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EXHIBIT 10.9
ASSUMPTION AND AMENDMENT AGREEMENT
This Assumption and Amendment Agreement is dated as of the 1st day
of August, 1997, and is by and among Polk County Industrial Development
Authority (the "Issuer"), POF Realty, a Florida general partnership (the
"Original Borrower"), Precisionaire, Inc., a Florida Corporation
("Precisionaire"), a North Carolina corporation ("Flanders"), SunTrust Bank,
Central Florida, National Association (the "Trustee"), and SunTrust Bank, Tampa
Bay (the "Bank").
BACKGROUND:
The Issuer previously issued its $2,040,000 Polk County Industrial
Development Authority Industrial Development Revenue Bonds (POF Realty
Project), Series 1988, dated January 13, 1988 (the "Bonds"), pursuant to
Resolution No. 87-08 adopted by the Issuer on November 12, 1987 and Resolution
No. 87-10, adopted by the Issuer on November 10, 1987 (collectively, the
"Resolution") and an Indenture of Trust (the "Indenture"), dated as of January
13, 1988, between the Issuer and the Trustee, formerly known as Sun Bank,
National Association, as trustee (the "Trustee"), to generate funds to make a
loan to POF Realty, a Florida general partnership, and its successors and
assigns (the "Original Borrower"), pursuant to a Loan Agreement (the "Loan
Agreement") dated as of January 13, 1988, and a Promissory Note (the "Note")
dated January 13, 1988, both between the Original Borrower and the Issuer.
The Bonds are payable from amounts paid by the Original Borrower under
the Loan Agreement and the Note is secured by a Mortgage and Security Agreement
(the "Mortgage"), dated as of January 13, 1988, from the Original Borrower to
the Issuer.
The manufacturing facility and related properties financed with the
proceeds of the Bonds (the "Project") was leased by the Original Borrower to
Precisionaire.
Flanders now owns Precisionaire and Precisionaire wishes to purchase
the Project from the Original Borrower and assume all obligations of the
Original Borrower under the Loan Agreement, the Note and all other documents
relating to the Bonds, such documents being hereinafter referred to as the
"Borrower Documents." The outstanding aggregate principal amount of the Bonds
as of the date hereof is $1,020,143.38. The Bank is the registered owner of all
of the Bonds outstanding as of the date hereof.
Flanders has agreed to guarantee Precisionaire's obligations and the
Bank, the Issuer and the Trustee have agreed to the release of the Original
Borrower and Xxxxx X. Xxxx, Xxxxxxx X. Xxxx, Xxxxxxx Xxxx, Xxxxxx X. Xxxx, Xxx
X. Xxxx, Xxxxxxx Xxxxxxxxx, Xxx Xxxxxxxxx and O. Xxxxxxx Xxxxxxx (collectively,
the "Individual Guarantors").
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Precisionaire and Flanders have requested that the Issuer approve the
assumption and the amendment of the Borrower Documents, and the Issuer,
pursuant to Resolution No. 97-04, adopted on July 14, 1997, has given such
approval.
The Trustee, the Issuer, the Original Borrower, Flanders and the Bank,
by execution of this Assumption and Amendment Agreement, hereby approve and
consent to such assumption and amendments as set forth below.
AGREEMENT:
In consideration of the premises hereof, the mutual covenants of the
parties hereto and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. Precisionaire hereby agrees to assume, pay and undertake all
obligations of the Original Borrower under the Borrower Documents and all other
obligations of the Original Borrower with respect to the Bonds, including,
without limitation, the obligation to pay the Loan Installments (as that term
is defined in the Loan Agreement) and to pay when due, the principal of and
interest on the Bonds.
2. Precisionaire as the Borrower (as that term is defined in the Loan
Agreement) hereby affirms, on its behalf, the representations set forth in
subsections (e), (j) and (r) of Section 2.3 of the Loan Agreement. Further,
Precisionaire hereby covenants to continue the use of the Project as a
"project" within the meaning of Section 159.27(5), Florida Statutes, for the
Agreement Term (as defined in the Loan Agreement).
3. The Borrower Documents are hereby amended to provide that notices
to the Original Borrower thereunder shall be given to Precisionaire at the
following address:
Precisionaire, Inc.
0000 00xx Xxxxxx Xxxxx
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Xx. Xxxxxxxxxx, Xxxxxxx 00000
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Attention: Xxxxxxx Xxxxxxxxx
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With a copy to: Flanders Corporation
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Attention:
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4. The Borrower Documents are hereby amended to reflect Flanders as
Guarantor and the release of the Individual Guarantors and the Original
Borrower thereunder.
5. The Borrower Documents are hereby amended to reflect the foregoing
assumptions, amendments and releases and shall be deemed to conform to the
provisions of this Assumption and Amendment Agreement. Nothing contained herein
invalidates or shall invalidate any security now held by the Trustee or the
Bank nor impair or release any covenant, condition, agreement or stipulation in
the Borrower Documents, except as expressly modified herein, and such documents
shall continue in full force and effect.
6. No other term, provision or condition of any of the documents
executed in connection with the issuance and delivery of the Bonds, including,
but not limited to, the Bonds and the Borrower Documents, shall be deemed to be
modified or amended except to the extent expressly set forth herein, and this
Assumption and Amendment Agreement shall not be considered a novation.
7. The parties hereto agree to execute and record any instruments
which may be advisable to evidence the purchase by Precisionaire of the
Project, the assumption by Precisionaire of the obligations of the Original
Borrower under the Borrower Documents, the guarantee of the obligations of
Precisionaire by Flanders, and the release of the Original Borrower and the
Individual Guarantors.
8. The costs and expenses incurred by the Issuer, the Trustee, and the
Bank in connection with the execution, delivery and performance of this
Assumption and Amendment Agreement, including, without limitation, reasonable
attorneys' fees and expenses, shall be paid by Precisionaire.
9. The parties hereby expressly consent to the sale of the Project
pursuant to Section 6.17 of the Loan Agreement. The parties hereto further
consent to the encumbrance of the Project and a lien thereon being granted by
Precisionaire to the Bank by way of a Mortgage and Security Agreement from
Precisionaire to the Bank, junior and subordinate in all respects to the
Mortgage.
10. This Assumption and Amendment Agreement and all agreements related
hereto shall not be interpreted to diminish or extinguish the original rights
of the Bank and other original parties to the referenced Borrower Documents or
be interpreted to release Precisionaire from any liabilities arising under the
Borrower Documents. The parties hereto also agree that the Assumption and
Amendment Agreement and all agreements related thereto are not intended to, and
do not, in any way constitute a novation or accord and satisfaction of any
provision of the Borrower Documents.
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11. In the event any provision of this Assumption and Amendment
Agreement shall be held invalid or unenforceable by any court of competent
jurisdiction, such holding shall not invalidate or render unenforceable any
other provision hereof.
12. This Assumption and Amendment Agreement shall be governed by and
construed in accordance with the laws of the State of Florida.
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IN WITNESS WHEREOF, the parties hereto have set their hands and seals
as of the date first written above.
POLK COUNTY INDUSTRIAL
DEVELOPMENT AUTHORITY
(SEAL)
ATTEST: By:
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Chairman
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Secretary or Assistant Secretary
ORIGINAL BORROWER
POF REALTY, a Florida general
partnership
By: /s/ Xxxxxxx Xxxxxxxxx
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Name: XXXXXXX XXXXXXXXX
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Title: General Partner
By:
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Name:
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Title: General Partner
PRECISIONAIRE
(SEAL)
ATTEST: By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
/s/ Xxxxxx Xxxxxxx -----------------------------------
-------------------------------- Title: Chief Financial Officer
Name: Xxxxxx Xxxxxxx ----------------------------------
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Title: Secretary
SUNTRUST BANK, CENTRAL FLORIDA,
NATIONAL ASSOCIATION, as
Trustee
(SEAL)
By:
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Name:
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Authorized Officer
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FLANDERS CORPORATION
(SEAL)
ATTEST:
By /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
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/s/ Xxxxxx Xxxxxxx Title: Chief Financial Officer
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Name: Xxxxxx Xxxxxxx
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Title: Corp. Secretary
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SUNTRUST BANK, TAMPA BAY, as
Bondholder
(SEAL)
By: /s/ Xxxxx X. Cog
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Name: XXXXX X. COG
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Authorized Officer
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