TWENTY-SECOND AMENDMENT TO CREDIT AGREEMENT
Exhibit 10.1
TWENTY-SECOND AMENDMENT TO CREDIT AGREEMENT
TWENTY-SECOND AMENDMENT, dated as of March 17, 2009 (this “Amendment”), to the Credit
and Guaranty Agreement, dated as of July 19, 2007, as amended by the First Amendment and Waiver to
Credit Agreement, dated as of November 9, 2007, the Second Amendment to Credit Agreement, dated as
of March 12, 2008, the Third Amendment to Credit Agreement, dated as of March 26, 2008, the Fourth
Amendment to Credit Agreement, dated as of July 18, 2008, the Fifth Amendment to Credit Agreement,
dated as of July 24, 2008, the Sixth Amendment to Credit Agreement, dated as of August 25, 2008,
the Seventh Amendment to Credit Agreement, dated as of September 30, 2008, the Eighth Amendment to
Credit Agreement, dated as of October 2, 2008, the Ninth Amendment to Credit Agreement, dated as of
October 29, 2008, the Tenth Amendment to Credit Agreement, dated as of November 6, 2008, the
Eleventh Amendment to Credit Agreement, dated as of November 14, 2008, the Twelfth Amendment to
Credit Agreement, dated as of November 21, 2008, the Thirteenth Amendment to Credit Agreement,
dated as of December 4, 2008, the Fourteenth Amendment to Credit Agreement, dated as of December
19, 2008, the Fifteenth Amendment to Credit Agreement, dated as of January 5, 2009, the Sixteenth
Amendment to Credit Agreement, dated as of January 16, 2009, the Seventeenth Amendment to Credit
Agreement, dated as of February 5, 2009, the Eighteenth Amendment to Credit Agreement, dated as of
February 17, 2009, the Nineteenth Amendment to Credit Agreement, dated as of February 23, 2009, the
Twentieth Amendment to Credit Agreement, dated as of March 3, 2009, the Twenty-First Amendment to
Credit Agreement, dated as of March 10, 2009 and that certain letter agreement dated February 26,
2008 (as further amended, restated or otherwise modified from time to time, the “Credit
Agreement”), by and among Proliance International Inc., a Delaware corporation
(“Holdings” and the “Borrower”), certain domestic subsidiaries of the Borrower
listed as a “Guarantor” on the signature pages thereto (together with each other Person (as defined
in the Credit Agreement) that guarantees all or any portion of the Obligations (as defined in the
Credit Agreement) from time to time, each a “Guarantor” and collectively, the
“Guarantors”), the lenders from time to time party thereto (each a “Lender” and
collectively, the “Lenders”), Silver Point Finance, LLC, a Delaware limited liability
company (“Silver Point”), as collateral agent for the Agents (as hereinafter defined) and
the Lenders (in such capacity, together with its successors and assigns in such capacity, if any,
the “Collateral Agent”), and as administrative agent for the Agents and the Lenders (in
such capacity, together with its successors and assigns in such capacity, if any, the
“Administrative Agent” and together with the Collateral Agent, each an “Agent” and
collectively, the “Agents”) and Silver Point as lead arranger (in such capacity, together
with its successors and assigns in such capacity, if any, the “Lead Arranger”).
WHEREAS, capitalized terms used in these recitals shall have the respective meanings set forth
in the Credit Agreement unless otherwise defined herein.
WHEREAS, the Credit Parties have requested that the Agents and the Lenders amend certain
provisions of the Credit Agreement, subject to the terms and conditions set forth in this
Amendment.
WHEREAS, the Agent and the Lenders are willing to agree to this requested Amendment, but only
upon the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual promises contained herein,
and for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Credit Parties, the Agents and the Lenders hereby agree as follows:
1. Definitions. All capitalized terms used herein and not otherwise defined herein
are used herein as defined in the Credit Agreement.
2. Defined Terms in the Credit Agreement. Section 1.1 of the Credit Agreement is
hereby amended, as follows:
(a) New Definitions. Section 1.1 of the Credit Agreement is hereby amended by adding
the definitions of the following terms thereto, in alphabetical order, to read in their entirety as
follows:
“‘Twenty-Second Amendment’ means the Twenty-Second Amendment to the Credit Agreement, dated as
of March 17, 2009, by and among the Credit Parties, the Requisite Lenders and the Agents.”
“‘Twenty-Second Amendment Effective Date’ has the meaning ascribed to the term “Twenty-Second
Amendment Effective Date” in the Twenty-Second Amendment.”
“‘Waiver Reserve’ as defined in Section 2.23.”
(b) Existing Definitions.
(i) The definition of “Borrowing Base” in Section 1.1 of the Credit Agreement is hereby
amended by replacing the reference therein to “the Southaven Insurance Proceeds Reserve (as defined
in the Insurance Proceeds Letter)” with “the Waiver Reserve”.
(ii) The definition of “Southaven Insurance Proceeds Reserve” is hereby deleted in its
entirety from the Credit Documents and all references to the “Southaven Insurance Proceeds Reserve”
in the Credit Documents are hereby deleted in their entirety.
3. Section 2.23 — Waiver Reserve. Section 2.23 of the Credit Agreement is hereby
amended and restated in its entirety to read as follows:
“2.23 Waiver Reserve. The Agents, the Borrowing Base Agent, the Lenders, the Borrower and the
Guarantors hereby agree that as of March 17, 2009 a reserve in the amount of $2,500,000 has been
established against the Borrowing Base (the “Waiver Reserve”) and such Waiver Reserve shall
be increased to $7,500,000 on the earliest of (x) the occurrence of an Event of Default, and (y)
March 24, 2009.”
4. Waivers.
(a) Pursuant to the request of Borrower and in accordance with Section 10.5 of the Credit
Agreement, the Agents and the Requisite Lenders hereby waive any Event of Default that has or would
otherwise arise under Section 8.1(c) of the Credit Agreement
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by reason of the failure of the Credit Parties to (i) deliver, pursuant to Section 5.1(c) of
the Credit Agreement with respect to the consolidated financial statements of Holdings and its
Subsidiaries for Fiscal Year 2008, a report of BDO ▇▇▇▇▇▇▇, LLP that is unqualified as to going
concern and scope of audit and does not contain any explanatory paragraph or paragraph of emphasis
with respect to going concern, (ii) comply with the Senior Leverage Ratio covenant set forth in
Section 6.7(b) of the Credit Agreement for the 12 months ending December 31, 2008, (iii) comply
with the Senior Leverage Ratio covenant set forth in Section 6.7(g) of the Credit Agreement for the
12 months ending December 31, 2008, and (iv) comply with the Operating Lease covenant set forth in
Section 6.7(n) of the Credit Agreement for Fiscal Year 2008.
(b) The waivers in this Section 4 shall be effective only in these specific instances and for
the specific purposes set forth herein and do not allow for any other or further departure from the
terms and conditions of the Credit Agreement or any other Credit Document, which terms and
conditions shall continue in full force and effect.
5. Forbearance.
(a) The Credit Parties have informed the Agents and the Lenders that certain Events of Default
in respect of compliance with financial covenants set forth in Section 6.7 of the Credit Agreement
for the applicable periods endings March 31, 2009 could occur (the “Prospective Events of
Default”). Although under the Credit Agreement, upon the occurrence and continuation of any
such Prospective Event of Default, (i) the Lenders would have no obligation to fund any Loans
requested by the Borrower and (ii) the Administrative Agent may, and if so requested by the
Requisite Lenders, the Administrative Agent must, terminate the Commitments, accelerate all of the
Obligations, and exercise all of its rights and remedies under the Credit Documents and applicable
law (collectively, the “Remedies”), the Credit Parties have requested the Agents and the
Lenders to continue to fund Loans and forbear from exercising any Remedies and, subject to the
terms and conditions set forth herein, the Agents and the Lenders are willing to continue to fund
Loans and to forbear from exercising any Remedies with respect to the Prospective Events of Default
during the Forbearance Period (as hereinafter defined).
(b) Notwithstanding the occurrence of the Prospective Events of Default, but subject to the
conditions set forth herein, the Agents and the Lenders hereby agree (i) to continue to fund Loans
to the Borrower during the Forbearance Period, provided that the Lenders’ agreement to
continue to fund Loans is subject to the conditions set forth in Section 2 and Section 3.2 of the
Credit Agreement (other than (A) the absence of any Default or Event of Default to the extent such
Default or Event of Default is a Prospective Event of Default, and (B) the accuracy of all
representations and warranties to the extent any such representation or warranty is incorrect
solely by reason of the occurrence and continuance of any Prospective Event of Default), and (ii)
to forbear from exercising any of the Remedies during the Forbearance Period, but solely with
respect to any such Prospective Event of Default.
(c) The forbearance granted herein (the “Forbearance”) shall commence on the
Twenty-Second Amendment Effective Date (as hereinafter defined) and continue until the earlier of
(i) the occurrence of a Default or an Event of Default (other than any Prospective Event of
Default) and (ii) May 15, 2009 (the “Forbearance Period”).
(d) All periods of limitations specified by statutes and all defenses of laches or waiver as
to the Prospective Events of Default will be tolled and otherwise suspended during the Forbearance
Period.
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6. Conditions to Effectiveness. This Amendment shall become effective (the
“Twenty-Second Amendment Effective Date”) only upon satisfaction in full of the following
conditions precedent:
(a) Collateral Agent shall have received counterparts of this Amendment that bear the
signatures of each Credit Party, each Agent and the Requisite Lenders.
(b) Except as set forth in the Second Amendment, the Third Amendment, the Fourth Amendment,
the Fifth Amendment, the Sixth Amendment, the Seventh Amendment, the Eighth Amendment, the Ninth
Amendment, the Tenth Amendment, the Eleventh Amendment, the Twelfth Amendment, the Thirteenth
Amendment, the Fourteenth Amendment, the Fifteenth Amendment, the Sixteenth Amendment, the
Seventeenth Amendment, the Eighteenth Amendment, the Nineteenth Amendment, the Twentieth Amendment,
the Twenty-First Amendment and this Amendment, the representations and warranties contained herein,
in Section IV of the Credit Agreement and in each other Credit Document are true and correct in all
material respects on and as of the Twenty-Second Amendment Effective Date as though made on and as
of such date, except to the extent that any such representation or warranty expressly relates
solely to an earlier date (in which case such representation or warranty shall be true and correct
in all material respects on and as of such earlier date).
(c) Borrower shall have paid to Administrative Agent all amounts due and owing to any Agent or
any Lender in connection with this Amendment and the Credit Documents.
(d) Except as expressly waived herein, no Default or Event of Default shall have occurred and
be continuing on the Twenty-Second Amendment Effective Date or would result from this Amendment
becoming effective in accordance with its terms.
(e) All legal matters incident to this Amendment shall be reasonably satisfactory to the
Agents and their respective counsel.
7. Representations and Warranties. Each Credit Party represents and warrants as
follows:
(a) Organization, Good Standing, Etc. Each Credit Party (i) is a corporation, limited
liability company or limited partnership, duly organized, validly existing and in good standing
under the laws of the state or jurisdiction of its organization, (ii) has all requisite power and
authority to execute and deliver this Amendment, consummate the transactions contemplated hereby
and perform the Credit Agreement, as amended and modified hereby and (iii) is duly qualified to do
business and is in good standing in each jurisdiction in which the character of the properties
owned or leased by it or in which the transaction of its business makes such qualification
necessary other than in such jurisdictions where the failure to be so qualified and in good
standing could not reasonably be expected to have a Material Adverse Effect.
(b) Authorization, Etc. The execution, delivery and performance by each Credit Party
of this Amendment and the performance by each Credit Party of the Credit Agreement, as amended and
modified hereby (i) have been duly authorized by all necessary action, (ii) do not and will not
contravene its charter or by-laws, its limited liability company or
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operating agreement or its certificate of partnership or partnership agreement, as applicable,
or any applicable law, or any contractual restriction binding on or otherwise affecting it or any
of its properties, (iii) do not and will not result in or require the creation of any Lien (other
than pursuant to any Credit Document) upon or with respect to any of its properties, and (iv) do
not and will not result in any default, noncompliance, suspension, revocation, impairment,
forfeiture or nonrenewal of any material permit, license, authorization or approval applicable to
its operations or any of its properties.
(c) Governmental Approvals. No authorization or approval or other action by, and no
notice to or filing with, any Governmental Authority is required in connection with the due
execution, delivery and performance by any Credit Party of this Amendment or the performance by any
Credit Party of the Credit Agreement, as amended and modified hereby.
(d) Enforceability of Credit Documents. Each of this Amendment and the Credit
Agreement, as amended and modified hereby, is a legal, valid and binding obligation of the Credit
Parties which are party hereto or thereto, enforceable against such Credit Parties in accordance
with its terms, except as enforceability may be limited by equitable principles and by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’
rights generally.
(e) Representations and Warranties; No Default. Except as set forth in the Second
Amendment, the Third Amendment, the Fourth Amendment, the Fifth Amendment, the Sixth Amendment, the
Seventh Amendment, the Eighth Amendment, the Ninth Amendment, the Tenth Amendment, the Eleventh
Amendment, the Twelfth Amendment, the Thirteenth Amendment, the Fourteenth Amendment, the Fifteenth
Amendment, the Sixteenth Amendment, the Seventeenth Amendment, the Eighteenth Amendment, the
Nineteenth Amendment, the Twentieth Amendment, the Twenty-First Amendment and this Amendment, the
representations and warranties contained herein, in Section IV of the Credit Agreement and in each
other Credit Document are true and correct in all material respects on and as of the Twenty-Second
Amendment Effective Date as though made on and as of such date, except to the extent that any such
representation or warranty expressly relates solely to an earlier date (in which case such
representation or warranty shall be true and correct in all material respects on and as of such
earlier date); and, except as expressly waived herein, no Default or Event of Default shall have
occurred and be continuing on the Twenty-Second Amendment Effective Date or would result from this
Amendment becoming effective in accordance with its terms.
8. Effect of Amendment; Continued Effectiveness of the Credit Agreement.
(a) Ratifications. Except as otherwise expressly provided herein, (i) the Credit
Agreement and the other Credit Documents are, and shall continue to be, in full force and effect
and are hereby ratified and confirmed in all respects, except that on and after the Twenty-Second
Amendment Effective Date (A) all references in the Credit Agreement to “this Agreement”, “hereto”,
“hereof”, “hereunder” or words of like import referring to the Credit Agreement shall mean the
Credit Agreement as amended and modified by this Amendment, and (B) all references in the other
Credit Documents to the “Credit Agreement”, “thereto”, “thereof”, “thereunder” or words of like
import referring to the Credit Agreement shall mean the Credit Agreement as amended and modified by
this Amendment, (ii) to the extent that the Credit
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Agreement or any other Credit Document purports to pledge to the Collateral Agent, or to grant
to the Collateral Agent a security interest in or lien on, any collateral as security for the
Obligations or the Guaranteed Obligations, such pledge or grant of a security interest or lien is
hereby ratified and confirmed in all respects, and (iii) the execution, delivery and effectiveness
of this Amendment shall not operate as an amendment of any right, power or remedy of the Agents or
the Lenders under the Credit Agreement or any other Credit Document, nor constitute an amendment of
any provision of the Credit Agreement or any other Credit Document. This Amendment shall be
effective only in the specific instances and for the specific purposes set forth herein and does
not allow for any other or further departure from the terms and conditions of the Credit Agreement
or any other Credit Document, which terms and conditions shall remain in full force and effect.
(b) No Waivers. Except as expressly set forth herein, this Amendment is not a waiver
of, or consent to, any Default or Event of Default now existing or hereafter arising under the
Credit Agreement or any other Credit Document and the Agents and the Lenders expressly reserve all
of their rights and remedies under the Credit Agreement and the other Credit Documents in respect
of all such Defaults or Events of Default not waived or consented to hereby, by the Second
Amendment, by the Third Amendment, by the Fourth Amendment, by the Fifth Amendment, by the Sixth
Amendment, the Seventh Amendment, the Eighth Amendment, the Ninth Amendment, the Tenth Amendment,
the Eleventh Amendment, the Twelfth Amendment, the Thirteenth Amendment, the Fourteenth Amendment,
the Fifteenth Amendment, the Sixteenth Amendment, Seventeenth Amendment, the Eighteenth Amendment,
the Nineteenth Amendment, the Twentieth Amendment or the Twenty-First Amendment, under applicable
law or otherwise.
(c) Amendment as Credit Document. Each Credit Party confirms and agrees that this
Amendment shall constitute a Credit Document under the Credit Agreement. Accordingly, it shall be
an Event of Default under the Credit Agreement if any representation or warranty made or deemed
made by any Credit Party under or in connection with this Amendment shall have been incorrect in
any material respect when made or deemed made or if any Credit Party fails to perform or comply
with any covenant or agreement contained herein.
9. Release. Each Credit Party hereby acknowledges and agrees that: (a) neither it
nor any of its Affiliates has any claim or cause of action against any Agent, the Borrowing Base
Agent or any Lender (or any of their respective Affiliates, officers, directors, employees,
attorneys, consultants or agents) and (b) each Agent, the Borrowing Base Agent, and each Lender has
heretofore properly performed and satisfied in a timely manner all of its obligations to the Credit
Parties and their Affiliates under the Credit Agreement and the other Credit Documents.
Notwithstanding the foregoing, the Agents, the Borrowing Base Agent and the Lenders wish (and the
Credit Parties agree) to eliminate any possibility that any past conditions, acts, omissions,
events or circumstances would impair or otherwise adversely affect any of the Agents’, the
Borrowing Base Agent’s and the Lenders’ rights, interests, security and/or remedies under the
Credit Agreement and the other Credit Documents. Accordingly, for and in consideration of the
agreements contained in this Amendment and other good and valuable consideration, each Credit Party
(for itself and its Affiliates and the successors, assigns, heirs and representatives of each of
the foregoing) (collectively, the “Releasors”) does hereby fully, finally, unconditionally
and irrevocably release and forever discharge each Agent, the Borrowing Base
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Agent, each Lender and each of their respective Affiliates, officers, directors, employees,
attorneys, consultants and agents (collectively, the “Released Parties”) from any and all
debts, claims, obligations, damages, costs, attorneys’ fees, suits, demands, liabilities, actions,
proceedings and causes of action, in each case, whether known or unknown, contingent or fixed,
direct or indirect, and of whatever nature or description, and whether in law or in equity, under
contract, tort, statute or otherwise (collectively, “Claims”), which any Releasor has
heretofore had or now or hereafter can, shall or may have against any Released Party by reason of
any act, omission or thing whatsoever done or omitted to be done (collectively, “Actions”)
on or prior to the Twenty-Second Amendment Effective Date arising out of, connected with or related
in any way to this Amendment, the Credit Agreement or any other Credit Document, or any act, event
or transaction related or attendant thereto done or omitted to be done on or prior to the
Twenty-Second Amendment Effective Date, or the agreements of any Agent, the Borrowing Base Agent or
any Lender contained therein, or the possession, use, operation or control of any of the assets of
any Credit Party, or the making of any Loans or other advances, or the management of such Loans or
advances or the Collateral on or prior to the Twenty-Second Amendment Effective Date. For the
avoidance of doubt, nothing contained in this Amendment shall be deemed to release or discharge any
Released Party from any Claims arising out of, in connection with or related in any way to Actions
occurring after the date of this Amendment.
10. Miscellaneous.
(a) Counterparts. This Amendment may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which shall be deemed to be an original,
but all of which taken together shall constitute one and the same agreement. Delivery of an
executed counterpart of this Amendment by telefacsimile or electronic mail shall be equally
effective as delivery of an original executed counterpart of this Amendment.
(b) Headings. Section and paragraph headings herein are included for convenience of
reference only and shall not constitute a part of this Amendment for any other purpose.
(c) Governing Law. This Amendment shall be governed by, and construed in accordance
with, the laws of the State of New York.
(d) Expenses. The Borrower will pay on demand all reasonable fees, costs and expenses
of the Agents, the Borrowing Base Agent and the Lenders in connection with the preparation,
execution and delivery of this Amendment and all documents incidental hereto, including, without
limitation, the reasonable fees, disbursements and other charges of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP,
counsel to Administrative Agent and Collateral Agent, and of McGuireWoods LLP, counsel to Borrowing
Base Agent. In addition, the Borrower will pay all costs and expenses, including attorneys’ fees
(including allocated costs of internal counsel) and costs of settlement, incurred by any Agent,
Borrowing Base Agent and Lenders in enforcing any Obligations of or in collecting any payments due
from any Credit Party hereunder or under the other Credit Documents by reason of any Default or
Event of Default (including in connection with the sale of, collection from, or other realization
upon any of the Collateral or the enforcement of the Guaranty) or in connection with any
refinancing or restructuring of the credit
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arrangements provided hereunder in the nature of a “work out” or pursuant to any insolvency or
bankruptcy cases or proceedings (including, without limitation, the costs and expenses of any
advisers retained by Agents, the Borrowing Base Agent and Lenders; provided, that so long
as no Event of Default has occurred and is continuing the Borrower shall not be responsible for
costs and expenses of CRS in excess of $25,000).
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their
respective officers thereunto duly authorized, as of the date first above written.
| BORROWER: PROLIANCE INTERNATIONAL, INC. |
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| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Title: | Executive Vice President, Chief Financial Officer |
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| GUARANTORS: AFTERMARKET LLC |
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| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Title: | Vice President | |||
| AFTERMARKET DELAWARE CORPORATION |
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| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Title: | Vice President | |||
| PROLIANCE INTERNATIONAL HOLDING CORPORATION |
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| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Title: | President | |||
| AGENTS AND LEAD ARRANGER: SILVER POINT FINANCE, LLC, as Administrative Agent, Lead Arranger and Collateral Agent |
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| By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||
| Title: | Authorized Signatory | |||
| LENDERS: SPF CDO I, LTD., as a Lender |
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| By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||
| Title: | Authorized Signatory | |||
| : | ||||
| FIELD POINT III, LTD. as a Lender |
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| By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||
| Title: | Authorized Signatory | |||
| : | ||||
| FIELD POINT IV, LTD. as a Lender |
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| By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||
| Title: | Authorized Signatory | |||
| : | ||||
| BORROWING BASE AGENT AND LENDER: ▇▇▇▇▇ FARGO FOOTHILL, LLC, as Borrowing Base Agent and a Lender |
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| By: | /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | |||
| Title: | VP | |||