Exhibit 4.11
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PRIMARY OBLIGATION AND GUARANTY AGREEMENT
THIS PRIMARY OBLIGATION AND GUARANTY AGREEMENT (this "Agreement") is
executed as of March 15, 1999, by Neptune Orient Lines Limited, a Singapore
corporation ("NOL"), in favor of Coyote Acquisition LLC, a Delaware limited
liability company ("Coyote"), and APL Land Transport Services, Inc., a Tennessee
corporation ("LTS").
WHEREAS, APL Limited, a Delaware corporation ("APL"), is a party to a
Stock Purchase Agreement, dated as of March 15, 1999, between APL and Coyote.
WHEREAS, in connection with the Stock Purchase Agreement, APL will
become a party to the following agreements (each as defined in the Stock
Purchase Agreement and, together with the Stock Purchase Agreement, the
"Agreements"):
(1) an Administrative Services Agreement;
(2) an Information Technology Access and License Agreement;
(3) a Stacktrain Services Agreement;
(4) a TPI Chassis Sublet Agreement;
(5) an Equipment Supply Agreement; and
(6) a Stockholders Agreement.
WHEREAS, APL is currently a wholly owned indirect subsidiary of NOL.
WHEREAS, APL or APL Bermuda Pte. Ltd., the sole stockholder of APL,
may issue equity shares of its capital stock to the public with a value in
excess of $25 million such that its shares are listed on a United States or
Singapore national securities exchange or quoted on an interdealer quotation
system (an "IPO").
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and sufficiency of
which are hereby acknowledged, NOL hereby agrees with Coyote and LTS as follows:
1. Primary Obligation. Prior to an IPO, (a) NOL hereby agrees that
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it is jointly and severally entitled to
all of the rights, subject to all of the covenants and liable for all of the
obligations (including, without limitation, indemnity obligations) of APL under
each of the Agreements to which APL is a party as if NOL were a signatory
thereto and (b) Coyote and LTS may proceed directly against NOL to enforce any
of such covenants and obligations.
2. Guaranty. Following an IPO, (a) NOL hereby absolutely,
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unconditionally and irrevocably guarantees the payment of any amounts due by APL
to Coyote or LTS under the Agreements (the "Guaranteed Obligations") and (b)
Coyote and LTS shall first exhaust their rights to collect any and all
outstanding Guaranteed Obligations from APL before attempting to collect such
Guaranteed Obligations from NOL so long as the collection efforts against APL,
in the judgment of Coyote or LTS, do not prejudice in any manner the ability of
Coyote and LTS to collect such Guaranteed Obligations from NOL, in which case
Coyote and LTS may proceed directly against NOL.
3. Representations and Warranties. NOL represents and warrants to
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Coyote and LTS as follows:
(i) NOL is a corporation duly organized, validly existing and in
good standing under the laws of Singapore. NOL has the requisite corporate
power and authority to execute, deliver and perform this Agreement. The
execution, delivery and performance by NOL of this Agreement has ben duly
authorized by all necessary corporate action on the part of NOL.
(ii) This Agreement constitutes a valid and binding obligation of
NOL, enforceable against NOL in accordance with its terms.
(iii) The execution, delivery and performance of this Agreement by
NOL will not violate or conflict with, or constitute a breach or default
(with or without notice or lapse of time, or both) under (a) the charter
documents of NOL, (b) any law, regulation, order, judgment, or decree
applicable to NOL or (c) any term, condition or provision of any loan or
credit agreement, note, bond, mortgage, indenture, lease, sublease or other
material agreement, commitment, instrument, permit, concession, franchise
or license to which NOL is a party or by which NOL or its assets may be
bound, in each case clause (b) or (c) above, which conflict or violation
would adversely affect the ability of NOL to perform its obligations under
this Agreement.
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(iv) No authorization, consent, permit, approval or other order of,
declaration to, or registration, qualification, designation or filing with,
any governmental authority is required for or in connection with the
execution, delivery and performance of this Agreement by NOL other than the
approval of the transactions contemplated hereby by the shareholders of NOL
pursuant to an extraordinary general meeting.
4. Bankruptcy. NOL's obligations under this Agreement shall not be
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limited by any proceedings filed by or against NOL or APL under any applicable
bankruptcy, insolvency or corporate reorganization law. NOL further agrees that
Coyote and LTS shall be under no obligation to marshall any assets in favor of
or against or in payment of any or all of the Guaranteed Obligations. To the
extent that APL makes a payment or payments to Coyote or LTS which payment or
payments (or any part thereof) is or are subsequently invalidated, declared to
be fraudulent or preferential, set aside and/or required to be repaid to APL, or
its estate, trustee or receiver or any other party, including, without
limitation, NOL, under any bankruptcy law, state or federal law, common law or
equitable cause, then to the extent of such payment or repayment, the Guaranteed
Obligations, or part thereof which had been paid, reduced or satisfied by such
amount, shall be reinstated and continued in full force and effect as of the
date such initial payment, reduction or satisfaction occurred.
5. Termination. This Agreement shall remain in full force and
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effect until, and terminate only after, the termination of all of the Agreements
and the indefeasible payment in full of the Guaranteed Obligations, it being
understood that this Agreement shall not have been terminated, but shall remain
in full force and effect, if any payment or payments (or any part thereof) made
by APL to Coyote or LTS are subsequently invalidated, declared to be fraudulent
or preferential, set aside and/or required to be repaid to APL, or its estate,
trustee or receiver or any other party, including, without limitation, NOL,
under any bankruptcy, insolvency or corporate reorganization law, state or
federal law, common law or equitable cause, until such payment or payments are
satisfied in full pursuant to this Agreement.
6. Governing Law. This Agreement shall be governed by and construed
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in accordance with the laws of the State of New York without regard to
principles of conflicts of laws. Each of the parties hereto hereby irrevocably
submits in any legal action or proceeding relating to or
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arising out of this Agreement or any other document relating hereto or delivered
in connection with the transactions contemplated hereby, or for recognition and
enforcement of any judgment in respect thereof, to the exclusive jurisdiction of
the United States District Court for the Southern District of New York and
appellate courts thereof. Each of the parties hereto further (a) consents that
any such action or proceeding may be brought in such court and waives any
objection that it may now or hereafter have to the venue of any such action or
proceeding in such court or that such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the same; (b) agrees that
service of process in any such action or proceeding may be effected by mailing a
copy thereof by registered or certified mail (or any substantially similar form
of mail), postage prepaid, to such party at its address set forth in Section
10.3 of the Stock Purchase Agreement or at such other address of which such
party shall have given notice pursuant thereto; and (c) agrees that nothing
herein shall affect the right to effect service of process in any other manner
permitted by law.
7. Severability. Any provision of this Agreement that is held by a
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court of competent jurisdiction to violate applicable law shall be limited or
nullified only to the extent necessary to bring this Agreement within the
requirements of such law.
8. Waiver. This Agreement may not be amended or modified by the
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express written consent of the parties hereto. Any waiver by the parties of a
breach of any provision of this Agreement shall not operate or be construed as a
waiver of any subsequent breach thereof or any other provision.
9. No Assignment. Neither of the parties hereto may assign or
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transfer any of its rights or delegate any of its obligations hereunder, whether
by operation of law or otherwise, to any other person or entity without the
prior written consent of the other party hereto. Any purported assignment or
delegation that is made other than in accordance with this Section 9 shall be
void and of no effect. Subject to the foregoing provisions of this Section 9,
this Agreement shall be binding upon and inure to the benefit of and be
enforceable by the parties and their respective successors and assigns.
10. Notices. All notices or other communications to NOL shall be in
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writing and shall be given in the same manner and with the same effect as set
forth in Section 10.3
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of the Stock Purchase Agreement. NOL's address and facsimile number are as set
forth below:
Neptune Orient Lines Limited
456 Alexandra Road
#06-00 NOL Building
Singapore 119962
Attention: Marjorie Wee
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and each of the undersigned hereby represents and warrants that he or
she has been and is, on the date of this Agreement, duly authorized by all
necessary and appropriate action to execute this Agreement.
NEPTUNE ORIENT LINES LIMITED
By: /s/ Cederic Foo
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Name:
Title:
COYOTE ACQUISITION LLC
By: /s/ Joshua Harris
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Name: Joshua Harris
Title: Vice President
APL LAND TRANSPORT SERVICES, INC.
By: /s/ Timothy J. Rhein
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Name: Timothy J. Rhein
Title: President and Chief
Executive Officer
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