EXHIBIT 10.4
LIMITED WAIVER
This LIMITED WAIVER (this “
Waiver ”), dated May 9, 2005, by and among LASALLE
BUSINESS CREDIT, LLC, a Delaware limited liability company (“
LaSalle ”), with its principal office at 135 South
LaSalle Street, Chicago, Illinois 60603, 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 16804 Gridley Place, Cerritos, California 90703 (the
“ Borrower ”).
WHEREAS, the Borrower and LaSalle as
a Lender and the Agent, 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.
WHEREAS, the Borrower has advised
the Lenders and the Agent that it was not in compliance with the
Loan Agreement in the following respects (collectively, the “
Financial Covenant Non-Compliance ”): (a) Paragraph
14(p)(vi) (Consolidated Minimum Pre-Tax Income), and (b)
Paragraph 14(x)(v) (U.S. Minimum Pre-Tax Income), in each
case with respect to the Borrower’s fiscal quarter ending
March 31, 2005.
WHEREAS, the Borrower has requested
that the Lenders and the Agent agree to waive the Financial
Covenant Non-Compliance, and the Lenders and the Agent are willing
to so agree to waive the Financial Covenant Non-Compliance, on the
terms and subject to the conditions hereinafter set
forth.
NOW THEREFORE, the parties hereto
agree as follows:
1. Waiver .
(a) Effective as of the Effective
Date, the Lenders and the Agent hereby waive the Financial Covenant
Non-Compliance.
(b) The waiver granted herein is a
one-time waiver, given solely for the specific covenants and
specific time periods set forth herein. Nothing contained in this
Waiver constitutes a waiver by the Lenders or the Agent of any
other term or provision of the Loan Agreement or the Other
Documents, whether or not the Lenders or the Agent have any
knowledge thereof, nor may anything contained in this Waiver 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 Waiver.
2. Waiver Fee . In
consideration for the waiver granted by the Agent herein and in
addition to all other fees and costs, the Borrower hereby agrees to
pay to the Agent a nonrefundable fee equal to Five Thousand Dollars
($5,000), which fee will be fully earned, due, and payable as of
the date of this Waiver (the “ Waiver Fee
”).
3. Representations and
Warranties . The Borrower hereby represents and warrants to the
Lenders and the Agent, that:
(a) Each of the representations and
warranties set forth in Paragraph 13 of the Loan Agreement
is true in all material respects as of the date hereof, except for
changes in the ordinary course of business, that, either singly or
in the aggregate, are not materially adverse to the business or
financial condition of the Borrower or to the
Collateral.
(b) As of the date hereof, after
giving effect to the terms of this Waiver, there exists no Default
or Event of Default.
(c) The Borrower has the power to
execute, deliver, and perform this Waiver. The Borrower has taken
all necessary action to authorize the execution, delivery, and
performance of this Waiver. No consent or approval of any entity or
Person (including without limitation, any shareholder of the
Borrower), no consent or approval of any landlord or mortgagee, no
waiver of any Lien or right of distraint or other similar right,
and no consent, license, approval, authorization, or declaration of
any governmental authority, bureau, or agency is required in
connection with the execution, delivery, or performance by the
Borrower, or the validity or enforcement, of this
Waiver.
(d) The execution and delivery by
the Borrower of this Waiver will not violate any provision of law
and will not conflict with or result in a breach of any order,
writ, injunction, ordinance, resolution, decree, or other similar
document or instru
