EXHIBIT 4.16
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FIFTH AMENDMENT TO LOAN AND SECURITY AGREEMENT
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This Fifth Amendment to Loan and Security Agreement (the "Fifth
Amendment") is made as of the 20th day of February, 2002, by and between
TransPro, Inc. ("TransPro"), Evap, Inc., GO/XXX Industries, Inc., and G&O
Manufacturing Company, 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 Borrower has requested that the definition of Working
Capital and the Working Capital covenant by amended;
WHEREAS, the Lender has agreed to enter into this Fifth 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 1.54 of the Loan Agreement is deleted in its entirety
and replaced with the following:
"1.54 "Working Capital" shall mean as to any Person, at any
time, in accordance with GAAP, on a consolidated basis for
such Person and its subsidiaries (if any), the amount equal to
the difference between: (a) the aggregate net book value of
all current assets of such Person and its subsidiaries (as
determined in accordance with GAAP), calculating the book
value of inventory for this purpose on a first-in-first-out
basis, and (b) all current liabilities of such Person and its
subsidiaries (as determined in accordance with GAAP),
provided, that, as to Borrowers, for purposes of Section 9.14,
the liabilities of Borrowers and their subsidiaries to Lender
under this Agreement shall not be considered current
liabilities (whether or not classified as current liabilities
in accordance with GAAP) and deferred income tax assets
(whether short term or long term) shall not be included."
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1.2. Section 9.14 of the Loan Agreement is deleted in its entirety
and replaced with the following:
"9.14 "Working Capital" TransPro shall at all times during the
periods set forth below maintain Working Capital equal to or
in excess of the amounts specified during those periods:
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Period Amount
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December 31, 2001 through March 31, 2002 $53,000,000.00
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April 1, 2002 and thereafter $55,000,000.00
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1.3. Borrowers agree that based upon the financial statements
results of the Borrowers for the fiscal period ended March 31, 2002, Lender may
request, and Borrowers shall then promptly retain, at Borrowers' expense, a
financial consultant reasonably satisfactory to Lender to review the Borrowers'
financial plan.
2. Conditions Precedent. This Fifth Amendment and the Lender's
obligations hereunder shall not be effective until each of the following
conditions are satisfied (the "Fifth Amendment Effective Date"):
2.1. Borrowers shall have duly executed and delivered this Fifth
Amendment, and all other instruments, documents and agreements required by
Lender;
2.2. All requisite corporate action and proceedings of the
Borrowers in connection with this Fifth Amendment shall be satisfactory in form
and substance to Lender;
2.3. 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; and
2.4. Borrower shall have paid to Lender a fully earned
nonrefundable amendment fee of $40,000.00.
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.
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3.2. Power and Authority. Each Borrower is duly authorized and
empowered to enter, deliver, and perform this Fifth Amendment, and each of the
Financing Agreements to which it is a party. The execution, delivery, and
performance of this Fifth 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 Fifth 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.
3.3. Legally Enforceable Agreement. This Fifth Amendment and each
of the other Financing Agreements delivered under this Fifth 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,
absolutely, 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 Fifth
Amendment, and to the performance by the Borrowers of their respective
agreements and obligations hereunder. This Fifth Amendment and the performance
or consummation of any transaction or matter contemplated under this Fifth
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.
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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. All capitalized terms not otherwise defined
herein shall have the meanings set forth in the Financing Agreements. 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 Fifth Amendment and any other documents
and agreements prepared in connection with this Fifth Amendment. The undersigned
confirm that the Financing Agreements remain in full force and effect without
amendment or modification of any kind, except for as set forth in this Fifth
Amendment. 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 Fifth Amendment by Lender shall not be construed as a waiver by Lender of
any Event of Default under the Financing Agreements. This Fifth 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 Fifth Amendment as of the date first above written, by their
respective officers hereunto duly authorized, under seal.
BORROWERS:
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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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G&O MANUFACTURING COMPANY, 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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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)
/s/ Xxxx Xxxxxx By:/s/ Xxxx Xxxxxxxx
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Title: Vice President
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