Second Amendment To Amended and Restated Credit Agreement
Second
Amendment To
Amended
and Restated
THIS
SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
“Second
Amendment”)
is
executed September 24, 2008, by and among PAC-VAN, INC., an Indiana
corporation (the “Company”),
the
financial institutions that are or may from time to time become parties hereto
(together with their respective successors and assigns, the “Lenders”),
LASALLE BANK NATIONAL ASSOCIATION (in its individual capacity, “LaSalle”),
as
administrative agent and collateral agent for the Lenders, and NATIONAL CITY
BANK, as documentation agent for the Lenders.
RECITALS
1. The
Company and Lenders are parties to an Amended and Restated Credit Agreement,
dated as of August 23, 2007, as amended by a First Amendment to Amended and
Restated Credit Agreement dated as of September 23, 2008 (the “Credit
Agreement”).
2. Company
has requested a Change in Control and other modifications of the Credit
Agreement. Subject to the terms and conditions stated in this Second Amendment,
the Lenders are willing to modify and amend the Credit Agreement as provided
in
this Second Amendment.
Agreement
NOW,
THEREFORE, in consideration of the Recitals, the mutual covenants and agreements
herein, and each act performed and to be performed hereunder, the Lenders and
Company agrees as follows:
1. Definitions.
All
terms used in this Second Amendment that are defined in the Credit Agreement
and
that are not otherwise defined in this Second Amendment shall have the same
meanings in this Second Amendment as are ascribed to them in the Credit
Agreement.
2. Amendments
to Credit Agreement.
(a) Defined
Terms.
(i) The
following definitions in Section
1.1
of the
Credit Agreement are amended, and as so amended, restated as of the Second
Amendment Effective Date to read in their entirety as follows:
Change
of Control
means
the occurrence of any of the following events: (a) GFNA shall cease to own
and
control at least 100% of the outstanding Capital Securities of the Company;
(b)
the Company shall cease to, directly or indirectly, own and control 100% of
each
class of the outstanding Capital Securities of each Subsidiary; (c) Holdings
shall cease to own and control 80% of the outstanding Capital Securities of
GFNA; or (d) with respect to Holdings:
(A) any
"person" or "group" (as such terms are used in Sections 13(d) and 14(d) of
the Securities Exchange Act of 1934, but excluding (i) any natural Person that
is an officer or director of, or any group consisting of two or more natural
Persons that are officers or directors of, Holdings as of the Second Amendment
Effective Date, and (ii) any employee benefit plan of such person or its
subsidiaries, and any person or entity acting in its capacity as trustee, agent
or other fiduciary or administrator of any such plan) becomes the "beneficial
owner" (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act
of
1934, except that a person or group shall be deemed to have "beneficial
ownership" of all securities that such person or group has the right to acquire,
whether such right is exercisable immediately or only after the passage of
time
(such right, an "option
right")),
directly or indirectly, of 49% or more of the equity securities of Holdings
entitled to vote for members of the board of directors or equivalent governing
body of Holdings on a fully-diluted basis (and taking into account all such
securities that such "person" or "group" has the right to acquire pursuant
to
any option right); or
(B) during
any period of 24 consecutive months, a majority of the members of the board
of
directors or other equivalent governing body of Holdings ceases to be composed
of individuals (i) who were members of that board or equivalent governing
body on the first day of such period, (ii) whose election or nomination to
that board or equivalent governing body was approved by individuals referred
to
in clause (i) above constituting at the time of such election or nomination
at least a majority of that board or equivalent governing body or
(iii) whose election or nomination to that board or other equivalent
governing body was approved by individuals referred to in clauses (i) and
(ii) above constituting at the time of such election or nomination at least
a
majority of that board or equivalent governing body (excluding, in the case
of
both clause (ii) and clause (iii), any individual whose initial
nomination for, or assumption of office as, a member of that board or equivalent
governing body occurs as a result of an actual or threatened solicitation of
proxies or consents for the election or removal of one or more directors by
any
person or group other than a solicitation for the election of one or more
directors by or on behalf of the board of directors); or
(C) any
Person or two or more Persons acting in concert (other than any natural Person
that is an officer or director of, or two or more natural Persons that are
officers or directors of, Holdings as of the Second Amendment Effective Date)
shall have acquired by contract or otherwise, or shall have entered into a
contract or arrangement that, upon consummation thereof, will result in its
or
their acquisition of the power to exercise, directly or indirectly, a
controlling influence over the management or policies of Holdings, or control
over the equity securities of Holdings entitled to vote for members of the
board
of directors or equivalent governing body of Holdings on a fully-diluted basis
(and taking into account all such securities that such Person or Persons have
the right to acquire pursuant to any option right) representing 49% or more
of
the combined voting power of such securities.
2
EBITDA
means,
for any period, Consolidated Net Income for such period plus,
to the
extent deducted in determining such Consolidated Net Income, Interest Expense,
income tax expense, depreciation and amortization for such period plus
those
expenses of Xxxxxxx Xxxxxxx, Xxxxx Xxxxxxx and/or Xxxxx Xxxxxxx of the types
described on Schedule 6.2(h) of that certain Agreement and Plan of Merger dated
as of July 12, 2006 by and among the Company, MOAC, PV Acquisition Corporation,
Xxxxx Xxxxxxx, Xxxxx Xxxxxxx and Xxxxxxx Xxxxxxx, as amended, restated,
supplemented or otherwise modified as of the date hereof and all exhibits and
schedules thereto, and paid or reimbursed to such Person by the Company for
such
period not to exceed One Hundred Eighty-Six Thousand and No/100 Dollars
($186,000.00) per annum plus
non-cash
expenses related to stock options for such period not to exceed Five Hundred
Thousand and No/100 Dollars ($500,000.00) per annum, in the aggregate
plus
non-cash
expenses approved by the Administrative Agent in writing related to stock
options for such period in excess of Five Hundred Thousand and No/100 Dollars
($500,000.00) per annum plus
transfer
payments to GFNA pursuant to Section 11.4(iii) plus
on a
one-time basis expenses of the Company for stock options in connection with
the
Parent Merger Agreement not to exceed One Million Four Hundred Thousand and
No/100 Dollars ($1,400,000.00). In addition, it is acknowledged and agreed
that
for purposes of all calculations of EBITDA hereunder, after the consummation
of
any Acquisition, income statement items, cash flow statement items and other
balance sheet items (whether positive or negative) attributable to the Person
or
property acquired shall, to the extent otherwise includable in the definition
of
EBITDA but not otherwise included in such items for the Company and its
Subsidiaries in accordance with GAAP, be included to the extent relating to
any
period applicable in such calculations.
Fiscal
Year
means
the fiscal year of the Company and its Subsidiaries, which period shall be
the
12-month period ending on June 30 of each year. References to a Fiscal Year
with
a number corresponding to any calendar year (e.g., “Fiscal
Year 2009”)
refer
to the Fiscal Year ending on June 30 of
such
calendar year.
Interest
Coverage Ratio
means,
for any Computation Period, the ratio of (a) EBITDA for such Computation Period
less cash taxes and dividends/distributions to (b) (i) cash Interest Expense
for
such Computation Period; plus
(ii)
transfer payments to GFNA for such Computation Period.
Total
Debt
means
all Debt of GFNA, the Company and the Company’s Subsidiaries, determined on a
consolidated basis, excluding (a) contingent obligations in respect of
Contingent Liabilities (except to the extent constituting Contingent Liabilities
in respect of Debt of a Person other than any Loan Party) and (b) Hedging
Obligations.
3
(ii) The
following new definitions are added to Section
1.1
of the
Credit Agreement:
GFNA
means
GFN North America Corp., a Delaware corporation.
Holdback
Note
means
that certain subordinated, unsecured promissory note of GFNA in favor of D.
E
Xxxx Laminar Portfolios, L.L.C. dated as of the Second Amendment Effective
Date,
in an aggregate original principal amount of $1,500,000.
Holdings
means
General Finance Corporation, a Delaware corporation.
Parent
Merger Agreement
means
that certain Agreement and Plan of Merger dated
as
of July 24, 2008, by and among Holdings, GFNA, the Borrower, MOAC and the
shareholders of MOAC, and all exhibits and schedules thereto; provided
that the
Administrative Agent shall have approved any material amendment, supplement
or
other modification thereto (including, without limitation, the waiver of any
material condition to closing).
Parent
Merger Documents
means
the Parent Merger Agreement and each other document, instrument, certificate
and
agreement executed or delivered in connection therewith or otherwise referred
to
therein or contemplated thereby, and all exhibits and schedules thereto;
provided
that the
Administrative Agent shall have approved any material amendment, supplement
or
other modification thereto (including, without limitation, the waiver of any
material condition to closing).
Second
Amendment Effective Date
shall
have the meaning set forth for such term in the Second Amendment to Amended
and
Restated Credit Agreement.
(b) Amendment
of Section 10.1.1.
Section
10.1.1
of the
Credit Agreement is amended, and as so amended, restated as of the Second
Amendment Effective Date to read in its entirety as follows:
10.1.1 Annual
Report.
(i)
Promptly when available and in any event within 120 days after the Second
Amendment Effective Date: (a) a copy of the audit report of the Company for
January 1, 2008 through the Second Amendment Effective Date, including therein
consolidated balance sheets and statements of earnings and cash flows of the
Company and its Subsidiaries as at the Second Amendment Effective Date,
certified without adverse reference to going concern value and without
qualification by independent auditors of recognized standing selected by the
Company and reasonably acceptable to the Administrative Agent, acknowledging
that in making the examination necessary for the signing of such annual audit
report by such accountants, nothing came to their attention that caused them
to
believe that the Company was not in compliance with any provision of
Sections
11.1,
11.3,
11.4
or
11.14
of this
Agreement insofar as such provision relates to accounting matters or, if
something has come to their attention that caused them to believe that the
Company was not in compliance with any such provision, describing such
non-compliance in reasonable detail, together with (1) management discussion
and
analysis relating to important operation and financial developments during
such
period, and (2) a comparison of such results with the business plan and budget
or such period; and (b) a consolidating balance sheet of the Company and its
Subsidiaries as of the Second Amendment Effective Date and consolidating
statement of earnings and cash flows for the Company and its Subsidiaries for
time period, certified by a Senior Officer of the Company.
4
(ii) Promptly
when available and in any event within 120 days after the close of Fiscal Year
2009: (a) a copy of the annual audit report of the Company and its Subsidiaries
for the Second Amendment Effective Date through June 30, 2009, including therein
consolidated balance sheets and statements of earnings and cash flows of the
Company and its Subsidiaries as at the end of such Fiscal Year, certified
without adverse reference to going concern value and without qualification
by
independent auditors of recognized standing selected by the Company and
reasonably acceptable to the Administrative Agent, acknowledging that in making
the examination necessary for the signing of such annual audit report by such
accountants, nothing came to their attention that caused them to believe that
the Company was not in compliance with any provision of Sections
11.1,
11.3,
11.4
or
11.14
of this
Agreement insofar as such provision relates to accounting matters or, if
something has come to their attention that caused them to believe that the
Company was not in compliance with any such provision, describing such
non-compliance in reasonable detail, together with (1) management discussion
and
analysis relating to important operation and financial developments during
such
period, and (2) a comparison of such results with the business plan and budget
or such period; (b) a compiled income statement of the Company and its
Subsidiaries for July 1, 2008 through the Second Amendment Effective Date,
and
(c) a consolidating balance sheet of the Company and its Subsidiaries as of
the
end of such Fiscal Year and consolidating statement of earnings and cash flows
for the Company and its Subsidiaries for such Fiscal Year, certified by a Senior
Officer of the Company.
(iii) Beginning
with Fiscal Year 2010 and thereafter, promptly when available and in any event
within 120 days after the close of each Fiscal Year: (a) a copy of the annual
audit report of the Company and its Subsidiaries for such Fiscal Year, including
therein consolidated balance sheets and statements of earnings and cash flows
of
the Company and its Subsidiaries as at the end of such Fiscal Year, certified
without adverse reference to going concern value and without qualification
by
independent auditors of recognized standing selected by the Company and
reasonably acceptable to the Administrative Agent, acknowledging that in making
the examination necessary for the signing of such annual audit report by such
accountants, nothing came to their attention that caused them to believe that
the Company was not in compliance with any provision of Sections
11.1,
11.3,
11.4
or
11.14
of this
Agreement insofar as such provision relates to accounting matters or, if
something has come to their attention that caused them to believe that the
Company was not in compliance with any such provision, describing such
non-compliance in reasonable detail, together with (1) management discussion
and
analysis relating to important operation and financial developments during
such
period, and (2) a comparison of such results with the business plan and budget
or such period; and (b) a consolidating balance sheet of the Company and its
Subsidiaries as of the end of such Fiscal Year and consolidating statement
of
earnings and cash flows for the Company and its Subsidiaries for such Fiscal
Year, certified by a Senior Officer of the Company.
5
(c) Amendment
of Section 10.1.2.
Section
10.1.2
of the
Credit Agreement is amended, and as so amended, restated as of the Second
Amendment Effective Date to read in its entirety as follows:
10.1.2
Interim
Reports.
(a)
Promptly when available and in any event within 45 days after the end of each
Fiscal Quarter, consolidated and consolidating balance sheets of the Company
and
the Company’s Subsidiaries as of the end of such Fiscal Quarter, together with
consolidated and consolidating statements of earnings and cash flows for such
Fiscal Quarter and for the period beginning with the first day of such Fiscal
Year and ending on the last day of such Fiscal Quarter, together with a
comparison with the corresponding period of the previous Fiscal Year and a
report summarizing the utilization of Company’s Eligible Inventory, categorized
as “in use” or “not in use” and showing the utilization percentage by dollar
amount and by number of units and providing such information with respect to
the
Company’s operations as a whole with respect to each branch office operated by
Company, certified by a Senior Officer of the Company;
(b) promptly
when available and in any event within 30 days after the end of each month,
consolidated and consolidating balance sheets of the Company and its
Subsidiaries as of the end of such month, together with consolidated statements
of earnings for such month and for the period beginning with the first day
of
such Fiscal Year and ending on the last day of such month, together with a
comparison with the corresponding period of the previous Fiscal Year for such
period of the current Fiscal Year and a complete list of Accounts and Inventory,
with the unit numbers, assigned branch, acquisition costs and dates of
acquisition, certified by a Senior Officer of the Company;
(c) promptly
upon the filing or sending thereof, copies of all reports of Holdings or any
Loan Party on Form 10-K or Form 10-Q filed with the SEC; and
(d) promptly
and in any event within five Business Days after receipt thereof by Holdings
or
any Loan Party, copies of each notice or other correspondence received from
the
SEC concerning any investigation or other inquiry by such agency regarding
financial or account results of Holdings or any Loan Party.
(e) Amendment
of Section 11.1.
Section
11.1
of the
Credit Agreement is amended by the addition of the following new subsections
(f)
and (g):
6
(f) Debt
of
GFNA under the Holdback Note, and an unsecured, subordinated guaranty thereof
by
the Company; provided
that all
Debt and other obligations of the Company and GFNA in respect of the Holdback
Note shall be subordinated in right of payment to the Obligations on terms
and
conditions and pursuant to documentation in each case in form and substance
acceptable to the Administrative Agent; and
(g) Debt
of
the Company where:
|
(A)
|
immediately
before and after giving effect to such Debt, no Event of Default
or
Unmatured Event of Default shall
exist;
|
|
(B)
|
the
aggregate Debt is less than
$25,000,000.00;
|
|
(C)
|
immediately
after giving effect to such Debt, the Company is in pro forma compliance
with all the financial ratios and restrictions set forth in Section
11.14;
|
|
(D)
|
the
Debt is subordinated in right of payment to the Obligations on terms
and
conditions and pursuant to documentation in form and substance acceptable
to the Administrative Agent;
|
|
(E)
|
reasonably
prior to incurring such Debt (and in any event not less than five
(5)
Business Days), the Administrative Agent shall have received draft
copies
of each material document, instrument and agreement to be executed
in
connection with such Debt with complete executed copies to be delivered
to
Administrative Agent by Company immediately following closing on
the
Debt;
|
|
(F)
|
not
less than ten Business Days prior to incurring such Debt, the
Administrative Agent and Lenders shall have received a summary with
respect to the terms and conditions of the proposed Debt, and the
Company’s calculation of pro forma financial ratios and restrictions set
forth in Section
11.14;
|
|
(G)
|
the
Administrative Agent and Required Lenders shall have approved the
Company’s computation of pro forma financial ratios and restrictions set
forth in Section
11.14;
|
|
(H)
|
the
Debt shall mature no sooner than ninety-one (91) days after the
Termination Date;
|
|
(I)
|
there
shall be no payments of principal on the Debt, prior to ninety-one
(91)
days after payment in full of the Obligations;
|
|
(J)
|
any
payment of interest on the Debt, prior to ninety-one (91) days after
payment in full of the Obligations, shall be permitted so long as
(i) no
Event of Default currently exists or would result therefrom and (ii)
the
ratio, immediately prior to such payment, of Total Debt minus the
Debt
incurred pursuant to Section 11.1(g) to EBITDA, for the immediately
preceding Computation Period, is less than 5.00:1.00;
and
|
7
|
(K)
|
the
Debt shall otherwise be on terms and conditions acceptable to the
Administrative Agent.
|
(e) Amendment
of Section 11.4.
Section
11.4
of the
Credit Agreement is amended, and as so amended, restated as of the Second
Amendment Effective Date to read in its entirety as follows:
11.4 Restricted
Payments.
Not,
and not permit any other Loan Party to, (a) make any distribution to any holders
of its Capital Securities, (b) purchase or redeem any of its Capital Securities,
(c) pay any management fees or similar fees to any of its equityholders or
any
Affiliate thereof, (d) make any redemption, prepayment, defeasance, repurchase
or any other payment in respect of any Subordinated Debt or (e) set aside funds
for any of the foregoing. Notwithstanding the foregoing, (i) any Subsidiary
may
pay dividends or make other distributions to the Company or to a domestic
Wholly-Owned Subsidiary; (ii) so long as no Event of Default or Unmatured Event
of Default exists or would result therefrom, the Company may pay management
fees
to Holdings in an aggregate amount not exceeding $1,500,000.00 in any Fiscal
Year; and (iii) for twenty-one (21) months following the Second Amendment
Effective Date, so long as no Event of Default or Unmatured Event of Default
exists or would result therefrom, the Company may make transfer payments to
GFNA
in an aggregate amount not exceeding $2,000,000.00 solely to make principal
and
interest payments under the Holdback Note.
(f) Amendment
of Section 11.7.
Section
11.7
of the
Credit Agreement is amended, and as so amended, restated as of the Second
Amendment Effective Date to read in its entirety as follows:
11.7 Transactions
with Affiliates.
Not,
and not permit any other Loan Party to, enter into, or cause, suffer or permit
to exist any transaction, arrangement or contract with any of its other
Affiliates (other than the Loan Parties), except (i) for the merger pursuant
to
the Parent Merger Documents on the Second Amendment Effective Date, (ii) the
payment of the management fees to Holdings to the extent permitted under
Section
11.4
hereof,
and (iii) in the ordinary course of and pursuant to the reasonable requirements
of such Person’s business and upon fair and reasonable terms no less favorable
to such Person than could be obtained in a comparable arm's-length transaction
with an unaffiliated Person.
(g) Global
Amendment.
All
references to “MOAC” in the Credit Agreement are amended, and as so amended,
restated as of the Second Amendment Effective Date to refer to
“GFNA.”
8
(h) Exhibit
B.
Exhibit
B of the Credit Agreement is hereby amended, and as so amended, restated as
of
the First Amendment Effective Date to read in its entirety as set forth on
Exhibit
B
attached
hereto.
3. Representations
and Warranties.
Company
represents and warrants to the Lenders that:
(a)
(i) The
execution, delivery and performance of this Second Amendment and all agreements
and documents delivered pursuant hereto by Company does not and will not violate
any provision of any law, rule, regulation, order, judgment, injunction, or
writ
presently in effect applying to Company, or result in a breach of or constitute
a default under any material agreement, lease or instrument to which Company
is
a party or by which Company or any of the properties of Company may be bound
or
affected; (ii) no authorization, consent, approval, license, exemption or
filing of a registration with any court or governmental department, agency
or
instrumentality is or will be necessary to the valid execution, delivery or
performance by Company of this Second Amendment and all agreements and documents
delivered pursuant hereto; and (iii) this Second Amendment and all agreements
and documents delivered pursuant hereto by Company are the legal, valid and
binding obligations of Company, as a signatory thereto, and enforceable against
Company in accordance with the terms thereof.
(b) After
giving effect to the amendments contained in this Second Amendment, the
representations and warranties contained in Section
9
of the
Credit Agreement are true and correct on and as of the date of execution of
this
Second Amendment (except to the extent stated to relate to a specific earlier
date, in which case such representations and warranties shall be true and
correct as of such earlier date) with the same force and effect as if made
on
and as of the date of execution of this Second Amendment.
4. Conditions.
The
obligation of the Lenders under this Second Amendment shall be subject to full
satisfaction of the following conditions precedent on or before October 30,
2008
(the actual date of full satisfaction of the following conditions precedent
shall be referred to herein as the “Second
Amendment Effective Date”):
(a) Copies,
certified as of the date of execution of this Second Amendment, of such company
documents and resolutions of Company and GFNA as Lenders may request evidencing
necessary action by Company to obtain necessary authorization for the execution
and performance of this Second Amendment and all other agreements or documents
delivered pursuant hereto as Lenders may reasonably request.
(b) This
Second Amendment shall have been duly executed by Borrower and delivered to
Lenders and executed by Lenders.
(c) The
Joinder to Guaranty and Collateral Agreement in form and substance satisfactory
to the Administrative Agent shall have been duly executed by GFNA and delivered
to Administrative Agent.
9
(d) The
First
Amendment to Guaranty and Collateral Agreement in form and substance
satisfactory to the Administrative Agent shall have been duly executed by
Company and GFN and delivered to Administrative Agent.
(e) The
Control Agreement in form and substance satisfactory to the Administrative
Agent
shall have been duly executed by Company, GFNA and Subordinated Note Agent
and
delivered to Administrative Agent.
(f) An
original stock certificate, representing all of the outstanding stock of the
Company, together with an undated stock power executed in blank shall have
been
delivered to Administrative Agent.
(g) The
Subordination and Intercreditor Agreement in form and substance satisfactory
to
the Administrative Agent shall have been duly executed by the Company, GFNA
and
X. X. Xxxx Laminar Portfolios, L.L.C. and delivered to Administrative
Agent.
(h) Receipt
by Administrative Agent of an amendment to the Subordinated Note Purchase
Agreement and the Subordinated Notes, acceptable to the Administrative Agent
in
form and substance in its sole discretion, which shall include amendments to
the
financial covenants to match the financial covenants set forth
herein.
(i) Receipt
by Administrative Agent of opinions of counsel for each Loan Party, including
local counsel reasonably requested by the Administrative Agent.
(j) Receipt
by Administrative Agent of a Solvency Certificate executed by a Senior Officer
of the Company.
(k) Receipt
by Administrative Agent of certified copies of Uniform Commercial Code search
reports dated a date reasonably near to the Second Amendment Effective Date,
listing all effective financing statements which name any Loan Party (under
their present names and any previous names) as debtors, together with copies
of
such financing statements.
(l) Receipt
by Administrative Agent of a Borrowing Base Certificate dated as of the Second
Amendment Effective Date.
(m) Receipt
by Administrative Agent of a certificate executed by an officer of the Company
on behalf of the Company certifying the matters set forth in Section
4(n)
of this
Second Amendment as of the Second Amendment Effective Date.
(n) The
following statements shall be true and correct:
(i) the
representations and warranties of each Loan Party set forth in this Second
Amendment and the other Loan Documents shall be true and correct in all respects
with the same effect as if then made (except to the extent stated to relate
to a
specific earlier date, in which case such representations and warranties shall
be true and correct as of such earlier date); and
10
(ii) no
Event
of Default or Unmatured Event of Default shall have then occurred and be
continuing.
(o) The
Parent Merger Documents shall have been fully executed by the parties thereto
and a copy thereof delivered to Administrative Agent.
(p) The
Certificate of Merger shall have been filed with the Delaware Secretary of
State
and a filed copy thereof delivered to Administrative Agent.
(q) The
Holdback Note shall have been duly executed by GFNA and a copy thereof delivered
to Administrative Agent.
(r) The
Guaranty of the Holdback Note, in form and substance satisfactory to the
Administrative Agent, shall have been duly executed by the Company and a copy
thereof delivered to Administrative Agent.
(s) Company
shall have paid all costs and expenses incurred by the Lenders in connection
with the negotiation, preparation and closing of this Second Amendment and
the
other documents and agreements delivered pursuant hereto, including the
reasonable attorneys’ fees and out-of-pocket expenses.
(t) Administrative
Agent shall have received such additional agreements, documents, opinions and
certifications, fully executed by Company, as may be reasonably requested by
Administrative Agent.
5. Binding
on Successors and Assigns.
All of
the terms and provisions of this Second Amendment shall be binding upon and
inure to the benefit of the parties hereto, their respective successors, assigns
and legal representatives.
6. Governing
Law/Entire Agreement/Survival.
This
Second Amendment is a contract made under, and shall be governed by and
construed in accordance with, the laws of the State of Illinois applicable
to
contracts made and to be performed entirely with such state and without giving
effect to the choice or conflicts of laws principles of any jurisdiction. This
Second Amendment constitutes and expresses the entire understanding between
the
parties with respect to the subject matter hereof, and supersedes all prior
agreements and understandings, commitments, inducements or conditions, whether
expressed or implied, oral or written. All covenants, agreements, undertakings,
representations and warranties made in this Second Amendment shall survive
the
execution and delivery of this Second Amendment, and shall not be affected
by
any investigation made by any person. The Credit Agreement, as amended hereby,
remains in full force and effect in accordance with its terms and
provisions.
7. Further
Agreements and Acknowledgments.
Company
hereby further acknowledges and agrees that:
11
(a) Neither
the provisions of this Second Amendment nor any actions taken or not taken
pursuant to or in reliance upon the terms of this Second Amendment shall
constitute a novation of any of the Loan Documents, all of which remain in
full
force and effect in accordance with their respective terms, as amended to date;
(b) Neither
this Second Amendment, nor any action taken by the Lenders pursuant to this
Second Amendment, shall impair, prejudice, or in any other manner affect the
rights of the Lenders in and to any collateral or other security which now
or
hereafter secures payment or performance of the Obligations or any part thereof,
or establish or be deemed to establish any precedent or course of dealing with
respect to any matter; and
(c) No
provision hereof shall constitute a waiver of any of the terms or conditions
of
the Loan Documents, other than those terms or conditions explicitly modified
herein. Company hereby represent, warrant, covenant and agree that there exists
no offsets, counterclaims or defenses to payment or performance of the
obligations set forth in the Loan Documents and, in consideration hereof,
expressly waive any and all such offsets, counterclaims and defenses arising
out
of any alleged acts, transactions or omissions on the part of the Lenders on
or
prior to the date hereof.
8.
Counterparts.
This
Second Amendment may be executed in any number of counterparts and by the
different parties hereto on separate counterparts and each such counterpart
shall be deemed to be an original, but all such counterparts shall together
constitute but one and the same Second Amendment. Receipt by telecopy
of any executed signature page to this Second Amendment shall constitute
effective delivery of such signature page.
[Remainder
of Page Intentionally Left Blank]
12
IN
WITNESS WHEREOF, the parties hereto have caused this Second Amendment to be
duly
executed and delivered by their respective authorized signatories as of the
Second Amendment Effective Date.
|
PAC-VAN,
INC., an Indiana corporation
|
|
|
By:
|
/s/
Xxxxxxxx X. Xxxxxxxxx
|
|
Xxxxxxxx
X. Xxxxxxxxx, President
|
|
|
LASALLE BANK NATIONAL ASSOCIATION,
as Administrative Agent, Collateral Agent, Issuing
Lender and as Lender
|
|
|
By:
|
Xxxxx
Xxxxxx
|
|
Xxxxx
Xxxxxx, Vice President
|
|
|
NATIONAL
CITY BANK, as Documentation
|
|
|
Agent
and as Lender
|
|
|
By:
|
/s/
Xxxxxxxxxxx X. Xxxxxx
|
|
Xxxxxxxxxxx
X. Xxxxxx, Vice President
|
|
|
XXXXX
FARGO BANK, NATIONAL ASSOCIATION,
|
|
|
as
Lender
|
|
|
By:
|
/s/
Xxxxx X. Xxxxxxx
|
|
Xxxxx
X. Xxxxxxx, Vice President
|
|
|
UNION
BANK OF CALIFORNIA, N.A., as a Lender
|
|
|
By:
|
/s/
Xxxx Xxxxxxxxx
|
|
Xxxx
Xxxxxxxxx, Vice President
|
|
13
EXHIBIT
B
FORM
OF COMPLIANCE CERTIFICATE
To: LaSalle
Bank National Association, as Administrative Agent
Please
refer to the Amended and Restated Credit Agreement dated as of August 23, 2007
(as amended, restated, supplemented or otherwise modified from time to time,
the
“Credit
Agreement”)
among
Pac-Van, Inc. (the “Company”),
various financial institutions and LaSalle Bank National Association, as
Administrative Agent. Terms used but not otherwise defined herein are used
herein as defined in the Credit Agreement.
| I. |
Reports.
Enclosed herewith is a copy of the [annual
audited/quarterly/monthly]
report of the Company as at _____________, ____ (the “Computation
Date”),
which report fairly presents in all material respects the financial
condition and results of operations [(subject
to the absence of footnotes and to normal year-end
adjustments)]
of
the Company as of the Computation Date and has been prepared in accordance
with GAAP consistently applied.
|
| II. |
Financial
Tests.
The Company hereby certifies and warrants to you that the following
is a
true and correct computation as at the Computation Date of the following
ratios and/or financial restrictions contained in the Credit
Agreement:
|
|
A.
|
Section
11.14.2 - Minimum Utilization Ratio
|
||
|
1.
|
Average
Book Value of
|
$________
|
|
|
Eligible
Inventory “in use”
|
|||
|
2.
|
Average
Book Value of
|
$________
|
|
|
All
Eligible Inventory
|
|||
|
3.
|
Ratio
of (1) to (2)
|
____
to 1
|
|
|
4.
|
Minimum
Required
|
.70
to 1
|
|
|
B.
|
Section
11.14.3 - Minimum Interest Coverage Ratio
|
||
|
1.
|
Consolidated
Net Income
|
$________
|
|
|
2.
|
Plus:
Interest Expense
|
$________
|
|
|
income
tax expense
|
$________
|
||
|
depreciation
|
$________
|
||
|
amortization
|
$________
|
||
|
Claymon
expenses
|
$________
|
||
|
stock
option expenses
|
$________
|
||
|
transfer
payments
|
$________
|
||
14
|
acquisition
EBITDA
|
$________
|
||
|
3.
|
Total
(EBITDA)
|
$________
|
|
|
4.
|
Less:
Cash Taxes
|
$________
|
|
|
Dividends/Distributions
|
$________
|
||
|
5.
|
Adjusted
EBITDA
|
$________
|
|
|
6.
|
Interest
Expense
|
$________
|
|
|
7.
|
Transfer
Payments to GFNA
|
$________
|
|
|
8.
|
Total
of (6) and (7)
|
$________
|
|
|
9.
|
Ratio
of (5) to (8)
|
____
to 1
|
|
|
8.
|
Minimum
required
|
1.25
to 1
|
|
|
C.
|
Section
11.14.4 - Maximum Senior
Debt to EBITDA Ratio
|
||
|
1.
|
Senior
Debt
|
$________
|
|
|
2.
|
EBITDA
|
$________
|
|
|
(from
Item B(3) above)
|
|||
|
3.
|
Ratio
of (1) to (2)
|
____
to 1
|
|
|
4.
|
Maximum
allowed
|
5.00
to 1
|
|
|
D.
|
Section
11.14.5 - Maximum Total Debt to EBITDA Ratio
|
||
|
1.
|
Total
Debt
|
$________
|
|
|
2.
|
EBITDA
|
$________
|
|
|
(from
Item B(3) above)
|
|||
|
3.
|
Ratio
of (1) to (2)
|
____
to 1
|
|
|
4.
|
Maximum
allowed
|
5.50
to 1
|
|
|
E.
|
Section
11.14.6 - Minimum EBITDA
|
||
|
1.
|
EBITDA
|
$________
|
|
|
(from
Item B(3) above)
|
|||
|
2.
|
Minimum
allowed
|
$________
|
|
The
Company further certifies to you that no Event of Default or Unmatured Event
of
Default has occurred and is continuing.
15
The
Company has caused this Certificate to be executed and delivered by its duly
authorized officer on _________, ____.
|
By:
|
|
|
Title:
|
|
16
