EXHIBIT 99.1
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SEVENTH AMENDMENT TO LOAN AND SECURITY AGREEMENT
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This Seventh Amendment to Loan and Security Agreement (the "Seventh
Amendment") is made as of July 1, 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 Borrowers have requested that the Lender agree to a
temporary increase to the Maximum Credit and Revolving Loan Ceiling under the
Loan Agreement as provided herein;
WHEREAS, the Lender has agreed to temporarily adjust the Maximum Credit
and Revolving Loan Ceiling and to enter into this Seventh Amendment subject to
the terms and conditions set forth herein;
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, Obligors and Lender hereby agree as follows:
1. Amendments to Loan Agreement.
1.1. Definition of Maximum Credit. Section 1.37 of the Loan
Agreement hereby is deleted in its entirety and the following definition is
substituted in lieu thereof:
"1.37 'Maximum Credit' shall mean the following amounts during
the following time periods:
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Time Period Maximum Credit
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July 1, 2002 through September 22, 2002 $65,000,000
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September 23, 2002 through October 17, 2002 $62,000,000
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October 18, 2002 through November 14, 2002 $60,000,000
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November 15, 2002 through December 19, 2002 $58,000,000
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December 20, 2002 and thereafter $55,000,000"
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1.2. Definition of Revolving Loan Ceiling. Section 1.50 of the
Loan Agreement hereby is deleted in its entirety and the following definition is
substituted in lieu thereof:
"1.50 `Revolving Loan Ceiling' shall mean the following
amounts during the following time periods:
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Time Period Revolving Loan Ceiling
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July 1, 2002 through September 22, 2002 $62,000,000
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September 23, 2002 through October 17, 2002 $59,000,000
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October 18, 2002 through November 14, 2002 $57,000,000
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November 15, 2002 through December 19, 2002 $55,000,000
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December 20, 2002 and thereafter $52,000,000"
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2. Conditions Precedent. This Seventh Amendment and the Lender's
obligations hereunder shall not be effective until each of the following
conditions are satisfied (the "Seventh Amendment Effective Date"):
2.1. Borrowers shall have duly executed and delivered this
Seventh 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 Seventh Amendment shall be satisfactory in
form and substance to Lender; and
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.
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 Seventh Amendment, and each of the
Financing Agreements to which it is a party. The execution, delivery, and
performance of this Seventh 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 Seventh 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 Seventh Amendment and
each of the other Financing Agreements delivered under this Seventh 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 Seventh Amendment, and
to the performance by the Borrowers of their respective agreements and
obligations hereunder. This Seventh Amendment and the performance or
consummation of any transaction or matter contemplated under this Seventh
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
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Lender. Each Obligor acknowledges that it is unconditionally liable to Lender
for the full and complete payment of all Obligations and Guaranteed 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 and Guaranteed 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 Seventh Amendment and any other documents
and agreements prepared in connection with this Seventh 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 Seventh Amendment (and as set forth in any previously executed amendments
to the Loan Agreement). 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 Seventh Amendment by Lender shall not be construed as a
waiver by Lender of any Event of Default under the Financing Agreements. This
Seventh 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
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subject matter hereof and supersedes all prior dealings, correspondence,
conversations or communications between the parties with respect to the subject
matter hereof.
REST OF PAGE LEFT INTENTIONALLY BLANK
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IN WITNESS WHEREOF, the Borrowers, the Obligors, and the Lender have
executed this Seventh 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.
/s/ R.E. Xxxxxxx By:/s/ X.X. Xxxxx
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Title:Vice President
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EVAP, INC.
/s/ R.E. Xxxxxxx By:/s/ X.X. Xxxxx
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Title: Vice President
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GO/XXX INDUSTRIES, INC.
/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.
/s/ R.E. Xxxxxxx By:/s/ X.X. Xxxxx
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Title: Vice President
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OBLIGORS:
GO/XXX de MEXICO SA de C.V.
/s/ R.E. Xxxxxxx By: /s/ X.X. Xxxxx
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Title: Vice President
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XXXXXXXXXX XXX, XX de C.V.
/s/ R.E. Xxxxxxx By:/s/ X.X. Xxxxx
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Title: Vice President
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XXXXX HEAT TRANSFER PRODUCTS, INC.
/s/ R.E. Xxxxxxx By:/s/ X.X. Xxxxx
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Title: Vice President
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LENDER
CONGRESS FINANCIAL CORPORATION (NEW ENGLAND)
/s/ Xxxx X. Moaquin By:/s/ Xxxx X. Xxxxxxxx
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Title:Vice President
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