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Exhibit
10.40
TENTH AMENDMENT
TO
LOAN AND SECURITY
AGREEMENT,
LIMITED WAIVER AND
AMENDMENT
This TENTH AMENDMENT TO LOAN
AND SECURITY AGREEMENT, LIMITED WAIVER, AND AMENDMENT (this “
Amendment ”), dated October 31, 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, 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; and
B. WHEREAS, the Borrower has
informed the Lenders and the Agent that it is not in compliance
with the following financial covenants for the periods indicated
(hereinafter collectively “ October Existing Defaults
”) which October Existing Defaults each constitute an Event
of Default under Paragraph 16(b) of the Loan
Agreement:
(i) U.S. Minimum Pre-Tax
Income covenant set forth in Paragraph 14(x)(v) of the Loan
Agreement for the months ended December 31,
2006, August 31, 2007 and September 30,
2007;
(ii) Minimum Tangible Net
Worth covenant set forth in Paragraph 14(x)(i) of the Loan
Agreement for the fiscal quarter ending September 30,
2007;
(iii) Minimum Consolidated
EBITDA covenant set forth in Paragraph 14(p)(ii), Minimum
U.S. EBITDA covenant as previously set forth in Paragraph
14(x)(ii) , Fixed Charge Coverage Ratio covenant as previously
set forth in Paragraph 14(x)(iii) , U.S. Leverage Ratio
covenant as previously set forth in Paragraph 14(x)(iv);
Fixed Charge Coverage Ratio covenant as previously set forth in
Paragraph 14(p)(iii) and the Consolidated Leverage Ratio
covenant as previously set forth in Paragraph 14(p)(iv) of
the Loan Agreement, each for each of the fiscal quarters ending
June 30, 2004, through and including September 30,
2006.
C. WHEREAS, the Borrower has
requested that the Lenders and the Agent agree to: (a) waive
the October Existing Defaults and (b) amend the Loan Agreement
in certain respects, and the Lenders and the Agent are willing to
waive the October Existing Defaults and amend 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. Recitals . The
Borrower confirms that the Recitals above are true and
correct.
2. Limited Waiver
.
(a) The Lenders and the Agent
hereby waive the October Existing Defaults 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. Reset of Certain
Covenants .
(a) 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 end of each fiscal period
set forth below, Pre-Tax Income of not less than the respective
amount set forth below opposite each such fiscal period:
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Fiscal
Period
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Minimum
Pre-Tax Income
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January 1, 2005
through
end of FQ1 2005
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$200,000 |
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January 1, 2005
through
end of FQ2 2005
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$500,000 |
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January 1, 2005
through
end of FQ3 2005
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$800,000 |
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Four
consecutive fiscal quarters
ending at
end of FQ4 2005
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$1,000,000 |
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Four
consecutive fiscal quarters
ending at
end of FQ1 2006
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$1,200,000 |
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Four
consecutive fiscal quarters
ending at
end of FQ2 2006
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$1,600,000 |
2
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Fiscal
Period
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Minimum
Pre-Tax Income
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Four
consecutive fiscal quarters
ending at
end of FQ3 2006
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$1,400,000 |
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Month ending October 31,
2007
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($600,000) |
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Two Months ending
November 30, 2007
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($700,000) |
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Three Months ending
December 31, 2007
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($800,000)” |
(b) Paragraph 14(x)(i) of the
Loan Agreement is hereby amended and restated in its entirety to
read as follows:
“ (i) Tangible Net
Worth . Borrower shall cause the U.S. Consolidated Group to
maintain, as of the end of each fiscal quarter, Tangible Net Worth
of not less than the respective amount set forth below opposite
each such fiscal quarter:
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Fiscal
Quarter
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Minimum
Tangible Net Worth
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FQ4 2004
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$8,500,000 |
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FQ1 2005
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$17,500,000 |
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FQ2 2005
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$18,000,000 |
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FQ3 2005
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$17,000,000 |
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FQ4 2005
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$17,000,000 |
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FQ1 2006
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$16,500,000 |
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FQ2 2006
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$17,000,000 |
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FQ3 2006
and each
fiscal quarter thereafter through
September 30, 2007
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$16,000,000 |
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Month ended October 31,
2007
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$14,000,000 |
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Month ended November 30,
2007
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$13,900,000 |
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Month ended
December 31, 2007
and
thereafter
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$13, 800,000” |
4. 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 January 31, 2008
(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
3
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.”
5. Subordinated Debt
Payments . The Borrower has represented to the Agent and the
Lenders that it will not make any payments of principal to MTM
until after January 31, 2008, payment in full of the
Liabilities and termination of the Loan Agreement. Alternatively,
Borrower may make payments of principal to MTM so long as MTM
immediately returns the same amount of funds to Borrower as a
subordinated loan which will not be repaid in whole or in part
until after payment in full of the Liabilities and termination of
the Loan Agreement. The foregoing shall be deemed an additional
representation and warranty under Paragraph 13 of the Loan
Agreement.
6. 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
$7,000,000.”
7. Ex
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