Exhibit 10.22
AMENDMENT NO. 3 dated as of February 5, 2001 to the Credit
Agreement dated as of October 12, 1999 (as amended by Amendment No.
1 dated as of September 27, 2000 and Amendment No. 2 and Waiver
dated as of December 7, 2000, the "Credit Agreement") among
Consolidated Freightways Corporation of Delaware, a Delaware
corporation (the "Borrower"), ABN AMRO Bank N.V. as administrative
agent (the "Administrative Agent"), and the Lender Parties party to
the Credit Agreement. Capitalized terms not otherwise defined in
this Amendment No. 3 have the same meanings as specified therefor in
the Credit Agreement.
Preliminary Statements
(1) Parent purposes to guarantee certain obligations of
its subsidiary CF AirFrieght Corporation, or its subsidiary Redwood
Systems, Inc., or the subsidiaries of Redwood Systems, Inc.
(2) The Credit Agreement permits Parent to guarantee
obligations of Loan Parties.
(3) The Borrower has requested that the Lender Parties
agree to amend the definition of "Guarantor" as provided herein in
order to make Redwood Systems, Inc. and its subsidiaries Loan
Parties.
(4) The Lender Parties have indicated their willingness
to agree to the amendment described above on the terms and subject
to the satisfaction of the conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and of
the mutual covenants and agreements contained herein the parties
hereto hereby agree as follows:
SECTION 1. Amendment of the Credit Agreement. The definition of
"Guarantor" in Section 1.01 of the Credit Agreement is amended in
its entirety as follows:
" `Guarantor' means (i) the Parent, (ii) each Subsidiary
of the Borrower incorporated in any jurisdiction within the United
States of America now existing or hereafter acquired or created and
in each case having assets with a book value in excess of
$10,000,000 or annual revenues in excess of $10,000,000, (iii) CF
AirFreight Corporation, (iv) Redwood Systems, Inc., (v) Redwood
Systems Logistics de Mexico, S.A. de C.V., and (vi) Redwood Systems
Services de Mexico, S.A. de C.V.".
SECTION 2. Conditions Precedent to the Effectiveness of
this Amendment No. 3. This Amendment No. 3 shall become effective
when and if the following conditions precedent have been satisfied:
(a) The Administrative Agent shall have received
counterparts of this Amendment No. 3 executed by the Borrower and
the Required Lenders and the Consent annexed hereto executed by the
Guarantors; and
(b) The Borrower shall have paid all accrued fees of the
Administrative Agent and the Lender Parties and the accrued fees and
expenses of counsel to the Administrative Agent.
SECTION 3. Reference to and Effect on the Credit
Agreement. (a) On and after the effective date of this Amendment
No. 3, each reference in the Credit Agreement to "this Agreement,"
"hereunder," "hereof" or words of like import referring to the
Credit Agreement and each reference in each of the other Loan
Documents to "the Credit Agreement," "thereunder," "thereof" or
words of like import referring to the Credit Agreement, shall mean
and be a reference to the Credit Agreement, as amended and otherwise
modified by this Amendment No. 3.
(b) The Credit Agreement, as amended by the amendment
specifically provided above in Section 1, is and shall continue to
be in full force and effect and is hereby in all respects ratified
and confirmed. The execution, delivery and effectiveness of this
Amendment No. 3 shall not, except as expressly provided herein,
operate as a waiver of any right, power or remedy of any beneficiary
of the Credit Agreement or constitute a waiver of any provision
thereof.
SECTION 4. Costs and Expenses. The Borrower hereby
agrees to pay, upon demand, all of the reasonable costs and expenses
of the Administrative Agent incurred in connection with the
preparation, execution, delivery, administration, modification and
amendment of this Amendment No. 3 and all of the agreements,
instruments and other documents delivered or to be delivered in
connection herewith.
SECTION 5. Execution in Counterparts. This Amendment No.
3 may be executed in any number of counterparts and by different
parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of
an executed counterpart of a signature page to this Amendment No. 3
by telecopier shall be effective as delivery of a manually executed
counterpart of this Amendment No. 3.
SECTION 6. Governing Law. This Amendment No. 3 shall be
governed by, and construed in accordance with, the laws of the State
of California.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment No. 3 to be executed by their respective officers
thereunto duly authorized, as of the date first above written.
THE BORROWER
CONSOLIDATED FREIGHTWAYS CORPORATION
OF DELAWARE
By:/s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Vice President and Treasurer
THE ADMINISTRATIVE AGENT
ABN AMRO BANK N.V.
By:/s/Xxxxx X. Xxxxxx
Name: Xxxxx X Xxxxxx
Title: Group Vice President
By: /s/Xxxxxxxx X. Xxxxxxxxx
Name: Xxxxxxxx X. Xxxxxxxxx
Title: Officer
THE LENDER PARTIES
ABN AMRO BANK N.V.,
as the Issuing Bank and as a Tranche A
Lender
By: /s/Xxxxx X. Xxxxxx
Name: Xxxxx X Xxxxxx
Title: Group Vice President
By: /s/Xxxxxxxx X. Xxxxxxxxx
Name: Xxxxxxxx X. Xxxxxxxxx
Title: Officer
ABN AMRO BANK N.V.,
as a Tranche B Lender
By: /s/Xxxxx X. Xxxxxx
Name: Xxxxx X Xxxxxx
Title: Group Vice President
By: /s/Xxxxxxxx X. Xxxxxxxxx
Name: Xxxxxxxx X. Xxxxxxxxx
Title: Officer
BANK ONE, NA (Main Office Chicago),
as a Tranche A Lender
By: /s/Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: Corporate Banking Officer
BANK ONE, NA (Main Office Chicago),
as a Tranche B Lender
By:/s/Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: Corporate Banking Officer
UNION BANK OF CALIFORNIA, N.A.,
as a Tranche B Lender
By_________________________________
Name:
Title:
CREDIT AGRICOLE INDOSUEZ,
as a Tranche B Lender
By____________________________________
Name:
Title:
FIRST UNION NATIONAL BANK,
as a Tranche B Lender
By:/s/Xxx X. Xxxxx
Name: Xxx X. Xxxxx
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION,
as a Tranche B Lender
By/s/Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Vice President
FLEET NATIONAL BANK
as a Tranche A Lender
By_________________________________
Name:
Title:
FLEET NATIONAL BANK
as a Tranche B Lender
By_________________________________
Name:
Title:
KEYBANK NATIONAL ASSOCIATION,
as a Tranche A Lender
By:/s/Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President
KEYBANK NATIONAL ASSOCIATION,
as a Tranche B Lender
By:/s/Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President
PNC BANK, NATIONAL ASSOCIATION,
as a Tranche A Lender
By:/s/Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Vice President
PNC BANK, NATIONAL ASSOCIATION,
as a Tranche B Lender
By:/s/Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Vice President
CONSENT
Dated as of February 5, 2001
The undersigned, as an Affiliate (as defined in the Credit
Agreement dated as of October 12, 1999 among Consolidated
Freightways Corporation of Delaware, the financial institutions
party thereto and ABN AMRO Bank N.V. as administrative agent and as
amended by Amendment No. 1 dated as of September 27, 2000 and
Amendment No. 2 and Waiver dated as of December 7, 2000) of
Consolidated Freightways Corporation of Delaware, a Delaware
corporation (the "Borrower"), has executed an Affiliate Guaranty
dated as of October 12, 1999, as heretofore amended or otherwise
modified (as so amended, the "Guaranty"), pursuant to which the
undersigned guarantees all obligations of the Borrower under the
Credit Agreement and the other Loan Documents (as defined in the
Credit Agreement).
The undersigned, in its capacity as Guarantor under the
Guaranty, hereby consents to the foregoing Amendment No. 3 and
hereby confirms and agrees that notwithstanding the effectiveness of
such Amendment No. 3, the Guaranty is, and shall continue to be, in
full force and effect and is hereby ratified and confirmed in all
respects.
Delivery of an executed counterpart of a signature page to
this Consent by telecopier shall be effective as delivery of a
manually executed counterpart of this Consent.
This Consent shall be governed by, and construed in
accordance with, the laws of the State of California.
IN WITNESS WHEREOF, the undersigned has caused this
Consent to be executed by its officers thereunto duly authorized as
of the date first above written.
CONSOLIDATED FREIGHTWAYS CORPORATION
By:/s/Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Vice President and Treasurer
AFFILIATE GUARANTY
This AFFILIATE GUARANTY (as it may be amended, modified or
supplemented from time to time, this "Guaranty"), dated as of
February 5, 2001, is made by CF AIRFREIGHT CORPORATION, a Delaware
corporation, REDWOOD SYSTEMS, INC., a Delaware corporation, REDWOOD
SYSTEMS LOGISTICS DE MEXICO, S.A. DE C.V., a Mexico corporation, and
REDWOOD SYSTEMS SERVICES DE MEXICO, S.A. DE C.V., a Mexico
corporation ( each a "Guarantor" and collectively, the
"Guarantors"), in favor of ABN AMRO BANK N.V., a bank organized
under the laws of the Netherlands, as agent (in such capacity, the
"Administrative Agent"), for the Lender Parties from time to time
party to the Credit Agreement (as defined below) (collectively,
including the Administrative Agent, the "Lender Parties").
RECITALS
A. Reference is made to that certain Credit Agreement
dated as of October 12, 1999 (as amended by Amendment No. 1 dated as
of September 27, 2000 and Amendment No. 2 and Waiver dated as of
December 7, 2000, the "Credit Agreement") among the Borrower, the
Lender Parties and the Administrative Agent. Capitalized terms used
herein without definition have the meanings assigned thereto in the
Credit Agreement.
B. Each Guarantor will obtain substantial benefits as a
result of the making of Advances pursuant to the Credit Agreement.
AGREEMENT
In consideration of the foregoing and for other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, each Guarantor hereby agrees as follows:
Section 1. GUARANTY; LIMITATION OF LIABILITY.
(a) Each Guarantor hereby unconditionally and irrevocably
guarantees to the Lender Parties the prompt payment in full in cash
when due, whether at maturity, by optional or mandatory prepayment,
upon acceleration, pursuant to a permitted demand, upon commencement
of bankruptcy or insolvency proceedings or otherwise (including
without limitation, the payment of amounts that would become due but
for the operation of the automatic stay under Section 362(a) of the
Chapter 11 of Title 11 of the United States Code, 11 U.S.C. Section
101, et seq. or any replacement or supplemental federal statute
dealing with the bankruptcy of debtors (the "Bankruptcy Code"))
absolute or contingent, liquidated or unliquidated, determined or
undetermined, of all Obligations (including, without limitation, all
costs of enforcement or preservation and protection of any and all
collateral securing this Guaranty and of all interest which, but for
the commencement of a proceeding under the Bankruptcy Code, would
accrue). All payments made by each Guarantor under this Guaranty
shall be made without set-off or counterclaim and free and clear of
and without deductions for any present or future taxes, fees,
withholdings or conditions of any nature ("Taxes"). Each Guarantor
shall pay any such Taxes, including Taxes on any amounts so paid,
and will promptly furnish the Administrative Agent copies of any tax
receipts or such other evidence of payment as any Lender Party may
require. Section 2.14 of the Credit Agreement is incorporated
herein by reference, mutatis mutandis, and shall apply to all taxes
paid by each Guarantor under this Guaranty as if all references to
the Borrower were references to each Guarantor and all references to
the Agreement were references to this Guaranty.
(b) The Administrative Agent and each Lender Party hereby
confirms that it is the intention of all parties hereto that this
Guaranty not constitute a fraudulent transfer or conveyance for
purposes of Title II, U.S. Code; the Uniform Fraudulent Conveyance
Act; the Uniform Fraudulent Transfer Act or any similar federal or
state law to the extent applicable to this Guaranty. To effectuate
the foregoing intention, the Administrative Agent and each Lender
Party hereby irrevocably agrees that the Obligations of each
Guarantor under this Guaranty shall be limited to the maximum amount
as will, after giving effect to such maximum amount and all other
contingent and fixed liabilities of such Guarantor that are relevant
under such laws, and after giving effect to any collections from,
rights to receive contribution from or payments made by or on behalf
of any other Guarantor in respect of the Obligations of such other
Guarantor under this Guaranty, result in the Obligations of such
Guarantor under this Guaranty not constituting a fraudulent transfer
or conveyance.
Section 2. WAIVERS BY THE GUARANTORS.
Each Guarantor agrees that the Obligations may be
extended, renewed, refinanced, altered or otherwise modified from
time to time, in whole or in part, without notice to or further
assent from any Guarantor, and that each Guarantor will remain bound
under this Guaranty notwithstanding any extension, renewal,
refinancing, alteration or other modification of the Obligations.
Further, to the extent and upon the conditions permitted under the
Credit Agreement and without notice to or authorization from any
Guarantor and without affecting or impairing any obligations
hereunder, the Lender Parties may (a) renew, compromise, extend,
increase, accelerate or otherwise change the time or manner for
making of advances, provision of other financial accommodations
(including issuances of Letters of Credit), or the payment or
performance of all or any portion of the Obligations, (b) increase
or reduce the rate of interest or amount of principal payable on the
Advances or the Obligations, (c) release, substitute or add any one
or more guarantors or endorsers, accept additional or substituted
security for payment or performance of the Obligations, or release
or subordinate any security therefor, (d) apply any such security
and direct the order or manner of sale thereof as the Administrative
Agent in its discretion may determine, and (e) resort to each
Guarantor for payment or performance of all or any portion of the
Obligations, whether or not any Lender Party shall have resorted to
any property securing the Obligations or shall have proceeded
against the Borrower or any party primarily or secondarily liable
for the Obligations.
Each Guarantor agrees that this Guaranty constitutes a
guaranty of payment when due and not of collection only and waives
presentation of any instrument, demand for payment, protest, notice
of non-payment, promptness, diligence, notice of acceptance and any
other notice with respect to any of the Obligations, any collateral
held as security therefor, or this Guaranty. To the extent
permitted by applicable law, the obligations of each Guarantor under
this Guaranty shall not be discharged, impaired or otherwise
affected by:
(a) the failure of any Lender Party or any other Person to
assert or delay in asserting any claim or demand or to enforce or
delay in enforcing any right or remedy against the Borrower or any
other surety or guarantor under the provisions of the Credit
Agreement or any other Loan Document or any other agreement or
otherwise;
(b) any direction of application of payment by the
Borrower or any other Person or any extension or renewal of any
provision of the Credit Agreement, any other Loan Document or any
other instrument or agreement executed pursuant to the Credit
Agreement;
(c) any rescission, waiver, amendment or modification of
any of the terms or provisions of, or the release or discharge of
any party to, the Credit Agreement, any other Loan Document or any
other instrument or agreement executed in connection therewith;
(d) the taking and holding of security or collateral for
the payment of the Obligations or the failure to take or perfect any
security interest in, or to take any actions with respect to, or the
sale (whether or not in a commercially reasonable manner), exchange,
release or discharge of, or the acceptance of an assignment or deed
in lieu of foreclosure with respect to, any of the security held by
the Administrative Agent or any other Lender Party or any other
Person for the Obligations, including, without limitation, any right
to require the Lender Party to proceed against or exhaust its
recourse against the Borrower or any security or collateral held by
the Lender Party at any time or to pursue any other remedy in its
power before being entitled to payment from or performance by each
Guarantor of the Obligations or before proceeding against any
Guarantor;
(e) any bankruptcy, insolvency, reorganization,
arrangement, adjustment, composition, liquidation or the like of the
Borrower or any other surety or guarantor or any actions taken
therein, including, without limitation (i) any Lender Party's
election, in any proceeding instituted under the Bankruptcy Code, of
the application of Section 1111 (b)(2) of the Bankruptcy Code, (ii)
any borrowing or grant of a security interest by the Borrower or any
other surety or guarantor as debtor-in-possession under Section 364
of the Bankruptcy Code, or (iii) the failure by any Lender Party to
file a proof of claim for the repayment of any of the Obligations or
the disallowance of any such claim;
(f) any circumstance (including, without limitation, the
running of any statute of limitations), act, omission or delay which
may or might in any manner or to any extent vary the risk of each
Guarantor or which may constitute a defense available to, or a
discharge of, the Borrower, each Guarantor or any other surety or
guarantor or which might otherwise diminish or impair any of the
obligations of any Guarantor or give any Guarantor, or any other
Person any recourse against the Obligations;
(g) any release or limitation on the liability of anyone
who may be liable in any manner for the payment of any amounts owed
by each Guarantor, the Borrower or any other surety or guarantor to
any Lender Party;
(h) any modification or termination of the terms of any
intercreditor or subordination agreement pursuant to which claims of
other creditors of any Guarantor, the Borrower or any other surety
or guarantor are subordinated to the claims of the Lender Parties;
(i) any merger or consolidation of the Borrower into or
with any other Person, or any sale, lease or transfer of any or all
of the assets of the Borrower;
(j) any incapacity or lack of authority of the Borrower,
any Guarantor, any other surety or guarantor or any other Person;
(k) the revocation or repudiation hereof by each Guarantor
or the revocation or repudiation of any of the other Loan Documents
by the Borrower, any other surety or guarantor or any other Person;
or
(l) the absence of any notice to, consent of, or knowledge
by, each Guarantor of any of the matters or events set forth in the
foregoing subparagraphs (a) through (k).
To the extent permitted by applicable law, the obligations
of each Guarantor under this Guaranty shall not be subject to any
reduction, limitation, impairment or termination for any reason
(other than the payment in full of all of the Obligations (other
than Surviving Indemnities)), including, without limitation, any
claim of waiver, release, surrender, alteration or compromise of any
of the Obligations, and shall not be subject to any defense or
setoff, counterclaim, recoupment or termination whatsoever by reason
of the invalidity, illegality, or unenforceability of any of the
Obligations, the Credit Agreement or of any of the other Loan
Documents, discharge of the Borrower or any other surety or
guarantor from any of the Obligations in a bankruptcy or similar
proceeding.
In furtherance of the foregoing, and as provided in Civil
Code Section 2856, each Guarantor waives all rights and defenses
that each Guarantor may have by reason of the Obligations being or
becoming secured by real property. This means, among other things:
(1) the Lender Parties may collect from each Guarantor without first
foreclosing on any real or personal property collateral pledged by
the Borrower; (2) the amount of the Obligations may be reduced only
by the price for which that collateral is sold at the foreclosure
sale, even if the collateral is worth more than the sale price; and
(3) the Lender Parties may collect from each Guarantor even if the
Lender Parties, by foreclosing on the real property collateral, have
destroyed any right any Guarantor may have to collect from the
Borrower. This is an unconditional and irrevocable waiver of any
rights and defenses each Guarantor may have because the Obligations
are secured by real property. These rights and defenses include,
but are not limited to, any rights or defenses based upon Section
580a, 580b, 580d, or 726 of the Code of Civil Procedure. Each
Guarantor waives all rights and defenses arising out of an election
of remedies by the Lender Parties, even though that election of
remedies, such as nonjudicial foreclosure with respect to security
for a guaranteed obligation, has destroyed each Guarantor's rights
of subrogation and reimbursement against the Borrower by the
operation of Section 580d of the Code of Civil Procedure or
otherwise.
Section 3. ENFORCEMENT OF GUARANTY.
In no event shall the Administrative Agent or any other
Lender Party have any obligation (although, to the extent provided
in the Loan Documents, it is entitled, at its option) to proceed
against the Borrower, any other surety or guarantor or any other
Person or any real or personal property pledged to secure the
Obligations before seeking satisfaction from each Guarantor, and the
Administrative Agent may proceed, prior to subsequent to, or
simultaneously with, the enforcement of the Administrative Agent's
rights hereunder, to exercise any right or remedy (including any
rights of setoff) which it may have against any property, real or
personal, as a result of any lien it may have as security for all or
any portion of the Obligations.
In addition, each Guarantor waives, and agrees that it
shall not at any time insist upon, plead or in any manner whatever
claim or take the benefit or advantage of, any appraisal, valuation,
stay, extension, marshalling of assets or redemption laws, or
exemption, whether now or at any time hereafter in force, which may
delay, prevent or otherwise affect the performance by the Guarantor
of its obligations under, or the enforcement by the Administrative
Agent of, this Guaranty. Each Guarantor hereby waives any
requirement on the part of the Administrative Agent to mitigate the
damages resulting from any default under the Credit Agreement or any
of the other Loan Documents. Each Guarantor hereby waives any
rights or defenses based upon any rights or defenses of the Borrower
or any other surety or guarantor to the Obligations, or any of them
(including without limitation any failure of value of consideration,
any statute of limitations, accord and satisfaction, and the
insolvency of the Borrower or any other surety or guarantor); it
being intended that each Guarantor shall remain primarily liable, to
the extent set forth herein, until the full performance of all the
Obligations notwithstanding any act, omission or thing which might
otherwise operate as a legal or equitable discharge of each
Guarantor, the Borrower or any other surety or guarantor and
notwithstanding any circumstance whatsoever affecting or preventing
recovery by the Administrative Agent or any other Lender Party from
the Borrower or any other surety or guarantor which, but for this
provisions, might operate to exonerate or discharge each Guarantor
from its obligations under this Guaranty.
Section 4. REINSTATEMENT.
This Guaranty shall remain in full force and effect and
continue to be effective in the event any petition is filed by or
against the Borrower, any Guarantor or any other surety or guarantor
for any bankruptcy, insolvency, liquidation or reorganization, in
the event the Borrower, any Guarantor or any other surety or
guarantor becomes insolvent or makes an assignment for the benefit
of creditors or in the event a receiver or trustee is appointed for
all or any significant part of the assets of the Borrower, any
Guarantor or any other surety or guarantor or any such Person
becomes subject to a proceeding under the Bankruptcy Code, and shall
continue to be effective or be reinstated, as the case may be, if at
any time, or from time to time, payment and performance of the
Obligations, or any part thereof, is, pursuant to applicable law,
rescinded or reduced in amount, or must otherwise be restored or
returned by the Administrative Agent, whether as a "voidable
preference," "fraudulent conveyance," or otherwise, all as though
such payment or performance had not been made. In the event that
any payment, or any part thereof, is rescinded, reduced, restored or
returned as set forth above, the Obligations shall be reinstated
only by such amount rescinded, reduced, restored or returned.
So long as any Obligation shall remain outstanding, no
Guarantor shall, without the prior written consent of the
Administrative Agent, commence or join with any other Person in
commencing any bankruptcy, reorganization or insolvency proceeding
of or against the Borrower or any other surety or guarantor.
Each Guarantor acknowledges and agrees that the
Obligations include interest on the Obligations at the applicable
rate therefor under the Loan Documents which accrues after the
commencement of any proceeding, voluntary or involuntary, involving
the bankruptcy, insolvency, receivership, reorganization,
liquidation or arrangement of the Borrower or any other surety or
guarantor (or, if interest on any part of the Obligations ceases to
accrue by operation of law by reason of the commencement of said
proceeding, such Obligations including the interest which would have
accrued on such portion of the Obligations if said proceedings had
not been commenced), since it is the intention of the parties that
the amount of the Obligations which is guaranteed by each Guarantor
pursuant to this Guaranty should be determined without regard to any
rule of law or order which may relieve the Borrower or any other
surety or guarantor of any portion of the Obligations. Each
Guarantor will permit any trustee in bankruptcy, receiver, debtor-in-
possession, assignee for the benefit of creditors or similar person
to pay the Administrative Agent, or allow the claim of the
Administrative Agent or any other Lender Party in respect of,
interest which would have accrued after the date on which such
proceeding is commenced.
Section 5. CLAIMS IN BANKRUPTCY
Each Guarantor will file all claims against the Borrower
or any other surety or guarantor in any bankruptcy or other
proceeding in which the filing of claims is required or permitted by
law upon any indebtedness of the Borrower or such surety or
guarantor to any Guarantor or claim against the Borrower or such
surety or guarantor by each Guarantor and will assign to the
Administrative Agent all rights of each Guarantor thereunder. If
any Guarantor does not file any such claim at least 30 days prior to
any applicable claims bar date, the Administrative Agent, as
attorney-in-fact for each Guarantor, is hereby irrevocably
authorized to do so in the name of each Guarantor or, in the
Administrative Agent's discretion, to assign the claim and to cause
a proof of claim to be filed in the name of the Administrative
Agent's nominee. The Administrative Agent or its nominee shall have
the sole right, but not obligation, to accept or reject any plan
proposed in such proceeding and to cast any votes and to take any
other action with respect to all claims which any Guarantor may have
against the Borrower or any other surety or guarantor. In all such
cases, whether in administration, bankruptcy or otherwise, the
person or persons authorized to pay claims shall pay to the
Administrative Agent the full amount payable on each Guarantor's
claims, and, to the full extent necessary for that purpose, each
Guarantor hereby assigns to the Administrative Agent all of the
Guarantor's rights to any such payments or distributions to which
each Guarantor would otherwise be entitled; provided, however, that
each Guarantor's obligations hereunder shall not be satisfied except
to the extent that the Administrative Agent receives cash by reason
of any such payment or distribution. If the Administrative Agent
receives anything hereunder other than cash, the same shall be held
as collateral for amounts due under this Guaranty.
Section 6. WAIVER OF SUBROGATION AND INDEMNITY.
Each Guarantor expressly waives, at all times, prior to
the full, final and indefeasible payment in cash of the Obligations
(other than Surviving Indemnities), any and all rights of
subrogation, reimbursement, indemnity, exoneration or any other
claim which any Guarantor may now or hereafter have against
Borrower, any other surety or guarantor or any other Person directly
or contingently liable for the payment or performance of the
Obligations (including, without limitation, property collateralizing
the Obligations), arising from the existence or performance of the
Guaranty.
Section 7. COVENANTS.
Each Guarantor covenants and agrees that, so long as any
part of the Obligations shall remain unpaid, each Guarantor will
comply with all requirements that each Guarantor or the Borrower or
any other surety or guarantor shall have it perform in connection
with the obligations of each Guarantor, the Borrower or any other
surety or guarantor under the Credit Agreement or the other Loan
Documents. Each Guarantor also covenants and agrees that it will,
from time to time, at its expense, promptly execute and deliver all
further instruments and documents and take all further action that
may be necessary or desirable, or that the Administrative Agent may
reasonably request, in order to enable the Administrative Agent to
exercise and enforce its rights and remedies hereunder with respect
to any collateral for the Obligations or to carry out the provisions
and purposes hereof.
Section 8. CONTINUING GUARANTY, SUCCESSORS AND ASSIGNS.
This Guaranty is a continuing guaranty and shall (a)
remain in full force and effect until payment in full of the
Obligations and all other amounts payable under this Guaranty and
the cancellation or termination of the Commitments or the Credit
Agreement, (b) be binding upon each Guarantor, their successors and
assigns, and (c) inure, together with the rights and remedies of the
Administrative Agent hereunder, to the benefit of the Administrative
Agent, the other Lender Parties and their respective successors,
transferees and assigns.
Section 9. SUBORDINATION.
Without limiting the rights of the Lender Parties under
any other agreement, any indebtedness (including interest accruing
at the agreed-to rate after the commencement of any bankruptcy,
reorganization or similar proceeding) that may be now or hereafter
extended by any Guarantor to or for the account of the Borrower or
any other surety or guarantor, or in respect of which the Borrower
or any other surety or guarantor may be liable to each Guarantor
(including statutory rights of subrogation, in any capacity) is
hereby subordinated to all obligations of the Borrower or any other
surety or guarantor to any Lender Party; and such indebtedness of
the Borrower, or any other surety or guarantor, if any Lender Party
so requests after the occurrence and during the continuation of any
Event of Default, shall be collected, enforced and received by each
Guarantor as trustee for the Lender Parties and be paid over to the
Administrative Agent on account of the Obligations but without
reducing or affecting in any manner the liability of the any
Guarantor under the other provisions of this Guaranty.
Section 10. CONDITION OF THE BORROWER.
Each Guarantor is fully aware of the financial condition
of the Borrower and the other Guarantors and is executing and
delivering this Guaranty based solely upon each Guarantor's own
independent investigation of all matters pertinent hereto and is not
relying in any manner upon any representation or statement of the
Administrative Agent or any other Lender Party. Each Guarantor,
with the assistance of counsel, has participated in the negotiation
of the Credit Agreement and all of the other Loan Documents, has
entered into the Credit Agreement as one of the Loan Parties, and is
knowledgeable about the obligations of the Borrower and the other
sureties and guarantors thereunder. Each Guarantor represents and
warrants that such Guarantor is in a position to obtain, and each
Guarantor hereby assumes full responsibility for obtaining, any
additional information concerning the financial condition of the
Borrower and the other sureties and guarantors and any other matter
pertinent hereto as each Guarantor may desire, and each Guarantor is
not relying upon or expecting the Administrative Agent or any other
Lender Party to furnish to each Guarantor any information now or
hereafter in their possession concerning the same or any other
matter. By executing this Guaranty, each Guarantor knowingly
accepts the full range of risks encompassed within a contract of
this type, which risks each Guarantor acknowledges. Each Guarantor
shall have no right to require the Administrative Agent or any other
Lender Party to obtain or disclose any information with respect to
the Obligations, the financial condition or character of the
Borrower or any other surety or guarantor or the Borrower's ability
to perform the Obligations, the existence of any collateral or
security for any or all of the Obligations, any action or non-action
on the party of the Administrative Agent or any other Lender Party,
the Borrower, any other surety or guarantor or any other Person, or
any other matter, fact or occurrence whatsoever.
Section 11. INDEMNITY AND EXPENSES.
(a) Each Guarantor agrees to protect, indemnify and hold
harmless the Administrative Agent, each other Lender Party and their
respective officers, directors, employees, counsel, agents and
attorneys-in-fact from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments,
demands, investigations, proceedings, suits, claims, costs, charges,
expenses and disbursements of any kind or nature whatsoever,
relating to or arising from this Guaranty (including, without
limitation, enforcement of this Guaranty), in the manner and on the
terms set forth in Section 8.04(c) of the Credit Agreement. This
Section 11 shall in no event limit, expand or otherwise modify the
indemnification provided in the Credit Agreement or any of the other
Loan Documents.
(b) In addition to the provisions of Section 8.04 of the
Credit Agreement, each Guarantor will, within three (3) Business
Days after demand, pay to the Administrative Agent, for the benefit
of the Lender Parties, the amount of any and all expenses, including
reasonable Attorney Costs and other reasonable attorneys' fees and
costs, fees, expenses and disbursements of any experts and agents
that the Lender Parties incur, whether in their capacity as Lender,
or Administrative Agent or in their individual capacities, after the
occurrence of an Event of Default in connection with (i) the
administration of this Guaranty, including, without limitation, the
preparation of any amendment, modification or waiver hereof, (ii)
the exercise or enforcement of any of the rights of the
Administrative Agent hereunder, (iii) the failure by any Guarantor
to perform or observe any of the provisions hereof, (iv) any
refinancing or restructuring of the credit arrangements provided
under the Credit Agreement in the nature of a "work-out" or in any
insolvency or bankruptcy proceeding, or (v) any action taken by the
Administrative Agent hereunder.
Section 12. THE AGENT.
The Administrative Agent, on behalf of the Lender Parties,
shall have the right hereunder to make demands, to give notices, to
exercise or refrain from exercising any rights, and to take or
refrain from taking action (including, without limitation, the
release or substitution of Collateral and any collateral for each
Guarantor's obligations under this Guaranty (the "Guarantor
Collateral")) in accordance with the terms of this Guaranty and the
Credit Agreement; provided that, in the event of a conflict between
the provisions of such agreements, the Credit Agreement shall
control to the extent it resolves such conflict. The Administrative
Agent may resign and a successor to the Administrative Agent may be
appointed in the manner provided in the Credit Agreement. Upon the
acceptance of any appointment as a Administrative Agent by a
successor Administrative Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the
retiring Administrative Agent under this Guaranty, and the retiring
Administrative Agent shall thereupon be discharged from its duties
and obligations under this Guaranty and shall deliver any Guarantor
Collateral in its possession to the successor Administrative Agent.
After any retiring Administrative Agent's resignation, the
provisions of this Guaranty shall inure to its benefit as to any
actions taken or omitted to be taken by it under this Guaranty while
it was the Administrative Agent.
Section 13. AMENDMENTS, ETC.
No amendment or waiver of any provision of this Guaranty,
nor consent to any departure by any Guarantor herefrom, shall in any
event be effective unless the same shall be in writing and signed by
the Administrative Agent and any consents or approvals required
under the Credit Agreement shall have been obtained, and then such
waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given.
Section 14. ADDRESS FOR NOTICES.
All notices and other communications provided for
hereunder shall be in writing and sent or delivered to each
Guarantor or the Administrative Agent, as the case may be, in the
manner set forth in the Credit Agreement and to the address set
forth on the signature pages of the Credit Agreement.
Section 15. LIMITATION OF LIABILITY.
No claim may be made by any Guarantor or any other Person
against the Administrative Agent or any other Lender Party or the
affiliates, directors, officers, employees, attorneys or agents of
any of them for any special, indirect, consequential or punitive
damages in respect of any claims for breach of contract or any other
theory of liability arising out of related to the transactions
contemplated by this Guaranty, or any act, omission or event
occurring in connection therewith; and each Guarantor hereby waives,
releases and agrees not to xxx upon any claims for any such damages,
whether or not accrued and whether or not known or suspected to
exist in its favor.
Section 16. REMEDIES CUMULATIVE.
The amount and/or extent of liability of each Guarantor,
and all rights, powers and remedies of the Administrative Agent
hereunder, under the Credit Agreement or any other Loan Document or
under any other agreement now or at any time hereafter in force
between Administrative Agent and each Guarantor (whether relating to
the Obligations or otherwise) or now or hereafter existing at law or
in equity or by statute or otherwise, shall be cumulative and
concurrent and not alternative and such rights, powers and remedies
shall be in addition to every other such right, power or remedy.
Section 17. SEVERABILITY.
The provisions of this Guaranty are intended to be
severable. If for any reason any provision of this Guaranty shall
be held invalid or unenforceable in whole or in part in any
jurisdiction, such provision shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability
without in any manner affecting the validity or enforceability
thereof in any other jurisdiction or the remaining provisions hereof
in any jurisdiction.
Section 18. NO WAIVER.
No failure on the party of the Administrative Agent or any
other Lender Party to exercise, and no delay in exercising, any
right, remedy, power or privilege hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any
right, remedy, power or privilege hereunder preclude any other or
further exercise thereof or the exercise of any other right, remedy,
power or privilege.
Section 19. HEADINGS.
Section and other headings in this Guaranty are for
convenience of reference only, are without substantive meaning and
should not be construed to modify, enlarge, or restrict any
provision.
Section 20. GOVERNING LAW.
THIS GUARANTY SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED
AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF CALIFORNIA
APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED IN SUCH STATE.
IN WITNESS WHEREOF, each Guarantor has caused this
Guaranty to be duly executed and delivered by its officer thereunto
duly authorized as of the date first above written.
REDWOOD SYSTEMS, INC., a
Delaware corporation
By: /s/Xxxxxx X. Xxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxx
Title: Executive Vice President and
CFO
REDWOOD SYSTEMS LOGISTICS DE MEXICO,
S.A. DE C.V., a Mexico corporation
By: /s/Xxxxxx X. Xxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxx
Title: Executive Vice President and
CFO
REDWOOD SYSTEMS SERVICES DE MEXICO,
S.A. DE C.V., a Mexico corporation
By: /s/Xxxxxx X. Xxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxx
Title: Executive Vice President and
CFO
CF AIRFREIGHT CORPORATION, a Delaware
Corporation
By: /s/Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Vice President and Treasurer
