EXHIBIT 10.51
GUARANTY
GUARANTY (this "GUARANTY"), dated as of August 15, 2007, is
made by TAL
INTERNATIONAL GROUP, INC., a Delaware corporation (together with
its successors
and permitted assigns, the "GUARANTOR"), in favor of the
Beneficiaries (as
defined below).
RECITALS:
WHEREAS, pursuant to the Credit Agreement, dated as of August
15, 2007 (as
amended, restated, modified or supplemented from time to time in
accordance with
its terms, the "CREDIT AGREEMENT"), TAL International Container
Corporation, a
Delaware corporation (together with its successors and permitted
assigns, the
"BORROWER"), has requested from the lenders from time to time party
thereto
(each, a "LENDER" and collectively, the "LENDERS"), and National
City Bank, in
its capacity as administrative agent and collateral agent (the
"ADMINISTRATIVE
AGENT" or the "COLLATERAL AGENT", each of the Lenders, the
Administrative Agent
and the Collateral Agent , a "BENEFICIARY") a $135,000,000
revolving credit
facility, with an incremental increase option of up to $25,000,000;
WHEREAS, in order to induce the Administrative Agent, the
Collateral Agent
and the Lenders to enter into the Credit Agreement, the Guarantor
will execute
and deliver this Guaranty pursuant to which such Guarantor will
guaranty, among
other things, payment of all of the Obligations, as hereinafter
defined; and
WHEREAS, the Borrower is a direct Subsidiary of the Guarantor
and, as
such, will receive substantial direct or indirect benefit from the
transaction
described in the Credit Agreement and therefore it is in the best
interest of
the Guarantor to enter into this Guaranty.
AGREEMENT:
Accordingly, the Guarantor agrees for the benefit of the
Beneficiaries and
each of their successors, permitted assigns and transferees, as
follows:
1. CERTAIN TERMS.
(a) Capitalized terms used herein without definition
have the
respective meanings set forth in the Credit Agreement.
(b) "OBLIGATIONS" means any and all present and
future payment
obligations and liabilities of the Borrower of every type and
description to the
Beneficiaries, or any of their successors or permitted assigns,
under the Credit
Agreement and the other Loan Documents, whether for principal,
interest, fees,
expenses or other amounts (including attorneys' fees and expenses),
in each case
whether due or not due, direct or indirect, joint and/or several,
absolute or
contingent, voluntary or involuntary, liquidated or unliquidated,
determined or
undetermined, now or hereafter existing, renewed or restructured,
whether or not
from time to time decreased or extinguished and later increased,
created or
incurred, whether or not arising after the commencement of a
proceeding under
the Federal Bankruptcy Code (including post-petition interest) and
whether or
not allowed or allowable as a claim in any such proceeding, and
whether
or not recovery of any such obligation or liability may be barred
by a statute
of limitations or such obligation or liability may otherwise be
unenforceable.
All Obligations shall be conclusively presumed to have been created
in reliance
on this Guaranty.
2. GUARANTY. The Guarantor hereby absolutely,
unconditionally and
irrevocably guaranties to each of the Beneficiaries the full and
punctual
payment when due of all Obligations, whether at stated maturity, by
required
prepayment, declaration, acceleration, demand or otherwise, and
such guaranty is
not conditional or contingent upon pursuit by any Beneficiary of
any prior
action or proceeding for collection, or for any other remedies the
Beneficiaries
may have, against the Borrower or any other Person. All such
amounts and all
other amounts payable hereunder shall be payable on demand.
3. EXPENSES. The Guarantor agrees to pay to the
Beneficiaries any and
all reasonable and documented costs and expenses (including
reasonable and
documented attorneys' fees and expenses), that the Beneficiaries
may incur in
connection with (a) the collection of all sums guarantied hereunder
and (b) the
exercise or enforcement of any of the rights, powers or remedies of
the
Beneficiaries under this Guaranty or applicable law.
4. CONSENT. The Guarantor hereby consents and agrees that
the time or
place of payment of any Obligation may be exchanged or extended, in
whole or in
part, to a time certain or otherwise, and may be renewed or
accelerated, in
whole or in part; that any of the provisions of the Credit
Agreement and other
Loan Documents may be renewed, extended, modified, increased,
accelerated,
compromised, refinanced or waived; that the Borrower or any other
obligor with
respect to the Obligations may be granted indulgences or released
from
liability; that the insolvency, bankruptcy and/or dissolution of
the Borrower,
any other obligor or of the Guarantor shall not affect the
obligations hereunder
of any Guarantor; that neither the invalidity or unenforceability
of any of the
Obligations shall affect the obligations hereunder of any
Guarantor; that no
claim need be asserted against any trustee in bankruptcy or
receiver or other
representative in the event the Borrower, any other obligor or the
Guarantor is
adjudicated bankrupt or becomes insolvent; and that any property to
the credit
of the Borrower, any other obligor or the Guarantor or any other
party liable
for payment of any of the Obligations may be released from time to
time, in
whole or in part, at, before or after the stated, extended or
accelerated
maturity of such Obligations, all of which (i) may be effected
without notice to
or further assent by the Guarantor and (ii) shall not affect the
obligations of
the Guarantor under this Guaranty.
5. WAIVER. The Guarantor hereby expressly waives, to the
extent
permitted by applicable law:
(a) Notice of acceptance of this Guaranty;
(b) Presentment and demand for payment of any
Obligation;
(c) Protest and notice of dishonor or default to the
Guarantor or
to any other party with respect to any Obligation or any security
for any
Obligation;
(d) Demand for payment under this Guaranty;
2
(e) Notice of disposition of any security for any
Obligation;
(f) Any defense by reason of impairment of: (i) any
security now
or hereafter held for any Obligation; or (ii) recourse against any
party liable
for the payment of any Obligation; and
(g) Any other defense or counterclaim whatsoever,
other than
indefeasible payment and performance of the Obligations.
6. GUARANTY OF PAYMENT. This Guaranty is a guaranty of
payment and not
of collection. The Guarantor (a) waives any claim to marshaling of
assets and
(b) waives any right to require that an action be brought against
the Borrower
or any other Person prior to action against the Guarantor
hereunder. The
Guarantor shall be released from all liability hereunder only upon
payment in
full of all the Obligations.
7. BINDING EFFECT. The provisions of this Guaranty shall
be binding
upon the Guarantor and its
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