EXHIBIT 8
MULTI-PARTY AGREEMENT
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THIS MULTI-PARTY AGREEMENT (this "Agreement") is entered into this 21 day
of June, 2001 among Impco Technologies, Inc. ("Impco"), Fleet National Bank
("Fleet") and Xxxxxxxxx Xxxxxxxx, Inc. ("RS") and acknowledged by Xxxxxx
Xxxxxxxx (the "Borrower").
RECITALS
WHEREAS, the Borrower has entered into a Security Agreement and Agreement
Not to Exercise Options with Impco Technologies, Inc. ("Impco") dated as of
March 15, 2001 (as amended, the "Impco Security Agreement"), and an Amendment
thereto between such parties dated June 21, 2001 whereby he has granted to Impco
a security interest all of his right, title and interest in certain shares in
Impco (the "Impco Shares"), and certain other collateral to Impco as security
for the satisfaction of obligations under a Promissory Note issued by Borrower
in favor or Impco dated March 15, 2001 (hereinafter, the "Note").
WHEREAS, the Impco Shares are currently held as security entitlements in
Account No. 39-006358 at Xxxxxxxxx Xxxxxxxx, Inc. ("RS") and the security
interest of Impco therein is perfected pursuant to the terms of an Account
Control Agreement among Borrower, Impco and RS dated as of March 15, 2001 (the
"RS Account Control Agreement").
WHEREAS, the Borrower desires to enter into one or more variable liquidity
contracts and related pledge agreements (the "VLC's") with Fleet and to secure
his obligations thereunder with a security interest in the Impco Shares.
WHEREAS, subject to the terms and conditions of this Agreement, Impco has
agreed to release its security interest in the Impco Shares, related security
entitlements and other collateral held by RS concurrently with deposit of the
Minimum Prepayment Amount (as hereinafter defined) into Account No. 35-147552
(the "Impco Account") maintained by RS solely in the name of Impco for immediate
application against obligations of the Borrower under the Note.
NOW, THEREFORE, for good and valuable consideration receipt and adequacy of
which are hereby acknowledged, Impco, Fleet and RS agree as follows:
AGREEMENT
1. Conditions to Effectiveness of this Agreement. As conditions precedent
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to the effectiveness of this Agreement, Impco and RS acknowledge and agree that
(1) the RS Account Control Agreement shall be amended pursuant to an Amendment
substantially in the form of Exhibit A to this Agreement, (2) the Impco Security
Agreement and Promissory Note shall be amended pursuant to agreements
substantially in the form of Exhibits B and C, respectively, hereto, and (3)
this Agreement shall have been fully executed and acknowledged by the parties
hereto.
2. Agreement of Impco to release security interest in connection with
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VLC's. Unless Impco shall have notified Fleet at least five (5) days prior to
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execution of a VLC that Impco will not release its security interest by reason
of the occurrence of a default under the Promissory Note or the occurrence of
another event that, in the opinion of Impco makes it commercially unreasonable
or impracticable to release its security interest, Impco agrees that its
security interest in the number of Impco Shares equal to the number of Impco
Shares which are the subject of each VLC (and related security entitlements and
financial assets) shall be released concurrently with deposit of the Minimum
Prepayment Amount into the Impco Account for immediate credit to the Note from
the proceeds of each such VLC or from any other source of an amount. As used
herein, "Minimum Prepayment Amount" means, in respect of each release
of security interests in Impco Shares in connection with the execution of a VLC,
an amount that, when deducted from the obligations then remaining due to Impco
on the Note, if any, will result in all obligations remaining due under the Note
being not greater than fifty percent (50%) of the fair market value (as then
quoted on a National Association of Securities Dealers Automated Quotations
National Market Exchange) of the Impco Shares subject to the security interest
of Impco perfected pursuant to the RS Account Control Agreement.
3. Waiver of Set off by RS and Fleet. Until the earlier of the date that
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Impco releases its security interest in all Impco Shares and related security
entitlements or the Note is paid in full, Fleet and RS each waives (i) any right
of set-off, counterclaim, or recoupment against Impco Shares remaining subject
to the security interest of Impco, (ii) any right to require marshalling of
collateral by Impco or to direct the order in which collateral shall be disposed
of by Impco, (iii) any right to require Impco to proceed against any person,
proceed against or exhaust any collateral or any other security interest or
guaranty or pursue any other remedy in Impco's power or to pursue any of such
rights in any particular order or manner and any defenses arising by reason of
any disability or defense of any person, and (iv) any other contractual, legal,
or equitable right or remedy the effect of which would be to reduce the amount
of payments payable to Impco under the Promissory Note or postpone the date for
payment.
4. Acknowledgement of security interest by Fleet. Fleet hereby
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acknowledges that Impco has been granted a security interest in all rights to
payment of the Borrower under the VLC's. Fleet agrees to make payment directly
to Impco by deposit into the Impco Account on account of payments thereunder
until Impco confirms that the Note is paid in full.
5. Further Assurances. The parties hereto agree, at their own expense,
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to execute, acknowledge, deliver and cause to be duly filed all such further
instruments and documents and take all such actions as Impco may reasonably
request to better assure, preserve, protect and perfect security interests and
rights of Impco addressed herein, including the filing of financing statements.
6. Miscellaneous.
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(a) Each party hereto hereby represents and warrants to the
other that (i) it is duly organized and validly existing under the laws of the
jurisdiction of its incorporation and, if relevant under such laws, in good
standing, (ii) it has the power to execute this Agreement and any other
documentation relating to this Agreement to which it is a party, to deliver this
Agreement and any other documentation relating to this Agreement that it is
required by this Agreement to deliver and to perform its obligations under this
Agreement and has taken all necessary action to authorize such execution,
delivery and performance, (iii) such execution, delivery and performance do not
violate or conflict with any law applicable to it, any provision of its
constitutional documents, any order or judgment of any court or other agency of
government applicable to it or any of its assets or any contractual restriction
binding on or affecting it or any of its assets, (iv) all governmental and other
consents that are required to have been obtained by it with respect to this
Agreement have been obtained and are in full force and effect and all conditions
of any such consents have been complied with, and (v) its obligations under this
Agreement constitutes its legal, valid and binding obligation, enforceable in
accordance with their respective terms (subject to applicable bankruptcy,
reorganization, insolvency, moratorium or similar laws affecting creditors'
rights generally and subject, as to enforceability, to equitable principles of
general application (regardless of whether enforcement is sought in a proceeding
in equity or at law).
(b) The Borrower is not an intentional third beneficiary of this
Agreement. This Agreement is solely for the benefit of the parties hereto.
(c) This Agreement shall become effective when it shall have been
executed by the parties hereto. This Agreement may be executed in counterparts
which shall constitute one and the same agreement if, when taken together, they
bear the signatures of each of the parties hereto. This Agreement shall be
binding on the successors and assigns of the parties hereto. This Agreement
shall be construed in accordance with and governed by the internal laws of the
State of California (without regard to conflicts of law rules). This Agreement
constitutes the entire contract between the parties relative to the subject
matter hereof. Any other previous agreement among the parties with respect to
such subject matter is superseded by this Agreement. Any provision in this
Agreement that is invalid, illegal or unenforceability in any respect shall not
in any way affect or impair any other provision.
(d) Any notice or other communication in respect of this Agreement may be
given in any manner set forth below and will be deemed effective as indicated:--
(i) if in writing and delivered in person or by courier, on the date it is
delivered; (ii) if sent by telex, on the date the recipient's answerback is
received; (iii) if sent by facsimile transmission, on the date that transmission
is received by a responsible employee of the recipient in legible form (it being
agreed that the burden of proving receipt will be on the sender and will not be
met by a transmission report generated by the sender's facsimile machine; (iv)
if sent by certified or registered mail (airmail, if overseas) or the equivalent
(return receipt requested), on the date that mail is delivered or its delivery
is attempted; or (v) if sent by electronic messaging system, on the date that
electronic message is received, unless the date of that delivery (or attempted
delivery) or that receipt, as applicable, after the close of business on a
business day (day on which each of Fleet, RS and Impco are open for business and
not authorized to close. Any party may be notice to the other change the
address, telex, or facsimile number or electronic messaging system details at
which notices or other communications are to be given to it.
Fleet National Bank, a national bank
By:____________________________
Name:__________________________
Title:_________________________
Address:
Xxxxxxxxx Xxxxxxxx, Inc.
By:____________________________
Name:__________________________
Title:_________________________
Address:
Impco Technologies, Inc.
By:____________________________
Name:__________________________
Title:_________________________
Address:
Borrower acknowledges and agrees to the foregoing and concurrently upon release
of Impco's security interest in Impco Shares irrevocably instructs and directs
RS promptly to transfer such Impco Shares in accordance with the directions of
Fleet to be held as collateral pursuant to the terms of the VLC Contracts.
By: _______________________________
Name: Xxxxxx Xxxxxxxx
Address: 00000 Xxxxxxx Xxxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
EXHIBIT A
AMENDMENT TO ACCOUNT CONTROL AGREEMENT
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THIS AMENDMENT TO ACCOUNT CONTROL AGREEMENT (the "Amendment") is made
as of June 21, 2001 by and among Impco Technologies, Inc. ("Impco"), a Delaware
corporation, Xxxxxx Xxxxxxxx, an individual, ("Pledgor"), and Xxxxxxxxx
Xxxxxxxx, Inc. ("Broker").
RECITALS
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WHEREAS, Impco, Pledgor, and Broker have heretofore entered into a
Control Agreement dated March 15, 2001 (the "Control Agreement") to perfect
Impco's security interest in securities account number 39-006358 at Broker in
the name of "Xxxxxx Xxxxxxxx: Impco as Secured Party"; and
WHEREAS, Impco, Pledgor, and Broker wish to amend the Control
Agreement in the manner set forth in this Amendment.
NOW, THEREFORE, in consideration of the above Recitals and for other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Impco, Pledgor, and Broker hereby agree as follows:
1. Unless otherwise defined herein, all capitalized terms used
herein shall have the meanings ascribed to them in the Control Agreement.
2. The Agreement is hereby amended by adding a new paragraph 6(k)
which shall read as follows:
"(k) Permitted Transfers. On the terms and conditions contained in
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that certain Multi-Party Agreement dated as of the date hereof, Impco and the
Pledgor hereby agree to permit the transfer of certain the financial assets and
credit balances to Fleet National Bank."
3. Except as otherwise expressly set forth herein, the Agreement
shall remain in full force and effect and unmodified.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed on and as of the day and year first above written.
DEBTOR:
______________________________________
Xxxxxx Xxxxxxxx, an individual
Address: 00000 Xxxxxxx Xxxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
SECURED PARTY:
IMPCO TECHNOLOGIES, INC.,
a Delaware corporation
By:___________________________________
Name: Xxxxx Xxxxx
Title: Chief Financial Officer
Address: 00000 Xxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
"Broker" Xxxxxxxxx Xxxxxxxx, Inc.
________________________________
By:_____________________________
Name:___________________________
Title:__________________________
Address and facsimile number for
notices to
________________________________
________________________________
Facsimile Number:_______________
EXHIBIT B
AMENDMENT TO SECURITY AGREEMENT AND
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AGREEMENT NOT TO EXERCISE OPTIONS
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THIS AMENDMENT TO SECURITY AGREEMENT AND AGREEMENT NOT TO EXERCISE
OPTIONS (the "Amendment") is made as of June 21, 2001 by and between Xxxxxx
Xxxxxxxx, an individual, ("Debtor"), and IMPCO Technologies, Inc., a Delaware
corporation ("Secured Party" or "IMPCO").
RECITALS
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WHEREAS, Debtor and Secured Party have heretofore entered into a
Security Agreement and Agreement Not to Exercise Options dated March 15, 2001
(the "Agreement"); and
WHEREAS, Debtor and Secured Party wish to amend the Agreement in the
manner set forth in this Amendment.
NOW, THEREFORE, in consideration of the above Recitals and for other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the Debtor and Secured Party hereby agrees as follows:
1. Unless otherwise defined herein, all capitalized terms used
herein shall have the meanings ascribed to them in the Agreement.
2. The Agreement is hereby amended by adding a new paragraphs 2(d)
and 2(e) which shall read as follows:
"(d) Securities Account, Securities Entitlements, Financial Assets,
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and Credit Balances Therein. Account No. 35-147552 at Xxxxxxxxx Xxxxxxxx, Inc.
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(the "RS Account"), all securities entitlements, financial assets, and credit
balances (including without limitation stock in Impco) therein.
"(e) All proceeds from variable liquidity contracts (the "VLC
Contracts") executed by Debtor with Fleet National Bank and all other derivative
instruments executed by Debtor with respect to securities entitlements and
financial assets in the RS Account, whether with Fleet National Bank or another
counterparty.
3. Except as otherwise expressly set forth herein, the Agreement
shall remain in full force and effect and unmodified.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed on and as of the day and year first above written.
DEBTOR:
________________________________
Xxxxxx Xxxxxxxx, an individual
Address: 00000 Xxxxxxx Xxxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
SECURED PARTY:
IMPCO TECHNOLOGIES, INC.,
a Delaware corporation
By:________________________________
Name: Xxxxx Xxxxx
Title: Chief Financial Officer
Address: 00000 Xxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
EXHIBIT C
ALLONGE TO PROMISSORY NOTE
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THIS ALLONGE TO PROMISSORY NOTE (the "Allonge") dated effective as of
June 21, 2001 is executed by Xxxxxx Xxxxxxxx, an individual, ("Borrower") in
favor of IMPCO Technologies, Inc., a Delaware corporation ("Company") and shall
become a part of that certain Promissory Note that the Borrower previously
issued in favor of the Company on March 15, 2001 (the "Note") promising to pay
the Company on March 15, 2002, in lawful money of the United States of America
and in immediately available funds, the principal sum of One Million Five
Hundred Sixty Five Thousand Five Hundred Forty Seven Dollars ($1,565,547), with
interest thereon as set forth pursuant to the Note.
If the Borrower requests the Company to release its security interest
in all or any shares in the Company securing obligations of the Borrower under
the Note and the Company, in its sole discretion, agrees to such a release, such
release will not be effective until the Borrower has paid or caused to be paid
to the Company, as a mandatory prepayment under the Note an amount equal to (A)
the greater of (i) proceeds received concurrently with such release from the
disposition or hedging of the shares so released or (ii) an assurance that, when
agreed the obligations of the Borrower under the Note will result in such
remaining obligations being no less than 50% of the fair market value (as then
quoted on a National Association of Securities Dealers Automated Quotations
National Market Exchange) of shares remaining as collateral for obligations
under the Note plus (B) at the Company's option, interest on the amount so
prepaid accrued from the date last paid until and including the date repaid at
the rate provided in the Note.
IN WITNESS WHEREOF, the undersigned has caused this Allonge to be
executed on and as of the day and year first above written.
BORROWER:
______________________________________
Xxxxxx Xxxxxxxx, an individual
Address: 00000 Xxxxxxx Xxxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
