Exhibit 10(hh)
December 15, 2004
Xx. Xxxxxxx X. Xxxxx
President
Riviera Tool Company
0000 Xxxxxxxxx Xxxxxxx X.X.
Xxxxx Xxxxxx, XX 00000-0000
RE: FORBEARANCE AGREEMENT ("FORBEARANCE AGREEMENT") AMONG COMERICA BANK
("BANK") AND RIVIERA TOOL COMPANY ("BORROWER") DATED NOVEMBER 16, 2004
Dear Xx. Xxxxx:
Borrower has requested that Bank extend its forbearance under the Forbearance
Agreement to December 22, 2004.
Subject to timely, written acceptance by Borrower of the following conditions in
this first amendment to the Forbearance Agreement ("First Amendment"), Bank is
willing to continue to forbear until December 22, 2004, subject to earlier
termination as provided below, from further action to collect the Liabilities:
Future administration of the Liabilities and the financing arrangements between
Bank and Borrower shall continue to be governed by the covenants, terms and
conditions of the Forbearance Agreement and the other Loan Documents, which are
ratified and confirmed and incorporated by this reference, except to the extent
that the Forbearance Agreement and the other Loan Documents have been
superseded, amended, modified or supplemented by this First Amendment or are
inconsistent with this First Amendment, then this First Amendment shall govern.
Borrower acknowledges Bank is under no obligation to advance funds or extend
credit to Borrower under the Loan Documents, or otherwise.
This First Amendment shall be governed and controlled in all respects by the
laws of the State of Michigan, without reference to its conflict of law
provisions, including interpretation, enforceability, validity and construction.
Bank expressly reserves the right to exercise any or all rights and remedies
provided under the Forbearance Agreement and the other Loan Documents and
applicable law except as modified herein. Bank's failure to exercise immediately
such rights and remedies shall not be construed as a waiver or modification of
those rights or an offer of forbearance.
This First Amendment will inure to the benefit of Bank and all its past, present
and future parents, subsidiaries, affiliates, predecessors and successor
corporations and all of their subsidiaries and affiliates.
Bank anticipates that discussions addressing the Liabilities may take place in
the future. During the course of such discussions, Borrower and Bank, may touch
upon and possibly reach a preliminary understanding on one or more issues prior
to concluding negotiations. Notwithstanding this fact and absent an express
written waiver by Bank, Bank will not be bound by an agreement on any individual
issues unless and until an agreement is reached on all issues and such agreement
is reduced to writing and signed by Borrower and Bank.
As of the date of this First Amendment, there are no other offers outstanding
from Bank to Borrower. Any prior offer by Bank, whether oral or written is
hereby rescinded in full. There are no oral agreements between Bank and
Borrower; any agreements concerning the Liabilities are expressed only in the
Forbearance Agreement and the other Loan Documents. The duties and obligations
of Borrower and Bank shall be only as set forth in the Forbearance Agreement,
the other Loan Documents and this First Amendment, when executed by all parties.
Borrower acknowledges that it has reviewed (or has had the opportunity to
review) this First Amendment with counsel of its choice and has executed this
First Amendment of its own free will and accord and without duress or coercion
of any kind by Bank or any other person or entity.
BORROWER AND BANK ACKNOWLEDGE AND AGREE THAT THE RIGHT TO TRIAL BY JURY IS A
CONSTITUTIONAL ONE, BUT THAT IT MAY BE WAIVED. EACH PARTY, AFTER CONSULTING (OR
HAVING HAD THE OPPORTUNITY TO CONSULT) WITH COUNSEL OF THEIR CHOICE, KNOWINGLY
AND VOLUNTARILY, AND FOR THEIR MUTUAL BENEFIT WAIVES ANY RIGHT TO TRIAL BY JURY
IN THE EVENT OF LITIGATION REGARDING THE PERFORMANCE OR ENFORCEMENT OF, OR IN
ANY WAY RELATED TO, THIS FIRST AMENDMENT, THE FORBEARANCE AGREEMENT, THE OTHER
LOAN DOCUMENTS OR THE LIABILITIES.
DEFAULTS HAVE OCCURRED UNDER THE LOAN DOCUMENTS. BORROWER, TO THE FULLEST EXTENT
ALLOWED UNDER APPLICABLE LAW, WAIVES ALL NOTICES THAT BANK MIGHT BE REQUIRED TO
GIVE BUT FOR THIS WAIVER, INCLUDING ANY NOTICES OTHERWISE REQUIRED UNDER SECTION
6 OF ARTICLE 9 OF THE UNIFORM COMMERCIAL CODE AS ENACTED IN THE STATE OF
MICHIGAN OR THE RELEVANT STATE CONCERNING THE APPLICABLE COLLATERAL (AND UNDER
ANY SIMILAR RIGHTS TO NOTICE GRANTED IN ANY ENACTMENT OF REVISED ARTICLE 9 OF
THE UNIFORM COMMERCIAL CODE). FURTHERMORE, BORROWER WAIVES (A) THE RIGHT TO
NOTIFICATION OF DISPOSITION OF THE COLLATERAL UNDER Section 9-611 OF THE UNIFORM
COMMERCIAL CODE, (B) THE RIGHT TO REQUIRE DISPOSITION OF THE COLLATERAL UNDER
Section 9-620(E) OF THE UNIFORM COMMERCIAL CODE, AND (C) ALL RIGHTS TO REDEEM
ANY OF THE COLLATERAL UNDER Section 9-623 OF THE UNIFORM COMMERCIAL CODE.
BORROWER HEREBY WAIVES, DISCHARGES AND FOREVER RELEASES BANK, BANK'S EMPLOYEES,
OFFICERS, DIRECTORS, ATTORNEYS, STOCKHOLDERS, AFFILIATES AND SUCCESSORS AND
ASSIGNS, FROM AND OF ANY AND ALL CLAIMS, CAUSES OF ACTION, DEFENSES,
COUNTERCLAIMS OR OFFSETS AND/OR ALLEGATIONS BORROWER MAY HAVE OR MAY HAVE MADE
OR WHICH ARE BASED ON FACTS OR CIRCUMSTANCES ARISING AT ANY TIME UP THROUGH AND
INCLUDING THE DATE OF THIS FIRST AMENDMENT, WHETHER KNOWN OR UNKNOWN, AGAINST
ANY OR ALL OF BANK, BANK'S EMPLOYEES, OFFICERS, DIRECTORS, ATTORNEYS,
STOCKHOLDERS, AFFILIATES AND SUCCESSORS AND ASSIGNS.
This First Amendment may be executed in counterparts and delivered by facsimile
and the counterparts and/or facsimiles, when properly executed and delivered by
the signing deadline, will constitute a fully executed complete agreement.
Borrower shall properly execute this First Amendment and deliver same to the
undersigned by no later than 5:00 p.m. on December 15, 2004.
Bank reserves the right to terminate its forbearance prior to December 22, 2004,
in the event of any new defaults under the Loan Documents, defaults under the
Forbearance Agreement or this First Amendment, in the event of further
deterioration in the financial condition of Borrower or further deterioration in
Bank's collateral position, and/or in the event Bank, for any reason, believes
that the prospect of payment or performance is impaired.
Very truly yours,
Xxxxxx X. Xxxxxxxxxxx
Vice President - AGM
Middle Market Banking
00 Xxxxxx Xxxxxx, XX
Xxxxx Xxxxxx, XX 00000
(000) 000-0000
Fax: (000) 000-0000
ACKNOWLEDGED AND AGREED:
"BORROWER"
RIVIERA TOOL COMPANY
By: Date:
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Its:
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