CONTAINER APPLICATIONS INTERNATIONAL, INC.
REDEMPTION AGREEMENT
DATED AS OF OCTOBER 1, 2006
TABLE OF CONTENTS
PAGE
SECTION 1 PURCHASE AND SALE OF SHARES..................................1
1.1 BASIC TRANSACTION............................................1
1.2 PURCHASE PRICE...............................................1
1.3 CLOSING......................................................1
1.4 CLOSING ACTIONS OF THE COMPANY...............................1
1.5 CLOSING ACTIONS OF SELLER....................................2
SECTION 2 REPRESENTATIONS AND WARRANTIES OF SELLER.....................3
2.1 ORGANIZATION OF SELLER.......................................3
2.2 AUTHORITY....................................................3
2.3 NO CONFLICTS; REQUIRED CONSENTS..............................3
2.4 TITLE TO SHARES..............................................3
2.5 TITLE TO EXISTING SUBORDINATED NOTE..........................4
2.6 THIRD PARTY CLAIMS...........................................4
SECTION 3 REPRESENTATIONS AND WARRANTIES OF THE COMPANY................4
3.1 ORGANIZATION, STANDING, ETC. OF THE COMPANY..................4
3.2 AUTHORITY....................................................4
3.3 NO CONFLICTS; REQUIRED CONSENTS..............................4
SECTION 4 COVENANTS....................................................4
4.1 NON-DISCLOSURE...............................................4
4.2 NO SHOPPING..................................................5
4.3 COMMERCIALLY REASONABLE BEST EFFORTS, NO INCONSISTENT
ACTION.......................................................5
4.4 FURTHER ASSURANCES...........................................5
4.5 RESIGNATIONS FROM CAI-INTERPOOL, LLC.........................5
4.6 NAME CHANGE..................................................6
4.7 POST-CLOSING COOPERATION.....................................6
SECTION 5 CONDITIONS TO OBLIGATIONS OF THE COMPANY AT THE CLOSING......6
5.1 REPRESENTATIONS AND WARRANTIES...............................6
5.2 PERFORMANCE..................................................6
5.3 CLOSING CERTIFICATE..........................................6
5.4 OPINION OF COUNSEL...........................................6
5.5 TRANSACTIONAL LITIGATION.....................................6
5.6 RESIGNATIONS.................................................7
5.7 CORPORATE AND OTHER PROCEEDINGS..............................7
5.8 CONSENTS.....................................................7
5.9 CLOSING DOCUMENTS............................................7
5.10 SETTLEMENT OF ACCOUNTS.......................................7
SECTION 6 CONDITIONS TO OBLIGATIONS OF SELLER AT THE CLOSING...........7
6.1 REPRESENTATIONS AND WARRANTIES...............................7
6.2 PERFORMANCE..................................................7
6.3 CLOSING CERTIFICATE..........................................7
6.4 OPINION OF COUNSEL...........................................7
6.5 TRANSACTIONAL LITIGATION.....................................8
6.6 CORPORATE AND OTHER PROCEEDINGS..............................8
6.7 CONSENTS.....................................................8
6.8 CLOSING DOCUMENTS............................................8
6.9 SETTLEMENT OF ACCOUNTS.......................................8
SECTION 7 MISCELLANEOUS................................................8
7.1 TERMINATION; REMEDIES........................................8
7.2 SURVIVAL OF REPRESENTATIONS AND WARRANTIES...................9
7.3 NO BROKERS, FINDERS, ETC.....................................9
7.4 EXPENSES.....................................................9
7.5 COMPLETE AGREEMENT; WAIVER AND MODIFICATION, ETC.............9
7.6 NOTICES.....................................................10
7.7 LAW GOVERNING...............................................10
7.8 HEADINGS; REFERENCES; "HEREOF," ETC.........................10
7.9 SUCCESSORS AND ASSIGNS......................................11
7.10 COUNTERPARTS; FACSIMILE SIGNATURES..........................11
7.11 ATTORNEYS' FEES.............................................11
SECTION 8 DEFINITIONS.................................................11
EXHIBITS
Exhibit 1.2(b) Note
Exhibit 1.4(d) Investor Rights Agreement
Exhibit 1.4(e) Management Agreement
Exhibit 1.4(f) Termination Agreement
Exhibit 1.4(g) Subordination Agreement
Exhibit 1.4(h) CAI/IP Agreement
Exhibit 5.5 Seller's Counsel Opinion Matters
Exhibit 6.5 Company Counsel Opinion Matters
SCHEDULES
Schedule 1.6 Termination of Agreements
Schedule 2.3 No Conflicts; Required Consents
Schedule 3.3 No Conflicts; Required Consents
REDEMPTION AGREEMENT
This Redemption Agreement dated as of October 1, 2006 is entered into by
Container Applications International, Inc., a Nevada corporation (the
"COMPANY"), and Interpool, Inc., a Delaware corporation ("SELLER").
RECITALS
The Company desires to purchase from Seller, and Seller desires to sell to
the Company, 25,200 shares of Common Stock of the Company (the "SHARES"), which
constitute all shares of Common Stock of the Company owned by Seller.
Capitalized terms used herein have the meanings given in Section 8.
AGREEMENTS
Now, therefore, in consideration of the mutual agreements and covenants
contained herein, the parties hereby agree as follows:
SECTION 1 PURCHASE AND SALE OF SHARES
1.1 BASIC TRANSACTION. Subject to the terms and conditions of this
Agreement, the Company shall purchase from Seller, and Seller shall sell to the
Company, at the Closing (as defined below), all of the Shares, free and clear of
all Liens and Third-Party Rights, for the consideration specified in Section 1.2
below.
1.2 PURCHASE PRICE. In full consideration for the Shares, at the Closing
the Company shall pay to Seller an aggregate amount of $77,500,000 (the
"PURCHASE PRICE") as follows:
(a) $40,000,000 by wire transfer of immediately available funds to
Seller's bank account or accounts, which account or accounts shall be
designated in writing by Seller at least two business days prior to the
Closing (the "CASH PURCHASE PRICE"); and
(b) Issuance by the Company to Seller of a subordinated promissory
note in the original principal amount of $37,500,000 and otherwise in the
form attached hereto as EXHIBIT 1.2(B) (the "SUBORDINATED NOTE").
1.3 CLOSING. The closing (the "CLOSING") under this Agreement shall take
place as of 12:01 a.m. on October 1, 2006 at the offices of Messrs. Stroock &
Stroock & Xxxxx LLP in New York City, or at such other place as the parties
agree in writing, provided that wire transfers shall be made at the opening of
business on October 2, 2006. Time is of the essence.
1.4 CLOSING ACTIONS OF THE COMPANY. At the Closing, the Company shall
execute and/or deliver, or cause to be executed and/or delivered, to Seller the
following:
(a) the Cash Purchase Price by wire transfer of immediately available funds
(such transfer to be made according to the timing noted in Section 1.3);
(b) the Note Issuance Agreement between the Company and Seller in
substantially the form of EXHIBIT 1.4(B) attached hereto (the "NOTE ISSUANCE
AGREEMENT") and the Subordinated Note;
(c) the Security Agreement between the Company and Seller in the form of
EXHIBIT 1.4(C) attached hereto (the "SECURITY AGREEMENT");
(d) the Investor Rights Agreement between the Company and Seller in the
form of EXHIBIT 1.4(D) attached hereto (the "INVESTOR RIGHTS AGREEMENT");
(e) the Management Agreement between the Company and Seller in the form of
EXHIBIT 1.4(E) attached hereto (the "MANAGEMENT AGREEMENT");
(f) the Termination Agreement among Seller, the Company and Xx. Xxxxxxxxx
Xxxxx, in the form of EXHIBIT 1.4(F) attached hereto (the "TERMINATION
AGREEMENT");
(g) the Second Amended and Restated Subordination and Intercreditor
Agreement among Seller, the Company and Bank of America as administrative agent,
in the form of EXHIBIT 1.4(G) attached hereto (the "SUBORDINATION AGREEMENT");
(h) the Amendment No. 5 to the Operating and Administration Agreement
initially dated as of April 29, 1998 by and between the Company and Seller, in
the form of EXHIBIT 1.4(H) attached hereto (the "CAI/IP Agreement"); and
(i) $3,027,062.50 plus all accrued but unpaid interest as full payment of
all outstanding principal and interests on the Existing Subordinated Note.
1.5 CLOSING ACTIONS OF SELLER. At Closing, Seller shall execute and/or
deliver, or cause to be executed and/or delivered, to the Company the following:
(a) one or more certificates for the Shares, duly endorsed or accompanied
by duly executed stock powers, free and clear of all Liens or Third-Party Rights
and in good order for transfer;
(b) the Security Agreement;
(c) the Investor Rights Agreement;
(d) the Management Agreement;
(e) the original Existing Subordinated Note marked "Paid In Full";
(f) the Termination Agreement;
(g) the Subordination Agreement; and
(h) the CAI/IP Agreement.
SECTION 2 REPRESENTATIONS AND WARRANTIES OF SELLER.
Seller hereby represents and warrants to the Company as follows:
2.1 ORGANIZATION OF SELLER. Seller is a corporation duly organized, validly
existing and in good standing under the laws of the State of New York.
2.2 AUTHORITY. Seller has all necessary power and authority to execute,
deliver and perform its obligations under this Agreement. The execution,
delivery and performance of this Agreement by Seller has been duly authorized by
all necessary corporate action. This Agreement is legally binding on and
enforceable against Seller in accordance with its terms subject to (i)
bankruptcy, insolvency, moratorium, reorganization, fraudulent conveyance or
similar laws affecting the enforcement of creditors' rights generally and (ii)
equitable principles.
2.3 NO CONFLICTS; REQUIRED CONSENTS. Except as disclosed on SCHEDULE 2.3,
the execution, delivery and performance of this Agreement by Seller, and the
consummation by Seller of all of the transactions contemplated hereby, do not
and will not (i) conflict with or violate any provision of the certificate of
incorporation or bylaws of Seller; (ii) result in the creation or imposition of
any Lien or Third-Party Right against or upon any of the assets or properties
owned or leased by Seller; (iii) require any Third-Party Action relating to
Seller; (iv) violate any Legal Requirement or Order applicable to Seller or (v)
conflict with or constitute a default (with or without the giving of notice or
the passage of time or both) under, or result in any acceleration or right of
acceleration of any obligations under, any Contract to which Seller is a party,
where, in each case, the absence of such Third-Party Action or such violation,
conflict, default or acceleration would in any way adversely affect the
transactions contemplated hereby.
2.4 TITLE TO SHARES. Seller is the sole record and beneficial owner of the
Shares. The Shares are free and clear of all Third-Party Rights, and Seller has
the full and unrestricted right, power and authority to sell the Shares pursuant
to the terms of this Agreement. Upon delivery of the certificate(s) for the
Shares to the Company and the Company's payment of the Purchase Price, the
Company will acquire good and marketable title to and complete ownership of the
Shares, free and clear of any Third-Party Right. Seller does not own any capital
stock, or hold any right to acquire any capital stock, in the Company, other
than the Shares.
2.5 TITLE TO EXISTING SUBORDINATED NOTE. Seller is the sole record and
beneficial owner of the Existing Subordinated Note. The Existing Subordinated
Note is free and clear of all Third-Party Rights, and Seller has the full and
unrestricted right, power and authority to permit the Existing Subordinated Note
to be paid in accordance with this Agreement.
2.6 THIRD PARTY CLAIMS. There are no claims by any Person pending or
threatened against Seller that could affect title to the Shares or impede or
prevent the transfer of the Shares pursuant to the terms of this Agreement.
SECTION 3 REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company hereby represents and warrants to Seller as follows: 3.1
ORGANIZATION, STANDING, ETC. OF THE COMPANY. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Nevada. The Company has full power and authority to own, lease and operate its
Properties and to carry on the business in which it is engaged.
3.2 AUTHORITY. The Company has all necessary power and authority to
execute, deliver and perform its obligations under this Agreement. The
execution, delivery and performance of this Agreement by the Company has been
duly authorized by all necessary corporate action. This Agreement is legally
binding on and enforceable against the Company in accordance with its terms
subject to (i) bankruptcy, insolvency, moratorium, reorganization, fraudulent
conveyance or similar laws affecting the enforcement of creditors' rights
generally and (ii) equitable principles.
3.3 NO CONFLICTS; REQUIRED CONSENTS. Except as disclosed on SCHEDULE 3.3,
the execution, delivery and performance of this Agreement by the Company, and
the consummation by the Company of all of the transactions contemplated hereby,
do not and will not (i) conflict with or violate any provision of the articles
of incorporation or bylaws of the Company; (ii) result in the creation or
imposition of any Lien or Third-Party Right against or upon any of the assets or
properties owned or leased by the Company; (iii) require any Third-Party Action
relating to the Company; (iv) violate any Legal Requirement or Order applicable
to the Company or (v) conflict with or constitute a default (with or without the
giving of notice or the passage of time or both) under, or result in any
acceleration or right of acceleration of any obligations under, any Contract to
which the Company is a party, where, in each case, the absence of such
Third-Party Action or such violation, conflict, default or acceleration would in
any way adversely affect the transactions contemplated hereby.
SECTION 4 COVENANTS
4.1 NON-DISCLOSURE. Each party covenants with each other party not to
divulge or communicate, or use for any purpose other than carrying out the
transactions contemplated hereby or exercising rights as a party hereto, (i) any
confidential business information or trade secrets of any other party and (ii)
any information or materials concerning this Agreement, the negotiation between
the parties hereto and the transactions contemplated hereby (the restriction
contained in this clause (ii) to expire upon the Closing), except in each case
to the extent that such information (1) was known by the recipient when received
and is so documented by the recipient, (2) is or hereafter becomes lawfully
obtainable from other sources, (3) is disclosed to potential financing sources
who are subject to a confidentiality agreement as least as restrictive as this
Section 4.1, (4) is required to be disclosed to a Governmental Agency having
jurisdiction over the party or its Affiliates, (5) is otherwise required by law
to be disclosed or (6) is disclosed following a waiver in writing from the other
parties. Notwithstanding the foregoing, Seller and the Company may issue (and
Seller may file with the SEC under Form 8-K or other applicable form) a press
release in a form approved in advance by the Company and Seller and Seller may
make related disclosures under the Securities Exchange Act of 1934, as amended,
such approval not to be unreasonably withheld.
4.2 NO SHOPPING. Through and including October 2, 2006, Seller shall not,
directly or indirectly, (i) encourage, solicit, initiate discussions with or
engage in negotiations with any Person, other than the Company, relating in any
way to the sale of all or any portion of the Shares or the Existing Subordinated
Note (a "POTENTIAL TRANSACTION"), (ii) provide information or documentation
relating to a Potential Transaction to any Person, other than the Company, or
(iii) enter into any Contract with any Person, other than the Company, providing
for any Potential Transaction. Notwithstanding the foregoing, nothing shall
prevent Seller from entering into and/or consummating an agreement to sell all
or substantially all of its assets (including the Shares and the Existing
Subordinated Note) to an independent third party, provided that the independent
third party purchases such assets subject to Seller's obligations to the Company
hereunder. Seller represents and warrants to the Company that it is not bound to
negotiate a sale of all or substantially all of its assets with any other Person
and that its execution of this Agreement does not violate any agreement to which
Seller is bound or to which any of its assets is subject.
4.3 COMMERCIALLY REASONABLE BEST EFFORTS, NO INCONSISTENT ACTION. Each
party covenants with the other to use its commercially reasonable best efforts
to cause the conditions to such party's obligations to consummate the Closing to
be satisfied as of October 1, 2006, with funding on October 2, 2006. Each party
covenants with each other party that it will not take any action (other than one
which is reasonably justified) which will foreseeably result in the
nonsatisfaction of any condition to any party's obligations to consummate the
Closing as of October 1, 2006.
4.4 FURTHER ASSURANCES. From time to time, at and after the Closing, the
parties will execute and deliver such instruments and take such other actions
(each at the requesting party's expense, limited to the reasonable out of pocket
costs of the performing party) as may reasonably be required to (i) carry out
the intent of this Agreement and (ii) confirm the consummation of the
transactions contemplated hereby.
4.5 RESIGNATIONS FROM CAI-INTERPOOL, LLC.
The Company covenants that the marketing staff employed by the Company will
submit letters of resignation from their positions at CAI-Interpool, LLC,
promptly following the Closing.
4.6 NAME CHANGE
Following the Closing, the Seller shall promptly file a Certificate of
Amendment with the Secretary of State of Delaware to remove "CAI" from the name
"CAI-Interpool, LLC".
4.7 POST-CLOSING COOPERATION. Following the Closing, the parties agree to
reasonably cooperate (without undue burden to the party from which cooperation
is requested) with one another in the furnishing of information in the
possession of one party for which another party has a reasonable need.
SECTION 5 CONDITIONS TO OBLIGATIONS OF THE COMPANY AT THE CLOSING
The obligations of the Company hereunder to be performed at the Closing are
subject to the satisfaction at or prior to the Closing of the following
conditions, except for any condition the Company may waive in writing in
accordance with Section 7.5.
5.1 REPRESENTATIONS AND WARRANTIES. The representations and warranties of
Seller contained in Section 2 shall have been true and correct in all material
respects on the date of this Agreement and shall be true and correct in all
material respects at and as of immediately prior to the Closing with the same
effect as though made at and as of immediately prior to the Closing.
5.2 PERFORMANCE. Seller shall have performed and complied in all material
respects with all covenants required herein to be performed or complied with by
Seller at or before the Closing, including without limitation those to be
performed at the Closing pursuant to Section 1.
5.3 CLOSING CERTIFICATE. Seller shall have delivered to the Company a
certificate, dated the date of the Closing in form and substance reasonably
satisfactory to the Company, certifying that the conditions specified in
Sections 5.1 and 5.2 are satisfied.
5.4 OPINION OF COUNSEL. The Company shall have received from Stroock &
Stroock & Xxxxx LLP, counsel to Seller, an opinion dated the date of the
Closing, as to the subject matter set forth in EXHIBIT 5.4 and otherwise in form
and substance reasonably satisfactory to the Company.
5.5 TRANSACTIONAL LITIGATION. No action, suit or proceeding before any
court or Governmental Agency shall have been commenced, and no investigation by
any Governmental Agency shall have been commenced or overtly threatened, against
the Company or Seller or any of their respective principals, officers, directors
or shareholders seeking to restrain, prevent or change the transactions
contemplated hereby or questioning the validity or legality of any of such
transactions or seeking damages in connection with any of such transactions.
5.6 RESIGNATIONS. All directors of the Company elected by Seller shall have
delivered their written resignation as directors, effective upon the Closing.
5.7 CORPORATE AND OTHER PROCEEDINGS. All corporate and other proceedings on
the part of Seller in connection with the transactions to be consummated at the
Closing, and all documents and instruments incident to such transactions, shall
be reasonably satisfactory in substance and form to the Company.
5.8 CONSENTS. The Company shall have secured consents from any Person
necessary in order to close the transactions contemplated by this Agreement
without thereby causing any breach, default or acceleration under any Contract
to which the Company is a party or by which the Company or its Property is
bound, including those set forth on SCHEDULE 3.3, other than any such consents
the receipt of which the Company may waive in its sole discretion.
5.9 CLOSING DOCUMENTS. The documents to be executed at the Closing shall
have been duly executed by the other parties thereto.
5.10 SETTLEMENT OF ACCOUNTS. All accounts receivable and accounts payable
between the Company and Seller shall have been settled in their entirety.
SECTION 6 CONDITIONS TO OBLIGATIONS OF SELLER AT THE CLOSING
The obligations of Seller hereunder to be performed at the Closing are
subject to the satisfaction at or prior to the Closing of the following
conditions, except for any condition Seller may waive in accordance with Section
7.5.
6.1 REPRESENTATIONS AND WARRANTIES. The representations and warranties of
the Company contained in Section 3 shall have been true and correct in all
material respects on the date of this Agreement and shall be true and correct in
all material respects at and as of immediately prior to the Closing with the
same effect as though made at and as of immediately prior to the Closing.
6.2 PERFORMANCE. The Company shall have performed and complied in all
material respects with all covenants required herein to be performed or complied
with by the Company at or before the Closing, including without limitation those
to be performed at the Closing pursuant to Section 1.
6.3 CLOSING CERTIFICATE. The Company shall have delivered to Seller a
certificate, dated the date of the Closing in form and substance reasonably
satisfactory to Seller, certifying that the conditions specified in Sections 6.1
and 6.2 are satisfied.
6.4 OPINION OF COUNSEL. Seller shall have received at the Closing from
Xxxxxxx Coie LLP, counsel to the Company, an opinion dated the date of the
Closing, as to the subject matter set forth in EXHIBIT 6.4 and otherwise in form
and substance reasonably satisfactory to Seller.
6.5 TRANSACTIONAL LITIGATION. No action, suit or proceeding before any
court or Governmental Agency shall have been commenced, and no investigation by
any Governmental Agency shall have been commenced or overtly threatened, against
the Company or Seller or any of their respective principals, officers, directors
or shareholders seeking to restrain, prevent or change the transactions
contemplated hereby or questioning the validity or legality of any of such
transactions or seeking damages in connection with any of such transactions.
6.6 CORPORATE AND OTHER PROCEEDINGS. All corporate and other proceedings on
the part of the Company in connection with the transactions to be consummated at
the Closing, and all documents and instruments incident to such transactions,
shall be reasonably satisfactory in substance and form to Seller.
6.7 CONSENTS. Seller shall have secured consents from any Person necessary
in order to close the transactions contemplated by this Agreement without
thereby causing any breach, default or acceleration under any Contract to which
Seller is a party or by which Seller or its Property is bound, including those
set forth on SCHEDULE 2.3, other than any such consents the receipt of which
Seller may waive in its sole discretion.
6.8 CLOSING DOCUMENTS. The documents to be executed at the Closing shall
have been duly executed by the other parties thereto.
6.9 SETTLEMENT OF ACCOUNTS. All accounts receivable and accounts payable
between the Company and Seller shall have been settled in their entirety.
SECTION 7 MISCELLANEOUS
7.1 TERMINATION; REMEDIES.
(a) This Agreement may be terminated and the transactions contemplated
hereby may be abandoned:
(i) at any time, by the mutual agreement of the Company and Seller;
(ii) by either the Company or Seller at any time if the other is in breach
or default of its covenants, agreements, or other obligations in this Agreement
provided that the terminating party is not in breach or default of its
covenants, agreements or other obligations in this Agreement, or if any of the
representations of the others in this Agreement are not true and accurate in all
material respects;
(iii) by either the Company or Seller upon written notice to the other, if
any of the conditions to its obligations set forth in Sections 5 and 6,
respectively, shall not have been satisfied on or before October 1, 2006, for
any reason other than a breach or default by the terminating party of its
respective covenants, agreements, or other obligations under this Agreement, or
any of its or their representations and warranties in this Agreement not being
true and accurate in all material respects as of the date of this Agreement or
as of October 1, 2006;
(iv) by either party if the Closing has not occurred as of October 1, 2006;
or
(v) as otherwise provided in this Agreement.
(b) If this Agreement is terminated pursuant to Section 7.1(a)(ii), the
party in breach or default of its covenants, agreements, or other obligations
shall within ten (10) days of such termination date pay to the terminating party
$500,000 by wire transfer or immediately available funds to an account
designated by the terminating party. Additionally, if this Agreement is
terminated pursuant to either of Sections 7.1(a)(ii) or (iii) above, each of the
parties shall be entitled to such rights and remedies as are available at law or
in equity for or in respect of any breach by any other party of its respective
agreements, covenants and other obligations in this Agreement, all of which
shall be cumulative.
7.2 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the parties herein and in certificates delivered at Closing
pursuant hereto will survive the Closing and any investigation of the subject
matter thereof by another party.
7.3 NO BROKERS, FINDERS, ETC. Each party represents and warrants to each
other party that neither it, he nor any of its or his Affiliates has engaged any
agent, broker, finder or investment or commercial banker in connection with the
negotiation, execution or performance of this Agreement or the transactions
contemplated hereby. Each party will indemnify, defend and hold harmless each
other party against any claim for broker's fees, finder's fees or any similar
fees which is inconsistent with the first party's foregoing representation and
warranty.
7.4 EXPENSES. Whether or not the transactions contemplated by this
Agreement are consummated, the Company and Seller shall each pay and bear their
own fees and expenses incident to the negotiation, preparation, execution,
delivery and performance hereof, including, without limitation, the fees and
expenses of their respective counsel, accountants and other experts and any
Xxxx-Xxxxx filing fee.
7.5 COMPLETE AGREEMENT; WAIVER AND MODIFICATION, ETC. This Agreement, the
agreements referred to in Section 1.4 and the other documents referred to herein
or therein executed in connection herewith and therewith constitute the entire
agreement between the parties pertaining to the subject matter hereof and
supersede all prior agreements and understandings of the parties, including
without limitation the letter of intent dated August 2, 2006. There are no
representations or warranties by any party except those expressly stated or
provided for herein, any implied warranties being hereby expressly disclaimed.
There are no covenants or conditions except those expressly stated herein. No
amendment, supplement or termination of or to this Agreement, and no waiver of
any of the provisions hereof, shall be binding on a party unless made in a
writing signed by such party. Nothing in this Agreement shall be construed to
give any Person other than the express parties hereto any rights or remedies.
7.6 NOTICES. All notices, requests, demands, claims and other
communications hereunder shall be in writing and shall be given by delivery (by
mail or otherwise) or transmitted to the address or facsimile number listed
below, and will be effective (in all cases) upon receipt. Without limiting the
generality of the foregoing, a mail, express, messenger or other receipt signed
by any Person at such address shall conclusively evidence delivery to and
receipt at such address, and any printout showing successful facsimile
transmission of the correct total pages to the correct facsimile number shall
conclusively evidence transmission to and receipt at such facsimile number.
(a) If to Seller:
Interpool, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Counsel
Facsimile: (000) 000-0000
and
Interpool, Inc.
000 Xxxxxxx Xxxx Xxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Attention: Chief Executive Officer
Facsimile: (000) 000-0000
(b) If to the Company:
Container Applications International, Inc.
Xxx Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xx. Xxxxxxxxx Xxxxx
Facsimile: (000) 000-0000
Any party may change its or his address or facsimile number for purposes of this
Section 7.6 by giving the other parties written notice of the new address or
facsimile number in accordance with this Section 7.6, PROVIDED it is a normal
street address or normal operating facsimile number. 7.7 LAW GOVERNING. This
Agreement shall be interpreted in accordance with and governed by the laws of
the State of New York, without regard to principles of conflicts of laws.
7.8 HEADINGS; REFERENCES; "HEREOF," ETC. The Section headings in this
Agreement are provided for convenience only, and shall not be considered in the
interpretation hereof. References herein to Sections, Exhibits or Schedules
refer, unless otherwise specified, to the designated Section of, Exhibit to or
Schedule of this Agreement. Terms such as "herein," "hereto" and "hereof" refer
to this Agreement as a whole.
7.9 SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit of
and be binding upon the heirs, executors, administrators and successors of the
parties hereto, but no right or liability or obligation arising hereunder may be
assigned by any party hereto.
7.10 COUNTERPARTS; FACSIMILE SIGNATURES. This Agreement may be executed by
facsimile in any number of counterparts, or using separate signature pages. Each
such executed counterpart and each counterpart to which such signature pages are
attached shall be deemed to bean original instrument, but all such counterparts
together shall constitute one and the same instrument.
7.11 ATTORNEYS' FEES. In the event any suit, counterclaim, arbitration or
other proceeding is brought to enforce or interpret the provisions of this
Agreement, the prevailing party shall be entitled to recover from the
nonprevailing party, in addition to all other remedies available at equity and
law, the cost, including but not limited to reasonable attorneys' fees, incurred
by the prevailing party therein, including any appeal or other subsequent
proceeding. A party shall be considered to prevail if it secures a more
favorable result than the other party (who shall be considered the nonprevailing
party), as determined by the arbitrator or judge.
SECTION 8 DEFINITIONS
As used in this Agreement, the following terms (whether used in singular or
plural forms) shall have the following meanings:
AFFILIATE - a Person who controls, is controlled by or is under common
control with another Person. For purposes of this definition, "control" means
the possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a Person, whether through the
ownership of voting securities, by contract or otherwise.
AGREEMENT - this Redemption Agreement, including the Exhibits and Schedules
hereto.
BUSINESS DAY - any day on which banks located in each of New York City and
San Francisco are generally open for business.
CAI/IP AGREEMENT - has the meaning given in Section 5.9.
CASH PURCHASE PRICE - has the meaning given in Section 1.2(a).
CLOSING - has the meaning given in Section 1.3.
COMMON STOCK - the common stock, no par value, of the Company.
COMPANY - has the meaning given in the preamble to this Agreement.
CONTRACT - any agreement, written or oral, or any promissory note or other
instrument of a contractual nature, which is intended to be enforceable against
the Person in question or against any Property of such Person. Any Person which
is, or any of whose Property is, subject to enforcement of a Contract shall, for
purposes of this Agreement, be deemed a party to it.
GOVERNMENTAL AGENCY - any agency, department, board, commission, district
or other public organ, whether federal, state, local or foreign.
EXISTING SUBORDINATED NOTE - the Subordinated Secured Note dated April 30,
1998, in the original principal amount of $33,650,000 and with a remaining
unpaid principal amount of [$3,460,000] as of the Closing, given by the Company
as maker in favor of Seller as holder.
INVESTOR RIGHTS AGREEMENT - has the meaning given in Section 1.4(d).
LEGAL REQUIREMENT - a statute, regulation, ordinance or similar legal
requirement, whether federal, state, local or foreign, or any requirement of a
permit or other authorization issued by a Governmental Agency.
LIEN - any lien, security interest, mortgage, deed of trust, pledge,
hypothecation, capitalized lease or interest or right for security purposes.
MANAGEMENT AGREEMENT - has the meaning given in Section 1.4(e).
NOTE ISSUANCE AGREEMENT - has the meaning given in Section 1.4(b).
ORDER - any judgment, injunction, order or similar mandatory direction of,
or stipulation or agreement filed with, a Governmental Agency, court, judicial
body, arbitrator or arbitral body.
PERSON - an individual, or a corporation, partnership, limited liability
company, trust, association or other entity of any nature, or a Governmental
Agency.
POTENTIAL TRANSACTION - has the meaning given in Section 4.2.
PROPERTY - any interest in any real, personal or mixed property, whether
tangible or intangible.
PURCHASE PRICE - has the meaning given in Section 1.2.
TERMINATION AGREEMENT - has the meaning given in Section 1.4(f).
SEC - United States Securities and Exchange Commission.
SELLER - has the meaning given in the preamble to this Agreement.
SHARES - has the meaning given in the Recitals.
SUBORDINATED NOTE - has the meaning given in Section 1.2(b).
THIRD-PARTY ACTION - any consent, waiver, release, approval, license or
other authorization of, or notice to, or filing with, any other Person, whether
or not a Governmental Agency; and the expiration of any associated mandatory
waiting period.
THIRD-PARTY RIGHT - any Lien on any Property of the Person in question, or
any right (other than the rights of the Company hereunder) (i) to acquire,
lease, use, dispose of, vote or exercise any right or power conferred by, such
Property, or (ii) restricting the Person's right to lease, use, dispose of, vote
or exercise any right or power conferred by, such Property.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first set forth above.
SELLER: INTERPOOL, INC.
By: /S/ XXXXXXX X. XXXXX
-------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Executive Vice President
THE COMPANY: CONTAINER APPLICATIONS
INTERNATIONAL, INC.
By: /S/ XXXXXXXXX XXXXX
--------------------------------
Name: Xxxxxxxxx Xxxxx
Title: Chief Executive Officer
