EXHIBIT 4.1
AMENDMENT NO. 4 TO FIRST LIEN CREDIT AGREEMENT
AMENDMENT NO. 4 (this "Amendment"), dated as of December 7, 2006,
among TECUMSEH PRODUCTS COMPANY, a Michigan corporation (the "Borrower"), the
Lenders party hereto, and CITICORP USA, INC., as administrative agent and
collateral agent for the Lenders and the Issuers (in such capacities, the
"Administrative Agent"), amends certain provisions of the FIRST LIEN CREDIT
AGREEMENT, dated as of February 6, 2006 (as the same has heretofore been
amended, as amended hereby, and as it may be further amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"), among the
Borrower, the financial institutions from time to time party thereto as lenders
(the "Lenders"), the financial institutions from time to time party thereto as
issuing banks (the "Issuers") and the Administrative Agent.
WITNESSETH:
WHEREAS, the Borrower has informed the Administrative Agent of its
desire to provide a limited unsecured springing guaranty in favor of certain
creditors of TMT in connection with the restructuring of the obligations of TMT
under the TMT Debt Documents; and
WHEREAS, the Borrower requested, and the Administrative Agent and each
Lender signatory to an Acknowledgement and Consent have agreed to amend the
Credit Agreement as set forth below;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and provisions hereinafter contained, the parties hereto hereby agree
as follows:
1. DEFINED TERMS. Capitalized terms used herein and not defined herein
but defined in the Credit Agreement are used herein as defined in the Credit
Agreement.
2. AMENDMENT TO THE CREDIT AGREEMENT. As of the Fourth Amendment
Effective Date (as defined in Section 4), the Credit Agreement is hereby amended
as follows:
(a) Section 1.1 of the Credit Agreement is hereby amended by deleting
the existing definition of "Permanent Availability Reserve" in its entirety and
inserting the following in lieu thereof:
"Permanent Availability Reserve" means an amount equal to $10,000,000
which shall be applied at all times until all the Obligations have been
paid in full and the Revolving Credit Commitments have been terminated.
(b) Section 1.1 of the Credit Agreement is hereby amended by adding
the following defined terms in alphabetical order:
"Amendment No. 4 to the Credit Agreement" means that certain Amendment
No. 4 to First Lien Credit Agreement, dated as of December 7, 2006, entered
into by the Borrower, the Administrative Agent and the Lenders party
thereto.
"Restructuring Agreement" means that Out-of-Court Restructuring
Agreement (attached hereto as Exhibit B), dated as of November 21, 2006, by
and among TMT, the Borrower, Tecumseh Power Company and certain financial
institutions party thereto.
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"Supply Agreement" means that certain Supply Agreement, dated as of
November 21, 2006, between Tecumseh Power Company and TMT, in the form
attached as Exhibit 3.1 to the Restructuring Agreement.
"TMT Guaranty Agreement" means a Guaranty Agreement (substantially in
the form attached hereto as Exhibit A) to be entered into upon the
satisfaction of the TMT Guaranty Conditions by and among the Borrower, as
the guarantor, and certain financial institutions that are party to the
Restructuring Agreement, as the guarantied parties.
"TMT Guaranty Conditions" means those conditions set forth in Section
5.2(g) of the Restructuring Agreement.
"TMT Guaranty Obligations" means the Borrower's obligations under the
TMT Guaranty Agreement to guarantee TMT's obligations to certain of its
creditors under the TMT Debt Documents; provided, however, the Borrower's
obligations under such TMT Guaranty Agreement shall not be secured by any
of the Borrower's or any of its Subsidiaries' property (other than TMT) and
shall not exceed the aggregate amounts set forth on Exhibit 1.1 to the
Restructuring Agreement (as in effect on the date hereof) plus any other
amounts to accrue thereon in accordance with such Restructuring Agreement
and increases or decreases in such TMT Guaranty Obligations due to
fluctuations in exchange rates.
(c) Article (VI) (Affirmative Covenant) Section 6.1(i) is hereby
amended by (A) deleting the word "Tuesday" appearing on the third line and
inserting the word "Wednesday" and (B) inserting the following as the last
sentence thereof:
Each such forecast shall be accompanied by a report certified to be
accurate to the best of such officer's knowledge by a Responsible Officer
of the Borrower detailing variances between actual cash receipts and
disbursements for the week just completed and the cash receipts and
disbursements that had been forecast for such week in the immediately
preceding cash flow forecast delivered pursuant hereto.
(d) Article VII (Affirmative Covenants) is hereby amended by inserting
the following new Section 7.19 immediately after the existing Section 7.18 to
read as follows:
Section 7.19 TMT Guaranty Agreement
Promptly, but in any event within 5 days after all of the TMT Guaranty
Conditions have been satisfied, a Responsible Officer of the Borrower shall
deliver to the Administrative Agent an executed certificate stating that
all of the TMT Guaranty Conditions have been satisfied.
(e) Article (VIII) Section 8.1 is hereby amended by (A) deleting the
word "and" appearing immediately at the end of clause (k) and inserting "; and"
at the end of clause (l) after deleting "." and (B) inserting the following new
clause (m) immediately after the existing clause (l) to read as follows:
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(m) following the satisfaction of the TMT Guaranty Conditions and
delivery of the certificate required under Section 7.19 (TMT Guaranty
Agreement), TMT Guaranty Obligations.
(f) Article (VIII) Section 8.1 (f) is hereby amended by deleting
clause (iii) therein and inserting the following in lieu thereof:
(iii) from any Non-Guarantor Subsidiary (other than TMT solely to the
extent prohibited under the Restructuring Agreement) to the Borrower or any
Guarantor
(g) Article (VIII) Section 8.2 is hereby amended by deleting clause
(g) therein and inserting the following in lieu thereof:
(g) Liens securing any Indebtedness of Excluded Foreign Subsidiaries
permitted under Section 8.1(b),(i), (j) or (k) (including Liens granted by
TMT on certain of its property to secure its Indebtedness pursuant to the
Restructuring Agreement (as in effect on the date hereof)); and
(h) Article (VIII) Section 8.3 is hereby amended by deleting clause
(g) in its entirety and inserting the following in lieu thereof:
(g) Guaranty Obligations (including the TMT Guaranty Obligations)
permitted by Section 8.1 (Indebtedness).
(i) Article (VIII) Section 8.10 is hereby amended by deleting the
existing clause (a) therein and inserting the following in lieu thereof:
(a) agree to enter into or suffer to exist or become effective any
consensual encumbrance or restriction of any kind on the ability of such
Subsidiary (other than TMT solely to the extent required under the
Restructuring Agreement) to pay dividends or make any other distribution or
transfer of funds or assets or make loans or advances to or other
Investments in, or pay any Indebtedness owed to, the Borrower or any other
Subsidiary of the Borrower
(j) Article (VIII) (Negative Covenants) is hereby amended by inserting
the following new Section 8.19 after the existing Section 8.18 to read as
follows:
Section 8.19 Amendment of TMT Agreements
Neither the Borrower nor any of its Subsidiaries shall change or
amend the terms of the Restructuring Agreement, the Supply Agreement, the
TMT Guaranty Agreement or any other agreement or instrument related to the
TMT Indebtedness, or enter into any other agreement or instrument that has
the effect of varying the terms thereof, in any material respect that is
adverse to the Borrower or any Subsidiary or the Lenders.
(k) Section 9.1 (e)(i) of the Credit Agreement is hereby deleted in
its entirety and replaced with the following:
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(e)(i) the Borrower, any other Loan Party or any Material Foreign
Subsidiary shall fail to make any payment on any Indebtedness of the
Borrower or any such Subsidiary (other than the Obligations) or any
Guaranty Obligation (including the TMT Guaranty Obligations) in respect of
Indebtedness of any other Person, and, in each case, such failure relates
to Indebtedness having a principal amount of $1,000,000 or more, except as
otherwise waived in writing by the Administrative Agent and the Requisite
Lenders, when the same becomes due and payable (whether by scheduled
maturity, required prepayment, acceleration, demand or otherwise),
3. CONSENT. (a) The Administrative Agent and each Lender signatory to
an Acknowledgement and Consent hereby consents to the terms contained in the TMT
Guaranty Agreement and the Restructuring Agreement, as in effect on the date
hereof, (including the Supply Agreement attached thereto as exhibit 3.1), each
attached hereto as Exhibit A and Exhibit B, respectively; provided, however, the
Borrower hereby acknowledges that neither the Administrative Agent nor any such
Lender shall be bound by (or shall be deemed to be subject to) Section 5.2(b)
of, and any other provision in, the Restructuring Agreement that restricts or
purports to restrict the sale or transfer of the Stock of TMT, or otherwise
requires the prior written approval of the banks party thereto in connection
with such sale or transfer.
(b) Each Lender signatory to an Acknowledgement and Consent hereby
consents to the Borrower's request of a one time extension of the delivery date
of the quarterly report solely for the Fiscal Quarter of September 2006, due
within 45 days after the end of such Fiscal Quarter pursuant to Section 6.1(b)
of the Credit Agreement, to December 20, 2006.
4. CONDITIONS PRECEDENT TO THE EFFECTIVENESS OF THIS AMENDMENT. This
Amendment shall become effective on the date (the "Fourth Amendment Effective
Date") when the Administrative Agent shall have received all of the following,
each of which shall be in form and substance satisfactory to the Administrative
Agent:
(a) Certain Documents. The Administrative Agent shall have
received each of the following, in form and substance satisfactory to the
Administrative Agent:
(i) this Amendment, executed by the Borrower and the
Administrative Agent;
(ii) an Acknowledgment and Consent, in the form set forth
hereto as Exhibit C, duly executed by each of the Requisite Lenders;
(iii) the Consent of Guarantors, in the form set forth
hereto as Exhibit D, executed by each Guarantor;
(iv) Amendment No. 1 to the Second Lien Credit Agreement,
executed by the Borrower, the Second Lien Agent and the lenders party thereto;
and
(v) such additional documentation as the Administrative
Agent or the Requisite Lenders may reasonably require.
(b) Payment of Fees, Costs and Expenses. The Administrative Agent
shall have received payment of all fees, costs and expenses, including, without
limitation,
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all fees, costs and expenses of the Administrative Agent (including, without
limitation, the reasonable fees and out-of-pocket expenses of counsel for the
Administrative Agent) in connection with this Amendment, the Credit Agreement
and each other Loan Document, as required by Sections 8 and 9 hereof.
(c) Representations and Warranties. Each of the representations
and warranties contained in Section 5 below shall be true and correct.
(d) No Default or Event of Default. After giving effect to this
Amendment and Amendment No. 1 to the Second Lien Credit Agreement, no Default or
Event of Default shall have occurred and be continuing.
5. REPRESENTATIONS AND WARRANTIES. On and as of the date hereof, and
as of the Fourth Amendment Effective Date, after giving effect to this Amendment
and Amendment No. 1 to the Second Lien Credit Agreement, the Borrower hereby
represents and warrants to the Lenders as follows:
(a) Each of the representations and warranties contained in
Article IV of the Credit Agreement, the other Loan Documents or in any
certificate, document or financial or other statement furnished at any time
under or in connection therewith are true and correct in all material respects
on and as of the date as if made on and as of such date, except to the extent
that such representations and warranties specifically relate to a specific date,
in which case such representations and warranties shall be true and correct in
all material respects as of such specific date; and
(b) No Default or Event of Default has occurred and is
continuing.
6. CONTINUING EFFECT; NO OTHER AMENDMENTS. Except as expressly amended
hereby, all of the terms and provisions of the Credit Agreement and the other
Loan Documents are and shall remain in full force and effect. The amendments and
consents contained herein shall not constitute an amendment or a waiver of any
other provision of the Credit Agreement or the other Loan Documents or for any
other purpose except as expressly set forth herein.
7. LOAN DOCUMENTS. This Amendment is deemed to be a "Loan Document"
for the purposes of the Credit Agreement.
8. FEES. As consideration for the execution of this Amendment, the
Borrower agrees to pay on the Fourth Amendment Effective Date to the
Administrative Agent, for the account of each Lender from which the
Administrative Agent shall have received (by facsimile or otherwise) an executed
Acknowledgment and Consent with respect to this Amendment by 5:00 p.m. (New York
time) on December 7, 2006, a fee equal to 0.10% of such Lender's Revolving
Credit Commitment then in effect.
9. COSTS AND EXPENSES. The Borrower agrees to pay on demand on the
Fourth Amendment Effective Date all reasonable and documented out-of-pocket
costs and expenses of the Administrative Agent in connection with the
preparation, execution and delivery of this Amendment and other instruments and
documents to be delivered pursuant hereto,
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including the reasonable and documented fees and out-of-pocket expenses of
counsel for the Administrative Agent with respect thereto.
10. GOVERNING LAW; COUNTERPARTS; MISCELLANEOUS.
(a) This Amendment shall be governed by, and construed and
interpreted in accordance with, the law of the State of New York.
(b) This Amendment may be executed in any number of counterparts
and by the different parties on separate counterparts, each of which
counterparts when executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument.
(c) Section captions used in this Amendment are for convenience
only and shall not affect the construction of this Amendment.
(d) From and after the Fourth Amendment Effective Date, all
references in the Credit Agreement to the "Agreement" shall be deemed to be
references to such Agreement as modified hereby and this Amendment and the
Credit Agreement shall be read together and construed as a single instrument.
[signature pages follow]
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IN WITNESS WHEREOF, the undersigned parties have executed this
Amendment No. 4 to the Credit Agreement to be effective for all purposes as of
the Fourth Amendment Effective Date.
Borrower
TECUMSEH PRODUCTS COMPANY
as Borrower
By:
------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President, Treasurer and
Chief Financial Officer
[SIGNATURE PAGE TO AMENDMENT NO. 4 TO FIRST LIEN CREDIT AGREEMENT]
Administrative Agent
CITICORP USA, INC.,
as Administrative Agent,
Collateral Agent, Swing Loan Lender,
Issuer and as a Lender
By:
------------------------------------
Name: Sebastien Delasnerie
Title: Vice President
[SIGNATURE PAGE TO AMENDMENT NO. 4 TO FIRST LIEN CREDIT AGREEMENT]
EXHIBIT A
TMT GUARANTY AGREEMENT
[EXHIBIT A]
EXHIBIT B
RESTRUCTURING AGREEMENT
[EXHIBIT B]
EXHIBIT C
ACKNOWLEDGEMENT AND CONSENT
To: CITICORP USA, INC., as Administrative Agent
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
RE: TECUMSEH PRODUCTS COMPANY
Reference is made to the CREDIT AGREEMENT, dated as of February 6,
2006, as amended (as the same may be further amended, supplemented, restated or
otherwise modified from time to time, the "Credit Agreement"), among TECUMSEH
PRODUCTS COMPANY, a Michigan corporation (the "Borrower"), the Lenders and
Issuers party thereto and CITICORP USA, INC. ("Citicorp"), as administrative
agent and collateral agent for the Lenders and the Issuers (in such capacity,
the "Administrative Agent"). Unless otherwise specified herein, all capitalized
terms used in this Acknowledgment and Consent shall have the meanings ascribed
to such terms in the Credit Agreement.
The Borrower has requested that the Lenders consent to amending the
Credit Agreement on the terms described in Amendment No. 4 to First Lien Credit
Agreement (the "Amendment"), the form of which is attached hereto.
Pursuant to Section 11.1(a) (Amendments, Waivers, Etc.) of the Credit
Agreement, the undersigned Lender hereby consents to the terms of the Amendment
and authorizes the Administrative Agent to execute and deliver such Amendment on
its behalf.
Very truly yours,
----------------------------------------
[Name of Lender]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Dated as of December 7, 2006
EXHIBIT D
CONSENT OF GUARANTORS
Dated as of December 7, 2006
Each of the undersigned companies, as a Guarantor under the Guaranty
dated February 6, 2006 (the "Guaranty") in favor of the Secured Parties under
the Credit Agreement referred to in the foregoing Amendment, hereby consents to
such Amendment and hereby confirms and agrees that notwithstanding the
effectiveness of such Amendment, the Guaranty is, and shall continue to be, in
full force and effect and is hereby ratified and confirmed in all respects,
except that, on and after the effectiveness of such Amendment, each reference in
the Guaranty to the "Credit Agreement", "thereunder", "thereof" or words of like
import shall mean and be a reference to the Credit Agreement, as amended by such
Amendment.
[Signature pages follow]
IN WITNESS WHEREOF, the parties hereto have consented to this
Amendment No. 4, as of the date first written above.
CONVERGENT TECHNOLOGIES INTERNATIONAL,
INC.
TECUMSEH TRADING COMPANY
EVERGY, INC.
FASCO INDUSTRIES, INC.
MANUFACTURING DATA SYSTEMS, INC.
M. P. PUMPS, INC.
TECUMSEH CANADA HOLDING COMPANY
TECUMSEH COMPRESSOR COMPANY
TECUMSEH POWER COMPANY
XXX XXXXX GEAR COMPANY
as U.S. Guarantors
By:
------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President and Treasurer
EUROMOTOR, INC.
as U.S. Guarantor
By:
------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
XXXXXX PROPERTY COMPANY, LLC
TECUMSEH DO BRASIL USA, LLC
as U.S. Guarantors
By:
------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: President
[SIGNATURE PAGE TO GUARANTOR CONSENT TO AMENDMENT NO. 4 TO FIRST LIEN CREDIT
AGREEMENT]
TECUMSEH PRODUCTS OF CANADA LIMITED,
as Canadian Guarantor
By:
------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President and Treasurer
FASCO MOTORS COMPANY,
as Canadian Guarantor
By:
------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
[SIGNATURE PAGE TO GUARANTOR CONSENT TO AMENDMENT NO. 4 TO FIRST LIEN CREDIT
AGREEMENT]
