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EXHIBIT 10.13
CONSENT AND ASSUMPTION AGREEMENT
THIS CONSENT AND ASSUMPTION AGREEMENT (this "Agreement") is made and
entered into as of the 31st day of December, 1996, by and among Xxxxxxxx
Equipment Co., whose address is 0000 Xx-Xxxxx Xxxxxxxxxx Xxxxx, Xx. Xxxxx,
Xxxxxxxx 00000 ("Original Borrower"); Falconite Equipment, Inc., whose address
is 0000 Xxxxx Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000 ("Assuming Borrower") and
Southwest Bank of St. Louis, a Missouri banking corporation, whose address is
0000 Xxxxx Xxxxxxxxxxxx, Xx. Xxxxx, Xxxxxxxx 00000 ("Southwest").
W I T N E S S E T H:
WHEREAS, Original Borrower executed and delivered to Southwest a
certain Note (the "Note") dated December 16, 1996 payable to the order of
Southwest in the original principal amount of EIGHT MILLION THREE HUNDRED
FORTY-SIX THOUSAND THREE HUNDRED FOURTEEN AND 42/100 DOLLARS ($8,346,314.42)
(the "Loan"); and
WHEREAS, the Original Borrower executed and delivered to Southwest a
certain Master Lease dated March 30, 1995 (the "Lease");
WHEREAS, the Loan, Lease as well as all other obligations of Original
Borrower are entitled to the benefits and security of certain agreements and
documents described in Schedule 1 attached hereto (collectively the "Collateral
Documents") (the Note, Lease, Collateral Documents as well as all other
documents executed or delivered by the Original Borrower in connection with the
Note and the Lease, all as from time to time amended, notified, renewed or
extended, are referred to herein collectively as the "Loan Documents");
WHEREAS, Original Borrower desires to convey substantially all its
assets and property (the "Property"), to Assuming Borrower (the "Conveyance");
and
WHEREAS, Assuming Borrower desires to assume all rights, liabilities
and obligations of Original Borrower under the Loan Documents and be bound by
all terms and conditions contained therein; and
WHEREAS, Original Borrower and Assuming Borrower desire that Southwest
consent to the Conveyance and assumption and Southwest is willing to do so
subject to the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises, the covenants,
conditions and provisions hereinafter set forth, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:
1. Consent. Southwest hereby consents to the Conveyance and the
assignment and assumption of the rights and obligations of Original Borrower
under the Loan Documents by Assuming Borrower. Following the Conveyance,
Original Borrower shall be dissolved and Assuming Borrower shall be a wholly
owned subsidiary of Falconite, Inc., an Illinois corporation ("Falconite").
Southwest hereby consents to the foregoing and waives any provisions of the
Loan Documents that would otherwise prohibit such actions including, but not
limited to, dissolution, conveyance of assets or change of control provisions.
Provided, however, that the foregoing consent and waiver shall be
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effective only for the Conveyance and the foregoing reorganization of Original
Borrower and Assuming Borrower and shall not constitute a consent or waiver to
any other transfer or sale of the Property or other reorganization. Assuming
Borrower agrees that so long as any amounts due Southwest under the Loan or the
Lease shall be outstanding it shall at all times remain a wholly owned
subsidiary of Falconite, not less than seventy percent (70%) of the capital
stock of Falconite and E.F. Leasing, Inc. ("E.F.") shall be owned by Xxxxxxx X.
Xxxxxxxxx, Xxxxxx X. Xxxxxxxxx (or trusts established for their benefit or the
benefit of their family members) or Falconite Investments, L.P. ("FILP") and
FILP shall be owned beneficially by Xxxxxxx X. Xxxxxxxxx, Xxxxxx X. Xxxxxxxxx,
Xxxxx Xxxxxxxxx or their lineal descendents (or trusts established for their
benefit or the benefit of their family members).
2. Conveyance. The Conveyance shall be effectuated subject to
the Loan Documents and all instruments evidencing the Conveyance shall
expressly provide that the Property is being transferred subject to the terms
and provisions of the Loan Documents.
3. Assumption. Assuming Borrower hereby assumes and agrees to
perform all duties, obligations and liabilities of Original Borrower under the
Loan Documents, including without limitation all payment obligations
thereunder, according to the tenor, purpose and effect thereof, and the
performance and observance of every covenant and condition therein contained.
Whenever references are made to Original Borrower in the Loan Documents, the
same shall be deemed to mean Assuming Borrower. The Assuming Borrower and
Southwest acknowledge and agree that as of the date hereof, the current
principal balance outstanding under the Note is $8,346,314.42 and the balance
of payments due under the Lease is $57,567.72.
4. Representations and Warranties. Assuming Borrower hereby
represents and warrants to Southwest that:
(a) The execution, delivery and performance by Assuming
Borrower of this Agreement and the Loan Documents do not
conflict with or result in a breach of the terms, conditions
or provisions of the Articles of Incorporation or Bylaws or
constitute a default under or result in any violation of, any
applicable law, rule, regulation, order, writ, judgment or
decree of any court or government agency or instrumentality,
or any agreement or instrument to which Assuming Borrower is a
party, or by which Assuming Borrower is bound or otherwise
subject.
(b) This Agreement has been duly authorized, executed and
delivered and constitutes the legal, valid and binding
obligation of Assuming Borrower enforceable in accordance with
its terms.
5. Ratification. Except to the extent expressly modified by this
Agreement, all of the terms, provisions, agreements, covenants and powers
contained in the Loan Documents shall remain in full force and effect, and the
same are hereby ratified and confirmed and Southwest reserves unto itself all
rights and privileges granted thereunder. Until such time as a $278,037.45
Note dated June 8, 1994 made by E.F. to the order of Southwest and with a
current principal balance due of $139,018.65 shall be paid (and not
thereafter), Assuming Borrower agrees that the Property shall continue to serve
as collateral security for the repayment and performance of all obligations of
EF to Southwest as provided in one or more of the Collateral Documents.
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6. No Defense or Offset to Indebtedness. It is agreed that
neither Original Borrower nor Assuming Borrower has any defenses or offsets
against repayment of the outstanding indebtedness evidenced by the Note, Lease
or any other Loan Document.
7. Further Assurances. Assuming Borrower and Original Borrower
agree to execute and deliver to Southwest such Uniform Commercial Code
Financing Statements, title lien notations and any other documents requested by
Southwest to further perfect the interests of Southwest in the Property or
further evidence or effectuate the terms of the Agreement.
8. Costs and Expenses. Assuming Borrower shall pay all costs and
expenses incurred by Southwest in connection with this Agreement and
transactions contemplated hereunder, including, without limitation, all legal
expenses, recording costs and search charges.
9. Miscellaneous. This Agreement shall be governed by, and
construed in accordance with, the internal laws of the State of Missouri and
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns. The use in this Agreement of any particular
gender or the plural or singular number is intended to include the appropriate
gender or number as the content so requires. This Agreement may be executed in
several counterparts, and as executed shall constitute one agreement
notwithstanding that not all parties are signatories to the same counterpart.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
"ASSUMING BORROWER"
FALCONITE EQUIPMENT, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Xxxxxxx X. Xxxxxxxxx, President
"ORIGINAL BORROWER"
XXXXXXXX EQUIPMENT CO.
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Xxxxxxx X. Xxxxxxxxx, President
"SOUTHWEST"
SOUTHWEST BANK OF ST. LOUIS
By: /s/ Xxxxxxx XxXxxxxxxx
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Title: Vice President
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SCHEDULE 1
Assumed Note, Lease, Security Agreements and
Other Loan Documents
COLLATERAL PLEDGED FOR E.F. LEASING, INC. OBLIGATIONS
1. Security Agreement dated 5/19/94 covering accounts receivable,
inventory and equipment executed by Xxxxxxxx Equipment Co.
Title: SECURITY AGREEMENT
2. Assumption Agreement dated 12/29/95 (without recourse) Title:
CONSENT AND ASSUMPTION AGREEMENT WITH RELEASE
3. Pledge Agreement dated 12/29/95 executed by Xxxxxxxx Equipment
Co. Title: PLEDGE AGREEMENT
4. Security Agreement dated 6/18/94 covering personal property
executed by Xxxxxxxx Equipment Co. Title: SECURITY
AGREEMENT
5. Security Agreement dated 5/19/94 covering accounts
receivables, inventory and equipment executed by Xxxxxxxx
Equipment Co. Title: SECURITY AGREEMENT EQUIPMENT AND/OR
CONSUMER GOODS
6. Assumption Agreement dated 12/29/95 (without recourse) Title:
CONSENT AND ASSUMPTION AGREEMENT WITH RELEASE
7. Pledge Agreement dated 12/29/95 executed by Xxxxxxxx Equipment
Co. Title: PLEDGE AGREEMENT
XXXXXXXX EQUIPMENT CO. DIRECT OBLIGATIONS
1. Note dated 12/16/96 Principal balance $8,346,314.42
Collateral:
A. Loan Agreement dated 1/25/95 Title: LOAN AGREEMENT
B. Security Agreement dated 12/29/95 covering equipment
Title: SECURITY AGREEMENT EQUIPMENT AND/OR CONSUMER
GOODS
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C. Security Agreement dated 12/20/95 covering 1995 Ford
Truck Title: SECURITY AGREEMENT EQUIPMENT AND/OR
CONSUMER GOODS
D. Security Agreement dated 9/13/95 covering 1995 Ford
Truck and equipment Title: SECURITY AGREEMENT
EQUIPMENT AND/OR CONSUMER GOODS
E. Security Agreement dated 5/19/94 covering accounts
receivable, inventory and equipment Title: SECURITY
AGREEMENT
F. Security Agreement dated 9/1/96 covering 1997 Chevy
Lumina Title: SECURITY AGREEMENT EQUIPMENT AND/OR
CONSUMER GOODS
G. Security Agreement dated 7/1/96 covering 1996 Chevy
Van Title: SECURITY AGREEMENT EQUIPMENT AND/OR
CONSUMER GOODS
H. Security Agreement dated 5/17/96 covering 1994 Ford
F-150 PU Title: SECURITY AGREEMENT EQUIPMENT AND/OR
CONSUMER GOODS
I. Security Agreement dated 2/16/96 covering 1996 Ford
Truck and 1996 Crane Title: SECURITY AGREEMENT
EQUIPMENT
J. Security Agreement dated 2/16/96 covering 1996 Ford
Truck and Manitex Crane Title: SECURITY AGREEMENT
EQUIPMENT
2. Lease Agreement #1039452 dated 3/30/95 and Assignment of
Purchase Order dated 5/30/95 Title: ASSIGNMENT OF PURCHASE
ORDER(S)
