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Title: |
Participation Agreement |
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Date: |
2004 |
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Preview shows 11KB of 220KB total |
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$92 |
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ID: |
#911658 |
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PARTICIPATION AGREEMENT
DATED AS OF MARCH 15, 1996
ENTERED INTO BY AND AMONG
ROADWAY EXPRESS, INC.,
as Lessee,
ABN AMRO BANK N.V.,
not individually, except as expressly
set forth herein, but as Agent
and
The Lessors Listed on
Schedule I Hereto
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
Definitions................................................................... 1
Purchase and Lease of Vehicles................................................ 1
Fundings; Payment of Purchase Price......................................... 1
Application of Funds; Sale and Lease of Vehicles............................ 2
Time and Place of Delivery Dates............................................ 3
Executory and Underwriting Fee.............................................. 3
Commitment Fee.............................................................. 3
Conditions to Delivery Date Closings.......................................... 3
Delivery Date Notice; Invoices.............................................. 3
Appraisals.................................................................. 4
Participation Agreement..................................................... 4
Lease....................................................................... 4
Lease Supplements........................................................... 4
Financial Reports........................................................... 5
Financing Statements........................................................ 5
Certificates of Title....................................................... 5
Transaction Costs; Fees..................................................... 5
Opinions of Counsel......................................................... 5
Corporate Status and Proceedings............................................ 6
Consents and Approvals...................................................... 6
Payment of Impositions...................................................... 6
Search Reports.............................................................. 6
Insurance................................................................... 6
Proceedings Satisfactory, Etc............................................... 6
Absence of Material Adverse Effect.......................................... 6
Representations and Warranties True; Absence of Defaults.................... 6
General Provisions............................................................ 7
Nature of Transaction....................................................... 7
Replacements................................................................ 7
Representations and Warranties................................................ 7
Representations and Warranties of Lessee.................................... 7
Representations and Warranties of Lessors................................... 11
Representations and Warranties of Agent..................................... 11
Covenants..................................................................... 12
Covenants of Lessee......................................................... 12
Covenants of Agent and Lessors.............................................. 16
General Indemnities............. ............................................. 16
</TABLE>
2
<PAGE>
LIST OF SCHEDULES AND EXHIBITS
Schedule I - Commitments of Lessors; Payment Instructions
*Schedule II - Description of Vehicles
*Schedule X - Definitions
Exhibit A - Form of Lease
*Schedule I - Description of Vehicles *Exhibit A - Form of Lease Supplement
*Exhibit B - Form of Delivery Date Notice *Schedule I - Vehicle List and
Purchase Price *Exhibit C-1 - Form of Opinion of Lessee's General Counsel
*Exhibit C-2 - Form of Opinion of Lessee's Local Counsel *Exhibit D - Form of
Officer's Certificate *Exhibit E - Form of Assumption Agreement *Exhibit F -
Form of Investor's Letter *Exhibit G - Form of Schedule I to Lease Supplement
*Exhibit H - Form of Schedule II to Lease Supplement
* Not filed as an exhibit to form 10-Q
3
<PAGE>
PARTICIPATION AGREEMENT
THIS PARTICIPATION AGREEMENT, dated as of March 15, 1996 (this "Participation
Agreement"), is entered into among ROADWAY EXPRESS INC., a Delaware corporation,
as Lessee ("Lessee"), ABN AMRO BANK N.V., a bank organized under the laws of the
Netherlands, not in its individual capacity, except as otherwise expressly
provided herein, but solely as Agent for the Lessors (the "Agent"), and the
several Lessors listed on Schedule I hereto (together with their respective
permitted successors, assigns and transferees, each a "Lessor" and collectively
the "Lessors").
WHEREAS, on each Delivery Date, Lessee will transfer to Agent, for the benefit
of Lessors, and Agent, on behalf of Lessors, will purchase and receive from
Lessee, an interest in certain of the Vehicles described on Schedule II hereto;
WHEREAS, upon the transfer of the Vehicles on each Delivery Date, Agent, on
behalf of Lessors, will lease such Vehicles to Lessee and Lessee will lease such
Vehicles from Agent, for the benefit of Lessors, pursuant to the terms of the
Lease substantially in the form of Exhibit A hereto; and
WHEREAS, on the final Delivery Date during each Interim Period Lessee shall
execute and deliver to Agent a Lease Supplement in the form of Exhibit A to the
Lease covering the Vehicles purchased on all of the Delivery Dates occurring
during such Interim Period;
NOW, THEREFORE, in consideration of the mutual terms and conditions herein
contained, the parties hereto agree as follows:
I
DEFINITIONS
Capitalized terms used but not defined herein (including those used in the
foregoing recitals) shall have the meanings specified in Schedule X hereto
unless the context otherwise requires, which Schedule X shall for all purposes
constitute a part of this Participation Agreement.
II
PURCHASE AND LEASE OF VEHICLES
II.1 FUNDINGS; PAYMENT OF PURCHASE PRICE.
(a) Subject to the terms and conditions hereinafter set forth, and in reliance
on the representations and warranties contained herein or made pursuant hereto,
upon receipt of each Delivery Date Notice, each Lessor shall transfer to Agent
on the specified Delivery Date an amount equal to the product of the aggregate
Purchase Price of the Vehicles specified in such Delivery Date Notice,
multiplied by such Lessor's Commitment Percentage (each such transfer being
referred to herein as a "Funding"). In no event shall any Lessor be required to
provide funds under this Participation Agreement in an aggregate amount
exceeding such Lessor's Commitment.
(b) Remittances pursuant to this Section 2.1 shall be made in immediately
available federal funds by wire transfer to the account of Agent set forth below
(or as otherwise specified by Agent to each Lessor from time to time not less
than three Business Days prior to the date of the requested Funding) and must be
received by Agent by 2:00 p.m., New York time on the applicable Delivery Date:
Bank: ABN AMRO Bank N.V.
New York Branch
New York, NY
ABA Routing #: 026009580
Account #: 651001063441
1
<PAGE>
Payee: ABN AMRO Bank N.V., Pittsburgh Branch
Reference: Roadway Express, Inc.
(c) If the Agent determines that any Lessor (a "Defaulting Lessor") will not
make available the amount (the "Defaulted Amount") which would constitute its
Commitment Percentage of the total Purchase Price of the Vehicles specified in a
Delivery Date Notice, Agent shall promptly notify each other Lessor (each, a
"Non-Defaulting Lessor") and specify the additional amounts required to be
funded by each Non-Defaulting Lessor. Each Non-Defaulting Lessor, as soon as
practical after receipt of notice but not before the Delivery Date, shall
transfer to the Agent, in immediately available funds, its pro rata share of the
Defaulted Amount, determined in the same proportion that such Non-Defaulting
Lessor's Commitment bears to the aggregate Commitments of all Non-Defaulting
Lessors; provided that such amount, together with all amounts previously funded
by each Non-Defaulting Lessor, shall not exceed the Non-Defaulting Lessor's
Commitment. If the Defaulted Amount cannot be fully funded by the Non-Defaulting
Lessors, Agent shall so notify the Non-Defaulting Lessors and give to all
Non-Defaulting Lessors the opportunity to increase their respective Commitments
by notice in writing to the Agent; provided that should the aggregate proposed
increased Commitments by one or more Non-Defaulting Lessors exceed the Defaulted
Amount, Agent shall increase the Commitments of the participating Non-Defaulting
Lessors on a pro-rata basis in accordance with the respective amounts by which
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