Exhibit 10.11.4
FOURTH AMENDMENT TO CREDIT
AGREEMENT
THIS FOURTH AMENDMENT
(“Amendment”) is made as of the 6th day of August,
2009, by and between Amerigon Incorporated (herein called
“Company”) and Comerica Bank (herein called the
“Bank”).
RECITALS:
A. Company and Bank entered into
that certain Amended and Restated Credit Agreement dated as of
October 28, 2005, entered into by and between Company and
Bank, as amended by First Amendment to Credit Agreement dated as of
February 6, 2008, as amended by Second Amendment to Credit
Agreement dated as of April 29, 2008 and as amended by Third
Amendment to Credit Agreement dated as of October 7, 2008 (as
further amended or otherwise modified from time to time, the
“Credit Agreement”), under which the Bank extended (or
committed to extend) credit to Company, as set forth
therein.
B. Company has requested that Bank
make certain amendments to the Credit Agreement, and Bank is
willing to do so, but only on the terms and conditions set forth in
this Amendment.
NOW, THEREFORE, Company and Bank
agree:
All references to “
Prime-based Advance ” and “ Prime-based
Rate ” shall be deleted and replaced, respectively, with
references to “ Base Rate Advance ” and “
Base Rate ” in the Credit Agreement and in the
Exhibits to the Credit Agreement.
Section 1 of the Credit
Agreement is hereby amended as follows:
The definitions of “
Alternate Base Rate ”, “ Funded Debt to
EBITDA Ratio ”, “ Prime-based Rate ”,
“ Prime-based Advance ”, “ Trigger
Date ” and “ Unencumbered Liquid Assets
” are hereby deleted in their entirety from Article
1.
The following definitions are
hereby added to Section 1 of the Credit
Agreement:
“Base Rate” shall
mean (i) the Daily Adjusting LIBOR Rate plus the Applicable
Margin or (ii) during any period of time during which, in
accordance with the terms and conditions of this Agreement,
Advances may not bear interest at or by reference to the Daily
Adjusting LIBOR Rate, the Prime Referenced Rate plus the Applicable
Margin.
“Base Rate Advance”
shall mean an Advance which bears interest at the Base
Rate.
“Daily Adjusting LIBOR
Rate” means, for any day, the greater of (i) the LIBOR
Floor and (ii) a per annum rate of interest which is equal to
the one (1) month LIBOR Rate for deposits in United States
Dollars appearing on Page BBAM of the Bloomberg Financial Markets
Information Service (or any other publicly available service for
displaying LIBOR rates as may be reasonably selected by Bank), as
of 11:00 a.m. (Detroit, Michigan time) (or as soon thereafter as
practical) on such day, or if such day is not a Business Day, on
the immediately preceding Business Day. If such services are
unavailable, the “Daily Adjusting LIBOR Rate” for such
day shall, instead, be determined based upon the average of the
rates at which Bank is offered dollar deposits at or about 11:00
a.m. (Detroit, Michigan time) (or as soon thereafter as practical),
on such day, or if such day is not a Business Day, on the
immediately preceding Business Day, in the interbank eurodollar
market in an amount comparable to the principal amount outstanding
under the Loan and for a period of one (1) month. The Daily
Adjusting LIBOR Rate will be adjusted for reserves, if
applicable.
“LIBOR Floor” shall
mean two percent (2.00%).
“Prime Referenced
Rate” means, for any day, a per annum interest rate which is
equal to the Bank’s prime rate in effect on such day (which
rate is not necessarily the lowest rate on loans made by Bank at
any such time), but in no event and at no time shall the Prime
Referenced Rate be less than the sum of the Daily Adjusting LIBOR
Rate for such day plus 2.50% per annum. If, at any time, Bank
determines that it is unable to determine or ascertain the Daily
Adjusting LIBOR Rate for any day, the Prime Referenced Rate for
each such day shall be the Bank’s prime rate in effect at
such time, but not less than 2.50% per annum.
The following definitions in
Section 1 of the Credit Agreement are hereby amended and
restated as follows:
“Applicable Fee
Percentage” shall mean, one half of one percent
(.50%).
“Applicable L/C Commission
Rate” shall mean three percent (3.00%).
“Applicable Margin”
shall mean three percent (3.00%).
“Availability” shall
mean as of any date of determination the amount obtained by
subtracting from $10,000,000 an amount equal to the aggregate
principal amount of the Advances plus the Letter of Credit
Reserve.
“Base Tangible Net
Worth” shall initially mean $35,000,000. On the last day of
each fiscal year of Company (commencing December 31, 2009),
Base Tangible Net Worth shall increase by an amount equal to fifty
percent (50%) of net income of Company and its Consolidated
Subsidiaries for the fiscal year then ended. If net income is less
than $0, it shall be treated as being $0 for purposes of this
calculation.
“Borrowing Base”
shall mean as of any date of determination, the sum of
(a) eighty five percent (85%) of Eligible Accounts, plus
(b) the lesser of (i) sixty percent (60%) of
Eligible Foreign Accounts and (ii) Three Million Dollars
($3,000,000), plus (c) fifty percent (50%) of Eligible
Inventory, plus (d) one hundred percent (100%)] of the market
value (as determined by Bank in its sole discretion) of Eligible
Securities.
“Eligible Securities”
shall mean money market investments that are rated
“AAA” or better by Standard & Poor’s
Rating Agency or Moody’s Investor Services, and that are
contained in that certain securities account # ORA-015369 at
Comerica Securities, Inc. and that are not subject to any pledge,
security interest, lien, mortgage, hypothecation or other
encumbrance (except to Bank under that certain Security Agreement
(Securities Account) dated April 29, 2008 by Company) provided
that such financial assets are credited to the account and the
Company’s interest in such financial assets is a security
entitlement.
“Eurodollar-based
Rate” means, for any indebtedness under the loan bearing
interest at the Eurodollar-based Rate, the Applicable Margin plus
greater of (i) the LIBOR Floor and (ii) the per annum
rate of interest determined on the basis of the rate for deposits
in United States Dollars for a period equal to the relevant
Interest Period for such indebtedness, commencing on the first day
of such Interest Period, appearing on Page BBAM of the Bloomberg
Financial Markets Information Service (or any other publicly
available service for displaying LIBOR rates as may be reasonably
selected by Bank) as of 11:00 a.m. (Detroit, Michigan time) (or as
soon thereafter as practical), two (2) Business Days prior to
the first day of
