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Exhibit
10.1
NINTH AMENDMENT
TO
LOAN AND SECURITY
AGREEMENT,
LIMITED WAIVER, AND
CONSENT
This NINTH AMENDMENT TO LOAN
AND SECURITY AGREEMENT, LIMITED WAIVER, AND CONSENT (this “
Amendment ”), dated September 29, 2007, by and
among LASALLE BUSINESS CREDIT, LLC, a Delaware limited liability
company (“ LaSalle ”), with its principal office
at 450 North Brand Blvd., Suite 950, Glendale, California 91203,
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, 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; and
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 month ended
July 31, 2007 (the “ Existing Default ”),
which Existing Default constitutes an Event of Default under
Paragraph 16(b) of the Loan Agreement.
C. WHEREAS, the Borrower has
advised the Lenders and the Agent that it will make a payment of
principal and interest of not more than $1,015,536 to M.T.M.
Società a Responsabilità Limitata (“ MTM
”) on October 1, 2007, under that certain Loan Agreement
between Borrower and MTM dated December 23, 2004 (the “
MTM Sub-Debt Payment ”), and that MTM has agreed to
loan $1,015,536 to Borrower or before October 4, 2007, which
loan will not be payable until the Liabilities to the Agent and the
Lenders are paid in full.
D. WHEREAS, the Borrower has
requested that the Lenders and the Agent agree to: (a) waive
the Existing Default; (b) consent to the MTM Sub-Debt Payment;
and (c) amend the Loan Agreement in certain respects, and the
Lenders and the Agent are willing to waive the Existing Default,
consent to the MTM Sub-Debt Payment 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.
NOW THEREFORE, the parties
hereto agree as follows:
1. The Borrower confirms that
the Recitals above are true and correct.
2. Limited Waiver
.
(a) The Lenders and the Agent
hereby waive the Existing Default and the Event of Default under
Paragraph 16(b) of the Loan Agreement to the extent of the
Existing 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 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. Limited Consent
.
(a) Notwithstanding anything
to the contrary set forth in the Loan Agreement or the Other
Agreements, subject to the terms and conditions set forth herein,
the Lenders and the Agent hereby consent to the MTM Sub-Debt
Payment (but to no other payments to MTM) so long as (i) no
Default or Event of Default has occurred and is continuing other
than the Existing Default, and (ii) MTM loans $1,015,536 to
Borrower or before October 4, 2007. To the extent MTM does not
loan $1,015,536 to Borrower or before October 4, 2007, that
will constitute an Event of Default.
(b) The foregoing consent is
limited strictly as written and shall not be deemed to constitute
the Lenders’ or Agent’s consent to any other
transaction, whether or not similar in nature to the
foregoing.
4. Financials . The
fiscal quarterly financial statements for the quarters ending
March 31, 2007 and June 30, 2007 otherwise due to the
Lenders and the Agent as set forth in Paragraph 11(c) of the
Loan Agreement and the 2006 year end financial statements otherwise
due to the Lenders and the Agent within 90 days after the end of
the 2006 Fiscal Year pursuant to Paragraph 11(e) of the Loan
Agreement, shall each be due on or before October 31, 2007.
This extension is a one time extension only for the specific time
periods and for the specific documents set forth in the preceding
sentence.
5. Extension of Term .
The first sentence of Paragraph 12(a) of the Loan Agreement
is hereby deleted and replaced in its entirety by the
following:
“(a) This Agreement
shall be in effect from the date hereof until November 30,
2007 (the “ Term ”) unless the due date of the
Liabilities is accelerated pursuant to paragraph 17 hereof, in
which case this Agreement shall terminate on the date thereafter
that the Liabilities are paid in full, provided ,
however , that the security interests and liens created
under this Agreement and the Other Agreements shall survive such
termination until the date upon which payment and satisfaction in
full of the Liabilities shall have occurred.”
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6. Subordinated Debt
Payments . Except for the MTM Sub-Debt Payment, the Borrower
has represented to the Agent and the Lenders that it will not make
any payments of principal to MTM until after November 30, 2007
and payment in full of the Liabilities. The foregoing shall be
deemed an additional representation and warranty under Paragraph
13 of the Loan Agreement.
7. Amendment Fee . In
addition to all other fees and charges, Borrower agrees to pay to
Agent on the date hereof an amendment fee of $10,000 (the “
Amendment Fee ”).
8. 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 mig
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