EXHIBIT 10.01
AMENDMENT TO LOAN AGREEMENT AND NOTE ("AMENDMENT")
WHEREAS, HMI INDUSTRIES, INC., a Delaware corporation ("Borrower"), and
U.S. BANK NATIONAL ASSOCIATION, a national banking association formerly known
and doing business as Firstar Bank, N.A. ("Bank"), entered into a certain
Revolving Credit Agreement dated as of June 8, 2001 as amended from time to time
and most recently by that certain letter amendment dated as of February 20, 2004
(as amended, herein referred to as the "Agreement"); and
WHEREAS, the Borrower and the Bank have agreed to amend the Agreement
to modify financial accommodations to Borrower, all upon the terms and
conditions set forth in this Amendment.
NOW, THEREFORE, for valuable consideration received to their mutual
satisfaction, the Borrower and the Bank hereby agree as follows:
1. The first sentence of Section 1.1 of the Agreement is hereby amended
by deleting such sentence in its entirety and substituting the following in lieu
thereof:
"From time to time prior to December 31, 2004 (the "MATURITY DATE")
or the earlier termination hereof, the Borrower may borrow from Bank
for working capital purposes up to the aggregate principal amount
outstanding at any one time of the lesser of (i) $3,000,000.00 (the
"LOAN AMOUNT"), less letters of credit issued by the Bank, or (ii) if
applicable, the BORROWING BASE (defined below)."
2. Section 1.5 of the Agreement is hereby amended by inserting the
following provision:
"Borrower shall pay a commitment fee on the average daily unborrowed
portion of the Loan Amount at the rate of 25 basis points per annum,
payable in arrears on November 1, 2004 the first day of each calendar
month thereafter and upon the Maturity Date."
3. Section 5.2 of the Agreement is hereby amended by deleting the
provision relating to "Indebtedness" in the Addendum to Amendment to Loan
Agreement and Note in its entirety and substituting the following in lieu
thereof:
"Indebtedness: Borrower shall not be permitted to obtain vendor
financing and other borrowings cannot exceed $300,000.00."
4. The unpaid principal balance of the Loan Amount shall bear interest
at an annual rate equal to the prime rate announced by the Bank plus 100 basis
points.
5. The Borrower acknowledges and agrees that certain defaults have
occurred under
Section 2.12 of the Agreement with respect to the Borrower's financial reporting
requirements the periods ending December 31, 2003, March 31, 2004 and June 30,
2004. The Bank hereby acknowledges the existence of the foregoing default but
specifically does not waive such default for the time period specified above.
The Bank reserves the right to invoke fully any and all of its respective
rights, remedies, powers and privileges under the Agreement and all other
related loan documents at any time in the exercise of the Bank's sole and
absolute discretion.
6. This Amendment shall be effective as of October 15, 2004. Except as
previously amended or as herein specifically amended, directly or by reference,
all of the terms and conditions set forth in the Agreement are confirmed and
ratified, and shall remain as originally written. This Amendment shall be
construed in accordance with the laws of the State of Ohio, without regard to
principles of conflict of laws. The Agreement and all other related loan
documents executed in connection with the Agreement shall remain in full force
and effect in all respects as if the unpaid balance of the principal
outstanding, together with interest accrued thereon, had originally been payable
and secured as provided for therein, as amended from time to time and as
modified by this Amendment. Nothing herein shall affect or impair any rights and
powers which the Bank may have under the Agreement and any and all related loan
documents.
7. In consideration of this Amendment, the Borrower hereby releases and
discharges the Bank and its directors, officers, employees, attorneys,
affiliates and subsidiaries from any and all claims, demands, liability and
causes of action whatsoever, now known or unknown, arising prior to the date
hereof out of or in any way related to the extension or administration of the
Obligations (as defined in the Agreement) of the Borrower, the Agreement or any
mortgage or security interest related thereto.
8. For purposes of this Amendment, the terms used in the Agreement
shall have the same meaning as used herein unless otherwise defined herein. The
Borrower and the Bank hereby agree to extend all liens and security interests
securing the Obligations, until said Obligations, as modified herein, and any
and all related promissory notes have been fully paid. The parties hereto
further agree that this Amendment shall in no manner affect or impair the liens
and security interests evidenced by the Agreement and/or any other instruments
evidencing, securing or related to the Obligations. The Borrower hereby
acknowledges that all liens and security interests securing the Obligations are
valid and subsisting.
9. The Borrower covenants and agrees (i) to pay the balance of any
principal, together with all accrued interest, as specified above in connection
with any promissory note executed and evidencing any indebtedness incurred in
connection with the Agreement, as modified by this Amendment, and (ii) to
perform and observe covenants, agreements, stipulations and conditions on its
part to be performed hereunder or under the Agreement and all other related loan
documents executed in connection herewith or thereof.
10. The Borrower hereby declares that the Borrower has no set offs,
counterclaims, defenses or other causes of action against the Bank arising out
of the Agreement or any related loan documents, and to the extent any such set
offs, counterclaims, defenses or other causes of action may exist, whether known
or unknown, such items are hereby waived by the Borrower.
11. This Amendment may be executed in counterparts and all such
counterparts shall constitute one agreement binding on all the parties,
notwithstanding that the parties are not signatories to the same counterpart.
12. The Borrower hereby agrees to pay the Bank an Amendment Fee in the
amount of Three Thousand Dollars ($3,000.00) on the date of the execution of
this Amendment and further agrees to reimburse the Bank for any and all
out-of-pocket costs, fees and expenses incurred in connection with this
Amendment, including, without limitation, attorneys' fees.
13. The Borrower hereby represents and warrants to the Bank that (a)
the Borrower has the legal power and authority to execute and deliver this
Amendment; (b) the officials executing this Amendment have been duly authorized
to execute and deliver the same and bind the Borrower with respect to the
provisions hereof; (c) the execution and delivery hereof by the Borrower and the
performance and observance by the Borrower of the provisions hereof do not
violate or conflict with the organizational agreements of the Borrower or any
law applicable to the Borrower or result in a breech of any provisions of or
constitute a default under any other agreement, instrument or document binding
upon or enforceable against the Borrower; and (d) this Amendment constitutes a
valid and binding obligation upon the Borrower in every respect.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the Borrower and Bank have executed this Amendment as
of the date set forth above.
BANK: U.S. BANK NATIONAL ASSOCIATION,
a national banking association
By: /s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
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Its: VP
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BORROWER: HMI INDUSTRIES, INC.,
a Delaware corporation
By: /s/ Xxxxx X. XxXxxx
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Name: Xxxxx X. XxXxxx
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Its: Vice President, CFO
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[USBANK LOGO]
COMMERCIAL BANKING DEPARTMENT
U.S. Bank Centre
0000 Xxxxxx Xxxxxx
Xxxxx 0000, XX-XX-XX00
Xxxxxxxxx, XX 00000
October 15, 2004
Xxxxx XxXxxx
Chief Financial Officer
HMI Industries, Inc.
0000 Xxxxxxxx Xxxxxx, Xxx. 000
Xxxxx Xxxxx, Xxxx 00000
Dear Xxxxx:
Reference is made to the Term Loan Agreement (herein called the "Instrument")
dated June 8, 2001 and as amended from time to time by and between HMI
Industries, Inc. (herein called the "Borrower") and US Bank (herein called the
"Bank"). In connection therewith and pursuant to violation of the tangible net
worth covenant and financial reporting covenant, please be advised as follows:
Notwithstanding the requirements and/or the restrictions contained in
the Instrument and particularly in Section 5.2 attached addendum, the
Bank hereby gives its written consent to the Borrower to allow the
following waiver in the fiscal year ended 9/30/03 and interim periods
12/31/03, 3/31/04 and 6/30/04:
I. Section 5.2 attached addendum:
Borrower shall maintain a tangible net worth at all times of not less
than $2,400,000; calculated at the end of the quarter,
increasing at the end of each fiscal year by 50% of positive
net income. Amended to eliminate tangible net worth covenant
through 12/31/04.
Borrower shall provide the Bank with quarterly financial statements
within 45 days of quarter end and annual CPA Audited financial
statements within 90 days of year end.
These covenants are amended and will be evidenced in amended documents dated
October 15, 2004.
Kindly indicate your acceptance of this agreement by executing and returning the
enclosed copy of this letter.
Very truly yours,
/s/ Xxxxxx Xxxxxx
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Xxxxxx X. Xxxxxx
Vice President
Commercial Banking
The Borrower hereby agrees to the waiver set forth above. The Borrower further
agrees all of the other terms, and conditions set forth in the Instrument shall
remain in full force and effect.
Approved and accepted by:
HMI Industries, Inc.
By: /s/ Xxxxx XxXxxx
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Title: VP-CFO
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Date: October 15, 2004
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