Attached files
file | filename |
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10-Q - FORM 10-Q - General Finance CORP | c16932e10vq.htm |
EX-31.1 - EXHIBIT 31.1 - General Finance CORP | c16932exv31w1.htm |
EX-32.2 - EXHIBIT 32.2 - General Finance CORP | c16932exv32w2.htm |
EX-32.1 - EXHIBIT 32.1 - General Finance CORP | c16932exv32w1.htm |
EX-31.2 - EXHIBIT 31.2 - General Finance CORP | c16932exv31w2.htm |
Exhibit 10.3
FIRST AMENDMENT TO REVOLVING CREDIT AND SECURITY AGREEMENT
First Amendment to Revolving Credit and Security Agreement, executed the 9th day of
May, 2011, to be effective as of March 31, 2011 (the Effective Date), by and among
Pac-Van, Inc., an Indiana corporation (Pac-Van), GFN North America Corp., a Delaware
corporation (GFN), the financial institutions party hereto (collectively, the
Lenders and individually a Lender), and PNC Bank, National Association
(PNC), as administrative and collateral agent for the Lenders (PNC, in such capacity, the
Agent) (the First Amendment).
W I T N E S S E T H:
WHEREAS, Pac-Van and the other Borrowers party thereto, GFN and the other Guarantors party
thereto, the Lenders party thereto, Pac-Van Asset Trust, a Delaware statutory trust formed under
the Delaware Statutory Trust Act and the Agent entered into that certain Revolving Credit and
Security Agreement, dated July 16, 2010 (as amended, modified, supplemented or restated from time
to time, the Credit Agreement), pursuant to which, among other things, the Lenders agreed
to extend credit to the Borrowers; and
WHEREAS, the Loan Parties desire to amend certain provisions of the Credit Agreement and the
Agent and the Lenders desire to permit such amendments pursuant to the terms and conditions set
forth herein.
NOW, THEREFORE, in consideration of the premises contained herein and other valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be
legally bound hereby, the parties hereto agree as follows:
1. All capitalized terms used herein which are defined in the Credit Agreement shall have the
same meaning herein as in the Credit Agreement unless the context clearly indicates otherwise.
2. Section 1.2 of the Credit Agreement is hereby amended by adding the following definitions
thereto in their appropriate alphabetical order:
Equity Infusion shall have the meaning set forth in
Section 6.12 hereof.
First Amendment Closing Date shall mean May
_____
, 2011.
3. Section 6.5(b) of the Credit Agreement is hereby deleted in its entirety and in its stead
is inserted the following:
(b) Leverage Ratio. Maintain a ratio of Senior Funded
Debt to EBITDA of not greater than (i) 5.75 to 1.00 calculated as of
the last day of the fiscal quarter ending September 30, 2010 and as
of the last day of each fiscal quarter thereafter (other than the
fiscal quarter ending March 31, 2011) through the fiscal quarter
ending September 30, 2011 for the period equal to the four (4)
consecutive fiscal quarters then ending, (ii) 5.50 to 1.00
calculated as of the last day of the fiscal quarter ending December
31, 2011 and as of the last day of each fiscal quarter thereafter
through the fiscal quarter ending June 30, 2012 for the period equal
to the four (4) consecutive fiscal quarters then ending, and (iii)
5.25 to 1.00 calculated as of the last day of the fiscal quarter
ending September 30, 2012 and as of the last day of each fiscal
quarter thereafter for the period equal to the four (4) consecutive
fiscal quarters then ending. Solely for purposes of the calculation
of Senior Funded Debt to EBITDA as of June 30, 2011 for the period
equal to the four (4) consecutive fiscal quarters then ending,
Senior Funded Debt shall be reduced by the amount of the
Equity Infusion.
4. Article VI (Affirmative Covenants) of the Credit Agreement is hereby amended to add the
following new Section 6.12 immediately after Section 6.11:
6.12 Equity Infusion.
After the First Amendment Closing Date and no later than July
31, 2011, provide evidence to Agent of (i) a cash equity infusion
made during such time period from investors acceptable to Agent of
not less than Five Million and 00/100 Dollars ($5,000,000.00) in the
aggregate in GFN and (ii) the contribution by GFN of such cash
equity to Pac-Van, in each case in form and substance satisfactory
to Agent (the aggregate amount of such cash equity infusion made and
contributed in accordance with this Section 6.12 is referred to
herein as the Equity Infusion).
5. Schedules 4.5, 4.15(h), 4.19, 5.2(a), and 5.8(b) to the Credit Agreement are hereby
deleted in their entirety and in their stead are inserted the Schedules attached hereto as
Exhibit A.
6. The provisions of Sections 2 through 5 and Section 8 of this First Amendment shall not
become effective until the Agent has received the following, each in form and substance acceptable
to the Agent:
(a) | this First Amendment, duly executed by the Loan
Parties, the Required Lenders and the Agent; |
||
(b) | the documents and conditions listed in the Preliminary
Closing Agenda set forth on Exhibit B, attached hereto and made
a part hereof; |
||
(c) | payment of the Amendment Fee (as defined below) and all
other fees and expenses owed to the Agent and its counsel (i) for
post-closing matters in connection with the Credit Agreement and (ii)
in connection with this First Amendment; and |
(d) | such other documents as may be reasonably requested by
the Agent or its counsel. |
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7. The Loan Parties agree to pay, in immediately available funds, a nonrefundable amendment
fee in the amount of Eighty-Five Thousand and 00/100 Dollars ($85,000.00) (the Amendment
Fee), due and payable to the Agent for the ratable benefit of the Lenders on or prior to the
date of this First Amendment.
8. Pursuant to Section 4.5(a) of the Credit Agreement, the Loan Parties agreed, among other
things, not to remove any Equipment or Inventory from a location set forth on Schedule 4.5 of the
Credit Agreement (as such schedule existed prior to the date of this First Amendment, the
Existing Schedule 4.5) without the prior written consent of the Agent, with certain
exceptions. The Loan Parties have informed the Agent that in connection with entering into new
leases, as more specifically identified on the updated Schedule 4.5 attached to this First
Amendment (the New Schedule 4.5), the Loan Parties removed Equipment and/or Inventory
from locations set forth on Schedule 4.5 and transferred such Equipment and/or Inventory to such
new leased locations, in contravention of Section 4.5(a) of the Credit Agreement. As a result of
the foregoing, an Event of Default has occurred under Section 10.5 of the Credit Agreement.
Pursuant to Section 9.11 of the Credit Agreement, the Loan Parties agreed, among other things,
to furnish to the Agent at least fifteen (15) days prior thereto, notice of any Loan Partys
opening of any new office or place of business or any Loan Partys closing of any existing office
or place of business. The Loan Parties have informed the Agent that as a result of opening new
offices and closing existing offices, as more specifically identified on the New Schedule 4.5, and
failing to notify the Agent of the opening and closing of such offices, as applicable, the Loan
Parties acted in contravention of Section 9.11 of the Credit Agreement. As a result of the
foregoing, an Event of Default has occurred under Section 10.5 of the Credit Agreement.
Pursuant to Section 8 of the Individual Guarantor Pledge and Security Agreement, the
Individual Guarantors agreed, among other things, not to create or permit to exist any Lien upon or
with respect to any of the Collateral (as defined in the Individual Guarantor Pledge and Security
Agreement), except for the security interest granted under the Individual Guarantor Pledge and
Security Agreement. The Loan Parties have informed the Agent that as a result of a federal tax
lien in the amount of Two Million Four Hundred Forty One Thousand Eighty Two and 65/100 Dollars
($2,441,082.65) filed against RFV and LDV, the Individual Guarantors permitted a Lien upon the
Collateral (as defined in the Individual Guarantor Pledge and Security Agreement) in contravention
of Section 8 of the Individual Guarantor Pledge and Security Agreement. As a result of the
foregoing, an Event of Default has occurred under Sections 10.11 and 10.14 of the Credit Agreement.
Notwithstanding the foregoing, the Loan Parties have requested that the Agent and the Lenders
waive the Events of Default that have occurred under the Credit Agreement as a result of the
violations described in this Section 8. Please be advised that the Agent and the Lenders hereby
waive the Events of Default described in this Section 8.
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9. The Loan Parties hereby reconfirm and reaffirm all representations and warranties,
agreements and covenants made by and pursuant to the terms and conditions of the Credit Agreement,
except as such representations and warranties, agreements and covenants may have heretofore been
amended, modified or waived in writing in accordance with the Credit Agreement or as set forth in
this First Amendment and except any such representations or warranties made as of a specific date
or time, which shall have been true and correct in all material respects as of such date or time.
10. The Loan Parties acknowledge and agree that each and every document, instrument or
agreement which at any time has secured payment of the Obligations including, but not limited to,
the Credit Agreement, each Pledge Agreement, the IP Security Agreement, each Deposit Account
Control Agreement, the Individual Guarantor Pledge and Security Agreement and the Individual
Guarantor Account Control Agreement continue to secure prompt payment when due of the Obligations.
11. The Loan Parties hereby represent and warrant to the Lenders and the Agent that (i) the
Loan Parties have the legal power and authority to execute and deliver this First Amendment; (ii)
the officers of the Loan Parties executing this First Amendment have been duly authorized to
execute and deliver the same and bind the Loan Parties with respect to the provisions hereof;
(iii) the execution and delivery hereof by the Loan Parties and the performance and observance by
the Loan Parties of the provisions hereof and of the Credit Agreement and all documents executed
or to be executed therewith, do not violate or conflict with the organizational documents of the
Loan Parties or any law applicable to the Loan Parties or result in a breach of any provision of
or constitute a default under any other agreement, instrument or document binding upon or
enforceable against the Loan Parties and (iv) this First Amendment, the Credit Agreement and the
documents executed or to be executed by the Loan Parties in connection herewith or therewith
constitute valid and binding obligations of the Loan Parties in every respect, enforceable in
accordance with their respective terms.
12. The Loan Parties represent and warrant that (i) other than the Events of Default
described in Section 8 of this First Amendment, no Event of Default exists under the Credit
Agreement, nor will any occur as a result of the execution and delivery of this First Amendment or
the performance or observance of any provision hereof; and (ii) they presently have no claims or
actions of any kind at law or in equity against the Lenders or the Agent arising out of or in any
way relating to the Credit Agreement or the Other Documents.
13. Each reference to the Credit Agreement that is made in the Credit Agreement or any other
document executed or to be executed in connection therewith shall hereafter be construed as a
reference to the Credit Agreement as amended hereby.
14. The agreements contained in this First Amendment are limited to the specific agreements
contained herein. Except as amended hereby, all of the terms and conditions of the Credit
Agreement and the Other Documents shall remain in full force and effect. This First Amendment
amends the Credit Agreement and is not a novation thereof.
15. This First Amendment may be executed in any number of counterparts and by the different
parties hereto on separate counterparts each of which, when so executed, shall be deemed to be an original, but all such counterparts shall constitute but one and the same
instrument.
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16. This First Amendment shall be governed by, and shall be construed and enforced in
accordance with, the laws of the State of New York applied to contracts to be performed wholly
within the State of New York. The Loan Parties hereby consent to the jurisdiction and venue of
any federal or state court located in the County of New York, State of New York with respect to
any suit arising out of or mentioning this First Amendment.
[INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, and intending to be legally bound, the parties hereto, have caused this
First Amendment to be duly executed by their duly authorized officers on the day and year first
above written, to be effective as of the Effective Date.
BORROWER: | ||||
PAC-VAN, INC. | ||||
By: | /s/ Christopher A. Wilson | |||
Name: | Christopher A. Wilson | |||
Title: | Secretary | |||
GUARANTOR: | ||||
GFN NORTH AMERICA CORP. | ||||
By: | /s/ Charles E. Barrantes | |||
Name: | Charles E. Barrantes | |||
Title: | Executive Vice President and Chief Financial Officer | |||
Acknowledged and consented to on May 9, 2011:
/s/ Ronald F. Valenta
Ronald F. Valenta
Ronald F. Valenta
/s/ Lydia D. Valenta
Lydia D. Valenta
Lydia D. Valenta
AGENT AND LENDERS: PNC BANK, NATIONAL ASSOCIATION, as Agent and as a Lender |
||||
By: | /s/ Todd Milenius | |||
Name: | Todd Milenius | |||
Title: | Vice President | |||
WELLS FARGO BANK, NATIONAL ASSOCIATION, as a Lender |
||||
By: | /s/ James A. Stehlik | |||
Name: | James A. Stehlik | |||
Title: | Vice President | |||
UNION BANK, N.A., as a Lender |
||||
By: | /s/ Erik Siegfried | |||
Name: | Erik Siegfried | |||
Title: | Vice President | |||
EXHIBIT A
UPDATED SCHEDULES
[see attached]
EXHIBIT B
PRELIMINARY CLOSING AGENDA
[see attached]