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THIRTEENTH
AMENDMENT TO
LOAN AND SECURITY
AGREEMENT
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This THIRTEENTH AMENDMENT TO LOAN AND SECURITY AGREEMENT
(this “ Amendment
”), dated May 12, 2008, by and among
LASALLE BUSINESS CREDIT, LLC, a Delaware limited liability company
(“ LaSalle
”), with its principal office at One
Centerpointe Drive, #500, Lake Oswego, Oregon 97035, the financial
institutions that, from time to time, become a party to the Loan
Agreement (hereinafter defined) (such financial institutions,
collectively, the “ Lenders ” and each
individually, a “ Lender ”), LaSalle as
agent for the Lenders (in such capacity, the “
Agent ”),
and IMPCO TECHNOLOGIES, INC., a Delaware corporation, with its
principal office at 3030 South Susan Street, Santa Ana, California
92704 (the “ Borrower
”).
A. WHEREAS, LaSalle, as a Lender and the Agent, and the
Borrower are parties to a Loan and Security Agreement dated as of
July 18, 2003 (as amended, restated, supplemented, or otherwise
modified from time to time, the “ Loan Agreement ”),
pursuant to which the Lenders have agreed, upon satisfaction of
certain conditions, to make Revolving Advances and other financial
accommodations to the Borrower;
B. WHEREAS, the Borrower has informed the Lenders and the
Agent that it is not in compliance with the U.S. Minimum Pre-Tax
Income covenant set forth in Paragraph
14(x)(v) of the Loan Agreement for
the three months ended March 31, 2008 (the “
March Default ”), which March Default constitutes an Event of
Default under Paragraph
16(b) of the Loan
Agreement.;
C. WHEREAS, the Borrower has requested that the Lenders and
the Agent agree to (a) waive the March Default and (b) amend the
Loan Agreement in certain respects, and the Agent and the Lenders
are willing to waive the March Default and amend the Loan
Agreement, all on the terms and subject to the conditions
hereinafter set forth. Capitalized terms used herein, unless
otherwise defined herein, shall have the meaning set forth in the
Loan Agreement.
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NOW THEREFORE, the parties hereto agree as follows:
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1.
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Recitals . Recitals A, B, and
C above are incorporated herein as though set forth
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full. |
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2.
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Limited
Waiver . |
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(a)
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The Lenders
and the Agent hereby waive the March Default and the Event
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Default under
Paragraph 16(b) of the Loan Agreement to the extent of the March Default
and agree not to exercise any rights or remedies available as a
result of the occurrence thereof.
(b) The waiver granted herein is a one-time waiver, given
solely for the specific covenants and specific time periods set
forth in Recital B hereof. Nothing contained in this Amendment
constitutes a waiver by the Lenders or the Agent of any other terms
or provisions of the Loan Agreement or the Other Agreements,
whether or not the Lenders or the Agent have any
\6253179.1
knowledge thereof, nor may
anything contained in this Amendment be deemed a waiver by the
Lenders or the Agent of any non-compliance with the terms or
provisions of the Loan Agreement or the Other Agreements that may
occur after the date of this Amendment.
3. Revolving Loan
Commitment . The definition of
“Revolving Loan Commitment” set forth in Paragraph 1(a)
of the Loan Agreement is hereby amended and restated to read in its
entirety as follows:
“‘Revolving Loan
Commitment’ shall mean the sum of
$4,000,000.”
4. Inventory
. Clause (A) of Paragraph 2(b)(i) of the Loan
Agreement is hereby deleted and replaced in its entirety by the
following:
“(A) the sum of: (1) up to eighty-five percent (85%)
(the “ Accounts Advance
Rate ”) of the face amount of
Eligible Accounts, plus
(2) the lesser of: (x) $727,724.25 or (y) up to
17% (the “ Inventory Advance
Rate ”) of the value of
Eligible Inventory, consisting of finished goods and raw materials
calculated on the basis of the lower of cost or market, value on a
first in, first out basis, provided
however that both the sublimit of
$727,724.25 and the Inventory Advance Rate will each continue to be
reduced by 1% per week, such reduction to be effective as of Monday
of each week, with the next reduction occurring on May 19, 2008;
or”
5. Reset of the U.S. Minimum
Pre-Tax Income Covenant .
Paragraph 14(x)(v) of the Loan Agreement is hereby amended and restated to
read in its entirety as follows:
“(v) U.S . Minimum
Pre-Tax Income . Borrower shall
maintain and cause the U.S. Consolidated Group to maintain, as of
the four months ending April 30, 2008, Pre-Tax Income of not less
than ($1,450,000).”
6. Amendment Fee
. In addition to all other fees and charges,
Borrower agrees to pay to Agent on the date hereof a fully-earned,
non-refundable amendment fee of $10,000 (the “
Amendment Fee ”).
7. Release
. As a material inducement to the Agent and the
Lenders to enter into this Amendment, Borrower hereby releases the
Agent and each Lender, and their respective directors, officers,
employees, affiliates, representatives, attorneys, and agents, from
any and all claims, demands, debts, liabilities, actions, and
causes of action of every kind, known or unknown, and character
based upon, relating to, or arising out of the Loan Agreement and
related transactions in any way (collectively “
Claims ”).
The Borrower intends the above release to cover, encompass,
release, and extinguish, inter alia, all Claims that might
otherwise be reserved by California Civil Code Section 1542 or any
similar provision of New York law. California Civil Code Section
1542 provides as follows:
“A general release does not extend to claims which
the creditor does not know or suspect to exist in his or her favor
at the time of
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executing the release, which
if known by him or her must have materially affected his or her
settlement with the debtor.”
Borrower acknowledges that it
may hereafter discover facts different from or in addition to those
now known or believed to be true with respect to such claims,
demands, or causes of action, and agrees that this Amendment and
the above releases are and will remain effective in all respects
notwithstanding any such differences or additional
facts.
8. Acknowledgments and
Confirmations . The B
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