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EXHIBIT 10.29
LOAN AGREEMENT
BETWEEN
STANDARD FEDERAL BANK
AND
MCCLAIN INDUSTRIES, INC., MCCLAIN OF GEORGIA, INC.,
SHELBY STEEL PROCESSING COMPANY,
MCCLAIN TUBE COMPANY D/B/A QUALITY TUBE AND
MCCLAIN INDUSTRIES OF OHIO, INC.
THIS AGREEMENT made and delivered this 6th day of February , 1995, by and
between McClain Industries, Inc., a Michigan corporation, McClain of Georgia,
Inc., a Georgia corporation, Shelby Steel Processing Company, a Michigan
corporation, McClain Tube Company d/b/a Quality Tube, a Michigan corporation,
and McClain Industries of Ohio, Inc., a Michigan corporation (collectively,
"Borrower"), whose address/principal office is 6200 Elmridge, Sterling Heights,
Michigan 48310, and Standard Federal Bank, a federal savings bank ("Standard
Federal"), whose address is 2600 West Big Beaver Road, Troy, Michigan 48084.
RECITALS:
A. Borrower has requested a term loan in the principal amount of
$2,000,000.00 and an equipment purchase credit facility in the total principal
amount of $950,000.00.
B. Standard Federal is willing to supply such financing subject to the
terms and conditions set forth in this Agreement.
NOW, THEREFORE, in reliance upon the representations herein provided and
in consideration of the premises and the mutual promises herein contained, the
Borrower and Standard Federal hereby agree as follows:
SECTION 1. TERM LOAN
1.1 Standard Federal hereby extends to the Borrower a term loan (the
"Term Loan") in the principal amount of Two Million and 00/100 Dollars
($2,000,000.00).
1A.2 The Term Loan herein extended shall be subject to the terms and
conditions of a Promissory Note (Term Loan) of even date herewith and all
renewals and amendments thereof (the "Term Note"). The Term Loan shall be
payable and shall bear interest as set forth in the Term Note. This Loan
Agreement and the Term Note are of equal materiality and shall each be
construed in such manner as to give full force and effect to all provisions of
both documents.
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SECTION 1A. EQUIPMENT PURCHASE LINES OF CREDIT
1A.1 First Line of Credit
1A.1(a) Standard Federal hereby extends to the Borrower a revolving line of
credit (the "First Line of Credit") which shall not exceed at any one time
outstanding the principal amount of Nine Hundred Fifty Thousand and 00/100
Dollars ($950,000.00) (the "First Credit Limit").
1A.1(b) The First Line of Credit herein extended shall be subject to the
terms and conditions of a Promissory Note (Line of Credit with Term Provisions)
(First Line of Credit), in the principal amount of Nine Hundred Fifty Thousand
and 00/100 Dollars ($950,000.00), of even date herewith and all renewals and
amendments thereof (the "First Line of Credit Note"). This Loan Agreement and
the First Line of Credit Note are of equal materiality and shall each be
construed in such manner as to give full force and effect to all provisions of
both documents.
1A.1(c) If at any time the amount outstanding under the First Line of Credit
shall exceed the First Credit Limit, Borrower shall, on demand, forthwith pay
to Standard Federal such sums as are necessary to reduce the amount outstanding
to an amount not greater than the First Credit Limit.
1A.1(d) Each advance under the First Line of Credit shall be used solely for
the purchase of equipment. Each advance shall be in an amount not in excess of
Eighty Five percent (85.0%) of the cost to the Borrower of the equipment to be
purchased with such advance. Standard Federal shall make advances under the
First Line of Credit only upon receipt by it in a form satisfactory to it of a
true and authentic copy of the dealer invoice for the equipment purchased or to
be purchased with the advance.
1A.1(e) Standard Federal shall, from time to time to and until August 1,
1995 (the "First Term Date"), make advances to Borrower under the First Line of
Credit upon request therefor by Borrower, subject to the other conditions
contained in the First Line of Credit Note.
1A.1(f) Accrued interest shall be payable under the First Line of Credit
Note on the 1st day of each month beginning on March 1, 1995 through and
including the First Term Date. From and after the First Term Date, Standard
Federal shall make no further advances under the First Line of Credit and the
outstanding principal balance thereunder as of the First Term Date, with
interest, shall be repaid in consecutive monthly payments of principal, each in
the amount determined by dividing the outstanding principal balance under the
First Line of Credit Note as of the First Term Date by 78, plus interest
accrued to the due date of each such payment, commencing on September 1, 1995
and continuing on the same day of
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each consecutive month thereafter and a final payment on February 1, 2002 in an
amount equal to the then unpaid principal and accrued interest under the First
Line of Credit Note.
1A.2 Second Line of Credit
1A.2(a) Standard Federal hereby extends to the Borrower an additional
revolving line of credit (the "Second Line of Credit") (the First Line of
Credit and the Second Line of Credit are sometimes herein collectively referred
to as the "Line of Credit") which shall not exceed at any one time outstanding
the principal amount of Nine Hundred Fifty Thousand and 00/100 Dollars
($950,000.00), less the principal outstanding under the First Line of Credit as
of the First Term Date (the "Second Credit Limit").
1A.2(b) The Second Line of Credit herein extended shall be subject to the
terms and conditions of a Promissory Note (Line of Credit with Term Provisions)
(Second Line of Credit), in the principal amount of Nine Hundred Fifty Thousand
and 00/100 Dollars ($950,000.00), of even date herewith and all renewals and
amendments thereof (the "Second Line of Credit Note") (the First Line of Credit
Note and the Second Line of Credit Note are sometimes herein collectively
referred to as the "Line of Credit Notes"). This Loan Agreement and the Second
Line of Credit Note are of equal materiality and shall each be construed in
such manner as to give full force and effect to all provisions of both
documents.
1A.2(c) If at any time the amount outstanding under the Second Line of
Credit shall exceed the Second Credit Limit, Borrower shall, on demand,
forthwith pay to Standard Federal such sums as are necessary to reduce the
amount outstanding to an amount not greater than the Second Credit Limit.
1A.2(d) Each advance under the Second Line of Credit shall be used solely
for the purchase of equipment. Each advance shall be in an amount not in
excess of Eighty Five percent (85.0%) of the cost to the Borrower of the
equipment to be purchased with such advance. Standard Federal shall make
advances under the Second Line of Credit only upon receipt by it in a form
satisfactory to it of a true and authentic copy of the dealer invoice for the
equipment purchased or to be purchased with the advance.
1A.2(e) Standard Federal shall, from time to time after the First Term Date
and to and until February 1, 1996 (the "Second Term Date"), make advances to
Borrower under the Second Line of Credit upon request therefor by Borrower,
subject to the other conditions contained in the Second Line of Credit Note.
1A.2(f) Accrued interest shall be payable under the Second Line of Credit
Note on the 1st day of each month beginning on September 1, 1995 through and
including the Second Term Date. From and after
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the Second Term Date, Standard Federal shall make no further advances under the
Second Line of Credit and the outstanding principal balance thereunder as of
the Second Term Date, with interest, shall be repaid in consecutive monthly
payments of principal, each in the amount determined by dividing the
outstanding principal balance under the Second Line of Credit Note as of the
Second Term Date by 78, plus interest accrued to the due date of each such
payment, commencing on March 1, 1996 and continuing on the same day of each
consecutive month thereafter and a final payment on August 1, 2002 in an amount
equal to the then unpaid principal and accrued interest under the Second Line
of Credit Note.
SECTION 1B. CONDITIONS TO MAKING LOANS
1B.1 The following are conditions precedent to the obligation of Standard
to make the Term Loan and the Line of Credit hereunder:
1B.1(a) The Borrower shall have delivered or shall have had delivered to
Standard Federal, in form and substance satisfactory to Standard Federal and
its counsel, each of the following:
a. A duly executed copy of this Loan Agreement;
b. A duly executed copy of the Line of Credit Notes, the Term Note and
such other loan documents as Standard Federal shall require to
evidence and document the Line of Credit and the Term Loan;
c. Such credit applications, financial statements, authorizations, and
such information concerning the Borrower and its business,
operations, and condition (financial and otherwise) as Standard
Federal may reasonably request;
d. Certified copies of resolutions of the Boards of Directors of the
Borrower approving the execution and delivery of the loan documents
required hereunder;
e. A certificate of the Secretary or an Assistant Secretary of the
Borrower certifying the names and true signatures of the officers of
the Borrower authorized to sign the loan documents required
hereunder;
f. Copies of each of the Articles of Incorporation of the Borrower,
certified by the Secretary of State of Michigan as of a recent date;
g. Copies of each of the Articles of Incorporation and Bylaws of the
Borrower, certified by the Secretary or an Assistant Secretary of
the Borrower as of the date of this Agreement as being accurate and
complete;
h. Certificate of good standing of the Borrower from the Secretary of
State of Michigan as of a recent date;
i. Certificates of authority and good standing of the Borrower for each
state in which the Borrower is qualified to do business;
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j. A certificate of compliance of the chief financial officer or
treasurer of the Borrower in form satisfactory to Standard Federal
dated as of the date of this Agreement;
k. Such certificates, binders or other evidence of all insurance
required of the Borrower under this Loan Agreement as Standard
Federal may reasonably require; and
l. Acknowledgement copies of all UCC-1 financing statements filed with
respect to the Collateral accompanied by a search report showing
such financing statements as duly filed and evidencing that the
security interest of Standard Federal in the Collateral is prior to
all other security interests of record.
1B.1(b) All acts and conditions (including, without limitation, the
obtaining of any necessary regulatory approvals and the making of any required
filings, recordings, or registrations) required to be done and performed and to
have happened precedent to the execution, delivery, and performance of the loan
documents required hereunder and to constitute the same legal, valid, and
binding obligations, enforceable in accordance with their respective terms,
shall have been done and performed and shall have happened in due and strict
compliance with all applicable laws.
1B.1(c) All documentation, including, without limitation, documentation for
corporate and legal proceedings in connection with the transactions
contemplated by the Loan Documents shall be satisfactory in form and substance
to Standard Federal and its counsel and all fees and charges, including
recording and filing fees, shall have been paid as required hereunder.
1B.2 As conditions precedent to Standard Federal's obligation to make the
Term Loan and to fund any request for an advance under the Line of Credit, at
and as of the date of the funding thereof;
a. The representations and warranties of the Borrower contained in the
Loan Documents shall be accurate and complete in all respects as if
made on and as of such date;
b. The Borrower shall have paid all fees and expenses, including any
recording fees and charges, required hereunder;
c. There shall not have occurred an Event of Default or any event which
with the passage of time of the giving of notice or both would
constitute an Event of Default; and
d. Following the making of such loan or advance, the aggregate
principal amount outstanding will not exceed the limitations
described in Sections 1 and 1A.
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SECTION 2. REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to Standard Federal that as of
the date of acceptance of this Agreement, as of the time any advance is to be
made hereunder and, unless expressly provided otherwise herein or agreed to by
a writing signed by Standard Federal, at all times any amounts are outstanding
hereunder:
2.1 The Borrower and each of its subsidiaries, if any, are corporations
duly organized, validly existing and in good standing under the laws of the
state of their incorporation; the Borrower and each of its subsidiaries (if
any) have the legal power and authority to own their properties and assets and
to carry out their business as now being conducted and each is qualified to do
business in the state of its incorporation and in every jurisdiction where the
nature of its business or the property owned or operated by it makes such
qualification necessary and is otherwise in compliance with all applicable
laws, statutes, regulations, rules and requirements of any federal, state,
judicial, regulatory or administrative body having jurisdiction of the Borrower
or any of its assets; the Borrower has the legal power and authority to execute
and perform this Agreement, to borrow money in accordance with its terms, to
execute and deliver the Line of Credit Notes and the Term Note and other
documents contemplated hereby, to grant to Standard Federal mortgages and
security interests in the Collateral, as hereby contemplated, and to do any and
all other things required of it hereunder; and this Agreement, the Line of
Credit Notes, the Term Note and all other documents contemplated hereby, when
executed by the Borrower's duly authorized officers will constitute its valid
and binding legal obligations enforceable in accordance with their terms.
2.2 The execution, delivery and performance of this Agreement, the
borrowings hereunder and the execution and delivery of the Line of Credit Notes
and the Term Note and other documents contemplated hereby (a) have been duly
authorized by all requisite corporate action, (b) do not require governmental
approval or the approval of any person not a party to this Agreement, (c) will
not result (with or without notice and/or the passage of time) in any conflict
with or breach or violation of or default under, any provision of law, the
Articles of Incorporation or Bylaws of the Borrower or any indenture, agreement
or other instrument to which the Borrower is a party, or by which it or any of
its properties or assets are bound, and (d) will not result in the creation or
imposition of any lien, charge or encumbrance of any nature whatsoever upon any
of the properties or assets of the Borrower other than in favor of Standard
Federal and as contemplated hereby.
2.3 There is not pending or, to the best of the knowledge of the
Borrower, threatened, any litigation, proceeding or governmental investigation
which could materially and adversely
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affect the business of the Borrower or its subsidiaries, if any, or its ability
to perform its covenants hereunder.
2.4 Borrower has good and marketable title to its properties given as
security as herein described, and, except for liens in favor of Standard
Federal, liens for taxes not delinquent or being contested in good faith and
liens created in connection with worker's compensation, unemployment insurance
and social security, or to secure the performance of bids, tenders or contracts
(other than for the repayment of borrowed money), leases, statutory
obligations, surety and appeal bonds, and other obligations of like nature made
in the ordinary course of business, none of the Borrower's or any of its
subsidiaries' (if any) assets are subject to any mortgage, pledge, lien,
security interest, or other encumbrance of any kind or character except as have
been disclosed to Standard Federal in writing. The Borrower owns all material
patents, trademarks, service marks, trade names, copyrights, licenses and other
rights, free from any material restrictions, that are necessary for the
operation of its business as presently conducted.
2.5 All financial data which has been or shall hereafter be furnished to
Standard Federal for the purposes of, or in connection with, this Agreement,
including particularly, but without limitation, the audited consolidated
financial statements of McClain Industries, Inc. as of September 30, 1993,
prepared by Rehmann Robson & Co., and the Form 10-Q's filed with the Securities
and Exchange Commission by McClain Industries, Inc. pursuant to Section 13 or
15(d) of the Securities Exchange Act of 1934 for the quarterly periods ended
December 31, 1993, March 31, 1994 and June 30, 1994, and the transactions
contemplated hereby has been and/or shall be prepared in accordance with
generally accepted accounting principles consistently applied, and does or will
fairly present the financial condition of the Borrower as of the dates, and the
results of its operations for the periods, for which the same is furnished to
Standard Federal.
2.6 There has been no material adverse change in the business,
properties or condition (financial or otherwise) of the Borrower or its
subsidiaries (if any) since the date of the latest financial statements
provided to Standard Federal and there are no material debts, liabilities or
obligations (absolute or contingent) of the Borrower except as reflected in
such financial statements (or in the notes thereto).
2.7 The Borrower is not in default in the repayment of any indebtedness
for money borrowed by it nor has there occurred any event which, with or
without notice or the passage of time or both, would constitute a default by
the Borrower under any agreement or instrument pertaining to any indebtedness
for money borrowed by it.
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2.8 Borrower has filed all reports and tax returns required by
governmental authority to be filed by it prior to the date hereof and Borrower
has received no notice that such reports or returns have been rejected,
declared insufficient, or otherwise challenged by such governmental authority.
2.9 The principal officers of the Borrower ("Principal Officers") are as
follows:
McClain Industries, Inc.:
Chairman of the Board Kenneth D. McClain
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Vice President Robert W. McClain
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Treasurer E. James Zabinski
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Secretary Carl L. Jaworski
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McClain of Georgia, Inc.:
President Kenneth D. McClain
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Vice President Robert W. McClain
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Secretary Carl L. Jaworski
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Shelby Steel Processing Company:
President Robert W. McClain
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Vice President Kenneth D. McClain
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Secretary Carl L. Jaworski
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McClain Tube Company d/b/a Quality Tube:
President Kenneth D. McClain
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Treasurer E. James Zabinski
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Secretary Carl L. Jaworski
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McClain Industries of Ohio, Inc.:
President Kenneth D. McClain
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Vice President Robert W. McClain
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Treasurer E. James Zabinski
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Secretary Margaret Bruce
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2.10 McClain of Georgia, Inc., a Georgia corporation, Shelby Steel
Processing Company, a Michigan corporation, McClain Tube Company d/b/a Quality
Tube, a Michigan corporation, McClain Industries of Ohio, Inc., a Michigan
corporation, and Southfield Quality Leasing Company, a Michigan corporation,
are each wholly-owned subsidiaries of McClain Industries, Inc., a Michigan
corporation, and have no subsidiaries. Prime Leasing Corporation, a Michigan
corporation, and Galion Holding Company, a Michigan corporation, are also
wholly-owned subsidiaries of McClain Industries, Inc. McClain Industries, Inc.
also holds one-third of the outstanding capital stock of M.E.G. Equipment
Sales, Inc., Michigan corporation, of which M.E.G. Equipment Sales of Florida,
Inc., a Florida corporation, is a wholly-owned subsidiary. McClain Industries,
Inc., as of the date of this Loan Agreement, owns no other subsidiaries.
2.11 None of the proceeds of the Line of Credit or the Term Loan will be
used for the purpose of purchasing or carrying any "margin stock" as defined in
Regulation U or G of the Board of Governors of the Federal Reserve System (12
C.F.R. Part 221 and 207), or for the purpose of reducing or retiring any
indebtedness which was originally incurred to purchase or carry a margin stock
or for any other purpose which might constitute this transaction a "purpose
credit" within the meaning of such Regulation U or G. Borrower is not engaged
in the business of extending credit for the purpose of purchasing or carrying
margin stocks. Neither Borrower nor any person acting on behalf of Borrower
has taken or will take any action which might cause the Line of Credit Notes
and the Term Note or any of the other documents executed in conjunction
therewith, including this Agreement, to violate Regulations U or G or any other
regulations of the Board of Governors of the Federal Reserve System or to
violate Section 7 of the Securities Exchange Act of 1934 or any rule or
regulation thereunder, in each case as now in effect or as the same may
hereinafter be in effect. Borrower and its subsidiaries, if any, own no
"margin stock" except for that described in the financial statements provided
to Standard Federal and, as of the date hereof, the aggregate value of all
"margin stock" owned by Borrower and its subsidiaries, if any, does not exceed
25% of all of the value of all of Borrower's and its subsidiaries', if any,
assets.
2.12 Except as disclosed in the environmental reports listed in attached
Schedule 2.12, copies of which the Borrower has furnished to Standard Federal,
neither the Borrower nor, to the best of Borrower's knowledge after due
inquiry, any other person or entity, has caused or permitted any waste, oil,
pesticides, or any substance or material of any kind which is currently known
or suspected to be toxic or hazardous, including but not limited to any
substance defined as a "Hazardous Waste" in Title 40, Part 261 of the Code of
Federal Regulations, (hereinafter referred to as "Hazardous Material") to be
discharged, dispersed, released, disposed of, or allowed to escape on, under or
at any property
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owned, occupied or operated by any Borrower in violation of any Hazardous
Materials Laws (as hereinafter defined), nor has any property owned, occupied
or operated by any Borrower, or any part thereof, ever been used by the
Borrower or, to the best of Borrower's knowledge after due inquiry, any prior
owner or any other person, as a dump, storage or disposal site for any
Hazardous Material, nor has there occurred any other violation of the federal
Comprehensive Environmental Response, Compensation and Liability Act of 1980,
42 U.S.C. Section 9601 et seq., or any other federal, state or local statute,
law, ordinance, code, rule, regulation, order or decree regulating, relating to
or imposing liability or standards of conduct concerning, any Hazardous
Material ("Hazardous Materials Laws") with respect to any property owned,
occupied or operated by any Borrower. No asbestos or asbestos-containing
materials have been installed, used, incorporated into, or disposed of on any
property owned, occupied or operated by any Borrower. No polychlorinated
biphenyls ("PCBs") are located on or in any property owned, occupied or
operated by any Borrower, in the form of electrical transformers, fluorescent
light fixtures with ballasts, cooling oils, or any other device or form. All
underground storage tanks located on any property owned, occupied or operated
by any Borrower have been installed and are being operated in full compliance
with all applicable Hazardous Materials Laws. The Borrower: (a) has not
received any notice of any release, threatened release, escape, seepage,
leakage, spillage, discharge or emission of any Hazardous Materials in, under
or upon any property owned, occupied or operated by any Borrower or of any
violation of any Hazardous Materials Law, and (2) does not know of any basis
for any such notice or violation.
2.13 No "reportable event," as defined in the Employee Retirement Income
Security Act of 1974 and any amendments thereto ("ERISA"), has occurred and is
continuing with respect to any employee pension and/or profit sharing benefit
plan maintained by or on behalf of the Borrower for the benefit of any of its
employees. The Pension Benefit Guaranty Corporation ("PBGC") has not
instituted proceedings to terminate any such employee pension and/or profit
sharing plan or to appoint a trustee to administer such plan. The Borrower
has maintained and funded and caused each of its subsidiaries, if any, to
maintain and fund all employee pension and/or profit sharing plans in
accordance with their terms and with all applicable provisions of ERISA.
Neither the Borrower nor any duly appointed administrator of any employee
pension and/or profit sharing plan: (a) has incurred any liability to PBGC with
respect to any such plan other than for premiums not yet due or payable, (b)
has instituted or intends to institute proceedings to terminate any such plan
under Section 4042 or 4041A of Erisa, or (c) has withdrawn from any
Multi-Employer Pension Plan (as that term is defined in Section 3(37) of
ERISA).
2.14 There is no material fact that the Borrower has not disclosed to
Standard Federal which could have a material adverse
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effect on the properties, business, prospects or condition (financial or
otherwise) of the Borrower or any of its subsidiaries. For purposes of this
Section 2.14, a "material adverse effect" means any circumstance or event which
(a) could have any adverse effect whatsoever upon the validity, performance or
enforceability of any material provision of the Loan Documents, (b) is or might
be material and adverse to the financial condition or business operations of
the Borrower or any subsidiary, (c) could impair the ability of the Borrower to
fulfill its obligations under the Loan Documents, or (d) causes an Event of
Default or any event which, with notice or lapse of time or both, could become
an Event of Default. Neither the financial statements referred to in Section
2.5 hereof, nor any certificate or statement delivered herewith or heretofore
by Borrower in connection with the negotiations of this Loan Agreement,
contains any untrue statement of a material fact or omits to state any material
fact necessary to keep the statements contained herein or therein, under the
circumstances in which they were made, from being misleading.
2.15 Each request for an advance under the Line of Credit shall
constitute, without the necessity of specifically containing a written
statement, a representation and warranty by Borrower that no Event of Default
exists and that all representations and warranties contained in this Section 2
or in any mortgage, guaranty, security agreement or other document given to
secure or relating to the Line of Credit Notes or this Agreement are true and
correct at and as of the time the advance is to be made.
SECTION 3. AFFIRMATIVE COVENANTS OF BORROWER
3.1 Prior to Standard Federal's disbursement of any advances under the
Line of Credit, or closing of the Term Loan, the Borrower shall; (a) furnish to
Standard Federal, if Standard Federal so requires, certified copies of its
Articles of Incorporation, Bylaws and Certificate of Good Standing, which
Articles of Incorporation and Good Standing Certificate are to be certified by
the appropriate official of the Borrower's state of incorporation; (b) furnish
to Standard Federal if Standard Federal so requires a statement of the Borrower
and the chief financial officer of Borrower certifying that they are unaware of
the occurrence of an Event of Default or of any event which with notice and/or
the passage of time could become an Event of Default; and (c) furnish Standard
Federal such other instruments, documents, opinions or certificates as Standard
Federal or its counsel shall reasonably require. All actions, proceedings,
instruments and documents required or requested hereunder shall be satisfactory
to and approved by Standard Federal and/or its counsel prior to the
disbursement of advances under the Line of Credit or closing of the Term Loan.
3.2 From the date hereof until all amounts owing under the Term Loan and
the Line of Credit are paid in full and all
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obligations under the Line of Credit Notes and the Term Note, this Agreement
and all other documents executed in connection with the Line of Credit and the
Term Loan are fully paid, performed and satisfied and so long as Standard
Federal has any commitment to make advances hereunder, the Borrower covenants
and agrees it will:
3.2(a) Furnish to Standard Federal as soon as available and, in any event,
within 90 days after the close of each fiscal year of the Borrower, or, in the
event the Borrower obtains an extension of the filing date from the Securities
Exchange Commission, by such extended date, detailed financial statements of
the Borrower as of the close of such fiscal year, containing a consolidated
balance sheet of the Borrower and its subsidiaries, if any, and statements of
income and cash flows of the Borrower and its subsidiaries, if any, for such
fiscal year prepared in accordance with generally accepted accounting
principles and in a manner consistent with prior such statements containing an
analysis of sources and uses of funds and such other comments and financial
details as are usually included in similar reports. Such statements shall be
accompanied by an opinion thereon (which shall not be qualified by reason of
any limitation imposed by Borrower) of independent certified public accountants
selected by Borrower and acceptable to Standard Federal as to the fairness of
the statements included in the report and to the effect that the examination of
such accounts in connection with such financial statements has been made in
accordance with generally accepted auditing standards and, accordingly,
includes such tests of the accounting records and such other auditing
procedures as were considered necessary in the circumstances.
3.2(b) Furnish to Standard Federal as soon as available and, in any event,
within 45 days after the close of each quarter of each fiscal year, or, in the
event the Borrower obtains an extension of the filing date from the Securities
Exchange Commission, by such extended date, detailed financial statements of
the Borrower as of the close of such fiscal period containing a consolidated
balance sheet of the Borrower and its subsidiaries, if any, and statements of
income and cash flows of the Borrower and its subsidiaries, if any, for such
fiscal period and for the portion of the fiscal year ending with such period in
reasonable detail and form acceptable to Standard Federal and certified by the
chief financial officer of the Borrower as being true and correct and as having
been prepared in accordance with generally accepted accounting principles
consistently applied, subject to year-end adjustments, if any.
3.2(c) Furnish to Standard Federal, promptly after sending, filing or
publishing the same, copies of all proxy statements, financial statements and
reports that the Borrower sends to its public shareholders and copies of all
regular, periodic and special reports and all registration statements and
amendments thereto that the Borrower files with the Securities and Exchange
Commission or any other governmental authority and any Exchange, and copies of
all press releases issued by Borrower.
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3.2(d) Promptly inform Standard Federal of the occurrence of any Event of
Default or of any event (including without limitation any pending or threatened
litigation or other proceedings before any governmental body or agency) which
could have a materially adverse effect upon the Borrower's business,
properties, financial condition or ability to comply with its obligations
hereunder or under the Line of Credit Notes or the Term Note.
3.2(e) Furnish such other information as Standard Federal may reasonably
request and permit Standard Federal and its agents, attorneys and employees to
inspect all of the books, records and properties of the Borrower at any
reasonable time.
3.2(f) Maintain adequate insurance with responsible companies in such
amounts and against such risks and hazards as are normally insured against by
similar businesses, and provide Standard Federal evidence of such insurance
upon request; policies of casualty insurance shall contain a customary
mortgagee clause requiring payment of proceeds to Borrower and to Standard
Federal as their interests may appear and all other insurance shall contain a
customary loss payable clause requiring payment of proceeds to Borrower and to
Standard Federal as their interests may appear and all insurance policies shall
provide that no cancellation, reduction in amount, change in coverage or
expiration thereof shall be effective until at least 30 days prior written
notice has been given by the insurer to Standard Federal; and pay when due all
taxes, assessments, fees and similar charges of every kind and nature lawfully
assessed upon the Borrower and/or its property, except to the extent being
contested in good faith; and in the event the Borrower fails to maintain such
insurance or to pay promptly any taxes or charges when due, then and in such
event Standard Federal, in its sole discretion, may, but shall not be required
to, pay the same and any amounts expended by Standard Federal for such purpose
shall become a part of the Line of Credit and shall bear interest at the rate
applicable to the outstanding principal balance owing under the Line of Credit
Notes.
3.2(g) Preserve and keep in full force and effect its own and its material,
operating subsidiaries' (if any) corporate existence in good standing and
maintain voting control in its present controlling shareholder(s); keep current
all filings of assumed name certificates for each name under which and each
county in which the Borrower does business and promptly inform Standard Federal
of any assumed names under which it does business which were not used by the
Borrower on the date of this Agreement; continue to conduct and operate its
business substantially as presently conducted and operated in accordance with
all applicable laws and regulations; maintain and protect all franchises and
trade names and preserve all the remainder of its property used or useful in
the conduct of its business and keep the same in good repair and condition; pay
its indebtedness and obligations when due under normal terms and maintain
proper books of record and account, and;
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otherwise remain in compliance with all applicable laws, statutes, regulations,
rules and requirements of any federal, state, judicial, regulatory or
administrative body having jurisdiction of the Borrower or any of its assets,
except to the extent noncompliance is immaterial and would not have a material
adverse effect on Borrower.
3.2(h) Maintain on a consolidated statement basis "Tangible Net Worth" of
not less than the amounts specified below as of the end of each fiscal quarter
during the fiscal years ending on the dates specified below:
Minimum
"Tangible
Fiscal Year-End Net Worth"
--------------- ----------
09/30/94 $16,500,000
09/30/95 $18,000,000
09/30/96 $19,000,000
"Tangible Net Worth" shall mean total assets less trademarks, franchises,
copyrights, licenses, goodwill, similar intangible assets and all liabilities
(excluding debt subordinated to Standard Federal upon terms and conditions
acceptable to Standard Federal) of the Borrower.
3.2(k) Maintain on a consolidated statement basis the ratio of "Current
Assets" to "Current Liabilities" of not less than the ratios specified below as
of the end of each fiscal quarter during the fiscal years ending on the dates
specified below:
Fiscal Year-End Minimum Current Ratio
--------------- ---------------------
09/30/94 2.25 to 1.00
09/30/95 2.30 to 1.00
09/30/96 2.35 to 1.00
"Current Assets" shall include all assets considered current in accordance
with generally accepted accounting principles as in effect as of the date of
this Agreement, consistently applied, less all amounts due Borrower from any of
its directors, officers, employees, its shareholders, or any company controlled
by any of its shareholders. "Current Liabilities" shall include all
liabilities considered current in accordance with generally accepted accounting
principles as in effect as of the date of this Agreement, consistently applied,
except that portion of the Line of Credit payable within a twelve-month period.
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3.2(l) On a consolidated statement basis maintain the ratio of
"Liabilities" to "Tangible Net Worth" of not more than the ratios specified
below as of the end of each fiscal quarter during the fiscal years ending on
the dates specified below:
Fiscal Year-End Maximum Liabilities-to-Worth Ratio
--------------- ----------------------------------
09/30/94 2.75 to 1.00
09/30/95 2.65 to 1.00
09/30/96 2.55 to 1.00
"Liabilities" shall mean all liabilities of the Borrower and its
consolidated subsidiaries, if any, as defined in accordance with generally
accepted accounting principles as in effect as of the date of this Agreement,
consistently applied.
"Tangible Net Worth" shall mean total assets less trademarks, franchises,
copyrights, licenses, goodwill, similar intangible assets and all liabilities
(excluding debt subordinated to Standard Federal upon terms and conditions
acceptable to Standard Federal) of the Borrower.
3.2(m) On a consolidated statement basis, maintain an Interest Coverage
Ratio of not less than 2.00 to 1.00 for each fiscal year. The "Interest
Coverage Ratio" shall be defined as the ratio of the Borrower's net income,
plus interest charges, income and other taxes and amortization and depreciation
for the fiscal year to all interest expense of the Borrower for such fiscal
year, as determined in accordance with generally accepted accounting
principles.
3.2(n) On a consolidated statement basis, maintain a Fixed Charge Coverage
Ratio of not less than 1.75 to 1.00 for each fiscal year. The "Fixed Charge
Coverage Ratio" for each fiscal year shall be defined as the ratio of the
Borrower's net income, plus amortization and depreciation for the fiscal year,
to current maturities of long term debt, as determined in accordance with
generally accepted accounting principles.
3.2(o) At all times meet and cause each of its subsidiaries, if any, to
meet the minimum funding requirements of ERISA with respect to all employee
pension and/or profit sharing plans subject to ERISA and, with respect to any
such employee benefit plan, promptly notify Standard Federal in writing of any
reportable event, as defined in ERISA, or any proposed termination (voluntary
or otherwise) which could give rise to material termination liability within
the meaning of ERISA Section 4062.
3.3 The Borrower will not make any change in its accounting policies or
financial reporting practices and procedures, except
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changes in accounting policies which are required or permitted by generally
accepted accounting principles and changes in financial reporting practices and
procedures which are required or permitted by generally accepted accounting
principles.
3.4 The Borrower shall use the monies loaned hereunder only for the
purpose(s) set forth in the preamble hereto.
3.5 The Borrower shall allow Standard Federal's participant in the Line
of Credit and Term Loan and staff or independent accountants or auditors
selected by Standard Federal's participant to conduct a full audit of the
Borrower's financial statements and its books and records twice during the
first year of the term of the Line of Credit and Term Loan and once in each of
the second and third years of the term of the Line of Credit and Term Loan.
Standard Federal's participant shall schedule such audits during normal
business hours of the Borrower and shall provide Borrower not less than two (2)
business days notice of the commencement of each audit. The Borrower shall
make adequate facilities available on its premises at Borrower's expense to
enable Standard Federal's participant to conduct the audits herein described
and shall make available all of its books, records and other documents and
information as may be reasonably requested to facilitate the audits. The
Borrower agrees to pay to Standard Federal's participant an audit fee of
$3,000.00 plus travel expenses for each audit so conducted by the participant.
SECTION 4. NEGATIVE COVENANTS
4.1 From the date hereof until all amounts owing under the Line of
Credit are paid in full and all obligations under the Line of Credit Notes and
the Term Note, this Agreement and all other documents executed in connection
with the Line of Credit and the Term Loan are fully paid, performed and
satisfied and so long as Standard Federal has any commitment to make advances
hereunder, the Borrower covenants and agrees that it will not do and will not
permit any subsidiary, if any, to do any of the following without the prior
written approval of Standard Federal:
4.1(a) Create, incur, assume or permit to exist (a) any mortgage, pledge,
security interest, lien or charge of any kind upon any of its property or
assets whether now owned or hereafter acquired other than in favor of Standard
Federal, except as required or permitted by Standard Federal, or (b) any
indebtedness or liability for borrowed money, except indebtedness to Standard
Federal or indebtedness subordinated to the prior payment in full of the
Borrower's indebtedness to Standard Federal which is approved in writing by
Standard Federal, except as otherwise required or permitted in writing by
Standard Federal.
4.1(b) Make loans, advances or extensions of credit to any Entity (which in
this Agreement means any individual, partnership,
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corporation or other legal entity), other than a parent or subsidiary of the
Borrower, in excess of $100,000.00 in principal amount, except for sales on
open account and in ordinary course of business; or guarantee or in any way
become responsible for obligations of any other Entity except by endorsement of
negotiable instruments for deposit or collection in the ordinary course of
business; or subordinate any indebtedness due it from an Entity to indebtedness
of any other creditor of such Entity.
4.1(c) Sell, lease or transfer, during any fiscal year, except inventory in
the ordinary course of business, any substantial portion of its assets; or
consolidate with or merge into any other Entity, or permit another to merge
into it; or acquire by lease or purchase all or substantially all the business
or assets of any Entity; or enter into any lease-back arrangement with any
Entity.
4.1(d) Acquire or expend for, by lease, purchase or otherwise, during any
fiscal year, fixed assets in excess of $4,500,000, excluding expenditures
during 1994 relating to the tube mill of McClain Tube Company d/b/a Quality
Tube.
SECTION 5. SECURITY
5.1 In order to secure: (1) the full and timely performance of the
Borrower's covenants set forth herein and in the Line of Credit Notes and the
Term Note, (2) the repayment of any and all indebtedness of the Borrower to
Standard Federal arising pursuant to the Line of Credit Notes, the Term Note
(including any renewals or substitutions thereof), this Agreement and any
mortgage, guaranty, security agreement or other document given to secure or
relating to the Line of Credit Notes, the Term Note or this Agreement, and (3)
all other indebtedness and liabilities of the Borrower to Standard Federal
arising under this Agreement, the Line of Credit Notes or the Term Note,
whether direct or indirect, absolute or contingent, due or to become due, now
existing or hereafter arising:
5.1(a) The Borrower hereby grants unto Standard Federal a security interest
in the following property and the proceeds thereof: (i) any and all securities
or other property received by the Borrower with respect to, on account of or in
exchange for any item of Collateral; (ii) all stock and/or liquidating
dividends (whether the same be in the form of cash or other property) paid
upon, on account of or with respect to any item of Collateral; and (iii) all
bank deposits, instruments, negotiable documents, chattel paper and any and all
other property of the Borrower of any kind whatsoever which shall at any time
be in the possession or under the control of Standard Federal; and
5.1(b) The Borrower has granted to Standard Federal a security interest of
first priority in all personal property of the Borrower as provided in a
certain Security Agreement dated September 15,
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1994 from the Borrower to Standard Federal, the provisions of which are hereby
incorporated herein by reference (herein, together with the property described
in Sections 5.1(a) (i), (ii) and (iii) above, referred to as the "Collateral"
or "item(s) of Collateral").
5.2 The Borrower shall execute and deliver to Standard Federal any and
all documents (including financing statements) as Standard Federal may require
to insure the perfection and priority of its liens and security interests in
the Collateral and furnish, if Standard Federal so requires, proof of hazard
insurance policies, in accordance with Section 3.2(g) above, relating to the
Collateral.
SECTION 6. EVENTS OF DEFAULT
The occurrence of any of the events enumerated in Sections 6.1 to
6.11 below shall constitute an Event of Default for purposes of this Agreement:
6.1 FAILURE TO PAY MONIES DUE. If any indebtedness of the Borrower to
Standard Federal on the Line of Credit or the Term Loan is not paid when due,
regardless of whether such indebtedness has arisen pursuant to the terms of the
Line of Credit Notes, the Term Note, this Agreement or any mortgage, security
agreement, guaranty, instrument or other agreement executed in conjunction
herewith.
6.2 MISREPRESENTATION. If any warranty or representation made by or for
the Borrower and/or any endorser or guarantor of the Line of Credit Notes or
the Term Note in connection with the loan(s) evidenced thereby, or if any
financial data or any other information now or hereafter furnished to Standard
Federal by or on behalf of the Borrower and/or any endorser or guarantor of the
Line of Credit Notes or the Term Note shall prove to be false, inaccurate or
misleading in any material respect.
6.3 NONCOMPLIANCE WITH AFFIRMATIVE COVENANTS AND OTHER AGREEMENTS. If
the Borrower shall fail to perform any of its obligations and covenants under
Section 3 of this Agreement, or shall fail to comply with any of the other
provisions of this Agreement, other than under Section 4 hereof, or the Line of
Credit Notes, the Term Note, or any other agreement with Standard Federal to
which it may be a party, other than the payment of principal and interest.
6.4 NONCOMPLIANCE WITH NEGATIVE COVENANTS. If the Borrower shall fail
to perform any of its obligations and covenants described in Section 4 of this
Agreement.
6.5 BUSINESS SUSPENSION. If the Borrower and/or any endorser or
guarantor of the Line of Credit Notes or the Term Note shall voluntarily
suspend transaction of its business.
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6.6 BANKRUPTCY, ETC. If the Borrower and/or any endorser or guarantor
of the Line of Credit Notes or the Term Note: (a) makes a general assignment
for the benefit of creditors; (b) shall file a voluntary petition in bankruptcy
or for a reorganization to effect a plan or other arrangement with creditors;
or shall file an answer to a creditor's petition or other petition against
Borrower and/or any endorser or guarantor of the Line of Credit Notes or the
Term Note for relief in bankruptcy or for a reorganization which answer admits
the material allegations thereof; or if any order for relief shall be entered
by any court of bankruptcy jurisdiction with respect to the Borrower and/or any
endorser or guarantor of the Line of Credit Notes or the Term Note, or if
bankruptcy, reorganization or liquidation proceedings are instituted against
Borrower and/or any endorser or guarantor of the Line of Credit Notes or the
Term Note and remain undismissed for 60 days; (c) has entered against it any
order by any court approving a plan for the reorganization of the Borrower or
any endorser or guarantor of the Line of Credit Notes or the Term Note or any
other plan or arrangement with creditors of the Borrower or any endorser or
guarantor of the Line of Credit Notes or the Term Note; (d) shall apply for or
permit the appointment of a receiver, trustee or custodian for any substantial
portion of the Borrower's and/or any endorser's or guarantor's properties or
assets; or (e) becomes unable to meet its debts as they mature or becomes
insolvent.
6.7 JUDGMENTS AND WRITS. If there shall be entered against the Borrower
and/or any endorser or guarantor of the Line of Credit Notes or the Term Note
one or more judgments or decrees which are not insured against or satisfied or
appealed from and bonded within the time or times limited by applicable rules
of procedure for appeal as of right or if a writ of attachment or garnishment
against the Borrower and/or any endorser or guarantor of the Line of Credit
Notes or the Term Note shall be issued and levied in an action claiming
$100,000.00 or more and not released, bonded or appealed from within 30 days
after the levy thereof.
6.8 MERGER. If the Borrower shall merge or consolidate with another
entity.
6.9 CHANGE OF CONTROL OR MANAGEMENT. If the Borrower or a controlling
portion of its voting stock or a substantial portion of its assets comes under
the practical, beneficial or effective control of any person or persons other
than those having such control as of the date of execution of the Line of
Credit Notes and the Term Note, whether by reason of merger, consolidation,
sale or purchase of stock or assets or otherwise, if any such change of
control, in the sole and absolute discretion of Standard Federal, adversely
impacts upon the ability of the Borrower to carry on its business as
theretofore conducted.
6.10 OTHER DEFAULTS. If the Borrower and/or any endorser or guarantor of
the Line of Credit Notes or the Term Note shall
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default in the due payment of any material indebtedness to whomsoever owed, or
shall default in the observance or performance of any material term, covenant
or condition in any mortgage, security agreement, guaranty, instrument, lease
or agreement to which the Borrower and/or any endorser or guarantor of the Line
of Credit Notes or the Term Note is a party.
6.11 REPORTABLE EVENT. If there shall occur any "reportable event", as
defined in the Employee Retirement Income Security Act of 1974 and any
amendments thereto, which is determined to constitute grounds for termination
by the Pension Benefit Guaranty Corporation of any employee pension benefit
plan maintained by or on behalf of the Borrower for the benefit of any of its
employees or for the appointment by the appropriate United States District
Court of a trustee to administer such plan and such reportable event is not
corrected and such determination is not revoked within 30 days after notice
thereof has been given to the plan administrator or the Borrower; or the
institution of proceedings by the Pension Benefit Guaranty Corporation to
terminate any such employee benefit pension plan or to appoint a trustee to
administer such plan; or the appointment of a trustee by the appropriate United
States District Court to administer any such employee benefit pension plan.
SECTION 7. REMEDIES UPON EVENT OF DEFAULT
7.1 Upon the occurrence of any Event of Default described in Sections
6.2, 6.3 or 6.10 hereof which is not cured or waived in writing by Standard
Federal within 15 days after written notice to the Borrower of such default; or
upon the occurrence of any Event of Default described in Section 6.1 which
continues unremedied for 10 days, or upon the occurrence of any Event of
Default described in Sections 6.4, 6.5, 6.6, 6.7, 6.8, 6.9 or 6.11, Standard
Federal's commitment to lend hereunder, if any, shall terminate and Standard
Federal may, without notice, declare the entire unpaid and outstanding
principal balance of the Line of Credit and the Term Loan and all accrued
interest to be due and payable in full forthwith, without presentment, demand
or notice of any kind, all of which are hereby expressly waived by Borrower,
and thereupon Standard Federal shall have and may exercise any one or more of
the rights and remedies provided herein or in the Line of Credit Notes or the
Term Note or in any mortgage, guaranty, security agreement or other document
relating hereto or granted secured parties under the Michigan Uniform
Commercial Code, including the right to take possession of and dispose of the
Collateral, or otherwise provided by applicable law, and to offset against the
Line of Credit and the Term Loan any amount owing by Standard Federal to the
Borrower.
SECTION 8. MISCELLANEOUS.
8.1 No default shall be waived by Standard Federal except in writing and
a waiver of any default shall not be a waiver of any
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other default or of the same default on a future occasion. No single or
partial exercise of any right, power or privilege hereunder, or any delay in
the exercise hereof, shall preclude other or further exercise of the rights of
the parties to this Agreement.
8.2 No forbearance on the part of Standard Federal in enforcing any of
its rights under this Agreement, nor any renewal, extension or rearrangement of
any payment or covenant to be made or performed by the Borrower hereunder shall
constitute a waiver of any of the terms of this Agreement or of any such right.
8.3 This Agreement shall be construed in accordance with the law of the
State of Michigan.
8.4 All covenants, agreements, representations and warranties made in
connection with this Agreement and any document contemplated hereby shall
survive the borrowing hereunder and shall be deemed to have been relied upon by
Standard Federal. All statements contained in any certificate or other
document delivered to Standard Federal at any time by or on behalf of the
Borrower pursuant hereto shall constitute representations and warranties by the
Borrower.
8.5 The Borrower agrees that it will pay all costs and expenses incurred
by Standard Federal in enforcing Standard Federal's rights under this Agreement
and the documents contemplated hereby, including without limitation any and all
reasonable fees and disbursements of legal counsel to Standard Federal.
8.6 This Agreement shall inure to the benefit of and shall be binding
upon the parties hereto and their respective heirs, personal representatives,
successors and assigns; provided, however, that the Borrower shall not assign
or transfer its rights or obligations hereunder without the prior written
consent of Standard Federal.
8.7 If any provision of this Agreement shall be held or deemed to be or
shall, in fact, be inoperative or unenforceable as applied in any particular
case in any or all jurisdictions, or in all cases because it conflicts with any
other provision or provisions hereof or any constitution or statute or rule of
public policy, or for any other reason, such circumstances shall not have the
effect of rendering the provision in question inoperative or unenforceable in
any other case or circumstance, or of rendering any other provision or
provisions herein contained invalid, inoperative, or unenforceable to any
extent whatever. The invalidity of any one or more phrases, sentences, clauses
or sections contained in this Agreement, shall not affect the remaining
portions of this Agreement, or any part thereof.
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IN WITNESS WHEREOF, the Borrower and Standard Federal have caused this
Line of Credit Loan Agreement to be executed as of the day and year first
written above.
BORROWER:
MCCLAIN INDUSTRIES, INC.,
a Michigan corporation
By:
- -------------------------------- -------------------------------
E. James Zabinski
Its: Treasurer
-----------------------
38-1867649
----------------------------------
Taxpayer Identification Number
MCCLAIN OF GEORGIA, INC.,
a Georgia corporation
By:
- --------------------------------- --------------------------------
Carl L. Jaworski
Its: Secretary
-----------------------
58-1738825
-----------------------------------
Taxpayer Identification Number
SHELBY STEEL PROCESSING COMPANY,
a Michigan corporation
By:
- --------------------------------- --------------------------------
Carl L. Jaworski
Its: Secretary
-----------------------
38-2205216
-----------------------------------
Taxpayer Identification Number
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MCCLAIN TUBE COMPANY d/b/a QUALITY
TUBE, a Michigan corporation
By:
- --------------------------------- --------------------------------
E. James Zabinski
Its: Treasurer
-------------------------
-----------------------------------
Taxpayer Identification Number
MCCLAIN INDUSTRIES OF OHIO, INC.,
a Michigan corporation
By:
- ----------------------------- --------------------------------
E. James Zabinski
Its: Treasurer
--------------------------
-----------------------------------
Taxpayer Identification Number
STANDARD FEDERAL BANK, a
federal savings bank
By:
--------------------------------
Its:
----------------------------
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Schedule 2.12
1. Final Report Phase I Environmental Assessment Peabody-Galion
Corporation, Winesburg, Holmes County, Ohio, prepared by Stearns &
Wheler, Environmental Engineers and Scientists, dated February,
1993, Project No. 2471.
2. Final Report Phase II Site Investigation, Galion Site, Winesburg,
Ohio, prepared by Stearns & Wheler, Environmental Engineers and
Scientists, dated September, 1993, Project No. 2471.
3. Phase II Site Investigation Peabody-Galion Site, Galion, Ohio,
prepared by Stearns & Wheler, Environmental Engineers and
Scientists, dated January, 1993, Project No. 2429.
4. Subsurface Investigation at 5669 East Cork Street, Comstock Park,
Michigan, Clayton Project No. 58643.00, dated November 4, 1994,
prepared by Clayton Environmental Consultants.
5. Subsurface Investigation at 6200 Elmridge Drive, Sterling Heights,
Michigan, Clayton Project No. 58644.00, dated November 4, 1994,
prepared by Clayton Environmental Consultants.
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