Exhibit
10.1
FIRST AMENDMENT AND
WAIVER
TO CREDIT
AGREEMENT
FIRST AMENDMENT AND WAIVER, dated as of
November 9, 2007 (this ‘‘
Amendment ’’), to the Credit
Agreement, dated as of July 19, 2007, (as amended,
restated or otherwise modified from time to time, the
‘‘ Credit Agreement
’’), by
and among Proliance International Inc., a Delaware corporation
(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
the Credit Agreement to, among other things: (i) amend the
definition of ‘‘Extraordinary Receipts’’,
and (ii) waive certain Events of Default under the Credit
Agreement, in each case, 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)
Existing
Definitions . (i) The
following definition in Section 1.1 of the Credit Agreement is
hereby amended and restated in its entirety to read as
follows:
‘‘
Extraordinary Receipts ’’ means any cash
received by or paid to or for the account of Holdings or any of it
Subsidiaries not in the ordinary course of business, including any
foreign, United States, state or local tax refunds, pension plan
reversions, judgments, proceeds of settlements or other
consideration of any kind in connection with any cause of action,
condemnation awards (and payments in lieu thereof), indemnity
payments and any purchase price adjustment received in connection
with any purchase agreement and proceeds of insurance (excluding,
however, any Net Asset Sale Proceeds which are subject to Section
2.13(a) and any Net Insurance/Condemnation Proceeds which are
subject to Section 2.13(b)). For the avoidance of doubt, the
parties hereto hereby agree that any payments received by Holdings
or any of its Subsidiaries pursuant to Section 2(d)(iii) of the
Asset Purchase Agreement, dated as of September 28, 2007,
by and between Radiator Express Warehouse and Holdings, as in
effect on September 28, 2007, shall constitute
‘‘Extraordinary Receipts’’.
3.
Waiver
. (a) Pursuant
to the request by the Credit Parties, but subject to satisfaction
of the conditions set forth in Section 4 hereof, and in reliance
upon (A) the representations and warranties
of the Credit Parties
set forth herein and in the Credit Agreement and (B) the agreements
of the Credit Parties set forth herein, the Lenders and the Agents
hereby waive any Event of Default that may arise under Section
8.1(c) of the Credit Agreement by reason of the failure of the
Credit Parties to, pursuant to Sections 6.7(b) and 6.7(k) of the
Credit Agreement, comply with the Senior Leverage Ratio and the
Consolidated Total Debt financial covenants contained therein for
the applicable periods ending
September 30, 2007.
(b) The
waivers in this Section 3 shall be effective only in this specific
instance 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 remain in full force and
effect.
4.
Conditions
to Effectiveness . This Amendment shall become
effective (the ‘‘ Amendment Effective
Date ’’) only upon
satisfaction in full of the following conditions
precedent:
(a) The
Collateral Agent shall have received counterparts of this Amendment
that bear the signatures of each Credit Party, each Agent and the
Requisite Lenders.
(b) 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 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) No
Default or Event of Default shall have occurred and be continuing
on the Amendment Effective Date or would result from this Amendment
becoming effective in accordance with its terms (other than the
Event of Defaults waived herein).
(d) All
legal matters incident to this Amendment shall be satisfactory to
the Agents and their respective counsel.
5.
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
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 . 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 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
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