AMENDMENT TO SECURITY AGREEMENT
Exhibit 4.6
AMENDMENT TO SECURITY AGREEMENT
This Amendment to Security Agreement dated as of August 17, 2006 by and among Velocity Express Corporation, a corporation organized under the laws of the state of Delaware (the “Company”), and each of the subsidiaries of the Company identified under the caption “Subsidiary Guarantors” on the signature pages hereto (the “Subsidiary Guarantors” and, together with the Company, individually a “Grantor Party” and, collectively the “Grantor Parties”); to and in favor of Wells Fargo Bank, N.A., as Trustee (the “Trustee”) under the Indenture (the “Indenture”) dated as of July 3, 2006 between the Company and the Trustee.
BACKGROUND
The Company and the Subsidiary Guarantors identified on the signature page thereto (the “Original Subsidiaries”) executed and delivered a Security Agreement dated July 3, 2006 in favor of the Trustee (the “Security Agreement”). All capitalized terms used and not otherwise defined in this Amendment have the meanings given them in the Security Agreement and the Indenture.
On August 17, 2006, CD&L, Inc. merged into CD&L Acquisition Corp., an Original Subsidiary. As required by the terms of the Indenture, CD&L, Inc. and each Subsidiary of CD&L, Inc. (collectively, including CD&L, Inc., the “CD&L Subsidiaries”) executed and delivered a Guarantee in favor of the Trustee. As a consequence, each CD&L Subsidiary assumed, adopted and acceded to the Indenture and each of the Security Documents as a “Subsidiary Guarantor” and “Grantor Party.”
This Amendment is being entered into to amend the Annexes to the Security Agreement to reflect the addition of the CD&L Subsidiaries as Grantor Parties and their assets as Collateral. As such, no consent of Holders is required.
Now therefore, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each Grantor Party hereby agrees in favor of the Trustee as follows:
1. Amended Annexes. Annexes 1 through 8 to the Security Agreement are hereby amended to conform to Annexes 1 through 8 to this Amendment.
2. Representations. The representations in the Security Agreement, as amended by this Amendment, are true.
3. Effect of Amendment. Except as expressly revised by this Amendment, all provisions of the Security Agreement remain in full force and effect.
4. Acknowledgment of Grantor Parties. Each of the CD&L Subsidiaries acknowledges that it is a Grantor Party, bound by the terms of the Security Agreement and other Security Documents and hereby grants to the Trustee a security interest in its respective interests in the Collateral.
Executed as of the August 17, 2006.
| THE COMPANY
| ||
| VELOCITY EXPRESS CORPORATION | ||
| By: | /s/ Edward W. Stone | |
| Name: Edward W. Stone | ||
| Title: Chief Financial Officer | ||
|
SUBSIDIARY GUARANTORS | ||
|
VELOCITY EXPRESS, INC. VXP MID-WEST, INC. CORPORATE EXPRESS DISTRIBUTION SERVICES, INC. VELOCITY EXPRESS LEASING, INC. VXP LEASING MID-WEST, INC. CD&L, INC. CLAYTON/NATIONAL COURIER SYSTEMS, INC. CLICK MESSENGER SERVICE, INC. OLYMPIC COURIER SYSTEMS, INC. SECURITIES COURIER CORPORATION SILVER STAR EXPRESS, INC. | ||
| By: | /s/ Edward W. Stone | |
| Name: Edward W. Stone Title: Chief Financial Officer | ||
| THE TRUSTEE
WELLS FARGO BANK, N.A., as Trustee | ||
| By: | /s/ Lynn M. Steiner | |
| Name: Lynn M. Steiner Title: Vice President | ||
Signature page to Amendment to Security Agreement
2
ANNEX 1
FILING DETAILS
| Current Legal Name | Type of Organization (corporation, limited liability company, etc.) | Jurisdiction of Organization | Organizational (if applicable) | Current Mailing Address | Place of Business or Location of Chief | |||||
| Velocity Express Corporation | Corporation | Delaware | 87-0355929 | One Morningside Drive, Westport, CT 06880 | One Morningside Drive, Westport, CT 06880 | |||||
| Velocity Express, Inc. | Corporation | Delaware | 76-0424426 | One Morningside Drive, Westport, CT 06880 | One Morningside Drive, Westport, CT 06880 | |||||
| CD&L Inc. | Corporation | Delaware | 22 ###-###-#### | 80 Wesley Street, South Hackensack, NJ 07606 | 80 Wesley Street, South Hackensack, NJ 07606 | |||||
| VXP Leasing Mid-West, Inc. | Corporation | Delaware | 76-0660846 | One Morningside Drive, Westport, CT 06880 | One Morningside Drive, Westport, CT 06880 | |||||
| VXP Mid-West, Inc. | Corporation | Delaware | 76-0660845 | One Morningside Drive, Westport, CT 06880 | One Morningside Drive, Westport, CT 06880 | |||||
| Velocity Express Leasing, Inc. | Corporation | Delaware | 76-0486733 | One Morningside Drive, Westport, CT 06880 | One Morningside Drive, Westport, CT 06880 | |||||
| Corporate Express Distribution Services, Inc. | Corporation | Michigan | 38-1889687 | One Morningside Drive, Westport, CT 06880 | One Morningside Drive, Westport, CT 06880 | |||||
| Clayton/National Courier System | Corporation | Missouri | 36 ###-###-#### | 3390 Enterprise Drive, Hayward, CA 94545 | 3390 Enterprise Drive, Hayward, CA 94545 | |||||
| Click Messenger Service, Inc. | Corporation | New Jersey | 22 ###-###-#### | 104 Sunfield Avenue, Edison, NJ 08818-6443 | 104 Sunfield Avenue, Edison, NJ ###-###-#### | |||||
| Olympic Courier Systems, Inc. | Corporation | New York | 13 ###-###-#### | 185 Varick Street, New York, NY 10014 | 185 Varick Street, New York, NY 10014 | |||||
| Securities Courier Corporation | Corporation | New York | 22 ###-###-#### | 80 Wesley Street, South Hackensack, NJ 07606 | 80 Wesley Street, South Hackensack, NJ 07606 | |||||
| Silver Star Express, Inc. | Corporation | Florida | 65-0618303 | 3026 North Commerce Parkway, Miramar, FL 33025 | 3026 North Commerce Parkway, Miramar, FL 33025 | |||||
Annex 1 to Security Agreement
ANNEX 2
“NEW DEBTOR” EVENTS
None.
Annex 2 to Security Agreement
ANNEX 3
PLEDGED STOCK
Pledgor Party: VELOCITY EXPRESS CORPORATION
| Issuer | Certificate No(s). | Registered Owner | Shares Authorized/ Outstanding | Number of Shares Pledged | ||||
| Velocity Express, Inc. | 1 | Velocity Express Corporation | 10,000 | 10,000 shares common stock, par value $0.01 per share | ||||
| CD&L, Inc. | 1 | Velocity Express Corporation | 1000/100 | 100 shares common stock, par value $0.004 per share | ||||
| Pledgor Party: VELOCITY EXPRESS, INC. | ||||||||
| Issuer | Certificate No(s). | Registered Owner | Shares Authorized/ Outstanding | Number of Shares Pledged | ||||
| Velocity Express Leasing, Inc. (f/k/a Velocity Express Leasing Southwest, Inc.) | 1 | Velocity Express, Inc. | 1,000 | 1,000 shares common stock, par value $1.00 per share | ||||
| VXP Mid-West, Inc. | 1 | Velocity Express, Inc. | 1,000 | 1,000 shares common stock, par value $0.01 per share | ||||
| Corporate Express Distribution Services, Inc. | 1 | Velocity Express, Inc. | 1,000 | 1,000 shares common stock, par value $1.00 per share | ||||
| USDS Canada Ltd. | A-3 | Velocity Express, Inc. | 100,000 | 65,000 shares Class A Common Stock | ||||
| B-7 | Velocity Express, Inc. | 22,410 | 14,567 shares of Class B Common Stock | |||||
| C-5 | Velocity Express, Inc. | 23,323 | 15,160 shares of Class C Common Stock | |||||
| D-4 | Velocity Express, Inc. | 15,871 | 10,317 shares of Class D Common Stock | |||||
Annex 3 to Security Agreement
Pledgor Party: VXP Mid-West, Inc.
| Issuer | Certificate | Registered Owner | Shares Authorized/ | Number of Shares Pledged | ||||
| VXP Leasing Mid-West, Inc. | 1 | VXP Mid-West, Inc. | 1,000 | 1,000 shares common stock, par value $0.01 per share | ||||
| Pledgor Party: CD&L, Inc | ||||||||
| Issuer | Certificate | Registered Owner | Shares Authorized/ | Number of Shares Pledged | ||||
| Clayton/National Courier Systems | NC-1 | CD&L, Inc. | 55 | 55 shares common stock, no par value | ||||
| Click Messenger Service, Inc. | NC-1 | CD&L, Inc. | 1000/100 | 100 shares common stock, no par value | ||||
| Olympic Courier Systems, Inc. | NC-1 | CD&L, Inc. | 200/100 | 100 shares common stock, no par value | ||||
| Securities Courier Corporation | NC-1 | CD&L, Inc. | 200/100 | 100 shares common stock, no par value | ||||
| Silver Star Express, Inc. | NC-1 | CD&L, Inc. | 50 | 50 shares common stock, no par value | ||||
Annex 3 to Security Agreement
ANNEX 4
LIST OF COPYRIGHTS, COPYRIGHT REGISTRATIONS AND
APPLICATIONS FOR COPYRIGHT REGISTRATIONS
NONE
Annex 4 to Security Agreement
ANNEX 5
LIST OF PATENTS AND PATENT APPLICATIONS
NONE
Annex 5 to Security Agreement
ANNEX 6
LIST OF TRADE NAMES, TRADEMARKS, SERVICES MARKS,
TRADEMARK AND SERVICE MARK REGISTRATIONS AND
APPLICATIONS FOR TRADEMARK AND SERVICE MARK REGISTRATIONS
A. VELOCITY EXPRESS CORPORATION / VELOCITY EXPRESS INC.
Material U.S. Trademark Applications, Non-US Trademark Applications and Non-U.S. Trademark Registrations
NONE
Material U.S. Trademark Registrations
| Owner | Trademark | Registration No. | ||
| Velocity Express Corporation | Relentless Reliability | 2765219 | ||
| Velocity Express Inc. | VXP | 2660102 | ||
| Velocity Express Inc. | Velocity | 2817675 | ||
| Velocity Express Inc. | Velocity Express | 2684089 |
B. CD&L, INC.
Material Non-US Trademark Applications and Non-US Trademark Registrations
NONE
Material U.S. Trademark Registrations
| Owner | Trademark | Registration No. | ||
| CD&L, Inc. | CD&L and Design | 2534060 | ||
| CD&L, Inc. | CD&L | 2534061 |
Material U.S. Trademark Applications
| Applicant | Trademark | Date | Serial No. | Status | ||||
| CD&L, Inc. | The Total Package in Delivery | March 20, 2006 | 78-582577 | Pending |
Annex 6 to Security Agreement
ANNEX 7
LIST OF MATERIAL LICENSES AND OTHER USER AGREEMENTS
NONE
PROCEEDINGS / CLAIMS
On November 30, 2000, Velocity Express, Inc. entered into a Settlement Agreement with Velocity Courier, Inc. in connection with the parties’ use of certain “Velocity” trademarks. Pursuant to the terms of the settlement, Velocity Express, Inc. is permitted to use the Velocity trademarks anywhere in the United States except the City of Chicago and the territory that extends 50 miles from the Chicago city limits, but within the State of Illinois. The Settlement Agreement required Velocity Express, Inc. to amend its trademark applications to reflect this exclusion. The Company anticipates that it will initiate concurrent use proceedings in order to clarify territorial rights with respect to two “Velocity” trademark registrations (Velocity and Velocity Express).
Annex 7 to Security Agreement
ANNEX 8
PLEDGED DEBT
NONE
Annex 8 to Security Agreement
