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EXHIBIT 10.13
ASSIGNMENT AND SECURITY AGREEMENT dated as of February 21, 1997,
made by Union-Transport Corporation, a New York corporation (the "Grantor"), to
Nedcor Bank Limited (the "Bank"), a party to the Facility Agreement (as
hereinafter defined) and the Guaranty (as hereinafter defined).
PRELIMINARY STATEMENTS. The Bank has entered into an Amendment dated
as of January 27, 1997 to a Restricted Facility Agreement dated as of January 2,
1997 (said Amended Agreement, as it may hereafter be amended or otherwise
modified from time to time, being the "Facility Agreement", the terms defined
therein and not otherwise defined herein being used herein as therein defined)
with Union-Transport Inc., a corporation organized under the laws of the British
Virgin Islands with its principal office in St. Peter Port,, Guernsey, Channel
Islands ("UTI"). UTI is the indirect owner of 100% of the shares of the Grantor.
The Bank has also entered into a Deed of Amendment dated as of February 21, 1997
to a Guaranty and Indemnity dated as of July 5, 1996 (said Amended Deed, as it
may hereafter be amended or otherwise modified from time to time being the
"Guaranty") with the Grantor pursuant to which the Grantor has guaranteed
certain of the obligations of UTI under the Facility Agreement up to a maximum
aggregate amount of US$8,500,000.00. It is a condition precedent to the
utilization of the Facility Agreement that the Grantor shall have granted the
security interest contemplated by this Agreement.
NOW, THEREFORE, in consideration of the premises and in order to
induce the Bank to extend credit under the Facility Agreement, the Grantor
hereby agrees as follows:
SECTION 1. Grant of Security. The Grantor hereby assigns and pledges
to the Bank and hereby grants to the Bank a security interest in, all of the
Grantor's right, title and interest in and to the following (the "Collateral"):
(a) All rights and claims of the Grantor, now or hereafter existing,
for moneys (including finance charges) due and to become due from customers
of Grantor ("Customers") in connection with the rendering of services by
Grantor, including all of the Grantor's right, title and interest in and to
goods with respect to which such services are provided (the "Accounts
Receivable"), excluding those rights and claims of the Grantor due and to
become due from Customers arising out of the services of Grantor relating
to export shipments sent via air transport (those Accounts Receivable not
so excluded being the "Receivables")
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(b) All agreements with such Customers, accounts, documents, chattel
paper, credits, things in action, general intangibles, insurance proceeds,
checks, drafts, security agreements and other instruments or documents
securing, evidencing or otherwise relating to any and all of the
Receivables (all such instruments and documents, whenever arising, being
hereinafter called the "Related Documents").
(c) All rights and remedies or the Grantor under or with respect to
any and all of the Receivables and Related Documents.
(d) All proceeds of any and all of the foregoing Collateral
including amounts from time to time maintained in an operating account
currently maintained by the Grantor with Bank of New York (the "Operating
Account").
SECTION 2. Security for Obligations. This Agreement secures the
payment of all obligations of the Grantor now or hereafter existing under the
Guaranty whether for principal, interest, fees, charges, expenses, amounts due
upon termination or expiration or otherwise, and all obligations of the Grantor
now or hereafter existing under this Agreement (all such obligations of the
Grantor being the "Obligations").
SECTION 3. Grantor Remains Liable. Anything herein to the contrary
notwithstanding (a) the Grantor shall be liable under the contracts and
agreements included in the Collateral to the extent set forth therein to perform
all of the duties and obligations thereunder to the same extent as if this
Agreement had not been executed, (b) the exercise by the Bank of any of the
rights hereunder shall not release the Grantor from any of its duties or
obligations under the contracts and agreements included in the Collateral, and
(c) the Bank shall not have any obligation or liability under the contracts and
agreements included in the Collateral by reason of this Agreement, nor shall the
Bank be obligated to perform any of the obligations or duties of the Grantor
thereunder or to take any action to correct or enforce any claim for payment
assigned hereunder by reason of this Agreement.
SECTION 4. Representations and Warranties. The Grantor represents
and warrants as follows:
(a) The chief place of business and chief executive office of the
Grantor are located at the following address:
19443 Laurel Park Road
Suite 107
Rancho Dominguez, CA 90220
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(b) The Grantor owns or will own the Collateral free and clear of
any lien, security interest, charge or encumbrance except for the security
interests created by this Agreement. No effective financing statement or
other instrument similar in effect covering all or any part of the
Collateral is on file in any recording office.
(c) This Agreement creates a valid priority security interest in the
Collateral and all filings and other actions necessary or desirable to
perfect and protect such security interest have been duly taken in
California and the States listed on Exhibit A hereto (the "States").
(d) Other than as provided in paragraph (c) above to perfect
security interests in the States and California, no authorization, approval
or other action by, and no notice to or filing with, any governmental
authority or regulatory body is required either (i) for the grant by the
Grantor of the security interest granted hereby or for the execution,
delivery or performance of this Agreement by the Grantor or (ii) for the
perfection of or the exercise by the Bank of its rights and remedies
hereunder.
(e) All transactions giving rise to the Collateral assigned and to
be assigned hereunder are and will be in compliance with all legal
requirements of Federal, State and local governments.
(f) All contracts and agreements giving rise to Receivables assigned
or to be assigned hereunder are legally enforceable.
(g) The Receivables are and shall be unencumbered by any security
interest, lien, mortgage or the like and shall represent bona fide
obligations of Customers arising out of the sale of merchandise and/or
rendition of services by the Grantor.
(h) The accuracy of all data and information turned over to the Bank
with respect to transactions with Customers.
SECTION 5. Further Assurances. (a) The Grantor agrees that, from
time to time, the Grantor will promptly execute and deliver all further
instruments and documents, and take all further action that the Bank may request
consistent with the Guaranty and the Facility Agreement, in order to perfect and
protect any security interest
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granted or purported to be granted hereby or to enable the Bank to exercise and
enforce its rights and remedies hereunder with respect to any Collateral.
Without limiting the generality of the foregoing, the Grantor will execute and
file such financing or continuation statements, or amendments thereto, and such
other instruments or notices as the Bank may request in order to perfect and
preserve the security interests granted or purported to be granted hereby.
(b) The Grantor hereby authorizes the Bank to file one or more
financing or continuation statements, and amendments thereto, relative to
all or any part of the Collateral without the signature of the Grantor
where permitted by law.
(c) The Grantor will furnish to the Bank from time to time
statements and schedules further identifying and describing the Collateral
and such other reports in connection with the Collateral as the Bank may
reasonably request, all in reasonable detail.
SECTION 6. As to Receivables. The Grantor shall keep its chief place
of business and chief executive office at the location therefor specified in
Section 4(a) or, upon 30 days' prior written notice to the Bank, at such other
location in a jurisdiction where all action required by Section 5 shall have
been taken with respect to the Receivables.
SECTION 7. Transfers and Other Liens. The Grantor shall not:
(a) Sell, assign (by operation of law or otherwise) or otherwise
dispose of any of the Collateral except pursuant to this Agreement.
(b) Create or suffer to exist any lien, security interest or other
charge or encumbrance upon or with respect to any of the Collateral to
secure indebtedness of any person or entity, except for the security
interests created by or disclosed in this Agreement.
SECTION 8. Bank Appointed Attorney-in-Fact. The Grantor hereby
irrevocably appoints the Bank the Grantor's attorney-in-fact, with full
authority in the place and stead of the Grantor and in the name of the Grantor
or otherwise, from time to time in the discretion of the Bank following an Event
of Default (as hereinafter defined), to take any action and to execute any
instrument which the Bank may deem necessary or advisable to accomplish the
purposes of this Agreement, including, without limitation:
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(i) to ask, demand, collect, sue for, recover, compound, receive and
give acquaintance and receipts for moneys due and to become due under or in
respect of any of the Collateral,
(ii) to receive, endorse, and collect any drafts or other
instruments, documents and chattel paper, in connection with clause (i)
above, and
(iii) to file any claims or take any action or institute any
proceedings which the Bank may deem necessary or desirable for the
collection of any of the Collateral or otherwise to enforce the rights of
the Bank with respect to any of the Collateral.
SECTION 9. Bank May Perform. If the Grantor fails to perform any
agreement contained herein, the Bank may itself, if such failure is not remedied
within 20 days after written notice from the Bank, perform, or cause performance
of, such agreement, and the expenses of the Bank incurred in connection
therewith shall be payable by the Grantor under Section 12(b).
SECTION 10. Remedies and Application of Proceeds.
A. If the Grantor shall in any way at any time fail to meet any of
its undertakings or obligations as set forth in the Guaranty, including the
obligation to pay monies to the Bank (an "Event of Default") and either (i) that
Event of Default shall be continuing for at least five (5) Business Days
("Business Days" are, days when banks in the State of New York are required to
be open for business) or an Event of Bankruptcy (as defined below) shall have
occurred with respect to the Grantor:
(a) The Bank may exercise in respect of the Collateral in addition
to other rights and remedies provided for herein or otherwise available to
them, all the rights and remedies of a secured party on default under the
Uniform Commercial Code (the "Code") (whether or not the Code applies to
the affected Collateral) and also may (i) require the Grantor to, and the
Grantor hereby agrees that it will at its expense and upon request of the
Bank forthwith, assemble all or part of the Collateral as directed by the
Bank and make it available to the Bank at a place to be designated by the
Bank which is reasonably convenient to both parties and (ii) without notice
except as specified below, sell the Collateral or any part thereof in one
or more parcels at public or private sale, at any of the Bank's offices or
elsewhere, for cash, on credit or for future delivery, and at such price or
prices and upon such other terms as the Bank may deem commercially
reasonable; provided, however, that prior to any such sale, the Bank shall
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first offer in writing to sell such Collateral to the Grantor and shall not
proceed with any such sale if within 10 days after receipt of such notice,
the Grantor shall have furnished to the Bank an irrevocable letter of
credit or other commitment satisfactory to the Bank providing for payment
to the Bank within 30 days after receipt of such notice of an amount
satisfactory to the Bank in respect of such Collateral and counsel to the
Bank has previously confirmed that such payment, when received, will not be
subject to a valid claim by creditors of the Grantor or by any trustee in
bankruptcy or other third party. The Grantor agrees that at least ten days'
notice to the 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. The Bank shall not be obligated to make any sale of
Collateral regardless of notice of sale having been given. The Bank 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.
(b) All cash proceeds received by the Bank in respect of any sale
of, collection from, or other realization upon all or any part of the
Collateral may, in the discretion of the Bank, be held by the Bank as
collateral for, and/or then or at any time thereafter applied (after
payment of any amounts payable to the Bank pursuant to Section 12) in whole
or in part by the Bank against, all or any part of the Obligations in the
order specified in Section 10C..
(c) The Grantor will receive in trust for the Bank, and pay over to
the Bank forthwith upon receipt, all amounts received by the Grantor in
respect of any collection from or other realization upon all or any part of
the Collateral, such amounts to be applied as provided in Section 10C.
(d) The Bank may make, in its discretion, direct collection of all
Receivables (including the giving of notices to some or all Customers, the
payment into a "lock box" account within the control and dominion of the
Bank or its designee, or other similar arrangements) and the Grantor shall
dispatch all such notices and instructions to Customers as the Bank may
instruct to enable the foregoing. Unless and until the Bank exercises such
rights of direct collection of Receivables, the Grantor will diligently
collect such Receivables and, if the Bank so specifies, segregate all
collection proceeds from other funds of the Grantor so that they are
identifiable and hold separate and deposit the same when and as received
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into a special account maintained for that purpose with the Bank or its
designee, without commingling with other funds.
B. If the Grantor or UTI shall at any time file a petition seeking
relief under the bankruptcy, insolvency or similar laws of any jurisdiction or
file an answer consenting to, admitting the material allegations of or otherwise
not controverting, or failing timely to controvert such a petition, or if an
order or relief is entered against the Grantor under any bankruptcy, insolvency
or similar law, which order is not stayed, adjudging it a bankrupt or insolvent,
or appointing a receiver, liquidator or trustee of Grantor or its properties or
ordering the reorganization, winding-up or liquidation of the affairs of the
Grantor, or if 30 days have passed after the filing of any involuntary petition
against the Grantor seeking the relief specified in this paragraph C without the
petition being dismissed prior to that time (any such occurrence being referred
to as an "Event of Bankruptcy"), then the Borrower shall immediately have all
the rights described in Section 10.A(d) above, without any need for demand,
notice or the passage of time.
C. All proceeds of Receivables and Related Documents received by the
Bank following an Event of Default or an Event of Bankruptcy or held by the Bank
at the time of an Event of Default or an Event of Bankruptcy shall be applied as
follows:
First: to the payment of all costs and reasonable expenses of the
Bank in administering and enforcing this Agreement, including the reasonable
fees and out-of-pocket expenses of counsel to the Bank employed in connection
therewith, and all other obligations secured hereby other than the Obligations;
Second: to the payment or reduction of any or all of the Obligations
arising under the Guaranty (whether or not then due), including, without
limitation, interest thereon to the date of payment at the rate specified
therefor; any surplus to be paid to the order of the Grantor or as a court of
competent jurisdiction may direct;
provided, however, that the time of application of any such proceeds
shall be at the absolute discretion of the Bank.
SECTION 11. Indemnity and Expenses:
(a) the Grantor agrees to indemnify the Bank from and against any
and all claims, losses and liabilities growing out of or resulting from
this Agreement (including, without limitation, enforcement of this
Agreement), except claims, losses or liabilities resulting from the Bank's
gross negligence or willful misconduct.
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(b) The Grantor will upon demand pay to the Bank the amount of any
and all reasonable expenses, including the reasonable fees and
disbursements of its counsel and of any experts and Banks, which the Bank
may incur in connection with (i) the administration of this Agreement after
an Event of Default or an Event of Bankruptcy, (ii) the custody,
preservation, use or operation of, or the sale of, collection from, or
other realization upon, any of the Collateral, (iii) the exercise or
enforcement of any of the rights of the Bank hereunder or (iv) the failure
by the Grantor to perform or observe any of the provisions hereof.
SECTION 12. Amendments, Counterparts:
(a) No amendment or waiver of any provision of this Agreement shall
in any event be effective unless the same shall be in writing and signed by
the Bank and the Grantor. No consent to any departure by the Grantor
herefrom shall be effective unless signed by the Bank, and then such waiver
or consent shall be effective only in the specific instance and for the
specific purpose for which given.
(b) This Agreement maybe signed in any number of counterparts, each
of which shall be an original, with the same effect as if the signature
thereto and hereto were upon the same by instrument. This Agreement shall
become effective upon receipt by the Bank of counterpart hereof signed by
the Grantor.
SECTION 13. Addresses for Notices. All notices and other
communications provided for hereunder shall be in writing (which may include
facsimile) and shall be delivered or sent to such party at the address indicated
below, or to such other address as it may by written notice to the other party
herein have designated for such purpose.
If to the Grantor:
Union-Transport Corporation
1660 Walt Whitman Road
Melville, NY 11747
Attention: Vice President of Finance
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If to the Bank:
Nedcor Bank Limited
20 Abchurch Lane
London EC4N 7AD
England Attention: General Manager
Any such notice, demand or other communication shall not be
effective until actually received.
SECTION 15. Continuing Security Interest; Transfer of Note. This
Agreement shall create a continuing security interest in the Collateral and
shall (i) remain in full force and effect until payment in full (after the
termination of the Guaranty) of the Obligations, (ii) be binding upon the
Grantor, its successors and assigns and (iii) inure to the benefit of the Bank
and its successors, transferees and assigns. Without limiting the generality of
the foregoing clause (iii), the Bank may assign or otherwise transfer any of its
rights under the Guaranty to any other person or entity, and such other person
or entity shall thereupon become vested with all the benefits in respect thereof
granted to the Bank herein or otherwise. Upon the payment in full of the
Obligations, the security interest granted hereby shall terminate and all rights
to the Collateral shall revert to the Grantor. Upon any such termination, the
Bank will, at the Grantor's expense, execute and deliver to the Grantor such
documents as the Grantor shall reasonably request to evidence such termination.
SECTION 16. Governing Law; Terms. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York, except as
required by mandatory provisions of law and except to the extent that the
validity or perfection of the security interest hereunder, or remedies
hereunder, in respect of any particular Collateral are governed by the laws of a
jurisdiction other than the State of New York. Unless otherwise defined herein
or in the Loan Agreement or the Service Agreement, terms used in Article 9 of
the Uniform Commercial Code in the State of New York are used herein as therein
defined.
IN WITNESS WHEREOF, the Grantor has caused this Agreement to be duly
executed and delivered by its officer thereunto duly authorized as of the date
first above written.
UNION-TRANSPORT CORPORATION
By Illegible
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Title: Vice President-Finance
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EXHIBIT A
STATE LOCATION OF OFFICE(S) OF UNION-TRANSPORT
CORPORATION
California 5422 W. Rosecrans Avenue
Lawndale, CA 90260
19443 Laurel Park Road,
Suite 107 Rancho Dominguez,
CA 90220
1535 Rollins Road
Burlingame, CA 94010
Colorado 12445 East 39th Avenue
Unit A 517
Denver, CO 80239-3453
Florida 3028 N. W. 72nd Avenue
Miami, FL 33122
6300 Hazeltine National Drive
Orlando, FL 32822
5600 Airport Blvd., Suite C
Tampa, FL 33634
Georgia 114 Southfield Parkway
Suite 170
Forest Park, GA 30050
Illinois 2601 Allan Drive
Elk Grove Village, IL 60007-6758
1418 Elmhurst Road
Elk Grove Village, IL 60007-6758
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STATE LOCATION OF OFFICE(S) OF UNION-TRANSPORT
CORPORATION
Maryland 2700 Broeing Highway
The Dunmar Building
Suite 211 A & B
Baltimore, MD 21222-4102
Massachusetts 30 Railroad Street
Revere, MA 02151
Michigan 27209 Northline Road
Taylor, MI 48180-4499
Minnesota 7700 22nd Avenue South,
Suite 171
Minneapolis, MN 55460
New Jersey 447 Schiller Street
Elizabeth, NJ 07206
New York 1660 Walt Whitman Road
Melville, NY 11747-3018
248-29 Brookville Blvd.
Jamaica, NY 11422
North Carolina 1900-G Center Park Drive
Charlotte, NC 28217-2901
Oklahoma 1401 Cornell Parkway
Oklahoma City, OK 73108-1811
3168 South 108th East Ave., Suite 380
Tulsa, OK 74146-1622
Pennsylvania 1600 Delmar Drive
Folcroft, PA 19032
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Texas 755 Port America Place, Suite 300
Grapevine, TX 76051
14130 Chrisman Street
Houston, TX 77039
Utah 1959 South 4130 West, Unit D
Salt Lake City, UT 84104
Wisconsin 2110B East College Avenue
Cudahy, WI 53110
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