Exhibit 10.04
FOR BANK USE ONLY Reviewed by ________________
Due JANUARY 31, 2004
Customer #609591 Loan #42
AMENDMENT TO LOAN AGREEMENT AND NOTE
This amendment (the "AMENDMENT"), dated as of the date specified below, is
by and between the borrower (the "BORROWER") and the bank (the "BANK")
identified below.
RECITALS
A. The Borrower and the Bank have executed a Loan Agreement (the
"AGREEMENT") dated JUNE 8, 2001 and the Borrower has executed a Note (the
"NOTE") dated JUNE 8, 2001, either or both which may have been amended and
replaced from time to time, and the Borrower (and if applicable, certain third
parties) have executed the collateral documents which may or may not be
identified in the Agreement and certain other related documents (collectively
the "LOAN DOCUMENTS"), setting forth the terms and conditions upon which the
Borrower may obtain loans from the Bank from time to time in the original amount
of $2,000,000.00, as may be amended from time to time.
B. The Borrower has requested that the Bank permit certain modifications to
the Agreement and Note as described below.
C. The Bank has agreed to such modifications, but only upon the terms and
conditions outlined in this Amendment.
TERMS OF AGREEMENT
In consideration of the mutual covenants contained herein, and for other
good and valuable consideration, the Borrower and the Bank agree as follows:
[ ] EXTENSION OF MATURITY DATE. If checked here, any references in the
Agreement or Note to the maturity date or date of final payment are hereby
deleted and replaced with "________________".
[ ] CHANGE IN MAXIMUM LOAN AMOUNT. If checked here, all references in the
Agreement and in the Note (whether or not numerically) to the maximum loan
amount are hereby deleted and replaced with "$__________", which evidences an
additional $__________ available to be advanced subject to the terms and
conditions of the Agreement and Note.
[ ] CHANGE IN MULTIPLE ADVANCE TERMINATION DATE. If checked here, all
references in the Agreement and in the Note to the termination date for multiple
advances are hereby deleted and replaced with "N/A".
CHANGE IN FINANCIAL COVENANTS(S).
(i) [ ] If checked here, all references to "$__________" in the
Agreement as the minimum Net Working Capital amount are hereby deleted
and replaced with "$__________" for the period beginning __________
and thereafter.
(ii) [ ] If checked here, all references to "$__________" in the
Agreement as the minimum Tangible Net Worth amount are hereby deleted
and replaced with "$__________" for the period beginning __________
and thereafter.
(iii) [ ] If checked here, all references to "__________" in the
Agreement as the maximum Debt to Worth Ratio are hereby deleted and
replaced with "__________" for the period beginning __________ and
thereafter.
(iv) [ ] If checked here, all references to "__________" in the
Agreement as the minimum Current Ratio are hereby deleted and replaced
with "__________" for the period beginning __________ and thereafter.
(v) [ ] If checked here, all references to "$__________" in the
Agreement as the maximum Capital Expenditures amount are hereby
deleted and replaced with "$__________" for the period beginning
__________ and thereafter.
(vi) [ ] If checked here, all references to "__________" in the
Agreement as the minimum Cash Flow Coverage Ratio are hereby deleted
and replaced with "__________" for the period beginning __________ and
thereafter.
(vii) [ ] If checked here, all references to "$__________" in the
Agreement as the maximum Officers, Directors, Partners, and Management
Salaries and Other Compensation amount are hereby deleted and replaced
with "$__________" for the period beginning __________ and thereafter.
[ ] CHANGE IN PAYMENT SCHEDULE. If checked here, effective upon the date of
this Amendment, any payment terms are amended as follows:
Page 1 of 2
[ ] CHANGE IN LATE PAYMENT FEE. If checked here, subject to applicable law,
if any payment is not made on or before its due date, the Bank may collect a
delinquency charge of _______% of the unpaid amount. Collection of the late
payment fee shall not be deemed to be a waiver of the Bank's right to declare a
default hereunder.
DEFAULT INTEREST RATE. Notwithstanding any provision of this Note to the
contrary, upon any default or at any time during the continuation thereof
(including failure to pay upon maturity), the Bank may, at its option and
subject to applicable law, increase the interest rate on this Note to a rate of
5% per annum plus the interest rate otherwise payable hereunder. Notwithstanding
the foregoing and subject to applicable law, upon the occurrence of a default by
the Borrower or any guarantor involving bankruptcy, insolvency, receivership
proceedings or an assignment for the benefit of creditors, the interest rate on
this Note shall automatically increase to a rate of 5% per annum plus the rate
otherwise payable hereunder.
EFFECTIVENESS OF PRIOR DOCUMENTS. Except as specifically amended hereby,
the Agreement, the Note and the other Loan Documents shall remain in full force
and effect in accordance with their respective terms. All warranties and
representations contained in the Agreement and the other Loan Documents are
hereby reconfirmed as of the date hereof. All collateral previously provided to
secure the Agreement and/or Note continues as security, and all guaranties
guaranteeing obligations under the Loan Documents remain in full force and
effect. This is an amendment, not a novation.
PRECONDITIONS TO EFFECTIVENESS. This Amendment shall only become effective
upon execution by the Borrower and the Bank, and approval by any other third
party required by the Bank.
NO WAIVER OF DEFAULTS; WARRANTIES. This Amendment shall not be construed
as or be deemed to be a waiver by the Bank of existing defaults by the
Borrower, whether known or undiscovered. All agreements, representations and
warranties made herein shall survive the execution of this Amendment.
COUNTERPARTS. This Amendment may be signed in any number of counterparts,
each of which shall be considered an original, but when taken together shall
constitute one document.
AUTHORIZATION. The Borrower represents and warrants that the execution,
delivery and performance of this Amendment and the documents referenced herein
are within the authority of the Borrower and have been duly authorized by all
necessary action.
TRANSFERABLE RECORD. The agreement and note, as amended, is a
"transferable record" as defined in applicable law relating to electronic
transactions. Therefore, the holder of the agreement and note, as amended,
may, on behalf of Borrower, create a microfilm or optical disk or other
electronic image of the agreement and note, as amended, that is an
authoritative copy as defined in such law. The holder of the agreement and
note, as amended, may store the authoritative copy of such agreement and note,
as amended, in its electronic form and then destroy the paper original as part
of the holder's normal business practices. The holder, on its own behalf, may
control and transfer such authoritative copy as permitted by such law.
CONFESSION OF JUDGMENT. Borrower hereby irrevocably authorizes and
empowers any attorney-at-law to appear for Borrower in any action upon or in
connection with this Amendment at any time after the obligations under this
Amendment become due, as herein provided, in any court in or of the State of
Ohio or elsewhere, and waives the issuance and service of process with respect
thereto, and irrevocably authorizes and empowers any such attorney-at-law to
confess judgment in favor of Bank against Borrower, the amount due thereon or
hereon, plus interest as herein provided, and all costs of collection, and
waives and releases all errors in any said proceedings and judgments and all
rights of appeal from the judgment rendered. The Borrower agrees and consents
that the attorney confessing judgment on behalf of the Borrower hereunder may
also be counsel to the Bank and/or any of the Bank's affiliates, and the
Borrower hereby further waives any conflict of interest which might otherwise
arise and consents to the Bank paying such confessing attorney a legal fee or
allowing such attorneys' fees to be paid from proceeds of collection of this
Amendment and/or any and all collateral and security for the obligations.
ATTACHMENTS. ALL DOCUMENTS ATTACHED HERETO, INCLUDING ANY APPENDICES,
SCHEDULES, RIDERS AND EXHIBITS TO THIS AMENDMENT, ARE HEREBY EXPRESSLY
INCORPORATED HEREIN BY REFERENCE.
WARNING -- BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT
TRIAL. IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOU
WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF THE COURT CAN BE USED TO COLLECT
FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER FOR
RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE AGREEMENT,
OR ANY OTHER CAUSE.
Dated as of: OCTOBER 30, 2003
----------------------
HMI INDUSTRIES, INC.
(Individual Borrower) -----------------------------------
Borrower Name (Organization)
----------------------------------- a OHIO Corporation
---------------------------------
Borrower Name N/A By /s/ Xxxxx X. XxXxxx
-------------------- --------------------------------
Agreed to: Name and Title XXXXX X XXXXXX,
VICE PRESIDENT/CHIEF
U.S. BANK N.A. --------------------
----------------------------------- By
(Bank) ---------------------------------
By: /s/ Xxxxxx Xxxxxx
-------------------------------- Name and Title
--------------------
XXXXXX XXXXXX
Name and Title: VICE PRESIDENT
--------------------
FOR ADDITIONAL TERMS, SEE ATTACHED ADDENDUM
Page 2 of 2
ADDENDUM TO AMENDMENT TO LOAN AGREEMENT AND NOTE
This Addendum is made part of the Amendment to Loan Agreement and Note (the
"AMENDMENT") made and entered into by and between the undersigned borrower (the
"BORROWER") and the undersigned bank (the "BANK") as of the date identified
below. The following provisions are hereby added to the Amendment, (or to the
extent such provisions already exist, are hereby modified) as follows.
BORROWER TO MAINTAIN OR PROVIDE LENDER WITH THE FOLLOWING AT ALL TIMES:
INTEREST COVERAGE TO BE DEFINED AS EARNINGS BEFORE INTEREST, TAXES,
DEPRECIATION AND AMORTIZATION EXCLUDING LOSS DUE TO CLOSING OF CANADIAN
OPERATION DIVIDED BY INTEREST TO BE LESS THAN OR EQUAL TO 5.0 TO 1.0, TESTED
QUARTERLY ON A ROLLING 4 QUARTERS.
Dated as of: OCTOBER 30, 2003
-----------------------
HMI INDUSTRIES, INC.
(Individual Borrower) ----------------------------------------
Borrower Name (Organization)
_______________________________(SEAL) a OHIO Corporation
Borrower Name N/A By /s/ Xxxxx X. XxXxxx
_______________________________(SEAL) Name and Title XXXXX X XXXXXX,
VICE PRESIDENT/CHIEF
Borrower Name N/A By _____________________________________
Name and Title _________________________
Agreed to:
U.S. BANK N.A.
-------------------------------------
(Bank)
By: /s/ Xxxxxx Xxxxxx
-------------------------------------
Name and Title: XXXXXX XXXXXX
VICE PRESIDENT
3589 (c) us bancorp 2001
