FIRST AMENDMENT TO
LOAN AND SECURITY AGREEMENT
AND CONSENT TO ACQUISITION
This FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT AND CONSENT TO
ACQUISITION (this "Amendment") is dated as of June , 2002 and entered into by
and among FLEET CAPITAL CORPORATION ("Fleet"), a Rhode Island corporation with
an office at 00000 Xxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxx Xxxx, Xxxxxxxxxx 00000,
individually as a Lender and as Agent ("Agent") for itself and any other
financial institution which is or becomes a party hereto (each such financial
institution, including Fleet, is referred to hereinafter individually as a
"Lender" and collectively as the "Lenders"), the LENDERS and MOBILE MINI, INC.,
a Delaware corporation with its chief executive office and principal place of
business at 0000 Xxxxx Xxxxxx Xxxx, Xxxxx 000, Xxxxx, Xxxxxxx 00000
("Borrower").
RECITALS
Whereas, the Borrower, the Agent and the Lenders have entered into that
certain Loan and Security Agreement dated as of February 11, 2002 (the "Loan
Agreement"); capitalized terms used in this Amendment without definition shall
have the meanings given such terms in the Loan Agreement); and
Whereas, the Borrower has requested that the Lenders agree, subject to the
conditions and on the terms set forth in this Amendment, to amend certain
provisions of the Loan Agreement;
Whereas, the Lenders are willing to agree to amend the Loan Agreement,
subject to the conditions and on the terms set forth herein;
Now Therefore, in consideration of the premises and the mutual agreements
set forth herein, the Borrower, the Lenders and the Agent agree as follows:
1. AMENDMENTS TO LOAN AGREEMENT. Subject to the conditions and on the
terms set forth in this Amendment and in reliance on the representations and
warranties of the Borrower set forth in this Amendment, the Loan Agreement is
hereby amended as follows:
1.1 AMENDMENT TO COLLATERAL ACCESS AGREEMENTS COVENANT.
Subsection 8.1.6 of the Loan Agreement is deleted in its entirety and replaced
with the following:
"8.1.6 Collateral Access Agreements.
At all times after (90) days after the Closing Date, deliver or
cause to be delivered to Agent satisfactory Collateral Access Agreements
from landlords and bailees covering at least eighty percent (80%) of the
book value of Inventory of Borrower and its Subsidiaries at locations owned
or leased by Borrower or any of its Subsidiaries at which such Inventory is
maintained when not leased to customers."
1.2 AMENDMENT TO CAPITAL EXPENDITURES COVENANT. Subsection 8.2.1 of
the Loan Agreement is deleted in its entirety and replaced with the following:
"8.2.1 Capital Expenditures.
Borrower and its Subsidiaries shall not make payments for Capital
Expenditures (net of sales of Eligible Container Fleet Inventory) in excess
of $100,000,000 in 2002 or $115,000,000 in any fiscal year thereafter;
provided, that as long as no Event of Default shall have occurred and be
continuing, Borrower and its Subsidiaries may carry forward and add to the
next year's limitation amount (but not beyond such next year) the unused
portion of the limitation on Capital Expenditures for the prior year, up to
a maximum of one hundred percent (100%) of the prior year's limitation
amount; and provided, further, that the amount set forth in this Subsection
8.2.1 shall be increased by an amount equal to three hundred percent (300%)
of the net cash proceeds received by Borrower from any sale of equity
Securities of Borrower (the "CapEx Equity Increase"), and the unused
portion of any CapEx Equity Increase may be carried forward to any
subsequent fiscal year. Borrower and its Subsidiaries shall not make any
Capital Expenditures that are not directly related to the business
conducted on the Closing Date by Borrower and its Subsidiaries.
1.3 AMENDMENT TO PERMITTED ACQUISITIONS COVENANT. Subsection
8.2.14(e) of the Loan Agreement is deleted in its entirety and replaced with
the following:
"(e) the purchase price for Acquisitions shall not exceed (i)
$10,000,000 individually, (ii) $45,000,000 in the aggregate in 2002 or
$30,000,000 in the aggregate for any fiscal year thereafter, and (iii)
$100,000,000 in the aggregate for all Acquisitions during the term of
this Agreement. For purposes hereof, any Indebtedness assumed in
connection with an Acquisition shall be included in the calculation of
the purchase price;"
1.4 AMENDMENT TO MINIMUM UTILIZATION COVENANT. Subsection 8.3.4(a) of
Exhibit 8.3 of the Loan Agreement is deleted in its entirety and replaced with
the following:
"(a) the number of units of the Eligible Container Fleet
Inventory of Borrower and the Guarantors which is then subject to
valid, current
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rental or lease agreements between Borrower or a Guarantor and
the renters or lessees thereof, divided by the aggregate number
of units of the Eligible Container Fleet Inventory of Borrower
and the Guarantors, of not less than (i) seventy five percent
(75%) in the first fiscal quarter of each year, (ii) seventy-six
and one-half percent (76.5%) for the second and third fiscal
quarters of year 2002, and (iii) seventy-seven and one-half
percent (77.5%) in each other fiscal quarter; and"
2. CONSENT TO ACQUISITION. Notwithstanding the restrictions
contained in Section 8.2.14(e) of the Loan Agreement on individual
Acquisitions, Lenders hereby consent to Borrower's acquisition of portable
container storage assets from Transport International Pool, Inc. (the
"Transport Assets"), for a purchase price not to exceed $12,000,000.
3. UPDATED APPRAISALS. Within sixty (60) days after the date of
this Amendment, Borrower shall deliver or cause to be delivered to Agent an
appraisal of the Transport Assets and an updated appraisal of Eligible Goods
Inventory, each in form and substance satisfactory to Agent, and each to be
prepared by the Xxxxx Xxxxxx appraisal firm.
4. REPRESENTATIONS AND WARRANTIES OF THE BORROWER. In order to
induce the Lenders and the Agent to enter into this Amendment, the Borrower
represents and warrants to each Lender and the Agent that the following
statements are true, correct and complete:
4.1 CORPORATE ACTION. Borrower is duly authorized and
empowered to enter into, execute, deliver and perform this Amendment and
Guarantors are duly authorized to enter into, execute, deliver and perform the
Consent of Guarantors attached hereto (the "Guarantor Consent"). The execution,
delivery and performance of this Amendment have been duly authorized by all
necessary corporate or other relevant action and do not and will not (i)
require any consent or approval of the shareholders of Borrower or any of the
Guarantors; (ii) contravene Borrower's or any of the Guarantors' charter or
articles or certificate of incorporation or other organizational documents, as
applicable; (iii) violate, or cause Borrower or any Guarantor to be in default
under, any provision of any law, rule, regulation, order, writ, judgment,
injunction, decree, determination or award in effect having
applicability to Borrower or any Guarantor; (iv) result in a breach of or
constitute a default under any indenture or loan or credit agreement or any
other agreement, lease or instrument to which Borrower or any Guarantor is a
party or by which it or its Properties may be bound or affected; or (v) result
in, or require, the creation or imposition of any Lien (other than Permitted
Liens) upon or with respect to any of the Properties now owned or hereafter
acquired by Borrower or any Guarantor.
4.2 LEGALLY ENFORCEABLE AGREEMENT. This Amendment is a legal,
valid and binding obligation of Borrower, enforceable against it in accordance
with its terms, except as limited by applicable bankruptcy or insolvency laws,
and by general principles of equity.
4.3 SOLVENT FINANCIAL CONDITION. Borrower is Solvent.
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4.4 NO DEFAULT OR EVENT OF DEFAULT. No event has occurred and is
continuing or will result from the execution and delivery of this Amendment that
would constitute a Default or an Event of Default.
4.5 NO MATERIAL ADVERSE EFFECT. No event has occurred that has
resulted, or could reasonably be expected to result, in a Material Adverse
Effect.
4.6 REPRESENTATIONS AND WARRANTIES. Each of the representations and
warranties contained in the Loan Documents is and will be true and correct in
all material respects on and as of the date hereof and as of the effective date
of this Amendment, except to the extent that such representations and warranties
specifically relate to an earlier date, in which case they were true, correct
and complete in all material respects as of such earlier date.
5. CONDITIONS TO EFFECTIVENESS OF THIS AMENDMENT. This Amendment shall be
effective only if and when signed by, and when counterparts hereof shall have
been delivered to the Agent (by hand delivery, mail or telecopy) by the Borrower
and the Majority Lenders and only if and when each of the following conditions
is satisfied:
5.1 NO DEFAULT OR EVENT OF DEFAULT; ACCURACY OF REPRESENTATIONS AND
WARRANTIES. No default or Event of Default shall exist and each of the
representations and warranties made by the Loan Parties herein and in or
pursuant to the Loan Documents shall be true and correct in all material
respects as if made on and as of the date on which this Amendment becomes
effective (except that any such representation or warranty that is expressly
stated as being made only as of a specified earlier date shall be true and
correct as of such earlier date), and the Borrower shall have delivered to the
Agent a certificate confirming such matters.
5.2 EXPENSE REIMBURSEMENTS. The Borrower shall have paid all expense
reimbursements due to the Agent pursuant to Section 2.8 of the Loan Agreement.
6. EFFECT OF THIS AMENDMENT. From and after the date on which this
Amendment becomes effective, all references in the Loan Documents to the Loan
Agreement shall mean the Loan Agreement as amended hereby. Except as expressly
amended hereby or waived herein, the Loan Agreement and the other Loan
Documents, including the Liens granted thereunder, shall remain in full force
and effect, and are hereby ratified and confirmed.
7. GOVERNING LAW; CONSENT TO FORUM. THIS AMENDMENT HAS BEEN NEGOTIATED
AND DELIVERED IN AND SHALL BE DEEMED TO HAVE BEEN MADE IN LOS ANGELES,
CALIFORNIA. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF CALIFORNIA; PROVIDED, HOWEVER, THAT IF ANY OF THE
COLLATERAL SHALL BE LOCATED IN ANY JURISDICTION OTHER THAN CALIFORNIA, THE LAWS
OF SUCH JURISDICTION SHALL GOVERN THE METHOD, MANNER AND PROCEDURE FOR
FORECLOSURE OF AGENT'S LIEN UPON SUCH COLLATERAL AND THE ENFORCEMENT OF AGENT'S
OTHER REMEDIES IN RESPECT OF SUCH COLLATERAL TO THE EXTENT THAT THE LAWS OF SUCH
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JURISDICTION ARE DIFFERENT FROM OR INCONSISTENT WITH THE LAWS OF CALIFORNIA. AS
PART OF THE CONSIDERATION FOR NEW VALUE RECEIVED, AND REGARDLESS OF ANY PRESENT
OR FUTURE DOMICILE OR PRINCIPAL PLACE OF BUSINESS OF BORROWER, AGENT OR ANY
LENDER, BORROWER HEREBY CONSENTS AND AGREES THAT THE SUPERIOR COURT OF LOS
ANGELES COUNTY, CALIFORNIA, OR, AT AGENT'S OPTION, THE UNITED STATES DISTRICT
COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA, SHALL HAVE EXCLUSIVE JURISDICTION
TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN BORROWER ON THE ONE HAND
AND AGENT OR ANY LENDER ON THE OTHER HAND PERTAINING TO THIS AMENDMENT OR TO ANY
MATTER ARISING OUT OF OR RELATED TO THIS AMENDMENT. BORROWER EXPRESSLY SUBMITS
AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN
ANY SUCH COURT, AND BORROWER HEREBY WAIVES ANY OBJECTION WHICH BORROWER MAY HAVE
BASED UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS
AND HEREBY CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS
DEEMED APPROPRIATE BY SUCH COURT. BORROWER HEREBY WAIVES PERSONAL SERVICE OF THE
SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND
AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE MADE BY
REGISTERED OR CERTIFIED MAIL ADDRESSED TO BORROWER AT THE ADDRESS SET FORTH IN
THIS AMENDMENT AND THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED UPON THE
EARLIER OF BORROWER'S ACTUAL RECEIPT THEREOF OR 3 DAYS AFTER DEPOSIT IN THE U.S.
MAILS, PROPER POSTAGE PREPAID. NOTHING IN THIS AMENDMENT SHALL BE DEEMED OR
OPERATE TO AFFECT THE RIGHT OF AGENT OR ANY LENDER TO SERVE LEGAL PROCESS IN ANY
OTHER MANNER PERMITTED BY LAW, OR TO PRECLUDE THE ENFORCEMENT BY AGENT OR ANY
LENDER OF ANY JUDGMENT OR ORDER OBTAINED IN SUCH FORUM OR THE TAKING OF ANY
ACTION UNDER THIS AMENDMENT TO ENFORCE SAME IN ANY OTHER APPROPRIATE FORUM OR
JURISDICTION.
8. COMPLETE AGREEMENT. This Amendment sets forth the complete
agreement of the parties in respect of any amendment to any of the provisions of
any Loan Document or any waiver thereof.
9. CATCHLINES & COUNTERPARTS. The catchlines and captions herein are
intended solely for convenience of reference and shall not be used to interpret
or construe the provisions hereof. This Amendment may be executed by one or more
of the parties to this Amendment on any number of separate counterparts
(including by telecopy), all of which taken together shall constitute but one
and the same instrument.
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IN WITNESS WHEREOF, this Loan and Security Agreement has been duly
executed on the day and year specified at the beginning of this Agreement.
BORROWER:
MOBILE MINI, INC. a Delaware corporation
By: /s/ Xxxxxxxx Xxxxxxxxxxxx
-----------------------------------
Name: Xxxxxxxx Xxxxxxxxxxxx
Title: Executive Vice President
AGENT:
FLEET CAPITAL CORPORATION,
a Rhode Island corporation, as Agent
By:
-----------------------------------
Name: Xxxxxxx Xxx Xxxxxxxxxx
Title: Senior Vice President
IN WITNESS WHEREOF, this Loan and Security Agreement has been duly
executed on the day and year specified at the beginning of this Agreement.
BORROWER:
MOBILE MINI, INC. a Delaware corporation
By:
-----------------------------------
Name: Xxxxxxxx Xxxxxxxxxxxx
Title: Executive Vice President
AGENT:
FLEET CAPITAL CORPORATION,
a Rhode Island corporation, as Agent
By: /s/ Xxxxxxx Xxx Xxxxxxxxxx
-----------------------------------
Name: Xxxxxxx Xxx Xxxxxxxxxx
Title: Senior Vice President
LENDERS:
--------
FLEET CAPITAL CORPORATION
By: /s/ Xxxxxxx Xxx Xxxxxxxxxx
------------------------------
Name: Xxxxxxx Xxx Xxxxxxxxxx
Title: Senior Vice President
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XX XXXXXX CHASE BANK
By: /s/ Xxxxx XxXxxxx
------------------------------
Name: Xxxxx XxXxxxx
Title: Vice President
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BANK OF AMERICA, N.A.
By: /s/ Xxxxxxx Xxxx
------------------------------
Name: Xxxxxxx Xxxx
Title: Senior Vice President
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BANK ONE, NA,
with its main office in Chicago, Illinois
By: /s/ Xxxxx Xxxxxxxx
------------------------------
Name: Xxxxx Xxxxxxxx
Title: First Vice President
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WASHINGTON MUTUAL BANK
By: /s/ Xxxxx X. Xxxx
-----------------------
Name: Xxxxx X. Xxxx
Title: Vice President
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DEUTSCHE FINANCIAL SERVICES CORP.
By: /s/ Xxxx Xxxxxxx
-----------------------
Name: Xxxx Xxxxxxx
Title: Account Executive
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ALLFIRST BANK
By: /s/ Xxxxx X. Xxxxxxx
-----------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
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PNC BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxxxxx Xxxxxxxxx
-----------------------
Name: Xxxxxxxx Xxxxxxxxx
Title: Vice President
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