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EXHIBIT 4.1
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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
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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
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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.
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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
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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
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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
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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 Note
