Modine Manufacturing Company: Form 8-K

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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act

of 1934
Date of Report (Date of earliest event reported):
February 17, 2009
Modine Manufacturing Company

Exact name of registrant as specified in its charter
Wisconsin 1-1373 39-0482000

State or other jurisdiction of incorporation Commission File Number I.R.S. Employer Identification Number
1500 DeKoven Avenue, Racine, Wisconsin 53403

Address of principal executive offices Zip Code
Registrant’s telephone number, including area code: (262) 636-1200
Check the appropriate below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the
following provisions.
£ Written communications pursuant to Rule 425 under the Securities Act

£ Soliciting material pursuant to Rule 14a-12 under the Exchange Act
£ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act
£ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act
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TABLE OF CONTENTS
Item 1.01 Entry into a Material Definitive Agreement
Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant
Item 9.01 Financial Statements and Exhibits
Signature
INFORMATION TO BE INCLUDED IN THE REPORT
Item 1.01 Entry into a Material Definitive Agreement
On February 17, 2009, Modine Manufacturing Company (the "Company" or "Modine") entered into the following agreements:
• First Amendment to Credit Agreement and Waiver (the “First Amendment”) of the Amended and Restated Credit Agreement (the
“Credit Agreement”) with JPMorgan Chase Bank, N.A. (successor by merger to Bank One, NA (main office Chicago)), a national
banking association (“JPMorgan”), as Swing Line Lender, as LC Issuer and as Agent and Bank of America, N.A., M&I Marshall &
Ilsley Bank, Wells Fargo Bank, N.A., Dresdner Bank AG, U.S. Bank, National Association and Comerica Bank (the “Lenders”);
• Waiver and Second Amendment to Note Purchase Agreement (2006) (the “2006 Senior Note Amendment”) amending the Note
Purchase Agreement dated as of December 7, 2006 (the “2006 Note Purchase Agreement”), as amended, pursuant to which the
Company issued $50,000,000 of 5.68% Senior Notes, Series A due December 7, 2017 and $25,000,000 5.68% Senior Notes, Series B due
December 7, 2018 (the “2006 Notes”); and
• Waiver and Second Amendment to Note Purchase Agreement (2005) (the “2005 Senior Note Amendment”) amending the Note
Purchase Agreement dated as of September 29, 2005 (the “2005 Note Purchase Agreement”), as amended, pursuant to which the
Company issued $75,000,000 of 4.91% Senior Notes due September 29, 2015 (the “2005 Notes”).
The First Amendment, 2006 Senior Note Amendment and the 2005 Senior Note Amendment are referred to herein collectively as the
“Amendments.” The Company entered into the Amendments to waive certain events of default existing under the Credit Agreement, the 2006
Note Purchase Agreement and the 2005 Note Purchase Agreement at December 31, 2008 and amend other provisions of the Credit Agreement,
the 2006 Note Purchase Agreement and the 2005 Note Purchase Agreement.
Under the First Amendment, the Company will pay interest rates of 300 additional basis points for any amounts outstanding. Under the 2006
Senior Note Amendment, the Company will pay an interest rate of 10.75 percent on the 2006 Notes. Under the 2005 Senior Note Amendment,
the Company will pay an interest rate of 10.0 percent on the 2005 Notes. If the Company obtains a credit rating of BBB flat or better, the
interest rates will be immediately reduced by 2.50 percent for all senior notes. The Company incurred total fees of $3,054,000 to the Lenders
and holders of 2006 Notes and 2005 Notes in conjunction with the Amendments. These fees will be capitalized and amortized over the life of
the applicable agreements.
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Pursuant to the terms of the Amendments:
• The Company provided the Lenders and holders of the 2006 Notes and the 2005 Notes a blanket lien on all domestic assets, certain of
the Company’s domestic subsidiaries are guaranteeing the Company’s outstanding borrowings, and 65 percent of the Company’s
and the guarantors’ stock in foreign subsidiaries is pledged as collateral;
• The existing quarterly leverage ratio and interest expense coverage ratio covenants are temporarily replaced by a minimum adjusted
EBITDA level for the fourth quarter of fiscal 2009 and each quarter during fiscal 2010, with amended leverage and interest expense
coverage ratio covenants becoming effective for the fourth quarter of fiscal 2010;
• The Company will be required to make principal payments of $4,688,000 quarterly beginning December 29, 2011 on the 2005 Notes,
principal payments of $3,125,000 quarterly beginning March 7, 2014 for the 2006 Notes, Series A, and principal payments of $1,563,000
quarterly beginning March 7, 2014 for the 2006 Notes, Series B;
• The maturity date for the 2006 Notes, Series B will be December 7, 2017;
• When the principal amount outstanding under the Credit Agreement exceeds $94,000,000, the Company will be required to prepay the
outstanding indebtedness on the revolving credit facility and senior notes with aggregate U.S. cash balances that exceed $10,000,000
and aggregate foreign cash balances that exceed $20,000,000, subject to certain exceptions and timing requirements;
• The Company will be permitted to incur up to 35,000,000 euros ($48,888,000 US equivalent) of additional indebtedness in its Original
Equipment – Europe segment, and an additional aggregate $10,000,000 of other indebtedness, as that term is defined in the
agreements. The revolving credit facility aggregate commitment amount of $175,000,000 will be reduced up to a maximum of
$15,000,000 for the amount by which the Original Equipment – Europe segment’s aggregate additional indebtedness, both
outstanding and available lines of credit, exceeds 5,000,000 euros ($6,984,000 US equivalent);
• The Company will be required to prepay its outstanding revolving credit facility and senior note borrowings and the $175,000,000
aggregate commitment for the revolving credit facility will be equally reduced by 100 percent of net proceeds from aggregate asset
sales greater than $25,000,000 and by 50 percent of the net proceeds form certain capital stock transactions;
• The Company is required to deposit $10,000,000 of cash collateral with JPMorgan Chase Bank, N.A. as security for unrealized losses
on existing commodity derivatives where JPMorgan Chase Bank, N.A. is the counterparty;
• Various other restrictive covenants are contained in the Amendments, including restrictions on dividend payments and acquisitions;
the elimination of the previous $75,000,000 accordion feature in the Credit Agreement; provisions for the hiring of financial advisors;
a limit on capital expenditures ($30,000,000 for the fiscal quarter ending March 31, 2009, $65,000,000 for the fiscal year ending March
31, 2010 and $70,000,000 for any fiscal year ending thereafter); and limitations on indebtedness other than pursuant to the Credit
Agreement, the 2006 Note Purchase Agreement and the 2005 Note Purchase Agreement.
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The following are the adjusted EBITDA levels that the Company must achieve beginning in the fourth quarter of fiscal 2009 to comply with the
Amendments. Adjusted EBITDA is defined as the Company’s (loss) earnings from continuing operations before interest expense and (benefit
from) provision for income taxes, adjusted to exclude unusual, non-recurring or extraordinary non-cash charges and cash restructuring and
repositioning charges not to exceed $14,000,000, and further adjusted to add back depreciation and amortization expense.
Minimum Consolidated
Fiscal Quarter Adjusted EBITDA
Fiscal quarter ending March 31, 2009, as calculated for the fiscal quarter then ending - $25,000,000
Fiscal quarter ending June 30, 2009, as calculated for the two consecutive fiscal quarters then ending - $22,000,000
Fiscal quarter ending September 30, 2009, as calculated for the three consecutive fiscal quarters then ending - $14,000,000
Fiscal quarter ending December 31, 2009, as calculated for the four consecutive fiscal quarters then ending $1,750,000
Fiscal quarter ending March 31, 2010, as calculated for the four consecutive fiscal quarters then ending $35,000,000
The Company cannot permit the Leverage Ratio (the ratio of Consolidated Total Debt to Consolidated Adjusted EBITDA for a rolling four
quarters), determined as of the end of each fiscal quarter set forth below, to be greater than the ratio set forth opposite such fiscal quarter:
Maximum
Fiscal Quarter Leverage Ratio
Fiscal quarter ending March 31, 2010 7.25 to 1.0
Fiscal quarter ending June 30, 2010 5.5 to 1.00
Fiscal quarter September 30, 2010 4.75 to 1.00
Fiscal quarter ending December 31, 2010 3.75 to 1.0
Fiscal quarters ending March 31, 2011 and June 30, 2011 3.50 to 1.0
Any fiscal quarter ending thereafter 3.0 to 1.0
In addition, the Company cannot permit the Interest Expense Coverage Ratio (the ratio of Consolidated Adjusted EBITDA to Consolidated
Interest Expense for a rolling four quarters), determined as of the end of each fiscal quarter set forth below, to be less than the ratio set forth
opposite such fiscal quarter as indicated below. The interest expense coverage ratio covenant calculation was also changed in the
Amendments to be calculated as the ratio of adjusted EBITDA to interest expense.
Minimum
Interest Expense
Fiscal Quarter Coverage Ratio
The foregoing description of the Amendments is qualified in its entirety by the First Amendment to Credit Agreement and Waiver, the Waiver
and Second Amendment to Note Purchase Agreement (2006) and the Waiver and Second Amendment to Note Purchase Agreement (2005),
which are attached to this Current Report on Form 8-K as Exhibits 10.1, 10.2 and 10.3, respectively.
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Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant
See the disclosure under Item 1.01 of this Current Report on Form 8-K, which is incorporated by reference into this Item 2.03 in its entirety.
Item 9.01 Financial Statements and Exhibits
(d) Exhibits
Exhibit No. Description
10.1 First Amendment dated as of February 17, 2009 to Amended and Restated Credit Agreement
10.2 Waiver and Second Amendment to Note Purchase Agreement (2006)
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this Report to be signed on its behalf by
the undersigned hereunto duly authorized.
Modine Manufacturing Company
By: /s/ Thomas A. Burke

Thomas A. Burke
President and Chief Executive Officer
By: /s/ Margaret C. Kelsey

Margaret C. Kelsey
Vice President, Corporate Development and General Counsel and Secretary
Date: February 20, 2009
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EXHIBIT INDEX
Exhibit No. Description
10.1 First Amendment dated as of February 17, 2009 to Amended and Restated Credit Agreement
Exhibit 10.1
Execution Copy
FIRST AMENDMENT TO CREDIT AGREEMENT AND WAIVER
THIS FIRST AMENDMENT TO CREDIT AGREEMENT AND WAIVER, dated as of February 17, 2009 (this "Amendment"), is among Modine
Manufacturing Company, a Wisconsin corporation, any Foreign Subsidiary Borrowers, the Lenders party hereto and JPMorgan Chase Bank,
N.A., a national banking association, as Swing Line Lender, as LC Issuer and as Agent.
RECITAL
The Borrower, the Lenders party thereto and the Agent are parties to an Amended and Restated Credit Agreement dated as of July 18, 2008 (as
amended or modified from time to time, the "Credit Agreement"). The Borrower desires to amend the Credit Agreement and the Agent and the
Lenders are willing to do so in accordance with the terms hereof.
TERMS
In consideration of the premises and of the mutual agreements herein contained, the parties agree as follows:
ARTICLE 1.
WAIVER
1.1 The Borrower has informed the Lenders and the Agent that Defaults have occurred under Section 7.2 of the Credit Agreement due to
a breach of Sections 6.18(a) and (b) of the Credit Agreement as of December 31, 2008 (the "Existing Defaults"). The Borrower has requested
that the Lenders and the Agent waive the Existing Defaults.
1.2 Pursuant to such request, and subject to (a) the accuracy of the representations of the Borrower hereunder, and (b) the satisfaction of
the conditions to the effectiveness of this Agreement specified in Article IV hereof, the Lenders hereby waive the Existing Defaults. The
Borrower acknowledges and agrees that the waiver contained herein is a limited, specific, and one-time waiver as described above. Such
limited waiver shall not modify or waive any other Default or Unmatured Default or any other term, covenant or agreement contained in any of
the Loan Documents, and shall not be deemed to have prejudiced any present or future right or rights which the Agent or the Lenders now
have or may have under the Credit Agreement or the other Loan Documents and, in addition, shall not entitle the Borrower or the Guarantors
(or any of them) to a waiver, amendment, modification or other change to, of or in respect of any provision of any of the Loan Documents in
the future in similar or dissimilar circumstances.
ARTICLE 2.
AMENDMENTS
The Credit Agreement shall be amended as follows:
2.1 The following definitions are added to the Credit Agreement in appropriate alphabetical order:
“Additional Covenant” shall mean any affirmative or negative covenant or similar restriction applicable to the Borrower or any Subsidiary
(regardless of whether such provision is labeled or otherwise characterized as a covenant) the subject matter of which either (i) is similar to
that of any covenant in Article 6 of this Agreement, or related definitions herein, but contains one or more percentages, amounts or formulas
that is more restrictive than those set forth herein or more beneficial to the lender under any agreement with respect to any Indebtedness of
the Borrower or such Subsidiary or any agreement for the refinancing or extension of all or a portion of the Indebtedness thereunder (and such
covenant or similar restriction shall be deemed an Additional Covenant only to the extent that it is more restrictive or more beneficial) or (ii) is
different from the subject matter of any covenants in Article 6 of this Agreement, or related definitions herein.
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“Additional Default” shall mean any provision contained in any agreement with respect to any Indebtedness of the Borrower or any
Subsidiary or any agreement for the refinancing or extension of all or a portion of the Indebtedness thereunder which permits the holders of
such Indebtedness to accelerate (with the passage of time or giving of notice or both) the maturity thereof or otherwise requires the Borrower
or any Subsidiary to purchase the Indebtedness thereunder or any agreement for the refinancing or extension of all or a portion of the
Indebtedness thereunder prior to the stated maturity thereof and which either (i) is similar to any Default or Event of Default contained in
Article 7 of this Agreement, or related definitions herein, but contains one or more percentages, amounts or formulas that is more restrictive or
has a shorter grace period than those set forth herein or is more beneficial to the lender under any agreement with respect to any Indebtedness
of the Borrower or such Subsidiary or any agreement for the refinancing or extension of all or a portion of the Indebtedness thereunder (and
such provision shall be deemed an Additional Default only to the extent that it is more restrictive, has a shorter grace period or is more
beneficial) or (ii) is different from the subject matter of any Default or Event of Default contained in Article 7 of this Agreement, or related
definitions herein.
“Adjusted Eurocurrency Reference Rate” means, with respect to a Eurocurrency Advance for the relevant Interest Period, the sum of (i) the
quotient of (a) the Eurocurrency Reference Rate applicable to such Interest Period, divided by (b) one minus the Reserve Requirement
(expressed as a decimal) applicable to such Interest Period, plus (ii) in the case of Loans by a Lender from its Lending Installation in the United
Kingdom, the Mandatory Cost Rate.
“Banking Services” shall mean all treasury management services (including, without limitation, controlled disbursement, automated
clearinghouse transactions, return items, overdrafts and interstate depository network services and international treasury management
services), commercial credit cards and stored value cards, provided to any of the Borrower or any of its Subsidiaries by any Lender or any
Lender's Affiliates.
“Banking Services Obligations” shall mean any and all obligations of any of the Borrower or any of its Subsidiaries, whether absolute or
contingent and howsoever and whensoever created, arising, evidenced or acquired (including all renewals, extensions and modifications
thereof and substitutions therefor) in connection with Banking Services.
"Brazil Holdback" means the contingent obligation of the Borrower to the former owners of Modine do Brasil Sistemas Termicos Ltda. in the
amount of $2,000,000.
“Capital Expenditures” means for any period all direct or indirect (by way of acquisition of securities of a Person or the expenditure of cash or
the transfer of property or the incurrence of Indebtedness) expenditures in respect of the purchase or other acquisition of fixed or capital
assets determined in conformity with Agreement Accounting Principles.
"Capital Stock" means (i) in the case of any corporation, all capital stock and any securities exchangeable for or convertible into
capital stock and any warrants, rights or other options to purchase or otherwise acquire capital stock or such securities or any other form of
equity securities, (ii) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents
(however designated) of corporate stock, (iii) in the case of a partnership or limited liability company, partnership or membership interests
(whether general or limited) and (iv) any other interest or participation that confers on a Person the right to receive a share of the profits and
losses of, or distributions of assets of, the issuing Person.
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"Collateral" shall mean all assets of the Borrower and each of its Subsidiaries in which a Lien is required to be granted to secure the
Obligations.
"Collateral Agent" means JPMorgan in its capacity as collateral agent under the Collateral Documents.
"Collateral Documents" means, collectively, the Intercreditor Agreement, the Security Agreements, the Mortgages and all other agreements or
documents granting or perfecting a Lien in favor of the Collateral Agent for the benefit of the Secured Parties under the Intercreditor
Agreement or otherwise providing support for the Secured Obligations at any time, as any of the foregoing may be amended or modified from
time to time.
“Consolidated Capital Expenditures” means, with reference to any period, the Capital Expenditures of the Borrower and its
Subsidiaries calculated on a consolidated basis for such period.
“Defaulting Lender” means any Lender, as determined by the Agent, that has (a) failed to fund any portion of its Loans or participations in
Facility LC's or Swing Line Loans within three Business Days of the date required to be funded by it hereunder, (b) notified the Borrower, the
Agent, the Issuing Bank, the Swing Line Lender or any Lender in writing that it does not intend to comply with any of its funding obligations
under this Agreement or has made a public statement to the effect that it does not intend to comply with its funding obligations under this
Agreement or under other agreements in which it commits to extend credit, (c) failed, within three Business Days after request by the Agent, to
confirm that it will comply with the terms of this Agreement relating to its obligations to fund prospective Loans and participations in then
outstanding Facility LC's and Swing Line Loans, (d) otherwise failed to pay over to the Agent or any other Lender any other amount required
to be paid by it hereunder within three Business Days of the date when due, unless the subject of a good faith dispute, or (e) (i) becomes or is
insolvent or has a parent company that has become or is insolvent or (ii) become the subject of a bankruptcy or insolvency proceeding, or has
had a receiver, conservator, trustee or custodian appointed for it, or has taken any action in furtherance of, or indicating its consent to,
approval of or acquiescence in any such proceeding or appointment or has a parent company that has become the subject of a bankruptcy or
insolvency proceeding, or has had a receiver, conservator, trustee or custodian appointed for it, or has taken any action in furtherance of, or
indicating its consent to, approval of or acquiescence in any such proceeding or appointment.
"Disqualified Stock" means any Capital Stock that, by its terms (or by the terms of any security into which it is convertible or for
which it is exchangeable), or upon the happening of any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise, or redeemable at the option of the holder thereof, in whole or in part prior to a date one year after the Facility Termination Date.
"Event of Loss" means, with respect to any property of the Borrower and its Subsidiaries, any loss, destruction or damage of such property or
any condemnation, seizure or taking, by exercise of the power of eminent domain or otherwise, of such property, or confiscation of such
property or the requisition of the use of such property.
"First Amendment" means the First Amendment to this Agreement dated as of the First Amendment Effective Date.
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"First Amendment Effective Date" shall mean February 17, 2009.
"January 2009 Financial Forecasts" means the financial forecasts provided to the Lenders by the Borrower on January 25, 2009, and
the Quarterly EBITDA Sensitivity Analysis provided to the Lenders by the Borrower on February 5, 2009.
"Modine Holding Consolidated Group" means Modine Holding GmbH and its Subsidiaries existing as of the First Amendment
Effective Date.
"Modine Korea" means Modine Korea, LLC, a wholly owned Subsidiary of the Borrower.
"Mortgages" means each mortgage, deed of trust and similar agreement and any other agreement from any Borrower or Guarantor granting a
Lien on any of its real property, each in form and substance acceptable to the Agent and as amended or modified from time to time, entered
into by any Borrower or Guarantor at any time for the benefit of the Collateral Agent and the Secured Parties pursuant to this Agreement or the
Intercreditor Agreement.
"Net Cash Proceeds" means, without duplication, in connection with any issuance of Capital Stock, sale or other disposition of any asset or
any settlement by, or receipt of payment in respect of, any property insurance claim or condemnation award, the cash proceeds (including any
cash payments received by way of deferred payment of principal pursuant to a note or installment receivable or purchase price adjustment
receivable or otherwise, but only as and when received) of such sale, settlement or payment, net of (i) direct costs relating solely to such sale,
other disposition or settlement, including sales commissions and reasonable and documented attorneys' fees, accountants' fees, investment
banking fees, and other customary fees and expenses actually incurred in connection therewith, (ii) amounts required to be applied to the
repayment of Indebtedness secured by a Lien expressly permitted hereunder on any asset which is the subject of such sale, insurance claim or
condemnation award (other than any Lien in favor of the Agent for the benefit of the Agent and the Lenders) and (iii) taxes paid or reasonably
estimated to be payable as a result thereof.
"Note Purchase Agreements" means the 2005 Note Purchase Agreement and the 2006 Note Purchase Agreement.
"Note Purchase Documents" means the 2005 Note Purchase Documents and the 2006 Note Purchase Documents.
"Secured Obligations" means, collectively, all (i) Obligations, (ii) Rate Management Obligations owing to one or more Lenders or their
Affiliates, (iii) 2005 Senior Note Debt, (iv) 2006 Senior Note Debt and (v) Banking Services Obligations.
"Secured Parties" means the Collateral Agent, the Agent, the Lenders, the Senior Note Holders and the other holders of the Secured
Obligations.
"Security Agreements" means each security agreement, pledge agreement, pledge and security agreement and similar agreement and any other
agreement from any Borrower or Guarantor granting a Lien on any of its personal property (including without limitation any Capital Stock
owned by such Borrower or Guarantor), each in form and substance acceptable to the Agent and as amended or modified from time to time,
entered into by any Borrower or Guarantor at any time for the benefit of the Collateral Agent and the Secured Parties pursuant to this
Agreement or the Intercreditor Agreement.
"Senior Note Holders" means the 2005 Senior Note Holders and the 2006 Senior Note Holders.
4
"2005 Note Purchase Documents" means the 2005 Note Purchase Agreement, the 2005 Senior Notes and all agreements and
documents executed in connection therewith at any time and as amended or modified from time to time.
"2005 Senior Note Debt" means the indebtedness and other liabilities owing pursuant to any 2005 Note Purchase Documents at any
time.
"2005 Senior Note Holders" means the holders of the 2005 Senior Note Debt.
"2005 Senior Notes" means the 4.91% Senior Notes due September 29, 2015 in the aggregate principal amount of $75,000,000 issued
by the Borrower pursuant to the 2005 Note Purchase Agreement, as amended or modified from time to time and including any notes issued in
exchange or replacement for such notes, and any other securities issued pursuant to the 2005 Note Purchase Agreement at any time.
"2006 Note Purchase Documents" means the 2006 Note Purchase Agreement, the 2006 Senior Notes and all agreements and
documents executed in connection therewith at any time and as amended or modified from time to time.
"2006 Senior Note Debt" means the indebtedness and other liabilities owing pursuant to any 2006 Note Purchase Documents at any
time.
"2006 Senior Note Holders" means the holders of the 2006 Senior Note Debt.
"2006 Senior Notes" means the 5.68% Senior Notes, Series A, due December 7, 2017 in the aggregate principal amount of $50,000,000
issued by the Borrower pursuant to the 2006 Note Purchase Agreement and the 5.68% Senior Notes, Series B, due December 7, 2018 in the
aggregate principal amount of $25,000,000 issued by the Borrower pursuant to the 2006 Note Purchase Agreement, in each case as amended or
modified from time to time and including any notes issued in exchange or replacement for such notes, and any other securities issued pursuant
to the 2006 Note Purchase Agreement at any time.
2.2 The following definitions in the Credit Agreement are restated as follows.
"Alternate Base Rate" means, for any day, a rate per annum equal to the greatest of (a) the Prime Rate in effect on such day, (b) the Federal
Funds Effective Rate in effect on such day plus ½ of 1% per annum and (c) the Adjusted Eurocurrency Reference Rate for a one month
Interest Period on such day (or if such day is not a Business Day, the immediately preceding Business Day) plus 1%. Any change in the
Alternate Base Rate due to a change in the Prime Rate, the Federal Funds Effective Rate or the Adjusted Eurocurrency Reference Rate shall be
effective from and including the effective date of such change in the Prime Rate, the Federal Funds Effective Rate or the Adjusted
Eurocurrency Reference Rate, respectively.
“Applicable Fee Rate” means, at any time and as the context may require, (i) 0.50% per annum with respect to commitment fees accruing on the
Available Aggregate Commitment, (ii) 4.75% per annum with respect to letter of credit fees accruing on the undrawn stated amount of standby
Facility LCs or (iii) 2.375% per annum with respect to letter of credit fees accruing on the undrawn stated amount of commercial Facility LCs.
“Applicable Margin” means with respect to (i) any Eurocurrency Advances, 4.75% and (ii) Floating Rate Advance, 3.75%.
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“Consolidated Net Income” means, as to any Person and with reference to any period, the net income (or loss) of such Person and its
Subsidiaries calculated on a consolidated basis for such period, (a) excluding (i) any non-cash charges or gains which are unusual, non-
recurring or extraordinary, (ii) any non-cash charges or gains related to exchange gains or losses on intercompany loans or to the Brazil
Holdback, (iii) for purposes of Section 6.18 only, Restructuring Charges subject to the limits set forth in the definition of Restructuring
Charges, and (iv) fees and expenses incurred by or for the account of the Borrower with respect to any Financial Advisor engaged pursuant to
Sections 9.6(d) and (e) hereof or Sections 15.2 and 15.3 of the Note Purchase Agreements as in effect on the First Amendment Effective Date;
and (b) including, to the extent not otherwise included in the determination of Consolidated Net Income, all cash dividends and cash
distributions received by the Borrower or any Subsidiary from any Person in which the Borrower or such Subsidiary has made an investment;
provided, however, that for any calculation of Consolidated Net Income for any period commencing on or after April 1, 2009, Modine Korea
shall not be included as a Subsidiary of the Borrower.
“Consolidated Total Debt” means as to any Person and at any time Indebtedness and, without duplication, Debt (as such term is defined in
the Note Purchase Agreements as of the First Amendment Effective Date) of such Person and its Subsidiaries calculated on a consolidated
basis.
“Guarantor” means (a) with respect to the Obligations and Rate Management Obligations owing by the Borrower, each Subsidiary required
under this Agreement to execute and deliver a Guaranty and its successors and assigns with respect to such Obligations and Rate
Management Obligations, and (b) with respect to the Obligations and Rate Management Obligations owing by a Foreign Subsidiary Borrower,
the Borrower and its successors and assigns and each Subsidiary required under this Agreement to execute and deliver a Guaranty and its
successors and assigns with respect to such Obligations and Rate Management Obligations.
"Intercreditor Agreement" shall mean the Collateral Agency and Intercreditor Agreement among the Secured Parties of the Borrower and
JPMorgan, as Collateral Agent, dated as of the date hereof, as amended or modified from time to time, provided that such Intercreditor
Agreement, and any amendments or modifications thereto, shall be in form and substance acceptable to the Required Lenders and the Agent.
“Interest Expense Coverage Ratio” means, as of any date of calculation, the ratio of (i) the Borrower’s Consolidated Adjusted EBITDA for the
then most recently ended four fiscal quarters to (ii) the Borrower’s Consolidated Interest Expense for the then most recently ended four fiscal
quarters.
“Leverage Ratio” means, as of any date of calculation, the ratio of (i) the Borrower’s Consolidated Total Debt outstanding on such date, minus
the amount of any cash collateral provided for any of the Obligations, the Rate Management Obligations owing to one or more Lenders or their
Affiliates or the Banking Services Obligations, to (ii) the Borrower’s Consolidated Adjusted EBITDA for the then most recently ended four
fiscal quarters.
"Loan Documents" means this Agreement, the Guaranties, the Facility LC Applications, the Collateral Documents, any Notes issued pursuant
to Section 2.16 and any other agreements or instruments executed in connection herewith at any time.
"Material Indebtedness" means (a) 2005 Senior Note Debt, (b) 2006 Senior Note Debt, and (c) any other Indebtedness (other than the Loans
and Facility LC's) of the Borrower in an aggregate principal amount exceeding $5,000,000.
“Qualified Receivables Transaction” means any transaction or series of transactions that may be entered into by the Borrower or any
Subsidiary pursuant to which the Borrower or any Subsidiary may sell, convey or otherwise transfer to a newly-formed Subsidiary or other
special-purpose entity, or any other Person, any accounts or notes receivable and rights related thereto on a limited recourse basis, provided
that (i) such sale, conveyance or transfer qualifies as a sale under Agreement Accounting Principles and (ii) the aggregate outstanding
Receivables Transaction Attributed Indebtedness for all Qualified Receivables Transactions (including those listed on Schedule 6.16 and any
other Qualified Receivables Transaction at any time, but excluding sales or assignments of trade notes receivable or accounts receivable of the
Borrower's Foreign Subsidiaries permitted under Section 6.17(b)) shall not exceed $15,000,000.
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“Restructuring Charges” means certain cash charges related any restructuring program of the Borrower and its Subsidiaries subject to the
following limitations:
(a) such charges specifically relate to the following categories of expense incurred in connection with any such
restructuring: severance and related benefits; contractual salary continuation with respect to terminated employees, retained
restructuring consulting; equipment transfer; employee outplacement; environmental services; and employee insurance and benefits
continuation.
(b) the aggregate amount of all Restructuring Charges shall not exceed $14,000,000 for all times after December 31, 2008.
"Significant Subsidiary" means any Subsidiary that, together with its subsidiaries, owns consolidated total assets with a value of greater than
$1,000,000 at any time.
2.3 Section 2.3 is restated as follows:
2.3 Determination of Dollar Amounts; Required Payments; Termination.
(a) The Agent will determine the Dollar Amount of:
(i) each Credit Extension as of the date three Business Days prior to (x) in the case of an Advance, the Borrowing Date or, if
applicable, date of conversion/continuation of such Advance, and (y) in the case of a Facility LC, the date for which a Borrower has requested
issuance of such Facility LC, and
(ii) all outstanding Credit Extensions on and as of the last Business Day of each month and on any other Business Day
elected by the Agent in its discretion or upon instruction by the Required Lenders.
Each day upon or as of which the Agent determines Dollar Amounts as described in the preceding clauses (i) and (ii) is herein described as a
“Computation Date” with respect to each Credit Extension for which a Dollar Amount is determined on or as of such day. If at any time the
Dollar Amount of the Aggregate Outstanding Credit Exposure (calculated, with respect to those Credit Extensions denominated in Agreed
Currencies other than Dollars, as of the most recent Computation Date with respect to each such Credit Extension) exceeds the Aggregate
Commitment, the Borrowers shall immediately repay Advances in an aggregate principal amount sufficient to eliminate any such excess.
(b) In addition to all other payments of the Obligations or relating to the Obligations required hereunder and unless waived by
the Required Lenders, the Borrower shall pay or cause to paid 100% of the Asset Sale Net Proceeds as a prepayment of the principal amount of
the Advances in excess of $94,000,000 (up to the amount of such excess) and, if any Asset Sale Net Proceeds remain thereafter, shall pay such
remaining amounts to the Collateral Agent, to be held by the Collateral Agent in accordance with Section 4.2(b) of the Intercreditor Agreement
as in effect on the date hereof (and giving effect to any amendment thereof only if agreed to by the Borrower) and applied to the Secured
Obligations (as defined in the Intercreditor Agreement as in effect on the date hereof, and giving effect to any amendment thereof only if
agreed to by the Borrower) in accordance with the Intercreditor Agreement as in effect on the date hereof, and giving effect to any amendment
thereof only if agreed to by the Borrower. The amount paid to the Collateral Agent and held by the Collateral Agent shall not reduce the
Obligations until, and only to the extent, such amounts are applied by the Collateral Agent to the Obligations in accordance with the
Intercreditor Agreement as in effect on the date hereof (and giving effect to any amendment thereof only if agreed to by the Borrower).
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As used herein, "Asset Sale Net Proceeds" means 100% of all of the Net Cash Proceeds from any sale, Event of Loss, license, lease or other
disposition or transfer of any assets (including without limitation any Sale and Leaseback Transaction and any sale permitted under Section
6.17(b) or (c), but excluding the Excluded Sales described below) in excess of $25,000,000 in aggregate amount after the First Amendment
Effective Date, each payable and effective upon receipt of such Net Cash Proceeds. As used herein, "Excluded Sales" means (i) the sale of
inventory in the ordinary course of business, (ii) the sale of obsolete or worn-out property in the ordinary course of business not to exceed
$1,000,000 in the aggregate after the First Amendment Effective Date, (iii) sales of notes receivable or accounts receivable to the extent
permitted under Section 6.17; (iv) revenues from licenses in existence on the First Amendment Effective Date, including all renewals,
extensions and modifications thereof and substitutions therefor, or (v) if the Borrower shall deliver to the Agent a certificate of a Authorized
Officer to the effect that the Borrower or its applicable Subsidiary receiving the Net Cash Proceeds from an Event of Loss intends to apply the
Net Proceeds from such event (or a portion thereof specified in such certificate), within 180 days after receipt of such Net Proceeds, to acquire
(or replace or rebuild) real property or equipment to be used in the business of the Borrower or its Subsidiaries, and certifying that no Default
has occurred and is continuing, then such Net Cash Proceeds specified in such certificate shall be excluded from the prepayment
determination required under the first sentence of this Section 2.3(b), provided that to the extent of any such Net Cash Proceeds therefrom that
have not been so applied by the end of such 180 day period, such Net Cash Proceeds will not be so excluded, and will be included in the
calculation contained in the first sentence of this Section 2.3(b) in determining whether a prepayment shall then be required.
Notwithstanding anything herein to the contrary, and the Aggregate Commitment will be automatically reduced by (x) 100% of the Asset Sale
Net Proceeds used as a prepayment of the principal amount of the Advances in excess of $94,000,000, simultaneously with such payment, and
(y) 38.524590163% of all Asset Sale Net Proceeds paid to the Collateral Agent and to be held by the Collateral Agent (provided that, if a greater
percentage thereof is applied by the Collateral Agent to the principal amount of the Advances, then such amount in excess of the amount that
previously reduced the Aggregate Commitment shall further reduce the Aggregate Commitments as and when such amount is so applied to
the principal amount of the Advances).
(c) In addition to all other payments of the Obligations required hereunder and unless waived by the Required Lenders, if at any time (i)
the aggregate principal amount of the Aggregate Outstanding Credit Exposure exceeds $94,000,000 and (ii) the aggregate amount of cash and
Cash Equivalent Investments (excluding the aggregate amount of any cash collateral for any Obligations or Rate Management Obligations) of
the Borrower and its Domestic Subsidiaries on hand exceeds $10,000,000 (the "Excess Domestic Cash"), then the Borrowers shall prepay the
Obligations or cause the Obligations to be prepaid by the amount of the Excess Domestic Cash on or within 14 days after such excess occurs,
unless any such other payment is required to be made at such time under this Agreement or the Intercreditor Agreement.
(d) In addition to all other payments of the Obligations required hereunder and unless waived by the Required Lenders, if at any time (i)
the aggregate principal amount of the Aggregate Outstanding Credit Exposure exceeds $94,000,000 and (ii) the aggregate amount of cash and
Cash Equivalent Investments (excluding the aggregate amount of any cash collateral for any Obligations or Rate Management Obligations) of
the Foreign Subsidiaries on hand exceeds $20,000,000 (the "Excess Foreign Cash"), then the Borrowers shall cause the Obligations to be
prepaid by the amount of the Excess Foreign Cash (and the Borrower shall cause the Excess Foreign Cash to be repatriated to the United
States to effect such prepayment, and it is acknowledged that such repatriation may be in the form of dividends from the applicable Foreign
Subsidiary or by loan from the applicable Foreign Subsidiary to the Borrower evidenced by documents satisfactory to the Agent and
subordinated to all Secured Obligations on terms and by agreements satisfactory to the Agent) on or within 45 days after such excess occurs,
unless any such other payment is required to be made at such time under this Agreement or the Intercreditor Agreement; provided, that no
such prepayment or repatriation shall be required if the amount of Excess Foreign Cash is reduced to zero through ordinary uses of cash by
such Foreign Subsidiary in compliance with this Agreement. Notwithstanding anything in this Section 2.3(d) to the contrary, to the extent that
the Borrower has determined in good faith and has documented in reasonable detail to the reasonable satisfaction of the Agent, that any
repatriation of Excess Foreign Cash would (i) result in material adverse tax consequences, (ii) result in a material breach of any agreement
governing Indebtedness of such Foreign Subsidiary permitted to exist or to be incurred by such Foreign Subsidiary under the terms of this
Agreement and/or (iii) be limited or prohibited under applicable local law, the prepayment required by this Section 2.3(d) shall be deferred on
terms to be agreed between the Borrower and the Agent; provided that in each case the Borrower and such Foreign Subsidiary shall take
commercially reasonable steps (except to the extent that any such steps result in material cost or tax to the Borrower or any of its Subsidiaries)
to minimize any such adverse tax consequences and/or to obtain any exchange control clearance or other consents, permits, authorizations or
licenses which are required to enable such Excess Foreign Cash to be repatriated or advanced to, and applied by, the Borrower in order to
effect such a prepayment.
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(e) In addition to all other payments of the Obligations or relating to the Obligations required hereunder and unless waived by the
Required Lenders, the Borrower shall pay 100% of the Equity Issuance Net Proceeds as a prepayment of the principal amount of the Advances
in excess of $94,000,000 (up to the amount of such excess) and, if any Equity Issuance Net Proceeds remain thereafter, shall pay such
remaining amounts to the Collateral Agent, to be held by the Collateral Agent in accordance with Section 4.2(b) of the Intercreditor Agreement
as in effect on the date hereof (and giving effect to any amendment thereof only if agreed to by the Borrower) and applied to the Secured
Obligations (as defined in the Intercreditor Agreement as in effect on the date hereof, and giving effect to any amendment thereof only if
agreed to by the Borrower) in accordance with the Intercreditor Agreement as in effect on the date hereof, and giving effect to any amendment
thereof only if agreed to by the Borrower. The amount paid to the Collateral Agent and held by the Collateral Agent shall not reduce the
Obligations until, and only to the extent, such amounts are applied by the Collateral Agent to the Obligations in accordance with the
Intercreditor Agreement as in effect on the date hereof (and giving effect to any amendment thereof only if agreed to by the Borrower).
As used herein, "Equity Issuance Net Proceeds" means 50% of all of the Net Cash Proceeds from issuance of any Capital Stock by the
Borrower.
Notwithstanding anything herein to the contrary, and the Aggregate Commitment will be automatically reduced by (x) 100% of the Equity
Issuance Net Proceeds used as a prepayment of the principal amount of the Advances in excess of $94,000,000, simultaneously with such
payment, and (y) 38.524590163% of all Equity Issuance Net Proceeds paid to the Collateral Agent and to be held by the Collateral Agent
(provided that, if a greater percentage thereof is applied by the Collateral Agent to the principal amount of the Advances, then such amount in
excess of the amount that previously reduced the Aggregate Commitment shall further reduce the Aggregate Commitments as and when such
amount is so applied to the principal amount of the Advances).
(f) If the principal amount of the Aggregate Outstanding Credit Exposure exceeds the Aggregate Commitment at any time, the Borrower
shall promptly pay, or cause to be paid, the amount of such excess.
(g) The Aggregate Outstanding Credit Exposure and all other unpaid Obligations owing by each Borrower shall be paid in full by each
such Borrower on the Facility Termination Date.
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If any prepayment required under this Section 2.2 would exceed the aggregate Loans at such time and any LC Obligations are outstanding,
then the amount of such excess shall be deposited in the Facility LC Collateral Account.
2.4 The following is added to the end of Section 2.6: "Notwithstanding anything herein to the contrary, the Aggregate Commitment shall
automatically be reduced by the Dollar Amount by which the sum of (i) the aggregate principal amount of Indebtedness incurred under
Section 6.16(e) (and not including any Indebtedness described on Schedule 6.16) by the members of the Modine Holding Consolidated Group
plus (ii) the aggregate unfunded committed amount of all credit facilities for such Indebtedness, is in excess of €5,000,000, effective as of the
date such Indebtedness is incurred or such credit facility or facilities are effective and as of the date any subsequent increase therein occurs,
provided that the aggregate reductions in the Aggregate Commitment pursuant to this sentence shall not exceed $15,000,000.
2.5 Section 2.26 is restated as follows: Section 2.26 [Intentionally Deleted].
2.6 The following new Sections 2.27 and 2.28 are added to the Credit Agreement:
2.27. Collateral Security; Further Assurances. (i) To secure the payment when due of the Secured Obligations (subject to the
Intercreditor Agreement), the Borrower shall execute and deliver, or cause to be executed and delivered, to the Collateral Agent, Collateral
Documents granting or providing for the following:
(a) Security Agreements granting a first priority, enforceable Lien and security interest, subject to the Liens permitted
by this Agreement and subject to the sharing provisions to be contained in the Intercreditor Agreement, on all present and future accounts,
chattel paper, commercial tort claims, deposit accounts, documents, farm products, fixtures, chattel paper, equipment, general intangibles,
goods, instruments, inventory, investment property, letter-of-credit rights (as those terms are defined in the Illinois Uniform Commercial Code)
and all other personal property of the Borrower and of each Guarantor, subject to any exclusions described in the Intercreditor Agreement or
approved by the Required Lenders. Notwithstanding the foregoing, with respect to Liens granted by the Borrower or any Guarantor on the
Capital Stock of any Foreign Subsidiary such Lien shall not exceed 65% (or such greater percentage that, due to a change in an applicable law
after the date hereof, (1) could not reasonably be expected to cause the undistributed earnings of such Foreign Subsidiary as determined for
U.S. federal income tax purposes to be treated as a deemed dividend to such Foreign Subsidiary's U.S. parent and (2) could not reasonably be
expected to cause any material adverse tax consequences) of the issued and outstanding Capital Stock entitled to vote (within the meaning of
Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Capital Stock not entitled to vote (within the meaning of Treas. Reg.
Section 1.956-2(c)(2)) in each Foreign Subsidiary directly owned by the Borrower or any Guarantor. Notwithstanding the foregoing, at any
time after a Default has occurred or if the Agent determines that the Borrower will not incur a material tax liability as result of such greater
pledge, the Borrower shall, upon the request of the Agent, have the balance of its Capital Stock pledged to the Collateral Agent to secure,
subject to the Intercreditor Agreement, the Secured Obligations.
(b) Mortgages granting a Lien on all present and future real property of the Borrower and of each Guarantor to the
extent such Liens are required by or on behalf of the Agent, the Required Lenders or any Senior Note Holder.
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(c) Any other Collateral required under the Note Purchase Documents.
(ii) Each Foreign Subsidiary Borrower shall execute and deliver, or cause to be executed and delivered, Collateral Documents requested
by the Agent from each such Foreign Subsidiary Borrower and each of its Subsidiaries, granting a first priority, enforceable Lien and security
interest, subject to the Liens permitted by this Agreement and securing the Obligations owing by such Foreign Subsidiary Borrower, on all
present and future assets of such Foreign Subsidiary Borrower and each of its Subsidiaries. Additionally, to the extent required by the Agent
or the Required Lenders at any time after a Default has occurred or if the Agent determines that the Borrower will not incur a material tax
liability as result of the following, the Borrower shall cause, to the extent legally permitted and to the extent not prohibited by a restriction
permitted under Section 6.25 hereof, each other Foreign Subsidiary required by the Agent or the Required Lenders to execute and deliver such
Collateral Documents requested by the Agent to grant a first priority (subject to the Liens permitted by this Agreement), enforceable Lien and
security interest on all present and future assets of such Foreign Subsidiary securing the Obligations and Rate Management Obligations
owing by each Foreign Subsidiary Borrower.
(iii) On or before the First Amendment Effective Date (or April 30, 2009 in the case of Collateral Documents relating to the Collateral
described in Section 2.27(i)(b) or such later date agreed to by the Agent, provided that the Borrower shall use commercially reasonable efforts
to complete such Collateral Documents as soon as practical), the Borrower shall cause all Collateral Documents as reasonably requested by
the Agent, in each case duly executed on behalf of the Borrower and the Guarantors, as the case may be, granting to the Lenders and the
Agent the Collateral and support specified in Section 2.27 hereof, together with: (v) such resolutions, certificates and opinions of counsel as
reasonably requested by the Agent; (w) the recordation, filing and other action (including payment of any applicable taxes or fees) in such
jurisdictions as the Lenders or the Agent may deem necessary or appropriate with respect to the Collateral Documents, including the filing of
financing statements, Mortgages and other filings which the Lenders or the Agent may deem necessary or appropriate to create, preserve or
perfect the liens, security interests and other rights intended to be granted to the Lenders or the Agent thereunder, together with Uniform
Commercial Code record searches and other Lien searches in such offices as the Lenders or the Agent may request; (x) evidence that the
casualty and other insurance required pursuant to the Loan Documents is in full force and effect; (y) originals of all instruments and
certificates representing all of the outstanding shares of Capital Stock and other securities and instruments to be pledged thereunder, with
appropriate stock powers, endorsements and other powers duly executed in blank; and (z) such other evidence that Liens creating a first
priority security interest, subject to the Intercreditor Agreement, in the Collateral shall have been created and perfected as requested by the
Agent and the satisfaction of all other conditions in connection with the Collateral and the Collateral Documents as reasonably requested by
the Agent, including without limitation all opinions of counsel, title work, surveys, environmental reports and other documents and
requirements requested by the Agent, provided that it is acknowledged that the Agent is not requiring mortgagee title insurance, new surveys
or new environmental reports at this time, but may require such items and shall require such other items in connection with the real estate as
are required by the Noteholders.
(iv) The Borrowers agree that they will promptly notify the Agent of the formation, acquisition or existence of any Subsidiary that is a
Guarantor (per the definition of Guarantor) that has not executed a Guaranty and Collateral Documents or the acquisition of any assets on
which a Lien is required to be granted and that is not covered by existing Collateral Documents. Each Borrowers agrees that it will promptly
execute and deliver, and cause each Guarantor to execute and deliver, promptly upon the request of the Agent, such additional Collateral
Documents, Guaranties and other agreements, documents and instruments, each in form and substance satisfactory to the Agent, sufficient to
grant the Guaranties and Liens contemplated by this Agreement and the Collateral Documents. Each Borrower shall deliver, and cause each
Guarantor to deliver, to the Agent all original instruments payable to it with any endorsements thereto required by the Agent. Additionally,
the Borrower shall execute and deliver, and cause each Guarantor to execute and deliver, promptly upon the request of the Agent, such
certificates, legal opinions, lien searches, organizational and other charter documents, resolutions and other documents and agreements as the
Agent may reasonably request in connection therewith. Each Borrower shall use its best efforts to cause each lessor of real property to it or
any Subsidiary where any material Collateral is located to execute and deliver to the Agent an agreement in form and substance reasonably
acceptable to the Agent duly executed on behalf of such lessor waiving any distraint, lien and similar rights with respect to any property
subject to the Collateral Documents and agreeing to permit the Collateral Agent to enter such premises in connection therewith. Each
Borrower shall execute and deliver, and cause each Guarantor to execute and deliver, promptly upon the reasonable request of the Agent, such
agreements and instruments evidencing any intercompany loans or other advances among the Borrower and its Subsidiaries, or any of them,
and all such intercompany loans or other advances shall be, and are hereby made, subordinate and junior to the Secured Obligations and no
payments may be made on such intercompany loans or other advances upon and during the continuance of a Default unless otherwise agreed
to by the Required Lenders.
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2.28 Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting
Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees shall cease to accrue on the unfunded portion of the Commitments of such Defaulting Lender pursuant to Section 2.6;
(b) if any Swing Line Loan or Facility LC exists at the time a Lender is a Defaulting Lender, the Borrower shall within one Business Day
following notice by the Agent (i) prepay such Swing Line Loan or, if agreed by the Swing Line Lender, cash collateralize the pro rata share of
the Swing Line Loans of the Defaulting Lender on terms satisfactory to the Swing Line Lender, and (ii) cash collateralize such Defaulting
Lender’s pro rata share of the existing Facility LC in accordance with the procedures set forth herein for so long as Facility LC's are
outstanding; and
(c) the LC Issuer shall not be required to issue, amend or increase any Facility LC unless it is satisfied that cash collateral will be provided in
accordance with Section 2.28(b).
Notwithstanding anything herein to the contrary, (a) no Defaulting Lender shall be entitled to vote (whether to consent or to withhold its
consent) with respect to any amendment, modification, termination or waiver of any provision of this Agreement or any other Loan Document
or any departure therefrom or any direction from the Lenders to the Agent, and, for purposes of determining the Required Lenders at any time,
the Commitments of, and the Obligations owing to, each Defaulting Lender shall be disregarded and (b) any modification of this Section 2.27
shall require the written consent of the Borrower, the Required Lenders, the Agent, the Swing Line Lender and the LC Issuer.
4.2 Each Credit Extension. The Lenders shall not (except as otherwise set forth in Section 2.2(e) with respect to Revolving Loans for the
purpose of repaying Swing Line Loans) be required to make any Credit Extension to any Borrower unless on the applicable Credit Extension
Date:
(a) There exists no Default or Unmatured Default.
(b) The representations and warranties contained in Article 5 are true and correct as of such Credit Extension Date except to the extent any
such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty shall have been true
and correct on and as of such earlier date.
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(c) No payment is required under Section 2.3(c) or (d) or would be required under Section 2.3(c) after making such Credit Extension, whether
on the date such Credit Extension is made or would be required after the lapse of the applicable grace period allowed under Sections 2.3(c), as
determined by the Agent or the Required Lenders.
Each Borrowing Notice, request for issuance of a Facility LC, or Swing Line Borrowing Notice, as the case may be, with respect to each such
Credit Extension shall constitute a representation and warranty by the Borrower that the conditions contained in Sections 4.2(a) and (b) and, to
its knowledge, 4.2 (c) and (d) have been satisfied.
2.8 Section 5.5(b) is restated as follows:
(b) Since March 31, 2008, except as reflected in or contemplated by the January 2009 Financial Forecast, there has been no change in the
business, Property, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries that could reasonably be
expected to have a Material Adverse Effect.
2.9 The following new Sections 5.20 and 5.21 are added to the Credit Agreement:
5.20 2005 Senior Note and 2006 Senior Note Debt. As of the First Amendment Effective Date, the outstanding principal balance of the
2005 Senior Note Debt is $75,000,000 and all 2005 Note Purchase Documents (including the waiver and amendment and other agreements and
documents executed on or about the date hereof) have been delivered to the Lenders prior to the First Amendment Effective Date. As of the
First Amendment Effective Date, the outstanding principal balance of the 2006 Senior Note Debt is $75,000,000 and all 2006 Note Purchase
Documents (including the waiver or amendment and other agreements and documents executed on or about the date hereof) have been
delivered to the Lenders prior to the First Amendment Effective Date. After giving effect to the waivers and amendments to Note Purchase
Documents being delivered pursuant to Section 4.2 of the First Amendment, there is no event of default or event or condition which would
become an event of default with notice or lapse of time or both, under any 2005 Note Purchase Document or 2006 Note Purchase Document.
5.21 Projections. The January 2009 Financial Forecasts were prepared by or on behalf of the Borrower in good faith and on the basis of
the assumptions stated therein and such assumptions were believed by the Borrower to be reasonable at the time prepared. No facts are
known to the Borrower as of the First Amendment Effective Date which, if reflected in such January 2009 Financial Forecasts, would result in a
material adverse change in the assets, liabilities, results of operations or cash flows reflected therein.
2.10 The first parenthetical clause in Section 6.1(a) is restated as follows: "(without a "going concern" or like qualification or exception
(other than for the fiscal year ending March 31, 2009) and without any qualification or exception as to the scope of such audit)".
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2.11 Section 6.1(i) is replaced with the following:
(i) If requested by the Agent or the Required Lenders, within 20 days after the end of each month (commencing with the first
month ending at least 15 days after such request), for itself and its Subsidiaries, consolidated and consolidating unaudited balance sheets as
at the close of each such period and consolidated and consolidating profit and loss statements and a statement of cash flows for the period
from the beginning of such fiscal year to the end of such month, all certified by an Authorized Officer;
(j) promptly after the delivery thereof, copies of any reports by the Borrower Financial Advisor delivered to the Borrower, the
board of directors of the Borrower or any committee thereof at any time;
(k) simultaneously with their delivery to any Senior Note Holders, such projections, financial information and other reporting
items delivered to any of the Senior Note Holders or their representatives pursuant any Note Purchase Documents;
(l) Promptly upon the request of the Agent or the Required Lenders, an appraisal of the Borrower inventory of the Borrower and its
Domestic Subsidiaries, at the expense of the Borrower, by a valuation or appraisal firm reasonably satisfactory to the Agent, provided that, if
no Default has occurred, not more than one such appraisal per fiscal year of the Borrower shall be at the expense of the Borrower;
(m) Promptly upon the request of the Agent or the Required Lenders, a consolidated thirteen week rolling cash flow statement of the
Borrower and its Subsidiaries, to be updated by the Borrower weekly thereafter, and in form and detail acceptable to the Required Lenders and
the Agent;
(n) If requested by the Agent or the Required Lenders, within 20 days after the end of each month (commencing with the first month
ending at least 15 days after such request), a schedule detailing the inventory of the Borrower and its Subsidiaries, a schedule and aging of the
accounts receivable and payable of the Borrower and its Subsidiaries and a schedule of daily cash balances of the Borrower and its
Subsidiaries, each in form and detail satisfactory to the Agent and with such supplemental information relating thereto as requested by the
Agent;
(o) promptly upon receipt thereof, any notice received from any Senior Note Holder or agent or trustee therefor and any notice that the
Borrower or any of its Subsidiaries is subject to any investigation of any kind by any governmental entity or stock exchange;
(p) immediately after becoming aware thereof, notice of any pending or threatened strike, work stoppage, unfair labor practice claim, or
other labor dispute affecting the Borrower or any of its Subsidiaries; and
(q) such other information (including non-financial information) as the Agent or any Lender may from time to time reasonably request.
Notwithstanding the above, if any report or other information required under this Section 6.1 is due on a day that is not a Business Day, then
such report or other information shall be required to be delivered on the first day after such day that is a Business Day.
2.12 Sections 6.2, 6.3, 6.4 and 6.5 are restated as follows:
Section 6.2 Inspection of Property, Books and Records. The Borrower will, and will cause each Subsidiary to, permit the Agent and the
Lenders, by their respective representatives and agents, to visit and inspect their respective properties in order to: (a) examine and make
abstracts from any of their respective books and records; and (b) to discuss their respective affairs, finances and accounts with their
respective officers, employees and independent public accountants. The Borrower agrees to cooperate and assist in such visits and
inspections, in each case at such reasonable times and as often as may reasonably be desired. Without limiting the foregoing, the Agent may
conduct, at the Borrower's expense, such audits and field examinations of the assets of the Borrower and its Subsidiaries during normal
business hours on reasonable notice and with reasonable frequency, all as determined by the Agent. The Borrower further agrees to conduct
such periodic teleconferences with the Agent and the Lenders and their respective advisors as reasonably requested by the Agent.
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Section 6.3 Restricted Payments. The Borrower will not, nor will it permit any Subsidiary to, declare or make any Restricted Payment
except any Subsidiary may declare and pay dividends or make distributions to the Borrower or to a Wholly-Owned Subsidiary. The Borrower
will not issue any Disqualified Stock.
Section 6.4 Loans or Advances. Neither the Borrower nor any of its Subsidiaries shall make loans or advances to any Person except:
(a) deposits required by government agencies or public utilities;
(b) existing loans or advances between the Borrower and its Subsidiaries and between Subsidiaries described under the heading of
"Intercompany Loan Balances" on Schedule 6.16 hereto, but no increase in the amount thereof (except to the extent increased amounts are
permitted under another clause of this Section 6.4);
(c) loans or advances from any Foreign Subsidiaries to the Borrower or any Guarantor, provided that such loans and advances are evidenced
by documents satisfactory to the Agent and are subordinated to all Secured Obligations on terms and by agreements satisfactory to the
Agent;
(d) loans and advances between the Borrower and the Guarantors, provided that such loans and advances are evidenced by documents
satisfactory to the Agent;
(e) loans and advances between Foreign Subsidiaries, provided that such loans and advances are (i) evidenced by documents satisfactory to
the Agent and (ii) if such loans and advances are owing by a Foreign Subsidiary Borrower or any Foreign Subsidiary guaranteeing the
Obligations of such Foreign Subsidiary Borrower, subordinated to all Obligations and Rate Management Obligations owing by such Foreign
Subsidiary Borrower on terms and by agreements satisfactory to the Agent; and
(f) other loans and advances made in the ordinary course of business not exceeding $10,000,000 in the aggregate at any time outstanding;
provided that after giving effect to the making of any loans, advances or deposits permitted by clause (a), (b), (c), (d), (e) or (f) of this Section,
no Default or Unmatured Default shall have occurred and be continuing.
Notwithstanding anything herein to the contrary, the Borrower will not, nor will it permit any Subsidiary to, make any loans and advances to
Modine Korea, any member of the Modine Holding Consolidated Group or any Domestic Subsidiary that is not a Guarantor at any time on or
after the First Amendment Effective Date, provided that this provision shall not restrict loans and advances between members of the Modine
Holding Consolidated Group.
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Section 6.5 Investments and Acquisitions.
(a) The Borrower will not, nor will it permit any Subsidiary to, make or suffer to exist any Investments (including without limitation, loans and
advances to, and other Investments in, Subsidiaries), or commitments therefor, or to create any Subsidiary or to become or remain a partner in
any partnership or joint venture, or to make any Acquisition of any Person, except:
(i) Cash Equivalent Investments.
(ii) (x) Existing Investments in Subsidiaries but no increase in the amount thereof, and (y) other Investments described
in Schedule 6.5, but no increase in the amount thereof, as reduced from time to time.
(iii) Investments comprised of capital contributions (whether in the form of cash, a note, or other assets) to a
Subsidiary or other special-purpose entity created solely to engage in a Qualified Receivables Transaction.
(iv) Rate Management Transactions permitted by Section 6.20 and guaranties by the Borrower and its Subsidiaries of
such Rate Management Obligations.
(v) Loans and advances permitted by Section 6.4.
(b) The Borrower and its Subsidiaries may make and have outstanding other Investments, provided that (i) no Default or Unmatured Default
exists at the time such Investment is made or would be caused thereby and (ii) at no time shall the aggregate outstanding amount of all such
other Investments existing and permitted under this Section 6.5(b) exceed $1,000,000.
Notwithstanding anything herein to the contrary, the Borrower will not, nor will it permit any Subsidiary to, make any Investments (including
without limitation, loans and advances to, and other Investments) to Modine Korea, any member of the Modine Holding Consolidated Group
or any Domestic Subsidiary that is not a Guarantor at any time on or after the First Amendment Effective Date, provided that this provision
shall not restrict Investments between members of the Modine Holding Consolidated Group.
Section 6.6 Negative Pledge. The Borrower will not, nor will it permit any Subsidiary to, create, incur or suffer to exist any Lien in, of or
on any of the Property of the Borrower or any of its Subsidiaries, except for (a) Permitted Encumbrances, (b) Liens in favor of the Collateral
Agent securing the Secured Obligations and subject to the Intercreditor Agreement, (c) Liens on up to $10,000,000 of cash or cash equivalents
to secure existing Rate Management Obligations, (d) Liens in favor of the Agent securing the Obligations, and (e) Liens on assets of the
Modine Holding Consolidated Group securing Indebtedness owing by the Modine Holding Consolidated Group and permitted under Section
6.16(e).
2.14 Reference in Section 6.7 to "Except for corporate reorganizations permitted by Sections 6.9(a) and 6.9(b)" and reference in Section 6.8
to "except for corporate reorganizations permitted by Sections 6.9(a) and 6.9(b)" shall be replaced with "Except for transactions permitted by
Section 6.9" and "except for transactions permitted by Section 6.9", respectively.
16
2.15 Sections 6.9(b) and (c) are restated as follows:
(b) the foregoing limitation on the sale, lease or other transfer of assets and on the discontinuation or elimination of a
business line or segment shall not prohibit:
(i) sales of inventory in the ordinary course of business;
(ii) sale or other disposition of Modine Korea, whether by sale of Capital Stock or assets, and other assets
owned by Foreign Subsidiaries related to the Korean-based vehicular HVAC business;
(iii) leases, sales or other dispositions of Property that, together with all other Property of the Borrower and its
Subsidiaries previously leased, sold or disposed of as permitted by this clause (iii) during the twelve-month period ending with the
month in which any such lease, sale or other disposition occurs, do not constitute a Substantial Portion of the Property of the
Borrower and its Subsidiaries, provided that, after giving effect to any such lease, sale or other disposition, no Default or Unmatured
Default shall have occurred and be continuing; and
(iv) any transfer of an interest in accounts or notes receivable and related assets permitted under Section 6.17.
(c) the foregoing limitation on the discontinuation or elimination of any business line or segment shall not prohibit the
liquidation and dissolution of any Subsidiary or the discontinuation or elimination of any business line or segment, provided that (i) the
Borrower shall have reasonably determined that such business line or segment being discontinued or eliminated is a non-core business of the
Borrower and its Subsidiaries, (ii) any sale of assets relating to any discontinuation or elimination of any business line or segment or any
liquidation or dissolution of any Subsidiary shall be subject to the limitation on the sale, lease or other transfer of assets described in Section
6.9(b) and the prepayment requirements under Section 2.3(b) and the other terms of this Agreement, and (iii) after giving effect to any such
liquidation or dissolution or discontinuation or elimination of any business line or segment, no Default or Unmatured Default shall have
occurred and be continuing or would caused thereby.
Section 6.10 Use of Proceeds. The Borrower will use the proceeds of the Credit Extensions solely for general corporate purposes. No
portion of the proceeds of the Credit Extensions will be used by the Borrower, directly or indirectly, for the purpose, whether immediate,
incidental or ultimate, of purchasing or carrying any “margin stock” (as defined in Regulation U), or for any purpose in violation of any
applicable law or regulation.
2.17 Sections 6.16 (e) is deleted and replaced with the following subsections (e) and (f):
(e) Indebtedness, in addition to Indebtedness permitted pursuant to subsections (a)-(c) above, owing by the Modine
Holding Consolidated Group not to exceed €35,000,000 in aggregate principal amount outstanding at any time.
(f) Indebtedness, in addition to Indebtedness permitted pursuant to subsections (a)-(e) above, in an aggregate amount
at any time outstanding not to exceed $10,000,000.
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2.18 Section 6.16 is further amended by adding following to the end thereof:
Notwithstanding anything herein to the contrary, the Borrower will not permit or suffer to exist itself or any of its Subsidiaries (other than
Modine Korea) to have any Contingent Obligation, or any other liability or obligation of any kind, with respect any Indebtedness or any other
obligation or liability of Modine Korea, except such Contingent Obligation or other liability or obligation existing on the First Amendment
Effective Date and described on Schedule 6.16-2, but no increase in the amount thereof as reduced from time to time.
Section 6.18 Financial Covenants.
(a) Leverage Ratio. The Borrower will not permit the Leverage Ratio, determined as of the end of each fiscal quarter set forth below, to be
greater than the ratio set forth opposite such fiscal quarter:
Fiscal Quarter Maximum

Leverage Ratio
(b) Interest Expense Coverage Ratio. The Borrower will not permit the Interest Expense Coverage Ratio, determined as of the end of each
fiscal quarter set forth below, to be less than the ratio set forth opposite such fiscal quarter:
Fiscal Quarter Minimum

Interest Expense
Coverage Ratio
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(c) Minimum EBITDA. The Borrower will not permit the Consolidated Adjusted EBITDA, determined as of the end of each fiscal quarter set
forth below, to be less than the amount set forth opposite such fiscal quarter:
Minimum
Consolidated
Adjusted
Fiscal Quarter EBITDA
Fiscal quarter ending March 31, 2009, as calculated for the fiscal quarter then ending $ - 25,000,000
Fiscal quarter ending June 30, 2009, as calculated for the two consecutive fiscal quarters then ending $ - 22,000,000
Fiscal quarter ending September 30, 2009, as calculated for the three consecutive fiscal quarters then ending $ - 14,000,000
Fiscal quarter ending December 31, 2009, as calculated for the four consecutive fiscal quarters then ending $ 1,750,000
Fiscal quarter ending March 31, 2010, as calculated for the four consecutive fiscal quarters then ending $ 35,000,000
(d) Capital Expenditures. The Borrower will not permit or suffer Consolidated Capital Expenditures in excess of (i) $30,000,000 for the fiscal
quarter ending March 31, 2009, (ii) $65,000,000 for the fiscal year ending March 31, 2010, or (iii) $70,000,000 for any fiscal year ending thereafter;
in each case in addition to any replacement or rebuilding of any real property or equipment from the Net Proceeds from any Event of Loss of
real property or equipment as provided in Section 2.3(b).
2.20 Sections 6.19(a) is restated as follows:
(a) The Borrower will cause (i) each Subsidiary that delivers a guarantee, or otherwise incurs a Contingent Obligation, to any Person
(other than to another Subsidiary or the Borrower) in respect of any Material Indebtedness to concurrently execute and deliver to the Agent a
Guaranty with respect to all Obligations and Rate Management Obligations, (ii) each Domestic Subsidiary to promptly, and in any event within
30 days when required by this clause (ii), execute and deliver to the Agent a Guaranty with respect to all Obligations and Rate Management
Obligations, provided that each Domestic Subsidiary in existence on the First Amendment Effective Date that is not signing a Guaranty on the
First Amendment Effective Date shall not be required to be a Guarantor so long as it does not qualify as a Significant Subsidiary (and the
Borrower represents that each Domestic Subsidiary in existence on the First Amendment Effective Date that is not signing a Guaranty on the
First Amendment Effective Date is not a Significant Subsidiary), and (iii) each Subsidiary of any Foreign Subsidiary Borrower, if any, and any
other Foreign Subsidiary requested by the Agent, to the extent they can legally do so without incurring a material tax liability and to the extent
they are not prohibited by a restriction permitted under Section 6.25 hereof, to promptly execute and deliver to the Agent a Guaranty with
respect to all Obligations of such Foreign Subsidiary Borrower.
2.21 The following new Sections 6.22, 6.23, 6.24, 6.25, 6.26 and 6.27 are added to the Credit Agreement:
6.22 Optional Payments and Modification of Debt. The Borrower will not, nor will it permit any Subsidiary to, (i) make any optional
payment, defeasance (whether a covenant defeasance, legal defeasance or other defeasance), prepayment, repurchase (including without
limitation any offer to repurchase) or other optional redemption of any 2005 Senior Note Debt or 2006 Senior Note Debt, (ii) enter into any
agreement restricting the ability of the Borrower and its Subsidiaries to amend or modify any Loan Document, except to the extent described in
the waivers and amendments to Note Purchase Documents being delivered pursuant to Section 4.2 of the First Amendment, (iii) enter into any
agreement or arrangement requiring any defeasance of any kind of any 2005 Senior Note Debt or 2006 Senior Note Debt, (iv) pay or agree to
pay any fee, interest or other compensation or consideration (other than as required under the Note Purchase Documents as in effect on the
First Amendment Effective Date) to any purchaser or other holder of the 2005 Senior Note Debt or 2006 Senior Note Debt, (v) shorten the
maturity or termination date of any loans or other credit facilities of the Borrower or any Subsidiary under any Note Purchase Document (other
than as required under the waivers and amendments to Note Purchase Documents being delivered pursuant to Section 4.2 of the First
Amendment, provided that no regularly scheduled principal installment payment shall be due on or prior to July 18, 2011), (vi) amend or
otherwise modify any term or provision of any Note Purchase Document requiring any prepayment, defeasance or repurchase of any 2005
Senior Note Debt or 2006 Senior Note Debt as in effect on the First Amendment Effective Date, or (vii) enter into any agreement or arrangement
requiring any defeasance of any kind of any 2005 Senior Note Debt or 2006 Senior Note Debt except as set forth in or required by the Note
Purchase Documents as in effect on the First Amendment Effective Date.
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The Borrower represents and agrees that the only agreements or arrangements requiring any defeasance (whether a covenant defeasance,
legal defeasance or other defeasance), prepayment, repurchase (including without limitation any offer to repurchase) or other redemption or
payment of any principal of any 2005 Senior Note Debt or 2006 Senior Note Debt on or before July 18, 2011 (other than upon the acceleration
thereof after an event of default or the existing prepayment required upon a change in control) are the prepayment provisions in waiver and
amendment to 2005 Note Purchase Agreement and the waiver and amendment to 2006 Note Purchase Agreement and the amended and
restated Notes, each in the form being delivered pursuant to Section 4.2 of the First Amendment.
6.23 Communications with Accountants. The Borrower authorizes the Agent and each Lender to communicate directly with its
independent certified public accountants and authorizes and shall instruct those accountants and advisors to communicate to the Agent and
each Lender information relating to the Borrower and its Subsidiaries with respect to the business, results of operations and financial
condition of the Borrower or any of its Subsidiaries.
6.24 Deposit Accounts. The Borrower shall, and shall cause each of its Subsidiaries to, maintain the Agent, a Lender or any of their
respective Affiliates as their sole depository bank, including for the maintenance of all operating, administrative, cash management, collection
activity, and other deposit accounts for the conduct of their respective businesses, provided that
(a) with respect to all operating, administrative, cash management, collection activity, and other deposit accounts of the Borrower and the
Domestic Subsidiaries, the Borrower shall have up to 60 days after the First Amendment Effective Date (or such later date agreed to by the
Agent) to comply with the terms of this Section 6.24, provided that for administrative convenience the Borrower may maintain existing local
deposit accounts at all times thereafter not to exceed $100,000 in aggregate amount for all such accounts of the Borrower and all Domestic
Subsidiaries;
(b) with respect to all operating, administrative, cash management, collection activity, and other deposit accounts of the Foreign Subsidiaries
(other the Modine Holding Consolidated Group), the Borrower shall have up to 120 days after the First Amendment Effective Date (or such
later date agreed to by the Agent) to comply with the terms of this Section 6.24, provided that at all times thereafter up to the Dollar Amount of
$5,000,000 in the aggregate for all such Foreign Subsidiaries may be maintained by such Foreign Subsidiaries in deposit accounts in the
country of their organization that are not with the Agent, a Lender or any of their respective Affiliates if neither the Agent nor any Lender or
any of their respective Affiliates provides such depositary services in such country and such amount is required by Borrower's Subsidiaries in
such country for their operations; and
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(c) the requirements of this Section 6.24 shall not apply to the Modine Holding Consolidated Group.
6.25. Restrictive Agreements. The Borrower will not, and will not permit any of its Subsidiaries to, directly or indirectly, enter into, incur or
permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon the ability of any Subsidiary to pay
dividends or other distributions with respect to any shares of its Capital Stock or to make or repay loans or advances to the Borrower or any
Domestic Subsidiary; provided that the foregoing shall not apply to: (a) restrictions and conditions imposed on the Modine Holding
Consolidated Group in connection with Indebtedness permitted under Section 6.16(e), (b) restrictions and conditions imposed in connection
with a material economic benefit provided to any Foreign Subsidiary by a governmental authority, (c) restrictions imposed under the Note
Purchase Documents as in effect on the First Amendment Effective Date, and (d) restrictions and conditions imposed by law.
6.26 General Indemnity. The Borrower will at all times protect, indemnify and save harmless the Collateral Agent, each Lender and
each of their respective officers, directors, employees, agents and representatives (referred too herein as the “Indemnitees”) from and against
all liabilities, obligations, claims, judgments, damages, penalties, fines, assessments, losses, indemnities, contributions, causes of action, costs
and expenses (including, without limitation, the fees and expenses of attorneys, auditors and consultants) imposed upon or incurred by or
asserted against the Indemnitees on account of (a) any failure of the Borrower or any Subsidiary or any employee or agent of any thereof to
comply with any of the terms, covenants, obligations or prohibitions of this Agreement or any other Financing Document (as defined in the
Intercreditor Agreement), (b) any breach of any representation or warranty of the Borrower or any Subsidiary set forth in this Agreement or in
any other Financing Document or any certificate delivered by the Borrower or any Subsidiary pursuant hereto or thereto, or any claim that any
statement, representation or warranty of the Borrower or any Subsidiary in any of the foregoing documents contains or contained any untrue
or misleading statement of material fact or omits or omitted to state any material facts necessary to make the statements made therein not
misleading in light of the circumstances under which they were made, (c) any action, suit, claim, proceeding or investigation of a judicial,
legislative, administrative or regulatory nature arising from or in connection with the Collateral, including without limitation (1) the presence,
escape, seepage, leakage, discharge, emission, release, removal or threatened release, or disposal of any Hazardous Materials and (2) any
violation of any law, ordinance or governmental rules or regulations including without limitation any Environmental Law, (d) any suit, action,
administrative proceeding, enforcement action, or governmental or private action of any kind whatsoever commenced against the Borrower,
any Subsidiary or any Indemnitee which might adversely affect the validity or enforceability of this Agreement or any other Financing
Document or the performance by the Borrower or any Subsidiary of any of its obligations hereunder or thereunder or (e) any loss or damage to
property or any injury to or death of any Person that may be occasioned by any cause whatsoever pertaining to any Collateral or the use
thereof, and shall further indemnify and save harmless the Indemnitees from and against (1) all amounts paid in settlement of any litigation
commenced or reasonably threatened against any Indemnitee that falls within the scope of clauses (a) through (e) above, and (2) all expenses
reasonably incurred in the investigation of, preparation for or defense of any litigation, proceeding or investigation of any nature whatsoever
that falls within the scope of clauses (a) through (e) above, commenced or reasonably threatened against the Borrower, any Subsidiary or any
Indemnitee.
6.27 Most Favored Lender Status. If the Borrower or any Subsidiary enters into, assumes or otherwise is or becomes bound or obligated
under, or amends, restates or otherwise modifies, any agreement creating or evidencing any Indebtedness of the Borrower or any Subsidiary,
or any refinancing or extension of all or any portion thereof (including without limitation all Note Purchase Documents in existence on the date
hereof and as amended or modified from time to time), to include one or more Additional Covenants or Additional Defaults, the terms of this
Agreement shall, without any further action on the part of the Borrower, any Subsidiary or any of the Lenders, be deemed to be amended
automatically and immediately to include each Additional Covenant and each Additional Default contained in such agreement. The Borrower
further covenants to promptly execute and deliver at its expense (including the fees and expenses of counsel for the Agent) an amendment to
this Agreement in form and substance satisfactory to the Required Lenders evidencing the amendment of this Agreement to include such
Additional Covenants and Additional Defaults, provided that the execution and delivery of such amendment shall not be a precondition to the
effectiveness of such amendment as provided for in this Section 6.27, but shall merely be for the convenience of the parties hereto.”
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The Borrower shall fail to observe or perform any covenant contained in Section 6.1(d), Sections 6.3 through 6.10, inclusive, or Sections 6.16
through 6.22, inclusive; or
2.23 References to "$20,000,000" in Sections 7.5, 7.10 and 7.11 and in the definition of "Significant Obligations" are each replaced with
"$10,000,000".
2.24 The following new Section 7.14 is added to the Credit Agreement:
7.14 Any Collateral Document shall for any reason (other than solely as the result of an act or omission of the Agent or a Lender) fail to
create a valid and perfected first priority security interest, subject to the Intercreditor Agreement, in any Collateral purported to be covered
thereby, except as permitted by the terms of this Agreement or any Collateral Document, or, due to any action by the Borrower or any of its
Subsidiaries not consented to by the Required Lenders, any Collateral Document shall fail to remain in full force or effect or any action shall be
taken by the Borrower or any of its Subsidiaries not consented to by the Required Lenders to discontinue or to assert the invalidity or
unenforceability of any Collateral Document, or any Borrower or any Guarantor shall fail to comply with any of the terms or provisions of any
Collateral Document if the failure continues beyond any period of grace provided for in the applicable Collateral Document.
2.25 Section 9.5 of the Credit Agreement is restated as follows:
9.5 Several Obligations; Benefits of this Agreement. The respective obligations of the Lenders hereunder are several and not joint and
no Lender shall be the partner or agent of any other (except to the extent to which the Agent is authorized to act as such). The Obligations of
each Borrower are several and not joint, except to the extent that any Borrower has executed a Guaranty with respect to the Secured
Obligations of another Borrower. The failure of any Lender to perform any of its obligations hereunder shall not relieve any other Lender from
any of its obligations hereunder. This Agreement shall not be construed so as to confer any right or benefit upon any Person other than the
parties to this Agreement and their respective successors and assigns, provided, however, that the parties hereto expressly agree that the
Arranger shall enjoy the benefits of the provisions of Sections 9.6, 9.10 and 10.6 to the extent specifically set forth therein and shall have the
right to enforce such provisions on its own behalf and in its own name to the same extent as if it were a party to this Agreement.
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2.26 The following new clauses (d) and (e) are added to the end of Section 9.6:
(d) Upon the earliest to occur of (i) Consolidated Adjusted EBITDA, determined as of the end of the fiscal quarter ending March 31, 2009 and
calculated for the fiscal quarter then ending, being less than -$12,000,000, (ii) Consolidated Adjusted EBITDA, determined as of the end of the
fiscal quarter ending June 30, 2009 and calculated for the fiscal quarter then ending, being less than $5,000,000, (iii) Consolidated Adjusted
EBITDA, determined as of the end of the fiscal quarter ending September 30, 2009 and calculated for the fiscal quarter then ending, being less
than $8,000,000, (iv) Consolidated Adjusted EBITDA, determined as of the end of any fiscal quarter thereafter and calculated for the fiscal
quarter then ending, being less than $15,000,000, or (v) the occurrence of any Default, then, at the request of the Agent or the Required
Lenders, the Borrower agrees to promptly engage at Borrower's sole cost a financial consultant selected by the Borrower and reasonably
acceptable to the Agent and the Required Lenders (the “Borrower Financial Advisor”) with a scope of authority, and engaged pursuant to
terms and conditions, in each case reasonably satisfactory to the Borrower, the Agent and the Required Lenders. The Borrower shall provide
the Borrower Financial Advisor with full onsite access to its books and records and the opportunity to discuss the financial condition,
performance, financial statements and other matters regarding the Borrower and its Subsidiaries with their respective officers, managers, other
employees, directors, independent accountants and financial advisors to permit the Borrower Financial Advisor to fully investigate any matter
that arises during its review of the financial and other information of the Borrower and its Subsidiaries. The Borrower Financial Advisor shall
fully share its work product with the Borrower, the Agent and the Lenders.
(e) The Borrower agrees that Agent or its counsel may hire one consulting firm chosen by the Agent to act as financial advisor (the “Lender
Financial Advisor”) to counsel for the Agent and the Lenders and the Borrower agrees to pay the fees and expenses of the Lender Financial
Advisor, provided that such fees shall be market reasonable (as reasonably determined by the Agent) and expenses shall be incurred on a
basis consistent with the Borrower’s current travel and entertainment policy in effect on the First Amendment Effective Date and disclosed to
the Agent. The Borrower and its Subsidiaries shall provide the Lender Financial Advisor with reasonable onsite access to their books and
records during normal business hours and the opportunity to discuss the financial condition, performance, financial statements and other
matters regarding the Borrower and its Subsidiaries with their respective officers, managers, other employees, directors, independent
accountants and financial advisors to permit the Lender Financial Advisor to fully investigate any matter that arises during its review of the
financial and other information of the Borrower and its Subsidiaries. The Lender Financial Advisor shall have no duty to share its work
product with, or accept instructions from, the Borrower, any Subsidiary or any Person working on their behalf. If a Borrower Financial Advisor
has been retained and the Agent and the Lenders thereafter retain a Lender Financial Advisor, the Agent and the Lenders agree that they will
use reasonable efforts to limit any duplicative efforts between the Borrower Financial Advisor and the Lender Financial Advisor, as
determined by the Required Lenders.
2.27 The following new Sections 10.11. 10.12 and 10.13 are added to the Credit Agreement:
10.11 Execution of Collateral Documents. The Lenders hereby empower and authorize the Agent (in its capacity as Agent or as Collateral
Agent) to execute and deliver the Collateral Documents and all related documents or instruments as shall be necessary or appropriate to effect
the purposes of the Collateral Documents. The Lenders further empower and authorize the Agent (in its capacity as Agent or as Collateral
Agent) to execute and deliver on their behalf the Intercreditor Agreement and all related documents or instruments as shall be necessary or
appropriate to effect the purposes of the Intercreditor Agreement, provided that the form of the Intercreditor Agreement has been approved by
the Required Lenders, and each Lender shall be bound by the terms and provisions of the Intercreditor Agreement so executed by the Agent.
10.12 Collateral Releases. The Lenders hereby irrevocably empower and authorize JPMorgan, in its capacity as Agent or as Collateral
Agent, to execute and deliver on their behalf any agreements, documents or instruments as shall be necessary or appropriate to effect any
releases or subordinations of Liens on any Collateral (i) which being sold or disposed of if the Borrower certifies to the Agent that the sale or
disposition is made in compliance with the terms of this Agreement (and the Agent may rely conclusively on any such certificate, without
further inquiry), (ii) owned by or leased to the Borrower or any of its Subsidiaries which is subject to a purchase money security interest or
which is the subject of a Capitalized Lease, (iii) as required to effect any sale or other disposition of such Collateral in connection with any
exercise of remedies of the Collateral Agent or the Agent or (iv) which shall otherwise be permitted by the terms hereof or any other Loan
Document. Except as provided in the preceding sentence, JPMorgan, in its capacity as Agent or as Collateral Agent, will not release any Liens
on Collateral without the prior written authorization of the Required Lenders; provided that, JPMorgan, in its capacity as Agent or as Collateral
Agent, may in its discretion, release Liens on Collateral valued in the aggregate not in excess of $1,000,000 during any calendar year without
the prior written authorization of the Lenders. In addition to the foregoing, the Lenders, the Agent and the Collateral Agent hereby agree that
any sale of accounts owed by account debtors shall be deemed to be released from the Liens in favor of the Collateral Agent upon sale of
such accounts by a Borrower as part of a Qualified Receivables Transaction.
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10.13 Collateral; Reports. The Agent shall have no obligation whatsoever to any of the Lenders to assure that the Collateral
exists or is owned by the Borrower or any Subsidiary or is cared for, protected, or insured or has been encumbered, or that any Liens have
been properly or sufficiently or lawfully created, perfected, protected, or enforced or are entitled to any particular priority, or to exercise at all or
in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers
granted or available to the Agent pursuant to any of the Loan Documents, it being understood and agreed that in respect of the Collateral, or
any act, omission, or event related thereto, the Agent may act in any manner it may deem appropriate, in its sole discretion given the Agent’s
own interest in the Collateral in its capacity as one of the Lenders and that the Agent shall have no other duty or liability whatsoever to any
Lender as to any of the foregoing. Each Lender hereby agrees as follows: (a) such Lender is deemed to have requested that the Agent furnish
such Lender, promptly after it becomes available, a copy of each report prepared by the Agent or another Person showing the results of
appraisals, field examinations, audits or other reports pertaining to the Borrower's and its Subsidiaries' assets from information furnished by or
on behalf of the Borrower or its Subsidiaries prepared by or on behalf of the Agent (the "Supplemental Reports"); (b) such Lender expressly
agrees and acknowledges that JPMorgan, either individually, as Agent, as Collateral Agent or in any other capacity, (i) makes no
representation or warranty, express or implied, as to the completeness or accuracy of any Supplemental Report or any of the information
contained therein, or (ii) shall not be liable for any information contained in any Supplemental Report; (c) such Lender expressly agrees and
acknowledges that the Supplemental Reports are not comprehensive audits or examinations, that the Collateral Agent, the Agent, JPMorgan,
or any other party performing any audit or examination will inspect only specific information regarding the Borrower and its Subsidiaries and
will rely significantly upon the books and records of the Borrower and is Subsidiaries, as well as on representations of the personnel of the
Borrower and its Subsidiaries and that JPMorgan, either individually, as Agent, as Collateral Agent or in any other capacity, undertakes no
obligation to update, correct or supplement the Supplemental Reports; (d) such Lender agrees to keep all Supplemental Reports confidential
and strictly for its internal use, not share any Supplemental Report with the Borrower or any of its Subsidiaries and not to distribute any
Supplemental Report to any other Person except as otherwise permitted pursuant to this Agreement; and (e) without limiting the generality of
any other indemnification provision contained in this Agreement, such Lender agrees (i) that JPMorgan, either individually, as Agent, as
Collateral Agent or in any other capacity, shall not be liable to such Lender or any other Person receiving a copy of any Supplemental Report
for any inaccuracy or omission contained in or relating to a Supplemental Report, (ii) to conduct its own due diligence investigation and make
credit decisions with respect to the Borrower and its Subsidiaries based on such documents as such Lender deems appropriate without any
reliance on the Supplemental Reports or on JPMorgan, either individually, as Agent, as Collateral Agent or in any other capacity, (iii) to hold
JPMorgan, either individually, as Agent, as Collateral Agent or in any other capacity, and any such other Person preparing a Supplemental
Report harmless from any action the indemnifying Lender may take or conclusion the indemnifying Lender may reach or draw from any
Supplemental Report in connection with any Credit Extensions that the indemnifying Lender has made or may make to any Borrower, or the
indemnifying Lender’s participation in, or the indemnifying Lender’s purchase of, any Obligations and (iv) to pay and protect, and indemnify,
defend, and hold JPMorgan, either individually, as Agent, as Collateral Agent or in any other capacity, and any such other Person preparing a
Supplemental Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and other amounts (including
reasonable attorney fees) incurred by JPMorgan, either individually, as Agent, as Collateral Agent or in any other capacity, and any such
other Person preparing a Supplemental Report as the direct or indirect result of any third parties who might obtain all or part of any
Supplemental Report through the indemnifying Lender.
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2.28 Schedules 6.5 and 6.16 to the Credit Agreement are replaced with Schedules 6.5 and 6.16 attached hereto and Schedule 6.16-2
attached hereto is added to the Credit Agreement as Schedule 6.16-2.
ARTICLE 3.
REPRESENTATIONS
The Borrower represents and warrants to the Agent and the Lenders that:
3.1 The execution, delivery and performance of this Amendment are within its powers, have been duly authorized by the Borrower and
are not in contravention of any Requirement of Law. This Amendment is the legal, valid and binding obligations of the Borrower, enforceable
against it in accordance with the terms thereof, except to the extent the enforcement thereof may be limited by bankruptcy, insolvency or
similar laws affecting the enforcement of creditors' rights generally.
3.2 After giving effect to the waiver and amendments herein contained and the waivers and amendments to Note Purchase Documents
being delivered pursuant to Section 4.2 hereof, the representations and warranties contained in the Credit Agreement and the representations
and warranties contained in the other Loan Documents are true on and as of the date hereof with the same force and effect as if made on and
as of the date hereof, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such
representation or warranty shall have been true and correct on and as of such earlier date, and no Default or Unmatured Default exists or has
occurred and is continuing on the date hereof.
3.3 Complete and correct copies of the waiver and amendment to the 2005 Note Purchase Agreement, the waiver and amendment to the
2006 Note Purchase Documents, and all agreements and documents executed in connection therewith have been delivered to the Lenders and
such amendments, waivers and other agreements and documents are being executed simultaneously herewith, and neither the Borrower nor
any Subsidiary thereof has paid (or promised to pay) any amendment fee or any other direct or indirect compensation to any Senior Note
Holder or any of their respective Affiliates, attorneys, agents, consultants or other representatives (other than as set forth in such
amendments, waivers and other agreements and documents) or to any other creditor of the Borrower or any Subsidiary in connection with the
transactions contemplated thereby.
25
ARTICLE 4.
CONDITIONS PRECEDENT.
This Amendment shall become effective as of the date hereof, provided that each of the following has been satisfied:
4.1 This Amendment shall be signed by the Borrower, the Agent and the Required Lenders.
4.2 The Lenders shall have received an amendment and waiver to the 2005 Note Purchase Documents, an amendment and waiver to the
2006 Note Purchase Note Documents and all agreements and documents executed in connection therewith, and all such amendments and
waivers and other agreements and documents shall be executed simultaneously herewith and shall be satisfactory to the Required Lenders.
4.3 The Intercreditor Agreement shall be signed by all parties thereto.
4.4 Other than such Collateral Documents permitted to be delivered on a post closing basis under Section 2.27 of the Credit Agreement or
otherwise agreed to by the Agent, all Guaranties and Collateral Documents required by the Agent or the Required Lenders shall have been
duly executed by the Borrower and each applicable Subsidiary, together with any documents, agreements, instruments, filings and other items
related thereto as reasonably required by the Agent or the Required Lenders to create a valid, attached, perfected, first priority Lien in favor of
the Collateral Agent with respect to the Collateral covered by the Collateral Documents.
4.5 The Borrower shall have delivered a certificate of an Authorized Officer (i) attaching a copy of the January 2009 Financial Forecasts,
and (ii) certifying that the January 2009 Financial Forecasts have been prepared by the Borrower on the basis of assumptions which the
Borrower reasonably believes were reasonable when made in light of the historical performance of the Borrower and its Subsidiaries and
reasonably foreseeable business conditions, and that no facts are known to the Borrower at the date thereof which, if reflected in the January
2009 Financial Forecasts, would result in a material adverse change in the assets, liabilities, results of operations or cash flows reflected
therein.
4.6 The Borrower shall have provided all other due diligence materials requested by the Agent or the Required Lenders.
4.7 The Agent shall have received Lien searches in respect of the Borrower and its Subsidiaries in form and substance satisfactory to the
Agent.
4.8 The Borrowers and the Guarantors shall have executed and delivered such other agreements and instruments, and satisfied such
other conditions in connection with this Amendment as required by the Agent, including but not limited to resolutions, certificates, financial
statements and projections and opinions of counsel acceptable to the Agent, the providing of the cash collateral for Rate Management
Obligations (and all documents required in connection therewith) and the payment of such fees required in connection herewith.
ARTICLE 5.
MISCELLANEOUS.
5.1 References in the Loan Documents to the Credit Agreement shall be deemed to be references to the Credit Agreement as amended
hereby and as further amended from time to time. This Agreement is a Loan Document. Terms used but not defined herein shall have the
respective meanings ascribed thereto in the Credit Agreement. This Agreement is a Loan Document.
5.2 Except as expressly amended hereby, the Borrower agrees that the Loan Documents are ratified and confirmed and shall remain in full
force and effect and that it has no set off, counterclaim, defense or other claim or dispute with respect to any of the foregoing.
26
5.3 The Borrower represents and warrants that it is not aware of any claims or causes of action against the Agent, any Lender or any of
their respective affiliates, successors or assigns, and that it has no defenses, offsets or counterclaims with respect to the
Obligations. Notwithstanding this representation and as further consideration for the agreements and understandings herein, the Borrower,
on behalf of itself and its Subsidiaries, employees, agents, executors, heirs, successors and assigns (the "Releasing Parties"), hereby releases
the Agent, each Lender and their respective predecessors, officers, directors, employees, agents, attorneys, affiliates, subsidiaries, successors
and assigns (the "Released Parties"), from any liability, claim, right or cause of action which now exists or hereafter arises as a result of acts,
omissions or events occurring on or prior to the date hereof, whether known or unknown, including but not limited to claims arising from or in
any way related to this Agreement, the other Loan Documents, all transactions relating to this Agreement or any of the other Loan Documents
or the business relationship among, or any other transactions or dealings among the Releasing Parties or any of them and the Released Parties
or any of them.
5.4 The Borrower acknowledges and agrees that each of the Agent and the Lenders has fully performed all of its obligations under all
Loan Documents, and that all actions taken by the Agent and the Lenders are reasonable and appropriate under the circumstances and within
their rights under the Loan Documents. The actions of each of the Agent and the Lenders taken pursuant to this Agreement and the
documents referred to herein are in furtherance of their efforts as secured lenders seeking to collect the obligations owed to them. Nothing
contained in this Agreement shall be deemed to create a partnership, joint venture or agency relationship of any nature between the Borrower,
its Subsidiaries, the Agent and the Lenders. The Borrowers, its Subsidiaries, the Agent and the Lenders agree that notwithstanding the
provisions of this Agreement, each of the Borrowers and its Subsidiaries remain in control of their respective business operations and
determine the business plans (including employment, management and operating directions) for its business.
5.5 This Agreement may be signed upon any number of counterparts with the same effect as if the signatures thereto and hereto were
upon the same instrument and signatures sent by facsimile or electronic mail message shall be enforceable as originals.
27
IN WITNESS WHEREOF, the parties signing this Amendment have caused this Amendment to be executed, delivered and
effective as of the date first above written ..
MODINE MANUFACTURING COMPANY
By: /s/ Bradley C. Richardson

Title: Executive Vice President – Corporate Strategy & Chief
Financial Officer
JPMORGAN CHASE BANK, N.A., as the Agent, as the Swing Line

Lender, as the LC Issuer and as a Lender
By: /s/ Brian L. Grossman
Title: Senior Vice President
BANK OF AMERICA, N.A., as a Documentation Agent and as a

Lender
By: /s/ Steven K. Kessler
M&I MARSHALL & ILSLEY BANK, as a Documentation Agent and

as a Lender
By: /s/ Gina A. Peter
By: /s/ James R. Miller
WELLS FARGO BANK, N.A., as a Documentation Agent and as a

Lender
By: /s/ Jennifer Clack
Title: Vice President/Principal
28
DRESDNER BANK AG, as a Lender
By: /s/ Ralf Mulik
Title: Director
By: /s/ Ekkehard Albrecht
Title: Director
U.S. BANK, NATIONAL ASSOCIATION, as a Lender
By: /s/ Caroline V. Krider
Title: Vice President and Senior Lender
COMERICA BANK, as a Lender
By: /s/ Heather A. Whiting
Title: Vice President
29
Exhibit 10.2
Execution Copy
WAIVER AND SECOND AMENDMENT TO NOTE PURCHASE AGREEMENT

(2006)
This Waiver and Second Amendment dated as of February 17, 2009 (this “Second Amendment”) to the Note Purchase Agreement
dated as of December 7, 2006 as amended by the First Amendment thereto dated February 1, 2008 (the “Note Purchase Agreement”) is
between Modine Manufacturing Company, a Wisconsin corporation (the “Company”), and each of the institutions which is a signatory to this
Second Amendment (collectively, the “Noteholders”).
RECITALS:
A. The Company and the Noteholders are parties to the Note Purchase Agreement pursuant to which the Company issued the
$50,000,000 5.68% Senior Notes, Series A, due December 7, 2017 and the $25,000,000 5.68% Senior Notes, Series B, due December 7, 2018
(collectively, the “Notes”).
B. The Company has advised the Noteholders that an Event of Default has occurred under the Note Purchase Agreement due
to a breach of Sections 10.1 and 10.3 of the Note Purchase Agreement for the period of four consecutive fiscal quarters ended December 31,
2008 (the “Existing Events of Default”).
C. The Company has requested that the Noteholders waive the Existing Events of Default. The Company has further
requested that the Noteholders agree to certain amendments to the Note Purchase Agreement as set forth below.
D. Subject to the terms and conditions set forth herein, the Noteholders are willing to waive the Existing Events of Default and
amend the Note Purchase Agreement in the respects, but only in the respects, set forth in this Second Amendment.
E. Capitalized terms used herein shall have the respective meanings ascribed thereto in the Note Purchase Agreement, as
amended hereby, unless herein defined or the context shall otherwise require.
F. All requirements of law have been fully complied with and all other acts and things necessary to make this Second
Amendment a valid, legal and binding instrument according to its terms for the purposes herein expressed have been done or performed.
NOW, THEREFORE, in consideration of good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and the Noteholders do hereby agree as follows:
SECTION 1. WAIVER AND AMENDMENTS.
Effective as of the Effective Date (as defined in Section 4 hereof), the Company and the Noteholders agree that the Note Purchase
Agreement and the Notes are amended as follows:
1.1 Each reference in the Note Purchase Agreement to “5.68%” on the cover page, in the table of contents, in document
headers, in Section 1, in the Purchaser Schedule and in the title of each of the outstanding Notes is hereby deleted. The reference to “at the
rate of (a) 5.68% per annum” in the first paragraph of each of the outstanding Notes in replaced with “at (a) the Applicable Rate per
annum”. The reference to “7.68%” in the in the first paragraph of each of the outstanding Notes in replaced with “the Applicable Rate plus
2.00%”.
1.2 Each reference in the Note Purchase Agreement to “2018” on the cover page, in the table of contents, in document headers,
in Section 1, in the Purchaser Schedule and in each of the outstanding Series B Notes is hereby replaced with “2017”.
1.3 Section 2.2 of the Note Purchase Agreement is amended and restated as follows:
“Section 2.2 Security for the Notes; Subsidiary Guaranties.
(a) The payment by the Company of all amounts due with respect to the Notes and the performance by the Company
of its obligations under this Agreement will be absolutely and unconditionally guaranteed by each Domestic Subsidiary of the
Company pursuant to the Subsidiary Guaranty, to the extent such Guaranty is required pursuant to Section 9.8 hereof.
(b) The obligations of the Company under this Agreement and the Notes will be secured pursuant to the Collateral
Documents and in accordance with Section 9.9 hereof.
(c) The enforcement of the rights and benefits in respect of the Collateral Documents and the allocation of proceeds
thereof and of the Subsidiary Guaranty shall be subject to the Intercreditor Agreement.”
1.4 Section 5.3 of the Note Purchase Agreement is amended by amending and restating the last sentence thereof as follows:
“Since March 31, 2008, except as reflected in or contemplated by the January 2009 Financial Forecast, there has been no change in the
financial condition, operations, business or properties of the Company or any Subsidiary except changes that individually or in the
aggregate would not reasonably be expected to have a Material Adverse Effect.”
1.5 New Section 5.21 and 5.22 are added to the Note Purchase Agreement as follows:
“Section 5.21. Credit Agreement Debt. As of the Second Amendment Effective Date, the outstanding principal
balance of the Debt outstanding under the Credit Agreement is $94,000,000 and all Loan Documents (as defined in the Credit
Agreement as in effect on the date hereof) (including the amendment and other agreements and documents executed on or about the
date hereof) have been delivered to the holders prior to or concurrently with the Second Amendment Effective Date. After giving
effect to the amendment to the Credit Agreement referenced in Section 4(c) of the Second Amendment, there is no event of default or
event or condition which would become an event of default with notice or lapse of time or both, under the Credit Agreement or any
other Loan Document (as defined in the Credit Agreement as in effect on the date hereof).
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Section 5.22. Projections. The January 2009 Financial Forecasts were prepared by or on behalf of the Company in
good faith and on the basis of the assumptions stated therein and such assumptions were believed by the Company to be reasonable
at the time prepared. No facts are known to the Company as of the Second Amendment Effective Date which, if reflected in such
January 2009 Financial Forecasts, would result in a material adverse change in the assets, liabilities, results of operations or cash
flows reflected therein.”
1.6 Section 7.1(a) of the Note Purchase Agreement is amended by replacing the reference to “60 days” with “45 days”.
1.7 Section 7.1(b) of the Note Purchase Agreement is amended by replacing the reference to “120 days” with “90 days”.
1.8 Section 7.1(b) of the Note Purchase Agreement is further amended by adding, after the words “accompanied by an opinion
thereon”, the following parenthetical phrase:
“(without a “going concern” or like qualification or exception (other than for the fiscal year ending March 31, 2009) and without any
qualification or exception as to the scope of the audit on which such opinion is based)”
1.9 Section 7.1 of the Note Purchase Agreement is amended by deleting clause (g) thereof and adding the following in its place:
“(g) if requested by the Required Holders, within 20 days after the end of each month (commencing with the first month
ending at least 15 days after such request), for itself and its Subsidiaries, consolidated and consolidating unaudited balance sheets as
at the close of each such period and consolidated and consolidating profit and loss statements and a statement of cash flows for the
period from the beginning of such fiscal year to the end of such month, all certified by a Senior Financial Officer;
(h) promptly after the delivery thereof, copies of any reports by the Company Financial Advisor delivered to the
Company, the board of directors of the Company or any committee thereof at any time;
(i) promptly upon the request of the Required Holders, an appraisal of the inventory of the Company and its Domestic
Subsidiaries, at the expense of the Company, by a valuation or appraisal firm reasonably satisfactory to the Required Holders,
provided that, if no Default or Event of Default has occurred, not more than one such appraisal per fiscal year of the Company shall
be at the expense of the Company;
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(j) promptly upon the request of the Required Holders, a consolidated thirteen week rolling cash flow statement of the
Company and its Subsidiaries, to be updated by the Company weekly thereafter, and in form and detail acceptable to the Required
Holders;
(k) if requested by the Required Holders, within 20 days after the end of each month (commencing with the first month ending
at least 15 days after such request), a schedule detailing the inventory of the Company and its Subsidiaries, a schedule and aging of
the accounts receivable and payable of the Company and its Subsidiaries and a schedule of daily cash balances of the Company and
its Subsidiaries, each in form and detail satisfactory to the Required Holders and with such supplemental information relating thereto
as requested by the Required Holders;
(l) promptly upon receipt thereof, any notice received from the Bank Agent, any Bank or other agent or trustee therefor and any
notice that the Company or any of its Subsidiaries is subject to any investigation of any kind by any governmental entity or stock
exchange;
(m) immediately after becoming aware thereof, notice of any pending or threatened strike, work stoppage, unfair labor
practice claim, or other labor dispute affecting the Company or any of its Subsidiaries in a manner;
(n) with reasonable promptness, such other data and information relating to the business, operations, affairs, financial
condition, assets or properties of the Company or any of its Subsidiaries (including, but without limitation, actual copies of the
Company’s Form 10-Q and Form 10-K) or relating to the ability of the Company to perform its obligations hereunder and under the
Notes as from time to time may be reasonably requested by any such holder of Notes.
Notwithstanding the above, if any report or other information required under this Section 7.1 is due on a day that is not a Business
Day, then such report or other information shall be required to be delivered on the first day that is a Business Day after such day.”
1.10 Clause (a) of Section 7.2 of the Note Purchase Agreement is amended by replacing the reference therein to “Section 10.1
through Section 10.5” with “Section 10.1 through Section 10.5, Sections 10.11, 10.12, 10.14 and 10.15”.
1.11 Section 8.1 of the Note Purchase Agreement is amended and restated in its entirety as follows:
“Section 8.1. Required Prepayments.
(a) Scheduled Prepayment of the Series A Notes. On March 7, June 7, September 7 and December 7 of each year
beginning with March 7, 2014 and ending with September 7, 2017, the Company will prepay $3,125,000 principal amount (or such
lesser principal amount as shall then be outstanding) of the Series A Notes at par and without payment of the Make-Whole Amount
or any premium, provided any partial prepayment of the Series A Notes pursuant to Section 8.1(c) or Section 8.2 shall be applied in
satisfaction of the required payments of principal thereof (including the required payment of principal due upon the maturity thereof)
becoming due under this Section 8.1(a) in the inverse order of their scheduled due dates and provided further that that upon any
prepayment or purchase of the Series A Notes pursuant to Section 8.5 or 8.7 the principal amount of each required prepayment of the
Series A Notes becoming due under this Section 8.1(a) on and after the date of such prepayment or purchase shall be reduced in the
same proportion as the aggregate unpaid principal amount of the Series A Notes is reduced as a result of such prepayment or
purchase. The remaining outstanding principal amount of the Series A Notes, together with any accrued and unpaid interest therein,
shall become due on December 7, 2017, the maturity date of the Series A Notes.
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(b) Scheduled Prepayment of the Series B Notes. On March 7, June 7, September 7 and December 7 of each year
beginning with March 7, 2014 and ending with September 7, 2017, the Company will prepay $1,562,500 principal amount (or such
lesser principal amount as shall then be outstanding) of the Series B Notes at par and without payment of the Make-Whole Amount
or any premium, provided any partial prepayment of the Series B Notes pursuant to Section 8.1(c) or Section 8.2 shall be applied in
satisfaction of the required payments of principal thereof (including the required payment of principal due upon the maturity thereof)
becoming due under this Section 8.1(b) in the inverse order of their scheduled due dates and provided further that that upon any
prepayment or purchase of the Series A Notes pursuant to Section 8.5 or 8.7 the principal amount of each required prepayment of the
Series B Notes becoming due under this Section 8.1(b) on and after the date of such prepayment or purchase shall be reduced in the
same proportion as the aggregate unpaid principal amount of the Series B Notes is reduced as a result of such prepayment or
purchase. The remaining outstanding principal amount of the Series B Notes, together with any accrued and unpaid interest therein,
shall become due on December 7, 2017, the maturity date of the Series B Notes.
(c) Required Prepayment Pursuant to Intercreditor Agreement. If any amounts are to be applied to the principal of
the Notes on any date pursuant to the terms of the Intercreditor Agreement, such principal amount of the Notes, together with
interest thereon to such date and together with the Make-Whole Amount, if any, with respect to each Note, shall be due and payable
on such date.”
1.12 Section 8.2 of the Note Purchase Agreement is amended by adding the following paragraph at the end thereof as follows:
“Notwithstanding the foregoing provisions of this Section 8.2, the Company shall not at any time make an optional
prepayment of the Series A Notes or the Series B Notes unless either (1) such prepayment is in an amount equal to all of the
outstanding principal amount of the Series A Notes and the Series B Notes, together with interest accrued thereon to the date of
prepayment, and the Make-Whole Amount determined for the prepayment date with respect to such principal amount, and prior to or
concurrently with such prepayment the Intercreditor Agreement is terminated or (2) prior to such prepayment, the Intercreditor
Agreement shall have been amended in form and substance satisfactory to the holders, and such amendment shall be in full force and
effect.”
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“Section 8.3. Allocation of Partial Prepayments. In the case of each partial prepayment of the Notes pursuant to
Section 8.1(c), the principal amount of the Notes to be prepaid shall be allocated among each series of the Notes at the time
outstanding in proportion, as nearly as practicable, to the respective aggregate unpaid principal amounts of all the Notes not
theretofore called for prepayment. In the case of each partial prepayment of the Notes of either series pursuant to Section 8.1 or
Section 8.2, the principal amount of the Notes of such series to be prepaid shall be allocated among all of the Notes of such series at
the time outstanding in proportion, as nearly as practicable, to the respective unpaid principal amounts thereof not theretofore called
for prepayment. All partial prepayments made pursuant to Section 8.7 shall be applied only to the Notes of the holders who have
elected to participate in such prepayment.”
1.14 Section 8.6 of the Note Purchase Agreement is amended by amending the following defined term therein in its entirety as
follows:
“Remaining Scheduled Payments” means, with respect to the Called Principal of any Note, all payments of such Called
Principal and interest thereon that would be due after the Settlement Date with respect to such Called Principal if no payment of such
Called Principal were made prior to its scheduled due date; provided that if such Settlement Date is not a date on which interest
payments are due to be made under the terms of the Notes, then the amount of the next succeeding scheduled interest payment will
be reduced by the amount of interest accrued to such Settlement Date and required to be paid on such Settlement Date pursuant to
Section 8.1(c), Section 8.2 or Section 12.1; provided further that, for the purposes of calculating “Remaining Schedule Payments”
the interest rate shall be deemed to be (a) when an Default or Event of Default has occurred and is continuing, 10.75% and (b) when
no Default or Event of Default has occurred and is continuing, (i) during a Credit Rating Adjustment Period, 8.25% and (ii) at all other
times, 5.68%.
1.15 Section 8.6 of the Note Purchase Agreement is further amended by replacing the references to “Section 8.2” in the
definitions of “Called Principal” and “Settlement Date” with “Section 8.1(c) or Section 8.2”.
1.16 Section 8.8 of the Note Purchase Agreement is hereby deleted.
“Section 9.6. Notes to Rank Pari Passu. The Notes and all other obligations under this Agreement of the Company
are and at all times shall rank at least pari passu in right of payment with all other present and future Secured Obligations.
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“Section 9.8 Guaranty by Subsidiaries.
(a) (i) The Company will cause each Domestic Subsidiary which is not a party to a Subsidiary Guaranty to execute and
deliver to the holders a Subsidiary Guaranty, or a joinder agreement in respect thereof, provided that each Domestic Subsidiary in
existence on the Second Amendment Effective Date that is not signing a Subsidiary Guaranty on the Second Amendment Effective
Date shall not be required to be a Subsidiary Guarantor so long as (and only for so long as) it does not qualify as a Significant
Subsidiary (and the Company represents that each Domestic Subsidiary in existence on the Second Amendment Effective Date that is
not signing a Subsidiary Guaranty on the Second Amendment Effective Date is not a Significant Subsidiary). (ii) Notwithstanding
the foregoing, each Domestic Subsidiary that is a borrower, guarantor or otherwise an obligor of any obligations of the Company or
any Subsidiary under the Credit Agreement or the 2005 Note Agreement shall, on or prior to the date when such Domestic Subsidiary
becomes an obligor under the Credit Agreement or the 2005 Note Agreement, become a Subsidiary Guarantor hereunder and the
Company shall cause such Domestic Subsidiary to (1) deliver such Subsidiary Guaranty, or joinder thereto, together with such other
documents, opinions and information as the Required Holders reasonably may require regarding such Subsidiary and the
enforceability of such Subsidiary Guaranty and (2) comply with the provisions of Section 9.9.
(b) The Company shall cause each Domestic Subsidiary required to become a Subsidiary Guarantor under Section
9.8(a)(i) to execute and deliver to each of the holders the documents required under Section 9.8(a)(i) within 30 days of the date such
Domestic Subsidiary becomes subject thereto, together with such other documents, opinions and information as the Required
Holders reasonably may require regarding such Subsidiary and the enforceability of such Subsidiary Guaranty.”
1.19 New Sections 9.9, 9.10, 9.11 and 9.12 are added to the Note Purchase Agreement as follows:
“Section 9.9. Collateral Security; Further Assurances.
(a) To secure the payment when due of the Secured Obligations (subject to the Intercreditor Agreement), the Company shall
execute and deliver, or cause to be executed and delivered, to the Collateral Agent, Collateral Documents granting or providing for
the following:
(i) Security Agreements granting a first priority, enforceable Lien and security interest, subject to the Liens permitted
by this Agreement and subject to the sharing provisions to be contained in the Intercreditor Agreement, on all present and
future accounts, chattel paper, commercial tort claims, deposit accounts, documents, farm products, fixtures, chattel paper,
equipment, general intangibles, goods, instruments, inventory, investment property, letter-of-credit rights (as those terms
are defined in the Illinois Uniform Commercial Code) and all other personal property of the Company and of each Subsidiary
Guarantor, subject to any exclusions described in the Intercreditor Agreement or approved by the Required
Holders. Notwithstanding the foregoing, with respect to Liens granted by the Company or any Subsidiary Guarantor on the
Equity Interests of any Foreign Subsidiary, such Lien shall not exceed 65% (or such greater percentage that, due to a change
in an applicable law after the date hereof, (1) could not reasonably be expected to cause the undistributed earnings of such
Foreign Subsidiary as determined for U.S. federal income tax purposes to be treated as a deemed dividend to such Foreign
Subsidiary's U.S. parent and (2) could not reasonably be expected to cause any material adverse tax consequences) of the
issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100%
of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2))
in each Foreign Subsidiary directly owned by the Company or any Subsidiary Guarantor. Notwithstanding the foregoing, at
any time after a Default or Event of Default has occurred or if the Required Holders determine that the Company will not
incur a material tax liability as result of such greater pledge, the Company shall, upon the request of the Required Holders,
have the balance of the Equity Interests of its Foreign Subsidiaries pledged to the Collateral Agent to secure, subject to the
Intercreditor Agreement, the Secured Obligations.
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(ii) Mortgages granting a Lien on all present and future real property of the Company and of each Subsidiary
Guarantor to the extent such Liens are required by or on behalf of any holder of the Notes, any holder of the Notes (as
defined in the 2005 Note Purchase Agreement), the Bank Agent, or any Bank.
(iii) Any other property or assets of the Company and its Domestic Subsidiaries required to be included in the
“Collateral” under the Credit Agreement, the 2005 Note Purchase Agreement.
(b) On or before the Second Amendment Effective Date (or April 30, 2009 in the case of Collateral Documents relating to the
Collateral described in Section 9.9(a)(ii) or such later date agreed to by the Required Holders, provided that the Company shall use
commercially reasonable efforts to complete such Collateral Documents as soon as practical), the Company shall cause all Collateral
Documents as reasonably requested by the Required Holders to be, in each case duly executed and delivered on behalf of the
Company and the Subsidiary Guarantors, as the case may be, granting to the Collateral Agent for the benefit of the Secured Parties
the support specified in Section 9.9 of this Agreement, together with: (u) such resolutions, certificates and opinions of counsel as
reasonably requested by the Required Holders; (v) the recordation, filing and other action (including payment of any applicable taxes
or fees) in such jurisdictions as the Required Holders may deem necessary or appropriate with respect to the Collateral Documents,
including the filing of financing statements, Mortgages and other filings which the Required Holders may deem necessary or
appropriate to create, preserve or perfect the liens, security interests and other rights intended to be granted to the Collateral Agent
thereunder, together with Uniform Commercial Code record searches and other Lien searches in such offices as the Required Holders
may request; (w) evidence that the casualty and other insurance required pursuant to the Transaction Documents is in full force and
effect; (x) originals of all instruments and certificates representing all of the outstanding shares of capital stock and other securities
and instruments to be pledged thereunder, with appropriate stock powers, endorsements and other powers duly executed in blank;
(y) such other evidence that Liens creating a first priority security interest, subject to the Intercreditor Agreement, in the Collateral
shall have been created and perfected as requested by the Required Holders; and (z) the satisfaction of all other conditions in
connection with the Collateral and the Collateral Documents as reasonably requested by any holder, including without limitation all
opinions of counsel, title work, surveys, environmental reports and other documents and requirements requested by any holder of
the Notes.
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(c) The Company agrees that it will promptly notify the holders of the Notes of the formation, acquisition or existence
of any Domestic Subsidiary that has not executed a Subsidiary Guaranty and Collateral Documents or the acquisition of any assets
on which a Lien is required to be granted and that is not covered by existing Collateral Documents. The Company agrees that it will
promptly execute and deliver, and cause each Subsidiary Guarantor to execute and deliver, promptly upon the request of the
Collateral Agent or the Required Holders, such additional Collateral Documents, Subsidiary Guaranties and other agreements,
documents and instruments, each in form and substance satisfactory to the Required Holders, sufficient to grant the Subsidiary
Guaranties and Liens contemplated by this Agreement and the Collateral Documents. The Company shall deliver, and cause each
Subsidiary Guarantor to deliver, to the Collateral Agent all original instruments payable to it with any endorsements thereto required
by the Required Holders. Additionally, the Company shall execute and deliver, and cause each Subsidiary Guarantor to execute and
deliver, promptly upon the request of the Collateral Agent or the Required Holders, such certificates, legal opinions, lien searches,
organizational and other charter documents, resolutions and other documents and agreements as the Collateral Agent or the Required
Holders may reasonably request in connection therewith. The Company shall use its best efforts to cause each lessor of real
property to it or any Subsidiary where any material Collateral is located to execute and deliver to the Collateral Agent an agreement in
form and substance reasonably acceptable to the Required Holders duly executed on behalf of such lessor waiving any distraint, lien
and similar rights with respect to any property subject to the Collateral Documents and agreeing to permit the Collateral Agent to
enter such premises in connection therewith. The Company shall execute and deliver, and cause each Subsidiary Guarantor to
execute and deliver, promptly upon the reasonable request of the Required Holders, such agreements and instruments evidencing
any intercompany loans or other advances among the Company and its Subsidiaries, or any of them, and all such intercompany loans
or other advances shall be, and are hereby made, subordinate and junior to the Secured Obligations and no payments may be made
on such intercompany loans or other advances upon and during the continuance of a Default or Event of Default unless otherwise
agreed to by the Required Holders.
-9--
Section 9.10 General Indemnity. The Company will at all times protect, indemnify and save harmless the
Collateral Agent, each holder and each of their respective officers, directors, employees, agents and representatives (referred too
herein as the “Indemnitees”) from and against all liabilities, obligations, claims, judgments, damages, penalties, fines, assessments,
losses, indemnities, contributions, causes of action, costs and expenses (including, without limitation, the fees and expenses of
attorneys, auditors and consultants) imposed upon or incurred by or asserted against the Indemnitees on account of (a) any failure of
the Company or any Subsidiary or any employee or agent of any thereof to comply with any of the terms, covenants, obligations or
prohibitions of this Agreement or any other Transaction Document, (b) any breach of any representation or warranty of the Company
or any Subsidiary set forth in this Agreement or in any other Transaction Document or any certificate delivered by the Company or
any Subsidiary pursuant hereto or thereto, or any claim that any statement, representation or warranty of the Company or any
Subsidiary in any of the foregoing documents contains or contained any untrue or misleading statement of material fact or omits or
omitted to state any material facts necessary to make the statements made therein not misleading in light of the circumstances under
which they were made, (c) any action, suit, claim, proceeding or investigation of a judicial, legislative, administrative or regulatory
nature arising from or in connection with the Collateral, including without limitation (1) the presence, escape, seepage, leakage,
discharge, emission, release, removal or threatened release, or disposal of any Hazardous Materials and (2) any violation of any law,
ordinance or governmental rules or regulations including without limitation any Environmental Law, (d) any suit, action,
administrative proceeding, enforcement action, or governmental or private action of any kind whatsoever commenced against the
Company, any Subsidiary or any Indemnitee which might adversely affect the validity or enforceability of this Agreement or any
other Transaction Document or the performance by the Company or any Subsidiary of any of its obligations hereunder or thereunder
or (e) any loss or damage to property or any injury to or death of any Person that may be occasioned by any cause whatsoever
pertaining to any Collateral or the use thereof, and shall further indemnify and save harmless the Indemnitees from and against (1) all
amounts paid in settlement of any litigation commenced or reasonably threatened against any Indemnitee that falls within the scope
of clauses (a) through (e) above, and (2) all expenses reasonably incurred in the investigation of, preparation for or defense of any
litigation, proceeding or investigation of any nature whatsoever that falls within the scope of clauses (a) through (e) above,
commenced or reasonably threatened against the Company, any Subsidiary or any Indemnitee.
Section 9.11. Most Favored Lender Status. If the Company or any Subsidiary enters into, assumes or otherwise
becomes bound or obligated under, or amends, restates or otherwise modifies, any agreement creating or evidencing any Debt of the
Company or any Subsidiary, or any refinancing or extension of all or any portion thereof, to include one or more Additional
Covenants or Additional Defaults, the terms of this Agreement shall, without any further action on the part of the Company, any
Subsidiary or any of the holders of the Notes, be deemed to be amended automatically and immediately to include each Additional
Covenant and each Additional Default contained in such agreement. The Company further covenants to promptly execute and
deliver at its expense (including the fees and expenses of counsel for the holders of the Notes) an amendment to this Agreement in
form and substance satisfactory to the Required Holder(s) evidencing the amendment of this Agreement to include such Additional
Covenants and Additional Defaults, provided that the execution and delivery of such amendment shall not be a precondition to the
effectiveness of such amendment as provided for in this Section 9.11, but shall merely be for the convenience of the parties hereto.
- 10 - -
9.12 Proceeds of certain Asset Sales; Casualties; and Issuance of Equity Interests. The Company shall pay or cause to
paid (1) 100% of the Asset Sale Net Proceeds and (2) 100% of the Equity Issuance Net Proceeds as a prepayment of the principal
amount of the Advances (as defined in the Credit Agreement as in effect on the Second Amendment Effective Date) in excess of
$94,000,000 (up to the amount of such excess) and, if any Asset Sale Net Proceeds or Equity Issuance Net Proceeds remain thereafter,
shall pay such remaining amounts to the Collateral Agent, to be held by the Collateral Agent in accordance with Section 4.2(b) of the
Intercreditor Agreement as in effect on the date hereof (and giving effect to any amendment thereof only if agreed to by the
Company) and applied to the Secured Obligations (as defined in the Intercreditor Agreement as in effect on the date hereof, and
giving effect to any amendment thereof only if agreed to by the Company) in accordance with the Intercreditor Agreement as in effect
on the date hereof, and giving effect to any amendment thereof only if agreed to by the Company.
As used herein, “Asset Sale Net Proceeds” means 100% of all of the Net Cash Proceeds from any sale, Event of Loss, license, lease
or other disposition or transfer of any assets (including without limitation any Sale and Leaseback Transaction and any sale permitted
under Section 10.5(b), but excluding the Excluded Sales described below) in excess of $25,000,000 in aggregate amount after the
Second Amendment Effective Date, each payable and effective upon receipt of such Net Cash Proceeds. As used herein, “Excluded
Sales” means (i) the sale of inventory in the ordinary course of business, (ii) the sale of obsolete or worn-out property in the ordinary
course of business not to exceed $1,000,000 in the aggregate after the Second Amendment Effective Date, (iii) sales of notes
receivable or accounts receivable to the extent permitted under Section 10.23; (iv) revenues from licenses in existence on the Second
Amendment Effective Date, including all renewals, extensions and modifications thereof and substitutions therefor, or (v) if the
Company shall deliver to the holders a certificate of a Responsible Officer to the effect that the Company or its applicable Subsidiary
receiving the Net Cash Proceeds from an Event of Loss intends to apply the Net Cash Proceeds from such event (or a portion thereof
specified in such certificate), within 180 days after receipt of such Net Cash Proceeds, to acquire (or replace or rebuild) real property
or equipment to be used in the business of the Company or its Subsidiaries, and certifying that no Default or Event of Default has
occurred and is continuing, then such Net Cash Proceeds specified in such certificate shall be excluded from the determination
required under the first sentence of this Section 9.12, provided that to the extent of any such Net Cash Proceeds therefrom that have
not been so applied by the end of such 180 day period, such Net Cash Proceeds will not be so excluded, and will be included in the
calculation contained in the first sentence of this Section 9.12.
As used herein, “Equity Issuance Net Proceeds” means 50% of all of the Net Cash Proceeds from issuance of any Equity Interests
by the Company.”
- 11 - -
1.20 Section 10 of the Note Purchase Agreement is amended and restated in its entirety as set forth on Annex I attached hereto.
1.21 Section 11 of the Note Purchase Agreement is amended by replacing references to “$20,000,000” in clauses (f), (i) and (j)
thereof with “$10,000,000”.
1.22 Section 11 of the Note Purchase Agreement is further amended by amending and restating clauses (c) and (e) thereof as
follows:
“(c) the Company defaults in the performance of or compliance with any term contained in Section 7.1(d), Section 9.8,
Section 9.12, Sections 10.1 through Section 10.8, Sections 10.11 through 10.17 or Section 10.23; or
***
(e) any representation or warranty made in writing by or on behalf of the Company or any Subsidiary Guarantor or by
any officer of the Company or any Subsidiary Guarantor in this Agreement, in the Subsidiary Guaranty, in any other Transaction
Document or in any writing furnished in connection with the transactions contemplated hereby proves to have been false or incorrect
in any material respect on the date as of which made; or”
1.23 Section 11 of the Note Purchase Agreement is further amended by replacing the period at the end of clause (k) thereof with
“; or” and adding new clause (l) thereto as follows:
“(l) any Collateral Document shall for any reason (other than solely as the result of an act or omission of a holder) fail
to create a valid and perfected first priority security interest, subject to the Intercreditor Agreement, in any Collateral purported to be
covered thereby, except as permitted by the terms of this Agreement or any Collateral Document, or, due to any action by the
Company or any of its Subsidiaries not consented to by the Required Holders, any Collateral Document shall fail to remain in full
force or effect or any action shall be taken by the Company or any of its Subsidiaries not consented to by the Required Holders to
discontinue or to assert the invalidity or unenforceability of any Collateral Document, or the Company or any Guarantor shall fail to
comply with any of the terms or provisions of any Collateral Document if the failure continues beyond any period of grace provided
for in the applicable Collateral Document.”
1.24 Section 12.2 of the Note Purchase Agreement is amended by replacing the reference to “or in any Note” therein with “, in
any Note or in any other Transaction Document”.
1.25 Section 15 of the Note Purchase Agreement is hereby amended and restated in its entirety:
- 12 - -
“Section 15. Expenses, Etc.
Section 15.1 Transaction Expenses. Whether or not the transactions contemplated hereby are consummated, the
Company will pay all costs and expenses (including reasonable attorneys’ fees of a special counsel and, if reasonably required by the
Required Holders, local or other counsel) incurred by the Purchasers and each other holder of a Note in connection with such
transactions and in connection with any amendments, waivers or consents under or in respect of this Agreement, the Notes, the
Subsidiary Guaranty, the Intercreditor Agreement or any other Transaction Document (whether or not such amendment, waiver or
consent becomes effective), including, without limitation: (a) the costs and expenses incurred in enforcing or defending (or
determining whether or how to enforce or defend or cause the Collateral Agent to enforce or defend) any rights under this
Agreement, the Notes, the Subsidiary Guaranty, the Intercreditor Agreement or any other Transaction Document (including, without
limitation, to protect, collect, lease, sell, take possession of, release or liquidate any of the Collateral) or in responding to any
subpoena or other legal process or informal investigative demand issued in connection with this Agreement, the Notes, the
Subsidiary Guaranty, the Intercreditor Agreement or any other Transaction Document, or by reason of being a holder of any Note, (b)
the costs and expenses, including financial advisors’ fees, incurred in connection with the insolvency or bankruptcy of the Company
or any Subsidiary or in connection with any work-out or restructuring of the transactions contemplated hereby and by the Notes and
the Subsidiary Guaranty, (c) all costs and expenses, including without limitation reasonable attorneys’ fees, preparing, recording and
filing all financing statements, instruments and other documents to create, perfect and fully preserve and protect the Liens granted in
the Collateral Documents and the rights of the holders or of the Collateral Agent for the benefit of the holders, (d) all costs and
expenses of CT Corporation incurred pursuant to Section 22.8 hereof, (e) the fees, costs and expenses of the Collateral Agent and (f)
the costs and expenses incurred in connection with the initial filing of this Agreement and all related documents and financial
information with the SVO of the NAIC, provided, that such costs and expenses under this clause (f) shall not exceed $3,000 per
series. The Company will pay, and will save each Purchaser and each other holder of a Note harmless from, all claims in respect of
any fees, costs or expenses, if any, of brokers and finders (other than those, if any, retained by a Purchaser or other holder in
connection with its purchase of the Notes).
Section 15.2. Company Financial Advisor. Upon the earliest to occur of (i) Consolidated Adjusted EBITDA,
determined as of the end of the fiscal quarter ending March 31, 2009 and calculated for the fiscal quarter then ending, being less than
- -$12,000,000, (ii) Consolidated Adjusted EBITDA, determined as of the end of the fiscal quarter ending June 30, 2009 and calculated
for the fiscal quarter then ending, being less than $5,000,000, (iii) Consolidated Adjusted EBITDA, determined as of the end of the
fiscal quarter ending September 30, 2009 and calculated for the fiscal quarter then ending, being less than $8,000,000, (iv)
Consolidated Adjusted EBITDA, determined as of the end of any fiscal quarter thereafter and calculated for the fiscal quarter then
ending, being less than $15,000,000, or (v) the occurrence of any Event of Default, then, at the request of the Required Holders, the
Company agrees to promptly engage at the Company’s sole cost a financial consultant selected by the Company and reasonably
acceptable to the Required Holders (the “Company Financial Advisor”) with a scope of authority, and engaged pursuant to terms
and conditions, in each case reasonably satisfactory to the Company and the Required Holders. The Company shall provide the
Company Financial Advisor with full onsite access to its books and records and the opportunity to discuss the financial condition,
performance, financial statements and other matters regarding the Company and its Subsidiaries with their respective officers,
managers, other employees, directors, independent accountants and financial advisors to permit the Company Financial Advisor to
fully investigate any matter that arises during its review of the financial and other information of the Company and its
Subsidiaries. The Company Financial Advisor shall fully share its work product with the Company and the holders.
- 13 - -
Section 15.3. Noteholder Financial Advisor. The Company agrees that the holders or their counsel may hire one
consulting firm chosen by the Required Holders to act as financial advisor (the “Noteholder Financial Advisor”) to counsel for the
holders and the Company agrees to pay the fees and expenses of the Noteholder Financial Advisor, provided that such fees shall be
market reasonable (as reasonably determined by the Required Holders) and expenses shall be incurred on a basis consistent with the
Company’s current travel and entertainment policy in effect on the Second Amendment Effective Date and disclosed to the
holders. The Company and its Subsidiaries shall provide the Noteholder Financial Advisor with reasonable onsite access to their
books and records during normal business hours and the opportunity to discuss the financial condition, performance, financial
statements and other matters regarding the Company and its Subsidiaries with their respective officers, managers, other employees,
directors, independent accountants and financial advisors to permit the Noteholder Financial Advisor to fully investigate any matter
that arises during its review of the financial and other information of the Company and its Subsidiaries. The Noteholder Financial
Advisor shall have no duty to share its work product with, or accept instructions from, the Company, any Subsidiary or any Person
working on their behalf. If a Company Financial Advisor has been retained and the holders thereafter retain a Noteholder Financial
Advisor, the holders agree that they will use reasonable efforts to limit any duplicative efforts between the Company Financial
Advisor and the Noteholder Financial Advisor, as determined by the Required Holders.
Section 15.4 Survival. The payment obligations of the Company under this Section 15 will survive the payment or
transfer of any Note, the enforcement, amendment or waiver of any provision of this Agreement, the Notes, the Subsidiary Guaranty ,
the Intercreditor Agreement or any other Transaction Document, and the termination of this Agreement.”
1.26 Section 22.3 of the Note Purchase Agreement is amended by adding the following sentence to the end thereof:
“Notwithstanding the foregoing or any other provision of this Agreement providing for any amount to be determined in accordance
with GAAP, for all purposes of this Agreement the outstanding principal amount of any Debt of the Company or any Subsidiary of
the type described in clause (a), (b), (c), (e) or (g) of the definition of “Debt” shall be equal to the actual outstanding principal amount
thereof, except with respect to letters of credit or instruments serving a similar function, the actual face amount thereof, irrespective of
the amount that might otherwise be accounted for under GAAP as the amount of the liability of the Company or any Subsidiary with
respect thereto, and any determination of the net income (or net loss), equity or assets of the Company shall not take into account
any effect of marking any such outstanding Debt of the Company or any Subsidiary to market value.”
- 14 - -
1.27 Schedule B to the Note Purchase Agreement is amended and restated in its entirety as set forth on Annex II attached
hereto.
1.28 Exhibits 1-A and 1-B to the Note Purchase Agreement are amended and restated in their entirety as set forth on Exhibits 1-A
and 1-B hereto.
1.29 Exhibit 2.2(a) to the Note Purchase Agreement is amended and restated in its entirety as set forth on Exhibits 2.2(a) hereto.
1.30 Schedule 5.15 to the Note Purchase Agreement is amended and restated in its entirety as set forth on Schedule 5.15 hereto.
1.31 New Schedules 10.2-A, 10.2-B 10.14, 10.15 and 10.21 are added to the Note Purchase Agreement in the form of Schedules
10.2-A, 10.2-B, 10.14, 10.15 and 10.21 attached hereto.
SECTION 2. WAIVER.
Effective on the Effective Date, the Noteholders waive the Existing Events of Default. The foregoing waiver shall be limited precisely
as written and shall relate solely to the Note Purchase Agreement in the manner and to the extent described herein, and nothing in this Second
Amendment shall be deemed to (a) constitute a consent to or waiver of any Defaults or Events of Defaults existing under the Note Purchase
Agreement or any other Transaction Document (other than the Existing Events of Default) nor of compliance by the Company or any
Subsidiary with respect to or any modification of any other term, provision or condition of the Note Purchase Agreement or any other
Transaction Document, or (b) prejudice any right or remedy that the any holder may now have (after giving effect to the foregoing waiver) or
may have in the future under or in connection with the Note Purchase Agreement or any other Transaction Document.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
To induce the Noteholders to execute and deliver this Second Amendment (which representations shall survive the execution and
delivery of this Second Amendment), the Company represents and warrants to the Noteholders that:
(a) each of this Second Amendment, the amended and restated Notes, the Collateral Documents and each of the other
Transaction Documents has been duly authorized, executed and delivered by it and this Second Amendment constitutes the legal,
valid and binding obligation, contract and agreement of the Company enforceable against it in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or
limiting creditors’ rights generally;
- 15 - -
(b) each of the Note Purchase Agreement, as amended by this Second Amendment, the amended and restated Notes,
the Collateral Documents and each of the other Transaction Documents constitutes the legal, valid and binding obligations, contracts
and agreements of the Company enforceable against it in accordance with its terms, except as enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or limiting creditors’ rights
generally;
(c) the execution, delivery and performance by the Company of this Second Amendment, the amended and restated
Notes, the Collateral Documents and each of the other Transaction Documents (i) has been duly authorized by all requisite corporate
action and, if required, shareholder action, (ii) does not require the consent or approval of any governmental or regulatory body or
agency, and (iii) will not (A)(1) violate any provision of law, statute, rule or regulation or its certificate of incorporation or bylaws, (2)
any order of any court or any rule, regulation or order of any other agency or government binding upon it, or (3) any provision of any
indenture, agreement or other instrument to which it is a party or by which its properties or assets are or may be bound, including
without limitation the Credit Agreement or 2005 Note Purchase Agreement, or (B) result in a breach or constitute (alone or with due
notice or lapse of time or both) a default under, or require any consent or approval under, any indenture, agreement or other
instrument referred to in clause (iii)(A)(3) of this Section 3(c);
(d) after giving effect to the waiver and amendments to the Note Purchase Agreement contained in this Second
Amendment, all the representations and warranties contained in Section 5 of the Note Purchase Agreement and in the other
Transaction Documents are true and correct in all material respects with the same force and effect as if made by the Company and the
Subsidiary Guarantors on and as of the date hereof;
(e) after giving effect to the waiver and amendments to the Note Purchase Agreement contained in this Second
Amendment, no Default or Event of Default shall be in existence;
(f) The corporate existence of each of the Airedale Entities has been dissolved and terminated; and
(g) neither the Company nor any of its Subsidiaries has paid or agreed to pay, and neither the Company nor any of its
Subsidiaries will pay or agree to pay, any fees or other consideration for the amendments described in Section 4(c) below except as
set forth in or required pursuant to such amendments.
SECTION 4. CONDITIONS TO EFFECTIVENESS.
This Second Amendment shall not become effective until, and shall become effective on the date (the “Effective Date”) when, each
and every one of the following conditions shall have been satisfied:
(a) Each of the following shall have been delivered to each Noteholder, each duly executed and delivered by the party
or parties thereto, in form and substance satisfactory to the Noteholders and dated the Effective Date unless otherwise indicated, and
on the Effective Date in full force and effect with no event having occurred and being then continuing that would constitute a default
thereunder or constitute or provide the basis for the termination thereof:
- 16 - -
(i) executed counterparts of this Second Amendment, duly executed by the Company and the holders, shall
have been delivered to the Noteholders;
(ii) the amended and restated Series A Notes, in the form of Exhibit 1-A attached hereto, and the amended and
restated Series B Notes, in the form of Exhibit 1-B hereto;
(iii) the Intercreditor Agreement, duly executed by the Collateral Agent, the Bank Agent, the Noteholders and
the holders of the notes outstanding under the 2005 Note Purchase Agreement;
(iv) the Subsidiary Guaranty, in the form attached hereto as Exhibit 2.2(a), duly executed by each Subsidiary
Guarantor;
(v) the Security Agreement, duly executed by the Company, each Subsidiary Guarantor and the Collateral
Agent;
(b) each Noteholder shall have received payment of the amendment fee due such holder as provided in Section 5.1 and
counsel to the Noteholders shall have received payment of the fees and expenses due such counsel as provided in Section 5.2
hereof;
(c) the Noteholders shall have received evidence satisfactory to them that a waiver and amendment to the Credit
Agreement and the 2005 Note Purchase Agreement, each in form and substance satisfactory to the Noteholders, shall have been duly
executed and delivered by the Company and the required other parties and shall be in full force and effect;
(d) the Company shall have delivered a certificate of an Senior Financial Officer (i) attaching a copy of the January 2009
Financial Forecasts, and (ii) certifying that the January 2009 Financial Forecasts have been prepared by the Company on the basis of
assumptions which the Company reasonably believes were reasonable when made in light of the historical performance of the
Company and its Subsidiaries and reasonably foreseeable business conditions, and that no facts are known to the Company at the
date thereof which, if reflected in the January 2009 Financial Forecasts, would result in a material adverse change in the assets,
liabilities, results of operations or cash flows reflected therein;
(e) the representations and warranties of the Company set forth in Section 3 hereof shall be true and correct on the
date of the effectiveness of this Second Amendment;
(f) the Noteholders shall have received lien searches in respect of the Company and its Subsidiaries in form and
substance satisfactory to the Noteholders;
- 17 - -
(g) the Noteholders shall have received copies of all chattel paper, instruments and documents of title in which the
Collateral Agent has been granted a security interest and are then required under the Collateral Documents to be delivered to the
Collateral Agent, together with the related transfer documents executed in blank, in each case received by the Collateral Agent, all
Uniform Commercial Code financing statements perfecting the security interests and liens granted to the Collateral Agent, duly filed
in all offices necessary to perfect such security interests and liens or deemed by such Purchaser to be advisable, and all such other
certificates, documents, agreements, recording and filings necessary to establish a valid and perfected first priority lien and security
interest (subject only to Liens described in Section 10.4 of the Note Purchase Agreement) in favor of the Collateral Agent in all of the
Collateral or deemed by the Required Holders or the Collateral Agent to be advisable;
(h) the Company shall have delivered from insurance carriers acceptable to the Noteholders certificates of insurance in
such forms and amounts acceptable to the Noteholders evidencing insurance required to be maintained under Section 9.2 of the Note
Purchase Agreement or under any of the Collateral Documents under insurance policies with additional insured and loss payable
clauses in favor of the Collateral Agent and acceptable to the Noteholders;
(i) the Noteholders shall have received a copy of the resolutions of the Board of Directors of the Company and each
Subsidiary Guarantor authorizing the execution, delivery and performance by the Company or such Subsidiary Guarantor of this
Second Amendment, the amended and restated Notes, the Collateral Documents and the Subsidiary Guaranty, as applicable, to which
it is a party, certified by its Secretary or an Assistant Secretary;
(j) the Noteholders shall have received an opinion of counsel to the Company and the Subsidiary Guarantors in form
and substance satisfactory to the Noteholders;
(k) the Company shall have provided all other due diligence materials requested by the Noteholders; and
(l) all corporate and other proceedings taken or to be taken in connection with the transactions contemplated hereby
and all documents incident thereto shall be satisfactory in substance and form to the Noteholders, and the Noteholders shall have
received all such counterpart originals or certified or other copies of such documents as it may reasonably request.
- 18 - -
SECTION 5. AMENDMENT FEE; PAYMENT OF NOTEHOLDERS’ COUNSEL FEES AND EXPENSES.
5.1 In consideration of the execution and delivery by the Noteholders of this Second Amendment, the Company agrees to pay
to each holder of a Note on or before the Effective Date an amendment fee in an amount equal to 0.75% of the outstanding principal amount of
the Notes held by such holder.
5.2 The Company agrees to pay upon demand, the reasonable fees and expenses of Schiff Hardin LLP, counsel to the
Noteholders, in connection with the negotiation, preparation, approval, execution and delivery of this Second Amendment.
SECTION 6. MISCELLANEOUS.
6.1 This Second Amendment shall be construed in connection with and as part of the Note Purchase Agreement, and except as
modified and expressly amended by this Second Amendment, all terms, conditions and covenants contained in the Note Purchase Agreement
and the Notes are hereby ratified and shall be and remain in full force and effect. The Company and the Subsidiary Guarantors acknowledge
and agree that no holder is under any duty or obligation of any kind or nature whatsoever to grant the Company any additional amendments
or waivers of any type, whether or not under similar circumstances, and no course of dealing or course of performance shall be deemed to have
occurred as a result of the amendments herein.
6.2 Any and all notices, requests, certificates and other instruments executed and delivered after the execution and delivery of
this Second Amendment may refer to the Note Purchase Agreement without making specific reference to this Second Amendment but
nevertheless all such references shall include this Second Amendment unless the context otherwise requires.
6.3 The Company represents and warrants that it is not aware of any claims or causes of action against any Noteholder or any
of their respective affiliates, successors or assigns, and that it has no defenses, offsets or counterclaims with respect to the Note Purchase
Agreement, the Notes or any of the other Transaction Documents. Notwithstanding this representation and as further consideration for the
agreements and understandings herein, the Company, on behalf of itself and its Subsidiaries, employees, agents, executors, heirs, successors
and assigns (the "Releasing Parties"), hereby releases each Noteholder and their respective predecessors, officers, directors, employees,
agents, attorneys, affiliates, subsidiaries, successors and assigns (the "Released Parties"), from any liability, claim, right or cause of action
which now exists or hereafter arises as a result of acts, omissions or events occurring on or prior to the date hereof, whether known or
unknown, including but not limited to claims arising from or in any way related to this Second Amendment, the Note Purchase Agreement and
the other Transaction Documents, all transactions relating to this Second Amendment, the Note Purchase Agreement or any of the other
Transaction Documents or the business relationship among, or any other transactions or dealings among the Releasing Parties or any of them
and the Released Parties or any of them.
- 19 - -
6.4 The Company acknowledges and agrees that each Noteholder has fully performed all of its obligations under the Note
Purchase Agreement and the other Transaction Documents, and that all actions taken by such Noteholder are reasonable and appropriate
under the circumstances and within their rights under the Note Purchase Agreement and the other Transaction Documents. The actions of
each Noteholder taken pursuant to this Second Amendment and the documents referred to herein are in furtherance of their efforts as secured
lenders seeking to collect the obligations owed to them. Nothing contained in this Second Amendment shall be deemed to create a
partnership, joint venture or agency relationship of any nature between the Company, its Subsidiaries, and the Noteholders. The Company, its
Subsidiaries, and the Noteholders agree that notwithstanding the provisions of this Second Amendment, each of the Company and its
Subsidiaries remain in control of their respective business operations and determine the business plans (including employment, management
and operating directions) for its business.
6.5 The descriptive headings of the various Sections or parts of this Second Amendment are for convenience only and shall not
affect the meaning or construction of any of the provisions hereof.
6.6 This Second Amendment shall be governed by and construed in accordance with New York law.
6.7 The execution hereof by you shall constitute a contract between us for the uses and purposes hereinabove set forth, and
this Second Amendment may be executed in any number of counterparts, each executed counterpart constituting an original, but all together
only one agreement.
*****
- 20 - -

Name: Bradley C. Richardson
Title: Executive Vice President – Corporate Strategy and Chief
Financial Officer
[Signature Page – Second Amendment to 2006]

ACCEPTED AND AGREED TO:

THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
By: /s/ David S. Quackenbush

GIBRALTAR LIFE INSURANCE CO., LTD.
By: Prudential Investment Management (Japan), Inc.

as Investment Manager
By: Prudential Investment Management, Inc.,

as Sub-Adviser

PRUDENTIAL RETIREMENT INSURANCE AND ANNUITY COMPANY

as investment manager


THE PRUDENTIAL INSURANCE COMPANY, LTD.
By: Prudential Investment Management (Japan), Inc.

as Investment Manager

as Sub-Adviser

AMERICAN BANKERS INSURANCE COMPANY OF FLORIDA, INC.

AMERICAN MEMORIAL LIFE INSURANCE COMPANY
AMERICAN SECURITY INSURANCE COMPANY
TIME INSURANCE COMPANY
UNION SECURITY INSURANCE COMPANY
SECURITY BENEFIT LIFE INSURANCE COMPANY, INC.
ZURICH AMERICAN INSURANCE COMPANY
By: Prudential Private Placement Investors, L.P.

(as Investment Advisor)
By: Prudential Private Placement Investors, Inc.

(as its General Partner)


TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA
By: /s/ Brian Roelke

Name: Brian Roelke
Title: Director

COUNTRY LIFE INSURANCE COMPANY
By: /s/ John Jacobs

Name: John Jacobs
Title: Director – Fixed Income

STANDARD INSURANCE COMPANY
By: /s/ Julie Grandstaff

Name: Julie Grandstaff
Title: Vice President & Managing Director

[Form Of Series A Note]
THIS SERIES A NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND, UNLESS SO
REGISTERED, MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER SAID ACT OR IF SAID ACT DOES NOT APPLY.
Amended and Restated Senior Secured Note, Series A, due December 7, 2017
No. RA-[__________________] [Date]

$[_______________] PPN 607828 C#5
FOR VALUE RECEIVED, the undersigned, MODINE MANUFACTURING COMPANY (herein called the “Company”), a corporation
organized and existing under the laws of the State of Wisconsin, hereby promises to pay to [____________________], or registered assigns,
the principal sum of [____________________] DOLLARS (or so much thereof as shall not have been prepaid) on December 7, 2017, with
interest (computed on the basis of a 360-day year of twelve 30-day months) on the unpaid balance hereof (a) at the Applicable Rate per annum
from the date hereof, payable quarterly, on the 7th day of March, June, September and December in each year, commencing with the March 7,
June 7, September 7 or December 7 next succeeding the date hereof, until the principal hereof shall have become due and payable, and (b) to
the extent permitted by law, on any overdue payment of interest and, during the continuance of an Event of Default, on such unpaid balance
and on any overdue payment of any Make-Whole Amount, at a rate per annum from time to time equal to the greater of (i) the Applicable Rate
plus 2.00% or (ii) 2.0% over the rate of interest publicly announced by JPMorgan Chase Bank, N.A. from time to time in New York, New York as
its “base” or “prime” rate payable quarterly as aforesaid (or, at the option of the registered holder hereof, on demand).
Payments of principal of, interest on and any Make-Whole Amount with respect to this Note are to be made in lawful money of the
United States of America at the principal office of the Company in Racine, Wisconsin, or at such other place as the Company shall have
designated by written notice to the holder of this Note as provided in the Note Purchase Agreement referred to below.
This Series A Note is one of a series of Senior Notes (herein called the “Series A Notes”) issued pursuant to the Note Purchase
Agreement, dated as of December 7, 2006 (as from time to time amended, the “Note Purchase Agreement”), between the Company and the
respective Purchasers named therein and is entitled to the benefits thereof. Each holder of this Series A Note will be deemed, by its
acceptance hereof, to have (i) agreed to the confidentiality provisions set forth in Section 20 of the Note Purchase Agreement and (ii) made
the representation set forth in Section 6.3 of the Note Purchase Agreement. Unless otherwise indicated, capitalized terms used in this Series
A Note shall have the respective meanings ascribed to such terms in the Note Purchase Agreement.
Exhibit 1-A
(to Second Amendment to Note Purchase Agreement)
This Series A Note is a registered Series A Note and, as provided in the Note Purchase Agreement, upon surrender of this Series A
Note for registration of transfer, duly endorsed, or accompanied by a written instrument of transfer duly executed, by the registered holder
hereof or such holder’s attorney duly authorized in writing, a new Series A Note for a like principal amount will be issued to, and registered in
the name of, the transferee. Prior to due presentment for registration of transfer, the Company may treat the person in whose name this Series
A Note is registered as the owner hereof for the purpose of receiving payment and for all other purposes, and the Company will not be
affected by any notice to the contrary.
The Company will make required prepayments of principal on the dates and in the amounts specified in the Note Purchase
Agreement. This Series A Note is also subject to optional prepayment, in whole or from time to time in part, at the times and on the terms
specified in the Note Purchase Agreement, but not otherwise.
This Series A Note is secured by, and entitled to the benefits of, the Collateral Documents and is guaranteed pursuant to one or more
Subsidiary Guaranties executed by certain guarantors. Reference is made to the Collateral Documents for a statement concerning the terms
and conditions governing the collateral security for the obligations of the Company hereunder and reference is made to such Subsidiary
Guaranties for a statement concerning the terms and conditions governing such guarantee of the obligations of the Company hereunder.
If an Event of Default occurs and is continuing, the principal of this Series A Note may be declared or otherwise become due and
payable in the manner, at the price (including any applicable Make-Whole Amount) and with the effect provided in the Note Purchase
Agreement.
This Note (i) merely re-evidences the indebtedness previously evidenced by the Company’s 5.68% Senior Note, Series A, due
December 7, 2017, No. RA-[_____] (the “Existing Note”), (ii) is given in exchange for, and not as payment of, the Existing Note, and (iii) is in no
way intended to constitute a novation of the Existing Note.
This Series A Note shall be construed and enforced in accordance with, and the rights of the parties shall be governed by, the law of
the State of New York, excluding choice-of-law principles of the law of such State that would require application of the laws of a jurisdiction
other than such State.
E-1-A-2
By:
Name:
Title:
E-1-A-3
[FORM OF S ERIES B NOTE]
THIS SERIES B NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND, UNLESS SO
REGISTERED, MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER SAID ACT OR IF SAID ACT DOES NOT APPLY.
Amended and Restated Senior Secured Note, Series B, due December 7, 2017
No. RB-[__________] [Date]

$[__________] PPN 607828 D@6
For Value Received, the undersigned, Modine Manufacturing Company (herein called the “Company”), a corporation organized and
existing under the laws of the State of Wisconsin, hereby promises to pay to [____________________], or registered assigns, the principal
sum of [____________________] DOLLARS (or so much thereof as shall not have been prepaid) on December 7, 2017, with interest
(computed on the basis of a 360-day year of twelve 30-day months) on the unpaid balance hereof (a) at the Applicable Rate per annum from
the date hereof, payable quarterly, on the 7th day of March, June, September and December in each year, commencing with the March 7, June
7, September 7 or December 7 next succeeding the date hereof, until the principal hereof shall have become due and payable, and (b) to the
extent permitted by law, on any overdue payment of interest and, during the continuance of an Event of Default, on such unpaid balance and
on any overdue payment of any Make-Whole Amount, at a rate per annum from time to time equal to the greater of (i) the Applicable Rate plus
2.00% or (ii) 2.0% over the rate of interest publicly announced by JPMorgan Chase Bank, N.A. from time to time in New York, New York as its
“base” or “prime” rate payable quarterly as aforesaid (or, at the option of the registered holder hereof, on demand).
This Series B Note is one of a series of Senior Notes (herein called the “Series B Notes”) issued pursuant to the Note Purchase
Agreement, dated as of December 7, 2006 (as from time to time amended, the “Note Purchase Agreement”), between the Company and the
respective Purchasers named therein and is entitled to the benefits thereof. Each holder of this Series B Note will be deemed, by its acceptance
hereof, to have (i) agreed to the confidentiality provisions set forth in Section 20 of the Note Purchase Agreement and (ii) made the
representation set forth in Section 6.3 of the Note Purchase Agreement. Unless otherwise indicated, capitalized terms used in this Series B
Note shall have the respective meanings ascribed to such terms in the Note Purchase Agreement.
Exhibit 1-B
This Series B Note is a registered Series B Note and, as provided in the Note Purchase Agreement, upon surrender of this Series B
Note for registration of transfer, duly endorsed, or accompanied by a written instrument of transfer duly executed, by the registered holder
hereof or such holder’s attorney duly authorized in writing, a new Series B Note for a like principal amount will be issued to, and registered in
the name of, the transferee. Prior to due presentment for registration of transfer, the Company may treat the person in whose name this Series
B Note is registered as the owner hereof for the purpose of receiving payment and for all other purposes, and the Company will not be affected
by any notice to the contrary.
Agreement. This Series B Note is also subject to optional prepayment, in whole or from time to time in part, at the times and on the terms
specified in the Note Purchase Agreement, but not otherwise.
This Series B Note is secured by, and entitled to the benefits of, the Collateral Documents and is guaranteed pursuant to one or more
If an Event of Default occurs and is continuing, the principal of this Series B Note may be declared or otherwise become due and
payable in the manner, at the price (including any applicable Make-Whole Amount) and with the effect provided in the Note Purchase
Agreement.
This Note (i) merely re-evidences the indebtedness previously evidenced by the Company’s 5.68% Senior Note, Series B, due
December 7, 2018, No. RB-[____] (the “Existing Note”), (ii) is given in exchange for, and not as payment of, the Existing Note, and (iii) is in no
way intended to constitute a novation of the Existing Note.
This Series B Note shall be construed and enforced in accordance with, and the rights of the parties shall be governed by, the law of
the State of New York, excluding choice-of-law principles of the law of such State that would require application of the laws of a jurisdiction
other than such State.
E-1-B-2
By:
Name:
Title:
E-1-B-3
ANNEX I
SECTION 10. Negative Covenants.
The Company covenants that so long as any of the Notes are outstanding:
Section 10.1 Limitations on Consolidated Total Debt. The Company will not permit as of the last day of each fiscal quarter set
forth below the ratio of (a) Consolidated Total Debt minus the amount of any cash collateral provided for any of the Secured Obligations, to
(b) Consolidated Adjusted EBITDA for the four consecutive fiscal quarters then most recently ended, to exceed the ratios set forth opposite
such fiscal quarter:

Leverage Ratio
Section 10.2 Limitations on Debt. The Company will not, nor will it permit any Subsidiary to, create, incur or suffer to exist any
Debt, except:
(a) the Notes;
(b) the Notes (as defined in the 2005 Note Purchase Agreement);
(c) the Loans and the Reimbursement Obligations (each as defined in the Credit Agreement as in effect on the Second
Amendment Effective Date); provided that the aggregate principal amount of the Debt thereunder shall not at any time exceed
$175,000,000 less (i) an amount not to exceed $15,000,000 equal to the amount by which the dollar equivalent of the Euro amount of
any credit facility or facilities (based on commitments) entered into by the Modine Holding Consolidated Group exceeds $5,000,000,
(ii) the aggregate amount of prepayments of the principal amount of the Advances (as defined in the Credit Agreement as in effect on
the Second Amendment Effective Date) made pursuant to Section 9.12 and (iii) 38.524590163% of the aggregate amount of all
payments made to the Collateral Agent pursuant to Section 9.12.
Annex I-1
(d) Debt of a Subsidiary owed to the Company or to a Wholly-Owned Subsidiary to the extent permitted under Section
10.15;
(e) Debt described in Schedule 10.2-A not exceeding the commitment limits set forth therein, and extensions, renewals
and replacements of any such Debt to the extent such extensions, renewals and replacements do not increase the outstanding
principal amount thereof;
(f) Receivables Transaction Attributed Indebtedness;
(g) Debt, in addition to Debt permitted pursuant to subsections (a)-(f) above, of the Modine Holding Consolidated
Group in an aggregate principal amount not to exceed €35,000,000; and
(h) Debt, in addition to Debt permitted pursuant to subsections (a)-(g) above, in an aggregate amount at any time
outstanding not to exceed $10,000,000.
Notwithstanding anything herein to the contrary, the Company will not permit or suffer to exist itself or any of its Subsidiaries (other than
Modine Korea) to have any Guaranty, or any other liability or obligation of any kind, with respect to any Debt or any other obligation or
liability of Modine Korea, except such Guaranty or other liability or obligation existing on the Second Amendment Effective Date and
described on Schedule 10.2-B, but no increase in the amount thereof as reduced from time to time.
Section 10.3 Interest Expense Coverage Ratio. The Company will not permit, at the end of any fiscal quarter set forth below, the
ratio of (a) Consolidated Adjusted EBITDA for the period of the four consecutive fiscal quarters ended with such fiscal quarter, to (b)
Consolidated Interest Expense for the period of the four consecutive fiscal quarters ended with such fiscal quarter, to be less than the amount
set forth in the table below for such fiscal quarter:

Interest Expense
Coverage Ratio
Section 10.4 Limitation on Liens. The Company will not, and will not permit any of its Subsidiaries to, directly or indirectly
create, incur, assume or permit to exist (upon the happening of a contingency or otherwise) any Lien on or with respect to any property or
asset (including, without limitation, any document or instrument in respect of goods or accounts receivable) of the Company or any such
Subsidiary, whether now owned or held or hereafter acquired, or any income or profits therefrom or assign or otherwise convey any right to
receive income or profits, except:
Annex I-2
(a) Liens for property taxes and assessments or governmental charges or levies and Liens securing claims or demands
of mechanics and materialmen; provided that payment thereof is not at the time required by Section 9.4;
(b) Liens incidental to the conduct of business or the ownership of properties and assets (including Liens in
connection with worker’s compensation, unemployment insurance and other like laws, warehousemen’s and attorneys’ liens and
statutory landlords’ liens) and Liens to secure the performance of bids, tenders or trade contracts, or to secure statutory obligations,
surety or appeal bonds or other Lien of like general nature, in any such case incurred in the ordinary course of business and not in
connection with the borrowing of money; provided that (i) any such Lien secures only amounts not due and payable or the payment
of which is being contested in good faith by appropriate actions or proceedings and (ii) any such Lien does not materially impair the
business of the Company and its Subsidiaries taken as a whole or the value of the related property for the purposes of such
business;
(c) any attachment or judgment Lien, unless the judgment it secures shall not, within 60 days after the entry thereof,
have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 60 days after the
expiration of any such stay;
(d) Liens existing as of the date of Second Amendment Effective Date and described on Schedule 5.15 hereto;
(e) survey exceptions or minor encumbrances, leases or subleases granted to others, easements or reservations, or
rights of others for rights-of-way, utilities and other similar purposes, or zoning or other restrictions as to the use of real properties, (i)
which are necessary for the conduct of the activities of the Company and its Subsidiaries or which customarily exist on properties of
corporations engaged in similar activities and similarly situated and (ii) which do not in any event materially impair their use in the
operation of the business of the Company and its Subsidiaries taken as a whole or the value of such properties;
(f) Liens created or incurred after the date of the Closing given to secure the payment of the purchase price incurred in
connection with the acquisition or purchase or the cost of construction of property or of assets useful and intended to be used in
carrying on the business of the Company or a Subsidiary, including Liens existing on such property or assets at the time of
acquisition thereof or at the time of completion of construction, as the case may be, whether or not such existing Liens were given to
secure the payment of the acquisition or purchase price or cost of construction, as the case may be, of the property or assets to
which they attach; provided that (i) the Lien shall attach solely to the property or assets acquired, purchased or constructed, (ii) such
Lien shall have been created or incurred within 180 days of the date of acquisition or purchase or completion of construction, as the
case may be, (iii) at the time of acquisition or purchase or of completion of construction of such property or assets, the aggregate
amount remaining unpaid on all Debt secured by Liens on such property or assets, whether or not assumed by the Company or a
Subsidiary, shall not exceed an amount equal to 100% of the lesser of the total purchase price or fair market value at the time of
acquisition or purchase (as determined by a Responsible Officer of the Company) or the cost of construction on the date of
completion thereof, (iv) Debt secured by any such Lien shall have been created or incurred within the applicable limitations provided
in Sections 10.1 and 10.2, (v) at the time of creation, issuance, assumption, guarantee or incurrence of the Debt secured by such Lien
and after giving effect thereto and to the application of the proceeds thereof, no Event of Default would exist and (vi) the aggregate
outstanding amount of Debt secured by all such Liens shall not exceed $10,000,000 at any time;
Annex I-3
(g) Liens incurred in connection with any transfer of an interest in accounts or notes receivable or related assets as
part of a Qualified Receivables Transaction;
(h) Liens in favor of the Collateral Agent securing the Secured Obligations and subject to the Intercreditor Agreement;
(i) Liens in favor of the Bank Agent in (1) property of Foreign Subsidiaries to secure the obligations of Foreign
Subsidiaries that are borrowers under the Credit Agreement and (2) cash collateral accounts of the Company and its Domestic
Subsidiaries with deposits not in excess of $10,000,000 in the aggregate securing obligations of the Company and Domestic
Subsidiaries under Swap Contracts in existence prior to the Second Amendment Effective Date (but not extensions, renewals or
rollovers thereof); and
(j) Liens on assets of the Modine Holding Consolidated Group securing Debt owing by the Modine Holding
Consolidated Group and permitted under Section 10.2(g) ; and
(k) in addition to Liens otherwise described in clauses (a) through (j) above, Liens securing an aggregate amount of
Debt outstanding at any time of no more than $10,000,000.
Section 10.5 Sale of Assets. The Company will not, and will not permit any Subsidiary to, sell, lease, transfer, abandon or
otherwise dispose of assets including, without limitation, pursuant to any Sale and Leaseback Transaction; provided that the foregoing
restrictions do not apply to:
(a) the sale, lease, transfer or other disposition of assets of a Subsidiary to the Company or a Wholly-owned
Subsidiary; or
(b) the following sale, lease or other dispositions of assets:
(ii) sale or other disposition of Modine Korea, whether by sale of Equity Interests or assets, and other
assets owned by Foreign Subsidiaries related to the Korean-based vehicular HVAC business; and
Annex I-4
(iii) leases, sales or other dispositions of property that, together with all other property of the Company
and its Subsidiaries previously leased, sold or disposed of as permitted by this clause (iii) during the twelve-month period
ending with the month in which any such lease, sale or other disposition occurs, do not constitute a Substantial Portion of
the property of the Company and its Subsidiaries, provided that, after giving effect to any such lease, sale or other
disposition, no Default or Event of Default shall have occurred and be continuing; and
(iv) any transfer of an interest in accounts or notes receivable and related assets permitted under Section
10.23.
provided that, in the case of any lease, sale or other disposition under clauses (ii), (iii) or (iv) of this Section 10.5(b), the proceeds of
such any such lease, sale or other disposition are applied in accordance with Section 9.12.
Section 10.6 Mergers, Consolidations and Sales of Assets. The Company will not, and will not permit any Subsidiary to,
consolidate with or be a party to a merger with any other Person, or sell, lease or otherwise dispose of all or substantially all of its assets;
provided that any Subsidiary may sell substantially all its assets if such sale is permitted under Section 10.5(c) of this Agreement; and any
Subsidiary may merge or consolidate with or into the Company or any Wholly-owned Subsidiary so long as in (i) any merger or consolidation
involving the Company, the Company shall be the surviving or continuing corporation and (ii) in any merger or consolidation involving a
Wholly-owned Subsidiary (and not the Company), the Wholly-owned Subsidiary shall be the surviving or continuing corporation or limited
liability company.
Section 10.7 Transactions with Affiliates. The Company will not and will not permit any Subsidiary to enter into directly or
indirectly any transaction or group of related transactions (including without limitation the purchase, lease, sale or exchange of properties of
any kind or the rendering of any service) with any Affiliate (other than the Company or another Subsidiary), except (a) in the ordinary course
and pursuant to the reasonable requirements of the Company’s or such Subsidiary’s business and upon fair and reasonable terms no less
favorable to the Company or such Subsidiary than would be obtainable in a comparable arm’s-length transaction with a Person not an
Affiliate; and (b) transactions between the Company or any Subsidiary, on the one hand, and any Subsidiary or other special purpose entity
created to engage solely in a Qualified Receivables Transaction.
Section 10.8 Line of Business. The Company will not and will not permit any Subsidiary to engage in any business if, as a
result, the general nature of the business in which the Company and its Subsidiaries, taken as a whole, would then be engaged would be
substantially changed from the general nature of the business in which the Company and its Subsidiaries, taken as a whole, are engaged on
the date of this Agreement as described in the Memorandum. The Company will not and will not permit any Subsidiary to discontinue or
eliminate a business line or segment; provided that the foregoing limitation on the discontinuation or elimination of a business line or segment
shall not prohibit the liquidation and dissolution of any Subsidiary or the discontinuation or elimination of any business line or segment,
provided that (i) the Company shall have reasonably determined that such business line or segment being discontinued or eliminated is a non-
core business of the Company and its Subsidiaries, (ii) any sale of assets relating to any discontinuation or elimination of any business line or
segment or any liquidation or dissolution of any Subsidiary shall be subject to the limitation on the sale, lease or other transfer of assets
described in Section 10.5 and the requirements under Section 9.12 and the other terms of this Agreement, and (iii) after giving effect to any
such liquidation or dissolution or discontinuation or elimination of any business line or segment, no Default or Event of Default shall have
occurred and be continuing or would be caused thereby.
Annex I-5
Section 10.9 Terrorism Sanctions Regulations. The Company will not and will not permit any Subsidiary to (a) become a Person
described or designated in the Specially Designated Nationals and Blocked Persons List of the Office of Foreign Assets Control or in Section 1
of the Anti-Terrorism Order or (b) knowingly engage in any dealings or transactions with any such Person in violation of applicable Laws.
Section 10.10 [Intentionally Omitted].
Section 10.11 Minimum EBITDA. The Company will not permit the Consolidated Adjusted EBITDA, determined as of the end of
each fiscal quarter set forth below, to be less than the amount set forth opposite such fiscal quarter:
Minimum
Consolidated
Adjusted
Fiscal Quarter EBITDA
Fiscal quarter ending March 31, 2009, as calculated for the fiscal quarter then ending $ - 25,000,000
Fiscal quarter ending June 30, 2009, as calculated for the two consecutive fiscal quarters then ending $ - 22,000,000
Fiscal quarter ending September 30, 2009, as calculated for the three consecutive fiscal quarters then ending $ - 14,000,000
Fiscal quarter ending December 31, 2009, as calculated for the four consecutive fiscal quarters then ending $ 1,750,000
Fiscal quarter ending March 31, 2010 and each fiscal quarter thereafter, as calculated for the four consecutive fiscal quarters
then ending $ 35,000,000
Section 10.12 Capital Expenditures. The Company will not permit or suffer Consolidated Capital Expenditures in excess of (i)
$30,000,000 for the fiscal quarter ending March 31, 2009, (ii) $65,000,000 for the fiscal year ending March 31, 2010, or (iii) $70,000,000 for any
fiscal year ending thereafter; in each case in addition to any replacement or rebuilding of any real property or equipment from the Net Proceeds
from any Event of Loss of real property or equipment as provided in clause (v) of the definition of Excluded Sales.
Annex I-6
Section 10.13 Restricted Payments. The Company will not, nor will it permit any Subsidiary to, declare or make any Restricted
Payment except any Subsidiary may declare and pay dividends or make distributions to the Company or to a Wholly-Owned Subsidiary. The
Company will not issue any Disqualified Stock.
Section 10.14 Loans or Advances. Neither the Company nor any of its Subsidiaries shall make loans or advances to any Person
except:
(a) [Intentionally Omitted];
(b) deposits required by government agencies or public utilities;
(c) existing loans or advances between the Company and its Subsidiaries and between Subsidiaries described on Schedule
10.14 hereto, but no increase in the amount thereof (except to the extent increased amounts are permitted under another clause of this
Section 10.14);
(d) loans or advances from any Foreign Subsidiaries to the Company or any Subsidiary Guarantor, provided that such loans
and advances are evidenced by documents satisfactory to the Required Holders and are subordinated to all Secured Obligations on
terms and by agreements satisfactory to the Required Holders;
(e) loans and advances between the Company and the Subsidiary Guarantors, provided that such loans and advances are
evidenced by documents satisfactory to the Required Holders; and
(f) loans and advances between Foreign Subsidiaries, provided that such loans and advances are (i) evidenced by documents
satisfactory to the Required Holders and (ii) if such loans and advances are owing by a Foreign Subsidiary that is a borrower under
the Credit Agreement or any Foreign Subsidiary guaranteeing the Secured Obligations of such Foreign Subsidiary that is a borrower
under the Credit Agreement, subordinated to all Secured Obligations owing by such Foreign Subsidiary that is a borrower under the
Credit Agreement on terms and by agreements satisfactory to the Required Holders; and
(g) other loans and advances made in the ordinary course of business not exceeding $10,000,000 in the aggregate at any time
outstanding;
provided that after giving effect to the making of any loans, advances or deposits permitted by clause (a), (b), (c), (d), (e), (f) or (g) of this
Section 10.14, no Default or Event of Default shall have occurred and be continuing. Notwithstanding anything herein to the contrary, the
Company will not, nor will it permit any Subsidiary to, make any loans and advances to Modine Korea, any member of the Modine Holding
Consolidated Group or any Domestic Subsidiary that is not a Subsidiary Guarantor at any time on or after the Second Amendment Effective
Date, provided that this provision shall not restrict loans and advances between members of the Modine Holding Consolidated Group.
Annex I-7
(a) The Company will not, nor will it permit any Subsidiary to, make or suffer to exist any Investments (including
without limitation, loans and advances to, and other Investments in, Subsidiaries), or commitments therefor, or to create any
Subsidiary or to become or remain a partner in any partnership or joint venture, or to make any Acquisition of any Person, except:
(ii) (x) Existing Investments in Subsidiaries, but no increase in the amount thereof and (y) other Investments
described in Schedule 10.15, but no increase in the amount thereof, as reduced from time to time.
(iv) Swap Contracts; provided, that any transactions under any Swap Contract shall be entered into to hedge
a risk exposure in the ordinary course of business of the Company or a Subsidiary and not for speculative purposes.
(b) The Company and its Subsidiaries may make and have outstanding other Investments, provided that (i) no Default
or Event of Default exists at the time such Investment is made or would be caused thereby and (ii) at no time shall the aggregate
outstanding amount of all such other Investments existing and permitted under this Section 10.15(b) exceed $1,000,000.
Notwithstanding anything herein to the contrary, the Company will not, nor will it permit any Subsidiary to, make any Investments (including
or any Domestic Subsidiary that is not a Subsidiary Guarantor at any time on or after the Second Amendment Effective Date, provided that this
provision shall not restrict Investments between members of the Modine Holding Consolidated Group.
Section 10.16 Dissolution. Neither the Company nor any of its Subsidiaries shall suffer or permit dissolution or liquidation either
in whole or in part or redeem or retire any shares of its own stock or that of any Subsidiary, except through corporate reorganization to the
extent permitted by Sections 10.5, 10.6 and 10.8.
Annex I-8
Section 10.17 Optional Payments and Modification of Debt.
(a) The Company will not, nor will it permit any Subsidiary to, (i) reduce the commitment of the lenders under the Credit
Agreement to make loans, issue letters of credit or provide other credit facilities, other than reductions to such commitments after the
Second Amendment Effective Date in an aggregate amount not to exceed at any time the sum of (1) the aggregate amount of
prepayments of the principal amount of the Advances (as defined in the Credit Agreement as in effect on the Second Amendment
Effective Date) made pursuant to Section 9.12 plus (2) 38.524590163% of the aggregate amount of all payments made to the Collateral
Agent pursuant to Section 9.12 plus (3) an amount not to exceed $15,000,000 equal to the amount by which the dollar equivalent of
the Euro amount of any credit facility of facilities (based on commitments) entered into by the Modine Holding Consolidated Group
exceeds $5,000,000, and, (ii) shorten the maturity or termination date of any loans or other credit facilities of the Company or any
Subsidiary under the Credit Agreement; (iii) amend or otherwise modify Section 2.3(c) or (d) of the Credit Agreement as in effect on
the Second Amendment Effective Date, (iv) enter into any agreement restricting the ability of the Company and its Subsidiaries to
amend or modify this Agreement or any other Transaction Document, except as provided in the Credit Agreement as in effect on the
Second Amendment Effective Date; (v) enter into any agreement or arrangement requiring any defeasance of any kind of any Debt
under the Credit Agreement or any of the other Loan Documents (as defined in the Credit Agreement) or (vi) pay or agree to pay any
fee, interest or other compensation or consideration (other than as required under the Credit Agreement and the Loan Documents (as
defined in the Credit Agreement) delivered to the holders prior to the Second Amendment Effective Date) to the Bank Agent or any
Bank.
(b) The Company will not, nor will it permit any Subsidiary to, (i) make any optional payment, defeasance (whether a
covenant defeasance, legal defeasance or other defeasance), prepayment, repurchase (including without limitation any offer to
repurchase) or other optional redemption of any Debt under 2005 Note Purchase Agreement, (ii) enter into any agreement or
arrangement requiring any defeasance of any kind of any Debt under the 2005 Note Purchase Agreement or (iii) pay or agree to pay
any fee, interest or other compensation or consideration (other than as required under the 2005 Note Purchase Agreement and the
Transaction Documents (as defined in the 2005 Note Purchase Agreement) delivered to the holders prior to the Second Amendment
Effective Date) to any holder of notes outstanding under the 2005 Note Purchase Agreement; unless in each case, and concurrently
therewith, the Company makes an optional payment, defeasance, prepayment, repurchase or other optional redemption of the Notes,
or pays a fee, interest or other compensation or consideration to the holders of the Notes, in each case in a pro rata amount in
proportion to the respective outstanding principal amounts of the Notes and the Debt under 2005 Note Purchase Agreement
immediately prior thereto.
Section 10.18 Communications with Accountants. The Company authorizes each holder to communicate directly with its
independent certified public accountants and authorizes and shall instruct those accountants and advisors to communicate to the each holder
information relating to the Company and its Subsidiaries with respect to the business, results of operations and financial condition of the
Company or any of its Subsidiaries.
Annex I-9
Section 10.19 Deposit Accounts. The Company shall, and shall cause each of its Domestic Subsidiaries to, maintain a Lender (as
defined in the Credit Agreement) or any of their respective Affiliates as their sole depository bank, including for the maintenance of all
operating, administrative, cash management, collection activity, and other deposit accounts for the conduct of their respective businesses,
provided that with respect to all operating, administrative, cash management, collection activity, and other deposit accounts of the Company
and the Domestic Subsidiaries, the Company shall have up to 60 days after the Second Amendment Effective Date (or such later date agreed to
by the Required Holders) to comply with the terms of this Section 10.19, provided that for administrative convenience the Company may
maintain existing local deposit accounts at all times thereafter, not to exceed $100,000 in aggregate amount for all such accounts of the
Company and its Domestic Subsidiaries.
Section 10.20 Restrictive Agreements. The Company will not, and will not permit any of its Subsidiaries to, directly or indirectly,
enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon the ability of any
Subsidiary to pay dividends or other distributions with respect to any of its Equity Interests or to make or repay loans or advances to the
Company or any other Subsidiary; provided that the foregoing shall not apply to: (a) restrictions and conditions imposed on the Modine
Holding Consolidated Group in connection with Debt permitted under Section 10.2(g), (b) restrictions and conditions imposed in connection
with a material economic benefit provided to any Foreign Subsidiary by a governmental authority, (c) restrictions in the Credit Agreement and
the 2005 Note Agreement, each as in effect on the Second Amendment Effective Date and (d) restrictions and conditions imposed by law.
Section 10.21 Environmental Matters. The Company will not, and will not permit any other Person to, use, produce, manufacture,
process, generate, store, dispose of, manage at, or ship or transport to or from any of its property any Hazardous Materials except for
Hazardous Materials disclosed on Schedule 10.21 hereto and by this reference made a part hereof and which are used, produced,
manufactured, processed, generated, stored, disposed of or managed in the ordinary course of business in compliance with all applicable
Environmental Laws, except where such non-compliance would not have a Material Adverse Effect. The Company agrees that upon the
occurrence of an Environmental Release it will act immediately to investigate the extent of, and to take appropriate remedial action to eliminate,
such Environmental Release, whether or not ordered or otherwise directed to do so. Promptly, and in any event within 15 Business Days after
the Company obtains knowledge thereof, the Company shall furnish to the holders written notice of all material Environmental Liabilities,
pending, threatened or anticipated material Environmental Proceedings, and material Environmental Releases at, on, in, under or in any way
affecting it, any Subsidiary or any of its or their property or any adjacent property, and all facts, events, or conditions that could lead to any of
the foregoing.
Section 10.22 Change in Fiscal Year. The Company will not change its fiscal year (including any of its fiscal quarters) without
(a) providing the holders with prior written notice of such change; and (b) executing and delivering to the holders, prior to such change, such
amendments to this Agreement and the other Transaction Documents as the holders may reasonably deem necessary and appropriate as a
result of such change in fiscal year.
Annex I-10
Section 10.23 Sale of Accounts. The Company will not, nor will it permit any Subsidiary to, sell or otherwise dispose of any notes
receivable or accounts receivable, with or without recourse, except (a) sale or assignment of accounts for collection purposes in the ordinary
course of business, (b) sale or assignment of trade notes receivable or accounts receivable of the Company’s Foreign Subsidiaries in the
ordinary course of business provided that the aggregate outstanding amount thereof does not exceed $15,000,000 (based on the amount of
obligations outstanding under the legal documents entered into as part of such sales or assignments that would be characterized as principal if
such sales or assignments were structured as a secured lending transaction rather than as a sale or assignment), and (c) Qualified Receivables
Transactions.
Annex I-11
ANNEX II
DEFINED TERMS
As used herein, the following terms have the respective meanings set forth below or set forth in the Section hereof following such
term:
“Acquisition” means any transaction, or any series of related transactions, consummated on or after the date of this
Agreement, by which the Company or any of its Subsidiaries (i) acquires any going business or all or substantially all of the assets of
any firm, corporation or limited liability company, or division thereof, whether through purchase of assets, merger or otherwise or (ii)
directly or indirectly acquires (in one transaction or as the most recent transaction in a series of transactions) at least a majority (in
number of votes) of the securities of a corporation which have ordinary voting power for the election of directors (other than
securities having such power only by reason of the happening of a contingency) or a majority (by percentage or voting power) of the
outstanding ownership interests of a partnership or limited liability company.
“Additional Covenant” shall mean any affirmative or negative covenant or similar restriction applicable to the Company or
any Subsidiary (regardless of whether such provision is labeled or otherwise characterized as a covenant) the subject matter of which
either (i) is similar to that of any covenant in Section 9 or 10 of this Agreement, or related definitions in Schedule B to this
Agreement, but contains one or more percentages, amounts or formulas that is more restrictive than those set forth herein or more
beneficial to the lender under any agreement with respect to any Debt of the Company or such Subsidiary or any agreement for the
refinancing or extension of all or a portion of the Debt thereunder (and such covenant or similar restriction shall be deemed an
Additional Covenant only to the extent that it is more restrictive or more beneficial) or (ii) is different from the subject matter of any
covenants in Section 9 or 10 of this Agreement, or related definitions in Schedule B to this Agreement.
“Additional Default” shall mean any provision contained in any agreement with respect to any Debt of the Company or any
Subsidiary or any agreement for the refinancing or extension of all or a portion of the Debt thereunder which permits the holders of
such Debt to accelerate (with the passage of time or giving of notice or both) the maturity thereof or otherwise requires the Company
or any Subsidiary to purchase the Debt thereunder or any agreement for the refinancing or extension of all or a portion of the Debt
thereunder prior to the stated maturity thereof and which either (i) is similar to any Default or Event of Default contained in Section
11 of this Agreement, or related definitions in Schedule B to this Agreement, but contains one or more percentages, amounts or
formulas that is more restrictive or has a shorter grace period than those set forth herein or is more beneficial to the lender under any
agreement with respect to any Debt of the Company or such Subsidiary or any agreement for the refinancing or extension of all or a
portion of the Indebtedness thereunder (and such provision shall be deemed an Additional Default only to the extent that it is more
restrictive, has a shorter grace period or is more beneficial) or (ii) is different from the subject matter of any Default or Event of Default
contained in Section 11 of this Agreement, or related definitions in Schedule B to this Agreement.
1
“Affiliate” means, at any time, and with respect to any Person, any other Person that at such time directly or indirectly
through one or more intermediaries Controls, or is Controlled by, or is under common Control with, such first Person, and with respect
to the Company, shall include any Person beneficially owning or holding, directly or indirectly, 10% or more of any class of voting or
equity interests of the Company or any Subsidiary or any corporation of which the Company and its Subsidiaries beneficially own or
hold, in the aggregate, directly or indirectly, 10% or more of any class of voting or equity interests. As used in this definition,
“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies
of a Person, whether through the ownership of voting securities, by contract or otherwise. Unless the context otherwise clearly
requires, any reference to an “Affiliate” is a reference to an Affiliate of the Company.
“Airedale Entity” and “Airedale Entities” are defined in Section 5.20.
“Anti-Terrorism Order” means Executive Order No. 13,224 of September 24, 2001, Blocking Property and Prohibiting
Transactions with Persons Who Commit, Threaten to Commit or Support Terrorism, 66 U.S. Fed. Reg, 49, 079 (2001), as amended.
“Applicable Rate” shall mean (a) until the Second Amendment Effective Date, 5.68% and (b) on and after the Second
Amendment Effective Date (i) during a Credit Rating Adjustment Period and provided no Default or Event of Default has occurred
and is continuing, 8.25% and (ii) 10.75% at all other times.
“Bank Agent” means JPMorgan Chase Bank, N.A., in its capacity as agent under the Credit Agreement, and its successors
and assigns in that capacity.
“Banks” means JPMorgan Chase Bank, N.A., Bank of America, N.A., M&I Marshall & Ilsley Bank, Wells Fargo Bank, N.A.,
Dresdner Bank AG, U.S. Bank, National Association, Comerica Bank and the other lending parties to the Credit Agreement from time
to time, and their respective successors and assigns from time to time.
“Brazil Holdback” means the contingent obligation of the Company to the former owners of Modine do Brasil Sistemas
Termicos Ltda. in the amount of $2,000,000.
“Business Day” means (a) for the purposes of Section 8.6 only, any day other than a Saturday, a Sunday or a day on which
commercial banks in New York City are required or authorized to be closed, and (b) for the purposes of any other provision of this
Agreement, any day other than a Saturday, a Sunday or a day on which commercial banks in Chicago, Illinois or New York, New York
are required or authorized to be closed.
2
“Capital Expenditures” means for any period all direct or indirect (by way of acquisition of securities of a Person or the
expenditure of cash or the transfer of property or the incurrence of Debt) expenditures in respect of the purchase or other acquisition
of fixed or capital assets determined in conformity with GAAP.
“Capital Lease” means, at any time, a lease with respect to which the lessee is required concurrently to recognize the
acquisition of an asset and the incurrence of a liability in accordance with GAAP.
“Cash Equivalent Investments” means (i) short-term obligations of, or fully guaranteed by, the United States of America, (ii)
with respect to Investments of a Foreign Subsidiary only, direct obligations of such Foreign Subsidiary’s Domestic National
Government maturing within one year, (iii) commercial paper rated A-1 or better by S&P or P-1 or better by Moody’s, (iv) demand
deposit accounts maintained in the ordinary course of business, (v) certificates of deposit issued by and time deposits with
commercial banks (whether domestic or foreign) having capital and surplus in excess of $100,000,000, and (vi) repurchase agreements
or like investment vehicles, in each case rated A-1 or better by S&P or P-1 or better by Moody’s and having a maturity date not
greater than 270 days; provided in each case that the same provides for payment of both principal and interest (and not principal
alone or interest alone) and is not subject to any contingency regarding the payment of principal or interest.
“Change in Control” is defined in Section 8.7.
“Closing” is defined in Section 3.
“Code” means the Internal Revenue Code of 1986, as amended from time to time, and the rules and regulations promulgated
thereunder from time to time.
“Collateral” shall mean all assets of the Company and each of its Subsidiaries in which a Lien is required to be granted to
secure the Notes.
“Collateral Agent” means JPMorgan in its capacity as collateral agent under the Intercreditor Agreement and the Collateral
Documents, and its successor and assigns in that capacity.
“Collateral Documents” means, collectively, the Security Agreements, the Mortgages and all other agreements or
Agreement or otherwise providing support for the Secured Obligations at any time, as any of the foregoing may be amended or
modified from time to time.
“Company” means Modine Manufacturing Company, a Wisconsin corporation.
“Company Financial Advisor” is defined in Section 15.2.
“Confidential Information” is defined in Section 20.
3
“Consolidated Capital Expenditures” means, with reference to any period, the Capital Expenditures of the Company and its
“Consolidated Adjusted EBITDA” means, as to any Person and with reference to any period, Consolidated EBIT plus, to the
extent deducted in determining Consolidated Net income, depreciation and amortization, all calculated for such Person and its
Subsidiaries on a consolidated basis. “Consolidated Adjusted EBITDA” for any period, as to any Person, shall be calculated to be
the actual amount for such period for such Person and its Subsidiaries; provided, upon the consummation of any Acquisition, for
calculations made from and after such Acquisition, Consolidated Adjusted EBITDA shall be calculated on a pro forma basis
including the target’s historical Consolidated Adjusted EBITDA for the applicable period using historical financial statements
obtained from the seller, broken down by fiscal quarter in such Person’s reasonable judgment (the amounts from which may be
adjusted solely as may be necessary to comply with GAAP).
“Consolidated EBIT” means, as to any Person and with reference to any period, Consolidated Net Income plus, to the
extent deducted from revenues in determining Consolidated Net Income, (i) Consolidated Interest Expense, (ii) expense for federal,
state, local and foreign income and franchise taxes paid or accrued and (iii) extraordinary losses incurred other than in the ordinary
course of business, minus, to the extent included in Consolidated Net Income, extraordinary gains realized other than in the ordinary
course of business, all calculated for such Person and its Subsidiaries on a consolidated basis.
“Consolidated Net Income” means, as to any Person and with reference to any period, the net income (or loss) of such
Person and its Subsidiaries calculated on a consolidated basis for such period, (a) excluding (i) any non-cash charges or gains which
are unusual, non-recurring or extraordinary, (ii) any non-cash charges or gains related to exchange gains or losses on intercompany
loans or to the Brazil Holdback, (iii) for purposes of Sections 10.1, 10.3, 10.11 and 10.12 only, Restructuring Charges subject to the
limits set forth in the definition of Restructuring Charges, and (iv) fees and expenses incurred by or for the account of the Company
with respect to any Financial Advisor engaged pursuant to Sections 15.2 and 15.3 or pursuant to Section 9.6(d) or (e) of the Credit
Agreement; and (b) including, to the extent not otherwise included in the determination of Consolidated Net Income, all cash
dividends and cash distributions received by the Company or any Subsidiary from any Person in which the Company or such
Subsidiary has made an investment; provided, however, that for any calculation of Consolidated Net Income for any period
commencing on or after April 1, 2009, Modine Korea shall not be included as a Subsidiary of the Company.
“Consolidated Total Assets” means as of the date of any determination thereof, total assets of the Company and its
Subsidiaries determined on a consolidated basis in accordance with GAAP.
“Consolidated Total Debt” means, at any time, all Debt of the Company and its Subsidiaries that would be reflected on a
consolidated balance sheet of the Company prepared in accordance with GAAP at such time, including Receivables Transaction
Attributed Indebtedness of any Subsidiary or other Person to whom interests in accounts, notes receivable and rights related thereto
have been sold, conveyed or otherwise transferred by the Company or any Subsidiary in connection with a Qualified Receivables
Transaction, whether or not such Subsidiary or other Person is consolidated with the Company under GAAP.
4
“Credit Agreement” means the Amended and Restated Credit Agreement, dated as of July 18, 2008, among the Company,
the Foreign Subsidiaries named therein, the Bank Agent and the Banks, and as further amended, restated, supplemented or otherwise
“Credit Rating Adjustment Period” means any period during which the Company’s long-term unsecured and non-credit
enhanced indebtedness is rated not less than “BBB” by S&P, Fitch or DBRS or not less than “Baa2” by Moody’s, and evidence
thereof, in form and substance satisfactory to the Required Holders, shall have been delivered to the holders of the Notes.
“DBRS” means Dominion Bond Rating Agency or any successor thereto.
“Debt” with respect to any Person mean, at any time, without duplication,
(a) its liabilities for borrowed money and its redemption obligations in respect of mandatorily redeemable Preferred
Stock;
(b) its liabilities for the deferred purchase price of property acquired by such Person (excluding accounts payable
arising in the ordinary course of business but including all liabilities created or arising under any conditional sale or other title
retention agreement with respect to any such property);
(c) (i) all liabilities appearing on its balance sheet in accordance with GAAP in respect of Capital Leases and (ii) all
liabilities which would appear on its balance sheet in accordance with GAAP in respect of Synthetic Leases assuming such Synthetic
Leases were accounted for as Capital Leases;
(d) all liabilities for borrowed money secured by any Lien with respect to any property owned by such Person (whether
or not it has assumed or otherwise become liable for such liabilities);
(e) all its liabilities in respect of letters of credit or instruments serving a similar function issued or accepted for its
account by banks and other financial institutions (whether or not representing obligations for borrowed money);
(f) the aggregate Swap Termination Value of all Swap Contracts of such Person; and
(g) Receivables Transaction Attributed Indebtedness of such Person; and
5
(h) any Guaranty of such Person with respect to liabilities of a type described in any of clauses (a) through (g) hereof.
“Default” means an event or condition the occurrence or existence of which would, with the lapse of time or the giving of
notice or both, become an Event of Default.
“Default Rate” means that rate of interest that is the greater of (i) 2.0% per annum above the rate of interest stated in clause
(a) of the first paragraph of the Notes or (ii) 2.0% over the rate of interest publicly announced by JPMorgan Chase Bank, N.A. in New
York, New York as its “base” or “prime” rate.
“Disclosure Documents” is defined in Section 5.3.
“Disqualified Stock” means any Equity Interests that, by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable), or upon the happening of any event, matures or is mandatorily redeemable, pursuant to a
sinking fund obligation or otherwise, or redeemable at the option of the holder thereof, in whole or in part prior to a date one year
after December 7, 2017.
“Domestic National Government” means, with respect to a Foreign Subsidiary, the national government of the country in
which the Foreign Subsidiary’s principal place of business is located.
“Domestic Subsidiary” means each Subsidiary of the Company that is organized under the laws of the United States of
America or any state, territory or possession thereof.
“Electronic Delivery” is defined in Section 7.1(a).
“Environmental Laws” means any and all Federal, state, local, and foreign statutes, laws, regulations, ordinances, rules,
judgments, orders, decrees, permits, concessions, grants, franchises, licenses, agreements or governmental restrictions relating to
pollution and the protection of the environment or the release of any materials into the environment, including but not limited to
those related to Hazardous Materials.
“Environmental Liabilities” means all liabilities (including anticipated compliance costs) in connection with or relating to
the business, assets presently or previously owned, leased or operated property, activities (including, without limitation, off-site
disposal) or operations of the Company and each of its Subsidiaries, whether vested or unvested, contingent or fixed, actual or
potential, known or unknown, which arise under or relate to matters covered by Environmental Laws.
“Environmental Proceeding” means any judicial or administrative proceeding arising from or in any way associated with
any Environmental Law.
“Environmental Release” means releases as defined in CERCLA or under any other Environmental Law.
6
“Equity Interests” means (i) in the case of any corporation, all capital stock and any securities exchangeable for or
convertible into capital stock and any warrants, rights or other options to purchase or otherwise acquire capital stock or such
securities or any other form of equity securities, (ii) in the case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate stock, (iii) in the case of a partnership or limited liability
company, partnership or membership interests (whether general or limited) and (iv) any other interest or participation that confers on
a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the rules and
regulations promulgated thereunder from time to time in effect.
“ERISA Affiliate” means any trade or business (whether or not incorporated) that is treated as a single employer together
with the Company under Section 414 of the Code.
“Event of Default” is defined in Section 11.
“Event of Loss” means, with respect to any property of the Company and its Subsidiaries, any loss, destruction or damage
of such property or any condemnation, seizure or taking, by exercise of the power of eminent domain or otherwise, of such property,
or confiscation of such property or the requisition of the use of such property.
“Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time, and the rules and regulations
promulgated thereunder from time to time in effect.
“Excluded Sales” is defined in Section 9.12.
“Fitch” shall mean Fitch, Inc. or any successor thereto.
“Foreign Subsidiary” means each Subsidiary that is not a Domestic Subsidiary.
“Form 10-K” is defined in Section 7.1(b).
“Form 10-Q” is defined in Section 7.1(a).
“GAAP” means generally accepted accounting principles as in effect from time to time in the United States of America.
“Governmental Authority” means
(a) the government of The United States of America or any State or other political subdivision thereof, or
7
(b) any other jurisdiction in which the Company or any Subsidiary conducts all or any part of its business, or which
asserts jurisdiction over any properties of the Company or any Subsidiary, or
(c) any entity exercising executive, legislative, judicial, regulatory or administrative functions of, or pertaining to, any
such government.
“Guaranty” means, with respect to any Person, any obligation (except the endorsement in the ordinary course of business
of negotiable instruments for deposit or collection) of such Person guaranteeing or in effect guaranteeing any indebtedness, dividend
or other obligation of any other Person in any manner, whether directly or indirectly, including (without limitation) obligations
incurred through an agreement, contingent or otherwise, by such Person:
(a) to purchase such indebtedness or obligation or any property constituting security therefor;
(b) to advance or supply funds (i) for the purchase or payment of such indebtedness or obligation, or (ii) to maintain
any working capital or other balance sheet condition or any income statement condition of any other Person or otherwise to advance
or make available funds for the purchase or payment of such indebtedness or obligation;
(c) to lease properties or to purchase properties or services primarily for the purpose of assuring the owner of such
indebtedness or obligation of the ability of any other Person to make payment of the indebtedness or obligation; or
(d) otherwise to assure the owner of such indebtedness or obligation against loss in respect thereof.
In any computation of the indebtedness or other liabilities of the obligor under any Guaranty, the indebtedness or other obligations
that are the subject of such Guaranty shall be assumed to be direct obligations of such obligor.
“Hazardous Material” means any and all pollutants, toxic or hazardous wastes or any other substances, including all
substances listed in or regulated in any Environmental law that might pose a hazard to health and safety, the removal of which may be
required or the generation, manufacture, refining, production, processing, treatment, storage, handling, transportation, transfer, use,
disposal, release, discharge, spillage, seepage, or filtration of which is or shall be restricted, regulated, prohibited or penalized by any
applicable law including, but not limited to, asbestos, urea formaldehyde foam insulation, polychlorinated biphenyls, petroleum,
petroleum products, lead based paint, radon gas or similar restricted, prohibited or penalized substances.
“holder” means, with respect to any Note, the Person in whose name such Note is registered in the register maintained by
the Company pursuant to Section 13.1.
“Institutional Investor” means (a) any Purchaser of a Note, (b) any holder of a Note holding (together with one or more of
its affiliates) more than 5% of the aggregate principal amount of the Notes then outstanding, (c) any bank, trust company, savings
and loan association or other financial institution, any pension plan, any investment company, any insurance company, any broker or
dealer, or any other similar financial institution or entity, regardless of legal form, and (d) any Related Fund of any holder of any Note.
8
“Intercreditor Agreement” means the Collateral Agency and Intercreditor Agreement among the Collateral Agent and the
Secured Parties, dated as of the Second Amendment Effective Date, as amended, restated, supplemented or modified from time to time
in accordance with the terms thereof.
“Investment” of a Person means any loan, advance (other than commission, travel and similar advances to officers and
employees made in the ordinary course of business), extension of credit (other than accounts receivable arising in the ordinary
course of business on terms customary in the trade) or contribution of capital by such Person; stocks, bonds, mutual funds,
partnership interests, notes, debentures or other securities owned by such Person; any deposit accounts and certificates of deposit
owned by such Person; and structured notes, derivative financial instruments and other similar instruments or contracts owned by
such Person.
“January 2009 Financial Forecasts” means the financial forecasts provided to the holders by the Company on January 25,
2009 and the Quarterly EBITDA Sensitivity Analysis provided to the holders by the Company on February 5, 2009.
“Lien” means, with respect to any Person, any mortgage, lien, pledge, charge, security interest or other encumbrance, or any
interest or title of any vendor, lessor, lender or other secured party to or of such Person under any conditional sale or other title
retention agreement or Capital Lease, upon or with respect to any property or asset of such Person (including in the case of stock,
stockholder agreements, voting trust agreements and all similar arrangements).
“Make-Whole Amount” is defined in Section 8.6.
“Material” means material in relation to the business, operations, affairs, financial condition, assets or properties of the
Company and its Subsidiaries taken as a whole.
“Material Adverse Effect” means a material adverse effect on (a) the business, operations, affairs, financial condition,
assets, or properties of the Company and its Subsidiaries taken as a whole, or (b) the ability of the Company to perform its obligations
under this Agreement, the Notes or any other Transaction Document to which it is a party, or (c) the validity or enforceability of this
Agreement, the Notes, the Subsidiary Guaranty or any other Transaction Document.
“Memorandum” is defined in Section 5.3.
“Modine Holding Consolidated Group” means Modine Holding GmbH and its Subsidiaries existing as of the Second
Amendment Effective Date.
9
“Modine Korea” means Modine Korea, LLC, a wholly owned Subsidiary of the Company.
“Moody’s” mean Moody's Investors Services, Inc., including the NCO/Moody's Commercial Division, or any successor
Person.
“Mortgaged Properties” shall mean the real, personal and mixed properties subject to any Mortgage.
“Mortgages” means each mortgage, deed of trust and similar agreement and any other agreement from the Company or any
Subsidiary Guarantor granting a Lien on any of its real property, each in form and substance acceptable to the Required Holders and
as amended or modified from time to time, entered into by the Company or any Subsidiary Guarantor at any time for the benefit of the
Collateral Agent and the Secured Parties pursuant to this Agreement or the Intercreditor Agreement.
“Multiemployer Plan” means any Plan that is a “multiemployer plan” (as such term is defined in section 4001(a)(3) of
ERISA).
“NAIC” means the National Association of Insurance Commissioners or any successor thereto.
“Net Cash Proceeds” means, without duplication, in connection with any issuance of any Equity Interests or any sale,
license, lease or other disposition of any asset or any settlement by, or receipt of payment in respect of, any property insurance claim
or condemnation award, the cash proceeds (including any cash payments received by way of deferred payment of principal pursuant
to a note or installment receivable or purchase price adjustment receivable or otherwise, but only as and when received) of such
issuance, sale, settlement or payment, net of (i) direct costs relating solely to such issuance, sale, other disposition or settlement,
including sales commissions and reasonable and documented attorneys’ fees, accountants’ fees, investment banking fees, and other
customary fees and expenses actually incurred in connection therewith, (ii) amounts required to be applied to the repayment of Debt
secured by a Lien expressly permitted hereunder on any asset which is the subject of such sale, insurance claim or condemnation
award (other than any Lien in favor of the Collateral Agent for the benefit of the Collateral Agent and the Secured Parties) and (iii)
taxes paid or reasonably estimated to be payable as a result thereof.
“Notes” is defined in Section 1.
“Officer’s Certificate” means a certificate of a Senior Financial Officer or of any other officer of the Company whose
responsibilities extend to the subject matter of such certificate.
“PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA or any successor thereto.
10
“Person” means an individual, partnership, corporation, limited liability company, association, trust, unincorporated
organization, business entity or Governmental Authority.
“Plan” means an “employee benefit plan” (as defined in section 3(3) of ERISA) subject to Title I of ERISA that is or, within
the preceding five years, has been established or maintained, or to which contributions are or, within the preceding five years, have
been made or required to be made, by the Company or any ERISA Affiliate or with respect to which the Company or any ERISA
Affiliate may have any liability.
“Preferred Stock” means any class of capital stock of a Person that is preferred over any other class of capital stock (or
similar equity interests) of such Person as to the payment of dividends or the payment of any amount upon liquidation or dissolution
of such Person.
“property” or “properties” means, unless otherwise specifically limited, real or personal property of any kind, tangible or
intangible, choate or inchoate.
“Proposed Prepayment Date” is defined in Section 8.7.
“Purchaser” is defined in the first paragraph of this Agreement.
“QPAM Exemption” means Prohibited Transaction Class Exemption 84-14 issued by the United States Department of Labor.
“Qualified Institutional Buyer” means any Person who is a “qualified institutional buyer” within the meaning of such term
as set forth in Rule 144A(a)(1) under the Securities Act.
“Qualified Receivables Transaction” means any transaction or series of transactions that may be entered into by the
Company or any Subsidiary pursuant to which the Company or any Subsidiary may sell, convey or otherwise transfer to a newly-
formed Subsidiary or other special-purpose entity, or any other Person, any accounts or notes receivable and rights related thereto
on a limited recourse basis, provided that (i) such sale, conveyance or transfer qualifies as a sale under GAAP and (ii) the aggregate
outstanding Receivables Transaction Attributed Indebtedness for all Qualified Receivables Transactions (including those listed on
Schedule 10.2-A and any other Qualified Receivables Transaction at any time, but excluding sales or assignments of trade notes
receivable or accounts receivable of the Company’s Foreign Subsidiaries permitted under Section 10.23(b)) shall not exceed
$15,000,000.
“Receivables Transaction Attributed Indebtedness” means the aggregate amount of obligations outstanding under the
legal documentation entered into as part of any Receivables Transaction on any date of determination that would be characterized as
principal if such Receivables Transaction were structured as a secured lending transaction rather than as a purchase.
11
“Related Fund” means, with respect to any holder of any Note, any fund or entity that (i) invests in Securities or bank
loans, and (ii) is advised or managed by such holder, the same investment advisor as such holder or by an affiliate of such holder or
such investment advisor.
“Required Holders” means, at any time, the holders of at least 51% in principal amount of the Notes at the time outstanding
(exclusive of Notes then owned by the Company or any of its Affiliates).
“Responsible Officer” means any Senior Financial Officer and any other officer of the Company with responsibility for the
administration of the relevant portion of this Agreement.
“Restricted Payment” means, with respect to any Person, (i) any dividend or other distribution on any shares of such
Person’s capital stock (except dividends payable solely in shares of its capital stock) or (ii) any Stock Purchase Restricted Payment.
“Restructuring Charges” means certain cash charges related any restructuring program of the Company and its
Subsidiaries subject to the following limitations:
continuation.
(b) the aggregate amount of all Restructuring Charges shall not exceed $14,000,000 for all times after December 31, 2008.
“S&P” means Standard and Poor's Ratings Group and its successors.
“Sale and Leaseback Transaction” means any arrangement whereby the Company or any Subsidiary shall sell, transfer or
otherwise dispose of any property owned by the Company or any Subsidiary to any Person other than the Company or a Subsidiary
and thereupon the Company or any Subsidiary shall lease or intend to lease, as lessee, the same property or any part thereof.
“SEC” shall mean the Securities and Exchange Commission of the United States, or any successor thereto.
“Second Amendment” means the Second Amendment to this Agreement dated as of the Second Amendment Effective Date.
“Second Amendment Effective Date” shall mean February 17, 2009.
“Secured Obligations” means the “Secured Obligations”, as defined in the Intercreditor Agreement.
12
“Secured Parties” shall mean the “Secured Parties” as defined in the Interecreditor Agreement.
“Securities” or Security” shall have the same meaning as in Section 2(1) of the Securities Act.
“Securities Act” means the Securities Act of 1933, as amended from time to time, and the rules and regulations promulgated
thereunder from time to time in effect.
“Security Agreements” means each security agreement, pledge agreement, pledge and security agreement and similar
agreement and any other agreement from the Company or any Subsidiary Guarantor granting a Lien on any of its personal property
(including without limitation any Capital Stock owned by the Company or any Subsidiary Guarantor), each in form and substance
acceptable to the Required Holders and as amended or modified from time to time, entered into by the Company or any Subsidiary
Guarantor at any time for the benefit of the Collateral Agent and the Secured Parties pursuant to this Agreement or the Intercreditor
Agreement.
“Senior Financial Officer” means the chief financial officer, treasurer or controller of the Company.
“Series A Notes” is defined in Section 1.
“Series B Notes” is defined in Section 1.
“Significant Subsidiary” means any Subsidiary that, together with its subsidiaries, owns consolidated total assets with a
value of greater than $1,000,000 at any time.
“Stock Purchase Restricted Payment” means, with respect to any Person, any net payment declared or made on account of
the purchase, redemption, retirement, acquisition or sale of (a) any shares of such Person’s capital stock or (b) any option, warrant or
other right to acquire shares of such Person’s capital stock.
“Subsidiary” means, as to any Person, any other Person in which such first Person or one or more of its Subsidiaries or
such first Person and one or more of its Subsidiaries owns sufficient equity or voting interests to enable it or them (as a group)
ordinarily, in the absence of contingencies, to elect a majority of the directors (or Persons performing similar functions) of such
second Person, and any partnership or joint venture if more than a 50% interest in the profits or capital thereof is owned by such first
Person or one or more of its Subsidiaries or such first Person and one or more of its Subsidiaries (unless such partnership can and
does ordinarily take major business actions without the prior approval of such Person or one or more of its Subsidiaries). Unless the
context otherwise clearly requires, any reference to a “Subsidiary” is a reference to a Subsidiary of the Company.
“Subsidiary Guarantor” means Modine, Inc., Modine ECD, Inc. and any Subsidiary which is required to become a
Subsidiary Guarantor pursuant to the requirements of Section 9.8.
13
“Subsidiary Guaranty” means that certain Guaranty, dated as of the Second Amendment Effective Date, by Modine, Inc.
and Modine ECD, Inc. in favor of the holders, together with any joinders thereto, as amended, restated, supplemented or modified
from time to time in accordance with the terms thereof.
“Subsidiary Stock” means, with respect to any Person, the stock or other equity interests (or any options or warrants to
purchase stock or other equity interests or other Securities exchangeable for or convertible into stock or other equity interests) of any
subsidiary of such Person.
“Substantial Portion” means, with respect to the property of the Company and its Subsidiaries, property which represents
more than 15% of the consolidated assets of the Company and its Subsidiaries or property which is responsible for more than 15% of
the consolidated net revenues of the Company and its Subsidiaries, in each case, as would be shown in the consolidated financial
statements of the Company and its Subsidiaries as at the beginning of the twelve-month period ending with the month in which such
determination is made (or if financial statements have not been delivered hereunder for that month which begins the twelvemonth
period, then the financial statements delivered hereunder for the quarter ending immediately prior to that month).
“SVO” means the Securities Valuation Office of the NAIL or any successor to such Office.
“Swap Contract” means (a) any and all interest rate swap transactions, basis swap transactions, basis swaps, credit
derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or
equity index swaps or options, bond or bond price or bond index swaps or options or forward foreign exchange transactions, cap
transactions, floor transactions, currency options, spot contracts or any other similar transactions or any of the foregoing (including,
but without limitation, any options to enter into any of the foregoing), and (b) any and all transactions of any kind, and the related
confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the
International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement.
“Swap Termination Value” means, in respect of any one or more Swap Contracts, after taking into account the effect of any
legally enforceable netting agreement relating to such Swap Contracts, (a) for any date on or after the date such Swap Contracts have
been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to
the date referenced in clause (a), the amounts(s) determined as the mark-to-market values(s) for such Swap Contracts, as determined
based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Contracts.
“Synthetic Lease” means, at any time, any lease (including leases that may be terminated by the lessee at any time) of any
property (a) that is accounted for as an operating lease under GAAP and (b) in respect of which the lessee retains or obtains
ownership of the property so leased for U.S. federal income tax purposes, other than any such lease under which such Person is the
lessor.
14
“Transaction Documents” means this Agreement, the Notes, the Subsidiary Guaranties, the Collateral Documents, the
Intercreditor Agreement and any other agreements or instruments executed in connection herewith at any time.
“2005 Note Purchase Agreement” means the Note Purchase Agreement dated as of September 29, 2005 between the
Company and the purchasers named therein, as amended to date, and as it may be further amended, modified, supplemented, restated,
refinanced or replaced from time to time.
“2006 Note Agreement Allocated Share” means, at any time, a portion equal to a fraction, the numerator of which is the
outstanding principal amount of the Notes, and the denominator of which is the sum of (a) the outstanding principal amount of the
Notes, (a) the outstanding principal amount of the Notes (as defined in the 2005 Note Purchase Agreement), and (c) the greater of (i)
the Aggregate Outstanding Credit Exposure (as defined in the Credit Agreement as in effect on the date hereof) at such time and (ii)
the average daily Aggregate Outstanding Credit Exposure (as defined in the Credit Agreement as in effect on the date hereof) during
the twelve month period immediately prior to such time.
“USA Patriot Act” means United States Public Law 107-56, Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001, as amended from time to time, and the rules
and regulations promulgated thereunder from time to time in effect.
“Wholly-owned Subsidiary” means, at any time, any Subsidiary one hundred percent (100%) of all of the equity interests
(except directors’ qualifying shares) and voting interests of which are owned by any one or more of the Company and the Company’s
other Wholly-owned Subsidiaries at such time.
Exhibit 10.3
Execution Copy
WAIVER AND SECOND AMENDMENT TO NOTE PURCHASE AGREEMENT

(2005)
This Waiver and Second Amendment dated as of February 17, 2009 (this “Second Amendment”) to the Note Purchase Agreement
dated as of September 29, 2005 as amended by the First Amendment thereto dated February 1, 2008 (the “Note Purchase Agreement”) is
between Modine Manufacturing Company, a Wisconsin corporation (the “Company”), and each of the institutions which is a signatory to this
Second Amendment (collectively, the “Noteholders”).
RECITALS:
A. The Company and the Noteholders are parties to the Note Purchase Agreement pursuant to which the Company issued
the $75,000,000 4.91% Senior Notes Due September 29, 2015 (the “Notes”).
B. The Company has advised the Noteholders that an Event of Default has occurred under the Note Purchase Agreement due
to a breach of Sections 10.1 and 10.9 of the Note Purchase Agreement for the period of four consecutive fiscal quarters ended December 31,
2008 (the “Existing Events of Default”).
C. The Company has requested that the Noteholders waive the Existing Events of Default. The Company has further requested
that the Noteholders agree to certain amendments to the Note Purchase Agreement as set forth below.
D. Subject to the terms and conditions set forth herein, the Noteholders are willing to waive the Existing Events of Default and
amend the Note Purchase Agreement in the respects, but only in the respects, set forth in this Second Amendment.
E. Capitalized terms used herein shall have the respective meanings ascribed thereto in the Note Purchase Agreement, as
amended hereby, unless herein defined or the context shall otherwise require.
F. All requirements of law have been fully complied with and all other acts and things necessary to make this Second
Amendment a valid, legal and binding instrument according to its terms for the purposes herein expressed have been done or performed.
NOW, THEREFORE, in consideration of good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and the Noteholders do hereby agree as follows:
SECTION 1. WAIVER AND AMENDMENTS.
Effective as of the Effective Date (as defined in Section 4 hereof), the Company and the Noteholders agree that the Note Purchase
Agreement and the Notes are amended as follows:
1.1 Each reference in the Note Purchase Agreement to “4.91%” on the cover page, in the table of contents, in document
headers, in Section 1, in the Purchaser Schedule and in the title of each of the outstanding Notes is hereby deleted. The reference to “at the
rate of (a) 4.91% per annum” in the first paragraph of each of the outstanding Notes in replaced with “at (a) the Applicable Rate per
annum”. The reference to “6.91%” in the in the first paragraph of each of the outstanding Notes in replaced with “the Applicable Rate plus
2.00%”.
1.2 Section 2.2 of the Note Purchase Agreement is amended and restated as follows:
“Section 2.2 Security for the Notes; Subsidiary Guaranties.
(a) The payment by the Company of all amounts due with respect to the Notes and the performance by the Company
of its obligations under this Agreement will be absolutely and unconditionally guaranteed by each Domestic Subsidiary of the
Company pursuant to the Subsidiary Guaranty, to the extent such Guaranty is required pursuant to Section 9.8 hereof.
(b) The obligations of the Company under this Agreement and the Notes will be secured pursuant to the Collateral
Documents and in accordance with Section 9.9 hereof.
(c) The enforcement of the rights and benefits in respect of the Collateral Documents and the allocation of proceeds
thereof and of the Subsidiary Guaranty shall be subject to the Intercreditor Agreement.”
1.3 Section 5.3 of the Note Purchase Agreement is amended by amending and restating the last sentence thereof as follows:
“Since March 31, 2008, except as reflected in or contemplated by the January 2009 Financial Forecast, there has been no change in the
financial condition, operations, business or properties of the Company or any Subsidiary except changes that individually or in the
aggregate would not reasonably be expected to have a Material Adverse Effect.”
1.4 New Section 5.21 and 5.22 are added to the Note Purchase Agreement as follows:
“Section 5.21. Credit Agreement Debt. As of the Second Amendment Effective Date, the outstanding principal balance
of the Debt outstanding under the Credit Agreement is $94,000,000 and all Loan Documents (as defined in the Credit Agreement as in
effect on the date hereof) (including the amendment and other agreements and documents executed on or about the date hereof) have
been delivered to the holders prior to or concurrently with the Second Amendment Effective Date. After giving effect to the
amendment to the Credit Agreement referenced in Section 4(c) of the Second Amendment, there is no event of default or event or
condition which would become an event of default with notice or lapse of time or both, under the Credit Agreement or any other Loan
Document (as defined in the Credit Agreement as in effect on the date hereof).
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Section 5.22. Projections. The January 2009 Financial Forecasts were prepared by or on behalf of the Company in good
faith and on the basis of the assumptions stated therein and such assumptions were believed by the Company to be reasonable at the
time prepared. No facts are known to the Company as of the Second Amendment Effective Date which, if reflected in such January
2009 Financial Forecasts, would result in a material adverse change in the assets, liabilities, results of operations or cash flows
reflected therein.”
1.5 Section 7.1(b) of the Note Purchase Agreement is further amended by adding, after the words “accompanied by an opinion
thereon”, the following parenthetical phrase:
“(without a “going concern” or like qualification or exception (other than for the fiscal year ending March 31, 2009) and without any
qualification or exception as to the scope of the audit on which such opinion is based)”
1.6 Section 7.1 of the Note Purchase Agreement is amended by deleting clause (g) thereof and adding the following in its place:
“(g) if requested by the Required Holders, within 20 days after the end of each month (commencing with the first month
ending at least 15 days after such request), for itself and its Subsidiaries, consolidated and consolidating unaudited balance sheets as
at the close of each such period and consolidated and consolidating profit and loss statements and a statement of cash flows for the
period from the beginning of such fiscal year to the end of such month, all certified by a Senior Financial Officer;
(h) promptly after the delivery thereof, copies of any reports by the Company Financial Advisor delivered to the
Company, the board of directors of the Company or any committee thereof at any time;
(i) promptly upon the request of the Required Holders, an appraisal of the inventory of the Company and its Domestic
Subsidiaries, at the expense of the Company, by a valuation or appraisal firm reasonably satisfactory to the Required Holders,
provided that, if no Default or Event of Default has occurred, not more than one such appraisal per fiscal year of the Company shall
be at the expense of the Company;
(j) promptly upon the request of the Required Holders, a consolidated thirteen week rolling cash flow statement of the
Company and its Subsidiaries, to be updated by the Company weekly thereafter, and in form and detail acceptable to the Required
Holders;
(k) if requested by the Required Holders, within 20 days after the end of each month (commencing with the first month
ending at least 15 days after such request), a schedule detailing the inventory of the Company and its Subsidiaries, a schedule and
aging of the accounts receivable and payable of the Company and its Subsidiaries and a schedule of daily cash balances of the
Company and its Subsidiaries, each in form and detail satisfactory to the Required Holders and with such supplemental information
relating thereto as requested by the Required Holders;
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(l) promptly upon receipt thereof, any notice received from the Bank Agent, any Bank or other agent or trustee
therefor and any notice that the Company or any of its Subsidiaries is subject to any investigation of any kind by any governmental
entity or stock exchange;
(m) immediately after becoming aware thereof, notice of any pending or threatened strike, work stoppage, unfair labor
practice claim, or other labor dispute affecting the Company or any of its Subsidiaries in a manner;
(n) with reasonable promptness, such other data and information relating to the business, operations, affairs, financial
condition, assets or properties of the Company or any of its Subsidiaries (including, but without limitation, actual copies of the
Company’s Form 10-Q and Form 10-K) or relating to the ability of the Company to perform its obligations hereunder and under the
Notes as from time to time may be reasonably requested by any such holder of Notes.
Notwithstanding the above, if any report or other information required under this Section 7.1 is due on a day that is not a Business
Day, then such report or other information shall be required to be delivered on the first day that is a Business Day after such day.”
1.7 Clause (a) of Section 7.2 of the Note Purchase Agreement is amended by replacing the reference therein to “Section 10.1
through Section 10.4” with “Section 10.1 through Section 10.5, Sections 10.11, 10.12, 10.14 and 10.15”.
“Section 8.1. Required Prepayments.
(a) Scheduled Prepayment of the Notes. On March 29, June 29, September 29 and December 29 of each year beginning with
December 29, 2011 and ending with June 29, 2015, the Company will prepay $4,687,500 principal amount (or such lesser principal
amount as shall then be outstanding) of the Notes at par and without payment of the Make-Whole Amount or any premium, provided
any partial prepayment of the Notes pursuant to Section 8.1(b) or Section 8.2 shall be applied in satisfaction of the required
payments of principal thereof (including the required payment of principal due upon the maturity thereof) becoming due under this
Section 8.1(a) in the inverse order of their scheduled due dates and provided further that that upon any prepayment or purchase of
the Notes pursuant to Section 8.5 or 8.7 the principal amount of each required prepayment of the Notes becoming due under this
Section 8.1(a) on and after the date of such prepayment or purchase shall be reduced in the same proportion as the aggregate unpaid
principal amount of the Notes is reduced as a result of such prepayment or purchase. The remaining outstanding principal amount of
the Notes, together with any accrued and unpaid interest therein, shall become due on September 29, 2015, the maturity date of the
Notes.
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(b) Required Prepayment Pursuant to Intercreditor Agreement. If any amounts are to be applied to the principal of
the Notes on any date pursuant to the terms of the Intercreditor Agreement, such principal amount of the Notes, together with
interest thereon to such date and together with the Make-Whole Amount, if any, with respect to each Note, shall be due and payable
on such date.”
1.9 Section 8.2 of the Note Purchase Agreement is amended by adding the following paragraph at the end thereof as follows:
“Notwithstanding the foregoing provisions of this Section 8.2, the Company shall not at any time make an optional
prepayment of the Notes unless either (1) such prepayment is in an amount equal to all of the outstanding principal amount of the
Notes, together with interest accrued thereon to the date of prepayment, and the Make-Whole Amount determined for the
prepayment date with respect to such principal amount, and prior to or concurrently with such prepayment the Intercreditor
Agreement is terminated or (2) prior to such prepayment, the Intercreditor Agreement shall have been amended in form and substance
satisfactory to the holders, and such amendment shall be in full force and effect.”
“Section 8.3. Allocation of Partial Prepayments. In the case of each partial prepayment of the Notes pursuant to
Section 8.1 or Section 8.2, the principal amount of the Notes to be prepaid shall be allocated among all of the Notes at the time
outstanding in proportion, as nearly as practicable, to the respective unpaid principal amounts thereof not theretofore called for
prepayment. All partial prepayments made pursuant to Section 8.7 shall be applied only to the Notes of the holders who have
elected to participate in such prepayment.”
1.11 Section 8.6 of the Note Purchase Agreement is amended by amending the following defined term therein in its entirety as
follows:
“Remaining Scheduled Payments” means, with respect to the Called Principal of any Note, all payments of such Called
Principal and interest thereon that would be due after the Settlement Date with respect to such Called Principal if no payment of such
Called Principal were made prior to its scheduled due date; provided that if such Settlement Date is not a date on which interest
payments are due to be made under the terms of the Notes, then the amount of the next succeeding scheduled interest payment will
be reduced by the amount of interest accrued to such Settlement Date and required to be paid on such Settlement Date pursuant to
Section 8.1(b), Section 8.2 or Section 12.1; provided further that, for the purposes of calculating “Remaining Schedule Payments”
the interest rate shall be deemed to be (a) when an Default or Event of Default has occurred and is continuing, 10.00% and (b) when
no Default or Event of Default has occurred and is continuing, (i) during a Credit Rating Adjustment Period, 7.50% and (ii) at all other
times, 4.91%.
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1.12 Section 8.6 of the Note Purchase Agreement is further amended by replacing the references to “Section 8.2” in the
definitions of “Called Principal” and “Settlement Date” with “Section 8.1(b) or Section 8.2”.
1.13 Section 8.8 of the Note Purchase Agreement is hereby deleted.
1.14 Section 9.1 of the Note Purchase Agreement is amended by replacing the reference to “Section 10.8” therein with “Section
10.9”.
1.15 Section 9.5 of the Note Purchase Agreement is amended by replacing the reference to “Section 10.4” therein with “Section
10.5” and by replacing each reference to “Section 10.5” therein with “Section 10.6”.
“Section 9.6. Notes to Rank Pari Passu. The Notes and all other obligations under this Agreement of the
Company are and at all times shall rank at least pari passu in right of payment with all other present and future Secured
Obligations.
“Section 9.8 Guaranty by Subsidiaries.
(a) (i) The Company will cause each Domestic Subsidiary which is not a party to a Subsidiary Guaranty to execute and
deliver to the holders a Subsidiary Guaranty, or a joinder agreement in respect thereof, provided that each Domestic Subsidiary in
existence on the Second Amendment Effective Date that is not signing a Subsidiary Guaranty on the Second Amendment Effective
Date shall not be required to be a Subsidiary Guarantor so long as (and only for so long as) it does not qualify as a Significant
Subsidiary (and the Company represents that each Domestic Subsidiary in existence on the Second Amendment Effective Date that is
not signing a Subsidiary Guaranty on the Second Amendment Effective Date is not a Significant Subsidiary). (ii) Notwithstanding
the foregoing, each Domestic Subsidiary that is a borrower, guarantor or otherwise an obligor of any obligations of the Company or
any Subsidiary under the Credit Agreement or the 2006 Note Agreement shall, on or prior to the date when such Domestic Subsidiary
becomes an obligor under the Credit Agreement or the 2006 Note Agreement, become a Subsidiary Guarantor hereunder and the
Company shall cause such Domestic Subsidiary to (1) deliver such Subsidiary Guaranty, or joinder thereto, together with such other
documents, opinions and information as the Required Holders reasonably may require regarding such Subsidiary and the
enforceability of such Subsidiary Guaranty and (2) comply with the provisions of Section 9.9.
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(b) The Company shall cause each Domestic Subsidiary required to become a Subsidiary Guarantor under Section
9.8(a)(i) to execute and deliver to each of the holders the documents required under Section 9.8(a)(i) within 30 days of the date such
Domestic Subsidiary becomes subject thereto, together with such other documents, opinions and information as the Required
Holders reasonably may require regarding such Subsidiary and the enforceability of such Subsidiary Guaranty.”
1.18 Section 9.9 of the Note Purchase Agreement is amended and restated as follows and new Sections 9.10 and 9.11 are added
to the Note Purchase Agreement as follows:
“Section 9.9. Collateral Security; Further Assurances.
(a) To secure the payment when due of the Secured Obligations (subject to the Intercreditor Agreement), the Company
shall execute and deliver, or cause to be executed and delivered, to the Collateral Agent, Collateral Documents granting or providing
for the following:
(i) Security Agreements granting a first priority, enforceable Lien and security interest, subject to the Liens
permitted by this Agreement and subject to the sharing provisions to be contained in the Intercreditor Agreement, on all
present and future accounts, chattel paper, commercial tort claims, deposit accounts, documents, farm products, fixtures,
chattel paper, equipment, general intangibles, goods, instruments, inventory, investment property, letter-of-credit rights (as
those terms are defined in the Illinois Uniform Commercial Code) and all other personal property of the Company and of each
Subsidiary Guarantor, subject to any exclusions described in the Intercreditor Agreement or approved by the Required
Holders. Notwithstanding the foregoing, with respect to Liens granted by the Company or any Subsidiary Guarantor on the
Equity Interests of any Foreign Subsidiary, such Lien shall not exceed 65% (or such greater percentage that, due to a change
in an applicable law after the date hereof, (1) could not reasonably be expected to cause the undistributed earnings of such
Foreign Subsidiary as determined for U.S. federal income tax purposes to be treated as a deemed dividend to such Foreign
Subsidiary's U.S. parent and (2) could not reasonably be expected to cause any material adverse tax consequences) of the
issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100%
of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2))
in each Foreign Subsidiary directly owned by the Company or any Subsidiary Guarantor. Notwithstanding the foregoing, at
any time after a Default or Event of Default has occurred or if the Required Holders determine that the Company will not
incur a material tax liability as result of such greater pledge, the Company shall, upon the request of the Required Holders,
have the balance of the Equity Interests of its Foreign Subsidiaries pledged to the Collateral Agent to secure, subject to the
Intercreditor Agreement, the Secured Obligations.
(ii) Mortgages granting a Lien on all present and future real property of the Company and of each Subsidiary
Guarantor to the extent such Liens are required by or on behalf of any holder of the Notes, any holder of the Notes (as
defined in the 2006 Note Purchase Agreement), the Bank Agent, or any Bank.
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(iii) Any other property or assets of the Company and its Domestic Subsidiaries required to be included in the
“Collateral” under the Credit Agreement, the 2006 Note Purchase Agreement.
(b) On or before the Second Amendment Effective Date (or April 30, 2009 in the case of Collateral Documents relating
to the Collateral described in Section 9.9(a)(ii) or such later date agreed to by the Required Holders, provided that the Company shall
use commercially reasonable efforts to complete such Collateral Documents as soon as practical), the Company shall cause all
Collateral Documents as reasonably requested by the Required Holders to be, in each case duly executed and delivered on behalf of
the Company and the Subsidiary Guarantors, as the case may be, granting to the Collateral Agent for the benefit of the Secured
Parties the support specified in Section 9.9 of this Agreement, together with: (u) such resolutions, certificates and opinions of
counsel as reasonably requested by the Required Holders; (v) the recordation, filing and other action (including payment of any
applicable taxes or fees) in such jurisdictions as the Required Holders may deem necessary or appropriate with respect to the
Collateral Documents, including the filing of financing statements, Mortgages and other filings which the Required Holders may deem
necessary or appropriate to create, preserve or perfect the liens, security interests and other rights intended to be granted to the
Collateral Agent thereunder, together with Uniform Commercial Code record searches and other Lien searches in such offices as the
Required Holders may request; (w) evidence that the casualty and other insurance required pursuant to the Transaction Documents
is in full force and effect; (x) originals of all instruments and certificates representing all of the outstanding shares of capital stock and
other securities and instruments to be pledged thereunder, with appropriate stock powers, endorsements and other powers duly
executed in blank; (y) such other evidence that Liens creating a first priority security interest, subject to the Intercreditor Agreement,
in the Collateral shall have been created and perfected as requested by the Required Holders; and (z) the satisfaction of all other
conditions in connection with the Collateral and the Collateral Documents as reasonably requested by any holder, including without
limitation all opinions of counsel, title work, surveys, environmental reports and other documents and requirements requested by any
holder of the Notes.
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(c) The Company agrees that it will promptly notify the holders of the Notes of the formation, acquisition or existence
of any Domestic Subsidiary that has not executed a Subsidiary Guaranty and Collateral Documents or the acquisition of any assets
on which a Lien is required to be granted and that is not covered by existing Collateral Documents. The Company agrees that it will
promptly execute and deliver, and cause each Subsidiary Guarantor to execute and deliver, promptly upon the request of the
Collateral Agent or the Required Holders, such additional Collateral Documents, Subsidiary Guaranties and other agreements,
documents and instruments, each in form and substance satisfactory to the Required Holders, sufficient to grant the Subsidiary
Guaranties and Liens contemplated by this Agreement and the Collateral Documents. The Company shall deliver, and cause each
Subsidiary Guarantor to deliver, to the Collateral Agent all original instruments payable to it with any endorsements thereto required
by the Required Holders. Additionally, the Company shall execute and deliver, and cause each Subsidiary Guarantor to execute and
deliver, promptly upon the request of the Collateral Agent or the Required Holders, such certificates, legal opinions, lien searches,
organizational and other charter documents, resolutions and other documents and agreements as the Collateral Agent or the Required
Holders may reasonably request in connection therewith. The Company shall use its best efforts to cause each lessor of real
property to it or any Subsidiary where any material Collateral is located to execute and deliver to the Collateral Agent an agreement in
form and substance reasonably acceptable to the Required Holders duly executed on behalf of such lessor waiving any distraint, lien
and similar rights with respect to any property subject to the Collateral Documents and agreeing to permit the Collateral Agent to
enter such premises in connection therewith. The Company shall execute and deliver, and cause each Subsidiary Guarantor to
execute and deliver, promptly upon the reasonable request of the Required Holders, such agreements and instruments evidencing
any intercompany loans or other advances among the Company and its Subsidiaries, or any of them, and all such intercompany loans
or other advances shall be, and are hereby made, subordinate and junior to the Secured Obligations and no payments may be made
on such intercompany loans or other advances upon and during the continuance of a Default or Event of Default unless otherwise
agreed to by the Required Holders.
Section 9.10 General Indemnity. The Company will at all times protect, indemnify and save harmless the Collateral
Agent, each holder and each of their respective officers, directors, employees, agents and representatives (referred too herein as the
“Indemnitees”) from and against all liabilities, obligations, claims, judgments, damages, penalties, fines, assessments, losses,
indemnities, contributions, causes of action, costs and expenses (including, without limitation, the fees and expenses of attorneys,
auditors and consultants) imposed upon or incurred by or asserted against the Indemnitees on account of (a) any failure of the
Company or any Subsidiary or any employee or agent of any thereof to comply with any of the terms, covenants, obligations or
prohibitions of this Agreement or any other Transaction Document, (b) any breach of any representation or warranty of the Company
or any Subsidiary set forth in this Agreement or in any other Transaction Document or any certificate delivered by the Company or
any Subsidiary pursuant hereto or thereto, or any claim that any statement, representation or warranty of the Company or any
Subsidiary in any of the foregoing documents contains or contained any untrue or misleading statement of material fact or omits or
omitted to state any material facts necessary to make the statements made therein not misleading in light of the circumstances under
which they were made, (c) any action, suit, claim, proceeding or investigation of a judicial, legislative, administrative or regulatory
nature arising from or in connection with the Collateral, including without limitation (1) the presence, escape, seepage, leakage,
discharge, emission, release, removal or threatened release, or disposal of any Hazardous Materials and (2) any violation of any law,
ordinance or governmental rules or regulations including without limitation any Environmental Law, (d) any suit, action,
administrative proceeding, enforcement action, or governmental or private action of any kind whatsoever commenced against the
Company, any Subsidiary or any Indemnitee which might adversely affect the validity or enforceability of this Agreement or any
other Transaction Document or the performance by the Company or any Subsidiary of any of its obligations hereunder or thereunder
or (e) any loss or damage to property or any injury to or death of any Person that may be occasioned by any cause whatsoever
pertaining to any Collateral or the use thereof, and shall further indemnify and save harmless the Indemnitees from and against (1) all
amounts paid in settlement of any litigation commenced or reasonably threatened against any Indemnitee that falls within the scope
of clauses (a) through (e) above, and (2) all expenses reasonably incurred in the investigation of, preparation for or defense of any
litigation, proceeding or investigation of any nature whatsoever that falls within the scope of clauses (a) through (e) above,
commenced or reasonably threatened against the Company, any Subsidiary or any Indemnitee.
-9-
Section 9.11. Most Favored Lender Status. If the Company or any Subsidiary enters into, assumes or otherwise
becomes bound or obligated under, or amends, restates or otherwise modifies, any agreement creating or evidencing any Debt of the
Company or any Subsidiary, or any refinancing or extension of all or any portion thereof, to include one or more Additional
Covenants or Additional Defaults, the terms of this Agreement shall, without any further action on the part of the Company, any
Subsidiary or any of the holders of the Notes, be deemed to be amended automatically and immediately to include each Additional
Covenant and each Additional Default contained in such agreement. The Company further covenants to promptly execute and
deliver at its expense (including the fees and expenses of counsel for the holders of the Notes) an amendment to this Agreement in
form and substance satisfactory to the Required Holder(s) evidencing the amendment of this Agreement to include such Additional
Covenants and Additional Defaults, provided that the execution and delivery of such amendment shall not be a precondition to the
effectiveness of such amendment as provided for in this Section 9.11, but shall merely be for the convenience of the parties hereto.
Section 9.12 Proceeds of certain Asset Sales; Casualties; and Issuance of Equity Interests. The Company shall pay or
cause to paid (1) 100% of the Asset Sale Net Proceeds and (2) 100% of the Equity Issuance Net Proceeds as a prepayment of the
principal amount of the Advances (as defined in the Credit Agreement as in effect on the Second Amendment Effective Date) in
excess of $94,000,000 (up to the amount of such excess) and, if any Asset Sale Net Proceeds or Equity Issuance Net Proceeds remain
thereafter, shall pay such remaining amounts to the Collateral Agent, to be held by the Collateral Agent in accordance with Section
4.2(b) of the Intercreditor Agreement as in effect on the date hereof (and giving effect to any amendment thereof only if agreed to by
the Company) and applied to the Secured Obligations (as defined in the Intercreditor Agreement as in effect on the date hereof, and
giving effect to any amendment thereof only if agreed to by the Company) in accordance with the Intercreditor Agreement as in effect
on the date hereof, and giving effect to any amendment thereof only if agreed to by the Company.
As used herein, “Asset Sale Net Proceeds” means 100% of all of the Net Cash Proceeds from any sale, Event of Loss, license, lease
or other disposition or transfer of any assets (including without limitation any Sale and Leaseback Transaction and any sale permitted
under Section 10.5(b), but excluding the Excluded Sales described below) in excess of $25,000,000 in aggregate amount after the
Second Amendment Effective Date, each payable and effective upon receipt of such Net Cash Proceeds. As used herein, “Excluded
Sales” means (i) the sale of inventory in the ordinary course of business, (ii) the sale of obsolete or worn-out property in the ordinary
course of business not to exceed $1,000,000 in the aggregate after the Second Amendment Effective Date, (iii) sales of notes
receivable or accounts receivable to the extent permitted under Section 10.23; (iv) revenues from licenses in existence on the Second
Amendment Effective Date, including all renewals, extensions and modifications thereof and substitutions therefor, or (v) if the
Company shall deliver to the holders a certificate of a Responsible Officer to the effect that the Company or its applicable Subsidiary
receiving the Net Cash Proceeds from an Event of Loss intends to apply the Net Cash Proceeds from such event (or a portion thereof
specified in such certificate), within 180 days after receipt of such Net Cash Proceeds, to acquire (or replace or rebuild) real property
or equipment to be used in the business of the Company or its Subsidiaries, and certifying that no Default or Event of Default has
occurred and is continuing, then such Net Cash Proceeds specified in such certificate shall be excluded from the determination
required under the first sentence of this Section 9.12, provided that to the extent of any such Net Cash Proceeds therefrom that have
not been so applied by the end of such 180 day period, such Net Cash Proceeds will not be so excluded, and will be included in the
calculation contained in the first sentence of this Section 9.12.
-10-
As used herein, “Equity Issuance Net Proceeds” means 50% of all of the Net Cash Proceeds from issuance of any Equity Interests
by the Company.”
1.19 Section 10 of the Note Purchase Agreement is amended and restated in its entirety as set forth on Annex I attached hereto.
1.20 Section 11 of the Note Purchase Agreement is amended by replacing references to “$20,000,000” in clauses (f) and (i)
thereof with “$10,000,000”.
1.21 Section 11 of the Note Purchase Agreement is further amended by amending and restating clauses (c) and (e) thereof as
follows:
“(c) the Company defaults in the performance of or compliance with any term contained in Section 7.1(d), Section 9.8,
Section 9.12, Sections 10.1 through Section 10.8, Sections 10.11 through 10.17 or Section 10.23; or
***
(e) any representation or warranty made in writing by or on behalf of the Company or any Subsidiary Guarantor or by
any officer of the Company or any Subsidiary Guarantor in this Agreement, in the Subsidiary Guaranty, in any other Transaction
Document or in any writing furnished in connection with the transactions contemplated hereby proves to have been false or incorrect
in any material respect on the date as of which made; or”
1.22 Section 11 of the Note Purchase Agreement is further amended by replacing the period at the end of clause (k) thereof with
“; or” and adding new clause (l) thereto as follows:
“(l) any Collateral Document shall for any reason (other than solely as the result of an act or omission of a holder) fail
to create a valid and perfected first priority security interest, subject to the Intercreditor Agreement, in any Collateral purported to be
covered thereby, except as permitted by the terms of this Agreement or any Collateral Document, or, due to any action by the
Company or any of its Subsidiaries not consented to by the Required Holders, any Collateral Document shall fail to remain in full
force or effect or any action shall be taken by the Company or any of its Subsidiaries not consented to by the Required Holders to
discontinue or to assert the invalidity or unenforceability of any Collateral Document, or the Company or any Guarantor shall fail to
comply with any of the terms or provisions of any Collateral Document if the failure continues beyond any period of grace provided
for in the applicable Collateral Document.”
-11-
1.23 Section 12.2 of the Note Purchase Agreement is amended by replacing the reference to “or in any Note” therein with “, in
any Note or in any other Transaction Document”.
1.24 Section 15 of the Note Purchase Agreement is hereby amended and restated in its entirety:
“Section 15. Expenses, Etc.
Section 15.1 Transaction Expenses. Whether or not the transactions contemplated hereby are consummated, the
Company will pay all costs and expenses (including reasonable attorneys’ fees of a special counsel and, if reasonably required by the
Required Holders, local or other counsel) incurred by the Purchasers and each other holder of a Note in connection with such
transactions and in connection with any amendments, waivers or consents under or in respect of this Agreement, the Notes, the
Subsidiary Guaranty, the Intercreditor Agreement or any other Transaction Document (whether or not such amendment, waiver or
consent becomes effective), including, without limitation: (a) the costs and expenses incurred in enforcing or defending (or
determining whether or how to enforce or defend or cause the Collateral Agent to enforce or defend) any rights under this
Agreement, the Notes, the Subsidiary Guaranty, the Intercreditor Agreement or any other Transaction Document (including, without
limitation, to protect, collect, lease, sell, take possession of, release or liquidate any of the Collateral) or in responding to any
subpoena or other legal process or informal investigative demand issued in connection with this Agreement, the Notes, the
Subsidiary Guaranty, the Intercreditor Agreement or any other Transaction Document, or by reason of being a holder of any Note, (b)
the costs and expenses, including financial advisors’ fees, incurred in connection with the insolvency or bankruptcy of the Company
or any Subsidiary or in connection with any work-out or restructuring of the transactions contemplated hereby and by the Notes and
the Subsidiary Guaranty, (c) all costs and expenses, including without limitation reasonable attorneys’ fees, preparing, recording and
filing all financing statements, instruments and other documents to create, perfect and fully preserve and protect the Liens granted in
the Collateral Documents and the rights of the holders or of the Collateral Agent for the benefit of the holders, (d) all costs and
expenses of CT Corporation incurred pursuant to Section 22.8 hereof, (e) the fees, costs and expenses of the Collateral Agent and (f)
the costs and expenses incurred in connection with the initial filing of this Agreement and all related documents and financial
information with the SVO of the NAIC, provided, that such costs and expenses under this clause (f) shall not exceed $3,000. The
Company will pay, and will save each Purchaser and each other holder of a Note harmless from, all claims in respect of any fees, costs
or expenses, if any, of brokers and finders (other than those, if any, retained by a Purchaser or other holder in connection with its
purchase of the Notes).
-12-
Section 15.2. Company Financial Advisor. Upon the earliest to occur of (i) Consolidated Adjusted EBITDA,
determined as of the end of the fiscal quarter ending March 31, 2009 and calculated for the fiscal quarter then ending, being less than
- -$12,000,000, (ii) Consolidated Adjusted EBITDA, determined as of the end of the fiscal quarter ending June 30, 2009 and calculated
for the fiscal quarter then ending, being less than $5,000,000, (iii) Consolidated Adjusted EBITDA, determined as of the end of the
fiscal quarter ending September 30, 2009 and calculated for the fiscal quarter then ending, being less than $8,000,000, (iv)
Consolidated Adjusted EBITDA, determined as of the end of any fiscal quarter thereafter and calculated for the fiscal quarter then
ending, being less than $15,000,000, or (v) the occurrence of any Event of Default, then, at the request of the Required Holders, the
Company agrees to promptly engage at the Company’s sole cost a financial consultant selected by the Company and reasonably
acceptable to the Required Holders (the “Company Financial Advisor”) with a scope of authority, and engaged pursuant to terms
and conditions, in each case reasonably satisfactory to the Company and the Required Holders. The Company shall provide the
Company Financial Advisor with full onsite access to its books and records and the opportunity to discuss the financial condition,
performance, financial statements and other matters regarding the Company and its Subsidiaries with their respective officers,
managers, other employees, directors, independent accountants and financial advisors to permit the Company Financial Advisor to
fully investigate any matter that arises during its review of the financial and other information of the Company and its
Subsidiaries. The Company Financial Advisor shall fully share its work product with the Company and the holders.
Section 15.3. Noteholder Financial Advisor. The Company agrees that the holders or their counsel may hire one
consulting firm chosen by the Required Holders to act as financial advisor (the “Noteholder Financial Advisor”) to counsel for the
holders and the Company agrees to pay the fees and expenses of the Noteholder Financial Advisor, provided that such fees shall be
market reasonable (as reasonably determined by the Required Holders) and expenses shall be incurred on a basis consistent with the
Company’s current travel and entertainment policy in effect on the Second Amendment Effective Date and disclosed to the
holders. The Company and its Subsidiaries shall provide the Noteholder Financial Advisor with reasonable onsite access to their
books and records during normal business hours and the opportunity to discuss the financial condition, performance, financial
statements and other matters regarding the Company and its Subsidiaries with their respective officers, managers, other employees,
directors, independent accountants and financial advisors to permit the Noteholder Financial Advisor to fully investigate any matter
that arises during its review of the financial and other information of the Company and its Subsidiaries. The Noteholder Financial
Advisor shall have no duty to share its work product with, or accept instructions from, the Company, any Subsidiary or any Person
working on their behalf. If a Company Financial Advisor has been retained and the holders thereafter retain a Noteholder Financial
Advisor, the holders agree that they will use reasonable efforts to limit any duplicative efforts between the Company Financial
Advisor and the Noteholder Financial Advisor, as determined by the Required Holders.
-13-
Section 15.4 Survival. The payment obligations of the Company under this Section 15 will survive the payment or
transfer of any Note, the enforcement, amendment or waiver of any provision of this Agreement, the Notes, the Subsidiary Guaranty ,
the Intercreditor Agreement or any other Transaction Document, and the termination of this Agreement.”
1.25 Section 22.3 of the Note Purchase Agreement is amended by adding the following sentence to the end thereof:
“Notwithstanding the foregoing or any other provision of this Agreement providing for any amount to be determined in accordance
with GAAP, for all purposes of this Agreement the outstanding principal amount of any Debt of the Company or any Subsidiary of
the type described in clause (a), (b), (c), (e) or (g) of the definition of “Debt” shall be equal to the actual outstanding principal amount
thereof, except with respect to letters of credit or instruments serving a similar function, the actual face amount thereof, irrespective of
the amount that might otherwise be accounted for under GAAP as the amount of the liability of the Company or any Subsidiary with
respect thereto, and any determination of the net income (or net loss), equity or assets of the Company shall not take into account
any effect of marking any such outstanding Debt of the Company or any Subsidiary to market value.”
1.26 Schedule B to the Note Purchase Agreement is amended and restated in its entirety as set forth on Annex II attached
hereto.
1.27 Exhibit 1 to the Note Purchase Agreement is amended and restated in its entirety as set forth on Exhibit 1 hereto.
1.28 Exhibit 2.2(a) to the Note Purchase Agreement is amended and restated in its entirety as set forth on Exhibits 2.2(a) hereto.
1.29 Schedule 5.15 to the Note Purchase Agreement is amended and restated in its entirety as set forth on Schedule 5.15 hereto.
1.30 New Schedules 10.2-A, 10.2-B 10.14, 10.15 and 10.21 are added to the Note Purchase Agreement in the form of Schedules
10.2-A, 10.2-B, 10.14, 10.15 and 10.21 attached hereto.
SECTION 2. WAIVER.
Effective on the Effective Date, the Noteholders waive the Existing Events of Default. The foregoing waiver shall be limited precisely
as written and shall relate solely to the Note Purchase Agreement in the manner and to the extent described herein, and nothing in this Second
Amendment shall be deemed to (a) constitute a consent to or waiver of any Defaults or Events of Defaults existing under the Note Purchase
Agreement or any other Transaction Document (other than the Existing Events of Default) nor of compliance by the Company or any
Subsidiary with respect to or any modification of any other term, provision or condition of the Note Purchase Agreement or any other
Transaction Document, or (b) prejudice any right or remedy that the any holder may now have (after giving effect to the foregoing waiver) or
may have in the future under or in connection with the Note Purchase Agreement or any other Transaction Document.
-14-
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
To induce the Noteholders to execute and deliver this Second Amendment (which representations shall survive the execution and
delivery of this Second Amendment), the Company represents and warrants to the Noteholders that:
(a) each of this Second Amendment, the amended and restated Notes, the Collateral Documents and each of the other
Transaction Documents has been duly authorized, executed and delivered by it and this Second Amendment constitutes the legal,
valid and binding obligation, contract and agreement of the Company enforceable against it in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or
limiting creditors’ rights generally;
(b) each of the Note Purchase Agreement, as amended by this Second Amendment, the amended and restated Notes,
the Collateral Documents and each of the other Transaction Documents constitutes the legal, valid and binding obligations, contracts
and agreements of the Company enforceable against it in accordance with its terms, except as enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or limiting creditors’ rights
generally;
(c) the execution, delivery and performance by the Company of this Second Amendment, the amended and restated
Notes, the Collateral Documents and each of the other Transaction Documents (i) has been duly authorized by all requisite corporate
action and, if required, shareholder action, (ii) does not require the consent or approval of any governmental or regulatory body or
agency, and (iii) will not (A)(1) violate any provision of law, statute, rule or regulation or its certificate of incorporation or bylaws, (2)
any order of any court or any rule, regulation or order of any other agency or government binding upon it, or (3) any provision of any
indenture, agreement or other instrument to which it is a party or by which its properties or assets are or may be bound, including
without limitation the Credit Agreement or 2006 Note Purchase Agreement, or (B) result in a breach or constitute (alone or with due
notice or lapse of time or both) a default under, or require any consent or approval under, any indenture, agreement or other
instrument referred to in clause (iii)(A)(3) of this Section 3(c);
(d) after giving effect to the waiver and amendments to the Note Purchase Agreement contained in this Second
Amendment, all the representations and warranties contained in Section 5 of the Note Purchase Agreement and in the other
Transaction Documents are true and correct in all material respects with the same force and effect as if made by the Company and the
Subsidiary Guarantors on and as of the date hereof;
-15-
(e) after giving effect to the waiver and amendments to the Note Purchase Agreement contained in this Second
Amendment, no Default or Event of Default shall be in existence;
(f) The corporate existence of each of the Airedale Entities has been dissolved and terminated; and
(g) neither the Company nor any of its Subsidiaries has paid or agreed to pay, and neither the Company nor any of its
Subsidiaries will pay or agree to pay, any fees or other consideration for the amendments described in Section 4(c) below except as
set forth in or required pursuant to such amendments.
SECTION 4. CONDITIONS TO EFFECTIVENESS.
This Second Amendment shall not become effective until, and shall become effective on the date (the “Effective Date”) when, each
and every one of the following conditions shall have been satisfied:
(a) Each of the following shall have been delivered to each Noteholder, each duly executed and delivered by the party
or parties thereto, in form and substance satisfactory to the Noteholders and dated the Effective Date unless otherwise indicated, and
on the Effective Date in full force and effect with no event having occurred and being then continuing that would constitute a default
thereunder or constitute or provide the basis for the termination thereof:
(i) executed counterparts of this Second Amendment, duly executed by the Company and the holders, shall
have been delivered to the Noteholders;
(ii) the amended and restated Notes, in the form of Exhibit 1 attached hereto;
(iii) the Intercreditor Agreement, duly executed by the Collateral Agent, the Bank Agent, the Noteholders and
the holders of the notes outstanding under the 2006 Note Purchase Agreement;
(iv) the Subsidiary Guaranty, in the form attached hereto as Exhibit 2.2(a), duly executed by each Subsidiary
Guarantor;
(v) the Security Agreement, duly executed by the Company, each Subsidiary Guarantor and the Collateral
Agent;
(b) each Noteholder shall have received payment of the amendment fee due such holder as provided in Section 5.1 and
counsel to the Noteholders shall have received payment of the fees and expenses due such counsel as provided in Section 5.2
hereof;
(c) the Noteholders shall have received evidence satisfactory to them that a waiver and amendment to the Credit
Agreement and the 2006 Note Purchase Agreement, each in form and substance satisfactory to the Noteholders, shall have been duly
executed and delivered by the Company and the required other parties and shall be in full force and effect;
-16-
(d) the Company shall have delivered a certificate of an Senior Financial Officer (i) attaching a copy of the January 2009
Financial Forecasts, and (ii) certifying that the January 2009 Financial Forecasts have been prepared by the Company on the basis of
assumptions which the Company reasonably believes were reasonable when made in light of the historical performance of the
Company and its Subsidiaries and reasonably foreseeable business conditions, and that no facts are known to the Company at the
date thereof which, if reflected in the January 2009 Financial Forecasts, would result in a material adverse change in the assets,
liabilities, results of operations or cash flows reflected therein;
(e) the representations and warranties of the Company set forth in Section 3 hereof shall be true and correct on the
date of the effectiveness of this Second Amendment;
(f) the Noteholders shall have received lien searches in respect of the Company and its Subsidiaries in form and
substance satisfactory to the Noteholders;
(g) the Noteholders shall have received copies of all chattel paper, instruments and documents of title in which the
Collateral Agent has been granted a security interest and are then required under the Collateral Documents to be delivered to the
Collateral Agent, together with the related transfer documents executed in blank, in each case received by the Collateral Agent, all
Uniform Commercial Code financing statements perfecting the security interests and liens granted to the Collateral Agent, duly filed
in all offices necessary to perfect such security interests and liens or deemed by such Purchaser to be advisable, and all such other
certificates, documents, agreements, recording and filings necessary to establish a valid and perfected first priority lien and security
interest (subject only to Liens described in Section 10.4 of the Note Purchase Agreement) in favor of the Collateral Agent in all of the
Collateral or deemed by the Required Holders or the Collateral Agent to be advisable;
(h) the Company shall have delivered from insurance carriers acceptable to the Noteholders certificates of insurance in
such forms and amounts acceptable to the Noteholders evidencing insurance required to be maintained under Section 9.2 of the Note
Purchase Agreement or under any of the Collateral Documents under insurance policies with additional insured and loss payable
clauses in favor of the Collateral Agent and acceptable to the Noteholders;
(i) the Noteholders shall have received a copy of the resolutions of the Board of Directors of the Company and each
Subsidiary Guarantor authorizing the execution, delivery and performance by the Company or such Subsidiary Guarantor of this
Second Amendment, the amended and restated Notes, the Collateral Documents and the Subsidiary Guaranty, as applicable, to which
it is a party, certified by its Secretary or an Assistant Secretary;
(j) the Noteholders shall have received an opinion of counsel to the Company and the Subsidiary Guarantors in form
and substance satisfactory to the Noteholders;
-17-
(k) the Company shall have provided all other due diligence materials requested by the Noteholders; and
(l) all corporate and other proceedings taken or to be taken in connection with the transactions contemplated hereby
and all documents incident thereto shall be satisfactory in substance and form to the Noteholders, and the Noteholders shall have
received all such counterpart originals or certified or other copies of such documents as it may reasonably request.
SECTION 5. AMENDMENT FEE; PAYMENT OF NOTEHOLDERS’ COUNSEL FEES AND EXPENSES.
5.1 In consideration of the execution and delivery by the Noteholders of this Second Amendment, the Company agrees to pay
to each holder of a Note on or before the Effective Date an amendment fee in an amount equal to 0.75% of the outstanding principal amount of
the Notes held by such holder.
5.2 The Company agrees to pay upon demand, the reasonable fees and expenses of Schiff Hardin LLP, counsel to the
Noteholders, in connection with the negotiation, preparation, approval, execution and delivery of this Second Amendment.
SECTION 6. MISCELLANEOUS.
6.1 This Second Amendment shall be construed in connection with and as part of the Note Purchase Agreement, and except as
modified and expressly amended by this Second Amendment, all terms, conditions and covenants contained in the Note Purchase Agreement
and the Notes are hereby ratified and shall be and remain in full force and effect. The Company and the Subsidiary Guarantors acknowledge
and agree that no holder is under any duty or obligation of any kind or nature whatsoever to grant the Company any additional amendments
or waivers of any type, whether or not under similar circumstances, and no course of dealing or course of performance shall be deemed to have
occurred as a result of the amendments herein.
6.2 Any and all notices, requests, certificates and other instruments executed and delivered after the execution and delivery of
this Second Amendment may refer to the Note Purchase Agreement without making specific reference to this Second Amendment but
nevertheless all such references shall include this Second Amendment unless the context otherwise requires.
-18-
6.3 The Company represents and warrants that it is not aware of any claims or causes of action against any Noteholder or any
of their respective affiliates, successors or assigns, and that it has no defenses, offsets or counterclaims with respect to the Note Purchase
Agreement, the Notes or any of the other Transaction Documents. Notwithstanding this representation and as further consideration for the
agreements and understandings herein, the Company, on behalf of itself and its Subsidiaries, employees, agents, executors, heirs, successors
and assigns (the "Releasing Parties"), hereby releases each Noteholder and their respective predecessors, officers, directors, employees,
agents, attorneys, affiliates, subsidiaries, successors and assigns (the "Released Parties"), from any liability, claim, right or cause of action
which now exists or hereafter arises as a result of acts, omissions or events occurring on or prior to the date hereof, whether known or
unknown, including but not limited to claims arising from or in any way related to this Second Amendment, the Note Purchase Agreement and
the other Transaction Documents, all transactions relating to this Second Amendment, the Note Purchase Agreement or any of the other
Transaction Documents or the business relationship among, or any other transactions or dealings among the Releasing Parties or any of them
and the Released Parties or any of them.
6.4 The Company acknowledges and agrees that each Noteholder has fully performed all of its obligations under the Note
Purchase Agreement and the other Transaction Documents, and that all actions taken by such Noteholder are reasonable and appropriate
under the circumstances and within their rights under the Note Purchase Agreement and the other Transaction Documents. The actions of
each Noteholder taken pursuant to this Second Amendment and the documents referred to herein are in furtherance of their efforts as secured
lenders seeking to collect the obligations owed to them. Nothing contained in this Second Amendment shall be deemed to create a
partnership, joint venture or agency relationship of any nature between the Company, its Subsidiaries, and the Noteholders. The Company, its
Subsidiaries, and the Noteholders agree that notwithstanding the provisions of this Second Amendment, each of the Company and its
Subsidiaries remain in control of their respective business operations and determine the business plans (including employment, management
and operating directions) for its business.
6.5 The descriptive headings of the various Sections or parts of this Second Amendment are for convenience only and shall not
affect the meaning or construction of any of the provisions hereof.
6.6 This Second Amendment shall be governed by and construed in accordance with New York law.
6.7 The execution hereof by you shall constitute a contract between us for the uses and purposes hereinabove set forth, and
this Second Amendment may be executed in any number of counterparts, each executed counterpart constituting an original, but all together
only one agreement.
*****
-19-

Name: Bradley C. Richardson
Title: Executive Vice President – Corporate Strategy and Chief
Financial Officer
[Signature Page - Second Amendment to 2005 Note Purchase Agreement]

ACCEPTED AND AGREED TO:
AMERICAN FAMILY LIFE INSURANCE COMPANY
By: /s/ Phillip Hannifan

Name: Phillip Hannifan
Title: Investment Director

MODERN WOODMEN OF AMERICA
By: /s/ Douglas A. Pannier

Name: Douglas A. Pannier
Title: Supervisor - Private Placements

THE PRUDENTIAL LIFE INSURANCE COMPANY LTD.
By: Prudential Investment Management (Japan), Inc., as Investment

Manager
By: Prudential Investment Management, Inc., as Sub-Adviser

PRUDENTIAL RETIREMENT INSURANCE AND ANNUITY

COMPANY
By: Prudential Investment Management, Inc., as investment

manager

MTL INSURANCE COMPANY
By: Prudential Private Placement Investors, L.P. (as Investment

Advisor)
By: Prudential Private Placement Investors, Inc. (as its General

Partner)

THE PRUDENTIAL INSURANCE COMPANY OF AMERICA


STANDARD INSURANCE COMPANY
By: /s/ Julie Grandstaff

Name: Julie Grandstaff
Title: Vice President & Managing Director

STATE FARM LIFE AND ACCIDENT ASSURANCE COMPANY
By: /s/ Julie Hoyer

Name: Julie Hoyer
Title: Senior Investment Officer
By: /s/ Jeffrey T. Attwood

Name: Jeffrey T. Attwood
Title: Investment Officer
STATE FARM LIFE INSURANCE COMPANY
By: /s/ Julie Hoyer

Name: Julie Hoyer
Title: Senior Investment Officer
By: /s/ Jeffrey T. Attwood

Name: Jeffrey T. Attwood
Title: Investment Officer

STATE OF WISCONSIN INVESTMENT BOARD
By: /s/ Christopher P. Prestigiacomo

Name: Christopher P. Prestigiacomo
Title: Portfolio Manager

WOODMEN OF THE WORLD LIFE INSURANCE SOCIETY
By: /s/ James J. Stolze

Name: James J. Stolze
Title: Assistant Vice President

[FORM OF NOTE]
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND, UNLESS SO REGISTERED, MAY
NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EXEMPTION FROM REGISTRATION
UNDER SAID ACT OR IF SAID ACT DOES NOT APPLY.
Amended and Restated Secured Senior Note due September 29, 2015
No. [__________] [Date]

$[_____________] PPN 607828 D*8
FOR VALUE RECEIVED, the undersigned, Modine Manufacturing Company (herein called the “Company”), a corporation organized
and existing under the laws of the State of Wisconsin, hereby promises to pay to [_______________________], or registered assigns, the
principal sum of [__________________] DOLLARS (or so much thereof as shall not have been prepaid) on September 29, 2015, with interest
(computed on the basis of a 360-day year of twelve 30-day months) on the unpaid balance hereof (a) at the Applicable Rate per annum from
the date hereof, payable quarterly, on the twenty-ninth day of March, June, September and December in each year, commencing with the
March 29, June 29, September 29 or December 29 next succeeding the date hereof, until the principal hereof shall have become due and
payable, and (b) to the extent permitted by law, on any overdue payment of interest and, during the continuance of an Event of Default, on
such unpaid balance and on any overdue payment of any Make-Whole Amount, at a rate per annum from time to time equal to the greater of (i)
the Applicable Rate plus 2.00% or (ii) 2.0% over the rate of interest publicly announced by JPMorgan Chase Bank, N.A. from time to time in
Chicago, Illinois as its “base” or “prime” rate payable quarterly as aforesaid (or, at the option of the registered holder hereof, on demand).
This Note is one of a series of Senior Notes (herein called the “Notes”) issued pursuant to the Note Purchase Agreement, dated as of
September 29, 2005 (as from time to time amended, the “Note Purchase Agreement”), between the Company and the respective Purchasers
named therein and is entitled to the benefits thereof.Each holder of this Note will be deemed, by its acceptance hereof, to have (i) agreed to the
confidentiality provisions set forth in Section 20 of the Note Purchase Agreement and (ii) made the representation set forth in Section 6.3 of
the Note Purchase Agreement. Unless otherwise indicated, capitalized terms used in this Note shall have the respective meanings ascribed to
such terms in the Note Purchase Agreement.
Exhibit 1
This Note is a registered Note and, as provided in the Note Purchase Agreement, upon surrender of this Note for registration of
transfer, duly endorsed, or accompanied by a written instrument of transfer duly executed, by the registered holder hereof or such holder’s
attorney duly authorized in writing, a new Note for a like principal amount will be issued to, and registered in the name of, the transferee. Prior
to due presentment for registration of transfer, the Company may treat the person in whose name this Note is registered as the owner hereof
for the purpose of receiving payment and for all other purposes, and the Company will not be affected by any notice to the contrary.
Agreement. This Note is also subject to optional prepayment, in whole or from time to time in part, at the times and on the terms specified in
the Note Purchase Agreement, but not otherwise.
This Note is secured by, and entitled to the benefits of, the Collateral Documents and is guaranteed pursuant to one or more
If an Event of Default occurs and is continuing, the principal of this Note may be declared or otherwise become due and payable in
the manner, at the price (including any applicable Make-Whole Amount) and with the effect provided in the Note Purchase Agreement.
This Note (i) merely re-evidences the indebtedness previously evidenced by the Company’s 4.91% Senior Note, due September 29,
2015, No. R-[_____] (the “Existing Note”), (ii) is given in exchange for, and not as payment of, the Existing Note, and (iii) is in no way intended
to constitute a novation of the Existing Note.
This Note shall be construed and enforced in accordance with, and the rights of the parties shall be governed by, the law of the State
of Illinois, excluding choice-of-law principles of the law of such State that would require application of the laws of a jurisdiction other than
such State.
E-1-2
By:
Name:
Title:
E-1-3
ANNEX I
SECTION 10. Negative Covenants.
The Company covenants that so long as any of the Notes are outstanding:
Section 10.1 Limitations on Consolidated Total Debt. The Company will not permit as of the last day of each fiscal quarter set
forth below the ratio of (a) Consolidated Total Debt minus the amount of any cash collateral provided for any of the Secured Obligations, to
(b) Consolidated Adjusted EBITDA for the four consecutive fiscal quarters then most recently ended, to exceed the ratios set forth opposite
such fiscal quarter:

Leverage Ratio
Section 10.2 Limitations on Debt. The Company will not, nor will it permit any Subsidiary to, create, incur or suffer to exist any
Debt, except:
(a) the Notes;
(b) the Notes (as defined in the 2006 Note Purchase Agreement);
(c) the Loans and the Reimbursement Obligations (each as defined in the Credit Agreement as in effect on the Second
Amendment Effective Date); provided that the aggregate principal amount of the Debt thereunder shall not at any time exceed
$175,000,000 less (i) an amount not to exceed $15,000,000 equal to the amount by which the dollar equivalent of the Euro amount of
any credit facility or facilities (based on commitments) entered into by the Modine Holding Consolidated Group exceeds $5,000,000,
(ii) the aggregate amount of prepayments of the principal amount of the Advances (as defined in the Credit Agreement as in effect on
the Second Amendment Effective Date) made pursuant to Section 9.12 and (iii) 38.524590163% of the aggregate amount of all
payments made to the Collateral Agent pursuant to Section 9.12.
(d) Debt of a Subsidiary owed to the Company or to a Wholly-Owned Subsidiary to the extent permitted under Section
10.15;
Annex I-1
(e) Debt described in Schedule 10.2-A not exceeding the commitment limits set forth therein, and extensions, renewals
and replacements of any such Debt to the extent such extensions, renewals and replacements do not increase the outstanding
principal amount thereof;
(f) Receivables Transaction Attributed Indebtedness;
(g) Debt, in addition to Debt permitted pursuant to subsections (a)-(f) above, of the Modine Holding Consolidated
Group in an aggregate principal amount not to exceed €35,000,000; and
(h) Debt, in addition to Debt permitted pursuant to subsections (a)-(g) above, in an aggregate amount at any time
outstanding not to exceed $10,000,000.
Notwithstanding anything herein to the contrary, the Company will not permit or suffer to exist itself or any of its Subsidiaries (other than
Modine Korea) to have any Guaranty, or any other liability or obligation of any kind, with respect to any Debt or any other obligation or
liability of Modine Korea, except such Guaranty or other liability or obligation existing on the Second Amendment Effective Date and
described on Schedule 10.2-B, but no increase in the amount thereof as reduced from time to time.
Section 10.3 Interest Expense Coverage Ratio. The Company will not permit, at the end of any fiscal quarter set forth below, the
ratio of (a) Consolidated Adjusted EBITDA for the period of the four consecutive fiscal quarters ended with such fiscal quarter, to (b)
Consolidated Interest Expense for the period of the four consecutive fiscal quarters ended with such fiscal quarter, to be less than the amount
set forth in the table below for such fiscal quarter:

Interest Expense
Coverage Ratio
Section 10.4 Limitation on Liens. The Company will not, and will not permit any of its Subsidiaries to, directly or indirectly
create, incur, assume or permit to exist (upon the happening of a contingency or otherwise) any Lien on or with respect to any property or
asset (including, without limitation, any document or instrument in respect of goods or accounts receivable) of the Company or any such
Subsidiary, whether now owned or held or hereafter acquired, or any income or profits therefrom or assign or otherwise convey any right to
receive income or profits, except:
(a) Liens for property taxes and assessments or governmental charges or levies and Liens securing claims or demands
of mechanics and materialmen; provided that payment thereof is not at the time required by Section 9.4;
Annex I-2
(b) Liens incidental to the conduct of business or the ownership of properties and assets (including Liens in
connection with worker’s compensation, unemployment insurance and other like laws, warehousemen’s and attorneys’ liens and
statutory landlords’ liens) and Liens to secure the performance of bids, tenders or trade contracts, or to secure statutory obligations,
surety or appeal bonds or other Lien of like general nature, in any such case incurred in the ordinary course of business and not in
connection with the borrowing of money; provided that (i) any such Lien secures only amounts not due and payable or the payment
of which is being contested in good faith by appropriate actions or proceedings and (ii) any such Lien does not materially impair the
business of the Company and its Subsidiaries taken as a whole or the value of the related property for the purposes of such
business;
(c) any attachment or judgment Lien, unless the judgment it secures shall not, within 60 days after the entry thereof,
have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 60 days after the
expiration of any such stay;
(d) Liens existing as of the date of Second Amendment Effective Date and described on Schedule 5.15 hereto;
(e) survey exceptions or minor encumbrances, leases or subleases granted to others, easements or reservations, or
rights of others for rights-of-way, utilities and other similar purposes, or zoning or other restrictions as to the use of real properties, (i)
which are necessary for the conduct of the activities of the Company and its Subsidiaries or which customarily exist on properties of
corporations engaged in similar activities and similarly situated and (ii) which do not in any event materially impair their use in the
operation of the business of the Company and its Subsidiaries taken as a whole or the value of such properties;
(f) Liens created or incurred after the date of the Closing given to secure the payment of the purchase price incurred in
connection with the acquisition or purchase or the cost of construction of property or of assets useful and intended to be used in
carrying on the business of the Company or a Subsidiary, including Liens existing on such property or assets at the time of
acquisition thereof or at the time of completion of construction, as the case may be, whether or not such existing Liens were given to
secure the payment of the acquisition or purchase price or cost of construction, as the case may be, of the property or assets to
which they attach; provided that (i) the Lien shall attach solely to the property or assets acquired, purchased or constructed, (ii) such
Lien shall have been created or incurred within 180 days of the date of acquisition or purchase or completion of construction, as the
case may be, (iii) at the time of acquisition or purchase or of completion of construction of such property or assets, the aggregate
amount remaining unpaid on all Debt secured by Liens on such property or assets, whether or not assumed by the Company or a
Subsidiary, shall not exceed an amount equal to 100% of the lesser of the total purchase price or fair market value at the time of
acquisition or purchase (as determined by a Responsible Officer of the Company) or the cost of construction on the date of
completion thereof, (iv) Debt secured by any such Lien shall have been created or incurred within the applicable limitations provided
in Sections 10.1 and 10.2, (v) at the time of creation, issuance, assumption, guarantee or incurrence of the Debt secured by such Lien
and after giving effect thereto and to the application of the proceeds thereof, no Event of Default would exist and (vi) the aggregate
outstanding amount of Debt secured by all such Liens shall not exceed $10,000,000 at any time;
Annex I-3
(g) Liens incurred in connection with any transfer of an interest in accounts or notes receivable or related assets as
part of a Qualified Receivables Transaction;
(h) Liens in favor of the Collateral Agent securing the Secured Obligations and subject to the Intercreditor Agreement;
(i) Liens in favor of the Bank Agent in (1) property of Foreign Subsidiaries to secure the obligations of Foreign
Subsidiaries that are borrowers under the Credit Agreement and (2) cash collateral accounts of the Company and its Domestic
Subsidiaries with deposits not in excess of $10,000,000 in the aggregate securing obligations of the Company and Domestic
Subsidiaries under Swap Contracts in existence prior to the Second Amendment Effective Date (but not extensions, renewals or
rollovers thereof);
(j) Liens on assets of the Modine Holding Consolidated Group securing Debt owing by the Modine Holding
Consolidated Group and permitted under Section 10.2(g); and
(k) in addition to Liens otherwise described in clauses (a) through (j) above, Liens securing an aggregate amount of
Debt outstanding at any time of no more than $10,000,000.
Section 10.5 Sale of Assets. The Company will not, and will not permit any Subsidiary to, sell, lease, transfer, abandon or
otherwise dispose of assets including, without limitation, pursuant to any Sale and Leaseback Transaction; provided that the foregoing
restrictions do not apply to:
(a) the sale, lease, transfer or other disposition of assets of a Subsidiary to the Company or a Wholly-owned
Subsidiary; or
(b) the following sale, lease or other dispositions of assets:
(ii) sale or other disposition of Modine Korea, whether by sale of Equity Interests or assets, and
other assets owned by Foreign Subsidiaries related to the Korean-based vehicular HVAC business; and
(iii) leases, sales or other dispositions of property that, together with all other property of the
Company and its Subsidiaries previously leased, sold or disposed of as permitted by this clause (iii) during the twelve-
month period ending with the month in which any such lease, sale or other disposition occurs, do not constitute a
Substantial Portion of the property of the Company and its Subsidiaries, provided that, after giving effect to any such lease,
sale or other disposition, no Default or Event of Default shall have occurred and be continuing; and
Annex I-4
(iv) any transfer of an interest in accounts or notes receivable and related assets permitted under
Section 10.23.
provided that, in the case of any lease, sale or other disposition under clauses (ii), (iii) or (iv) of this Section 10.5(b), the proceeds of
such any such lease, sale or other disposition are applied in accordance with Section 9.12.
Section 10.6 Mergers, Consolidations and Sales of Assets. The Company will not, and will not permit any Subsidiary to,
consolidate with or be a party to a merger with any other Person, or sell, lease or otherwise dispose of all or substantially all of its assets;
provided that any Subsidiary may sell substantially all its assets if such sale is permitted under Section 10.5(c) of this Agreement; and any
Subsidiary may merge or consolidate with or into the Company or any Wholly-owned Subsidiary so long as in (i) any merger or consolidation
involving the Company, the Company shall be the surviving or continuing corporation and (ii) in any merger or consolidation involving a
Wholly-owned Subsidiary (and not the Company), the Wholly-owned Subsidiary shall be the surviving or continuing corporation or limited
liability company.
Section 10.7 Transactions with Affiliates. The Company will not and will not permit any Subsidiary to enter into directly or
indirectly any transaction or group of related transactions (including without limitation the purchase, lease, sale or exchange of properties of
any kind or the rendering of any service) with any Affiliate (other than the Company or another Subsidiary), except (a) in the ordinary course
and pursuant to the reasonable requirements of the Company’s or such Subsidiary’s business and upon fair and reasonable terms no less
favorable to the Company or such Subsidiary than would be obtainable in a comparable arm’s-length transaction with a Person not an
Affiliate; and (b) transactions between the Company or any Subsidiary, on the one hand, and any Subsidiary or other special purpose entity
created to engage solely in a Qualified Receivables Transaction.
Section 10.8 Line of Business. The Company will not and will not permit any Subsidiary to engage in any business if, as a
result, the general nature of the business in which the Company and its Subsidiaries, taken as a whole, would then be engaged would be
substantially changed from the general nature of the business in which the Company and its Subsidiaries, taken as a whole, are engaged on
the date of this Agreement as described in the Memorandum. The Company will not and will not permit any Subsidiary to discontinue or
eliminate a business line or segment; provided that the foregoing limitation on the discontinuation or elimination of a business line or segment
shall not prohibit the liquidation and dissolution of any Subsidiary or the discontinuation or elimination of any business line or segment,
provided that (i) the Company shall have reasonably determined that such business line or segment being discontinued or eliminated is a non-
core business of the Company and its Subsidiaries, (ii) any sale of assets relating to any discontinuation or elimination of any business line or
segment or any liquidation or dissolution of any Subsidiary shall be subject to the limitation on the sale, lease or other transfer of assets
described in Section 10.5 and the requirements under Section 9.12 and the other terms of this Agreement, and (iii) after giving effect to any
such liquidation or dissolution or discontinuation or elimination of any business line or segment, no Default or Event of Default shall have
occurred and be continuing or would be caused thereby.
Annex I-5
Section 10.9 Terrorism Sanctions Regulations. The Company will not and will not permit any Subsidiary to (a) become a
Person described or designated in the Specially Designated Nationals and Blocked Persons List of the Office of Foreign Assets Control or in
Section 1 of the Anti-Terrorism Order or (b) knowingly engage in any dealings or transactions with any such Person in violation of applicable
Laws.
Section 10.10 [Intentionally Omitted].
Section 10.11 Minimum EBITDA. The Company will not permit the Consolidated Adjusted EBITDA, determined as of the end of
each fiscal quarter set forth below, to be less than the amount set forth opposite such fiscal quarter:
Fiscal Quarter Minimum Consolidated

Adjusted EBITDA
Fiscal quarter ending March 31, 2009, as calculated for the fiscal quarter then - $25,000,000
ending
Fiscal quarter ending June 30, 2009, as calculated for the two consecutive fiscal - $22,000,000
quarters then ending
Fiscal quarter ending September 30, 2009, as calculated for the three - $14,000,000
consecutive fiscal quarters then ending
Fiscal quarter ending December 31, 2009, as calculated for the four consecutive $1,750,000
fiscal quarters then ending
Fiscal quarter ending March 31, 2010 and each fiscal quarter thereafter, as $35,000,000
calculated for the four consecutive fiscal quarters then ending
Section 10.12 Capital Expenditures. The Company will not permit or suffer Consolidated Capital Expenditures in excess of (i)
$30,000,000 for the fiscal quarter ending March 31, 2009, (ii) $65,000,000 for the fiscal year ending March 31, 2010, or (iii) $70,000,000 for any
fiscal year ending thereafter; in each case in addition to any replacement or rebuilding of any real property or equipment from the Net Proceeds
from any Event of Loss of real property or equipment as provided in clause (v) of the definition of Excluded Sales.
Section 10.13 Restricted Payments. The Company will not, nor will it permit any Subsidiary to, declare or make any Restricted
Payment except any Subsidiary may declare and pay dividends or make distributions to the Company or to a Wholly-Owned Subsidiary. The
Company will not issue any Disqualified Stock.
Annex I-6
Section 10.14 Loans or Advances. Neither the Company nor any of its Subsidiaries shall make loans or advances to any Person
except:
(a) [Intentionally Omitted];
(b) deposits required by government agencies or public utilities;
(c) existing loans or advances between the Company and its Subsidiaries and between Subsidiaries described on
Schedule 10.14 hereto, but no increase in the amount thereof (except to the extent increased amounts are permitted under another
clause of this Section 10.14);
(d) loans or advances from any Foreign Subsidiaries to the Company or any Subsidiary Guarantor, provided that such
loans and advances are evidenced by documents satisfactory to the Required Holders and are subordinated to all Secured
Obligations on terms and by agreements satisfactory to the Required Holders;
(e) loans and advances between the Company and the Subsidiary Guarantors, provided that such loans and advances
are evidenced by documents satisfactory to the Required Holders; and
(f) loans and advances between Foreign Subsidiaries, provided that such loans and advances are (i) evidenced by
documents satisfactory to the Required Holders and (ii) if such loans and advances are owing by a Foreign Subsidiary that is a
borrower under the Credit Agreement or any Foreign Subsidiary guaranteeing the Secured Obligations of such Foreign Subsidiary
that is a borrower under the Credit Agreement, subordinated to all Secured Obligations owing by such Foreign Subsidiary that is a
borrower under the Credit Agreement on terms and by agreements satisfactory to the Required Holders; and
(g) other loans and advances made in the ordinary course of business not exceeding $10,000,000 in the aggregate at
any time outstanding;
provided that after giving effect to the making of any loans, advances or deposits permitted by clause (a), (b), (c), (d), (e), (f) or (g) of this
Section 10.14, no Default or Event of Default shall have occurred and be continuing. Notwithstanding anything herein to the contrary, the
Company will not, nor will it permit any Subsidiary to, make any loans and advances to Modine Korea, any member of the Modine Holding
Consolidated Group or any Domestic Subsidiary that is not a Subsidiary Guarantor at any time on or after the Second Amendment Effective
Date, provided that this provision shall not restrict loans and advances between members of the Modine Holding Consolidated Group.
Annex I-7
(a) The Company will not, nor will it permit any Subsidiary to, make or suffer to exist any Investments (including
without limitation, loans and advances to, and other Investments in, Subsidiaries), or commitments therefor, or to create any
Subsidiary or to become or remain a partner in any partnership or joint venture, or to make any Acquisition of any Person, except:
(ii) (x) Existing Investments in Subsidiaries, but no increase in the amount thereof and (y) other Investments
described in Schedule 10.15, but no increase in the amount thereof, as reduced from time to time.
(iv) Swap Contracts; provided, that any transactions under any Swap Contract shall be entered into to hedge
a risk exposure in the ordinary course of business of the Company or a Subsidiary and not for speculative purposes.
(b) The Company and its Subsidiaries may make and have outstanding other Investments, provided that (i) no Default
or Event of Default exists at the time such Investment is made or would be caused thereby and (ii) at no time shall the aggregate
outstanding amount of all such other Investments existing and permitted under this Section 10.15(b) exceed $1,000,000.
Notwithstanding anything herein to the contrary, the Company will not, nor will it permit any Subsidiary to, make any Investments (including
or any Domestic Subsidiary that is not a Subsidiary Guarantor at any time on or after the Second Amendment Effective Date, provided that this
provision shall not restrict Investments between members of the Modine Holding Consolidated Group.
Section 10.16 Dissolution. Neither the Company nor any of its Subsidiaries shall suffer or permit dissolution or liquidation either
in whole or in part or redeem or retire any shares of its own stock or that of any Subsidiary, except through corporate reorganization to the
extent permitted by Sections 10.5, 10.6 and 10.8.
Annex I-8
Section 10.17 Optional Payments and Modification of Debt.
(a) The Company will not, nor will it permit any Subsidiary to, (i) reduce the commitment of the lenders under the Credit
Agreement to make loans, issue letters of credit or provide other credit facilities, other than reductions to such commitments after the
Second Amendment Effective Date in an aggregate amount not to exceed at any time the sum of (1) the aggregate amount of
prepayments of the principal amount of the Advances (as defined in the Credit Agreement as in effect on the Second Amendment
Effective Date) made pursuant to Section 9.12 plus (2) 38.524590163% of the aggregate amount of all payments made to the Collateral
Agent pursuant to Section 9.12 plus (3) an amount not to exceed $15,000,000 equal to the amount by which the dollar equivalent of
the Euro amount of any credit facility of facilities (based on commitments) entered into by the Modine Holding Consolidated Group
exceeds $5,000,000, and, (ii) shorten the maturity or termination date of any loans or other credit facilities of the Company or any
Subsidiary under the Credit Agreement; (iii) amend or otherwise modify Section 2.3(c) or (d) of the Credit Agreement as in effect on
the Second Amendment Effective Date, (iv) enter into any agreement restricting the ability of the Company and its Subsidiaries to
amend or modify this Agreement or any other Transaction Document, except as provided in the Credit Agreement as in effect on the
Second Amendment Effective Date; (v) enter into any agreement or arrangement requiring any defeasance of any kind of any Debt
under the Credit Agreement or any of the other Loan Documents (as defined in the Credit Agreement) or (vi) pay or agree to pay any
fee, interest or other compensation or consideration (other than as required under the Credit Agreement and the Loan Documents (as
defined in the Credit Agreement) delivered to the holders prior to the Second Amendment Effective Date) to the Bank Agent or any
Bank.
(b) The Company will not, nor will it permit any Subsidiary to, (i) make any optional payment, defeasance (whether a
covenant defeasance, legal defeasance or other defeasance), prepayment, repurchase (including without limitation any offer to
repurchase) or other optional redemption of any Debt under 2006 Note Purchase Agreement, (ii) enter into any agreement or
arrangement requiring any defeasance of any kind of any Debt under the 2006 Note Purchase Agreement or (iii) pay or agree to pay
any fee, interest or other compensation or consideration (other than as required under the 2006 Note Purchase Agreement and the
Transaction Documents (as defined in the 2006 Note Purchase Agreement) delivered to the holders prior to the Second Amendment
Effective Date) to any holder of notes outstanding under the 2006 Note Purchase Agreement; unless in each case, and concurrently
therewith, the Company makes an optional payment, defeasance, prepayment, repurchase or other optional redemption of the Notes,
or pays a fee, interest or other compensation or consideration to the holders of the Notes, in each case in a pro rata amount in
proportion to the respective outstanding principal amounts of the Notes and the Debt under 2006 Note Purchase Agreement
immediately prior thereto.
Section 10.18 Communications with Accountants. The Company authorizes each holder to communicate directly with its
independent certified public accountants and authorizes and shall instruct those accountants and advisors to communicate to the each holder
information relating to the Company and its Subsidiaries with respect to the business, results of operations and financial condition of the
Company or any of its Subsidiaries.
Section 10.19 Deposit Accounts. The Company shall, and shall cause each of its Domestic Subsidiaries to, maintain a Lender (as
defined in the Credit Agreement) or any of their respective Affiliates as their sole depository bank, including for the maintenance of all
operating, administrative, cash management, collection activity, and other deposit accounts for the conduct of their respective businesses,
provided that with respect to all operating, administrative, cash management, collection activity, and other deposit accounts of the Company
and the Domestic Subsidiaries, the Company shall have up to 60 days after the Second Amendment Effective Date (or such later date agreed to
by the Required Holders) to comply with the terms of this Section 10.19, provided that for administrative convenience the Company may
maintain existing local deposit accounts at all times thereafter, not to exceed $100,000 in aggregate amount for all such accounts of the
Company and its Domestic Subsidiaries.
Annex I-9
Section 10.20 Restrictive Agreements. The Company will not, and will not permit any of its Subsidiaries to, directly or indirectly,
enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon the ability of any
Subsidiary to pay dividends or other distributions with respect to any of its Equity Interests or to make or repay loans or advances to the
Company or any other Subsidiary; provided that the foregoing shall not apply to: (a) restrictions and conditions imposed on the Modine
Holding Consolidated Group in connection with Debt permitted under Section 10.2(g), (b) restrictions and conditions imposed in connection
with a material economic benefit provided to any Foreign Subsidiary by a governmental authority, (c) restrictions in the Credit Agreement and
the 2006 Note Agreement, each as in effect on the Second Amendment Effective Date and (d) restrictions and conditions imposed by law.
Section 10.21 Environmental Matters. The Company will not, and will not permit any other Person to, use, produce, manufacture,
process, generate, store, dispose of, manage at, or ship or transport to or from any of its property any Hazardous Materials except for
Hazardous Materials disclosed on Schedule 10.21 hereto and by this reference made a part hereof and which are used, produced,
manufactured, processed, generated, stored, disposed of or managed in the ordinary course of business in compliance with all applicable
Environmental Laws, except where such non-compliance would not have a Material Adverse Effect. The Company agrees that upon the
occurrence of an Environmental Release it will act immediately to investigate the extent of, and to take appropriate remedial action to eliminate,
such Environmental Release, whether or not ordered or otherwise directed to do so. Promptly, and in any event within 15 Business Days after
the Company obtains knowledge thereof, the Company shall furnish to the holders written notice of all material Environmental Liabilities,
pending, threatened or anticipated material Environmental Proceedings, and material Environmental Releases at, on, in, under or in any way
affecting it, any Subsidiary or any of its or their property or any adjacent property, and all facts, events, or conditions that could lead to any of
the foregoing.
Section 10.22 Change in Fiscal Year. The Company will not change its fiscal year (including any of its fiscal quarters) without
(a) providing the holders with prior written notice of such change; and (b) executing and delivering to the holders, prior to such change, such
amendments to this Agreement and the other Transaction Documents as the holders may reasonably deem necessary and appropriate as a
result of such change in fiscal year.
Section 10.23 Sale of Accounts. The Company will not, nor will it permit any Subsidiary to, sell or otherwise dispose of any notes
receivable or accounts receivable, with or without recourse, except (a) sale or assignment of accounts for collection purposes in the ordinary
course of business, (b) sale or assignment of trade notes receivable or accounts receivable of the Company’s Foreign Subsidiaries in the
ordinary course of business provided that the aggregate outstanding amount thereof does not exceed $15,000,000 (based on the amount of
obligations outstanding under the legal documents entered into as part of such sales or assignments that would be characterized as principal if
such sales or assignments were structured as a secured lending transaction rather than as a sale or assignment), and (c) Qualified Receivables
Transactions.
Annex I-10
ANNEX II
DEFINED TERMS
As used herein, the following terms have the respective meanings set forth below or set forth in the Section hereof following such
term:
“Acquisition” means any transaction, or any series of related transactions, consummated on or after the date of this
Agreement, by which the Company or any of its Subsidiaries (i) acquires any going business or all or substantially all of the assets of
any firm, corporation or limited liability company, or division thereof, whether through purchase of assets, merger or otherwise or (ii)
directly or indirectly acquires (in one transaction or as the most recent transaction in a series of transactions) at least a majority (in
number of votes) of the securities of a corporation which have ordinary voting power for the election of directors (other than
securities having such power only by reason of the happening of a contingency) or a majority (by percentage or voting power) of the
outstanding ownership interests of a partnership or limited liability company.
“Additional Covenant” shall mean any affirmative or negative covenant or similar restriction applicable to the Company or
any Subsidiary (regardless of whether such provision is labeled or otherwise characterized as a covenant) the subject matter of which
either (i) is similar to that of any covenant in Section 9 or 10 of this Agreement, or related definitions in Schedule B to this
Agreement, but contains one or more percentages, amounts or formulas that is more restrictive than those set forth herein or more
beneficial to the lender under any agreement with respect to any Debt of the Company or such Subsidiary or any agreement for the
refinancing or extension of all or a portion of the Debt thereunder (and such covenant or similar restriction shall be deemed an
Additional Covenant only to the extent that it is more restrictive or more beneficial) or (ii) is different from the subject matter of any
covenants in Section 9 or 10 of this Agreement, or related definitions in Schedule B to this Agreement.
“Additional Default” shall mean any provision contained in any agreement with respect to any Debt of the Company or any
Subsidiary or any agreement for the refinancing or extension of all or a portion of the Debt thereunder which permits the holders of
such Debt to accelerate (with the passage of time or giving of notice or both) the maturity thereof or otherwise requires the Company
or any Subsidiary to purchase the Debt thereunder or any agreement for the refinancing or extension of all or a portion of the Debt
thereunder prior to the stated maturity thereof and which either (i) is similar to any Default or Event of Default contained in Section
11 of this Agreement, or related definitions in Schedule B to this Agreement, but contains one or more percentages, amounts or
formulas that is more restrictive or has a shorter grace period than those set forth herein or is more beneficial to the lender under any
agreement with respect to any Debt of the Company or such Subsidiary or any agreement for the refinancing or extension of all or a
portion of the Indebtedness thereunder (and such provision shall be deemed an Additional Default only to the extent that it is more
restrictive, has a shorter grace period or is more beneficial) or (ii) is different from the subject matter of any Default or Event of Default
contained in Section 11 of this Agreement, or related definitions in Schedule B to this Agreement.
1
“Affiliate” means, at any time, and with respect to any Person, any other Person that at such time directly or indirectly
through one or more intermediaries Controls, or is Controlled by, or is under common Control with, such first Person, and with respect
to the Company, shall include any Person beneficially owning or holding, directly or indirectly, 10% or more of any class of voting or
equity interests of the Company or any Subsidiary or any corporation of which the Company and its Subsidiaries beneficially own or
hold, in the aggregate, directly or indirectly, 10% or more of any class of voting or equity interests. As used in this definition,
“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies
of a Person, whether through the ownership of voting securities, by contract or otherwise. Unless the context otherwise clearly
requires, any reference to an “Affiliate” is a reference to an Affiliate of the Company.
“Airedale Entity” and “Airedale Entities” are defined in Section 5.20.
“Anti-Terrorism Order” means Executive Order No. 13,224 of September 24, 2001, Blocking Property and Prohibiting
Transactions with Persons Who Commit, Threaten to Commit or Support Terrorism, 66 U.S. Fed. Reg, 49, 079 (2001), as amended.
“Applicable Rate” shall mean (a) until the Second Amendment Effective Date, 4.91% and (b) on and after the Second
Amendment Effective Date (i) during a Credit Rating Adjustment Period and provided no Default or Event of Default has occurred
and is continuing, 7.50% and (ii) 10.00% at all other times.
“Bank Agent” means JPMorgan Chase Bank, N.A., in its capacity as agent under the Credit Agreement, and its successors
and assigns in that capacity.
“Banks” means JPMorgan Chase Bank, N.A., Bank of America, N.A., M&I Marshall & Ilsley Bank, Wells Fargo Bank, N.A.,
Dresdner Bank AG, U.S. Bank, National Association, Comerica Bank and the other lending parties to the Credit Agreement from time
to time, and their respective successors and assigns from time to time.
“Brazil Holdback” means the contingent obligation of the Company to the former owners of Modine do Brasil Sistemas
Termicos Ltda. in the amount of $2,000,000.
“Business Day” means (a) for the purposes of Section 8.6 only, any day other than a Saturday, a Sunday or a day on which
commercial banks in New York City are required or authorized to be closed, and (b) for the purposes of any other provision of this
Agreement, any day other than a Saturday, a Sunday or a day on which commercial banks in Chicago, Illinois or New York, New York
are required or authorized to be closed.
“Capital Expenditures” means for any period all direct or indirect (by way of acquisition of securities of a Person or the
expenditure of cash or the transfer of property or the incurrence of Debt) expenditures in respect of the purchase or other acquisition
of fixed or capital assets determined in conformity with GAAP.
“Capital Lease” means, at any time, a lease with respect to which the lessee is required concurrently to recognize the
acquisition of an asset and the incurrence of a liability in accordance with GAAP.
2
“Cash Equivalent Investments” means (i) short-term obligations of, or fully guaranteed by, the United States of America, (ii)
with respect to Investments of a Foreign Subsidiary only, direct obligations of such Foreign Subsidiary’s Domestic National
Government maturing within one year, (iii) commercial paper rated A-1 or better by S&P or P-1 or better by Moody’s, (iv) demand
deposit accounts maintained in the ordinary course of business, (v) certificates of deposit issued by and time deposits with
commercial banks (whether domestic or foreign) having capital and surplus in excess of $100,000,000, and (vi) repurchase agreements
or like investment vehicles, in each case rated A-1 or better by S&P or P-1 or better by Moody’s and having a maturity date not
greater than 270 days; provided in each case that the same provides for payment of both principal and interest (and not principal
alone or interest alone) and is not subject to any contingency regarding the payment of principal or interest.
“Change in Control” is defined in Section 8.7.
“Closing” is defined in Section 3.
“Code” means the Internal Revenue Code of 1986, as amended from time to time, and the rules and regulations promulgated
thereunder from time to time.
“Collateral” shall mean all assets of the Company and each of its Subsidiaries in which a Lien is required to be granted to
secure the Notes.
“Collateral Agent” means JPMorgan in its capacity as collateral agent under the Intercreditor Agreement and the Collateral
Documents, and its successor and assigns in that capacity.
“Collateral Documents” means, collectively, the Security Agreements, the Mortgages and all other agreements or
Agreement or otherwise providing support for the Secured Obligations at any time, as any of the foregoing may be amended or
“Company” means Modine Manufacturing Company, a Wisconsin corporation.
“Company Financial Advisor” is defined in Section 15.2.
“Confidential Information” is defined in Section 20.
“Consolidated Capital Expenditures” means, with reference to any period, the Capital Expenditures of the Company and its
“Consolidated Adjusted EBITDA” means, as to any Person and with reference to any period, Consolidated EBIT plus, to the
extent deducted in determining Consolidated Net income, depreciation and amortization, all calculated for such Person and its
Subsidiaries on a consolidated basis. “Consolidated Adjusted EBITDA” for any period, as to any Person, shall be calculated to be
the actual amount for such period for such Person and its Subsidiaries; provided, upon the consummation of any Acquisition, for
calculations made from and after such Acquisition, Consolidated Adjusted EBITDA shall be calculated on a pro forma basis
including the target’s historical Consolidated Adjusted EBITDA for the applicable period using historical financial statements
obtained from the seller, broken down by fiscal quarter in such Person’s reasonable judgment (the amounts from which may be
adjusted solely as may be necessary to comply with GAAP).
3
“Consolidated EBIT” means, as to any Person and with reference to any period, Consolidated Net Income plus, to the
extent deducted from revenues in determining Consolidated Net Income, (i) Consolidated Interest Expense, (ii) expense for federal,
state, local and foreign income and franchise taxes paid or accrued and (iii) extraordinary losses incurred other than in the ordinary
course of business, minus, to the extent included in Consolidated Net Income, extraordinary gains realized other than in the ordinary
course of business, all calculated for such Person and its Subsidiaries on a consolidated basis.
“Consolidated Net Income” means, as to any Person and with reference to any period, the net income (or loss) of such
Person and its Subsidiaries calculated on a consolidated basis for such period, (a) excluding (i) any non-cash charges or gains which
are unusual, non-recurring or extraordinary, (ii) any non-cash charges or gains related to exchange gains or losses on intercompany
loans or to the Brazil Holdback, (iii) for purposes of Sections 10.1, 10.3, 10.11 and 10.12 only, Restructuring Charges subject to the
limits set forth in the definition of Restructuring Charges, and (iv) fees and expenses incurred by or for the account of the Company
with respect to any Financial Advisor engaged pursuant to Sections 15.2 and 15.3 or pursuant to Section 9.6(d) or (e) of the Credit
Agreement; and (b) including, to the extent not otherwise included in the determination of Consolidated Net Income, all cash
dividends and cash distributions received by the Company or any Subsidiary from any Person in which the Company or such
Subsidiary has made an investment; provided, however, that for any calculation of Consolidated Net Income for any period
commencing on or after April 1, 2009, Modine Korea shall not be included as a Subsidiary of the Company.
“Consolidated Total Assets” means as of the date of any determination thereof, total assets of the Company and its
Subsidiaries determined on a consolidated basis in accordance with GAAP.
“Consolidated Total Debt” means, at any time, all Debt of the Company and its Subsidiaries that would be reflected on a
consolidated balance sheet of the Company prepared in accordance with GAAP at such time, including Receivables Transaction
Attributed Indebtedness of any Subsidiary or other Person to whom interests in accounts, notes receivable and rights related thereto
have been sold, conveyed or otherwise transferred by the Company or any Subsidiary in connection with a Qualified Receivables
Transaction, whether or not such Subsidiary or other Person is consolidated with the Company under GAAP.
“Credit Agreement” means the Amended and Restated Credit Agreement, dated as of July 18, 2008, among the Company,
the Foreign Subsidiaries named therein, the Bank Agent and the Banks, and as further amended, restated, supplemented or otherwise
“Credit Rating Adjustment Period” means any period during which the Company’s long-term unsecured and non-credit
enhanced indebtedness is rated not less than “BBB” by S&P, Fitch or DBRS or not less than “Baa2” by Moody’s, and evidence
thereof, in form and substance satisfactory to the Required Holders, shall have been delivered to the holders of the Notes.
“DBRS” means Dominion Bond Rating Agency or any successor thereto.
“Debt” with respect to any Person mean, at any time, without duplication,
4
(a) its liabilities for borrowed money and its redemption obligations in respect of mandatorily redeemable Preferred
Stock;
(b) its liabilities for the deferred purchase price of property acquired by such Person (excluding accounts payable
arising in the ordinary course of business but including all liabilities created or arising under any conditional sale or other title
retention agreement with respect to any such property);
(c) (i) all liabilities appearing on its balance sheet in accordance with GAAP in respect of Capital Leases and (ii) all
liabilities which would appear on its balance sheet in accordance with GAAP in respect of Synthetic Leases assuming such Synthetic
Leases were accounted for as Capital Leases;
(d) all liabilities for borrowed money secured by any Lien with respect to any property owned by such Person (whether
or not it has assumed or otherwise become liable for such liabilities);
(e) all its liabilities in respect of letters of credit or instruments serving a similar function issued or accepted for its
account by banks and other financial institutions (whether or not representing obligations for borrowed money);
(f) the aggregate Swap Termination Value of all Swap Contracts of such Person; and
(g) Receivables Transaction Attributed Indebtedness of such Person; and
(h) any Guaranty of such Person with respect to liabilities of a type described in any of clauses (a) through (g) hereof.
“Default” means an event or condition the occurrence or existence of which would, with the lapse of time or the giving of
notice or both, become an Event of Default.
“Default Rate” means that rate of interest that is the greater of (i) 2.0% per annum above the rate of interest stated in clause
(a) of the first paragraph of the Notes or (ii) 2.0% over the rate of interest publicly announced by JPMorgan Chase Bank, N.A. in New
York, New York as its “base” or “prime” rate.
“Disclosure Documents” is defined in Section 5.3.
“Disqualified Stock” means any Equity Interests that, by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable), or upon the happening of any event, matures or is mandatorily redeemable, pursuant to a
sinking fund obligation or otherwise, or redeemable at the option of the holder thereof, in whole or in part prior to a date one year
after December 7, 2017.
“Domestic National Government” means, with respect to a Foreign Subsidiary, the national government of the country in
which the Foreign Subsidiary’s principal place of business is located.
“Domestic Subsidiary” means each Subsidiary of the Company that is organized under the laws of the United States of
America or any state, territory or possession thereof.
“Electronic Delivery” is defined in Section 7.1(a).
5
“Environmental Laws” means any and all Federal, state, local, and foreign statutes, laws, regulations, ordinances, rules,
judgments, orders, decrees, permits, concessions, grants, franchises, licenses, agreements or governmental restrictions relating to
pollution and the protection of the environment or the release of any materials into the environment, including but not limited to
those related to Hazardous Materials.
“Environmental Liabilities” means all liabilities (including anticipated compliance costs) in connection with or relating to
the business, assets presently or previously owned, leased or operated property, activities (including, without limitation, off-site
disposal) or operations of the Company and each of its Subsidiaries, whether vested or unvested, contingent or fixed, actual or
potential, known or unknown, which arise under or relate to matters covered by Environmental Laws.
“Environmental Proceeding” means any judicial or administrative proceeding arising from or in any way associated with
any Environmental Law.
“Environmental Release” means releases as defined in CERCLA or under any other Environmental Law.
“Equity Interests” means (i) in the case of any corporation, all capital stock and any securities exchangeable for or
convertible into capital stock and any warrants, rights or other options to purchase or otherwise acquire capital stock or such
securities or any other form of equity securities, (ii) in the case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate stock, (iii) in the case of a partnership or limited liability
company, partnership or membership interests (whether general or limited) and (iv) any other interest or participation that confers on
a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the rules and
regulations promulgated thereunder from time to time in effect.
“ERISA Affiliate” means any trade or business (whether or not incorporated) that is treated as a single employer together
with the Company under Section 414 of the Code.
“Event of Default” is defined in Section 11.
“Event of Loss” means, with respect to any property of the Company and its Subsidiaries, any loss, destruction or damage
of such property or any condemnation, seizure or taking, by exercise of the power of eminent domain or otherwise, of such property,
or confiscation of such property or the requisition of the use of such property.
“Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time, and the rules and regulations
promulgated thereunder from time to time in effect.
“Excluded Sales” is defined in Section 9.12.
“Fitch” shall mean Fitch, Inc. or any successor thereto.
“Foreign Subsidiary” means each Subsidiary that is not a Domestic Subsidiary.
6
“Form 10-K” is defined in Section 7.1(b).
“Form 10-Q” is defined in Section 7.1(a).
“GAAP” means generally accepted accounting principles as in effect from time to time in the United States of America.
“Governmental Authority” means
(a) the government of The United States of America or any State or other political subdivision thereof, or
(b) any other jurisdiction in which the Company or any Subsidiary conducts all or any part of its business, or which
asserts jurisdiction over any properties of the Company or any Subsidiary, or
(c) any entity exercising executive, legislative, judicial, regulatory or administrative functions of, or pertaining to, any
such government.
“Guaranty” means, with respect to any Person, any obligation (except the endorsement in the ordinary course of business
of negotiable instruments for deposit or collection) of such Person guaranteeing or in effect guaranteeing any indebtedness, dividend
or other obligation of any other Person in any manner, whether directly or indirectly, including (without limitation) obligations
incurred through an agreement, contingent or otherwise, by such Person:
(a) to purchase such indebtedness or obligation or any property constituting security therefor;
(b) to advance or supply funds (i) for the purchase or payment of such indebtedness or obligation, or (ii) to maintain
any working capital or other balance sheet condition or any income statement condition of any other Person or otherwise to advance
or make available funds for the purchase or payment of such indebtedness or obligation;
(c) to lease properties or to purchase properties or services primarily for the purpose of assuring the owner of such
indebtedness or obligation of the ability of any other Person to make payment of the indebtedness or obligation; or
(d) otherwise to assure the owner of such indebtedness or obligation against loss in respect thereof.
In any computation of the indebtedness or other liabilities of the obligor under any Guaranty, the indebtedness or other obligations
that are the subject of such Guaranty shall be assumed to be direct obligations of such obligor.
“Hazardous Material” means any and all pollutants, toxic or hazardous wastes or any other substances, including all
substances listed in or regulated in any Environmental law that might pose a hazard to health and safety, the removal of which may be
required or the generation, manufacture, refining, production, processing, treatment, storage, handling, transportation, transfer, use,
disposal, release, discharge, spillage, seepage, or filtration of which is or shall be restricted, regulated, prohibited or penalized by any
applicable law including, but not limited to, asbestos, urea formaldehyde foam insulation, polychlorinated biphenyls, petroleum,
petroleum products, lead based paint, radon gas or similar restricted, prohibited or penalized substances.
7
“holder” means, with respect to any Note, the Person in whose name such Note is registered in the register maintained by
the Company pursuant to Section 13.1.
“Institutional Investor” means (a) any Purchaser of a Note, (b) any holder of a Note holding (together with one or more of
its affiliates) more than 5% of the aggregate principal amount of the Notes then outstanding, (c) any bank, trust company, savings
and loan association or other financial institution, any pension plan, any investment company, any insurance company, any broker or
dealer, or any other similar financial institution or entity, regardless of legal form, and (d) any Related Fund of any holder of any Note.
“Intercreditor Agreement” means the Collateral Agency and Intercreditor Agreement among the Collateral Agent and the
Secured Parties, dated as of the Second Amendment Effective Date, as amended, restated, supplemented or modified from time to time
in accordance with the terms thereof.
“Investment” of a Person means any loan, advance (other than commission, travel and similar advances to officers and
employees made in the ordinary course of business), extension of credit (other than accounts receivable arising in the ordinary
course of business on terms customary in the trade) or contribution of capital by such Person; stocks, bonds, mutual funds,
partnership interests, notes, debentures or other securities owned by such Person; any deposit accounts and certificates of deposit
owned by such Person; and structured notes, derivative financial instruments and other similar instruments or contracts owned by
such Person.
“January 2009 Financial Forecasts” means the financial forecasts provided to the holders by the Company on January 25,
2009 and the Quarterly EBITDA Sensitivity Analysis provided to the holders by the Company on February 5, 2009.
“Lien” means, with respect to any Person, any mortgage, lien, pledge, charge, security interest or other encumbrance, or any
interest or title of any vendor, lessor, lender or other secured party to or of such Person under any conditional sale or other title
retention agreement or Capital Lease, upon or with respect to any property or asset of such Person (including in the case of stock,
stockholder agreements, voting trust agreements and all similar arrangements).
“Make-Whole Amount” is defined in Section 8.6.
“Material” means material in relation to the business, operations, affairs, financial condition, assets or properties of the
Company and its Subsidiaries taken as a whole.
“Material Adverse Effect” means a material adverse effect on (a) the business, operations, affairs, financial condition,
assets, or properties of the Company and its Subsidiaries taken as a whole, or (b) the ability of the Company to perform its obligations
under this Agreement, the Notes or any other Transaction Document to which it is a party, or (c) the validity or enforceability of this
Agreement, the Notes, the Subsidiary Guaranty or any other Transaction Document.
“Memorandum” is defined in Section 5.3.
8
“Modine Holding Consolidated Group” means Modine Holding GmbH and its Subsidiaries existing as of the Second
Amendment Effective Date.
“Modine Korea” means Modine Korea, LLC, a wholly owned Subsidiary of the Company.
“Moody’s” mean Moody's Investors Services, Inc., including the NCO/Moody's Commercial Division, or any successor
Person.
“Mortgaged Properties” shall mean the real, personal and mixed properties subject to any Mortgage.
“Mortgages” means each mortgage, deed of trust and similar agreement and any other agreement from the Company or any
Subsidiary Guarantor granting a Lien on any of its real property, each in form and substance acceptable to the Required Holders and
as amended or modified from time to time, entered into by the Company or any Subsidiary Guarantor at any time for the benefit of the
Collateral Agent and the Secured Parties pursuant to this Agreement or the Intercreditor Agreement.
“Multiemployer Plan” means any Plan that is a “multiemployer plan” (as such term is defined in section 4001(a)(3) of
ERISA).
“NAIC” means the National Association of Insurance Commissioners or any successor thereto.
“Net Cash Proceeds” means, without duplication, in connection with any issuance of any Equity Interests or any sale,
license, lease or other disposition of any asset or any settlement by, or receipt of payment in respect of, any property insurance claim
or condemnation award, the cash proceeds (including any cash payments received by way of deferred payment of principal pursuant
to a note or installment receivable or purchase price adjustment receivable or otherwise, but only as and when received) of such
issuance, sale, settlement or payment, net of (i) direct costs relating solely to such issuance, sale, other disposition or settlement,
including sales commissions and reasonable and documented attorneys’ fees, accountants’ fees, investment banking fees, and other
customary fees and expenses actually incurred in connection therewith, (ii) amounts required to be applied to the repayment of Debt
secured by a Lien expressly permitted hereunder on any asset which is the subject of such sale, insurance claim or condemnation
award (other than any Lien in favor of the Collateral Agent for the benefit of the Collateral Agent and the Secured Parties) and (iii)
taxes paid or reasonably estimated to be payable as a result thereof.
“Notes” is defined in Section 1.
“Officer’s Certificate” means a certificate of a Senior Financial Officer or of any other officer of the Company whose
responsibilities extend to the subject matter of such certificate.
“PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA or any successor thereto.
“Person” means an individual, partnership, corporation, limited liability company, association, trust, unincorporated
organization, business entity or Governmental Authority.
9
“Plan” means an “employee benefit plan” (as defined in section 3(3) of ERISA) subject to Title I of ERISA that is or, within
the preceding five years, has been established or maintained, or to which contributions are or, within the preceding five years, have
been made or required to be made, by the Company or any ERISA Affiliate or with respect to which the Company or any ERISA
Affiliate may have any liability.
“Preferred Stock” means any class of capital stock of a Person that is preferred over any other class of capital stock (or
similar equity interests) of such Person as to the payment of dividends or the payment of any amount upon liquidation or dissolution
of such Person.
“property” or “properties” means, unless otherwise specifically limited, real or personal property of any kind, tangible or
intangible, choate or inchoate.
“Proposed Prepayment Date” is defined in Section 8.7.
“Purchaser” is defined in the first paragraph of this Agreement.
“QPAM Exemption” means Prohibited Transaction Class Exemption 84-14 issued by the United States Department of Labor.
“Qualified Institutional Buyer” means any Person who is a “qualified institutional buyer” within the meaning of such term
as set forth in Rule 144A(a)(1) under the Securities Act.
“Qualified Receivables Transaction” means any transaction or series of transactions that may be entered into by the
Company or any Subsidiary pursuant to which the Company or any Subsidiary may sell, convey or otherwise transfer to a newly-
formed Subsidiary or other special-purpose entity, or any other Person, any accounts or notes receivable and rights related thereto
on a limited recourse basis, provided that (i) such sale, conveyance or transfer qualifies as a sale under GAAP and (ii) the aggregate
outstanding Receivables Transaction Attributed Indebtedness for all Qualified Receivables Transactions (including those listed on
Schedule 10.2-A and any other Qualified Receivables Transaction at any time, but excluding sales or assignments of trade notes
receivable or accounts receivable of the Company’s Foreign Subsidiaries permitted under Section 10.23(b)) shall not exceed
$15,000,000.
“Receivables Transaction Attributed Indebtedness” means the aggregate amount of obligations outstanding under the
legal documentation entered into as part of any Receivables Transaction on any date of determination that would be characterized as
principal if such Receivables Transaction were structured as a secured lending transaction rather than as a purchase.
“Related Fund” means, with respect to any holder of any Note, any fund or entity that (i) invests in Securities or bank
loans, and (ii) is advised or managed by such holder, the same investment advisor as such holder or by an affiliate of such holder or
such investment advisor.
“Required Holders” means, at any time, the holders of at least 51% in principal amount of the Notes at the time outstanding
(exclusive of Notes then owned by the Company or any of its Affiliates).
10
“Responsible Officer” means any Senior Financial Officer and any other officer of the Company with responsibility for the
administration of the relevant portion of this Agreement.
“Restricted Payment” means, with respect to any Person, (i) any dividend or other distribution on any shares of such
Person’s capital stock (except dividends payable solely in shares of its capital stock) or (ii) any Stock Purchase Restricted Payment.
“Restructuring Charges” means certain cash charges related any restructuring program of the Company and its
Subsidiaries subject to the following limitations:
continuation.
(b) the aggregate amount of all Restructuring Charges shall not exceed $14,000,000 for all times after December 31,
2008.
“S&P” means Standard and Poor's Ratings Group and its successors.
“Sale and Leaseback Transaction” means any arrangement whereby the Company or any Subsidiary shall sell, transfer or
otherwise dispose of any property owned by the Company or any Subsidiary to any Person other than the Company or a Subsidiary
and thereupon the Company or any Subsidiary shall lease or intend to lease, as lessee, the same property or any part thereof.
“SEC” shall mean the Securities and Exchange Commission of the United States, or any successor thereto.
“Second Amendment” means the Second Amendment to this Agreement dated as of the Second Amendment Effective Date.
“Second Amendment Effective Date” shall mean February 17, 2009.
“Secured Obligations” means the “Secured Obligations”, as defined in the Intercreditor Agreement.
“Secured Parties” shall mean the “Secured Parties” as defined in the Interecreditor Agreement.
“Securities” or Security” shall have the same meaning as in Section 2(1) of the Securities Act.
“Securities Act” means the Securities Act of 1933, as amended from time to time, and the rules and regulations promulgated
thereunder from time to time in effect.
“Security Agreements” means each security agreement, pledge agreement, pledge and security agreement and similar
agreement and any other agreement from the Company or any Subsidiary Guarantor granting a Lien on any of its personal property
(including without limitation any Capital Stock owned by the Company or any Subsidiary Guarantor), each in form and substance
acceptable to the Required Holders and as amended or modified from time to time, entered into by the Company or any Subsidiary
Guarantor at any time for the benefit of the Collateral Agent and the Secured Parties pursuant to this Agreement or the Intercreditor
Agreement.
11
“Senior Financial Officer” means the chief financial officer, treasurer or controller of the Company.
“Significant Subsidiary” means any Subsidiary that, together with its subsidiaries, owns consolidated total assets with a
value of greater than $1,000,000 at any time.
“Stock Purchase Restricted Payment” means, with respect to any Person, any net payment declared or made on account of
the purchase, redemption, retirement, acquisition or sale of (a) any shares of such Person’s capital stock or (b) any option, warrant or
other right to acquire shares of such Person’s capital stock.
“Subsidiary” means, as to any Person, any other Person in which such first Person or one or more of its Subsidiaries or
such first Person and one or more of its Subsidiaries owns sufficient equity or voting interests to enable it or them (as a group)
ordinarily, in the absence of contingencies, to elect a majority of the directors (or Persons performing similar functions) of such
second Person, and any partnership or joint venture if more than a 50% interest in the profits or capital thereof is owned by such first
Person or one or more of its Subsidiaries or such first Person and one or more of its Subsidiaries (unless such partnership can and
does ordinarily take major business actions without the prior approval of such Person or one or more of its Subsidiaries). Unless the
context otherwise clearly requires, any reference to a “Subsidiary” is a reference to a Subsidiary of the Company.
“Subsidiary Guarantor” means Modine, Inc., Modine ECD, Inc. and any Subsidiary which is required to become a
Subsidiary Guarantor pursuant to the requirements of Section 9.8.
“Subsidiary Guaranty” means that certain Guaranty, dated as of the Second Amendment Effective Date, by Modine, Inc.
and Modine ECD, Inc. in favor of the holders, together with any joinders thereto, as amended, restated, supplemented or modified
from time to time in accordance with the terms thereof.
“Subsidiary Stock” means, with respect to any Person, the stock or other equity interests (or any options or warrants to
purchase stock or other equity interests or other Securities exchangeable for or convertible into stock or other equity interests) of any
subsidiary of such Person.
“Substantial Portion” means, with respect to the property of the Company and its Subsidiaries, property which represents
more than 15% of the consolidated assets of the Company and its Subsidiaries or property which is responsible for more than 15% of
the consolidated net revenues of the Company and its Subsidiaries, in each case, as would be shown in the consolidated financial
statements of the Company and its Subsidiaries as at the beginning of the twelve-month period ending with the month in which such
determination is made (or if financial statements have not been delivered hereunder for that month which begins the twelvemonth
period, then the financial statements delivered hereunder for the quarter ending immediately prior to that month).
“SVO” means the Securities Valuation Office of the NAIL or any successor to such Office.
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“Swap Contract” means (a) any and all interest rate swap transactions, basis swap transactions, basis swaps, credit
derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or
equity index swaps or options, bond or bond price or bond index swaps or options or forward foreign exchange transactions, cap
transactions, floor transactions, currency options, spot contracts or any other similar transactions or any of the foregoing (including,
but without limitation, any options to enter into any of the foregoing), and (b) any and all transactions of any kind, and the related
confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the
International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement.
“Swap Termination Value” means, in respect of any one or more Swap Contracts, after taking into account the effect of any
legally enforceable netting agreement relating to such Swap Contracts, (a) for any date on or after the date such Swap Contracts have
been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to
the date referenced in clause (a), the amounts(s) determined as the mark-to-market values(s) for such Swap Contracts, as determined
based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Contracts.
“Synthetic Lease” means, at any time, any lease (including leases that may be terminated by the lessee at any time) of any
property (a) that is accounted for as an operating lease under GAAP and (b) in respect of which the lessee retains or obtains
ownership of the property so leased for U.S. federal income tax purposes, other than any such lease under which such Person is the
lessor.
“Transaction Documents” means this Agreement, the Notes, the Subsidiary Guaranties, the Collateral Documents, the
Intercreditor Agreement and any other agreements or instruments executed in connection herewith at any time.
“2006 Note Purchase Agreement” means the Note Purchase Agreement dated as of December 7, 2006 between the
Company and the purchasers named therein, as amended to date, and as it may be further amended, modified, supplemented, restated,
refinanced or replaced from time to time.
“2005 Note Agreement Allocated Share” means, at any time, a portion equal to a fraction, the numerator of which is the
outstanding principal amount of the Notes, and the denominator of which is the sum of (a) the outstanding principal amount of the
Notes, (a) the outstanding principal amount of the Notes (as defined in the 2006 Note Purchase Agreement), and (c) the greater of (i)
the Aggregate Outstanding Credit Exposure (as defined in the Credit Agreement as in effect on the date hereof) at such time and (ii)
the average daily Aggregate Outstanding Credit Exposure (as defined in the Credit Agreement as in effect on the date hereof) during
the twelve month period immediately prior to such time.
“USA Patriot Act” means United States Public Law 107-56, Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001, as amended from time to time, and the rules
and regulations promulgated thereunder from time to time in effect.
“Wholly-owned Subsidiary” means, at any time, any Subsidiary one hundred percent (100%) of all of the equity interests
(except directors’ qualifying shares) and voting interests of which are owned by any one or more of the Company and the Company’s
other Wholly-owned Subsidiaries at such time.
13

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Pursuant to Section 13 or 15(d) of the Securities Exchange Act

Date of Report (Date of earliest event reported):

February 17, 2009

Modine Manufacturing Company

Wisconsin 1-1373 39-0482000

1500 DeKoven Avenue, Racine, Wisconsin 53403

Registrant’s telephone number, including area code: (262) 636-1200

£ Written communications pursuant to Rule 425 under the Securities Act

Item 1.01 Entry into a Material Definitive Agreement

Item 9.01 Financial Statements and Exhibits

INFORMATION TO BE INCLUDED IN THE REPORT

Item 1.01 Entry into a Material Definitive Agreement

Pursuant to the terms of the Amendments:

Item 9.01 Financial Statements and Exhibits

Exhibit No. Description

10.2 Waiver and Second Amendment to Note Purchase Agreement (2006)

10.3 Waiver and Second Amendment to Note Purchase Agreement (2005)

Modine Manufacturing Company

By: /s/ Thomas A. Burke

By: /s/ Margaret C. Kelsey

Date: February 20, 2009

Exhibit No. Description

10.2 Waiver and Second Amendment to Note Purchase Agreement (2006)

10.3 Waiver and Second Amendment to Note Purchase Agreement (2005)

FIRST AMENDMENT TO CREDIT AGREEMENT AND WAIVER

The Credit Agreement shall be amended as follows:

"First Amendment Effective Date" shall mean February 17, 2009.

2.3 Section 2.3 is restated as follows:

2.3 Determination of Dollar Amounts; Required Payments; Termination.

(a) The Agent will determine the Dollar Amount of:

2.5 Section 2.26 is restated as follows: Section 2.26 [Intentionally Deleted].

2.7 Section 4.2 is restated as follows:

(a) There exists no Default or Unmatured Default.

2.8 Section 5.5(b) is restated as follows:

2.11 Section 6.1(i) is replaced with the following:

(a) deposits required by government agencies or public utilities;

Section 6.5 Investments and Acquisitions.

(i) Cash Equivalent Investments.

(v) Loans and advances permitted by Section 6.4.

2.13 Section 6.6 is restated as follows:

2.15 Sections 6.9(b) and (c) are restated as follows:

(i) sales of inventory in the ordinary course of business;

2.16 Section 6.10 is restated as follows:

2.19 Section 6.18 is restated as follows:

Section 6.18 Financial Covenants.

Fiscal Quarter Maximum

Fiscal Quarter Minimum

2.20 Sections 6.19(a) is restated as follows:

2.22 Section 7.2 is restated as follows:

2.25 Section 9.5 of the Credit Agreement is restated as follows:

4.3 The Intercreditor Agreement shall be signed by all parties thereto.

MODINE MANUFACTURING COMPANY

By: /s/ Bradley C. Richardson

JPMORGAN CHASE BANK, N.A., as the Agent, as the Swing Line

By: /s/ Brian L. Grossman

Title: Senior Vice President

BANK OF AMERICA, N.A., as a Documentation Agent and as a