EXHIBIT 10.31
OMNIBUS AMENDMENT NO. 1
THIS OMNIBUS AMENDMENT NO. 1, dated as of September 15, 2005 (the "Amendment"),
to:
(1) the Amended and Restated Credit Agreement, dated as of August 1,
2005 (the "Credit Agreement"), among TAL International Container
Corporation ("TAL"), Trans Ocean Ltd. ("TOL"), Trans Ocean
Container Corporation ("TOCC", and collectively with TAL and TOL,
the "Borrowers" and each a "Borrower"), Fortis Capital Corp., as
Administrative Agent and as Collateral Agent (the "Agent"), and
the lenders named therein (the "Lenders"); and
(2) the Amended and Restated Security Agreement, dated as of August
1, 2005 (the "Security Agreement"), among TAL, TOL, TOCC and the
Agent.
W I T N E S S E T H:
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WHEREAS, in connection with the actions needed to complete a
Syndication Event, the parties hereto desire to amend the Credit Agreement and
the Security Agreement (collectively, the "Agreements") in certain respects as
provided herein;
NOW THEREFORE, in consideration of the premises and the other mutual
covenants contained herein, the parties hereto agree as follows:
SECTION 1. Defined Terms. Unless otherwise amended by the terms of this
Amendment, terms used in this Amendment shall have the meanings assigned in the
respective Agreements.
SECTION 2. Amendment to Credit Agreement. Effective as of the date hereof,
following the execution and delivery of this Amendment, the Credit Agreement
shall be amended as follows:
(a) Section 1.1 of the Credit Agreement shall by amended by inserting the
following definition of "Concentration Accounts":
" Concentration Accounts. The bank accounts to which lessees are instructed to
make payments in respect of Eligible Containers and Eligible Chassis. As of the
Restatement Effective Date, the Concentration Accounts are the accounts numbered
▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ at Citibank, N.A.";
(b) Section 1.1 of the Credit Agreement shall be amended by inserting in
clause (4) of the term "Eligible Chassis" the words "(exclusive of
Permitted Liens of the type set forth in clauses (xi)(B) and (xv) of
Section 9.3)" after the words "except for Permitted Liens";
(c) Section 1.1 of the Credit Agreement shall be amended by deleting
clause (7) of the term "Eligible Chassis" in its entirety and
replacing such clause with the following:
"(7) Such Chassis shall have been designated by a Borrower as an "Eligible
Chassis" hereunder (it being understood that, for the purposes of this clause
(7), a Chassis will be deemed to have been designated by a Borrower as an
"Eligible Chassis" hereunder in the event that such Chassis is so designated in
any applicable Loan Request or Asset Base Report or is otherwise so designated
on the books and records of such Borrower).";
(d) Section 1.1 of the Credit Agreement shall be amended by inserting in
clause (5) of the term "Eligible Container" the words "(exclusive of
Permitted Liens set forth in clauses (xi)(B) and (xv) of Section 9.3)"
after the words "except for Permitted Liens";
(e) Section 1.1 of the Credit Agreement shall be amended by deleting
clause (8) of the term "Eligible Container" in its entirety and
replacing such clause with the following:
"(8) Such Container shall have been designated by a Borrower as an "Eligible
Container" hereunder (it being understood that, for the purposes of this clause
(8), a Container will be deemed to have been designated by a Borrower as an
"Eligible Container" hereunder in the event that such Container is so designated
in any applicable Loan Request or Asset Base Report or is otherwise so
designated on the books and records of such Borrower);";
(f) Section 1.1 of the Credit Agreement shall be amended by deleting the
word "be" before the words "not be included" in the lead-in language
to the term "Consolidated Net Income";
(g) The definition of "Majority Lenders" in Section 1.1 of the Credit
Agreement shall be amended in its entirety to read as follows:
"Majority Lenders. As of any date of determination, any Lenders collectively
having more than fifty percent (50%) of the sum of the portion of the Aggregate
Commitments unfunded at such date plus the aggregate outstanding principal
amount of the Loans or, if the commitment of each Lender to make Loans has been
terminated pursuant to Section 13.2, any Lenders collectively holding in the
aggregate more than fifty percent (50%) of the outstanding principal amount of
the Loans; provided that (i) the Commitment of, and the portion of the
outstanding principal amount of the Loans held or deemed held by, any Defaulting
Lender shall be excluded for purposes of making a determination of Majority
Lenders and (ii) in all instances the Majority Lenders shall be comprised of at
least two Lenders.";
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(h) Section 8.1(g) of the Credit Agreement shall be amended by deleting
clause (ii) thereof in its entirety and renumbering existing clauses
(iii) and (iv) as new clauses (ii) and (iii), respectively;
(i) Section 8.1 of the Credit Agreement shall be amended by inserting the
following paragraph (k) and renumbering existing paragraph (k) new
paragraph (l):
" (k) By the last Business Day of each month, an Asset Base Report for the
immediately preceding month, substantially in the form of Exhibit A hereto";
(j) Section 8.2 of the Credit Agreement shall be amended by inserting "at
the expense of the Borrowers" after "under this Section 8.2" and by
inserting at the end of such section:
" In addition to the inspections at the expense of the Borrowers listed above,
the Administrative Agent shall be permitted to request and perform, on behalf of
the Lenders, one additional inspection (which shall not involve a collateral or
field audit) during each twelve month period at the expense of the Lenders;
provided that the Administrative Agent shall only request such additional
inspection if it is requested by all of the Lenders and further provided that
such additional inspection shall be accomplished solely by an independent
diligence service selected by the Administrative Agent.";
(k) Paragraph (B) of Section 9.2(a) of the Credit Agreement shall be
amended by inserting the words "the Obligations and" after the words
"and the performance of" and by inserting the words "and the other
Loan Documents" after the words "in this Credit Agreement" and by
inserting "and, if the Guaranty is not to continue in effect pursuant
to clause (c), the performance of the Guaranty and the obligations of
TAL Group under the Guaranty (in which case, the Guarantor shall
thereafter be released from any and all obligations under the Guaranty
and any requirement to maintain a Guaranty under any Loan Document
shall terminate and have no further force and effect)" after "on the
part of the Borrowers";
(l) Section 9.2(a) shall be amended by adding the following paragraph (C)
immediately after paragraph (B):
" (C) shall have authorized the filing of UCC financing statements of the type
set forth in the Credit Agreement; and";
(m) Section 9.2 of the Credit Agreement shall be amended by inserting the
following paragraphs (c) and (d) immediately after paragraph (b):
" (c) The Guaranty shall remain in full force and effect unless, in the case of
a Surviving Entity, the Surviving Entity shall (i) after giving effect to such
transaction, comply with all of the financial covenants set forth in Section 10
hereof and (ii) thereafter deliver, with respect to the Surviving Entity,
financial statements and reports of the type otherwise required to be delivered
by TAL Group or the Guarantor hereunder";
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(d) In the case of a transfer to a Surviving Entity, the Surviving Entity
shall have delivered to the Administrative Agent an opinion of counsel to the
Surviving Entity stating that in the opinion of such counsel, such transfer
shall not have violated the foregoing provisions of this Section 9.2 (it being
understood that (x) such opinion of counsel shall be in form and substance, and
subject to assumptions and exceptions, that are customary for transaction of
this type, and (y) with respect to matters of fact, such opinion of counsel
shall be entitled to rely on a certificate from an officer of such Surviving
Entity).";
(n) The last paragraph of Section 9.2 of the Credit Agreement shall be
amended by inserting the words "or to a Surviving Entity" after the
words "to another Borrower";
(o) Section 13.1(j) of the Credit Agreement shall be amended by inserting
the words "the Pledge Agreement," before the words "the Security
Agreement";
(p) Section 13.1(m) of the Credit Agreement shall be amended by inserting
the words "or the Guarantor repudiates its obligations under the
Guaranty (subject to Section 9.2)" after the words "within its
control"; and
(q) Section 15.2(i) of the Credit Agreement shall be amended by deleting
"$15,000,000" and inserting in its place "$5,000,000".
(r) Schedule 1 to the Credit Agreement (Funding Commitments of Lenders)
shall be deemed automatically updated in the event any Eligible
Assignee becomes a Lender under the Credit Agreement pursuant to the
provisions of Section 15.2 thereof, and each Lender's Commitment shall
be deemed revised accordingly.
SECTION 3. Amendment to Security Agreement. Effective as of the date hereof,
following the execution and delivery of this Amendment, the Security Agreement
shall be amended as follows:
(a) Section 7.4(a) of the Security Agreement shall be amended by inserting
the following at the end of clause (ii) thereof:
"; provided, that all amounts owing of the type described in clause (i) of the
definition of "Obligations" shall be paid prior to the payment of amounts owing
of the type described in clause (ii) of the definition of "Obligations"";
(b) Article VIII of the Security Agreement shall be amended by deleting in
the definition of the term "Container Management System" the words
"the Manager" and inserting in their place the words "TAL
International Container Corporation and its Affiliates";
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(c) Section 9.2 of the Security Agreement shall be amended by deleting the
words "Section 9.12 hereof" and inserting in their place the words
"Section 16.12 of the Credit Agreement";
(d) Section 9.6(b) of the Security Agreement shall be amended by inserting
the words "OR ANY OTHER LOAN DOCUMENT" after the words "IN CONNECTION
WITH THIS AGREEMENT";
(e) Section 9.6(c) of the Security Agreement shall be amended by inserting
the words ", THE OTHER LOAN DOCUMENTS" after the words "RELATING TO
THIS AGREEMENT";
(f) Section 9.9 of the Security Agreement shall be amended by deleting the
words "lodged with the Borrower" and inserting in their place the
words "lodged with each Assignor";
(g) The Security Agreement shall be amended by inserting a new Section
9.12 following Section 9.11 as follows:
" 9.12. Schedule I. Schedule I shall automatically be updated to reflect the
designation of additional Eligible Chassis and Eligible Containers in accordance
with the terms of the Credit Agreement.";
(h) The reference to "Schedule 1" following the Table of Contents in the
Security Agreement shall be amended to read "Schedule I"; and
(i) "Schedule 1" to the Security Agreement shall be amended by deleting
"Schedule 1" and replacing it with "Schedule I".
SECTION 4. Representations, Warranties and Covenants of the Borrowers. Each
Borrower hereby represents and warrants for itself as of the date hereof (unless
otherwise provided):
(a) It is duly organized and validly existing in good standing (or its
equivalent) under the laws of the jurisdiction of its organization, except where
the failure to be so duly organized, validly existing and in good standing,
either individually or in the aggregate, would not reasonably be expected to
have a Material Adverse Effect, and it is duly qualified to do business in each
jurisdiction where the failure to do so would have a Material Adverse Effect;
(b) It has the corporate power and authority to execute and deliver this
Amendment and to perform its obligations under this Amendment;
(c) The execution, delivery and performance of this Amendment does not and
will not require any consent or approval of any Governmental Authority or any
other Person which has not already been obtained or is being obtained herein;
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(d) This Amendment, when duly executed and delivered by the parties hereto,
shall be, legal, valid and binding obligations of such Borrower, enforceable
against such Borrower in accordance with the terms set forth herein, except to
the extent that the enforceability thereof may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws generally
affecting creditors' rights and by equitable principles (regardless of whether
enforcement is sought in equity or at law); and
(e) No Default or Event of Default has occurred and is continuing.
SECTION 5. Representations, Warranties and Covenants of Fortis Capital Corp.
Fortis Capital Corp. hereby represents and warrants that it is the holder of a
Note pursuant to the Credit Agreement in the amount of $175,000,000.00.
SECTION 6. Scope and Effectiveness of Agreement.
(a) The Effective Date of this Amendment shall be September 15, 2005.
(b) This Amendment and the agreements set forth herein shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
(c) On and after the execution and delivery hereof, and as of the Effective
Date of this Amendment, (i) this Amendment shall become a part of the Agreements
and (ii) each reference in the Agreements to "this Agreement", or "hereof",
"hereunder" or words of like import, and each reference in any other document to
the Agreements shall mean and be a reference to such Agreements, as amended or
modified hereby.
(d) Except as expressly amended or modified hereby, the Agreements shall
remain in full force and effect and are hereby ratified and confirmed by the
parties hereto.
(e) Each party hereto agrees and acknowledges that this Amendment
constitutes a "Loan Document" under the Credit Agreement.
SECTION 7. Execution in Counterparts, Effectiveness. This Amendment may be
executed by the parties hereto in several counterparts, each of which shall be
deemed to be an original and all of which shall constitute together but one and
the same agreement. Facsimile signatures shall be effective as originals.
Delivery of an executed counterpart of this Supplement by facsimile or by
electronic means shall be equally effective as of the delivery of an originally
executed counterpart.
SECTION 8. Governing Law; Severability. THIS AMENDMENT SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY,
THE LAWS OF THE STATE OF NEW YORK, INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE
GENERAL OBLIGATIONS LAWS BUT OTHERWISE WITHOUT REGARD TO
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THE CONFLICT OF LAWS PRINCIPLES THEREOF. IF ANY PROVISION OF THIS AMENDMENT IS
DEEMED INVALID, IT SHALL NOT AFFECT THE BALANCE OF THIS AMENDMENT. THIS
AMENDMENT HAS BEEN DELIVERED IN THE STATE OF NEW YORK.
SECTION 9. Direction. The Lender directs the Agent to execute this Amendment.
SECTION 10. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY
WAIVES, AS AGAINST THE OTHER PARTY HERETO, ANY RIGHTS IT MAY HAVE TO A JURY
TRIAL IN RESPECT OF ANY CIVIL ACTION OR PROCEEDING (WHETHER ARISING IN CONTRACT
OR TORT OR OTHERWISE), INCLUDING ANY COUNTERCLAIM, ARISING UNDER OR RELATING TO
THIS AMENDMENT OR ANY OTHER LOAN DOCUMENT, INCLUDING IN RESPECT OF THE
NEGOTIATION, ADMINISTRATION OR ENFORCEMENT HEREOF OR THEREOF.
SECTION 11. Guarantor. The Guarantor acknowledges and consents to the amendments
contained herein.
[Signatures Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed by their respective officers as of the day and year first above
written.
TAL INTERNATIONAL CONTAINER
CORPORATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: President
TRANS OCEAN LTD.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: President
TRANS OCEAN CONTAINER
CORPORATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title President
FORTIS CAPITAL CORP., as
Administrative Agent and as
Collateral Agent
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: V.P. Controller
LENDERS: FORTIS CAPITAL CORP., as sole Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: V.P. Controller
Commitment: $175,000,000.00
Acknowledged and consented to by:
TAL INTERNATIONAL GROUP, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: President