EXHIBIT 10.10
IRREVOCABLE FUNDING, WARRANT PURCHASE AND
REIMBURSEMENT AGREEMENT
Dated: October 18, 2002
Among
AIG Highstar Capital, L.P.
and
TransCore Holdings, Inc.
and
TransCore Credit Corporation
IRREVOCABLE FUNDING, WARRANT PURCHASE AND
REIMBURSEMENT AGREEMENT
AGREEMENT made this 18th day of October 2002 by and between AIG HIGHSTAR
CAPITAL, L.P., a Delaware limited partnership ("AIG Highstar"), having an office
at 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, TRANSCORE HOLDINGS,
INC., a Delaware corporation ("TransCore") having an office at 0000 Xxxxx Xxxxx,
Xxxxxxx Center - Building 200, Xxxxxxxxxxx, Xxxxxxxxxxxx 00000, and TRANS CORE
CREDIT CORPORATION, a Delaware corporation and wholly owned subsidiary of
TransCore ("TCC"), having an office at 0000 Xxxxx Xxxxx, Xxxxxxx Center -
Building 200, Xxxxxxxxxxx, Xxxxxxxxxxxx 00000.
BACKGROUND
TransCore, among other things, provides technology-based services to
entities to manage ground transportation systems, assets and transactions.
As a routine part of its business and to secure its obligations under
contracts, TransCore must deliver to its customers surety bonds issued by
licensed surety companies.
In a typical surety bond arrangement, the surety company issues its bond
to an obligee guaranteeing TransCore's performance under a contract in exchange
for a premium and a contractual undertaking by TransCore, as principal, to
reimburse the surety company if it is required to perform under the bond.
TransCore has experienced rapid growth and an accompanying need for
additional capacity to obtain and deliver surety bonds.
In order to support additional bonding capacity, TransCore is seeking to
establish a dedicated first loss indemnity pool of capital to support the
underwriting and issuance of surety bonds by surety companies on behalf of
TransCore.
AIG Highstar is an existing investor in TransCore and holds 218 shares of
TransCore Class A preferred stock, 103,328 shares of Class C-1 convertible
preferred stock, $2,200,000 of subordinated debt, a warrant to acquire 10,920.5
shares of TransCore Class A Common Stock and a warrant to acquire 219 shares of
Class B Common Stock.
AIG Highstar has agreed, in consideration for a Warrant to purchase 46,680
shares of TransCore Class A Common Stock at a price of $.01 per share and
certain other consideration, to invest up to $20 million in a bankruptcy remote
subsidiary of TransCore to provide the capital necessary to increase the ability
of TransCore to obtain and deliver surety bonds.
1
TransCore has formed TCC as a bankruptcy remote, wholly owned subsidiary
solely for the purpose of entering into this Agreement (along with any necessary
supporting agreements) and creating a first loss indemnity pool of capital to
support the issuance of surety bonds on behalf of TransCore and related
activities.
TransCore has agreed to reimburse AIG Highstar for any payments made by
AIG Highstar to TCC on behalf of TransCore under the terms of this Agreement.
AGREEMENT
SECTION 1. DEFINITIONS
1.1. General Provisions. Unless expressly provided otherwise in
this Agreement, or unless the context requires otherwise:
(a) all accounting terms used in this Agreement shall have
the meanings ascribed to them in accordance with GAAP;
(b) all terms used herein that are defined in the UCC, shall
have the meanings set forth therein;
(c) all capitalized terms defined in this Agreement shall
have the same defined meanings when used in any other documents made
or delivered pursuant to this Agreement;
(d) the singular shall include the plural, the plural shall
include the singular, and the use of any gender shall include all
genders;
(e) all references to any particular party defined herein
shall be deemed to refer to each and every person defined herein as
such party individually, and to all of them, collectively, jointly
and severally, as though each were named wherever the applicable
defined term is used;
(f) all references to "Sections," "Subsections,"
"Paragraphs" and "Subparagraphs" shall refer to provisions of this
Agreement;
(g) all references to time herein shall mean Eastern
Standard Time or Eastern Daylight Time, as then in effect; and
(h) all references to sections, subsections, paragraphs or
other provisions of statutes or regulations shall be deemed to
include successor, amended, renumbered and
2
replacement provisions.
1.2. Defined Terms. As used herein, the following terms shall have
the meanings indicated, unless the context otherwise requires:
"Additional Letter of Credit" shall mean a direct pay, standby
letter of credit issued in favor of TCC for the account of TransCore or an
Affiliate by a financial institution that is rated at least A+ by Standard &
Poor's Corporation, or its equivalent by Xxxxx'x Investor Services, Inc., and
containing terms that are substantially the same as the terms of any related TCC
Obligation to such Issuer; provided that the aggregate amount of all such
Additional Letters of Credit when combined with the aggregate amount of the AIG
Highstar Payment Commitment shall at no time exceed $40 million.
"Affiliate" shall mean, with respect to any applicable Person, any
other Person that directly or indirectly through one or more intermediaries,
controls, is controlled by, or is under common control with, such Person. For
purposes of this definition, "control" of a Person shall mean the power,
directly or indirectly, either to (i) vote five percent (5%) or more of the
capital stock having ordinary voting power for the election of directors of such
Person (or similar ownership interests in voting power in the case of control of
a Person other than a corporation), or (ii) direct or cause the direction of the
management and policies of such Person, whether by contract or otherwise;
provided, however, that AIG Highstar shall not be deemed to be an Affiliate of
TCC or TransCore for any purpose.
"Agreement" shall mean this Irrevocable Funding, Warrant Purchase
and Reimbursement Agreement and any future amendments, restatements,
modifications or supplements hereof or hereto.
"AIG Highstar Payment" shall mean a payment made by AIG Highstar to
TCC in respect of a TCC Obligation that is not promptly reimbursed by TransCore
pursuant to the terms of this Agreement.
"AIG Highstar Payment Certificate" shall mean a certificate in the
form of Exhibit E attached hereto and made a part hereof executed by an
Authorized Officer of TCC certifying as to the matters therein described and
requesting payment from AIG Highstar pursuant to Section 5.1.
"AIG Highstar Payment Commitment" shall mean the irrevocable
commitment set forth in Section 3.1 of this Agreement by AIG Highstar to TCC
that guarantees payment to TCC of any TCC Obligation, up to a maximum amount
equal to the AIG Highstar Payment Limit, subject to the terms and conditions of
this Agreement.
"AIG Highstar Payment Commitment Period" shall mean the period
beginning on the date hereof and continuing until the earlier of: (i) November
16, 2006, (ii) the occurrence of a Change in Control; provided, that the AIG
Highstar Commitment Period shall be suspended during the continuance of a
TransCore Default; provided that any such commitment shall not be used by TCC to
support a surety bond or letter of credit obligation extending beyond November
16, 2006.
"AIG Highstar Payment Limit" shall mean: (i) on or before December
31, 2004, $20 million, and (ii) after December 31, 2004 and on or before
November 16, 2006, $4 million; provided, however, that in the aggregate the AIG
Highstar Payment Limit shall at no time exceed $20 million.
3
"AIG Surety Agreement" shall mean collectively (i) the Indemnity
Agreement dated on or after the date hereof and on or before October 31, 2002
among TransCore and its Affiliates and insurance companies forming a part of
American International Group, Inc. family of insurance companies ("AIG Surety")
and any future amendments, restatements, modifications or supplements thereof or
thereto relating to the issuance of surety bonds by AIG Surety on behalf of
TransCore, and (ii) the Commitment Letter.
"Authorized Officer" shall mean, collectively, the President, Chief
Financial Officer, individual General Partner or Managing Member or any other
officer of any Person designated as an Authorized Officer in writing.
"Bankruptcy Code" shall mean the United States Bankruptcy Code,
Title 11 of the United States Code, as amended, or any successor law thereto,
and any rules promulgated in connection therewith.
"Business Day" shall mean a day other than (i) a Saturday or Sunday,
(ii) a legal holiday on which banking institutions in the State of New York are
authorized or required by law to close, or (iii) a day on which the New York
Stock Exchange is closed.
"Capital Stock" shall mean as to any Person, its shares and any
shares of common or preferred stock or other Capital Stock of such Person
authorized from time to time, and any other shares, options, interest,
participations, or other equivalents (however designated) of or in such Person,
whether voting or non-voting, including, without limitation, common stock,
options, warrants, phantom stock, stock appreciation rights, preferred stock,
convertible notes or debentures, stock purchase rights, and all agreements,
instruments, documents and securities convertible, exercisable, or exchangeable,
in whole or in part, into any one or more of the foregoing.
"Change in Control" shall mean (a) prior to a Qualified IPO, the
Founding Shareholders and AIG Highstar and their respective Affiliates cease to
collectively control capital stock of TransCore representing at least 51% of the
voting power of TransCore capital stock; provided, however, that no Change of
Control would be deemed to have occurred if the Founding Shareholders and AIG
Highstar and their respective Affiliates cease to collectively control capital
stock of TransCore representing at least 51% of the voting power of TransCore
capital stock by reason of the issuance of capital stock of TransCore
representing 30% or less of the voting power of TransCore capital stock on a
fully diluted basis to effect an acquisition or series of acquisitions, or (b)
after a Qualified IPO, any "person" or "group" as such terms are used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), is or becomes the "beneficial owner" (as defined in Rules 13d-5
under the Exchange Act except that a person shall be deemed to have "beneficial
ownership" of all securities that such person has the right to acquire, whether
such right is exercisable immediately or only after the passage of time),
directly or indirectly, of more than fifty percent (50%) of the total voting
power of the issued and outstanding voting capital stock of TransCore normally
entitled to vote in the election of directors of TransCore.
"Charter Documents" shall mean the articles or certificates of
incorporation, the bylaws and any certificate of designation of preferred stock
of any Person.
4
"Closing Date" shall mean the date hereof.
"Commitment Letter" shall mean the letter dated on or after the date
hereof and on or before October 31, 2002 from AIG Surety to TransCore and any
future amendments, restatements, modifications or supplements thereof or thereto
relating to the issuance of surety bonds by AIG Surety on behalf of TransCore.
"Eligible Bond" shall mean any bond outstanding as of the date
hereof: (i) that was (A) issued to an Eligible Obligee, (B) identified in the
AIG Surety Agreement as entitled to seek reimbursement from TCC, and (C) set
forth on Schedule 1.2 hereof, and (ii) with respect to which any letter of
credit issued on behalf of TransCore to secure such bond has been or is
hereafter released. An Eligible Bond also shall mean any bond that (x) will be
issued to an Eligible Obligee (A) on or between the date hereof and October 31,
2003, or (B) after October 31, 2003 if such surety bond is scheduled to be
released on or before October 31, 2004, (y) will be issued pursuant to a Surety
Bond Agreement by an Issuer to an Eligible Obligee on behalf of TransCore or its
Affiliates, and (z) contains customary terms and conditions, including standard
subrogation and other rights, and guaranteeing to the Eligible Obligee payment
or performance by TransCore or its Affiliates under a contract between TransCore
or its Affiliates and the Eligible Obligee; provided, however, that a bond that
does not meet the requirements of paragraph (x) of this sentence but that does
meet the requirements of paragraphs (y) and (z) of this sentence will be deemed
to be an Eligible Bond if TransCore delivers to TCC an Additional Letter of
Credit in an amount equal to one-third (1/3) of the amount of the bond; provided
further, that notwithstanding the terms of any such surety bond, the AIG
Highstar Payment Commitment shall, in all cases, be subject to the AIG Highstar
Payment Limit as provided herein and the AIG Highstar Payment Commitment shall
be further limited by the application of Section 5.5 hereof.
"Eligible Obligee" shall mean entities located in the United States,
Puerto Rico or other United States possessions that are primarily responsible
for transportation infrastructure systems and services, and transactions related
to the operation of such systems and services.
"Environmental Laws" shall mean any US federal, foreign, state, or
local statute, law, rule, regulation, ordinance, code, policy, or rule of common
law now or hereafter in effect and any judicial or administrative interpretation
thereof, including any judicial or administrative order, consent, decree or
judgment relating to any omissions, releases, or discharges of Hazardous
Materials into ambient air, surface water, ground water or land or otherwise
relating to the manufacturing process, distribution, use, treatment, storage,
disposal, transport, handling, clean up or control of Hazardous Materials or
other exposure or impact on worker health and safety.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as the same may from time to time be amended, and the rules and
regulations of any governmental agency or authority, as from time to time in
effect, promulgated thereunder.
"Founding Shareholders" shall have the meaning given to such term in
the Shareholders' Agreement.
"GAAP" shall mean, at any particular time, United States generally
accepted accounting principles as in effect at such time, provided, however,
that, if employment of more than one principle
5
shall be permissible at such time in respect of a particular accounting matter,
"GAAP" shall refer to the principle which is then employed by TransCore or TCC
with the agreement of its independent certified public accountants.
"Hazardous Material" shall mean (a) any asbestos, PCBs or dioxins or
insulation or other material composed of or containing asbestos, PCBs or dioxins
and (b) any petroleum products and any chemical, material, or other substance
defined as a "hazardous substance," "hazard waste" "toxic substance" or "toxic
waste" under any Environmental Law.
"Issuer" shall mean an insurance company that possesses a
certificate of authority to issue Surety Bonds and does so on behalf of
TransCore or its Affiliates.
"Lien" shall mean any security interest, pledge, bailment, mortgage,
deed of trust, conditional sales and title retention agreement (including any
lease in the nature thereof), charge, encumbrance or other similar arrangement
or interest in real or personal property, whether such interest is based on
common law, statute or contract.
"Material Adverse Effect" shall mean any act, omission, event or
undertaking which would, singly or in the aggregate, have a materially adverse
effect on the business, assets, properties, liabilities, condition (financial or
otherwise), results of operations or business prospects of TransCore or any of
its Subsidiaries taken as a whole, the respective ability of TransCore or any of
its Subsidiaries (or any other obligor) to perform any obligations under the
Transaction Documents or the legality, validity, binding effect, enforceability
or admissibility into evidence of the Transaction Documents or the ability of
AIG Highstar to enforce any rights or remedies under or in connection with the
Transaction Documents.
"Multi-employer Plan" shall mean a multi-employer plan (within the
meaning of Section 3(37) of ERISA) that is maintained for the benefit of the
employees of TransCore or its Subsidiaries.
"Note Purchase Agreement" shall mean that certain Subordinated Note
Purchase Agreement dated as of February 5, 2001, among TransCore and various
purchasers, as amended from time to time.
"Notification of Substitute Letter of Credit Draw" shall mean the
form of notice of draw in substantially the form attached as Exhibit A to the
form of Substitute Letter of Credit attached hereto as Exhibit C pursuant to
which TCC makes a draw under a Substitute Letter of Credit pursuant to Section
6.1 of this Agreement.
"Permitted Liens" has the meaning assigned to such term in Section
7.2(b) of the Note Purchase Agreement.
"Person" shall mean an individual, a corporation, a partnership, a
joint venture, a trust or unincorporated organization, a joint stock company or
other similar organization, a government or any political subdivision thereof,
or any other legal entity.
"Plan" shall mean any employee benefit plan (within the meaning of
Section 3(3) of ERISA), other than a Multi-employer Plan, established or
maintained by TransCore or its Subsidiaries.
6
"Proprietary Rights" shall mean all patents, patent applications,
trademarks, trade names, service marks, copyrights, inventions, production
methods, formulas, know-how and trade secrets.
"Qualified IPO" shall mean any bona fide firm commitment
underwritten offering by TransCore of its Class A Common Stock to the public
pursuant to an effective registration statement under the Securities Act of
1933, as amended, or any comparable statement under any similar federal statute
then in force, which results in net proceeds in excess of $90,000,000 and
results in a market capitalization of TransCore of not less than $250,000,000.
"Reportable Event" shall mean any of the events which are reportable
under Section 4043 of ERISA and the regulations promulgated thereunder, other
than an occurrence for which the 30-day notice contained in 29 C.F.R. Section
2615(a) is waived.
"Shareholders' Agreement" shall mean that certain Shareholders'
Agreement to which TransCore and AIG Highstar are parties dated as of September
3, 1999, as amended by Amendment No. 1 thereto dated as of June 30, 2000, as
further amended by Amendment No. 2 thereto dated as of February 5, 2001.
"Subsidiary" shall mean any corporation more than fifty percent (50%) of
the outstanding shares of capital stock of which (except for directors'
qualifying shares, if required by law) are at the time owned by TransCore and/or
one or more Subsidiaries.
"Substitute Letter of Credit" shall mean a letter of credit substantially
in the form attached hereto as Exhibit C delivered by AIG Highstar to TCC or an
Issuer pursuant to Section 3.4 of this Agreement at the request of TCC and in
substitution for the AIG Highstar Payment Commitment.
"Substitute Letter of Credit Notice" shall mean a notice substantially in
the form attached hereto as Exhibit B delivered by TCC to AIG Highstar pursuant
to Section 3.4 of this Agreement notifying AIG Highstar that an Issuer, as a
condition to issuance of an Eligible Bond, requires a Substitute Letter of
Credit.
"Surety Bond Agreement" shall mean the AIG Surety Agreement and any
agreement among an Issuer, TCC, TransCore or its Affiliate pursuant to which the
Issuer agrees to issue an Eligible Bond and TCC, as first loss indenmitor, and
TransCore or its Affiliates agree to reimburse the Issuer for any amount paid by
the Issuer in respect of such Eligible Bond to the Eligible Obligee thereunder.
"TCC Commitment" shall mean the irrevocable commitment set forth in
Section 2.1 of this Agreement by TCC to TransCore that guarantees payment to an
Issuer of any TCC Obligation during the TCC Obligation Period.
"TCC Obligation" shall mean the amount of any commitment made by TCC
during the TCC Obligation Period to indemnify an Issuer if the Issuer is
required to make any payment to an Eligible Obligee, or incur any expense on
behalf of an Eligible Obligee, under an Eligible Bond, which obligation shall
exist immediately upon execution of the related Surety Bond Agreement.
7
"TCC Obligation Notice" shall mean a written notice, in the form attached
hereto as Exhibit A, delivered by TCC to AIG Highstar and an Issuer and setting
forth the amount and material terms of any TCC Obligation.
"TCC Obligation Period" shall mean the period beginning on the date hereof
and continuing until the earlier of: (i) September 30, 2007, (ii) the occurrence
of a Change in Control, or (iii) a TransCore Default.
"TCC Payment" shall mean a payment made by TCC to an Issuer in respect of
a TCC Obligation.
"TCC Payment Certificate" shall mean a certificate in the form of Exhibit
B attached hereto and made a part hereof executed by an Authorized Officer of
TransCore certifying as to the matters therein described and requesting payment
from TCC pursuant to Section 4.1.
"Transaction Documents" shall mean this Agreement, the Warrant and all
other documents executed in connection with this Agreement and the Warrant.
"Transaction" shall mean the transactions contemplated by this Agreement
and the Warrant.
"TransCore Default" shall mean an uncured, material default by TransCore
under any of the TransCore Credit Documents that has not been: (i) waived by the
applicable lender; or (ii) cured within the applicable cure period provided in
the TransCore Credit Documents; provided, however, that any such default shall
be reported to AIG Highstar within five (5) Business Days after TransCore
becomes aware of such default.
"TransCore Credit Documents" shall mean: (i) that certain Second Amended
and Restated Loan and Security Agreement dated as of February 5, 2001, (as
amended by the First Amendment to the Second Amended and Restated Loan and
Security Agreement dated as of July 20, 2001, the Second Amendment to the Second
Amended and Restated Loan and Security Agreement dated as of September 10, 2001,
the Third Amendment to Second Amended and Restated Loan and Security Agreement,
Temporary Waiver and Consent dated as of February 15, 2002, the Fourth Amendment
to Second Amended and Restated Loan and Security Agreement and Waiver dated as
of May 31, 2002 and the Fifth Amendment to Second Amended and Restated Loan and
Security Agreement dated as of August 21, 2002 and as further amended, restated,
supplemented or otherwise modified from time to time) (ii) that certain Amended
and Restated Note Purchase Agreement dated as of February 5, 2001, (as amended
by that certain First Amendment thereto dated as of July 20, 2001, that Second
Amendment thereto dated as of September 7, 2001, that certain Third Amendment to
the Amended and Restated Note Purchase Agreement, Temporary Waiver and Consent
dated as of February 15, 2002, and that certain Fourth Amendment to the Amended
and Restated Note Purchase Agreement and Waiver dated May 31, 2002, as amended,
restated, supplemented, or otherwise modified from time to time) and (iii) that
certain Loan and Security Agreement dated as of October 17, 2002.
"TransCore Payment Certificate" shall mean a certificate in the form of
Exhibit F attached hereto and made a part hereof executed by an Authorized
Officer of AIG Highstar certifying as to the matters therein described and
requesting payment from TransCore pursuant to Section 6.2.
8
"UCC" shall mean the New York Uniform Commercial Code, as modified,
amended, revised, supplemented and restated from time to time.
"Warrant" shall mean that certain Warrant to acquire 46,680 shares of
Class A Common Stock of TransCore at a price of $.01 per share dated as of the
date hereof and issued by TransCore to AIG Highstar.
SECTION 2. AMOUNT AND TERMS OF TCC COMMITMENT
2.1. Issuance of TCC Commitment. Subject to the terms of this
Agreement, TCC hereby issues to TransCore the TCC Commitment.
2.2. Amount of TCC Commitment. The TCC Commitment, in the
aggregate, shall be the sum of all TCC Obligations.
2.3. Creation and Amount of TCC Obligations. A TCC Obligation shall
be created upon execution of a Surety Bond Agreement. No TCC Obligation
shall be created after September 30, 2007, each TCC Obligation shall
expire upon expiration of the related Eligible Bond, and all TCC
Obligations shall expire at the end of the TCC Obligation Period.
SECTION 3. AMOUNT AND TERMS OF AIG HIGHSTAR PAYMENT COMMITMENT
3.1. Issuance of AIG Highstar Payment Commitment
Subject to the terms of this Agreement, AIG Highstar hereby
issues to TCC the AIG Highstar Payment Commitment with respect to all TCC
Obligations, such AIG Highstar Payment Commitment not to exceed the AIG Highstar
Payment Limit.
3.2. Adjustment of AIG Highstar Payment Commitment
(a) As of the date hereof, the AIG Highstar Payment
Commitment shall equal the AIG Highstar Payment Limit.
(b) As of any date prior to the expiration of the AIG
Highstar Payment Commitment Period the AIG Highstar Payment
Commitment shall be the AIG Highstar Payment Limit less the sum of
the then existing or outstanding: (i) AIG Highstar Payments, and
(ii) the stated amount of any outstanding Substitute Letters of
Credit. Accordingly, the AIG Highstar Payment Commitment may vary in
amount based on amounts, if any, outstanding under (i) and (ii),
provided it shall never exceed the AIG Highstar Payment Limit.
9
(c) After the expiration of the AIG Highstar Payment
Commitment Period, the AIG Highstar Payment Commitment shall be zero
and no portion of the AIG Highstar Payment Commitment shall be used
in respect of a TCC Obligation that extends beyond the AIG Highstar
Payment Commitment Period.
3.3. Identification of TCC Obligations. TCC shall identify each TCC
Obligation by delivery to AIG Highstar and the Issuer of a TCC Obligation
Notice in the form attached as Exhibit A hereto. Each TCC Obligation
Notice shall be delivered by TCC to AIG Highstar and the Issuer within ten
(10) Business Days after the issuance date of the Surety Bond Agreement to
which it relates.
3.4. Substitute Letters of Credit; Letter of Credit Fee.
Notwithstanding anything contained herein to the contrary, upon the
written request of an Issuer to TransCore or TCC, and delivery of a
Substitute Letter of Credit Notice from TCC to AIG Highstar in the form
attached hereto as Exhibit B, AIG Highstar shall deliver to TCC a
Substitute Letter of Credit in substantially the form attached hereto as
Exhibit C within twelve (12) Business Days of such request. The amount of
the AIG Highstar Payment Commitment shall be reduced by the stated amount
of the Substitute Letter of Credit for so long as such Substitute Letter
of Credit is outstanding. Such delivery shall occur contemporaneously with
the execution of a Surety Bond Agreement by TCC and the Issuer and the
creation of a TCC Obligation. If AIG Highstar is required to issue to TCC
a Substitute Letter of Credit, TransCore shall pay to AIG Highstar an
amount equal to 1.25% per annum of the aggregate amount of any such
Substitute Letters of Credit issued and outstanding, payable quarterly in
arrears.
3.5. Non-exclusive Bonding Facility. Nothing contained in this
Agreement shall in any way require that TransCore cannot satisfy its
bonding requirements directly or in any other manner that TransCore, in
its sole discretion, shall determine.
SECTION 4. TCC PAYMENTS
4.1. Demand for Payment. Upon payment by an Issuer to an Eligible
Obligee in connection with an Eligible Bond, TransCore shall make a demand
for a TCC Payment by delivery to TCC of a written TCC Payment Certificate
signed by an Authorized Officer of TransCore in the form attached hereto
as Exhibit D. The TCC Payment Certificate shall reference the Surety Bond
Agreement previously executed by TCC related to the Eligible Bond under
which payment was made by the Issuer to an Eligible Obligee and state that
TCC, as first loss indemnitor under such Surety Bond Agreement, is
obligated to make a payment to the Issuer referenced in such Surety Bond
Agreement and shall specify the amount of such payment. In the event that
the TCC Payment Certificate is for an amount less than the amount
specified in the original TCC Obligation related to such Surety Bond
Agreement, such TCC Obligation immediately shall be reduced by the amount
specified in the TCC Payment Certificate paid by TCC.
10
4.2. Presentation. Presentation of a TCC Payment Certificate shall
be made in writing at the offices of TCC or at any other office that may
be designated by TCC by written notice to TransCore.
4.3. Time of Payment. Demands for payment by TCC to an Issuer may
be made under this Agreement during business hours on a Business Day. If a
TCC Payment Certificate is delivered by TransCore to TCC at or prior to
12:00 noon (Eastern Time) on a Business Day, the TCC Payment requested to
be made in such TCC Payment Certificate will be honored by TCC by 12:00
noon (Eastern Time) on the eleventh (11th) succeeding Business Day. If a
TCC Payment Certificate is delivered by TransCore to TCC after 12:00 noon
(Eastern Time) on a Business Day, the TCC Payment requested to be made in
such TCC Payment Certificate will be honored by TCC on the twelfth (12th)
succeeding Business Day. Payment against any TCC Payment Certificate
indicating a payment date which is not a Business Day will be effected on
the next succeeding Business Day. If a TCC Payment Certificate hereunder
does not, in any instance, conform to the terms and conditions of this
Agreement, TCC shall give TransCore prompt notice that the purported TCC
Payment Certificate was not effected in accordance with the terms and
conditions of this Agreement, stating the reasons therefor and that TCC is
holding any document or is returning the same to TransCore, as it may
elect. Upon being notified that the purported TCC Payment Certificate was
not effected in conformity with the Agreement, TransCore may attempt to
correct any such nonconforming TCC Payment Certificate if, and to the
extent that, TransCore is able to do so.
4.4. Method of Payment. Each TCC Payment shall be made by wire
transfer of immediately available funds to an account designated by
TransCore by written notice to TCC.
4.5. Limitation on TCC Payment Obligation. Notwithstanding any
provision of this Agreement to the contrary, TCC shall have no obligation
to make any TCC Payment unless TCC is (i) the beneficiary under any
Additional Letter of Credit that has not been fully drawn upon pursuant to
its terms, or (ii) TCC receives an AIG Highstar Payment pursuant to, and
as defined in, this Agreement. Any TCC Payment shall be made first from
the proceeds of any Additional Letter of Credit that has not been fully
drawn, and second from an AIG Highstar Payment made pursuant to Section
5.1 of this Agreement.
SECTION 5. AIG HIGHSTAR PAYMENTS
5.1. Demand for Payment. TCC shall make a demand for an AIG
Highstar Payment by delivery to (i) AIG Highstar of a written AIG Highstar
Payment Certificate signed by an Authorized Officer of TCC in the form
attached hereto as Exhibit E or (ii) the issuing bank of a Substitute
Letter of Credit of a written Notification of Substitute Letter of Credit
Draw signed by an Authorized Officer of TCC substantially in the form
attached as Exhibit "A" to Exhibit "C" hereof, with a copy to AIG
Highstar. The AIG Highstar Payment Certificate or Notification of
Substitute Letter of Credit Draw shall reference a TCC Obligation Notice
previously delivered to AIG Highstar and state that TCC is obligated to
make a payment to the Issuer referenced in the TCC Obligation Notice and
specify the amount of such payment. In the event that the AIG
11
Highstar Payment Certificate or Notification of Substitute Letter of
Credit Draw is for an amount less than the amount specified in the
original TCC Obligation Notice, such TCC Obligation Notice immediately
shall be reduced by the amount set forth in the AIG Highstar Payment
Certificate or Notification of Substitute Letter of Credit Draw paid by
the issuing bank.
5.2. Presentation. Presentation of a AIG Highstar Payment
Certificate shall be made in writing at the offices of AIG Highstar, 000
Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxxxxxx
X. Xxx or Xxxxxxx Xxxxx, telephone number (000) 000-0000, telecopier
number (000) 000-0000, or at any other office that may be designated by
AIG Highstar by written notice to TCC.
5.3. Time of Payment. Demands for payment by AIG Highstar to TCC
may be made under this Agreement during business hours on a Business Day.
If an AIG Highstar Payment Certificate is delivered by TCC at or prior to
12:00 noon (Eastern Time) on a Business Day, such AIG Highstar Payment
Certificate will be honored by AIG Highstar by 12:00 noon (Eastern Time)
on the eleventh (11th) succeeding Business Day. If an AIG Highstar Payment
Certificate is delivered by TCC after 12:00 noon (Eastern Time) on a
Business Day, such AIG Highstar Payment Certificate will be honored by AIG
Highstar on the twelfth (12th) succeeding Business Day. Payment against
any AIG Highstar Payment Certificate indicating a payment date which is
not a Business Day will be effected on the next succeeding Business Day.
If an AIG Highstar Payment Certificate hereunder does not, in any
instance, conform to the terms and conditions of this Agreement, AIG
Highstar shall give TCC prompt notice that the purported AIG Highstar
Payment Certificate was not effected in accordance with the terms and
conditions of this Agreement, stating the reasons therefor and that AIG
Highstar is holding any document or is returning the same to TCC, as it
may elect. Upon being notified that the purported AIG Highstar Payment
Certificate was not effected in conformity with the Agreement, TCC may
attempt to correct any such nonconforming AIG Highstar Payment Certificate
if, and to the extent that, TCC is able to do so.
5.4. Method of Payment. Each AIG Highstar Payment shall be made by
wire transfer of immediately available funds to an account designated by
TCC by written notice to AIG Highstar.
5.5. Additional Letters of Credit. In addition to the AIG Payment
Commitment set forth in this Agreement, TCC may also obtain one or more
Additional Letters of Credit to further support TransCore bonding
requirements. Notwithstanding any provision of this Agreement to the
contrary, AIG Highstar shall have no obligation to make any AIG Highstar
Payment until any and all Additional Letters of Credit have been fully
drawn upon pursuant to their terms.
SECTION 6. REIMBURSEMENT OBLIGATION
6.1. Reimbursement for Payment of AIG Highstar Payments. TransCore
shall reimburse AIG Highstar for all payments made by AIG Highstar (a) to
TCC pursuant to an AIG
12
Highstar Payment Certificate issued by TCC to AIG Highstar, or (b) to TCC
or an Issuer under a Substitute Letter of Credit under which TCC has made
a draw by delivery to AIG Highstar of a Notification of Substitute Letter
of Credit Draw.
6.2. Demand for Payment. AIG Highstar shall make a demand for
reimbursement from TransCore by delivery to TransCore of a written
TransCore Payment Certificate signed by an Authorized Officer of AIG
Highstar in the form attached hereto as Exhibit F. The TransCore Payment
Certificate shall reference a TCC Obligation Notice previously delivered
to AIG Highstar and state that AIG Highstar has made a payment to TCC
pursuant to a AIG Highstar Payment Certificate and the amount of such
payment or that a draw has been made under a Substitute Letter of Credit
and the amount of such draw. All reimbursement payments due under this
Section 6.2 from TransCore to AIG Highstar must be made by TransCore in
cash within five (5) business days of receipt by TransCore of a TransCore
Payment Certificate.
6.3. Presentation. Presentation of a TransCore Payment Certificate
shall be made in writing at the offices of TransCore or at any other
office that may be designated by TransCore by written notice to AIG
Highstar.
6.4. Method of Payment. Each payment by TransCore to AIG Highstar
shall be made by wire transfer of immediately available funds to an
account designated by AIG Highstar by written notice to TransCore.
SECTION 7. WARRANT
7.1. Issuance of Warrant. In consideration for the execution of
this Agreement, including the representations and warranties of AIG
Highstar contained herein, and the performance by AIG Highstar of its
obligations hereunder, TransCore hereby issues to AIG Highstar the
Warrant.
SECTION 8. CONDITIONS AND DELIVERIES
8.1. Conditions to AIG Highstar Obligations.
AIG Highstar shall have no obligation to TransCore and TCC under
this Agreement until TransCore and TCC deliver, or cause to be delivered,
to AIG Highstar:
(a) the Warrant;
(b) An opinion of Xxxxxxx & Xxx, counsel to TCC and
TransCore, in the form attached hereto as Exhibit G;
13
(c) A Closing Certificate signed by an Authorized Officer of
TransCore in the form attached hereto as Exhibit H that, among other
things, shall affirm that no default or event of default has
occurred that has not been waived under the TransCore Credit
Documents or the Note Purchase Agreement, and such waived defaults
shall be summarized in an attachment to such certificate;
(d) A Closing Certificate signed by an Authorized Officer of
TCC in the form attached hereto as Exhibit I; and
(e) If but only if TransCore and AIG Surety have not
executed the AIG Surety Agreement, then, as a further condition to
the effectiveness of this Agreement and the issuance of the Warrant,
TransCore shall provide satisfactory evidence to AIG Highstar of
TransCore's delivery to TCC of matching Additional Letters of Credit
having a stated amount equal to one-third (1/3) of the outstanding
dollar amount of each of the bonds listed on Schedule 1.2, provided,
however, that the dollar amount of matching letters of credit issued
and outstanding on behalf of TransCore in respect of the bonds
listed on Schedule 1.2 that name AIG Surety as the beneficiary shall
be credited against such obligation in an amount up to one-third
(1/3) of the outstanding dollar amount of each such bond.
8.2. CONDITIONS TO TRANSCORE'S AND TCC'S OBLIGATIONS.
Neither TransCore nor TCC shall have any obligation to AIG Highstar
under this Agreement until AIG Highstar delivers, or causes to be
delivered, to TransCore and TCC:
(a) an opinion of Milbank, Tweed, Xxxxxx &McCloy, LLP,
counsel to AIG Highstar, in the form attached hereto as Exhibit J;
and
(b) A Closing Certificate signed by an Authorized Officer of
AIG Highstar in the form attached hereto as Exhibit K.
SECTION 9. REPRESENTATIONS AND WARRANTIES OF TCC
To induce AIG Highstar and TransCore to enter into this Agreement,
TCC represents and warrants to AIG Highstar and TransCore that:
9.1. Organization and Qualification. TCC is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation and is duly qualified as a foreign
corporation and in good standing under the laws of each jurisdiction in
which the conduct of its business or the ownership of its assets requires
such qualification and in which the failure to so qualify could reasonably
be expected to have a material adverse effect.
14
9.2. Power and Authority. TCC has the corporate power to execute,
deliver and perform its obligations under this Agreement and has taken all
necessary corporate action to authorize this Agreement and the execution
and delivery of, and performance of its obligations under this Agreement.
No consent of any other party (including stockholders of TCC) and no
consent, license, approval or authorization of, or registration or
declaration with, any governmental authority, bureau or agency is required
in connection with the execution, delivery, performance, validity or
enforceability of this Agreement.
9.3. Enforceability. This Agreement, when executed and delivered to
AIG Highstar and TransCore, will constitute valid obligations of TCC
legally binding upon it and enforceable in accordance with its terms,
except as enforceability of the foregoing may be limited by bankruptcy,
insolvency or other laws of general application relating to or affecting
the enforcement of creditors' rights.
9.4. Conflict with Other Instruments. The execution and delivery
of, and performance of its obligations under, this Agreement will not
violate or contravene any provision of any existing law or regulation or
decree of any court, governmental authority, bureau or agency having
jurisdiction over TCC or of the Certificate of Incorporation or the
By-Laws of TCC or any mortgage, indenture, security agreement, contract,
undertaking or other agreement to which TCC is a party or which purports
to be binding upon it or any of its properties or assets, and will not
result in the creation or imposition of any lien on or in any of its
properties or assets pursuant to the provisions of any such mortgage,
indenture, security agreement, contract, undertaking or other agreement.
9.5. Litigation. No actions, suits or proceedings before any court
or governmental department or agency (whether or not purportedly on behalf
of TCC) are pending or, to the knowledge of TCC, threatened (a) with
respect to any of the transactions contemplated by this Agreement or (b)
against or affecting TCC or any of its properties that, if adversely
determined, could reasonably be expected to have a material adverse effect
on TCC.
SECTION 10. REPRESENTATIONS AND WARRANTIES OF AIG HIGHSTAR
To induce TransCore and TCC to enter into this Agreement, AIG
Highstar represents and warrants to TransCore and TCC that:
10.1. Organization and Qualification. AIG Highstar is a limited
partnership duly organized, validly existing and in good standing under
the laws of the jurisdiction of its formation and is duly qualified as a
foreign limited partnership and in good standing under the laws of each
jurisdiction in which the conduct of its business or the ownership of its
assets requires such qualification and in which the failure to so qualify
could reasonably be expected to have a material adverse effect.
15
10.2. Power and Authority. AIG Highstar has the partnership power to
execute, deliver and perform its obligations under this Agreement and has
taken all necessary partnership action to authorize this Agreement and the
execution and delivery of, and performance of its obligations under this
Agreement. No consent of any other party (including general or limited
partners of AIG Highstar) and no consent, license, approval or
authorization of, or registration or declaration with, any governmental
authority, bureau or agency is required in connection with the execution,
delivery, performance, validity or enforceability of this Agreement.
10.3. Enforceability. This Agreement, when executed and delivered to
TransCore and TCC, will constitute valid obligations of AIG Highstar
legally binding upon it and enforceable in accordance with its terms,
except as enforceability of the foregoing may be limited by bankruptcy,
insolvency or other laws of general application relating to or affecting
the enforcement of creditors' rights.
10.4. Conflict with Other Instruments. The execution and delivery
of, and performance of its obligations under, this Agreement will not
violate or contravene any provision of any existing law or regulation or
decree of any court, governmental authority, bureau or agency having
jurisdiction over AIG Highstar or of the Certificate of Limited
Partnership of AIG Highstar or any mortgage, indenture, security
agreement, contract, undertaking or other agreement to which AIG Highstar
is a party or which purports to be binding upon it or any of its
properties or assets, and will not result in the creation or imposition of
any lien on or in any of its properties or assets pursuant to the
provisions of any such mortgage, indenture, security. agreement, contract,
undertaking or other agreement.
10.5. Litigation. No actions, suits or proceedings before any court
or governmental department or agency (whether or not purportedly on behalf
of AIG Highstar) are pending or, to the knowledge of AIG Highstar,
threatened (a) with respect to any of the transactions contemplated by
this Agreement or (b) against or affecting AIG Highstar or any of its
properties that, if adversely determined, could reasonably be expected to
have a material adverse effect on AIG Highstar.
10.6. Purchase for Investment. AIG Highstar is acquiring the Warrant
pursuant to Section 7.1 hereof with the following understanding:
(a) AIG Highstar understands that the Warrant and the Class
A Common Stock acquirable upon exercise of the Warrant have not been
registered under the Securities Act of 1933, as amended (the
"Securities Act"), or under applicable state securities laws (the
"Blue Sky Laws"), in reliance upon exemptions contained in the
Securities Act and Blue Sky Laws and any applicable regulations
promulgated thereunder or interpretations thereof, and cannot be
offered for sale, sold or otherwise transferred unless, among other
things, such Warrant or Class A Common Stock is subsequently
registered or qualified for exemption under the Securities Act and
Blue Sky Laws, and that the certificates representing the Warrant
and the Class A Common Stock shall bear a legend noting such
restrictions;
16
(b) That the Warrant is being acquired under this Agreement
by AIG Highstar in good faith solely for its own account, for
investment and not with a view toward resale or other distribution
within the meaning of the Securities Act, and that such securities
will not be offered for sale, sold or otherwise transferred without
either registration or exemption from registration under the
Securities Act and Blue Sky Laws;
(c) AIG Highstar has such knowledge and experience in
financial and business matters that AIG Highstar is capable of
evaluating the merits and risks of its investment in the Warrant and
AIG Highstar understands and is able to bear any economic risks
associated with such investment (including the inherent risk of
losing all or part of its investment in the Warrant); and
(d) AIG Highstar is directly familiar with the business that
is conducted and intended to be conducted by TransCore, including
financial matters related to such business, has been given the
opportunity to ask questions of, and receive answers from, the
directors and principal officers of TransCore concerning the
business and financial affairs of TransCore, and the terms and
conditions of its purchase of the Warrant, and has had further
opportunity to obtain any additional information desired (including
information necessary to verify the accuracy of the foregoing).
10.7. Delivery of Substitute Letters of Credit. AIG Highstar has the
financial standing and credit worthiness that will permit it to deliver a
Substitute Letter of Credit pursuant to Section 3.4 of this Agreement.
SECTION 11. REPRESENTATIONS OF TRANSCORE
To induce AIG Highstar and TCC to enter into this Agreement,
TransCore represents and warrants to AIG Highstar and TCC that:
11.1. Organization and Corporate Power. Each of TransCore and its
Subsidiaries is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its formation and is qualified to do
business in the jurisdictions listed on the attached "Qualifications
Schedule," except as noted therein, which list includes every jurisdiction
where the failure to so qualify might reasonably be expected to have a
Material Adverse Effect. Each of TransCore and its Subsidiaries has the
requisite power and authority to execute, deliver and carry out its
respective obligations under each of the Transaction Documents. Each of
TransCore and its Subsidiaries has all requisite power and authority and
all material licenses, permits and authorizations necessary to own and
operate its respective properties, to carry on its respective businesses
as now conducted and presently proposed to be conducted and to carry out
the Transaction. The copies of each of TransCore's and its Subsidiaries'
Charter Documents which have been furnished to AIG Highstar reflect all
amendments made thereto at any time prior to the date of this Agreement
and are correct and complete.
17
11.2. Capital Stock and Related Matters.
(a) As of the Closing and immediately thereafter, the
authorized Capital Stock of TransCore is as set forth on the
attached "Capitalization Schedule." As of the Closing, TransCore
will not be subject to any obligation (contingent or otherwise) to
repurchase or otherwise acquire or retire any shares of its Capital
Stock, (including the Schedules hereto), except as set forth in the
Shareholders' Agreement or the Charter Documents of TransCore. As of
the Closing, all of the outstanding shares of TransCore's Capital
Stock will be validly issued, fully paid and non-assessable.
(b) TransCore has not violated any applicable federal or
state securities laws in connection with the offer, sale or issuance
of any of its Capital Stock, or the offer, sale and issuance of the
Warrant to AIG Highstar pursuant to and in the manner contemplated
by this Agreement and such issuance does not and will not, require
registration under the Securities Act of 1933, as amended, or any
applicable state securities laws. Except as set forth in the
Shareholders' Agreement, there are no agreements between TransCore's
shareholders with respect to the voting or transfer of TransCore's
Capital Stock.
11.3. Subsidiary. Except for the Subsidiaries set forth on the
"Subsidiaries Schedule" hereto, TransCore does not hold any rights to
acquire any shares of stock or any other security or interest in any other
Person.
11.4. Authorization; No Breach. TransCore has duly authorized the
execution, delivery and performance of its obligations under the
Transaction Documents. The execution and delivery by TransCore of the
Transaction Documents does not and will not (i) conflict with or result in
a breach of the terms, conditions or provisions of, or (ii) result in the
creation of any lien, security interest, charge or encumbrance upon any of
TransCore's capital stock, assets or property now owned or hereafter
acquired, or (iii) give any third party the right to accelerate any
obligation, or (iv) result in a violation of, or (v) require any
authorization, consent, approval, exemption or other action by or notice
to any court or administrative or governmental body pursuant to the
Charter Documents of TransCore, or any law, statute, rule or regulation to
which TransCore is subject, or any agreement, instrument, order, judgment
or decree to which TransCore is a party or to which it or its assets are
subject.
11.5. Governmental Approval. No registration with or consent or
approval of, or other action by, any federal, state or other governmental
agency, authority or regulatory body is or will be required in connection
with the consummation of the Transaction by TransCore or its Subsidiaries.
11.6. Enforceability. This Agreement, when executed and delivered to
AIG Highstar and TCC, will constitute valid obligations of TransCore
legally binding upon it and enforceable in accordance with its terms,
except as enforceability of the foregoing may be limited by bankruptcy,
insolvency or other laws of general application relating to or affecting
the
18
enforcement of creditors' rights.
11.7. Financial Matters. TransCore has furnished to AIG Highstar a
copy of (i) the consolidated audited balance sheet of TransCore and its
Subsidiaries for the fiscal year ending on January 31, 2002 and the
related statement of income and (ii) the consolidated unaudited balance
sheet of TransCore and its Subsidiaries as of July 31, 2002, and the
related statement of income for the six-month period then ended. Such
financial statements present fairly in accordance with GAAP, the financial
position of TransCore at the date thereof and the results of operations of
TransCore for the periods then ended, subject to normal year-end
adjustments. Except as disclosed or reflected in such financial
statements, neither TransCore nor any of its Subsidiaries had any material
liabilities, contingent or otherwise, and there were no material
unrealized or anticipated losses of TransCore or any of its Subsidiaries.
11.8. No Material Adverse Change. Since January 31, 2002, there has
been no event or occurrence that would reasonably be expected to have a
Material Adverse Effect, provided, however, that neither the accounting
irregularities heretofore disclosed with respect to the acquired
subsidiary Viastar Holdings, Inc. nor the inability to secure surety bonds
as of the date of this Agreement shall be deemed to be a Material Adverse
Effect.
11.9. Litigation. Except as described in the "Litigation Schedule",
no actions, suits or proceedings before any court or governmental
department or agency (whether or not purportedly on behalf of TransCore)
are pending or, to the knowledge of TransCore, threatened (a) with respect
to any of the transactions contemplated by this Agreement or (b) against
or affecting TransCore or any of its properties that, if adversely
determined, could reasonably be expected to have a material adverse effect
on TransCore.
11.10. Compliance with Laws. TransCore and its Subsidiaries are not
in violation in any material respect of any applicable law, rule or
regulation, including but not limited to, any Environmental Law. TransCore
and its Subsidiaries are not in default with respect to any judgment,
writ, injunction, decree, rule or regulation of any court or governmental
agency or instrumentality. During the past ten (10) years, none of the
current officers, directors or management of TransCore or any of its
Subsidiaries have been arrested or convicted of any material crime nor
have any of them been bankrupt or, except as disclosed on the attached
"Compliance with Laws Schedule," an officer or director of a bankrupt
company.
11.11. Environmental Protection. Except as specified in the
"Environmental Schedule" and after giving effect to the Transactions: (a)
TransCore and its Subsidiaries, the methods and means employed by them in
the operation thereof (including all operations and conditions at or in
the properties of TransCore), and the assets owned, leased, held or
operated by them, comply in all material respects with all applicable
laws, rules, regulations, ordinances and codes of every kind, including
Environmental Laws; (b) TransCore and its Subsidiaries have obtained all
permits under Environmental Laws necessary to their operations other than
such permits the absence of which could not, individually or in the
aggregate, result in a Material Adverse Effect, and all such permits are
in good standing and they are in compliance with all material terms and
conditions of
19
such permits; and (c) neither TransCore nor any of its Subsidiaries has
received (i) any claim or notice of violation, lien, complaint, suit,
order or other claim or notice to the effect that they are or may be
liable to any Person as a result of (A) the environmental condition of any
of their respective properties or any other property, or (B) the release
or threatened release of any Hazardous Materials, or (ii) any letter or
request for information under Section 104 of the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended
(42 U.S.C.Section 9604), or comparable state laws, and to the best of
TransCore's knowledge, none of the operations of TransCore or its
Subsidiaries are the subject of any Federal or state investigation
evaluating whether any remedial action is needed to respond to a release
or threatened release of any Hazardous Material at TransCore's or any of
its Subsidiaries' properties or at any other location, including any
location to which TransCore or its Subsidiaries has transported, or
arranged for the transportation of, any Hazardous Materials.
11.12. Taxes. TransCore and its Subsidiaries have filed or caused to
be filed all federal, state and local tax returns which are required to be
filed by it, and have paid or caused to be paid all taxes shown to be due
and payable on such returns or on any assessments received by it,
including payroll taxes.
11.13. Labor and Employment. TransCore, its Subsidiaries and each
Plan is in compliance in all material respects with those provisions of
ERISA, the Internal Revenue Code, the Age Discrimination in Employment
Act, and the regulations and published interpretations thereunder which
are applicable to TransCore, its Subsidiaries or such Plan. As of the date
hereof, no Reportable Event has occurred with respect to any Plan as to
which TransCore or its Subsidiaries was required to file a report with the
Pension Benefit Guaranty Corporation. No Plan has any material amount of
unfunded benefit liabilities (within the meaning of Section 4001 (a)(I 8)
of ERISA) or any accumulated funding deficiency (within the meaning of
Section 302 (a)(2) of ERISA), whether or not waived, and neither TransCore
nor any of its Subsidiaries has incurred or expects to incur any material
withdrawal liability under Subtitle E of Title IV of ERISA to a
Multi-employer Plan. No Plan of TransCore or its Subsidiaries obligates it
to provide post-retirement medical benefits, except as may be required by
the Consolidated Omnibus Budget Reconciliation Act of 1986. TransCore and
its Subsidiaries are in compliance in all material respects with all labor
and employment laws, rules, regulations and requirements of all applicable
domestic and foreign jurisdictions. There are no pending or threatened
labor disputes, work stoppages or strikes.
11.14. Investment Company Act; Public Utility Holding Company Act.
Neither TransCore nor any of its Subsidiaries is (a) an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended or (b) a "holding company" or a "subsidiary company" of a "holding
company" or an "affiliate" of a "holding company" or of a "subsidiary
company" of a "holding company," within the meaning of the Public Utility
Holding Company Act of 1935, as amended.
11.15. Properties; Security Interests. TransCore and its
Subsidiaries have good title to, or valid leasehold interests in all of
the material assets and properties reflected in the balance
20
sheet of TransCore as of January 31, 2001 delivered by TransCore to AIG
Highstar, except for such properties as have been disposed of in the
ordinary course of business, subject to no Liens except for Permitted
Liens. All such assets and properties are in good repair, working order
and condition and all such assets and properties are owned by TransCore
free and clear of all Liens except for Permitted Liens. All real estate
owned or leased by TransCore is listed on the attached "Properties
Schedule."
11.16. Intellectual Property; Licenses. TransCore and its
Subsidiaries possess all Proprietary Rights necessary to conduct their
business as heretofore conducted. All Proprietary Rights registered in the
name of TransCore or any Subsidiary and applications therefor filed by
TransCore or any Subsidiary are listed on the "Intellectual Property
Schedule." No event has occurred that permits, or after notice or lapse of
time or both would permit, the revocation or termination of any of the
foregoing which taken in isolation or when considered with all other such
revocations or terminations could result in a Material Adverse Effect.
TransCore does not have notice or knowledge of any facts or any past,
present or threatened occurrence that could preclude or impair TransCore's
or any of its Subsidiaries' ability to retain or obtain any authorization
necessary for the operation of its business.
11.17. Solvency. Except as set forth in the "Solvency Schedule"
attached to this Agreement, after giving effect to this Agreement, neither
TransCore nor its Subsidiaries will be insolvent. TransCore and its
Subsidiaries will be able to pay their debts as they become due and mature
and are current on all debts, accounts payable and leases as of the date
hereof other than such debts as are currently being disputed in good faith
and which are disclosed on the attached "Solvency Schedule".
11.18. Complete Disclosure. All factual information furnished by or
on behalf of TransCore to AIG Highstar and TCC for purposes of or in
connection with this Agreement is, and all other such factual information
hereafter furnished by or on behalf of TransCore will be, true and
accurate in all material respects on the date as of which such information
is furnished and not incomplete by omitting to state any fact necessary to
make such information not misleading at such time in light of the
circumstances under which such information was provided.
11.19. Side Agreements. Except as disclosed on the attached "Side
Agreements Schedule," neither TransCore nor any Affiliate nor any
director, officer or employee of TransCore or any Affiliate has entered
into, as of the date hereof, any side agreement, either oral or written,
with any individual or business, pursuant to which the director, officer,
employee, Company or such Affiliate has agreed to do anything beyond the
requirements of the formal, written contracts executed by TransCore.
11.20. Size of Board of Directors of TCC. The number of members of
the board of directors of TCC is three (3). Representatives of AIG
Highstar shall constitute a majority of TCC's board of directors.
21
SECTION 12. COVENANTS OF TRANSCORE AND TCC
12.1. TCC Obligation Report. Within ten (10) days after the end of
each month TransCore shall cause TCC to deliver to AIG Highstar a monthly
report listing each TCC Obligation Notice delivered to AIG Highstar, the
related amount of the TCC Obligation and the Eligible Bond, a brief
description of the project that is the subject of the TCC Obligation, the
expiry date of the TCC Obligation and the related Eligible Bond, and the
identity of the Issuer.
12.2. Notices. TransCore or TCC, as the case may be, shall promptly
give notice in writing to AIG Highstar of the occurrence of any of the
following:
(a) any uncured material event of default by TransCore under
any contract or other agreement that is the subject of an Eligible
Bond and that could entitle an Eligible Obligee to accelerate the
maturity of any obligation of TransCore or to exercise any other
remedy against TransCore;
(b) the commencement of any material litigation, proceeding
or dispute affecting TransCore or TCC, or any dispute between
TransCore or TCC, and any Person, under any Surety Bond Agreement,
Eligible Bond or contract or agreement that is the subject of an
Eligible Bond;
(c) any material and adverse change in the financial
position, operations, business or prospects of TransCore or TCC;
(d) any default or event of default under the TransCore
Credit Documents; and
(e) any Change in Control of TransCore.
12.3. Books and Records. Each of TransCore and TCC will maintain
accurate and complete records and books of account with respect to all
their operations in accordance with GAAP, and, upon two Business Day's
notice, will permit officers or representatives of AIG Highstar to examine
and make excerpts from such books and records at all reasonable times.
SECTION 13. ADDITIONAL COVENANTS OF TCC
13.1. Prohibited Activities. TCC shall not, without the affirmative
consent of AIG Highstar do any of the following:
(a) Engage in any business or activities other than those
set forth in TCC's Certificate of Incorporation;
22
(b) Incur any indebtedness, or assume or guaranty any
indebtedness of any other entity, other than (i) indebtedness
arising from salaries, fees and expenses to its professional
advisors and counsel, directors, officers and employees, (ii) other
indebtedness on account of incidentals or services supplied or
furnished to TCC, (iii) TCC Obligations, (iv) Additional Letters of
Credit, and (v) in the ordinary course of TCC's business as set
forth in its Certificate of Incorporation;
(c) Dissolve or liquidate, in whole or in part, consolidate
or merge with or into any other entity or convey or transfer its
properties and assets, substantially as an entirety to any entity
other than as permitted by its Certificate of Incorporation;
(d) Institute proceedings to be adjudicated bankrupt or
insolvent, or consent to the institution of bankruptcy or insolvency
proceedings against it or file a petition seeking, or consent to,
reorganization, liquidation or relief under the Bankruptcy Code or
state law relating to bankruptcy, insolvency, reorganization or
dissolution, or consent to the appointment of a receiver,
liquidator, assignee, trustee, sequestrator (or other similar
official) of TCC or a substantial part of its property, or make an
assignment for the benefit of creditors, or admit in writing its
inability to pay its debts as they become due, or take corporate
action in furtherance of any such action;
(e) Repeal, amend or otherwise modify any provision of its
Certificate of Incorporation or By-laws; or
(f) Increase or reclassify the capital stock of TCC or issue
any additional shares of capital stock of TCC.
13.2. Separate Existence. TCC shall maintain its separate corporate
existence and identity and shall take all steps necessary to make it
apparent to third parties that TCC is an entity with assets and
liabilities distinct from those of TransCore or any Affiliate of
TransCore. TCC shall therefore, at all times: (i) promptly reimburse
TransCore or any Affiliate of TransCore for all reasonable expenses paid
or incurred by TransCore, any Affiliate or their personnel for or on
behalf of TCC, including appropriate allocations of(x) salaries and
benefits of those personnel performing services for TCC and (y) office
space, overhead, computing and other expenses attributable to services
performed for TCC, if any; (ii) maintain TCC's books, accounting records
and other corporate documents and records separate from those of TransCore
or any other entity; (iii) prepare any financial statements separately
from those of TransCore and request that TransCore include certain
footnotes in any consolidated financial statements issued by TransCore to
the effect that TransCore contributed certain assets to TCC; (iv) maintain
TCC's books of account and payroll (if any) separate from those of
TransCore or any Affiliate of TransCore; (v) act solely in its corporate
name and through its own authorized officers and. agents, invoices and
letterhead; (vi) separately manage TCC's liabilities from those of
TransCore or any Affiliate of TransCore and pay its own liabilities,
including all administrative expenses, from its own separate assets; (vii)
hold itself out as an entity; separate from TransCore and any Affiliate of
TransCore
23
and any other person; (viii) not commingle its assets with those of
TransCore, any Affiliate of TransCore or any other person; and (ix) not
pledge its assets for the benefit of any other person or make loans or
advances to any other person. TCC shall abide by all corporate
formalities, including the maintenance of current minute books, and shall
cause any financial statements to be prepared in accordance with GAAP in a
manner that indicates the separate existence of TCC and its assets and
liabilities. Other than those liabilities associated with the issuance of
Eligible Bonds, TCC shall not assume the liabilities of TransCore or any
Affiliate of TransCore, and shall not guarantee the liabilities of
TransCore or any Affiliate of TransCore.
SECTION 14. ADDITIONAL COVENANTS OF TRANSCORE
14.1. Members of the Board of Directors. Upon execution of this
Agreement, and during the term of this Agreement, TransCore, as sole
shareholder of TCC, shall cause two (2) persons designated by AIG Highstar
to be appointed to the Board of Directors of TCC. In the event of a
vacancy on the Board of Directors during the term of this Agreement caused
by the resignation, withdrawal, or removal of any person designated by AIG
Highstar to serve as a member of such Board of Directors, TransCore shall
cause a person designated by AIG Highstar to replace such member.
14.2. Size of Board of Directors. TransCore shall not increase the
size of the board of directors of TCC to a number of members greater than
three (3).
14.3. Company Board of Directors. TransCore shall appoint one of the
following individuals: F.I. Xxxxx, Xxxxxxxxxxx X. Xxx, Xxxxx Xxxxxxxxx, or
Xxxxx Xxxxxxxxx, as designated by AIG Highstar, to the TransCore Board of
Directors and as a member of the audit committee thereof to serve until
the earlier of (i) the termination or release of the AIG Highstar Payment
Limit, including through 100% collateralization by TransCore of the AIG
Payment Limit by delivery of Additional Letters of Credit, or (ii) a
Qualified IPO.
14.4. Operating Expenses. Other than the TCC Obligations, TransCore
irrevocably agrees to pay all approved operating expenses of TCC,
including, without limitation, any expenses that TCC may incur under its
certificate of incorporation or bylaws regarding indemnification of
directors and officers and advancement of expenses in connection with any
action or proceeding in which indemnification may be available. A budget
for operating expenses shall be approved on a quarterly basis by the Board
of Directors of TCC and submitted to TransCore for review and approval not
later than ten (10) Business Days before the beginning of each quarter.
TransCore shall have the sole authority to approve or disapprove the
annual operating budget and shall do so before the beginning of each year.
14.5. Modification. Without the prior written consent of TCC and AIG
Highstar, which consent shall not be unreasonably withheld, TransCore may
not modify any Surety Bond Agreement with any Issuer, including, without
limitation, modification of any reimbursement obligation, or modify the
related Eligible Bond, except for any such modification that: (i) reduces
24
the amount of the Eligible Bond, or (ii) alters the maturity of the
Eligible Bond or the reimbursement obligation in the Surety Bond Agreement
in a manner that, if such alterations were the original terms, the surety
bond would not fail to qualify as an Eligible Bond. Notwithstanding the
foregoing, AIG Highstar may withhold its consent to any such modification
where such modification, in the sole judgment of AIG Highstar, may have a
material adverse effect on AIG Highstar's rights hereunder.
SECTION 15. INDEMNIFICATION.
15.1. Indemnification by TransCore. TransCore hereby agrees to
indemnify, defend and hold harmless AIG Highstar and TCC and their
respective officers, directors, employees, agents and representatives
("Representatives"), and their respective successors and assigns in
connection with any losses, claims, damages, liabilities and expenses,
including AIG Highstar Payments, TCC Payments or reasonable attorneys'
fees, to which AIG Highstar or TCC or their respective Representatives may
become subject (other than as a result of the willful misconduct of any
such Person), insofar as such, losses, claims, damages or liabilities (or
actions in respect thereof) arise out of payment by AIG Highstar of any
AIG Highstar Payment, payment by TCC of any TCC Obligation, material
breach of any Environmental Law or by reason of any investigation,
litigation or other proceedings related to or resulting from any act o1 or
omission by, TransCore or its Affiliates or any TransCore or Affiliate
Representative with respect to the Transaction or the Transaction
Documents and to reimburse AIG Highstar, TCC and each such Person and
Affiliate, upon demand, for any legal or other expenses incurred in
connection with investigating or defending any such loss, claim, damage,
liability, expense, or action. To the extent that the foregoing
undertakings may be unenforceable for any reason, TransCore agrees to make
the maximum contribution to the payment and satisfaction of indemnified
liabilities set forth in this Section 15.1 which is permissible under
applicable law. This indemnity and agreement to defend and hold harmless
shall survive the termination of this Agreement or any other circumstances
which might otherwise constitute a legal or equitable release or
discharge, in whole or in part, of TransCore under this Agreement.
SECTION 16. MISCELLANEOUS
16.1. No Third Party Beneficiaries. The parties do not intend the
benefits of this Agreement to inure to any third party. Notwithstanding
anything contained herein or any conduct or course of conduct by any or
all of the parties hereto, or their respective affiliated companies,
agents or employees, before or after signing this Agreement, this
Agreement shall not be construed as creating any rights, claims or causes
of action against AIG Highstar or TCC, or any of their respective
directors, officers, agents or employees in favor of any of creditors of
TransCore.
16.2. Survival of Representations and Warranties. All
representations, warranties, covenants and agreements made in this
Agreement and in any certificates delivered pursuant thereto shall survive
the execution and delivery of this Agreement.
25
16.3. Participations. AIG Highstar reserves the absolute right to
assign all or any portion of its interests in this Agreement or to
participate with other institutions in this Agreement on such terms and at
such times as AIG Highstar may determine from time to time, all without
any consent thereto or notice thereof by or to TCC; provided, however,
that no assignment or participation of this Agreement by AIG Highstar
shall relieve AIG Highstar of any liability hereunder.
16.4. Miscellaneous. No failure by a party to comply with any
provision or provisions of this Agreement, and no waiver on the part of
any party in exercising any rights hereunder, shall operate as a waiver of
any rights of such party. Tardiness in enforcing any provision hereof
shall not be set up as a waiver by a party of any of its rights hereunder
and all covenants on the part of the parties hereunder to be kept and
performed may be enforced at any time.
16.5. Notices. All notices and other communications shall have been
duly given and shall be effective (i) when hand delivered, (ii) when
transmitted via telecopy (or other facsimile device) to the numbers set
forth below, (iii) the Business Day following the day on which the same
has been delivered prepaid via a reputable national overnight air courier
service, or (iv) the third Business Day following the day on which the
same is sent by certified or registered mail, post prepaid, in each case
to the respective parties at the address or telecopy number set forth
below, or at such other address or telecopy number as such party may
hereafter specify by written notice to the other party hereof:
TRANSCORE/TCC: TRANSCORE HOLDINGS, INC
TRANS CORE CREDIT CORPORATION
0000 Xxxxx Xxxxx
Xxxxxxx Center - Building 200
Xxxxxxxxxxx, Xxxxxxxxxxxx 00000
Facsimile No. (000) 000-0000
Attention: Xxxxx Xxxxxx
with a copy to: 0000 Xxxxx Xxxxx
Xxxxxxx Center - Building 200
Xxxxxxxxxxx, Xxxxxxxxxxxx 00000
Facsimile No. (000) 000-0000
Attention: Xxxxxx Xxxxxx, Esquire
AIG Highstar AIG HIGHSTAR CAPITAL, L.P.
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No. (000) 000-0000
Attention: Xxxxxxxxxxx X. Xxx
with a copy to: Milbank, Tweed, Xxxxxx & XxXxxx LLP
26
One Chase Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No. (000) 000-0000
Attention: Xxxxx Xxxxx, Esquire
16.6. Conflicts Between Instruments. In the event of any conflict
between the provisions of this Agreement and any other Transaction
Document or any other document executed and/or delivered in connection
with this Agreement, the provisions of this Agreement shall prevail,
notwithstanding any provision in any other document to the effect that
such other document shall be deemed controlling.
16.7. Binding Effect. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns, except that neither TransCore or TCC may assign nor transfer
their respective rights hereunder without the prior written consent of AIG
Highstar (which consent may be granted or withheld in AIG Highstar's sole
and absolute discretion).
16.8. Construction. This Agreement, and the rights and obligations
of the parties hereunder, shall be governed by and construed and
interpreted in accordance with, the domestic internal laws of the State of
New York without regard to its rules pertaining to conflict of laws. The
Section headings contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of this
Agreement.
16.9. Severability. Any provision contained in this Agreement that
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction.
16.10. Dispute Resolution.
(a) Any and all disputes arising out of or in connection
with the interpretation, performance, nonperformance or termination
of this Agreement (a "Dispute"), in the first instance if possible,
shall be settled by negotiation between the parties set forth in
Section 16.5 of this Agreement, or their designee. To initiate
Dispute resolution, a party shall send written notice describing the
dispute to the other party ("Dispute Notice"). If the parties are
unable to resolve the Dispute, it shall be submitted to mediation
administered by the American Arbitration Association ("AAA") under
its Commercial Mediation Rules, before resorting to arbitration or
any other form of dispute resolution.
(b) In the event any Dispute among the parties is not
resolved under the
27
process set forth in paragraph (a) of this Agreement:
A. The Dispute shall be submitted by the parties to
arbitration under the Commercial Arbitration Rules of the American Arbitration
Association ("AAA Rules"). Judgment rendered by the arbitrators may be entered
in any court having jurisdiction thereof.
B. Apply the substantive law of the State of New
York;
C. Be conducted in New York, New York unless the
parties agree upon a different location;
D. Be conducted by one neutral arbitrator selected by
mutual agreement of the parties; if the parties cannot agree upon an arbitrator,
the arbitrator shall be selected as set forth in the AAA Rules.
E. The parties shall participate in a pre-hearing
exchange of information by the parties, including, without limitation,
production of requested documents, exchanging of summaries of testimony of
proposed witnesses and examination by deposition of parties, limited to no
longer than 6 hours per deponent absent agreement of the parties. This
pre-hearing exchange of information shall be governed by the Federal Rules of
Civil Procedure.
F. Each party shall bear its individual costs, such
as, but not limited to, travel, to the arbitration, witness fees and expenses,
and legal representation at the arbitration. All other expenses of the
arbitration shall be borne equally by the parties;
G. The arbitrator's award shall be in writing and
shall specify the factual and legal bases for the award;
H. The arbitrator will have no authority to issue an
injunction or to award punitive or other damages not measured by the prevailing
party's actual damages and may not, in any event, make any ruling, finding, or
award that does not conform to the terms and conditions of this Agreement and
any other related contract.
I. Each party to this Agreement agrees to maintain
the confidentiality of any mediation or arbitration proceedings, including the
existence of any such proceeding and all aspects of matters considered therein,
to the maximum extent permitted by law. In the event of any court or other
public proceeding involving matters subject to an arbitration or mediation, the
parties agree to take all procedural actions to maintain the confidentiality of
documents relating to the arbitration or mediation.
(c) Appeal Rights:
28
A. Any party may appeal the arbitrator's award to an
appellate arbitrator by filing with the AAA, within twenty days after
transmittal of the award, a written brief, not to exceed twenty pages, stating
the reasons why the panel's decision should be reversed or modified. The
opposing party shall file with the AAA and serve on the appealing party, within
twenty days after receiving the appeal brief, an opposition brief, not to exceed
twenty pages.
B. The appellate arbitrator shall be appointed
directly by the AAA, without submission of lists of proposed arbitrators, and
shall be a retired judge of a court of record in the state in which the
arbitration was held.
C. Any party may request oral argument, which must be
conducted within fourteen days following the submission of the final brief. The
appellate arbitration shall be based only on the record of the initial hearing
and oral argument, if any. The appellate arbitrator shall render a written
decision affirming, reversing, modifying, or remanding the arbitrator's decision
within twenty days after receiving the final appellate submissions. The
appellate arbitrator may reverse, modify, or remand the matter for further
proceedings by the arbitrator only on one of the following grounds:
i. any ground specified in 9 U.S.C.Section 10
or 11;
ii. if the award contains material errors of
applicable law; or
iii. if the award is arbitrary or capricious.
D. The appellate arbitrator may render a final
decision on the appeal or remand the matter for further proceedings by the
arbitrator.
(d) Upon the application of any party, and whether or not an
arbitration proceeding has been initiated, all courts having
jurisdiction are authorized to:
A. Issue and enforce in any lawful manner such
temporary restraining orders, preliminary injunctions and other interim measures
of relief as may be necessary to prevent harm to a party's interests or as
otherwise may be appropriate pending the conclusion of arbitration proceedings
pursuant to this Agreement; and/or
B. Enter and enforce in any lawful manner such
judgment for permanent equitable relief as may be necessary to prevent harm to a
party's interest or as otherwise may be appropriate following the issuance of
the arbitrators awards pursuant to this Agreement.
16.11. Attorneys Fees. In the event any action or lawsuit is brought
by either party in connection with this Agreement, the prevailing party in
such proceeding shall be entitled to receive its costs, expert witness
fees and reasonable attorneys' fees.
29
16.12. Counterparts. This Agreement may be executed in any number of
counterparts with the same effect as if the signatures thereto and hereto
were upon the same instrument, but all of such counterparts taken together
shall be deemed to constitute one and the same instrument.
16.13. Further Actions. Each party shall execute and deliver such
documents and instruments, and take such other actions, as the other
parties deem necessary to consummate the transactions described in this
Agreement and carry out the purpose thereof, including providing any
requested information or certification as an Issuer may reasonably
request. In addition, upon reduction of the AIG Highstar Payment
Commitment from $20 million to $4 million, TransCore shall take all
actions necessary to obtain Additional Letters of Credit to secure TCC
Obligations that are no longer secured by the AIG Highstar Payment
Commitment.
16.14. Entire Agreement. This Agreement represents the entire
agreement between TransCore, TCC and AIG Highstar with respect to the
transactions to which they relate, and cannot be changed or amended except
by an agreement in writing signed by the party against whom enforcement of
the change or amendment is sought.
16.15. Confidentiality. Neither the form, substance nor existence of
this Agreement shall be revealed to any Person other than KRG Capital
Partners, L.L.C., members of the board of directors of TransCore, holders
of TransCore's Senior Funded Indebtedness (as defined in the TransCore
Credit Documents) and Subordinated Indebtedness (as defined in the
TransCore Credit Documents), shareholders of TransCore, insurers,
sureties, investment bankers, securities and debt analysts, persons
involved in the marketing and sale of TransCore securities, prospective
investors in TransCore, potential acquirers of TransCore, and the parties
hereto and their respective advisors, except as may be required to fulfill
any regulatory disclosure requirements in connection with a Qualified IPO,
subsequent securities law disclosure obligations or as otherwise required
by law or as may be required in connection with the preparation of
TransCore's financial statements in accordance with GAAP. This Agreement
also may be disclosed to other parties with a business need to know of its
existence and terms provided the party seeking to disclose this Agreement
obtains the written consent of the other parties to this Agreement, which
consent shall not be unreasonably withheld.
[THE REMAINDER OF THIS PAGE HAS INTENTIONALLY BEEN LEFT BLANK]
30
IN WITNESS WHEREOF the parties have caused this Agreement to be duly
executed and delivered by their proper and duly authorized officers as of the
day and year first above
AIG HIGHSTAR CAPITAL L.P.
By: AIG Highstar Capital GP, L.P., its
general partner
By: AIG Highstar Capital Management LLC, its
general partner
By: AIG Global Investment Corp., a member
By:___________________________________________
Managing Partner
TRANSCORE HOLDINGS, INC.
By: /s/ Xxxxx X. Xxxxxx
------------------------------------------
Xxxxx X. Xxxxxx, Executive Vice President
TRANSCORE CREDIT CORPORATION
By: /s/ Xxxxx X. Xxxxxx
------------------------------------------
Xxxxx X. Xxxxxx, Vice President
31
IN WITNESS WHEREOF the parties have caused this Agreement to be duly executed
and delivered by their proper and duly authorized officers as of the day and
year first above
AIG HIGHSTAR CAPITAL L.P.
By: AIG Highstar Capital GP, L.P., its
general partner
By: AIG Highstar Capital Management LLC, its
general partner
By: AIG Global Investment Corp., a member
By: /s/_______________________________________
Managing Partner
TRANSCORE HOLDINGS, INC.
By: __________________________________________
Xxxxx X. Xxxxxx, Executive Vice President
TRANSCORE CREDIT CORPORATION
By:
Xxxxx X. Xxxxxx, Vice President
32
EXHIBIT A
TRANSCORE CREDIT CORPORATION OBLIGATION NOTICE NUMBER _________
AIG Highstar Capital L. P.
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxxxx X. Xxx
(INSERT ADDRESS OF ISSUER)
Ladies and Gentlemen:
Reference is made to the Irrevocable Funding, Warrant Purchase and
Reimbursement Agreement dated as of October __, 2002 among AIG Highstar Capital
L. P, TransCore Holdings, Inc. and TransCore Credit Corporation (the
"Agreement"). All capitalized terms used herein and not defined shall have the
meaning ascribed to such term in the Agreement.
A TCC Obligation in the amount of $____________ has been created by
execution of a Surety Bond Agreement among _____________, as Issuer, TransCore
and TCC and the related issuance of an Eligible Bond of like amount to
__________________, as Eligible Obligee. The expiry date of the TCC Obligation
and the related Eligible Bond is ______________, 200_.
Very truly yours,
TRANSCORE CREDIT CORPORATION
By:________________________
(Signature by Authorized Officer)
EXHIBIT B
SUBSTITUTE LETTER OF CREDIT NOTICE
AIG Highstar Capital L. P.
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxxxx X. Xxx
(INSERT ADDRESS OF ISSUER)
Ladies and Gentlemen:
Reference is made to the Irrevocable Funding, Warrant Purchase and
Reimbursement Agreement dated as of October_, 2002 among AIG Highstar Capital L.
P., TransCore Holdings, Inc. and TransCore Credit Corporation (the "Agreement").
All capitalized terms used herein and not defined shall have the meaning
ascribed to such term in the Agreement.
Pursuant to Section 3.4 of the Agreement, ______________, a proposed
Issuer of an Eligible Bond, has made a written request for a Substitute Letter
of Credit in the stated amount of $___________________ which is equal to or less
than the amount of the proposed Eligible Bond. Please cause a Substitute Letter
of Credit in such amount to be delivered on or before ________, 200_ [12
Business Days from the date hereof] to the undersigned naming [the
undersigned]/[the Issuer] as beneficiary.
Very truly yours,
TRANSCORE CREDIT CORPORATION
By:__________________________________
(Signature by Authorized Officer)
EXHIBIT C
FORM OF LETTER OF CREDIT
LETTER OF
OUR CREDIT NO. ISSUE DATE EXPIRY DATE CREDIT AMOUNT
-------------- ---------- ----------- -------------
__________, 200_ $____________
BENEFICIARY APPLICANT
[TransCore Credit Corporation]/[Issuer] AIG Highstar Capital, L. P.
Dear Beneficiary:
At the request, on the instructions and for the account of our customer
AIG Highstar Capital L. P., a Delaware limited partnership ("AIG Highstar"),
with a business address at 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, we (the "Bank") hereby establish our Irrevocable Letter of Credit No.
_______ (the "Letter of Credit") in your favor, pursuant to Section 3.4 of the
Irrevocable Funding, Warrant Purchase and Reimbursement Agreement dated as of
October __, 2002 among AIG Highstar, TransCore Holdings, Inc. and TransCore
Credit Corporation (the "Agreement"). This Letter of Credit is irrevocable and
issued with respect to the surety bond issued by
_________________________________ (the "Issuer") in the amount of
_______________________ (the "Eligible Bond").
This Irrevocable Letter of Credit is issued in the aggregate initial
amount of ________ Million _________ Hundred ___________ Thousand __________
Hundred ____________ Dollars ($_______________) (such amount, as reduced and
reinstated from time to time in accordance with the provisions hereof, the
"Stated Amount") may be drawn upon immediately and shall expire on _____________
(the "Expiration Date").
Subject to the foregoing and the further provisions of this Letter of
Credit, a demand for payment may be made by you under this Letter of Credit
against your sight draft(s) drawn on us, signed by an Authorized Officer stating
on its face the clause, "Drawn under ________Bank, Irrevocable Letter of Credit
No. _______"and accompanied by your written certificate in the form of Exhibit A
attached hereto appropriately completed and signed by an Authorized Officer.
Presentation of such sight draft and certificate shall be made by writing
(including telecopier) at our office located at
__________________________________, Attention: _______________________ or at any
other office that may be designated by us by written notice delivered to you.
Demands for payment may be made by you under this Letter of Credit on or
prior to the expiration hereof at any time during our business hours on a
Business Day at the address at which your sight draft(s) is (are) to be
presented in accordance with the terms hereof. As used herein the term "Business
Day" means any day other than (i) a Saturday or Sunday, (ii) a legal holiday on
which banking institutions in the State of New York are authorized or required
by law to close, or (iii) a day on which the
New York Stock Exchange is closed. If your sight draft accompanied by documents
conforming to the terms and conditions of this Letter of Credit is made by you
at or prior to 12:00 noon (Eastern Time) on a Business Day, such draft will be
honored by us by 12:00 noon (Eastern Time) on the next succeeding Business Day.
If your sight draft accompanied by documents conforming to the terms and
conditions of this Letter of Credit is made by you after 12:00 noon (Eastern
Time) on a Business Day, such draft will be honored by us by 12:00 noon (Eastern
Time) on the second succeeding Business Day. Payment of any draft indicating a
payment date which is not a Business Day as defined herein will be effected the
next succeeding Business Day. If a demand for payment made by you hereunder does
not, in any instance, conform to the terms and conditions of this Letter of
Credit, we shall give you prompt notice that the purported negotiation was not
effected in accordance with the terms and conditions of this Letter of Credit,
stating the reasons therefor and that we are holding any documents at your
disposal or are returning the same to you, as we may elect. Upon being notified
that the purported negotiation was not effected in conformity with this Letter
of Credit, you may attempt to correct any such nonconforming demand for payment
if, and to the extent that, you are entitled (without regard to the provisions
of this sentence) and able to do so.
Demands for payment hereunder honored by us shall not, in the aggregate,
exceed the Stated Amount, as the Stated Amount may have been reduced by us or
reinstated by us as provided below. Subject to the reinstatement effected in
accordance with the terms hereof, each drawing honored by the Bank hereunder
shall reduce the Stated Amount, it being understood that after the effectiveness
of any such reduction you shall no longer have any right to make a drawing
hereunder in respect of the amount corresponding thereto.
Upon reimbursement to us of any drawing hereunder by AIG Highstar of all
amounts paid by us pursuant to such drawing, a like amount of this Letter of
Credit shall be reinstated.
Only you may make a drawing under this Letter of Credit. Upon the payment
to you, to your designee or to your order of the amount specified in a sight
draft drawn, we shall not thereafter be obligated to make any further payments
under this Letter of Credit with respect to such sight draft to you or any other
person. By paying to you an amount demanded in accordance herewith, we make no
representation as to the correctness of the amount demanded.
Payments made by us hereunder will be made to you in immediately available
funds and out of our funds, and not, directly or indirectly, out of funds or
other assets of AIG Highstar.
This Letter of Credit shall automatically terminate and be delivered to
the Bank for cancellation, at 4 p.m. (Eastern Time) on the date which is the
earliest of (i) upon receipt of your certificate in the form of Exhibit B signed
by an Authorized Officer and the honoring by us of the final drawing available
to be made hereunder, (ii) five calendar days after the date upon which we
receive your certificate in the form of Exhibit B signed by an Authorized
Officer with respect to receipt of a replacement letter of credit, and (iii)
______________, _________, the stated Expiration Date. This Letter of Credit
shall be promptly surrendered to us by you upon such termination.
Communications with respect to this Letter of Credit shall be in writing
and shall be addressed to us at _______________________________, Attention:
Standby Letter of Credit Department, __________________________________,
specifically referring thereon to this Letter of Credit by number.
2
As used herein "Authorized Officer" shall mean any person signing as your
President, or one of your Vice Presidents. Other capitalized terms used herein
but not defined herein shall have the same meanings as in the Agreement.
This Letter of Credit sets forth in full our undertaking, and such
undertaking shall not in any way be modified, amended, amplified or limited by
reference to any document, instrument or agreement referred to herein, except
only the certificate(s) and sight draft(s) referred to herein; and any such
reference shall not be deemed to incorporate herein by reference any document,
instrument or agreement except for such certificate(s) and such sight draft(s).
To the extent not inconsistent with the express terms of this Letter of
Credit, this Letter of Credit shall be governed by, and construed in accordance
with, the International Standby Practices (1998), International Chamber of
Commerce Publication No. 590 ("ISP98"). As to matters not covered by the ISP98,
this Letter of Credit shall be governed by the laws of the State of New York,
including, to the extent not inconsistent with the lSP98, the Uniform Commercial
Code as in effect in the State of New York.
Very truly yours,
3
EXHIBIT A TO EXHIBIT C
CERTIFICATE FOR DRAWING
[Date]
________________________
________________________
________________________
Attention: Standby Letter of Credit Department
Re: Irrevocable Letter of Credit No.
The undersigned, a duly authorized officer of TransCore Credit Corporation
("TCC"), hereby certifies to ___________ Bank (the "Bank") with reference to the
Bank's Irrevocable Letter of Credit No. _______ (the "Letter of Credit") (any
capitalized terms used herein and not defined shall have its respective meaning
as set forth in the Letter of Credit issued by the Bank in favor of TCC or the
Agreement defined therein) that:
TCC is making a drawing under the above-referenced Letter of Credit in the
amount of $ ________ with respect to payment of a TCC Obligation pursuant to
Section 4.01 of the Agreement.
The amount of the sight draft accompanying this certificate hereby does not
exceed the Stated Amount or the amount available on the date hereof to be drawn
under the above-referenced Letter of Credit in respect of the Eligible Bond to
which it relates.
Upon receipt by the undersigned of the amount demanded hereby, (a) the
undersigned will transfer such amount to the Issuer of the Eligible Bond
pursuant to the Agreement, (b) no portion of said amount shall be applied by the
undersigned for any other purpose and (c) no portion of said amount shall be
commingled with other funds held by the undersigned.
IN WITNESS WHEREOF, TCC has executed and delivered this Certificate as of
the __________ day of __________________, 20__.
TRANS CORE CREDIT CORPORATION
By:__________________________________
Title:
EXHIBIT B TO EXHIBIT C
__________Bank
Irrevocable Letter of Credit
No. _____
TERMINATION CERTIFICATE
The undersigned, a duly authorized officer of TransCore Credit Corporation
("TCC"), hereby certifies as follows to ____________ Bank, as issuer of the
above-referenced letter of credit (the "Letter of Credit").
SECTION 1. ALL TERMS DEFINED IN THE LETTER OF CREDIT ARE USED HEREIN WITH
THE SAME MEANINGS.
SECTION 2. WE HEREBY REQUEST TERMINATION OF THE LETTER OF CREDIT SUBMITTED
HEREWITH FOR THE FOLLOWING REASON [STATE ONE OF THE FOLLOWING]:
2.1. The draft or demand accompanying this Certificate is the final draft
or demand to be drawn under the Letter of Credit and, upon the honoring of such
draft or demand, we will surrender the Letter of Credit to the Bank for
cancellation;
2.2. The conditions precedent to the acceptance of a replacement letter
of credit have been satisfied and we have has accepted the replacement letter of
credit; or
2.3. The Eligible Bond to which this Letter of Credit relates no longer
remains outstanding.
Dated:__________________ TRANSCORE CREDIT CORPORATION
By:__________________________________
Title:
EXHIBIT D
TRANSCORE CREDIT CORPORATION PAYMENT CERTIFICATE
TransCore Credit Corporation
0000 Xxxxx Xxxxx
Liberty Center-Building 200
Xxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Mr. Xxxxx Xxxxxx
Ladies and Gentlemen:
Reference is made to the Irrevocable Funding, Warrant Purchase and
Reimbursement Agreement dated as of October __, , 2002 among AIG Highstar
Capital, L. P., TransCore Holdings, Inc. and TransCore Credit Corporation (the
"Agreement") and the Surety Bond Agreement dated _________ among _________, as
Issuer, TransCore and TCC. All capitalized terms used herein and not defined
shall have the meaning ascribed to such term in the Agreement. __________, as
Issuer, has made a payment, or is obligated to make a payment, to ___________,
as Eligible Obligee under the Eligible Bond in the amount of $____________ .
Pursuant to Section 4.1 of the Agreement, TransCore hereby makes demand for
payment from TCC in the amount of $___________. In accordance with the terms of
Sections 4.3 and 4.4 of the Agreement, please wire funds for the account of
TransCore to ______________________[Insert financial institution and account
number].
Very truly yours,
TRANSCORE HOLDINGS, [NC.
By: _________________________________
(Signature by Authorized Officer)
EXHIBIT E
AIG HIGHSTAR CAPITAL L.P. PAYMENT CERTIFICATE
AIG Highstar Capital L. P.
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxxxx X. Xxx
Ladies and Gentlemen:
Reference is made to the Irrevocable Funding, Warrant Purchase and
Reimbursement Agreement dated as of October __, 2002 among AIG Highstar Capital
L. P, TransCore Holdings, Inc. and TransCore Credit Corporation (the
"Agreement") and TransCore Credit Corporation Obligation Notice Number __. All
capitalized terms used herein and hot defined shall have the meaning ascribed to
such term in the Agreement or TransCore Credit Corporation Obligation Notice
Number __, as the context may require.
_________, as Issuer, has made a payment, or is obligated to make a
payment, to _________, as Eligible Obligee under the Eligible Bond in the amount
of $__________. TCC is obligated to make a payment to the Issuer (or the
Eligible Obligee as the Issuer's assignee) in the amount of $_____________. All
Additional Letters of Credit have been fully drawn upon in accordance with their
terms. Therefore, pursuant to Section 5.1 of the Agreement, TCC hereby makes
demand for payment from AIG Highstar in the amount of $___________. In
accordance with the terms of Sections 5.3 and 5.4 of the Agreement, please wire
funds for the account of TCC to ______________________[Insert financial
institution and account number].
Very truly yours,
TRANSCORE CREDIT CORPORATION
By:__________________________________
(Signature by Authorized Officer)
EXHIBIT F
TRANSCORE PAYMENT CERTIFICATE
TransCore Holdings, Inc.
0000 Xxxxx Xxxxx
Liberty Center-Building 200
Xxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Mr. Xxxxx Xxxxxx
Ladies and Gentlemen:
Reference is made to the Irrevocable Funding, Warrant Purchase and
Reimbursement Agreement dated as of October __, 2002 among AIG Highstar Capital,
L. P., TransCore Holdings, Inc. and TransCore Credit Corporation (the
"Agreement") and the Surety Bond Agreement dated _________ among _________, as
Issuer, TransCore and TCC. All capitalized terms used herein and not defined
shall have the meaning ascribed to such term in the Agreement.
AIG Highstar has made an AIG Highstar Payment to TCC pursuant to Section 5.1 of
the Agreement. Pursuant to Section 6.2 of the Agreement, AIG Highstar hereby
makes demand for payment from TransCore in the amount of $__________. In
accordance with the terms of Section 6.4 of the Agreement, please wire funds for
the account of AIG Highstar to ______________________[Insert financial
institution and account number].
Very truly yours,
AIG HIGHSTAR CAPITAL, L. P.
By: _________________________________
(Signature by Authorized Officer)
EXHIBIT G
CLOSING CERTIFICATE
I, Xxxxxxx X. Xxxxxxx, hereby certify that I am the duly appointed
Executive Vice President of TRANSCORE HOLDINGS, INC., a Delaware corporation
(the "Corporation"), and I am delivering this Certificate to AIG HIGHSTAR
CAPITAL, L.P. ("AIG Highstar"), in my capacity as Executive Vice President of
the Corporation pursuant to that certain Irrevocable Funding, Warrant Purchase
and Reimbursement Agreement dated October __, 2002, by and among the
Corporation, TransCore Credit Corporation and AIG Highstar (the "Irrevocable
Funding Agreement") and hereby certify to AIG Highstar that:
1. TransCore has discovered accounting irregularities at the time of
the acquisition of Viastar Holdings, Inc. ("Viastar") and for the
fiscal years ending January 31, 2001 and January 31, 2002 in the
accounts receivable, accounts payable, cash and possibly other
balance sheet accounts of Viastar (the "Irregularities"). TransCore,
for accounting purposes, has now treated Viastar as a discontinued
operation and incurred a charge of approximately $40 million (the
"Discontinued Operations Charge"). The Senior Lender and Purchasers
(as defined under the Note Purchase Agreement) have waived any
Default or Event of Default caused by the breach of any
representation or warranty made in either the Credit Agreement or
Sub-Debt Note Purchase Agreements, as the case may be, to the extent
such breach is due solely to the Irregularities or the Discontinued
Operations Charge.
IN WITNESS WHEREOF, the undersigned has executed this Officer's
Certificate this _st day of October, 2002.
__________________________
Name:
Title: President
I, _________________, as Secretary of TRANSCORE CREDIT CORPORATION, a Delaware
corporation, hereby certify that appearing above is a true and correct signature
of ___________, the President of TRANSCORE CREDIT CORPORATION.
Dated this __ day of October, 2002.
____________________________
Name:
Title: Secretary
