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EXHIBIT 10.37
FIRST AMENDMENT TO SECURITY AGREEMENT
THIS FIRST AMENDMENT TO SECURITY AGREEMENT (this "Amendment")
is made this 19th day of February, 1997, by FALCONITE EQUIPMENT, INC.
(formerly known as Falconite, Inc.), an Illinois corporation ("Borrower"), and
is accepted by CITIZENS BANK & TRUST COMPANY OF PADUCAH ("Secured Party").
WITNESSETH:
WHEREAS, Borrower has heretofore executed and delivered to
Secured Party that certain Security Agreement dated October 5, 1995 (the
"Security Agreement"); and
WHEREAS, Borrower desires to amend the Security Agreement to
in the manner hereinafter set forth and Secured Party is willing to consent
thereto on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and for other
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Borrower hereby amends the Security Agreement as follows:
1. All references in the Security Agreement to
"Falconite, Inc." shall henceforth mean Falconite Equipment, Inc. (formerly
known as Falconite, Inc.), an Illinois corporation.
2. The first "WHEREAS" clause on page 1 of the Security
Agreement is hereby deleted in its entirety and the following substituted in
lieu thereof:
"WHEREAS, Borrower and Secured Party have entered
into that certain Revolving Credit and Term Loan Agreement
dated October 5, 1995, by and between Borrower and Secured
Party, as amended by that certain First Amendment to Revolving
Credit and Term Loan Agreement dated January 5, 1996, that
certain Second Amendment to Revolving Credit and Term Loan
Agreement dated June 14, 1996, and that certain Third
Amendment to Revolving Credit and Term Loan Agreement dated
February 19, 1997 (as so amended and as the same may from
time to time be further amended, modified, extended or
renewed, the "Loan Agreement"; all capitalized terms used and
not otherwise defined in this Agreement shall have the
respective meanings ascribed to them in the Loan Agreement);
and"
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3. Section 3(q) of the Security Agreement is hereby
deleted in its entirety and the following substituted in lieu thereof:
"(q) if any Event of Default under this Agreement or
any event which with the passage of time or the giving of
notice or both would constitute an Event of Default under this
Agreement has occurred and is continuing, if requested by
Secured Party, Borrower will immediately (i) conspicuously
xxxx each original of each Lease with the following legend
"THIS LEASE HAS BEEN ASSIGNED BY FALCONITE EQUIPMENT, INC.
(FORMERLY KNOWN AS FALCONITE, INC.) TO CITIZENS BANK & TRUST
COMPANY OF PADUCAH, PURSUANT TO A SECURITY AGREEMENT DATED
OCTOBER 5, 1995, AS AMENDED" and deliver a copy of each Lease
(as so marked) to Secured Party and/or (ii) deliver possession
of all originals of each of the Leases to Secured Party, as
requested by Secured Party;"
4. Section 3(y) of the Security Agreement is hereby
deleted in its entirety and the following substituted in lieu thereof:
"(y) as of the date hereof, the fair market value of
all of the Collateral located in the State of Tennessee does
not exceed Twelve Percent (12%) of the total fair market
value of all of the Collateral. Borrower will not, without
the prior written consent of Secured Party (which consent
shall not be unreasonably withheld) permit the fair market
value of all of the Collateral located in the State of
Tennessee to at any time exceed Twelve Percent (12%) of the
total fair market value of all of the Collateral;"
5. Exhibit A attached to the Security Agreement is
hereby deleted in its entirety and the Exhibit A attached to this Amendment is
substituted in lieu thereof.
6. Exhibit C attached to the Security Agreement is
hereby deleted in its entirety and the Exhibit C attached to this Amendment is
substituted in lieu thereof.
7. Except to the extent specifically amended by this
Amendment, all of the terms, provisions and conditions contained in the
Security Agreement shall be and remain in full force and effect and the same
are hereby ratified and confirmed.
8. All references in the Security Agreement to "this
Agreement" and any other references of similar import shall henceforth mean the
Security Agreement as amended by this Amendment.
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9. Borrower hereby represents and warrants to Secured
Party that:
(a) the execution, delivery and performance by
Borrower of this Amendment are within the corporate powers of
Borrower, have been duly authorized by all necessary corporate
action and require no action by or in respect of, or filing
with, any governmental or regulatory body, agency or official
or any other third party;
(b) the execution, delivery and performance by
Borrower of this Amendment do not conflict with, or result in
a breach of the terms, conditions or provisions of, or
constitute a default under or result in any violation of, the
terms of the Articles of Incorporation or By-Laws of Borrower,
any applicable law, rule, regulation, order, writ, judgment or
decree of any court or governmental or regulatory agency or
instrumentality or any agreement, document or instrument to
which Borrower is a party or by which it is bound or to which
it is subject;
(c) this Amendment has been duly executed and
delivered by Borrower and constitutes the legal, valid and
binding obligation of Borrower enforceable against Borrower in
accordance with its terms; and
(d) as of the date hereof, all of the
representations, warranties and covenants of Borrower set
forth in the Security Agreement are true and correct and no
Event of Default under or within the meaning of the Security
Agreement has occurred and is continuing.
10. This Amendment shall be binding upon and inure to the
benefit of Borrower and Secured Party and their respective successors and
assigns, except that Borrower may not assign or delegate any of its rights or
obligations hereunder.
11. This Amendment shall be governed by and construed in
accordance with the substantive laws of the Commonwealth of Kentucky (without
reference to conflict of law principles).
12. In the event of any inconsistency or conflict between
the Security Agreement and this Amendment, the terms, provisions and conditions
contained in this Amendment shall govern and control.
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IN WITNESS WHEREOF, Borrower has executed this First Amendment
to Security Agreement this 19th day of February, 1997.
FALCONITE EQUIPMENT, INC.
By: /s/ Xxxx Xxxxxxxxx
------------------------------
Name: Xxxx Xxxxxxxxx
----------------------------
Title: President
---------------------------
Accepted this 19th day of February, 1997.
CITIZENS BANK & TRUST COMPANY OF
PADUCAH
By: /s/ Xxxxx Xxxxxx
------------------------------
Name: Xxxxx Xxxxxx
----------------------------
Title: Senior Vice President
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EXHIBIT A
Additional Locations of Places of Business of Borrower
000 Xxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
0000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxx 00000
000 Xxxx Xxxxxx XXX 00
Xxxxxxx Xxxx, Xxxxxxxx 00000
0000 Xx-Xxxxx Xxxxxxxxxx Xxxxx
Xx. Xxxxx, Xxxxxxxx 00000
0000 Xxxxx Xxxxxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
0000 Xxxx Xxxxxxxx Xxxxxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
0000 Xxxxxxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
0000 Xxxxx Xxxxx Xxxxxx
Xxxxx Xxxx, Xxxxxxx 00000
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EXHIBIT C
UCC-1 Financing Statements
XxXxxxxxx County, Kentucky
Tennessee Secretary of State
Illinois Secretary of State
Missouri Secretary of State
St. Louis County, Missouri
Indiana Secretary of State
Arkansas Secretary of State
Mississippi Secretary of State
Alabama Secretary of State
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