EXHIBIT 4.1
AMENDMENT NO. 5 TO
FIRST LIEN CREDIT AGREEMENT
AMENDMENT NO. 5 (this "Amendment"), dated as of April 9, 2007, 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 Brazilian court with jurisdiction over the Restructuring
Agreement and the TMT Brazilian Out-of-Court Restructuring has declined to
homologate the Restructuring Agreement under Brazilian law; and
WHEREAS, the Borrower has informed the Administrative Agent that (A) a
TMT Enforcement Remedy has occurred and is continuing and (B) on March 22, 2007,
TMT commenced a bankruptcy proceeding in Brazil, which in the case of each of
clause (A) and (B) above constitutes an Event of Default under Section 9.1(e)
and Section 9.1(f) of the Credit Agreement, respectively (collectively, the
"Existing Defaults"); and
WHEREAS, the Borrower has requested that the Administrative Agent and
the Lenders constituting the Requisite Lenders waive the Existing Defaults and
agree to certain amendments to the Credit Agreement; and
WHEREAS, the Borrower has requested, and the Administrative Agent and
each Lender signatory to an Acknowledgement and Consent has agreed to certain
waivers and certain amendments of the Credit Agreement on the terms and subject
to the conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and provisions hereinafter contained, the parties hereto hereby agree
as follows:
SECTION 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.
SECTION 2 AMENDMENT TO THE CREDIT AGREEMENT. As of the Fifth 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
adding the following defined terms in alphabetical order:
"Amendment No. 5 to the Credit Agreement" means that certain
Amendment No. 5 to First Lien Credit Agreement, dated as of April 9,
2007, entered into by the Borrower, the Administrative Agent and the
Lenders party thereto.
"Cross-Over Vendors" means those certain vendors to TMT that are
also vendors to (i) the Borrower's U.S. engine business or (ii) TdB.
"Effective Date" means April 9 2007.
"Operations Advisor" means (i) Alix Partners or AP Services, LLC
or (ii) a nationally recognized financial operations consulting or
management firm acceptable to the Administrative Agent.
"Restructuring Payments" means all amounts advanced, or directly
incurred and paid by the Borrower or any of its Subsidiaries (other
than TMT) in connection with the TMT Restructuring, including
specifically (i) the reasonable fees and costs of Brazilian
restructuring counsel and financial advisors for TMT and (ii) payments
of liabilities of TMT, provided that in all cases, (1) no
Restructuring Payments are made prior to the date that they are
legally required to be paid; (2) funds of TMT are not otherwise
available to make such Restructuring Payments; (3) Restructuring
Payments are either (A) required to be made in order to avoid personal
liability of TMT management or liability of TdB for claims against TMT
for such amounts, or (B) otherwise reasonably necessary for the
orderly administration of the TMT Restructuring; (4) such payments or
advances are structured to the fullest extent possible to permit
recovery thereof by Borrower and its Subsidiaries as priority claims
in the TMT Restructuring; and (5) the aggregate amount of all
Restructuring Payments shall not exceed $6,500,000.
"TdB" means Tecumseh do Brasil Ltda.
"TMT Restructuring" means and includes any or all of: (i) TMT's
commencement of a voluntary case under the bankruptcy laws or
equivalents thereof (as now or hereafter in effect) of Brazil, (ii)
TMT's filing of a petition seeking to take advantage of any other
laws, domestic or foreign, relating to bankruptcy, insolvency,
reorganization, winding up or composition or adjustment of debts,
(iii) TMT's consent to, or failure of TMT to contest, any petition
filed against it in an involuntary case under such bankruptcy laws or
other laws referred to in the immediately preceding clause (ii), (iv)
TMT's application for or consent to, or failure to contest, the
appointment of, or the taking of possession by, a receiver, custodian,
trustee, or liquidator of itself or of a substantial part of its
property, domestic or foreign, (v) TMT's admission in writing of its
inability to pay its debts as they become due, and (vi) TMT's making
of a general assignment for the benefit of creditors.
"TPIL" means Tecumseh Power International Limited, a company
incorporated in the United Kingdom.
(b) The grid appearing in the definition of "Applicable Margin"
is hereby deleted in its entirety and replaced with the following:
QUARTERLY AVAILABLE CREDIT BASE RATE LOANS EURODOLLAR RATE LOANS
- -------------------------- --------------- ---------------------
Greater than or equal to $150,000,000 1.00% 2.00%
Less than $150,000,000 and greater than or equal to $50,000,000 1.25% 2.25%
Less than $50,000,000 1.50% 2.50%
The Borrower hereby acknowledges that the Quarterly Available Credit
on the last day of the Fiscal Quarter ending March 31, 2007 was less than
$50,000,000 and that the Applicable Margin for the Fiscal Quarter commencing
on April 1, 2007 shall be 2.50% for Eurodollar Rate Loans and 1.50% for Base
Rate Loans.
(c) The definition of "EBITDA" in Section 1.1 of the Credit
Agreement is hereby amended as follows:
(i) by deleting clause (b)(ix)(y) in its entirety and
inserting the following in lieu thereof:
(y) (a) BBK, Ltd. and AP Services, LLC, financial advisors
to the Loan Parties and Korn/Ferry International, in connection with
certain financial and management search services provided to the Loan
Parties, (b) financial advisors to the Lenders, and (c) Wachovia,
Felsberg E Associados, Rothschild Inc., Miller, Canfield, Paddock and
Stone, P.L.C., Kirkland & Ellis LLP, expenses of counsel to the
Administrative Agent, and Squire, Sanders & Dempsey L.L.P., in each
case under this clause (y)(c) for work performed in March and April
2007 but prior to the Effective Date, and
(ii) by deleting the proviso to clause (b)(ix) which reads
"provided, however, all such fees and costs payable under clauses (x),
(y) and (z) do not exceed $2,400,000 per Fiscal Quarter" and inserting
in lieu thereof "provided, however, all such fees and costs payable
under clauses (x), (y) and (z) do not exceed (i) $6,000,000 in the
Fiscal Quarter ending March 31, 2007, (ii) $4,500,000 in the Fiscal
Quarter ending June 30, 2007, and (iii) $2,400,000 per Fiscal Quarter
for each Fiscal Quarter thereafter";
(d) Clause (b) in the definition of "Change of Control" is hereby
deleted in its entirety and replaced with the following in lieu thereof:
or (b) during any period of twelve consecutive calendar
months, individuals who, as of the Effective Date, constituted the
board of directors of the Borrower (together with any new directors
whose election by the board of directors of the Borrower or whose
nomination for election by the stockholders of the Borrower was
approved by a vote of at least two-thirds of the Independent Directors
(as such term is defined in Marketplace Rule 4200(a)(15) of The NASDAQ
Stock Market LLC ("Nasdaq"), or a comparable successor rule of Nasdaq,
whether or not the securities of Borrower are listed on Nasdaq) then
still in office who either were Independent Directors at the beginning
of such period or whose elections or nomination for election was
previously so approved); cease for any reason other than death or
disability to constitute a majority of the directors then in office.
(e) The following existing definitions are hereby deleted in
their entirety from the Credit Agreement:
"TMT Guaranty Agreement", "TMT Guaranty Conditions" and "TMT
Guaranty Obligations".
(f) Article V (Financial Covenants) of the Credit Agreement is
hereby amended as follows:
(i) Section 5.2 of the Credit Agreement is hereby amended in
its entirety as follows:
Section 5.2 Minimum EBITDA
Subject to any applicable Disposition Adjustment, the Borrower
shall have, on the last day of each period set forth below, EBITDA for
such period of not less than (and in the case of negative numbers, not
worse than) the amount set forth opposite such period:
PERIOD MINIMUM EBITDA
------ --------------
October 1, 2006 through December 31, 2006 ($14,900,000)
October 1, 2006 through March 31, 2007 ($8,000,000)
October 1, 2006 through June 30, 2007 $ 17,000,000
October 1, 2006 through September 30, 2007 $ 42,000,000
October 1, 2006 through December 31, 2007 $ 62,000,000
(ii) Section 5.3 of the Credit Agreement is hereby amended
in its entirety as follows:
Section 5.3 Capital Expenditures
(a) The Borrower shall not make or incur, or permit to be made or
incurred, Capital Expenditures (it being understood that any Capital
Expenditures financed solely through the proceeds obtained from
property loss insurance shall not be covered under this Section 5.3),
during the four Fiscal Quarters ending on the last day of each Fiscal
Quarter set forth below to be, in the aggregate, in excess of the
maximum amount set forth opposite such Fiscal Quarter:
Fiscal Quarter Maximum Capital Expenditures
-------------- ----------------------------
March 31, 2007 $52,100,000
June 30, 2007 $49,300,000
September 30, 2007 $46,500,000
December 31, 2007 $40,000,000
March 31, 2008 $43,800,000
June 30, 2008 $47,500,000
September 30, 2008 $51,300,000
December 31, 2008 $55,000,000
March 31, 2009 $58,800,000
June 30, 2009 $62,500,000
September 30, 2009 $66,300,000
(b) For purposes of Section 5.3(a), the aggregate Capital
Expenditures in connection with the acquisition, construction and
startup of the new plant to replace the Hyderabad facility covered by
this Section 5.3 and counted toward the limits established in Section
5.3(a) above shall be equal to the amount calculated as follows:
X - Y = CCE
Where
X is the aggregate Capital Expenditures in connection with the
acquisition, construction and startup of the new Hyderabad Indian
plant;
Y is the Net Cash Proceeds from the sale of the current Hyderabad
Indian plant and realty; and
CCE is the amount of Capital Expenditures charged against the
amounts set forth opposite the applicable period in the chart in
Section 5.3(a) above;
provided, however, that (1) in no event shall the Capital Expenditures amount
set forth above for any period be increased in the event CCE is a negative
number and (2) in no event shall the aggregate Capital Expenditures in
connection with the acquisition, construction and startup of the new Hyderabad
Indian plant exceed $25,000,000 and (3) all such Capital Expenditures shall be
funded solely by financial institutions located in India.
(c) In the event that the Borrower completes the sale or
disposition of one or more Subject Units, the Borrower shall promptly
provide Lender with a schedule of the budgeted Capital Expenditures
for such Subject Units for the periods following the date of
consummation of such sale, and the amounts set forth for such periods
in clause (a) above shall be, subject to the prior review by and
approval of the Administrative Agent, correspondingly reduced.
(g) Article VII (Affirmative Covenants) of the Credit Agreement
is hereby amended as follows:
(i) by deleting the introductory paragraph therein and
inserting the following in lieu thereof:
The Borrower agrees with the Lenders, the Issuers and the
Administrative Agent to each of the following (except that the
following shall have no application to (x) Tecumseh Italy as long as
the Borrower is diligently pursuing the dissolution or liquidation of
Tecumseh Italy, (y) TMT so long as there is a pending TMT
Restructuring or (z) TPIL so long as any Loan Party is pursuing the
discontinuance of the operation and liquidation of TPIL provided such
discontinuance and liquidation is funded entirely from existing funds
available to TPIL or from the proceeds of the sale or liquidation of
TPIL's assets), as long as any Obligation remains outstanding and, in
each case, unless the Requisite Lenders otherwise consent in writing:
(ii) by deleting the existing Section 7.19 and inserting the
following in lieu thereof:
Section 7.19 Certain Reporting
On or before the Effective Date, the Borrower's President and
Chief Operating Officer shall deliver to the Administrative Agent a
letter with regard to the Borrower's efforts to address certain
operational items. During the period beginning on the Effective Date
and ending on the date on which a new Chief Executive Officer assumes
his or her duties with the Borrower, the Borrower shall deliver to the
Administrative Agent copies of all reports (other than any portions
thereof containing attorney-client or other privileged information)
regarding the items set forth in the above-referenced letter prepared
by outside professionals engaged in connection therewith or by
management of the Borrower or its Subsidiaries within 3 Business Days
of delivery of the same to the Borrower's board of directors.
(iii) by inserting the following new Section 7.20
immediately after the existing Section 7.19 as follows:
Section 7.20 Retention of the Operations Advisor
The Borrower shall retain the services of an Operations Advisor,
at all times after the Effective Date, and through the date on which a
new Chief Executive Officer of the Borrower has been appointed (and
such Chief Executive Officer has commenced his/her duties) and for so
long thereafter as the Chief Executive Officer shall determine in good
faith to be necessary or advisable.
(h) Article VIII (Negative Covenants) of the Credit Agreement is
hereby amended as follows:
(i) by deleting the introductory paragraph therein and
inserting the following in lieu thereof:
The Borrower agrees with the Lenders, the Issuers and the
Administrative Agent to each of the following (except that (A) the
following shall have no application to (x) Tecumseh Italy as long as
the Borrower is diligently pursuing the
dissolution or liquidation of Tecumseh Italy or (y) TPIL so long as
any Loan Party is pursuing the discontinuance of the operation and
liquidation of TPIL provided such discontinuance and liquidation is
funded entirely from existing funds available to TPIL or from the
proceeds of the sale or liquidation of TPIL's assets and (z) TMT so
long as there is a pending TMT Restructuring, provided, however, that
(B) neither the Borrower nor any of its Subsidiaries shall provide any
financial, credit or other support to TMT pursuant to any of the
exceptions to the restrictions imposed on the Borrower and its
Subsidiaries under Article VIII (Negative Covenants), except as
expressly provided in Section 8.20), as long as any Obligation remains
outstanding and, in each case, unless the Requisite Lenders otherwise
consent in writing:
(ii) by striking in its entirety clause (m) of Section 8.1
and inserting the following in lieu thereof:
(m) Indebtedness (not otherwise permitted by this
Section 8.1) incurred by TdB at any time after the Effective
Date; provided, however, such Indebtedness shall not exceed an
aggregate amount of $40,000,000 and, provided, further, that not
less than $25,000,000 of such Indebtedness shall be utilized to
refinance the TdB BNDES facility that matured in March 2007.
(iii) by (A) striking the word "and" immediately following
the semicolon in clause (g) of Section 8.2, (B) striking the period at the end
of clause (h) of Section 8.2 and inserting "; and" in lieu thereof, and (c)
inserting a new clause (i) to read as follows:
(i) Liens on the assets of Tecumseh do Brazil Ltda.
securing additional Indebtedness of Tecumseh do Brazil permitted
under Section 8.1(n).
(iv) by inserting the following new Section 8.20 immediately
after the existing Section 8.19 as follows:
SECTION 8.20 RESTRICTIONS ADVANCES TO TMT
Neither the Borrower nor any of its Subsidiaries shall (i)
in respect of TMT, incur or suffer to exist any Indebtedness (other
than Indebtedness existing immediately prior to the Effective Date),
(ii) make any additional Investment in TMT or transfer of assets to
TMT (other than payments made (x) to Cross-Over Vendors described in
clause (i) of such definition so long as such payments do not exceed
in the aggregate $2,500,000, (y) to Cross-Over Venders described in
clause (ii) of such definition so long as such payments do not exceed
in the aggregate $1,000,000, and (z) for purchases of inventory and
equipment by the Borrower or any of its Subsidiaries from TMT so long
as such purchases are made for Fair Market Value and on a basis no
less favorable to the Borrower or, as the case may be, such
Subsidiary, as would be obtained in a comparable arm's length
transaction with a Person that is not an Affiliate of TMT, (iii) pay
any Indebtedness or other obligations of TMT, or (iv) otherwise
provide any additional funding, financing or credit to TMT; provided,
however, that the foregoing prohibition shall not limit the ability of
the Borrower or any of its Subsidiaries to make the Restructuring
Payments.
(i) Article IX of the Credit Agreement is hereby amended as
follows:
(i) by deleting the introductory clause thereof and
inserting the following in lieu thereof:
Each of the following events shall be an Event of
Default (except that the following shall have no application to
(x) Tecumseh Italy as long as the Borrower is diligently pursuing
the dissolution or liquidation of Tecumseh Italy, (y) TPIL so
long as any Loan Party is pursuing the discontinuance of the
operation and liquidation of TPIL provided such discontinuance
and liquidation is funded entirely from existing funds available
to TPIL or from the proceeds of the sale or liquidation of TPIL's
assets or (z) TMT so long as a TMT Restructuring is pending):
(ii) by deleting in clause 9.1(d)(i) the word "or"
immediately before each of "Section 7.14 (Real Property)" and "Section 7.16
(Transfer and Termination of Title IV Plans)" and inserting immediately after
"Section 7.16 (Transfer and Termination of Title IV Plans)" and prior to "or
Article VIII (Negative Covenants)" the following:
or Section 7.20 (Retention of the Operations Advisor)
(j) Annex A to the definition of Disposition Adjustment is
amended by deleting the charts on the existing Annex A thereto and inserting the
charts on attached Annex A in lieu thereof.
SECTION 3 WAIVER AND CONSENT.
(a) As of the Fifth Amendment Effective Date, the Administrative
Agent and each Lender signatory to an Acknowledgement and Consent hereby waives
the Existing Defaults.
(b) The Administrative Agent and each Lender signatory to an
Acknowledgement and Consent hereby waive any default interest chargeable on the
Loans pursuant to Section 2.10 (c) solely in respect to the Existing Defaults.
(c) The Administrative Agent and each Lender signatory to an
Acknowledgement and Consent hereby consent to the Borrower's request for a one
time extension of the delivery date of the annual report for the Fiscal Year
ended December 31, 2006, due within 90 days after the end of such Fiscal Year
pursuant to Section 6.1(c) of the Credit Agreement, to April 15, 2007.
SECTION 4 CONDITIONS PRECEDENT TO THE EFFECTIVENESS OF THIS AMENDMENT.
This Amendment shall become effective as of March 31, 2007 on the date (the
"Fifth Amendment Effective Date") when the Administrative Agent shall have
received all of the following:
(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 Acknowledgement and Consent, in the form attached
hereto as Exhibit A, duly executed by each of the Requisite Lenders;
(iii) the Consent of Guarantors, in the form attached hereto
as Exhibit B, executed by each Guarantor;
(iv) Amendment No. 2 to the Second Lien Credit Agreement,
executed by the Borrower, the Second Lien Agent and the Lenders party thereto;
(v) the Fee Letter, dated as of the date hereof, executed by
the Borrower; and
(vi) 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 as required by
Sections 9 and 10 hereof, including, without limitation, 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.
(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. 2 to the Second Lien Credit Agreement, no Default or
Event of Default shall have occurred and be continuing.
SECTION 5 REPRESENTATIONS AND WARRANTIES. On and as of the date
hereof, and as of the Fifth Amendment Effective Date, after giving effect to
this Amendment and Amendment No. 2 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.
SECTION 6 RELEASE.
Each of the Borrower and each Guarantor (A) acknowledges and agrees
that it has no defenses, counterclaim or offset to the amounts outstanding
under the Credit Agreement or the other Loan Documents and that it has no
actual or potential claim or cause of action against the Administrative Agent
or any Lender with respect to any matters through the Effective Date, and (B)
hereby waives and agrees not to assert any claims or causes of action against
the Administrative Agent, any Lender or any of their Affiliates, or any of
their respective officers, directors, employees, attorneys and agents, on any
theory of liability, whether known or unknown, matured or contingent,
including, without limitation, for special, indirect, consequential or punitive
damages, arising by virtue of any actions taken, actions omitted, or the
occurrence of any event prior to the Effective Date, arising out of or relating
to, or in connection with, this Amendment No. 5, the Credit Agreement, the use
of the proceeds of any Loan or Letters of Credit, the other Loan Documents or
any of the transactions entered into in connection therewith or contemplated
thereby.
SECTION 7 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, waivers 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.
SECTION 8 LOAN DOCUMENTS. This Amendment is deemed to be a "Loan
Document" for the purposes of the Credit Agreement.
SECTION 9 FEES. As consideration for the execution of this Amendment,
the Borrower agrees to pay on the Fifth 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 April 9, 2007, a fee equal to 0.25% of such
Lender's Revolving Credit Commitment then in effect.
SECTION 10 COSTS AND EXPENSES. The Borrower agrees to pay on demand on
the Fifth 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, including the reasonable and
documented fees and out-of-pocket expenses of counsel for the Administrative
Agent with respect thereto.
SECTION 11 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 Fifth 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.
(e) Delivery of an executed signature page of this Amendment by
facsimile or by email in portable document format (.pdf) shall be effective as
delivery of an original manually executed counterpart hereof.
[signature pages follow]
IN WITNESS WHEREOF, the undersigned parties have executed this
Amendment No. 5 to the Credit Agreement to be effective for all purposes as of
the Fifth Amendment Effective Date.
Borrower
TECUMSEH PRODUCTS COMPANY
as Borrower
By: /s/ James S. Nicholson
------------------------------------
Name: James S. Nicholson
Title: Vice President, Treasurer and
Chief Financial Officer
[SIGNATURE PAGE TO AMENDMENT NO. 5 TO FIRST LIEN CREDIT AGREEMENT]
Administrative Agent
CITICORP USA, INC.,
as Administrative Agent, Collateral
Agent, Swing Loan Lender, Issuer and as
a Lender
By: /s/ Sebastien Delasnerie
------------------------------------
Name: Sebastien Delasnerie
----------------------------------
Title: Vice President
---------------------------------
[SIGNATURE PAGE TO AMENDMENT NO. 5 TO FIRST LIEN CREDIT AGREEMENT]
EXHIBIT A
ACKNOWLEDGEMENT AND CONSENT
To: CITICORP USA, INC., as Administrative Agent
388 Greenwich Street, 19th Floor
New York, New York 10013
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 the terms and
provisions of Amendment No. 5 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 and provisions of
the Amendment and authorizes the Administrative Agent to execute and deliver
such Amendment on its behalf.
Very truly yours,
North Fork Business Capital Corporation
----------------------------------------
[Name of Lender]
By: /s/ Ari Kaplan
------------------------------------
Name: Ari Kaplan
----------------------------------
Title: Vice President
---------------------------------
Dated as of April 9, 2007
[EXHIBIT A]
EXHIBIT A
ACKNOWLEDGEMENT AND CONSENT
To: CITICORP USA, INC., as Administrative Agent
388 Greenwich Street, 19th Floor
New York, New York 10013
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 the terms and
provisions of Amendment No. 5 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 and provisions of
the Amendment and authorizes the Administrative Agent to execute and deliver
such Amendment on its behalf.
Very truly yours,
Comerica Bank
----------------------------------------
[Name of Lender]
By: /s/ Blake Arnett
------------------------------------
Name: Blake Arnett
----------------------------------
Title: Assistant Vice President
---------------------------------
Dated as of April 9, 2007
[EXHIBIT A]
EXHIBIT A
ACKNOWLEDGEMENT AND CONSENT
To: CITICORP USA, INC., as Administrative Agent
388 Greenwich Street, 19th Floor
New York, New York 10013
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 the terms and
provisions of Amendment No. 5 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 and provisions of
the Amendment and authorizes the Administrative Agent to execute and deliver
such Amendment on its behalf.
Very truly yours,
Wells Fargo Foothill, LLC
----------------------------------------
[Name of Lender]
By: /s/ Juan Barrera
------------------------------------
Name: Juan Barrera
----------------------------------
Title: Vice President
---------------------------------
Dated as of April 9, 2007
[EXHIBIT A]
EXHIBIT A
ACKNOWLEDGEMENT AND CONSENT
To: CITICORP USA, INC., as Administrative Agent
388 Greenwich Street, 19th Floor
New York, New York 10013
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 the terms and
provisions of Amendment No. 5 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 and provisions of
the Amendment and authorizes the Administrative Agent to execute and deliver
such Amendment on its behalf.
Very truly yours,
LaSalle Bank Midwest, N.A.
----------------------------------------
[Name of Lender]
By: /s/ Steven Fenton
------------------------------------
Name: Steven Fenton
----------------------------------
Title: Authorized Signatory
---------------------------------
Dated as of April 9, 2007
[EXHIBIT A]
EXHIBIT A
ACKNOWLEDGEMENT AND CONSENT
To: CITICORP USA, INC., as Administrative Agent
388 Greenwich Street, 19th Floor
New York, New York 10013
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 the terms and
provisions of Amendment No. 5 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 and provisions of
the Amendment and authorizes the Administrative Agent to execute and deliver
such Amendment on its behalf.
Very truly yours,
JPMorgan Chase Bank N.A.
----------------------------------------
[Name of Lender]
By: /s/ Beverly J. Gray
------------------------------------
Name: Beverly J. Gray
----------------------------------
Title: Regional Portfolio Manager
---------------------------------
Dated as of April 9, 2007
[EXHIBIT A]
EXHIBIT A
ACKNOWLEDGEMENT AND CONSENT
To: CITICORP USA, INC., as Administrative Agent
388 Greenwich Street, 19th Floor
New York, New York 10013
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 the terms and
provisions of Amendment No. 5 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 and provisions of
the Amendment and authorizes the Administrative Agent to execute and deliver
such Amendment on its behalf.
Very truly yours,
Ableco Finance LLC
----------------------------------------
[Name of Lender]
By: /s/ Kevin Genda
------------------------------------
Name: Kevin Genda
----------------------------------
Title: Senior Vice President
---------------------------------
Dated as of April 9, 2007
[EXHIBIT A]
EXHIBIT A
ACKNOWLEDGEMENT AND CONSENT
To: CITICORP USA, INC., as Administrative Agent
388 Greenwich Street, 19th Floor
New York, New York 10013
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 the terms and
provisions of Amendment No. 5 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 and provisions of
the Amendment and authorizes the Administrative Agent to execute and deliver
such Amendment on its behalf.
Very truly yours,
Bank of America, N.A.
----------------------------------------
[Name of Lender]
By: /s/ Walter T. Shellman
------------------------------------
Name: Walter T. Shellman
----------------------------------
Title: Senior Vice President
---------------------------------
Dated as of April 9, 2007
[EXHIBIT A]
EXHIBIT B
CONSENT OF GUARANTORS
Dated as of April 9, 2007
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]
[EXHIBIT B]
IN WITNESS WHEREOF, the parties hereto have consented to this
Amendment No. 5, 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
VON WEISE GEAR COMPANY
as U.S. Guarantors
By: /s/ James S. Nicholson
------------------------------------
Name: James S. Nicholson
Title: Vice President and Treasurer
EUROMOTOR, INC.
as U.S. Guarantor
By: /s/ James S. Nicholson
------------------------------------
Name: James S. Nicholson
Title: Vice President
HAYTON PROPERTY COMPANY, LLC
TECUMSEH DO BRASIL USA, LLC
as U.S. Guarantors
By: /s/ James S. Nicholson
------------------------------------
Name: James S. Nicholson
Title: President
[SIGNATURE PAGE TO GUARANTOR CONSENT TO AMENDMENT NO. 5 TO FIRST LIEN CREDIT
AGREEMENT]
TECUMSEH PRODUCTS OF CANADA LIMITED,
as Canadian Guarantor
By: /s/ James S. Nicholson
------------------------------------
Name: James S. Nicholson
----------------------------------
Title: Vice President and Treasurer
---------------------------------
FASCO MOTORS COMPANY,
as Canadian Guarantor
By: /s/ James S. Nicholson
------------------------------------
Name: James S. Nicholson
----------------------------------
Title: Vice President
---------------------------------
[SIGNATURE PAGE TO GUARANTOR CONSENT TO AMENDMENT NO. 5 TO FIRST LIEN CREDIT
AGREEMENT]
ANNEX A
* Indicates information omitted pursuant to a request for confidential
treatment and filed separately with the Securities and Exchange Commission
***:
CUMULATIVE EBITDA CUMULATIVE SALES
COVENANT ADJUSTMENT PROJECTION
CUMULATIVE REPORTING PERIOD ($ IN MILLIONS) ($ IN MILLIONS)
- --------------------------- ------------------- ----------------
10/01/2006-12/31/06 * *
10/01/2006-3/31/07 * *
10/01/2006-6/30/07 * *
10/01/2006-9/30/07 * *
10/1/06-12/31/07 * *
QUARTERLY PROJECTED
EBITDA COVENANT SALES PROJECTION
QUARTER ($ IN MILLIONS) ($ IN MILLIONS)
- ------- ------------------- ----------------
Q4-2006 * *
Q1-2007 * *
Q2-2007 * *
Q3-2007 * *
Q4-2007 * *
**:
CUMULATIVE EBITDA CUMULATIVE SALES
COVENANT ADJUSTMENT PROJECTION
REPORTING PERIOD ($ IN MILLIONS) ($ IN MILLIONS)
- ---------------- ------------------- ----------------
10/01/2006-12/31/06 * *
10/01/2006-3/31/07 * *
10/01/2006-6/30/07 * *
10/01/2006-9/30/07 * *
10/1/06-12/31/07 * *
QUARTERLY PROJECTED
EBITDA COVENANT SALES PROJECTION
QUARTER ($ IN MILLIONS) ($ IN MILLIONS)
- ------- ------------------- ----------------
Q4-2006 * *
Q1-2007 * *
Q2-2007 * *
Q3-2007 * *
Q4-2007 * *
[ANNEX A]
**:
CUMULATIVE EBITDA CUMULATIVE SALES
COVENANT ADJUSTMENT PROJECTION
REPORTING PERIOD ($ IN MILLIONS) ($ IN MILLIONS)
- ---------------- ------------------- ----------------
10/01/2006-12/31/06 * *
10/01/2006-3/31/07 * *
10/01/2006-6/30/07 * *
10/01/2006-9/30/07 * *
10/1/06-12/31/07 * *
QUARTERLY PROJECTED
EBITDA COVENANT SALES PROJECTION
QUARTER ($ IN MILLIONS) ($ IN MILLIONS)
- ------- ------------------- ----------------
Q4-2006 * *
Q1-2007 * *
Q2-2007 * *
Q3-2007 * *
Q4-2007 * *
[ANNEX A]