EXHIBIT 10.45
WAIVER, CONSENT AND
AMENDMENT NO. 4
TO TERM LOAN AND SECURITY AGREEMENT
THIS WAIVER, CONSENT AND AMENDMENT NO. 4 ("Amendment") is entered into as
of September 24, 2009, by and among AIR INDUSTRIES MACHINING, CORP. ("Air"),
SIGMA METALS, INC. ("Sigma"), WELDING METALLURGY, INC. ("WMI", and together with
Air and Sigma, each a "Borrower" and collectively the "Borrowers"), AIR
INDUSTRIES GROUP, INC. ("Air Group") and STEEL CITY CAPITAL FUNDING, LLC
("SCC").
BACKGROUND
Borrowers and SCC are parties to a Term Loan and Security Agreement (as
amended, restated, supplemented or otherwise modified from time to time, the
"Loan Agreement") dated as of August 24, 2007, pursuant to which SCC provided
Borrower with certain financial accommodations.
Borrowers (i) have violated Sections 6.5, 6.13 and 9.7 of the Loan
Agreement and seek a waiver of the Events of Default arising from such
violations as well as a waiver of the cross-default to the Senior Loan
Agreement, and (ii) seek consent to (a) the Consignment Agreement between Sigma
and TW Alloys and (b) Senior Lender reducing the Availability Block by the
amount of the outstanding term loan under the Senior Loan Agreement and
utilizing the resulting increased availability to repay in full such term loan,
and SCC is willing to do so on the terms and conditions hereafter set forth.
NOW, THEREFORE, in consideration of any loan or advance or grant of credit
heretofore or hereafter made to or for the account of Borrowers by SCC and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
1. Definitions. All capitalized terms not otherwise defined herein shall
have the meanings given to them in the Loan Agreement.
2. Amendments to Loan Agreement. Subject to satisfaction of the conditions
precedent set forth in Section 5 below, the Loan Agreement is hereby amended as
follows:
(a) Section 1.2 of the Loan Agreement is hereby amended by adding
the following defined terms in their appropriate alphabetical order:
"Amendment No. 4" shall mean the Waiver, Consent and Amendment
No. 4 to Term Loan and Security Agreement dated as of
September __, 2009 by and among Borrowers and SCC.
"TW Alloys" shall mean TW Alloys with a place of business at
334 East Gardena Boulevard, Gardena, California 90248, a
California corporation.
(b) Section 1.2 of the Loan Agreement is hereby amended by amending
the defined term "Term Loan Rate" in its entirety as follows:
"Term Loan Rate" shall mean an interest rate per annum equal
to (a) the sum of (i) the greater of (1) the Alternate Base
Rate, or (2) 4.75%, (the "Prime Floor") plus (ii) six percent
(6.00%) with respect to Domestic Rate Loans, and (b) the sum
of (i) the greater of (1) the Eurodollar Rate, or (2) 2.25%
(the "LIBOR Floor"), plus (ii) eight and one-half of one
percent (8.50%) with respect to Eurodollar Rate Loans.
(c) Section 2.1 of the Loan Agreement is hereby amended by adding
the following sentence at the end thereof:
"Effective on the first day of the month following the
effective date of Amendment No. 4, anything in this Agreement
or the Term Note to the contrary notwithstanding, Borrowers
shall make monthly payments of principal equal to $20,000 on
the first day of each month."
(d) Section 6.5(a) of the Loan Agreement is hereby deleted and
Sections 6.5(b), (c) and (d) of the Loan Agreement are hereby amended in their
entirety to provide as follows:
"(b) Fixed Charge Coverage Ratio. Maintain at all times a
Fixed Charge Coverage Ratio of not less than 1.25 to 1.00,
tested monthly for the three months ending September 30, 2009
and at the end of each month thereafter building to a rolling
twelve (12) month basis. For purposes of calculating the Fixed
Charge Coverage Ratio, the repayment of the term loan under
the Senior Loan Agreement resulting from the reduction of the
Availability Block shall be excluded.
(c) Funded Debt Ratio. Maintain at all times a ratio of Funded
Debt (exclusive of Indebtedness subordinated to the Term Loan
but inclusive of Indebtedness for borrowed money not
subordinated to the Term Loan whether or not it has a maturity
of more than one year from its date of creation) to EBITDA not
greater than the ratio set forth below for the applicable time
period:
Time Period Ratio
----------- -----
Three months ending September 30, 2009 8.50 to 1.00
Four months ending October 31, 2009 6.25 to 1.00
Five months ending November 30, 2009 4.80 to 1.00
Six months ending December 31, 2009 3.80 to 1.00
The Funded Debt Ratio covenant for the seven months ending
January 31, 2010 and each month ending thereafter building to
a rolling twelve (12) month period will be based upon the
projections to be provided pursuant to Section 9.12 and
acceptable to SCC.
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(d) Consolidated Basis. On and after the effective date of
Amendment No. 4, all financial covenants shall be determined
for Air Group and its Subsidiaries on a consolidated basis and
all financial statements and projections to be provided under
this Agreement shall be provided for Air Group and its
Subsidiaries on a consolidated and consolidating basis."
(e) A new Section 7.24 is hereby added to the Loan Agreement which
provides as follows:
"7.24 Payments to Sigma Vendors. Given the fact operations of
Sigma have been discontinued since October 31, 2008, make cash
payments to vendors of Sigma in excess of $150,000 in the
aggregate during each of (i) the period September 1, 2009
through December 31, 2009, and (ii) each calendar year
commencing January 1, 2010."
(f) Section 9.2(a) is hereby amended by amending clause (x) to add
the following language at the end thereof:
"together with a summary of accounts payable of Sigma which
shows cash payments and forgiveness of debt by vendors to
Sigma."
(g) A new Section 9.17 is hereby added to the Loan Agreement which
provides as follows:
"9.17 Additional Information. Provide SCC (1) within fourteen
(14) days of the effective date of Amendment No. 4 with the
consolidated and consolidating audited and unqualified year
end financial statements for 2008 and the revised year end
financial statements for 2007, (2) during the first quarter of
2010, with an appraisal of inventory at Borrower's expense,
which appraisal shall be in form and substance, and by an
appraiser, acceptable to SCC, and (3) with 13 week cash flow
forecasts together with the monthly financial statements to be
delivered pursuant to Section 9.9."
3. Consent. Subject to the satisfaction of the conditions precedent set
forth in Section 5 below, SCC hereby consents to (i) the Consignment Agreement
between Sigma and TW Alloys, and (ii) Senior Lender reducing the Availability
Block by the amount of the outstanding term loan under the Senior Loan Agreement
and utilizing the resulting availability to repay in full such term loan.
4. Waiver. Subject to the satisfaction of the conditions precedent set
forth in Section 5 below, SCC hereby waives the (i) breach of Section 6.5(c) of
the Loan Agreement for the period commencing November 1, 2008 and ending August
31, 2009, (ii) breach of Section 6.5(d) of the Loan Agreement for the period
commencing September 1, 2008 and ending May 31, 2009, (iii) breach of Section
6.13 of the Loan Agreement due to the failure to have new financial covenants
implemented on a timely basis, (iv) breach of Section 9.7 of the Loan Agreement
due to the failure to deliver the 2008 year end audited financial statements of
Borrower, and (v) Event of Default under Section 10.13 of the Loan Agreement due
to the events of default which occurred under the Senior Loan Agreement.
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5. Conditions of Effectiveness. This Amendment shall become effective upon
receipt by SCC of (a) four (4) copies of this Amendment executed by Borrowers
and Guarantor, (b) an amendment fee of $50,000, (c) a copy of an amendment to
the Senior Loan Agreement which waives the existing defaults under the Senior
Loan Agreement, amends the Senior Loan Agreement in a manner consistent with
Section 2(d), (e), (f) and (g) of this Amendment and consents to the execution
and performance of this Amendment, (d) an executed copy of an amendment to the
Subordinated Loan Documentation pursuant to which the Subordinated Lender agrees
to defer any payments of the Subordinated Loan until the Obligations have been
paid in full, and (e) payment of legal fees and disbursements of SCC's counsel.
6. Representations and Warranties. Each Borrower hereby represents and
warrants as follows:
(a) This Amendment and the Loan Agreement, as amended hereby,
constitute legal, valid and binding obligations of Borrowers and are enforceable
against Borrowers in accordance with their respective terms.
(b) Upon the effectiveness of this Amendment such Borrower hereby
reaffirms all covenants, representations and warranties made in the Loan
Agreement, and agrees that all such covenants, representations and warranties
shall be deemed to have been remade as of the effective date of this Amendment.
(c) Borrowers have no defense, counterclaim or offset with respect
to the Loan Agreement.
7. Effect on the Loan Agreement.
(a) Upon the effectiveness of Section 2 hereof, each reference in
the Loan Agreement to "this Agreement," "hereunder," "hereof," "herein" or words
of like import shall mean and be a reference to the Loan Agreement as amended
hereby.
(b) Except as specifically amended herein, the Loan Agreement, and
all other documents, instruments and agreements executed and/or delivered in
connection therewith, shall remain in full force and effect, and are hereby
ratified and confirmed.
(c) Except as specifically provided herein, the execution, delivery
and effectiveness of this Amendment shall not operate as a waiver of any right,
power or remedy of SCC, nor constitute a waiver of any provision of the Loan
Agreement, or any other documents, instruments or agreements executed and/or
delivered under or in connection therewith.
(d) Upon the effectiveness of this Amendment, SCC will not charge
interest at the Default Rate due to the occurrence of the Events of Default
which have been waived pursuant to Section 4 of this Amendment.
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(e) The Senior Lender shall amend the Senior Loan Agreement so that
the Receivables and Inventory of Sigma shall not create any availability under
the Senior Loan Agreement.
8. Governing Law. This Amendment shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns and
shall be governed by and construed in accordance with the internal laws of the
State of New York.
9. Headings. Section headings in this Amendment are included herein for
convenience of reference only and shall not constitute a part of this Amendment
for any other purpose.
10. Counterparts; Facsimile. This Amendment may be executed by the parties
hereto in one or more counterparts, each of which shall be deemed an original
and all of which when taken together shall constitute one and the same
agreement. Any signature delivered by a party by facsimile or "pdf" transmission
shall be deemed to be an original signature hereto.
[signature page follows]
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IN WITNESS WHEREOF, this Amendment has been duly executed as of the day
and year first written above.
AIR INDUSTRIES MACHINING, CORP.
By: /s/ Peter Rettaliata
------------------------
Name: Peter Rettaliata
Title: Chief Executive Officer & President
SIGMA METALS, INC.
By: /s/ Peter Rettaliata
------------------------
Name: Peter Rettaliata
Title: Chief Executive Officer & President
WELDING METALLURGY, INC.
By: /s/ Peter Rettaliata
------------------------
Name: Peter Rettaliata
Title: Chief Executive Officer & President
STEEL CITY CAPITAL FUNDING, LLC,
By: /s/ Ronald J. Comito
------------------------
Name: Ronald J. Comito
Title: Senior Vice President
THE FOREGOING AMENDMENT IS HEREBY
ACKNOWLEDGED AND AGREED
BY THE FOLLOWING GUARANTOR:
AIR INDUSTRIES GROUP, INC.
By: /s/ Peter Rettaliata
------------------------
Name: Peter Rettaliata
Title: Chief Executive Officer & President