EXHIBIT 4.15
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FOURTH AMENDMENT TO LOAN AND SECURITY AGREEMENT
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This Fourth Amendment to Loan and Security Agreement (the "Fourth
Amendment") is made as of the 31st day of December, 2001, by and between
TransPro, Inc. ("TransPro"), Evap, Inc., and GO/DAN Industries, Inc., as
borrowers (individually, each a "Borrower" and collectively, the "Borrowers"),
Allen Heat Transfer Products, Inc., GO/DAN 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 intend to transfer the assets of TransPro's G&O
Manufacturing Division to a recently formed wholly-owned subsidiary of TransPro,
G&O Manufacturing Company, Inc., a Delaware corporation ("G&O Manufacturing"),
and to dissolve Allen Heat Transfer Products, Inc. ("AHTP");
WHEREAS, the Lender has agreed to enter into this Fourth 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.
1.1. Lender consents to the formation of G&O Manufacturing and
agrees that G&O Manufacturing is and shall be deemed to be a Borrower under the
Loan Agreement and all other Financing Agreements.
1.2. G&O Manufacturing hereby agrees to be a Borrower under the
Loan Agreement and all other Financing Agreements and in furtherance thereof G&O
Manufacturing agrees that it is absolutely, unconditionally and jointly and
severally liable for the full, complete, and punctual payment and performance of
all Obligations under the Loan Agreement and Financing Agreements whenever
occurring or arising, whether existing or arising prior to the date hereof,
existing on the date hereof, or hereafter arising, and that it has no defenses,
counterclaims or setoffs to the full, complete and punctual payment and
performance of all Obligations. In addition, to secure payment and performance
of all Obligations, G&O Manufacturing hereby grants to Lender a continuing
security interest in, a lien upon, a right of set off against, and hereby
assigns to Lender as collateral security all of the Collateral, whether now
owned or hereafter acquired or existing, and wherever located.
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1.3. In addition to and without in any way limiting or substituting
for the Collateral granted by Borrowers to Lender pursuant to the Loan Agreement
and under the other Financing Agreements, as security for the payment and
performance of all Obligations and any and all other obligations of every type
of Borrowers to Lender, each Borrower hereby grants to Lender a continuing
security interest in, a lien upon, a right of setoff against and assigns to
Lender as collateral security all of its property and assets of every type
whatsoever, now owned or hereafter acquired, wherever located, including without
limitation all of the following categories of property and interests in
property, as defined under the UCC presently in effect in The Commonwealth of
Massachusetts or as hereafter amended: goods (including inventory, equipment and
any accessions thereto), instruments (including promissory notes), documents,
accounts (including health-care insurance receivables), chattel paper (whether
tangible or electronic), deposit accounts, letters of credit (whether or not the
letter of credit is evidenced by a writing), banker's acceptances and similar
instruments and including all letter-of-credit rights, commercial tort claims,
securities and all other investment property, general intangibles (including
payment intangibles and software), supporting obligations and any and all
products and proceeds of any of the foregoing. For all purposes under the Loan
Agreement, each of the foregoing categories of property shall be deemed to be
included in the Collateral and the definition of Collateral is hereby amended to
include such categories. No Borrower shall change its state of incorporation
without obtaining Lender's prior written consent, such consent to be in Lender's
discretion. Each Borrower promptly shall notify Lender in writing upon such
Borrower acquiring any commercial tort claim(s). Each Borrower irrevocably and
unconditionally authorizes Lender (or its agent) to file at any time and from
time to time such financing statements with respect to the Collateral naming
Lender or its designee as the secured party and each Borrower as debtor, and
including any other information with respect to the Borrowers or otherwise
required by part 5 of Article 9 of the UCC, together with amendments and
continuations with respect thereto, which authorization shall apply to all
financing statements naming Lender or its designee as secured party and Borrower
as debtor filed on, prior to or after the date hereof. In no event shall any
Borrower file or permit or cause to be filed any correction statement,
amendment, or termination statement with respect to any such financing
statement. Borrowers shall take or cause to be taken all action required to
cause the attachment, perfection and first priority of, and the ability of
Lender to enforce the Lender's security interest including, without limitation,
obtaining control agreements with respect to deposit accounts, letter-of-credit
rights, electronic, chattel paper, instruments and investment property.
1.4. Based on Borrowers' representation that AHTP has no assets or
liabilities, Lender consents to the dissolution of AHTP as of December 31, 2001.
2. Conditions Precedent. This Fourth Amendment and the Lender's
obligations hereunder shall not be effective until each of the following
conditions are satisfied (the "Fourth Amendment Effective Date"):
2.1. Borrowers shall have duly executed and delivered this Fourth
Amendment, and all other instruments, documents and agreements required by
Lender;
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2.2. All requisite corporate action and proceedings of the
Borrowers in connection with this Fourth 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.
2.4. Lender shall have received evidence, satisfactory to Lender,
that G&O Manufacturing is duly incorporated and in good standing in Delaware and
in each jurisdiction in which it does business, that there are no security
interests or liens on the assets thereof and that the Lender's security
interests and liens in the assets of G&O Manufacturing are duly perfected first
priority security interests and liens.
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.
3.2. Power and Authority. Each Borrower is duly authorized and
empowered to enter, deliver, and perform this Fourth Amendment, and each of the
Financing Agreements to which it is a party. The execution, delivery, and
performance of this Fourth 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 Fourth 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 Fourth Amendment and each
of the other Financing Agreements delivered under this Fourth Amendment is, a
legal, valid and binding obligation of each Borrower, enforceable against each
Borrower
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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 Fourth
Amendment, and to the performance by the Borrowers of their respective
agreements and obligations hereunder. This Fourth Amendment and the performance
or consummation of any transaction or matter contemplated under this Fourth
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. 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 Fourth Amendment and any other documents
and agreements prepared in connection with this Fourth Amendment. The
undersigned confirm that the Financing Agreements remain in full force and
effect without amendment or modification of any kind, except for
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as set forth in this Fourth 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 Fourth Amendment by Lender shall
not be construed as a waiver by Lender of any Event of Default under the
Financing Agreements. This Fourth 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 Fourth 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. Freeman By: /s/ R.A. Wisot
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Title: Vice President
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EVAP, INC.
By: /s/ R.E. Freeman By: /s/ R.A. Wisot
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Title: Vice President
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GO/DAN INDUSTRIES, INC.
By: /s/ R.E. Freeman By: /s/ R.A. Wisot
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Title: Vice President
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G&O MANUFACTURING COMPANY, INC.
By: /s/ R.E. Freeman By: /s/ R.A. Wisot
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Title: Vice President
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OBLIGORS:
GO/DAN de MEXICO SA de C.V.
By: /s/ R.E. Freeman By: /s/ R.A. Wisot
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Title: Vice President
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RADIADORES GDI, SA de C.V.
By: /s/ R.E. Freeman By: /s/ R.A. Wisot
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Title: Vice President
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LENDER
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CONGRESS FINANCIAL CORPORATION (NEW ENGLAND)
/s/ Constant M. Richard By:/s/ John Sullivan
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Title: Vice President
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