EXHIBIT 4.14
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THIRD AMENDMENT TO LOAN AND SECURITY AGREEMENT
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This Third Amendment to Loan and Security Agreement (the "Third
Amendment") is made as of the 27th day of November, 2001, by and between
TransPro, Inc., Evap, Inc. and GO/XXX Industries, Inc., as borrowers
(individually, each a "Borrower" and collectively, the "Borrowers"), Xxxxx Heat
Transfer Products, Inc., GO/XXX de Mexico, SA de C.V. and Radiadores GDI, SA de
C.V., as guarantors (each an "Obligor", and collectively, the "Obligors", as
defined in the Loan Agreement (defined hereinafter)) and CONGRESS FINANCIAL
CORPORATION (NEW ENGLAND), as lender (the "Lender").
WHEREAS, the Lender and Borrowers entered into a certain Loan and
Security Agreement dated as of January 4, 2001 as amended (the "Loan
Agreement");
WHEREAS, the Borrowers have requested that the Lender amend the Loan
Agreement to (i) reduce the Maximum Credit and Revolving Loan Ceiling under the
Loan Agreement and (ii) reduce the Adjusted Net Worth amount required to be
maintained under Section 9.15 of the Loan Agreement;
WHEREAS, the Lender has agreed to enter into the Third Amendment
subject to the terms and conditions set forth below;
NOW THEREFORE, based on these premises, and in consideration of the
mutual promises contained herein and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged by the parties, the
Borrowers and Lender hereby agree as follows:
1. Amendments to Loan Agreement.
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1.1. Section 1.37 of the Loan Agreement is hereby amended by
deleting "$65,000,000.00" and substituting in lieu thereof "$55,000,000.00".
1.2. Section 1.50 of the Loan Agreement is hereby amended by
deleting "$60,000,000.00" and substituting in lieu thereof "$50,000,000.00".
1.3. Section 9.15 of the Loan Agreement is hereby amended by
deleting "$63,000,000.00" and substituting in lieu thereof "$55,000,000.00 less
the amount of the increase to the Borrowers' unfunded pension and healthcare
liabilities as determined in December, 2001 provided that such amount shall not
exceed $2,500,000.00".
1.4. Borrowers acknowledge and agree that Lender has established an
Availability Reserve of $500,000.00 under Section 2.4 of the Loan Agreement.
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2. Conditions Precedent. This Third Amendment and the Lender's
obligations hereunder shall not be effective until each of the following
conditions are satisfied (the "Third Amendment Effective Date"):
2.1. Borrowers shall have paid to Lender an amendment fee of
$50,000.00, which fee shall be fully earned and nonrefundable on the date
hereof.
2.2. Borrowers shall have duly executed and delivered this Third
Amendment, and all other instruments, documents and agreements required by
Lender;
2.3. All requisite corporate action and proceedings of the
Borrowers in connection with this Third Amendment shall be satisfactory in form
and substance to Lender;
2.4. There shall be no claim, lawsuit or action pending or
threatened that would affect the performance by the Borrowers of their
Obligations under the Financing Agreements or of the Lender under the Financing
Agreements.
3. Representations and Warranties. Each Borrower jointly and
severally represents and warrants to Lender the following:
3.1. Organization and Qualification. Each of the Borrowers is duly
incorporated or formed, as applicable, validly existing, and in good standing
under the laws of their respective jurisdictions of incorporation or formation,
as applicable. Each Borrower is duly qualified to do business and is in good
standing as a foreign corporation in all states and jurisdictions in which the
failure to be so qualified would have a material adverse effect on the financial
condition, business or properties of any such Borrower.
3.2. Power and Authority. Each Borrower is duly authorized and
empowered to enter, deliver, and perform this Third Amendment, and each of the
Financing Agreements to which it is a party. The execution, delivery, and
performance of this Third Amendment and each of the other Financing Agreements
have been duly authorized by all necessary corporate action of each of the
Borrowers. The execution, delivery and performance of this Third Amendment and
each of the other Financing Agreements do not and will not (i) require any
consent or approval of the shareholders of the Borrowers; (ii) contravene the
charter or by-laws of any of the Borrowers; (iii) violate, or cause any Borrower
to be in default under, any provision of any law, rule, regulation, order, writ,
judgment, injunction, decree, determination or award in effect having
applicability to such Borrower; (iv) result in a breach of or constitute a
default under any indenture or loan or credit agreement or any other agreement,
lease or instrument to which any Borrower is a party or by which such Borrower's
properties may be bound or affected, which breach or default is reasonably
likely to have a material adverse effect of the financial condition, business or
properties of such Borrower; or (v) result in, or require, the creation or
imposition of any lien (other than the liens set forth in Schedule 8.4 to the
Loan Agreement) upon or with respect to any of the properties now owned or
hereafter acquired by any Borrower.
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3.3. Legally Enforceable Agreement. This Third Amendment and each
of the other Financing Agreements delivered under this Third Amendment is, a
legal, valid and binding obligation of each Borrower, enforceable against each
Borrower in accordance with its respective terms subject to bankruptcy,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally.
3.4. Continuous Nature of Representations and Warranties. Each
Borrower confirms and agrees that, except for the amendments to the Loan
Agreement provided herein, (a) all representations and warranties contained in
the Loan Agreement and in the other Financing Agreements are on the date hereof
true and correct in all material respects (except for changes that have occurred
as permitted by the covenants in Section 9 of the Loan Agreement), (b) all
Information Certificates delivered in conjunction with the Loan Agreement remain
true and correct in all material respects, and (c) it is unconditionally and
jointly and severally liable for the punctual and full payment of all
Obligations, including, without limitation, all termination fees under Section
12.1(c) of the Loan Agreement, charges, fees, expenses and costs (including
attorneys' fees and expenses) under the Financing Agreements, and that no
Borrower has any defenses, counterclaims or setoffs with respect to full,
complete and timely payment of all Obligations.
4. Acknowledgement of Obligations. Each Obligor, for value received,
hereby assents to the Borrowers' execution and delivery of this Third Amendment,
and to the performance by the Borrowers of their respective agreements and
obligations hereunder. This Third Amendment and the performance or consummation
of any transaction or matter contemplated under this Third Amendment, shall not
limit, restrict, extinguish or otherwise impair any of the Obligor's liability
to Lender with respect to the payment and other performance obligations of the
Obligors pursuant to the Guarantees and other Financing Agreements executed by
the Obligors for the benefit of Lender. Each Obligor acknowledges that it is
unconditionally liable to Lender for the full and complete payment of all
Obligations including, without limitation, all charges, fees, expenses and costs
(including attorney's fees and expenses) under the Financing Agreements and that
such Obligor has no defenses, counterclaims or setoffs with respect to full,
complete and timely payment of any and all Obligations.
5. Confirmation of Liens. Each Borrower acknowledges, confirms and
agrees that the Financing Agreements, as amended hereby, are effective to grant
to Lender duly perfected, valid and enforceable first priority security
interests and liens in the Collateral described therein, except for liens set
forth in Sections 8.4 and 9.8 and Schedule 8.4 (as amended hereby), and that the
locations for such Collateral specified in the Financing Agreements have not
changed except as provided herein or as previously disclosed to the Lender. Each
Borrower further acknowledges and agrees that all Obligations of the Borrowers
are and shall be secured by the Collateral.
6. Miscellaneous. Borrowers hereby agree to pay to Lender all
reasonable attorney's fees and costs which have been incurred or may in the
future be incurred by Lender in connection with the negotiation and preparation
of this Third Amendment and any other documents and agreements prepared in
connection with this Third Amendment.
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The undersigned confirm that the Financing Agreements remain in full force and
effect without amendment or modification of any kind, except for the Third
Amendment prepared herein. The Borrowers and Obligors further confirm that no
Event of Default or events which with notice or the passage of time or both
would constitute an Event of Default have occurred and are continuing. The
execution and delivery of this Third Amendment by Lender shall not be construed
as a waiver by Lender of any Event of Default under the Financing Agreements.
This Third Amendment shall be deemed to be a Financing Agreement and, together
with the other Financing Agreements, constitute the entire agreement between the
parties with respect to the subject matter hereof and supersedes all prior
dealings, correspondence, conversations or communications between the parties
with respect to the subject matter hereof.
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IN WITNESS WHEREOF, the Borrowers, the Obligors, and the Lender have
executed this Third Amendment as of the date first above written, by their
respective officers hereunto duly authorized, under seal.
BORROWERS:
WITNESS TRANSPRO, INC.
By: /s/ R.E. Xxxxxxx By: /s/ X.X. Xxxxx
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Title: Vice President
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EVAP, INC.
By: /s/ R.E. Xxxxxxx By: /s/ X.X. Xxxxx
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Title: Vice President
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GO/XXX INDUSTRIES, INC.
By: /s/ R.E. Xxxxxxx By: /s/ X.X. Xxxxx
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Title: Vice President
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OBLIGORS:
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XXXXX HEAT TRANSFER PRODUCTS, INC.
By: /s/ R.E. Xxxxxxx By: /s/ X.X. Xxxxx
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Title: Vice President
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GO/XXX de MEXICO SA de C.V.
By: /s/ R.E. Xxxxxxx By: /s/ X.X. Xxxxx
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Title: Vice President
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RADIADORES GDI, SA de C.V.
By: /s/ R.E. Xxxxxxx By: /s/ X.X. Xxxxx
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Title: Vice President
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LENDER
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CONGRESS FINANCIAL CORPORATION
(NEW ENGLAND)
By:/s/ Xxxx Xxxxxx By:/s/ Xxxx Xxxxxxxx
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Title: Vice President
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