FOURTH AMENDED AND RESTATED REVOLVING LINE OF CREDIT AGREEMENT
FOURTH
AMENDED AND RESTATED
This
Fourth Amended and Restated Revolving Line of Credit Agreement (this
“Agreement”)
is
made as of January 20, 2007 by and between General Finance Corporation, a
Delaware corporation (“Borrower”),
and
Xxxxxx X. Xxxxxxx (“Lender”),
with
reference to the following facts.
A. Borrower
has been organized for the purpose of effecting a merger, capital stock
exchange, asset acquisition or other similar business combination with an
operating business (a “Business
Combination”).
B. Borrower
proposes to: (a) make a public offering (the “Public
Offering”)
of its
securities pursuant to a registration statement (the “Registration
Statement”)
filed
with and declared effective by the Securities and Exchange Commission (the
“SEC”);
(b)
deposit the proceeds from the Public Offering into a trust account (the
“Trust
Account”)
for
the benefit of the purchasers of securities in the Public Offering, net of
offering costs, underwriting discounts and a financial advisory fee, to be
held
and disbursed in accordance with the terms of the Investment Management Trust
Agreement to be entered into between Borrower and Continental Stock Transfer
& Trust Company as trustee (the “Trust
Agreement”);
and
(c) utilize the funds in the Trust Account in connection with a Business
Combination.
C. Borrower
may need funds to pay costs and expenses prior to consummation of a Business
Combination.
D. On
the
terms and subject to the conditions set forth in this Agreement, Lender is
willing to make available to Borrower a revolving line of credit to pay certain
costs and expenses that may arise prior to a Business Combination (the
“Loan”).
AGREEMENT
1. The
Loan
1.1 Lender
agrees to make advances to Borrower, and Borrower agrees to repay such advances,
from time to time in accordance with the terms and conditions of this Agreement
and the form of revolving promissory note attached hereto as Exhibit A (the
“Note”);
provided, however, that notwithstanding anything to the contrary in this
Agreement, at no time shall the aggregate of all advances and readvances
outstanding under the Loan at any time exceed $2,000,000. This Agreement and
the
Note are each sometimes referred to in this Agreement individually as a
“Loan
Document,”
and
are sometimes collectively referred to as the “Loan
Documents.”
1.2 Lender’s
obligation to make advances shall expire upon the first to occur of the
following:
1.2.1 Upon
a
material breach or default of any representation, warranty or agreement of
Borrower that is not cured or corrected within 20 days of notice of such breach
from Lender;
1.2.2 Upon
consummation of a Business Combination;
1.2.3 Upon
notice from Lender at any time prior to the effectiveness of the Registration
Statement;
1.2.4 Two
years
after the effective date of the Registration Statement, provided that the
Company may request advances after that date solely to pay reasonable costs
and
expenses in connection with liquidation of the Company.
2. Conditions
of Advances.
Upon
reasonable advance request from Borrower, Lender shall make advances to or
as
directed by Borrower, provided that each and all of the following conditions
is
satisfied:
2.1 Borrower
shall have executed and delivered the Note to Lender;
2.2 The
aggregate amount of outstanding advances following such advance shall not exceed
$2,000,000;
2.3 The
representations and warranties of Borrower in the Loan Documents shall be true
and correct in all material respects;
2.4 Borrower
shall have complied in all material respects with each of its agreements in
the
Loan Documents;
2.5 Borrower
shall not have terminated Lender’s employment as the Chief Executive Officer of
Borrower other than for cause;
2.6 The
advances shall be used only for such purposes as are set forth in Section
4.1
of this
Agreement; and
2.7 Prior
to
the effectiveness of the Registration Statement, Lender consents to the advance.
3. Borrower
Representations
3.1 Borrower
represents and warrants as follows:
3.1.1 Borrower
has full power and authority to execute and deliver this Agreement and the
other
Loan Documents to be executed and delivered by it pursuant hereto and to perform
its obligations hereunder and thereunder. This Agreement and such Loan Documents
constitute the valid and legally binding obligations of the Borrower and are
enforceable against Borrower in accordance with their terms.
2
3.1.2 Neither
the execution and the delivery of the Loan Documents by Borrower, nor the
consummation of the transactions contemplated by the Loan Documents, nor the
borrowing by Borrower, will (a) violate any constitution, statute,
regulation, rule, injunction, judgment, order, decree, ruling, charge, or other
restriction of any government, governmental agency, or court to which Borrower
is subject or any provision of the Certificate of Incorporation or Bylaws of
Borrower, or (b) conflict with, result in a breach of, constitute a default
under, result in the acceleration of, create in any entity or natural person
(each, a “Person”)
the
right to accelerate, terminate, modify, or cancel, any agreement, contract,
lease, license, instrument, or other arrangement to which Borrower is a party
or
by which it is bound or to which any of its assets are subject (or result in
the
imposition of any security interest upon any of its assets), in each case other
than where such violation, conflict, breach, default, acceleration or creation
of right would not reasonably be expected to have a material adverse effect
on
the ability of Borrower to repay amounts due under the Note in accordance with
the terms of the Loan Documents. (a “Material
Adverse Effect”).
3.1.3 Borrower
does not need to give any notice to, make any filing with, or obtain any
authorization, permit, certificate, registration, consent, approval or order
of
any government or governmental agency in order for the parties to consummate
the
transactions contemplated by this Agreement, except whether the failure would
not reasonably be expected to have a Material Adverse Effect.
3.1.4 The
conditions to the obligation of Lender to make the advance, as set forth in
Section 2,
shall
be satisfied.
3.2 Each
and
every representation and warranty made by Borrower in this Agreement shall
be
deemed renewed and remade upon the making of each and every advance or readvance
under the Note that Lender may make.
4. Borrower
Covenants.
For as
long as Lender shall have a commitment to make advances or there shall be any
outstanding balance on the Loan, without the prior consent of Lender, Borrower
shall:
4.1 use
the
proceeds only for: (a) prior to the closing of the Public Offering, costs and
expenses of the Offering, including legal, accounting, printing and “road show”
expenses; and (b) after the Closing of the Offering, ordinary and reasonable
operating costs and expenses during the period Borrower seeks to identify,
investigate, negotiate and consummate a Business Combination, including
Borrower’s reporting obligations with the SEC, the audit and review of
Borrower’s financial statements, identifying and investigating potential targets
for a Business Combination, negotiating and closing the Business Combination,
legal and other professional fees and expenses, fees, salaries and compensation
for directors, officers, employees, consultants and advisors, and insurance
premiums;
and (c)
if the Company does not consummate a Business Combination and the funds in
the
Trust Account are returned to the purchasers of the securities in the Public
Offering, the reasonable costs and expenses of the liquidation of the
Company.
4.2 within
three business days following the closing of the Public Offering, pay all
outstanding principal and interest on the Loan and the Note outstanding as
of
the closing of the Public Offering to the extent such amounts were borrowed
in
respect of offering costs for which Borrower may utilize the funds held by
it
which were not deposited into the Trust Account;
3
4.3 not
declare or pay any dividend or distribution with respect to, or repurchase
or
redeem any shares of, the capital stock of Borrower, provided that this shall
not prohibit payments from the Trust Account to stockholders of Borrower in
accordance with the Trust Agreement;
4.4 not
engage in any business other than identifying, investigating, negotiating and
closing a Business Combination;
4.5 make
any
material capital expenditure or purchase any material property or asset (other
than office supplies and equipment); and
4.6 upon
request of Lender, provide to Lender copies of all filings with the Securities
and Exchange Commission.
5. No
Recourse to Trust Account
Lender,
on behalf of itself and its successors and assigns, hereby acknowledges and
agrees that under no circumstance shall Lender have any right, title or interest
in or to any of the funds in the Trust Account, notwithstanding the fact that
such funds were received for the purchase and sale of securities of Borrower,
or
any funds distributed from the Trust Account other than in a Business
Combination Distribution (as defined below), and that its sole recourse for
repayment of any and all amounts due under the Note shall be against the assets
or properties of Borrower never deposited into the Trust Account or distributed
to Borrower from the Trust Account in a Business Combination Distribution.
Lender hereby irrevocably waives any claim that it might have to funds in the
Trust Account, and any funds distributed from the Trust Account other than
in a
Business Combination Distribution, at law or in equity, agrees not to make
any
such claim, and agrees to indemnify and hold the Company harmless from any
such
claim made by or on behalf of Lender. For purposes of this Section 5, a
“Business
Combination Distribution”
means
a
distribution from the Trust Account in connection with the consummation of
Business Combination pursuant to the Trust Agreement.
6. Events
of Default.
The
occurrence of any of the following shall constitute an event of default (an
“Event
of Default”)
hereunder and under each and every other Loan Document:
6.1 The
Borrower shall fail to pay any principal, interest or any other amount as and
when due and payable under any Loan Document;
6.2 Any
representation or warranty which is made or deemed made in any Loan Document
by
the Borrower shall prove to have been incorrect or misleading in any material
respect on or as of the date made or deemed made or remade;
6.3 The
Borrower shall fail to perform or observe any term, provision, covenant, or
agreement contained in any Loan Document to be performed or observed by the
Borrower (other than any payment obligation) and such failure shall continue
more than 20 days after notice thereof from Lender;
4
6.4 The
Borrower shall (a) generally not, or be unable to, or admit in writing its
inability to, pay its debts as such debts become due; or (b) make an
assignment for the benefit of creditors, or petition or apply to any tribunal
for the appointment of a custodian, receiver, or trustee for it or a substantial
part of its assets; or (c) commence any proceeding under any bankruptcy,
reorganization, arrangement, readjustment of debt, dissolution, or liquidation
law or statute of any jurisdiction, whether now or hereafter in effect; or
(d) have any such petition or application filed or any such proceeding
commenced against it in which an order for relief is entered or adjudication
or
appointment is made and which remains undismissed for a period of 30 days or
more; or (e) by any act or omission to act indicate consent to, approval
of, or acquiescence in any such petition, application, or proceeding, or order
for relief, or the appointment of a custodian, receiver, or trustee for all
or
any such substantial part of its properties; or (f) suffer any such
custodianship, receivership, or trusteeship for all or any substantial part
of
its properties; or (g) suffer any such custodianship, receivership, or
trusteeship to continue undischarged for a period of 30 days or more;
or
6.5 At
any
time after execution and delivery of this Agreement, and for any reason at
no
fault of Lender, any Loan Document shall cease to be in full force and effect
and enforceable in accordance with its terms, or shall be declared null and
void.
7. Consequences
of Default.
If an
Event of Default shall occur, Lender:
7.1 shall
have no further obligation to make advances under the Loan Documents; and
7.2 may
declare the Note, all interest thereon, and all other amounts payable under
this
Agreement and any other Loan Document to be forthwith due and payable, whereupon
the Note, all such interest, and all such amounts shall become and be forthwith
due and payable, without presentment, demand, protest, or further notice of
any
kind, all of which are hereby expressly waived by Borrower.
8. Miscellaneous
Provisions
8.1 Notices.
All
notices, requests, demands and other communications (collectively, “Notices”)
given
pursuant to this Agreement shall be in writing, and shall be delivered by
personal service, courier, facsimile transmission or by United States first
class, registered or certified mail, addressed to the following
addresses:
| If to Borrower: |
General
Finance Corporation
000
Xxxxx Xxx Xxxxxx, Xxxxx 000
Xxxxxxxx,
XX 00000
Attention:
Xxxx Xxxxx
Facsimile:
(000) 000-0000
|
| If to Lender: |
Xxxxxx
Xxxxxxx
000
Xxxxx Xxx Xxxxxx, Xxxxx 000
Xxxxxxxx,
XX 00000
Facsimile:
(000) 000-0000
|
Any
Notice, other than a Notice sent by registered or certified mail, shall be
effective when received; a Notice sent by registered or certified mail, postage
prepaid return receipt requested, shall be effective on the earlier of when
received or the third day following deposit in the United States mails (or
on
the seventh day if sent to or from an address outside the United States). Any
party may from time to time change its address for further Notices hereunder
by
giving notice to the other party in the manner prescribed in this
Section.
5
8.2 No
Waivers; Remedies Cumulative.
No
failure or delay by a party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. The rights and remedies provided herein
shall be cumulative and not exclusive of any rights or remedies provided by
law.
8.3 Amendments
and Waivers.
Any
provision of this Agreement may be amended or waived if, but only if, such
amendment or waiver is in writing and is signed by Borrower and Lender and
such
amendment is approved by the Board of Directors of Borrower.
8.4 Successors
and Assigns.
Borrower may not assign its right or duties hereunder without the prior written
consent of Lender, which consent Lender may deny, withhold or delay in its
sole
and absolute discretion.
8.5 Governing
Law.
This
Agreement has been made and entered into in the State of California and shall
be
construed in accordance with the laws of the State of California without giving
effect to the principles of conflicts of law thereof.
8.6 Prior
Understandings.
This
Agreement supersedes all prior understandings and agreements (whether written,
oral or otherwise) pertaining to the subject matter hereof, and constitutes
the
entire agreement between the parties hereto relating to the subject matter
hereof and the transactions provided for herein.
8.7 Counterparts.
This
Agreement may be executed in any number of counterparts each of which shall
be
deemed an original and all of which shall constitute one and the same agreement
with the same effect as if all parties had signed the same signature page.
The
parties shall accept facsimile signatures as the equivalent of original
ones.
8.8 Severability.
If any
provision of this Agreement or the application of such provision to any Person
or circumstance will be held invalid, the remainder of this Agreement or the
application of such provision to Persons or circumstances other than those
to
which it is held invalid will not be affected thereby.
8.9 Additional
Documents and Acts.
Borrower shall execute and deliver such additional documents and instruments
and
shall perform such additional acts as may be necessary or appropriate to
effectuate, carry out and perform all of the terms, provisions, and conditions
of this Agreement and the transactions contemplated by this
Agreement.
8.10 Survival.
All
indemnities, rights, remedies, representations and warranties contained herein
shall survive the expiration or termination of this Agreement, and no
termination or expiration hereof shall relieve either party from liability
for
any breach of this Agreement.
6
IN
WITNESS WHEREOF, the parties have executed and delivered this Agreement to
one
another as of the date first above written.
|
LENDER:
|
/s/Xxxxxx
X.
Xxxxxxx
Xxxxxx
X. Xxxxxxx
|
|
BORROWER:
|
GENERAL
FINANCE CORPORATION
By:
/s/Xxxx
X.
Xxxxxxx
Xxxx
X. Xxxxxxx, Chief Operating
Officer
|
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EXHIBIT
A
AMENDED
REVOLVING LINE OF CREDIT NOTE
|
Not
to Exceed $2,000,000 in Principal
|
__________,
2007
|
For
value
received, the undersigned GENERAL
FINANCE CORPORATION,
a
Delaware corporation (“Borrower”),
promises to pay, in lawful money of the United States, to the order of
XXXXXX
XXXXXXX,
together with his successors and assigns (“Holder”),
at
such address as Holder may direct, the principal sum of Two Million Dollars
($2,000,000), or so much thereof as shall have been advanced and shall remain
unpaid hereunder, together with interest from date of disbursement at the rate
of 8% per annum (the “Interest
Rate”).
Interest shall be computed at the Interest Rate on the basis of the actual
number of days during which the principal balance is outstanding, divided by
365, which shall, for interest computation purposes, be considered one year.
Notwithstanding anything to the contrary expressed or implied herein, all
payments made by Borrower hereunder (including, without limitation, any
prepayments) shall be applied first to accrued but unpaid interest and second
to
the reduction of the principal due hereunder.
This
Note
is delivered pursuant to, and is subject to all of the terms and conditions
of,
that certain Fourth Amended and Restated Revolving Line of Credit Agreement
dated January 20, 2007 (as from time to time amended, the “Loan
Agreement”)
between Borrower and Xxxxxx Xxxxxxx. Unless otherwise defined in this Note,
capitalized terms used in this Note shall have the meanings ascribed to them
in
the Loan Agreement, and in the event of any conflict between the terms of this
Note and the terms of the Loan Agreement, the terms of the Loan Agreement shall
govern.
1. Maturity. This
Note
shall mature and become due and payable upon the first to occur of the
following:
1.1 upon
the
occurrence of a Business Combination;
1.2 upon
declaration of Holder upon the occurrence of an Event of Default, as provided
in
Section 7.2
of the
Loan Agreement;
1.3 upon
the
second anniversary of the effective date of the Registration
Statement;
1.4 upon
the
adoption of a resolution by the Board of Directors of Borrower authorizing
or
approving the dissolution and/or liquidation of Borrower; or
1.5 upon
demand of Holder at any time prior to the effectiveness of the Registration
Statement.
Notwithstanding
the foregoing, if the Company completes a Public Offering and does not complete
a Business Combination within the time periods set forth in its Certificate
of
Incorporation, and is therefore required to liquidate as provided in its
Certificate of Incorporation, and needs cash to pay the reasonable costs and
expenses in connection with the liquidation, this Note shall thereafter mature
at such time as no further cash is needed for such purpose.
2. Prepayment.
This
Note may be repaid in whole or in part at any time without penalty or premium.
3. Event
of Default.
Should
an Event of Default (as defined in the Loan Agreement) occur, Lender shall
have
the rights set forth in Section 7
of the
Loan Agreement.
4. Borrower’s
Acknowledgement.
Borrower acknowledges that Holder is extending the credit contemplated hereby
solely as an accommodation to Borrower, and is willing to do so in reliance
upon
Borrower’s monetary and non-monetary covenants contained herein and in the Loan
Agreement.
5. Holder’s
Acknowledgement.
The
Holder acknowledges and agrees that, as specified in Section 5 of the Loan
Agreement, the Holder has limited recourse against Borrower for repayment of
any
and all amounts due and owing under this Note.
6. Miscellaneous.
If this
Note (or any payment due hereunder) is not paid when due, Borrower promises
to
pay all costs and expenses of collection and reasonable attorneys’ fees incurred
by the Holder hereof on account of such collection, plus interest at the rate
applicable to principal, whether or not suit is filed hereon. Borrower consents
to renewals, replacements and extensions of time for payment hereof, before,
at,
or after maturity, consents to the acceptance, release or substitution of
security for this Note, and waives demand and protest. The indebtedness
evidenced hereby shall be payable in lawful money of the United States. In
any
action brought under or arising out of this Note, Borrower, including
successor(s) or assign(s), hereby consents to the application of California
law,
to the jurisdiction of any competent court within the State of California,
and
to service of process by any means authorized by California law. No single
or
partial exercise of any power hereunder, or under any other Loan Document in
connection herewith, shall preclude other or further exercises thereof or the
exercise of any other such power.
IN
WITNESS WHEREOF, Borrower has executed and delivered this Note as of the date
first above written.
| GENERAL FINANCE CORPORATION | ||
| |
|
|
| By: | ||
|
|
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