EXHIBIT 10.28
FORBEARANCE AGREEMENT
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This FORBEARANCE AGREEMENT (The "Agreement") is entered into as of this
17TH day of January 2003 by and between Xxxxx Fargo Equipment Finance, Inc.
("Xxxxx Fargo"), Mountain Compressed Air, Inc., (hereafter "Lessee"), Xxxxxxx
Xxxxxxxxxxxx, Xxxxx Xxxxxxxxxxxx, and OilQuip Rentals, Inc. (hereafter
"Guarantors")(Lessee and Guarantors are sometimes collectively referred to as
the "Debtors".)
RECITALS
Lessee and Xxxxx Fargo entered into a Master Lease and Supplement No.
69749-100 dated January 31, 2001 (hereafter "Lease") pursuant to which Xxxxx
Fargo leased to Lessee certain equipment under terms and conditions more fully
set forth in said Lease. Under the Lease the Lessee was required to make sixty
(60) monthly payments of $58,574.40 plus applicable taxes as in effect from time
to time and further comply with the "End of Term Options" as set forth in said
"Lease". Said Lease further provided for a "security deposit" in the amount of
$700,700.00 which, pursuant to said Lease, may be applied by Lessor (Xxxxx
Fargo) toward any obligation of Lessee under the Lease.
The Lessee has defaulted in Lessee's payment obligations under the
Lease. In order to prevent repossession of the equipment and collection of the
amounts due and owing to Xxxxx Fargo from the Debtors, the Debtors have
requested from Xxxxx Fargo a restructuring in the monthly payments due and owing
under the Lease. This requested payment restructuring is as follows: See
Schedule A attached to this Agreement which is incorporated herein by reference.
Xxxxx Fargo is willing to forbear from executing its rights and
remedies under the Lease subject to the terms and conditions set forth below.
Accordingly, Xxxxx Fargo and the Debtors hereby agree as follows:
AGREEMENT
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In consideration of the foregoing, and for other good and valuable
consideration, the receipt of which is acknowledged, Xxxxx Fargo and Debtors
agree as follows:
1. ACKNOWLEDGMENT OF INDEBTEDNESS. The Debtors are indebted to Xxxxx
Fargo as set forth in the Recitals above, and the Indebtedness is due and owing
by the Debtors without offset, defense or counterclaim.
2. DOCUMENTS ENFORCEABLE. The Master Lease, Supplement thereto, and
Guarantees are valid, binding and fully enforceable against the Debtors by Xxxxx
Fargo.
3. RECITALS TRUE AND CORRECT. Each of the foregoing Recitals are
adopted by the Debtors as true and correct statements of fact.
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4. CONDITIONAL FORBEARANCE BY XXXXX FARGO. Subject to the terms and
conditions of this Agreement, Xxxxx Fargo agrees to forbear from exercising its
rights under the Agreements or commencing legal proceedings to enforce its
rights under the Agreements until the earlier of (i) the occurrence of an event
of default under the Agreements, other than those specifically acknowledged
below, or (ii) an event of default under this Agreement (the "Forbearance
Period").
In consideration of this Agreement, Lessee agrees to the following
payment terms:
a) For Lease Contract No. 69749-100 for the months January,
2003 through February, 2006, inclusive, see payment schedule on
Schedule A;
b) Borrower agrees to a forbearance fee of $2,500.00 to be
paid upon Execution of this Agreement.
5. PAYMENTS. All payments made and proceeds received by Xxxxx Fargo
pursuant to this Agreement shall be applied in accordance with the terms and
conditions of the Agreements.
6. EVENTS OF DEFAULT. The occurrence of one of more of the following
shall constitute an event of default within the meaning of this Agreement:
a) Lessee shall fail to abide or observe any term or condition
of this Agreement or any representation made by the Lessee herein was
materially false when made;
b) Lessee shall fail to abide by the terms and conditions of
the Agreements, except as expressly waived herein:
c) The financial condition of Lessee shall deteriorate on or
after the date hereof in the judgment of Xxxxx Fargo or Xxxxx Fargo
shall determine in its sole judgment that an event of default has
occurred that may have a materially adverse affect on its ability to
recover the equipment referenced in the Agreements, or shall materially
affect Lessee's ability to perform its obligations under the
Agreements.
7. EFFECT OF EVENT OF DEFAULT. Upon the occurrence of an event of
default, Xxxxx Fargo shall have the immediate right to terminate the Forbearance
Period. Upon the occurrence of an event of default, Xxxxx Fargo shall have no
further obligation under this Agreement, and Xxxxx Fargo shall be entitled to
exercise all rights and remedies under this Agreement, the Agreements, all
guarantees and applicable law. Each promise, acknowledgment, and covenant of the
Lessee in favor of Xxxxx Fargo hereunder, shall remain in full force and effect
following an event of default and upon termination or expiration of the
Forbearance Period. Xxxxx Fargo shall be entitled to recover all attorneys' fees
and costs stemming from any default under this Agreement.
8. RELEASE. The Debtors hereby releases Xxxxx Fargo and its officers,
directors,and agents of and from all claims, demands, causes of action,
liability, loss, damage, known and unknown, accrued and unaccrued, absolute and
contingent, and from all actions and omissions from the beginning of time
through the date of this Agreement as a result or related to:
a) The transactions evidenced by or related to the Agreements;
and
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b) Any acts or omissions of Xxxxx Fargo or any of its
officers, directors, agents, employees or other representatives in
connection therewith or related thereto.
9. COMPLETE AGREEMENT. This Agreement and the amended terms referred to
herein as they modify the Agreements constitute the complete agreement of the
parties and may not be modified, waived or changed, except by a writing signed
by all of the parties.
10. BINDING AGREEMENT. This agreement is binding upon the parties and
their respective successors and assigns.
11. BINDING LAW. This Agreement shall be governed by the substantive
laws of the State of Minnesota. Debtors agree to submit themselves to the
jurisdiction of the State of Minnesota for disputes stemming from this
Agreement, the Agreements, or any guaranty.
12. LEGAL COUNSEL. The Lessee hereby warrants and represents to Xxxxx
Fargo that they consulted with and received advise from legal counsel of their
choice with respect to this Agreement and the documents related thereto, or they
have had an opportunity to consult with legal counsel of their choice and have
made the decision not to consult with legal counsel. Without limiting the
forgoing, the Lessee acknowledges that it has legal and business options
available to it other than the execution and delivery of this Agreement but has
nonetheless decided to execute this Agreement and has done so voluntarily and
without duress.
13. COUNTERPARTS. This Agreement may be signed in any number of
counterparts, each of which shall be considered an original, but when taken
together shall constitute one document.
14. REMEDIES; NO WAIVER. No failure or delay on the part of Xxxxx Fargo
in exercising any right, power or remedy hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any such right, power or
remedy preclude any other or further exercise thereof or the exercise of any
other right, power or remedy hereunder. The remedies herein are cumulative and
not exclusive of any remedies provided by law or by any Lease in favor of Xxxxx
Fargo.
15. FURTHER ASSURANCES AND ADDITIONAL DOCUMENTS. Lessee shall, at the
Request of Xxxxx Fargo, at any time and from time to time following the
execution of this Agreement promptly execute and deliver, or cause to be
executed and delivered, to Xxxxx Fargo all such further documents and
instruments and take all such further action as may be reasonably necessary or
appropriate to confirm or carry out the provisions and intent of this Agreement
or to protect Xxxxx Fargo's rights relating to the equipment referenced in the
Agreements. LESSEE ACKNOWLEDGES AND AGREES THAT XXXXX FARGO IS AUTHORIZED TO ACT
AS LESSEE'S ATTORNEY IN FACT FOR EACH OF THESE PURPOSES, TO THE EXTENT
AUTHORIZED BY APPLICABLE LAW.
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IN WITNESS HEREOF, the parties have executed this Agreement as of the
date first above stated.
Xxxxx Fargo Equipment Finance, Inc.
By /S/ XXXXXXX X. XXXX
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Its
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State of Minnesota )
County of Hennepin )
Xxxxxxx X. Xxxx, an Officer of the Xxxxx Fargo Equipment Finance, Inc., a
Minnesota Corporation, on behalf of the corporation, acknowledged the foregoing
instrument before me this ____day of _________________, 2003.
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Notary Public
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Mountain Compressed Air, Inc.
Dated:__________, 2003
By /S/ XXXXXXX XXXXXXXXXXXX
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Its Chief Executive Officer
State of _____________)
County of____________)
The foregoing instrument was acknowledged before me this ____day of
_____________, 2003 by __________________________, the _____________________ of
Mountain Compressed Air, Inc. on behalf of the company.
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Notary Public
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OilQuip Rentals, Inc. Guarantor
Dated: _________, 2003
By /S/ XXXXXXX XXXXXXXXXXXX
--------------------------------
Its Chief Executive Officer
State of _____________)
County of____________)
The foregoing instrument was acknowledged before me this _____ day of
___________, 2003 by ________________________, the ________________________ Of
OilQuip Rentals, Inc. on behalf of the Company.
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Notary Public
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Dated:___________, 2003
By /S/XXXXXXX XXXXXXXXXXXX
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Xxxxxxx Xxxxxxxxxxxx, Guarantor
State of _____________)
County of____________)
Xxxxxxx Xxxxxxxxxxxx acknowledged the foregoing instrument before me
this ___ day of ___________, 2003 individually.
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Notary Public
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Dated:___________, 2003 By /S/ XXXX XXXXXXXXXXXX
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Xxxxx Xxxxxxxxxxxx, Guarantor
State of _____________)
County of____________)
Xxxxx Xxxxxxxxxxxx acknowledged the foregoing instrument before me this
___ day of ___________, 2003 individually.
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Notary Public
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SCHEDULE A
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Number Of Payments Amount Date
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3 Payments $58,574.40 October 15, 2002 through December 15, 2002 applying
$175,723.20 of the Security Deposit.
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1 Payment $559,976.80 January 15, 200 applying balance of security deposit,
$524,976.80, plus $35,000.00 payment.
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5 Payments $35,000.00 February 15, 2003 through June 15, 2003.
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31 Payments $58,574.40 July 15, 2003 through January 15, 2006.
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1 Payment $759,274.40 February 15, 2006.
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