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as of November 15, 2000
Transpro, Inc.
Re: Forbearance Agreement
Ladies and Gentlemen:
Reference is hereby made to the Revolving Credit Agreement dated as of
July 30, 1998 (as amended and in effect from time to time, the "Credit
Agreement") by and among (a) TRANSPRO, INC., a Delaware corporation (the
"Parent"), XXXXX HEAT TRANSFER PRODUCTS, INC., a Delaware corporation ("AHTP"),
AHTP II, INC., a Delaware corporation ("AHTP II"), EVAP, INC. (f/k/a EI
Acquisition Corp.), a Texas corporation ("EVAP" and collectively with Parent,
AHTP and AHTP II, the "Original Borrowers" and along with GO/XXX INDUSTRIES,
INC., a Delaware corporation ("GDI"), and A/C PLUS, INC., a Texas corporation
("AC"), collectively, the "Borrowers"), (b) FLEET NATIONAL BANK (f/k/a
BankBoston, N.A.), a national banking association, and the other lending
institutions listed on Schedule 1 of the Credit Agreement (collectively, the
"Banks") and (c) FLEET NATIONAL BANK, as agent (the "Agent") for the Banks.
The Borrowers acknowledge that the Borrowers are in default of certain
of the financial covenants contained in Sections 10.1 and 10.2 of the Credit
Agreement for the period ended June 30, 2000 and the period ended September 30,
2000 (the "Specified Defaults"). The Borrowers acknowledge and agree that the
Agent and the Banks have not waived any of the Specified Defaults. The Borrowers
also acknowledge and agree that as a result of the Specified Defaults the Banks
have no further commitment to lend to the Borrowers and the Banks are entitled
to proceed to enforce any and all of their rights and remedies under the terms
of the Loan Documents. The Borrowers previously requested that the Agent and the
Banks forbear from exercising their rights and remedies under the Loan Documents
(a) until the "Forbearance Termination Date" as defined in that certain
Forbearance Agreement dated as of August 18, 2000, by and among the Borrowers,
the Agent and the Banks (the "First Forbearance Agreement") under the terms and
conditions set forth therein, and (b) until the "Second Forbearance Termination
Date" as defined in that certain Forbearance Agreement dated as of September 29,
2000, by and among the Borrowers, the Agent and the Banks (the "Second
Forbearance Agreement") under the terms and conditions set forth therein, and
the Agent and the Banks agreed to forbear from exercising their rights and
remedies under the Loan Documents as set forth in the First Forbearance
Agreement and the Second Forbearance Agreement. The Borrowers have now requested
that the Agent and the Banks further forbear from exercising their rights and
remedies under the Loan Documents until the Third
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Forbearance Termination Date (as hereinafter defined) under the following terms
and conditions:
SECTION 1. DEFINITIONS. All capitalized terms used herein without
definition that are defined in the Credit Agreement, as amended and in effect on
the date hereof, shall have the same meanings herein as therein. All accounting
terms used herein and not otherwise defined shall be used in accordance with
generally accepted accounting principles.
SECTION 2. RATIFICATION OF EXISTING AGREEMENTS. The Borrowers hereby
ratify and confirm in all respects all of the Obligations, except as otherwise
expressly modified in this Agreement upon the terms set forth herein. In
addition, by execution of this Agreement, the Borrowers represent and warrant
that as of the date hereof, no claim or counterclaim, right of setoff or defense
of any kind exists or is outstanding with respect to the Obligations. The
Borrowers further agree that, to the extent any such claim, counterclaim, right
of setoff or defense of any kind exists, the Borrowers hereby waive and release
each and all of them in consideration for the Banks entering into this
Agreement. The Borrowers acknowledge that, in entering into this Agreement, the
Agent and the Banks have relied on the representations, warranties and waivers
contained in this Section 2.
SECTION 3. REPRESENTATIONS AND WARRANTIES. The Borrowers have adequate
corporate power and authority to execute and deliver this Agreement and to
perform their obligations hereunder. This Agreement has been duly authorized,
executed and delivered by the Borrowers and does not contravene any law, rule or
regulation, or any judgment, order or decree, applicable to any of the Borrowers
or any of the terms of the Borrowers' charter documents, by-laws or other
governing document or any indenture, agreement or undertaking to which any of
the Borrowers is a party. The obligations of the Borrowers under this Agreement
and the Loan Documents constitute their legal, valid and binding obligations
enforceable against them in accordance with their respective terms. All of the
representations and warranties made by or on behalf of the Borrowers in the Loan
Documents are true and correct on the date hereof as if made on and as of the
date hereof, except for those matters disclosed herein.
SECTION 4. FORBEARANCE OBLIGATIONS. Subject to the conditions set forth
in Section 5 hereof, the Agent and the Banks agree to forbear from enforcing any
of their rights and remedies under the Loan Documents for the purpose of seeking
payment of any of the Obligations (including, without limitation, any act with
respect to any collateral now or hereafter securing payment of any Obligations
or any setoff or any other application of funds of the Borrowers now or
hereafter on deposit with or otherwise controlled by the Agent and the Banks)
until that date (the "Third Forbearance Termination Date") which is the earliest
to occur of (a) the Borrowers' failure to comply with any of the terms and
conditions of this Agreement, including any of the undertakings set forth in
Sections 5 and 6 hereof, (b) an Event of Default (other than the Specified
Defaults), (c) the lesser of the Borrowing Base and the Total Commitment at any
time failing to exceed the sum of the outstanding amount of the Loans, the
Maximum Drawing Amount and all Unpaid Reimbursement Obligations by $20,000,000,
(d) the sum of the outstanding amount of the Loans, the Maximum Drawing Amount
and all Unpaid Reimbursement Obligations at any time being greater than
$52,000,000 for the period from the effective date of this Agreement
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through December 20, 2000, and (e) December 20, 2000. The period from the
effective date of this Agreement through the Third Forbearance Termination Date
is referred to herein as the "Limited Forbearance Period". Except as expressly
provided above in this Section 4, the Agent and the Banks reserve the right to
exercise all of their rights and remedies under the Loan Documents. Upon the
Third Forbearance Termination Date, the Agent and the Banks shall be free in
their sole and absolute discretion to proceed to enforce any or all of their
rights and remedies under or in respect of the Loan Documents and applicable
law, including without limitation, those credit termination, acceleration,
enforcement and other rights and remedies arising by virtue of the occurrence of
the Specified Defaults. In addition, the parties hereto hereby acknowledge and
agree that time is of the essence in this Agreement. The parties intend and
understand that any failure scrupulously to observe the timing requirements of
this Agreement, including, without limitation, any late payment made hereunder,
will be a material breach giving rise to the remedies set forth herein. The
imposition of such remedies shall not be deemed a penalty, and is of the essence
of the parties' bargain.
SECTION 5. CONDITIONS TO EFFECTIVENESS. This Agreement shall become
effective upon satisfaction of the following conditions on or prior to November
15, 2000:
(a) The Agent, the Banks and the Borrowers shall have executed
and delivered counterparts of this Agreement to the Agent; and
(b) The Borrowers shall have paid to the Agent for the pro
rata account of the Banks $52,000.
SECTION 6. COVENANTS AND AGREEMENTS. Without any prejudice or
impairment whatsoever to any of the rights and remedies of the Agent and the
Banks contained in any of the Loan Documents or in any agreement, document or
instrument executed in connection therewith, the Borrowers covenant and agree
with the Agent and the Banks as follows:
(a) DISCRETIONARY LENDING. Though they have no obligation to
do so, during the Limited Forbearance Period the Banks shall continue
to make advances to the Borrowers provided that all conditions
precedent thereto, other than the non-existence of the Specified
Defaults, shall be satisfied.
(b) INTEREST. The Borrowers acknowledge and agree that during
the Limited Forbearance Period interest shall accrue at the rate of
interest set forth in the Credit Agreement plus an additional 1/2% per
annum. Interest shall be payable as set forth in the Credit Agreement.
Nothing contained herein shall prevent the Agent and the Banks from
charging the entire default rate of interest contained in Section 5.11
of the Credit Agreement on or after the Third Forbearance Termination
Date, retroactive to the date the first Specified Default occurred.
(c) COMPLIANCE WITH LOAN DOCUMENTS. The Borrowers will, and
will cause each of their Subsidiaries to, comply and continue to comply
with all of the terms, covenants and provisions contained in the Loan
Documents to which each is a party
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and any other instruments evidencing or creating any of the Obligations
except as such terms, covenants and provisions are expressly modified
in this Section 6.
(d) REFINANCING. The Borrowers jointly and severally agree to
deliver to the Agent no later than December __, 2000 a binding
commitment letter from a financial institution, in form and substance
satisfactory to the Agent, indicating that the Loans shall be repaid no
later than December 20, 2000.
(e) COLLATERAL. The Borrowers and their Subsidiaries shall
provide to the Agent such additional security agreements and other
security documents as the Agent may request in order to obtain, perfect
and preserve a first priority perfected security interest (subject only
to Permitted Liens) in all existing and after-acquired personal
property and fixtures of the Borrowers and their Subsidiaries for the
benefit of the Agent and the Banks. This shall include without
limitation, a requirement that all cash received by the Borrowers be
used to pay down the Loans on a daily basis.
(f) FURTHER ASSURANCES. The Borrowers shall at any time or
from time to time execute and deliver such further instruments, and
take such further action as the Agent may reasonably request, in each
case further to effect the purposes of this Agreement, the Loan
Documents and all documents, agreements and instruments executed in
connection therewith.
SECTION 7. EXPENSES. The Borrowers jointly and severally agree to pay
to the Agent (a) on demand by the Agent, an amount equal to any and all
reasonable out-of-pocket costs and expenses (including reasonable legal fees and
disbursements of counsel to the Agent, including fees and expenses of in-house
counsel to the Agent, consulting, accounting, appraisal, investment banking and
similar professional fees and charges) incurred or sustained by the Agent in
connection with the negotiation and preparation of this Agreement and all
related matters and (b) from time to time any and all reasonable out-of-pocket
costs and expenses (including reasonable legal fees and disbursements,
consulting, accounting, appraisal, investment banking and similar professional
fees and charges) hereafter incurred or sustained by the Agent in connection
with the administration of credit extended by the Banks to the Borrowers or
sustained or incurred by the Agent and the Banks in connection with the
preservation of or enforcement of their rights under the Loan Documents or in
respect of the Borrowers' other obligations to the Agent and the Banks.
SECTION 8. AMENDMENTS. This Agreement shall not be amended without the
consent of the Agent and the Majority Banks.
SECTION 9. NO WAIVER. Except as otherwise expressly provided for in
this Agreement, nothing in this Agreement shall extend to or affect in any way
any of the Borrowers' or their Subsidiaries' obligations or any of the rights
and remedies of the Agent or the Banks in respect of the Credit Agreement and
the other Loan Documents arising on account of the occurrence of any Event of
Default other than the Specified Defaults, all of which are expressly preserved.
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SECTION 10. REPRESENTATIONS AND WARRANTIES. The Borrowers hereby
repeat, on and as of the date hereof, each of the representations and warranties
made in Section 7 of the Credit Agreement and in each of the other Loan
Documents (except to the extent of changes resulting from transactions
contemplated or permitted by the Credit Agreement and to the extent that such
representations and warranties related expressly to an earlier date), provided,
that all references therein to the Credit Agreement shall refer to the Credit
Agreement as modified hereby.
SECTION 11. WAIVER OF JURY TRIAL. EACH OF THE BORROWERS HEREBY WAIVES
ANY RIGHTS THAT IT MAY HAVE TO A JURY TRIAL WITH RESPECT TO ANY ACTION OR CLAIM
ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE LOAN
DOCUMENTS, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THEREUNDER OR THE PERFORMANCE
OF SUCH RIGHTS AND OBLIGATIONS. Except as prohibited by law, each of the
Borrowers hereby waives any right that it may have to claim or recover in any
litigation referred to in the preceding sentence any special, exemplary,
punitive or consequential damages or any damages other than, or in addition to,
actual damages; provided, however, that neither the Borrowers shall be deemed to
have waived any claim the Borrowers may have to recover such damages for claims
which arise solely from the gross negligence or willful misconduct of the Agent
and the Banks. Each of the Borrowers hereby (a) certifies that no
representative, agent or attorney of the Agent and the Banks has represented,
expressly or otherwise, that the Agent or the Banks would not, in the event of
litigation, seek to enforce the foregoing waivers and (b) acknowledges that it
has been induced to enter into this Agreement by, among other things, the
waivers and certifications herein.
SECTION 12. MISCELLANEOUS. This Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of Massachusetts and
shall take effect as a sealed instrument under such laws. Any and all notices or
other communications required hereunder shall be in writing and shall be
delivered as required by the Credit Agreement.
SECTION 13. COUNTERPARTS. This Agreement may be executed in any number
of counterparts, but all such counterparts shall together constitute but one
instrument. In making proof of this Agreement it shall not be necessary to
produce or account for more than one counterpart signed by each party hereto by
and against which enforcement hereof is sought.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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If you are in agreement with the foregoing, please sign and return the
enclosed copy of this Agreement to the Agent, upon which execution and delivery
this Agreement shall become effective.
TRANSPRO, INC.
By: ________________________________________
Name:
Title:
XXXXX HEAT TRANSFER PRODUCTS, INC.
By:_________________________________________
Name:
Title:
AHTP II, INC.
By:_________________________________________
Name:
Title:
EVAP, INC. (f/k/a EI Acquisition Corp.)
By:_________________________________________
Name:
Title:
GO/XXX INDUSTRIES, INC.
By:_________________________________________
Name:
Title:
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A/C PLUS, INC.
By:_________________________________________
Name:
Title:
FLEET NATIONAL BANK
(f/k/a BankBoston, N.A.),
individually and as Agent
By: ________________________________________
Name:
Title:
PEOPLE'S BANK
By: ________________________________________
Name:
Title:
THE BANK OF NEW YORK
By: ________________________________________
Name:
Title:
XXXXXX TRUST AND SAVINGS BANK
By: ________________________________________
Name:
Title:
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BANK ONE, NA (Main Office Chicago)
By: ________________________________________
Name:
Title:
