EXHIBIT 10.10
TRANSFER AND ASSUMPTION AGREEMENT
This Transfer and Assumption Agreement dated as of January 2, 1997 is entered
into by and among Xxxxx Fargo Armored Service Corporation, a Delaware
corporation ("Transferor"), Xxxx-Xxxxxx Security Corporation, a Delaware
corporation ("Xxxx-Xxxxxx"), Xxxxxx, Fargo & Co., a Delaware corporation
("Transferee"), and Associates Leasing, Inc., an Indiana corporation ("Lessor").
WHEREAS, Transferor and Lessor entered into certain lease agreements dated
December 2, 1996, June 16, 1993, July 3, 1990 and July 18, 1979 (but only as the
1990 and 1979 agreements relate to vehicles leased to Transferor) (the
"Leases"); and
WHEREAS, Transferor and Transferee are parties to a Contribution Agreement,
dated as of November 28, 1996 (the "Contribution Agreement"), whereby
Transferor intends to transfer substantially all of its assets and certain
liabilities to Transferee;
WHEREAS, Transferor desires to transfer its interest in all vehicles leased
pursuant to the Leases as described in the attached Schedule A, which shall be
amended as provided in paragraph 1 herein ("Vehicles") to Transferee, but may
not do so without the prior written consent of Lessor; and
WHEREAS, Lessor will consent to such transfer only subject to the conditions
contained herein.
NOW, THEREFORE, for good and valuable consideration, receipt of which is hereby
acknowledged, Transferor hereby assigns to Transferee all of Transferor's
rights, interest and obligations as lessee in and to the Vehicles, subject to
the following terms and conditions:
1. Transferee acknowledges that (i) as of the date hereof, Transferee has
inspected the Vehicles and found them to be in good working order and
otherwise in a condition which is acceptable to Transferee, and (ii) upon
closing of the transactions contemplated by the Contribution Agreement (the
"Closing"), Transferee shall lease the Vehicles from Lessor and shall,
without qualification or condition, perform all of Transferor's duties and
obligations under the Leases with regard to the Vehicles. Transferor,
Transferee and Lessor agree to prepare a revised Schedule A at or near
Closing which will be incorporated into this Agreement that will identify
all Vehicles.
2. Transferee agrees that no warranties have been made as to the Vehicles by
Lessor, and that LESSOR MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR
IMPLIED, AS TO THE QUALITY, WORKMANSHIP, DESIGN, MERCHANTABILITY,
SUITABILITY OR FITNESS OF THE VEHICLES FOR ANY PARTICULAR PURPOSE, OR ANY
OTHER REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, and that
Lessor shall not under any circumstances by liable for any loss or damage
whatsoever arising from the Vehicles, including, without limitation, loss
of anticipatory profits or consequential damages.
3. Following the Closing, Transferor and Transferee agrees to promptly cause
such actions to be taken as are required or permitted by statute or
regulation to accomplish the transfer of the Vehicles and to protect
Lessor's ownership thereof, including, without limitation, filing financing
statements, recording documents and obtaining Certificates of Title, Lessor
assuming no responsibility thereof
4. Effective at the Closing, Lessor hereby releases Transferor and Xxxx-Xxxxxx
from all obligations under the Leases and any liability related to the
Vehicles. Except as expressly provided herein, all Leases shall remain in
full force and effect for the remaining vehicles (if any) subject thereto.
5. Xxxx-Xxxxxx agrees to deliver to Lessor a letter of credit (the "L/C") in
the amount of $2,500,000 in a form reasonably similar to Exhibit A and
drawn on a bank reasonably satisfactory to Lessor. The L/C shall secure
Transferee's obligations under the Leases for the period beginning on the
Closing and ending on the second anniversary thereof. The L/C may contain
an "evergreen" provision providing for a term of one year to be renewed
automatically at the end of such term for an additional one year period
unless the bank issuing such L/C notifies Lessor in writing not less than
twenty (20) days prior to the end of the term of the L/C. In such event,
Xxxx-Xxxxxx shall provide a new L/C conforming to the terms of this
paragraph 5. If a new L/C is not delivered by Borg/Warner prior to the date
which is ten (10) days prior to the expiration of the initial period, then
Lessor shall have the right to drawn down on the L/C and hold the funds in
a segregated account until the earlier of (X) the delivery by Xxxx-Xxxxxx
of a new L/C conforming to the terms of this Paragraph 5 in which event
Lessor shall return to Xxxx-Xxxxxx the funds drawn down or (Y) Lessor's
right to otherwise drawn down the L/C pursuant to this paragraph 5 in which
event the funds may be released from the segregated account for the benefit
of the Lessor. The L/C shall provide that Lessor shall have the right to
call and draw down on it to the extent that and in the event that (i)
Transferee shall have failed to pay when due any part of the Adjusted
Rental after Final Adjustment (as such terms are defined in the Leases) or
equivalent payable under the Leases with respect to
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any Vehicle or (ii) in the event that Transferee owes monies under the
Leases with respect to any Vehicle, Transferee (A) commences a voluntary
case or proceeding under any applicable federal or state bankruptcy,
insolvency, reorganization or similar law, (B) is adjudicated bankrupt or
insolvent or (C) consents to an involuntary case or proceeding under any
applicable federal or state bankruptcy, insolvency, reorganization or
similar law (each, a "Bankruptcy Event").
6. Lessor's consent to the transfer will not be effective (i) until this
Agreement has been properly executed by authorized representatives of each
of the parties hereto, (ii) if there has been a material adverse change to
the financial position of Xxxx-Xxxxxx, Transferor or Transferee prior to
the Closing or (iii) if the Closing has not occurred on or prior to March
23, 1997.
7. Notwithstanding anything contained in the Leases to the contrary, after
Closing, the Vehicles listed on Schedule B hereto ("Schedule B Vehicles")
shall be leased for a term that expires on January 1, 2000 ("Schedule B
Expiration Date"). Transferee agrees to continue to pay rentals on each
Schedule B Vehicle in the amount of five dollars ($5.00) per vehicle per
month. Rentals shall be payable on the same date as the other rentals due
under the Leases. Transferee shall have the right to request Lessor to sell
any Schedule B Vehicle prior to the Schedule B Expiration Date to a third
party, provided that the net proceeds from such sale shall be paid directly
to Lessor and applied as prepayments to the oldest Leases first. All
reasonable expenses of such sales (including, without limitation, taxes,
registration fees, and third party commissions) shall be borne by the
Transferee. Except as modified above, the Schedule B Vehicles shall
continue to be governed by the applicable Leases.
8. This Agreement may be executed in any number of counterparts, each of which
shall, when so executed, be considered an original and all of which, taken
together, shall be considered on document.
9 This Agreement and any schedules referred to herein constitute the entire
agreement of the parties hereto. No oral agreement, guaranty, promise,
condition, representation or warranty shall be binding on Lessor. Each of
the parties executing this Agreement acknowledges receipt of a copy hereof.
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IN WITNESS WHEREOF, we have hereunto set out hands and seals as of the day and
year first above written.
TRANSFEROR: XXXXX FARGO ARMORED SERVICE CORPORATION
BY: /s/ Xxxxxxx X. Xxxx
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TITLE: Vice President
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TRANSFEREE: XXXXXX, FARGO & CO.
BY: /s/ Xxxxx X. Xxxxxxxx, Xx.
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TITLE: Executive Vice President
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XXXX-XXXXXX SECURITY CORPORATION
BY: /s/ Xxxxxxx X. Xxxx
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TITLE: Vice President
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Lessor hereby consents to the above transfer and assumption pursuant to the
terms and conditions of the above Agreement.
DATE: January 3, 1997
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ASSOCIATES LEASING, INC.
BY: [SIGNATURE ILLEGIBLE]
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TITLE: Senior Vice President
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