FIRST AMENDMENT TO LOAN AGREEMENT
Exhibit
10.2
FIRST
AMENDMENT TO
This
FIRST AMENDMENT TO LOAN AGREEMENT (this “Amendment”), dated August 2, 2006, by
and among M.T.M. Societá a Responsabilitá Limitata, an Italian limited liability
company (“MTM” or “Lender”),
with
its principal office at Xxxxx 0, Xxxxxxxx, Xxxxx, and IMPCO TECHNOLOGIES, INC.,
a Delaware corporation, with its principal office at 0000 Xxxxx Xxxxx Xxxxxx,
Xxxxx Xxx, Xxxxxxxxxx 00000 (“Borrower”).
WHEREAS,
Borrower and MTM as Lender are parties to a Loan Agreement dated as of December
23, 2004 (as amended, restated, supplemented, or otherwise modified from time
to
time, the “Loan Agreement”), pursuant to which Lender has agreed, upon
satisfaction of certain conditions, to make a loan to Borrower in the amount
of
$22,000,000;
WHEREAS,
Borrower desires to reorganize the corporate structure of Borrower into a
holding company structure, pursuant to which (i) Borrower has formed a
wholly-owned subsidiary known as “FUEL SYSTEMS SOLUTIONS, INC.,” a Delaware
corporation (“Fuel Systems”), to be the sole parent of Borrower immediately
following such reorganization, (ii) Borrower will be merged with and into IMPCO
Merger Sub, Inc., a Delaware corporation heretofore formed by Fuel Systems
for
the sole purpose of effecting such reorganization (“Merger Sub”), with Borrower
remaining as the surviving entity to be governed by the Certificate of
Incorporation and Bylaws of Merger Sub, substantially as in effect immediately
prior to such reorganization, pursuant to an agreement and plan of
reorganization, and (iii) the stockholders of Borrower will exchange all of
their shares of Borrower for shares of Fuel Systems on a two-for-one exchange
basis upon the effective time of such reorganization (the transactions
contemplated by this clause, collectively, the “Reorganization”);
WHEREAS,
as part of the formation of Fuel Systems and prior to the Reorganization,
Borrower shall contribute all of its interest and rights in and to the issued
and outstanding common stock of BRC, S.r.l., an Italian limited liability
company and a wholly-owned subsidiary of Borrower (“BRC”), to and for the
benefit of Fuel Systems (the “Contribution”), such that BRC will become a
wholly-owned subsidiary of Fuel Systems;
WHEREAS,
the Reorganization will not be effective until such time and date as a
Certificate of Merger is filed with the Delaware Secretary of State (the
“Effective Time”);
WHEREAS,
Section 8.5 of the Loan Agreement provides that the
Loan
Agreement is made expressly for the sole benefit of Borrower and for the
protection of Lender and its successors and assigns and that the rights of
Borrower under the Loan Agreement shall not be assignable by operation of law
or
otherwise (including without limitation to Fuel Systems as part of the
Reorganization), without the prior written consent of Lender, which consent
may
not be unreasonably withheld or conditioned;
WHEREAS,
Borrower relocated its place of business to that certain real property commonly
known by the street address of 0000 Xxxxx Xxxxx Xxxxxx, Xxxxx Xxx located in
the
County of Orange, State of California (the
“Location
of Borrower”), on
April
17, 2006;
WHEREAS,
in connection with Borrower's relocation of its business to the Location
of
Borrower, Borrower anticipates making or committing to making expenditures
for
fixed assets or other capital expenditures (the “Capital Expenditures”) in the
aggregate in excess of $5,000,000 for Borrower's fiscal year ending December
31,
2006; and
WHEREAS,
Borrower has requested that Lender agree to permitting Borrower to effect
the
Reorganization and the Contribution, and Borrower hereby requests that Lender
acknowledge receipt of notice of Borrower's relocation of its business to
the
Location of Borrower and, in connection therewith, hereby requests that Lender
agree to permitting Borrower to make and commit to make the Capital
Expenditures, and for certain other consents in connection therewith all
as
particularly set forth on the terms and conditions below.
All
capitalized terms used but not otherwise defined herein shall have the
respective meanings ascribed to such terms in the Loan Agreement unless the
context requires otherwise.
NOW
THEREFORE, the parties hereto agree as follows:
1. Section
6.3
of the
Loan Agreement is hereby amended to permit the Contribution and the transactions
related thereto, whereby, among the other transactions contemplated above,
Fuel
Systems shall become the owner of 100% of the issued and outstanding stock
of
BRC.
2. Section
6.4 of the Loan Agreement is hereby amended to permit the Reorganization
and
the Contribution, whereby, among the other transactions contemplated above,
Fuel
Systems shall become the owner of 100% of the issued and outstanding stock
of
each of Borrower and BRC.
3. Section
6.5 of the Loan Agreement is hereby amended to permit the Reorganization
and
the Contribution, whereby, among the other transactions contemplated above,
Fuel
Systems shall become the owner of 100% of the issued and outstanding stock
of
each of Borrower and BRC.
4. Section
6.8 of the Loan Agreement is hereby amended to permit Borrower to make or
commit to make expenditures for fixed assets or other capital expenditures
which
in the aggregate are not in excess of $5,000,000 for Borrower's fiscal year
ending December 31, 2006 and $3,000,000 per fiscal year thereafter.
5. Section
8.2 of the Loan Agreement, solely as it applies to the notice address of
Borrower, is hereby amended, effective as of April 17, 2006, to reflect
Borrower's relocation to the Location of Borrower on April 17, 2006 as stated
in
the recitals hereof and shall read in its entirety as follows:
Borrower:
IMPCO
Technologies, Inc.
0000
Xxxxx Xxxxx Xxxxxx
Xxxxx
Xxx, XX 00000
Attn:
Chief Executive Officer
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With
a copy to:
Xxxxxxxx
& Xxxxx LLP
000
X.Xxxxxxxx Xxxxxx
Xxx
Xxxxxxx, XX 00000
Telecopier:
(000) 000-0000
Attn:
Xxx
X. Xxxxx
6. Loan
Agreement Amended by this Amendment.
The
amendments herein relate specifically to the Reorganization, the Contribution
and/or the Location of Borrower, are limited to the specific facts set forth
above and are not an amendment of, or consent to a violation of, any other
term,
condition or obligation of the Loan Agreement. Except as specifically amended
by
the terms herein, the Loan Agreement remains in full force and
effect.
7. Acknowledgments
and Confirmations. Borrower and Lender hereby acknowledge and confirm that
as of the date hereof: (i) all references in the Loan Agreement to “this
Agreement” will be deemed to refer to the Loan Agreement, as amended by this
Amendment; and (ii) all references in each of the Other Agreements to the
“Loan
Agreement” will be deemed to refer to the Loan Agreement, as amended by this
Amendment.
8. Representations
and Warranties. Borrower hereby represents and warrants to Lender
that:
(a) Each
of
the representations and warranties set forth in Article
4
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
Borrower.
(b) As
of the
date hereof, after giving effect to the terms of this Amendment, there exists
no
Default.
(c) Borrower
has the power to execute, deliver, and perform this Amendment and all
agreements, instruments, and documents executed in connection herewith (this
Amendment and such other agreements, instruments, are documents are sometimes
hereinafter referred to collectively as the “Amendment Documents”). Borrower has
taken all necessary action to authorize the execution, delivery, and performance
of this Amendment and the other Amendment Documents. No consent or approval
of
any entity or Person (including without limitation, any shareholder of
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 Borrower, or the validity or enforcement, of this Amendment or the other
Amendment Documents.
(d) The
execution and delivery by Borrower of this Amendment and the other Amendment
Documents and performance by it hereunder and thereunder, 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
instrument of any court or governmental authority, bureau, or agency, domestic
or foreign, or the certificate of incorporation or by-laws of Borrower, or
create (with or without the giving of notice or lapse of time, or both) a
default under or breach of any agreement, bond, note, or indenture to which
Borrower is a party, or by which it is bound or any of its properties or
assets
is affected, or result in the imposition of any lien of any nature whatsoever
upon any of the properties or assets owned by or used in connection with
the
business of Borrower, other than the liens contemplated by this
Amendment.
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(e) This
Amendment and the other Amendment Documents have been duly executed and
delivered by Borrower and constitute the valid and legally binding obligation
of
Borrower, enforceable in accordance with their respective terms.
9. Effectiveness
of Amendment and Waiver.
The
amendments, consent, and waiver contained in this Amendment shall be effective
as of the date hereof.
10. Further
Assurances. Borrower agrees that it will, from time to time, execute and/or
deliver all agreements, instruments, and documents and do and perform all
actions and things (all at Borrower’s sole expense) as Lender may reasonably
request to carry out the intent and terms of this Amendment.
11. Miscellaneous.
(a) Except
as
set forth in this Amendment, Lender does not waive any breach of, or Default
under, the Loan Agreement, nor any right or remedy Lender may have under
the
Loan Agreement, the Loan Documents, or applicable law, all of which rights
and
remedies are expressly reserved.
(b) Except
as
specifically amended in this Amendment, the Loan Agreement and the Loan
Documents remain in full force and effect in accordance with their respective
terms.
(c) Any
amendment or waiver of, or consent to any departure by Borrower from any
provision of, this Amendment shall be in writing signed by each party to
be
bound thereby, and shall be effective only in the specific instance and for
the
specific purpose for which given.
(d) This
Amendment (including the other documents and instruments referred to herein)
constitutes the entire agreement, and supersedes all prior agreements and
understandings, both written and oral, among the parties with respect to
the
subject matter of this Amendment.
(e) This
Amendment may be signed in any number of counterparts, each of which shall
be an
original, with the same effect as if the signatures to such counterparts
were
upon the same instrument.
(f) This
Amendment shall be governed by, and construed in accordance with, the laws
of
the State of California, without reference to the laws that might otherwise
govern under applicable principles of conflict of laws thereof; provided,
however, that matters respecting the corporate acts, existence and status
of BRC
and MTM shall be governed by the laws of the Republic of Italy applicable
to
Societi Responsibilita Limitata organized pursuant to the laws thereof; and
provided, further, that matters respecting the corporate acts, existence
and
status of Borrower and/or Fuel Systems shall be governed by the Delaware
General
Corporation Law. The jurisdiction for any dispute arising under this Amendment
shall be in the forum and subject to the venue of the defendant in such action,
such that any action brought by Borrower against Lender shall be in Milan,
Italy, and any action brought by Lender against Borrower shall be in Los
Angeles, California, and each party hereby irrevocably consents to exclusive
personal jurisdiction and venue in the courts so designated, which jurisdiction
and venue shall be mandatory and not elective, and each party agrees to waive
any claim that any such forum is inconvenient, agrees not to commence or
prosecute any such
action, claim or proceeding other than
in
the aforementioned courts, and agrees not to seek to remove such action,
claim
or proceeding to any other court or jurisdiction. Each party hereby consents
to
service of process upon the party by transmittal of process by registered
or
certified mail, postage prepaid and return receipt requested, at the address
shown in Section 8.2 of the Loan Agreement (as amended hereby) or at such
other
address as may subsequently have been provided to the serving party in
accordance with such Section. Service shall be deemed effective, irrespective
of
proof of delivery, on the fifteenth calendar day following such
transmittal.
[Remainder
of Page Intentionally Left Blank]
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IN
WITNESS WHEREOF,
the
parties hereto have duly executed this Amendment as of the date first above
set
forth.
|
M.T.M.
Societá a Responsabilitá Limitata,
as Lender
|
||
| |
|
|
| By: | /s/ Xxxxxxx Xxxxxxxxxx | |
| Name: |
Xxxxxxx Xxxxxxxxxx |
|
| Title: | CEO | |
|
IMPCO
TECHNOLOGIES, INC.,
as Borrower
|
||
| |
|
|
| By: | /s/ Xxxxxx X. Xxxxxxxx | |
| Name: |
Xxxxxx X. Xxxxxxxx |
|
| Title: | CFO | |
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