EXHIBIT 10.5
AGREEMENT TO TERMINATE LEASE AND ASSIGNMENT
THIS AGREEMENT TO TERMINATE LEASE AND ASSIGNMENT (this "Agreement"),
dated December 23, 2003 (the "Effective Date"), is made by and between ABN AMRO
Leasing, Inc., an Illinois corporation ("Lessor"), ABN AMRO Bank N.V. ("Agent")
and Transport Corporation of America, Inc., a Minnesota corporation ("Lessee").
1. Recitals: This Agreement is entered into upon, and with respect to,
the following facts and intentions:
A. Lessor and Lessee entered into that certain Master Lease
dated as of April 9, 1999 as amended by (i) that certain First Amendment to
Participation Agreement, to Appendix 1 to Participation Agreement, Master Lease
and Construction Mortgage, Security Agreement and Financing Statement, to Master
Lease and to Construction Mortgage, Security Agreement and Financing Statement
dated as of June 30, 2000 (the "First Amendment"); (ii) that certain Second
Amendment to Participation Agreement, to Appendix 1 to Participation Agreement,
Master Lease and Construction Mortgage, Security Agreement and Financing
Statement, to Master Lease and to Construction Mortgage, Security Agreement and
Financing Statement dated as of January 8, 2001 (the "Second Amendment"); (iii)
that certain Third Amendment to Participation Agreement, to Appendix 1 to
Participation Agreement, Master Lease and Construction Mortgage, Security
Agreement and Financing Statement, to Master Lease and to Construction Mortgage,
Security Agreement and Financing Statement dated as of May 31, 2001 (the "Third
Amendment") and (iv) that certain Fourth Amendment to Participation Agreement,
to Appendix 1 to Participation Agreement, Master Lease and Construction
Mortgage, Security Agreement and Financing Statement, to Master Lease and to
Construction Mortgage, Security Agreement and Financing Statement dated as of
June 29, 2001 (the "Fourth Amendment") (as amended, restated, supplemented or
otherwise modified from time to time, the "Participation Agreement") including
Appendix 1 (Definitions and Interpretation) to Participation Agreement, Master
Lease and Construction Mortgage, Security Agreement and Financing Statement as
amended by the First Amendment, Second Amendment, Third Amendment and Fourth
Amendment; which was recorded in the Dakota County, Minnesota Recorder's Office
("Recorder's Office") on April 9, 1999 as Document No. 396752 (Torrens) and as
Document No. 1595208 (Abstract) (as amended, the "Lease") with respect to
certain real property located in Dakota County, Minnesota, as more particularly
described in Exhibit A attached hereto (the "Leased Property").
B. In connection with the execution of the Lease, Lessor and
Lessee entered into that certain Lease Supplement No. 1 dated as of April 9,
1999 with respect to the Leased Property, which was recorded in the Recorder's
Office on April 12, 1999 as Document No. 396753 (Torrens) and as Document No.
1595209 (Abstract) (the "Lease Supplement").
C. In connection with the execution of the Lease, Lessor
executed that certain Assignment of the Lease dated as of April 9, 1999 (the
"Assignment") to Agent with respect to the Leased Property, which was recorded
in the Recorder's Office on April 12, 1999 as Document No. 396754 (Torrens) and
as Document No. 1595210 (Abstract).
D. Concurrently with the execution of the Assignment, Lessee
executed that certain Consent of Lessee to Assignment of Lease dated as of April
9, 1999 (the "Consent") with respect to the Leased Property.
E. The parties hereto desire to terminate the Lease, the
Lease Supplement, the Assignment and the Consent.
F. Each capitalized term used in this Agreement and not
otherwise defined in this Agreement shall have the meaning ascribed thereto in
Appendix 1 to the Participation Agreement, Lease Agreement and Construction
Mortgage.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants hereinafter contained, the parties hereto agree as follows:
2. Termination: Upon the effective date of the Termination Agreement
of even date herewith which terminates the other Operative Documents (the
"Effective Date"), except as provided in Section 3 hereof, the Lease, the Lease
Supplement, the Assignment and the Consent and the security interests granted
therein shall be terminated.
3. Release of Liability: The parties hereto agree as follows:
A. On the Effective Date, Lessor, Agent and Lessee shall be
fully and unconditionally released and discharged from their respective
obligations arising from or connected with the Lease, the Lease Supplement, the
Assignment and the Consent. Notwithstanding the foregoing, Lessee shall not be
released from Lessee's obligations under indemnities set forth in the Lease or
the Lease Supplement that by their express terms are to survive any termination
of the Lease or the Lease Supplement. Such indemnities, however, shall be
personal obligations of Lessee, not covenants that run with the Leased Property.
B. Except as otherwise set forth in this Agreement, this
Agreement shall fully and finally settle all demands, charges, claims, accounts,
or causes of action of any nature, including, without limitation, both known and
unknown claims and causes of action that arose out of or in connection with the
Lease, the Lease Supplement, the Assignment and the Consent, and it constitutes
a mutual release with respect to the Lease, the Lease Supplement, the Assignment
and the Consent. Each of the parties expressly waives the benefit of any
statutory provision or decisional law, if any, that would preclude the extension
of this release to claims which the waiving party did not know or suspect to
exist at the time of execution of this Agreement, which, if known by such party,
may have materially affected the giving of this release.
4. Counterparts: This Agreement may be executed in
counterparts, each of which shall be an original and all of which together shall
be a single instrument.
5. GOVERNING LAW. THIS AGREEMENT SHALL IN ALL RESPECTS BE
GOVERNED BY THE LAW OF THE STATE OF ILLINOIS (EXCLUDING ANY CONFLICT-OF-LAW OR
CHOICE-OF-LAW RULES WHICH MIGHT LEAD TO THE APPLICATION OF THE INTERNAL LAWS OF
ANY OTHER JURISDICTION) AS TO ALL MATTERS OF CONSTRUCTION, VALIDITY AND
PERFORMANCE.
[signature pages follow]
IN WITNESS WHEREOF, Lessor, Agent and Lessee have signed this
Agreement to Terminate Lease and Assignment to be effective as of the Effective
Date.
LESSOR:
ABN AMRO LEASING, INC.,
an Illinois corporation
By: /s/ David M. Shipley
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Name: David M. Shipley
---------------------------------
Its: Vice President
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By: /s/ Blake J. Lacher
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Name: Blake J Lacher
---------------------------------
Its: Vice President
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STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
The foregoing instrument was acknowledged before me this 22nd day of
December, 2003, by David M. Shipley and Blake J. Lacher the Vice President and
the Vice President of ABN AMRO LEASING, INC., a corporation under the laws of
Illinois, on behalf of the corporation.
_________________________________________________
| NOTARIAL STAMP OR SEAL (OR OTHER TITLE OR RANK) |
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|_________________________________________________|
/s/ Renee M. Field
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Signature Of Person Taking Acknowledgment
[Continuation of signature pages to Agreement to Terminate Lease and Assignment
dated to be effective as of the Effective Date.]
AGENT:
ABN AMRO BANK N.V.
By: /s/ David M. Shipley
-----------------------------------
Name: David M. Shipley
---------------------------------
Its: Vice President
----------------------------------
By: /s/ Blake J. Lacher
-----------------------------------
Name: Blake J Lacher
---------------------------------
Its: Vice President
----------------------------------
STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
The foregoing instrument was acknowledged before me this 22nd day of
December, 2003, by David M. Shipley and Blake J. Lacher the Vice President and
the Vice President of ABN AMRO BANK N.V., a Netherlands corporation, on behalf
of the corporation.
_________________________________________________
| NOTARIAL STAMP OR SEAL (OR OTHER TITLE OR RANK) |
| |
| |
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|_________________________________________________|
/s/ Renee M. Field
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Signature Of Person Taking Acknowledgment
[Continuation of signature pages to Agreement to Terminate Lease and Assignment
dated to be effective as of the Effective Date.]
LESSEE:
TRANSPORT CORPORATION OF
AMERICA, INC., a Minnesota corporation
By: /s/ Keith R. Klein
-----------------------------------
Name: Keith R. Klein
---------------------------------
Its: Chief Financial Officer
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STATE OF MINNESOTA )
) SS.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this 22nd
day of December, 2003, by Keith R. Klein the Chief Financial Officer of
TRANSPORT CORPORATION OF AMERICA, INC., a corporation under the laws of
Minnesota, on behalf of the corporation.
_________________________________________________
| NOTARIAL STAMP OR SEAL (OR OTHER TITLE OR RANK) |
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|_________________________________________________|
/s/ Ann S. Hoffmeyer
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Signature Of Person Taking Acknowledgment
Prepared by: Record and return to:
John R. Grier
Winston & Strawn -----------------------------------------
35 W. Wacker Drive
Chicago, IL 60601 -----------------------------------------
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EXHIBIT A
TO AGREEMENT TO TERMINATE
LEASE AND ASSIGNMENT
LEGAL DESCRIPTION
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Parcel 1:
Lot 1, Block 1, and Outlot A, TRANSPORT AMERICA HEADQUARTERS ADDITION
Parcel 2:
Together with Lot One (1) and the South half of Lot Two (2), Block Two (2),
LETENDRE ADDITION, Dakota County, Minnesota, according to the recorded plat
thereof, EXCEPTING THEREFROM that part of said Lot 1 and the South half of Lot 2
not contained within Parcel 2, per Dakota County Road Right of Way Map No. 5A
(County Road No. 28), according to said recorded Right of Way plat thereof per
Document No. 186453, Dakota County, Minnesota.