of payments (other than with respect to Excluded Taxes) to
any
Lender in respect of its Advances or participations therein, or
(ii) imposes
or increases or deems applicable any reserve, assessment, insurance charge,
special deposit or similar requirement against assets of, deposits with or
for
the account of, or credit extended by, any Lender or any applicable Lending
Installation (other than reserves and assessments taken into account in
determining the interest rate applicable to Advances), or
(iii) imposes
any other condition the result of which is to increase the cost to any Lender
or
any applicable Lending Installation of making, funding or maintaining its
Advances, or reduces any amount receivable by any Lender or any applicable
Lending Installation in connection with its Advances, or requires any Lender
or
any applicable Lending Installation to make any payment calculated by reference
to the amount of Advances, by an amount deemed material by such
Lender,
and
the
result of any of the foregoing is to increase the cost to such Lender or
applicable Lending Installation, as the case may be, of making or maintaining
its Advances or Commitment, or to reduce the return received by such Lender
or
applicable Lending Installation, as the case may be, in connection with such
Advances or Commitment, then, within 15 days of demand by such Lender, the
Borrower shall pay such Lender, such additional amount or amounts as will
compensate such Lender for such increased cost or reduction in amount
received.
(b) Non-U.S.
Reserve Costs or Fees.
If any
law or any governmental or quasi-governmental rule, regulation, policy,
guideline or directive of any jurisdiction outside of the United States of
America or any subdivision thereof (whether or not having the force of law),
imposes or deems applicable any reserve requirement against or fee with respect
to assets of, deposits with or for the account of, or credit extended by, any
Lender or any applicable Lending Installation, and the result of the foregoing
is to increase the cost to such Lender or applicable Lending Installation of
making or maintaining its Advances to, or of making or maintaining its
Commitment to, the Borrower or to reduce the return received by such Lender
or
applicable Lending Installation in connection with such Advances or Commitment,
then, within 15 days of demand by such Lender, the Borrower shall pay such
Lender, such additional amount or amounts as will compensate it for such
increased cost or reduction in amount received.
Section
3.2 Changes
in Capital Adequacy Regulations.
If
a
Lender determines the amount of capital required or expected to be maintained
by
such Lender, any Lending Installation of such Lender or any corporation
controlling such Lender is increased as a result of a Change, then, within
15
days of demand by such Lender, the Borrower shall pay such Lender the amount
necessary to compensate for any shortfall in the rate of return on the portion
of such increased capital which such Lender determines is attributable to this
Agreement, the outstanding amount of its Loan or its Commitment to make a Loan,
as the case may be, hereunder (after taking into account such Lender’s policies
as to capital adequacy). “Change” means (i) any change after the date of this
Agreement in the Risk-Based Capital Guidelines or (ii) any adoption of or change
in any other law, governmental or quasi-governmental rule, regulation, policy,
guideline, interpretation, or directive (whether or not having the force of
law)
after the date of this Agreement which affects the amount of capital required
or
expected to be maintained by any Lender or any Lending Installation or any
corporation controlling any Lender. “Risk-Based Capital Guidelines” means (i)
the risk-based capital guidelines in effect in the United States on the date
of
this Agreement, including transition rules, and (ii) the corresponding capital
regulations promulgated by regulatory authorities outside the United States
implementing the July 1988 report of the Basle Committee on Banking Regulation
and Supervisory Practices Entitled “International Convergence of Capital
Measurements and Capital Standards,” including transition rules, and any
amendments to such regulations adopted prior to the date of this
Agreement.
Section
3.3 Availability
of Types of Advances.
If
any
Lender determines that maintenance of its Loan at a suitable Lending
Installation would violate any applicable law, rule, regulation, or directive,
whether or not having the force of law, or if the Required Lenders determine
that (i) deposits of a type and maturity appropriate to match fund Advances
are
not available or (ii) the interest rate applicable to the Advances does not
accurately reflect the cost of making or maintaining the Advances, then the
Agent shall suspend the availability of Advances of the affected type or
maturity and require any affected Advances to be repaid or to be converted
to
Advances of a different type or maturity, subject to the payment of any funding
indemnification amounts required by Section 3.4.
Section
3.4 Funding
Indemnification.
If
any
payment of an Advance occurs on a date which is not the last day of the
applicable Interest Period, whether because of acceleration, prepayment or
otherwise, or an Advance is not made on the date specified by the Borrower
for
any reason other than default by the Lenders, the Borrower will indemnify each
Lender for any loss or cost incurred by it resulting therefrom, including,
without limitation, any loss or cost in liquidating or employing deposits
acquired to fund or maintain such Advance.
Section
3.5 Taxes.
(a) All
payments by any Credit Party to or for the account of any Lender or the Agent
hereunder shall be made free and clear of and without deduction for any and
all
Taxes. If the any Credit Party shall be required by law to deduct any Taxes
from
or in respect of any sum payable hereunder to any Lender or the Agent, (i)
the
sum payable shall be increased as necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section 3.5) such Lender or the Agent (as the case may be) receives an
amount equal to the sum it would have received had no such deductions been
made,
(ii) the applicable Credit Party shall make such deductions, (iii) the
applicable Credit Party shall pay the full amount deducted to the relevant
authority in accordance with applicable law and (iv) the applicable Credit
Party
shall furnish to the Agent the original copy of a receipt evidencing payment
thereof within 30 days after such payment is made.
(b) In
addition, each Credit Party hereby agrees, jointly and severally, to pay any
present or future stamp or documentary taxes and any other excise or property
taxes, charges or similar levies which arise from any payment made hereunder
or
from the execution or delivery of, or otherwise with respect to, this Agreement
(“Other Taxes”).
(c) Each
Credit Party hereby agrees, jointly and severally, to indemnify the Agent and
each Lender for the full amount of Taxes or Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed on amounts payable under this
Section 3.5) paid by the Agent or such Lender as a result of its Commitment,
the
Loan made by it hereunder, or otherwise in connection with its participation
in
this Agreement and any liability (including penalties, interest and expenses)
arising therefrom or with respect thereto. Payments due under this
indemnification shall be made within 30 days of the date the Agent or such
Lender makes demand therefor pursuant to Section 3.6.
(d) Each
Lender that is not incorporated under the laws of the United States of America
or a state thereof (each a “Non-U.S. Lender”) agrees that it will, not more than
ten Business Days after the date of this Agreement, (i) deliver to the Agent
two
duly completed copies of United States Internal Revenue Service Form W-8BEN
or
W-8ECI, certifying in either case that such Lender is entitled to receive
payments under this Agreement without deduction or withholding of any United
States federal income taxes, and (ii) deliver to the Agent a United States
Internal Revenue Form W-8 or W-9, as the case may be, and certify that it is
entitled to an exemption from United States backup withholding tax. Each
Non-U.S. Lender further undertakes to deliver to each of the Borrower and the
Agent (x) renewals or additional copies of such form (or any successor form)
on
or before the date that such form expires or becomes obsolete, and (y) after
the
occurrence of any event requiring a change in the most recent forms so delivered
by it, such additional forms or amendments thereto as may be reasonably
requested by the Borrower or the Agent. All forms or amendments described in
the
preceding sentence shall certify that such Lender is entitled to receive
payments under this Agreement without deduction or withholding of any United
States federal income taxes, unless
an event
(including without limitation any change in treaty, law or regulation) has
occurred prior to the date on which any such delivery would otherwise be
required which renders all such forms inapplicable or which would prevent such
Lender from duly completing and delivering any such form or amendment with
respect to it and such Lender advises the Borrower and the Agent that it is
not
capable of receiving payments without any deduction or withholding of United
States federal income tax.
(e) For
any
period during which a Non-U.S. Lender has failed to provide the Borrower with
an
appropriate form pursuant to clause (d), above (unless such failure is due
to a
change in treaty, law or regulation, or any change in the interpretation or
administration thereof by any governmental authority, occurring subsequent
to
the date on which a form originally was required to be provided), such Non-U.S.
Lender shall not be entitled to indemnification under this Section 3.5 with
respect to Taxes imposed by the United States; provided
that,
should a Non-U.S. Lender which is otherwise exempt from or subject to a reduced
rate of withholding tax become subject to Taxes because of its failure to
deliver a form required under clause (d), above, the Borrower shall take such
steps as such Non-U.S. Lender shall reasonably request to assist such Non-U.S.
Lender to recover such Taxes.
(f) Any
Lender that is entitled to an exemption from or reduction of withholding tax
with respect to payments under this Agreement pursuant to the law of any
relevant jurisdiction or any treaty shall deliver to the Borrower (with a copy
to the Agent), at the time or times prescribed by applicable law, such properly
completed and executed documentation prescribed by applicable law as will permit
such payments to be made without withholding or at a reduced rate.
(g) If
the
U.S. Internal Revenue Service or any other governmental authority of the United
States or any other country or any political subdivision thereof asserts a
claim
that the Agent did not properly withhold tax from amounts paid to or for the
account of any Lender (because the appropriate form was not delivered or
properly completed, because such Lender failed to notify the Agent of a change
in circumstances which rendered its exemption from withholding ineffective,
or
for any other reason), such Lender shall indemnify the Agent fully for all
amounts paid, directly or indirectly, by the Agent as tax, withholding therefor,
or otherwise, including penalties and interest, and including taxes imposed
by
any jurisdiction on amounts payable to the Agent under this subsection, together
with all costs and expenses related thereto (including attorneys fees and time
charges of attorneys for the Agent, which attorneys may be employees of the
Agent). The obligations of the Lenders under this Section 3.5(g) shall survive
the payment of the Obligations and termination of this Agreement.
Section
3.6 Lender
Statements; Survival of Indemnity.
To
the
extent reasonably possible, each Lender shall designate an alternate Lending
Installation with respect to its Advances to reduce any liability of the
Borrower to such Lender under Sections 3.1, 3.2 and 3.5 or to avoid the
unavailability of Advances under Section 3.3, so long as such designation is
not, in the judgment of such Lender, disadvantageous to such Lender. Each Lender
shall deliver a written statement of such Lender to the Borrower (with a copy
to
the Agent) as to the amount due, if any, under Section 3.1, 3.2, 3.4 or 3.5.
Such written statement shall set forth in reasonable detail the calculations
upon which such Lender determined such amount and shall be final, conclusive
and
binding on the Borrower in the absence of manifest error. Determination of
amounts payable under such Sections in connection with an Advance shall be
calculated as though each Lender funded its Advance through the purchase of
a
deposit of the type, currency and maturity corresponding to the deposit used
as
a reference in determining the Advance applicable to such Loan, whether in
fact
that is the case or not. Unless otherwise provided herein, the amount specified
in the written statement of any Lender shall be payable on demand after receipt
by the Borrower of such written statement. The obligations of the Borrower
and
the other Credit Parties under Sections 3.1, 3.2, 3.4 and 3.5 shall survive
payment of the Obligations and termination of this Agreement.
ARTICLE
4
CONDITIONS
PRECEDENT
Section
4.1 Conditions
to the Effective Date.
The
Effective Date shall not occur unless:
(a) the
Borrower has furnished to the Agent the following, each in form and substance
satisfactory to the Lenders and with sufficient copies for the
Lenders:
(i) A
certified copy of the current articles of association of the
Borrower.
(ii) Copies
of
resolutions of the shareholders meeting and of the management board of the
Borrower authorizing the execution of the Loan Documents to which the Borrower
is a party.
(iii) An
officer's certificate executed by all members of the management board of the
Borrower in certified form (A) confirming the up-to-date character of the
documents listed under clauses (i) and (ii) above of this Section 4.1(a) and
(B)
which shall also identify by name and title and bear the signatures of the
Authorized Officers and any other officers of the Borrower authorized to sign
the Loan Documents to which the Borrower is a party, upon which certificate
the
Agent and the Lenders shall be entitled to rely until informed of any change
in
writing by the Borrower.
(iv) Copies
of
the articles or certificate of incorporation of each Guarantor, together with
all amendments, and a certificate of status or good standing (as applicable),
certified by the appropriate governmental officer in its jurisdiction of
incorporation; provided,
that
the certificates of status or good standing for Thermacore International, Inc.,
a Pennsylvania corporation, Thermacore, Inc., a Pennsylvania corporation, and
Airedale North America, Inc., a Pennsylvania corporation, may be later delivered
pursuant to Section 6.22.
(v) Copies,
certified by the Secretary or Assistant Secretary of each Guarantor, of its
by-laws and of its Board of Directors’ resolutions and of resolutions or actions
of any other body authorizing the execution of the Loan Documents to which
such
Guarantor is a party.
(vi) An
incumbency certificate, executed by the Secretary or Assistant Secretary of
each
Guarantor, which shall identify by name and title and bear the signatures of
the
Authorized Officers and any other officers of such Guarantor authorized to
sign
the Loan Documents to which such Guarantor is a party, upon which certificate
the Agent and the Lenders shall be entitled to rely until informed of any change
in writing by such Guarantor.
(vii) Written
opinions of the Borrower’s and the Guarantors’ counsel, addressed to the Agent
and the Lenders in substantially the form of Exhibits
A-1
and
A-2.
(viii) Copies,
certified by an Authorized Officer of the Borrower, of the substantially final
forms of share purchase and contribution agreements and all related
documentation (including the entire final documentation on the capital increase
to be implemented at the level of the Borrower and to be filed with the
appropriate commercial register) to be entered into by and among the Borrower,
the Parent and Modine, Inc. pursuant to which the purchase by and contribution
to the Borrower of all the outstanding common equity of Modine Austria will
be
consummated and the corporate ownership structure as described in Schedule
5.9
hereto
will be effected (other than “step 3” described in Schedule
6.5B)
(the
“Share
Purchase and Contribution Documentation”).
(ix) Copies,
certified by an Authorized Officer of the Parent, of (i) reasonably satisfactory
audited consolidated financial statements of the Parent for the two most recent
fiscal years ended prior to the Borrowing Date as to which such financial
statements are available and (ii) reasonably satisfactory unaudited interim
consolidated financial statements of the Parent for each quarterly period ended
subsequent to the date of the latest financial statements delivered pursuant
to
clause (i) of this paragraph as to which such financial statements are
available.
(x) Such
other documents as any Lender or its counsel may have reasonably requested;
and
(b) the
Agent
shall be satisfied:
(i) That
the
structure and terms of the Loans do not present any withholding tax or other
tax
issues, regulatory issues or other legal issues relating to the cross-border
funding and repayment of the Loans.
(ii) That
the
Loan Documents are in compliance with all applicable Austrian laws.
(iii) As
to all
other legal matters incident to the making of the Loans.
Section
4.2 Conditions
Precedent to Borrowing.
The
Lenders shall not be required to make any Loans unless the Effective Date has
occurred and each of the following is true on the Borrowing Date:
(a) There
exists no Default or Unmatured Default and the Agent has received a certificate
to that effect, signed by an Authorized Officer of the Borrower.
(b) The
representations and warranties contained in Article 5 are true and correct
as of
the Borrowing Date and the Agent has received a certificate to that effect,
signed by an Authorized Officer of the Borrower.
(c) The
Lenders, the Agent and the Arranger have been reimbursed for all out-of-pocket
expenses (including reasonable attorneys’ fees) for which invoices have been
presented, on or before the Borrowing Date.
(d) All
governmental and third party approvals necessary or, in the reasonable
discretion of the Agent, advisable in connection with the financing contemplated
hereby or the acquisition of all the common equity of Modine Austria shall
have
been obtained and be in full force and effect.
ARTICLE
5
REPRESENTATIONS
AND WARRANTIES
Each
of
the Borrower and the Parent represents and warrants jointly and severally to
the
Lenders that:
Section
5.1 Corporate
Existence and Power.
The
Parent is a corporation and the Borrower is a limited liability company. Each
of
the Parent and the Borrower is duly organized and validly existing under the
laws of the jurisdiction of its incorporation or organization, is duly qualified
to transact business in every jurisdiction where, by the nature of its business,
such qualification is necessary, and has all corporate or organizational powers
and all governmental licenses, authorizations, consents and approvals required
to carry on its business as now conducted.
Section
5.2 Authorization.
The
execution, delivery and performance by the Borrower and the Guarantors of the
Loan Documents to which they are party (a) are within the Borrower’s and the
Guarantors’ organizational or corporate powers and (b) have been duly authorized
by all necessary organizational or corporate action.
Section
5.3 Binding
Effect.
This
Agreement constitutes a valid and binding agreement of the Borrower and the
Guarantors enforceable in accordance with its terms, and each other Loan
Document, when executed and delivered in accordance with this Agreement, will
constitute a valid and binding obligation of each of the Borrower and the
Guarantors that is a party to such Loan Document, enforceable in accordance
with
such Loan Document’s terms, provided
that the
enforceability hereof and thereof is subject in each case to general principles
of equity and to bankruptcy, insolvency and similar laws affecting the
enforcement of creditors’ rights generally.
Section
5.4 No
Conflict; Government Consent.
Neither
the execution and delivery by each of the Borrower and the Guarantors of the
Loan Documents to which it is a party, nor the consummation of the transactions
therein contemplated, nor compliance with the provisions thereof will violate
(a) any law, rule, regulation, order, writ, judgment, injunction, decree or
award binding on the Parent, the Borrower or any Subsidiary or (b) the Parent’s,
the Borrower’s or any Subsidiary’s articles or certificate of incorporation,
partnership agreement, certificate of partnership, articles or certificate
of
organization, by-laws, or operating or other management agreement, as the case
may be, or (c) the provisions of any indenture, instrument or agreement to
which
the Parent, the Borrower or any Subsidiary is a party or is subject, or by
which
it, or its Property, is bound, or conflict with or constitute a default
thereunder, or result in, or require, the creation or imposition of any Lien
in,
of or on the Property of the Parent, the Borrower or a Subsidiary pursuant
to
the terms of any such indenture, instrument or agreement. No order, consent,
adjudication, approval, license, authorization, or validation of, or filing,
recording or registration with, or exemption by, or other action in respect
of
any governmental or public body or authority, or any subdivision thereof, which
has not been obtained by the Parent, the Borrower or any Subsidiary, is required
to be obtained by the Parent, the Borrower or any Subsidiary in connection
with
the execution and delivery of the Loan Documents, the borrowings under this
Agreement, the payment and performance by the Borrower and the Guarantors of
the
Obligations or the legality, validity, binding effect or enforceability of
any
of the Loan Documents.
Section
5.5 Financial
Statements; Material Adverse Change.
(a) The
consolidated financial statements of the Parent and its Subsidiaries as of
March 31, 2005 reported on by PricewaterhouseCoopers LLP and the unaudited
consolidated financial statements of the Parent and its Subsidiaries as of
September 26, 2005, each heretofore delivered to the Lenders, were prepared
in accordance with generally accepted accounting principles in effect on the
date such statements were prepared and fairly present the consolidated financial
condition and operations of the Parent and its Subsidiaries at such date and
the
consolidated results of their operations for the period then ended.
(b) Since
March 31, 2005, there has been no change in the business, Property, prospects
condition (financial or otherwise) or results of operations of the Parent,
the
Borrower and the Subsidiaries that could reasonably be expected to have a
Material Adverse Effect.
Section
5.6 Litigation
and Contingent Obligations.
Except
as
disclosed in Schedule
5.6,
there
is no litigation, arbitration, governmental investigation, proceeding or inquiry
pending, or to the knowledge of any of their officers, threatened against or
affecting the Parent, the Borrower or any Subsidiary which could reasonably
be
expected to have a Material Adverse Effect or which seeks to prevent, enjoin
or
delay the making of the Loans. Other than any liability incident to any
litigation, arbitration or proceeding which could not reasonably be expected
to
have a Material Adverse Effect, neither the Parent nor the Borrower has any
material Contingent Obligations not provided for or disclosed in the financial
statements referred to in Section 5.5.
Section
5.7 Compliance
with ERISA.
(a) The
Parent and each member of the Controlled Group (excluding Foreign Subsidiaries
of the Parent) have fulfilled their obligations under the minimum funding
standards of ERISA and the Code with respect to each Plan and are in compliance
in all material respects with the presently applicable provisions of ERISA
and
the Code, and have not incurred any liability to the PBGC or a Plan under Title
IV of ERISA.
(b) Each
Plan
complies in all material respects with all applicable requirements of law and
regulations, no Reportable Event has occurred with respect to any Plan, neither
the Parent nor any other member of the Controlled Group has withdrawn from
any
Plan or initiated steps to do so, and no steps have been taken to reorganize
or
terminate any Plan.
(c) Neither
the Parent nor any member of the Controlled Group (excluding Foreign
Subsidiaries of the Parent) is or ever has been obligated to contribute to
any
Multiemployer Plan.
(d) Each
Foreign Subsidiary of the Parent (including the Borrower): (i) has fulfilled
its
funding obligations under any and all applicable laws, regulations and similar
requirements of governmental authorities with respect to each employee benefit
or pension plan; (ii) is in compliance in all material respects with the
presently applicable provisions of such laws, regulations and requirements;
and
(iii) except as disclosed in the financial statements referred to in Section
5.5, has not incurred any liability, indebtedness or obligation under or in
connection with any employee benefit or pension plan.
Section
5.8 Taxes.
There
have been filed on behalf of the Parent, the Borrower and the Subsidiaries
all
federal, state and local income, excise, property and other tax returns which
are required to be filed by them and all taxes due pursuant to such returns
or
pursuant to any assessment received by or on behalf of the Parent, the Borrower
or any Subsidiary have been paid, except such taxes, if any, as are being
contested in good faith and as to which adequate reserves have been provided
in
accordance with Agreement Accounting Principles and as to which no Lien exists.
The charges, accruals and reserves on the books of the Parent, the Borrower
and
the Subsidiaries in respect of taxes or other governmental charges are adequate.
United States income tax returns of the Parent, the Borrower and the
Subsidiaries have been audited by the Internal Revenue Service through the
fiscal year ended March 31, 1996. No tax liens have been filed and no claims
are
being asserted with respect to any such taxes.
Section
5.9 Subsidiaries.
Schedule
5.9
hereto
contains an accurate list of all Subsidiaries of the Parent as of the date
of
this Agreement and after giving effect to the transactions contemplated hereby,
setting forth their respective jurisdictions and forms of organization and
the
percentage of their respective capital stock or other ownership interests owned
by the Parent, the Borrower or other Subsidiaries. All of the issued and
outstanding shares of capital stock or other ownership interests of such
Subsidiaries have been (to the extent such concepts are relevant with respect
to
such ownership interests) duly authorized and issued and are fully paid and
non-assessable, except, with respect to Subsidiaries organized under Wisconsin
Law, to the extent that personal liability may be imposed upon the shareholders
pursuant to Section 180.0622(2)(b) of the Wisconsin Business Corporation Law,
as
judicially interpreted. Each of the Parent’s Subsidiaries is a corporation or
other organization duly organized, validly existing and (to the extent such
concept applies to such entity) in good standing under the laws of its
jurisdiction of incorporation or organization, is duly qualified to transact
business in every jurisdiction where, by the nature of its business, such
qualification is necessary, and has all corporate or organization powers and
all
governmental licenses, authorizations, consents and approvals required to carry
on its business as now conducted.
Section
5.10 Not
an
Investment Company.
None
of
the Parent, the Borrower nor any Subsidiary is an “investment company” or a
company “controlled” by an “investment company”, within the meaning of the
Investment Company Act of 1940, as amended.
Section
5.11 Ownership
of Property; Liens.
Each
of
the Parent, the Borrower and the Subsidiaries has good title, free of all Liens
other than Permitted Encumbrances, to all of the Property and assets reflected
as owned by the Parent, the Borrower and the Subsidiaries in the Parent’s most
recent consolidated financial statements provided to the Agent, and such
Property and assets are sufficient for the conduct of its business.
Section
5.12 Material
Agreements; Default.
None
of
the Parent, the Borrower nor any of the Subsidiaries is a party to any agreement
or instrument or subject to any charter or other corporate restriction which
could reasonably be expected to have a Material Adverse Effect. None of the
Parent, the Borrower nor any of the Subsidiaries is in default under or with
respect to any agreement, instrument or undertaking to which it is a party
or by
which it or any of its Property is bound (x) which default could reasonably
be
expected to have a Material Adverse Effect or (y) which agreement, instrument
or
undertaking evidences or governs Indebtedness. No Default or Unmatured Default
has occurred and is continuing.
Section
5.13 Full
Disclosure.
No
information, exhibit or report furnished by the Parent, the Borrower or any
of
the Subsidiaries to the Agent or to any Lender in connection with the
negotiation of, or compliance with, the Loan Documents contained any material
misstatement of fact or omitted to state a material fact or any fact necessary
to make the statements contained therein not misleading. The Parent and the
Borrower have disclosed to the Lenders in writing any and all facts which may
(to the extent the Parent or the Borrower can now reasonably foresee) have
a
Material Adverse Effect.
Section
5.14 Environmental
Matters.
In
the
ordinary course of its business, the officers of the Parent and the Borrower
consider the effect of Environmental Laws on the business of the Parent, the
Borrower and the Subsidiaries, in the course of which they identify and evaluate
potential risks and liabilities accruing to the Parent or the Borrower due
to
Environmental Laws. On the basis of this consideration, the Parent and the
Borrower have concluded that Environmental Laws cannot reasonably be expected
to
have a Material Adverse Effect. None of the Parent, the Borrower nor any
Subsidiary has received any notice to the effect that its operations are not
in
material compliance with any of the requirements of applicable Environmental
Laws or are the subject of any federal or state investigation evaluating whether
any remedial action is needed to respond to a release of any toxic or hazardous
waste or substance into the environment, which non-compliance or remedial action
could reasonably be expected to have a Material Adverse Effect. Except as
disclosed in Schedule
5.14(a)
hereto
and by this reference made a part hereof: none of the Parent, the Borrower
nor
any Subsidiary has been designated as a potentially responsible party under
CERCLA or any other Environmental Law, and none of the Parent’s or the
Borrower’s Property has been identified on any current or proposed (i) National
Priorities List under 40 C.F.R. § 300, (ii) CERCLIS list or (iii) any list
arising from a state statute similar to CERCLA. No Hazardous Materials have
been
or are being used, produced, manufactured, processed, generated, stored,
disposed of, managed at, or shipped or transported to or from any Property
of
the Parent, the Borrower or any Subsidiary or are otherwise present at, on,
in
or under any such Property, or, to the best of the knowledge of the Parent
and
the Borrower, at or from any adjacent site or facility, except for Hazardous
Materials disclosed on Schedule
5.14(b)
hereto
and by this reference made a part hereof, and such Hazardous Materials are
produced, manufactured, processed, generated, stored, disposed of, and managed
in the ordinary course of business in compliance with all applicable
Environmental Laws.
Section
5.15 Insolvency.
After
giving effect to the execution and delivery of the Loan Documents and the making
of the Loans under this Agreement, none of the Parent, the Borrower nor any
Subsidiary will be “insolvent,” within the meaning of such terms as defined in §
101 of Title 11 of the United States Code or Section 2 of the Uniform Fraudulent
Transfer Act, or any other applicable state law pertaining to fraudulent
transfers or conveyances, as each may be amended from time to time, or be unable
to pay its debts generally as such debts become due, or have an unreasonably
small capital to engage in any business or transaction whether current or
contemplated.
Section
5.16 Compliance
with Laws.
The
Parent, the Borrower and each of the Subsidiaries and each member of the
Controlled Group has complied with all applicable laws (including but not
limited to ERISA), regulations, rules, orders and restrictions of any domestic
or foreign government or any instrumentality or agency thereof having
jurisdiction over the conduct of their respective businesses or the ownership
of
their respective Property (including but not limited to PBGC), except where
any
failure to comply with any of the foregoing could not, alone or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
Section
5.17 Regulation
U.
Margin
stock (as defined in Regulation U) constitutes less than 25% of the value of
those assets of the Parent, the Borrower and its Subsidiaries which are subject
to any limitation on sale, pledge, or other restriction hereunder.
Section
5.18 Public
Utility Holding Company Act.
None
of
the Parent, the Borrower nor any Subsidiary is a “holding company” or a
“subsidiary company” of a “holding company”, or an “affiliate” of a “holding
company” or of a “subsidiary company” of a “holding company”, within the meaning
of the Public Utility Holding Company Act of 1935, as amended.
Section
5.19 Post-Retirement
Benefits.
The
present value of the expected cost of post-retirement medical and insurance
benefits payable by the Parent, the Borrower and the Subsidiaries to their
employees and former employees, as estimated by the Parent in accordance with
procedures and assumptions deemed reasonable by the Required Lenders, does
not
exceed $42,038,000 as of March 31, 2005.
Section
5.20 Insurance.
The
Parent, the Borrower and each of the Subsidiaries maintains (either in the
name
of the Parent, the Borrower or in such Subsidiary’s own name), with financially
sound and reputable insurance companies, insurance on all its property in at
least such amounts and against at least such risks as are usually insured
against in the same general area by companies of established repute engaged
in
the same or similar business.
Section
5.21 Plan
Assets; Prohibited Transactions.
Neither
the Parent nor the Borrower is an entity deemed to hold “plan assets” within the
meaning of 29 C.F.R. § 2510.3-101 of an employee benefit plan (as defined in
Section 3(3) of ERISA) which is subject to Title I of ERISA or any plan (within
the meaning of Section 4975 of the Code), the Parent is an “operating company”
as defined in 29 C.F.R. § 2510-101(c), and neither the execution of this
Agreement nor the making of Loans hereunder gives rise to a prohibited
transaction within the meaning of Section 406 of ERISA or Section 4975 of the
Code.
ARTICLE
6
COVENANTS
During
the term of this Agreement, unless the Required Lenders shall otherwise consent
in writing:
Section
6.1 Information.
The
Parent and the Borrower will maintain, for themselves and each Subsidiary,
a
system of accounting established and administered in accordance with generally
accepted accounting principles, and deliver to the Lenders:
(a) within
90
days after the close of each of its fiscal years, an unqualified (except for
qualifications relating to changes in accounting principles or practices
reflecting changes in generally accepted accounting principles and required
or
approved by the Parent's independent certified public accountants) audit report
certified by PricewaterhouseCoopers LLP or other independent certified public
accountants acceptable to the Lenders, prepared in accordance with Agreement
Accounting Principles on a consolidated and consolidating basis (consolidating
statements need not be certified by such accountants) for itself and its
Subsidiaries, including balance sheets as of the end of such period, related
profit and loss and reconciliation of surplus statements, and a statement of
cash flows, accompanied by a certificate of said accountants that, in the course
of their examination necessary for their certification of the foregoing, they
have obtained no knowledge of any Default or Unmatured Default, or if, in the
opinion of such accountants, any Default or Unmatured Default shall exist,
stating the nature and status thereof;
(b) within
45
days after the close of the first three quarterly periods of each of its fiscal
years, for itself and its Subsidiaries, consolidated and consolidating unaudited
balance sheets as at the close of each such period and consolidated and
consolidating profit and loss statements and a statement of cash flows for
the
period from the beginning of such fiscal year to the end of such quarter, all
certified by its Treasurer, Controller or Chief Financial Officer;
(c) simultaneously
with the delivery of each set of financial statements referred to in clauses
(a)
and (b) above, a certificate in the form of Exhibit
B
attached
hereto of the Treasurer, Controller or Chief Financial Officer of the Parent
(i)
setting forth in reasonable detail the calculations required to establish
whether the Parent was in compliance with the requirements of Sections 6.3,
6.4,
6.5, 6.9, 6.16, 6.18, 6.19 and 6.20 on the date of such financial statements
and
(ii) stating whether any Default or Unmatured Default exists on the date of
such
certificate and, if any Default or Unmatured Default then exists, setting forth
the details thereof and the action which the Parent is taking or proposes to
take with respect thereto;
(d) within
five Business Days after the Parent or the Borrower becomes aware of the
occurrence of any Default or Unmatured Default or of the occurrence of any
other
development, financial or otherwise, that could reasonably be expected to have
a
Material Adverse Effect, a certificate of the Treasurer, Controller or Chief
Financial Officer of the Parent setting forth the details thereof and the action
which the Parent is taking or proposes to take with respect
thereto;
(e) promptly
upon the mailing thereof to the shareholders of the Parent generally, copies
of
all financial statements, reports and proxy statements so mailed;
(f) promptly
upon the filing thereof, copies of all registration statements (other than
the
exhibits thereto and any registration statements on Form S-8 or its equivalent)
and annual, quarterly or monthly reports which the Parent or any of its
Subsidiaries shall have filed with the Securities and Exchange
Commission;
(g) as
soon
as possible, and in any event within 10 days after any member of the Controlled
Group (i) knows that any Reportable Event has occurred with respect to any
Plan,
a statement, signed by the Chief Financial Officer, Treasurer or Controller
of
the Parent, describing said Reportable Event and the action which the Parent
proposes to take with respect thereto, along with a copy of any notice of such
Reportable Event given or required to be given to the PBGC; (ii) receives notice
of complete or partial withdrawal liability under Title IV of ERISA, a copy
of
such notice; or (iii) receives notice from the PBGC under Title IV of ERISA
of
an intent to terminate or appoint a trustee to administer any Plan, a copy
of
such notice;
(h) promptly
upon the execution and delivery thereof, notice of any waiver, consent,
modification or amendment of or to the Note Purchase Agreement (as defined
in
the Modine Manufacturing Credit Agreement), together with a copy of the
documentation relating thereto; and
(i) from
time
to time such additional information regarding the financial position or business
of the Parent, the Borrower and the Subsidiaries as the Lenders may reasonably
request.
Section
6.2 Inspection
of Property, Books and Records.
Each
of
the Parent and the Borrower will, and will cause each Subsidiary to, permit
the
Agent and the Lenders, by their respective representatives and agents, to visit
and inspect their respective properties in order to: (a) examine and make
abstracts from any of their respective books and records; and (b) to discuss
their respective affairs, finances and accounts with their respective officers,
employees and independent public accountants. The Parent and the Borrower agree
to cooperate and assist in such visits and inspections, in each case at such
reasonable times and as often as may reasonably be desired; provided, however,
that so long as no Default or Unmatured Default has occurred and is continuing,
such visits and inspections shall not take place more often than once each
fiscal year of the Parent.
Section
6.3 Restricted
Payments.
Neither
the Parent nor the Borrower will, nor will they permit any Subsidiary to,
declare or make any Restricted Payment except: (a) the Parent may declare or
make a Restricted Payment (other than Stock Purchase Restricted Payments
permitted by clause (b) below) if, after giving effect to such Restricted
Payment, the aggregate amount of all such Restricted Payments declared or made
after the date of this Agreement (excluding Stock Purchase Restricted Payments
permitted by clause (b) below) does not exceed One Hundred Fifty Million
and No/100 Dollars ($150,000,000) and no Default or Unmatured Default shall
have
occurred and be continuing; (b) the Parent may declare or make a Stock Purchase
Restricted Payment, if after giving effect to such Stock Purchase Restricted
Payment, the aggregate of all Stock Purchase Restricted Payments declared or
made after the date of this Agreement does not exceed One Hundred Fifty Million
and No/100 Dollars ($150,000,000) and no Default or Unmatured Default shall
have
occurred and be continuing; and (c) any Subsidiary (including the Borrower)
may
declare and pay dividends or make distributions to the Parent or to a
Wholly-Owned Subsidiary.
Section
6.4 Loans
or Advances.
Neither
the Parent nor any of its Subsidiaries shall make loans or advances to any
Person except: (a) loans or advances to employees not exceeding Three
Million and No/100 Dollars ($3,000,000) in the aggregate outstanding made in
the
ordinary course of business and consistently with practices existing on March
31, 2004; (b) deposits required by government agencies or public utilities;
(c) loans or advances in the ordinary course of business between the Parent
and its Subsidiaries and between Subsidiaries; and (d) other loans and
advances made in the ordinary course of business not exceeding Five Million
and
No/100 Dollars ($5,000,000) in the aggregate at any time outstanding; provided
that after giving effect to the making of any loans, advances or deposits
permitted by clause (a), (b), (c) or (d) of this Section, the Parent will be
in
full compliance with all the provisions of this Agreement.
Section
6.5 Investments
and Acquisitions.
(a) Neither
the Parent nor the Borrower will, nor will they 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) Existing
Investments in Subsidiaries and other Investments in existence the date hereof
and described in Schedule
6.5A.
(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) Acquisitions;
provided, however, that prior to closing any such Acquisition the Parent shall
deliver to the Agent a certificate of the Treasurer, Controller or Chief
Financial Officer of the Parent setting forth in reasonable detail financial
calculations demonstrating that, after giving effect to such Acquisition, no
Default or Unmatured Default will exist on a pro forma basis (assuming that
such
Acquisition (and any related incurrence of Indebtedness) had occurred on the
first day of the four-fiscal quarter period ending at the last fiscal
quarter-end).
(v) Rate
Management Transactions permitted by Section 6.20.
(vi) Loans
and
advances permitted by Section 6.4.
(vii) The
Investments by the Borrower in Modine Austria, by the Parent in the Borrower
and
by the Parent in Modine, Inc. described in Schedule
6.5B.
(b) The
Parent and its Subsidiaries may make and have outstanding the following other
Investments, in addition to the Investments permitted under Section 6.5(a):
(i)
loans and advances in the ordinary course of business between the Parent and
its
Subsidiaries and between Subsidiaries, and (ii) other Investments, provided
that
at no time shall the aggregate outstanding amount of Investments existing and
permitted under this Section 6.5(b)(ii) exceed $40,000,000.
Section
6.6 Negative
Pledge.
Neither
the Parent nor the Borrower will, nor will they permit any Subsidiary to,
create, incur or suffer to exist any Lien in, of or on any of the Property
of
the Parent, the Borrower or any Subsidiary, except for Permitted
Encumbrances.
Section
6.7 Maintenance
of Existence.
Except
for corporate reorganizations permitted by Sections 6.9(a) and 6.9(b), each
of
the Parent and the Borrower shall, and shall cause each Subsidiary to, remain
duly incorporated or organized, validly existing and (to the extent such concept
applies to such entity) in good standing as a corporation or limited liability
company or (in the case of the Subsidiaries) other form of organization in
its
jurisdiction of incorporation or organization, maintain all requisite authority
to conduct its business in each jurisdiction in which its business is conducted,
and carry on its business in substantially the same manner and in substantially
the same fields as such business is now carried on and maintained.
Section
6.8 Dissolution.
None
of
the Parent, the Borrower nor any of the Subsidiaries shall suffer or permit
dissolution or liquidation either in whole or in part or redeem or retire any
shares of its own stock or that of any Subsidiary, except through corporate
reorganization to the extent permitted by Sections 6.9(a) and
6.9(b).
Section
6.9 Consolidations,
Mergers and Sales of Assets.
Neither
the Parent nor the Borrower will, nor will they 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 Parent (other than the Borrower and its Subsidiaries) may merge into
the
Parent or a Wholly-Owned Subsidiary, and
(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 shall not prohibit:
(i) sales
of
inventory in the ordinary course of business;
(ii) leases,
sales or other dispositions of Property that, together with all other Property
of the Parent and its Subsidiaries previously leased, sold or disposed of (other
than inventory in the ordinary course of business) as permitted by this Section
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 Parent and its Subsidiaries;
(iii) any
transfer of an interest in accounts or notes receivable and related assets
as
part of a Qualified Receivables Transaction; and
(iv) the
liquidation and dissolution of Industrial Airsystems, Inc., Xxxxxx, Inc. and
Modine of Puerto Rico, Inc.
Section
6.10 Use
of
Proceeds.
The
Borrower will use approximately EUR 70,780,391 of the proceeds of the Loans
to
acquire approximately 45.1% of the outstanding common equity of Modine Austria,
and will use the remainder of the proceeds of the Loans for the Borrower’s
ordinary corporate purposes. No portion of the proceeds of the Loans will be
used by the Borrower, directly or indirectly, for the purpose, whether
immediate, incidental or ultimate, of purchasing or carrying any “margin stock”
(as defined in Regulation U), or for any purpose in violation of any applicable
law or regulation.
Section
6.11 Compliance
with Laws; Payment of Taxes and Other Claims.
Each
of
the Parent and the Borrower will, and will cause each Subsidiary to, comply
with
all laws, rules, regulations, orders, writs, judgments, injunctions, decrees
or
awards to which it may be subject including, without limitation, all
Environmental Laws. Without limitation of the foregoing, each of the Parent
and
the Borrower will, and will cause each of the Subsidiaries to, not be a Person
described in Section 1 of the Anti-Terrorism Order, and not engage in any
dealings or transactions, or otherwise be associated, with any such Person.
Each
of the Parent and the Borrower will, and will cause each of the Subsidiaries
to,
(x) timely file complete and correct United States federal and applicable
foreign, state and local tax returns required by law and pay when due all taxes,
assessments, governmental charges and levies upon it or its income, profits
or
Property and (y) pay when due all claims for labor, supplies, rent and other
obligations which, if unpaid, might become a lien against the property of the
Parent, the Borrower or any Subsidiary; except those which are being contested
in good faith by appropriate proceedings and with respect to which adequate
reserves have been set aside in accordance with Agreement Accounting
Principles.
Section
6.12 Insurance.
Each
of
the Parent and the Borrower will maintain, and will cause each of the
Subsidiaries to maintain (either in the name of the Parent or the Borrower
or in
such Subsidiary’s own name), with financially sound and reputable insurance
companies, insurance on all its Property in at least such amounts and against
at
least such risks as is consistent with sound business practice, and the Parent
and the Borrower will furnish to any Lender upon request full information as
to
the insurance carried.
Section
6.13 Change
in Fiscal Year.
Neither
the Parent nor the Borrower will change its fiscal year without (a) providing
the Lenders with prior written notice of such change; and (b) executing and
delivering to the Lenders, prior to such change, such amendments to this
Agreement and the other Loan Documents as the Lenders may reasonably deem
necessary and appropriate as a result of such change in fiscal
year.
Section
6.14 Maintenance
of Property.
Each
of
the Parent and the Borrower will, and will cause each Subsidiary to, maintain
all of its Property and assets in good condition, repair and working order,
and
make all necessary and proper repairs, renewals and replacements so that its
business carried on in connection therewith may be properly conducted at all
times.
Section
6.15 Environmental
Matters.
Neither
the Parent nor the Borrower will, nor will either permit any other Person to,
use, produce, manufacture, process, generate, store, dispose of, manage at,
or
ship or transport to or from any of its Property any Hazardous Materials except
for Hazardous Materials disclosed on Schedule
5.14(b)
hereto
and by this reference made a part hereof and which are used, produced,
manufactured, processed, generated, stored, disposed of or managed in the
ordinary course of business in compliance with all applicable Environmental
Laws. Each of the Parent and the Borrower agrees that upon the occurrence of
an
Environmental Release it will act immediately to investigate the extent of,
and
to take appropriate remedial action to eliminate, such Environmental Release,
whether or not ordered or otherwise directed to do so. Promptly, and in any
event within 15 Business Days after the Parent or the Borrower obtains knowledge
thereof, the Parent or the Borrower shall furnish to the Lenders written notice
of all material Environmental Liabilities, pending, threatened or anticipated
material Environmental Proceedings, and material Environmental Releases at,
on,
in, under or in any way affecting it, any Subsidiary or any of its or their
Property or any adjacent property, and all facts, events, or conditions that
could lead to any of the foregoing.
Section
6.16 Indebtedness.
Neither
the Parent nor the Borrower will, nor will it permit any Subsidiary to, create,
incur or suffer to exist any Indebtedness, except:
(a) The
Loans.
(b) Indebtedness
described in Schedule
6.16
not
exceeding the commitment limits set forth therein, and extensions, renewals
and
replacements of any such Indebtedness to the extent such extensions, renewals
and replacements do not increase the outstanding principal amount
thereof.
(c) Receivables
Transaction Attributed Indebtedness.
(d) Indebtedness,
in addition to Indebtedness permitted pursuant to subsections (a)-(c) above,
in
an aggregate amount at any time outstanding not to exceed the greater of
$100,000,000 or fifteen percent (15%) of the Parent’s Consolidated Net
Worth.
Section
6.17 Sale
of Accounts.
Neither
the Parent nor the Borrower will, nor will they permit any Subsidiary to, sell
or otherwise dispose of any notes receivable or accounts receivable, with or
without recourse, except (a) sale or assignment of accounts for collection
purposes in the ordinary course of business, and (b) Qualified Receivables
Transactions.
Section
6.18 Financial
Covenants.
(a) Leverage
Ratio.
The
Parent will not permit the Leverage Ratio, determined as of the end of each
fiscal quarter, to be greater than 3.0 to 1.0.
(b) Interest
Expense Coverage Ratio.
The
Parent will not permit the Interest Expense Coverage Ratio, determined as of
the
end of each fiscal quarter, to be less than 3.0 to 1.0.
Section
6.19 Guaranties.
Promptly,
and in any event within 30 days, after a Person shall become a Specified
Domestic Subsidiary that is not a Specified Domestic Subsidiary on the date
hereof, Parent shall cause such new Specified Domestic Subsidiary to become
a
party to this Agreement by executing and delivering to the Agent a Guaranty
Joinder Supplement in the form of Annex I attached hereto, along with such
other
documents, opinions and information as the Agent may require regarding such
Specified Domestic Subsidiary and the enforceability of such Guaranty.
Section
6.20 Rate
Management Transactions.
Neither
the Parent nor Borrower will, nor will they permit any Subsidiary to, enter
into
or remain liable under any Rate Management Transactions, except for Rate
Management Transactions that are entered into in the ordinary course of business
of the Parent, the Borrower or such Subsidiary and not for speculative
purposes.
Section
6.21 Affiliates.
Neither
the Parent nor the Borrower will, nor will they 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) in the ordinary course of business and pursuant to the reasonable
requirements of the Parent’s, the Borrower’s or such Subsidiary’s business and
upon fair and reasonable terms no less favorable to the Parent, the Borrower
or
such Subsidiary than the Parent, the Borrower or such Subsidiary would obtain
in
a comparable arms-length transaction and (ii) transactions between the Parent,
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.
Section
6.22 Condition
Subsequent.
On
or
before December 30, 2005, (a) the Borrower shall provide the Agent
satisfactory evidence (including fully executed copies of the Share Purchase
and
Contribution Documentation) that the Borrower’s acquisition of all the common
equity of Modine Austria, by purchase from and contribution by the Parent,
has
been consummated, and the resulting corporate ownership structure as described
in Schedule
5.9
hereto
has been effected (other than “step 3” described in Schedule
6.5B),
all in
accordance with applicable law and on terms satisfactory to the Agent and the
Lenders and (b) the Borrower shall provide certificates of status or good
standing issued by the appropriate Pennsylvania office for Thermacore
International, Inc., a Pennsylvania corporation, Thermacore, Inc., a
Pennsylvania corporation, and Airedale North America, Inc., a Pennsylvania
corporation.
ARTICLE
7
DEFAULTS
The
occurrence of any one or more of the following events shall constitute a
Default:
Section
7.1
The
Borrower shall fail to pay when due any principal of any Loan, or shall fail
to
pay when due any interest on any Loan or other fee or other amount payable
hereunder; or
Section
7.2
The
Parent or the Borrower shall fail to observe or perform any covenant contained
in Section 6.1(d), Sections 6.3 through 6.10, inclusive, or Sections 6.16
through 6.21, inclusive; or
Section
7.3
The
Parent or the Borrower shall fail to observe or perform any covenant or
agreement contained in this Agreement (other than those covered by Section
7.1
or 7.2 above), or the Parent, the Borrower or any Subsidiary shall fail to
observe or perform any covenant or agreement contained in any other Loan
Document, for thirty (30) days after the earlier of (i) the first day on which
a
responsible officer of the Parent, the Borrower or Subsidiary has knowledge
of
such failure, or (ii) written notice thereof has been given to the Parent,
the
Borrower or Subsidiary by a Lender; or
Section
7.4
Any
representation, warranty, certification or statement made or deemed made by
or
on behalf of the Parent or the Borrower in Article 5, by or on behalf of any
Guarantor in Article 12, or by or on behalf of the Parent, the Borrower or
any
Subsidiary in, under or in connection with any Loan Document, or any
certificate, financial statement or other document delivered pursuant to any
Loan Document, shall prove to have been incorrect in any material respect when
made (or deemed made); or
Section
7.5
The
Parent, the Borrower or any Subsidiary shall fail to make any payment in respect
of Indebtedness outstanding (other than the Loans) in an aggregate amount in
excess of $20,000,000 when due or within any applicable grace period;
or
Section
7.6
Any
event
or condition shall occur which results in the acceleration of the maturity
of
Indebtedness outstanding in an aggregate amount in excess of $20,000,000 of
the
Parent, the Borrower or any Subsidiary or the purchase of such Indebtedness
by
the Parent (or its designee), the Borrower (or its designee) or such Subsidiary
(or its designee) prior to the scheduled maturity thereof or enables (or, with
the giving of notice or lapse of time or both, would enable) the holders of
such
Indebtedness or any Person acting on such holders’ behalf to accelerate the
maturity thereof or require the purchase thereof by the Parent (or its
designee), the Borrower (or its designee) or such Subsidiary (or its designee)
prior to the scheduled maturity thereof, without regard to whether such holders
or other Person shall have exercised or waived their right to do so, or any
Indebtedness outstanding in an aggregate amount in excess of $20,000,000 of
the
Parent, the Borrower or any Subsidiary shall be declared to be due and payable
or required to be prepaid or repurchased (other than by a regularly scheduled
payment) prior to the stated maturity thereof; or
Section
7.7
The
Parent, the Borrower or any Subsidiary shall commence a voluntary case or other
proceeding seeking liquidation, reorganization or other relief with respect
to
itself or its debts under any bankruptcy, insolvency or other similar law now
or
hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any Substantial Portion
of its property, or shall consent to any such relief or to the appointment
of or
taking possession by any such official in an involuntary case or other
proceeding commenced against it, or shall make a general assignment for the
benefit of creditors, or shall fail generally to pay, or shall admit in writing
its inability to pay, its debts as they become due, or shall take any corporate
action to authorize any of the foregoing, or shall fail to contest in good
faith
any appointment or proceeding described in Section 7.8; or
Section
7.8
An
involuntary case or other proceeding shall be commenced against the Parent,
the
Borrower or any Subsidiary seeking liquidation, reorganization or other relief
with respect to it or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it or any
Substantial Portion of its property, and such involuntary case or other
proceeding shall remain undismissed and unstayed for a period of 45 days; or
an
order for relief shall be entered against the Parent, the Borrower or any
Subsidiary under the federal bankruptcy laws as now or hereafter in effect;
or
Section
7.9
The
Parent, the Borrower or any member of the Controlled Group shall fail to pay
when due any material amount which it shall have become liable to pay to the
PBGC or to a Plan under Title IV of ERISA; or the PBGC shall institute
proceedings under Title IV of ERISA to terminate or to cause a trustee to be
appointed to administer any such Plan or Plans or a proceeding shall be
instituted by a fiduciary of any such Plan or Plans to enforce Section 515
or
4219(c)(5) of ERISA and such proceeding shall not have been dismissed within
30
days thereafter; or a condition shall exist by reason of which the PBGC would
be
entitled to obtain a decree adjudicating that any such Plan or Plans must be
terminated; or
Section
7.10
One
or
more judgments or orders for the payment of money in an aggregate amount in
excess of $20,000,000 (or the equivalent thereof in currencies other than
Dollars), or one or more nonmonetary judgments or orders which, individually
or
in the aggregate, could reasonably be expected to have a Material Adverse
Effect, shall be rendered against the Parent, the Borrower or any Subsidiary,
and such judgment(s) or order(s) shall continue unsatisfied and unstayed for
a
period of 45 days; or
Section
7.11
A
federal
tax lien shall be filed against the Parent or the Borrower under Section 6323
of
the Code or a lien of the PBGC shall be filed against the Parent or the Borrower
under Section 4068 of ERISA and in either case such lien shall remain
undischarged for a period of 25 days after the date of filing, or the Unfunded
Liabilities of all Single Employer Plans shall exceed in the aggregate
$20,000,000, or any Reportable Event shall occur in connection with any Plan;
or
Section
7.12
Any
Change in Control shall occur; or
Section
7.13
Nonpayment
by the Parent, the Borrower or any Subsidiary of any Rate Management Obligation
when due or the breach by the Parent, the Borrower or any Subsidiary of any
term, provision or condition contained in any Rate Management Transaction;
or
Section
7.14
Any
court, government or governmental agency shall condemn, seize or otherwise
appropriate, or take custody or control of, all or any portion of the Property
of the Parent and its Subsidiaries which, when taken together with all other
Property of the Parent and its Subsidiaries so condemned, seized, appropriated,
or taken custody or control of, during the twelve-month period ending with
the
month in which any such action occurs, constitutes a Substantial Portion;
or
Section
7.15
The
Guaranty shall fail to remain in full force or effect with respect to any or
all
of the Guarantors or any action shall be taken to discontinue or to assert
the
invalidity or unenforceability of the Guaranty with respect to any or all of
the
Guarantors, or any Guarantor shall fail to comply with any of the terms or
provisions of the Guaranty, or any Guarantor shall deny that it has any further
liability under the Guaranty, or shall give notice to such effect;
or
Section
7.16
Any
Collateral Document shall for any reason fail to create a valid and perfected
first priority security interest in any collateral purported to be covered
thereby, except as permitted by the terms of any Collateral Document, or any
Collateral Document shall fail to remain in full force or effect or any action
shall be taken to discontinue or to assert the invalidity or unenforceability
of
any Collateral Document, or the Parent, the Borrower or any Guarantor shall
fail
to comply with any of the terms or provisions of any Collateral
Document.
ARTICLE
8
ACCELERATION,
WAIVERS, AMENDMENTS AND REMEDIES
Section
8.1 Acceleration.
If
any
Default described in Section 7.7 or 7.8 occurs with respect to the Borrower,
the
Obligations shall immediately become due and payable without any election or
action on the part of the Agent or any Lender. If any other Default occurs,
the
Required Lenders (or the Agent with the consent of the Required Lenders) may
declare the Obligations to be due and payable whereupon the Obligations shall
become immediately due and payable, without presentment, demand, protest or
notice of any kind, all of which the Borrower hereby expressly waives.
Section
8.2 Amendments.
Subject
to the provisions of this Article 8, the Required Lenders (or the Agent with
the
consent in writing of the Required Lenders) and the Credit Parties may enter
into agreements supplemental hereto for the purpose of adding or modifying
any
provisions to the Loan Documents or changing in any manner the rights of the
Lenders or the Credit Parties hereunder or waiving any Default hereunder;
provided,
however,
that no
such supplemental agreement shall, without the consent of all of the
Lenders:
(a) Extend
the final maturity of any Loan, or forgive all or any portion of the principal
amount thereof, or reduce the rate or extend the time of payment of interest
or
fees thereon.
(b) Amend
Section 11.2.
(c) Reduce
the percentage specified in the definition of Required Lenders.
(d) Extend
the Facility Maturity Date, or reduce the amount or extend the payment date
for,
the mandatory payments required under Section 2.3, or, subject to Section 2.26,
increase the amount of the Aggregate Commitment, of the Commitment of any Lender
hereunder, or permit the Borrower to assign its rights under this
Agreement.
(e) Release
or terminate the Guaranty as to any Guarantor.
(f) Amend
this Section 8.2.
No
amendment of any provision of this Agreement relating to the Agent shall be
effective without the written consent of the Agent. The Agent may waive payment
of the fee required under Section 13.1 without obtaining the consent of any
other party to this Agreement.
Section
8.3 Preservation
of Rights.
No
delay
or omission of the Lenders or the Agent to exercise any right under the Loan
Documents shall impair such right or be construed to be a waiver of any Default
or an acquiescence therein. Any single or partial exercise of any such right
shall not preclude other or further exercise thereof or the exercise of any
other right, and no waiver, amendment or other variation of the terms,
conditions or provisions of the Loan Documents whatsoever shall be valid unless
in writing signed by the Lenders required pursuant to Section 8.2, and then
only
to the extent in such writing specifically set forth. All remedies contained
in
the Loan Documents or by law afforded shall be cumulative and all shall be
available to the Agent and the Lenders until the Obligations have been paid
in
full.
ARTICLE
9
GENERAL
PROVISIONS
Section
9.1 Survival
of Representations.
All
representations and warranties of the Credit Parties contained in this Agreement
shall survive the making of the Loans herein contemplated.
Section
9.2 Governmental
Regulation.
Anything
contained in this Agreement to the contrary notwithstanding, no Lender shall
be
obligated to extend credit to the Borrower in violation of any limitation or
prohibition provided by any applicable statute or regulation.
Section
9.3 Headings.
Section
headings in the Loan Documents are for convenience of reference only, and shall
not govern the interpretation of any of the provisions of the Loan
Documents.
Section
9.4 Entire
Agreement.
The
Loan
Documents embody the entire agreement and understanding among the Borrower,
the
Guarantors, the Agent and the Lenders and supersede all prior agreements and
understandings among the Borrower, the Guarantors, the Agent and the Lenders
relating to the subject matter thereof.
Section
9.5 Several
Obligations; Benefits of this Agreement.
The
respective obligations of the Lenders hereunder are several and not joint and
no
Lender shall be the partner or agent of any other (except to the extent to
which
the Agent is authorized to act as such). The failure of any Lender to perform
any of its obligations hereunder shall not relieve any other Lender from any
of
its obligations hereunder. This Agreement shall not be construed so as to confer
any right or benefit upon any Person other than the parties to this Agreement
and their respective successors and assigns, provided,
however,
that
the parties hereto expressly agree that the Arranger shall enjoy the benefits
of
the provisions of Sections 9.6, 9.10 and 10.6 to the extent specifically set
forth therein and shall have the right to enforce such provisions on its own
behalf and in its own name to the same extent as if it were a party to this
Agreement.
Section
9.6 Expenses;
Indemnification.
(a) The
Borrower shall reimburse the Agent and the Arranger for any costs, internal
charges and out-of-pocket expenses (including reasonable attorneys’ fees and
time charges of attorneys for the Agent, which attorneys may be employees of
the
Agent) paid or incurred by the Agent or the Arranger in connection with the
preparation, negotiation, execution, delivery, syndication, distribution
(including, without limitation, via the internet), review, amendment,
modification, and administration of the Loan Documents. The Borrower also agrees
to reimburse the Agent, the Arranger and the Lenders for any costs, internal
charges and out-of-pocket expenses (including reasonable attorneys’ fees and
time charges of attorneys for the Agent, the Arranger and the Lenders, which
attorneys may be employees of the Agent, the Arranger or the Lenders) paid
or
incurred by the Agent, the Arranger or any Lender in connection with the
collection and enforcement of the Loan Documents. Expenses being reimbursed
by
the Borrower under this Section include, without limitation, costs and expenses
incurred in connection with the Reports described in the following sentence.
The
Borrower acknowledges that from time to time JPMEL may prepare and may
distribute to the Lenders (but shall have no obligation or duty to prepare
or to
distribute to the Lenders) certain audit reports (the “Reports”) pertaining to
the Borrower’s assets for internal use by JPMEL from information furnished to it
by or on behalf of the Borrower, after JPMEL has exercised its rights of
inspection pursuant to this Agreement.
(b) The
Borrower hereby further agrees to indemnify the Agent, the Arranger and each
Lender, their respective affiliates, and each of their directors, officers
and
employees against all losses, claims, damages, penalties, judgments, liabilities
and expenses (including, without limitation, all reasonable expenses of
litigation or preparation therefor whether or not the Agent, the Arranger or
any
Lender or any affiliate is a party thereto) which any of them may pay or incur
arising out of or relating to this Agreement, the other Loan Documents, the
transactions contemplated hereby or the direct or indirect application or
proposed application of the proceeds of the Loans hereunder except to the extent
that they are determined in a final non-appealable judgment by a court of
competent jurisdiction to have resulted from the gross negligence or willful
misconduct of the party seeking indemnification. The obligations of the Borrower
under this Section 9.6 shall survive the termination of this
Agreement.
(c) To
the
extent that the Borrower fails to pay any amount required to be paid by it
to
the Agent or the Arranger under paragraph (a) or (b) of this Section, each
Lender severally agrees to pay to the Agent or the Arranger, as the case may
be,
such Lender’s Pro Rata Share (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount;
provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted
against the Agent or the Arranger in its capacity as such.
(d) All
Loan
Documents shall be signed and executed outside the Republic of Austria and
the
originals and all certified copies thereof shall always be kept outside the
Republic of Austria. Should any party transfer, or cause the transfer by third
parties of any original or certified copy of a Loan Document into the Republic
of Austria, thereby triggering stamp duties, the party transferring (or
procuring the transfer of) such original or certified copy triggering stamp
duties shall be liable for such stamp duties, unless the transfer of the
original or certified copy of the relevant Loan Document into the Republic
of
Austria was (i) required by mandatory law, order, request or decree of a
governmental body, court, authority or agency (whether for the purposes of
initiating, prosecuting, enforcing or executing any claim or remedy or enforcing
any judgment or otherwise); or (ii) made for, or in connection with, the
enforcement of the rights of one or several parties under a Loan Document,
in
which cases such stamp duties shall be borne by the Borrower.
Section
9.7 Numbers
of Documents.
All
statements, notices, closing documents, and requests hereunder shall be
furnished to the Agent with sufficient counterparts so that the Agent may
furnish one to each of the Lenders.
Section
9.8 Accounting.
Except
as
provided to the contrary herein, all accounting terms used herein shall be
interpreted and all accounting determinations hereunder shall be made in
accordance with Agreement Accounting Principles.
Section
9.9 Severability
of Provisions.
Any
provision in any Loan Document that is held to be inoperative, unenforceable,
or
invalid in any jurisdiction shall, as to that jurisdiction, be inoperative,
unenforceable, or invalid without affecting the remaining provisions in that
jurisdiction or the operation, enforceability, or validity of that provision
in
any other jurisdiction, and to this end the provisions of all Loan Documents
are
declared to be severable.
Section
9.10 Nonliability
of Lenders.
The
relationship between the Borrower on the one hand and the Lenders and the Agent
on the other hand shall be solely that of borrower and lender. Neither the
Agent, the Arranger nor any Lender shall have any fiduciary responsibilities
to
the Borrower. Neither the Agent, the Arranger nor any Lender undertakes any
responsibility to the Borrower to review or inform the Borrower of any matter
in
connection with any phase of the Borrower’s business or operations. The Borrower
agrees that neither the Agent, the Arranger nor any Lender shall have liability
to the Borrower (whether sounding in tort, contract or otherwise) for losses
suffered by the Borrower in connection with, arising out of, or in any way
related to, the transactions contemplated and the relationship established
by
the Loan Documents, or any act, omission or event occurring in connection
therewith, unless it is determined in a final non-appealable judgment by a
court
of competent jurisdiction that such losses resulted from the gross negligence
or
willful misconduct of the party from which recovery is sought. Neither the
Agent, the Arranger nor any Lender shall have any liability with respect to,
and
the Borrower hereby waives, releases and agrees not to xxx for, any special,
indirect, consequential or punitive damages suffered by the Borrower in
connection with, arising out of, or in any way related to the Loan Documents
or
the transactions contemplated thereby.
Section
9.11 Confidentiality.
Each
Lender agrees to hold any confidential information which it may receive from
the
Borrower or the Guarantors pursuant to this Agreement in confidence, except
for
disclosure (i) to its Affiliates and to other Lenders and their respective
Affiliates, (ii) to legal counsel, accountants, and other professional advisors
to such Lender or to a Transferee, (iii) to regulatory officials, (iv) to any
Person as requested pursuant to or as required by law, regulation, or legal
process, (v) to any Person in connection with any legal proceeding to which
such
Lender is a party, (vi) to such Lender’s direct or indirect contractual
counterparties in swap agreements or to legal counsel, accountants and other
professional advisors to such counterparties, (vii) permitted by Section 13.2
and (viii) to rating agencies if requested or required by such agencies in
connection with a rating relating to the Advances hereunder. Each Lender that
is
in receipt of confidential information from the Borrower or the Guarantors
agrees (a) to hold such information in accordance with such Lender’s customary
procedures for handling confidential information of such nature and in
accordance with safe and sound banking practices, (b) not to use such
confidential information for any purpose other than purposes contemplated by
this Agreement, (c) to limit disclosure of such confidential information to
the
Persons referred to in this Section 9.11 having a need to know such information
in connection with purposes contemplated by this Agreement, and (d) that, unless
specifically prohibited by applicable law or government agency or court order,
such Lender shall notify the Borrower or the Guarantors of any request by any
governmental authority for disclosure of any such confidential information
prior
to making disclosure of such information, so that the Borrower or the Guarantors
shall have the opportunity to seek an appropriate protective agreement or order
limiting disclosure of such information.
Section
9.12 Nonreliance.
Each
Lender hereby represents that it is not relying on or looking to any margin
stock (as defined in Regulation U of the Board of Governors of the Federal
Reserve System) for the repayment of the Loans provided for herein.
Section
9.13 Disclosure.
The
Borrower and each Lender hereby acknowledge and agree that JPMEL and/or its
Affiliates from time to time may hold investments in, make other loans to or
have other relationships with the Borrower and its Affiliates.
Section
9.14 USA
Patriot Act.
Each
Lender that is subject to the requirements of the USA Patriot Act (Title III
of
Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”) hereby notifies
the Borrower that pursuant to the requirements of the Act, it is required to
obtain, verify and record information that identifies the Borrower, which
information includes the name and address of the Borrower and other information
that will allow such Lender to identify the Borrower in accordance with the
Act.
Section
9.15 Place
of Performance.
The
exclusive place of performance (Leistungsort)
in
respect of all rights and obligations of the parties of this Agreement shall
be
London, England, or any other place communicated by the Agent to the Borrower,
but shall at all times be a place outside the Republic of Austria.
ARTICLE
10
THE
AGENT
Section
10.1 Appointment;
Nature of the Relationship.
Each
of
the Lenders hereby irrevocably appoints X.X. Xxxxxx Europe Limited as its agent
(the “Agent”) and authorizes the Agent to take such actions on its behalf and to
exercise such powers as are delegated to the Agent by the terms hereof, together
with such actions and powers as are reasonably incidental thereto. The bank
serving as the Agent hereunder shall have the same rights and powers in its
capacity as a Lender as any other Lender and may exercise the same as though
it
were not the Agent, and such bank and its Affiliates may accept deposits from,
lend money to and generally engage in any kind of business with the Borrower,
the Parent or any Subsidiary or other Affiliate thereof as if it were not the
Agent hereunder.
Section
10.2 Powers.
The
Agent
shall not have any duties or obligations except those expressly set forth
herein. Without limiting the generality of the foregoing, (a) the Agent
shall not be subject to any fiduciary or other implied duties, regardless of
whether a Default has occurred and is continuing, (b) the Agent shall not
have any duty to take any discretionary action or exercise any discretionary
powers, except discretionary rights and powers expressly contemplated hereby
that the Agent is required to exercise in writing as directed by the Required
Lenders (or such other number or percentage of the Lenders as shall be necessary
under the circumstances as provided in Section 8.2), and (c) except as
expressly set forth herein, the Agent shall not have any duty to disclose,
and
shall not be liable for the failure to disclose, any information relating to
the
Borrower, the Parent or any of its Subsidiaries that is communicated to or
obtained by the bank serving as Agent or any of its Affiliates in any capacity.
The Agent shall not be liable for any action taken or not taken by it with
the
consent or at the request of the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 8.2) or in the absence of its own gross negligence or
willful misconduct. The Agent shall be deemed not to have knowledge of any
Default unless and until written notice thereof is given to the Agent by the
Borrower, the Parent or a Lender, and the Agent shall not be responsible for
or
have any duty to ascertain or inquire into (i) any statement, warranty or
representation made in or in connection with this Agreement, (ii) the
contents of any certificate, report or other document delivered hereunder or
in
connection herewith, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth herein,
(iv) the validity, enforceability, effectiveness or genuineness of this
Agreement or any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in Article 4 or elsewhere herein,
other than to confirm receipt of items expressly required to be delivered to
the
Agent.
Section
10.3 Reliance;
Counsel.
The
Agent
shall be entitled to rely upon, and shall not incur any liability for relying
upon, any notice, request, certificate, consent, statement, instrument, document
or other writing believed by it to be genuine and to have been signed or sent
by
the proper Person. The Agent also may rely upon any statement made to it orally
or by telephone and believed by it to be made by the proper Person, and shall
not incur any liability for relying thereon. The Agent may consult with legal
counsel (who may be counsel for the Borrower or other Credit Parties),
independent accountants and other experts selected by it, and shall not be
liable for any action taken or not taken by it in accordance with the advice
of
any such counsel, accountants or experts.
Section
10.4 Delegation
to Sub-Agent.
The
Agent
may perform any and all its duties and exercise its rights and powers by or
through any one or more sub-agents appointed by the Agent. The Agent and any
such sub-agent may perform any and all its duties and exercise its rights and
powers through their respective Related Parties. The exculpatory provisions
of
the preceding paragraphs shall apply to any such sub-agent and to the Related
Parties of the Agent and any such sub-agent, and shall apply to their respective
activities in connection with the syndication of the credit facilities provided
for herein as well as activities as Agent.
Section
10.5 Resignation;
Successor Agent.
Subject
to the appointment and acceptance of a successor Agent as provided in this
paragraph, the Agent may resign at any time by notifying the Lenders and the
Borrower. Upon any such resignation, the Required Lenders shall have the right,
in consultation with the Borrower, to appoint a successor. If no successor
shall
have been so appointed by the Required Lenders and shall have accepted such
appointment within 30 days after the retiring Agent gives notice of its
resignation, then the retiring Agent may, on behalf of the Lenders, appoint
a
successor Agent which shall be a bank with an office in New York, New York,
or
an Affiliate of any such bank. Upon the acceptance of its appointment as Agent
hereunder by a successor, such successor shall succeed to and become vested
with
all the rights, powers, privileges and duties of the retiring Agent, and the
retiring Agent shall be discharged from its duties and obligations hereunder.
The fees payable by the Borrower to a successor Agent shall be the same as
those
payable to its predecessor unless otherwise agreed between the Borrower and
such
successor. After the Agent's resignation hereunder, the provisions of this
Article and Section 9.6 shall continue in effect for the benefit of such
retiring Agent, its sub-agents and their respective Related Parties in respect
of any actions taken or omitted to be taken by any of them while it was acting
as Agent.
Section
10.6 Lender
Credit Decision.
Each
Lender acknowledges that it has, independently and without reliance upon the
Agent, the Arranger or any other Lender and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement and the other Loan Documents. Each Lender
also acknowledges that it will, independently and without reliance upon the
Agent, the Arranger or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make
its
own decisions in taking or not taking action under or based upon this Agreement,
any related agreement or any document furnished hereunder or
thereunder.
Section
10.7 Agent’s
Reimbursement and Indemnification.
The
Lenders agree to reimburse and indemnify the Agent ratably in proportion to
their respective Commitments (or, if the Commitments have been terminated,
in
proportion to their Commitments immediately prior to such termination) (a)
for
any amounts not reimbursed by the Borrower for which the Agent is entitled
to
reimbursement by the Borrower under the Loan Documents, (b) for any other
expenses incurred by the Agent on behalf of the Lenders, in connection with
the
preparation, execution, delivery, administration and enforcement of the Loan
Documents (including, without limitation, for any expenses incurred by the
Agent
in connection with any dispute between the Agent and any Lender or between
two
or more of the Lenders) and (c) for any liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind and nature whatsoever which may be imposed on, incurred by or
asserted against the Agent in any way relating to or arising out of the Loan
Documents or any other document delivered in connection therewith or the
transactions contemplated thereby (including, without limitation, for any such
amounts incurred by or asserted against the Agent in connection with any dispute
between the Agent and any Lender or between two or more of the Lenders), or
the
enforcement of any of the terms of the Loan Documents or of any such other
documents, provided
that (i)
no Lender shall be liable for any of the foregoing to the extent any of the
foregoing is found in a final non-appealable judgment by a court of competent
jurisdiction to have resulted from the gross negligence or willful misconduct
of
the Agent and (ii) any indemnification required pursuant to Section 3.5(g)
shall, notwithstanding the provisions of this Section 10.7, be paid by the
relevant Lender in accordance with the provisions thereof. The obligations
of
the Lenders under this Section 10.7 shall survive payment of the Obligations
and
termination of this Agreement.
Section
10.8 Execution
of Collateral Documents.
The
Lenders hereby empower and authorize the Agent to execute and deliver to the
Borrower and the Guarantors on their behalf any agreements, documents or
instruments as shall be necessary or appropriate to effect the purposes of
this
Agreement.
ARTICLE
11
SETOFF;
RATABLE PAYMENTS
Section
11.1 Setoff.
In
addition to, and without limitation of, any rights of the Lenders under
applicable law, if the Borrower becomes insolvent, however evidenced, or any
Default occurs, any and all deposits (including all account balances, whether
provisional or final and whether or not collected or available) and any other
Indebtedness at any time held or owing by any Lender or any Affiliate of any
Lender to or for the credit or account of the Borrower may be offset and applied
toward the payment of the Obligations owing to such Lender, whether or not
the
Obligations, or any part thereof, shall then be due.
Section
11.2 Ratable
Payments.
If
any
Lender, whether by setoff or otherwise, has payment made to it upon its Loan
in
a greater proportion than that received by any other Lender, such Lender agrees,
promptly upon demand, to purchase a portion of the aggregate outstanding amount
of the Loans held by the other Lenders so that after such purchase each Lender
will hold its Pro Rata Share of the aggregate outstanding amount of the Loans.
If any Lender, whether in connection with setoff or amounts which might be
subject to setoff or otherwise, receives collateral or other protection for
its
Obligations or such amounts which may be subject to setoff, such Lender agrees,
promptly upon demand, to take such action necessary such that all Lenders share
in the benefits of such collateral ratably in proportion to their respective
Pro
Rata Shares of the aggregate outstanding amount of the Loans. In case any such
payment is disturbed by legal process, or otherwise, appropriate further
adjustments shall be made.
ARTICLE
12
GUARANTY
Section
12.1 Representations,
Warranties and Covenants.
Each
of
the Guarantors represents and warrants (which representations and warranties
shall be deemed to have been renewed as of the Borrowing Date)
that:
(a) It
is a
corporation, partnership or limited liability company duly and properly
incorporated or organized, as the case may be, validly existing and (to the
extent such concept applies to such entity) in good standing under the laws
of
its jurisdiction of incorporation or organization and has all requisite
authority to conduct its business in each jurisdiction in which its business
is
conducted, except to the extent that the failure to have such authority could
not reasonably be expected to have a Material Adverse Effect.
(b) It
(to
the extent applicable) has the power and authority and legal right to execute
and deliver this Agreement and to perform its obligations hereunder. The
execution and delivery by each Guarantor of this Agreement and the performance
by each of its obligations hereunder have been duly authorized by proper
proceedings, and this Agreement constitutes a legal, valid and binding
obligation of each Guarantor, respectively, enforceable against such Guarantor,
respectively, in accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency or similar laws affecting the enforcement
of
creditors’ rights generally.
(c) Neither
the execution and delivery by it of this Agreement, nor the consummation of
the
transactions herein contemplated, nor compliance with the provisions hereof
will
(i) violate any law, rule, regulation, order, writ, judgment, injunction, decree
or award binding on it or its articles or certificate of incorporation, limited
liability company or partnership agreement, certificate of partnership, articles
or certificate of organization, by-laws, or operating agreement or other
management agreement, as the case may be, or the provisions of any indenture,
instrument or agreement to which Parent or any of its Subsidiaries is a party
or
is subject, or by which it, or its Property, is bound, or (ii) conflict with,
or
constitute a default under, or result in, or require, the creation or imposition
of any Lien in, of or on its Property pursuant to the terms of, any such
indenture, instrument or agreement. No order, consent, adjudication, approval,
license, authorization, or validation of, or filing, recording or registration
with, or exemption by, or other action in respect of any governmental or public
body or authority, or any subdivision thereof, which has not been obtained
by
it, is required to be obtained by it in connection with the execution, delivery
and performance by it of, or the legality, validity, binding effect or
enforceability against it of, this Guaranty.
In
addition to the foregoing, each of the Guarantors covenants that, so long as
any
Lender has any Commitment outstanding under this Agreement or any amount payable
under this Agreement or any other Guaranteed Obligations (as defined below)
shall remain unpaid, it will, and, if necessary, will enable the Borrower to,
fully comply with those covenants and agreements of the Borrower applicable
to
such Guarantor set forth in this Agreement.
Section
12.2 Guaranty.
Each
of
the Guarantors hereby unconditionally guarantees, jointly with the other
Guarantors and severally, the full and punctual payment when due (whether at
stated maturity, upon acceleration or otherwise) of the Obligations, including,
without limitation, (A) the principal of and interest on the Loans made to
the
Borrower pursuant to this Agreement, (B) any Rate Management Obligations of
the
Borrower, and (C) all other amounts payable by the Borrower or any of its
Subsidiaries under this Agreement, the other Loan Documents and any Designated
Financial Contract (all of the foregoing being referred to collectively as
the
“Guaranteed Obligations”). Upon failure by the Borrower or any of its
Affiliates, as applicable, to pay punctually any such amount, each of the
Guarantors agrees that it shall forthwith on demand pay such amount at the
place
and in the manner specified in this Agreement, any Designated Financial Contract
or the relevant Loan Document, as the case may be. Each of the Guarantors hereby
agrees that this Guaranty is an absolute, irrevocable and unconditional guaranty
of payment and is not a guaranty of collection.
Section
12.3 Guaranty
Unconditional.
The
obligations of each of the Guarantors hereunder shall be unconditional and
absolute and, without limiting the generality of the foregoing, shall not be
released, discharged or otherwise affected by:
(a) any
extension, renewal, settlement, indulgence, compromise, waiver or release of
or
with respect to the Guaranteed Obligations or any part thereof or any agreement
relating thereto, or with respect to any obligation of any other guarantor
of
any of the Guaranteed Obligations, whether (in any such case) by operation
of
law or otherwise, or any failure or omission to enforce any right, power or
remedy with respect to the Guaranteed Obligations or any part thereof or any
agreement relating thereto, or with respect to any obligation of any other
guarantor of any of the Guaranteed Obligations;
(b) any
modification or amendment of or supplement to this Agreement, any other Loan
Document or any Designated Financial Contract, including, without limitation,
any such amendment which may increase the amount of, or the interest rates
applicable to, any of the Obligations guaranteed hereby;
(c) any
release, surrender, compromise, settlement, waiver, subordination or
modification, with or without consideration, of any other guaranties with
respect to the Guaranteed Obligations or any part thereof, or any other
obligation of any person or entity with respect to the Guaranteed Obligations
or
any part thereof, or any nonperfection or invalidity of any direct or indirect
security for the Guaranteed Obligations;
(d) any
change in the corporate, partnership or other existence, structure or ownership
of the Borrower or any other guarantor of any of the Guaranteed Obligations,
or
any insolvency, bankruptcy, reorganization or other similar proceeding affecting
the Borrower or any other guarantor of the Guaranteed Obligations, or any of
their respective assets or any resulting release or discharge of any obligation
of the Borrower or any other guarantor of any of the Guaranteed
Obligations;
(e) the
existence of any claim, setoff or other rights that the Guarantors may have
at
any time against the Borrower, any other guarantor of any of the Guaranteed
Obligations, the Agent, any Holder of Obligations or any other Person, whether
in connection herewith or in connection with any unrelated transactions,
provided that nothing herein shall prevent the assertion of any such claim
by
separate suit or compulsory counterclaim;
(f) the
enforceability or validity of the Guaranteed Obligations or any part thereof
or
the genuineness, enforceability or validity of any agreement relating thereto
or
with respect to any collateral securing the Guaranteed Obligations or any part
thereof, or any other invalidity or unenforceability relating to or against
the
Borrower or any other guarantor of any of the Guaranteed Obligations, for any
reason related to this Agreement, any Designated Financial Contract, any other
Loan Document, or any provision of applicable law or regulation purporting
to
prohibit the payment by the Borrower or any other guarantor of the Guaranteed
Obligations, of any of the Guaranteed Obligations;
(g) the
failure of the Agent to take any steps to perfect and maintain any security
interest in, or to preserve any rights to, any security or collateral for the
Guaranteed Obligations, if any;
(h) the
election by, or on behalf of, any one or more of the Holders of Obligations,
in
any proceeding instituted under Chapter 11 of Title 11 of the United States
Code
(11 U.S.C. § 101 et seq.) (the “Bankruptcy Code”), of the application of
Section 1111(b)(2) of the Bankruptcy Code;
(i) any
borrowing or grant of a security interest by the Borrower, as
debtor-in-possession, under Section 364 of the Bankruptcy Code;
(j) the
disallowance, under Section 502 of the Bankruptcy Code, of all or any portion
of
the claims of any of the Holders of Obligations or the Agent for repayment
of
all or any part of the Guaranteed Obligations;
(k) the
failure of any other Guarantor or Specified Domestic Subsidiary to sign or
become party to this Agreement (as a guarantor or otherwise) or any amendment,
change, or reaffirmation hereof; or
(l) any
other
act or omission to act or delay of any kind by the Borrower, any other guarantor
of the Guaranteed Obligations, the Agent, any Holder of Obligations or any
other
Person or any other circumstance whatsoever which might, but for the provisions
of this Section 12.3, constitute a legal or equitable discharge of any
Guarantor’s obligations hereunder.
Section
12.4 Discharge
Only Upon Payment in Full; Reinstatement in Certain
Circumstances.
Each
of
the Guarantors’ obligations hereunder shall remain in full force and effect
until all Guaranteed Obligations shall have been paid in full in cash and the
Commitments shall have terminated or expired. If at any time any payment of
the
principal of or interest on any Advance or any other amount payable by the
Borrower or any other party under this Agreement, any Designated Financial
Contract or any other Loan Document is rescinded or must be otherwise restored
or returned upon the insolvency, bankruptcy or reorganization of the Borrower
or
otherwise, each of the Guarantors’ obligations hereunder with respect to such
payment shall be reinstated as though such payment had been due but not made
at
such time.
Section
12.5 General
Waivers.
Each
of
the Guarantors irrevocably waives acceptance hereof, presentment, demand or
action on delinquency, protest, the benefit of any statutes of limitations
and,
to the fullest extent permitted by law, any notice not provided for herein,
as
well as any requirement that at any time any action be taken by any Person
against the Borrower, any other guarantor of the Guaranteed Obligations, or
any
other Person.
Section
12.6 Subordination
of Subrogation; Subordination of Intercompany Indebtedness.
(a) Subordination
of Subrogation.
Until
the Guaranteed Obligations have been indefeasibly paid in full in cash, the
Guarantors (i) shall have no right of subrogation with respect to such
Guaranteed Obligations and (ii) waive any right to enforce any remedy which
the
Holders of Obligations or the Agent now have or may hereafter have against
the
Borrower, any endorser or any guarantor of all or any part of the Guaranteed
Obligations or any other Person, and the Guarantors waive any benefit of, and
any right to participate in, any security or collateral given to the Holders
of
Obligations and the Agent to secure the payment or performance of all or any
part of the Guaranteed Obligations or any other liability of the Borrower to
the
Holders of Obligations. Should any Guarantor have the right, notwithstanding
the
foregoing, to exercise its subrogation rights, each Guarantor hereby expressly
and irrevocably (a) subordinates any and all rights at law or in equity to
subrogation, reimbursement, exoneration, contribution, indemnification or setoff
that the Guarantor may have to the indefeasible payment in full in cash of
the
Guaranteed Obligations and (b) waives any and all defenses available to a
surety, guarantor or accommodation co-obligor until the Guaranteed Obligations
are indefeasibly paid in full in cash. Each Guarantor acknowledges and agrees
that this subordination is intended to benefit the Agent and the Holders of
Obligations and shall not limit or otherwise affect such Guarantor’s liability
hereunder or the enforceability of this Guaranty, and that the Agent, the
Holders of Obligations and their respective successors and assigns are intended
third party beneficiaries of the waivers and agreements set forth in this
Section 12.6(a).
(b) Subordination
of Intercompany Indebtedness.
Each
Guarantor agrees that any and all claims of such Guarantor against either the
Borrower or any other Guarantor hereunder (each an “Obligor”) with respect to
any Intercompany Indebtedness (as hereinafter defined), any endorser, obligor
or
any other guarantor of all or any part of the Guaranteed Obligations, or against
any of its properties shall be subordinate and subject in right of payment
to
the prior payment, in full and in cash, of all Guaranteed Obligations.
Notwithstanding any right of any Guarantor to ask, demand, xxx for, take or
receive any payment from any Obligor, all rights, liens and security interests
of such Guarantor, whether now or hereafter arising and howsoever existing,
in
any assets of any other Obligor shall be and are subordinated to the rights
of
the Holders of Obligations and the Agent in those assets. No Guarantor shall
have any right to possession of any such asset or to foreclose upon any such
asset, whether by judicial action or otherwise, unless and until all of the
Guaranteed Obligations (other than contingent indemnity obligations) shall
have
been fully paid and satisfied (in cash) and all financing arrangements pursuant
to any Loan Document or any Designated Financial Contract have been terminated.
If all or any part of the assets of any Obligor, or the proceeds thereof, are
subject to any distribution, division or application to the creditors of such
Obligor, whether partial or complete, voluntary or involuntary, and whether
by
reason of liquidation, bankruptcy, arrangement, receivership, assignment for
the
benefit of creditors or any other action or proceeding, or if the business
of
any such Obligor is dissolved or if substantially all of the assets of any
such
Obligor are sold, then, and in any such event (such events being herein referred
to as an “Insolvency Event”), any payment or distribution of any kind or
character, either in cash, securities or other property, which shall be payable
or deliverable upon or with respect to any indebtedness of any Obligor to any
Guarantor (“Intercompany Indebtedness”) shall be paid or delivered directly to
the Agent for application on any of the Guaranteed Obligations, due or to become
due, until such Guaranteed Obligations (other than contingent indemnity
obligations) shall have first been fully paid and satisfied (in cash). Should
any payment, distribution, security or instrument or proceeds thereof be
received by the applicable Guarantor upon or with respect to the Intercompany
Indebtedness after any Insolvency Event and prior to the satisfaction of all
of
the Guaranteed Obligations (other than contingent indemnity obligations) and
the
termination of all financing arrangements pursuant to any Loan Document among
the Borrower and the Holders of Obligations, such Guarantor shall receive and
hold the same in trust, as trustee, for the benefit of the Holders of
Obligations and shall forthwith deliver the same to the Agent, for the benefit
of the Holders of Obligations, in precisely the form received (except for the
endorsement or assignment of the Guarantor where necessary), for application
to
any of the Guaranteed Obligations, due or not due, and, until so delivered,
the
same shall be held in trust by the Guarantor as the property of the Holders
of
Obligations. If any such Guarantor fails to make any such endorsement or
assignment to the Agent, then the Agent or any of its officers or employees
is
irrevocably authorized to make the same. Each Guarantor agrees that until the
Guaranteed Obligations (other than the contingent indemnity obligations) have
been paid in full (in cash) and satisfied and all financing arrangements
pursuant to any Loan Document among the Borrower and the Holders of Obligations
have been terminated, no Guarantor will assign or transfer to any Person (other
than the Agent) any claim any such Guarantor has or may have against any
Obligor.
Section
12.7 Contribution
with Respect to Guaranteed Obligations.
(a) To
the
extent that any Guarantor shall make a payment under this Guaranty (a “Guarantor
Payment”) which, taking into account all other Guarantor Payments then
previously or concurrently made by any other Guarantor, exceeds the amount
which
otherwise would have been paid by or attributable to such Guarantor if each
Guarantor had paid the aggregate Guaranteed Obligations satisfied by such
Guarantor Payment in the same proportion as such Guarantor’s Allocable Amount
(as defined below) (as determined immediately prior to such Guarantor Payment)
bore to the aggregate Allocable Amounts of each of the Guarantors as determined
immediately prior to the making of such Guarantor Payment, then, following
indefeasible payment in full in cash of the Guaranteed Obligations and
termination of this Agreement and the Designated Financial Contracts, such
Guarantor shall be entitled to receive contribution and indemnification payments
from, and be reimbursed by, each other Guarantor for the amount of such excess,
pro rata based upon their respective Allocable Amounts in effect immediately
prior to such Guarantor Payment.
(b) As
of any
date of determination, the “Allocable Amount” of any Guarantor shall be equal to
the maximum amount of the claim which could then be recovered from such
Guarantor under this Guaranty without rendering such claim voidable or avoidable
under Section 548 of Chapter 11 of the Bankruptcy Code or under any applicable
state Uniform Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act or
similar statute or common law.
(c) This
Section 12.7 is intended only to define the relative rights of the Guarantors,
and nothing set forth in this Section 12.7 is intended to or shall impair the
obligations of the Guarantors, jointly and severally, to pay any amounts as
and
when the same shall become due and payable in accordance with the terms of
this
Agreement.
(d) The
parties hereto acknowledge that the rights of contribution and indemnification
hereunder shall constitute assets of the Guarantor to which such contribution
and indemnification is owing.
(e) The
rights of the indemnifying Guarantors against other Guarantors under this
Section 12.7 shall be exercisable upon the full and indefeasible payment of
the
Guaranteed Obligations in cash and the termination of this Agreement and the
Designated Financial Contracts. This Section 12.7 shall survive termination
of
this Agreement.
Section
12.8 Stay
of Acceleration.
If
acceleration of the time for payment of any amount payable by the Borrower
under
this Agreement, any Designated Financial Contract or any other Loan Document
is
stayed upon the insolvency, bankruptcy or reorganization of the Borrower, all
such amounts otherwise subject to acceleration under the terms of this
Agreement, any Designated Financial Contract or any other Loan Document shall
nonetheless be payable by each of the Guarantors hereunder forthwith on demand
by the Agent.
Section
12.9 No
Waivers.
No
failure or delay by the Agent or any Holder of Obligations in exercising any
right, power or privilege hereunder shall operate as a waiver thereof nor shall
any single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights
and
remedies provided in this Guaranty, this Agreement, any Designated Financial
Contract and the other Loan Documents shall be cumulative and not exclusive
of
any rights or remedies provided by law.
Section
12.10 Expenses
of Enforcement, etc.
Subject
to the terms of this Agreement, after the occurrence of a Default under this
Agreement, the Lenders shall have the right at any time to direct the Agent
to
commence enforcement proceedings with respect to the Guaranteed Obligations.
The
Guarantors agree to reimburse the Agent and the Holders of Obligations for
any
reasonable costs and out-of-pocket expenses (including reasonable attorneys’
fees and time charges of attorneys for the Agent and the Holders of Obligations,
which attorneys may be employees of the Agent or the Holders of Obligations)
paid or incurred by the Agent or any Holders of Obligations in connection with
the collection and enforcement of amounts due under the Loan Documents,
including without limitation this Article 12. The Agent agrees to distribute
payments received from any of the Guarantors hereunder to the Holders of
Obligations on a pro rata basis for application in accordance with the terms
of
this Agreement.
Section
12.11 Setoff.
At
any
time after all or any part of the Guaranteed Obligations have become due and
payable (by acceleration or otherwise), each Holder of Obligations and the
Agent
may, without notice to any Guarantor and regardless of the acceptance of any
security or collateral for the payment hereof, appropriate and apply toward
the
payment of all or any part of the Guaranteed Obligations (A) any indebtedness
due or to become due from such Holder of Obligations or the Agent to any
Guarantor, and (B) any moneys, credits or other property belonging to any
Guarantor, at any time held by or coming into the possession of such Holder
of
Obligations or the Agent or any of their respective affiliates.
Section
12.12 Financial
Information.
Each
Guarantor hereby assumes responsibility for keeping itself informed of the
financial condition of the Borrower and any and all endorsers and/or other
guarantors of all or any part of the Guaranteed Obligations, and of all other
circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations,
or any part thereof, that diligent inquiry would reveal, and each Guarantor
hereby agrees that none of the Holders of Obligations or the Agent shall have
any duty to advise such Guarantor of information known to any of them regarding
such condition or any such circumstances. In the event any Holder of Obligations
or the Agent, in its sole discretion, undertakes at any time or from time to
time to provide any such information to a Guarantor, such Holder of Obligations
or the Agent shall be under no obligation (A) to undertake any investigation
not
a part of its regular business routine, (B) to disclose any information which
such Holder of Obligations or the Agent, pursuant to accepted or reasonable
commercial finance or banking practices, wishes to maintain confidential or
(C)
to make any other or future disclosures of such information or any other
information to such Guarantor.
ARTICLE
13
BENEFIT
OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
Section
13.1 Successors
and Assigns; Participations.
(a)
The
terms and provisions of the Loan Documents shall be binding upon and inure
to
the benefit of the parties hereto and their respective successors and assigns
permitted hereby, except that (i) no Credit Party may assign or otherwise
transfer any of its rights or obligations under the Loan Documents without
the
prior written consent of each Lender (and any attempted assignment or transfer
by any Credit Party without such consent shall be null and void) and (ii) no
Lender may assign or otherwise transfer its rights or obligations under the
Loan
Documents except in accordance with this Section 13.1. Nothing in this
Agreement, expressed or implied, shall be construed to confer upon any Person
(other than the parties hereto, their respective successors and assigns
permitted hereby, Participants (to the extent provided in paragraph (c) of
this
Section) and, to the extent expressly contemplated hereby, the Related Parties
of each of the Agent and the Lenders) any legal or equitable right, remedy
or
claim under or by reason of this Agreement.
(b) (i)
Subject to the conditions set forth in paragraph (b)(ii) below, any Lender
may
assign to one or more assignees all or a portion of its rights and obligations
under the Loan Documents (including all or a portion of its Commitment and
the
Loans at the time owing to it) with the prior written consent (such consent
not
to be unreasonably withheld) of:
(A)
the
Borrower, provided
that no
consent of the Borrower shall be required for an assignment to a Lender, an
Affiliate of a Lender, an Approved Fund or, if an Event of Default has occurred
and is continuing, any other assignee;
(B) the
Agent, provided
that no
consent of the Agent shall be required for an assignment of all or any portion
of Loan to a Lender, an Affiliate of a Lender or an Approved Fund;
and
(ii)
Assignments shall be subject to the following additional conditions:
(A)
except in the case of an assignment to a Lender or an Affiliate of a Lender
or
an assignment of the entire remaining amount of the assigning Lender’s
Commitment or Loans, the amount of the Commitment or Loans of the assigning
Lender subject to each such assignment (determined as of the date the Assignment
and Assumption with respect to such assignment is delivered to the Agent) shall
not be less than EUR5,000,000 unless each of the Borrower and the Agent
otherwise consent, provided
that no
such consent of the Borrower shall be required if an Event of Default has
occurred and is continuing;
(B)
each
partial assignment shall be made as an assignment of a proportionate part of
all
the assigning Lender's rights and obligations under the Loan Documents,
provided
that
this clause shall not be
construed to prohibit the assignment of a proportionate part of all the
assigning Lender’s rights and obligations in respect of its Commitments or
Loans;
(C)
the
assignee shall be a legal entity incorporated or otherwise organized outside
the
Republic of Austria;
(D)
the
parties to each assignment shall execute and deliver to the Agent an Assignment
and Assumption, together with a processing and recordation fee of $3,500;
and
(E) the
assignee, if it shall not be a Lender, shall deliver to the Agent an
Administrative Questionnaire.
For
the
purposes of this Section 13.1, the term “Approved
Fund”
has
the
following meaning:
“Approved
Fund”
means
any Person (other than a natural person) that is engaged in making, purchasing,
holding or investing in bank loans and similar extensions of credit in the
ordinary course of its business and that is administered or managed by (a)
a
Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an
entity that administers or manages a Lender.
(iii)
Subject to acceptance and recording thereof pursuant to paragraph (b)(iv)
of this Section 13.1, from and after the effective date specified in each
Assignment and Assumption the assignee thereunder shall be a party hereto and,
to the extent of the interest assigned by such Assignment and Assumption, have
the rights and obligations of a Lender under this Agreement and the other Loan
Documents, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Assumption, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Section 3.1, 3.2, 3.4, 3.5 and 9.6 and Article
10). Any assignment or transfer by a Lender of rights or obligations under
this
Agreement that does not comply with this Section 13.1 shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in such
rights and obligations in accordance with paragraph (c) of this
Section.
(iv)
The
Agent, acting for this purpose as an agent of the Borrower, shall maintain
at
one of its offices a copy of each Assignment and Assumption delivered to it
and
a register for the recordation of the names and addresses of the Lenders, and
the Commitment of, and outstanding amount of the Loans owing to, each Lender
pursuant to the terms hereof from time to time (the "Register").
The
entries in the Register shall be conclusive, and the Borrower, the Agent and
the
Lenders may treat each Person whose name is recorded in the Register pursuant
to
the terms hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. The Register shall be available for
inspection by the Borrower and any Lender, at any reasonable time and from
time
to time upon reasonable prior notice.
(v)
Upon
its receipt of a duly completed Assignment and Assumption executed by an
assigning Lender and an assignee, the assignee's completed Administrative
Questionnaire (unless the assignee shall already be a Lender hereunder), the
processing and recordation fee referred to in paragraph (b) of this Section
and any written consent to such assignment required by paragraph (b) of this
Section, the Agent shall accept such Assignment and Assumption and record the
information contained therein in the Register; provided
that if
either the assigning Lender or the assignee shall have failed to make any
payment required to be made by it pursuant to Section 2.2(e), 2.21, 2.22(b),
(e)
or (j), 3.5(g), 9.6(c), 10.7 or 11.2, the Agent shall have no obligation to
accept such Assignment and Assumption and record the information therein in
the
Register unless and until such payment shall have been made in full, together
with all accrued interest thereon. No assignment shall be effective for purposes
of this Agreement unless it has been recorded in the Register as provided in
this paragraph.
(c) (i)
Any
Lender may, without the consent of the Borrower or the Agent, sell
participations to one or more banks or other entities (a "Participant")
in all
or a portion of such Lender's rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans owing to it);
provided
that
(A) such Lender's obligations under this Agreement shall remain unchanged,
(B) such Lender shall remain solely responsible to the other parties hereto
for the performance of such obligations and (C) the Borrower, the Agent and
the other Lenders shall continue to deal solely and directly with such Lender
in
connection with such Lender's rights and obligations under this Agreement.
Any
agreement or instrument pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision
of this Agreement; provided
that
such agreement or instrument may provide that such Lender will not, without
the
consent of the Participant, agree to any amendment, modification or waiver
described in the proviso to Section 8.2 that affects such Participant. Subject
to paragraph (c)(ii) of this Section, the Borrower agrees that each Participant
shall be entitled to the benefits of Section 3.1, 3.2, 3.4 and 3.5 to the same
extent as if it were a Lender and had acquired its interest by assignment
pursuant to paragraph (b) of this Section. To the extent permitted by law,
each
Participant also shall be entitled to the benefits of Section 11.1 as
though it were a Lender, provided such Participant agrees to be subject to
Section 11.2 as though it were a Lender.
(ii)
A
Participant shall not be entitled to receive any greater payment under Section
3.1, 3.2 or 3.5 than the applicable Lender would have been entitled to receive
with respect to the participation sold to such Participant, unless the sale
of
the participation to such Participant is made with the Borrower's prior written
consent. A Participant not incorporated under the laws of the United States
of
America or any State thereof agrees to comply with the provisions of Section
3.5
to the same extent as if it were a Lender.
(d) Any
Lender may at any time pledge or assign a security interest in all or any
portion of its rights under this Agreement to secure obligations of such Lender,
including without limitation any pledge or assignment to secure obligations
to a
Federal Reserve Bank, and this Section shall not apply to any such pledge or
assignment of a security interest; provided
that no
such pledge or assignment of a security interest shall release a Lender from
any
of its obligations hereunder or substitute any such pledgee or assignee for
such
Lender as a party hereto.
Section
13.2 Dissemination
of Information.
The
Borrower authorizes each Lender to disclose to any Participant or assignee
permitted under Section 13.1 or any other Person acquiring an interest in the
Loan Documents by operation of law (each a “Transferee”) and any prospective
Transferee any and all information in such Lender’s possession concerning the
creditworthiness of the Borrower and its Subsidiaries, including without
limitation any information contained in any Reports, provided
that
each Transferee and prospective Transferee agrees to be bound by Section 9.11
of
this Agreement.
Section
13.3 Tax
Treatment.
If
any
interest in any Loan Document is transferred to any Transferee which is not
incorporated under the laws of the United States or any State thereof, the
transferor Lender shall cause such Transferee, concurrently with the
effectiveness of such transfer, to comply with the provisions of Section
3.5(d).
ARTICLE
14
NOTICES
Section
14.1 Notices.
Except
as
otherwise permitted by Section 2.11 with respect to the Borrowing Notices and
Selection Notices, all notices, requests and other communications to any party
hereunder shall be in writing (including electronic transmission, facsimile
transmission or similar writing) and shall be given to such party: (w) in the
case of the Borrower or the Agent, at its address or facsimile number set forth
on the signature pages hereof, (x) in the case of any Lender, at its address
or
facsimile number set forth below its signature hereto, (y) in the case of the
Parent, at its address or facsimile number set forth below its signature hereto,
and in the case of any other Guarantor, c/o Modine Manufacturing Company, at
the
same address or facsimile number or (z) in the case of any party, at such other
address or facsimile number as such party may hereafter specify for the purpose
by notice to the Agent and the Borrower in accordance with the provisions of
this Section 14.1. Each such notice, request or other communication shall be
effective (i) if given by facsimile transmission, when transmitted to the
facsimile number specified in this Section and confirmation of receipt is
received, (ii) if given by mail, 72 hours after such communication is deposited
in the mails with first class postage prepaid, addressed as aforesaid, or (iii)
if given by any other means, when delivered (or, in the case of electronic
transmission, received) at the address specified in this Section; provided
that
notices to the Agent under Article 2 shall not be effective until
received.
Section
14.2 Change
of Address.
The
Borrower, the Agent and any Lender may each change the address for service
of
notice upon it by a notice in writing to the other parties hereto.
ARTICLE
15
COUNTERPARTS
This
Agreement may be executed in any number of counterparts, all of which taken
together shall constitute one agreement, and any of the parties hereto may
execute this Agreement by signing any such counterpart. This Agreement shall
be
effective when it has been executed by the Borrower, the Agent and the Lenders
and each party has notified the Agent by facsimile transmission or telephone
that it has taken such action.
ARTICLE
16
CHOICE
OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL
Section
16.1 CHOICE
OF LAW.
THE
LOAN DOCUMENTS (OTHER THAN THOSE CONTAINING A CONTRARY EXPRESS CHOICE OF LAW
PROVISION) SHALL BE CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (WITHOUT
REGARD TO THE CONFLICT OF LAWS PROVISIONS) OF THE STATE OF NEW YORK, BUT GIVING
EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
Section
16.2 CONSENT
TO JURISDICTION.
THE
BORROWER HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE NON-EXCLUSIVE
JURISDICTION OF THE SUPREME COURT OF THE STATE OF NEW YORK SITTING IN NEW YORK
COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF
NEW
YORK, AND ANY APPELLATE COURT FROM ANY THEREOF IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENTS AND THE BORROWER HEREBY
IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING
MAY
BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION
IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM.
NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE AGENT OR ANY LENDER TO BRING
PROCEEDINGS AGAINST THE BORROWER IN THE COURTS OF ANY OTHER JURISDICTION. ANY
JUDICIAL PROCEEDING BY THE BORROWER AGAINST THE AGENT OR ANY LENDER OR ANY
AFFILIATE OF THE AGENT OR ANY LENDER INVOLVING, DIRECTLY OR INDIRECTLY, ANY
MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN
DOCUMENT SHALL BE BROUGHT ONLY IN A COURT IN NEW YORK, NEW
YORK.
Section
16.3 WAIVER
OF JURY TRIAL.
THE
BORROWER, THE AGENT AND EACH LENDER HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL
PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING
IN
TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED
WITH ANY LOAN DOCUMENT OR THE RELATIONSHIP ESTABLISHED
THEREUNDER.
MILW_1919821.7
IN
WITNESS WHEREOF, the Borrower, the Guarantors, the Lenders and the Agent have
executed this Agreement as of the date first above written.
MODINE
HOLDING GMBH,
as
Borrower
By:
/s/X.
X’Xxxxx
Title: Managing
Director
x/x
Xxxxxx Xxxxxx XxxX
Xxxxxx-X-Xxxxxx-Xxxxxxx
0
D-70794
Filderstandt-Bonlanden
Germany
Attention:
Chief Financial Officer - Modine Europe
Telephone:
00-000-0000-0
Fax:
00-000-0000-000
[Signature
Page 1 of 6 to Credit Agreement]
IN
WITNESS WHEREOF, the Borrower, the Guarantors, the Lenders and the Agent have
executed this Agreement as of the date first above written.
MODINE
MANUFACTURING COMPANY,
as
Parent and as a Guarantor
By:
/s/X.
X.
Xxxxx
Title:
|
Vice
President, General Counsel and
Secretary
|
0000
XxXxxxx Xxxxxx
Xxxxxx,
Xxxxxxxxx 00000-0000
Attention:
Corporate Treasurer
Telephone: (000)-000-0000
FAX: (000)-000-0000
[Signature
Page 2 of 6 to Credit Agreement]
IN
WITNESS WHEREOF, the Borrower, the Guarantors, the Lenders and the Agent have
executed this Agreement as of the date first above written.
MODINE
DELAWARE LLC, as a Guarantor
By:
/s/Xxxxxxx X. Xxxxxx
Title:
President
MODINE
CLIMATE SYSTEMS INC.,
as
a Guarantor
By:
/s/X. X. Xxxxx
Title:
Secretary
THERMACORE
INTERNATIONAL, INC.,
as
a Guarantor
By:
/s/X. X. Xxxxx
Title:
VP and Assistant Secretary
THERMACORE,
INC., as a Guarantor
By:
/s/X. X. Xxxxx
Title:
VP and Assistant Secretary
THERMAL
CORP., as a Guarantor
By:
/s/X. X. Xxxxx
Title:
VP and Assistant Secretary
|
MODINE,
INC., as a Guarantor
By:
/s/Xxxxxxx X. Xxxxxx
Title:
President
XXXXXX
XXXXXXX, INC., as a Guarantor
By:
/s/X. X. Xxxxx
Title:
Secretary
AIREDALE
INC., as a Guarantor
By:
/s/M. C. Kelsey
Title:
Secretary
AIREDALE
NORTH AMERICA, INC.,
as
a Guarantor
By:
/s/M. C. Kelsey
Title:
Secretary
|
[Signature
Page 3 of 6 to Credit Agreement]
IN
WITNESS WHEREOF, the Borrower, the Guarantors, the Lenders and the Agent have
executed this Agreement as of the date first above written.
X.X.
XXXXXX EUROPE LIMITED,
as the
Agent
By: /s/Xxxxxx
Xxxxx /s/Xxxxx
Xxx
Title: Associate
Associate
000
Xxxxxx Xxxx
Xxxxxx
XX0X 0XX
XXXXXXX
Attention:
Loans Agency (Xxxxxx Xxxxx)
Telephone: x00
00
0000 0000
FAX: x00
00
0000 0000 or 2085
[Signature
Page 4 of 6 to Credit Agreement]
IN
WITNESS WHEREOF, the Borrower, the Guarantors, the Lenders and the Agent have
executed this Agreement as of the date first above written.
Commitments
EUR
47,333,333.00 X.X.
XXXXXX EUROPE LIMITED,
as a
Lender
By:
/s/Xxxxxxxx Xxxxxxxxx
Title: Vice
President
000
Xxxxxx Xxxx
Xxxxxx
XX0X 0XX
XXXXXXX
Attention:
Xxxxxxxx Xxxxxxxxx
Telephone: x00
0000000000
FAX:
x00
0000000000
[Signature
Page 5 of 6 to Credit Agreement]
IN
WITNESS WHEREOF, the Borrower, the Guarantors, the Lenders and the Agent have
executed this Agreement as of the date first above written.
Commitments
EUR
23,666,667.00 SUNTRUST
BANK,
as a
Lender
By: /s/Xxxxx
X. Xxxxxxxxx
Title: Director
000
Xxxxxxxxx Xxxxxx XX
10th
Floor
MC
1928
Xxxxxxx,
Xxxxxxx 00000
Attention:
Xxxxxxx Xxxxxxxxx
Telephone: 000-000-0000
FAX:
000-000-0000
[Signature
Page 6 of 6 to Credit Agreement]