EXHIBIT 10.8
EXHIBIT E
FORM OF SUBORDINATED TERM PROMISSORY NOTE
THIS NOTE IS SUBJECT TO THAT CERTAIN SUBORDINATION AND INTERCREDITOR
AGREEMENT DATED AS OF JULY 9, 2004 EXECUTED BY HILLSTEET FUND II L.P., A
DELAWARE LIMITED PARTNERSHIP, IN FAVOR OF COMERICA BANK, A MICHIGAN
BANKING CORPORATION AND CONSENTED TO BY RIVIERA TOOL COMPANY, A MICHIGAN
CORPORATION.
THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT
OF 1933 (THE "ACT") OR UNDER ANY STATE SECURITIES LAWS OR REGULATIONS. BY
THE ACCEPTANCE HEREOF, THE HOLDER OF THIS NOTE REPRESENTS THAT THIS NOTE
IS BEING ACQUIRED FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO
DISTRIBUTION AND AGREES THAT THIS NOTE MAY NOT BE OFFERED, SOLD OR
OTHERWISE PLEDGED, HYPOTHECATED OR TRANSFERRED UNLESS AN APPLICABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE ACT IS AVAILABLE AND
AN OPINION OF LEGAL COUNSEL SATISFACTORY TO THE BORROWER THAT REGISTRATION
IS NOT REQUIRED IS RECEIVED.
$3,000,000.00 Cincinnati, Ohio
July 9, 2004
THIS SUBORDINATED TERM PROMISSORY NOTE ("Note") is made and entered into
as of the date hereof by RIVIERA TOOL COMPANY, a Michigan corporation (together
with its successors and assigns, the "Borrower"), to the order of THE HILLSTREET
FUND II, L.P., a Delaware limited partnership (hereinafter, together with its
successors and assigns, called "Lender").
This Note has been executed and delivered in connection with a certain
Subordinated Loan and Security Agreement dated as of July 9, 2004, by and
between Borrower and Lender (the "Loan Agreement") and is subject to the terms
and conditions of the Loan Agreement. All capitalized terms used herein shall
have the meanings assigned to them in the Loan Agreement unless the context
hereof requires otherwise.
Borrower, for value received, promises to pay to the order of Lender the
principal sum of THREE MILLION AND 00/100 DOLLARS ($3,000,000.00), together with
interest at an annual rate equal to fourteen percent (14.0%); provided, however,
that the Loan Agreement provides for, and Borrower shall pay to Lender,
additional deferred interest in accordance with the terms of the Loan Agreement.
Interest shall be due and payable quarterly in arrears commencing on September
30, 2004, and on the last day of each December, March, June and September
thereafter. All interest under this Note shall be computed on the basis of the
actual number of days elapsed over an assumed year consisting of three hundred
sixty (360) days.
Borrower shall pay to Lender, commencing on September 30, 2007, and on the
last day of each March, June, September and December thereafter until this Note
is paid in full, quarterly installments of principal in the amount of TWO
HUNDRED FIFTY THOUSAND AND 00/100 DOLLARS ($250,000.00); provided, that in any
event, the last installment payable shall be in an amount sufficient to pay in
full the entire unpaid principal and accrued interest, including any deferred
interest, of this Note, including any additional amounts payable hereunder or
under the Loan Agreement. All of the indebtedness evidenced by this Note shall,
if not sooner due and payable as provided in the Loan Agreement, be in any event
absolutely and unconditionally due and payable in full by Borrower on June 30,
2010. This Note is subject to prepayment provisions as set forth in the Loan
Agreement.
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If an Event of Default shall occur and be continuing under the Loan
Agreement, this Note shall, at the option of Lender, become immediately due and
payable, upon demand by Lender, except that if there shall be an Event of
Default under Section 9.8 of the Loan Agreement, this Note shall automatically
and immediately be due and payable without demand.
Borrower hereby: (i) waives presentment, demand, notice of demand,
protest, notice of protest and notice of nonpayment and any other notice
required to be given by law in connection with the delivery, acceptance,
performance, default or enforcement of this Note, or any indorsement or guaranty
of this Note; and (ii) consents to any and all delays, extensions or renewals of
this Note or waivers of any term hereof or the failure to act on the part of
Lender or any indulgence shown by Lender, from time to time and in one or more
instances (without notice to or further assent from Borrower), and agrees that
no such action, failure to act or failure to exercise any right or remedy, on
the part of Lender shall in any way affect or impair the obligations of Borrower
or be construed as a waiver by Lender of, or otherwise affect, any of Lender's
rights under this Note, under any indorsement or guaranty of this Note.
Anything herein to the contrary notwithstanding, the obligations of
Borrower under this Note, the Loan Agreement, any other Loan Documents or any
other documents executed contemporaneously therewith shall be subject to the
limitation that payments of interest shall not be required to the extent that
receipt of any such payment by the Lender would be contrary to the provisions of
law applicable to the Lender limiting the maximum rate of interest that may be
charged or collected by the Lender. Without limiting the generality of the
foregoing, all calculations of the rate of interest contracted for, charged or
received under this Note which are made for the purposes of determining whether
such rate of interest exceeds the maximum rate of interest permitted by
applicable law shall be made, to the extent permitted by applicable law, by
amortizing, prorating, allocating and spreading in equal parts during the period
of the full stated term of this Note, all interest at any time contracted for,
charged or received in connection with the indebtedness evidenced by this Note.
The provisions of this Note shall be governed by and interpreted in
accordance with the laws of the State of Ohio.
The undersigned hereby designate all courts of record sitting in
Cincinnati, Ohio and having jurisdiction over the subject matter, state and
federal, as forums where any action, suit or proceeding in respect of or arising
from or out of this Note, its making, validity or performance, may be prosecuted
as to all parties, their successors and assigns, and by the foregoing
designation the undersigned consent to the jurisdiction and venue of such
courts.
TIME IS OF THE ESSENCE IN THE PERFORMANCE OF THE OBLIGATIONS OF THIS NOTE.
[Remainder of page intentionally left blank. Signatures to follow.]
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IN WITNESS WHEREOF, the undersigned has executed this Subordinated Term
Promissory Note the day and year set forth above.
RIVIERA TOOL COMPANY,
a Michigan corporation.
By: /s/ Xxxxx X. Xxxxxx
-------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Financial Officer
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