EXHIBIT 10(z)
FIFTH AMENDMENT TO LOAN DOCUMENTS
This Fifth Amendment to Loan Documents (this FIFTH AMENDMENT) is dated
as of November 1, 2002, by and between FIFTH THIRD BANK, a Michigan banking
corporation f/k/a Old Kent Bank (the BANK), Xxx Xxxxxxxxxx Xxxxxx, Xxxxx Xxxxxx,
Xxxxxxxx 00000, and RIVIERA TOOL COMPANY, a Michigan corporation (the BORROWER),
0000 Xxxxxxxxx Xxxxxxx, Xxxxx Xxxxxx, Xxxxxxxx 00000.
BACKGROUND STATEMENT:
A. The Bank and the Borrower are parties to a First Restated Loan
Agreement dated as of August 31, 1999, as amended by the First, Second, Third
and Fourth Amendments thereto (the First Restated Loan Agreement, as so amended,
and all future amendments, renewals and replacements thereof, is referred to
below as the LOAN AGREEMENT). Capitalized terms used but not defined in this
Fifth Amendment shall have the meanings given them in the Loan Agreement.
B. The Bank agreed, subject to the terms and conditions set forth in
the Loan Agreement and the other Loan Documents, to extend to the Borrower
certain credit facilities, including but not limited to, the loans evidenced by
the following Notes:
(i) Revolving L/C Loan Note;
(ii) $3,250,000 Existing Equipment Term Loan
Note;
(iii) $4,000,000 Equipment Term Loan Note;
(iv) 1999 Equipment L/C Note in the stated
principal amount of $3,271,000;
(v) $1,000,000.00 Term Loan Note; and
(vi) $250,000 Overline Note.
C. The Borrower has notified the Bank that the Borrower will not be
able to pay the indebtedness evidenced by the Notes on November 1, 2002, and the
Borrower has requested that the Bank extend the maturity date of the Notes to
December 1, 2002. The Bank has agreed to do so, on the terms and conditions set
forth below, all of which are acceptable to the Borrower.
The Bank and the Borrower agree that:
1. Maturity Date of Indebtedness. All of the Borrower's indebtedness to
the Bank, including but not necessarily limited to that evidenced by: (a) the
Revolving L/C Loan Note; (b) the $3,250,000 Existing Equipment Term Loan Note;
(c) the $4,000,000 Equipment Term Loan Note; (d) the 1999 Equipment L/C Note in
the stated principal amount of $3,271,000; (e) the $1,000,000.00 Term Loan Note;
and (f) the Overline Note, shall be due and payable in full on December 1, 2002,
unless sooner accelerated or paid. Until then, the Borrower shall continue to
make payments due the Bank on all such other indebtedness in accordance with the
respective Notes that evidence such indebtedness. The Borrower agrees that the
Bank shall have no obligation to make any advances or re-advances under the
Overline Note at any time after (i) November 30, 2002, or (ii) the occurrence of
an Event of Default (other than an existing Event of Default disclosed in
EXHIBIT B to the Fourth Amendment) under the Loan Agreement or any of the other
Loan Documents (whichever of (i) and (ii) first occurs), or (iii) during
existence of any fact, circumstance or condition which, with notice, or the
passage of time, or both, might constitute an Event of
Default (other than an existing Event of Default disclosed in EXHIBIT B to the
Fourth Amendment) under the Loan Agreement or any of the other Loan Documents.
2. Application of Payments. So long as there exists no Event of Default
(other than an existing Event of Default disclosed in EXHIBIT B to the Fourth
Amendment) under the Loan Agreement or any of the other Loan Documents, nor any
fact, circumstance or condition which, with notice, or the passage of time, or
both, might constitute an Event of Default (other than an existing Event of
Default disclosed in EXHIBIT B to the Fourth Amendment) under the Loan Agreement
or any of the other Loan Documents, all payments made by the Borrower to the
Bank during the period beginning on the date of this Fifth Amendment and ending
November 30, 2002, shall be applied first to payment of accrued and unpaid
interest due under the Overline Note, then to reduction of the principal
indebtedness evidenced thereby, and then to the other Notes as set forth in the
Loan Documents. After November 30, 2002 or the occurrence of an Event of Default
(other than an existing Event of Default disclosed in EXHIBIT B to the Fourth
Amendment) under the Loan Agreement (whichever first occurs), and during the
existence of any fact, circumstance or condition which, with notice, or the
passage of time, or both, might constitute an Event of Default (other than an
existing Event of Default disclosed in EXHIBIT B to the Fourth Amendment) under
the Loan Agreement or any of the other Loan Documents, the Bank may apply all
such payments as it may receive toward such of the Borrower's indebtedness to
the Bank as the Bank may determine in its sole and uncontrolled discretion.
3. No Further Loans or Advances, Extensions of Maturity Dates, etc. The
Borrower acknowledges that: (a) except as provided in and limited by the Fourth
Amendment and this Fifth Amendment with respect to Overline Note advances, the
Bank shall have no further obligation, under the Loan Agreement or otherwise, to
make any further loans or advances to or for the benefit of the Borrower; (b)
the Bank has extended the maturity date of the Notes at the Borrower's request
to give the Borrower additional time to secure replacement financing sufficient
to pay and discharge in full all of its indebtedness and obligations to the
Bank, and the Bank has no obligation to grant further extensions of time to the
Borrower; and (c) no promise or agreement to grant any such further extensions
of time, or otherwise, shall be valid or enforceable unless it is in writing and
has been duly executed and delivered on behalf of the Bank.
4. Interest Rate Adjustments. Notwithstanding anything to the contrary
contained in the other Loan Documents, from and after November 1, 2002, the
principal outstanding from time to time under the Overline Note and the
Revolving L/C Loan Note shall bear interest at rate equal to the Prime Rate,
plus 2% (200 basis points), subject, however, to the application (at the Bank's
option) of a higher rate of interest as a result of any Event of Default, as set
forth in the Loan Documents.
5. Event of Default. Notwithstanding any provision of the Loan
Agreement or any Loan Document to the contrary, an Event of Default shall exist
under the Loan Agreement immediately upon default in making any payment when due
pursuant to the Loan Agreement or the pertinent Loan Documents, as amended by
this Fifth Amendment, without the necessity of giving Borrower notice or
opportunity to cure such default.
6. Borrower's Representations, Warranties, Reaffirmations, etc. The
Borrower restates, affirms and makes, as of the date of this Fifth Amendment,
each of the covenants, agreements, acknowledgments, representations, warranties,
waivers and releases contained in the Loan Agreement and the other Loan
Documents. Further, except as specifically modified hereby, the Borrower
ratifies and affirms the continuing validity and binding effect of the Loan
Agreement and the other Loan Documents, and represents and warrants to the Bank
that all representations and warranties contained in the Loan Agreement and each
of the other Loan Documents are true as of the date hereof. The Borrower
represents and warrants that each balance sheet, statement of income, statement
of retained earnings and statement of changes in financial position submitted to
the Bank present fairly the financial position of the Borrower as of the date of
such statement. No changes having a material adverse effect upon any obligor for
any existing loans by the Bank to the Borrower have occurred since the date of
the most recent of such financial statements.
7. No Existing Event of Default. The Borrower represents and warrants
to the Bank that, unless otherwise disclosed in EXHIBIT B to the Fourth
Amendment, there exists as of the date of this Fifth Amendment (a)
no Event of Default under the Loan Agreement or any of the other Loan Documents
and (b) no fact, circumstance or condition which, with notice, or the passage of
time, or both, might constitute an Event of Default under the Loan Agreement or
any of the other Loan Documents.
8. Effect of this Fifth Amendment. The Loan Documents are hereby
amended as required (and only as required) to give effect to the amendments
expressly provided for in this Fifth Amendment. Each of the Loan Documents shall
be deemed to have been amended by this Fifth Amendment as if such Loan Document
had been specifically amended by separate instrument. This Fifth Amendment shall
be a Loan Document, and all references in any Loan Document to the Loan
Documents shall refer to the Loan Documents, as amended hereby.
9. Incorporation of Background Statement. The Background Statement is
incorporated into and forms a part of this Fifth Amendment.
10. No other Amendments, etc. Except as expressly set forth above, the
Loan Agreement, each of the Notes, and all of the other Loan Documents shall
remain in full force and effect as originally executed and delivered and
subsequently amended by the parties, and are hereby ratified and affirmed by the
undersigned. Nothing in this Fifth Amendment shall release, discharge or
otherwise affect any security interests granted by the Borrower to the Bank as
collateral for the Borrower's indebtedness to the Bank, and the Bank's rights
and remedies with respect to any such security interests shall not be diminished
or impaired in any respect by this Fifth Amendment.
11. Counterparts. This Fifth Amendment may be executed in one or more
counterparts, each of which shall be considered an original and all of which
shall constitute the same instrument.
[SIGNATURES APPEAR ON FOLLOWING PAGE; REMAINDER
OF THIS PAGE INTENTIONALLY LEFT BLANK]
[SIGNATURE PAGE TO FIFTH
AMENDMENT TO LOAN DOCUMENTS]
IN WITNESS WHEREOF, the parties have executed this Fifth Amendment to
Loan Documents as of the date set forth in the introductory paragraph on page 1.
WITNESSES:
_____________________________ RIVIERA TOOL COMPANY
_____________________________ By: /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx, President
_____________________________ FIFTH THIRD BANK
_____________________________ By:
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