ex10_6.htm


    

    EXHIBIT
10.6

    


    Execution
Copy

    


    
      FIRST AMENDMENT TO
COLLATERAL AGENCY AND INTERCREDITOR AGREEMENT

    

    


    THIS
FIRST AMENDMENT TO COLLATERAL AGENCY AND INTERCREDITOR AGREEMENT, dated as of
September 18, 2009 (this "Amendment"), is among the Secured Parties (as defined
in the Intercreditor Agreement referenced below) of Modine Manufacturing
Company, a Wisconsin corporation (the "Company" or "Borrower"), and of certain
Domestic Subsidiaries of the Company, and JPMorgan Chase Bank, N.A., as
Collateral Agent.

    


    RECITAL

    


    The
Secured Parties and JPMorgan Chase Bank, N.A., as Collateral Agent, are party to
a Collateral Agency and Intercreditor Agreement dated as of February 17, 2009
(as amended or modified from time to time, the " Intercreditor
Agreement").  The parties hereto desire to amend the Intercreditor
Agreement 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.

    AMENDMENTS

    


    The
Intercreditor Agreement shall be amended as follows:

    


    1.1      
     The following definitions are added to Section 1.1
of the Intercreditor Agreement in appropriate alphabetical order:

    


    "Base Mandatory
Reductions" means the amount of the Mandatory Reductions remaining after
the payment of the outstanding 2008 Credit Agreement Superpriority
Amount.

    


    "Mandatory Reductions"
means (a) payments on the Notes required under Section 9.12 of each Note
Purchase Agreement (as in effect after giving effect to the Fourth Amendments
thereto dated as of  September 18, 2009) and (b) payments on the
Advances required under Sections 2.3(b) and (e) of the 2008 Credit Agreement (as
in effect after giving effect to the Third Amendment thereto dated as
of  September 18, 2009) or, if greater, the amount of commitment
reductions required under Sections 2.3(b) and (e) of the 2008 Credit Agreement,
as applicable.

    


    "Notes Base Amount"
means at any time the difference of (i) $150,000,000 and (ii) the aggregate
amount of all Base Mandatory Reductions applied to the principal balance of the
Notes prior to the occurrence of a Special Event of Default.

    


    "Notes Secured
Obligations" means all Secured Obligations owing under the Notes or
otherwise under the Note Purchase Agreements.


    
      
         


      

      
        -1-

        
          

        

      

      
         


      

    


    "True-Up Excess
Amount" is defined in Section 4.1(b).

    


    "2008 Credit Agreement Base
Amount" means at any time (i) $94,000,000, minus (ii) 38.524590163% of
the aggregate amount of all Base Mandatory Reductions prior to the occurrence of
a Special Event of Default, and minus (iii) 38.524590163% of the aggregate
amount of all Make-Whole Amounts that have been paid (other than deferred
payments paid solely in kind, and not in cash) prior to the occurrence of a
Special Event of Default.

    


    "2008 Base Credit Agreement
Secured Obligations" means all Secured Obligations owing under the
Advances or otherwise under the 2008 Credit Agreement, other than the 2008
Credit Agreement Superpriority Amount.

    


    


    1.2       
    The following definitions in Section 1.1 of the
Intercreditor Agreement are restated as follows:

    


    "Special Event of
Default" means (i) the commencement of a Bankruptcy Proceeding with
respect to the Company or any Guarantor, (ii) the acceleration or final maturity
(if the relevant Secured Obligations are not paid in full upon such maturity) of
any of the Secured Obligations, (iii) the failure to pay principal amount due on
the Secured Obligations in an aggregate amount equal to or in excess of
$20,000,000, (iv) the occurrence of any "Change in Control" as defined in the
2008 Credit Agreement, "Change in Control" as defined in the 2005 Note Purchase
Agreement, or "Change in Control" as defined in the 2006 Note Purchase
Agreement,  (v) the occurrence of any other Event of Default if the
Required Enforcement Secured Parties have given written notice thereof to the
Collateral Agent and requested a specific Enforcement to be taken that is
permitted by the Collateral Documents (provided that the Collateral Agent shall
not be obligated to take such specific Enforcement unless directed to do so by
the Required Enforcement Secured Parties) or (vi) the occurrence of the date of
July 18, 2011.

    


    "Threshold Secured Debt
Ratio" means a ratio equal to the ratio of (a) 2008 Credit Agreement Base
Amount, to (b) the Notes Base Amount.

    


    "2008 Credit Agreement
Commitment" means the aggregate amount of the commitments to make
Advances under the 2008 Credit Agreement, as such amount is permanently reduced
from time to time, provided that after the termination or expiration of all such
commitments, then the outstanding amount of the 2008 Credit Agreement Commitment
shall be deemed equal to the outstanding principal balance of all
Advances.  As of the date hereof (i.e., February 17, 2009), the 2008
Credit Agreement Commitment equals $175,000,000.  Without duplication
of any permanent reduction to the amount of the commitments to make Advances
under the 2008 Credit Agreement as provided under the terms thereof, for all
purposes of this Agreement the amount of the commitments to make Advances under
the 2008 Credit Agreement shall be deemed to be reduced by the 2008 Credit
Agreement Reduction Amount.  Notwithstanding anything herein to the
contrary, any reduction in the 2008 Credit Agreement Commitment shall be
effective for purposes of this Agreement only to the extent that the outstanding
principal amount of all Advances under the Credit Agreement has been reduced to
an amount equal to or less than all commitments to make Advances under the 2008
Credit Agreement.


    
      
         


      

      
        -2-

        
          

        

      

      
         


      

    


    “2008 Credit Agreement
Reduction Amount” shall mean the mandatory reductions in the commitments
to make Advances under the 2008 Credit Agreement specified in Sections 2.3(b),
2.3(e) and the last paragraph of Section 2.6 of the 2008 Credit Agreement (as in
effect after giving effect to the Third Amendment thereto dated as
of  September 18, 2009); provided that such reductions shall be
effective only to the extent that the outstanding principal amount of all
Advances under the 2008 Credit Agreement has been reduced to an amount equal to
or less than all commitments to make Advances under the 2008 Credit Agreement as
reduced by such provision.  For the avoidance of doubt, the parties
hereto acknowledge that the 2008 Credit Agreement Reduction Amount includes a
$14,310,000 reduction in the commitments to make Advances under the 2008 Credit
Agreement that occurred under the last paragraph of Section 2.6 of the 2008
Credit Agreement prior to September 18, 2009, resulting in the aggregate
commitments to make Advances under the 2008 Credit Agreement being reduced to
$160,690,000 prior to September 18, 2009 (and the aggregate commitments to make
Advances under the 2008 Credit Agreement are $160,690,000 as of September 18,
2009).

    


    "2008 Credit Agreement
Superpriority Amount" means the lesser of (i) the amount in Dollars by
which the principal amount outstanding under the 2008 Credit Agreement exceeds
the 2008 Credit Agreement Base Amount (but excluding any amount by which the
aggregate principal amount under the 2008 Credit Agreement exceeds the 2008
Credit Agreement Commitment), and (ii) the 2008 Credit Agreement Superpriority
Cap, plus, in all cases, all interest and fees applicable to such amount;
provided that any new Advances made after July 18, 2011 shall not be considered
part of the 2008 Credit Agreement Superpriority Amount (but it is acknowledged
that any Advances outstanding on or before July 18, 2011, including any renewals
or continuations thereof at various LIBOR interest periods, shall not be
considered new Advances made after July 18, 2011).

    


    "2008 Credit Agreement
Superpriority Cap" means the difference of (i) $175,000,000 minus the
2008 Credit Agreement Reduction Amount, and (ii) 2008 Credit Agreement Base
Amount.

    


    


    1.3      
     Section 4.1(a)(iv) is restated as
follows:

    


    (iv)
FOURTH:  To
the ratable payment of the Secured Obligations to the Secured Parties not
described above, other than (1) the aggregate principal amount (and any interest
related thereto) under the 2008 Credit Agreement in excess of the 2008 Credit
Agreement Commitment, (2) the aggregate principal amount (and any interest
related thereto) under the 2005 Notes in excess of $75,000,000, as permanently
reduced from time to time, (3) the aggregate principal amount (and any interest
related thereto) under the 2006 Notes in excess of $75,000,000, as permanently
reduced from time to time, and (4) any Make-Whole Amount or similar prepayment
premium under the Note Purchase Agreements to the extent it exceeds an amount
that would have been calculated using the interest rates (which are the
applicable rates specified in clause (b)(ii) of the definition of Remaining
Scheduled Payments in the 2005 Note Purchase Agreement and in the 2006 Note
Purchase Agreement, as applicable) and other terms applicable to the Notes prior
to the amendments of the Note Purchase Agreements and the Notes executed on or
about the date hereof (i.e., February 17, 2009), provided that, notwithstanding
the foregoing, any True-Up Excess Amount shall be paid prior to any other amount
described in this Section 4.1(a)(iv);


    
      
         


      

      
        -3-

        
          

        

      

      
         


      

    


    1.4    
       Section 4.1(b) is restated as
follows:

    


    (b)   
        Each Secured Party hereby agrees
with each other Secured Party as follows:

    


    (i)
Notwithstanding anything herein to the contrary, upon the occurrence of a
Special Event of Default and after the 2008 Credit Agreement Superpriority
Amount is paid in full, the Secured Parties agree as follows:

    


    (A) The
ratio of the outstanding principal balance of the Advances under the 2008 Credit
Agreement to the outstanding principal balance of the Notes shall be required to
equal the Threshold Secured Debt Ratio.

    


    (B) If
the Threshold Secured Debt Ratio is not achieved upon such occurrence, the
Collateral Agent may adjust the distributions under Section 4.1(a)(iv) until the
Threshold Secured Debt Ratio is achieved.

    


    (C) If
the Threshold Secured Debt Ratio is not achieved within 90 days after the later
of the date the 2008 Credit Agreement Superpriority Amount is paid in full and
the occurrence of a Special Event of Default, then:

    


    (x) If
the Threshold Secured Debt Ratio is not so achieved because the outstanding
principal balance of the Advances under the 2008 Credit Agreement is less than
the amount required to achieve the Threshold Secured Debt Ratio, then the 2008
Lenders will pay over to the Noteholders such amounts as shall result in the
ratio of the outstanding principal balance of the Advances under the 2008 Credit
Agreement to the outstanding principal balance of the Notes being equal to the
Threshold Secured Debt Ratio.

    


    (y) If
the Threshold Secured Debt Ratio is not so achieved because the outstanding
principal balance of the Notes is less than the amount it should be to achieve
the Threshold Secured Debt Ratio, then the amount required to be paid on the
outstanding principal balance of the Advances under the 2008 Credit Agreement to
achieve the Threshold Secured Debt Ratio (the "True-Up Excess Amount") shall be
paid to 2008 Lenders before any amounts are distributed or otherwise paid to the
Noteholders under Section 4.1(a)(iv) hereof.

    


    (D) The
Collateral Agent shall determine the amount of payments owed by the Secured
Parties under this paragraph, and all Secured Parties required to make any
payments to any other Secured Party shall make such payments to the Collateral
Agent and the Collateral Agent shall distribute such payment to the appropriate
Secured Party.

    


    (ii)  Any
re-allocations of any Secured Obligations due to any other payments and other
transfers among the Secured Parties of any of the Secured Obligations under this
§4.1(b) shall be deemed to reduce the Secured Obligations of any Secured Party
receiving any payment or other transfer and shall be deemed to restore and
reinstate the Secured Obligations of any Secured Party making any payment or
other transfer, in each case by the amount of such payment and other transfer;
provided that if for any reason such restoration and reinstatement shall not be
binding against the Company, then the amount of such payments or other transfers
shall be deemed to be and shall be in consideration of the purchase for cash at
fair value, but without recourse, a like principal amount of the Advances or
Notes, as the case may be, held by the Secured Party receiving such payment or
transfer.  Notwithstanding anything herein to the contrary, the
Collateral Agent may adjust allocations of the Secured Obligation Distributions
under §4.1(a)(iii), (iv) and (v) to achieve the allocations and adjustments
required under this §4.1(b).


    
      
         


      

      
        -4-

        
          

        

      

      
         


      

    


    1.5    
       Section 4.1(i) is restated as
follows:

    


    (i)        
    Notwithstanding anything herein or in any Financing
Document to the contrary, all parties hereto acknowledge and agree
that:

    


    (1) The
terms of this Agreement assume that, prior to the occurrence of any Special
Event of Default,  no payment of any principal of the Notes or any
Make-Whole Amount will be applied thereto other than pursuant to Base Mandatory
Reductions.  Accordingly, all parties hereto agree that no such
payments will be applied without a further written agreement among the Required
Secured Parties to determine the correct application of such payments and any
other payments or terms that may be required.

    


    (2) With
respect to all Base Mandatory Reductions, prior to the occurrence of any Special
Event of Default, 61.475409836% of such Base Mandatory Reductions shall be
applied to the principal balance of the Notes and 38.524590163% of such Base
Mandatory Reductions shall be applied to principal of the Advances (except if
such amounts would exceed the then principal balance thereof, in which case such
amounts will reduce the commitments as stated in the 2008 Credit Agreement (as
in effect after giving effect to the Third Amendment thereto dated as
of  September 18, 2009)).

    


    (3) Prior
to the occurrence of any Special Event of Default, no Make-Whole Amount or
similar prepayment premium under the Note Purchase Agreements will be paid to
the extent it exceeds an amount that would have been calculated using the
interest rates (which are the applicable rates specified in clause (b)(ii) of
the definition of Remaining Scheduled Payments in the 2005 Note Purchase
Agreement and in the 2006 Note Purchase Agreement, as applicable) and other
terms applicable to the Notes prior to the amendments of the Note Purchase
Agreements and the Notes executed on or about the date hereof (i.e., February
17, 2009), other than deferred payments paid solely in kind, and not in
cash.

    


    (4) all
Mandatory Reductions will be applied to the  2008 Credit Agreement
Superpriority Amount before any application to the Notes Secured Obligations or
the 2008 Base Credit Agreement Secured Obligations

    


    


    1.6    
       The Secured Parties agree that the
$12,000,000 currently on deposit in the Collateral Agent Intercreditor
Collateral Account (as defined in the Intercreditor Agreement prior to this
Amendment) may be released to the Borrower on the date this Amendment becomes
effective under Section 2.2 of this Amendment, and authorize the Collateral
Agent to release such amount from the Collateral Agent Intercreditor Collateral
Account.


    
      
         


      

      
        -5-

        
          

        

      

      
         


      

    


    ARTICLE
2.

    CONDITIONS
PRECEDENT

    


    2.1      
     This Amendment shall be deemed closed (but not
effective until the conditions in Section 2.2 are satisfied) as of the date
hereof when each of the following has been satisfied:

    


    (a)  This
Amendment shall be signed by the Collateral Agent and the Required Secured
Parties.

    


    (b)  The
Consent and Agreement to this Amendment shall be signed by all parties
thereto.

    


    2.2     
      If the  conditions in Section 2.1
are satisfied, this Amendment shall become effective automatically as of the
date the Third Amendment dated as of the date hereof to the 2008 Credit
Agreement, the amendments in Sections 1.2 through 1.4 of the Fourth Amendment
dated as of the date hereof to the 2005 Note Purchase Agreement and the
amendments in Sections 1.2 through 1.4 of the Fourth Amendment dated as of the
date hereof to the 2006 Note Purchase Agreement are each
effective.  If this Amendment does not become effective on or before
September 30, 2009 it shall be null and void.

    


    


    ARTICLE
3.

    MISCELLANEOUS.

    


    3.1      
     References in any Financing Documents to the
Intercreditor Agreement shall be deemed to be references to the Intercreditor
Agreement as amended hereby and as further amended from time to
time.  Terms used but not defined herein shall have the respective
meanings ascribed thereto in the Intercreditor Agreement.

    


    3.2       
    Except as expressly amended hereby, each of the parties
hereto agrees that the Intercreditor Agreement is ratified and confirmed and
shall remain in full force and effect.

    


    3.3      
     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.


    
      
         


      

      
        -6-

        
          

        

      

      
         


      

    


    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
..

    


    
      	 
      	
              JPMORGAN CHASE BANK,
      N.A., as Collateral Agent

            
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	
              By:

            	/s/ Krys
      Szremski  
	 
      	 
      	
              Name:
      Krys Szremski  

            
	 
      	 
      	
              Title: 
      V.P.

            


    


    
      
         


      

      
        -7-

        
          

        

      

      
         


      

    


    2008
LENDERS:

    


    
      	 
      	
              JPMORGAN CHASE BANK,
      N.A., as Agent and as a 2008 Lender

            
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	
              By:

            	/s/ Krys
      Szremski    
	 
      	 
      	
              Name:
      Krys Szremski 

            
	 
      	 
      	
              Title: 
      V.P.

            


    


    
      
         


      

      
        -8-

        
          

        

      

      
         


      

    

     

    
      	 
      	
              BANK OF AMERICA, N.A.,
      as a 2008 Lender

            
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	
              By:

            	 
      
	 
      	 
      	
              Name:

            
	 
      	 
      	
              Title:

            


    


    
      
         


      

      
        -9-

        
          

        

      

      
         


      

    

     

    
      	 
      	
              M&I MARSHALL & ILSLEY
      BANK, as a 2008 Lender

            
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	
              By:

            	/s/
      Gina Peter  
	 
      	 
      	
              Name:
      Gina Peter

            
	 
      	 
      	
              Title:  
      SVP

            
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	
              By:

            	/s/
      illegible  
	 
      	 
      	
              Name:

            
	 
      	 
      	
              Title:
      AVP

            


    


    
      
         


      

      
        -10-

        
          

        

      

      
         


      

    

     

    
      	 
      	
              WELLS FARGO BANK, N.A.,
      as a 2008 Lender

            
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	
              By:

            	 
      
	 
      	 
      	
              Name:

            
	 
      	 
      	
              Title:

            


    


    
      
         


      

      
        -11-

        
          

        

      

      
         


      

    

     

    
      	 
      	
              Commerzbank, AG as
      a 2008 Lender

            
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	
              By:

            	/s/
      Franz Brugger  
	 
      	 
      	
              Name:
      Franz Brugger

            
	 
      	 
      	
              Title:  
      Director

            


    

    
      	 
      	 
      	 
      
	 
      	
              By:

            	/s/ Sven
      Baugot  
	 
      	 
      	
              Name:
      Sven Baugot 

            
	 
      	 
      	
              Title:  
      Assistant Vice President

            


    


    
      
         


      

      
        -12-

        
          

        

      

      
         


      

    

     

    
      	 
      	
              U.S. BANK, NATIONAL
      ASSOCIATION, as a 2008 Lender

            
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	
              By:

            	 
      
	 
      	 
      	
              Name:

            
	 
      	 
      	
              Title:

            


    


    
      
         


      

      
        -13-

        
          

        

      

      
         


      

    

     

    
      	 
      	
              COMERICA BANK, as a 2008
      ender

            
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	
              By:

            	/s/
      Mark J. Leveille  
	 
      	 
      	
              Name:
      Mark J. Leveille

            
	 
      	 
      	
              Title:
      Vice President

            


    


    
      
         


      

      
        -14-

        
          

        

      

      
         


      

    

     

    
      	 
      	
              2005 NOTEHOLDERS:

            	 
      
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	
              By:

            	 
      	 
      
	 
      	
              Name:

            	 
      
	 
      	
              Title:

            	 
      


    


    
       

      
        -15-

        
          

        

      

      
        
        

      

    

     

    
      	 
      	
              2006 NOTEHOLDERS:

            	 
      
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	
              By:

            	 
      	 
      
	 
      	
              Name:

            	 
      
	 
      	
              Title:

            	 
      


    


    
      
         


      

      
        -16-

        
          

        

      

      
         


      

    


    CONSENT AND
AGREEMENT

    


    As of the
date and year first above written, each of the undersigned hereby fully consents
to the terms and provisions of the above Amendment and the consummation of the
transactions contemplated thereby, and acknowledges and agrees to (a) all terms
and provisions of the above Amendment applicable to it, including without
limitation all covenants, representations and warranties, releases,
indemnifications, and all other terms and provisions, and (b) continue to be
bound by terms and provisions of the Consent and Agreement to the Intercreditor
Agreement (as defined in the above Amendment) previously executed by
it.

    


    IN
WITNESS WHEREOF, the undersigned have caused this Consent and Agreement to be
executed as of the date first above written.

    


    


    
      	 
      	
              MODINE
      MANUFACTURING COMPANY

            
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	
              By:

            	/s/
      Bradley C. Richardson  
	 
      	
              Name: Bradley
      C. Richardson  

            
	 
      	
              Title:   Executive
      Vice President - Corporate Strategy & Chief Financial
      Officer

            
	 
      	 
      	 
      
	 
      	
              MODINE,
      INC.

            
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	
              By:

            	/s/
      William K. Langan  
	 
      	
              Name: William
      K. Langan 

            
	 
      	
              Title:   President

            
	 
      	 
      	 
      
	 
      	
              MODINE
      ECD, INC.

            
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	
              By:

            	/s/
      Bradley C. Richardson   
	 
      	
              Name: 
      Bradley C. Richardson 

            
	 
      	
              Title:   Vice
      President & Assistant Treasurer

            


    

     

     

    -17-