EXHIBIT 10.1
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SEVENTEENTH AMENDMENT TO LOAN AND SECURITY AGREEMENT
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This Seventeenth Amendment to Loan and Security Agreement (the
"Seventeenth Amendment") is made as of January 19, 2007 by and between Proliance
International, Inc., ("Proliance"), Ready Aire, Inc. ("RA"; together with
Proliance, the "Borrowers"), Proliance International, S.A. de C.V. ("Proliance
Mexico"), Radiadores GDI, S.A. de C.V. ("Radiadores"), Aftermarket Delaware
Corporation ("Aftermarket") and Aftermarket LLC ("Aftermarket LLC"; together
with Proliance Mexico, Radiadores and Aftermarket, the "Obligors"), and Wachovia
Capital Finance Corporation (New England), formerly known as Congress Financial
Corporation (New England), as lender (the "Lender").
WHEREAS, the Lender and Borrowers are parties to that certain Loan and
Security Agreement dated as of January 4, 2001, as amended by the First
Amendment to Loan and Security Agreement dated as of July 2001 ("First
Amendment"), the Second Amendment to Loan and Security Agreement dated as of
July 30, 2001 ("Second Amendment"), the Third Amendment to Loan and Security
Agreement dated as of November 27, 2001 ("Third Amendment"), the Fourth
Amendment to Loan and Security Agreement dated as of December 31, 2001 ("Fourth
Amendment"), the Fifth Amendment to Loan and Security Agreement dated as of
February 20, 2002 ("Fifth Amendment"), the Sixth Amendment to Loan and Security
Agreement dated as of December 31, 2001 ("Sixth Amendment"), the Seventh
Amendment to Loan and Security Agreement dated as of July 1, 2002 ("Seventh
Amendment"), the Eighth Amendment to Loan and Security Agreement dated as of
November 22, 2002 ("Eighth Amendment"), the Ninth Amendment to Loan and Security
Agreement dated as of December 27, 2002 ("Ninth Amendment"), the Tenth Amendment
to Loan and Security Agreement dated as of November 19, 2004 (the "Tenth
Amendment"), the Eleventh Amendment to Loan and Security Agreement dated as of
March 2, 2005 (the "Eleventh Amendment"), the Twelfth Amendment to Loan and
Security Agreement dated as of July 21, 2005 (as amended by that certain
Amendment to Twelfth Amendment dated September 30, 2005 and that certain Second
Amendment to Twelfth Amendment dated November 30, 2005, the "Twelfth
Amendment"), the Thirteenth Amendment to Loan and Security Agreement dated as of
October 20, 2005 (the "Thirteenth Amendment"), the Fourteenth Amendment to Loan
and Security Agreement dated as of March 31, 2006 (the "Fourteenth Amendment"),
the Fifteenth Amendment to Loan and Security Agreement dated as of September 30,
2006 (the "Fifteenth Amendment"), and the Sixteenth Amendment to Loan and
Security Agreement dated as of January 3, 2007 (the "Sixteenth Amendment") (as
amended to date and hereby and as the same may be supplemented, amended,
restated or modified from time to time, the "Loan Agreement"); all capitalized
terms not otherwise defined herein shall have the meanings given such terms in
the Loan Agreement;
WHEREAS, Borrowers have requested that Lender amend certain provisions
of the Loan Agreement as set forth herein; and
WHEREAS, the Lender has agreed to amend such provisions of the Loan
Agreement subject to the terms and conditions hereof;
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, the Obligors and the Lender hereby agree as follows:
1. Amendments to Loan Agreement.
1.1. Minimum Excess Availability. Section 9.20A of the Loan
Agreement is hereby deleted in its entirety and the following is
substituted in lieu thereof:
"9.20A Minimum Excess Availability. The Borrowers shall maintain
Excess Availability equal to or in excess of (i) $5,000,000 from
October 1, 2006 through January 18, 2007 and (ii) $2,500,000 from
and after January 19, 2007. Solely for the purpose of this Section
9.20A, Excess Availability shall be determined without regard to
the limitation that the Maximum Credit and the Revolving Loan
Ceiling in place on the Revolving Loans available to the
Borrowers."
2. Conditions Precedent. The following are all of the conditions
precedent to the effectiveness of this Seventeenth Amendment and the agreements
of the Lender hereunder:
2.1. payment to Lender in immediately available funds of all
documented out-of-pocket expenses, including, without limitation,
reasonable attorneys' fees and disbursements, incurred by the Lender
through the date hereof, in accordance with Sections 5 and 7 hereof;
2.2. receipt by Lender of this Seventeenth Amendment, duly
executed by the Borrowers and Obligors;
2.3. each of the representations and warranties set forth in
Section 4 hereof is true, accurate and correct in all material respects
as of the date hereof (or such other date referenced in Section 4
hereof).
3. Intentionally Omitted.
4. Representations and Warranties. Each Borrower and Obligor jointly and
severally represents and warrants to Lender the following, as applicable:
4.1. Organization and Qualification. Each of the Borrowers and
Obligors is duly incorporated or formed, as applicable, validly existing,
and in good standing under the laws of their respective jurisdictions of
incorporation or
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formation, as applicable. Each Borrower and Obligor is duly qualified to
do business and is in good standing as a foreign corporation or other
applicable organization 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 such Borrower or Obligor.
4.2. Power and Authority. Each Borrower and Obligor are duly
authorized and empowered to enter, deliver, and perform this Seventeenth
Amendment. The execution, delivery, and performance of this Seventeenth
Amendment has been duly authorized by all necessary corporate action of
each of the applicable Borrowers and Obligors. The execution, delivery
and performance of this Seventeenth Amendment do not and will not (i)
require any consent or approval of the shareholders of the Borrowers or
the Obligors; (ii) contravene the charter or by-laws or equivalent
organizational documents of any of the Borrowers or Obligor; (iii)
violate or cause any Borrower or Obligor 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 or Obligor; (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 or Obligor is a
party or by which such Borrower's or Obligor's properties may be bound or
affected, which breach or default is reasonably likely to have a material
adverse effect on the financial condition, business or properties of such
Borrower or Obligor; 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 or Obligor.
4.3. Legally Enforceable Agreement. This Seventeenth Amendment is
a legal, valid and binding obligation of each of the Borrowers and
Obligors and is enforceable against each of the Borrowers and Obligors in
accordance with the terms hereof subject to bankruptcy, reorganization,
moratorium or similar laws affecting the enforcement of creditors' rights
generally.
4.4. Continuous Nature of Representations and Warranties. Each
Borrower confirms and agrees that, except for the amendments to the Loan
Agreement provided herein and in the other previously executed amendments
to the Loan Agreement, (a) all representations and warranties contained
in the Loan Agreement and in the other Financing Agreements (as amended
prior to the date hereof and pursuant to this Seventeenth Amendment) are
on the date hereof true and correct in all material respects (except with
respect to deviations therefrom permitted under Article 9 of the Loan
Agreement) except to the extent that such representations and warranties
expressly relate to a specific earlier date in which case the Borrowers
confirm, reaffirm and restate such representations and warranties as of
such earlier date, (b) all Information Certificates delivered in
conjunction with the Loan Agreement and the Twelfth Amendment to Loan and
Security Agreement dated as of July 21, 2005, as the same may be amended
and/or restated, remain true and correct in all material respects and (c)
it is unconditionally, absolutely, and jointly and severally liable for
the punctual and full performance
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and 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.
5. Acknowledgement of Obligations. Each Obligor, for value received,
hereby consents to the Borrowers' execution and delivery of this Seventeenth
Amendment, and the performance by the Borrowers of their respective agreements
and obligations hereunder. The Borrowers' performance and/or consummation of any
transaction or matter contemplated under this Seventeenth Amendment shall not
limit, restrict, extinguish or otherwise impair any of the Obligors' obligations
to Lender with respect to the Financing Agreements, as applicable. 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.
6. Confirmation of Liens. Each Borrower and Obligor 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 in and liens on the Collateral described therein,
except for liens referenced in Sections 8.4 and 9.8 and Schedule 8.4 of the Loan
Agreement, 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 and Obligor further acknowledges and agrees that
all Obligations of the Borrowers are and shall be secured by the Collateral.
7. Miscellaneous. Lender, Borrowers and Obligors acknowledge and agree
that the Security Documents (as defined in the Twelfth Amendment) shall
constitute Financing Agreements under the Loan Agreement. Without limiting
Borrowers' other obligations under 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, preparation, performance and enforcement of this Seventeenth
Amendment and any other documents and agreements prepared and/or reviewed in
connection herewith. 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 Seventeenth 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 Seventeenth Amendment by
Lender shall not be construed as a waiver by Lender of any Event of Default
under the Financing Agreements. This Seventeenth 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
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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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Signature page to Seventeenth Amendment to Loan Agreement
IN WITNESS WHEREOF, the Borrowers, the Obligors, and the Lender have
executed this Seventeenth Amendment as of the date first above written, by their
respective officers hereunto duly authorized, under seal.
BORROWERS:
WITNESS PROLIANCE INTERNATIONAL, INC.
▇▇ ▇▇▇▇▇▇▇ By: ▇▇ ▇▇▇▇▇
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Title: Vice President
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READY AIRE, INC.
▇▇ ▇▇▇▇▇▇▇ By: ▇▇ ▇▇▇▇▇
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Title: Vice President
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Signature page to Seventeenth Amendment to Loan Agreement
OBLIGORS:
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PROLIANCE INTERNATIONAL, S.A.
de C.V.
▇▇ ▇▇▇▇▇▇▇ By: ▇▇ ▇▇▇▇▇
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Title: Vice President
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RADIADORES GDI, S.A. de C.V.
▇▇ ▇▇▇▇▇▇▇ By: ▇▇ ▇▇▇▇▇
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Title: Vice President
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AFTERMARKET DELAWARE CORPORATION
▇▇ ▇▇▇▇▇▇▇ By: ▇▇ ▇▇▇▇▇
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Title: Vice President
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AFTERMARKET LLC
RC_Freeman By: ▇▇ ▇▇▇▇▇
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Title: Vice President
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LENDER:
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WACHOVIA CAPITAL FINANCE
CORPORATION (NEW ENGLAND)
▇. ▇▇▇▇▇▇▇▇ By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: Vice President
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