Exhibit 10.5
REIMBURSEMENT AND INDEMNIFICATION AGREEMENT
between
CONSOLIDATED FREIGHTWAYS, INC.
and
CONSOLIDATED FREIGHTWAYS CORPORATION OF DELAWARE
TABLE OF CONTENTS
Page
1. Certain Definitions 2
2. Existing and Future Claims 3
3. CFCD Reimbursement 4
4. CFCD Indemnification 4
5. Exculpation 4
6. Letter of Credit 5
7. Mortgages 5
8. Release of Security 6
9. Change in Collateral 7
10. Covenants 8
11. Duration of Agreement 10
12. Notices 10
13. Execution in Counterparts 11
14. Assignability 11
15. Gender and Number 11
16. Captions 11
17. Severability 11
18. Integration 11
19. Amendments 11
20. Governing Law 11
21. Duty to Cooperate 11
EXHIBIT A - Form of Mortgage
EXHIBIT B - Real Properties
EXHIBIT C - Non-Renewal, Release and Indemnification Agreement
REIMBURSEMENT AND INDEMNIFICATION AGREEMENT
THIS REIMBURSEMENT AND INDEMNIFICATION AGREEMENT
("Agreement") is entered into as of October 1, 1996, by
and between Consolidated Freightways, Inc., a Delaware
corporation (together with its wholly owned subsidiaries
other than CFCD and its wholly owned subsidiaries,
"CFI"), and Consolidated Freightways Corporation of Dela
ware, a Delaware corporation (together with its wholly
owned subsidiaries, "CFCD").
RECITALS
B. CFCD is and will remain, until the
distribution of the common stock of Consolidated
Freightways Corporation to the stockholders of CFI (the
date of such distribution being referred to herein as
the "Distribution Date"), a wholly owned subsidiary of
CFI.
C. CFI administers, at the direction of certain
of its subsidiaries (as applicable), either through a
subsidiary or with a third-party administrator, an insur
ance program (the "Insurance Program") for certain of
its subsidiaries (and provides certain oversight
services for) claims under (i) the workers' compensation
statutory, regulatory and common law systems in each of
the states in which the relevant subsidiary does
business and, (ii) certain public liability and property
damage statutory, regulatory and common law systems in
each of the states in which the relevant subsidiary does
business. Where required by law or by contract, CFI pro
vides the necessary insurance, guarantees or collateral
for the performance of the subsidiary's obligations in
each such state.
D. Under the Insurance Program, CFI administers
(i) Workers' Compensation Claims, as defined herein, and
(ii) Public Liability and Property Damage Claims, as
defined herein. Where required by law or by contract,
CFI provides the necessary insurance, guarantees or
collateral for the performance of the CFCD Obligations,
as defined herein, in each such state.
E. Obligations that arise with respect to CFCD
under the Insurance Program are the responsibility of
CFCD. However, in the past these amounts have been
advanced by CFI, including payments under policies
issued by CF Financial Services, and CFCD has reimbursed
CFI for such payments.
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F. CFCD and CFI desire to memorialize in writing
the reimbursement and indemnification arrangements which
have existed between CFI and CFCD with respect to
amounts owed and advanced under the Insurance Program.
NOW THEREFORE, in consideration of the agreement of
CFI to continue administering the Insurance Program as
contemplated in Section 2 below and for other good and
valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties agree as
follows:
1. Certain Definitions. As used in this
Agreement, the following terms shall have the following
meanings (such meanings to be equally applicable to both
the singular and plural forms of the terms defined):
CFCD Obligations: means obligations and other
liabilities arising under or in connection with Relevant
Claims.
Claim: means any claim, judgment, Loss,
deficiency, damages, punitive or exemplary damages, fine
or penalty, liability, costs and expenses (including
reasonable attorneys' fees, charges and disbursements)
whether required to be paid to a third party or
otherwise incurred in connection with or arising from
any claim, suit, action or proceeding.
Commencement Date: means October 1, 1996.
Continuing LJSC Employee Claims: means Claims made
against CFCD or LJSC which arise or are incurred prior
to the Commencement Date which relate to LJSC employees
who remain actively employed by LJSC following the
Distribution Date.
Indemnified Parties: means CFI, its agents and
their present or former officers, directors,
shareholders, agents, employees, representatives,
successors-in-interest, parents, affiliates, insurers
(including, without limitation, insurers for CFI and
CFCD), attorneys and assigns.
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Letter of Credit: means an irrevocable,
unconditional letter of credit with an original face
amount equal to $30,000,000 in the form identical to the
letter of credit issued pursuant hereto on the date
hereof or in such other form acceptable to CFI, subject
to reduction as provided in Section 8, issued by a bank
approved by CFI.
Loss: shall have the meaning assigned thereto in
the Distribution Agreement.
Mortgage Property: shall have the meaning
specified in Section 7.
Mortgages: shall have the meaning specified in
Section 7.
Permitted Exceptions: shall have the meaning
specified in Section 10(d).
Property Value: means the fair market value of
each Mortgage Property.
Public Liability and Property Damage Claims: means
Claims made against CFCD under certain public liability
and property damage statutory, regulatory and common law
systems and which CFCD directs CFI to administer under
the Insurance Program.
Relevant Claim: means (i) a Public Liability and
Property Damage Claim, (ii) a Workers' Compensation
Claim or (iii) any other Claim against CFCD or LJSC
arising out of an actual or alleged occurrence under any
CF Financial Services Corporation insurance policies.
Security Schedule: shall have the meaning
specified in Section 8(a).
Title Company: means any title company
satisfactory to CFI.
Workers' Compensation Claims: means Claims made
against CFCD or LJSC (including Continuing LJSC Employee
Claims but excluding any other Claims relating to LJSC
employees) under the workers' compensation statutory,
regulatory and common law systems and which CFCD directs
CFI to administer under the Insurance Program.
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2. Existing and Future Claims. Effective as of
the Commencement Date, CFCD will obtain its own insur
ance for the CFCD Obligations arising from and after the
Commencement Date. CFI will not administer (but shall
provide certain oversight services for the period begin
ning the Commencement Date and ending the Distribution
Date with respect to) claims against CFCD which are
insured under that separate insurance or result from
occurrences on or after the Commencement Date. As of
the Commencement Date, the only claims which CFI will
administer will be claims of the type it has ordinarily
and customarily administered and that arise out of occur
rences prior to the Commencement Date. CFI will admin
ister these claims either itself or through a third-
party administrator. CFI will not provide the necessary
insurance, guarantees or collateral for the performance
of the CFCD Obligations for any claim occurring after
the Commencement Date. CFI will maintain the necessary
collateral and security already in place on claims
occurring prior to the Commencement Date.
3. CFCD Reimbursement. CFCD shall reimburse CFI,
immediately upon demand by CFI, for all amounts advanced
and costs reasonably incurred by CFI in connection with
the CFCD Obligations, together with interest thereon at
the prime rate (as announced by Bank of America) plus 2%
until reimbursed; provided, however, that CFCD does
hereby acknowledge and agree that CFI may, but shall
have no obligation to, advance any such amounts or incur
any such costs.
4. CFCD Indemnification. CFCD, at its own
expense, shall indemnify, defend and hold the Indemni
fied Parties harmless from and against any Claim against
the Indemnified Parties to the extent the basis of such
Claim is that: (i) CFCD has failed to pay any amounts
owed which constitute CFCD Obligations, (ii) a third
party has been or may be injured or damaged in any way
by any breach by CFCD of any of its duties, representa
tions or warranties under this Agreement, (iii) CFCD or
any of its employees, agents, or servants acted
improperly in connection with the notification, investi
gation, adjustment, and settlement of claims and losses
arising under the Insurance Program, or (iv) there is
any other liability or obligation arising either out of
CFI's (or its agents') provision of certain oversight
services for the period beginning the Commencement Date
and ending the Distribution Date or out of CFI's (or its
agents') administration or operation of the Insurance
Program, except to the extent that same arises from the
gross negligence or willful misconduct of CFI (or its
agents). The provision of indemnification under this
Section 4 shall be in a like manner to the provision of
indemnification under the Distribution Agreement (as
defined herein).
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5. Exculpation. CFI and its agents shall not be
liable to CFCD for any Losses which arise in any manner
from the operation or administration of the Insurance
Program (including but not limited to the handling of
insurance claims or any failure to obtain insurance)
except to the extent that same arises from the gross
negligence or willful misconduct of CFI. CFCD hereby
waives all claims against CFI and its agents for such
Losses and the cost and expense of defending against
claims relating to such Losses, except to the extent
that same arises from the gross negligence or willful
misconduct of CFI. CFCD expressly waives any and all
rights under section 1542 of the Civil Code of
California, which provides as follows:
"A General Release does not extend to claims
which the creditor does not know or suspect to
exist in his favor at the time of executing
the Release, which if known by him must have
materially affected his settlement with the
debtor."
6. Letter of Credit. On or prior to the
Distribution Date, CFCD shall deliver to CFI a Letter of
Credit, and shall maintain such Letter of Credit in
place at all times during the term of this Agreement in
accordance with the terms of this Agreement. CFI shall
have the right to draw upon the Letter of Credit in San
Francisco, California, in accordance with the terms of
this Agreement by presentation to the issuer thereof of
(i) CFI's sight draft and (ii) a certificate stating
that CFI has the right to draw upon the Letter of Credit
in accordance with the terms hereof. In the event that
at any time while this Agreement remains in effect, CFCD
fails to comply with its reimbursement obligations in
accordance with Section 3 hereof, then CFI shall have
the right to draw upon the Letter of Credit in an amount
equal to the amount CFCD was required to reimburse in
accordance with Section 3 hereof. On or before the
fifth (5th) business day following any such draw, CFCD
shall deliver to CFI an additional Letter of Credit so
that the aggregate face amount of all Letters of Credit
held by CFI shall equal $30,000,000 (or such lesser
amount as provided in Section 8 below). So long as this
Agreement remains in effect, CFCD shall cause each
Letter of Credit to be extended for at least one year
after the then-current expiration date not later than
sixty (60) days prior to the then-current expiration
date of each Letter of Credit and no notice of
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termination of any Letter of Credit shall be delivered
with respect to any such letter of Credit within the
period specified in any such Letter of Credit. If any
such Letter of Credit is not so extended or any such
notice of termination is delivered, CFI shall be
entitled to draw the full amount of each such Letter of
Credit and such funds drawn under each such Letter of
Credit shall be property of CFI and will be applied by
CFI toward payment of the CFCD Obligations and all other
obligations from time to time owing by CFCD hereunder.
CFI shall pay to CFCD the excess, if any, of the amount
of such funds so drawn under any such Letter of Credit
remaining after the indefeasible payment in full of all
CFCD Obligations and the termination of this Agreement
in accordance with the terms hereof.
7. Mortgages. On or before the Distribution
Date, CFCD shall execute and acknowledge four (4)
copies of the mortgage in the form of Exhibit A attached
hereto (collectively, the "Mortgages") with respect to
each of the real properties identified on Exhibit B
attached hereto (the "Mortgage Properties"). The Mort
gages shall constitute valid first priority liens
against the fee title interest in the Mortgage Proper
ties (subject only to such defects, liens, encumbrances,
assessments, security interests, restrictions, easements
and other title exceptions as shall be approved by CFI),
which Mortgages shall secure the timely payment and
performance of CFCD's obligations hereunder. Concur
rently with the execution and delivery of the Mortgages,
CFCD shall deliver the following to CFI:
(a) UCC Financing Statements. UCC-1 financing
statements (in form and substance reasonably acceptable
to CFI) covering fixtures owned by CFCD and affixed to,
or used in connection with, each Mortgage Property, in
each case appropriately completed and duly executed,
acknowledged and filed in the appropriate land offices.
(b) General Assignment. A first priority assign
ment to CFI (in form and substance reasonably acceptable
to CFI) of CFCD's interest in and to all leases relating
to each Mortgage Property, material service contracts
concerning or affecting such Mortgage Property and all
permits, approvals and licenses issued with respect to
such Mortgage Property.
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8. Release of Security.
(a) Annual Release of Mortgages. On the first anni
versary of the Commencement Date and on each anniversary
of the Commencement Date thereafter, CFI shall cause one
or more Mortgage Properties to be released from the
lien(s) of the Mortgages so that the aggregate Property
Value of the Mortgage Properties which shall continue to
be encumbered by Mortgages immediately following such
release shall be as close as possible to (but not less
than) the Property Value set forth for the corresponding
year on the schedule set forth in Section 8(d) below
(the "Security Schedule"). For the purposes of this
Section 8(a), CFI and CFCD agree that the Property Value
of each Mortgage Property equals the value identified on
Exhibit B attached hereto and such value shall be the
Property Value used by CFI in determining which Mortgage
Properties shall be released from the lien of the
Mortgages in accordance with this Agreement; provided,
however, that in the event either party reasonably
believes that the aggregate value of the Mortgage
Properties has increased or decreased by 20% or more,
then the parties shall agree on an independent MAI
appraiser to determine the Property Value of the
Mortgage Properties, which determination shall be
binding on the parties for the purposes of this Section
8(a) and Section 9(b) hereof. Subject to the foregoing,
CFCD shall have the sole and absolute right to determine
which Mortgage Properties are to be released from the
lien of the Mortgages in accordance with this Section
8(a).
(b) Deliveries. In connection with any proposed
release of a Mortgage Property, CFCD shall (not later
than ten (10) Business Days prior to the proposed date
of release) deliver or cause to be delivered to CFI:
(i) An officer's certificate setting forth
that, to the best knowledge of the certifying Per
son, no default has occurred and is continuing
hereunder or under the Mortgages.
(ii) A copy of the instruments necessary to
effect the release of the Mortgages.
In connection with any release pursuant to this Section
8(b), and after CFCD has delivered the items required
pursuant to the subparagraphs (i) and (ii) above, CFI
shall promptly execute and deliver any instrument rea
sonably necessary or appropriate to release the Mortgage
Property to be released pursuant to this Section 8(b).
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(c) Annual Reduction of Letter of Credit Face
Amount. On the first anniversary of the Commencement
Date and on each anniversary of the Commencement Date
thereafter, CFI shall permit the aggregate face amount
of the Letter(s) of Credit to be reduced to the face
amount set forth for the corresponding year on the
Security Schedule.
(d) Security Schedule.
Commencement
Date Face Amount of Property Value of
Anniversary Letter(s) of Credit Mortgage
Properties
1997 $30,000,000 $50,000,000
1998 $20,000,000 $30,000,000
1999 $20,000,000 $10,000,000
2000 $10,000,000 $0
2001 - termination $1 $0
9. Change in Collateral.
(a) Notwithstanding anything to the contrary
herein, in the event that, at any time prior to the
fourth (4th) anniversary of the Commencement Date, CFI
(i) becomes aware of an adverse physical condition or
defect affecting any Mortgage Property which diminishes
the Property Value of such Mortgage Property by 20% or
more from the corresponding value set forth on Exhibit B
hereto and (ii) delivers written notice to CFCD of such
condition or defect together with a written report,
opinion, or appraisal prepared by an independent third
party expert (who is licensed to prepare such a report,
opinion or appraisal and is an employee or member of a
nationally recognized firm), which report, opinion or
appraisal confirms unequivocally that the Property Value
of the impacted Mortgage Property has diminished by 20%
or more as a result of such condition or defect, then
CFCD shall either (i) increase the face amount of the
Letter of Credit by the amount of such diminution or
(ii) execute, acknowledge and deliver to CFI a Mortgage
together with the documents identified in Sections 7(a)
through 7(b), which encumbers real property (other than
the existing Mortgage Properties) owned by CFCD, which
(1) has been approved by CFI, which approval shall not
be unreasonably withheld, and (2) CFCD can demonstrate
to CFI's reasonable satisfaction that the new Mortgage
Property has a Property Value equal to or in excess of
the amount of such diminution.
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(b) Notwithstanding anything to the contrary
herein, CFCD may, at any time prior to the fourth (4th)
anniversary of the Commencement Date, substitute one or
more parcels of real property for any Mortgage Property
for another, provided that CFCD (i) delivers written
notice to CFI of its intention to substitute a Mortgage
Property together with a general description of the
substitute property and (ii) executes, acknowledges and
delivers to CFI a Mortgage together with the documents
identified in Sections 7(a) through 7(b), which
encumbers the substitute property owned by CFCD and
provided further that (1) the substitute has been ap
proved by CFI, which approval shall not be unreasonably
withheld, and (2) CFCD can demonstrate to CFI's reason
able satisfaction that the substitute property has a
Property Value equal to or in excess of the Property
Value of the substituted Mortgage Property.
10. Covenants.
(a) Notice to Additional Insureds. CFCD shall
promptly provide written notice to all third parties for
whom CFCD has agreed to provide insurance or evidence of
insurance (i.e. the additional insureds and recipients
of certificates of insurance) that such insurance will,
as of the Commencement Date, no longer be provided by
CFI or CF Financial Services, and will take all steps to
ensure that alternative insurance arrangements are made
in a timely manner, but no later than six months
following the Distribution Date, and shall certify to
CFI that such actions have been taken.
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(b) Deductibles and Premiums. CFCD shall promptly
pay all deductibles, retentions and premiums applicable
under the Insurance Program.
(c) Insurance. CFCD will keep insured by finan
cially sound and reputable insurers all property of a
character usually insured by parties engaged in the same
or similar business similarly situated against loss or
damage of the kinds and in the amounts customarily
insured against by such parties and carry such other
insurance as is usually carried by such parties and as
required in accordance with the terms of the Mortgages.
(d) Limitation on Liens. CFCD will not create,
incur, assume or suffer to exist any lien or encumbrance
upon any of the Mortgage Property, except the following
liens (referred to herein as "Permitted Exceptions"):
(2) liens imposed by any governmental authority
for taxes, assessments or charges not yet delinquent;
(3) deposits to secure the performance of bids,
trade contracts (other than for borrowed money), leases,
statutory obligations, surety and appeal bonds, perfor
mance bonds and other obligations of a like nature
incurred in the ordinary course of business;
(4) easements, rights-of-way, restrictions and
other similar encumbrances incurred in the ordinary
course of business and encumbrances consisting of zoning
restrictions, easements, licenses, restrictions on the
use of property or minor imperfections in title thereto
which, in the aggregate, are not material in amount, and
which do not in any case materially detract from the
value of the Mortgage Property subject thereto or inter
fere with the ordinary conduct of the business of CFCD;
(5) liens arising under the Mortgages and related
documents;
(6) any other liens approved by CFI in writing
(which approval may be withheld in the CFI's sole
discretion); and
(7) any extensions, renewals or replacements of
the foregoing.
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(e) Non-Renewal. CFCD shall enter into the
Non-Renewal, Release and Indemnification Agreement, in
the form attached hereto as Exhibit C, on or prior to
the Distribution Date.
(f) Disbursement Account. CFCD shall
maintain, for the duration of this Agreement, a
controlled disbursement account, to be funded by its
concentration account, and shall take all steps
necessary to ensure that CNF Service Company may draw on
such disbursement account in order to make required
payments relating to Relevant Claims for the duration of
this Agreement; provided, however, that CFCD does hereby
acknowledge and agree that CNF Service Company shall be
under no obligation to make any such payments if there
are insufficient funds in such account, and if CNF
Service Company does make voluntary payments despite any
such insufficiency, such payments shall be subject to
reimbursement by CFCD in accordance with the terms of
this Agreement..
(g) Real Property Reserve. CFCD shall, at
all times during the term of this Agreement, reserve
real properties not subject to negative pledge pursuant
to CFCD's revolving credit facility, with an aggregate
value of not less than $10,000,000, shall not pledge or
dispose of same, in order to ensure its ability to
comply with its obligations under Section 9(a), and
shall not amend such revolving credit facility in a
manner that would impair its ability to comply with its
obligations under Section 9(a).
11. Duration of Agreement. The parties agree that
this Agreement shall continue in full force and effect
as long as there are any CFCD Obligations outstanding.
The parties agree that this Agreement shall continue in
full force and effect for the purpose of determining the
rights and obligations of the parties in the event such
termination has occurred and subsequent thereto either
of the following occurs:
(a) A Relevant Claim arising under or in connection
with the Insurance Program which had been closed prior
to the termination of this Agreement is reopened; or
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(b) A Relevant Claim arises under or in connection with
the Insurance Program based on an occurrence allegedly
within the Insurance Program, or the administration of a
claim within the Insurance Program, but which has not
been reported prior to the termination of this Agreement
until such claims have been closed.
12. Notices. Except as otherwise provided herein,
any notice or other communication to be given hereunder
shall be in writing and shall be (as elected by the
party giving such notice): (i) personally delivered;
(ii) transmitted by postage-prepaid registered or
certified airmail, return receipt requested; (iii)
transmitted by facsimile (with a copy of such transmis
sion by postage prepaid registered or certified airmail,
return receipt requested); or (iv) deposited prepaid
with a nationally recognized overnight courier service.
Unless otherwise provided herein, all notices shall be
deemed to have been duly given on: (a) the date of
receipt (or if delivery is refused, the date of such
refusal) if delivered personally, by facsimile or by
courier, or (b) three (3) days after the date of posting
if transmitted by mail. Either party may change its
address for notice purposes hereof on not less than
three (3) days' prior notice to the other party. Notice
hereunder shall be directed to a party at the address
for such party which is set forth below:
Consolidated Freightways, Inc.
3240 Hillview Avenue
Palo Alto, California 94304
Attention: General Counsel
Consolidated Freightways Corporation of
Delaware
175 Linfield Drive
Menlo Park, California 94025
Attention: General Counsel
13. Execution in Counterparts. This Agreement may
be executed in any number of counterparts with the same
effect as if all the parties hereto had signed the same
document. All counterparts shall be construed together
and shall constitute one agreement.
14. Assignability. Without limiting the
restrictions upon assignment and transfer set forth
herein, each and all of the covenants, terms, provisions
and agreements herein contained shall be binding upon
and inure to the benefit of the successors and assigns
of the respective parties hereto.
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15. Gender and Number. Whenever required by the
context hereof, the singular shall include the plural
and the plural shall include the singular. The
masculine gender shall include the feminine and neuter
genders, and the neuter shall include the masculine and
feminine.
16. Captions. Sections, titles or captions in no
way define, limit, extend or describe the scope of this
Agreement nor the intent of any of its provisions.
17. Severability. Any provision of this Agreement
that is prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the
extent of such prohibition or unenforceability without
invalidating the remaining portions hereof or affecting
the validity or enforceability of such provision in any
other jurisdiction.
18. Integration. This Agreement and that certain
Distribution Agreement entered into between CFI and
Consolidated Freightways Corporation as of November 25,
1996, including any schedules, exhibits or other docu
ments ancillary thereto, contain the entire agreement of
the parties with respect to the subject matter hereof,
and supersede all other agreements or understandings of
any kind.
19. Amendments. This Agreement may not be
amended, modified or supplemented by the parties in any
manner, except by an instrument in writing signed on
behalf of each of the parties by a duly authorized
officer or representative.
20. Governing Law. This Agreement shall be
governed by and construed in accordance with the laws of
the State of California without regard to the principles
of conflicts of laws thereof.
21. Duty to Cooperate. CFCD agrees to cooperate
with CFI in the investigation of any Relevant Claim, to
provide prompt notice of any Claim and to provide any
information CFI shall reasonably request for the purpose
of investigating a CFCD obligation. Neither party shall
do anything to impair the other party's equitable or
contractual rights of subrogation against third parties.
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IN WITNESS WHEREOF, the undersigned have executed
this Agreement effective as of the date first written
above.
CONSOLIDATED FREIGHTWAYS, INC.,
a Delaware corporation,
on behalf
of itself and its wholly owned
subsidiaries (other than
Consolidated
Freightways Corporation of
Delaware and its wholly owned
subsidiaries)
By:/s/ D. E. Moffitt
Name: Donald E. Moffitt
Title: President and Chief
Executive Officer
CONSOLIDATED FREIGHTWAYS CORPORATION
OF DELAWARE, a Delaware corporation,
on behalf of itself and its wholly
owned subsidiaries
By:/s/ S. D. Richards
Name: Stephen D. Richards
Title: Vice President and
General Counsel
1 The lesser of $10,000,000 or 100% of the reserve for
Relevant Claims.
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