1
EXHIBIT 10.45
Note No. 0250012691
STANDARD FEDERAL BANK
THIRD AMENDED AND RESTATED
PROMISSORY NOTE
(Line of Credit)
$10,000,000.00
Sterling Heights , Michigan
Due Date: March 31, 1997 Dated: June 22, 1995
FOR VALUE RECEIVED, on the Due Date unless accelerated earlier as provided
herein, the undersigned, jointly and severally (collectively, "Borrower"),
promise to pay to the order of Standard Federal Bank, a federal savings bank
("Standard Federal"), at its office set forth below, or at such other place as
Standard Federal may designate in writing, the principal sum of Ten Million and
00/100 Dollars ($10,000,000.00) or such lesser amount as may from time to time
be outstanding by reason of having been advanced hereunder, plus interest as
hereinafter provided on all amounts from time to time outstanding hereunder,
all in lawful money of the United States of America.
The principal outstanding under this Note from time to time shall bear
interest ("Effective Interest Rate"), on a basis of a year of 360 days for the
actual number of days amounts are outstanding hereunder, at a rate per annum
equal to One-Half of One percent (0.50%) in excess of the Wall Street Journal
Prime Rate. As used herein the phrase "Wall Street Journal Prime Rate" shall
mean the "Prime Rate" published by the Wall Street Journal as the base rate on
corporate loans posted by at least 75% of the nation's 30 largest banks as the
same may be changed from time to time. If more than one Prime Rate is
published, the highest rate published shall be deemed the Wall Street Journal
Prime Rate. If the publishing of the Wall Street Journal Prime Rate is
discontinued during the term hereof, then the Effective Interest Rate shall be
based upon the index which is published by The Wall Street Journal in
replacement thereof based on similar base rates on corporate loans or, if no
such replacement index is published, the index which, in Standard Federal's
sole determination, most nearly corresponds to the Wall Street Journal Prime
Rate. If, in such event, Standard Federal selects an index which, in the
Borrower's opinion, does not correspond to the Wall Street Journal Prime Rate,
Borrower's sole remedy shall be to prepay this Note in full without penalty or
premium. Until such prepayment has been received by Standard Federal, the
index selected by Standard Federal shall apply for all purposes of this Note.
It is understood and agreed by Borrower that the Effective Interest
Rate shall be determined by reference to the "Wall Street
2
Journal Prime Rate" and not by reference to the actual rate of interest charged
by any particular bank to any particular borrower or borrowers and shall
automatically increase or decrease when and to the extent that the Wall Street
Journal Prime Rate shall have been increased or decreased.
Accrued interest shall be payable on the first day of each month
beginning on August 1, 1995.
This Note is given as evidence of any and all indebtedness of the
Borrower to Standard Federal arising as a result of advances or other credit
which may be made under this Note from time to time in accordance with the
provisions of a Loan Agreement, dated September 15, 1994, as amended by a First
Amendment to Loan Agreement, dated February 16, 1995, and by a Second Amendment
to Loan Agreement, dated May 5, 1995, and by a Third Amendment to Loan
Agreement of even date herewith, by and between Standard Federal and the
Borrower (the "Loan Agreement"). Any and all indebtedness may be repaid by the
Borrower in whole or in part from time to time prior to the Due Date. Standard
Federal shall, from time to time prior to the Due Date, make advances to
Borrower hereunder upon request therefor by Borrower, provided that, upon
giving effect to such advance: (a) no Event of Default (as hereinafter defined)
and no event which with notice and/or the passage of time would become an Event
of Default shall exist at the time the advance is to be made; (b) all
representations and warranties of Borrower theretofore made are true and
correct; (c) Standard Federal shall not have previously or concurrently
declared all amounts owing hereunder to be immediately due and payable; (d) the
amount requested shall not cause the total amount outstanding hereunder to
exceed the Credit Limit, as defined in the Loan Agreement; and (e) all other
requirements for the making of advances provided for in the Loan Agreement have
been satisfied. The principal amount of indebtedness owing pursuant to this
Note shall change from time to time, decreasing in an amount equal to any and
all payments of principal made by the Borrower and increasing by an amount
equal to any and all advances made by Standard Federal to the Borrower pursuant
to the terms hereof, and the books and records of Standard Federal shall be
conclusive evidence of the amount of principal and interest owing hereunder at
any time. All payments made hereunder shall be applied first against costs and
expenses required to be paid hereunder, then against accrued interest to the
extent thereof and the balance shall be applied against the outstanding
principal amount hereof.
Nothing herein contained, nor any transaction relating thereto, or
hereto, shall be construed or so operate as to require the Borrower to pay, or
charge, interest at a greater rate than the maximum allowed by the applicable
law relating to this Note. Should any interest, or other charges, charged,
paid or payable by the Borrower in connection with this Note, or any other
document delivered in connection herewith, result in the charging,
-2-
3
compensation, payment or earning of interest in excess of the maximum allowed
by applicable law, then any and all such excess shall be and the same is hereby
waived by Standard Federal, and any and all such excess paid shall be
automatically credited against and in reduction of the principal due under this
Note. If Standard Federal shall reasonably determine that the Effective
Interest Rate (together with all other charges or payments related hereto that
may be deemed interest) stipulated under this Note is, or may be, usurious or
otherwise limited by law, the unpaid balance of this Note, with accrued
interest at the highest rate permitted to be charged by stipulation in writing
between Standard Federal and Borrower, at the option of Standard Federal, shall
immediately become due and payable.
The Borrower represents and warrants that it is duly organized,
validly existing and in good standing and is duly authorized to make and
perform this Note, which constitutes its valid and binding legal obligation
enforceable in accordance with its terms. All financial data furnished to
Standard Federal in connection with this Note fairly present the financial
condition of the Borrower and its subsidiaries, if any, as of the dates thereof
and there has been no material adverse change in the condition (financial or
otherwise) of the Borrower since such dates.
An Event of Default shall be deemed to have occurred hereunder if any
indebtedness of the Borrower to Standard Federal hereunder is not paid when
due, regardless of whether such indebtedness has arisen pursuant to the terms
of this Note, the Loan Agreement or any mortgage, security agreement, guaranty,
instrument or other agreement executed in conjunction herewith, or if an Event
of Default shall otherwise occur under the Loan Agreement.
Upon the occurrence of any Event of Default, after the giving of any
notice and the expiration of any grace, cure or notice period provided for in
the Loan Agreement, if any, and if no such notice or grace, cure or notice
period is so provided for in the Loan Agreement, then immediately, Standard
Federal may declare the entire unpaid and outstanding principal balance
hereunder and all accrued interest to be due and payable in full forthwith,
without presentment, demand or notice of any kind and may exercise any one or
more of the rights and remedies provided herein or in the Loan Agreement or in
any mortgage, guaranty, security agreement or other document relating hereto or
by applicable law. The remedies provided for hereunder are cumulative to the
remedies for collection of the amounts owing hereunder as provided by law or by
the Loan Agreement, or by any mortgage, guaranty, security agreement or other
document relating hereto. Nothing herein is intended, nor should it be
construed, to preclude Standard Federal from pursuing any other remedy for the
recovery of any other sum to which Standard Federal may be or become entitled
for breach of the terms of this Note or the Loan Agreement, or any mortgage,
guaranty, security agreement or other instrument relating hereto.
-3-
4
Borrower agrees, in case of an Event of Default under the terms of
this Note or under any loan agreement, security or other agreement executed in
connection herewith, to pay all costs of Standard Federal for collection of the
Note and all other liabilities of Borrower to Standard Federal and enforcement
of rights hereunder, including reasonable attorney fees and legal expenses
including participation in Bankruptcy proceedings. During any period(s) this
Note is in default, or after the Due Date, or after acceleration of maturity,
the outstanding principal amount hereof shall bear interest at a rate equal to
two percent (2.0%) per annum greater than the interest rate otherwise charged
hereunder. If any required payment is not made within ten (10) days after the
date it is due, then, at the option of Standard Federal, a late charge of not
more than four cents ($.04) for each dollar of the payment so overdue may be
charged. In addition to any other security interests granted to Standard
Federal, Borrower hereby grants Standard Federal a security interest in all of
Borrower's bank deposits, instruments, negotiable documents, and chattel paper
which at any time are in the possession or control of Standard Federal. After
the occurrence of an Event of Default hereunder, Standard Federal may hold and
apply at any time its own indebtedness or liability to Borrower in payment of
any indebtedness hereunder.
Acceptance by Standard Federal of any payment in an amount less than
the amount then due shall be deemed an acceptance on account only, and the
failure to pay the entire amount then due shall be and continue to be an Event
of Default. Upon any Event of Default, neither the failure of Standard Federal
promptly to exercise its right to declare the outstanding principal and accrued
unpaid interest hereunder to be immediately due and payable, nor the failure of
Standard Federal to demand strict performance of any other obligation of the
Borrower or any other person who may be liable hereunder shall constitute a
waiver of any such rights, nor a waiver of such rights in connection with any
future default on the part of the Borrower or any other person who may be
liable hereunder.
Borrower and all endorsers and guarantors hereof, hereby jointly and
severally waive presentment for payment, demand, notice of non- payment, notice
of protest or protest of this Note, diligence in collection or bringing suit,
and hereby consent to any and all extensions of time, renewals, waivers, or
modifications that may be granted by Standard Federal with respect to payment
or any other provisions of this Note, and to the release of any collateral or
any part thereof, with or without substitution. The liability of the Borrower
shall be absolute and unconditional, without regard to the liability of any
other party hereto.
This Note is executed pursuant to the Loan Agreement, is secured by a
Security Agreement, dated September 15, 1994, by a Security Agreement of even
date herewith, and by two Open-End
-4-
5
Commercial Mortgages and Assignments of Lease and Rentals, dated June 29, 1993,
as amended September 15, 1994, February 6, 1995, February 16, 1995 and May 5,
1995 and as further amended of even date herewith, and is supported by a
Guaranty executed by McClain Industries, Inc., a Michigan corporation, dated
May 5, 1995. Reference is hereby made to such documents for additional terms
relating to the transaction giving rise to this Note, the security given for
this Note and additional terms and conditions under which this Note matures,
may be accelerated or prepaid.
Advances hereunder may be requested by telephone, in writing or in any
other manner acceptable to Standard Federal. Borrower understands and agrees
that any telephone conversation with Standard Federal may be recorded for
accuracy.
WAIVER OF JURY TRIAL. THE BORROWER AND STANDARD FEDERAL, AFTER
CONSULTING OR HAVING HAD THE OPPORTUNITY TO CONSULT WITH COUNSEL, KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT EITHER OF THEM MAY HAVE TO A
TRIAL BY JURY IN ANY LITIGATION BASED UPON OR ARISING OUT OF THIS NOTE OR ANY
RELATED INSTRUMENT OR AGREEMENT, OR ANY OF THE TRANSACTIONS CONTEMPLATED
THEREBY, OR ANY COURSE OF CONDUCT, DEALING, STATEMENTS (WHETHER ORAL OR
WRITTEN), OR ACTIONS OF EITHER OF THEM. THIS WAIVER SHALL NOT IN ANY WAY
AFFECT STANDARD FEDERAL'S ABILITY TO PURSUE REMEDIES PURSUANT TO ANY CONFESSION
OF JUDGMENT OR COGNOVIT PROVISION CONTAINED HEREIN OR IN ANY RELATED INSTRUMENT
OR AGREEMENT. NEITHER THE BORROWER NOR STANDARD FEDERAL SHALL SEEK TO
CONSOLIDATE, BY COUNTERCLAIM OR OTHERWISE, ANY ACTION IN WHICH A JURY TRIAL HAS
BEEN WAIVED WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT
BEEN WAIVED. THESE PROVISIONS SHALL NOT BE DEEMED TO HAVE BEEN MODIFIED IN ANY
RESPECT OR RELINQUISHED BY EITHER THE BORROWER OR STANDARD FEDERAL EXCEPT BY A
WRITTEN INSTRUMENT EXECUTED BY BOTH OF THEM.
Confession of Judgment: The Borrower irrevocably authorizes any
attorney-at-law to appear for the Borrower in any court of record in Crawford
County, Ohio (which the Borrower acknowledges to be the place where this note
was made), or any other state or jurisdiction wherein the Borrower may then
reside, to (i) waive the issuing and service of process, (ii) confess judgment
against the Borrower in favor of the holder of this Note for the amount then
due, together with costs of suit, (iii) release all errors, and (iv) waive all
rights of appeal. The Borrower consents to the jurisdiction and venue of that
court.
The undersigned has executed this Note in Galion, Ohio, as of the date
and year first above written. This Note shall be governed by and construed in
accordance with the law of the State of Ohio.
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 A COURT CAN BE USED TO COLLECT
FROM YOU REGARDLESS OF ANY CLAIMS YOU
-5-
6
MAY HAVE AGAINST THE CREDITOR WHETHER FOR RETURNED GOODS, FAULTY GOODS, FAILURE
ON THE CREDITOR'S PART TO COMPLY WITH ANY AGREEMENT WITH THE BORROWER, OR ANY
OTHER CAUSE.
Each of the undersigned Borrowers acknowledge, represent and agree
that they will all be using the funds representing the proceeds of the loan
evidenced hereby and that they will all be receiving a substantial portion of
such funds. At the request of the undersigned Borrowers, Standard Federal has
structured the credit facility evidenced by this Note in order to allow all of
the undersigned Borrowers access to the facility, and each will derive a
substantial benefit therefrom. The Borrowers hereby appoint Galion Holding
Company as the disbursing agent for all of them to make requests for
disbursements hereunder, to receive the proceeds of all advances hereunder and
to disburse those proceeds to each of the undersigned as the undersigned may
deem necessary or convenient.
Witnesses: BORROWER:
GALION HOLDING COMPANY, a Michigan
corporation
___________________________ By:________________________________
E. James Zabinski
Vice President/Treasurer
Taxpayer Identification Number:
38-3060196
GALION SOLID WASTE EQUIPMENT, INC.,
a Michigan corporation
___________________________ By:_______________________________
E. James Zabinski
Treasurer
Taxpayer Identification Number:
__________________________________
GALION DUMP BODIES, INC., a Michigan
corporation
___________________________ By:_______________________________
Carl Jaworski
Treasurer
Taxpayer Identification Number:
__________________________________
-6-
7
M.E.G. EQUIPMENT SALES OF FLORIDA,
INC., a Florida corporation
___________________________ By:________________________________
E. James Zabinski
Treasurer
Taxpayer Identification Number:
59-3241829
Address: 6200 Elmridge
Sterling Heights, MI 48318
Standard Federal Bank, a
federal savings bank
2600 West Big Beaver Road
Troy, Michigan 48084
-7-