EXHIBIT 10(y)
FOURTH AMENDMENT TO LOAN DOCUMENTS
This Fourth Amendment to Loan Documents (this FOURTH AMENDMENT) is
dated as of August 29, 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 and Third
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 Fourth
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 Loan Documents, to extend to the Borrower certain
credit facilities, including but not limited to the Revolving L/C Loan, which is
evidenced by the Revolving L/C Loan Note.
C. Pursuant to the Second Amendment to the Loan Agreement, the maximum
availability under the Revolving L/C Loan was reduced to $6,500,000, and the
maturity date of the Revolving L/C Loan Note was extended at the Borrower's
request to September 1, 2002.
D. The Borrower has notified the Bank that the Borrower will not be
able to pay the indebtedness evidenced by Revolving L/C Loan Note on September
1, 2002, and the Borrower has requested that the Bank extend the maturity date
of the Revolving L/C Loan Note to November 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. Extension of Maturity Date of Revolving L/C Loan Note. The maturity
date of the Revolving L/C Loan Note is extended to November 1, 2002, unless
sooner accelerated or paid. The Borrower acknowledges that the unpaid principal
indebtedness evidenced by the Revolving L/C Loan Note as of the date of this
Fourth Amendment is $6,500,000.
2. Overline Advances; Collateral for Overline Advances. At the
Borrower's request, the Bank has agreed, during the period beginning the date of
this Fourth Amendment and ending October 31, 2002, and subject to the conditions
and limitations set forth below, to make advances and re-advances of principal
to the Borrower in accordance with this paragraph. The Bank's obligations under
this paragraph are subject to the following conditions and limitations: (a) the
maximum outstanding principal amount of such advances and re-advances shall at
no time exceed $250,000 in the aggregate; (b) such advances shall be required
only to the extent necessary to pay overdrafts in one or more of the deposit
accounts maintained by the Borrower at the Bank as of the date of this Fourth
Amendment (i.e., #999-160-120-5, #000-000-0, and #750-599-965-1); (c) the Bank
shall have no obligation to make any such advances or re-advances at any time
(i) after October 31, 2002, or (ii) the occurrence of an Event of Default (other
than an existing Event of Default disclosed in EXHIBIT B to this 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 this Fourth Amendment) under the Loan
Agreement or any of the other Loan Documents. The Borrower's indebtedness for
advances made by the Bank pursuant to this paragraph shall be evidenced by a
Promissory Note (Overline) in the stated principal amount of $250,000, in
substantially the form attached hereto as EXHIBIT A (the OVERLINE NOTE). Unless
sooner accelerated or paid, all indebtedness evidenced by the Overline Note,
whether for principal, interest or otherwise, shall be due and payable November
1, 2002. The Overline Note shall constitute a Note and a Loan Document and shall
be deemed to have been issued pursuant to the Loan Agreement, and the
indebtedness evidenced by the Overline Note shall constitute Indebtedness. All
of the collateral that secures any of the Borrower's indebtedness and
obligations under the Loan Agreement shall secure the indebtedness evidenced by
the Overline Note, to the full extent and with the same priority as such
collateral secures the Borrower's indebtedness under the other Notes that are
outstanding under the Loan Agreement.
3. Application of Payments. So long as there exists no Event of Default
(other than an existing Event of Default disclosed in EXHIBIT B to this 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 this 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 the date of this Fourth Amendment and
ending October 31, 2002, shall be applied first to payment of accrued and unpaid
interest due under the Overline Note and then to reduction of the principal
indebtedness evidenced thereby. After October 31, 2002 or the occurrence of an
Event of Default (other than an existing Event of Default disclosed in EXHIBIT B
to this 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 this 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.
4. Maturity Date of Other Indebtedness. All of all of the Borrower's
other indebtedness to the Bank, including but not necessarily limited to that
evidenced by: (a) the $3,250,000 Existing Equipment Term Loan Note; (b) the
$4,000,000 Equipment Term Loan Note; (c) the 1999 Equipment L/C Note in the
stated principal amount of $3,271,000; and (d) the $1,000,000.00 Term Loan Note,
shall be due and payable in full November 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.
5. No Further Loans or Advances, Extensions of Maturity Dates, etc. The
Borrower acknowledges that: (a) except as provided in and limited by this Fourth
Amendment, 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 Revolving L/C Loan
Note 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.
6. Event of Default; Cross-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 Fourth Amendment, without the necessity of giving Borrower
notice or opportunity to cure such default. An Event of Default under the Loan
Agreement, as amended by this Fourth Amendment, shall be a default under the
Overline Note, and a default under the Overline Note shall be an Event of
Default under the Loan Agreement and all of the other Loan Documents, and shall
entitle the Bank to pursue any of the remedies available to it under the Loan
Agreement, any of the security agreements or other collateral security documents
referred to therein, or otherwise available to the Bank at law or in equity or
under any other agreement between the Bank and the Borrower.
7. Borrower's Representations, Warranties, Reaffirmations, etc. The
Borrower restates, affirms and makes, as of the date of this Fourth 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.
8. No Existing Event of Default. The Borrower represents and warrants
to the Bank that, unless otherwise disclosed in EXHIBIT B to this Fourth
Amendment, there exists as of the date of this Fourth 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.
9. Effect of this Fourth Amendment. The Loan Documents are hereby
amended as required (and only as required) to give effect to the amendments
expressly provided for in this Fourth Amendment. Each of the Loan Documents
shall be deemed to have been amended by this Fourth Amendment as if such Loan
Document had been specifically amended by separate instrument. This Fourth
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.
10. Incorporation of Background Statement. The Background Statement is
incorporated into and forms a part of this Fourth Amendment.
11. 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 Fourth 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 Fourth Amendment.
12. Counterparts. This Fourth 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 FOURTH
AMENDMENT TO LOAN DOCUMENTS]
IN WITNESS WHEREOF, the parties have executed this Fourth 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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