EXHIBIT 10.22
Execution Copy
AMENDED AND RESTATED SECURITY AGREEMENT
DATED AS OF DECEMBER 16, 1997
between
PACIFIC MOTOR TRANSPORT COMPANY
AND
THE FIRST NATIONAL BANK OF CHICAGO,
as Agent
TABLE OF CONTENTS
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SECTION 1. Defined Terms...................................................................................... 1
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SECTION 2. Grant of Security.................................................................................. 2
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SECTION 3. Authorization...................................................................................... 4
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SECTION 4. Grantor Remains Liable............................................................................. 4
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SECTION 5. Representations and Warranties..................................................................... 4
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SECTION 6. Perfection and Maintenance of Security Interest and Lien........................................... 5
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SECTION 7. Financing Statements............................................................................... 6
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SECTION 8. Filing Costs....................................................................................... 6
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SECTION 9. Schedule of Collateral............................................................................. 6
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SECTION 10. Equipment and Inventory............................................................................ 6
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SECTION 11. Accounts........................................................................................... 7
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SECTION 12. Leased Real Property............................................................................... 8
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SECTION 13. General Covenants.................................................................................. 8
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SECTION 14. Agent Appointed Attorney-in-Fact................................................................... 8
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SECTION 15. Agent May Perform................................................................................... 9
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SECTION 16. Agent's Duties...................................................................................... 9
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SECTION 17. Remedies............................................................................................ 9
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SECTION 18. Exercise of Remedies............................................................................... 10
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SECTION 19. License............................................................................................ 10
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SECTION 20. Injunctive Relief.................................................................................. 11
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SECTION 21. Interpretation and Inconsistencies; Merger; No Strict Construction................................. 11
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SECTION 22. Expenses........................................................................................... 11
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SECTION 23. Amendments, Etc.................................................................................... 11
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SECTION 24. Notices............................................................................................ 11
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SECTION 25. Continuing Security Interest; Termination.......................................................... 11
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SECTION 26. Severability....................................................................................... 12
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SECTION 27. GOVERNING LAW...................................................................................... 12
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SECTION 28. CONSENT TO JURISDICTION; SERVICE OF PROCESS; JURY TRIAL............................................ 12
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(A) EXCLUSIVE JURISDICTION........................................................................ 12
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(B) OTHER JURISDICTIONS........................................................................... 12
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(C) SERVICE OF PROCESS............................................................................ 13
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(D) WAIVER OF JURY TRIAL.......................................................................... 13
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(E) WAIVER OF BOND................................................................................ 13
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(F) ADVICE OF COUNSEL............................................................................. 13
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EXHIBITS AND SCHEDULES
EXHIBITS
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EXHIBIT A-1 -- Form of Landlord Agreement
EXHIBIT A-2 -- Form of Mortgagee Agreement
EXHIBIT B -- Form of Bailee Letter
SCHEDULES
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Schedule 1 -- Pledged Debt
Schedule 2 -- Locations of Collateral
Schedule 2-A -- Third Party Locations
Schedule 2-B -- Financing Statement Filing Locations
Schedule 3 -- Trade Names
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AMENDED AND RESTATED SECURITY AGREEMENT
This AMENDED AND RESTATED SECURITY AGREEMENT ("Agreement"), dated as of
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December ___, 1997 is made by PACIFIC MOTOR TRANSPORT COMPANY., a California
corporation ("Grantor"), in favor of THE FIRST NATIONAL BANK OF CHICAGO (the
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"Agent"), for its benefit and for the benefit of the "Holders of Secured
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Obligations" (as defined below) who are, or may hereafter become, parties to the
Credit Agreement referred to below.
PRELIMINARY STATEMENT
Grantor has entered into a certain Amended and Restated Credit Agreement of
even date herewith among PMT Holdings, Inc. ("Holdings"), Pacific Motor
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Transport Company ("Pacific Motor"), American International Rail Services,
L.L.C. ("AIRS"), American International Mechanical Services, L.L.C. ("AIMS"),
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ICI Acquisition Company ("Acquisition Company."), Interstate Consolidation, Inc.
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("ICI"), Interstate Consolidation Service, Inc. ("ICS"), Intermodal Container
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Service, Inc. ("IMCS")(Holdings, Pacific Motor, AIRS, AIMS, Acquisition Company,
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ICI, ICS and ICMS being referred to as the "Borrowers"), the institutions from
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time to time party thereto as lenders (the "Lenders") and the Agent, as the
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contractual representative for the Lenders (as the same may be amended,
restated, supplemented or otherwise modified from time to time, the "Credit
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Agreement"), providing for the making of loans, advances and other financial
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accommodations (including, without limitation issuing letters of credit) (all
such loans, advances and other financial accommodations being hereinafter
referred to collectively as the "Loans") to or for the benefit of the Borrowers.
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It is a condition precedent to the making of the Loans under the Credit
Agreement that Grantor shall have granted the security interest contemplated by
this Agreement.
NOW, THEREFORE, in consideration of the premises set forth herein and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Defined Terms. Unless otherwise defined herein, terms defined in
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the Credit Agreement are used herein as therein defined, and the following terms
shall have the following meanings (such meanings being equally applicable to
both the singular and the plural forms of the terms defined):
"Agreement" shall mean this Amended and Restated Security Agreement, as the
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same may from time to time be amended, restated, modified or supplemented, and
shall refer to this Agreement as the same may be in effect at the time such
reference becomes operative.
"Collateral" shall mean all property and rights in property now owned or
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hereafter at any time acquired by Grantor in or upon which a Lien is granted in
favor of the Agent by Grantor or a Subsidiary of Grantor under this Agreement,
including, without limitation, the property described in Section 2.
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"UCC" shall mean the Uniform Commercial Code as the same may, from time to
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time, be in effect in the State of Illinois; provided, however, in the event
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that, by reason of mandatory provisions of law, any or all of the attachment,
perfection or priority of the Agent's and the Holders of Secured Obligations'
security interest in any Collateral is governed by the Uniform Commercial Code
as in effect in a jurisdiction other than the State of Illinois, the term "UCC"
shall mean the Uniform Commercial Code as in effect in such other jurisdiction
for purposes of the provisions hereof relating to such attachment, perfection or
priority and for purposes of definitions related to such provisions.
SECTION 2. Grant of Security. To secure the prompt and complete payment,
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observance and performance of the Secured Obligations, Grantor hereby assigns
and pledges to Agent, for the benefit of itself and the Holders of Secured
Obligations, and hereby grants to Agent, for the benefit of itself and the
Holders of Secured Obligations, a security interest in all of Grantor's right,
title and interest in and to the following, whether now owned or existing or
hereafter arising or acquired and wheresoever located:
ACCOUNTS: All "accounts" as such term is defined in Section 9-106 of the
UCC, whether now owned or hereafter acquired or arising; Grantor intends that
the term "accounts", as used herein, be construed in its broadest sense, and
such term shall include, without limitation, all present and future accounts,
accounts receivable and other rights of Grantor to payment for goods sold or
leased or for services rendered (except those evidenced by instruments or
chattel paper), whether now existing or here after arising and wherever
arising, and whether or not they have been earned by performance (collectively,
"Accounts");
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INVENTORY: All "inventory" as defined in Section 9-109(4) of the UCC,
whether now owned or hereafter acquired or arising; Grantor intends that the
term "inventory", as used herein, be construed in its broadest sense, and such
term shall include, without limitation, all goods now owned or hereafter
acquired by Grantor (wherever located, whether in the possession of Grantor or
of a bailee or other person for sale, storage, transit, processing, use or
otherwise and whether consisting of whole goods, spare parts, components,
supplies, materials, or consigned, returned or repossessed goods) which are held
for sale or lease, which are to be furnished (or have been furnished) under any
contract of service or which are raw materials, work in process or materials
used or consumed in Grantor's business (collectively, "Inventory");
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EQUIPMENT: All "equipment" as such term is defined in Section 9-109(2) of
the UCC, whether now owned or hereafter acquired or arising; Grantor intends
that the term "equipment", as used herein, be construed in its broadest sense,
and such term shall include, without limitation, all machinery, all
manufacturing, distribution, selling, data processing and office equipment, all
furniture, furnishings, appliances, fixtures and trade fixtures, tools, tooling,
molds, dies, vehicles, vessels, trucks, buses, motor vehicles and all other
goods of every type and description (other than Inventory), in each instance
whether now owned or hereafter acquired by Grantor and wherever located
(collectively, "Equipment");
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GENERAL INTANGIBLES: All "general intangibles" as defined in Section 9-106
of the UCC, whether now owned or hereafter acquired or arising; Grantor intends
that the term "general intangibles", as used herein, be construed in its
broadest sense, and such term shall include, without limitation, all rights,
interests, chosen in action, causes of actions, claims and all other intangible
property of Grantor of every kind and nature (other than Accounts), in each
instance whether now owned or hereafter acquired by Grantor and however and
whenever arising, including, without limitation, all corporate and
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other business records; all loans, royalties, and other obligations receivable;
customer lists, credit files, correspondence, and advertising materials; firm
sale orders, other contracts and contract rights; all interests in partnerships,
joint ventures and limited liability companies; all tax refunds and tax refund
claims; all right, title and interest under leases, subleases, licenses and
concessions and other agreements relating to real or personal property; all
payments due or made to Grantor in connection with any requisition,
confiscation, condemnation, seizure or forfeiture of any property by any person
or governmental authority; all deposit accounts (general or special) with any
bank or other financial institution, including, without limitation, any deposits
or other sums at any time credited by or due to Grantor from any of the Holders
of Secured Obligations or any of their respective Affiliates with the same
rights therein as if the deposits or other sums were credited by or due from
such Holder of Secured Obligations; all credits with and other claims against
carriers and shippers; all rights to indemnification; all patents, and patent
applications (including all reissues, divisions, continuations and extensions);
all service marks and service xxxx applications; all trade secrets and
inventions; all copyrights and copyright applications (including all computer
software and related documentation); all rights and interests in and to
trademarks, trademark registrations and applications therefor, trade names,
corporate names, brand names, slogans, all goodwill associated with the
foregoing; all license agreements and franchise agreements, all reversionary
interests in pension and profit sharing plans and reversionary, beneficial and
residual interest in trusts; all proceeds of insurance of which Grantor is
beneficiary; and all letters of credit, guaranties, liens, security interests
and other security held by or granted to Grantor; and all other intangible
property, whether or not similar to the foregoing;
LAB PROCESSING AND ENGINEERING INFORMATION: All rights and interests in
and to processes, lab journals, and notebooks, data, trade secrets, know-how,
product formulae and information, manufacturing, engineering and other drawings
and manuals, technology, blueprints, research and development reports, agency
agreements, technical information, technical assistance, engineering data,
design and engineering specifications, and similar materials recording or
evidencing expertise used in or employed by Grantor (including any license for
the foregoing);
CONTRACT RIGHTS: All rights and interests in and to any pending or
executory contracts, requests for quotations, invitations for bid, agreements,
leases and arrangements of which Grantor is a party to or in which Grantor has
an interest, excluding any license agreement under which the Grantor is the
licensee;
CHATTEL PAPER, INSTRUMENTS AND DOCUMENTS: All chattel paper, leases, all
instruments, including, without limitation, the notes and debt instruments
described in Schedule 1 (the "Pledged Debt") and all payments thereunder and
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instruments and other property from time to time delivered in respect thereof or
in exchange therefor, and all bills of sale, bills of lading, warehouse receipts
and other documents of title, in each instance whether now owned or hereafter
acquired by Grantor;
INTEREST AND CURRENCY CONTRACTS: Any and all interest rate, commodity or
currency exchange agreements or derivative agreements, including without
limitation, cap, collar, floor, forward or similar agreements or other rate,
currency or price protection arrangements; and
OTHER PROPERTY: All property or interests in property now owned or
hereafter acquired by Grantor which now may be owned or hereafter may come into
the possession, custody or control of Agent or any of the Holders of Secured
Obligations or any agent or Affiliate of any of them in any way and for any
purpose (whether for safekeeping, deposit, custody, pledge, transmission,
collection or
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otherwise); and all rights and interests of Grantor, now existing or hereafter
arising and however and wherever arising, in respect of any and all (i) notes,
drafts, letters of credit, stocks, bonds, and debt and equity securities,
whether or not certificated, investment property (as defined in Section 9-
115(1)(f) of the UCC) and warrants, options, puts and calls and other rights to
acquire or otherwise relating to the same; (ii) money; (iii) proceeds of loans,
including, without limitation, loans made under the Credit Agreement; and (iv)
insurance proceeds and books and records relating to any of the property covered
by this Agreement; together, in each instance, with all accessions and additions
thereto, substitutions therefor, and replacements, proceeds and products
thereof; provided, however, that there is expressly excluded from the foregoing
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any such item of Collateral with respect to which any consent or waiver from a
third party is required for the assignment or pledge thereof pursuant to this
Section 2 if and to the extent such consent or waiver is not obtained.
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SECTION 3. Authorization. Grantor hereby authorizes Agent to retain and
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each Holder of Secured Obligations, and each Affiliate of Agent and of each
Holder of Secured Obligations, to pay or deliver to Agent, for the benefit of
the Holders of Secured Obligations, without any necessity on the part of any
Holder of Secured Obligations to resort to other security or sources of
reimbursement for the Secured Obligations, at any time following the occurrence
and during the continuance of any Default, and without further notice to Grantor
(such notice being expressly waived), any of the deposits referred to in Section
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2 (whether general or special, time or demand, provisional or final) or other
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sums or property held by such Person, for application against any portion of the
Secured Obligations, irrespective of whether any demand has been made or whether
such portion of the Secured Obligations is mature. Agent will promptly notify
Grantor of Agent's receipt of such funds or other property for application
against the Secured Obligations, but failure to do so will not affect the
validity or enforceability thereof. Agent may give notice of the above grant of
security interest and assignment of the aforesaid deposits and other sums, and
authorization, to, and make any suitable arrangements with, any such Holder of
Secured Obligations for effectuation thereof, and Grantor hereby irrevocably
appoints Agent as its attorney to collect, following the occurrence and during
the continuance of a Default, any and all such deposits or other sums to the
extent any such payment is not made to Agent by such Holder of Secured
Obligations or Affiliate thereof.
SECTION 4. Grantor Remains Liable. Anything herein to the contrary
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notwithstanding, (a) Grantor shall remain solely liable under the contracts and
agreements included in the Collateral to the extent set forth therein to perform
all of its duties and obligations thereunder to the same extent as if this
Agreement had not been executed, (b) the exercise by Agent of any of its rights
hereunder shall not release Grantor from any of its duties or obligations under
the contracts and agreements included in the Collateral, and (c) neither Agent
nor the Holders of Secured Obligations shall have any responsibility, obligation
or liability under the contracts and agreements included in the Collateral by
reason of this Agreement, nor shall Agent or the Holders of Secured Obligations
be required or obligated, in any manner, to (i) perform or fulfill any of the
obligations or duties of Grantor thereunder, (ii) make any payment, or make any
inquiry as to the nature or sufficiency of any payment received by Grantor or
the sufficiency of any performance by any party under any such contract or
agreement or (iii) present or file any claim, or take any action to collect or
enforce any claim for payment assigned hereunder.
SECTION 5. Representations and Warranties. Grantor represents and
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warrants, as of the date of this Agreement and as of each date hereafter (except
for changes permitted or contemplated by or under this Agreement or the Credit
Agreement) until termination of this Agreement pursuant to Section 25:
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(a) The correct corporate name of Grantor is set forth in the first
paragraph of this Agreement. The locations listed on Schedule 2 constitute all
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locations at which Inventory and/or Equipment is located and Grantor has
exclusive possession and control of such Equipment and Inventory, except for
such Inventory and Equipment which is (i) temporarily in transit between such
locations, or (ii) temporarily stored with third parties or held by third
parties for storage, processing, engineering, evaluation, repairs or sale, the
proper corporate names of which third parties, the location of such Inventory
and/or Equipment, and the nature of the relationship between Grantor and such
third parties is set forth in Schedule 2-A. The chief place of business and
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chief executive office of Grantor are located at the address of Grantor set
forth below the Grantor's signature on the Credit Agreement. All records
concerning any Accounts and all originals of all chattel paper which evidence
any Account are located at the addresses listed on Schedule 2 and none of the
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Accounts is evidenced by a promissory note or other instrument except for such
notes and other instruments delivered to Agent as Pledged Debt.
(b) Grantor is the legal and beneficial owner of the Collateral free and
clear of all Liens except for Liens permitted by Section 6.3(C) of the Credit
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Agreement. Grantor currently conducts business under the name Pacific Motor
Transport Company and, in certain areas and for certain operations, the trade
names listed on Schedule 3. The Grantor uses no trade names or fictitious
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names, except as set forth on Schedule 3.
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(c) This Agreement creates in favor of Agent a legal, valid and
enforceable security interest in the Collateral. When financing statements have
been filed in the appropriate offices against Grantor in the locations listed on
Schedule 2-B, Agent will have a fully perfected first priority lien on, and
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security interest in, the Collateral in which a security interest may be
perfected by such filing, subject only to Liens permitted by Section 6.3(C) of
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the Credit Agreement.
(d) No authorization, approval or other action by, and no notice to or
filing with, any Governmental Authority that has not already been taken or made
and which is in full force and effect, is required (i) for the grant by Grantor
of the security interest in the Collateral granted hereby; or (ii) for the
execution, delivery or performance of this Agreement by Grantor.
(e) The Pledged Debt issued by any Affiliate of Grantor, and to the best
of Grantor's knowledge, all other Pledged Debt, has been duly authorized, issued
and delivered, and is the legal, valid, binding and enforceable obligation of
the respective issuer thereof.
SECTION 6. Perfection and Maintenance of Security Interest and Lien.
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Grantor agrees that until all of the Secured Obligations (other than contingent
indemnity Obligations) have been fully satisfied and the Credit Agreement has
been terminated, Agent's security interests in and Liens on and against the
Collateral and all proceeds and products thereof, shall continue in full force
and effect. Grantor shall perform any and all steps reasonably requested by
Agent to perfect, maintain and protect Agent's security interests in and Liens
on and against the Collateral granted or purported to be granted hereby or to
enable Agent to exercise its rights and remedies hereunder with respect to any
Collateral, including, without limitation, (i) executing and filing financing or
continuation statements, or amendments thereof, in form and substance reasonably
satisfactory to Agent, (ii) delivering to Agent all certificates, notes and
other instruments (including, without limitation, all letters of credit on which
Grantor is named as a beneficiary) representing or evidencing Collateral, which
certificates, notes and other instruments have been duly endorsed and are
accompanied by duly executed instruments of transfer or assignment, including,
but not limited to, note powers, all in form and substance satisfactory
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to Agent, (iii) delivering to Agent warehouse receipts covering that portion of
the Collateral, if any, located in warehouses and for which warehouse receipts
are issued, (iv) after the occurrence and during the continuance of a Default,
transferring Inventory and Equipment to warehouses designated by Agent or taking
such other steps as are deemed necessary by Agent to maintain Agent's control of
the Inventory and Equipment, (v) marking conspicuously each document, contract,
chattel paper and all records pertaining to the Collateral with a legend, in
form and substance satisfactory to Agent, indicating that such document,
contract, chattel paper, or Collateral is subject to the security interest
granted hereby, (vi) using commercially reasonable efforts to obtain within
ninety (90) days after the Closing Date (a) waivers of Liens and access
agreements in substantially the form of Exhibit A-1 hereto (or such other form
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as may be agreed to by the Agent) from landlords with respect to Grantor's
leased premises as of the Closing Date, (b) mortgagee agreements in
substantially the form of Exhibit A-2 hereto (or such other form as may be
agreed to by the Agent) from mortgagees with respect to Grantor's leased
premises as of the Closing Date and (c) as requested by Agent, waivers of Liens
and access agreements in substantially the form of Exhibit B (or such other form
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as may be agreed to by Agent) from the appropriate Person with respect to any of
the Inventory temporarily stored with third parties or held by third parties for
storage, processing, engineering, evaluation, repair or sale as of the Closing
Date, (vii) obtaining waivers of Liens and access agreements in substantially
the form of Exhibit A-1 hereto (or such other form as may be agreed to by Agent)
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from landlords and Exhibit A-2 hereto (or such other form as may be agreed to by
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Agent) from mortgagees with respect to all leases executed after the Closing
Date and obtaining waivers of Liens and access agreements in substantially the
form of Exhibit B hereto (or such other form as may be agreed to by Agent) from
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the appropriate Person with respect to all arrangements pursuant to which
Inventory will be temporarily stored with third parties or held by third parties
for storage, processing, engineering, evaluation, repair or sale after the
Closing Date (in connection with which the Grantor shall be permitted to and
hereby required to update Schedule 2-A), and (vii) executing and delivering all
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further instruments and documents, and taking all further action, as Agent may
reasonably request.
SECTION 7. Financing Statements. To the extent permitted by applicable
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law, Grantor hereby authorizes Agent to file one or more financing or
continuation statements and amendments thereto, disclosing the security interest
granted to Agent under this Agreement without Grantor's signature appearing
thereon and Agent agrees to notify Grantor when such a filing has been made.
Grantor agrees that a carbon, photographic, photostatic, or other reproduction
of this Agreement or of a financing statement is sufficient as a financing
statement. If any Inventory or Equipment is in the possession or control of any
warehouseman or Grantor's agents or processors, Grantor shall, upon Agent's
request, notify such warehouseman, agent or processor of Agent's security
interest in such Inventory and Equipment and, upon Agent's request, instruct
them to hold all such Inventory or Equipment for Agent's account and subject to
Agent's instructions.
SECTION 8. Filing Costs. Grantor shall pay the costs of, or incidental to,
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all recordings or filings of all financing statements, including, without
limitation, any filing expenses incurred by Agent pursuant to Section 7.
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SECTION 9. Schedule of Collateral. Grantor shall furnish to Agent from
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time to time statements and schedules further identifying and describing the
Collateral and such other reports in connection with the Collateral as Agent may
reasonably request, all in reasonable detail.
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SECTION 10. Equipment and Inventory. Grantor covenants and agrees with
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Agent that from the date of this Agreement and until termination of this
Agreement pursuant to Section 25, Grantor shall:
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(a) Keep the Equipment and Inventory (other than Equipment or Inventory
sold or disposed of as permitted by the Credit Agreement in the ordinary course
of business) at the places specified in Section 5(a), except for Equipment and
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Inventory (i) temporarily in transit between such locations or (ii) temporarily
stored with the third parties or held by third parties for storage, processing,
engineering, evaluation, repair or sale and set forth on Schedule 2-A and in
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connection with which the Grantor has complied with the requirements set forth
in Section 6, and deliver written notice to Agent at least thirty (30) days
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prior to establishing any other location at which or third party with which it
reasonably expects to maintain Inventory and/or Equipment in which location or
with which third party all action required by this Agreement shall have been
taken with respect to all such Equipment and Inventory;
(b) Maintain or cause to be maintained in good repair, working order and
condition, excepting ordinary wear and tear and damage due to casualty, all of
the Equipment, and make or cause to be made all appropriate repairs, renewals
and replacements thereof, as quickly as practicable after the occurrence of any
loss or damage thereto which are necessary or desirable to such end; and
(c) Comply with the terms of the Credit Agreement with respect to such
Equipment and Inventory, including, without limitation, the maintenance and
insurance provisions set forth in Section 6.2(E), (G) and (I) of the Credit
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Agreement.
SECTION 11. Accounts. Grantor covenants and agrees with Agent that from
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and after the date of this Agreement and until termination of this Agreement
pursuant to Section 25, Grantor shall:
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(a) Keep its chief place of business and chief executive office at its
address set forth below the Grantor's signature on the Credit Agreement, and
keep the offices where it keeps all records concerning the Accounts and
originals of all chattel paper which evidence Accounts at the locations therefor
specified in Section 5(a) or, upon thirty (30) days' prior written notice to
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Agent, at such other locations within the United States in a jurisdiction where
all actions required by Section 6 shall have been taken with respect to the
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Accounts. Grantor will hold and preserve such records (in accordance with
Grantor's usual document retention practices) and chattel paper and upon
reasonable prior notice will permit representatives of Agent at any time during
normal business hours to inspect and make abstracts from such records and
chattel paper; and
(b) In any suit, proceeding or action brought by Agent under any Account
comprising part of the Collateral, Grantor will save, indemnify and keep each of
the Holders of Secured Obligations harmless from and against all expenses, loss
or damage suffered by reason of any defense, setoff, counterclaim, recoupment or
reduction of liability whatsoever of the obligor thereunder, arising out of a
breach by Grantor of any obligation or arising out of any other agreement,
indebtedness or liability at any time owing to or in favor of such Holder of
Secured Obligations from Grantor, and all such obligations of Grantor shall be
and shall remain enforceable against and only against Grantor and shall not be
enforceable against any of the Holders of Secured Obligations.
SECTION 12. Leased Real Property. Grantor covenants and agrees with Agent
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that from and after the date of this Agreement and until termination of this
Agreement pursuant to Section 25, that:
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(a) Promptly following, but not later than ninety (90) days after the
date hereof, and thereafter as requested by Agent, but no more often than once
each fiscal year, Grantor will furnish to Agent a report certified to be true
and correct in all material respects by Grantor containing a list of each of the
Grantor's leased premises; the name or names of all owners; rentals being paid;
and whether Grantor has obtained waivers of Liens and access agreements from
landlords and mortgagees with respect to such premises in accordance with
Section 6;
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(b) Grantor agrees that, from and after the occurrence of a Default, Agent
may, but need not, make any payment or perform any act hereinbefore required of
Grantor with respect to the Grantor's leased premises in any form and manner
deemed expedient. All money paid for any of the purposes herein authorized and
all other moneys advanced by Agent to protect the lien hereof shall be
additional Secured Obligations secured hereby and shall become immediately due
and payable without notice and shall bear interest thereon at the default
interest rate as provided in Section 2.11 of the Credit Agreement until paid to
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Agent in full; and
(c) Grantor agrees that it will not amend any lease in a manner that
materially adversely affects the interests of the Holders of Secured Obligations
without the Agent's prior written consent.
SECTION 13. General Covenants. Grantor covenants and agrees with Agent
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that from and after the date of this Agreement and until termination of this
Agreement pursuant to Section 25, Grantor shall:
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(a) Keep and maintain at Grantor's own cost and expense satisfactory and
complete records of Grantor's Collateral in a manner consistent with Grantor's
current business practice, including, without limitation, a record of all
material payments received and all material credits granted with respect to such
Collateral. Grantor shall, for Agent's further security, upon Agent's
reasonable request deliver and turn over to Agent or Agent's designated
representatives at any time following the occurrence and during the continuation
of a Default, any such books and records (including, without limitation, copies
of any and all material computer tapes, programs and source and object codes
owned by Grantor relating to such Collateral in which Grantor has an interest or
any part or parts thereof); and
(b) Grantor will not create, permit or suffer to exist, and will defend
the Collateral against, and take such other action as is necessary to remove,
any Lien on such Collateral other than Liens permitted under Section 6.3(C) of
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the Credit Agreement, and will defend the right, title and interest of Agent in
and to Grantor's rights to such Collateral, including, without limitation, the
proceeds and products thereof, against the claims and demands of all Persons
whatsoever.
SECTION 14. Agent Appointed Attorney-in-Fact. Grantor hereby irrevocably
--------------------------------
appoints Agent as Grantor's attorney-in-fact, with full authority in the place
and stead of Grantor and in the name of Grantor or otherwise, from time to time
in Agent's reasonable discretion, to take any action and to execute any
instrument which Agent may reasonably deem necessary or advisable to accomplish
the purposes of this Agreement, including, without limitation, (a) following the
occurrence and during the continuance of a Default, to:
(i) obtain and adjust insurance required to be paid to the Agent or
any Holders of Secured Obligations pursuant to the Credit Agreement;
-8-
(ii) ask, demand, collect, xxx for, recover, compromise, receive and
give acquittance and receipts for moneys due and to become due under or in
respect of any of the Collateral;
(iii) receive, endorse, and collect any drafts or other instruments,
documents and chattel paper, in connection with clause (i) or (ii) above;
---------- ----
and
(iv) file any claims or take any action or institute any proceedings
which Agent may deem necessary or desirable for the collection of any of
the Collateral, or otherwise to enforce the rights of Agent with respect to
any of the Collateral;
and (b) at any time, to:
(i) obtain access to records maintained for Grantor by computer
services companies and other service companies or bureaus;
(ii) send requests under Grantor's, the Agent's or a fictitious name
to Grantor's customers or account debtors for verification of Accounts
provided that the Agent gives the Grantor notice prior to initiating any
such verifications; and
(iii) do all other things consistent with the terms of this Agreement
as may be reasonably necessary to carry out the terms hereof.
SECTION 15. Agent May Perform. If Grantor fails to perform any agreement
-----------------
contained herein or in the Credit Agreement, Agent may, upon three business days
prior written notice to the Grantor, perform, or cause performance of, such
agreement, and the reasonable expenses of Agent incurred in connection therewith
shall be payable by Grantor under Section 22.
----------
SECTION 16. Agent's Duties. The powers conferred on Agent hereunder are
--------------
solely to protect its interest in the Collateral and shall not impose any duty
upon it to exercise any such powers. Except for the safe custody of any
Collateral in its possession and the accounting for moneys actually received by
it hereunder, Agent shall not have any duty as to any Collateral. Agent shall
be deemed to have exercised reasonable care in the custody and preservation of
the Collateral in its possession if the Collateral is accorded treatment
substantially equal to that which Agent accords its own property of similar
amount, value and nature, it being understood that Agent shall be under no
obligation to take any necessary steps to preserve rights against prior parties
or any other rights pertaining to any Collateral, but may do so at its option,
and all reasonable expenses incurred in connection therewith shall be for the
sole account of Grantor and shall be added to the Secured Obligations. In
exercising any of its rights and remedies hereunder or otherwise enforcing this
Agreement, Agent shall at all times act in good faith and in a commercially
reasonable manner.
SECTION 17. Remedies. (a) If any Default shall have occurred and be
--------
continuing:
(i) Agent shall have, in addition to other rights and remedies provided
for herein or otherwise available to it, all the rights and remedies of a
secured party upon default under the UCC (whether or not the UCC applies to the
affected Collateral) and further, Agent may, without notice, demand or legal
process of any kind (except as may be required by law), all of which Grantor
waives, at any time or
-9-
times, (x) enter Grantor's owned or leased premises and take physical possession
of the Collateral and maintain such possession on Grantor's owned or leased
premises, at no cost to Agent or any of the Holders of Secured Obligations, or
remove the Collateral, or any part thereof, to such other place(s) as Agent may
desire, (y) require Grantor to, and Grantor hereby agrees that it will at its
expense and upon request of Agent forthwith, assemble all or any part of the
Collateral as directed by Agent and make it available to Agent at a place to be
designated by Agent which is reasonably convenient to Agent and (z) without
notice except as specified below, sell, lease, assign, grant an option or
options to purchase or otherwise dispose of the Collateral or any part thereof
at public or private sale, at any exchange, broker's board or at any of the
offices of Agent or elsewhere, for cash, on credit or for future delivery, and
upon such other terms as Agent may deem commercially reasonable. Grantor agrees
that, to the extent notice of sale shall be required by law, at least ten (10)
days' notice to Grantor of the time and place of any public sale or the time
after which any private sale is to be made shall constitute reasonable
notification. Agent shall not be obligated to make any sale of Collateral
regardless of notice of sale having been given. Agent may adjourn any public or
private sale from time to time by announcement at the time and place fixed
therefor, and such sale may, without further notice, be made at the time and
place to which it was so adjourned;
(ii) Agent shall apply all cash proceeds received by Agent in respect of
any sale of, collection from, or other realization upon all or any part of the
Collateral (after payment of any amounts payable to Agent pursuant to Section
-------
22), for the benefit of the Holders of Secured Obligations, against all or any
--
part of the Secured Obligations in such order as may be required by the Credit
Agreement or, to the extent not specified therein, as is determined by the
Required Lenders. Any surplus of such cash or cash proceeds held by Agent and
remaining after payment in full of all the Secured Obligations shall be paid
over to Grantor or as may be lawfully required pursuant to an order of a court
of confident jurisdiction;
(b) Grantor waives all claims, damages and demands against Agent arising
out of the repossession, retention or sale of any of the Collateral or any part
or parts thereof, except any such claims, damages and awards arising out of the
Gross Negligence or willful misconduct or breach of Section 16 hereof of or by
----------
Agent or any of the Holders of Secured Obligations, as the case may be, as
determined in a final non-appealed judgment of a court of competent
jurisdiction; and
(c) The rights and remedies provided under this Agreement are cumulative
and may be exercised singly or concurrently and are not exclusive of any rights
and remedies provided by law or equity.
SECTION 18. Exercise of Remedies. In connection with the exercise of its
--------------------
remedies pursuant to Section 17, Agent may, (i) exchange, enforce, waive or
----------
release any portion of the Collateral and any other security for the Secured
Obligations; (ii) apply such Collateral or security and direct the order or
manner of sale thereof as Agent may, from time to time, determine; and (iii)
settle, compromise, collect or otherwise liquidate any such Collateral or
security in any manner following the occurrence of a Default, without affecting
or impairing Agent's right to take any other further action with respect to any
Collateral or security or any part thereof.
SECTION 19. License. Agent is hereby granted a license or other right to
-------
use, following the occurrence and during the continuance of a Default, without
charge, (a) Grantor's labels, patents, copyrights, trade secrets, trade names,
trademarks, service marks, customer lists and advertising matter, or any
property of a similar nature, as it pertains to the Collateral, in completing
production of, advertising for sale, and selling any Collateral, provided that
Agent uses quality standards at least
-10-
substantially equivalent to those of Grantor for the manufacture, advertising,
sale and distribution of Grantor's products and services and (b) Grantor's
rights under all licenses and all franchise agreements shall inure to Agent's
benefit (to the extent permitted by such licenses and franchise agreements).
SECTION 20. Injunctive Relief. Grantor recognizes that in the event
-----------------
Grantor fails to perform, observe or discharge any of its obligations or
liabilities under this Agreement, any remedy of law may prove to be inadequate
relief to the Holders of Secured Obligations; therefore, Grantor agrees that the
Holders of Secured Obligations, if Agent so determines and requests, shall be
entitled to temporary and permanent injunctive relief in any such case without
the necessity of proving actual damages.
SECTION 21. Interpretation and Inconsistencies; Merger; No Strict
-----------------------------------------------------
Construction.
------------
(a) The rights and duties created by this Agreement shall, in all cases, be
interpreted consistently with, and shall be in addition to (and not in lieu of),
the rights and duties created by the Credit Agreement and the other Loan
Documents. In the event that any provision of this Agreement shall be
inconsistent with any provision of any other Loan Document, such provision of
the other Loan Document shall govern.
(b) Except as provided in subsection (a) above, this Agreement represents
the final agreement of the Grantor and the Agent with respect to the matters
contained herein and may not be contradicted by evidence of prior or
contemporaneous agreements, or subsequent oral agreements, between the Grantor
and the Agent or any other Holder of Secured Obligations.
SECTION 22. Expenses. Grantor will upon demand pay to Agent and/or the
--------
Holders of Secured Obligations the amount of any and all reasonable expenses,
including the reasonable fees and disbursements of their counsel and of any
experts and agents, as provided in Section 9.7 of the Credit Agreement.
-----------
SECTION 23. Amendments, Etc. No amendment or waiver of any provision of
----------------
this Agreement nor consent to any departure by Grantor herefrom shall in any
event be effective unless the same shall be in writing and signed by Agent and
Grantor, and then such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.
SECTION 24. Notices. All notices and other communications provided for
-------
hereunder shall be delivered in the manner set forth in Section 13.1 of the
------------
Credit Agreement.
SECTION 25. Continuing Security Interest; Termination. (a) Except as
-----------------------------------------
provided in Section 25(b), this Agreement shall create a continuing security
-------------
interest in the Collateral and shall (i) remain in full force and effect until
the later of the payment or satisfaction in full of the Secured Obligations
(other than contingent indemnity obligations) and the termination of the Credit
Agreement, (ii) be binding upon Grantor, its successors and assigns and (iii)
except to the extent that the rights of any transferor, or assignor are limited
by the terms of the Credit Agreement, inure, together with the rights and
remedies of Agent hereunder, to the benefit of Agent and any of the Holders of
Secured Obligations. Nothing set forth herein or in any other Loan Document is
intended or shall be construed to give any other Person any right, remedy or
claim under, to or in respect of this Agreement or any other Loan Document or
any Collateral. Grantor's successors and assigns shall include, without
limitation, a receiver, trustee or debtor-in-possession thereof or therefor.
-11-
(b) Upon the payment in full in cash of the Secured Obligations (other
than contingent indemnity obligations) and the termination of the Credit
Agreement, this Agreement and the security interest granted hereby shall
terminate and all rights to the Collateral shall revert to Grantor. Upon any
such termination of security interest, Grantor shall be entitled to the return,
upon its request and at its expense, of such of the Collateral held by Agent as
shall not have been sold or otherwise applied pursuant to the terms hereof and
Agent will, at Grantor's expense, execute and deliver to Grantor such other
documents as Grantor shall reasonably request to evidence such termination. In
connection with any sales of assets permitted under the Credit Agreement, the
Agent will release and terminate the liens and security interests granted under
this Agreement with respect to such assets.
SECTION 26. Severability. It is the parties' intention that this
------------
Agreement be interpreted in such a way that it is valid and effective under
applicable law. However, if one or more of the provisions of this Agreement
shall for any reason be found to be invalid or unenforceable, the remaining
provisions of this Agreement shall be unimpaired.
SECTION 27. GOVERNING LAW. THE AGENT ACCEPTS THIS AGREEMENT, ON BEHALF OF
-------------
ITSELF AND THE LENDERS, AT CHICAGO, ILLINOIS BY ACKNOWLEDGING AND AGREEING TO IT
THERE. THIS AGREEMENT SHALL BE GOVERNED BY AND INTERPRETED AND ENFORCED IN
ACCORDANCE WITH THE INTERNAL LAWS (WITHOUT REGARD TO CONFLICTS OF LAW
PROVISIONS) OF THE STATE OF ILLINOIS. WITHOUT LIMITING THE FOREGOING, ANY
DISPUTE BETWEEN THE GRANTOR AND THE AGENT, ANY LENDER, OR ANY OTHER HOLDER OF
SECURED OBLIGATIONS ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO
THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION WITH, THIS AGREEMENT,
AND WHETHER ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED
IN ACCORDANCE WITH THE INTERNAL LAWS (WITHOUT REGARD TO THE CONFLICTS OF LAWS
PROVISIONS) OF THE STATE OF ILLINOIS.
SECTION 28. CONSENT TO JURISDICTION; JURY TRIAL.
-----------------------------------
(A) EXCLUSIVE JURISDICTION. EXCEPT AS PROVIDED IN SUBSECTION (B), EACH OF
---------------------- --------------
THE PARTIES HERETO AGREES THAT ALL DISPUTES BETWEEN THEM ARISING OUT OF,
CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED
BETWEEN THEM IN CONNECTION WITH THIS AGREEMENT, WHETHER ARISING IN CON TRACT,
TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED EXCLUSIVELY BY STATE OR FEDERAL
COURTS LOCATED IN CHICAGO, ILLINOIS, BUT THE PARTIES HERETO ACKNOWLEDGE THAT ANY
APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF
CHICAGO, ILLINOIS. EACH OF THE PARTIES HERETO WAIVES IN ALL DISPUTES BROUGHT
PURSUANT TO THIS SUBSECTION ANY OBJECTION THAT IT MAY HAVE TO THE LOCATION OF
THE COURT CONSIDERING THE DISPUTE.
(B) OTHER JURISDICTIONS. GRANTOR AGREES THAT THE AGENT, ANY LENDER OR ANY
-------------------
HOLDER OF SECURED OBLIGATIONS SHALL HAVE THE RIGHT TO PROCEED AGAINST GRANTOR OR
ITS PROPERTY IN A COURT IN ANY LOCATION TO ENABLE SUCH PERSON TO (1) OBTAIN
PERSONAL JURISDICTION OVER THE GRANTOR OR (2) REALIZE ON THE COLLATERAL OR ANY
OTHER SECURITY FOR THE OBLIGATIONS OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER
ENTERED IN FAVOR OF SUCH PERSON. GRANTOR AGREES THAT IT WILL NOT ASSERT ANY
PERMISSIVE COUNTERCLAIMS IN ANY PROCEEDING BROUGHT BY SUCH PERSON TO REALIZE ON
THE COLLATERAL OR
-12-
ANY OTHER SECURITY FOR THE OBLIGATIONS OR TO ENFORCE A JUDGMENT OR OTHER COURT
ORDER IN FAVOR OF SUCH PERSON. GRANTOR WAIVES ANY OBJECTION THAT IT MAY HAVE TO
THE LOCATION OF THE COURT IN WHICH SUCH PERSON HAS COMMENCED A PROCEEDING
DESCRIBED IN THIS SUBSECTION.
(C) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES
--------------------
ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING
IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO OR
INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION WITH THIS
AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED
IN CONNECTION HEREWITH. EACH OF THE PARTIES HERETO AGREES AND CONSENTS THAT ANY
SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL
WITHOUT A JURY AND THAT ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A
COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
IN WITNESS WHEREOF, Grantor has caused this Agreement to be duly executed
and delivered by its officer thereunto duly authorized as of the date first
above written.
PACIFIC MOTOR TRANSPORT COMPANY
By:_______________________________
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO,
as AGENT
By:_______________________________
Name: Xxxx Xxxxxxx
Title: Vice President
-00-
XXXXXXX X-0
To
Amended and Restated Security Agreement
Form of Landlord Agreement
--------------------------
The First National Bank
of Chicago, as Agent
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxxx Xxxx
Ladies and Gentlemen:
Pacific Motor Transport Company, a California corporation ("Borrower"), is
the lessee under that certain lease dated ___________ with the undersigned,
covering certain premises located at _________________ (the "Premises") more
fully described in the lease attached hereto as Exhibit A (the "Lease"). The
---------
under signed is the sole owner of the Premises. Borrower has certain of its
assets located on the Premises.
Borrower has entered into certain financing arrangements with a group of
lenders (together with their sucessors and assigns and any replacement lenders,
the "Lenders") including The First National Bank of Chicago, as contractual
representative for the Lenders (together with its successors and assigns, the
"Agent") and, as a condition to the loans and other financial accommodations of
the Lenders to Borrower, the Agent and the Lenders require, among other things,
that Borrower grant liens in favor of the Agent for the benefit of itself and
the Lenders on all of Borrower's property located on the Premises
("Collateral").
To induce the Agent and the Lenders (together with their respective agents,
successors and assigns) to enter into said financing arrangements, and for other
good and valuable consideration, the undersigned hereby agrees that:
(i) the Lease is in full force and effect in the form attached
hereto as Exhibit A and represents the full and complete agreement between
Borrower and the undersigned concerning the Premises and the Lease shall
not be amended or modified in any material respect without Agent's prior
written consent, which consent shall not be unreasonably withheld;
(ii) it will not assert against any of Borrower's assets any
statutory or possessory liens, including, without limitation, rights of
levy or distraint for rent, all of which it hereby waives;
(iii) none of the Collateral located on the Premises shall be deemed
to be fixtures;
(iv) it will endeavor to notify Agent if it has knowledge of
Borrower's default on its lease obligations to the undersigned and allow
Agent thirty (30) days from the Agent's receipt of notice in which to cure
or cause Borrower to cure any such defaults; provided if such default
--------
cannot reasonably be cured within the thirty (30) day period, and provided
the Agent is diligently pursuing a cure, then Agent shall have a reasonable
period to cure such default;
(vi) if, for any reason whatsoever, the undersigned either deems
itself entitled to redeem or to take possession of the Premises during the
term of Borrower's lease or intends to sell or otherwise transfer all or
any part of its interest in the Premises, the undersigned will notify Agent
five (5) days before taking such action;
(vii) if Borrower defaults on its obligations to the Agent or any
Lender and, as a result, the Agent undertakes to enforce its security
interest in the Collateral, the undersigned will cooperate with the Agent
in its efforts to assemble all of the Collateral located on the Premises,
will permit Agent to remain on the Premises for ninety (90) days after the
Agent gives the undersigned notice of default, provided Agent pays the
rental payments due under the Lease for the period of time Agent uses the
Premises and otherwise complies with the applicable terms of the Lease
during such period, or, at Agent's option, to remove the Col lateral from
the Premises within a reasonable time, not to exceed ninety (90) days after
the Agent gives the undersigned notice of default, provided Agent pays the
rental payments due under the Lease for the period of time Agent uses the
Premises and otherwise complies with the applicable terms of the Lease
during such period, and will not hinder Agent's actions in enforcing its
liens on the Collateral;
(viii) Borrower is not in default in any payment due under the Lease
and to the undersigned's knowledge, Borrower is not otherwise in default
under the Lease and there are no events or conditions which, by the passage
of time or giving of notice or both, would constitute a default thereunder
by Borrower;
(ix) the undersigned shall accept performance by the Agent of the
Borrower's obligations under the Lease as though the same had been
performed by the holder of the Borrower's interest therein at the time of
such performance. Upon the cure of any such default, any notice of
Landlord advising of any default or any action of the undersigned to
terminate the Lease or to interfere with the occupancy, use or enjoyment of
the Premises by reason thereof, which action has not been completed, shall
be deemed rescinded and the Lease shall continue in full force and effect.
The undersigned shall not be required to continue any possession or
continue any action to obtain possession upon the cure of any such default;
(x) if Borrower defaults on its obligations to the Lenders and the
Agent undertakes to enforce its security interest in the Collateral, the
Agent may, at its option and by written notice to the undersigned, (1)
lease the Premises from the undersigned on the same terms as set forth in
the Lease and exercise the other rights as lessee thereunder as described
therein and/or (2) assign the Lease and/or the attornment rights hereunder
to, or enter into a sublease with, a purchaser of the Collateral which
purchaser is reasonably acceptable to the undersigned, and the undersigned
shall cooperate with any such enforcement action or foreclosure and consent
to the assumption of the Lease, the sublet of the Premises or foreclosure
sale of the leasehold estate; and
(xi) in the event that Borrower shall become a debtor under the
Federal Bankruptcy Code (or any similar state law proceeding) and, in
connection therewith, Borrower shall reject the Lease as an executory
contract, then within thirty (30) days following such rejection, upon the
written request by the Agent, the undersigned shall enter into a new lease
of the Premises with the Agent or its designee (who shall be reasonably
acceptable to the undersigned), for the benefit of the Lenders which new
lease (1) shall be effective as of the date of the termination of the
Lease, (2) shall be for a term expiring as of the last day of the term of
the Lease, and (3) shall be on substantially the same terms and conditions
as the Lease (including any provisions for renewal or extension
-2-
of the term of the Lease); provided that the Lender or such designee, as
--------
the case may be, shall be required, as a condition to the effectiveness of
such new lease, to pay the Lessor any amount equal to any rent remaining
unpaid by Borrower under the Lease.
Any notice(s) required or desired to be given hereunder shall be directed
to the party to be notified at the address stated herein.
The agreements contained herein shall continue in force until all of
Borrower's obligations and liabilities to the Agent and the Lenders are paid and
satisfied in full and all financing arrangements among the Agent, the Lenders
and Borrower have been terminated.
The undersigned will notify all successor owners, transferees, purchasers
and mortgagees of the existence of this waiver. The agreements contained herein
may not be modified or terminated orally and shall be binding upon the
successors, assigns and personal representatives of the undersigned, upon any
successor owner or transferee of the Premises, and upon any purchasers,
including any mortgagee, from the undersigned.
Executed and delivered this ____ day of __________, 199_, at _____________.
THE LESSOR AGREES THAT NOTHING CONTAINED IN THIS WAIVER SHALL BE
CONSTRUED AS AN ASSUMPTION BY THE AGENT OR ANY OF THE OTHER LENDERS OF ANY
OBLIGATIONS OF BORROWER CONTAINED IN THE LEASE.
THIS WAIVER SHALL NOT IMPAIR OR OTHERWISE AFFECT BORROWER'S OBLIGATIONS
TO PAY RENT AND ANY OTHER SUMS PAYABLE BY BORROWER OR TO OTHERWISE PERFORM ITS
OBLIGATIONS TO THE LESSOR PURSUANT TO THE TERMS OF THE LEASE.
[Name of Lessor]
By:__________________________
Title:_______________________
Address:
____________________
____________________
____________________
EXHIBIT A
to
Landlord Agreement
Lease
-----
(attached hereto)
-3-
EXHIBIT A-2
To
Amended and Restated Security Agreement
Form of Mortgagee Agreement
---------------------------
The First National Bank
of Chicago, as Agent
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxxx Xxxx
Ladies and Gentlemen:
Pacific Motor Transport Company, a California corporation ("Borrower"), is
the lessee under that certain lease dated ___________ between Borrower, and
____________________ (the "Landlord[s]"), covering certain premises located at
_________________ (the "Premises") as more fully described on Exhibit A
---------
attached hereto (the "Lease"). The undersigned is the mortgagee under a
mortgage between the Landlord[s] and the undersigned covering the Premises (the
"Mortgage"). The undersigned is the sole mortgagee of the Premises. Borrower
has certain of its assets located on the Premises.
Borrower has entered into certain financing arrangements with a group of
lenders ("Lenders") including The First National Bank of Chicago, as contractual
representative for the Lenders (the "Agent") and, as a condition to the loans
and other financial accommodations of the Lenders to Borrower, the Agent and the
Lenders require, among other things, that Borrower grant liens in favor of the
Agent for the benefit of itself and the Lenders on all of Borrower's property
located on the Premises ("Collateral").
To induce the Agent and the Lenders (together with their respective agents,
successors and assigns) to enter into said financing arrangements, and for other
good and valuable consideration, the undersigned hereby agrees that:
(i) it consents to the merger referred to in the first paragraph
hereof and agrees that such merger shall not in any way be deemed to be a
default under the Mortgage;
(ii) it will not assert against any of the Collateral any statutory or
possessory liens, including, without limitation, rights of levy or
distraint for rent, all of which it hereby waives;
(iii) none of the Collateral located on the Premises shall be deemed
to be fixtures;
(iv) it will notify Agent if the Landlord[s] default[s] on
[its][their] mortgage obligations to the undersigned and allow Agent thirty
(30) days from the Agent's receipt of notice in which to cure or cause
Borrower to cure any such defaults; provided if such default cannot
--------
reasonably be cured within the thirty (30) day period, and provided the
Agent is diligently pursuing a cure, then Agent shall have a reasonable
period to cure such default;
-4-
(v) if, for any reason whatsoever, the undersigned either deems
itself entitled to take possession of the Premises during the term of the
Mortgage or intends to sell or otherwise transfer all or any part of its
interest in the Premises, the undersigned will notify Agent five (5) days
before taking such action;
(vi) if Borrower defaults on its obligations to the Agent or any
Lender and, as a result, the Agent undertakes to enforce its security
interest in the Collateral, the undersigned will cooperate with the Agent
in its efforts to assemble all of the Collateral located on the Premises,
will permit Agent to remain on the Premises for ninety (90) days after
Agent gives the undersigned notice of default, provided Agent pays the
Lease payments due under the Lease for the period of time Agent uses the
Premises, or, at Agent's option, to remove the Collateral from the Premises
within a reasonable time, not to exceed ninety (90) days after Agent gives
the undersigned notice of default, provided Agent pays the rental payments
due under the Lease for the period of time Agent uses the Premises, and
will not hinder Agent's actions in enforcing its liens on the Collateral;
(viii) Landlord is not in default under the Mortgage, nor, to the
undersigned's knowledge, are there any events or conditions which, by the
passage of time or giving of notice or both, would constitute a default
thereunder by Landlord;
[(ix) the undersigned shall accept performance by the Agent of the
Landlord's obligations under the Mortgage as though the same had been
performed by the holder of the Landlord's interest therein at the time of
such performance. Upon the cure of any such default, any notice of the
undersigned advising of any default or any action of the undersigned to
terminate the Mortgage or to interfere with the occupancy, use or enjoyment
of the Premises by reason thereof, which action has not been completed,
shall be deemed rescinded and the Mortgage shall continue in full force and
effect. The undersigned shall not be required to continue any possession
or continue any action to obtain possession upon the cure of any such
default;]
[(x) if Borrower defaults on its obligations to the Lenders and the
Agent undertakes to enforce its security interest in the Collateral, the
Agent may, at its option and by written notice to the undersigned, (1)
lease the Premises from the Landlord on the same terms as set forth in the
Lease and exercise the other rights as lessee thereunder as described
therein and/or (2) assign the Lease and/or the attornment rights hereunder
to, or enter into a sublease with, a purchaser of the Collateral which
purchaser is reasonably acceptable to the Landlord, and the undersigned
shall cooperate with any such enforcement action or foreclosure and consent
to the assumption of the Lease, the sublet of the Premises or foreclosure
sale of the leasehold estate; and]
[(xi) in the event that Borrower shall become a debtor under the
Federal Bankruptcy Code (or any similar state law proceeding) and, in
connection therewith, Borrower shall reject the Lease as an executory
contract, then within thirty (30) days following such rejection, upon the
written request by the Agent, the Landlord shall enter into a new lease of
the Premises with the Agent or its designee (who shall be reasonably
acceptable to the undersigned), for the benefit of the Lenders which new
lease (1) shall be effective as of the date of the termination of the
Lease, (2) shall be for a term expiring as of the last day of the term of
the Lease, and (3) shall be on substantially the same terms and conditions
as the Lease (including any provisions for renewal or extension of the term
of the Lease); provided that the Lender or such designee, as the case may
--------
be, shall be
-5-
required, as a condition to the effectiveness of such new lease, to pay the
Lessor any amount equal to any rent remaining unpaid by Borrower under the
Lease.]
Any notice(s) required or desired to be given hereunder shall be directed
to the party to be notified at the address stated herein.
The agreements contained herein shall continue in force until all of
Borrower's obligations and liabilities to the Agent and the Lenders are paid and
satisfied in full and all financing arrangements among the Agent, the Lenders
and Borrower have been terminated.
The undersigned will notify all successor owners, transferees, purchasers
and mortgagees of the existence of this waiver. The agreements contained herein
may not be modified or terminated orally and shall be binding upon the
successors, assigns and personal representatives of the undersigned, upon any
successor owner or transferee of the Premises, and upon any purchasers,
including any mortgagee, from the undersigned.
Executed and delivered this ____ day of __________, 199_, at ____________.
THE UNDERSIGNED AGREES THAT NOTHING CONTAINED IN THIS WAIVER SHALL BE
CONSTRUED AS AN ASSUMPTION BY THE AGENT OR ANY OF THE OTHER LENDERS OF ANY
OBLIGATIONS OF THE LANDLORD CONTAINED IN THE MORTGAGE.
THIS WAIVER SHALL NOT IMPAIR OR OTHERWISE AFFECT BORROWER'S OBLIGATIONS
TO PAY RENT AND ANY OTHER SUMS PAYABLE BY BORROWER OR TO OTHERWISE PERFORM ITS
OBLIGATIONS TO THE LANDLORD PURSUANT TO THE TERMS OF THE LEASE.
[Name of Mortgagee]
By:__________________________
Title:_______________________
Address:
___________________
___________________
___________________
EXHIBIT A
to
Mortgagee Agreement
Lease
-----
(attached hereto)
-6-
EXHIBIT B
TO
AMENDED AND RESTATED SECURITY AGREEMENT
Form of Bailee Letter
---------------------
The First National Bank
of Chicago, as Agent
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxxx Xxxx
Ladies and Gentlemen:
Pacific Motor Transport Company, a California corporation ("Borrower"), now
does or hereafter may store certain of its merchandise, inventory, or other of
its personal property at premises located at _______________ (the "Premises")
owned or leased by the undersigned.
Borrower has entered into certain financing arrangements with a group of
lenders (the "Lenders") including The First National Bank of Chicago, as
contractual representative for the Lenders (the "Agent") and, as a condition to
the loans and other financial accommodations of the Lenders to Borrower, the
Agent and the Lenders require, among other things, that Borrower grant liens in
favor of the Agent for the benefit of itself and the Lenders on all of
Borrower's property located on the Premises ("Collateral").
To induce the Agent and the Lenders (together with their respective agents,
successors and assigns) to enter into said financing arrangements, and for other
good and valuable consideration, the undersigned hereby agrees that:
(i) it will not assert against any of Borrower's assets any statutory
or possessory liens, including, without limitation, rights of levy or
distraint for rent, all of which it hereby waives;
(ii) the Collateral shall be identifiable as being owned by Borrower
and kept reasonably separate and distinct from other property in our
possession;
(iii) none of the Collateral located on the Premises shall be deemed
to be fixtures;
(iv) if Borrower defaults on its obligations to the Lenders or the
Agent and, as a result, the Agent undertakes to enforce its security
interest in the Collateral, the undersigned will cooperate with the Agent
in its efforts to assemble all of the Collateral located on the Premises
and will permit the Agent to either remain on the Premises for ninety (90)
days after the Agent gives the undersigned notice of default or, at the
Agent's option, to remove the Collateral from the Premises within a
reasonable time, not to exceed ninety (90) days after the Agent gives the
undersigned notice of default, provided that the Agent leaves the Premises
in the same condition as existed immediately prior to such ninety (90) day
period, and
-7-
shall indemnify the undersigned for any damages arising solely out of its
occupancy of the Premises, and will not hinder the Agent's actions in
enforcing its liens on the Collateral.
Any notice(s) required or desired to be given hereunder shall be directed
to the party to be notified at the address stated herein.
The agreements contained herein shall continue in force until all of
Borrower's obligations and liabilities to the Agent and Lenders are paid and
satisfied in full and all financing arrangements among the Agent, the Lenders
and Borrower have been terminated.
The undersigned will notify all successor owners, transferees, purchasers
and mortgagees of the existence of this agreement. The agreements contained
herein may not be modified or terminated orally and shall be binding upon the
successors, assigns and personal representatives of the undersigned, upon any
successor owner or transferee of any of the Premises, and upon any purchasers,
including any mortgagee, from the undersigned.
Executed and delivered this ____ day of __________, 199_, at
______________________.
[Name and Address of Warehouseman/Bailee/Consignee]
(By)_______________________
SCHEDULE 1
TO
AMENDED AND RESTATED SECURITY AGREEMENT
Pledged Debt:
------------
None.
-2-
SCHEDULE 2
TO
AMENDED AND RESTATED SECURITY AGREEMENT
Locations of Collateral:
-----------------------
1. 0000 Xx. Xxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxx, Xxxxxxxxxx 00000
2. 0000 Xxxx Xxxxxxxx Xxx Xxxx
Xxxxx 000
Xx Xxxx, Xxxxx 00000
3. 0000 Xxxxx Xxxx Xxxxxx
Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxx 00000
4. Xxxxxxxx Xxxxxx Xxxxxx Xxxx
Xxxxxxxx X, Xxxxx 000
00000 Xxxx Xxxxxxxx Xxxxxxx
Xxxxx Xx Xxxxxxx, Xxxxxxxxxx
5. 0000 Xxxxx Xxxxxxxx Xxxx
Xxxxxx, Xxxxx 00000
6. 00 Xxxxxxxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxx 00000
SCHEDULE 2-A
TO
AMENDED AND RESTATED SECURITY AGREEMENT
Third Party Locations:
----------------------
Corporate Name of Description Maximum
Third Party Address of Relationship Amount
----------- ------- --------------- ------
None.
SCHEDULE 2-B
TO
AMENDED AND RESTATED SECURITY AGREEMENT
Financing Statement Filing Locations:
-------------------------------------
1. 0000 Xx. Xxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxx, Xxxxxxxxxx 00000
2. 0000 Xxxx Xxxxxxxx Xxx Xxxx
Xxxxx 000
Xx Xxxx, Xxxxx 00000
3. 0000 Xxxxx Xxxx Xxxxxx
Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxx 00000
4. Xxxxxxxx Xxxxxx Xxxxxx Xxxx
Xxxxxxxx X, Xxxxx 000
00000 Xxxx Xxxxxxxx Xxxxxxx
Xxxxx Xx Xxxxxxx, Xxxxxxxxxx
5. 0000 Xxxxx Xxxxxxxx Xxxx
Xxxxxx, Xxxxx 00000
6. 00 Xxxxxxxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxx 00000
SCHEDULE 3
TO
AMENDED AND RESTATED SECURITY AGREEMENT
Trade Names:
------------
1. Pacer
2. ABL-Trans
SCHEDULE D TO EXHIBIT 10.22
The following agreements are substantially identical in all material respects
(except for the named parties) to Exhibit 10.22:
Security Agreement dated as of December 16, 1997 executed by the Company in
favor of the Agent.
Security Agreement dated as of December 16, 1997 executed by PIRS in favor of
the Agent.
Security Agreement dated as of December 16, 1997 executed by PRS in favor of
the Agent.
Security Agreement dated as of December 16, 1997 executed by ICI in favor of
the Agent.
Security Agreement dated as of December 16, 1997 executed by ICS in favor of
the Agent.
Security Agreement dated as of December 16, 1997 executed by IMCS in favor of
the Agent.
