EXHIBIT 10.6
TERMINATION AGREEMENT
THIS TERMINATION AGREEMENT (this "Agreement") dated as of December 23,
2003 is made by and among TRANSPORT CORPORATION OF AMERICA, INC., a Minnesota
corporation, as lessee (in such capacity, the "Lessee"), as construction agent
(in such capacity, the "Construction Agent"), and as guarantor (in such
capacity, the "Guarantor"), ABN AMRO LEASING INC., an Illinois corporation, as
lessor (the "Lessor"), and as a Participant, ABN AMRO BANK N.V., as a
Participant ("ABN AMRO"), LASALLE BANK NATIONAL ASSOCIATION (by way of
assignment from ABN AMRO dated November 5, 2001), as a Participant ("LaSalle"),
U.S. BANK NATIONAL ASSOCIATION (as successor to Firstar Bank of Minnesota,
N.A.), as a Participant ("Firstar") (Lessor, ABN AMRO, LaSalle and Firstar, each
a "Participant" and collectively the "Participants"); and ABN AMRO BANK N.V., as
Agent (in such capacity, the "Agent") for the Participants.
RECITALS:
A. Agent, Participants, Lessor and Lessee are parties to that certain
Participation Agreement, 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 so,
and as further, 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;
B. Lessor and Construction Agent are parties to that certain
Construction Agency Agreement dated as of April 9, 1999, pursuant to which
Lessor appointed Construction Agent as its construction agent to acquire the
Real Estate and to construct certain improvements thereon, including that
certain Assignment of Construction Documents dated as of April 9, 1999 by
Construction Agent in favor of Lessor (collectively, as amended, restated,
supplemented or otherwise modified from time to time, the "Construction Agency
Agreement");
C. Lessor and Agent are parties to that certain Construction Agency
Agreement Assignment dated as of April 9, 1999 (as amended, restated,
supplemented or otherwise modified from time to time, the "CAA Assignment");
D. Guarantor entered into that certain Guarantee dated as of April 9,
1999 (as amended, restated, supplemented or otherwise modified from time to
time, the "Guarantee") in favor of Agent;
E. Lessor and Lessee are parties to that certain Master Lease dated as
of April 9, 1999 as amended by the First Amendment, Second Amendment, Third
Amendment and Fourth Amendment (as so, and as further, amended, restated,
supplemented or otherwise modified from time to time, the "Lease Agreement");
F. Pursuant to Section 20.1 of the Lease Agreement, in the absence of
the earlier exercise of the Remarketing Option, Lessee has the option to
purchase the Property by giving irrevocable written notice of its election to
exercise such option to Agent (a "Purchase Notice");
G. Lessee has delivered to Agent a Purchase Notice on December 11,
2003;
H. Lessee has further delivered to Agent an assignment of its purchase
option to IRET-1715 YDR, LLC on December 23, 2003;
I. The parties desire to terminate the Participation Agreement, the
Construction Agency Agreement, the CAA Assignment, the Guarantee, and all other
Operative Documents, all on the terms and conditions set forth in this
Agreement; and
J. 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:
1. Purchase Option Price. The Purchase Option Price as
determined pursuant to the terms of the Lease Agreement shall be as follows:
Principal $13,000,000.00
Interest through the Effective $ 14,958.90
Date
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Agent's Attorney Fees $ 8,500.00
Aggregate Purchase $13,023,458.90
Option Price
Payment of the Purchase Option Price shall be made by wire
transfer to the accounts indicated below:
To Agent: $13,014,958.90
ABN AMRO Bank N.V.
New York, NY
ABA No. 026009580
F/O ABN AMRO Bank NV - Chicago CPU
Account No. 650-001-1789-41
Ref: AG-00450669 Transport Corporation of America
To Agent's Counsel: $ 8,500.00
Harris Bank - Chicago, Illinois
ABA/Routing Number: 071 000 288
Account Number: 449-675-8
Account Name: Winston & Strawn LLP
Ref: Client No.: 004097/Matter No.: 00059
2. Termination. Upon receipt by Agent of the Purchase Option
Price by Agent, for and on behalf of the Participants, and the consummation of
the purchase (the "Effective Date"), except as provided in Section 3 hereof, the
Participation Agreement, the Construction Agency Agreement, the CAA Assignment,
the Guarantee and the other Operative Documents 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, the Participant, Lessee and
Guarantor shall be fully and unconditionally released and discharged from their
respective obligations arising from or connected with the Participation
Agreement, the Construction Agency Agreement, the CAA Assignment, the Guarantee
and the other Operative Documents. Notwithstanding the foregoing, Lessee shall
not be released from Lessee's obligations under indemnities set forth in the
Participation Agreement, the Construction Agency Agreement, the CAA Assignment
and the other Operative Documents that by their express terms are to survive any
termination of such agreements for matters within the scope of such
indemnification provisions that arose during the period that such agreements
were in effect regardless of when asserted and, Guarantor shall not be released
from its guarantee obligations with respect thereto under the Guarantee.
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 that arose
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out of or in connection with the Participation Agreement, the Construction
Agency Agreement, the CAA Assignment, the Guarantee and the other Operative
Documents, including, without limitation, both known and unknown claims and
causes of action, and it constitutes a mutual release with respect to the
Participation Agreement, the Construction Agency Agreement, the CAA Assignment,
the Guarantee and the other Operative Documents. 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]
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IN WITNESS WHEREOF, each party hereto has caused this Termination
Agreement to be duly executed and delivered by its proper and duly authorized
officer as of the date first written above.
TRANSPORT CORPORATION OF AMERICA, INC.,
as Lessee, as Construction Agent and as
Guarantor
By: /s/ Keith R. Klein
Title: Chief Financial Officer
ABN AMRO LEASING, INC., as Lessor and a
Participant
By: /s/ David M. Shipley
Title: Vice President
By: /s/ Blake J. Lacher
Title: Vice President
ABN AMRO BANK N.V., as Agent and as a
Participant
By: /s/ David M. Shipley
Title: Vice President
By: /s/ Blake J. Lacher
Title: Vice President
LASALLE BANK NATIONAL ASSOCIATION,
as a Participant
By: /s/ David J. Thomas
Title: First Vice President
US BANK NATIONAL ASSOCIATION,
as a Participant
By: /s/ Karen S. Paris
Title: Senior Vice President