EXHIBIT 4.1
===============================================================================
EXECUTION COPY
TECUMSEH PRODUCTS COMPANY
AMENDMENT NO. 3
TO NOTE PURCHASE AGREEMENT
DATED AS OF NOVEMBER 4, 2005
$300,000,000 ADJUSTABLE RATE SENIOR GUARANTEED NOTES DUE MARCH 5, 2011
===============================================================================
TECUMSEH PRODUCTS COMPANY
$300,000,000 ADJUSTABLE RATE SENIOR GUARANTEED NOTES DUE MARCH 5, 2011
As of November 4, 2005
TO EACH OF THE CURRENT NOTEHOLDERS
NAMED IN ANNEX 1 HERETO:
Ladies and Gentlemen:
TECUMSEH PRODUCTS COMPANY, a Michigan corporation (together with any
successors and assigns, the "COMPANY"), hereby agrees with each of you as
follows:
1. PRIOR ISSUANCE OF NOTES, ETC.
The Company is a party to a certain Note Purchase Agreement dated as of
March 5, 2003 with the purchasers named in Schedule A thereto, as amended by
that certain Amendment and Waiver No. 1 to Note Purchase Agreement (the "FIRST
AMENDMENT AGREEMENT") dated as of June 30, 2005, and that certain Amendment No.
2 to Note Purchase Agreement (the "SECOND AMENDMENT AGREEMENT") dated as of
August 5, 2005 (as amended by the First Amendment Agreement and the Second
Amendment Agreement, the "EXISTING NOTE PURCHASE AGREEMENT" and, as amended
pursuant to this Agreement and as may be further amended, restated or otherwise
modified from time to time, the "NOTE PURCHASE AGREEMENT") pursuant to which the
Company issued and sold three hundred million dollars ($300,000,000) in
aggregate principal amount of its 4.66% Senior Guaranteed Notes due March 5,
2011, which Notes were amended pursuant to the Second Amendment Agreement to be
the Company's Adjustable Rate Senior Guaranteed Notes due March 5, 2011 (as
amended, restated, modified or replaced from time to time, together with any
such notes issued in substitution therefor pursuant to Section 13 of the Note
Purchase Agreement, the "NOTES"). The Company represents and warrants to each of
you that the register kept by the Company for the registration and transfer of
the Notes indicates that each of the Persons named in Annex 1 hereto
(collectively, the "CURRENT NOTEHOLDERS") is currently a holder of the aggregate
principal amount of the Notes indicated in such Annex.
2. REQUEST FOR CONSENT TO AMENDMENTS.
The Company requests that each of the Current Noteholders agree to the
amendment of certain provisions of the Existing Note Purchase Agreement as
provided for by Section 4 of this Agreement (the "AMENDMENTS").
3. WARRANTIES AND REPRESENTATIONS.
To induce the Current Noteholders to enter into this Agreement and to
agree to the Amendments, the Company warrants and represents to you, as of the
Effective Date, as follows (it being agreed, however, that nothing in this
Section 3 shall affect any of the warranties and representations previously made
by the Company in or pursuant to the Existing Note Purchase
Agreement, and that all of such other warranties and representations, as well as
the warranties and representations in this Section 3, shall survive the
effectiveness of the Amendments).
3.1. NO MATERIAL ADVERSE CHANGE.
Since the date of the financial statements of the Company filed with
the Securities and Exchange Commission with the Company's Quarterly Report on
Form 10-Q for the period ended June 30, 2005 (the "Second Quarter 2005 Financial
Statements"), there has been no change in the business operations, profits,
financial condition, properties or business prospects of the Company except for
an approximate $25 million reduction in profits and assets resulting from the
establishment by the Company, during the fiscal quarter ended September 30,
2005, of a valuation allowance against deferred tax assets, as contemplated in
footnote 11 to the Second Quarter 2005 Financial Statements, and except for
changes that, in the aggregate, could not reasonably be expected to have a
Material Adverse Effect.
3.2. FULL DISCLOSURE.
Neither the financial statements and other certificates previously
provided to the Current Noteholders pursuant to the provisions of the Existing
Note Purchase Agreement nor the statements made in this Agreement nor the
materials and information furnished by or on behalf of the Company to the
Current Noteholders in connection with the proposal and negotiation of the
Amendments, taken as a whole, contain any untrue statement of a material fact or
omit a material fact necessary to make the statements contained therein and
herein, taken as a whole, not misleading. There is no fact relating to any event
or circumstance that has occurred or arisen since August 5, 2005 that the
Company has not disclosed to the Current Noteholders in writing that has had or,
so far as the Company can now reasonably foresee, could reasonably be expected
to have, a Material Adverse Effect. All pro forma financial information,
financial or other projections and forward-looking statements delivered to the
Current Noteholders have been prepared in good faith by the Company based on
reasonable assumptions.
3.3. SOLVENCY.
The fair value of the business and assets of each of the Company and
each Subsidiary Guarantor exceeds the amount that will be required to pay its
respective liabilities (including, without limitation, contingent, subordinated,
unmatured and unliquidated liabilities on existing debts, as such liabilities
may become absolute and matured). Neither the Company nor the Subsidiary
Guarantors is engaged in any business or transaction, or about to engage in any
business or transaction, for which such Person has unreasonably small assets or
capital (within the meaning of the Uniform Fraudulent Transfer Act, the Uniform
Fraudulent Conveyance Act and Section 548 of the Federal Bankruptcy Code), and
neither the Company nor the Subsidiary Guarantors has any intent to
(a) hinder, delay or defraud any entity to which any of
them is, or will become, on or after the Effective Date, indebted, or
(b) incur debts that would be beyond any of their ability
to pay as they mature.
3.4. NO DEFAULTS.
No event has occurred and no condition exists that, upon the execution
and delivery of this Agreement and the effectiveness of the Amendments, would
constitute a Default or an Event of Default.
3.5. NO BANKRUPTCY FILING.
Neither the Company nor any Subsidiary (a) is contemplating either an
Insolvency Proceeding with respect to it or the liquidation of all or a major
portion of its assets or property following the Effective Date and (b) has any
knowledge of any Person contemplating an Insolvency Proceeding against it. As
used herein, the term "Insolvency Proceeding" means any proceeding commenced by
or against any Person under any provision of the United States Federal
Bankruptcy Code or under any other bankruptcy or insolvency law, assignments for
the benefit of creditors, formal or informal moratoria, compositions, or
extensions generally with creditors, or proceedings seeking reorganization,
arrangement, or other similar relief.
3.6. TITLE TO PROPERTIES.
The Company and its Subsidiaries have good and sufficient title to or
the legal right to use their respective properties that individually or in the
aggregate are Material, including all such properties reflected in the most
recent audited balance sheet of the Company delivered pursuant to the provisions
of Section 7.1 of the Existing Note Purchase Agreement (except as sold or
otherwise disposed of in the ordinary course of business) or purported to have
been acquired by the Company or any Subsidiary after said date (except as sold
or otherwise disposed of in the ordinary course of business), in each case free
and clear of Liens not permitted by the Note Purchase Agreement.
3.7. TRANSACTION IS LEGAL AND AUTHORIZED; OBLIGATIONS ARE
ENFORCEABLE.
(a) The execution and delivery of this Agreement by the
Company and compliance by the Company with all of its respective
obligations hereunder:
(i) is within the corporate powers of the
Company;
(ii) is legal and does not conflict with, result
in any breach in any of the provisions of, constitute a
default under, or result in the creation of any Lien upon any
Property of the Company or any Subsidiary under the provisions
of, any agreement, charter instrument, bylaw or other
instrument to which it is a party or by which it or any of its
Property may be bound; and
(iii) does not give rise to a right or option of
any other Person under any agreement or other instrument,
which right or option could reasonably be expected to have a
Material Adverse Effect.
(b) This Agreement has been duly authorized by all
necessary action on the part of the Company and has been executed and
delivered by one or more duly authorized officers of the Company, and
each constitutes a legal, valid and binding obligation of the
Company, enforceable in accordance with its terms, except that such
enforceability may be:
(i) limited by applicable bankruptcy,
reorganization, arrangement, insolvency, moratorium or other
similar laws affecting the enforceability of creditors' rights
generally; and
(ii) subject to the availability of equitable
remedies.
3.8. CERTAIN LAWS.
The execution and delivery of this Agreement by the Company and the
consummation of the transaction contemplated hereby:
(a) is not subject to regulation under the Investment
Company Act of 1940, as amended, the Public Utility Holding Company Act
of 1935, as amended, the Transportation Acts, as amended, or the
Federal Power Act, as amended, and
(b) does not violate any provision of any statute or
other rule or regulation of any Governmental Authority applicable to
the Company or any Subsidiary.
3.9. LITIGATION; OBSERVANCE OF AGREEMENTS.
(a) Other than the matters disclosed in the consolidated
financial statements of the Company and its Subsidiaries for the fiscal
year ended December 31, 2004 and the fiscal quarters ended March 31,
2005 and June 30, 2005 (and the footnotes thereto), there are no
actions, suits or proceedings pending or, to the knowledge of the
Company, threatened against or affecting the Company or any Subsidiary
or any property of the Company or any Subsidiary in any court or before
any arbitrator of any kind or before or by any Governmental Authority
that, individually or in the aggregate, could reasonably be expected to
have a Material Adverse Effect.
(b) Other than the matters disclosed in the consolidated
financial statements of the Company and its Subsidiaries for the fiscal
year ended December 31, 2004 and the quarters ended March 31, 2005 and
June 30, 2005 (and the footnotes thereto), neither the Company nor any
Subsidiary is in default under any term of any order, judgment, decree
or ruling of any court, arbitrator or Governmental Authority or is in
violation of any applicable law, ordinance, rule or regulation
(including, without limitation, Environmental Laws) of any Governmental
Authority, which default or violation, individually or in the
aggregate, could reasonably be expected to have a Material Adverse
Effect.
3.10. CHARTER INSTRUMENTS; OTHER AGREEMENTS.
Neither the Company nor any Subsidiary is in violation in any respect
of any term of any charter instrument or bylaw. Upon the execution and delivery
hereof and the effectiveness of the Amendments as provided herein, neither the
Company nor any Subsidiary is in violation or default in any material respect of
any term in any agreement or other instrument to which it is a
party or by which it or any of its material property may be bound or affected.
The execution, delivery and performance by the Company of this Agreement will
not conflict with or result in the breach of any of the terms, conditions or
provisions of any order, judgment, decree or ruling of any court, arbitrator or
Governmental Authority applicable to the Company or any Subsidiary or violate
any provision of any statute or other rule or regulation of any Government
Authority applicable to the Company or any Subsidiary. The Company represents
that the Specified IRB Documents will be amended to conform certain terms
thereof to the terms of the Credit Agreement, but no other material amendments
to the Specified IRB Documents will be made.
3.11. TAXES.
The Company and its Subsidiaries have filed all tax returns that are
required to have been filed in any jurisdiction, and have paid all taxes shown
to be due and payable on such returns and all other taxes and assessments levied
upon them or their properties, assets, income or franchises, to the extent such
taxes and assessments have become due and payable and before they have become
delinquent, except for any taxes and assessments (a) the amount of which is not
individually or in the aggregate Material or (b) the amount, applicability or
validity of which is currently being contested in good faith by appropriate
proceedings and with respect to which the Company or a Subsidiary, as the case
may be, has established adequate reserves in accordance with GAAP. The Company
knows of no basis for any other tax or assessment that could reasonably be
expected to have a Material Adverse Effect. The charges, accruals and reserves
on the books of the Company and the Subsidiaries in respect of federal, state or
other taxes for all fiscal periods are adequate.
3.12. GOVERNMENTAL CONSENT.
Neither the Company or any Subsidiary thereof, nor the nature of any of
its or their respective businesses or properties, is such so as to require a
consent, approval or authorization of, or filing, registration or qualification
with, any governmental authority on the part of the Company as a condition to
the execution and delivery of this Agreement.
3.13. FEES.
Neither the Company nor any Subsidiary thereof has paid (or promised to
pay) any amendment fee or any other direct or indirect compensation to any
lender, the arranger or the agent party to the Credit Agreement or to any other
creditor of the Company or any Subsidiary (other than the Current Noteholders)
in connection with the transactions contemplated hereby other than a fee of 0.5%
on the outstanding balance as of March 31, 2006, if any, under the Credit
Agreement, and a fee of 0.5% on the outstanding balance as of June 30, 2006, if
any, under the Credit Agreement.
3.14. INDEBTEDNESS; LIENS.
Schedule 3.14 to this Agreement correctly describes all Indebtedness of
the Company and its Subsidiaries as of September 30, 2005. Schedule 3.14 to this
Agreement correctly describes all outstanding Liens securing Indebtedness in an
amount greater than $1,000,000 and all other material Liens on property of the
Company or its Subsidiaries as of the date hereof. Neither the Company nor any
Subsidiary is in default and no waiver of default is currently in effect, in the
payment of any principal or interest on any Indebtedness of the Company or such
Subsidiary listed on Schedule 3.14 hereto and no event or condition exists with
respect to any Indebtedness of the Company or any Subsidiary listed on such
schedule that would permit (or that with notice or the lapse of time, or both,
would permit) one or more Persons to cause such Indebtedness to become due and
payable before its stated maturity or before its regularly scheduled dates of
payment, other than any such conditions under the Credit Agreement giving rise
to the amendment thereof to be entered into contemporaneously herewith.
4. AMENDMENTS.
4.1. NOTE PURCHASE AGREEMENT AMENDMENTS.
Subject to the satisfaction of the conditions set forth in Section 5,
the Existing Note Purchase Agreement is hereby and shall be amended in the
manner specified in Exhibit A to this Agreement (the "AMENDMENTS").
4.2. NO OTHER AMENDMENTS; CONFIRMATION.
Except as expressly provided herein, (a) no terms or provisions of any
agreement are modified or changed by this Agreement, (b) the terms of this
Agreement shall not operate as a waiver by any Current Noteholder of, or
otherwise prejudice any Current Noteholder's rights, remedies or powers under,
the Existing Note Purchase Agreement, the Notes or any other Financing Document
or under any applicable law, and (c) the terms and provisions of the Existing
Note Purchase Agreement, the Notes and each other Financing Document shall
continue in full force and effect.
5. CONDITIONS TO EFFECTIVENESS; POST-CLOSING OBLIGATIONS.
(a) Conditions to Effectiveness. This Agreement shall become
effective on November 4, 2005 (the "EFFECTIVE DATE") provided that the Company
and the Required Holders shall have indicated their written consent hereto by
executing and delivering the applicable counterparts of this Agreement in
accordance with Section 17.1 of the Existing Note Purchase Agreement. It is
understood that any Current Noteholder may withhold its consent for any reason
or for no reason, and that, without limitation of the foregoing, any Current
Noteholder hereby makes the granting of its consent contingent upon satisfaction
of each of the following conditions:
(i) the Company shall have entered into and delivered to
each of the Current Noteholders a true and correct copy of an amendment
to the Credit Agreement entered into on the date hereof, providing for
corresponding amendments (as applicable) to the Amendments provided for
herein, together with all agreements and documents executed in
connection therewith, in form and substance satisfactory to the Current
Noteholders;
(ii) the Company shall have pledged to the Collateral
Agent for the benefit of the holders of Notes and the lenders party to
the Credit Agreement 65% of each class of the issued and outstanding
capital stock of each Material Foreign Subsidiary (as defined in the
Second Amendment Agreement) pursuant to agreements duly executed and
delivered by it to the Collateral Agent or its counsel, together with
such other documents
as are required under local law to create a valid, enforceable and
perfected lien on such stock (except that, with respect to the
Company's Indian Subsidiary, delivery of faxed copies of such documents
shall have been provided, with a commitment to deliver the originals
thereof on the next business day) in form and substance satisfactory to
the Collateral Agent and the Current Noteholders;
(iii) the Company shall have delivered a certificate of one
of its Senior Financial Officers (A) attaching projections of
Consolidated EBITDA and Consolidated Capital Expenditures for each
fiscal quarter of the Company during the Specified Compliance Period,
(B) acknowledging that such projections are the "Covenant Compliance
Projections" referred to in the Note Purchase Agreement and (C)
certifying that such projections contained therein have been prepared
by the Company on the basis of assumptions which the Company reasonably
believes are reasonable in light of the historical performance of the
Company and its Subsidiaries and reasonably foreseeable business
conditions, in form and substance (including the Covenant Compliance
Projections) satisfactory to the Current Noteholders;
(iv) the Company shall have delivered legal opinions of
Miller, Canfield, Paddock and Stone, PLC and of Daryl McDonald, general
counsel to the Company, with respect to such matters as the Current
Noteholders may reasonably request and otherwise in form and substance
satisfactory to them; and
(v) the Company shall have entered into and delivered to
each of the Current Noteholders a true and correct copy of the
following, each in form and substance satisfactory to the Current
Noteholders:
(A) a revised engagement agreement with Bingham
McCutchen LLP ("BINGHAM"), special counsel to the Current
Noteholders; and
(B) a revised engagement agreement with Conway,
Del Genio, Gries & Co. LLC ("CDG"), financial advisor to the
Current Noteholders, providing for the engagement of CDG as of
October 26, 2005.
(b) Post Closing Obligations.
On or before November 7, 2005, the Company shall have:
(i) in accordance with the terms of the revised
engagement agreement between Bingham and the Company referred to in
Section 5(a)(v)(A) above, paid the fee reserve described therein, and
all unpaid fees and other amounts and disbursements of Bingham for
which invoices were presented to the Company on or before November 4,
2005; and
(ii) in accordance with the terms of the revised
engagement agreement between CDG and the Company referred to above in
Section 5(a)(v)(B), paid the retainer and initial monthly fee described
therein, and paid all unpaid fees and other amounts due to CDG and
shall have reimbursed CDG for all of its reasonable out-of-pocket
expenses
in connection with the transactions contemplated hereby for which
invoices were presented to the Company on or before November 4, 2005.
Any amendment entered into in connection with the transaction
contemplated hereby shall be in form and substance satisfactory to the Required
Holders, provided that execution and delivery of this Agreement by the Required
Holders shall be deemed to be an affirmation that such amendment is so
satisfactory.
6. DEFINED TERMS.
Capitalized terms used herein and not otherwise defined herein shall
have the meanings ascribed to them in the Note Purchase Agreement.
7. EXPENSES; FEE.
(a) Whether or not any of the Amendments becomes effective, the
Company will promptly (and in any event within thirty (30) days of receiving any
statement or invoice therefor) pay all fees, expenses and costs relating to this
Agreement, including, but not limited to, (i) the reasonable cost of reproducing
this Agreement and the other documents delivered in connection herewith, (ii)
the reasonable fees and other amounts and disbursements of Bingham, incurred in
connection with the preparation, negotiation and delivery of this Agreement and
the documents contemplated hereby, to the extent not paid pursuant to Section
5(f) above and (iii) the fees and other amounts and disbursements of CDG. This
Section 7 shall not be construed to limit the Company's obligations under
Section 15.1 of the Note Purchase Agreement.
(b) In consideration of the Amendments provided herein, the
Company shall pay to each holder of Notes a fee, on March 31, 2006, equal to 1%
of the aggregate outstanding principal amount of Notes held by such holder on
such date, in each case payable by wire transfer of immediately available funds
to the account and in accordance with the instructions for payments in respect
of the Notes held by such holder set forth in Schedule A to the Note Purchase
Agreement, or in accordance with such other instructions provided by such holder
to the Company in writing.
8. MISCELLANEOUS.
8.1. ACKNOWLEDGEMENT OF INTEREST RATE.
The Company hereby acknowledges and agrees that, prior to giving effect
to this Agreement, it was not in compliance with Section 10.14 of the Note
Purchase Agreement and therefore has not met the Applicable Rate Reduction
Criteria, and that, as a result of such non-compliance, the Applicable Interest
Rate under the Note Purchase Agreement is and shall remain 6.60% per annum.
Notwithstanding the foregoing, the Current Noteholders acknowledge and affirm
that for purposes of determining the "Remaining Scheduled Payments" (as defined
in Section 8.7 of the Note Purchase Agreement) with respect to any Note in
determining the Make-Whole Amount with respect thereto, such determination shall
be made assuming the Applicable Interest Rate were 4.66% per annum, as agreed in
the Second Amendment Agreement.
8.2. WAIVERS.
(a) Conditional Waiver. The Current Noteholders hereby agree that
if an Event of Default exists and a lender or lenders, or group of lenders,
contemplating making a loan or loans to the Company requires as the sole
remaining condition to funding such loan or loans that the Current Noteholders
waive such Event of Default, then the Current Noteholders will, without
compensation, provide such a waiver, but only if the Notes are paid in full
(including accrued interest and any applicable Make-Whole Amount) from the
proceeds of such loan or loans contemporaneously with the giving of such waiver.
(b) Credit Agreement Leverage Ratio. The Current Noteholders
hereby agree that the leverage ratio (the "EXISTING BANK LEVERAGE RATIO") set
forth in Section 6.19.2 of the Credit Agreement prior to giving effect to the
Second Amendment to Credit Agreement, dated as of the date hereof, between the
Company and the lenders party to the Credit Agreement (the "SECOND CREDIT
AGREEMENT AMENDMENT"), which was deemed to be incorporated into the Note
Purchase Agreement pursuant to Section 10.15 thereof (the "MOST FAVORED LENDER
COVENANT") shall be deemed to be removed from the Note Purchase Agreement. For
the avoidance of doubt, the deemed removal of the Existing Bank Leverage Ratio
from the Note Purchase Agreement shall in no way limit the operation of the Most
Favored Lender Covenant to any other provision of any More Favorable Lending
Agreement, including without limitation, the leverage ratio (the "NEW BANK
LEVERAGE RATIO") set forth in Section 6.19.2 of the Credit Agreement, after
giving effect to the Second Credit Agreement Amendment, which ratio shall be
deemed to be incorporated into the Note Purchase Agreement under the Most
Favored Lender Covenant.
8.3. FURTHER ASSURANCES.
Without in any way limiting the obligations of the Company and its
Subsidiaries under the Security Agreement, the Company and its Subsidiaries
shall take all further commercially reasonable action requested by the
Collateral Agent or the Current Noteholders to create valid, enforceable and
perfected liens in favor of the Collateral Agent on 65% of each class of the
issued and outstanding capital stock of each Material Foreign Subsidiary.
8.4. PART OF NOTE PURCHASE AGREEMENT, FUTURE REFERENCES, ETC.
This Agreement shall be construed in connection with and as a part of
the Existing Note Purchase Agreement and, except as expressly amended by this
Agreement, all terms, conditions and covenants contained in the Existing Note
Purchase Agreement, the Notes and the other Financing Documents are hereby
ratified and shall be and remain in full force and effect. Any and all notices,
requests, certificates and other instruments executed and delivered after the
execution and delivery of this Agreement may refer to the Note Purchase
Agreement without making specific reference to this Agreement, but nevertheless
all such references shall include this Agreement unless the context otherwise
requires.
8.5. GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF MICHIGAN, UNITED STATES OF AMERICA,
EXCLUDING CHOICE-OF-LAW PRINCIPLES OF THE LAW OF SUCH STATE THAT WOULD REQUIRE
THE APPLICATION OF THE LAWS OF A JURISDICTION OTHER THAN SUCH STATE.
8.6. DUPLICATE ORIGINALS, EXECUTION IN COUNTERPART.
Two (2) or more duplicate originals hereof may be signed by the
parties, each of which shall be an original but all of which together shall
constitute one and the same instrument. This Agreement may be executed in one or
more counterparts and shall become effective at the time provided in Section 5
hereof, and each set of counterparts that, collectively, show execution by the
Company and each consenting Current Noteholder shall constitute one duplicate
original.
8.7. BINDING EFFECT.
This Agreement shall be binding upon and shall inure to the benefit of
the Company and the Current Noteholders and their respective successors and
assigns.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK; NEXT PAGE IS SIGNATURE PAGE.]
If this Agreement is satisfactory to you, please so indicate by signing
the applicable acceptance on a counterpart hereof and returning such counterpart
to the Company, whereupon this Agreement shall become binding among the Company
and you in accordance with its terms.
Very truly yours,
TECUMSEH PRODUCTS COMPANY
By: /s/ James S. Nicholson
Name: James S. Nicholson
Title: Vice President, Treasurer & CFO
Accepted:
NEW YORK LIFE INSURANCE COMPANY
By: /s/ Lisa A. Scuderi
Name: Lisa A. Scuderi
Title: Investment Vice President
NEW YORK LIFE INSURANCE AND ANNUITY CORPORATION
BY: NEW YORK LIFE INVESTMENT MANAGEMENT LLC, ITS INVESTMENT MANAGER
By: /s/ Lisa A. Scuderi
Name: Lisa A. Scuderi
Title: Investment Vice President
NEW YORK LIFE INSURANCE AND ANNUITY CORPORATION
INSTITUTIONALLY OWNED LIFE INSURANCE SEPARATE ACCOUNT
BY: NEW YORK LIFE INVESTMENT MANAGEMENT LLC, ITS INVESTMENT MANAGER
By: /s/ Lisa A. Scuderi
Name: Lisa A. Scuderi
Title: Investment Vice President
[Signature Page to Amendment No. 3 to Note Purchase Agreement]
STATE FARM LIFE INSURANCE COMPANY
By: /s/ Jeffrey Attwood
Name: Jeffrey Attwood
Title: Investment Officer
By: /s/ Larry Rottunda
Name: Larry Rottunda
Title: Assistant Secretary
STATE FARM LIFE AND ACCIDENT ASSURANCE COMPANY
By: /s/ Jeffrey Attwood
Name: Jeffrey Attwood
Title: Investment Officer
By: /s/ Larry Rottunda
Name: Larry Rottunda
Title: Assistant Secretary
GENERAL ELECTRIC CAPITAL ASSURANCE COMPANY
By: /s/ Morian C. Mooers
Name: Morian C. Mooers
Title: Investment Officer
GE CAPITAL LIFE ASSURANCE COMPANY OF NEW YORK
By: /s/ Morian C. Mooers
Name: Morian C. Mooers
Title: Investment Officer
EMPLOYERS REINSURANCE CORPORATION
BY: GE ASSET MANAGEMENT INCORPORATED, ITS INVESTMENT MANAGER
BY: GENWORTH FINANCIAL ASSET MANAGEMENT, LLC, ITS INVESTMENT ADVISOR
By: /s/ Morian C. Mooers
Name: Morian C. Mooers
Title: Investment Officer
FIRST COLONY LIFE INSURANCE COMPANY
By: /s/ Morian C. Mooers
Name: Morian C. Mooers
Title: Investment Officer
GE LIFE AND ANNUITY ASSURANCE COMPANY
By: /s/ Morian C. Mooers
Name: Morian C. Mooers
Title: Investment Officer
GREAT-WEST LIFE & ANNUITY INSURANCE COMPANY
By: /s/ Tad Anderson
Name: Tad Anderson
Title: Ass't. Vice President, Investments
By: /s/ J.G. Lowery
Name: J.G. Lowery
Title: Ass't. Vice President, Investments
LONDON LIFE AND CASUALTY (BARBADOS) CORPORATION
BY: ORCHARD CAPITAL MANAGEMENT, LLC, AS INVESTMENT ADVISER
By: /s/ Wayne Hoffmann
Name: Wayne Hoffmann
Title: Senior Vice President, Investments
By: /s/ Tad Anderson
Name: Tad Anderson
Title: Ass't. Vice President, Investments
LONDON LIFE INSURANCE COMPANY
By: /s/ W.J. Sharman
Name: W.J. Sharman
Title: Authorized Signatory
By: /s/ D.B. Bergen
Name: D.B. Bergen
Title: Authorized Signatory
THE GREAT-WEST LIFE ASSURANCE COMPANY
By: /s/ W.J. Sharman
Name: W.J. Sharman
Title: Authorized Signatory
By: /s/ D.B. Bergen
Name: D.B. Bergen
Title: Authorized Signatory
PACIFIC LIFE INSURANCE COMPANY
(NOMINEE: MAC & CO.)
By: /s/ Cathy Schwartz
Name: Cathy Schwartz
Title: Assistant Vice President
By: /s/ David C. Patch
Name: David C. Patch
Title: Assistant Secretary
JEFFERSON-PILOT LIFE INSURANCE COMPANY
By:
----------------------------------
Name:
Title:
JEFFERSON PILOT FINANCIAL INSURANCE COMPANY
By:
----------------------------------
Name:
Title:
JEFFERSON PILOT LIFEAMERICA INSURANCE COMPANY
By:
----------------------------------
Name:
Title:
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
BY: BABSON CAPITAL MANAGEMENT LLC, AS INVESTMENT ADVISER
By: /s/ Elisabeth A. Perenick
Name: Elisabeth A. Perenick
Title: Managing Director
C.M. LIFE INSURANCE COMPANY
BY: BABSON CAPITAL MANAGEMENT LLC, AS INVESTMENT SUB-ADVISER
By: /s/ Elisabeth A. Perenick
Name: Elisabeth A. Perenick
Title: Managing Director
MASSMUTUAL ASIA LIMITED
BY: BABSON CAPITAL MANAGEMENT LLC, AS INVESTMENT ADVISER
By: /s/ Elisabeth A. Perenick
Name: Elisabeth A. Perenick
Title: Managing Director
ALLSTATE LIFE INSURANCE COMPANY
By: /s/ Robert B. Bodett
Name: B. Bodett
By: /s/ Jerry D. Zinkula
Name: Jerry D. Zinkula
Authorized Signatories
ALLSTATE LIFE INSURANCE COMPANY OF NEW YORK
By: /s/ Robert B. Bodett
Name: B. Bodett
By: /s/ Jerry D. Zinkula
Name: Jerry D. Zinkula
Authorized Signatories
AMERICAN HERITAGE LIFE INSURANCE COMPANY
By: /s/ Robert B. Bodett
Name: B. Bodett
By: /s/ Jerry D. Zinkula
Name: Jerry D. Zinkula
Authorized Signatories
NATIONWIDE LIFE INSURANCE COMPANY
NATIONWIDE LIFE AND ANNUITY INSURANCE COMPANY
NATIONWIDE MUTUAL INSURANCE COMPANY
By: /s/ Mark W. Poeppelman
Name: Mark W. Poeppelman
Title: Authorized Signatory
TRANSAMERICA LIFE INSURANCE COMPANY
By: /s/ Bill Henricksen
Name: Bill Henricksen
Title: Vice President
TRANSAMERICA OCCIDENTAL LIFE INSURANCE COMPANY
By: /s/ Bill Henricksen
Name: Bill Henricksen
Title: Vice President
HARTFORD LIFE INSURANCE COMPANY, AND
HARTFORD UNDERWRITERS INSURANCE COMPANY
BY: HARTFORD INVESTMENT SERVICES, INC., AS AGENT AND ATTORNEY-IN-FACT
By: /s/ Ronald A. Mendel
Name: Ronald A. Mendel
Title: Managing Director
AMERICAN UNITED LIFE INSURANCE COMPANY
By: /s/ Michael Bullock
Name: Michael Bullock
Title: V.P. Private Placements
PIONEER MUTUAL LIFE INSURANCE COMPANY
BY: AMERICAN UNITED LIFE INSURANCE COMPANY, ITS AGENT
By: /s/ Michael Bullock
Name: Michael Bullock
Title: V.P. Private Placements
THE STATE LIFE INSURANCE COMPANY
BY: AMERICAN UNITED LIFE INSURANCE COMPANY, ITS AGENT
By: /s/ Michael Bullock
Name: Michael Bullock
Title: V.P. Private Placements
AMERITAS LIFE INSURANCE CORP.
BY: AMERITAS INVESTMENT ADVISORS, INC., AS AGENT
By: /s/ Andrew S. White
Name: Andrew S. White
Title: Vice President, Fixed Income Securities
ACACIA NATIONAL LIFE INSURANCE COMPANY
BY: AMERITAS INVESTMENT ADVISORS, INC., AS AGENT
By: s/ Andrew S. White
Name: Andrew S. White
Title: Vice President, Fixed Income Securities
AMERITAS VARIABLE LIFE INSURANCE COMPANY
BY: AMERITAS INVESTMENT ADVISORS, INC., AS AGENT
By: /s/ Andrew S. White
Name: Andrew S. White
Title: Vice President, Fixed Income Securities
The undersigned Guarantors hereby acknowledge and agree to the terms
and provisions contained herein, agree to be bound by the terms of Section 4
hereof, and consent to the Company's execution hereof:
CONVERGENT TECHNOLOGIES INTERNATIONAL, INC.
DOUGLAS HOLDINGS, INC.
EVERGY, INC.
FASCO INDUSTRIES, INC.
LITTLE GIANT PUMP CO.
MANUFACTURING DATA SYSTEMS, INC.
MP PUMPS, INC.
TECUMSEH CANADA HOLDING COMPANY
TECUMSEH COMPRESSOR COMPANY
TECUMSEH INVESTMENTS INC.
TECUMSEH POWER COMPANY
TECUMSEH PUMP COMPANY
VON WEISE GEAR COMPANY
TECUMSEH DO BRAZIL USA, LLC
By: /s/ James S. Nicholson
Name: James S. Nicholson
Title: Vice President and Treasurer
EUROMOTOR, INC.
By: /s/ James S. Nicholson
Name: James S. Nicholson
Title: Vice President
HAYTON PROPERTY COMPANY, LLC
BY: TECUMSEH PRODUCTS COMPANY, ITS SOLE MEMBER
By: /s/ James S. Nicholson
Name: James S. Nicholson
Title: Vice President, Treasurer
and Chief Financial Officer
ANNEX 1
CURRENT NOTEHOLDERS AND PRINCIPAL AMOUNTS
<Table>
<Caption>
NAME OF CURRENT NOTEHOLDER OUTSTANDING PRINCIPAL AMOUNT OF
NOTES HELD AT JUNE 30, 2005
- ---------------------------------------------------------------- -------------------------------
New York Life Insurance Company $23,333,333.33
New York Life Insurance and Annuity Corporation $13,750,000.00
New York Life Insurance and Annuity Corporation $416,666.66
Institutionally Owned Life Insurance Separate Account
State Farm Life Insurance Company $31,666,666.67
State Farm Life and Accident Assurance Company $1,666,666.67
Hare & Co. $12,500,000.00
(as nominee for General Electric Capital Assurance Company)
Hare & Co. $4,166,666.67
(as nominee for GE Capital Life Assurance Company of New York)
Cudd & Co. $4,166,666.67
(as nominee for Employers Reinsurance Corporation)
Hare & Co. $4,166,666.67
(as nominee for First Colony Life Insurance Company)
Hare & Co. $4,166,666.67
(as nominee for GE Life and Annuity Assurance Company)
Great-West Life & Annuity Insurance Company $12,500,000.00
London Life Insurance Company $8,333,333.33
Mac & Co. $4,166,666.67
(as nominee for The Great-West Life Assurance Company)
London Life and Casualty (Barbados) Corporation $4,166,666.67
Mac & Co. (as nominee for Pacific Life Insurance Company) $20,833,333.33
Jefferson-Pilot Life Insurance Company $7,500,000.00
Jefferson Pilot Financial Insurance Company $5,833,333.33
Jefferson Pilot Life America Insurance Company $3,333,333.34
Massachusetts Mutual Life Insurance Company $13,583,333.32
C.M. Life Insurance Company $2,666,666.67
Gerlach & Co. $416,666.67
(as nominee for MassMutual Asia)
Allstate Life Insurance Company $10,000,000.00
</Table>
Annex 1-1
<Table>
<Caption>
NAME OF CURRENT NOTEHOLDER OUTSTANDING PRINCIPAL AMOUNT OF
NOTES HELD AT JUNE 30, 2005
- ---------------------------------------------------------------- -------------------------------
Allstate Life Insurance Company of New York $4,166,667.00
American Heritage Life Insurance Company $2,500,000.00
Nationwide Life Insurance Company $7,500,000.00
Nationwide Life and Annuity Insurance Company $6,250,000.00
Nationwide Mutual Insurance Company $2,916,666.67
Transamerica Life Insurance Company $9,375,000.00
Transamerica Occidental Life Insurance Company $3,125,000.00
Hartford Life Insurance Company $6,666,666.66
Hartford Underwriters Insurance Company $3,333,333.33
American United Life Insurance Company $6,250,000.00
Pioneer Mutual Life Insurance Company $625,000.00
The State Life Insurance Company $625,000.00
Ameritas Life Insurance Corp. $1,666,666.67
Chimebridge & Company $833,333.33
(as nominee for Acacia National Life Insurance Company)
Ameritas Variable Life Insurance Company $833,333.33
</Table>
Annex 1-2
SCHEDULE 3.14
EXISTING INDEBTEDNESS AND LIENS
[TO BE ATTACHED]
Schedule 3.14-1
EXHIBIT A
AMENDMENTS TO EXISTING NOTE PURCHASE AGREEMENT
1. Section 7.1(a) of the Existing Note Purchase Agreement is hereby
amended by deleting the first three lines thereof and replacing them
with the following:
"(a) Quarterly Statements - with respect to each quarterly
fiscal period in each fiscal year of the Company, on the earlier of (x)
the date the Company files its Quarterly Report on Form 10-Q with the
Securities and Exchange Commission and (y) 40 days after the end of
such quarterly fiscal period, beginning with the quarterly fiscal
period ending December 31, 2005, duplicate copies of:"
2. Section 7.1(h)(i) of the Existing Note Purchase Agreement is hereby
amended by adding "(1)" after the phrase "which sets forth in
reasonable detail" in the third line thereof and adding the following
to the end of such Section, immediately prior to the semi-colon:
", and (2) a calculation of Consolidated EBITDA for the period
of 12 fiscal months of the Company ending on the last day of
such fiscal month and for the period beginning on the first
day of the then current fiscal year of the Company and ending
on the last day of such fiscal month"
3. Section 8.8(a) of the Existing Note Purchase Agreement is hereby
amended by deleting the amount "$15,000,000" appearing in the fifth
line thereof and replacing it with "$7,500,000".
4. Section 10.10(e) of the Existing Note Purchase Agreement is hereby
amended by deleting the amount "$15,000,000" appearing in the fifth
line thereof and replacing it with "$7,500,000".
5. Section 10.13 of the Existing Note Purchase Agreement is hereby amended
to read in its entirety as follows:
"Section 10.13. Bank Credit Facility.
(a) The Company will not, at any time, permit
the aggregate commitment of the Lenders under its Primary
Credit Facility to be less than $75,000,000.
(b) The Company will not permit the aggregate
commitment of the Lenders under its Primary Credit Facility,
or the aggregate principal amount of Indebtedness outstanding
thereunder, to be:
(i) greater than $100,000,000 at any
time during the Specified Compliance Period; and
(ii) greater than $200,000,000 at any
other time.
Exhibit A-1
(c) The Company and its Subsidiaries will be
permitted to (and shall, on or prior to December 21, 2009)
refinance the credit facilities provided under the Credit
Agreement, but shall do so only in accordance with the terms
of the Intercreditor Agreement."
6. Section 12.2 of the Existing Note Purchase Agreement is hereby amended
by adding the following proviso immediately prior to the period at the
end of such Section:
"; provided, however, that the rights of each holder of Notes
with respect to any collateral securing the Notes for which a
Lien has been granted to the Collateral Agent, and any other
rights, powers and remedies under any of the Security
Documents, shall be exercised solely in accordance with the
terms of the Intercreditor Agreement"
7. The definition of "Initial Projections" appearing in Schedule B to the
Existing Note Purchase Agreement is hereby deleted, and each reference
to the "Initial Projections" in the Existing Note Purchase Agreement
shall be deemed to be a reference to the "Covenant Compliance
Projections" (as defined below in Section 10 of this Exhibit A).
8. The definition of "Permitted Senior Secured Debt" appearing in Schedule
B to the Existing Note Purchase Agreement is hereby amended and
restated to read in its entirety as follows:
"Permitted Senior Secured Debt" shall have the meaning
ascribed to the term "Secured Obligations" in the Intercreditor
Agreement."
9. The definition of "Projected Consolidated EBITDA" appearing in Schedule
B to the Existing Note Purchase Agreement is hereby amended by deleting
the references to "Required Business Percentage" and "Required
Securitization Segments Percentage" and replacing such references with
"Remaining Business Percentage" and "Remaining Securitization Segments
Percentage", respectively.
10. The definition of "Specified Covenant Reversion Condition" appearing in
Schedule B to the Existing Note Purchase Agreement is hereby amended
and restated in its entirety to read as follows:
""Specified Covenant Reversion Condition" means compliance by
the Company in all respects with the terms and conditions of this
Agreement at all times during the period beginning on (and including)
the Second Amendment Effective Date and ending on (and including)
December 31, 2006, without giving effect to any non-compliance by the
Company with the terms of Section 10.14 of the Agreement prior to the
effectiveness of the Third Amendment other than for purposes of
determining if the Applicable Rate Reduction Criteria have been met."
11. The following new definitions are hereby added to Schedule B of the
Existing Note Purchase Agreement to appear in their appropriate
alphabetical places:
Exhibit A-2
""Covenant Compliance Projections" means the projections of
Consolidated EBITDA and Consolidated Capital Expenditures delivered to
the holders of the Notes pursuant to Section 5(c) of the Third
Amendment."
""Third Amendment" means Amendment No. 3 to Note Purchase
Agreement dated as of November 4, 2005 by and among the Company and the
Required Holders."
Exhibit A-3