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EXHIBIT 10.51
Note No. 0250194514
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STANDARD FEDERAL BANK
PROMISSORY NOTE
(Line of Credit) [X] Renewal
$1,500,000.00 Troy, Michigan
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Due Date: March 1, 1998 Dated:
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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 One Million
Five Hundred Thousand and 00/100 Dollars ($1,500,000.00) 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 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 Journal Prime Rate" and
not by reference to the actual rate of interest charged by any particular bank
to any particular borrower
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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, 1996.
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 First Amended and Restated Loan Agreement, dated October 2, 1995, 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 Demonstrator 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, 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
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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.
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
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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, and by a Security Agreement,
dated June 22, 1995, and is supported by a Guaranty executed by McClain
Industries, Inc., a Michigan corporation, dated May 5, 1995, and secured by an
Assignment of Policy as Collateral Security, of even date herewith. Reference
is hereby made to such documents for additional terms relating to
the
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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 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
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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
David J. Bartlett By: /s/ Carl Jaworski
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Carl Jaworski
Secretary
Taxpayer Identification Number:
38-3060196
MCCLAIN E-Z PACK, INC., formerly known as
Galion Solid Waste Equipment, Inc., a
Michigan corporation
David J. Bartlett By: /s/ Carl Jaworski
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Carl Jaworski
Secretary
Taxpayer Identification Number:
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GALION DUMP BODIES, INC., a Michigan
corporation
David J. Bartlett By:/s/ Carl Jaworski
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Carl Jaworski
Treasurer
Taxpayer Identification Number:
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MCCLAIN GROUP SALES OF FLORIDA, INC.,
formerly known as M.E.G. Equipment Sales of
Florida, Inc., a Florida corporation
David J. Bartlett By: /s/ Carl Jaworski
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Carl Jaworski
Secretary
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
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