EXHIBIT 10.29
EXECUTION COPY
SECURITY AGREEMENT dated as of October 17, 1996, as amended
and restated as of August 7, 1997, among RYDER TRS, INC., a
Delaware corporation (the "Borrower"), each subsidiary of the
Borrower listed on Schedule I hereto (each such subsidiary,
individually, a "Guarantor" and, collectively, the "Guarantors";
the Borrower and the Guarantors are referred to collectively
herein as the "Grantors") and CITICORP USA, INC., a Delaware
corporation ("Citicorp"), as collateral agent (the "Collateral
Agent") for the Secured Parties (as defined herein).
Reference is made to the Credit Agreement dated as of October 17, 1996, as
amended and restated as of August 7, 1997 (as further amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"), among the
Borrower, the lenders from time to time party thereto (the "Lenders"), The Chase
Manhattan Bank, as documentation agent, and Citicorp, as administrative agent
(the "Administrative Agent") for the Lenders, and as Collateral Agent.
The Lenders have agreed to make Loans to the Borrower pursuant to, and upon
the terms and subject to the conditions specified in, the Credit Agreement.
Each of the Guarantors has agreed to guarantee, among other things, all the
obligations of the Borrower under the Credit Agreement. The obligations of the
Lenders to make Loans are conditioned upon, among other things, the execution
and delivery by the Grantors of an agreement in the form hereof to secure (a)
the due and punctual payment by the Borrower of (i) the principal of and
premium, if any, and interest (including interest accruing during the pendency
of any bankruptcy, insolvency, receivership or other similar proceeding,
regardless of whether allowed or allowable in such proceeding) on the Loans,
when and as due, whether at maturity, by acceleration, upon one or more dates
set for prepayment or otherwise and (ii) all other monetary obligations,
including fees, costs, expenses and indemnities, whether primary, secondary,
direct, contingent, fixed or otherwise (including monetary obligations incurred
during the pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding), of
the Borrower to the Secured Parties under the Credit Agreement and the other
Loan Documents, (b) the due and punctual performance of all covenants,
agreements, obligations and liabilities of the Borrower under or pursuant to the
Credit Agreement and the other Loan Documents, (c) the due and punctual payment
and performance of all the covenants, agreements, obligations and liabilities of
each Loan Party under or pursuant to this Agreement and the other Loan Documents
and (d) the due and punctual payment and performance of all obligations of the
Borrower, monetary or otherwise, under each Interest Rate Protection Agreement
entered into with any counterparty that was a Lender (or an Affiliate of a
Lender) at the time such Interest Rate Protection Agreement was entered into
(all the monetary and other obligations described in the preceding clauses (a)
through (d) being collectively called the "Obligations").
Accordingly, the Grantors and the Collateral Agent, on behalf of itself and
each Secured Party (and each of their respective successors or assigns), hereby
agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Definition of Terms Used Herein. Unless the context
otherwise requires, all capitalized terms used but not defined herein shall have
the meanings set forth in the Credit Agreement.
SECTION 1.02. Definition of Certain Terms Used Herein. As used herein,
the following terms shall have the following meanings:
"Account Debtor" shall mean any person who is or who may become obligated
to any Grantor under, with respect to or on account of an Account.
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"Accounts" shall mean any and all right, title and interest of any Grantor
to payment for goods, Equipment and services sold or leased (including by or in
connection with Qualifying Rentals), including any such right evidenced by
chattel paper, whether due or to become due, whether or not it has been earned
by performance, and whether now or hereafter acquired or arising in the future,
including accounts receivable from Affiliates of the Grantors.
"Accounts Receivable" shall mean all Accounts and all right, title and
interest in any returned goods or Equipment, together with all rights, titles,
securities and guarantees with respect thereto, including any rights to stoppage
in transit, replevin, reclamation and resales, and all related security
interests, liens and pledges, whether voluntary or involuntary, in each case
whether now existing or owned or hereafter arising or acquired.
"Agreements" shall mean all Transaction Agreements, leases, whether entered
into as lessor or lessee, Interest Rate Protection Agreements and other
agreements, documents and instruments, including agreements with Dealers, of any
Grantor.
"Authorized Employees" shall have the meaning given such term in Section
6.04(b).
"Collateral" shall mean all (a) Accounts Receivable, (b) Documents, (c)
Equipment, (d) General Intangibles, (e) Inventory, (f) cash and cash accounts
(including the Concentration Account, the Collection Deposit Accounts and the
General Fund Account) and (g) Proceeds.
"Collection Deposit Account" shall mean a lockbox account of a Grantor
maintained for the benefit of the Secured Parties with the Collateral Agent or
with a Sub-Agent pursuant to a Lockbox and Depository Agreement.
"Concentration Account" shall mean the cash collateral account established
at the office of Citicorp located at 000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000, in the
name of the Collateral Agent, Account No. 4071-1405.
"Copyright License" shall mean any written agreement (including the
Copyright License Agreement (as defined in the Purchase Agreement)), now or
hereafter in effect, granting any right to any third party under any Copyright
now or hereafter owned by any Grantor or which such Grantor otherwise has the
right to license, or granting any right to such Grantor under any Copyright now
or hereafter owned by any third party, and all rights of such Grantor under any
such agreement.
"Copyrights" shall mean all of the following now owned or hereafter
acquired by any Grantor: (a) all copyright rights in any work subject to the
copyright laws of the United States or any other country, whether as author,
assignee, transferee or otherwise, and (b) all registrations and applications
for registration of any such copyright in the United States or any other
country, including registrations, recordings, supplemental registrations and
pending applications for registration in the United States Copyright Office,
including those listed on Schedule II.
"Credit Agreement" shall have the meaning given such term in the
preliminary statement of this Agreement.
"Designated Location" shall mean any location reasonably approved by the
Collateral Agent for the maintaining and processing of Title Documentation in
accordance with this Agreement.
"Documents" shall mean all instruments, files, records, ledger sheets and
documents covering or relating to any of the Collateral, including Title
Documentation.
"Equipment" shall mean all equipment, furniture and furnishings, and all
tangible personal property similar to any of the foregoing, including Vehicles
(whether intended for sale, rental or lease, whether in custody or possession of
any third person pursuant to a Qualifying Rental, other rental or lease
arrangement, or otherwise), tools, parts and supplies of every kind and
description, and all improvements, accessions or appurtenances thereto, that are
now or hereafter owned by any Grantor.
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"Xxxxx" shall mean FCTR, Inc., a special purpose Delaware corporation and a
wholly owned subsidiary of the Borrower.
"General Fund Account" shall mean the general fund account established at
the office of Citicorp located at 000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000, in the
name of the Borrower, Account No. 4071-1413.
"General Intangibles" shall mean all choses in action and causes of action
and all other assignable intangible personal property of any Grantor of every
kind and nature (other than Accounts Receivable) now owned or hereafter acquired
by any Grantor, including corporate or other business records, indemnification
claims, contract rights (including rights under Agreements), Intellectual
Property, goodwill, registrations, franchises, tax refund claims and any letter
of credit, guarantee, claim, security interest or other security held by or
granted to any Grantor to secure payment by an Account Debtor of any of the
Accounts Receivable. Without limiting the foregoing, the term "General
Intangibles" shall include (a) all rights to receive and demand payments under
the Agreements, (b) all rights to receive and compel performance under the
Agreements and (c) all other rights, interests and claims now existing or
hereafter arising in connection with the Agreements.
"Intellectual Property" shall mean all intellectual and similar property of
any Grantor of every kind and nature now owned or hereafter acquired by any
Grantor, including inventions, designs, Patents, Copyrights, Licenses,
Trademarks, trade secrets, confidential or proprietary technical and business
information, know-how, show-how or other data or information, software and
databases and all embodiments or fixations thereof and related documentation,
registrations and franchises, and all additions, improvements and accessions to,
and books and records describing or used in connection with, any of the
foregoing.
"Inventory" shall mean all goods of any Grantor, whether now owned or
hereafter acquired, held for sale or lease, or furnished or to be furnished by
any Grantor under contracts of service, or consumed in any Grantor's business,
including raw materials, intermediates, work in process, packag ing materials,
finished goods, semi-finished inventory, scrap inventory, manufacturing supplies
and spare parts, and all such goods that have been returned to or repossessed by
or on behalf of any Grantor.
"Leasco" shall mean RCTR, Inc., a special purpose Delaware corporation and
a wholly owned subsidiary of the Borrower.
"License" shall mean any Patent License, Trademark License, Copyright
License or other license or sublicense to which any Grantor is a party,
including those listed on Schedule III (other than those license agreements in
existence on the date hereof and listed on Schedule III and those license
agreements entered into after the date hereof, which by their terms prohibit
assignment or a grant of a security interest by such Grantor as licensee
thereunder).
"Lockbox and Depository Agreement" shall mean a Lockbox and Depository
Agreement substantially in the form of Annex 1 hereto among the Borrower, the
Collateral Agent and a Sub-Agent.
"Lockbox System" shall have the meaning assigned to such term in Section
5.01.
"Motor Vehicle Statute" shall mean the motor vehicle statutes or similar
laws, rules or regulations of any state or other jurisdiction.
"New Vehicles" shall mean all Vehicles other than Seller Vehicles.
"Obligations" shall have the meaning assigned to such term in the
preliminary statement of this Agreement.
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"Patent License" shall mean any written agreement (including the Patent
License Agreement (as defined in the Purchase Agreement)), now or hereafter in
effect, granting to any third party any right to make, use or sell any invention
on which a Patent, now or hereafter owned by any Grantor or which any Grantor
otherwise has the right to license, is in existence, or granting to any Grantor
any right to make, use or sell any invention on which a Patent, now or hereafter
owned by any third party, is in existence, and all rights of any Grantor under
any such agreement.
"Patents" shall mean all of the following now owned or hereafter acquired
by any Grantor: (a) all letters patent of the United States or any other
country, all registrations and recordings thereof, and all applications for
letters patent of the United States or any other country, including
registrations, recordings and pending applications in the United States Patent
and Trademark Office or any similar offices in any other country, including
those listed on Schedule IV, and (b) all reissues, continuations, divisions,
continuations-in-part, renewals or extensions thereof, and the inventions
disclosed or claimed therein, including the right to make, use and/or sell the
inventions disclosed or claimed therein.
"Perfection Certificate" shall mean a certificate substantially in the form
of Annex 2 hereto, completed and supplemented with the schedules and attachments
contemplated thereby, and duly executed by a Financial Officer and the chief
legal officer of the Borrower.
"Proceeds" shall mean any consideration received from the sale, exchange,
license, lease or other disposition of any asset or property that constitutes
Collateral, any value received as a consequence of the possession of any
Collateral and any payment received from any insurer or other person or entity
as a result of the destruction, loss, theft, damage or other involuntary
conversion of whatever nature of any asset or property which constitutes
Collateral, and shall include (a) all cash and negotiable instruments received
by or held on behalf of the Collateral Agent pursuant to the Lockbox System, (b)
any claim of any Grantor against any third party for (and the right to xxx and
recover for and the rights to damages or profits due or accrued arising out of
or in connection with) (i) past, present or future infringement of any Patent
now or hereafter owned by any Grantor, or licensed under a Patent License, (ii)
past, present or future infringement or dilution of any Trademark now or
hereafter owned by any Grantor or licensed under a Trademark License or injury
to the goodwill associated with or symbolized by any Trademark now or hereafter
owned by any Grantor, (iii) past, present or future breach of any License and
(iv) past, present or future infringement of any Copyright now or hereafter
owned by any Grantor or licensed under a Copyright License and (c) any and all
other amounts from time to time paid or payable under or in connection with any
of the Collateral.
"Purchase Agreement" shall mean the Asset and Stock Purchase Agreement
dated as of September 19, 1996, by and between the Seller and the Borrower, as
the same may be amended, modified or supplemented from time to time in
accordance with the terms thereof and the Credit Agreement.
"Secured Parties" shall mean (a) the Lenders, (b) the Administrative Agent,
(c) the Collateral Agent, (d) each counterparty to an Interest Rate Protection
Agreement entered into with the Borrower if such counterparty was a Lender (or
an Affiliate of a Lender) at the time the Interest Rate Protection Agreement was
entered into, (e) the beneficiaries of each indemnification obligation
undertaken by any Grantor under any Loan Document and (f) the successors and
assigns of each of the foregoing.
"Security Interest" shall have the meaning assigned to such term in Section
2.01.
"Seller" shall mean Ryder Truck Rental, Inc., a Florida corporation.
"Seller Vehicles" shall mean all Vehicles acquired from the Seller pursuant
to the Purchase Agreement.
"Sub-Agent" shall mean a financial institution which shall have delivered
to the Collateral Agent an executed Lockbox and Depository Agreement.
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"Title Documentation" shall have the meaning given such term in Section
6.04(a).
"Trademark License" shall mean any written agreement (including the
Trademark License Agreement (as defined in the Purchase Agreement)), now or
hereafter in effect, granting to any third party any right to use any Trademark
now or hereafter owned by any Grantor or which any Grantor otherwise has the
right to license, or granting to any Grantor any right to use any Trademark now
or hereafter owned by any third party, and all rights of any Grantor under any
such agreement.
"Trademarks" shall mean all of the following now owned or hereafter
acquired by any Grantor: (a) all trademarks, service marks, trade names,
corporate names, company names, business names, fictitious business names, trade
styles, trade dress, logos, other source or business identifiers, designs and
general intangibles of like nature, now existing or hereafter adopted or
acquired, all registrations and recordings thereof, and all registration and
recording applications filed in connection therewith, including registrations
and registration applications in the United States Patent and Trademark Office,
any State of the United States or any similar offices in any other country or
any political subdivision thereof, and all extensions or renewals thereof,
including those listed on Schedule V, (b) all goodwill associated therewith or
symbolized thereby and (c) all other assets, rights and interests that uniquely
reflect or embody such goodwill.
"Transaction Agreements" shall mean all of the following: the Purchase
Agreement, the Maintenance Agreement, the Administrative Services Agreement, the
MIS Support Agreement, the Ryder Dealer Agreement, the Used Truck Sales
Agreement, the Software License Agreement, the Shared Facility Licenses, the
Assumption Agreement and the Office Sublease Agreement (each such term as
defined in the Purchase Agreement) and any other agreement, instrument or other
document entered into or delivered by, between or among the Borrower, the Seller
and any of their respective Affiliates in connection with the Acquisition, as
each such agreement, instrument or document may be amended, modified or
supplemented from time to time in accordance with the terms thereof and the
Credit Agreement.
"Vehicle" shall mean any truck or other vehicle owned by the Borrower or
any Subsidiary (other than Leasco) and registered and based in the United States
of America, the body (including the "box" or storage component) and equipment
mounted thereon and all accessions, attachments and accessories of any type or
description attached to such truck or vehicle.
SECTION 1.03. Rules of Interpretation. The rules of interpretation
specified in Section 1.02 of the Credit Agreement shall be applicable to this
Agreement.
ARTICLE II
Security Interest
SECTION 2.01. Security Interest. As security for the payment or
performance, as the case may be, in full of the Obligations, each Grantor hereby
bargains, sells, conveys, assigns, sets over, mortgages, pledges, hypothecates
and transfers to the Collateral Agent, its successors and assigns, for the
ratable benefit of the Secured Parties, and hereby grants to the Collateral
Agent, its successors and assigns, for the ratable benefit of the Secured
Parties, a security interest in, all of such Grantor's right, title and interest
in, to and under the Collateral (the "Security Interest"). Without limiting the
foregoing, the Grantors agree to take, on behalf of the Collateral Agent, the
actions required by Section 6.03 with respect to Vehicles, and the Collateral
Agent is hereby authorized to file one or more financing statements,
continuation statements, filings with the United States Patent and Trademark
Office or United States Copyright Office (or any successor office or any similar
office in any other country) or other documents (without the signature of any
Grantor, and naming any Grantor or the Grantors as debtors and the Collateral
Agent as secured party), in each for the purpose of perfecting, confirming,
continuing, enforcing or protecting the Security Interest granted by each
Grantor. It is acknowledged that Vehicles and any other assets owned by Leasco
or Xxxxx do not constitute part of the Collateral.
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SECTION 2.02. No Assumption of Liability. The Security Interest is
granted as security only and shall not subject the Collateral Agent or any other
Secured Party to, or in any way alter or modify, any obligation or liability of
any Grantor with respect to or arising out of the Collateral.
ARTICLE III
Representations and Warranties
The Grantors jointly and severally represent and warrant to the Collateral
Agent and the Secured Parties that:
SECTION 3.01. Title and Authority. Each Grantor has good and valid rights
in and title to the Collateral with respect to which it has purported to grant a
Security Interest hereunder and has full power and authority to grant to the
Collateral Agent the Security Interest in such Collateral pursuant hereto and to
execute, deliver and perform its obligations in accordance with the terms of
this Agreement, without the consent or approval of any other person other than
any consent or approval which has been obtained.
SECTION 3.02. Filings. (a) The Perfection Certificate has been duly
prepared, completed and executed and the information set forth therein is
correct and complete. The filing of applications for certificates of title and
registration with respect to Vehicles pursuant to Section 6.03, together with
the fully executed Uniform Commercial Code financing statements (including
fixture filings, as applicable) or other appropriate filings, recordings or
registrations containing a description of the Collateral that have been
delivered to the Collateral Agent for filing in each governmental, municipal or
other office specified in Schedule 6 to the Perfection Certificate, are all the
filings, recordings and registrations (other than filings required to be made in
the United States Patent and Trademark Office and the United States Copyright
Office in order to perfect the Security Interest in Collateral consisting of
United States Patents, Trademarks and Copyrights) that are necessary to publish
notice of and protect the validity of and to establish a legal, valid and
perfected security interest in favor of the Collateral Agent (for the ratable
benefit of the Secured Parties) in respect of all Collateral in which the
Security Interest may be perfected by filing, recording or registration in the
United States (or any political subdivision thereof) and its territories and
possessions, and no further or subsequent filing, refiling, recording,
rerecording, registration or reregistration is necessary in any such
jurisdiction, except as provided under applicable law with respect to the filing
of renewals for certificates of registration and the filing of continuation
statements and as provided under subparagraphs (a) and (b) of Section 6.03.
(b) Each Grantor shall ensure that fully executed security agreements in
the form hereof and containing a description of all Collateral consisting of
Intellectual Property shall have been received and recorded, within two Business
Days after the execution of this Agreement, with respect to United States
Patents and United States registered Trademarks (and Trademarks for which United
States registration applications are pending) and United Sates registered
Copyrights by the United States Patent and Trademark Office and the United
States Copyright Office, respectively, pursuant to 35 U.S.C. (S) 261, 15 U.S.C.
(S) 1060 or 17 U.S.C. (S) 205 and the regulations thereunder, as applicable, and
otherwise as may be required pursuant to the laws of any other necessary
jurisdiction, to protect the validity of and to establish a legal, valid and
perfected security interest in favor of the Collateral Agent (for the ratable
benefit of the Secured Parties) in respect of all Collateral consisting of
Patents, Trademarks and Copyrights in which a security interest may be perfected
by filing, recording or registration in the United States (or any political
subdivision thereof) and its territories and possessions, or in any other
necessary jurisdiction, and no further or subsequent filing, refiling,
recording, rerecording, registration or reregistration is necessary (other than
such actions as are necessary to perfect the Security Interest with respect to
any Collateral consisting of Patents, Trademarks and Copyrights (or registration
or application for registration thereof) acquired or developed after the date
hereof).
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SECTION 3.03. Validity of Security Interest. The Security Interest
constitutes (a) a legal and valid security interest in all the Collateral
securing the payment and performance of the Obligations, (b) subject to the
filings described in Section 3.02 above, a perfected security interest in all
Collateral in which a security interest may be perfected by filing, recording or
registering an application for the certificate of title or registration,
financing statement or analogous document in the United States (or any political
subdivision thereof) and its territories and possessions pursuant to the Motor
Vehicle Statute, Uniform Commercial Code or other applicable law in such
jurisdictions and (c) a security interest that shall be perfected in all
Collateral in which a security interest may be perfected upon the receipt and
recording of this Agreement with the United States Patent and Trademark Office
and the United States Copyright Office, as applicable. The Security Interest is
and shall be prior to any other Lien on any of the Collateral, other than
Permitted Liens. None of the Grantors are subject to the Motor Carrier Act of
1980 (or any successor statute thereto) or the rules and regulations promulgated
thereunder by the Interstate Commerce Commission.
SECTION 3.04. Absence of Other Liens. The Collateral is owned by the
Grantors free and clear of any Lien, except for Permitted Liens. The Grantor
has not filed or consented to the filing of (a) any application for a
certificate of title or registration, financing statement or analogous document
for or on behalf of any other person under the Motor Vehicle Statute, Uniform
Commercial Code or any other applicable laws covering any Collateral, (b) any
assignment in which any Grantor assigns any Collateral or any security agreement
or similar instrument covering any Collateral with the United States Patent and
Trademark Office or the United States Copyright Office or (c) any assignment in
which any Grantor assigns any Collateral or any security agreement or similar
instrument covering any Collateral with any foreign governmental, municipal or
other office, which application, financing statement or analogous document is
still in effect, except, in each case, for Permitted Liens.
ARTICLE IV
Covenants
SECTION 4.01. Change of Name; Location of Collateral; Records; Place of
Business. (a) Each Grantor agrees promptly to notify the Collateral Agent in
writing of any change (i) in its corporate name or in any trade name used to
identify it in the conduct of its business or in the owner ship of its
properties, (ii) in the location of its chief executive office, its principal
place of business, any office in which it maintains books or records relating to
Collateral owned by it or any office or facility at which Collateral owned by it
is located (including the establishment of any such new office or facility),
(iii) in its identity or corporate structure or (iv) in its Federal Taxpayer
Identification Number; provided, however, that notice of the addition or
elimination of any Dealer locations or any other change in the location of
Dealers needs to be provided only at such time as the quarterly financial
statements are delivered pursuant to Section 5.04(b) of the Credit Agreement;
provided, further, that the foregoing shall not be deemed to restrict the
movement of Vehicles in the ordinary course of business. Each Grantor agrees
not to effect or permit any change referred to in the preceding sentence (other
than any change in the location of Dealers) unless all filings have been made
under the Uniform Commercial Code or otherwise that are required in order for
the Collateral Agent to continue at all times following such change to have a
valid, legal and perfected first priority security interest in all the
Collateral. Each Grantor agrees promptly to notify the Collateral Agent if any
material portion of the Collateral owned or held by such Grantor is damaged or
destroyed.
(b) Each Grantor agrees to maintain, at its own cost and expense, such
complete and accurate records with respect to the Collateral owned by it as is
consistent with its current practices and in accordance with such prudent and
standard practices used in industries that are the same as or similar to those
in which such Grantor is engaged, but in any event to include complete
accounting records indicating all payments and proceeds received with respect to
any part of the Collateral, and, at such time or times as the Collateral Agent
may reasonably request, promptly to prepare and deliver to the Collateral Agent
a duly certified schedule or schedules in form and detail reasonably
satisfactory to the Collateral Agent showing the identity, amount and location
of any and all Collateral, other than Vehicles, as to which Section 6.06 is
applicable.
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SECTION 4.02. Periodic Certification. Each year, at the time of delivery
of annual financial statements with respect to the preceding fiscal year
pursuant to Section 5.04 of the Credit Agreement, the Borrower shall deliver to
the Collateral Agent a certificate executed by a Financial Officer and the chief
legal officer of the Borrower (a) setting forth the information required
pursuant to Section 2 of the Perfection Certificate or confirming that there has
been no change in such information since the date of such certificate or the
date of the most recent certificate delivered pursuant to Section 4.02 and (b)
certifying that all Motor Vehicle Statute filings, Uniform Commercial Code
financing statements or other appropriate filings, recordings or registrations,
including all renewals, refilings, rerecordings and reregistrations, have been
filed of record in each governmental, municipal or other appropriate office in
each jurisdiction identified pursuant to clause (a) above to the extent
necessary to protect and perfect the Security Interest for a period of not less
than 18 months after the date of such certificate (except as noted therein with
respect to any renewals of certificates of registration for Vehicles or
continuation statements to be filed within such period). Each certificate
delivered pursuant to this Section 4.02 shall identify in the format of Schedule
II, III, IV or V, as applicable, all Intellectual Property of any Grantor in
existence on the date thereof and not then listed on such Schedules or
previously so identified to the Collateral Agent.
SECTION 4.03. Protection of Security. Each Grantor shall, at its own cost
and expense, take any and all actions necessary to defend title to the
Collateral against all persons and to defend the Security Interest of the
Collateral Agent in the Collateral and the priority thereof against any Lien
other than, to the extent permitted by the Credit Agreement, Permitted Liens.
SECTION 4.04. Further Assurances. Each Grantor agrees, at its own
expense, to execute, acknowledge, deliver and cause to be duly filed all such
further instruments and documents and take all such actions as the Collateral
Agent may from time to time request to better assure, preserve, protect and
perfect the Security Interest and the rights and remedies created hereby,
including the payment of any fees and taxes required in connection with the
execution and delivery of this Agree ment, the granting of the Security
Interest and the filing of any financing statements or other documents in
connection herewith or therewith. If any amount payable under or in connection
with any of the Collateral shall be or become evidenced by any promissory note
or other instrument, such note or instrument shall be immediately pledged and
delivered to the Collateral Agent, duly endorsed in a manner satisfactory to the
Collateral Agent.
Without limiting the generality of the foregoing, each Grantor hereby
authorizes the Collateral Agent, with prompt notice thereof to the Grantors, to
supplement this Agreement by supplementing Schedule II, III, IV or V hereto or
adding additional schedules hereto to specifically identify any asset or item
that may constitute Copyrights, Licenses, Patents or Trademarks; provided,
however, that any Grantor shall have the right, exercisable within 15 days after
it has been notified by the Collateral Agent of the specific identification of
such Collateral, to advise the Collateral Agent in writing of any inaccuracy of
the representations and warranties made by such Grantor hereunder with respect
to such Collateral. Each Grantor agrees that it will use its best efforts to
take such action as shall be necessary in order that all representations and
warranties hereunder shall be true and correct with respect to such Collateral
within 45 days after the date it has been notified by the Collateral Agent of
the specific identification of such Collateral.
SECTION 4.05. Inspection and Verification. The Collateral Agent and such
persons as the Collateral Agent may reasonably designate shall have the right,
at the Grantors' own cost and expense, to inspect the Collateral, all records
related thereto (and to make extracts and copies from such records) and the
premises upon which any of the Collateral is located (including Dealer
locations), to discuss the Grantors' affairs with the officers of the Grantors
and their independent accountants and to verify under reasonable procedures, in
accordance with Section 5.11 of the Credit Agreement, the validity, amount,
quality, quantity, value, condition and status of, or any other matter relating
to, the Collateral, including, in the case of Accounts or Collateral in the
possession of any third person (including Dealers), by contacting Account
Debtors or the third person possessing such Collateral for the purpose of making
such a verification, provided that (a) so long as no Default or Event of Default
shall have occurred and be continuing, there shall be no more than one such
inspection and verification by any of the Collateral Agent or such other persons
in any fiscal quarter of the Borrower,
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(b) the business of the Borrower and the Subsidiaries shall not be unreasonably
disrupted by any such inspection and verification and (c) the Collateral Agent
shall use reasonable efforts to coordinate any such inspection and verification
with evaluations and appraisals of the Borrowing Base conducted pursuant to
Section 5.11(a) of the Credit Agreement. The Collateral Agent shall have the
absolute right to share any information it gains from such inspection or
verification with any Secured Party (it being understood that any such
information shall be deemed to be "Information" subject to the provisions of
Section 9.16 of the Credit Agreement).
SECTION 4.06. Taxes; Encumbrances. At its option, the Collateral Agent
may discharge past due taxes, assessments, charges, fees, Liens, security
interests or other encumbrances at any time levied or placed on the Collateral
and not constituting Permitted Liens, and may pay for the maintenance and
preservation of the Collateral to the extent any Grantor fails to do so as
required by the Credit Agreement or this Agreement, and each Grantor jointly and
severally agrees to reimburse the Collateral Agent on demand for any payment
made or any expense incurred by the Collateral Agent pursuant to the foregoing
authorization; provided, however, that nothing in this Section 4.06 shall be
interpreted as excusing any Grantor from the performance of, or imposing any
obligation on the Collateral Agent or any Secured Party to cure or perform, any
covenants or other promises of any Grantor with respect to taxes, assessments,
charges, fees, liens, security interests or other encumbrances and maintenance
as set forth herein or in the other Loan Documents.
SECTION 4.07. Assignment of Security Interest. If at any time any Grantor
shall take a secu rity interest in any property of an Account Debtor or any
other person to secure payment and performance of an Account, such Grantor shall
promptly assign such security interest to the Collateral Agent. Such assignment
need not be filed of public record unless necessary to continue the perfected
status of the security interest against creditors of and transferees from the
Account Debtor or other person granting the security interest.
SECTION 4.08. Continuing Obligations of the Grantors. Each Grantor shall
remain liable to observe and perform all the conditions and obligations to be
observed and performed by it under each contract, agreement or instrument
relating to the Collateral, all in accordance with the terms and conditions
thereof, and each Grantor jointly and severally agrees to indemnify and hold
harmless the Collateral Agent and the Secured Parties from and against any and
all liability for such performance.
SECTION 4.09. Use and Disposition of Collateral. None of the Grantors
shall make or permit to be made an assignment, pledge or hypothecation of the
Collateral or shall grant any other Lien in respect of the Collateral, except
for Permitted Liens. None of the Grantors shall make or permit to be made any
transfer of the Collateral and each Grantor shall remain at all times in posses
sion of the Collateral owned by it, except that (a) Inventory may be sold in the
ordinary course of business, (b) Vehicles may be leased by Dealers pursuant to
Qualifying Rentals and other Equipment may be sold or leased by Dealers in bona
fide transactions, in each case in the ordinary course of business, (c) Vehicles
and other Equipment may be held in the possession of other persons when being
repaired by such persons in the ordinary course of such Grantor's business and
(d) unless and until the Collateral Agent shall notify the Grantors that an
Event of Default shall have occurred and be continuing and that during the
continuance thereof the Grantors shall not sell, convey, lease, assign, transfer
or otherwise dispose of any Collateral (which notice may be given by telephone
if promptly confirmed in writing), the Grantors may use and dispose of the
Collateral in any lawful manner not inconsistent with the provisions of this
Agreement, the Credit Agreement or any other Loan Document. Without limiting
the generality of the foregoing, each Grantor agrees that it shall not permit
any Inventory or Equipment to be in the possession or control of any
warehouseman, bailee, agent, processor or Dealer at any time unless such
warehouseman, bailee, agent, processor or Dealer shall have been notified of the
Security Interest and shall have agreed in writing to hold the Inventory or
Equipment subject to the Security Interest and the instructions of the
Collateral Agent and to waive and release any Lien held by it with respect to
such Inventory or Equipment, whether arising by operation of law or otherwise,
provided that (a) in the case of Dealers in existence on the date hereof, the
Grantors may provide such notice to, and obtain such agreement from, such
Dealers not later than 90 days after the date hereof and (b) persons repairing
dollies in the ordinary course of business need not be so notified or make such
agreement.
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SECTION 4.10. Limitation on Modification of Accounts. None of the
Grantors will, without the Collateral Agent's prior written consent, grant any
extension of the time of payment of any of the Accounts Receivable, compromise,
compound or settle the same for less than the full amount thereof, release,
wholly or partly, any person liable for the payment thereof or allow any credit
or discount whatsoever thereon, other than extensions, credits, discounts,
compromises or settlements granted or made in the ordinary course of business
and consistent with its current practices and in accordance with such prudent
and standard practices used in industries that are the same as or similar to
those in which such Grantor is engaged.
SECTION 4.11. Insurance. The Grantors, at their own expense, shall
maintain or cause to be maintained insurance covering physical loss or damage to
the Inventory and Equipment in accor dance with Section 5.02 of the Credit
Agreement. Each Grantor irrevocably makes, constitutes and appoints the
Collateral Agent (and all officers, employees or agents designated by the
Collateral Agent) as such Grantor's true and lawful agent (and attorney-in-fact)
for the purpose, during the continuance of an Event of Default, of making,
settling and adjusting claims in respect of Collateral under policies of
insurance, endorsing the name of such Grantor on any check, draft, instrument or
other item of payment for the proceeds of such policies of insurance and for
making all determinations and decisions with respect thereto. In the event that
any Grantor at any time or times shall fail to obtain or maintain any of the
policies of insurance required hereby or to pay any premium in whole or part
relating thereto, the Collateral Agent may, without waiving or releasing any
obligation or liability of the Grantors hereunder or any Event of Default, in
its sole discretion, obtain and maintain such policies of insurance and pay such
premium and take any other actions with respect thereto as the Collateral Agent
deems advisable. All sums disbursed by the Collateral Agent in connection with
this Section 4.11, including reasonable attorneys' fees, court costs, expenses
and other charges relating thereto, shall be payable, upon demand, by the
Grantors to the Collateral Agent and shall be additional Obligations secured
hereby.
SECTION 4.12. Legend. Each Grantor shall legend, in form and manner
reasonably satisfactory to the Collateral Agent, its Accounts Receivable and its
books, records and documents evidencing or pertaining thereto with an
appropriate reference to the fact that such Accounts Receivable have been
assigned to the Collateral Agent for the benefit of the Secured Parties and that
the Collateral Agent has a security interest therein.
SECTION 4.13. Covenants Regarding Patent, Trademark and Copyright
Collateral. (a) Each Grantor agrees that it will not, nor will it permit any of
its licensees to, do any act, or omit to do any act, whereby any Patent which is
material to the conduct of such Grantor's business may become invalidated or
dedicated to the public, and agrees that it shall continue to xxxx any products
covered by a Patent with the relevant patent number as necessary and sufficient
to establish and preserve its maximum rights under applicable patent laws.
(b) Each Grantor (either itself or through its licensees or its
sublicensees) will, for each Trademark material to the conduct of such Grantor's
business, (i) maintain such Trademark in full force free from any claim of
abandonment or invalidity for non-use, (ii) maintain the quality of products and
services offered under such Trademark, (iii) display such Trademark with notice
of Federal or foreign registration to the extent necessary and sufficient to
establish and preserve its maximum rights under applicable law and (iv) not
knowingly use or knowingly permit the use of such Trademark in violation of any
third party rights.
(c) Each Grantor (either itself or through licensees) will, for each work
covered by a material Copyright, continue to publish, reproduce, display, adopt
and distribute the work with appropriate copyright notice as necessary and
sufficient to establish and preserve its maximum rights under applicable
copyright laws.
(d) Each Grantor shall notify the Collateral Agent immediately if it knows
or has reason to know that any Patent, Trademark or Copyright material to the
conduct of its business may become abandoned, lost or dedicated to the public,
or of any adverse determination or development (including the institution of, or
any such determination or development in, any proceeding in the United States
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Patent and Trademark Office, United States Copyright Office or any court or
similar office of any country) regarding such Grantor's ownership of any Patent,
Trademark or Copyright, its right to register the same, or to keep and maintain
the same.
(e) In no event shall any Grantor, either itself or through any agent,
employee, licensee or designee, file an application for any Patent, Trademark or
Copyright (or for the registration of any Trademark or Copyright) with the
United States Patent and Trademark Office, United States Copyright Office or any
office or agency in any political subdivision of the United States or in any
other country or any political subdivision thereof, unless it promptly informs
the Collateral Agent, and, upon request of the Collateral Agent, executes and
delivers any and all agreements, instruments, documents and papers as the
Collateral Agent may request to evidence the Collateral Agent's security
interest in such Patent, Trademark or Copyright, and each Grantor hereby
appoints the Collateral Agent as its attorney-in-fact to execute and file such
writings for the foregoing purposes, all acts of such attorney being hereby
ratified and confirmed; such power, being coupled with an interest, is
irrevocable.
(f) Each Grantor will take all necessary steps that are consistent with
the practice in any proceeding before the United States Patent and Trademark
Office, United States Copyright Office or any office or agency in any political
subdivision of the United States or in any other country or any political
subdivision thereof, to maintain and pursue each material application relating
to the Patents, Trademarks and/or Copyrights (and to obtain the relevant grant
or registration) and to maintain each issued Patent and each registration of the
Trademarks and Copyrights that is material to the conduct of any Grantor's
business, including timely filings of applications for renewal, affidavits of
use, affidavits of incontestability and payment of maintenance fees, and, if
consistent with good business judgment, to initiate opposition, interference and
cancelation proceedings against third parties.
(g) In the event that any Grantor has reason to believe that any
Collateral consisting of a Patent, Trademark or Copyright material to the
conduct of any Grantor's business has been or is about to be infringed,
misappropriated or diluted by a third party, such Grantor promptly shall notify
the Collateral Agent and shall, if consistent with good business judgment,
promptly xxx for infringement, misappropriation or dilution and to recover any
and all damages for such infringement, misappropriation or dilution, and take
such other actions as are appropriate under the circumstances to protect such
Collateral.
(h) Upon and during the continuance of an Event of Default, each Grantor
shall use its best efforts to obtain all requisite consents or approvals by the
licensor of each Copyright License, Patent License or Trademark License to
effect the assignment of all of such Grantor's right, title and interest
thereunder to the Collateral Agent or its designee.
ARTICLE V
Collections
SECTION 5.01. Lockbox System. (a) The Grantors shall maintain in the
name of the Collateral Agent, and subject to the control of the Collateral Agent
pursuant to the Lockbox and Depository Agreements, for the ratable benefit of
the Collateral Agent and the other Secured Parties, a system of lockboxes and
related deposit accounts (the "Lockbox System") with one or more financial
institutions that are reasonably satisfactory to the Collateral Agent into which
the Proceeds of all Accounts Receivable, Inventory and Equipment shall be
deposited and forwarded to the Collateral Agent in accordance with the Lockbox
and Depository Agreements.
(b) All Proceeds of Accounts Receivable, Inventory and Equipment that have
been received on any Business Day through the Lockbox System will be transferred
into the Concentration Account on such Business Day to the extent required by
the applicable Lockbox and Depository Agreement. All Proceeds stemming from the
sale of a substantial portion of the Collateral that have been received by a
Grantor on any Business Day will be transferred into the Concentration Account
on such
12
Business Day. All dividends, distributions or other payments received by the
Borrower from Leasco will be transferred into the Concentration Account on the
Business Day on which such dividends, distributions or payments are so received
by the Borrower. All Proceeds received on any Business Day by the Collateral
Agent pursuant to Section 5.02 will be transferred into the Concentration
Account on such Business Day.
(c) The Concentration Account is, and shall remain, under the sole
dominion and control of the Collateral Agent. Each Grantor acknowledges and
agrees that (i) such Grantor has no right of withdrawal from the Concentration
Account, (ii) the funds on deposit in the Concentration Account shall continue
to be collateral security for all of the Obligations and (iii) upon the
occurrence and during the continuance of an Event of Default, at the Collateral
Agent's election, the funds on deposit in the Concentration Account shall be
applied as provided in Section 7.02. So long as no Event of Default has
occurred and is continuing, the Collateral Agent shall promptly remit any funds
on deposit in the Concentration Account to the General Fund Account and the
Borrower shall have the right, at any time and from time to time, to withdraw
such amounts from the General Fund Account as it shall deem to be necessary or
desirable.
(d) Effective upon notice to the Grantors from the Collateral Agent after
the occurrence and during the continuance of an Event of Default (which notice
may be given by telephone if promptly confirmed in writing), the Concentration
Account will, without any further action on the part of any Grantor, the
Collateral Agent or any Sub-Agent, convert into a closed lockbox account under
the exclusive dominion and control of the Collateral Agent in which funds are
held subject to the rights of the Collateral Agent hereunder. Each Grantor
irrevocably authorizes the Collateral Agent to notify each Sub-Agent (i) of the
occurrence of an Event of Default and (ii) of the matters referred to in this
paragraph (d). Following the occurrence of an Event of Default, the Collateral
Agent may instruct each Sub-Agent to transfer immediately all funds held in each
deposit account to the Concentration Account.
SECTION 5.02. Collections. (a) Each Grantor agrees (i) to notify and
direct promptly each Account Debtor and every other person obligated to make
payments on Accounts Receivable or in respect of any Inventory or Equipment to
make all such payments directly to the Lockbox System established in accordance
with Section 5.01, (ii) to use all reasonable efforts to cause each Account
Debtor and every other person identified in clause (i) above to make all
payments with respect to Accounts Receivable, Inventory and Equipment directly
to such Lockbox System and (iii) promptly to deposit all payments received by it
on account of Accounts Receivable, Inventory and Equipment, whether in the form
of cash, checks, notes, drafts, bills of exchange, money orders or otherwise, in
the Lockbox System in precisely the form in which received (but with any
endorsements of such Grantor necessary for deposit or collection), and until
they are so deposited such payments shall be held in trust by such Grantor for
and as the property of the Collateral Agent.
(b) Without the prior written consent of the Collateral Agent, no Grantor
shall, in a manner adverse to the Lenders, change the general instructions given
to Account Debtors in respect of payment on Accounts to be deposited in the
Lockbox System. Until the Collateral Agent shall have advised the Grantors to
the contrary, each Grantor shall, and the Collateral Agent hereby authorizes
each Grantor to, enforce and collect all amounts owing on the Accounts
Receivable, Inventory and Equipment, for the benefit and on behalf of the
Collateral Agent and the other Secured Parties; provided, however, that such
privilege may at the option of the Collateral Agent be terminated upon the
occurrence and during the continuance of an Event of Default.
SECTION 5.03. Power of Attorney. Each Grantor irrevocably makes,
constitutes and appoints the Collateral Agent (and all officers, employees or
agents designated by the Collateral Agent) as such Grantor's true and lawful
agent and attorney-in-fact, and in such capacity the Collateral Agent shall have
the right, with power of substitution for each Grantor and in each Grantor's
name or otherwise, for the use and benefit of the Collateral Agent and the
Secured Parties, upon the occurrence and during the continuance of an Event of
Default (a) to receive, endorse, assign and/or deliver any and all notes,
acceptances, checks, drafts, money orders or other evidences of payment relating
to the Collateral or any part thereof; (b) to demand, collect, receive payment
of, give receipt for and give
13
discharges and releases of all or any of the Collateral; (c) to sign the name of
any Grantor on any invoice or xxxx of lading relating to any of the Collateral;
(d) to send verifications of Accounts Receivable to any Account Debtor; (e) to
commence and prosecute any and all suits, actions or pro ceedings at law or in
equity in any court of competent jurisdiction to collect or otherwise realize on
all or any of the Collateral or to enforce any rights in respect of any
Collateral; (f) to settle, com promise, compound, adjust or defend any actions,
suits or proceedings relating to all or any of the Collateral; (g) to notify, or
to require any Grantor to notify, Account Debtors to make payment directly to
the Collateral Agent; and (h) to use, sell, assign, transfer, pledge, make any
agreement with respect to or otherwise deal with all or any of the Collateral,
and to do all other acts and things necessary to carry out the purposes of this
Agreement, as fully and completely as though the Collateral Agent were the
absolute owner of the Collateral for all purposes; provided, however, that
nothing contained in this Section 5.03 shall be construed as requiring or
obligating the Collateral Agent or any Secured Party to make any commitment or
to make any inquiry as to the nature or sufficiency of any payment received by
the Collateral Agent or any Secured Party, or to present or file any claim or
notice, or to take any action with respect to the Collateral or any part thereof
or the moneys due or to become due in respect thereof or any property covered
thereby, and no action taken or omitted to be taken by the Collateral Agent or
any Secured Party with respect to the Collateral or any part thereof shall give
rise to any defense, counterclaim or offset in favor of any Grantor or to any
claim or action against the Collateral Agent or any Secured Party. It is
understood and agreed that the appointment of the Collateral Agent as the agent
and attorney-in-fact of the Grantors for the purposes set forth above is coupled
with an interest and is irrevocable. The provisions of this Section shall in no
event relieve any Grantor of any of its obligations hereunder or under any other
Loan Document with respect to the Collateral or any part thereof or impose any
obligation on the Collateral Agent or any Secured Party to proceed in any
particular manner with respect to the Collateral or any part thereof, or in any
way limit the exercise by the Collateral Agent or any Secured Party of any other
or further right which it may have on the date of this Agreement or hereafter,
whether hereunder, under any other Loan Document, by law or otherwise.
ARTICLE VI
Vehicles
SECTION 6.01. General. The following provisions of this Article VI and
the provisions of Article IV relating to Vehicles (including Section 4.11) shall
apply to all Vehicles legally or beneficially owned by the Borrower or any
Grantor.
SECTION 6.02. Titling. (a) With respect to each Seller Vehicle then
owned by a Grantor, such Grantor shall, in the ordinary course of business (but
in no event later than October 17, 1997), file an application for a certificate
of title and a certificate of registration for such Seller Vehicle from each
state or other jurisdiction in which such Seller Vehicle is required to be
titled or registered, except to the extent such Seller Vehicle shall no longer
be owned by such Grantor.
(b) With respect to each New Vehicle, the applicable Grantor shall, as
soon as reasonably practicable, file an application for, and obtain, a
certificate of title and a certificate of registration for such New Vehicle from
each state or other jurisdiction in which such New Vehicle is required to be
titled or registered, provided that in no event shall such filing be made later
than 14 days following the later of (i) the time of delivery to such Grantor of
such New Vehicle and (ii) the payment by such Grantor of the purchase price for
such New Vehicle.
(c) The Grantors shall obtain all new certificates of title and
registration for the Vehicles as required by applicable law. Certificates of
title and registration for the Vehicles shall be obtained from the department or
registry of motor vehicles or other relevant body in each state or other
jurisdiction in which the Vehicles are required to be titled or registered.
Each Grantor shall take such action as shall be necessary from time to time to
avoid suspension, revocation or invalidation of any certificates of title, and
to renew and maintain all certificates of registration, for the Vehicles. No
Grantor shall operate any Vehicle, or permit any Vehicle to be operated, in such
a manner as could
14
cause any certificate of title or registration for such Vehicle to be suspended,
revoked or invalidated or otherwise adversely affected.
SECTION 6.03. First Lien of Collateral Agent. The certificate of title
for each Vehicle shall designate the applicable Grantor as the registered owner
and "Citicorp USA, Inc. or its successors and assigns, as collateral agent" as
the first lienholder. To the extent:
(a) such Vehicle is subject to a certificate of title issued by a
state or other jurisdiction in which the perfection of a security interest
in such Vehicle requires possession of such certificate of title by the
secured party, the applicable Grantor shall deliver to the Collateral Agent
such certificate of title promptly upon such Grantor's receipt thereof; and
(b) such Vehicle is registered in a state or other jurisdiction in
which the perfection of a security interest in such Vehicle held as
Inventory requires the filing of a Uniform Commercial Code financing
statement or other filing, recording or registration covering such
Inventory, the Collateral Agent is hereby authorized to make such filings
as are described in the second sentence of Section 2.01 with respect to
such Vehicle.
SECTION 6.04. Title Documentation. (a) Each Grantor shall maintain and
process in a safe, fireproof and secure manner at the Designated Location all
original title and registration documentation, and copies of all applications
for title, with respect to the Vehicles (collectively, the "Title
Documentation"). In no event shall any Grantor release or surrender any Title
Documentation other than in accordance with this Agreement or shall any Title
Documentation be maintained or processed at any location other than the
Designated Location. The Designated Location shall not be used for any other
purpose other than for maintaining and processing Title Documentation, and no
employee or agent of any Grantor or any other person shall have any access
thereto other than the Authorized Employees. The Designated Location shall be a
separate fireproof room that shall be locked whenever not in use by Authorized
Employees. The Titling Documentation shall be maintained in fireproof file
cabinets that shall be locked whenever not in use by Authorized Employees. The
keys to the Designated Location and such file cabinets shall be held only by the
Authorized Employees, provided that a copy of such keys shall be held by the
Collateral Agent. Such file cabinets shall be raised off of the floor so as not
to incur water damage if the sprinkler system shall be activated.
Notwithstanding the foregoing, until 180 days after the Restatement Closing Date
the Title Documentation for such Vehicle may be maintained and processed by
Authorized Employees (who may be employees of the Seller) in the same manner and
at the same location used immediately prior to the date hereof by the Seller for
such purposes, provided that (i) such Titling Documentation shall be maintained
in fireproof file cabinets that shall be locked when not in use by Authorized
Employees and (ii) the Collateral Agent shall be given a copy of the keys to
such file cabinets.
(b) Each of the employees of the Grantors (or, in the case of the last
sentence of the foregoing paragraph (a), of the Seller) who will at any time be
authorized to maintain and process, and to have any access to, the Title
Documentation (the "Authorized Employees"), including for purposes of taking any
of the actions described in clauses (i) and (ii) of Section 6.05(a), shall be in
good standing with the Grantors (or the Seller), and no Responsible Officer of
any Grantor (or the Seller) shall have any reason to question the veracity,
integrity or abilities of any such Authorized Employee. Each Authorized
Employee shall be qualified to perform the responsibilities delegated to such
Authorized Employee. Schedule VI sets forth a correct list of all the
Authorized Employees as of the date hereof. The Borrower shall promptly provide
the Collateral Agent with revised copies of such Schedule so that at all times
such Schedule correctly identifies the then-Authorized Employees. Not later
than 45 days after the Restatement Closing Date, each Authorized Employee shall
be bonded for the benefit of the Collateral Agent on behalf of the Secured
Parties in an amount equal to not less than $1,000,000 per Authorized Employee
pursuant to a bond issued by a reputable bonding company, such bond and bonding
company being reasonably satisfactory to the Collateral Agent.
(c) The Collateral Agent and such persons as the Collateral Agent may
reasonably designate shall have the right to inspect the Designated Location and
the Title Documentation (and to make extracts and copies of the Title
Documentation) and to discuss the Title Documentation and the
15
maintaining and processing of it with the Authorized Employees and the officers
of the Grantors, all at the Grantors' own cost and expense, provided that (i) so
long as no Default or Event of Default shall have occurred and be continuing,
there shall be no more than one such inspection by any of the Collateral Agent
or such other persons in any fiscal quarter of the Borrower, (ii) the business
of the Borrower and the Subsidiaries shall not be unreasonably disrupted by any
such inspection and (iii) the Collateral Agent shall use reasonable efforts to
coordinate any such inspection with evaluations and appraisals of the Borrowing
Base conducted pursuant to Section 5.11(a) of the Credit Agreement. The
Collateral Agent shall have the absolute right to share any information it gains
from such inspection with any Secured Party (it being understood that any such
information shall be deemed to be "Information" subject to the provisions of
Section 9.16 of the Credit Agreement).
SECTION 6.05. Power of Attorney. (a) The Collateral Agent hereby makes,
constitutes and appoints each Grantor (and each Authorized Employee) as the
Collateral Agent's true and lawful agent (and attorney-in-fact) for the purpose
of taking such actions as are necessary (i) to note the Collateral Agent as the
holder of a first lien on the certificates of title for the Vehicles (and,
pursuant to Section 6.03, to execute and file any related Uniform Commercial
Code financing statements or other documentation) and to cause the certificates
of registration for the Vehicles to be issued in the name of the Collateral
Agent (if required pursuant to subparagraph (c) of Section 6.03) and (ii) to
release the Collateral Agent's lien on any such certificate of title (and to
file termination statements or similar documents with respect to any such
related Uniform Commercial Code or other filings) in connection with a Vehicle
Sale permitted under the Credit Agreement and to permit any such related
certificate of registration to be reissued in the name of the acquiror under
such Vehicle Sale.
(b) Upon the occurrence and during the continuance of an Event of Default,
the Collateral Agent may at any time terminate the foregoing power of attorney
(including the related power granted under paragraph (c) below) by giving notice
to such effect to the Borrower).
(c) To further evidence the power of attorney referred to in paragraph (a)
above, the Collateral Agent agrees that, upon the request of any Grantor, it
will execute a separate power of attorney substantially in the form of Annex 4.
(d) So long as the power of attorney set forth in paragraph (a) above
shall not have been terminated, the Collateral Agent will deliver to the
applicable Grantor any certificate of title or registration it possesses
pursuant to Section 6.03 with respect to Vehicles subject to Vehicle Sales
permitted under the Credit Agreement.
SECTION 6.06. Reports. (a) Not later than 45 days after the end of each
fiscal quarter of the Borrower (or, if a Default or Event of Default shall have
occurred and be continuing, not later than 20 days after the end of each month),
the Borrower will provide the Collateral Agent with a complete list of all
Vehicles as of the last day of such quarter (or month), indicating which
Vehicles have been added or deleted since the list most recently delivered to
the Collateral Agent and, for each Vehicle, any state or other jurisdiction from
which a certificate of title or registration for such Vehicle has been issued
and is in effect and whether any such state or other jurisdiction requires any
of the actions described in subparagraph (a) or (b) of Section 6.03 to be taken.
(b) Not more than once every six months (as measured from the most recent
request, other than requests made pursuant to the following proviso), upon the
request of the Required Lenders or the Collateral Agent, the Borrower will cause
a title check of a representative or random sample of certificates of title and
registration (such sample to be compiled taking into account the multiple states
and other jurisdictions from which certificates of title and registration for
Vehicles have been issued) by a third person reasonably acceptable to the
Collateral Agent (or, at the Collateral Agent's election, by the Collateral
Agent) on a reasonable number (but in no event less than 2%) of the Vehicles,
including verification that the certificates of title note the Collateral Agent
as the first lienholder thereon and that the requirements set forth in
subparagraphs (a), (b) and (c) of Section 6.03 have been satisfied, and shall
prepare a report of exceptions with the results of such title check and cause
such report to be furnished to the Required Lenders or the Collateral Agent, as
applicable; provided, however, that if any such title check reveals that 5% of
such sample does not comply with all the
16
requirements set forth in Section 6.03, then, upon the request of the Required
Lenders or the Collateral Agent, the Borrower will cause additional title checks
to be performed on a reasonable number of other Vehicles and the Grantors shall
take such actions as the Required Lenders or the Collateral Agent may reasonably
request to improve the Grantors' procedures for maintaining and processing Title
Documentation.
SECTION 6.07. Collateral Agent. (a) Each Grantor irrevocably makes,
constitutes and appoints the Collateral Agent (and all officers, employees or
agents designated by the Collateral Agent) as such Grantor's true and lawful
agent (and attorney-in-fact) for the purpose, upon the occurrence and during the
continuance of an Event of Default, of taking all actions with respect to the
Vehicles as are specified in Sections 6.02 and 6.03 and for making all
determinations and decisions with respect thereto. In the event that any
Grantor at any time or times shall fail to take any such action or any other
action required by this Article VI, the Collateral Agent may, without waiving or
releasing any obligation or liability of the Grantors hereafter or any Event of
Default, in its sole discretion, take such actions and any other actions with
respect thereto as the Collateral Agent deems advisable.
(b) Upon the occurrence and during the continuance of an Event of Default,
the Collateral Agent shall have such remedies with respect to the Title
Documentation as are set forth in Section 7.01. No exercise by the Collateral
Agent of any such remedies shall release the Grantors of any of their
obligations under this Article VI, including Sections 6.02 and 6.03.
SECTION 6.07. Expenses. All actions required to be taken by the Borrower
or any other Grantor under this Article VI shall be taken at the Borrower's or
such Grantor's own cost and expense (other than as set forth in the proviso to
Section 6.04(c)).
SECTION 6.08. No Limitation. Nothing in this Article VI shall limit any
other obligation or liability of the Borrower or any other Grantor set forth
elsewhere in this Agreement or any other Loan Document.
ARTICLE VII
Remedies
SECTION 7.01. Remedies upon Default. Upon the occurrence and during the
continuance of an Event of Default, each Grantor agrees to deliver each item of
Collateral (including Title Documentation) to the Collateral Agent on demand,
and it is agreed that the Collateral Agent shall have the right (but not the
obligation) to take any of or all the following actions at the same or different
times: (a) with respect to any Collateral consisting of Intellectual Property,
on demand, to cause the Security Interest to become an assignment, transfer and
conveyance of any of or all such Collateral by the applicable Grantors to the
Collateral Agent, or to license or sublicense, whether general, special or
otherwise, and whether on an exclusive or non-exclusive basis, any such
Collateral throughout the world on such terms and conditions and in such manner
as the Collateral Agent shall determine (other than in violation of any then-
existing licensing arrangements to the extent that waivers cannot be obtained),
(b) with or without legal process and with or without prior notice or demand for
performance, in its own name or the name of the applicable Grantor, (i) to
demand, xxx upon or otherwise enforce the Agreements with full power as though
the Collateral Agent were the party named in the Agreements, and amend, revise,
release or otherwise change the same as may seem proper to the Collateral Agent
in its sole discretion and exercise all other rights of the applicable Grantor
under the Agreements in such manner as the Collateral Agent may determine in its
sole discretion and (ii) to perform for the applicable Grantor under the
Agreements, and (c) with or without legal process and with or without prior
notice or demand for performance, to take possession of the Collateral and
without liability for trespass to enter any premises where the Collateral may be
located for the purpose of taking possession of or removing the Collateral
(including any Dealer location and including entering the Designated Location
and taking possession of or removing any amount of or all the Title
Documentation) and, generally, to exercise any and all rights afforded to a
secured party
17
under the Uniform Commercial Code or other applicable law. Without limiting the
generality of the foregoing, each Grantor agrees that the Collateral Agent shall
have the right, subject to the mandatory requirements of applicable law, to sell
or otherwise dispose of all or any part of the Collateral, at public or private
sale or at any broker's board or on any securities exchange, for cash, upon
credit or for future delivery as the Collateral Agent shall deem appropriate.
The Collateral Agent shall be authorized at any such sale (if it deems it
advisable to do so) to restrict the prospective bidders or purchasers to persons
who will represent and agree that they are purchasing the Collateral for their
own account for investment and not with a view to the distribution or sale
thereof, and upon consum mation of any such sale the Collateral Agent shall have
the right to assign, transfer and deliver to the purchaser or purchasers thereof
the Collateral so sold. Each such purchaser at any such sale shall hold the
property sold absolutely, free from any claim or right on the part of any
Grantor, and each Grantor hereby waives (to the extent permitted by law) all
rights of redemption, stay and appraisal which such Grantor now has or may at
any time in the future have under any rule of law or statute now existing or
hereafter enacted.
The Collateral Agent shall give the Grantors 10 days' written notice (which
each Grantor agrees is reasonable notice within the meaning of Section 9-504(3)
of the Uniform Commercial Code as in effect in the State of New York or its
equivalent in other jurisdictions) of the Collateral Agent's intention to make
any sale of Collateral. Such notice, in the case of a public sale, shall state
the time and place for such sale and, in the case of a sale at a broker's board
or on a securities exchange, shall state the board or exchange at which such
sale is to be made and the day on which the Collateral, or portion thereof, will
first be offered for sale at such board or exchange. Any such public sale shall
be held at such time or times within ordinary business hours and at such place
or places as the Collateral Agent may fix and state in the notice (if any) of
such sale. At any such sale, the Collateral, or portion thereof, to be sold may
be sold in one lot as an entirety or in separate parcels, as the Collateral
Agent may (in its sole and absolute discretion) determine. The Collateral Agent
shall not be obligated to make any sale of any Collateral if it shall determine
not to do so, regardless of the fact that notice of sale of such Collateral
shall have been given. The Collateral Agent may, without notice or publication,
adjourn any public or private sale or cause the same to be adjourned from time
to time by announcement at the time and place fixed for sale, and such sale may,
without further notice, be made at the time and place to which the same was so
adjourned. In case any sale of all or any part of the Collateral is made on
credit or for future delivery, the Collateral so sold may be retained by the
Collateral Agent until the sale price is paid by the purchaser or purchasers
thereof, but the Collateral Agent shall not incur any liability in case any such
purchaser or purchasers shall fail to take up and pay for the Collateral so sold
and, in case of any such failure, such Collateral may be sold again upon like
notice. At any public (or, to the extent permitted by law, private) sale made
pursuant to this Section, any Secured Party may bid for or purchase, free (to
the extent permitted by law) from any right of redemption, stay, valuation or
appraisal on the part of any Grantor (all said rights being also hereby waived
and released to the extent permitted by law), the Collateral or any part thereof
offered for sale and may make payment on account thereof by using any claim then
due and payable to such Secured Party from any Grantor as a credit against the
purchase price, and such Secured Party may, upon compliance with the terms of
sale, hold, retain and dispose of such property without further accountability
to any Grantor therefor. For purposes hereof, a written agreement to purchase
the Collateral or any portion thereof shall be treated as a sale thereof; the
Collateral Agent shall be free to carry out such sale pursuant to such agreement
and no Grantor shall be entitled to the return of the Collateral or any portion
thereof subject thereto, notwithstanding the fact that after the Collateral
Agent shall have entered into such an agreement all Events of Default shall have
been remedied and the Obligations paid in full. As an alternative to exercising
the power of sale herein conferred upon it, the Collateral Agent may proceed by
a suit or suits at law or in equity to foreclose this Agreement and to sell the
Collateral or any portion thereof pursuant to a judgment or decree of a court or
courts having competent jurisdiction or pursuant to a proceeding by a court-
appointed receiver.
18
SECTION 7.02. Application of Proceeds. Following an Event of Default, the
Collateral Agent shall apply the proceeds of any collection or sale of the
Collateral, as well as any Collateral consisting of cash, as follows:
FIRST, to the payment of all costs and expenses incurred by the
Collateral Agent or the Administrative Agent (in their respective
capacities as such hereunder or under any other Loan Document) in
connection with such collection or sale or otherwise in connection with
this Agreement or any of the Obligations, including all court costs and the
fees and expenses of their respective agents and legal counsel, the
repayment of all advances made by the Collateral Agent or the
Administrative Agent hereunder or under any other Loan Document on behalf
of any Grantor and any other costs or expenses incurred in connection with
the exercise of any right or remedy hereunder or under any other Loan
Document;
SECOND, to the payment in full of the Obligations (the amounts so
applied to be distributed among the Secured Parties pro rata in accordance
with the amounts of the Obligations owed to them on the date of any such
distribution); and
THIRD, to the Grantors, their successors or assigns, or as a court of
competent jurisdiction may otherwise direct.
The Collateral Agent shall have absolute discretion as to the time of
application of any such proceeds or cash (or any income derived from investments
made pursuant to the following sentence) in accordance with this Agreement.
Pending the application of the proceeds of any collection or sale of Collateral
or of any Collateral consisting of cash, the Collateral Agent may, in its
absolute discretion, invest such proceeds or cash, provided that any after-tax
income derived from any such investment shall be applied as provided in this
Section 7.02. Upon any sale of the Collateral by the Collateral Agent
(including pursuant to a power of sale granted by statute or under a judicial
proceeding), the receipt of the Collateral Agent or of the officer making the
sale shall be a sufficient discharge to the purchaser or purchasers of the
Collateral so sold and such purchaser or purchasers shall not be obligated to
see to the application of any part of the purchase money paid over to the
Collateral Agent or such officer or be answerable in any way for the
misapplication thereof.
SECTION 7.03. Grant of License to Use Intellectual Property. For the
purpose of enabling the Collateral Agent to exercise rights and remedies under
this Article at such time as the Collateral Agent shall be lawfully entitled to
exercise such rights and remedies, each Grantor hereby grants to the Collateral
Agent an irrevocable, non-exclusive license (exercisable without payment of
royalty or other compensation to the Grantors) to use, license or sub-license
any of the Collateral consisting of Intellectual Property now owned or hereafter
acquired by such Grantor, and wherever the same may be located, and including in
such license reasonable access to all media in which any of the licensed items
may be recorded or stored and to all computer software and programs used for the
compilation or printout thereof. The use of such license by the Collateral
Agent shall be exercised, at the option of the Collateral Agent, upon the
occurrence and during the continuation of an Event of Default; provided that any
license, sub-license or other transaction entered into by the Collateral Agent
in accordance herewith shall be binding upon the Grantors notwithstanding any
subsequent cure of an Event of Default.
SECTION 7.04. Irrevocable Authorization. Each Grantor hereby irrevocably
authorizes and directs each person who shall be a party to or liable for the
performance of any of the Agreements, upon receipt of written notice from the
Collateral Agent to the effect that an Event of Default has occurred and is
continuing, to attorn to the Collateral Agent as owner under such Agreement and
to pay, observe and otherwise perform the obligations under such Agreement to or
for the Collateral Agent or the Collateral Agent's designee as though the
Collateral Agent or such designee were the Grantor named in such Agreement, and
to continue to do so until otherwise notified by the Collateral Agent. The
Collateral Agent shall simultaneously provide the Borrower with a copy of any
such notification given by the Collateral Agent pursuant to this Section 7.04,
provided that the failure to do so shall not affect the Collateral Agent's
rights under this Agreement.
19
ARTICLE VIII
Miscellaneous
SECTION 8.01. Notices. All communications and notices hereunder shall
(except as otherwise expressly permitted herein) be in writing and given as
provided in Section 9.01 of the Credit Agreement. All communications and
notices hereunder to any Guarantor shall be given to it at its address or
telecopy number set forth on Schedule I.
SECTION 8.02. Security Interest Absolute. All rights of the Collateral
Agent hereunder, the Security Interest and all obligations of the Grantors
hereunder shall be absolute and unconditional irrespective of (a) any lack of
validity or enforceability of the Credit Agreement, any other Loan Document, any
agreement with respect to any of the Obligations or any other agreement or
instrument relating to any of the foregoing, (b) any change in the time, manner
or place of payment of, or in any other term of, all or any of the Obligations,
or any other amendment or waiver of or any consent to any departure from the
Credit Agreement, any other Loan Document or any other agreement or instrument,
(c) any exchange, release or non-perfection of any Lien on other collateral, or
any release or amendment or waiver of or consent under or departure from any
guarantee, securing or guaranteeing all or any of the Obligations, or (d) any
other circumstance that might otherwise constitute a defense available to, or a
discharge of, any Grantor in respect of the Obligations or this Agreement.
SECTION 8.03. Survival of Agreement. All covenants, agreements,
representations and warranties made in writing by any Grantor herein and in the
certificates or other instruments prepared or delivered in connection with or
pursuant to this Agreement shall be considered to have been relied upon by the
Secured Parties and shall survive the making by the Lenders of the Loans, and
the execution and delivery to the Lenders of any notes evidencing such Loans,
regardless of any investigation made by the Lenders or on their behalf, and
shall continue in full force and effect until this Agreement shall terminate.
SECTION 8.04. Binding Effect; Several Agreement. This Agreement shall
become effective as to any Grantor when a counterpart hereof executed on behalf
of such Grantor shall have been delivered to the Collateral Agent and a
counterpart hereof shall have been executed on behalf of the Collateral Agent,
and thereafter shall be binding upon such Grantor and the Collateral Agent and
their respective successors and assigns, and shall inure to the benefit of such
Grantor, the Collateral Agent and the other Secured Parties and their respective
successors and assigns, except that no Grantor shall have the right to assign or
transfer its rights or obligations hereunder or any interest herein or in the
Collateral (and any such assignment or transfer shall be void) except as
expressly contemplated by this Agreement or the Credit Agreement. This
Agreement shall be construed as a separate agreement with respect to each
Grantor and may be amended, modified, supplemented, waived or released with
respect to any Grantor without the approval of any other Grantor and without
affecting the obligations of any other Grantor hereunder.
SECTION 8.05. Successors and Assigns. Whenever in this Agreement any of
the parties hereto is referred to, such reference shall be deemed to include the
successors and assigns of such party; and all covenants, promises and agreements
by or on behalf of any Grantor or the Collateral Agent that are contained in
this Agreement shall bind and inure to the benefit of their respective
successors and assigns.
SECTION 8.06. Collateral Agent's Fees and Expenses; Indemnification. (a)
To the extent provided in Section 5.07 or 5.11 of the Credit Agreement, each
Grantor jointly and severally agrees to pay upon demand to the Collateral Agent
the amount of any and all reasonable expenses, including the reasonable fees,
disbursements and other charges of its counsel and of any experts or agents,
which the Collateral Agent may incur in connection with (i) the administration
of this Agreement (including the customary fees and charges of the Collateral
Agent for any audits conducted by it or on its behalf with respect to the
Borrowing Base and the assets included therein, subject to Section 5.11 of the
Credit Agreement), (ii) the custody or preservation of, or the sale of,
collection
20
from or other realization upon any of the Collateral, (iii) the exercise,
enforcement or protection of any of the rights of the Collateral Agent hereunder
or (iv) the failure of any Grantor to perform or observe any of the provisions
hereof.
(b) Without limitation of its indemnification obligations under the other
Loan Documents, each Grantor jointly and severally agrees to indemnify the
Collateral Agent and the other Indemnitees against, and hold each of them
harmless from, any and all losses, claims, damages, liabilities and related
expenses, including reasonable fees, disbursements and other charges of counsel,
incurred by or asserted against any of them arising out of, in any way connected
with, or as a result of, the execution, delivery or performance of this
Agreement or any claim, litigation, investigation or proceeding relating hereto
or to the Collateral, whether or not any Indemnitee is a party thereto, provided
that such indemnity shall not, as to any Indemnitee, be available to the extent
that such losses, claims, damages, liabilities or related expenses are
determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted solely from the gross negligence or willful misconduct
of such Indemnitee.
(c) If for any reason the indemnification set forth in paragraph (b) above
is unavailable to any Indemnitee or insufficient to hold it harmless, then each
Grantor shall contribute to the amount paid or payable to such Indemnitee as a
result of such loss, claim, damage, liability or expense in such proportion as
is appropriate to reflect not only the relative benefits received by such
Grantor, on the one hand, and such Indemnitee, on the other hand, but also the
relative fault of such Grantor, on the one hand, and such Indemnitee, on the
other hand, as well as any relevant equitable considerations. It is hereby
agreed that the relative benefits to all Grantors, on the one hand, and all
Indemnities, on the other hand, shall be deemed to be in the same proportion as
(i) the total value received or proposed to be received by the Borrower and the
other Grantors in connection with the Commitments (whether or not any Loans are
made) bears to (ii) the Fees. The indemnity, reimbursement and contribution
obligations of each Grantor under paragraph (b) above and under this paragraph
(c) shall be in addition to any liability which such Grantor may otherwise have
to an Indemnitee and shall be binding upon and inure to the benefit of any
successors, assigns, heirs and personal representatives of such Grantor and any
Indemnitee.
(d) Promptly after receipt by an Indemnitee of notice of the commencement
of any Proceedings, such Indemnitee will, if a claim in respect thereof is to be
made against any Grantor, notify the Borrower in writing of the commencement
thereof; provided that (i) the omission so to notify the Borrower will not
relieve it or any other Grantor from any liability which it or such Grantor may
have hereunder except to the extent it has been materially prejudiced by such
failure and (ii) the omission so to notify the Borrower will not relieve it or
any other Grantor from any liability which it or such Grantor may have to an
Indemnitee otherwise than on account of the indemnity agreement provided for
hereunder. In case any such Proceedings are brought against any Indemnitee and
it notifies the Borrower of the commencement thereof, the Borrower will be
entitled to participate therein, and, to the extent that it may elect by written
notice delivered to such Indemnitee, to assume the defense thereof, with counsel
reasonably satisfactory to such Indemnitee, provided that, if the defendants in
any such Proceedings include both such Indemnitee and the Borrower or any other
Grantor and such Indemnitee shall have concluded that there may be legal
defenses available to it which are different from or additional to those
available to the Borrower or such Grantor, such Indemnitee shall have the right
to select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such Proceedings on behalf of such Indemnitee.
Upon receipt of notice from the Borrower to such Indemnitee of its election so
to assume the defense of such Proceedings and approval by such Indemnitee of
counsel, neither the Borrower nor any other Grantor shall be liable to such
Indemnitee for expenses incurred by such Indemnitee in connection with the
defense thereof (other than reasonable costs of investigation) unless (i) such
Indemnitee shall have employed separate counsel in connection with the assertion
of legal defenses in accordance with the proviso to the next preceding sentence
(it being understood, however, that neither the Borrower nor any other Grantor
shall be liable for the reasonable expenses of more than one separate counsel
(plus no more than one separate local counsel in any jurisdiction), approved by
the Agents, representing the Indemnitees who are parties to such Proceedings),
(ii) the Borrower shall not have employed counsel reasonably satisfactory to
such Indemnitee to represent such Indemnitee within a reasonable
21
time after notice of commencement of the Proceedings, (iii) the Borrower shall
have authorized in writing the employment of counsel for such Indemnitee or (iv)
the use of counsel chosen by the Borrower to represent such Indemnitee would
present such counsel with a conflict of interest; and except that, if clause (i)
or (iii) is applicable, such liability shall be only in respect of the counsel
referred to in such clause (i) or (iii).
(e) Any such amounts payable as provided hereunder shall be additional
Obligations secured hereby and by the other Security Documents. The provisions
of this Section 8.06 shall remain operative and in full force and effect
regardless of the termination of this Agreement or any other Loan Document, the
consummation of the transactions contemplated hereby, the repayment of any of
the Loans, the invalidity or unenforceability of any term or provision of this
Agreement or any other Loan Document, or any investigation made by or on behalf
of the Collateral Agent or any Lender. All amounts due under this Section 8.06
shall be payable on written demand therefor.
SECTION 8.07. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 8.08. Waivers; Amendment. (a) No failure or delay of the
Collateral Agent in exercising any power or right hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right or
power, or any abandonment or discontinuance of steps to enforce such a right or
power, preclude any other or further exercise thereof or the exercise of any
other right or power. The rights and remedies of the Collateral Agent hereunder
and of the Collateral Agent, the Administrative Agent and the Lenders under the
other Loan Documents are cumulative and are not exclusive of any rights or
remedies that they would otherwise have. No waiver of any provisions of this
Agreement or any other Loan Document or consent to any departure by any Grantor
therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) below, and then such waiver or consent shall be effective only in
the specific instance and for the purpose for which given. No notice to or
demand on any Grantor in any case shall entitle such Grantor or any other
Grantor to any other or further notice or demand in similar or other
circumstances.
(b) Neither this Agreement nor any provision hereof may be waived, amended
or modified except pursuant to an agreement or agreements in writing entered
into by the Collateral Agent and the Grantor or Grantors with respect to which
such waiver, amendment or modification is to apply, with the prior written
consent of the Required Lenders (except as otherwise provided in the Credit
Agreement).
SECTION 8.09. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS.
EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 8.09.
SECTION 8.10. Severability. In the event any one or more of the
provisions contained in this Agreement should be held invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not in any way be affected or
impaired thereby (it being understood that the invalidity of a particular
provision in a particular jurisdiction shall not in and of itself affect the
validity of such provision in any other jurisdiction). The parties shall
endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
22
SECTION 8.11 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original but all of which when
taken together shall constitute but one contract (subject to Section 8.04), and
shall become effective as provided in Section 8.04. Delivery of an executed
signature page to this Agreement by facsimile transmission shall be effective as
delivery of a manually executed counterpart hereof.
SECTION 8.12. Headings. Article and Section headings used herein are for
the purpose of reference only, are not part of this Agreement and are not to
affect the construction of, or to be taken into consideration in interpreting,
this Agreement.
SECTION 8.13. Jurisdiction; Consent to Service of Process. (a) Each
Grantor hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
Federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or the other Loan Documents, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right that the
Collateral Agent, the Administrative Agent, the Issuing Banks or any Lender may
otherwise have to bring any action or proceeding relating to this Agreement or
the other Loan Documents against any Grantor or its properties in the courts of
any jurisdiction.
(b) Each Grantor hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement or the other Loan Documents in any
New York State or Federal court. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
(c) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 8.01. Nothing in this
Agreement will affected the right of any party to this Agreement to serve
process in any other manner permitted by law.
SECTION 8.14. Termination. This Agreement and the Security Interest shall
terminate when all the Obligations have been indefeasibly paid in full and the
Lenders have no further commitment to lend, at which time the Collateral Agent
shall execute and deliver to the Grantors, at the Grantors' expense, all Uniform
Commercial Code termination statements and similar documents which the Grantors
shall reasonably request to evidence such termination. Any execution and
delivery of termination statements or documents pursuant to this Section 8.14
shall be without recourse to or warranty by the Collateral Agent. A Guarantor
shall automatically be released from its obligations hereunder and the Security
Interest in the Collateral of such Guarantor shall be automatically released in
the event that all the capital stock of such Guarantor shall be sold,
transferred or otherwise disposed of to a person that is not an Affiliate of the
Borrower in accordance with the terms of the Credit Agreement; provided that, to
the extent required by the Credit Agreement, the Required Lenders (or, if such
Collateral constitutes all or any substantial part of the Collateral, each of
the Lenders) shall have consented to such sale, transfer or other disposition
and the terms of such consent did not provide otherwise.
SECTION 8.15. Additional Grantors. Pursuant to Section 5.16 of the Credit
Agreement, each Domestic Subsidiary (other than Xxxxx or Leasco) (and, to the
extent no adverse tax consequences to the Borrower or any Subsidiary would
result, each Foreign Subsidiary), that was not in existence or not such a
Subsidiary on the date of the Credit Agreement is required to enter into this
Agreement as a Guarantor upon becoming such a Subsidiary. Upon execution and
delivery by the Collateral Agent and any such Subsidiary of an instrument in the
form of Annex 3 hereto, such Subsidiary shall become a Grantor hereunder with
the same force and effect as if originally named
23
as a Grantor herein. The execution and delivery of any such instrument shall not
require the consent of any Grantor hereunder. The rights and obligations of each
Grantor hereunder shall remain in full force and effect notwithstanding the
addition of any new Grantor as a party to this Agreement.
24
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the day and year first above written.
RYDER TRS, INC.,
by /s/ XXXXXX X. XXXXXXX
------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President and Treasurer
EACH OF THE GUARANTORS LISTED ON
SCHEDULE I HERETO,
by /s/ XXXXXX X. XXXXX
------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President, General Counsel and
Secretary
CITICORP USA, INC., as Collateral Agent,
by /s/ XXXXXXXXX XXXXX
------------------------------
Name: Xxxxxxxxx Xxxxx
Title: Vice President
Schedule I to the
Security Agreement
GUARANTORS
Name Address for all Guarantors
---- --------------------------
Ryder Truck Rental-OneWay, Inc. 0000 Xxxxxxxx
Xxxxx Xxxxxxxxxx Services, Inc. Suite 1800
The Move Shop, Inc. Xxxxxx, XX 00000
Ryder Move Management, Inc. 0000 X.X. 00xx Xxxxxx
Xxxxx, XX 00000
Schedule II to the
Security Agreement
COPYRIGHTS
Title Registration/ Registration/
No. Country Application Date Application No.
---- ------- ---------------- ---------------
[None]
Schedule III to the
Security Agreement
LICENSES
Registration/ Registration/
Licensee Date of Application Application
Name License Title Country Date No.
---------- ------- ----- ------- ------------- -------------
Schedule IV to the
Security Agreement
PATENTS
Issue Date/ Registration/
Patent Name Country Filing Date Application No.
------------- ------- ----------- ---------------
Schedule V to the
Security Agreement
TRADEMARKS
Reg. Date/ Registration/
Xxxx Country/State Filing Date Application Date
------ ------------- ----------- ----------------
Annex 1 to the
Security Agreement
LOCKBOX AND DEPOSITORY AGREEMENT dated as of [
], 1997, among [Name of Grantor], a [ ] corporation (the
"Grantor"), CITICORP USA, INC., a Delaware corporation, as
collateral agent (the "Collateral Agent") for the Secured Parties
(such term, and each other capitalized term used but not defined
herein, having the meaning given it in the Security Agreement
referred to below) and [ ], a [
] banking corporation (the "Sub-Agent").
A. The Grantor and the Collateral Agent are parties to a Security
Agreement dated as of October 17, 1996, as amended and restated as of August 7,
1997 (as further amended, supplemented or otherwise modified from time to time,
the "Security Agreement"). Pursuant to the terms of the Security Agreement, the
Grantor has granted to the Collateral Agent, for the ratable benefit of the
Secured Parties, a security interest in its Accounts Receivable and other
Collateral (including Inventory, Equipment, cash, cash accounts and Proceeds) to
secure the payment and performance of the Obligations and has irrevocably
appointed the Collateral Agent as its agent to collect amounts due in respect of
Accounts Receivable, Inventory and Equipment.
B. The Sub-Agent has agreed to act as collection sub-agent of the
Collateral Agent to receive and forward payments with respect to the Accounts
Receivable, Inventory and Equipment on the terms and subject to the conditions
set forth herein.
NOW, THEREFORE, the parties hereto agree as follows:
1. The Collateral Agent hereby appoints the Sub-Agent as its collection
sub-agent under the Security Agreement and authorizes the Sub-Agent, on the
terms and subject to the conditions set forth herein, to receive payments in
respect of Collateral consisting of Accounts Receivable, Inventory and
Equipment.
2. The Sub-Agent has established and shall maintain deposit account number
[] (including all subaccounts thereof) for the benefit of the Collateral Agent
(such account being called the "Collection Deposit Account"). The Collection
Deposit Account shall be designated with the title "Citicorp USA, Inc., as
Collateral Agent" (or a similar title). [Subject to the Sub-Agent's Terms for
Remittance Banking (Lockbox) Services attached hereto as Exhibit A, to the
extent that the terms thereof relate to procedures or fees and to the extent not
inconsistent with the terms hereof,] all payments received by the Sub-Agent in
Lockbox Number [ ] and [ ] or any replacements in respect thereof
(the "Lockboxes") shall be promptly deposited in the Collection Deposit Account
and shall not be commingled with other funds. All funds at any time on deposit
in the Collection Deposit Account shall be held by the Sub-Agent for application
in accordance with the terms of this Agreement. The Sub-Agent agrees to give
the Collateral Agent prompt notice if the Collection Deposit Account shall
become subject to any writ, judgment, warrant of attachment, execution or
similar process. As security for the payment and performance of the
Obligations, the Grantor hereby confirms and pledges, assigns and transfers to
the Collateral Agent, and hereby creates and grants to the Collateral Agent, a
security interest in the Collection Deposit Account, all property and assets
held therein and all Proceeds thereof.
3. The Collection Deposit Account shall be under the sole dominion and
control of the Collateral Agent, who shall possess all right, title and interest
in all of the items from time to time in the Collection Deposit Account and
their Proceeds. The Sub-Agent shall be the Collateral Agent's agent for the
purpose of holding and collecting such items and their Proceeds. Neither the
Grantor nor any person or entity claiming by, through or under the Grantor shall
have any right, title or interest in, or control over the use of, or any right
to withdraw any amount from, the Collection Deposit Account, except that the
Collateral Agent shall have the right to withdraw amounts from the Collection
Deposit Account. The Sub-Agent shall be entitled to rely on, and shall act in
accordance with, all instructions given to it by the Collateral Agent with
respect to the Collection Deposit
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Account. The Collateral Agent shall have the sole power to agree with the Sub-
Agent as to specifications for Lockbox services.
4. Upon receipt of written, telecopy or telephonic notice (which, in the
case of telephonic notice, shall be promptly confirmed in writing or by
telecopy) from the Collateral Agent, the Sub-Agent shall, if so directed in such
notice (subject to the Sub-Agent's right to request that the Collateral Agent
furnish, in form satisfactory to the Sub-Agent, signature cards and/or other
appropriate documentation), promptly transmit or deliver to the Collateral Agent
at the office specified in para graph 12 hereof (or such other office as the
Collateral Agent shall specify) (a) all funds, if any, then on deposit in, or
otherwise to the credit of, the Collection Deposit Account (provided that funds
on deposit that are subject to collection may be transmitted promptly upon
availability for withdrawal), (b) all checks, drafts and other instruments for
the payment of money received in the Lockboxes and in the possession of the Sub-
Agent, without depositing such checks, drafts or other instruments in the
Collection Deposit Account or any other account, and (c) any checks, drafts and
other instruments for the payment of money received in the Lockboxes by the Sub-
Agent after such notice, in whatever form received, provided that the Sub-Agent
may retain a reasonable reserve in a separate deposit account with the Sub-Agent
in respect of unpaid fees and amounts which may be subject to collection.
5. The Sub-Agent is hereby instructed and authorized to transfer by wire
transfer or Automated Clearing House ("ACH") from the Collection Deposit Account
all funds that are from time to time deposited or otherwise credited to such
account (after such funds become available to the Sub-Agent, either through the
Federal Reserve System or other clearing mechanism used by the Sub-Agent's
branch and to the extent such funds exceed $1,000), to such account as the
Collateral Agent may from time to time direct, provided that, unless the
Collateral Agent otherwise instructs, no such transfer shall be required if the
amount of such transfer would be less than $1,000, provided, further, that,
unless the Grantor otherwise consents, no such transfer shall be by ACH if the
amount of such transfer is more than $100,000. Unless otherwise directed by the
Collateral Agent, such funds shall be transferred on each business day by wire
transfer or ACH and shall be identified as follows:
Citicorp USA, Inc.
021000089
For credit to Citicorp USA, Inc. Cash Collateral Account,
Xxx Xxxx, XX 00000
4071-1405
Re: Ryder TRS, Inc.
These transfer instructions and authorizations may not be amended, altered
or revoked by the Grantor without the prior written consent of the Collateral
Agent. The Collateral Agent, however, shall have the right to amend or revoke
these transfer instructions and authorizations at any time without the consent
of the Grantor.
6. The Sub-Agent shall furnish the Collateral Agent with monthly
statements setting forth the amounts deposited in the Collection Deposit Account
and all transfers and withdrawals therefrom, and shall furnish such other
information at such times as shall be reasonably requested by the Collateral
Agent.
7. The fees for the services of the Sub-Agent shall be mutually agreed
upon between the Grantor and the Sub-Agent and shall be the obligation of the
Grantor; provided, however, that, notwithstanding the terms of any agreement
under which the Collection Deposit Account shall have been established with the
Sub-Agent, the Grantor and the Sub-Agent agree not to terminate such Collection
Deposit Account for any reason (including the failure of the Grantor to pay such
fees) for so long as this Agreement shall remain in effect (it being understood
that the foregoing shall not be construed to prohibit the resignation of the
Sub-Agent in accordance with paragraph 9 below). Neither the Collateral Agent
nor the Secured Parties shall have any liability for the payment of any such
fees. The Sub-Agent may perform any of its duties hereunder by or through its
agents, officers or employees.
3
8. The Sub-Agent hereby represents and warrants that (a) it is a banking
corporation duly organized, validly existing and in good standing under the laws
of [] and has full corporate power and authority under such laws to execute,
deliver and perform its obligations under this Agreement and (b) the execution,
delivery and performance of this Agreement by the Sub-Agent have been duly and
effectively authorized by all necessary corporate action and this Agreement has
been duly executed and delivered by the Sub-Agent and constitutes a valid and
binding obligation of the Sub-Agent enforceable in accordance with its terms.
9. The Sub-Agent may resign at any time as Sub-Agent hereunder by delivery
to the Collateral Agent of written notice of resignation not less than 60 days
prior to the effective date of such resignation. The Sub-Agent may be removed
by the Collateral Agent at any time, with or without cause, by written, telecopy
or telephonic notice (which, in the case of telephonic notice, shall be promptly
confirmed in writing or by telecopy) of removal delivered to the Sub-Agent.
Upon receipt of such notice of removal, or delivery of such notice of
resignation, the Sub-Agent shall (subject to the Sub-Agent's right to request
that the Collateral Agent furnish, in form satisfactory to the Sub-Agent,
signature cards and/or other appropriate documentation), promptly transmit or
deliver to the Collateral Agent at the office specified in paragraph 12 (or such
other office as the Collateral Agent shall specify) (a) all funds, if any, then
on deposit in, or otherwise to the credit of, the Collection Deposit Account
(provided that funds on deposit that are subject to collection may be
transmitted promptly upon availability for withdrawal), (b) all checks, drafts
and other instruments for the payment of money received in the Lockboxes and in
the possession of the Sub-Agent, without depositing such checks, drafts or other
instruments in the Collection Deposit Account or any other account and (c) any
checks, drafts and other instruments for the payment of money received in the
Lockboxes by the Sub-Agent after such notice, in whatever form received.
10. The Grantor consents to the appointment of the Sub-Agent and agrees
that the Sub-Agent shall incur no liability to the Grantor as a result of any
action taken pursuant to an instruction given by the Collateral Agent in
accordance with the provisions of this Agreement. The Grantor agrees to
indemnify and defend the Sub-Agent against any loss, liability, claim or expense
(including reasonable attorneys' fees) arising from the Sub-Agent's entry into
this Agreement and actions taken hereunder, except to the extent resulting from
the Sub-Agent's gross negligence or willful misconduct.
11. The term of this Agreement shall extend from the date hereof until the
earlier of (a) the date on which the Sub-Agent has been notified in writing by
the Collateral Agent that the Sub-Agent has no further duties under this
Agreement and (b) the date of termination specified in the notice of removal
given by the Collateral Agent, or notice of resignation given by the Sub-Agent,
as the case may be, pursuant to paragraph 9. The obligations of the Sub-Agent
contained in the last sentence of paragraph 9 and in paragraph 15, and the
obligations of the Grantor contained in paragraphs 7 and 10, shall survive the
termination of this Agreement.
12. All notices and communications hereunder shall be in writing and shall
be delivered by hand or by courier service, mailed by certified or registered
mail or sent by telecopy (except where telephonic instructions or notices are
authorized herein) and shall be effective on the day on which received (a) in
the case of the Collateral Agent, to Citicorp USA, Inc., 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention of [Collateral Monitoring Department], and (b)
in the case of the Sub-Agent, addressed to [], Attention of []. For purposes of
this Agreement, any officer of the Collateral Agent shall be authorized to act,
and to give instructions and notices, on behalf of the Collateral Agent
hereunder.
13. The Sub-Agent will not assign or transfer any of its rights or
obligations hereunder (other than to the Collateral Agent) without the prior
written consent of the other parties hereto, and any such attempted assignment
or transfer shall be void.
14. Except as provided in paragraph 5 above, this Agreement may be amended
only by a written instrument executed by the Collateral Agent, the Sub-Agent and
the Grantor, acting by their duly authorized representative officers.
4
15. Except as otherwise provided in the Credit Agreement with respect to
rights of set off available to the Sub-Agent in its capacity as a Lender (if and
so long as the Sub-Agent is a Lender thereunder), the Sub-Agent hereby
irrevocably waives any right to set off against, or otherwise deduct from, any
funds held in the Collection Deposit Account and all items (and Proceeds
thereof) that come into its possession in connection with the Collection Deposit
Account any indebtedness or other claim owed by the Grantor or any affiliate
thereof to the Sub-Agent; provided, however, that this paragraph shall not limit
the ability of the Sub-Agent to, and the Sub-Agent may, (a) exercise any right
to set off against, or otherwise deduct from, any such funds to the extent
necessary for the Sub-Agent to collect any fees owed to it by the Grantor in
connection with the Collection Deposit Account, (b) charge back and net against
the Collection Deposit Account any returned or dishonored items or other
adjustments in accordance with the Sub-Agent's usual practices and (c) (i)
establish the reserves contemplated in paragraph 4 in respect of unpaid fees and
amounts which may be subject to collection and (ii) transfer funds in respect of
such reserves from the Collection Deposit Account to the separate deposit
account with the Sub-Agent as contemplated in paragraph 4.
16. This Agreement shall inure to the benefit of and be binding upon the
Collateral Agent, the Sub-Agent, the Grantor and their respective permitted
successors and assigns.
17. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original but all of which together shall constitute one
and the same instrument. Delivery of an executed signature page to this
Agreement by facsimile transmission shall be effective as delivery of a manually
executed counterpart hereof.
18. EXCEPT TO THE EXTENT THE LAWS OF THE STATE OF [ ] GOVERN THE
COLLECTION DEPOSIT ACCOUNT, THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
19. The Sub-Agent shall be an independent contractor. This Agreement does
not give rise to any partnership, joint venture or fiduciary relationship.
20. In the event any one or more of the provisions contained in this
Agreement should be held invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby (it being understood
that the invalidity of a particular provision in a particular jurisdiction shall
not in and of itself affect the validity of such provision in any other
jurisdiction). The parties shall endeavor in
5
good-faith negotiations to replace the invalid, illegal or unenforceable
provisions with valid provisions the economic effect of which comes as close as
possible to that of the invalid, illegal or unenforceable provisions.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers as of the day and year first above
written.
[Name of Grantor],
by
------------------------------------
Name:
Title:
CITICORP USA, INC., as Collateral Agent,
by
------------------------------------
Name:
Title:
[Sub-Agent],
by
------------------------------------
Name:
Title:
Annex 2 to the
Security Agreement
[Form of]
PERFECTION CERTIFICATE
Reference is made to the Credit Agreement dated as of October 17, 1996, as
amended and restated as of August 7, 1997 (as further amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"), among the
Borrower, the lenders from time to time party thereto (the "Lenders"), The Chase
Manhattan Bank, as documentation agent for the Lenders, for the Lenders, and
Citicorp USA, Inc., as administrative agent and as collateral agent for the
Lenders (the "Collateral Agent").
The undersigned, a Financial Officer and a Legal Officer, respectively, of
the Borrower, hereby certify to the Collateral Agent and each other Secured
Party as follows:
1. Names. (a) The exact corporate name of each Grantor, as such name
appears in its respective certificate of incorporation, is as follows:
(b) Set forth below is each other corporate name each Grantor has had in
the past five years, together with the date of the relevant change:
(c) Except as set forth in Schedule 1 hereto, no Grantor has changed its
identity or corporate structure in any way within the past five years. Changes
in identity or corporate structure would include mergers, consolidations and
acquisitions, as well as any change in the form, nature or jurisdiction of
corporate organization. If any such change has occurred, include in Schedule 1
the information required by Sections 1 and 2 of this certificate as to each
acquiree or constituent party to a merger or consolidation.
(d) The following is a list of all other names (including trade names or
similar appellations) used by each Grantor or any of its divisions or other
business units in connection with the conduct of its business or the ownership
of its properties at any time during the past five years and any information
with respect to such named entities required by paragraphs (a), (b) and (c)
above:
(e) Set forth below is the Federal Taxpayer Identification Number of each
Grantor:
2. Current Locations. (a) The chief executive office of each Grantor is
located at the address set forth opposite its name below:
Grantor Mailing Address County State
------- --------------- ------ -----
(b) Set forth below opposite the name of each Grantor are all locations
where such Grantor maintains any books or records relating to any Accounts
Receivable (with each location at which chattel paper, if any, is kept being
indicated by an "*"):
Grantor Mailing Address County State
------- --------------- ------ -----
(c) Set forth below opposite the name of each Grantor are all the places
of business of such Grantor not identified in paragraph (a) or (b) above:
Grantor Mailing Address County State
------- --------------- ------ -----
2
(d) Set forth below opposite the name of each Grantor are all the
locations where such Grantor maintains any Collateral not identified above:
Grantor Mailing Address County State
------- --------------- ------ -----
(e) Set forth below opposite the name of each Grantor are the names and
addresses of all persons other than such Grantor that have possession of any of
the Collateral of such Grantor:
Grantor Mailing Address County State
------- --------------- ------ -----
3. Unusual Transactions. All Accounts Receivable have been originated by
the Grantors and all Inventory has been acquired by the Grantors in the ordinary
course of business.
4. File Search Reports. Attached hereto as Schedule 4 are (a) true copies
of file search reports from the Uniform Commercial Code filing offices where
filings described in Section 3.19 of the Credit Agreement are to be made and (b)
true copies of each financing statement or other filing identified in such file
search reports.
5. UCC Filings. Duly signed financing statements on Form UCC-1 in
substantially the form of Schedule 5 hereto have been prepared for filing in the
Uniform Commercial Code filing office in each jurisdiction where a Grantor has
Collateral as identified in Section 2 hereof.
6. Schedule of Filings. Attached hereto as Schedule 6 is a schedule
setting forth, with respect to the filings described in Section 5 above, each
filing and the filing office in which such filing is to be made.
7. Filing Fees. All filing fees and taxes payable in connection with the
filings described in Section 5 above have been paid.
8. Stock Ownership. Attached hereto as Schedule 7 is a true and correct
list of all the duly authorized, issued and outstanding stock of the Borrower
and each Subsidiary and the record and beneficial owners of such stock. Also
set forth on Schedule 7 is each equity Investment of the Borrower and each
Subsidiary that represents 50% or less of the equity of the entity in which such
investment was made.
9. Notes. Attached hereto as Schedule 8 is a true and correct list of all
notes held by the Borrower and each Subsidiary and all intercompany notes
10. Advances. Attached hereto as Schedule 9 is (a) a true and correct
list of all advances made by the Borrower to any Subsidiary or made by any
Subsidiary to the Borrower or any other Subsidiary, which advances will be on
and after the date hereof evidenced by one or more intercompany notes pledged to
the Collateral Agent under the Pledge Agreement except as permitted
3
by Section 6.04(b) of the Credit Agreement, and (b) a true and correct list of
all unpaid intercompany transfers of goods sold and delivered by or to the
Borrower or any Subsidiary.
IN WITNESS WHEREOF, the undersigned have duly executed this certificate on
this [ ] day of [ ].
RYDER TRS, INC.,
by
--------------------------------------
Name:
Title: [Financial Officer]
by
--------------------------------------
Name:
Title: [Legal Officer]
Annex 3 to the
Security Agreement
SUPPLEMENT NO. [ ] dated as of [ ], to
the Security Agreement dated as of October 17, 1996, as amended and
restated as of August 7, 1997, among RYDER TRS, INC., a Delaware
corporation, restated (the "Borrower"), each subsidiary of the
Borrower listed on Schedule I thereto (each such subsidiary,
individually, a "Guarantor" and, collectively, the "Guarantors"; the
Borrower and the Guarantors are referred to collectively herein as the
"Grantors") and CITICORP USA, INC., a Delaware corporation (as
"Citicorp"), as collateral agent (the "Collateral Agent") for the
Secured Parties (as defined herein).
A. Reference is made to the Credit Agreement dated as of October 17, 1996,
as amended and restated as of August 7, 1997 (as further amended, supplemented
or otherwise modified from time to time, the "Credit Agreement"), among the
Borrower, the lenders from time to time party thereto (the "Lenders"), The Chase
Manhattan Bank, as Citicorp, as administrative agent for the Lenders, and as
Collateral Agent.
B. Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to such terms in the Security Agreement and the
Credit Agreement.
C. The Grantors have entered into the Security Agreement in order to
induce the Lenders to make Loans. Pursuant to Section 5.16 of the Credit
Agreement, each Domestic Subsidiary (other than Xxxxx or Leasco) (and, to the
extent no adverse tax consequences to the Borrower or any Subsidiary would
result, each Foreign Subsidiary), that was not in existence or not such a
Subsidiary on the date of the Credit Agreement is required to enter into
Security Agreement as a Guarantor upon becoming such a Subsidiary. Section 8.15
of Security Agreement provides that any such Subsidiary may become a Grantor
under the Security Agreement by execution and delivery of an instrument in the
form of this Supplement. The undersigned Subsidiary (the "New Grantor") is
executing this Supplement in accordance with such requirements of the Credit
Agreement to become a Grantor under the Security Agreement in order to induce
the Lenders to make additional Loans.
Accordingly, the Collateral Agent and the New Grantor agree as follows:
SECTION 1. In accordance with Section 8.15 of the Security Agreement, the
New Grantor by its signature below becomes a Grantor under the Security
Agreement with the same force and effect as if originally named therein as a
Grantor and the New Grantor hereby (a) agrees to all the terms and provisions of
the Security Agreement applicable to it as a Grantor thereunder and (b)
represents and warrants that the representations and warranties made by it as a
Grantor thereunder are true and correct on and as of the date hereof. In
furtherance of the foregoing, the New Grantor, as security for the payment and
performance in full of the Obligations (as defined in the Security Agreement),
does hereby create and grant to the Collateral Agent, its successors and
assigns, for the benefit of the Secured Parties, their successors and assigns, a
security interest in and lien on all of the New Grantor's right, title and
interest in and to the Collateral (as defined in the Security Agreement) of the
New Grantor. Each reference to a "Grantor" in the Security Agreement shall be
deemed to include the New Grantor. The Security Agreement is hereby
incorporated herein by reference.
SECTION 2. The New Grantor represents and warrants to the Collateral Agent
and the other Secured Parties that this Supplement has been duly authorized,
executed and delivered by it and con stitutes its legal, valid and binding
obligation, enforceable against it in accordance with its terms.
SECTION 3. This Supplement may be executed in counterparts (and by
different parties hereto on different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a
single contract. This Supplement shall become effective when the Collateral
Agent shall have received counterparts of this Supplement that, when taken
together, bear the signatures of the New Grantor and the Collateral Agent.
Delivery of an executed signature page to this Supplement by facsimile
transmission shall be as effective as delivery of a manually signed counterpart
of this Supplement.
2
SECTION 4. The New Grantor hereby represents and warrants that (a) set
forth on Schedule I attached hereto is a true and correct schedule of the
location of any and all Collateral of the New Grantor and (b) set forth under
its signature hereto, is the true and correct location of the chief executive
office of the New Grantor.
SECTION 5. Except as expressly supplemented hereby, the Security Agreement
shall remain in full force and effect.
SECTION 6. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 7. In case any one or more of the provisions contained in this
Supplement should be held invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein and in the Security Agreement shall not in any way be affected or
impaired thereby (it being understood that the invalidity of a particular
provision in a particular jurisdiction shall not in and of itself affect the
validity of such provision in any other jurisdiction). The parties hereto shall
endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 8. All communications and notices hereunder shall be in writing
and given as provided in Section 8.01 of the Security Agreement. All
communications and notices hereunder to the New Grantor shall be given to it at
the address set forth under its signature below.
3
SECTION 9. The New Grantor agrees to reimburse the Collateral Agent for
its reasonable out-of-pocket expenses in connection with this Supplement,
including the reasonable fees, other charges and disbursements of counsel for
the Collateral Agent.
IN WITNESS WHEREOF, the New Grantor and the Collateral Agent have duly
executed this Supplement to the Security Agreement as of the day and year first
above written.
[Name of New Grantor],
by
------------------------------------
Name:
Title:
Address:
CITICORP USA, Inc.,
as Collateral Agent
by
------------------------------------
Name:
Title:
Schedule I
to Supplement No.___ to the
Security Agreement
LOCATION OF COLLATERAL
Description Location
----------- --------
Annex 4 to the
Security Agreement
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENT, that Citicorp USA, Inc., as collateral agent
(the "Collateral Agent"), pursuant to the Security Agreement dated as of October
17, 1996, as amended and restated as of August 7, 1997 (the "Security
Agreement"), among Ryder TRS, Inc. (the "Borrower"), each subsidiary of the
Borrower listed on Schedule I thereto and the Collateral Agent, does hereby
make, constitute and appoint [insert name of Grantor] (and each of its
Authorized Employees) as the Collateral Agent's true and lawful agent (and
attorney-in-fact) for the purpose of taking such actions as are necessary (a) to
note the Collateral Agent as the holder of a first lien on the certificates of
title for the Vehicles (and, pursuant to Section 6.03 of the Security Agreement,
to execute and file any related Uniform Commercial Code financing statements or
other documentation) and to cause the certificates of registration for the
Vehicles to be issued in the name of the Collateral Agent (if required pursuant
to subparagraph (c) of Section 6.03 of the Security Agreement) and (b) to
release the Collateral Agent's lien on any such certificate of title (and to
file termination statements or similar documents with respect to any such
related Uniform Commercial Code or other filings) in connection with a Vehicle
Sale permitted under the Credit Agreement and to permit any such related
certificate of registration to be reissued in the name of the acquiror under
such Vehicle Sale. Capitalized terms used herein and not otherwise defined
herein shall have the meanings ascribed to such terms in the Security Agreement.
This Power of Attorney is for the limited purposes specified herein, shall
not be constituted as a general power of attorney and is granted by Citicorp
USA, Inc. not in its individual capacity but only as Collateral Agent. The
powers and authority granted hereunder shall, unless sooner revoked by the
Collateral Agent in accordance with Section 6.05(b) of the Security Agreement or
following the resignation or removal of the Collateral Agent under the Credit
Agreement, cease upon the termination of the Security Agreement.
IN WITNESS WHEREOF, the undersigned has duly executed this Power of
Attorney as of this ___ day of _______, ____.
CITICORP USA, INC., as Collateral Agent,
by
--------------------------------------------
Name:
Title:
STATE OF NEW YORK )
: ss.
COUNTY OF NEW YORK )
Subscribed and sworn before me, a notary public, in and for said
county and state this _____ day of __________, ____.
-----------------------------------------------
Notary Public
My Commission Expires:
