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: 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
McGraw-Hill
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 Mayer Brown
Rowe & 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
