EXHIBIT 10.39
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NOTE PURCHASE AGREEMENT
Dated as of April 7, 2006
between
TAL ADVANTAGE I LLC
as Issuer
TAL INTERNATIONAL CONTAINER CORPORATION
as Manager
FORTIS SECURITIES LLC
and
CREDIT SUISSE SECURITIES (USA) LLC
as Initial Purchasers
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(TAL ADVANTAGE I LLC -
SERIES 2006-1, VARIABLE RATE SECURED NOTES)
TABLE OF CONTENTS
PAGE
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SECTION 1. Definitions................................................ 2
SECTION 2. The Notes.................................................. 5
SECTION 3. Representations and Warranties of the Issuer............... 6
SECTION 3A. Representations and Warranties of the Manager.............. 9
SECTION 4. Purchase, Sale and Delivery of the Notes................... 9
SECTION 5. Offering by the Initial Purchasers......................... 10
SECTION 6. Covenants of the Issuer.................................... 10
SECTION 7. Expenses; Fees............................................. 12
SECTION 8. Conditions of each Initial Purchaser's Obligation.......... 13
SECTION 9. Representations, Warranties and Covenants of the Initial
Purchasers.............................................. 16
SECTION 10. Indemnification and Contribution........................... 18
SECTION 11. Survival; Scope of Liability............................... 21
SECTION 12. Termination................................................ 22
SECTION 13. Supplied Information....................................... 22
SECTION 14. Notices.................................................... 22
SECTION 15. Successors................................................. 23
SECTION 16. Counterparts............................................... 23
SECTION 17. Governing Law.............................................. 23
SECTION 18. Submission to Jurisdiction................................. 23
SECTION 19. Waiver of Jury Trial....................................... 24
SECTION 20. Negotiations............................................... 24
SECTION 21. Amendments, Etc............................................ 24
SECTION 22. Severability of Provisions................................. 24
SECTION 23. No Waiver; Cumulative Remedies............................. 24
SECTION 24. Integration................................................ 25
SECTION 25. Nonpetition Covenant....................................... 25
i
NOTE PURCHASE AGREEMENT (as amended, modified and supplemented from
time to time in accordance with its terms, the "Agreement"), dated as of April
7, 2006, by and among:
(1) TAL ADVANTAGE I LLC, a Delaware limited liability company, as
issuer under the Indenture (defined below) and the Series 2006-1 Supplement
(defined below) (the "Issuer");
(2) TAL INTERNATIONAL CONTAINER CORPORATION, a Delaware corporation
(the "Manager");
(3) FORTIS SECURITIES LLC, a Delaware limited liability company, as an
initial purchaser ("Fortis"); and
(4) CREDIT SUISSE SECURITIES (USA) LLC, a Delaware limited liability
company, as an initial purchaser ("Credit Suisse" and, together with Fortis, the
"Initial Purchasers" and each an "Initial Purchaser").
NOW THEREFORE, in consideration of the premises and mutual covenants
herein contained, the parties hereto agree as follows:
SECTION 1. Definitions.
(a) Certain capitalized terms used throughout this Agreement are defined
above or in this Section 1(a). In addition, capitalized terms used but not
defined herein have the meanings given to such terms in Appendix A to the
Amended and Restated Indenture, dated as of April 12, 2006 (as amended,
restated, supplemented or otherwise modified from time to time in accordance
with its terms, the "Indenture"), by and between the Issuer and U.S. Bank
National Association, as indenture trustee (the "Indenture Trustee"), or, if not
defined therein, as defined in the Series 2006-1 Supplement, dated as of April
12, 2006, by and between the Issuer and the Indenture Trustee (as amended,
restated, supplemented or otherwise modified from time to time in accordance
with its terms, the "Series 2006-1 Supplement"), issued pursuant to the terms of
the Indenture.
(b) As used in this Agreement and its exhibits, 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).
Act: The Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder.
Administrative Agent: Fortis Capital Corp., a Connecticut corporation.
Authorized Signatories: Any Person designated by written notice
delivered to the Indenture Trustee and Administrative Agent as authorized to
execute documents and instruments on behalf of a Person.
Closing Date: This term has the meaning set forth in Section 4 hereof.
Code: Internal Revenue Code of 1986, as amended.
Commission: The United States Securities and Exchange Commission.
Container: This term has the meaning set forth in Appendix A to the
Indenture.
Definitive Note: This term has the meaning set forth in Appendix A to
the Indenture.
Depositary: The Depository Trust Company, until a successor Depositary
shall have become such pursuant to the applicable provisions of the Indenture,
and thereafter "Depositary" shall mean or include each Person who is then a
Depositary under the Indenture.
Early Amortization Event: This term has the meaning set forth in
Section 1201 of the Indenture.
ERISA: Employee Retirement Income Security Act of 1974, as amended.
Event of Default: This term has the meaning set forth in Section 801
of the Indenture.
Exchange Act: The Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated thereunder.
FGIC: Financial Guaranty Insurance Company, a New York stock insurance
company, and its successors and assigns.
Global Notes: This term has the meaning set forth in Appendix A to the
Indenture.
Indenture: This term shall have the meaning set forth in Section 1(a)
hereof.
Indenture Trustee: This term shall have the meaning set forth in
Section 1(a) hereof.
Initial Purchaser Information: This term has the meaning set forth in
Section 13 hereof.
Initial Purchasers: This term has the meaning set forth in the
preamble hereto.
Institutional Accredited Investors: This term has the meaning set
forth in Section 2(f) hereof.
Investment Company Act: The Investment Company Act of 1940, as
amended, and the rules and regulations promulgated thereunder.
Loss: This term has the meaning set forth in Section 10(a) hereof.
Manager Report: This term has the meaning set forth in Appendix A to
the Indenture.
Moody's: ▇▇▇▇▇'▇ Investors Service, Inc., and any successor thereto.
Note Owners: With respect to a Book-Entry Note, the Person who is the
beneficial owner of such Book-Entry Note, as reflected on the books of (i) the
Depositary (a direct participant) or (ii) a Person maintaining an account with
the Depositary (an indirect participant), in each case in accordance with the
rules of the Depositary.
Noteholder: The Person in whose name a Note is registered in the Note
Register maintained by the Indenture Trustee pursuant to Section 205 of the
Indenture.
Notes: The Series 2006-1, Variable Rate Secured Notes issued by the
Issuer pursuant to the terms of the Series 2006-1 Supplement.
Offering Memorandum: This term has the meaning set forth in Section
2(d) hereof.
Person: An individual, a partnership, a limited liability company, a
corporation, a joint venture, an unincorporated association, a joint-stock
company, a trust, or other entity or a Governmental Authority.
Policy: The financial guaranty insurance policy, dated April 12, 2006,
issued by FGIC, as Series Enhancer.
Preliminary Offering Memorandum: This term has the meaning set forth
in Section 2(d) hereof.
Proceeding: This term has the meaning set forth in Section 10(a)
hereof.
Qualified Institutional Buyer: This term has the meaning set forth in
Rule 144A.
Rating Agency: Each of S&P, Moody's and any other rating agency that
has been requested to issue a rating with respect to the Notes.
Regulation S: This term has the meaning set forth in Section 2(f)
hereof.
Related Assets: This term has the meaning set forth in Appendix A to
the Indenture.
Rule 144A: Rule 144A under the Act, as such rule may be amended from
time to time.
S&P: Standard & Poor's Ratings Services, a division of The ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc., and any successor thereto.
Series 2005-1 Notes: The Series 2005-1, Variable Rate Secured Notes
issued by the Issuer pursuant to the terms of the Amended and Restated Series
2005-1 Supplement, dated as of April 12, 2006, between the Issuer and the
Indenture Trustee.
Series 2006-1 Supplement: This term has the meaning set forth in
Section 1(a) hereof.
TAL Fleet: The Manager's fleet of Managed Containers.
TAL Person: This term has the meaning set forth in Section 8(f)
hereof.
UCC: The Uniform Commercial Code as in effect in the applicable
jurisdiction.
United States: The United States of America.
(c) All accounting terms not specifically defined herein shall be construed
in accordance with GAAP. All terms used in the UCC in effect in the State of New
York and not specifically defined herein, are used herein as defined therein.
(d) Unless otherwise stated in this Agreement, in the computation of a
period of time from a specified date to a later specified date, the word "from"
means "from and including" and the words "to" and "until" each mean "to but
excluding".
SECTION 2. The Notes. (a) Subject to the terms and conditions herein
contained, the Issuer proposes to sell to the Initial Purchasers $680,000,000
aggregate principal amount of the Notes, as more fully described in Section 4.
The terms of the Notes are more fully set forth in the Offering Memorandum.
(b) The Notes are to be issued under the Series 2006-1 Supplement issued
pursuant to the Indenture.
(c) The Notes shall be offered and sold to the Initial Purchasers without
being registered under the Act, in reliance on exemptions therefrom.
(d) In connection with the sale of the Notes, the Issuer has prepared a
preliminary offering memorandum dated April 3, 2006 (the "Preliminary Offering
Memorandum") and a final Offering Memorandum dated April 7, 2006 (the "Offering
Memorandum"), which shall each be in form and substance satisfactory to the
Initial Purchasers. All references to the Preliminary Offering Memorandum or the
Offering Memorandum shall be deemed to include all attachments thereto.
(e) The Issuer hereby expressly authorizes the Initial Purchasers to use
the Preliminary Offering Memorandum and the Offering Memorandum, as they may at
any time have been or may be amended or supplemented by the Issuer, in
connection with the offer and sale of the Notes. The Issuer hereby ratifies and
affirms all distributions of the Preliminary Offering Memorandum by the Initial
Purchasers prior to the date of this Agreement and authorizes the Initial
Purchasers to distribute the Preliminary Offering Memorandum and the Offering
Memorandum in connection with the offer and sale of the Notes, provided that
such
distributions were made only to Persons reasonably believed by the Initial
Purchasers to be (i) Qualified Institutional Buyers, (ii) Institutional
Accredited Investors, or (iii) certain Persons to whom the offer and sale of the
Notes may be made without registration under the Act in reliance upon Regulation
S. The Issuer also hereby expressly authorizes the Initial Purchasers to
distribute to Persons with the aforementioned qualifications copies of the
Series 2006-1 Transaction Documents and of opinion letters and other documents
delivered in connection with the execution of the Series 2006-1 Transaction
Documents, in connection with the offer and sale of the Notes.
(f) The Issuer understands that the Initial Purchasers propose to make an
offering of the Notes, as soon as they deem advisable after this Agreement has
been executed and delivered, on the terms and in the manner set forth in the
Offering Memorandum to Persons that the Initial Purchasers reasonably believe to
be (i) Qualified Institutional Buyers, in transactions under Rule 144A, (ii)
institutional "accredited investors" ("Institutional Accredited Investors"), as
defined in Rule 501(a)(1), (2), (3) or (7) under Regulation D of the Act in
private sales exempt from registration under the Act, or (iii) certain Persons
to whom the offer and sale of the Notes may be made without registration under
the Act in reliance upon Regulation S under the Act ("Regulation S"). Any Notes
sold to Institutional Accredited Investors shall be represented by one or more
Definitive Notes.
SECTION 3. Representations and Warranties of the Issuer. The Issuer
represents and warrants to the Initial Purchasers that as of the date hereof and
as of the Closing Date:
(a) None of the Preliminary Offering Memorandum, the Offering Memorandum or
any amendment thereof or supplement thereto as of the respective dates thereof,
contained or contains an untrue statement of a material fact or omitted or omits
(except in the case of the Preliminary Offering Memorandum, for pricing terms
and other financial or similar terms intentionally left blank) to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, except that the
representations and warranties set forth in this subsection do not apply to
statements or omissions made in the "Structuring Assumptions" section or
statements or omissions made in reliance upon and in conformity with the Initial
Purchaser Information or any written information provided to the Issuer by or on
behalf of FGIC for inclusion therein, such information being the information in
the Preliminary Offering Memorandum and the Offering Memorandum under the
heading "The Series Enhancer" and the information in Annex F. The statements
made in the "Structuring Assumptions" section of the Offering Memorandum are the
good faith estimate of the Issuer, based on reasonable assumptions.
(b) The statements in the Offering Memorandum under the captions
"Description of the Management Agreement," "Description of the Contribution and
Sale Agreement," "Description of the Series 2006-1 Notes and the Indenture",
"Description of the Policy" and "Description of the Administration Agreement,"
insofar as they purport to constitute a summary of the principal terms of the
Notes and the Series 2006-1 Transaction Documents conform in all material
respects to the terms of the Notes and the Series 2006-1 Transaction Documents.
(c) The Issuer is a limited liability company duly organized, validly
existing and in good standing under the laws of Delaware. The Issuer is duly
qualified to do business in each
jurisdiction in which its ownership or lease of property or the conduct of its
business requires such qualification, except where the failure to be so
qualified would not reasonably be expected to have a material adverse effect
upon the Issuer or the ability of the Issuer to perform any of its obligations
under any Series 2006-1 Transaction Document to which it is a party.
(d) The Issuer has all necessary limited liability company power and
authority to execute and deliver the Notes. Each Note has been duly and validly
authorized by the Issuer and, from and after the date on which such Note is
executed by the Issuer and authenticated by the Indenture Trustee in accordance
with the terms of the Indenture and the Series 2006-1 Supplement and delivered
to and paid for by the Initial Purchasers in accordance with the terms of this
Agreement, shall be validly issued and outstanding and shall constitute a valid
and legally binding obligation of the Issuer enforceable against the Issuer in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights generally and by general principles of equity,
regardless of whether enforceability is considered in a proceeding in equity or
at law.
(e) The Issuer has all necessary limited liability company power and
authority to execute and deliver this Agreement and the other Series 2006-1
Transaction Documents to which it is a party; and the Issuer is and will
continue to be authorized to perform its obligations under the Indenture, this
Agreement and the other Series 2006-1 Transaction Documents. The execution,
delivery and performance by the Issuer of this Agreement and the other Series
2006-1 Transaction Documents to which it is a party and the transactions
thereunder do not require any consent or approval of any Governmental Authority,
stockholder or any other Person, other than any such consents or approvals that
have been obtained on or prior to the 2006-1 Closing Date or which the failure
to obtain would not reasonably be expected to result in a Material Adverse
Change.
(f) This Agreement is, and each Series 2006-1 Transaction Document to which
the Issuer is a party, when duly executed and delivered by each of the parties
thereto, will be, the legal, valid and binding obligations of the Issuer,
enforceable against the Issuer in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency or other similar laws of
general application affecting the enforcement of creditors' rights or by general
principles of equity limiting the availability of equitable remedies.
(g) This Agreement has been duly and validly executed and delivered by the
Issuer.
(h) The execution, delivery and performance of this Agreement and each of
the other Series 2006-1 Transaction Documents by the Issuer and the execution,
delivery and payment of the Notes by the Issuer will not: (a) contravene any
provision of the Issuer's certificate of formation or limited liability company
agreement; or (b) assuming the accuracy of the representations and warranties of
the other parties hereto or thereto and the performance by those parties of
their agreements and obligations herein or therein, contravene, conflict with or
violate any Applicable Law or regulation, or any order, writ, judgment,
injunction, decree, determination or award of any Governmental Authority having
jurisdiction over the Issuer; or (c) violate or result in the breach of, or
constitute a default under the Indenture, the other Series 2006-1 Transaction
Documents, any other indenture or other loan or credit agreement, or other
agreement or instrument to which the Issuer is a party or by which the Issuer,
or its property and
assets may be bound or affected; except for, in the cases of clauses (a), (b) or
(c) above, any such contravention, conflict, violation, breach or default that
would not, individually or in the aggregate, reasonably be expected to result in
a Material Adverse Change.
(i) Except as disclosed in the Offering Memorandum, there is no action,
suit, proceeding or investigation pending or, to the best knowledge of the
Issuer, threatened against it before any court, regulatory body, arbitrator,
administrative agency or other tribunal or governmental instrumentality (i) that
asserts the invalidity of this Agreement or any other Series 2006-1 Transaction
Document, or (ii) if determined adversely to the Issuer would individually or in
the aggregate have a material and adverse effect on the ability of the Issuer to
perform any of its obligations under the Series 2006-1 Transaction Documents to
which it is a party.
(j) The Issuer does not own any "margin security", as that term is defined
in Regulation U of the Federal Reserve Board. None of the proceeds to the Issuer
of the Notes will be used, directly or indirectly, for the purpose of purchasing
or carrying any margin security, for the purpose of reducing or retiring any
Indebtedness which was originally incurred to purchase or carry any margin
security or for any other purpose which might cause any of the loans under the
Series 2006-1 Supplement to be considered a "purpose credit" within the meaning
of Regulations T, U and X. The Issuer will not take or permit any agent acting
on its behalf to take any action which might cause the Notes or any document or
instrument delivered by the Issuer pursuant to the Series 2006-1 Supplement to
violate any regulation of the Federal Reserve Board.
(k) The Issuer is not: (a) a "public utility company" or a "holding
company," or an "affiliate" or a "subsidiary company" of a "holding company," or
an "affiliate" of such a "subsidiary company," as such terms are defined in the
Public Utility Holding Company Act of 1935, as amended, or (b) an "investment
company," or an "affiliated person" of, or a "promoter" or "principal
underwriter" for, an "investment company," as such terms are defined in the
Investment Company Act. The issuance of the Notes hereunder and the application
of the proceeds thereof by the Issuer and the performance of the transactions
contemplated by the Indenture, the Series 2006-1 Supplement and the other Series
2006-1 Transaction Documents will not violate any provision of the Investment
Company Act or the Public Utility Holding Company Act, or any rule, regulation
or order issued by the Securities and Exchange Commission thereunder.
(l) None of the Issuer, any of its Affiliates or any Person acting on its
or their behalf has engaged in any directed selling efforts (as that term is
defined in Regulation S) with respect to any Notes (provided that no
representation is made as to the actions of the Initial Purchasers or any Person
acting on their respective behalf). The Issuer, its Affiliates and any Person
acting on its or their behalf (provided that no representation is made as to the
actions of the Initial Purchasers or any Person acting on their respective
behalf) have complied with the offering restrictions and the requirements of
Regulation S in connection with any offering of Notes outside the United States.
(m) Assuming the representations and warranties of the Initial Purchasers
in Section 9 are true and assuming the compliance by the Initial Purchasers of
their respective covenants and agreements set forth herein, it is not necessary
to register any of the Notes under the Act or to qualify the Indenture under the
Trust Indenture Act of 1939, as amended, in connection with the
initial sale of the Notes to the Initial Purchasers in the manner contemplated
by this Agreement or for the initial resale of the Notes by the Initial
Purchasers in the manner contemplated by this Agreement.
(n) On the date hereof and the Closing Date, (i) each of the
representations and warranties of the Issuer that is set forth in this
Agreement, the Indenture or the other Series 2006-1 Transaction Documents is and
shall be true and correct in all material respects (except to the extent that
such representations or warranties specifically relate to an earlier date), and
(ii) the Issuer is not and shall not be in breach, in any material respect, of
any covenant or agreement set forth in this Agreement, the Indenture or any
other Series 2006-1 Transaction Document.
(o) No Event of Default or Early Amortization Event has occurred and is
continuing. No event or condition that with notice or the passage of time (or
both) could reasonably be expected to constitute an Event of Default or Early
Amortization Event has occurred or is continuing.
(p) The Notes meet the eligibility requirements of Rule 144A(d)(3) of the
Act.
(q) Neither the Issuer nor any of its Affiliates has purchased, or is
purchasing, any Notes.
SECTION 3A. Representations and Warranties of the Manager. The Manager
represents and warrants to the Initial Purchasers that as of the date hereof and
as of the Closing Date: (i) each of the representations and warranties of the
Manager that is set forth in the Series 2006-1 Transaction Documents to which it
is a party is and shall be true and correct in all material respects (unless
such representation or warranty specifically relates to an earlier date in which
case it will be true and correct in all material respects as of such earlier
date), and (ii) the Manager is not and shall not be in breach, in any material
respect, of any of its covenants or agreements set forth in this Agreement or
any other Series 2006-1 Transaction Document to which it is a party.
SECTION 4. Purchase, Sale and Delivery of the Notes. On the basis of the
representations, warranties, agreements and covenants herein contained and
subject to the terms and conditions herein set forth, Issuer agrees to sell to
the Initial Purchasers, and each Initial Purchaser agrees to purchase from the
Issuer, on the Closing Date, the principal amount of the Notes set forth on
Schedule I hereto opposite the name of such respective Initial Purchaser. The
Notes are to be purchased by the Initial Purchasers at a purchase price equal to
100% of the aggregate principal amount thereof. Except for any Notes issued to
Institutional Accredited Investors which Notes shall be issued as Definitive
Notes, the Notes shall be Book-Entry Notes, and shall be registered in the name
of Cede & Co., as nominee of The Depository Trust Company. The delivery of and
payment for the Notes shall be made at the offices of ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ & Maw
LLP, at 10:00 a.m., New York time on April 12, 2006 or at such other place, time
or date as the Initial Purchasers and the Issuer may agree upon, such time and
date of delivery against payment being herein referred to as the "Closing Date".
The Issuer shall make copies of the Notes available for checking by the Initial
Purchasers at the offices of the Initial Purchasers at least 24 hours prior to
the Closing Date. The purchase price of the Notes paid by the Initial Purchasers
shall be remitted by wire transfer to the Indenture Trustee.
SECTION 5. Offering by the Initial Purchasers.
(a) Each Initial Purchaser proposes to make an offering of the Notes, upon
the terms set forth in the Offering Memorandum, as soon as practicable after
this Agreement is entered into and as in its judgment is advisable. During the
period from the date of this Agreement until the earlier of (i) the date on
which the Initial Purchasers shall have completed the initial resale of all of
the Notes and (ii) 90 days after the date of this Agreement, the Issuer agrees
to reasonably assist the Initial Purchasers in any marketing of the Notes and
(promptly upon request) to provide all information reasonably deemed necessary
by the Initial Purchasers in such marketing. In addition, during such period the
Issuer shall use commercially reasonable efforts to make appropriate officers
and representatives of the Issuer available to participate in information
meetings for potential investors at such times and places as the Initial
Purchasers may reasonably request.
(b) The Issuer acknowledges and agrees that the Initial Purchasers are
acting solely in the capacity of an arm's length contractual counterparty to the
Issuer with respect to the offering of the Notes contemplated hereby (including
in connection with determining the terms of the offering) and not as a financial
advisor or a fiduciary to, or an agent of, the Issuer or any other Person.
Additionally, the Initial Purchasers are not advising the Issuer or any other
Person as to any legal, tax, investment, accounting or regulatory matters in any
jurisdiction. The Issuer shall consult with its own advisors concerning such
matters and shall be responsible for making its own independent investigation
and appraisal of the transactions contemplated hereby, and the Initial
Purchasers shall have no responsibility or liability to the Issuer with respect
thereto. Any review by the Initial Purchasers of the Issuer, the transactions
contemplated hereby or other matters relating to such transactions will be
performed solely for the benefit of the Initial Purchasers and shall not be on
behalf of the Issuer.
(c) The Issuer acknowledges and agrees that:
(i) the Issuer has been advised that the Initial Purchasers and
their Affiliates are engaged in a broad range of transactions which may
involve interests that differ from those of the Issuer and that the Initial
Purchasers have no obligation to disclose such interests and transactions
to the Issuer by virtue of any fiduciary, advisory or agency relationship;
and
(ii) the Issuer waives, to the fullest extent permitted by law,
any claims it may have against the Initial Purchasers for breach of
fiduciary duty or alleged breach of fiduciary duty and agree that the
Initial Purchasers shall have no liability (whether direct or indirect) to
the Issuer in respect of such a fiduciary duty claim or to any Person
asserting a fiduciary duty claim on behalf of or in right of the Issuer,
including stockholders, employees or creditors of the Issuer.
SECTION 6. Covenants of the Issuer. The Issuer covenants and agrees with
the Initial Purchasers that:
(a) The Issuer shall not amend or supplement the Offering Memorandum or any
amendment thereof or supplement thereto unless the Initial Purchasers previously
shall have
been advised thereof and been furnished a copy thereof prior to the proposed
amendment or supplement and shall not have reasonably objected in writing within
five (5) Business Days after being furnished a copy thereof. If, at any time
during the period beginning on the date hereof and ending on the earlier of (i)
the date on which Initial Purchasers shall have completed the initial resale of
all of the Notes and (ii) 90 days after the date of this Agreement, any event
occurs as a result of which the Offering Memorandum as then amended or
supplemented would include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading, or if
it is necessary at any such time to amend or supplement the Offering Memorandum
to comply with any Applicable Law, the Issuer shall promptly notify the Initial
Purchasers thereof and shall prepare and deliver to the Initial Purchasers, at
the expense of the Issuer, an amendment of or supplement to the Offering
Memorandum which will correct such statement or omission or effect such
compliance.
(b) The Issuer will use its reasonable efforts to arrange for qualification
or exemption of the Notes for sale under the securities or "Blue Sky" laws of
any state that the Initial Purchasers shall reasonably request and shall pay all
reasonable expenses (including reasonable fees and disbursements of counsel) in
connection with the qualification or exemption and in connection with the
determination of the eligibility of the Notes for investment under the laws of
the jurisdictions that the Initial Purchasers may reasonably designate and will
continue such qualifications or exemptions in effect in such jurisdictions until
the earlier of (x) the date on which Initial Purchasers shall have completed the
initial resale of all of the Notes and (y) 90 days after the date of this
Agreement, provided that the Issuer will not be required to (i) qualify to do
business in any jurisdiction it is not now so qualified, (ii) take any action
that would subject it to service of process in suits (other than those suits
arising out of the offering or sale of the Notes) in any jurisdiction where it
is not now so subject or (iii) subject it to taxation in excess of a nominal
dollar amount in any such jurisdiction where it is not now so subject.
(c) The Issuer shall, without charge, provide to the Initial Purchasers as
many copies of the Preliminary Offering Memorandum and the Offering Memorandum
and any amendment thereof or supplement thereto as the Initial Purchasers may
reasonably request.
(d) The Issuer (or any of its "affiliates" as defined in Regulation D under
the Act), directly or through any agent, shall not sell, offer for sale or
solicit offers to buy or otherwise negotiate in respect of any "security" (as
defined in the Act) that is integrated with the sale of the Notes hereunder in a
manner that would cause the exemption afforded by Section 4(2) of the Act or the
safe harbor of Regulation S thereunder to cease to be applicable to the offer
and sale of the Notes hereunder.
(e) Neither the Issuer nor any of its Affiliates shall contact or solicit
potential investors to purchase any Note, engage any Person to assist in the
placement or sale of the Notes or sell any Notes to any Person, in the case of
each of the foregoing, other than the Initial Purchasers except as consented to
in writing by the Initial Purchasers.
(f) The Issuer shall cause the Notes to be eligible for clearance and
settlement through The Depository Trust Company.
(g) Neither the Issuer nor any of its Affiliates shall sell or otherwise
transfer any Notes that have been acquired by any of them.
(h) Except with respect to the Series 2005-1 Notes and the Notes to be
issued on the Closing Date, during the period commencing on the date hereof and
ending on the thirtieth (30th) day after the Closing Date, the Issuer shall not
issue any U.S. dollar denominated debt securities similar to the Notes which are
either placed or syndicated by the Issuer or any of its Affiliates in the
international or U.S. capital markets, directly or on their behalf, in any
manner which could in the sole judgment of the Initial Purchasers have a
detrimental effect on the successful offering, sale or resale of the Notes
unless mutually agreed to in writing by the Initial Purchasers and the Issuer.
(i) During the period of two years after the Closing Date, the Issuer will
not be or become an open-end investment company, unit investment trust or
face-amount certificate company that is or is required to be registered under
Section 8 of the Investment Company Act.
(j) If the rating assigned to the Notes is dependent upon the delivery to
the Rating Agencies of the executed Series 2006-1 Transaction Documents, the
Issuer shall deliver such documents to the Rating Agencies within thirty (30)
days after the Closing Date.
SECTION 7. Expenses; Fees. (a) Each of the Manager and the Issuer jointly
and severally agrees to pay all reasonable and documented costs and expenses
incident to the purchase and resale of the Notes by the Initial Purchasers and
the transactions contemplated by this Agreement and the Series 2006-1
Transaction Documents, whether or not the transactions contemplated herein or
therein are consummated or this Agreement is terminated pursuant to Section 12,
including all reasonable and documented costs and expenses incident to (i) the
preparation, printing, word processing, distribution or other production of
documents with respect to such transactions, including any costs in respect of
the Series 2006-1 Transaction Documents, the Preliminary Offering Memorandum and
the Offering Memorandum and any amendment thereof or supplement thereto, and any
"Blue Sky" memorandum, (ii) all arrangements relating to the delivery to the
Initial Purchasers of copies of the foregoing documents, (iii) the reasonable
and documented fees and disbursements of counsel, accountants and other
consultants, experts and advisors retained by the Initial Purchasers or any of
their Affiliates (provided that the fees of counsel to the Initial Purchasers
shall not exceed $200,000), (iv) preparation, issuance, transfer and delivery of
the Notes, (v) the Indenture Trustee's reasonable and documented fees and
expenses, including reasonable and documented expenses of counsel retained by
the Indenture Trustee, (vi) the qualification of the Notes under state
securities and "Blue Sky" laws (including filing fees and fees) to the extent
such qualification is required by this Agreement, (vi) reasonable and documented
expenses of the Initial Purchasers in connection with any meetings with
prospective investors in the Notes, (vii) all reasonable and documented expenses
and fees incurred in connection with causing the Notes to be eligible for
clearance and settlement through The Depository Trust Company, (viii) fees
charged by S&P for the rating of the Notes and (ix) fees charged by ▇▇▇▇▇'▇ for
the rating of the Notes. The Issuer acknowledges that the Initial Purchasers are
not responsible for any of the fees, costs and expenses contemplated by this
subsection.
(b) Each of the Manager and the Issuer jointly and severally agrees to pay
or reimburse, on a timely basis, each Initial Purchaser for all reasonable and
documented out of pocket fees, costs and expenses incurred by such Initial
Purchaser or third parties selected by such Initial Purchaser (which may include
an Affiliate of such Initial Purchaser) in connection with the conduct of a due
diligence examination of the Containers and the Related Transferred Assets, and
of the activities of the Issuer and any of its Affiliates with respect to the
Managed Containers and the Related Assets whether or not the transactions
contemplated herein are consummated. The Issuer agrees that these fees may
include reasonable and documented fees and expenses incurred in connection with
time spent at the offices of the Issuer, the Manager, or any of their Affiliates
and in preparation of reports relating thereto.
(c) The amounts payable under each clause of this section shall be
cumulative and payment of amounts referred to in one clause shall not reduce
amounts payable under another clause.
SECTION 8. Conditions of each Initial Purchaser's Obligation. The
obligations of each Initial Purchaser to purchase and pay for Notes in an amount
equal to the principal amount set forth on Schedule I hereto opposite its name
shall, in its sole discretion, be subject to the following conditions:
(a) The Issuer shall have (i) caused all Uniform Commercial Code financing
statements (or documents of similar import) required to perfect the first
priority security interest of the Indenture Trustee pursuant to the Indenture in
the Collateral and related items, in each case, to be duly filed in the manner
required by the laws of each appropriate jurisdiction.
(b) All corporate and other proceedings in connection with the transactions
contemplated hereby and by the Series 2006-1 Transaction Documents and all
documents and Notes incident thereto shall be reasonably satisfactory in form
and substance to the Initial Purchasers and their counsel, and each Initial
Purchaser shall have received any other documents incident to the transactions
contemplated hereby and by the Series 2006-1 Transaction Documents that such
Initial Purchaser or its counsel shall reasonably request. Each Initial
Purchaser or its counsel shall have received on the Closing Date certified
copies of all documents evidencing corporate or other organizational action
taken by the Issuer, the Manager and the Indenture Trustee to approve the
execution and delivery of this Agreement and the Series 2006-1 Transaction
Documents to which they are a party and the consummation of the transactions
contemplated hereby and thereby.
(c) Immediately prior to the sale of the Notes to the Initial Purchasers,
the Notes shall have been executed by the Issuer and authenticated by or on
behalf of the Indenture Trustee, and this Agreement and each of the Series
2006-1 Transaction Documents that are to be executed and delivered on or prior
to the Closing Date shall have been executed and delivered. The Initial
Purchasers and the Indenture Trustee shall have received on the Closing Date a
fully executed counterpart original and any required conformed copies of all
Series 2006-1 Transaction Documents delivered on or prior to the Closing Date,
and the Indenture Trustee shall have received the Notes.
(d) Each Initial Purchaser or its counsel shall have received on the
Closing Date signature and incumbency certificates executed by Authorized
Signatories of the Issuer and the Indenture Trustee certifying the identities
and signatures of those officers who executed each of this Agreement and the
other Series 2006-1 Transaction Documents delivered in connection with Series
2006-1 to which the Issuer or the Indenture Trustee, as the case may be, is a
party.
(e) The Notes shall have been rated "AAA" by S&P and "Aaa" by ▇▇▇▇▇'▇, all
of such ratings shall be in full force and effect and the Initial Purchasers
shall have received letters from such Rating Agencies dated on or before the
Closing Date to such effect.
(f) Subsequent to the execution and delivery of this Agreement, there shall
not have occurred (i) any material adverse change, or any development involving
a prospective material adverse change, in the condition (financial or otherwise)
or in the business, properties or operations of the Issuer or the Manager
(collectively, a "TAL Person"), (ii) a material suspension or material
limitation of trading in securities generally on the New York Stock Exchange, or
the establishment of minimum prices on the New York Stock Exchange, (iii) a
general moratorium on commercial banking activities declared by any state of the
United States or United States authorities, (iv) any material outbreak or
material escalation of hostilities, insurrection or armed conflict in which the
United States of America is involved, any declaration of war by Congress or any
other national or international calamity or emergency that in the sole judgment
of the Initial Purchasers makes it impractical or inadvisable to purchase the
Notes or to proceed with the offering, sale, resale or delivery of the Notes, or
(v) any material adverse change in financial, political or economic conditions
that in the sole judgment of the Initial Purchasers makes it impractical or
inadvisable to purchase the Notes or to proceed with the offering, sale, resale
or delivery of the Notes.
(g) On the Closing Date, the Initial Purchasers shall have received
opinions, dated the Closing Date, addressed to the Initial Purchasers and in
form and substance reasonably satisfactory to its counsel, of (i) Mayer, Brown,
▇▇▇▇ and Maw LLP, counsel to the Issuer and the Manager, as to (A) perfection of
the Indenture Trustee's interest in the Collateral and other UCC matters, (B)
"true sale", substantive consolidation, (C) corporate, tax and other matters,
and (D) securities laws matters; (ii) internal counsel of the Manager as to
certain matters relating to the Manager; (iii) counsel to the Indenture Trustee,
as to certain matters relating to the Indenture Trustee; (iv) counsel to FGIC,
as to the due organization of FGIC and the enforceability of the Policy; and (v)
such opinion letters, if any, as shall be delivered to the Rating Agencies with
respect to matters not addressed in clauses (i) through (iv) above. In addition
to the matters set forth above, the opinion letter of Mayer, Brown, ▇▇▇▇ and Maw
LLP shall also include a statement to the effect that, during the preparation of
the Offering Memorandum, such counsel has participated in conferences with
officers and other representatives of the independent public accountants for the
Issuer, representatives of the Initial Purchasers and counsel for the Initial
Purchasers, at which conferences the content of the Offering Memorandum and
related matters were discussed. Based upon such participation but without
independent review or verification, and without passing upon, and without
assuming responsibility for, the accuracy, completeness or fairness of the
statements contained in the Offering Memorandum, no facts have come to such
counsel's attention which leads it to believe that, at the time the Offering
Memorandum (except as to financial statements and related notes, structuring
assumptions, financial and accounting data and supported schedules included
therein or omitted therefrom, as to which such counsel
need express no opinion) contained any untrue statement of material fact or
omitted to state any material fact required to be stated therein or necessary to
make the statements therein (in light of the circumstances in which they were
made) not misleading.
(h) The Initial Purchasers shall have received a letter from an Independent
Accountant dated the date of the Preliminary Offering Memorandum (with respect
to the Preliminary Offering Memorandum) and the Closing Date (with respect to
the Offering Memorandum), in form and substance satisfactory to the Initial
Purchasers and their counsel, containing statements and information of the type
ordinarily included in accountants' "comfort letters" with respect to
information contained in the Preliminary Offering Memorandum and the Offering
Memorandum.
(i) The representations and warranties of the Issuer and the Manager
contained in this Agreement and in the Series 2006-1 Transaction Documents to
which it is a party shall be true and correct in all material respects as of the
date hereof and as of the Closing Date; each of the Issuer and the Manager shall
have performed in all material respects all covenants and agreements and
satisfied in all material respects all conditions on its part to be performed or
satisfied hereunder and under the Series 2006-1 Transaction Documents on or
prior to the Closing Date.
(j) The Initial Purchasers shall have received a certificate of each TAL
Person, dated the Closing Date, signed on behalf of each TAL Person (as
applicable) by its President or any Vice President and its Chief Financial
Officer or if such entity has none, its Treasurer, to the effect that, to the
actual knowledge of such person after reasonable inquiry:
(i) The representations and warranties of such TAL Person contained in
this Agreement and in the Series 2006-1 Transaction Documents to which such
TAL Person is a party are true and correct in all material respects as of
the Closing Date as if made on such date, such TAL Person has performed in
all material respects all covenants and agreements and satisfied in all
material respects all conditions on its respective part to be performed or
satisfied hereunder and under the other Series 2006-1 Transaction Documents
on or prior to the Closing Date, and since the date of this Agreement,
there has been no material adverse change in the business, condition
(financial or otherwise) or results of operations of such TAL Person.
(ii) Except as set forth in the Offering Memorandum, since the date of
this Agreement, there has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition (financial or otherwise) or in the business, properties or
operations of such TAL Person.
(k) The Initial Purchasers shall have received confirmation that the Notes
have been accepted for clearance of secondary market trading by The Depository
Trust Company.
(l) The Offering Memorandum shall have been printed and an electronic copy
distributed to the Initial Purchasers not later than 5:00 p.m., New York time on
April 8, 2006, with paper copies distributed to the Initial Purchasers promptly
thereafter, but not later than 5:00 p.m. on April 10, 2006.
(m) This Agreement has not terminated pursuant to Section 12.
(n) The Policy shall have been issued and all conditions precedent to the
issuance thereof shall have been satisfied or waived.
The Issuer shall furnish to the Initial Purchasers and the Rating Agencies
(i) such other agreements, instruments, documents, opinions, certificates,
letters and schedules as the Initial Purchasers or their counsel or any Rating
Agency or its counsel reasonably may request, and (ii) originals and conformed
copies of all opinions, certificates, letters, schedules, agreements, documents
and instruments delivered pursuant to this Agreement in the quantities that the
Initial Purchasers or the Rating Agencies, as the case may be, may reasonably
request.
SECTION 9. Representations, Warranties and Covenants of the Initial
Purchasers. Each Initial Purchaser represents and warrants and covenants to the
Issuer that:
(a) Such Initial Purchaser is an Institutional Accredited Investor.
(b) Such Initial Purchaser severally acknowledges that the Notes have not
been registered under the Act and may not be offered or sold within the United
States or to, or for the account or benefit of, U.S. persons except in
accordance with Regulation S or pursuant to an exemption from the registration
requirements of the Act. Such Initial Purchaser severally represents and agrees
that it has offered and sold the Notes, and will offer and sell the Notes (i) as
part of its distribution at any time and (ii) otherwise until 40 days after the
later of the commencement of the offering and the Closing Date, only in
accordance with Rule 903 or Rule 144A or to Institutional Accredited Investors.
Accordingly, neither such Initial Purchaser nor its Affiliates, nor any persons
acting on its or their behalf, have engaged or will engage in any directed
selling efforts with respect to the Notes, and such Initial Purchaser, its
Affiliates and all persons acting on its or their behalf have complied and will
comply with the offering restrictions requirement of Regulation S. Such Initial
Purchaser will not offer or sell, and has not offered or sold any Notes except
(x) within the United States to persons reasonably believed by it to be (i)
Qualified Institutional Buyers in reliance on the exemption from registration
provided by Rule 144A or (ii) Institutional Accredited Investors and (y) to
certain non-U.S. persons outside the United States within the meaning of, and in
compliance with, Regulation S. Such Initial Purchaser severally agrees that, at
or prior to confirmation of sale of the Notes, other than a sale pursuant to
Rule 144A, such Initial Purchaser will have sent to each distributor, dealer or
person receiving a selling concession, fee or other remuneration that purchases
the Notes from it during the restricted period a confirmation or notice (which
notice may be contained in the Preliminary Offering Memorandum) to substantially
the following effect:
"The Series 2006-1 Notes are being transferred to the purchaser in a
transaction not involving any public offering in the United States
within the meaning of the Securities Act, and that, if in the future
the purchaser decides to resell, pledge or otherwise transfer any
Series 2006-1 Notes, such Series 2006-1 Notes may be resold, pledged
or transferred only in accordance with applicable state securities
laws and (i) in a transaction meeting the requirements of Rule 144A,
to a person that the transferor reasonably believes is a Qualified
Institutional Buyer) and to whom notice
is given that the resale, pledge or transfer is being made in reliance
on Rule 144 A, (ii) (a) to a person that is an Institutional
Accredited Investor, is taking delivery of such Note in an amount of
at least $100,000 (or, if greater, the U.S. dollar equivalent of
50,000 Euros) and delivers a Purchaser Letter in the form of Annex A
hereto to the Indenture Trustee, or (b) to a person that is taking
delivery of such Note pursuant to a transaction that is otherwise
exempt from the registration requirements of the Securities Act, as
confirmed in an opinion of counsel addressed to the Indenture Trustee
and the Issuer, which counsel and opinion are satisfactory to the
Indenture Trustee and the Issuer, or (iii) in an offshore transaction
in accordance with Rule 903 or 904 of Regulation S.
Terms used in this subsection (b) have the meanings given to them by Regulation
S.
(c) Such Initial Purchaser severally agrees that it and each of its
Affiliates will not offer or sell the Notes in the United States by means of any
form of general solicitation or general advertising within the meaning of Rule
502(c) under the Act, including, but not limited to (i) any advertisement,
article, notice or other communication published in any newspaper, magazine or
similar media or broadcast over television or radio, or (ii) any seminar or
meeting whose attendees have been invited by any general solicitation or general
advertising. Such Initial Purchaser severally agrees, with respect to resales
made in reliance on Rule 144A of any of the Notes, to deliver either with the
confirmation of such resale or otherwise prior to settlement of such resale a
notice to the effect that the resale of such Notes has been made in reliance
upon the exemption from the registration requirements of the Securities Act
provided by Rule 144A.
(d) Such Initial Purchaser has not engaged in any form of general
solicitation or general advertising in connection with the offering or sale of
the Notes (as those terms are used in Regulation D under the Act).
(e) Such Initial Purchaser is not acquiring the Notes with the assets of an
employee benefit plan within the meaning of the ERISA or a plan as defined in
Section 4975 of the Code.
(f) The acquisition and holding of the Note will not give rise to a
nonexempt prohibited transaction under Section 406(a) of ERISA or Section 4975
of the Code.
(g) Such Initial Purchaser will not offer or sell any Note except on the
terms contemplated by the Offering Memorandum and in accordance with all
Applicable Laws.
(h) Such Initial Purchaser severally agrees that it and each of its
Affiliates has not entered and will not enter into any contractual arrangement
with respect to the distribution of the Notes except for any such arrangements
with the other Initial Purchasers or Affiliates of the other Initial Purchasers
or with the prior written consent of the Issuer.
(i) Such Initial Purchaser severally represents and agrees that (i) it has
only communicated or caused to be communicated and will only communicate or
cause to be communicated any invitation or inducement to engage in investment
activity (within the meaning of section 21 of the Financial Services and Markets
Act 2000 (the "FSMA")) received by it in
connection with the issue or sale of any Notes in circumstances in which section
21(1) of the FSMA does not apply to the Issuer; and (ii) it has complied and
will comply with all applicable provisions of the FSMA with respect to anything
done by it in relation to the Notes in, from or otherwise involving the United
Kingdom.
SECTION 10. Indemnification and Contribution. (a) Each of the Manager and
the Issuer will jointly and severally indemnify and hold harmless the Initial
Purchasers, their respective Affiliates, directors, officers, employees, agents,
representatives and the Person who controls (within the meaning of Section 15 of
the Act) the Initial Purchasers (collectively the "Initial Purchaser
Indemnitees") against any reasonable and documented losses, claims, damages or
other liabilities, costs and expenses (any losses, claims, damages, liabilities,
costs and expenses being referred to collectively as "Losses" and individually
as a "Loss") to which an Initial Purchaser Indemnitee may become subject,
insofar as any Losses (or claims, actions, suits or proceedings in respect
thereof) relate to, arise out of or are based upon:
(i) any untrue statement or alleged untrue statement of any material
fact contained in the Preliminary Offering Memorandum, the Offering
Memorandum or any amendment of or supplement to any of the foregoing (x) to
any investor (or potential investor) in any of the Notes or (y) to the
Initial Purchasers for distribution to any investor (or potential investor)
in any of the Notes, or
(ii) the omission or alleged omission to state, in the Preliminary
Offering Memorandum, the Offering Memorandum or any amendment of or
supplement to any of the foregoing (x) to any investor (or potential
investor) in any of the Notes or (y) to the Initial Purchasers for
distribution to any investor (or potential investor) in any of the Notes, a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading,
and in each case shall reimburse, as incurred, each Initial Purchaser Indemnitee
for any reasonable and documented legal or other reasonable and documented
out-of-pocket fees, charges or expenses, in each case, reasonably incurred by
such Initial Purchaser Indemnitee in connection with investigating, preparing,
defending against or appearing as a third-party witness in connection with any
Loss, litigation, claim, suit, proceeding or action, whether commenced or
threatened (any such litigation, claims, suits, proceedings, and actions being
referred to collectively as "Proceedings" and individually as a "Proceeding");
provided, however, that the Issuer shall not be liable in any case under this
Section 10 to the extent that any Loss (or claims, actions, suits or proceedings
in respect thereof) arises out of or is based upon any untrue statement or
alleged untrue statement in or omission or alleged omission from the Preliminary
Offering Memorandum or the Offering Memorandum or any amendment or supplement
thereto that, in the case of each of the foregoing, is made in reliance upon and
in conformity with the Initial Purchaser Information (as such term is defined in
Section 13(a)) or any written information provided to the Issuer by or on behalf
of FGIC for inclusion therein, such information being the information in the
Preliminary Offering Memorandum and in the Offering Memorandum under the heading
"The Series Enhancer" and the information in Annex F; provided, further,
however, that the foregoing indemnity agreement with respect to any Loss (or
claims, actions, suits or proceedings in respect thereof) shall not inure to the
benefit of any Initial Purchaser Indemnitee with respect to any Loss (or claims,
actions, suits or proceedings in respect
thereof) arising out of or based upon (x) any untrue statement or alleged untrue
statement of any material fact contained in the Preliminary Offering Memorandum
or the Offering Memorandum or any amendment of or supplement to any of the
foregoing, or (y) the omission or alleged omission to state in the Preliminary
Offering Memorandum or the Offering Memorandum or any amendment of or supplement
to any of the foregoing, a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, if: (1) the Issuer furnished
sufficient copies of the Offering Memorandum or any amendment thereof or
supplement thereto to on a timely basis to permit delivery of the Offering
Memorandum or any amendment thereof or supplement thereto to all Persons
purchasing notes from the Initial Purchasers in the initial resale of such notes
(such Persons "Initial Resale Purchasers") at or prior to the written
confirmation of the sale of the Notes to such Person; (2) the Initial Resale
Purchaser asserting such losses, claims, damages or liabilities purchased Notes
in the initial resale from the Initial Purchasers and a copy of the Offering
Memorandum or any amendment thereof or supplement thereto was not sent or given
by or on behalf of such Initial Purchaser to such Initial Resale Purchaser; and
(3) the Offering Memorandum or such amendment thereof or supplement thereto
would have cured the defect giving rise to such Loss (or claims, actions, suits
or proceedings in respect thereof).
(b) Each Initial Purchaser agrees to severally indemnify and hold harmless
each of the Issuer, the Manager, their respective directors, officers,
employees, agents and representatives and each Person, if any, who controls
(within the meaning of Section 15 of the Act) the Issuer or the Manager against
any reasonable and documented Losses to which the Issuer, the Manager or any
other such indemnified party may become subject, insofar as the Losses (or
actions in respect thereof) arise out of or are based upon:
(i) any untrue statement or alleged untrue statement of any material
fact contained in the Preliminary Offering Memorandum or the Offering
Memorandum or any amendment of or supplement to any of the foregoing to the
extent, but only to the extent, that the untrue statement or alleged untrue
statement was made in reliance upon and in conformity with the Initial
Purchaser Information provided by such Initial Purchaser, or
(ii) the omission or alleged omission to state in the Preliminary
Offering Memorandum or the Offering Memorandum or any amendment of or
supplement to any of the foregoing, a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, to the extent,
but only to the extent, that the omission or alleged omission was made in
reliance upon and in conformity with the Initial Purchaser Information
provided by such Initial Purchaser,
and in each case shall reimburse, as incurred, each indemnified party for any
reasonable and documented legal or other out-of-pocket fees, charges or
expenses, in each case, reasonably incurred by such indemnified party in
connection with investigating, preparing, defending against or appearing as a
third-party witness in connection with any Loss or Proceeding, whether commenced
or threatened.
(c) Notwithstanding any other provision of this Agreement, any Initial
Purchaser's indemnification obligations shall be limited in amount to the
aggregate of total compensation
received by it in connection with its duties as an Initial Purchaser of the
Notes, excluding any amounts received by such Initial Purchaser pursuant to
subsection (a) of this Section 10.
(d) Promptly after receipt by an indemnified party under this Section 10 of
notice of the commencement of any Proceeding for which an indemnified party is
entitled to indemnification under this Section 10, the indemnified party shall,
if a claim in respect thereof is to be made against the indemnifying party under
this Section 10, notify the indemnifying party of the commencement thereof, but
the failure to so notify the indemnifying party shall not relieve it from any
liability under subsection (a) or (b) of this Section 10 (as applicable) unless
and except to the extent that the failure to notify results in the forfeiture by
the indemnifying party of substantial rights and defenses. If any Proceeding is
brought that involves any indemnified party, and it notifies the indemnifying
party of the commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it may elect by written notice
delivered to the indemnified party after receiving the aforesaid notice from
such indemnified party, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel reasonably satisfactory to
such indemnified party, and after notice from the indemnifying party to such
indemnified party, the indemnifying party will not be liable to such indemnified
party under this Section 10 for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense thereof other
than reasonable and documented costs of investigation. Notwithstanding the
foregoing, in no event shall an indemnifying party, in connection with any one
such Proceeding or separate but substantially similar or related Proceedings
arising out of the same general allegations or circumstances, be liable for the
fees and expenses of more than one separate firm of attorneys at any time for
all indemnified parties, together with any necessary local counsel. If the
indemnifying party assumes the defense of any Proceeding, the indemnified party
shall have the right to employ separate counsel therein, and to participate in
the defense thereof, but the fees and expenses of its counsel shall be borne
exclusively by the indemnified party without any right or entitlement to
reimbursement by an indemnifying party except as otherwise provided in the
preceding sentence and in the preceding paragraph. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such settlement includes (i)
an unconditional release of such indemnified party from all liability on any
claims that are the subject matter of such action and (ii) does not include a
statement as to or an admission of fault, culpability or failure to act by or on
behalf of any indemnified party.
(e) In circumstances in which the indemnity agreement provided for in the
preceding subsections is unavailable or insufficient to hold harmless an
indemnified party in respect of any Losses or Proceedings, each indemnifying
party, in order to provide for just and equitable contribution, shall contribute
to the amount paid or payable by the indemnified party as a result of Losses or
Proceedings in such proportion as is appropriate to reflect (i) the relative
benefits received by the indemnifying party or parties on the one hand and the
indemnified party on the other from the offering of the Notes or (ii) if the
allocation provided by clause (i) is not permitted by Applicable Law, not only
such relative benefits but also the relative fault of the indemnifying party or
parties on the one hand and the indemnified party on the other in connection
with the statements or omissions or alleged statements or omissions that
resulted in Losses or Proceedings. It is the parties' intention that, to the
maximum extent permitted by Applicable
Law, (A) the relative benefits received by the Issuer on the one hand and the
Initial Purchasers on the other shall be deemed to be in the same proportion as
the total proceeds from the offering (before deducting expenses) of the Notes
bear to the total compensation received by the Initial Purchasers with respect
to the offering, and (B) the relative fault of the parties shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Issuer on the one hand, or
the Initial Purchasers on the other, the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission, and any other equitable considerations appropriate in the
circumstances.
The Issuer and the Initial Purchasers agree that it would not be equitable
if the amount of contribution pursuant to this section were determined by pro
rata or per capita allocation or by any other method of allocation that does not
take into account the equitable considerations referred to in the preceding
paragraph. Notwithstanding any other provision of this Agreement, the Initial
Purchasers shall not be obligated to make contributions hereunder that in the
aggregate exceed the total compensation received by them in connection with its
duties as Initial Purchasers of the Notes, less the aggregate amount of any
damages that they otherwise have been required to pay by reason of the untrue or
alleged untrue statements, or the omissions or alleged omissions to state, a
material fact. No Person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
Person who was not guilty of such fraudulent misrepresentation. For purposes of
this subsection, each Affiliate, director, officer, employee, agent and
representative of an Initial Purchaser and the Person who controls an Initial
Purchaser (within the meaning of Section 15 of the Act) shall have the same
rights to contribution as such Initial Purchaser, and each Affiliate, director,
officer, employee, agent and representative of the Issuer and each Person who
controls the Issuer (within the meaning of Section 15 of the Act), shall have
the same rights to contribution as the Issuer.
SECTION 11. Survival; Scope of Liability. The respective representations
(as of the date made), warranties (as of the date made), agreements, covenants,
indemnities and other statements of the Issuer, the Initial Purchasers and their
respective officers set forth in this Agreement or made by or on behalf of any
of them, respectively, pursuant to this Agreement shall remain in full force and
effect, regardless of (a) any investigation made by or on behalf of the Issuer
or the Initial Purchasers or any of their respective officers or directors, or
any controlling Person referred to in Section 10 and (b) delivery of and payment
for the Notes or resale thereof. The respective agreements, covenants,
indemnities and other statements set forth in this Section 11 and in Sections 7,
10, 14, 15, 17, 18, 19, 20, 21, 22, 23, and 25 shall remain in full force and
effect regardless of any termination or cancellation of this Agreement.
SECTION 12. Termination. This Agreement may be terminated in the sole
discretion of the Initial Purchasers by notice to the Issuer given on or prior
to the Closing Date in the event that (A) any TAL Person shall have, in any
material respect, failed, refused or been unable to perform, all obligations on
its part to be performed hereunder at or prior thereto or (B) if, on or prior to
the Closing Date, there shall have occurred any of the events or conditions set
forth in Section 8(f) hereof.
Termination of this Agreement pursuant to this Section 12 shall be without
liability of any party to any other party except that the Initial Purchasers
shall be entitled to any fees, costs and expenses payable, in each case in
accordance with Section 7.
SECTION 13. Supplied Information. The Issuer acknowledges and agrees that
the information described in Schedule II hereto constitutes the only information
furnished by the Initial Purchasers to the Issuer for purposes of inclusion in
the Preliminary Offering Memorandum, the Offering Memorandum or any amendment or
supplement of or to any of the foregoing. "Initial Purchaser Information" means
the information described in Schedule II hereto, but only to the extent that
such information relates to the respective Initial Purchaser.
SECTION 14. Notices. Unless otherwise provided herein, all notices required
under the terms and provisions hereof shall be in writing and either delivered
by hand, by mail or by facsimile, and any notice shall be effective when
received at the address or facsimile number (as applicable) specified below:
If to the Issuer: c/o TAL International Container Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Chand Khan, Vice President and Chief
Financial Officer
Fax: ▇▇▇-▇▇▇-▇▇▇▇.
If to the Manager: TAL International Container Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Chand Khan, Vice President and Chief
Financial Officer
Fax: ▇▇▇-▇▇▇-▇▇▇▇
If to Fortis: Fortis Securities LLC
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Structured Credit
Fax: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to:
Fortis Capital Corp.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Menno van Lacum
Fax: ▇▇▇-▇▇▇-▇▇▇▇
If to Credit Suisse: Credit Suisse Securities (USA) LLC
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Legal and Compliance Department -
Asset Finance
Fax: ▇▇▇-▇▇▇-▇▇▇▇
or at such other address or facsimile number as any party may designate from
time to time by notice duly given to the other parties in accordance with the
terms of this section.
SECTION 15. Successors. This Agreement shall inure to the benefit of and be
binding upon the Initial Purchasers, the Issuer, the Manager and their
respective successors and legal representatives. Nothing expressed or mentioned
in this Agreement is intended or shall be construed to give any Person, other
than the parties hereto, their respective successors and the controlling
Persons, Affiliates, directors, officers, employees, agents and representatives
referred to in Section 10 and their heirs and legal representatives, any legal
or equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the parties
hereto, their respective successors and such controlling Persons, Affiliates,
directors, officers, employees, agents and representatives and their heirs and
legal representatives, and for the benefit of no other Person. No purchaser of a
Note or a beneficial interest in a Note from the Initial Purchasers shall be
deemed a successor because of such purchase.
SECTION 16. Counterparts. This Agreement may be executed in any number of
counterparts and by the different parties hereto in separate counterparts (which
may include facsimile), each of which when so executed shall be deemed to be an
original and all of which together shall constitute one and the same agreement.
SECTION 17. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING SECTIONS 5-1401 OF THE GENERAL
OBLIGATIONS LAWS BUT OTHERWISE WITHOUT REFERENCE TO ITS CONFLICTS OF LAW
PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 18. Submission to Jurisdiction. EACH PARTY HERETO HEREBY (A)
IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY NEW YORK STATE OR
FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE COUNTY OF NEW YORK, NEW
YORK OVER ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT,
(B) IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING
MAY BE HEARD AND DETERMINED IN SUCH STATE OR FEDERAL COURT, AND (C) IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO, THE DEFENSE OF AN
INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING. EACH PARTY
IRREVOCABLY CONSENTS TO THE SERVICE OF ANY AND ALL PROCESS IN ANY ACTION OR
PROCEEDING BY THE MAILING OF COPIES OF THE PROCESS TO SUCH PARTY AT ITS ADDRESS
SPECIFIED HEREIN. NOTHING IN THIS SECTION SHALL AFFECT THE RIGHT OF ANY PARTY
HERETO TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR AFFECT THE
RIGHT OF ANY PARTY HERETO TO BRING ANY ACTION OR PROCEEDING AGAINST ANY OR ALL
OF THE OTHER PARTIES HERETO OR ANY OF THEIR RESPECTIVE PROPERTIES IN THE COURTS
OF ANY OTHER JURISDICTION.
SECTION 19. Waiver of Jury Trial. EACH PARTY HERETO WAIVES ANY RIGHT TO A
TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER
OR RELATING TO THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENTS OR ANY
AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR THAT MAY IN THE FUTURE
BE DELIVERED IN CONNECTION THEREWITH OR ARISING FROM ANY COURSE OF CONDUCT,
COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN), ACTIONS OF ANY OF THE
PARTIES HERETO OR ANY OTHER RELATIONSHIP EXISTING IN CONNECTION WITH THIS
AGREEMENT OR ANY OTHER TRANSACTION DOCUMENTS, AND AGREES THAT ANY SUCH ACTION OR
PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
SECTION 20. Negotiations. This Agreement and the other Series 2006-1
Transaction Documents are the result of negotiations among the parties hereto,
and have been reviewed by the respective counsel to the parties hereto, and are
the products of all parties hereto. Accordingly, this Agreement and the other
Series 2006-1 Transaction Documents shall not be construed against the Initial
Purchasers merely because of the Initial Purchasers' involvement in the
preparation of this Agreement and the other Series 2006-1 Transaction Documents.
SECTION 21. Amendments, Etc. This Agreement may be amended, restated or
otherwise modified or waived at any time but only upon the written consent of
each of the parties hereto.
SECTION 22. Severability of Provisions. If any one or more of the
agreements, provisions or terms of this Agreement shall for any reason
whatsoever be held invalid, then the unenforceable agreements, provisions or
terms shall be deemed severable from the remaining agreements, provisions or
terms of this Agreement and shall in no way affect the validity or
enforceability of the other agreements, provisions or terms of this Agreement.
SECTION 23. No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of any party hereto, any right, remedy, power
or privilege hereunder shall operate as a waiver thereof; nor shall any single
or partial exercise of any right, remedy, power or privilege hereunder preclude
any other or further exercise thereof or the exercise of any other right,
remedy, power or privilege. Except as otherwise provided in this Agreement, the
rights, remedies, powers and privileges herein provided are cumulative and are
not exhaustive of any rights, remedies, powers and privileges provided by law.
SECTION 24. Integration. This Agreement contains a final and complete
integration of all prior expressions by the parties hereto with respect to the
subject matter hereof and shall
constitute the entire agreement among the parties hereto with respect to the
subject matter hereof and thereof, superseding all prior oral or written
understandings.
SECTION 25. Nonpetition Covenant. Notwithstanding any prior termination of
this Agreement, each Initial Purchaser agrees that it shall not, with respect to
the Issuer, institute or join any other Person in instituting any proceeding of
the type referred to in the definition of "Bankruptcy Event" against or with
respect to the Issuer or so long as any Notes issued by the Issuer shall be
outstanding and there shall not have elapsed one year plus one day since the
last day on which any such Notes shall have been Outstanding and all other
obligations of the Issuer under the Series 2006-1 Transaction Documents have
been paid in full. The foregoing shall not limit the right of any such Person to
file any claim in or otherwise take any action with respect to any such
proceeding that was instituted against Issuer by any Person other than the
Initial Purchasers. In addition, each Initial Purchaser agrees that all amounts
owed to it by Issuer shall be payable solely from amounts that become available
for such payment pursuant to the Series 2006-1 Transaction Documents, and no
such amounts shall constitute a claim against Issuer to the extent that they are
in excess of the amounts available for their payment.
"Bankruptcy Event" means, for any Person, any of the following events:
(a) a case or other proceeding shall be commenced, without the application
or consent of such Person, in any court, seeking the liquidation,
reorganization, debt arrangement, dissolution, winding up or composition or
readjustment of debts of such Person, the appointment of a trustee, receiver,
custodian, liquidator, assignee, sequestrator or the like for such Person or any
substantial part of its assets, or any similar action with respect to such
Person under any law relating to bankruptcy, insolvency, reorganization, winding
up or composition or adjustment of debts, and such case or proceeding shall
continue undismissed, or unstayed and in effect, for a period of 60 days; or any
order for relief in respect of such Person shall be entered in an involuntary
case under the federal bankruptcy laws or other similar laws now or hereafter in
effect, or
(b) such Person shall commence a voluntary case or other proceeding under
any applicable bankruptcy, insolvency, reorganization, debt arrangement,
dissolution or other similar law now or hereafter in effect, or shall consent to
the appointment of or taking possession by a receiver, liquidator, assignee,
trustee, custodian, sequestrator or the like, for such Person or any substantial
part of its property, or shall make any general assignment for the benefit of
creditors, or shall fail to, or admit in writing its inability to, pay its debts
generally as they become due.
[Signature page follows.]
If the foregoing correctly sets forth our understanding, please indicate your
acceptance thereof in the space provided below for that purpose, whereupon this
Agreement shall constitute a binding agreement between the Issuer and the
Initial Purchasers.
Very truly yours,
TAL ADVANTAGE I LLC
By: TAL International Container
Corporation, its manager
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
TAL INTERNATIONAL CONTAINER CORPORATION
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
NPA SERIES 2006-1
Accepted and agreed to as of
the date first above written:
FORTIS SECURITIES LLC
By:
------------------------------------
Authorized Signatory
Name:
----------------------------------
Title:
---------------------------------
By:
------------------------------------
Authorized Signatory
Name:
----------------------------------
Title:
---------------------------------
NPA SERIES 2006-1
CREDIT SUISSE SECURITIES (USA) LLC
By:
------------------------------------
Authorized Signatory
Name:
----------------------------------
Title:
---------------------------------
NPA SERIES 2006-1
TABLE OF CONTENTS
PAGE
SCHEDULE I
to Note Purchase Agreement (Series 2006-1)
Initial Purchasers Principal Amount of Notes
---------------------------------- -------------------------
Fortis Securities LLC $340,000,000
Credit Suisse Securities (USA) LLC $340,000,000
TABLE OF CONTENTS
PAGE
SCHEDULE II
to Note Purchase Agreement (Series 2006-1)
A. The information contained in the first, second, fifth, eighth, tenth,
eleventh and twelfth paragraphs and the third and fourth sentences of the
seventh paragraph under the heading "PLAN OF DISTRIBUTION" and the information
contained under the heading "GENERAL INFORMATION" in the Offering Memorandum.