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EXHIBIT 10.36
AMENDMENT NO. 5
TO
THE DEALER SECURITY AGREEMENT
THIS AMENDMENT NO. 5 to the DEALER SECURITY AGREEMENT (this "Amendment"),
dated as of February 7, 1997, is by and between CITICORP DEL-LEASE INC., doing
business as CITICORP DEALER FINANCE ("Lender"), and M&M PROPERTIES, INC. AND
XXXXXXX & FALCONITE EQUIPMENT CO., INC. (jointly and severally referred to
herein as "Borrower").
W I T N E S S E T H:
WHEREAS, Lender and each Borrower are parties to a Dealer Security
Agreement each dated June 19, 1995 (each Dealer Security Agreement being
referred to herein as the "Agreement"; capitalized terms not otherwise defined
in this Amendment shall have the meanings attributed thereto in the Agreement);
and
WHEREAS, Lender and Borrower have agreed to amend the Agreement as set
forth herein;
NOW, THEREFORE, in consideration of the premises and for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Lender and Borrower hereby agree to amend the Agreement as follows:
1. The definition of the term "Borrowing Base" is amended by deleting the
amount "$9,000,000" therefrom and substituting therefor the following:
"$20,000,000 through June 30, 1997 and $15,000,000 thereafter".
2. Section 2 (Financial Covenants) of Amendment No. 3 to the Agreement,
dated as of September 9, 1996, is hereby deleted in its entirety.
3. Section 4 (Covenants) of the Agreement is amended by deleting
subsections t. and u. therefrom.
4. Section 7 (Default) of the Agreement is amended by deleting subsection
j. therefrom and substituting therefor the following:
"x. Xxxxxxxxx, Inc. shall fail to perform or observe
any obligation, covenant or term to be performed or observed by it
under any agreement between Lender and Falconite or a material adverse
change in the Borrower's financial condition operations."
5. The effectiveness of this Amendment, and as a common condition
precedent to Lender making the Revolving Credit Loan to Borrower, is
subject to the delivery of each of the following documents in form and
substance satisfactory to Lender.
a. a duly executed Amended and Restated Revolving Credit Note:
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b. duly executed original counterparts of this Amendment;
c. an agreement between Lender and Falconite, Inc. regarding
financial covenants and reporting financial information;
d. a duly executed Corporate Guaranty of Falconite, Inc. and each
Borrower; and
e. a duly executed Personal Guaranty of Xxxxxxx Xxxxxxxxx and
Xxxxx XxXxxxx.
6. The obligations of borrower under the Agreement as amended hereby
shall be the joint and several obligations of each of them. The terms and
conditions of this Amendment are hereby incorporated into the Agreement. This
Amendment shall take precedence in the event any terms and conditions of the
Agreement conflict herewith. Except as provided herein, all other terms and
conditions of the Agreements shall remain in full force and effect and are
hereby ratified and confirmed.
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed as of the day and year first above written.
M&M PROPERTIES, INC.
By: /s/ Xxxxx XxXxxxx
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Name: Xxxxx XxXxxxx
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Title: President
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XXXXXXX & FALCONITE EQUIPMENT
CO. INC.
By: /s/ Xxxxx XxXxxxx
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Name: Xxxxx XxXxxxx
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Time: President
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CITICORP DEI-LEASE, INC., d/b/a
CITICORP DEALER FINANCE
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
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Time: Vice President
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