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):

March 15, 2012
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.

o
Written communications pursuant to Rule 425 under the Securities Act
o
Soliciting material pursuant to Rule 14a-12 under the Exchange Act
o
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act
o
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act
 
 
 
 
 
TABLE OF CONTENTS

Item 1.01
Entry into a Material Definitive Agreement

Item9.01 
Financial Statements and Exhibits

Signature

INFORMATION TO BE INCLUDED IN THE REPORT

Item 1.01
Entry into a Material Definitive Agreement

On March 15, 2012, Modine Manufacturing Company (the "Company" or "Modine") entered into the following agreements:

 
·
First Amendment to Amended and Restated Credit Agreement  and Waiver(the “Credit Amendment”) dated as of March 15, 2012, with JPMorgan Chase Bank, N.A. (“JPMorgan”), as Administrative Agent, LC Issuer, Swing Line Lender and as a Lender, and U.S. Bank, N.A. and Wells Fargo Bank, N.A. as Syndication Agents and as Lenders, BMO Harris Bank N.A., formerly known as M&I Marshall & Ilsley Bank, as Documentation Agent and as Lender and Associated Bank, N.A. and Comerica Bank (collectively, the “Lenders”).  The Credit Amendment amends Modine’s existing four-year, $145 million multi-currency revolving credit facility dated as of August 12, 2010 (the “Original Credit Agreement”); and

 
·
First Amendment to Note Purchase and Private Shelf Agreement and Waiver (the “Note Purchase Amendment”) dated as of March 15, 2012, with Prudential Investment Management, Inc., The Prudential Insurance Company of America and Prudential Retirement Insurance and Annuity Company (collectively the “Noteholders”) pursuant to which the Company and the Note Holders amended their Note Purchase and Private Shelf Agreement dated August 12, 2010 (the “Original Note Purchase Agreement”).

Credit Amendment
 
Modine entered into the Credit Amendment for the purpose of (i) obtaining waivers of certain inadvertent defaults relating to unfunded liabilities associated with the Company’s benefit plans;(ii) obtaining more favorable pricing and more flexible covenants; and (iii) modifying certain other provisions of the Original Credit Agreement.
 
The following is a summary of the primary provisions of the Credit Amendment (with the use of additional defined terms relating specifically to those in the Credit Amendment):
 
 
·
Modine sought and the Lenders provided a waiver of certain inadvertent events of default as a result of (a) the amount of Unfunded Liabilities and (b) Modine’s incorrect representation in the Original Note Purchase Agreement relating to the Unfunded Liabilities.  In connection therewith, Modine represented that any and all disclosures regarding the funded status of any Plan have consistently and accurately been made in its financial statements in accordance with applicable accounting principles.
 
·
The definition of “Restructuring Charges” (which are permitted to be excluded from certain financial covenant calculations) was amended to further explain what is include within the category of equipment transfer expenses, and also to refresh the basket of Restructuring Charges such that it applies for all times after December 31, 2011.
 
·
Modine’s representations and warranties relative to ERISA compliance were amended and restated, and applicable definitions were created, primarily to address specific, adverse ERISA Events.
 
·
Covenants (and in certain cases, related definitions) were amended and restated to:
 
 
1
 
 
 
·
Change the dates on which Modine’s compliance certificates are due to conform to Modine’s periodic report deadlines;
 
·
Require notice upon the occurrence of an ERISA Event;
 
·
Increase the permitted basket for certain loans or advances from $50 million to $100 million;
 
·
Permit certain transfers of assets or capital stock of a Domestic Subsidiary or a Foreign Subsidiary to Modine or a Wholly-Owned Subsidiary;
 
·
Allow permitted Supply Chain Finance Programs and other receivables-related Indebtedness and increase the permitted aggregate basket to $100 million;
 
·
Increase the Indebtedness of Foreign Subsidiaries to $100 million.

 
·
Provisions relating to events of default were amended relative to any occurrence of an ERISA Event.
 
·
The Pricing Schedule was updated to reflect lower Applicable Margin and Fee Rates and the introduction of a new pricing level (Level V).  The applicable Margin and Fee Rate shall be set at Level III as of the Effective Date of the Credit Amendment, and will be adjusted for the first time thereafter based on the financials for the Fiscal Quarter ending March 31, 2012.

Except for the Modine subsidiaries that guarantee Modine’s obligations under the Credit Agreement, there are no material relationships between Modine and any of the other parties to the Credit Agreement.

Note Purchase Amendment

Modine entered into the Note Purchase Amendment for the purposes of (i) obtaining waivers of certain inadvertent defaults relating to unfunded liabilities associated with the Company’s benefit plans; (ii) obtaining more flexible covenants; and (iii) modifying certain other provisions of the Original Credit Agreement to conform the Original Note Purchase Agreement to certain provisions of the Credit Amendment.

The following is a summary of the primary provisions of the Note Purchase Amendment (with the use of additional defined terms relating specifically to those in the Note Purchase Amendment):

 
·
Modine sought and the Noteholders provided a waiver of certain inadvertent events of default as a result of (a) Modine’s incorrect representation in the Original Note Purchase Agreement relating to the Unfunded Liabilities; and (b) the inadvertent default under the Original Credit Agreement relating to the amount of Unfunded Liabilities.  In connection therewith, Modine represented that any and all disclosures regarding the funded status of any Plan have consistently and accurately been made in its financial statements in accordance with applicable accounting principles.
 
·
The definition of “Restructuring Charges” (which are permitted to be excluded from certain financial covenant calculations) was amended to further explain what is include within the category of equipment transfer expenses, and also to refresh the basket of Restructuring Charges such that it applies for all times after December 31, 2011.
 
·
Certain representations and warranties relative to ERISA compliance were amended and/or restated, and applicable definitions were created, primarily to address specific, adverse ERISA Events and the status of employee benefit or pension plans of each Foreign Subsidiary.
 
·
Dates on which Modine’s compliance certificates are due were adjusted to conform to Modine’s periodic report deadlines.
 
·
Notice requirements regarding ERISA matters were amended and restated to address any occurrence of ERISA Events.
 
·
Covenants (and in certain cases, related definitions) relating to limitations on Debt, sale of assets, loans or advances, investments and acquisitions and sale of accounts were amended and restated to:

 
·
Allow for certain Permitted Supply Chain Finance Programs and other receivables-related Debt and increase the permitted aggregate basket for such matters to $100 million;
 
 
2
 
 
 
·
increase the permitted basket for Debt of Foreign Subsidiaries to $100 million;
 
·
increase the basket for certain permitted loans or advances from $50 million to $100 million; and
 
·
Permit certain transfers of assets or capital stock of a Domestic Subsidiary or a Foreign Subsidiary to Modine or a Wholly-Owned Subsidiary;

 
·
Stated events of default were amended relative to the occurrence of any ERISA Event.
 
·
Modine made or reaffirmed (after giving effect to the Note Purchase Amendment and Credit Amendment) various representations and warranties.

Except for the Modine subsidiaries that guarantee Modine’s obligations under the Note Purchase Agreement, there are no material relationships between Modine and any of the other parties to the Note Purchase Agreement.

The foregoing descriptions of the Credit Amendment and the Note Purchase Amendment do not purport to be complete and are qualified in their entirety by reference to the respective amendments, copies of which are attached hereto as Exhibits 4.1 and 4.2, respectively, and incorporated herein by reference.

Item9.01 
Financial Statements and Exhibits
 
(d)           Exhibits
 
Exhibit No. Description
   
4.1 First Amendment to Amended and Restated Credit Agreement and Waiver
   
4.2  First Amendment to Note Purchase and Private Shelf Agreement and Waiver
 
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: March 19, 2012
   
 
 
3
 
 
EXHIBIT INDEX
 
Exhibit No. Description
   
4.1 First Amendment to Amended and Restated Credit Agreement and Waiver
   
4.2  First Amendment to Note Purchase and Private Shelf Agreement and Waiver
 
 
4
EXHIBIT 4.1
 
Execution Copy

FIRST AMENDMENT TO AMENDED AND RESTATED   CREDIT AGREEMENT AND WAIVER

THIS FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT AND WAIVER, dated as of March 15, 2012 (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.

RECITALS

A.           The Borrower, the Lenders party thereto and the Agent are parties to an Amended and Restated Credit Agreement dated as of August 12, 2010 (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.

B.            The Borrower has notified the Agent of an inadvertent default under Section 7.11 of the Credit Agreement as a result of the amount of Unfunded Liabilities under the Borrower’s defined benefit plans exceeding the threshold permitted under Section 7.11 of the Credit Agreement.  The Borrower has requested a waiver of this inadvertent default, 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 Administrative Agent that inadvertent Defaults have occurred under (i) Section 7.11 of the Credit Agreement as a result of the amount of Unfunded Liabilities and (ii) Section 7.6 of the Credit Agreement due to an “Event of Default” under clause (e) of Section 11 of the Senior Note Purchase Agreement as a result of an incorrect representation in the Senior Note Purchase Agreement with respect to the amount of Unfunded Liabilities (the “Existing Defaults”) and under clause (f) of Section 11 of the Senior Note Purchase Agreement as a result of the cross-default to the Credit Agreement.  The Borrower represents that any and all disclosures regarding the funding status of any Plan have consistently and accurately been made in its financial statements in accordance with Agreement Accounting Principles.  The Borrower and the Guarantors have requested that the Lenders and the Administrative Agent waive the Existing Defaults.

1.2           Pursuant to such request, and subject to (a) the accuracy of the representations of the Borrower and the Guarantors 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.  Each of the Borrower and each Guarantor 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 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 Administrative 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 and 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.
 
 
-1-
 

ARTICLE 2.
AMENDMENTS

The Credit Agreement shall be amended as follows:

2.1           The following definitions are added to Article I of the Credit Agreement in appropriate alphabetical order:

"ERISA Affiliate" means any trade or business (whether or not incorporated) that, together with the Borrower, is treated as a single employer under Section 414(b) or (c) of the Code or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under Section 414 of the Code.

"ERISA Event" means (a) any "reportable event", as defined in Section 4043 of ERISA or the regulations issued thereunder with respect to a Plan (other than an event for which the 30 day notice period is waived); (b) failure to meet the minimum funding standard of Section 412 of the Code with respect to a Plan (whether or not waived in accordance with Section 412(c) of the Code) or the failure to make by its due date a required installment under Section 430(j) of the Code with respect to any Plan or the failure to make any required contribution to a Multiemployer Plan; (c) the filing pursuant to Section 412(c) of the Code or Section 302(c) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan; (d) the incurrence by the Borrower or any of its ERISA Affiliates of any unfunded liability under Title IV of ERISA with respect to the termination of any Plan; (e) a determination that any Plan is in “at risk” status (as defined in Section 303(i)(4) of ERISA or Section 430(i)(4) of the Code); (f) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan administrator of any notice relating to an intention by the PBGC to terminate any Plan or Plans or to appoint a trustee to administer any Plan; (g) the incurrence by the Borrower or any of its ERISA Affiliates of any liability that is not eliminated by the application of Section 4208(e) or 4209 of ERISA with respect to the withdrawal or partial withdrawal from any Plan or Multiemployer Plan; (h) the receipt by the Borrower or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability (as defined in ERISA) that is not eliminated by the application of Section 4208(e) or 4209 of ERISA, or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA, or is in endangered or critical status, within the meaning of Section 305 of ERISA; (i) the imposition of liability on Borrower or any of its ERISA Affiliates pursuant to Section 4062(e) or 4069 of ERISA, or by reason of the application of Section 4212(c) of ERISA; or (j) the imposition of a Lien pursuant to Section 430(k) of the Code or pursuant to ERISA with respect to any Plan.

“First Amendment” means the First Amendment to this Agreement dated March 15, 2012.

“First Amendment Effective Date” means the date the First Amendment is effective.

“Permitted Factoring” means a factoring or similar sale of accounts receivable and related rights and property on a non-recourse basis by a Foreign Subsidiary in the ordinary course of business which is not entered into in connection with or as part of a Qualified Receivables Transaction or Supply Chain Finance Program.
 
 
-2-
 

“Receivables/Factoring/SCF Indebtedness” means (i) all Receivables Transaction Attributed Indebtedness, (ii) Supply Chain Finance Outstanding Obligations, and (iii) Off-Balance Sheet Liabilities under all Permitted Factoring.

2.2           The following definitions in Article I of the Credit Agreement are restated as follows:

“Off-Balance Sheet Liability” of a Person means (i) any repurchase obligation or liability of such Person with respect to accounts or notes receivable sold by such Person, (ii) any liability under any Sale and Leaseback Transaction that is not a Capitalized Lease or so-called “synthetic lease” transaction, but excluding from this clause (ii) all such Sale and Leaseback Transactions existing as of the Effective Date where the liability is less than $10,000,000 in the aggregate and such Sale and Leaseback Transactions entered into after the Effective Date where the liability is less than $50,000,000 in the aggregate (in each case as determined by aggregating the present value, applying an appropriate discount rate from the date on which each fixed lease payment is due under such lease to such date of determination), (iii) any liability under any so-called “synthetic lease” transaction entered into by such Person, or (iv) any obligation arising with respect to any other transaction which is the functional equivalent of or takes the place of borrowing but which does not constitute a liability on the balance sheets of such Person, but excluding from this clause (iv) Operating Leases, but including without limitation, any factoring of, or similar arrangements with respect to, receivables or similar obligations sold by or pursuant to factoring or similar agreements.  The amount of any Off-Balance Sheet Liability  will be determined based on the amount of obligations outstanding under the legal documents entered into as part of transaction that would be characterized as principal if such transaction were structured as a secured lending transaction.

“Restructuring Charges” means certain cash charges related to 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 (including shipping and related expense, product validation incurred to validate receiving plant capability, and receiving plant physical modifications required to accept transferred product); employee outplacement; environmental services; and employee insurance and benefits continuation; and

(b) the aggregate amount of all Restructuring Charges shall not exceed (i) $20,000,000 in any Fiscal Year or (ii) $40,000,000 for all times after December 31, 2011.

“Supply Chain Finance Outstanding Obligations” means, at any time, (i) the aggregate amount of all trade receivables that would then be owing to the Borrower and/or its Subsidiaries by sponsors of Supply Chain Finance Programs, if the Borrower and its Subsidiaries were not participating in such Supply Chain Finance Programs, minus (ii) the aggregate amount of all trade receivables then owing to the Borrower and/or its Subsidiaries by such sponsors of Supply Chain Finance Programs, that have not been transferred under such Supply Chain Financing Programs.

“Supply Chain Finance Program” means each supply chain financing or similar program established by customers of the Borrower and its Subsidiaries, pursuant to which the Borrower and its Subsidiaries may sell trade receivables and the rights directly related thereto (or sell negotiable instruments or other rights created to represent the obligations owing pursuant to a trade receivable or enter into any other form of transaction with the intent of improving liquidity with respect to trade receivables) owing by such customer to the Borrower and its Subsidiaries, in the ordinary course of business.
 
 
-3-
 
 
2.3           Section 5.7 is restated as follows:

Section 5.7         Compliance with ERISA .

(a)           The Borrower and each member of the Controlled Group (excluding Foreign Subsidiaries of the Borrower) have fulfilled their obligations under the minimum funding standards of ERISA and the Code with respect to each Plan and are in compliance in all material respects with the presently applicable provisions of ERISA and the Code, and have not incurred any liability to the PBGC.

(b)           No ERISA Event has occurred or is reasonably expected to occur that, when taken together with all other such ERISA Events for which liability is reasonably expected to occur, could reasonably be expected to result in a Material Adverse Effect.  Each Plan complies in all material respects with all applicable requirements of law and regulations, neither the Borrower nor any other member of the Controlled Group has withdrawn from any Plan or initiated steps to do so, and no steps have been taken to reorganize or terminate any Plan.
 
(c)           Neither the Borrower nor any member of the Controlled Group (excluding Foreign Subsidiaries of the Borrower) is or ever has been obligated to contribute to any Multiemployer Plan.

(d)           Each Foreign Subsidiary of the Borrower:  (i) has fulfilled its funding obligations under any and all applicable laws, regulations and similar requirements of governmental authorities with respect to each employee benefit or pension plan; (ii) is in compliance in all material respects with the presently applicable provisions of such laws, regulations and requirements; and (iii) except as disclosed in the financial statements referred to in Section 5.5, has not incurred any material liability, indebtedness or obligation under or in connection with any employee benefit or pension plan.

2.4           Sections 6.1(c) and (g) are restated as follows:

(c)           within 90 days after the close of each of its Fiscal Years and within 45 days after the close of the first three quarterly periods of each of its Fiscal Years, a certificate in the form of Exhibit E attached hereto of an Authorized Officer of the Borrower (i) setting forth in reasonable detail the calculations required to establish whether the Borrower was in compliance with the requirements of Sections 6.3, 6.4, 6.5, 6.9, 6.16 and 6.18 on the date of such financial statements and (ii) stating whether any Default or Unmatured Default exists on the date of such certificate and, if any Default or Unmatured Default then exists, setting forth the details thereof and the action which the Borrower is taking or proposes to take with respect thereto;

(g)           promptly after becoming aware thereof, notice of the occurrence of any ERISA Event that, alone or together with any other ERISA Events that have occurred, could reasonably be expected to result in liability of the Borrower and its Subsidiaries in an aggregate amount exceeding $5,000,000;
 
 
-4-
 

2.5           Reference in Section 6.4(f) of the Credit Agreement to “$50,000,000” is deleted and “$100,000,000” is substituted in place thereof.
 
2.6           Section 6.5(b) is amended by adding the word “such” before the word Investments in the third line of Section 6.5(b).
 
2.7           Section 6.9(b)(iv) is restated as follows:

(iv)          (A) any transfer of assets pursuant to an Investment permitted under Section 6.5, and (B) any transfer of the ownership of the Capital Stock of any Domestic Subsidiary to the Borrower or to a Domestic Subsidiary that is a Wholly-Owned Subsidiary and any transfer of the ownership of the Capital Stock of any Foreign Subsidiary to the Borrower or to any Subsidiary that is a Wholly-Owned Subsidiary; provided that with respect to any such transfer ownership of Capital Stock, the Borrower shall comply with Section 2.26 hereof and no Default or Unmatured Default exists or would be caused thereby;

2.8           Sections 6.16 and 6.17 are restated as follows:

Section 6.16.           Indebtedness .  The Borrower will not, nor will it permit any Subsidiary to, create, incur or suffer to exist any Indebtedness, except:

(a)           The Loans and the Reimbursement Obli gations.

(b)           Intercompany Indebtedness among the Borrower and its Subsidiaries to the extent permitted under Section 6.5, provided that any such Indebtedness owing by the Borrower or any Guarantor to any Subsidiary (other than a Guarantor) are evidenced by documents satisfactory to the Agent and are subordinated to all Secured Obligations on terms and by agreements satisfactory to the Agent (which terms shall permit scheduled principal and interest payments so long as no Default or Unmatured Default exists at the time of, or would be caused by, any such payment and the Leverage Ratio immediately before and after giving effect to any such payment the Leverage Ratio is 3.0:1.0 or less).

(c)           the Senior Note Debt in aggregate principal amount not to exceed $150,000,000, as reduced from time to time.

(d)           Receivables/Factoring/SCF Indebtedness not to exceed $100,000,000 in aggregate principal amount outstanding at any time, if no Default or Unmatured Default exists at the time of, or would be caused by, the incurrence of any such Indebtedness.

(e)            Subordinated Debt, if no Default or Unmatured Default exists at the time of, or would be caused by, the incurrence of any such Subordinated Debt.

(f)            Indebtedness assumed in connection with a Permitted Acquisition.

(g)           Indebtedness of Foreign Subsidiaries, provided that (i) the aggregate outstanding amount of all Indebtedness of all Foreign Subsidiaries (excluding any Indebtedness permitted under any other subsection of this Section 6.16, Rate Management Obligations, and Banking Services Obligations) shall not at any time exceed a Dollar Amount of $100,000,000, and (ii) no Default or Unmatured Default exists at the time of, or would be caused by, the incurrence of any such Indebtedness.
 
 
-5-
 

Section 6.17       Sale of Accounts .  The Borrower 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 the (a) sale or assignment of accounts for collection purposes in the ordinary course of business, and (b) sale or assignment of trade notes receivable or accounts receivable in connection with any Permitted Factoring, any Qualified Receivables Transactions or any Supply Chain Finance Program to the extent the aggregate amount of Indebtedness thereunder is permitted under Section 6.16.
 
2.9           Section 7.9 is restated as follows:

Section 7.9    An ERISA Event shall have occurred that, in the opinion of the Required Lenders, when taken together with all other ERISA Events that have occurred, could reasonably be expected to result in liability of the Borrower and its Subsidiaries in an aggregate amount exceeding (i) $10,000,000 in any Fiscal Year or (ii) $20,000,000 in the aggregate from and after March 31, 2011; or
 
2.10          Section 7.11 is restated as follows:

Section 7.11 [Intentionally Omitted]; or

2.11          The following is added to the end of the first sentence of Section 10.12 of the Credit Agreement: “(including without limitation the release of any Lien on any Capital Stock or other asset in connection with a transfer permitted under Section 6.9(b)(iv) if the Lien on any such Capital Stock or other asset is no longer required under Section 2.26).

2.12          The last sentence of Section 10.12 of the Credit Agreement is restated as follows: “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 Permitted Factoring, Qualified Receivables Transaction or a Supply Chain Finance Program permitted hereunder.

2.13          The Pricing Schedule and Schedule 5.9 attached to the Credit Agreement are replaced with the Pricing Schedule and Schedule 5.9, respectively, attached hereto.  All parties acknowledge that the Exhibits A, B, C, D and E to the Credit Agreement are Exhibits A, B, C, D and E attached hereto.
 
ARTICLE 3.
REPRESENTATIONS

The Borrower represents and warrants to the Agent and the Lenders that:
 
 
-6-
 

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 obligation 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 amendments herein contained and the amendments to Note Purchase Documents being delivered pursuant to Section 3.2 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           A complete and correct copy of the amendment to the Senior Note Purchase Agreement is attached hereto as Schedule 3.3, and such amendment is being executed simultaneously herewith and will be effective on the date hereof.

3.4           Any and all disclosures by the Borrower or any of its Subsidiaries regarding the funding status of any Plan have consistently and accurately been made in the Borrower’s financial statements in accordance with GAAP.
 
ARTICLE 4.
CONDITIONS PRECEDENT

This Amendment shall be effective as of the date hereof when each of the following has been satisfied:

4.1           This Amendment shall be signed by the Borrower, the Agent and the Lenders.

4.2           The Lenders shall have received an amendment and waiver to the Senior Note Purchase Agreement, and such amendment and waiver shall be executed simultaneously herewith, shall be satisfactory to the Agent and shall automatically become effective simultaneously with this Amendment.

4.3           The Borrower shall have paid all fees required to be paid on the date hereof.

4.4           The Consent and Agreement to this Amendment shall be signed by all parties thereto.

4.5           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.

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.
 
 
-7-
 

5.2           Except as expressly amended hereby, each of the Borrower and each Guarantor 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.

5.3           Each of the Borrower and each Guarantor 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 and each Guarantor, 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           Each of the Borrower and each Guarantor acknowledges and agrees that each of the Agent and the Lenders has fully performed all of its obligations under all Loan Documents as of the date hereof, 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.  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.
 
 
-8-
 

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/ Michael B. Lucareli
     
  Title: Vice President, Finance and Chief Financial Officer

 
-9-
 

  JPMORGAN CHASE BANK, N.A. , as the Agent, as the Swing Line Lender, as the LC Issuer and as a Lender
   
  By:
/JPMorgan Chase Bank, N.A./
     
  Title:  
 
 
-10-
 
 
 
U.S. BANK, N.A. , as a Syndication Agent and as a Lender
   
  By:
/U.S. Bank, N.A./
     
  Title:  
 
 
-11-
 
 
 
WELLS FARGO BANK, N.A. , as a Syndication Agent and as a Lender
   
  By:
/Wells Fargo Bank, N.A./
     
  Title:  

 
-12-
 
 
 
BMO HARRIS BANK N.A. , formerly known as M&I   Marshall & Ilsley Bank , as a Documentation Agent and as a Lender
   
  By:
/BMO Harris Bank N.A./
     
  Title:  
 
 
-13-
 
 
 
ASSOCIATED BANK, N.A.
   
  By:
/ Associated Bank, N.A./
     
  Title:  
 
 
-14-
 

 
COMERICA BANK
   
  By:
/Comerica Bank/
     
  Title:  
 
 
-15-
 

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 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.

 
MODINE, INC.
   
  By: 
/s/William K. Langan
     
  Its: President
   
 
MODINE LLC
   
  By: 
/s/ William K. Langan
     
  Its: President

 
-16-
 
 
PRICING SCHEDULE

Applicable
Margin
Level I
Status
Level II
Status
Level III
Status
Level Iv
Status
Level V
Status
Eurocurrency
Rate and Letter
of Credit Fees
1.50%
1.75%
2.00%
2.25%
2.50%
Floating Rate
0.50%
0.75%
1.00%
1.25%
1.50%

Applicable
Fee Rate
Level I
Status
Level II
Status
Level III
Status
Level IV
Status
Level V
Status
Commitment
Fee
0.25%
0.30%
0.35%
0.40%
0.45%
 
For the purposes of this Schedule, the following terms have the following meanings, subject to the final paragraph of this Schedule:

"Financials" means the annual or quarterly financial statements of the Borrower delivered pursuant to Section 6.1(i) or (ii).

"Level I Status" exists at any date if, as of the last day of the Fiscal Quarter of the Borrower referred to in the most recent Financials, the Leverage Ratio is less than or equal to 0.50 to 1.00.

"Level II Status" exists at any date if, as of the last day of the Fiscal Quarter of the Borrower referred to in the most recent Financials, (i) the Borrower has not qualified for Level I Status and (ii) the Leverage Ratio is less than or equal to 1.25 to 1.00.

"Level III Status" exists at any date if, as of the last day of the Fiscal Quarter of the Borrower referred to in the most recent Financials, (i) the Borrower has not qualified for Level I or II Status and (ii) the Leverage Ratio is less than or equal to 2.00 to 1.00.

"Level IV Status" exists at any date if, as of the last day of the Fiscal Quarter of the Borrower referred to in the most recent Financials, (i) the Borrower has not qualified for Level I, II or III Status and (ii) the Leverage Ratio is less than or equal to 2.75 to 1.00.

"Level V Status" exists at any date if the Borrower has not qualified for Level I, II, III or IV Status.

"Leverage Ratio" shall have the meaning set forth in Article I of the Credit Agreement, provided however, that for the purpose of determining Status, Rate Management Obligations shall be excluded in the calculation of the Borrower’s Consolidated Total Debt.

"Status" means either Level I Status, Level II Status, Level III Status, Level IV Status or Level V Status.
 
 
1
 

The Applicable Margin and Applicable Fee Rate shall be determined in accordance with the foregoing table based on the Borrower's Status as reflected in the then most recent Financials.  Adjustments, if any, to the Applicable Margin or Applicable Fee Rate shall be effective five Business Days after the Agent has received the applicable Financials.  If the Borrower fails to deliver the Financials to the Agent at the time required pursuant to Section 6.1, then the Applicable Margin and Applicable Fee Rate shall be the highest Applicable Margin and Applicable Fee Rate set forth in the foregoing table until five days after such Financials are so delivered.  The Applicable Margin and Fee Rate shall be set at Level III as of the First Amendment Effective Date and will be adjusted for the first time thereafter based on the Financials for the Fiscal Quarter ending March 31, 2012.
 
 
2
 

SCHEDULE 5.9

SUBSIDIARIES

Subsidiaries of the Company

The table below indicates each of the Company's subsidiaries, each subsidiary's jurisdiction of incorporation, and the percentage of its voting securities owned by the Company or its subsidiaries.
 
 
 
Subsidiaries
State or
country of incorporation
or
organization
% of
voting
securities
 
 
Owned by
       
Modine, Inc.
Delaware
100%
Company
Modine ECD, Inc.
Pennsylvania
100%
Company
Modine Holding GmbH
Germany
100%
Company
Modine Jackson, Inc.
Delaware
100%
Company
Modine Japan K.K.
Japan
100%
Company
Modine Thermal Systems Korea, LLC
Korea
100%
Company
Modine Manufacturing Company  Foundation, Inc.
Wisconsin
100%
Company
Modine Thermal Systems (Changzhou) Company Ltd.
China
100%
Company
Modine Thermal Systems (Shanghai) Company Ltd.
China
100%
Company
Modine Thermal Systems Private Limited
India
99%
Company (1)
Modine UK Dollar Limited
UK
100%
Company
Airedale International Air Conditioning Limited
UK
100%
Modine UK Dollar Limited
Airedale Group Limited
UK
100%
Airedale International Air Conditioning Limited
Airedale Sheet Metal Limited
UK
100%
Airedale International Air Conditioning Limited
Airedale Compact Systems Limited
UK
100%
Airedale International Air Conditioning Limited
AIAC Air Conditioning SA (Pty) Limited
South Africa
100%
Airedale International Air Conditioning Limited
Modine LLC
Delaware
100%
Modine, Inc.
Modine do Brasil Sistemas Termicos Ltda.
Brazil
99.9%
Modine, Inc. (2)
Modine Transferencia de Calor, S.A. de C.V.
Mexico
99.6%
Modine, Inc. (2)
Modine Austria Holding GmbH
Austria
100%
Modine Holding GmbH
Modine Austria Ges.m.b.H.
Austria
100%
Modine Austria Holding GmbH
Modine Austria Immobilien GmbH
Austria
100%
Modine Austria Ges.m.b.H.
Thermacore Korea, Ltd.
Korea
100%
Modine ECD, Inc.
Modine Pliezhausen GmbH
Germany
100%
Modine Holding GmbH
Modine Europe GmbH
Germany
100%
Modine Holding GmbH
Modine RUS Limited Liability Company
Russia
99%
Modine Holding GmbH (3)
 
 
1
 
 
Modine Grundstucksverwaltungs GmbH
Germany
100%
Modine Holding GmbH
Modine Kirchentellinsfurt GmbH
Germany
100%
Modine Holding GmbH
Modine Wackersdorf GmbH
Germany
100%
Modine Holding GmbH
Modine Neuenkirchen GmbH
Germany
100%
Modine Holding GmbH
Modine Hungaria Gep. Kft.
Hungary
99%
Modine Holding GmbH (3)
Modine Pontevico S.r.l.
Italy
100%
Modine Holding GmbH
Modine Uden B.V.
Netherlands
100%
Modine Holding GmbH

(1) Balance of voting securities held by Modine, Inc.
(2) Balance of voting securities held by the Company
(3) Balance of voting securities held by Modine Europe GmbH
 
 
2
 

Schedule 3.3

See attached copy of the amendment to the Senior Note Purchase Agreement

 
 
 

See attached Exhibits A, B, C, D and E
 
 
 
 
 
EXHIBIT A

ASSIGNMENT AND ASSUMPTION AGREEMENT

This Assignment and Assumption (the " Assignment and Assumption ") is dated as of the Effective Date set forth below and is entered into by and between [ Insert name of Assignor ] (the " Assignor ") and [ Insert name of Assignee ] (the " Assignee ").  Capitalized terms used but not defined herein shall have the meanings given to them in the Amended and Restated Credit Agreement identified below (as amended, the " Credit Agreement "), receipt of a copy of which is hereby acknowledged by the Assignee.  The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full.

For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the Agent as contemplated below, (i) all of the Assignor's rights and obligations in its capacity as a Lender under the Credit Agreement and any other documents or instruments delivered pursuant thereto to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of the Assignor under the respective facilities identified below (including any Letters of Credit, Guaranty and Swing Line Loans included in such facilities) and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of the Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned pursuant to clauses (i) and (ii) above being referred to herein collectively as the “Assigned Interest”).  Such sale and assignment is without recourse to the Assignor and, except as expressly provided in this Assignment and Assumption, without representation or warranty by the Assignor.
 
1.
Assignor:
   
       
2.
Assignee:
 
[and is an Affiliate/Approved Fund of [ identify Lender ] 1 ]
     
3.
Borrower:
Modine Manufacturing Company
     
4.
Agent:
JPMorgan Chase Bank, N.A., as the agent under the Credit Agreement.
     
5.       Credit Agreement:    The $145,000,000 Amended and Restated Credit Agreement dated as of August 12, 2010 among Modine Manufacturing Company, any Foreign Subsidiary Borrowers, the Lenders and JPMorgan Chase Bank, N.A., a national banking association, as Swing Line Lender, as LC Issuer and as Administrative Agent.
 
1 Select as applicable.
 
 
A-1
 
 
6.
Assigned Interest:
 
 
Facility Assigned 2
Aggregate Amount of
Commitment/Loans
for all Lenders
Amount of
Commitment/Loans
Assigned
Percentage Assigned
of
Commitment/Loans 3
____________
$
$
_______%
____________
$
$
_______%
____________
$
$
_______%
 
Effective Date: ____________________, 20__ [TO BE INSERTED BY AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]

The terms set forth in this Assignment and Assumption are hereby agreed to:
 
 
ASSIGNOR
 
[NAME OF ASSIGNOR]
   
 
By:
   
 
Title:
 
 
ASSIGNEE
 
[NAME OF ASSIGNEE]
   
 
By:
   
 
Title:
 
2 Fill in the appropriate terminology for the types of facilities under the Credit Agreement that are being assigned under this Assignment.
 
3 Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all Lenders thereunder.
 
 
A-2
 

[Consented to and] 4   Accepted:
 
JPMORGAN CHASE BANK, N.A., as Agent
 
By:
   
Title:
 
[Consented to:] 5
 
MODINE MANUFACTURING COMPANY
 
By:
   
Title:
 
4 To be added only if the consent of the Agent is required by the terms of the Credit Agreement.
5 To be added only if the consent of the Borrower and/or other parties (e.g. Swing Line Lender, LC Issuer) is required by the terms of the Credit Agreement.
 
 
A-3
 
 
ANNEX 1

STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION

1.   Representations and Warranties .

1.1    Assignor .  The Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with the Credit Agreement or any other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Loan Documents, (iii) the financial condition of the Borrower, any of its Subsidiaries or Affiliates or any other Person obligated in respect of any Loan Document, or (iv) the performance or observance by the Borrower, any of its Subsidiaries or Affiliates or any other Person of any of their respective obligations under any Loan Document.

1.2.   Assignee .  The Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement, (ii) it satisfies the requirements, if any, specified in the Credit Agreement that are required to be satisfied by it in order to acquire the Assigned Interest and become a Lender, (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and, to the extent of the Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it has received a copy of the Credit Agreement, together with copies of the most recent financial statements delivered pursuant to Section 6.1 of the Credit Agreement, as applicable, and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment and Assumption and to purchase the Assigned Interest on the basis of which it has made such analysis and decision independently and without reliance on the Agent or any other Lender, and (v) if it is a Non-U.S. Lender, attached to this Assignment and Assumption is any documentation required to be delivered by the Assignee pursuant to the terms of the Credit Agreement, duly completed and executed by the Assignee; and (b) agrees that (i) its payment instructions and notice instructions are as set forth in the Administrative Questionnaire attached hereto, (ii) it will, independently and without reliance on the Agent, the Assignor or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents, and (iii) it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender.

2.    Payments .    The Assignee shall pay the Assignor, on the Effective Date, the amount agreed to by the Assignor and the Assignee.  From and after the Effective Date, the Agent shall make all payments in respect of the Assigned Interest (including payments of principal, interest, fees and other amounts) to the Assignor for amounts which have accrued to but excluding the Effective Date and to the Assignee for amounts which have accrued from and after the Effective Date.
 
 
A-4
 
 
3.   General Provisions . This Assignment and Assumption shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns.  This Assignment and Assumption may be executed in any number of counterparts, which together shall constitute one instrument.  Delivery of an executed counterpart of a signature page of this Assignment and Assumption by telecopy shall be effective as delivery of a manually executed counterpart of this Assignment and Assumption.  This Assignment and Assumption shall be governed by, and construed in accordance with, the law of the State of Illinois.
 
 
A-5
 
 
ADMINISTRATIVE QUESTIONNAIRE

(Schedule to be supplied by Closing Unit or Trading Documentation Unit)
 
 
A-6
 
 
NON-U.S. LENDER TAX INFORMATION REPORTING REQUIREMENTS

(Schedule to be supplied by Closing Unit or Trading Documentation Unit)
 
 
A-7
 
 
EXHIBIT B
 
JOINDER AGREEMENT

THIS JOINDER AGREEMENT (this " Agreement "), dated as of ________  __, 20__, is entered into among _______________, a ___________________ (the " New Foreign Subsidiary Borrower ") and JPMORGAN CHASE BANK, N.A., in its capacity as administrative agent (the " Agent ") under that certain Amended and Restated Credit Agreement, dated as of August 12, 2010, among Modine Manufacturing Company (the "Borrower"), the Foreign Subsidiary Borrowers party thereto, the Lenders party thereto and the Agent (as the same may be amended, modified, extended or restated from time to time, the " Credit Agreement ").  All capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Credit Agreement.

The New Foreign Subsidiary Borrower and the Agent, for the benefit of the Lenders, hereby agree as follows:

1.           The New Foreign Subsidiary Borrower hereby acknowledges, agrees and confirms that, by its execution of this Agreement, the New Foreign Subsidiary Borrower will be deemed to be a Foreign Subsidiary Borrower under the Credit Agreement for all purposes of the Credit Agreement and shall have all of the obligations of a Foreign Subsidiary Borrower thereunder as if it had executed the Credit Agreement.  The New Foreign Subsidiary Borrower hereby ratifies, as of the date hereof, and agrees to be bound by, and hereby ratifies and confirms, all of the covenants, agreements, representations, warranties, consents, submissions, appointments, acknowledgments and other terms, conditions and provisions contained in the Credit Agreement, including without limitation (a) all of the representations and warranties of the Loan Parties set forth in Article 5 of the Credit Agreement, (b) all of the covenants set forth in Article 6 of the Credit Agreement, and (c) all of the terms and provisions applicable to a Borrower.  Without limiting the generality of the foregoing terms of this paragraph 1, the New Foreign Subsidiary Borrower agrees to pay and perform all obligations required of it as a Borrower under the Credit Agreement.

2.           The address of the New Foreign Subsidiary Borrower for purposes of the Credit Agreement is as follows:
 
     
     
  Attention:      
  Facsimile No:    
 
3.           This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be an original, but all of which shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page of this Agreement by telecopy or electronic mail message shall be effective as delivery of a manually executed original counterpart of this Agreement.
 
 
B-1
 
 
4.           Each of the existing Borrowers hereto acknowledges and agrees that the Credit Agreement is modified to add the New Foreign Subsidiary Borrower and acknowledges and agrees that all Loan Documents are ratified and confirmed, as amended hereby, and shall remain in full force and effect after giving effect to this Joinder Agreement, and that they have no set off, counterclaim, defense or other claim or dispute with respect to any of the foregoing.

5.           THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS.

IN WITNESS WHEREOF, the New Foreign Subsidiary Borrower has caused this Agreement to be duly executed by its authorized officer, and the Agent, for the benefit of the Lenders, has caused the same to be accepted by its authorized officer, as of the day and year first above written.

 
[Foreign Subsidiary Borrower]
 
 
By:
   
 
Name:
   
 
Title:
   
 
 
Acknowledged and accepted:
   
 
JPMORGAN CHASE BANK, N.A., as Agent
 
 
By:
   
 
Name:
   
 
Title:
   
 
 
MODINE MANUFACTURING COMPANY
 
 
By:
   
 
Name:
   
 
Title:
   
 
 
B-2
 

EXHIBIT C
 
NOTE
 
[Date]

Modine Manufacturing Company, a Wisconsin corporation (the “Borrower”), promises to pay to the order of ____________________________________ (the “Lender”) the aggregate unpaid principal amount of all Loans made by the Lender to the Borrower pursuant to Article 2 of the Agreement (as hereinafter defined), in immediately available funds at the place specified pursuant to Article 2 of the Agreement, together with interest on the unpaid principal amount hereof at the rates and on the dates set forth in the Agreement.  The Borrower shall pay the principal of and accrued and unpaid interest on the Loans in full on the Facility Termination Date.
 
The Lender shall, and is hereby authorized to, record on the schedule attached hereto, or to otherwise record in accordance with its usual practice, the date and amount of each Loan and the date and amount of each principal payment hereunder.
 
This Note is one of the Notes issued pursuant to, and is entitled to the benefits of, the Amended and Restated Credit Agreement dated as of August 12, 2010 (which, as it may be amended or modified and in effect from time to time, is herein called the “Agreement”), among the Borrower, the lenders party thereto, including the Lender and JPMorgan Chase Bank, N.A., as Agent, LC Issuer and Swing Line Lender, to which Agreement reference is hereby made for a statement of the terms and conditions governing this Note, including the terms and conditions under which this Note may be prepaid or its maturity date accelerated.
 
 
C-1
 
 
Capitalized terms used herein and not otherwise defined herein are used with the meanings attributed to them in the Agreement.
 
  MODINE MANUFACTURING COMPANY
     
 
By:
 
  Print Name:
  Title 
 
 
C-2
 
 
SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL
TO
NOTE OF __________________,
DATED ______________

Date
Principal
Amount of
Loan
Maturity
of Interest
Period
Principal
Amount
Paid
Unpaid
Balance
         
         
         
         
         
         
         
         
         
         
         
         
         
         
         
         
         
         
         
         
         
         
         
         

 
C-3
 

EXHIBIT D
 
FORM OF OPINION
 
August 12, 2010
 
JPMorgan Chase Bank, N.A., as the Agent, the LC Issuer
and Swing Line Lender under the Credit Agreement
described below

The other Lenders party to the
Credit Agreement described below
 
Ladies and Gentlemen:
 
We have acted as counsel for Modine Manufacturing Company (the “Borrower”) in connection with the Amended and Restated Credit Agreement dated as of August 12, 2010 (the “Credit Agreement”), among the Borrower, any Foreign Subsidiary Borrowers, the Lenders named therein, and JPMorgan Chase Bank, N.A., as Agent, as LC Issuer and as Swing Line Lender, and providing for Credit Extensions in an aggregate principal amount not exceeding $145,000,000 at any one time outstanding (subject to increase pursuant to the terms of the Credit Agreement).  This opinion is delivered to you pursuant to Section 4.1(a)(v) of the Credit Agreement.  Capitalized terms used, but not defined herein, shall have the meanings ascribed to them in the Credit Agreement.
 
We have examined originals or copies, certified or otherwise identified to our satisfaction, of such corporate records, including director resolutions of the Borrower, as well as agreements, documents and other instruments, including the Credit Agreement, and certificates or comparable documents of public officials and of officers and representatives of the Borrower, and have made such inquiries of such officers and representatives, as we have deemed relevant and necessary as a basis for the opinions hereinafter set forth.  In our opinion we have made such examination as is necessary to enable us to express an informed opinion as to the matters addressed below.
 
In rendering this opinion we have, with your permission, relied on the Officer’s Certificate attached hereto as Exhibit A (the “Officer’s Certificate") and the certificates delivered pursuant to Section 4.1(a) of the Credit Agreement as to certain factual matters and assumed, without investigation, verification, or inquiry, that:
 
(a)           each of the parties to the Credit Agreement, other than the Borrower, is a entity duly organized and validly existing under the laws of its jurisdiction of incorporation or organization;
 
 
D-1
 
 
(b)           each of the parties to the Credit Agreement, other than the Borrower, has the necessary right, power, and authority to execute and deliver, and perform its obligations under, the Credit Agreement, and the transactions therein contemplated have been duly authorized by all parties thereto, other than the Borrower;
 
(c)           the Credit Agreement constitutes the legal, valid, and binding obligations of all parties thereto, other than the Borrower;
 
(d)           the Credit Agreement has been duly executed, delivered, and accepted by all parties thereto, other than the Borrower;
 
(e)           there is no oral or written agreement, understanding, course of dealing, or usage of trade that affects the rights and obligations of the parties set forth in the Credit Agreement or that would have an effect on the opinions expressed herein; all material terms and conditions of the relevant transactions are correctly and completely reflected in the Credit Agreement; and there has been no waiver of any of the provisions of the Credit Agreement by conduct of the parties or otherwise; and
 
(f)           all natural persons who are signatories to the Credit Agreement or the other documents reviewed by us were legally competent at the time of execution; all signatures on behalf of parties on the Credit Agreement and the other documents reviewed by us are genuine; and the copies of all documents submitted to us are accurate and complete, each such document that is original is authentic, and each such document that is a copy conforms to an authentic original;
 
Based upon the foregoing and subject to the qualifications, assumptions and limitations set forth herein, we are of the opinion that:
 
1.             Based solely on a certificate of the Wisconsin Department of Financial Institutions (“WDFI”), the Borrower is a corporation validly existing under the laws of the State of Wisconsin, has filed its most recent required annual report, and has not filed articles of dissolution, with the WDFI.  The Borrower has the corporate power and authority to execute, deliver and perform its obligations under the Credit Agreement and has the corporate power and authority to conduct the activities in which it is now engaged.
 
2.             The execution and delivery of, and performance by the Borrower of its obligations under, the Credit Agreement do not:  (a) constitute a breach or violation of the organizational documents of the Borrower; (b) result in a violation of any applicable law, statute, or regulation; (c) result in a violation of any judgment, order, writ, injunction, decree, determination, or award of which we have knowledge; (d) constitute an event of default under or result in a breach or violation of any agreement or other instrument of which we have knowledge that (i) evidences or governs a contract for borrowed money in excess of $5,000,000, or (ii) affects or purports to affect the right of the Borrower to borrow money, or (e) to our knowledge, result in the creation or imposition of any Lien in, of or on the Property of the Borrower.
 
3.             The Credit Agreement has been duly executed and delivered by the Borrower.
 
 
D-2
 
 
4.             The Credit Agreement is the legal, valid and binding obligation of the Borrower, enforceable against the Borrower in accordance with its terms.
 
5.             No order, consent, adjudication, approval, license, authorization, or validation of, or filing, recording or registration with, or exemption by, or other action in respect of any governmental or public body or authority, or any subdivision thereof, that has not been obtained or made by the Borrower is required to be obtained or made by the Borrower in connection with the execution and delivery of the Credit Agreement, the borrowings under the Credit Agreement, the payment and performance by the Borrower of the Obligations, or the legality, validity, binding effect or enforceability of the Credit Agreement.
 
We confirm to you that, to our knowledge, the Borrower is not a party to any litigation or administrative proceeding: (a) that relates to the execution, delivery, or performance of any of the Credit Agreement; or (b) that seeks either an injunction or other equitable relief or damages in an amount that, according to an Officer’s Certificate, would have a Material Adverse Effect.
 
The foregoing opinions are subject to the following additional assumptions, qualifications and limitations:
 
A.           Wherever we indicate that our opinion with respect to the existence or absence of facts is “to our knowledge” or the like, our opinion is, with your permission, based solely on the Officer's Certificate and the current conscious awareness of facts or other information of the attorneys currently with our firm who have represented the Borrower in connection with the transactions contemplated by the Credit Agreement.
 
B.            Our opinion is limited by:
 
(i)             applicable bankruptcy, receivership, reorganization, insolvency, moratorium, fraudulent conveyance or transfer, and other laws and judicially developed doctrines relating to or affecting creditors’ or secured creditors’ rights and remedies generally;
 
(ii)            general principles of equity, regardless of whether considered in a proceeding in equity or at law, limitations on the availability of specific performance, injunctive relief, and other equitable remedies, and judicial discretion;
 
(iii)           the possibility that certain rights, remedies, waivers, and other provisions of the Credit Agreement may not be enforceable; nevertheless, such unenforceability will not render the Credit Agreement invalid as a whole or preclude judicial enforcement of the obligation of the Borrower to repay the principal, together with interest thereon (to the extent not deemed a penalty), as provided in the Credit Agreement; or acceleration of the maturity of Obligations upon a material default in a material provision of the Credit Agreement; and
 
(iv)           the requirement that the enforcing party act in a commercially reasonable manner and in good faith in exercising its rights under the Credit Agreement.
 
 
D-3
 
 
C.           No opinion may be inferred or implied beyond the matters expressly contained herein.  Without limiting the foregoing, we express no opinion herein as to:  (i) state securities laws or regulations; (ii) antitrust or unfair competition laws or regulations; (iii) zoning, land use or subdivision laws or regulations; (iv) labor, ERISA, or other employee benefit laws or regulations; (v) tax, environmental, racketeering or health and safety laws or regulations; or (vi) local laws, regulations, or ordinances.
 
D.           We express no opinion with respect to the enforceability of indemnification provisions, or of release or exculpation provisions, contained in the Credit Agreement to the extent that enforcement thereof is contrary to public policy regarding the indemnification against or release or exculpation of criminal violations, intentional harm or violations of securities laws.  Further, we express no opinion with respect to the waiver of statutory rights or the enforceability of liquidated damage, prepayment or other similar provisions to the extent any such provision may be determined by a court or other tribunal to be in an unreasonable amount, to constitute a penalty or to be contrary to public policy.  Further, we express no opinion relating to the effect of provisions agreeing to the jurisdiction of a court (or waiving objections to jurisdiction), agreeing to venue (or waiving objections to venue) or waiving a jury trial or service of process or providing for the irrevocability of any power of attorney.
 
This opinion letter is limited to the matters set forth herein.  This opinion is being provided solely for the purposes of complying with the requirements of Section 4.1(a)(v) of the Credit Agreement, and is being rendered solely for the benefit of the addressees hereof.  At your request, we hereby consent to reliance hereon by any future assignee of any Lender’s interest in the Loans pursuant to an assignment that is made and consented to in accordance with the express provisions of Section 12.1 of the Credit Agreement, on the condition and understanding that (i) this letter speaks only as of the date hereof, (ii) we have no responsibility or obligation to update this letter, to consider its applicability or correctness to other than its addressee(s), or to take into account changes in law, facts or any other developments of which we may later become aware, and (iii) any such reliance by a future assignee must be actual and reasonable under the circumstances existing at the time of assignment, including any changes in law, facts or any other developments known to or reasonably knowable by the assignee at such time.
 
The opinions expressed herein are limited to the present internal law of the States of Illinois and Wisconsin and the federal law of the United States.
 
The opinions expressed herein are given as of the date of this opinion letter and are intended to apply only to the facts and circumstances that exist as of the date hereof.  We assume no obligation or responsibility to update or supplement this opinion to reflect any facts or circumstances occurring after the date hereof that would alter the opinions contained herein.
 
 
Very truly yours,
   
 
Quarles & Brady LLP
 
 
D-4
 
 
EXHIBIT E
 
COMPLIANCE CERTIFICATE
For Quarter Ending ____________
 
To:          The Lenders parties to the
Amended and Restated
Credit Agreement described below
 
This Compliance Certificate is furnished pursuant to that certain Amended and Restated Credit Agreement dated as of August 12, 2010 (as amended, modified, renewed or extended from time to time, the “Agreement”) among Modine Manufacturing Company (the “Borrower”), any Foreign Subidiary Borrowers party thereto, the Lenders party thereto and JPMorgan Chase Bank, N.A., as Agent for the Lenders, as LC Issuer and as Swing Line Lender.  Unless otherwise defined herein, capitalized terms used in this Compliance Certificate have the meanings ascribed thereto in the Agreement.
 
THE UNDERSIGNED HEREBY CERTIFIES THAT:
 
1.
I am the duly elected ______________ of the Borrower;
 
2.
I have reviewed the terms of the Agreement and I have made, or have caused to be made under my supervision, a detailed review of the transactions and conditions of the Borrower and its Subsidiaries during the accounting period covered by the attached financial statements;
 
3.
The examinations described in paragraph 2 did not disclose, and I have no knowledge of, the existence of any condition or event which constitutes a Default or Unmatured Default during or at the end of the accounting period covered by the attached financial statements or as of the date of this Compliance Certificate, except as set forth below;
 
4.
Schedule I attached hereto sets forth financial data and computations evidencing the Borrower’s compliance with certain covenants of the Agreement, all of which data and computations are true, complete and correct;
 
5.
Schedule II attached hereto sets forth the determination of the interest rates to be paid for Advances, the LC Fee rates and the commitment fee rates commencing on the fifth Business Day following the delivery hereof; and
 
6.
Schedule III attached hereto sets forth the various reports and deliveries which are required at this time under the Agreement and the other Loan Documents and the status of compliance.
 
Described below are the exceptions, if any, to paragraph 3 by listing, in detail, the nature of the condition or event, the period during which it has existed and the action which the Borrower has taken, is taking, or proposes to take with respect to each such condition or event:
 
 
E-1
 
 
   
   
   
   
 
The foregoing certifications, together with the computations set forth in Schedule I and Schedule II hereto and the financial statements delivered with this Compliance Certificate in support hereof, are made and delivered this ______ day of __________________, ______.
 
   
 
Name:
 
 
E-2
 

SCHEDULE I TO COMPLIANCE CERTIFICATE
 
Compliance as of _________, ____
 
 
E-3
 
 
SCHEDULE II TO COMPLIANCE CERTIFICATE

Borrower’s Applicable Margin Calculation
 
 
E-4
 
 
SCHEDULE III TO COMPLIANCE CERTIFICATE

Reports and Deliveries Currently Due
 
 
E-5
EXHIBIT 4.2
 
Execution Copy
 
FIRST AMENDMENT TO NOTE PURCHASE AND PRIVATE SHELF AGREEMENT AND WAIVER
 
This First Amendment and Waiver dated as of March 15, 2012 (this “ First Amendment ”) to the Note Purchase and Private Shelf Agreement dated as of August 12, 2010 (the “ Note Agreement ”) is between Modine Manufacturing Company, a Wisconsin corporation (the “ Company ”), Prudential Investment Management, Inc. (“ Prudential ”) and each holder of the Notes (collectively, the “ Noteholders ”).
 
RECITALS:
 
A.          The Company, Prudential and the Noteholders are parties to the Note Agreement pursuant to which the Notes (as defined therein) are outstanding.
 
B.           The Company has informed the Noteholders that Events of Default have occurred (i) under Section 11(e) of the Note Agreement as a result of the Company’s making an incorrect representation as of the Series A Closing Day in Section 5.12(b) of the Note Agreement as to the amount of underfunded liabilities with respect to the Plans and (ii) under Section 11(f)(ii) of the Note Agreement as a result of the Company’s inadvertent default under Section 7.11 of the Credit Agreement with respect to Underfunded Liabilities (as defined in the Credit Agreement and as in effect prior to the effectiveness of the waiver and amendment to the Credit Agreement described in Section 4(b) below) (collectively, the “ Existing Events of Default ”)
 
C.          The Company has requested that Prudential and the Noteholders agree to waive the Existing Events of Default.  The Company has also requested that Prudential and the Noteholders agree to certain amendments to the Note 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 Agreement in the respects, but only in the respects, set forth in this First Amendment.
 
E.           Capitalized terms used herein shall have the respective meanings ascribed thereto in the Note 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 First 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. 
AMENDMENTS.
 
Effective as of the Effective Date (as defined in Section 4 hereof), the Company and the Noteholders agree that the Note Agreement is amended as follows:
 
1.1         The parenthetical phrase “(except as otherwise disclosed in Schedule 5.4 )” at the end of Section 5.4(b) of the Note Agreement is amended and restated in its entirety to read as follows:
 
“(except as otherwise disclosed in Schedule 5.4 and Liens created pursuant to the Collateral Documents)”
 
1.2         Section 5.12(b) of the Note Agreement is amended and restated in its entirety to read as follows and a new Section 5.12(f) is added the Note Agreement to read as follows:
 
  “(b)      No ERISA Event has occurred or is reasonably expected to occur that, when taken together with all other such ERISA Events for which liability is reasonably expected to occur, could reasonably be expected to result in a Material Adverse Effect.  Each Plan complies in all material respects with all applicable requirements of law and regulations, neither the Borrower nor any other member of the Controlled Group has withdrawn from any Plan or initiated steps to do so, and no steps have been taken to reorganize or terminate any Plan.
 
  (f)         Each Foreign Subsidiary of the Company:  (i) has fulfilled its funding obligations under any and all applicable laws, regulations and similar requirements of governmental authorities with respect to each employee benefit or pension plan; (ii) is in compliance in all material respects with the presently applicable provisions of such laws, regulations and requirements; and (iii) except as disclosed in the financial statements referred to in Section 5.5, has not incurred any material liability, indebtedness or obligation under or in connection with any employee benefit or pension plan. ”
 
1.3         Section 7.1(e) of the Note Agreement is amended and restated in its entirety to read as follows:
 
  “(e) ERISA Matters – promptly after becoming aware thereof, notice of the occurrence of any ERISA Event that, alone or together with any other ERISA Events that have occurred, could reasonably be expected to result in liability of the Company and its Subsidiaries in an aggregate amount exceeding $5,000,000;”
 
1.4         Section 7.2 of the Note Agreement is amended by amending and restating the introductory clause thereof to read as follows:
 
  “Section 7.2    Officer’s Certificate.   Within 90 days after the close of each of its Fiscal Years and within 45 days after the close of the first three quarterly periods of each of its Fiscal Years, the Company shall deliver to Prudential and each holder of Notes that is an Institutional Investor a certificate of a Senior Financial Officer setting forth:”
 
 
- 2 -
 
 
1.5         Section 10.2 of the Note Agreement is amended and restated in its entirety to read as follows:
 
  “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)        Debt outstanding under a new credit facility pursuant to Section 2.28(b) of the Credit Agreement; provided that (1) the aggregate principal amount of the Debt thereunder shall not at any time exceed (A) $50,000,000 less (B) the aggregate principal amount of the Debt outstanding under Section 10.2(c)(ii), (2) all lenders under such new credit facility shall be or have become Secured Parties under the Intercreditor Agreement with respect to such Debt and all guaranties thereof and collateral securing such Debt, and otherwise in form and substance satisfactory to the holders of the Notes, and (3) the holders of the Notes shall have received copies of the documents evidencing such new credit facility;

  (c)        the Loans and the Reimbursement Obligations (each as defined in the Credit Agreement as in effect on the Series A Closing Day); provided that the aggregate principal amount of the Debt thereunder shall not at any time exceed (i) $145,000,000 plus (ii) additional Debt incurred under the Credit Agreement pursuant to an increase in the commitments under Section 2.28(a) of the Credit Agreement; provided that with respect to any increase under this clause (ii) (1) the aggregate principal amount of such additional Debt shall not at any time exceed (A) $50,000,000 less (B) the aggregate principal amount of the Debt outstanding under Section 10.2(b), and (2) the holders of the Notes shall have received copies of the documents evidencing such increase;

  (d)        intercompany Debt among the Company and its Subsidiaries to the extent permitted under Section 10.12 , provided that any such Debt owing by the Company or any Subsidiary Guarantor to any Subsidiary (other than a Subsidiary Guarantor) 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 (which terms shall permit scheduled principal and interest payments so long as no Default or Event of Default exists at the time of, or would be caused by, any such payment and the Leverage Ratio immediately before and after giving effect to any such payment the Leverage Ratio is 3.0:1.0 or less);

  (e)         Receivables/Factoring/SCF Indebtedness not to exceed $100,000,000 in aggregate principal amount outstanding at any time, if no Default or Event of Default exists at the time of, or would be caused by, the incurrence of any such Debt;

  (f)         Subordinated Debt, if no Default or Event of Default exists at the time of, or would be caused by, the incurrence of any such Subordinated Debt;

   (g)        Debt assumed in connection with a Permitted Acquisition; and
 
 
- 3 -
 

  (h)        Debt of Foreign Subsidiaries, provided that (i) the aggregate outstanding amount of all Debt of all Foreign Subsidiaries (excluding any Debt permitted under any other subsection of this Section 10.2, Swap Contracts, and Banking Services Obligations (as such term is defined in the Credit Agreement as in effect on March 15, 2012)) shall not at any time exceed $100,000,000, and (ii) no Default or Event of Default exists at the time of, or would be caused by, the incurrence of any such Indebtedness.

Notwithstanding anything herein to the contrary, the Company will not permit the aggregate principal amount of the Debt of all Foreign Subsidiaries under clauses (b) and (c) of this Section 10.2 to exceed at any time $75,000,000.”
 
1.6         Section 10.5 of the Note Agreement is amended by amending and restating clause (b)(iv) thereof to read as follows:
 
  “(iv)      (A) any transfer of assets pursuant to an Investment permitted under Section 10.12 , and (B) any transfer of the ownership of the Capital Stock of any Domestic Subsidiary to the Company or to a Domestic Subsidiary that is a Wholly-owned Subsidiary and any transfer of the ownership of the Capital Stock of any Foreign Subsidiary to the Company or to any Subsidiary that is a Wholly-owned Subsidiary; provided that with respect to any such transfer ownership of Capital Stock, the Company shall comply with Section 9.9 hereof and no Default or Event of Default exists or would be caused thereby;”
 
1.7         Section 10.11(f) of the Note Agreement is amended by replacing the reference to “$50,000,000” therein with “$100,000,000”.
 
1.8         Section 10.12(b) of the Note Agreement is amended by adding the word “such” before the word “Investments” in the third line thereof.
 
1.9         Section 10.18 of the Note Agreement is amended and restated in its entirety to read as follows:
 
  “ Section 10.18.  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 the (a) sale or assignment of accounts for collection purposes in the ordinary course of business, and (b) sale or assignment of trade notes receivable or accounts receivable in connection with any Permitted Factoring, any Qualified Receivables Transactions or any Supply Chain Finance Program to the extent the aggregate amount of Indebtedness thereunder is permitted under Section 10.2 .”
 
1.10       Section 11(j) of the Note Agreement is amended and restated in its entirety to read as follows:
 
  “(j)    An ERISA Event shall have occurred that, in the opinion of the Required Holders, when taken together with all other ERISA Events that have occurred, could reasonably be expected to result in liability of the Borrower and its Subsidiaries in an aggregate amount exceeding (i) $10,000,000 in any Fiscal Year or (ii) $20,000,000 in the aggregate from and after March 31, 2011; or”
 
 
- 4 -
 
 
1.11       Schedule 5.4 to the Note Agreement is amended and restated in its entirety to read as set forth on Schedule 5.4 attached hereto.
 
1.12       Schedule B to the Note Agreement is amended by adding, or amending and restating, as applicable, the following definitions to read as follows:
 
  “ERISA Event” means (a) any “reportable event”, as defined in Section 4043 of ERISA or the regulations issued thereunder with respect to a Plan (other than an event for which the 30 day notice period is waived); (b) failure to meet the minimum funding standard of Section 412 of the Code with respect to a Plan (whether or not waived in accordance with Section 412(c) of the Code) or the failure to make by its due date a required installment under Section 430(j) of the Code with respect to any Plan or the failure to make any required contribution to a Multiemployer Plan; (c) the filing pursuant to Section 412(c) of the Code or Section 302(c) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan; (d) the incurrence by the Company or any of its ERISA Affiliates of any unfunded liability under Title IV of ERISA with respect to the termination of any Plan; (e) a determination that any Plan is in “at risk” status (as defined in Section 303(i)(4) of ERISA or Section 430(i)(4) of the Code); (f) the receipt by the Company or any ERISA Affiliate from the PBGC or a plan administrator of any notice relating to an intention by the PBGC to terminate any Plan or Plans or to appoint a trustee to administer any Plan; (g) the incurrence by the Company or any of its ERISA Affiliates of any liability that is not eliminated by the application of Section 4208(e) or 4209 of ERISA with respect to the withdrawal or partial withdrawal from any Plan or Multiemployer Plan; (h) the receipt by the Company or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the Company or any ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability (as defined in ERISA) that is not eliminated by the application of Section 4208(e) or 4209 of ERISA, or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA, or is in endangered or critical status, within the meaning of Section 305 of ERISA; (i) the imposition of liability on Borrower or any of its ERISA Affiliates pursuant to Section 4062(e) or 4069 of ERISA, or by reason of the application of Section 4212(c) of ERISA; or (j) the imposition of a Lien pursuant to Section 430(k) of the Code or pursuant to ERISA with respect to any Plan.

  “First Amendment” means the First Amendment to this Agreement dated March 15, 2012.

  “First Amendment Effective Date”   means the date the First Amendment is effective.
 
 
- 5 -
 

  “Off-Balance Sheet Liability” of a Person means (i) any repurchase obligation or liability of such Person with respect to accounts or notes receivable sold by such Person, (ii) any liability under any Sale and Leaseback Transaction that is not a Capital Lease or Synthetic Lease, but excluding from this clause (ii) all such Sale and Leaseback Transactions existing as of the Series A Closing Day where the liability is less than $10,000,000 in the aggregate and such Sale and Leaseback Transactions entered into after the Series A Closing Day where the liability is less than $50,000,000 in the aggregate (in each case as determined by aggregating the present value, applying an appropriate discount rate from the date on which each fixed lease payment is due under such lease to such date of determination), (iii) any liability under any Synthetic Leases entered into by such Person, or (iv) any obligation arising with respect to any other transaction which is the functional equivalent of or takes the place of borrowing but which does not constitute a liability on the balance sheets of such Person, but excluding from this clause (iv) Operating Leases, but including without limitation, any factoring of, or similar arrangements with respect to, receivables or similar obligations sold by or pursuant to factoring or similar agreements.  The amount of any Off-Balance Sheet Liability  will be determined based on the amount of obligations outstanding under the legal documents entered into as part of transaction that would be characterized as principal if such transaction were structured as a secured lending transaction.

  “Permitted Factoring” means a factoring or similar sale of accounts receivable and related rights and property on a non-recourse basis by a Foreign Subsidiary in the ordinary course of business which is not entered into in connection with or as part of a Qualified Receivables Transaction or Supply Chain Finance Program.

  “Receivables/Factoring/SCF Indebtedness” means (i) all Receivables Transaction Attributed Indebtedness, (ii) Supply Chain Finance Outstanding Obligations, and (iii) Off-Balance Sheet Liabilities under all Permitted Factoring.

  “Receivables Transaction Attributed Indebtedness” means the aggregate amount of obligations outstanding under the legal documentation entered into as part of any Qualified Receivables Transaction on any date of determination that would be characterized as principal if such Qualified Receivables Transaction were structured as a secured lending transaction rather than as a purchase.

  “Restructuring Charges” means certain cash charges related to any restructuring program of the Company 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 (including shipping and related expense, product validation incurred to validate receiving plant capability, and receiving plant physical modifications required to accept transferred product); employee outplacement; environmental services; and employee insurance and benefits continuation; and

  (b)        the aggregate amount of all Restructuring Charges shall not exceed (i) $20,000,000 in any Fiscal Year or (ii) $40,000,000 for all times after December 31, 2011.
 
 
- 6 -
 

  “Supply Chain Finance Outstanding Obligations” means, at any time, (i) the aggregate amount of all trade receivables that would then be owing to the Company and/or its Subsidiaries by sponsors of Supply Chain Finance Programs, if the Company and its Subsidiaries were not participating in such Supply Chain Finance Programs, minus (ii) the aggregate amount of all trade receivables then owing to the Company and/or its Subsidiaries by such sponsors of Supply Chain Finance Programs, that have not been transferred under such Supply Chain Financing Programs.

  “Supply Chain Finance Program” means each supply chain financing or similar program established by customers of the Company and its Subsidiaries, pursuant to which the Company and its Subsidiaries may sell trade receivables and the rights directly related thereto (or sell negotiable instruments or other rights created to represent the obligations owing pursuant to a trade receivable or enter into any other form of transaction with the intent of improving liquidity with respect to trade receivables) owing by such customer to the Company and its Subsidiaries, in the ordinary course of business.

SECTION 2. 
WAIVER.
 
Effective as of the Effective Date (as defined in Section 4 hereof), the Noteholders waive the Existing Events of Default.
 
SECTION 3. 
REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
 
To induce Prudential and the Noteholders to execute and deliver this First Amendment (which representations shall survive the execution and delivery of this First Amendment), the Company and each Subsidiary Guarantor represents and warrants to the Noteholders that:
 
  (a)        this First Amendment has been duly authorized, executed and delivered by it and this First 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)        the Note Agreement, as amended by this First Amendment, 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 First Amendment (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 (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);
 
 
- 7 -
 
 
  (d)        after giving effect to the waiver and amendments to the Note Agreement contained in this First Amendment and to the waiver and amendment to the Credit Agreement described in Section 4(b) below , all the representations and warranties contained in Section 5 of the Note 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 Agreement contained in this First Amendment and to the waiver and amendment to the Credit Agreement described in Section 4(b) below, no Default or Event of Default shall be in existence;
 
  (f)        complete and correct copies of the waiver and amendment to the Credit Agreement referred to in Section 4(b) below, and all agreements and documents executed in connection therewith have been delivered to the Noteholders and are attached hereto as Exhibit A, and such waiver and amendments and other agreements and documents are being executed simultaneously herewith;
 
  (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 waiver and amendments described in Section 4(b) below, other than out-of-pocket costs and expenses as set forth in or required pursuant to such waiver and amendments; and
 
  (h)        any and all disclosures by the Company or any of its Subsidiaries regarding the funding status of any Plan have consistently and accurately been made in the Company’s financial statements in accordance with GAAP.
 
SECTION 4.
CONDITIONS TO EFFECTIVENESS .
 
This First 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)        Executed counterparts of this First Amendment, duly executed by the Company, the Subsidiary Guarantors, Prudential and the Noteholders, shall have been delivered to Prudential and the Noteholders;
 
  (b)        The Noteholders shall have received an waiver and amendment to the Credit Agreement and all agreements and documents executed in connection therewith, and such waiver and amendment and other agreements and documents shall be executed simultaneously herewith, shall be satisfactory to the Required Holders and shall become effective simultaneously with this First Amendment;
 
 
- 8 -
 
 
  (c)        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 First Amendment; and
 
  (d)        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. 
EXPENSES.
 
The Company hereby confirms its obligations under the Note Agreement, whether or not the transactions hereby contemplated are consummated, to pay, promptly after request by any Noteholder, all reasonable out-of-pocket costs and expenses, including attorneys’ fees and expenses, incurred by any Noteholder in connection with this First Amendment or the transactions contemplated hereby, in enforcing any rights under this First Amendment, or in responding to any subpoena or other legal process or informal investigative demand issued in connection with this First Amendment or the transactions contemplated hereby.  The obligations of the Company under this Section 5 shall survive transfer by any Noteholder of any Note and payment of any Note.
 
SECTION 6. 
REAFFIRMATION.
 
Each Subsidiary Guarantor hereby consents to the terms and conditions of this First Amendment, including without limitation all covenants, representations and warranties, releases, indemnifications, and all other terms and provisions hereof, and the consummation of the transactions contemplated hereby, and acknowledges that its Guaranty under the Subsidiary Guaranty and its obligations under all other Transaction Documents to which it is a party remain in full force and effect and is hereby ratified and confirmed in all respects.
 
SECTION 7. 
MISCELLANEOUS.
 
7.1         This First Amendment shall be construed in connection with and as part of the Note Agreement, and except as modified and expressly amended by this First Amendment, all terms, conditions and covenants contained in the Note 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 waiver and amendments herein.
 
7.2         Any and all notices, requests, certificates and other instruments executed and delivered after the execution and delivery of this First Amendment may refer to the Note Agreement without making specific reference to this First Amendment but nevertheless all such references shall include this First Amendment unless the context otherwise requires.
 
 
- 9 -
 
 
7.3         The Company and each Subsidiary Guarantor 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 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 First Amendment, the Note Agreement and the other Transaction Documents, all transactions relating to this First Amendment, the Note 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.
 
7.4         The Company acknowledges and agrees that each Noteholder has fully performed all of its obligations under the Note Agreement and the other Transaction Documents as of the date hereof, and that all actions taken by such Noteholder are reasonable and appropriate under the circumstances and within their rights under the Note Agreement and the other Transaction Documents.  Nothing contained in this First 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 First 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.
 
7.5         The descriptive headings of the various Sections or parts of this First Amendment are for convenience only and shall not affect the meaning or construction of any of the provisions hereof.
 
7.6         This First Amendment shall be governed by and construed in accordance with New York law.
 
7.7         The execution hereof by you shall constitute a contract between us for the uses and purposes hereinabove set forth, and this First Amendment may be executed in any number of counterparts, each executed counterpart constituting an original, but all together only one agreement.
 
* * * * *
 
 
- 10 -
 
 
 
MODINE MANUFACTURING COMPANY
 
       
 
By:
  /s/ Michael B. Lucareli  
  Name:  Michael B. Lucareli  
  Title: Vice President, Finance and Chief Financial Officer  
 
 
MODINE, INC.
 
       
 
By:
  /s/ William K. Langan  
  Name:  Willia m K. Langan  
  Title: Presi dent  
 
 
MODINE LLC
 
 
By: Modine, Inc., its sole member
 
       
 
By:
  /s/ William K. Langan  
  Name:  Willia m K. Langan  
  Title: Presi dent  
                                                               
 
 
 
 
ACCEPTED AND AGREED TO:
 
PRUDENTIAL INVESTMENT MANAGEMENT, INC.

By:   /Prudential Investment Management, Inc./
Vice President
 
THE PRUDENTIAL INSURANCE COMPANY
  OF AMERICA
 
By:       /The Prudential Insurance Company of America/
Title:   Vice President
 
PRUDENTIAL RETIREMENT INSURANCE
  AND ANNUITY COMPANY
 
By:      Prudential Investment Management, Inc.,
as investment manager
 
By:       /Prudential Retirement Insurance and Annuity Company/
Title:   Vice President
 
 
 
 

EXHIBIT A

AMENDMENT TO CREDIT AGREEMENT

(see attached)
 
 
 
 
 
SCHEDULE 5.4

SUBSIDIARIES

Subsidiaries of the Company

The table below indicates each of the Company's subsidiaries, each subsidiary's jurisdiction of incorporation, and the percentage of its voting securities owned by the Company or its subsidiaries.
 
 
 
Subsidiaries
State or country
of incorporation
or organization
% of voting securities
 
 
Owned by
       
Modine, Inc.
Delaware
100%
Company
Modine ECD, Inc.
Pennsylvania
100%
Company
Modine Holding GmbH
Germany
100%
Company
Modine Jackson, Inc.
Delaware
100%
Company
Modine Japan K.K.
Japan
100%
Company
Modine Thermal Systems Korea, LLC
Korea
100%
Company
Modine Manufacturing Company  Foundation, Inc.
Wisconsin
100%
Company
Modine Thermal Systems (Changzhou) Company Ltd.
China
100%
Company
Modine Thermal Systems (Shanghai) Company Ltd.
China
100%
Company
Modine Thermal Systems Private Limited
India
99%
Company (1)
Modine UK Dollar Limited
UK
100%
Company
Airedale International Air Conditioning Limited
UK
100%
Modine UK Dollar Limited
Airedale Group Limited
UK
100%
Airedale International Air Conditioning Limited
Airedale Sheet Metal Limited
UK
100%
Airedale International Air Conditioning Limited
Airedale Compact Systems Limited
UK
100%
Airedale International Air Conditioning Limited
AIAC Air Conditioning SA (Pty) Limited
South Africa
100%
Airedale International Air Conditioning Limited
Modine LLC
Delaware
100%
Modine, Inc.
Modine do Brasil Sistemas Termicos Ltda.
Brazil
99.9%
Modine, Inc. (2)
Modine Transferencia de Calor, S.A. de C.V.
Mexico
99.6%
Modine, Inc. (2)
Modine Austria Holding GmbH
Austria
100%
Modine Holding GmbH
Modine Austria Ges.m.b.H.
Austria
100%
Modine Austria Holding GmbH
Modine Austria Immobilien GmbH
Austria
100%
Modine Austria Ges.m.b.H.
Thermacore Korea, Ltd.
Korea
100%
Modine ECD, Inc.
Modine Pliezhausen GmbH
Germany
100%
Modine Holding GmbH
Modine Europe GmbH
Germany
100%
Modine Holding GmbH
Modine RUS Limited Liability Company
Russia
99%
Modine Holding GmbH (3)
Modine Grundstucksverwaltungs GmbH
Germany
100%
Modine Holding GmbH
Modine Kirchentellinsfurt GmbH
Germany
100%
Modine Holding GmbH
Modine Wackersdorf GmbH
Germany
100%
Modine Holding GmbH
Modine Neuenkirchen GmbH
Germany
100%
Modine Holding GmbH
Modine Hungaria Gep. Kft.
Hungary
99%
Modine Holding GmbH (3)
Modine Pontevico S.r.l.
Italy
100%
Modine Holding GmbH
Modine Uden B.V.
Netherlands
100%
Modine Holding GmbH

(1) Balance of voting securities held by Modine, Inc.
(2) Balance of voting securities held by the Company
(3) Balance of voting securities held by Modine Europe GmbH