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EXHIBIT 10.36
INSTRUMENT OF TRANSFER AND
ASSUMPTION AGREEMENT
THIS INSTRUMENT OF TRANSFER AND ASSUMPTION AGREEMENT (the "Agreement")
is made as of the 31st day of January, 1998, between Specialty Equipment
Companies, Inc. (the "Parent") and Specialty Equipment Manufacturing Corporation
(the "Operating Subsidiary").
RECITALS
A. Operating Subsidiary has been formed to enable Parent and its
consolidated subsidiaries to achieve certain operating, tax and other benefits
through the transfer to Operating Subsidiary of substantially all of the
operational functions heretofore performed by Parent.
B. To effectuate the transfer of the functions described in Recital A
above, Parent shall transfer to Operating Subsidiary certain assets and
liabilities of Parent, which relate to the functions which are being
transferred, based on the terms and conditions set forth in this Agreement.
NOW THEREFORE, in consideration of the premises and mutual undertakings
hereinafter set forth, and intending to be legally bound, the parties hereto
agree as follows:
1. For valuable consideration, the receipt and adequacy of which are
hereby acknowledged, Parent does hereby assign, transfer, convey and deliver to
Operating Subsidiary all of the assets, rights and properties of the
Corporation, except for the assets set forth on Schedule A hereto (the "Excluded
Assets"). All of the assets being contributed to Operating Subsidiary by Parent
are referred to herein as the "Transferred Assets".
2. Operating Subsidiary does hereby become obligated, assumes and
agrees to pay, satisfy, discharge and/or perform all of the obligations,
liabilities, covenants, undertakings and agreements of Parent, except for the
obligations, liabilities, covenants, undertakings and agreements set forth on
Schedule B hereto (the "Excluded Liabilities"). All of the obligations,
liabilities, covenants, undertakings and agreements being assumed by Operating
Subsidiary are referred to herein as the "Assumed Obligations". To the extent
that Parent pays any amounts resulting from obligations included in the Assumed
Obligations, Operating Subsidiary agrees to indemnify Parent for any such
payment, regardless of whether or not Parent has remained jointly and severally
liable under the contract giving rise to such obligation and payment; provided,
however, that Operating Subsidiary shall not be obligated to indemnify Parent
for any such payment made by Parent to the extent that such payment is with
respect to borrowings subsequent to the date hereof under that certain Credit
Agreement with Bank of America Illinois and certain other financial
institutions, dated as of December 1, 1996, as amended thereafter, solely for
the benefit of Parent.
3. Nothing contained herein is intended to be construed or shall be
construed as enlarging or extending in any manner or to any extent the period of
limitations prescribed by any statute of limitations applicable, to any of the
Assumed Obligations or as enlarging or extending to any extent or in any manner
whatsoever the rights which any owner, holder or obligee of any Assumed
Obligations has had, now has or hereafter can, shall or may have or as rendering
valid or enforceable against Operating Subsidiary any liability assumed which
for any reason would not have been valid or enforceable against Parent.
4. This Agreement and the covenants, agreements, undertakings,
assumptions, warranties and representations herein shall be binding on and inure
to the benefit of Parent and Operating Subsidiary and their respective
successors and assigns.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of January 31, 1998.
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SPECIALTY EQUIPMENT COMPANIES, INC., a
Delaware corporation
By:
Name:
Title:
SPECIALTY EQUIPMENT MANUFACTURING
CORPORATION, a Delaware corporation
By:
Name:
Title:
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SCHEDULE A
Excluded Assets
- The common stock and other securities issued to Parent by the following
entities:
-- FM Manufacturing, Inc.
-- Bloomfield Industries - Canada Limited
-- Xxxxxx Freezer International, S.r.l.
-- Xxxxxx Freezer (Cyprus) Ltd.
-- Xxxxxx - Chicago Corp.
-- Quaboes B.V.
-- Specialty Equipment Manufacturing Corporation
-- Specialty Equipment Foreign Sales Corporation
- All right, title and interest in all the designs, patents, patent
applications, service marks, trademarks, trademark applications, trade
names, trade secrets, goodwill and copyrights of Parent which has been
licensed by Parent to Operating Subsidiary under that License Agreement
dated January 31, 1998.
- Employment Retention Agreements between Parent and the following
executive officers: Xxxxxx X. Xxxxxxxxx, Xxxxxxx X. Xxxxxxxxxxx,
Xxxxxx X. XxXxx, Xxxxxxx X. Xxxxxxxxxxx, Xxxxx Xxxxxxx, Xxxx Xxxxxxx
and Xxxxx Best.
- Indemnification Agreements between Parent and each of its current and
former directors and executive officers.
- Corporate books and records of Parent
- All right, title and interest of Parent in the following contracts:
- Office Lease between Parent and Lakewoods Realty and Mortgage
Corporation dated Xxxxxx 00, 0000
- Xxxxx Xxxxxxxx Agreement between Parent and Quaboes B.V. and
Shareholders of Gamko Holdings B.V. and of Coolpart B.V.
dated August 11, 1997
- All of the equipment, furniture and supplies at 0000 Xxxxxxxxx
Xxxxxxxxx, Xxxxxx, Xxxxxxxx 00000.
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SCHEDULE B
Excluded Liabilities
The accrued expenses of Parent as of the date hereof.
All current taxes payable as of the date hereof.
Parent's obligations under the following contracts:
- Market Forge Co. Retiree Life and Health Insurance Benefit
Plan, effective November 1, 1993
- Guaranty, executed in favor of the United Steel Workers of
America, AFL-CIO-CLC, MF Acquisition Corp., and Market Forge
Co., effective November 1, 1993
- Stock Purchase Agreement between Parent and Quaboes B.V. and
Shareholders of Gamko Holdings B.V. and of Coolpart B.V. dated
August 11, 1997
- Office Lease between Parent and Lakewoods Realty and Mortgage
Corporation dated August 30, 1995
- Employment Retention Agreements between Parent and the
following executive officers: Xxxxxx X. Xxxxxxxxx, Xxxxxxx X.
Xxxxxxxxxxx, Xxxxxx X. XxXxx, Xxxxxxx X. Xxxxxxxxxxx, Xxxxx
Xxxxxxx, Xxxx Xxxxxxx and Xxxxx Best.
- Indemnification Agreements between Parent and each of its
current and former directors and executive officers.