EXHIBIT 10.23
AMENDMENT XX. 0
XXXXXXXXX XX. 0 dated as of August 1, 2005 ("Amendment") among TAL
INTERNATIONAL GROUP, INC., a Delaware corporation (the "Company"), the lenders
party hereto (the "Lenders") and TRANSAMERICA ACCOUNTS HOLDING CORPORATION, as
Agent for the Lenders (the "Agent"), and amends the Credit Agreement dated as of
November 3, 2004 (as amended by Amendment No. 1 dated as of March 31, 2005, by
Amendment No. 2 dated as of May 14, 2005 and as further amended, restated,
supplemented or otherwise modified from time to time, the "Transamerica Credit
Agreement") among the Company, the Lenders and the Agent.
WHEREAS, the Company and the Lenders desire to make certain amendments
to the Transamerica Credit Agreement, as more fully set forth herein.
NOW THEREFORE, in consideration of the above premises and the mutual
covenants, conditions, and provisions hereinafter set forth, the parties hereto
agree as follows:
Section 1. DEFINITIONS; CONSTRUCTION. Terms defined in the
Transamerica Credit Agreement and not otherwise defined herein are used herein
as therein defined. Unless the context of this Amendment clearly requires
otherwise, references to the plural include the singular, references to the
singular include the plural, the part includes the whole, the terms "include"
and "including" are not limiting, and the term "or" has the inclusive meaning
represented by the phrase "and/or".
Section 2. AMENDMENTS.
(a) AMENDMENT TO DEFINITION OF CREDIT AGREEMENT. The definition of
"Credit Agreement" set forth in Section 1.1 of the Transamerica Credit
Agreement is hereby amended and restated to read in its entirety as
follows:
""CREDIT AGREEMENT" means that certain Amended and Restated
Credit Agreement, dated as of August 1, 2005, among TAL International
Container Corporation, Trans Ocean Ltd., Trans Ocean Container
Corporation, the lenders party thereto (together with their successors
and assigns) and Fortis Capital Corp., as administrative agent (in
such capacity, together with its successors and assigns, the
"ADMINISTRATIVE AGENT"), together with that certain Guaranty, dated as
of August 1, 2005, issued by the Company in connection with the Credit
Agreement, in each case, as amended, extended, renewed, restated,
replaced, increased, supplemented or otherwise modified (in whole or
in part, and without limitation as to amount, terms, conditions,
covenants and other provisions) from time to time (whether upon or
after termination or otherwise), and any agreement (and related
document) governing Indebtedness incurred to Refinance or otherwise
replace (including by means of sales of debt securities to
institutional investors), in whole or in part, the borrowings and
commitments then outstanding or permitted to be outstanding under such
Credit Agreement or a successor Credit Agreement."
(b) INSERTION OF A NEW DEFINITION OF INTERCREDITOR AGREMENT. Section
1.1 of the Transamerica Credit Agreement is hereby amended to insert a new
definition of "Intercreditor Agreement" in the appropriate alphabetical
location, to read in its entirety as follows:
""INTERCREDITOR AGREEMENT" means that certain Amended and
Restated Intercreditor Agreement, dated as of August 1, 2005, among
the Company, certain of its Subsidiaries, Fortis Capital Corp. and the
Agent."
(c) INSERTION OF A NEW DEFINITION OF MASTER INDENTURE DOCUMENTS.
Section 1.1 of the Transamerica Credit Agreement is hereby amended to
insert a new definition of "Master Indenture Documents" in the appropriate
alphabetical location, to read in its entirety as follows:
""MASTER INDENTURE DOCUMENTS" means that certain Indenture,
dated as of August 1, 2005, between TAL Advantage and U.S. Bank
National Association, as indenture trustee, and all other Transaction
Documents (as such term is defined in such Indenture), in each case,
as amended, extended, renewed, restated, replaced, increased,
supplemented or otherwise modified (in whole or in part, and without
limitation as to amount, terms, conditions, covenants and other
provisions) from time to time (whether upon or after termination or
otherwise)."
(d) AMENDMENT TO DEFINITION OF PERMITTED INDEBTEDNESS. Clause (2) of
the definition of "Permitted Indebtedness" set forth in Section 1.1 of the
Transamerica Credit Agreement is hereby amended and restated to read in its
entirety as follows:
"(2) without duplication, each of (i) Indebtedness incurred from
time to time pursuant to the Credit Agreement or Qualified Container
Indebtedness in an aggregate principal amount for all such
Indebtedness pursuant to this clause (i) not to exceed the Asset Base
(as defined in the Credit Agreement as in effect on August 1, 2005) of
the Senior Borrowers and (ii) Indebtedness incurred from time to time
pursuant to the Master Indenture Documents in an aggregate principal
amount not to exceed the Asset Base (as defined in the Master
Indenture Documents as in effect on August 1, 2005) of TAL Advantage;"
(e) AMENDMENT TO DEFINITION OF QUALIFIED CONTAINERS SUBSIDIARY. Clause
(1) of the definition of "Qualified Containers Subsidiary" set forth in
Section 1.1 of the Transamerica Credit Agreement is hereby amended by
inserting the clause ", TAL Advantage" immediately following the clause
"Trans Ocean Ltd." in the first line thereof.
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(f) AMENDMENT TO DEFINITION OF QUALIFIED CONTAINERS TRANSACTION.
Clause (a) of the definition of "Qualified Containers Transaction" set
forth in Section 1.1 of the Transamerica Credit Agreement is hereby amended
by inserting the clause "each of the transactions contemplated by the
Master Indenture Documents and" immediately prior to the term "any" in the
first line thereof.
(g) INSERTION OF A NEW DEFINITION OF TAL ADVANTAGE. Section 1.1 of the
Transamerica Credit Agreement is hereby amended to insert a new definition
of "TAL Advantage" in the appropriate alphabetical location, to read in its
entirety as follows:
""TAL ADVANTAGE" means TAL Advantage I LLC, a Delaware limited
liability company."
(h) AMENDMENT TO SECTION 6.4. Section 6.4 of the Transamerica Credit
Agreement is hereby amended and restated to read in its entirety as
follows:
"The Company will not, and will not permit any of its Restricted
Subsidiaries to, without the prior written consent of the Agent, enter
into any amendment which is adverse to the Agent or the Lenders of (or
permit any agreement in respect of debt that Refinances the debt
incurred pursuant to the Credit Agreement to become effective the
effect of which would impose on the Company terms that if implemented
pursuant to an amendment to the Credit Agreement would be prohibited
by this Section) any term of the Credit Agreement consisting of (i)
clause (xvi) or (xvii) of the definition of "Permitted Dividend", (ii)
the definition of "Designated Event of Default", (iii) Section 9.6,
(iv) interest rates, fees, and aggregate principal amount of loans to
be outstanding under the Credit Agreement, in each case in excess of
the amounts contemplated by the definition of "Senior Debt" in the
Intercreditor Agreement, and (v) amending the final maturity date of
the indebtedness outstanding under the Credit Agreement to any date
prior to August 1, 2008."
Section 3. INTENTIONALLY OMITTED.
Section 4. CONDITIONS PRECEDENT TO AMENDMENT. The satisfaction of each
of the following, unless waived by the Lenders, in their sole discretion, shall
constitute conditions precedent to the effectiveness of this Amendment:
(a) No injunction, writ, restraining order, or other order of any
nature prohibiting, directly or indirectly, the consummation of the
transactions contemplated herein shall have been issued and remain in force
by any governmental authority against the Company.
Section 5. REPRESENTATIONS AND WARRANTIES. To induce the Lenders to
enter into this Amendment, the Company represents and warrants to the Lenders
that:
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(a) Authority. The execution and delivery by the Company of this
Amendment and the performance by the Company of its obligations under this
Amendment (i) are within its corporate power and authority, (ii) have been
duly authorized by all necessary corporate proceedings, (iii) do not
conflict with or result in any breach or contravention of any material
provision of applicable law, statute, rule or regulation to which the
Company is subject or any judgment, order, writ, injunction, license or
permit by which the Company is bound so as to materially adversely affect
the assets, business or any activity of the Company, (iv) do not conflict
with any provision of the certificate of incorporation or bylaws of the
Company or any indenture, mortgage, deed of trust, credit agreement, loan
agreement, or any other material agreement, contract or instrument binding
upon the Company, (v) do not require any waivers, consents or approvals by
any of its creditors which have not been obtained, or (vi) do not require
any material approval which has not been obtained.
(b) Enforceability of Obligations. This Amendment and the Transamerica
Credit Agreement, as amended hereby, constitute the legal, valid and
binding obligations of the Company enforceable against the Company in
accordance with its terms, except to the extent that the enforceability
thereof may be limited by applicable bankruptcy, insolvency, fraudulent
convenyance, reorganization, moratorium or other similar laws generally
affecting creditors' rights and by equitable principles (regardless of
whether enforcement is sought in equity or at law).
(c) No Event of Default. No Event of Default or Default has occurred
and is continuing.
Section 6. REFERENCE TO AND EFFECT ON LOAN DOCUMENTS.
(a) Upon the effectiveness of this Amendment, on and after the date
hereof, each reference in the Transamerica Credit Agreement to "this
Agreement", "hereunder", "hereof" or words of like import, and each
reference in the other Loan Documents to the Transamerica Credit Agreement,
shall mean and be a reference to the Transamerica Credit Agreement as
amended hereby;
(b) Except as expressly set forth herein, this Amendment shall not by
implication or otherwise limit, impair, constitute a waiver of, or
otherwise affect the rights and remedies of the Company, the Lenders or the
Agent under the Credit Agreement or any other Loan Document, and shall not
alter, modify, amend or in any way affect any of the terms, conditions,
obligations, covenants or agreements contained in the Transamerica Credit
Agreement or any other Loan Document, all of which are ratified and
affirmed in all respects and shall continue in full force and effect.
(c) Nothing herein shall be deemed to entitle the Company, the Lenders
or the Agent to a waiver, amendment, modification or other change of any of
the terms, conditions, obligations, covenants or agreements contained in
the Transamerica Credit Agreement or any other Loan Document in similar or
differing circumstances.
(d) This Amendment shall be a Loan Document for all purposes.
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Section 7. BENEFITS OF AMENDMENT. The terms and provisions of this
Amendment shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns to the extent contemplated by the
Transamerica Credit Agreement.
Section 8. INTERPRETATION. The Article and Section headings used in
this Amendment are for convenience of reference only and shall not affect the
construction hereof.
Section 9. EXECUTION IN COUNTERPARTS. This Amendment may be executed
in any number of counterparts, each of which counterparts, when so executed and
delivered, shall be deemed to be an original and all of which counterparts,
taken together, shall constitute but one and the same Amendment. Faxed
signatures of this Amendment shall be binding for all purposes.
Section 10. SEVERABILITY. If any provision of this Amendment shall be
held to be invalid, illegal or unenforceable under applicable law in any
jurisdiction, such provision shall be ineffective only to the extent of such
invalidity, illegality or unenforceability, which shall not affect any other
provisions hereof or the validity, legality and enforceability of such provision
in any other jurisdiction.
Section 11. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW.
Section 12. EXPENSES. The Company agrees to pay the reasonable and
documented fees, expenses and disbursements of Xxxxxx, Xxxx & Xxxxxxxx LLP,
special counsel for the Agent, incurred in connection with the preparation,
negotiation, execution and delivery of this Amendment and that certain Amended
and Restated Intercreditor Agreement, dated as of the date hereof, among the
Agent, the Company and the other parties thereto.
Section 13. NO COURSE OF DEALING. The execution and delivery of this
Amendment shall not establish a course of dealing among the Lenders and the
Agent, on the one hand, and the Company, on the other, or in any other way
obligate the Lenders to hereafter provide any further amendments, waivers, or
consents of any kind to the Company.
Section 14. ARM'S LENGTH AGREEMENT. Each of the parties to this
Amendment agrees and acknowledges that this Amendment has been negotiated in
good faith, at arm's length, and not by any means forbidden by law.
Section 15. ENTIRE AGREEMENT. This Amendment together with all other
instruments, agreements, and certificates executed by the parties in connection
herewith or with reference thereto, embody the entire understanding and
agreement between the parties hereto and thereto with respect to the subject
matter hereof and thereof and supercede all prior agreements, understandings,
and inducements, whether express or implied, oral or written.
[Signature page to follow.]
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IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed and delivered as of the date first above written.
TAL INTERNATIONAL GROUP, INC.
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Chief Executive Officer
TRANSAMERICA ACCOUNTS HOLDING CORPORATION,
AS AGENT AND SOLE LENDER
By: /s/ Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
Title: Vice President
