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EXHIBIT 10.46
LOAN NO. 5000024084
FOURTH AMENDMENT AGREEMENT
LOAN AGREEMENT
PROMISSORY NOTE (LINE OF CREDIT)
This Fourth Amendment Agreement to Loan Agreement ("Amendment") is made
this __ day of May, 2000, by and between Standard Federal Bank, a federal
savings bank, whose address is 2600 West Big Beaver Road, Troy, Michigan 48084
(hereinafter referred to as "Standard Federal"), and McClain Group Leasing,
Inc., a Michigan corporation whose address is 6200 Elmridge, Sterling Heights,
Michigan 48310 ("Borrower").
WITNESSETH:
WHEREAS, Borrower and Standard Federal entered into a Loan Agreement
dated July 17, 1996, as amended by an Amendment Agreement dated April 28, 1997,
a Second Amendment Agreement dated April 16, 1998, and a Third Amendment
Agreement dated July 9, 1999 (as amended, the "Loan Agreement");
WHEREAS, Pursuant to the Loan Agreement, Borrower executed and
delivered to Standard Federal a Promissory Note (Line of Credit) dated July 17,
1996 in the original principal amount of $10,000,000, as amended by an Amendment
Agreement dated April 28, 1997, a Second Amendment Agreement dated April 16,
1998, and a Third Amendment Agreement dated July 9, 1999 (as amended, the
"Note");
WHEREAS, Borrower and Standard Federal desire to increase the Revolving
Line of Credit from $15,000,000 to $20,000,000 and modify and amend certain
terms, conditions, covenants and obligations contained in the Loan Agreement and
the Note, all effective as of the date hereof unless otherwise specified to the
contrary.
NOW, THEREFORE, in consideration of the mutual promises, covenants,
modifications and agreements hereinafter made, the parties hereto agree as
follows:
1. INCORPORATION BY REFERENCE:
All definitions and terms used in the Loan Agreement are
hereby incorporated in this Amendment.
2. AMENDMENTS AND MODIFICATIONS TO LOAN AGREEMENT:
A. The definition of "Credit Limit" as defined in
Section 1.1 of the Loan Agreement is hereby deleted
in its entirety, and in lieu thereof, the following
is inserted:
"Credit Limit" shall mean the lessor of (a) the
Maximum Credit Amount, or (b)
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80% of Eligible Lease Receivables. As used in this
section, the "Maximum Credit Amount" shall mean
Twenty Million and 00/100 Dollars ($20,000,000.00)
until December 31, 2000, and Fifteen Million and
00/100 Dollars ($15,000,000.00) thereafter."
B. Section 3.2(i) is hereby added to the Loan Agreement
as follows:
"On a consolidated statement basis maintain the ratio
of Liabilities to Tangible Net Worth of not more than
5.0 to 1.0, as of the end of each quarter of each
fiscal year. As used in this Section, "Liabilities"
shall mean all direct and contingent liabilities of
Borrower, and "Tangible Net Worth" shall mean total
assets as defined in accordance with generally
accepted accounting principles as in effect as of the
date hereof."
3. AMENDMENTS AND MODIFICATIONS TO THE NOTE:
The principal amount stated in the Note is increased to the
sum of Twenty Million and 00/100 Dollars ($20,000,000). Borrower hereby promises
to pay to the order of Standard Federal the principal amount of the Note, as
hereby amended, in accordance with the terms of the Note and the Loan Agreement,
as hereby amended.
4. REAFFIRMATION OF GUARANTY:
As a specific inducement to Standard Federal, and in
consideration of Standard Federal's reliance hereon, the undersigned McClain
Industries, Inc., a Michigan corporation ("Guarantor") has respectively
heretofore executed a Guaranty dated July 17, 1997 ("Guaranty"), and the
Guarantor hereby acknowledges and agrees to the amendments and modifications
hereinabove set forth and reaffirms the Guaranty with respect to all
liabilities, obligations and indebtedness therein guaranteed as herein amended
and modified, and further acknowledge that it shall remain liable in accordance
with the terms of the Guaranty, notwithstanding the modifications and amendments
herein made.
5. SURVIVAL AND REAFFIRMATION:
Each signatory hereto, by execution hereof, respectively
agrees for itself, in all capacities in which each signatory has executed the
Loan Agreement or Note as follows:
A. That, except as herein modified or amended, all
terms, conditions, covenants, representations and warranties contained in the
Loan Agreement and the Note shall remain in full force and effect, and that the
undersigned hereby consent to and acknowledge the foregoing Amendment
hereinabove set forth.
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B. That the liability of the undersigned howsoever
arising or provided for in the Loan Agreement, Note and/or Guaranty, as hereby
modified or amended, is hereby reaffirmed.
C. That the Borrower is a Michigan corporation in good
standing.
D. Borrower hereby represent and warrant that, after
giving effect to the amendments contained herein, (a) execution, delivery and
performance of this Amendment, and any other documents and instruments required
under this Amendment, the Loan Agreement or the Note are within Borrower's
corporate powers, have been duly authorized, are not in contravention of law or
the terms of Borrower's Articles of Organization or Bylaws and do not require
the consent or approval of any governmental body, agency or authority; and this
Amendment and any other documents and instruments required under this Amendment,
the Loan Agreement or the Note will be valid and binding in accordance with
their terms; and (b) no Event of Default, or condition or event which, with the
giving of notice or the running of time, or both, would constitute a Event of
Default under the Note, has occurred and is continuing as of the date hereof.
E. The Loan Documents (as defined in the Loan
Agreement), are valid and enforceable in accordance with their terms. Standard
Federal's security interests in the collateral described in the Loan Documents
are valid and perfected and Borrower is not aware of any claims or interests in
such collateral prior or paramount to Standard Federal's.
F. The execution of this Amendment shall not be deemed
to be a waiver of any Event of Default.
G. Borrower waives, discharges, and forever releases
Standard Federal, Standard Federal's employees, officers, directors, attorneys,
stockholders, and their successors and assigns, from and of any and all claims,
causes of action, allegations or assertions that Borrower has or may have had at
any time up through and including the date of this Amendment, against any or all
of the foregoing, regardless of whether any such claims, causes of action,
allegations or assertions are known to Borrower or whether any such claims,
causes of action, allegations or assertions arose as result of Standard
Federal's actions or omissions in connection with the Note, or any amendments,
extensions or modifications thereto, or Standard Federal's administration of the
debt evidenced by the Note or otherwise.
This Amendment may be executed in counterparts, each of which shall
constitute an original and all of which shall together constitute one and the
same Amendment.
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IN WITNESS the due execution hereof as of the day and year first above
written.
BANK: COMPANY:
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STANDARD FEDERAL BANK, MCCLAIN GROUP LEASING, INC.,
A FEDERAL SAVINGS BANK A MICHIGAN CORPORATION
By: By: /s/ Mark S. Mikelait
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Its: Its: TREASURER
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GUARANTORS:
MCCLAIN INDUSTRIES INC., A
MICHIGAN CORPORATION
By: /s/ Mark S. Mikelait
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Its: TREASURER
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