As filed with the Securities and Exchange Commission on September
18, 2018
File No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________________________
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
____________________________
GENERAL FINANCE CORPORATION
(Exact name of registrant as specified in its charter)
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Delaware
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32-0163571
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification Number)
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39 East Union Street
Pasadena, California 91103
(626) 204-6308
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(Address,
including zip code, and telephone number,
including area code, of registrant’s principal executive
offices
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____________________________
Jody E Miller
Chief Executive Officer
39 East Union Street
Pasadena, California 91103
(626) 204-6308
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(Name,
address, including zip code, and telephone number,
including area code, of agent for service
)
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____________________________
Copies to:
Christopher A. Wilson, Esq.
General Counsel, Vice President & Secretary
39 East Union Street
Pasadena, California 91103
Phone: (626) 204-6308 Facsimile: (626) 795-8090
Approximate
date of commencement of proposed sale to the public:
From time to time after the effective
date of this registration statement.
If
the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check
the following box:
If any of the securities being
registered on this Form are to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act of
1933
, other than securities offered only in connection with
dividend or interest reinvestment plans,
check the following box.
☑
If this Form is filed to
register additional securities for an offering pursuant to Rule
462(b) under the Securities Act, please check the following box and
list the Securities Act registration statement number of the
earlier effective registration statement for the same offering.
☐
If this Form is a
post-effective amendment filed pursuant to Rule 462(c) under the
Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration
statement for the same offering. ☐
If this Form is a
registration statement pursuant to General Instruction I.D. or a
post-effective amendment
thereto that shall become effective upon filing with the Commission
pursuant to Rule
462(
e
) under the Securities
Act, check the following box
. ☐
If
this Form is a post-effective amendment to a registration statement
filed pursuant to General Instruction I.D. filed to register
additional securities or additional classes of securities pursuant
to Rule 413(b) under the Securities Act, check the following box.
☐
Indicate
by check mark whether the registrant is a large accelerated filer,
an accelerated filer, a non-accelerated filer, a smaller reporting
company, or an emerging growth company. See the definitions of
“large accelerated filer,” “accelerated
filer,” “smaller reporting company,” and
“emerging growth company” in Rule 12b-2 of the Exchange
Act. (Check one):
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Large accelerated filer ☐
Non-accelerated filer
(Do not check if a smaller reporting
company)
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Accelerated filer
☑
Smaller reporting company ☐
Emerging growth company ☐
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If an
emerging growth company, indicate by check mark if the registrant
has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided
pursuant to Section 7(a)(2)(B) of Securities Act
.
☐
CALCULATION OF REGISTRATION FEE
Title
of each Class of
Securities
to be Registered
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Amount
to be
Registered
(1)
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Proposed
Maximum
Offering
Price Per Unit
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Proposed
Maximum
Aggregate
Offering Price
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Amount
of
Registration
Fee
(3)
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Common Stock, par
value $0.0001 per share
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(2
)
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(2
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(2
)
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(2
)
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Preferred Stock,
par value $0.0001 per share
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(2
)
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(2
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(2
)
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(2
)
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Debt
Securities
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(2
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(2
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(2
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(2
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Warrants
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(2
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(2
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(2
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(2
)
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Total
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(2
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(2
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$
250,000,000.00
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$
31,125.00
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(1)
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An
indeterminate amount of securities of each identified class is
being registered as may from time to time be offered pursuant to
this registration statement at indeterminate prices, along with an
indeterminate number of shares that may be issued upon exercise,
settlement, exchange or conversion of securities offered or sold
hereunder. These securities may also be sold separately, together
or as units with the other securities registered hereunder. The
securities registered hereunder will have an aggregate offering
price that does not exceed $250,000,000 or the equivalent in any
other currency, currency unit or units, or composite currency or
currencies.
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(2)
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Not
required to be included in accordance with General Instruction
II.D. of Form S-3.
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(3)
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Calculated
pursuant to Rule 457(o) of the rules and regulations under the
Securities Act of 1933, as amended.
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The
Registrant
hereby amends this Registration Statement on such date or dates as
may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this
Registration Statement shall thereafter become effective in
accordance with Section 8(a) of the Securities Act of
1933, as
amended,
or until the
Registration Statement shall become effective on such date as the
Commission, acting pursuant to said Section 8(a), may
determine.
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The information in this prospectus is not complete and may be
changed. We may not sell these securities until the registration
statement filed with the Securities and Exchange Commission is
effective. This prospectus is not an offer to sell these securities
and is not soliciting an offer to buy these securities in any state
where the offer or sale is not permitted.
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SUBJECT TO COMPLETION, DATED SEPTEMBER 18, 2018
PROSPECTUS
$250,000,000
COMMON STOCK
PREFERRED STOCK
DEBT SECURITIES
WARRANTS
We may offer common stock, preferred stock, debt
securities and warrants from time to time in one or more
classes or
series
, separately
or together,
and in amounts, at prices
and on terms that we will determine at the time of the offering.
Specific terms of these securities will be provided in supplements
to this prospectus. You should read this prospectus and any
supplement carefully before you invest.
The common stock, preferred stock, debt securities
and warrants may be offered in amounts, at prices and on terms
determined at the time of the offering, on a delayed or continuous
basis directly by us, through agents, underwriters or dealers as
designated from time to time, through a combination of these
methods or any other method as provided in the applicable
prospectus supplement. See “Plan of Distribution.” The
prospectus supplement will list any agents, underwriters or dealers
that may be involved and the compensation they will receive. The
prospectus supplement will also
disclose
the total amount of money that we will receive
from selling the securities being offered, after the expenses of
the offering.
You
should carefully read this prospectus and any accompanying
prospectus supplement, together with the documents we incorporate
by reference, before you invest in any of our
securities.
Our common stock is listed on the NASDAQ Global
Market under the symbol
“
GFN.
”
On
September 17, 2018, the reported last sale price of our common
stock on the NASDAQ Global Market was $14.40 per share. We have not
yet determined whether the other securities that may be offered by
this prospectus will be listed on any exchange, inter-dealer
quotation system or over-the-counter market. If we decide to seek
the listing of any such securities upon issuance, the prospectus
supplement relating to those securities will disclose the exchange,
quotation system or market on which the securities will be
listed.
Investing in these securities involves
certain risks. See
the “Risk Factors” section of this prospectus beginning
on page 2 and
the “Risk
Factors” section in our most recent Annual Report on Form
10-K and in our subsequent Quarterly Reports on Form 10-Q and in
the documents incorporated by referenced herein
and
therein
.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or passed upon the adequacy or accuracy of this
prospectus. Any representation to the contrary is a criminal
offense.
The
date of this prospectus is .
TABLE OF CONTENTS
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Page
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About
this Prospectus
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ii
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Forward-Looking
Statements
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ii
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The Company
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1
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Risk
Factors
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4
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Use
of Proceeds
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5
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Ratio
of Earnings to Fixed Charges
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6
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Description
of Common Stock
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7
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Description
of Preferred Stock
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9
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Description
of Debt Securities
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Description
of Warrants
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Forms
of Securities
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Plan
of Distribution
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Legal Matters
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Experts
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Where
You Can Find Additional Information
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Incorporation
by Reference
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22
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_________________
You should rely only on the information that we
have provided or incorporated by reference in this prospectus, any
applicable prospectus supplement and any related free writing
prospectus that we may authorize to be provided to you. We have not
authorized anyone to provide you with different information. No
dealer, salesperson or other person is authorized to give any
information or to represent anything not contained in this
prospectus, any applicable prospectus supplement or any related
free writing prospectus that we may authorize to be provided to
you. You must not rely on any unauthorized information or
representation. This prospectus is an offer to sell only the
securities offered hereby, but only under circumstances and in
jurisdictions where it is lawful to do so. You should assume that
the information in this prospectus, any applicable prospectus
supplement or any related free writing prospectus is accurate only
as of the date on the front of the document and that any
information we have incorporated by reference is accurate only as
of the date of the document incorporated by reference, regardless
of the time of delivery of this prospectus, any applicable
prospectus supplement or any related free writing prospectus, or
any sale of a security.
Since the respective dates of the
prospectus contained in this registration statement and any
accompanying prospectus supplement or related free writing
prospectus, our business, financial condition, results of
operations and prospects may have changed. We may only sell
securities pursuant to this prospectus if this prospectus is
accompanied by a prospectus supplement.
ABOUT THIS PROSPECTUS
This prospectus is part of a registration
statement that we filed with the Securities and Exchange
Commission, which we refer to as the “SEC,” utilizing a
shelf registration process. Under this shelf registration process,
we may, from time to time, offer and sell any combination of the
securities described in this prospectus in one or more
offerings
for an aggregate initial public offering price of
up to $250,000,000.
This prospectus
provides you with a general description of the securities we may
offer. Each time we sell securities, we will provide a prospectus
supplement that will contain specific information about the terms
of the offering and the offered securities. The prospectus
supplement may also add, update or change information contained in
this prospectus. Any statement that we make in this prospectus will
be
deemed
modified or
superseded by any inconsistent statement made by us in a prospectus
supplement. You should read this prospectus
, any prospectus
supplement
and any
related free
writing
prospectus together with
additional information described under the heading “Where You
Can Find More Information.”
References to
“we,” “us,” “our” or the
“Company” refer to General Finance Corporation, a
Delaware corporation (“GFN”), and its consolidated
subsidiaries. These subsidiaries include GFN U.S. Australasia
Holdings, Inc., a Delaware corporation (“GFN U.S.”);
GFN Insurance Corporation, an Arizona corporation
(“GFNI”); GFN North America Leasing Corporation, a
Delaware corporation (“GFNNA Leasing”); GFN North
America Corp., a Delaware corporation (“GFNNA”); GFN
Realty Company, LLC, a Delaware limited liability company
(“GFNRC”);
GFN
Manufacturing Corporation, a Delaware corporation
(“GFNMC”), and its subsidiary, Southern Frac, LLC, a
Texas limited liability company (collectively “Southern
Frac”);
Pac-Van, Inc., an Indiana corporation, and its
Canadian subsidiary,
PV Acquisition
Corp., an Alberta corporation (collectively “Pac-Van”);
Lone Star Tank Rental Inc., a Delaware corporation (“Lone
Star”); and
GFN Asia Pacific Holdings Pty Ltd, an
Australian corporation (“GFNAPH”), and its
subsidiaries, GFN Asia Pacific Finance Pty Ltd, an Australian
corporation (“GFNAPF”), Royal Wolf Holdings Limited, an
Australian corporation (“RWH”), and its Australian and
New Zealand subsidiaries (collectively, “Royal
Wolf”)
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FORWARD-LOOKING STATEMENTS
This prospectus, including the documents
incorporated by reference into this prospectus, contains
forward-looking statements within the meaning of Section 27A of the
Securities Act of 1933, as amended (the “Securities
Act”), and Section 21E of the Securities Exchange Act of
1934, as amended. In some cases, you can identify forward-looking
statements by terminology such as “may,”
“might,” “will,” “should,”
“could,” “would,” “expects,”
“plans,” “anticipates,”
“believes,” “estimates,”
“predicts,” “potential,”
“continue” or the negative of such terms or other
similar expressions. We have based these forward-looking statements
on our current expectations and projections about future events.
These forward-looking statements are subject to known and unknown
risks, uncertainties and assumptions about us that may cause our
actual results, levels of activity, performance or achievements to
be materially different from any future results, levels of
activity, performance or achievements expressed or implied by such
forward-looking statements. These statements are only predictions
based on our current expectations and projections about future
events
and speak only as of the date of this
prospectus
. We believe the
expectations reflected in the forward-looking statements are
reasonable, but we cannot guarantee future results, level of
activity, performance or achievements. Neither we nor any other
person assumes responsibility for the accuracy and completeness of
any of these forward-looking statements. We are under no duty to
update any of these forward-looking statements after the date of
this prospectus to conform our prior statements to actual results
or revised expectations.
There
are important factors that could cause our actual results, level of
activity, performance or achievements to differ materially from the
results, level of activity, performance or achievements expressed
or implied by the forward-looking statements, including those
factors discussed under the caption entitled “Risk
Factors” in our Annual Report on Form 10-K for the fiscal
year ended June 30, 2018 and documents we have filed with the SEC
thereafter. We maintain a website at
www.generalfinance.com
that
makes available, through a link to the SEC’s EDGAR system
website, our SEC filings.
Information contained on our
website is not incorporated by reference into this prospectus, and
you should not consider information contained on our website as
part of this prospectus.
THE COMPANY
Overview
We are
a leading specialty rental services company offering portable
storage, modular space and liquid containment solutions, with a
diverse and expanding lease fleet of 85,812 units as of June 30,
2018. Our primary 95 branch locations across North America and the
Asia-Pacific offer a wide range of portable storage units,
including our core 20-feet and 40-feet steel containers, office
container, mobile office and modular space products and steel tanks
that provide our customers a flexible, cost-effective and
convenient way to meet their temporary storage and space needs. Our
units are easily customized to satisfy our customers’
specific application needs and include numerous value-added
components. We provide our storage solutions to a diverse base of
over 47,000 customers across a broad range of industries,
including the commercial, construction, transportation, industrial,
energy, manufacturing, mining, retail, consumer, education and
government sectors. Our customers utilize our storage and space
units for a wide variety of applications, including the temporary
storage of materials, supplies, equipment, retail merchandise
inventories, documents and liquid storage and for office
use.
We
focus on leasing, rather than selling, our units. Approximately 64%
of our total non-manufacturing revenues for the year ended June 30,
2018 (“FY 2018”) were derived from leasing activities.
We believe our business model is compelling because it is driven by
lease fleet assets that:
●
generate a
recurring revenue stream with average lease durations of over 12
months;
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possess
long useful lives of 20 to 30 years with high residual
values;
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return
the original equipment cost through revenue within four years on
average;
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operate
at high lease fleet utilization levels, historically between 70%
and 85%;
●
require
low maintenance expenditures; and
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earn attractive
margins.
Our
lease fleet is comprised of three distinct specialty rental
equipment categories that possess attractive asset characteristics
and serve our customers’ on-site temporary needs and
applications. These categories match the sectors we serve and which
we collectively refer to as the “portable services
industry” - portable (or mobile) storage, modular space and
liquid containment.
Our
portable storage category is segmented into two products:
(1) storage containers, which primarily consist of new and
used steel shipping containers under International Organization for
Standardization (“ISO”) standards, that provide a
flexible, low cost alternative to warehousing, while offering
greater security, convenience and immediate accessibility; and
(2) freight containers, which are designed for either
transport of products by road and rail and are only offered in our
Asia-Pacific territory.
Our
modular space category is segmented into three products:
(1) office containers, which are referred to as portable
container buildings in the Asia-Pacific, are either modified or
specifically manufactured containers that provide self-contained
office space with maximum design flexibility. Office containers in
the United States are oftentimes referred to as ground level
offices (“GLOs”); (2) modular buildings, which
provide customers with flexible space solutions and are often
modified to customer specifications and (3) mobile offices,
which are re-locatable units with aluminum or wood exteriors and
wood (or steel) frames on a steel carriage fitted with axles, and
which allow for an assortment of “add-ons” to provide
convenient temporary space solutions.
Our
liquid containment category includes portable liquid storage tanks
that are manufactured 500-barrel capacity steel containers with
fixed axles for transport. These units can be utilized for a
variety of applications across a wide range of industries,
including refinery, petrochemical and industrial plant maintenance,
oil and gas services, environmental remediation and field services,
infrastructure building construction, marine services, pipeline
construction and maintenance, tank terminal services, waste
management, wastewater treatment and landfill
services.
Summary Organization
Chart
(1)
(2)
(1)
Summary
organization chart is illustrative and does not reflect our legal
operating structure.
(2)
Reflects
consolidated revenues for FY 2018.
Portable Storage
The
storage industry includes two principal markets, fixed self-storage
and portable storage. The fixed self-storage market consists of
permanent structures located away from customer locations used
primarily by consumers to temporarily store excess household goods.
We do not participate in the fixed self-storage market with
permanent structures. The portable storage market, in which we
primarily operate, differs from the fixed self-storage market in
that it brings the storage solution to the customer’s
location and addresses the need for secure, temporary storage with
immediate access to the storage unit. The advantages of portable
storage include convenience, immediate accessibility, improved
security and lower costs. In contrast to fixed self-storage, the
portable storage market is primarily used by businesses and offers
a flexible, secure, cost-effective and convenient alternative to
constructing permanent warehouse space or storing items at an
offsite facility. A broad range of industries, including the
construction, industrial, commercial, retail and government
sectors, utilize portable storage equipment to meet both their
short-term and permanent storage needs.
The
portable storage industry is fragmented in each of our geographic
markets, with numerous participants in local markets leasing and
selling portable storage units. While we are not aware of any
published third-party analysis of either the Asia-Pacific or North
American portable storage markets, we believe the portable storage
sector has experienced steady growth since the 1990s and is
achieving increased market share compared to other storage
alternatives because of an increasing awareness of the benefits
that portable storage units offer, including the availability,
convenience, security and cost benefits of portable storage, as
well as an increasing number of new applications for portable
storage units.
Modular Space
Modular
space solutions, including modular buildings, mobile offices and
portable container buildings, are used primarily by businesses to
address either temporary or permanent space needs. We believe
modular space delivers four core benefits compared to permanent
buildings or structures: reusability, timely solutions, lower costs
and flexibility. Modular buildings may offer customers significant
cost savings over permanent construction and can generally be
installed more quickly because site work and fabrication can take
place concurrently. In addition, modular solutions are not site
specific and can be configured in a number of ways to meet multiple
needs. Finally, modular buildings are reusable and will generally
serve a wide variety of uses during their life span. A variety of
industries utilize modular space solutions, including construction,
resources, government, education, retail and special events, among
others.
The
Modular Building Institute, in its 2017 Relocatable Buildings
Annual Data Report, estimated that the North American modular space
(or relocatable) sector generated approximately $4.0 billion in
annual revenue. The sector has experienced growth over the last
thirty plus years as the number of applications for modular space
has expanded and recognition of the product’s positive
attributes has grown. By outsourcing their space needs, customers
are able to achieve flexibility, preserve capital for core
operations, and convert fixed costs into variable costs. The IBIS
World Industry Report published in November 2017 estimated that the
portable container buildings market in Australia generated revenue
of AUS$2.0 billion ($1.5 billion), of which approximately AUS$1.3
billion ($1.0 billion) related to the markets in which we offer a
competing product. We believe that we are well positioned to
benefit from any growth in the North American and Asia-Pacific
modular space markets.
We
expect that the modular space market will grow over the long-term,
driven in part by increasing awareness of the advantages of modular
space. Additionally, we believe that the advantages of modular
space over permanent buildings and structures of reusability,
timely solutions, lower costs, and flexibility are highly valued in
many of the end markets we serve. We further believe the increased
penetration of modular space solutions in additional end markets
will also continue to drive market growth.
Liquid Containment
Portable liquid
storage tank containers are used in environmental and industrial
applications to temporarily store hazardous and nonhazardous
liquids and semi-solids. The tanks are used by customers across a
wide variety of end markets, including chemical, refinery and
industrial plant maintenance, environmental remediation,
infrastructure building construction, marine services, oil and gas
exploration and field services, pipeline construction and
maintenance, tank terminal services, wastewater treatment and waste
management and landfill services. Liquid containment end market
demand is recurring and is driven by the non-discretionary nature
of required customer maintenance cycles, an increasing enforcement
of existing environmental regulations, a growing outsourcing of
liquid containment solutions and an increasing level of vendor
consolidation. We believe that the rental industry in the U.S. for
liquid containment equipment is fragmented and generated
approximately $1.4 billion of annual rental revenues in 2013
– 2014. As a result of the decline in oil and gas prices
during the latter part of our year ended June 30, 2015, the size of
the liquid containment sector has contracted. However, oil and gas
drilling and production activity increased in FY 2018, particularly
in the Permian Basin of Texas. We believe that we can leverage our
branch network, existing relationships and operating philosophies
to successfully compete in this sector. Our research indicated that
many of the companies that used containment solutions also used
portable storage and mobile office products.
Additional Information
We
incorporated in Delaware on October 14, 2005.
Our principal executive offices are located at 39
East Union Street, Pasadena, California 91103, and our telephone
number is (626) 204-6308
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RISK FACTORS
An investment in our securities involves a high
degree of risk. You should carefully consider the risk factors and
all of the other information included in, or incorporated by
reference into, this prospectus, including those included in our
most recent Annual Report on Form 10-K and, if applicable, in our
Quarterly Reports on Form 10-Q and Current Reports on Form 8-K, in
evaluating an investment in our securities. If any of these risks
were to occur, our business, financial condition or results of
operations could be adversely affected. In that case, the trading
price of our securities could decline and you could lose all or
part of your investment. When we offer and sell any securities
pursuant to a prospectus supplement, we may include additional risk
factors relevant to such securities in the prospectus
supplement
or any related free writing
prospectus
.
USE OF PROCEEDS
Unless otherwise specified in the applicable
prospectus supplement, the net proceeds from the sale of the
securities to which this prospectus relates will be used for
general corporate purposes, which may include acquisitions
,
refinancing or
repayment of
indebtedness, capital expenditures and working capital, increasing
the size of and investment in our North American fleet of storage,
office and portable liquid storage containers, modular buildings
and mobile offices
and pursuing
other business opportunities.
Until
we can utilize the net proceeds for some or all of these purposes,
we may also invest the net proceeds in certificates of deposit,
United States government securities or certain other
interest-bearing securities. If we decide to use the net proceeds
from an offering of securities for a particular purpose or
purposes, we will describe that specific purpose or purposes in the
related prospectus supplement.
RATIO OF EARNINGS TO FIXED CHARGES
The
following table sets forth unaudited information on our ratio of
earnings to fixed charges on a consolidated basis for the periods
presented. For purposes of the ratios presented below, (i) earnings
consist of consolidated operations before income taxes and fixed
charges and (ii) fixed charges include consolidated interest
expense, one-third of rent expense (approximately the portion which
represents interest) and preferred stock dividend costs of General
Finance Corporation.
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Year Ended June 30,
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2018
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2017
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2016
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2015
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2014
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(unaudited)
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Ratio of earnings to fixed charges
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DESCRIPTION OF COMMON STOCK
The
following description of our common stock is based upon our amended
and restated certificate of incorporation, our amended and restated
bylaws and applicable provisions of law. We have summarized certain
portions of our amended and restated certificate of incorporation
and amended and restated bylaws below. This summary is not
complete. Our amended and restated certificate of incorporation and
amended and restated bylaws have been filed as exhibits to the
registration statement of which this prospectus is a part. You
should read our amended and restated certificate of incorporation
and amended and restated bylaws for the provisions that are
important to you.
General
We are authorized to issue
100,000,000 shares of common stock, par value $.
0001 per
share.
As of
September 17,
2018,
30,208,822 shares of common
stock
were
outstanding held by
50 stockholders of record.
Voting Rights
Common stockholders of record are
entitled to one vote for each share held on all matters to be voted
on by stockholders
. The holders of our common stock do not
have cumulative voting rights.
Pursuant to our Amended and
Restated Certificate of Incorporation, the Board of Directors must
consist of no less than three members, the exact number of which is
determined from time to time by the Board of Directors, divided
into three classes designated Class A, Class B and Class C,
respectively. The Board of Directors has presently fixed the number
of directors at eight. The term of the three Class C Directors will
expire as of the annual meeting of stockholders in 2018, the term
of the two Class A Directors will expire as of the annual meeting
of stockholders in 2019 and the term of the three Class B Directors
will expire as of the annual meeting of stockholders in 2020. Upon
expiration of the terms of the Directors of each class as set forth
above, the terms of their successors in that class will continue
until the end of their terms and until their successors are duly
elected and qualify.
Dividends
Our stockholders are entitled
to receive ratable dividends when, as and if declared by the Board
of Directors out of funds legally available therefor. In the event
of a liquidation, dissolution or winding up of the company after a
business combination, our stockholders are entitled, subject to the
rights of holders of preferred stock, if any, to share ratably in
all assets remaining available for distribution to them after
payment of liabilities and after provision is made for each class
of stock, if any, having preference over the common stock. Our
stockholders have no conversion, preemptive or other subscription
rights. There are no sinking fund or redemption provisions
applicable to the common stock.
We have not paid any cash
dividends on our common stock to date. The payment of cash
dividends will be dependent upon our revenues and earnings, if any,
capital requirements and general financial condition subsequent to
completion of a business combination. The payment of any dividends
will be within the discretion of our then board of directors. It is
the present intention of our board of directors to retain all
earnings, if any, for use in our business operations and,
accordingly, our board does not anticipate declaring any dividends
in the foreseeable future.
Moreover, the terms of the
unsecured senior notes we issued in June 2014 and April 2017 place
certain limitations on our ability to pay dividends or make any
distributions on or in respect of shares of our capital stock.
Further, our ability to declare
dividends may
be
limited by
restrictive covenants if we incur any
additional
indebtedness.
No Preemptive, Conversion or Redemption Rights
Our
common stock is not entitled to preemptive rights and is not
subject to conversion or redemption, but the holders of $26 million
of our secured senior convertible promissory notes are entitled to
preemptive rights upon the issuance of common stock or any security
convertible to common stock.
Right to Receive Liquidation Distributions
Upon
our liquidation, dissolution or winding-up, the holders of common
stock are entitled to share in all assets remaining after payment
of all liabilities and the liquidation preferences of any
outstanding preferred stock. Each outstanding share of common stock
is, and all shares of common stock to be issued in this offering
when they are paid for will be, fully paid and
nonassessable.
Anti-Takeover Effects of Delaware Law and Our Amended and Restated
Certificate of Incorporation and Amended and Restated
Bylaws
Certain
provisions of Delaware law and our amended and restated certificate
of incorporation and amended and restated bylaws may have the
effect of delaying, deferring or discouraging another party from
acquiring control of us.
Delaware Law
We are subject to the provisions of Section 203 of
the General Corporation Law
of the State of Delaware
regulating corporate takeovers. In
general, Section 203 prohibits a Delaware corporation from engaging
in any business combination with any interested stockholder for a
period of three years following the date that the stockholder
became an interested stockholder, unless:
●
the transaction is approved by the board before the date the
interested stockholder attained that status;
●
upon consummation of the transaction that resulted in the
stockholder becoming an interested stockholder, the interested
stockholder owned at least 85% of the voting stock of the
corporation outstanding at the time the transaction commenced;
or
●
on or after the date the business combination is approved by the
board and authorized at a meeting of stockholders by at least
two-thirds of the outstanding voting stock that is not owned by the
interested stockholder.
Section 203 defines
“
business combination
”
to include the following:
●
any merger or consolidation involving the corporation and the
interested stockholder;
●
any sale, transfer, pledge or other disposition of 10% or more of
the assets of the corporation involving the interested
stockholder;
●
subject to certain exceptions, any transaction that results in the
issuance or transfer by the corporation of any stock of the
corporation to the interested stockholder;
●
any transaction involving the corporation that has the effect of
increasing the proportionate share of the stock of any class or
series of the corporation beneficially owned by the interested
stockholder; or
●
the receipt by the interested stockholder of the benefit of any
loans, advances, guarantees, pledges or other financial benefits
provided by or through the corporation.
In
general, Section 203 defines an interested stockholder as any
entity or person beneficially owning 15% or more of the outstanding
voting stock of the corporation and any entity or person affiliated
with or controlling or controlled by any of these entities or
persons.
A
Delaware corporation may opt out of this provision either with an
express provision in its original certificate of incorporation or
in an amendment to its certificate of incorporation or bylaws
approved by its stockholders. We have not opted out of this
provision. Section 203 could prohibit or delay mergers or other
takeover or change in control attempts and, accordingly, may
discourage attempts to acquire us.
Amended and Restated Certificate of Incorporation and Amended and
Restated Bylaws
Our
amended and restated certificate of incorporation and amended and
restated bylaws provide that:
●
no
action can be taken by stockholders except at an annual or special
meeting of the stockholders called in accordance with our
bylaws;
●
the
approval of holders of a majority of the shares entitled to vote at
an election of directors is required to adopt, amend or repeal our
bylaws or amend or repeal the provisions of our certificate of
incorporation regarding the election and removal of directors and
the ability of stockholders to take action;
●
our
board of directors is expressly authorized to make, alter or repeal
our bylaws;
●
stockholders
may not call special meetings of the stockholders or fill vacancies
on the board;
●
our
board of directors is divided into three classes serving staggered
three-year terms. This means that only one class of directors will
be elected at each annual meeting of stockholders, with the other
classes continuing for the remainder of their respective
terms;
●
our
board of directors is authorized to issue preferred stock without
stockholder approval;
●
directors
may only be removed for cause by the holders of majority of the
shares entitled to vote at an election of directors;
and
●
we
will indemnify officers and directors against losses that they may
incur in investigations and legal proceedings resulting from their
services to us, which may include services in connection with
takeover defense measures.
Our Transfer Agent
The transfer agent for our
securities and warrant agent for our warrants is Continental Stock
Transfer & Trust Company, 17 Battery Place, New York, New York
10004.
NASDAQ Global Market Listing
The
common stock is listed on the NASDAQ Global Market under the symbol
“GFN.”
DESCRIPTION OF PREFERRED STOCK
Our board of directors is authorized, subject to
limitations imposed by Delaware law, to issue up to a total of
1,000,000 shares of preferred stock, par value $.0001. As of
September 17, 2018, there were issued and outstanding
100 shares of Series B 8% Cumulative Preferred
Stock, par value of $0.0001 per share
, with
a liquidation preference of $1,000 per share
(“Series B Preferred Stock”)
,
held by one stockholder
,
and 400,000 shares of 9.00% Series C Cumulative
Redeemable Perpetual Preferred Stock, par value of $0.0001 per
share
, with
a liquidation
preference of $100 per share (“Series C Preferred
Stock”), held by 11 stockholders of
record.
The Series B Preferred Stock is offered primarily
in connection with business combinations. The Series B Preferred
Stock is not convertible into our common stock, has no voting
rights, except as required by Delaware law, and is redeemable at
any time, in whole or in part, at the Company’s option.
Holders of the Series B Preferred Stock are entitled to receive,
when declared by the Company’s Board of Directors, annual
dividends payable quarterly in arrears on the 31
st
day of January, July and October and
on the 30
th
day of April of each year. In the
event of any liquidation or winding up of the Company, the holders
of the Series B Preferred Stock will have preference to holders of
common stock.
Dividends on the Series C Preferred Stock cumulate
from the date of original issue and are payable on each
31
st
day of each January, July and October
and 30
th
day of April when, as and if declared
by the Company’s Board of Directors. Commencing on May 17,
2018, the Company may redeem, at its option, the Series C Preferred
Shares, in whole or in part, at a cash redemption price of $100.00
per share, plus any accrued and unpaid dividends to, but not
including, the redemption date. The Series C Preferred Shares have
no mandatory redemption date, are not subject to any sinking fund
or other mandatory redemption, and are not convertible into or
exchangeable for any of the Company’s other securities.
Holders of the Series C Preferred Shares generally will have no
voting rights, except for limited voting rights if dividends
payable on the outstanding Series C Preferred Shares are in arrears
for six or more consecutive or non-consecutive quarters, and under
certain other circumstances. If the Company fails to maintain the
listing of the Series C Preferred Stock on the NASDAQ Stock Market
or other securities exchange for 30 days or more, the per annum
dividend rate will increase by an additional 2.00% per $100.00
stated liquidation value ($2.00 per annum per share) so long as the
listing failure continues. In addition, in the event of any
liquidation or winding up of the Company, the holders of the Series
C Preferred Stock will have preference to holders of common stock
and are pair passu with the Series B Preferred Stock. The Series C
Preferred Stock is listed on the NASDAQ Stock Market under the
symbol “GFNCP.”
Our Board of Directors is authorized to
issue
up to 599,900
additional
shares of preferred stock in one or more series, without
stockholder approval, unless stockholder approval is required by
applicable law, by the rules of a stock exchange or quotation
system on which any series of our stock may be listed or quoted or
by the certificate of designation governing the applicable series
of preferred stock. Our Board of Directors is authorized to
establish from time to time the number of shares to be included in
each series and to fix the rights, preferences and privileges of
the shares of each wholly unissued series and any of its
qualifications, limitations or restrictions. Our Board of Directors
can also increase or decrease the number of shares of any series,
but not below the number of shares of that series then outstanding,
without any further vote or action by the
stockholders.
This prospectus describes certain general terms
and provisions of our preferred stock. When we offer to sell a
particular series of preferred stock, we will describe the specific
terms of the securities in a prospectus
supplement
. The prospectus supplement
will also indicate whether the general terms and provisions
described in this prospectus apply to the particular series of
preferred stock. The preferred stock will be issued under a
certificate of designations relating to each series of preferred
stock and is also subject to our certificate of incorporation. The
certificate of designations will be filed with the SEC in
connection with an offering of preferred stock.
The
prospectus supplement will describe the terms of any preferred
stock being offered, including:
●
the
number of shares and designation or title of the
shares;
●
any
liquidation preference per share;
●
any
date of maturity;
●
any
redemption, repayment or sinking fund provisions;
●
any
dividend rate or rates and the dates of payment (or the method for
determining the dividend rates or dates of payment);
●
whether
dividends are cumulative or non-cumulative and, if cumulative, the
date from which dividends on the preferred stock will
accumulate;
●
any
restriction on the repurchase or redemption of shares by us while
there is any arrearage in the payment of dividends or sinking fund
installments;
●
any
voting rights;
●
if
other than the currency of the United States, the currency or
currencies, including composite currencies, in which the preferred
stock is denominated and/or in which payments will or may be
payable;
●
the
method by which amounts in respect of the preferred stock may be
calculated and any commodities, currencies or indices, or value,
rate or price, relevant to such calculation;
●
the
procedures for any auction and remarketing, if any, for the
preferred stock;
●
whether
the preferred stock is convertible or exchangeable and, if so, the
securities or rights into which the preferred stock is convertible
or exchangeable, and the terms and conditions of conversion or
exchange;
●
whether
interests in the preferred stock will be represented by depositary
shares;
●
a
discussion of any material or special United States federal income
tax considerations applicable to the preferred stock;
●
the
relative ranking and preferences of the preferred stock as to
dividend rights and rights upon the liquidation, dissolution or
winding up of our affairs;
●
any
limitations on issuance of any class or series of preferred stock
ranking senior to or on a parity with the class or series of
preferred stock as to dividend rights and rights upon liquidation,
dissolution or winding up of our affairs;
●
the
place or places where dividends and other payments on the preferred
stock will be payable; and
●
any
additional voting, dividend, liquidation, redemption and other
rights, preferences, privileges, limitations and
restrictions.
All
shares of preferred stock offered will be fully paid and
non-assessable. Any shares of preferred stock that are issued will
have priority over the common stock with respect to dividend or
liquidation rights or both.
The
transfer agent for each series of preferred stock will be described
in the applicable prospectus supplement.
DESCRIPTION
OF DEBT SECURITIES
The
following is a general description of the debt securities that we
may offer from time to time. The particular terms of the debt
securities offered by us and the extent, if any, to which the
general provisions described below may apply to those securities
will be described in the applicable prospectus supplement. As you
read this section, please remember that the specific terms of a
debt security as described in the applicable prospectus supplement
will supplement and may modify or replace the general terms
described in this section. If there are any differences between the
applicable prospectus supplement and this prospectus, the
applicable prospectus supplement will control. As a result, the
statements we make in this section may not apply to the debt
securities you purchase.
Senior Notes
On
June 18, 2014, the Company completed the sale of unsecured senior
notes (the “Senior Notes”) in a public offering for an
aggregate principal amount of $72,000,000, and sold an additional
tranche of $5,390,000 of Senior Notes in April 2017. The Senior
Notes were issued in denominations of $25 and integral multiples of
$25 in excess thereof and pursuant to the First Supplemental
Indenture (the “First Supplemental Indenture”) dated as
of June 18, 2014 by and between the Company and Wells Fargo Bank
(“Wells Fargo”). The First Supplemental Indenture
supplements the Indenture entered into by and between the Company
and Wells Fargo, as trustee (the “Trustee”) dated as of
June 18, 2014 (the “Base Indenture” and, together with
the First Supplemental Indenture, the “Indenture”). The
Senior Notes bear interest at the rate of 8.125% per annum, mature
on July 31, 2021 and are not subject to any sinking fund. Interest
on the Senior Notes is payable quarterly in arrears on January 31,
April 30, July 31 and October 31, commencing on July 31,
2014.
The
Senior Notes rank equally in right of payment with all of the
Company’s existing and future unsecured senior debt and
senior in right of payment to all of its existing and future
subordinated debt. The Senior Notes are effectively subordinated to
any of the Company’s existing and future secured debt, to the
extent of the value of the assets securing such debt. The Senior
Notes are structurally subordinated to all existing and future
liabilities of the Company’s subsidiaries and are not
guaranteed by any of the Company’s subsidiaries.
Prior to July 31, 2017, the Company could, at its
option, redeem the Senior Notes in whole or in part upon the
payment of 100% of the principal amount of the Senior Notes being
redeemed plus any additional amount required by the Indenture. In
addition, the Company could from time to time redeem up to 35% of
the aggregate outstanding principal amount of the Senior Notes
before July 31, 2017 with the net cash proceeds from certain equity
offerings at a redemption price of 108.125% of the principal amount
plus accrued and unpaid interest. If the Company sells certain of
its assets or experience specific kinds of changes in control, as
defined, it must offer to purchase the Senior Notes. The Company
may, at its option, at any time and from time to time, on or after
July 31, 2017, redeem the Senior Notes in whole or in part. The
Senior Notes will be redeemable at a redemption price initially
equal to 106.094% of the principal amount of the Senior Notes (and
which declines on each year on July 31
st
) plus accrued and unpaid interest to the date of
redemption. On and after any redemption date, interest will cease
to accrue on the redeemed Senior Notes.
The
Indenture contains covenants which, among other things, limit the
Company’s ability to make certain payments, to pay dividends
and to incur additional indebtedness if the incurrence of such
indebtedness would cause the company’s consolidated fixed
charge coverage ratio, as defined in the Indenture, to be below 2.0
to 1.0.
The
Senior Notes are listed on the NASDAQ Stock Market under the symbol
“GFNSL.”
Debt Securities in this Offering
Our
debt securities, consisting of notes, debentures and other
evidences of indebtedness, may be issued from time to time in one
or more series pursuant to, in the case of senior debt securities,
the second supplemental indenture to be entered into between us and
a trustee to be named therein, and in the case of subordinated debt
securities, a subordinated indenture to be entered into between us
and a trustee to be named therein.
Because
the following is only a summary of selected provisions of the
indentures and the debt securities, it does not contain all
information that may be important to you. This summary is not
complete and is qualified in its entirety by reference to the Base
Indenture and any supplemental indentures thereto or
officer’s certificate or board resolution related thereto. We
urge you to read the Base Indenture, the First Supplemental
Indenture and any supplemental indenture for the debt securities
offered in a prospectus supplement (“Offering
Indenture”) because the foregoing indentures, and not this
description, define the rights of the holders of the debt
securities. If senior debt securities are offered, the Offering
Indenture will be substantially in the form of the second
supplemental indenture filed as an exhibit to this registration
statement of which this prospectus is a part. The terms of our debt
securities will include those set forth in the Indenture and any
Offering Indenture and those made a part of the indentures by the
Trust Indenture Act of 1939, as amended (the “Trust Indenture
Act”).
Unless
we inform you otherwise in the prospectus supplement, “Senior
Debt” will mean all of our indebtedness, including
guarantees, unless the indebtedness states that it is not senior to
the subordinated debt securities.
General
Neither
the Indenture nor any Offering Indenture will limit the amount of
debt securities that may be issued under those indentures, and none
of the indentures limit the amount of other unsecured debt or
securities that we may issue. We may issue debt securities under
the Indenture or an Offering Indenture from time to time in one or
more series.
We are
not obligated to issue all debt securities of one series at the
same time and, unless otherwise provided in the prospectus
supplement, we may reopen a series, without the consent of the
holders of the debt securities of that series, for the issuance of
additional debt securities of that series. Additional debt
securities of a particular series will have the same terms and
conditions as outstanding debt securities of such series, except
that the additional debt securities may have a different date of
original issuance, offering price and first interest payment date,
and will be consolidated with, and form a single series with, such
outstanding debt securities.
When
we refer to “debt securities” or a “series of
debt securities,” we mean, respectively, debt securities or a
series of debt securities issued under the applicable indenture.
When we refer to a prospectus supplement, we mean the prospectus
supplement describing the specific terms of the applicable debt
security. The terms used in a prospectus supplement will have the
meanings described in this prospectus, unless otherwise
specified.
The
senior debt securities will constitute our unsecured and
unsubordinated indebtedness and will rank equally in right of
payment with all of our other unsecured and unsubordinated
indebtedness and senior in right of payment to all of our
subordinated indebtedness outstanding from time to time. The debt
securities will be effectively subordinated to, and thus have a
junior position to, any secured indebtedness we may have with
respect to the assets securing that indebtedness. The subordinated
debt securities will constitute our unsecured and subordinated
obligations and will rank junior to all of our senior indebtedness
and may rank equally with or senior to other subordinated
indebtedness we may issue from time to time.
The
debt securities will effectively rank junior to all liabilities of
our subsidiaries. Accordingly, any debt securities will be
effectively subordinated to creditors, including trade creditors
and preferred stockholders, if any, of such
subsidiaries.
Unless
we inform you otherwise in the prospectus supplement, no Offering
Indenture will contain any covenants or other provisions designed
to protect holders of the debt securities in the event we
participate in a highly leveraged transaction. In addition, unless
we inform you otherwise in the prospectus supplement, the Offering
Indenture will not contain provisions that give holders of the debt
securities the right to require us to repurchase their securities
in the event of a decline in our credit rating for any reason,
including as a result of a takeover, recapitalization or similar
restructuring or otherwise.
The
prospectus supplement relating to any series of debt securities
being offered will include specific terms relating to the offering.
These terms will include some or all of the following:
●
whether the debt
securities will be senior or subordinated debt
securities;
●
the title of the
debt securities;
●
the total principal
amount of the debt securities;
●
whether we will
issue the debt securities in individual certificates to each holder
or in the form of temporary or permanent global securities held by
a depositary on behalf of holders and the name of the depositary
for the debt securities, if other than The Depository Trust Company
(“DTC”), and any circumstances under which the holder
may request securities in non-global form, if we choose not to
issue the debt securities in book-entry form only;
●
the date or dates
on which the principal of and any premium on the debt securities
will be payable;
●
any interest rate,
the date from which any such interest will accrue, the interest
payment dates on which any such interest will be payable and the
record dates for any such interest payments;
●
whether and under
what circumstances we will pay any additional amounts with respect
to the debt securities;
●
the place or places
where payments on the debt securities will be payable;
●
any provisions for
optional redemption or early repayment;
●
any sinking fund or
other provisions that would obligate us to redeem, purchase or
repay the debt securities;
●
the denominations
in which we will issue the debt securities if other than $2,000 and
integral multiples of $1,000 in excess thereof;
●
whether payments on
the debt securities will be payable in foreign currency or another
form and whether payments will be payable by reference to any index
or formula;
●
the portion of the
principal amount of debt securities that will be payable if the
maturity is accelerated, if other than the entire principal
amount;
●
whether the
provisions described below under the heading
“—Defeasance and Discharge” apply to the debt
securities;
●
any changes or
additions to the events of default or covenants described in this
prospectus;
●
any restrictions or
other provisions relating to the transfer or exchange of debt
securities;
●
any terms for the
conversion or exchange of the debt securities for other
securities;
●
with respect to the
indenture that governs the offering of the subordinated debt
securities, any changes to the subordination provisions for the
subordinated debt securities; and
●
any other terms of
the debt securities, whether in addition to, or by modification or
deletion of, the terms described herein.
We
may sell the debt securities at a discount, which may be
substantial, below their stated principal amount.
These
debt securities may bear no interest or interest at a rate that at
the time of issuance is below market rates. If we sell these debt
securities, we will describe in the prospectus supplement any
material United States (“U.S.”) federal income tax
consequences and other special considerations.
If
we sell any of the debt securities for any foreign currency or if
payments on the debt securities are payable in any foreign
currency, we will describe in the prospectus supplement the
restrictions, elections, tax consequences, specific terms and other
information relating to those debt securities and the foreign
currency.
Events of Default
Unless
we inform you otherwise in the prospectus supplement, the following
are events of default with respect to a series of debt
securities:
●
our failure to pay
any installment of interest on or any additional amounts with
respect to any debt security of that series when due and such
default continues for 30 days or longer, whether or not, in the
case of subordinated debt securities, such payment is prohibited by
the subordination provisions of the indenture governing the
subordinated debt securities;
●
our failure to pay
the principal of or any premium on any debt security of that series
when due, whether or not, in the case of subordinated debt
securities, such payment is prohibited by the subordination
provisions of the indenture governing the subordinated debt
securities;
●
our failure to
comply with any covenant or agreement in that series of debt
securities or the applicable indenture for 60 days after written
notice by the trustee or by the holders of at least 25% in
principal amount of the outstanding debt securities of that series
issued under that indenture (except for our failure to comply with
the covenant prohibiting certain consolidations, mergers and sales
of assets);
●
the failure to pay
at final maturity (giving effect to any applicable grace periods
and any extensions thereof) the stated principal amount of any of
our indebtedness, or the acceleration of the final stated maturity
of any such indebtedness (which acceleration is not rescinded,
annulled or otherwise cured within 20 days of receipt of notice of
any such acceleration) if the aggregate principal amount of such
indebtedness, together with the principal amount of any other such
indebtedness in default for failure to pay principal at final
stated maturity or which has been accelerated (in each case with
respect to which the 20-day period described above has elapsed),
aggregates $10.0 million or more at any time;
●
one or more
judgments in an aggregate amount in excess of $10.0 million remain
undischarged, unpaid or unstayed for a period of 60 days after the
judgment or judgments become final and non-appealable;
●
specified events
involving bankruptcy, insolvency or reorganization of the Company
or any subsidiary;
●
our failure to
deposit any sinking fund payment, when due, in respect of any debt
security of that series, whether or not, in the case of
subordinated debt securities, such deposit is prohibited by the
subordination provisions of the indenture governing the
subordinated debt securities; and
●
any other event of
default provided for in that series of debt
securities.
We
may change, eliminate or add to the events of default with respect
to any particular series or any particular debt security or debt
securities within a series, as indicated in the applicable
prospectus supplement. A default under one series of debt
securities will not necessarily be a default under any other
series.
If
an event of default relating to certain events of our bankruptcy or
insolvency occurs, all then outstanding debt securities of that
series will become due and payable immediately without further
action or notice. If any other event of default for any series of
debt securities occurs and is continuing, the trustee may and, at
the written direction of the holders of at least 25% in aggregate
principal amount of the outstanding debt securities of that series
shall, declare all of those debt securities to be due and payable
immediately by notice in writing to us and, in case of a notice by
holders, also to the trustee specifying the respective event of
default and that it is a notice of acceleration.
Subject
to certain limitations, holders of a majority in aggregate
principal amount of the outstanding debt securities of any series
may direct the trustee in its exercise of any trust or power with
respect to that series. The trustee may withhold from holders of
the debt securities of any series notice of any continuing default
or event of default for such series if it determines that
withholding notice is in their interest, except a default or event
of default relating to the payment of principal, interest, premium
or additional amounts, if any.
Subject
to the provisions of the applicable indenture relating to the
duties of the trustee, in case an event of default for any series
occurs and is continuing, the trustee will be under no obligation
to exercise any of the rights or powers under the indenture at the
request or direction of any holders of debt securities of that
series unless such holders have offered to the trustee indemnity or
security satisfactory to it against any loss, liability or expense.
Except to enforce the right to receive payment of principal,
premium or additional amounts, if any, or interest when due, no
holder of debt securities of a series may pursue any remedy with
respect to the indenture or the debt securities
unless:
●
such holder has
previously given the trustee notice that an event of default is
continuing with respect to that series;
●
holders of at least
25% in aggregate principal amount of the debt securities of that
series have requested the trustee to pursue the
remedy;
●
such holders have
offered the trustee security or indemnity satisfactory to it
against any loss, liability or expense;
●
the trustee has not
complied with such request within 60 days after the receipt of the
request and the offer of security or indemnity; and
●
holders of a
majority in aggregate principal amount of the debt securities of
that series have not given the trustee a direction inconsistent
with such request within such 60-day period.
Holders
of a debt security are entitled at any time, however, to bring a
lawsuit for the payment of money due on a debt security on or after
its stated maturity (or, if a debt security is redeemable, on or
after its redemption date).
The
holders of a majority in aggregate principal amount of the debt
securities of any series by notice to the trustee may, on behalf of
the holders of all of the debt securities of that series, rescind
an acceleration or waive any existing default or event of default
for such series and its consequences under the indenture except a
continuing default or event of default in the payment of interest,
additional amounts or premium on, or the principal of, the debt
securities.
With
respect to subordinated debt securities, all the remedies available
upon the occurrence of an event of default under the subordinated
debt indenture will be subject to the restrictions on the
subordinated debt securities described below under
“—Subordination.”
Book-entry
and other indirect owners should consult their banks or brokers for
information on how to give notice or direction to or make a request
for the trustee and how to declare or cancel an acceleration of the
maturity.
We
are required to deliver to the trustee annually a statement
regarding compliance with the indenture. Upon our becoming aware of
any default or event of default, we are required within five
business days to deliver to the trustee a statement specifying such
default or event of default.
Subordination
Under
the Offering Indenture, payment of the principal of and any premium
and interest on the subordinated debt securities will generally be
subordinated and junior in right of payment to the prior payment in
full of all Senior Debt. Unless we inform you otherwise in the
prospectus supplement, we may not make any payment of principal of
or any premium or interest on the subordinated debt securities
if:
●
we fail to pay the
principal, interest or premium on any Senior Debt when due;
or
●
any other event of
default (a “non-payment default”) occurs with respect
to any Senior Debt that we have designated, if the non-payment
default allows the holders of that Senior Debt to accelerate the
maturity of the Senior Debt they hold.
Unless
we inform you otherwise in the prospectus supplement, a non-payment
default will prevent us from paying the subordinated debt
securities only for up to 179 days after holders of the designated
Senior Debt give the trustee for the subordinated debt securities
notice of the non-payment default. The subordination will not
affect our obligation, which will be absolute and unconditional, to
pay, when due, the principal of and any premium and interest on the
subordinated debt securities. In addition, the subordination will
not prevent the occurrence of any default under the indenture
governing the subordinated debt securities. Unless we inform you
otherwise in the prospectus supplement, the indenture governing the
subordinated debt securities will not limit the amount of Senior
Debt that we may incur. As a result of the subordination of the
subordinated debt securities, if we become insolvent, holders of
subordinated debt securities may receive less on a proportionate
basis than other creditors.
Modification and Waiver
Except
as provided in the next four succeeding paragraphs, each indenture
and the debt securities issued under each indenture may be amended
or supplemented with the consent of the holders of at least a
majority in aggregate principal amount of the then outstanding debt
securities of each series affected by the change, voting as
separate classes for this purpose, and any existing default or
event of default or compliance with any provision of the indenture
or the debt securities may be waived with the consent of the
holders of a majority in aggregate principal amount of the then
outstanding debt securities of each series affected by the waiver,
voting as separate classes for this purpose, in each case, except
as may otherwise be provided pursuant to such indenture for all or
any particular debt securities of any series. Without the consent
of each holder of debt securities of the series affected, an
amendment, supplement or waiver may not (with respect to any debt
securities of such series held by a non-consenting
holder):
●
reduce the
principal amount of debt securities whose holders must consent to
an amendment, supplement or waiver;
●
reduce the
principal of any debt security or change its stated maturity, or
alter the provisions relating to the redemption or repurchase of
any debt securities;
●
reduce the rate of
or change the time for payment of interest on any debt
security;
●
waive a default or
event of default in the payment of principal of, or interest or
premium, or any additional amounts, if any, on, the debt securities
(except a rescission of acceleration of the debt securities by the
holders of at least a majority in aggregate principal amount of the
then outstanding debt securities of that series and a waiver of the
payment default that resulted from such acceleration);
●
make payments on
any debt security payable in currency other than as originally
stated in the debt security;
●
make any change in
the provisions of the indenture relating to waivers of past
defaults or the rights of holders of debt securities to receive
payments of principal of, or interest or premium, if any, on the
debt securities;
●
waive a redemption
payment with respect to any debt securities;
●
impair a
holder’s right to sue for payment of any amount due on its
debt security;
●
make any change in
the preceding amendment, supplement and waiver provisions;
or
●
with respect to the
indenture governing the subordinated debt securities, modify the
provisions relating to the subordination of any subordinated debt
security in a manner adverse to the holder of that security, in
each case, except as may otherwise be provided pursuant to such
indenture for all or any particular debt securities of any
series.
We
may not amend the indenture governing the subordinated debt
securities to alter the subordination of any outstanding
subordinated debt securities without the written consent of each
holder of Senior Debt then outstanding who would be adversely
affected (or the group or representative thereof authorized or
required to consent thereto pursuant to the instrument creating or
evidencing, or pursuant to which there is outstanding, such Senior
Debt), except as may otherwise be provided pursuant to such
indenture for all or any particular debt securities of any series.
In addition, we may not modify the subordination provisions of the
indenture related to subordinated debt securities in a manner that
would adversely affect the subordinated debt securities of any one
or more series then outstanding in any material respect, without
the consent of the holders of a majority in aggregate principal
amount of each affected series then outstanding, voting as separate
classes, except as may otherwise be provided pursuant to such
indenture for all or any particular debt securities of any
series.
Book-entry
and other indirect owners should consult their banks or brokers for
information on how approval may be granted or denied if we seek to
change an indenture or any debt securities or request a
waiver.
We
and the trustee may supplement or amend each indenture or the debt
securities without notice to or the consent of any holders of debt
securities issued under that indenture in certain circumstances,
including:
●
to cure any
ambiguity, defect or inconsistency;
●
to provide for
uncertificated debt securities in addition to or in place of
certificated debt securities;
●
to establish the
form or terms of debt securities of any series as permitted by the
applicable indenture;
●
to make any change
that would provide any additional rights or benefits to the holders
of debt securities or that does not materially adversely affect the
legal rights under the indenture of any such holder;
●
to comply with
requirements of the SEC in order to maintain the qualification of
the indenture under the Trust Indenture Act;
●
to add additional
events of default with respect to all or any series of debt
securities;
●
to change or
eliminate any of the provisions of the indenture; provided that any
such change or elimination will become effective only when there is
no outstanding debt security of any series created prior to the
execution of such amendment or supplemental indenture that is
adversely affected in any material respect by such change in or
elimination of such provision;
●
to supplement any
provision of the indenture to permit or facilitate the defeasance
and discharge of any series of debt securities so long as any
action does not adversely affect the interest of holders of debt
securities of that or any other series in any material
respect;
●
to secure the debt
securities;
●
to evidence and
provide for the acceptance under the indenture of a successor
trustee, each as permitted under the indenture; or
●
to conform the text
of the indenture or any debt securities to the description thereof
in any prospectus or prospectus supplement of us with respect to
the offer and sale of such debt securities, to the extent that such
provision is inconsistent with a provision of the indenture or the
debt securities, in each case, except as may otherwise be provided
pursuant to such indenture for all or any particular debt
securities of any series, as set forth in an officer’s
certificate.
Defeasance and Discharge
Defeasance
When
we use the term defeasance, we mean discharge from some or all of
our obligations under an indenture. If we deposit with the trustee
under an indenture any combination of money or government
securities sufficient, in the written opinion of an independent
firm of certified public accountants, to make payments on the debt
securities of a series issued under that indenture on the dates
those payments are due, then, at our option, either of the
following will occur:
●
we will be
discharged from our obligations with respect to the debt securities
of that series (“legal defeasance”); or
●
we will no longer
have any obligation to comply with specified restrictive covenants
with respect to the debt securities of that series and other
specified covenants under the applicable indenture, and the related
events of default will no longer apply (“covenant
defeasance”).
If
a series of debt securities is defeased, the holders of the debt
securities of that series will not be entitled to the benefits of
the applicable indenture, except for obligations to register the
transfer or exchange of debt securities, replace stolen, lost or
mutilated debt securities, maintain paying agencies and hold money
for payment in trust. In the case of covenant defeasance, our
obligation to pay principal, premium and interest on the debt
securities will also survive. Unless we inform you otherwise in the
prospectus supplement, we will be required to deliver to the
trustee an opinion of counsel that the deposit and related
defeasance would not cause the holders of the debt securities to
recognize income, gain or loss for federal income tax purposes and
that the holders would be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have
been the case if the deposit and related defeasance had not
occurred. If we elect legal defeasance, that opinion of counsel
must be based upon a ruling from the U.S. Internal Revenue Service
or a change in law to that effect.
Satisfaction and Discharge
An
indenture will be discharged and will cease to be of further effect
with respect to the debt securities of a series issued under that
indenture, except for our obligation to register the transfer of
and exchange debt securities of that series, when:
●
all debt securities
of that series that have been authenticated, except lost, stolen or
destroyed debt securities that have been replaced or paid and debt
securities for whose payment money has been deposited in trust and
thereafter repaid to us, have been delivered to the trustee for
cancellation; or
●
all debt securities
of that series that have not been delivered to the trustee for
cancellation have become due and payable by reason of the mailing
of a notice of redemption or otherwise or will become due and
payable within one year, and we have irrevocably deposited or
caused to be deposited with the trustee as trust funds in trust
solely for the benefit of the holders, cash in U.S. dollars,
non-callable government securities, or a combination of cash in
U.S. dollars and non-callable government securities, in amounts as
will be sufficient, without consideration of any reinvestment of
interest, to pay and discharge the entire indebtedness on the debt
securities of that series not delivered to the trustee for
cancellation for principal, premium and accrued interest to the
date of maturity or redemption;
●
no default or event
of default has occurred and is continuing on the date of the
deposit (other than a default or event of default resulting from
the borrowing of funds to be applied to such deposit) and the
deposit will not result in a breach or violation of, or constitute
a default under, any other instrument to which we or any subsidiary
is a party or by which we or any subsidiary is bound;
and
●
we have delivered
irrevocable instructions to the trustee under the applicable
indenture to apply the deposited money toward the payment of the
debt securities at maturity or on the redemption date, as the case
may be.
In
addition, we must deliver an officers’ certificate and an
opinion of counsel to the trustee stating that all conditions
precedent to satisfaction and discharge have been
satisfied.
Governing Law
New
York law governs the Indenture and will govern the Offering
Indenture and the debt securities, without regard to conflicts of
laws principles thereof.
The Trustee
Wells
Fargo Bank, National Association is the trustee under the Base
Indenture. We have banking relationships with Wells Fargo Bank,
National Association or its affiliates in the ordinary course of
business. The trustee under the Offering Indenture will be named in
the applicable prospectus supplement.
DESCRIPTION OF WARRANTS
We
may issue warrants to purchase our debt or equity securities or
securities of third parties or other rights, including rights to
receive payment in cash or securities based on the value, rate or
price of one or more specified commodities, currencies, securities
or indices, or any combination of the foregoing. Warrants may be
issued independently or together with any other securities and may
be attached to, or separate from, such securities. Each series of
warrants will be issued under a separate warrant agreement to be
entered into between us and a warrant agent. The terms of any
warrants to be issued and a description of the material provisions
of the applicable warrant agreement will be set forth in the
applicable prospectus supplement.
The
applicable prospectus supplement will describe the following terms
of any warrants in respect of which this prospectus is being
delivered:
●
the
title of such warrants;
●
the
aggregate number of such warrants;
●
the
price or prices at which such warrants will be issued;
●
the
currency or currencies in which the price of such warrants will be
payable;
●
the
securities or other rights, including rights to receive payment in
cash or securities based on the value, rate or price of one or more
specified commodities, currencies, securities or indices, or any
combination of the foregoing, purchasable upon exercise of such
warrants;
●
the
price at which and the currency or currencies in which the
securities or other rights purchasable upon exercise of such
warrants may be purchased;
●
the
date on which the right to exercise such warrants shall commence
and the date on which such right shall expire;
●
if
applicable, the minimum or maximum amount of such warrants which
may be exercised at any one time;
●
provision
for changes to or adjustments in the exercise price of such
warrants, if any;
●
if
applicable, the designation and terms of the securities with which
such warrants are issued and the number of such warrants issued
with each such security;
●
if applicable, the
date on and after which such warrants and the related securities
will be separately transferable;
●
the terms of any
rights to redeem or call the warrants;
●
information with
respect to book-entry procedures, if any;
●
if applicable, a
discussion of any material United States Federal income tax
considerations; and
●
any other terms of
such warrants, including terms, procedures and limitations relating
to the exchange and exercise of such warrants.
Unless
otherwise provided in the applicable prospectus supplement, holders
of warrants will not be entitled, by virtue of being such holders,
to vote, consent, receive dividends, receive notice as stockholders
with respect to any meeting of stockholders for the election of our
directors or any other matter, or to exercise any rights whatsoever
as stockholders.
Each
warrant will entitle the holder of the warrant to purchase for cash
at the exercise price provided in the applicable prospectus
supplement the principal amount of debt securities or shares of
preferred stock or shares of common stock being offered. Holders
may exercise warrants at any time up to the close of business on
the expiration date provided in the applicable prospectus
supplement. After the close of business on the expiration date,
unexercised warrants are void.
Holders
may exercise warrants as described in the prospectus supplement
relating to the warrants being offered. Upon receipt of payment and
the warrant certificate properly completed and duly executed at the
corporate trust office of the warrant agent or any other office
indicated in the prospectus supplement, we will, as soon as
practicable, forward the debt securities, shares of preferred stock
or shares of common stock purchasable upon the exercise of the
warrant. If less than all of the warrants represented by the
warrant certificate are exercised, we will issue a new warrant
certificate for the remaining warrants.
FORMS OF SECURITIES
Each debt security and warrant will be represented
either by a certificate issued in definitive form to a particular
investor or by one or more global securities representing the
entire issuance of securities.
Unless the applicable
prospectus supplement provides otherwise, certificated
securities in definitive form and global
securities will be issued in registered form. Definitive securities
name you or your nominee as the owner of the security, and in order
to transfer or exchange these securities or to receive payments
other than interest or other interim payments, you or your nominee
must physically deliver the securities to the trustee, registrar,
paying agent or other agent, as applicable. Global securities name
a depositary or its nominee as the owner of the debt securities or
warrants represented by these global securities. The depositary
maintains a computerized system that will reflect each
investor’s beneficial ownership of the securities through an
account maintained by the investor with its broker/dealer, bank,
trust company or other representative, as we explain more fully
below.
Global Securities
Registered Global
Securities
. We may issue the
registered debt securities and warrants in the form of one or more
fully registered global securities that will be deposited with a
depositary or its nominee identified in the applicable prospectus
supplement and registered in the name of that depositary or
nominee. In those cases, one or more registered global securities
will be issued in a denomination or aggregate denominations equal
to the portion of the aggregate principal or face amount of the
securities to be represented by registered global securities.
Unless and until it is exchanged in whole for securities in
definitive registered form, a registered global security may not be
transferred except as a whole by and among the depositary for the
registered global security, the nominees of the depositary or any
successors of the depositary or those nominees.
If
not described below, any specific terms of the depositary
arrangement with respect to any securities to be represented by a
registered global security will be described in the prospectus
supplement relating to those securities. We anticipate that the
following provisions will apply to all depositary
arrangements.
Ownership
of beneficial interests in a registered global security will be
limited to persons, called participants, that have accounts with
the depositary or persons that may hold interests through
participants. Upon the issuance of a registered global security,
the depositary will credit, on its book-entry registration and
transfer system, the participants’ accounts with the
respective principal or face amounts of the securities beneficially
owned by the participants. Any dealers, underwriters or agents
participating in the distribution of the securities will designate
the accounts to be credited. Ownership of beneficial interests in a
registered global security will be shown on, and the transfer of
ownership interests will be effected only through, records
maintained by the depositary, with respect to interests of
participants, and on the records of participants, with respect to
interests of persons holding through participants. The laws of some
states may require that some purchasers of securities take physical
delivery of these securities in definitive form. These laws may
impair your ability to own, transfer or pledge beneficial interests
in registered global securities.
So
long as the depositary, or its nominee, is the registered owner of
a registered global security, that depositary or its nominee, as
the case may be, will be considered the sole owner or holder of the
securities represented by the registered global security for all
purposes under the applicable indenture or warrant agreement.
Except as described below, owners of beneficial interests in a
registered global security will not be entitled to have the
securities represented by the registered global security registered
in their names, will not receive or be entitled to receive physical
delivery of the securities in definitive form and will not be
considered the owners or holders of the securities under the
applicable indenture or warrant agreement. Accordingly, each person
owning a beneficial interest in a registered global security must
rely on the procedures of the depositary for that registered global
security and, if that person is not a participant, on the
procedures of the participant through which the person owns its
interest, to exercise any rights of a holder under the applicable
indenture or warrant agreement. We understand that under existing
industry practices, if we request any action of holders or if an
owner of a beneficial interest in a registered global security
desires to give or take any action that a holder is entitled to
give or take under the applicable indenture or warrant agreement,
the depositary for the registered global security would authorize
the participants holding the relevant beneficial interests to give
or take that action, and the participants would authorize
beneficial owners owning through them to give or take that action
or would otherwise act upon the instructions of beneficial owners
holding through them.
Principal,
premium, if any, and interest payments on debt securities and any
payments to holders with respect to warrants represented by a
registered global security registered in the name of a depositary
or its nominee will be made to the depositary or its nominee, as
the case may be, as the registered owner of the registered global
security. None of General Finance Corporation, the trustees, the
warrant agents or any other agent of General Finance Corporation,
agent of the trustees or agent of the warrant agents will have any
responsibility or liability for any aspect of the records relating
to payments made on account of beneficial ownership interests in
the registered global security or for maintaining, supervising or
reviewing any records relating to those beneficial ownership
interests.
We
expect that the depositary for any of the securities represented by
a registered global security, upon receipt of any payment of
principal, premium, interest or other distribution of underlying
securities or other property to holders on that registered global
security, will immediately credit participants’ accounts in
amounts proportionate to their respective beneficial interests in
that registered global security as shown on the records of the
depositary. We also expect that payments by participants to owners
of beneficial interests in a registered global security held
through participants will be governed by standing customer
instructions and customary practices, as is now the case with the
securities held for the accounts of customers in bearer form or
registered in “street name,” and will be the
responsibility of those participants.
If the depositary for any of these securities represented by a
registered global security is at any time unwilling or unable to
continue as depositary or ceases to be a clearing agency registered
under the Securities Exchange Act of 1934,
as amended,
and a successor depositary registered
as a clearing agency under the Securities Exchange Act of
1934, as amended,
is not appointed by
us within 90 days, we will issue securities in definitive form in
exchange for the registered global security that had been held by
the depositary. Any securities issued in definitive form in
exchange for a registered global security will be registered in the
name or names that the depositary gives to the relevant trustee or
warrant agent or other relevant agent of ours or theirs. It is
expected that the depositary’s instructions will be based
upon directions received by the depositary from participants with
respect to ownership of beneficial interests in the registered
global security that had been held by the
depositary.
PLAN OF DISTRIBUTION
General
We
may sell the securities offered through this prospectus in any one
or more of the following ways:
●
through
underwriters or dealers;
●
directly
to purchasers;
●
in
“at the market offerings” to or through a market maker
or into an existing trading market, or a securities exchange or
otherwise;
●
in
transactions not involving market makers or
established trading markets, including direct sales or privately
negotiated transactions; or
●
through
a combination of any of these methods of sale.
In
addition, we may enter into option or other types of transactions
that require us or them to deliver securities to a broker-dealer,
who will then resell or transfer the securities under this
prospectus. We may enter into hedging transactions with respect to
our securities. For example, we may:
●
enter
into transactions with a broker-dealer or affiliate thereof in
connection with which such broker-dealer or affiliate will engage
in short sales of the securities pursuant to this prospectus, in
which case such broker-dealer or affiliate may use securities
received from us to close out its short positions;
●
sell
securities short and redeliver such securities to close out our
short positions;
●
enter
into option or other types of transactions that require us to
deliver securities to a broker-dealer or an affiliate thereof, who
will then resell or transfer the securities under this prospectus;
or
●
loan
or pledge the securities to a broker-dealer or an affiliate
thereof, who may sell the loaned securities or, in an event of
default in the case of a pledge, sell the pledged securities
pursuant to this prospectus.
The
securities described in this prospectus may be distributed at a
fixed price or prices, which may be changed, market prices
prevailing at the time of sale, prices related to the prevailing
market prices, or negotiated prices. Any of the prices may
represent a discount from the prevailing market
prices.
At
the time that any particular offering of securities is made, to the
extent required by the Securities Act, a prospectus supplement will
be distributed setting forth the terms of the offering, including
the aggregate amount of securities being offered; the purchase
price or initial public offering price of the securities; the names
of any underwriters, dealers or agents; the net proceeds to us from
the sale of the securities; any delayed delivery arrangements; any
underwriting discounts, commissions and other items constituting
compensation from us; any discounts, commissions or concessions
allowed or re-allowed or paid to dealers, and any commissions paid
to agents.
Market Making and Stabilization
There
is no established trading market for any security other than our
common stock, which is listed on the
NASDAQ Global Market under the symbol
“
GFN,
” our 9%
Series C Cumulative Redeemable Perpetual Preferred Stock which is
listed on the NASDAQ Global Market under the symbol
“GFNCP” and our Senior Notes which are listed on the
NASDAQ Global Market under the symbol “GFNSL.” The
securities described in this prospectus may or may not be listed on
a national securities exchange or traded in the over-the-counter
market, as set forth in the applicable prospectus
supplement.
If
the securities are traded after their initial issuance, they may
trade at a discount from their initial offering price, depending
upon prevailing interest rates, the market for similar securities
and other factors. While it is possible that an underwriter could
inform us that it intends to make a market in the securities, such
underwriter would not be obligated to do so, and any such market
making could be discontinued at any time without notice. Therefore,
we cannot assure you as to whether an active trading market will
develop for the securities.
If
a prospectus supplement so indicates, underwriters, brokers or
dealers, in compliance with applicable law, may engage in
transactions that stabilize, maintain or otherwise affect the
market price of the securities, which may be higher than the price
that might otherwise prevail in the open market.
Underwriters and Agents
If
underwriters are used in the sale, the underwriters will acquire
the securities for their own account for resale to the public,
either on a firm commitment basis or a best efforts basis. The
underwriters may resell the securities from time-to-time in one or
more transactions, including negotiated transactions, at a fixed
public offering price or at varying prices determined at the time
of sale. Underwriters may offer securities to the public either
through underwriting syndicates represented by one or more managing
underwriters or directly by one or more firms acting as
underwriters. Unless we inform you otherwise in the prospectus
supplement, the obligations of the underwriters to purchase the
securities will be subject to certain conditions. The underwriters
may change from time-to-time any initial public offering price and
any discounts or concessions allowed or re-allowed or paid to
dealers.
We
may also sell the securities through agents designated from
time-to-time. In the prospectus supplement, we will name any agent
involved in the offer or sale of the offered securities, and we
will describe any commissions payable to the agent. Unless we
inform you otherwise in the prospectus supplement, any agent will
agree to use its reasonable best efforts to solicit purchases for
the period of its appointment.
Dealers
If
dealers are used in the sale of securities, we will sell the
securities to them as principals. The dealers may then resell those
securities to the public at varying prices determined by the
dealers at the time of resale. We will include in the prospectus
supplement the names of the dealers and the terms of the
transaction.
Direct Sales
Securities
may also be sold directly by us. In this case, no underwriters or
agents would be involved.
Institutional Purchasers
We
may sell the securities directly to institutional investors or
others who may be deemed to be underwriters within the meaning of
the Securities Act with respect to any sale of those securities. We
will describe the terms of any such sales in the prospectus
supplement.
Subscription Offerings
We
may also make direct sales through subscription rights distributed
to our existing stockholders on a pro rata basis, which may or may
not be transferable. In any distribution of subscription rights to
our stockholders, if all of the underlying securities are not
subscribed for, we may then sell the unsubscribed securities
directly to third parties or may engage the services of one or more
underwriters, dealers or agents, including standby underwriters, to
sell the unsubscribed securities to third parties.
Underwriting Compensation
We
will bear costs relating to all of the securities being registered
under this registration statement of which this prospectus forms a
part.
Any
broker-dealers or other persons acting on our behalf that
participate with us in the distribution of the securities may be
deemed to be underwriters and any commissions received or profit
realized by them on the resale of the securities may be deemed to
be underwriting discounts and commissions under the Securities Act.
As of the date of this prospectus, we are not a party to any
agreement, arrangement or understanding between any broker or
dealer and us with respect to the offer or sale of the securities
pursuant to this prospectus.
Pursuant
to a requirement by the Financial Industry Regulatory Authority, or
FINRA, the maximum commission or discount to be received by any
FINRA member or independent broker/dealer may not be greater than
eight percent (8%) of the gross proceeds received by us for the
sale of any securities being registered pursuant to SEC Rule 415
under the Securities Act. If more than 5% of the net proceeds of
any offering of securities made under this prospectus will be
received by a FINRA member participating in the offering or its
affiliates or associated persons of such FINRA member, the offering
will be conducted in accordance with FINRA Conduct Rule
5110(h).
Indemnification; Other Relationships
We
may have agreements with agents, underwriters, dealers and
remarketing firms to indemnify them against certain civil
liabilities, including liabilities under the Securities Act.
Agents, underwriters, dealers and remarketing firms, and their
affiliates, may engage in transactions with, or perform services
for, us in the ordinary course of business. This includes
commercial banking and investment banking
transactions.
LEGAL MATTERS
The
validity of the securities offered in this prospectus is being
passed upon for us by Morrison & Foerster LLP, San Francisco,
California.
EXPERTS
The consolidated financial statements incorporated
in this
prospectus
by reference
to our Annual Report on Form 10-K for the year ended June 30, 2018
have been so incorporated in reliance on the report of Crowe LLP,
independent registered public accounting firm, given on the
authority of said firm as experts in auditing and
accounting.
WHERE YOU CAN FIND ADDITIONAL INFORMATION
Our Internet website is located at
http://www.generalfinance.com.
Information contained on, or
that can be accessed through, our web site is not incorporated by
reference into this prospectus, and you should not consider
information contained on our web site as part of this
prospectus.
We are required to file Annual Reports on Form
10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K,
proxy statements and other information with the SEC. The public may
read and copy any materials we file with the SEC at the SEC’s
Public Reference Room at 100 F Street, N.E., Washington, D.C.
20549. The public may obtain information on the operation of the
Public Reference Room by calling the SEC at 1-800-SEC-0330. The SEC
also maintains an Internet website at
http://www.sec.gov
from which interested persons can
electronically access our SEC filings, including this registration
statement and the exhibits and schedules
hereto
.
We
have filed with the SEC a registration statement on Form S-3, which
includes exhibits, schedules and amendments, under the Securities
Act, with respect to this offering of our securities. Although this
prospectus, which forms a part of the registration statement,
contains all material information included in the registration
statement, parts of the registration statement have been omitted as
permitted by rules and regulations of the SEC. We refer you to the
registration statement and its exhibits for further information
about us, our securities and this offering. The registration
statement and its exhibits, as well as our other reports filed with
the SEC, can be inspected and copied at the SEC’s public
reference room at 100 F Street, N.E., Washington, D.C. 20549-1004.
The public may obtain information about the operation of the public
reference room by calling the SEC at 1-800-SEC-0330. In addition,
the SEC maintains a web site at http://www.sec.gov, which contains
the Form S-3 and other reports, proxy and information statements
and information regarding issuers that file electronically with the
SEC.
No dealer, salesperson or any
other person is authorized to give any information or make any
representations in connection with this offering other than those
contained in this prospectus and, if given or made, the information
or representations must not be relied upon as having been
authorized by us. This prospectus does not constitute an offer to
sell or a solicitation of an offer to buy any security other than
the securities offered by this prospectus, or an offer to sell or a
solicitation of an offer to buy any securities by anyone in any
jurisdiction in which the offer or solicitation is not authorized
or is unlawful.
INCORPORATION BY REFERENCE
The Company is allowed
to
“
incorporate by
reference
”
the information it
files with the SEC, which means that we can disclose important
information to you by referring you to those documents. The
information incorporated by reference is an important part of this
prospectus, and information that we file subsequently with the SEC
will automatically update and supersede the information included
and/or incorporated by reference in this prospectus. We incorporate
by reference the
following
documents:
●
our Annual Report on Form 10-K for the year ended
June 30, 2018
filed with the SEC on September 7,
2018
;
●
our Current Reports on Form 8-K filed
with
the SEC
on
July 13, 2018,
August 10, 2018, August 16, 2010, September 5, 2018 (except with
respect to
information furnished under
Item 2.02
) and September 10, 2018;
●
the description of
our common stock contained in our Registration Statement on Form
8-A/A filed with the SEC on September 29, 2008 (File No.
001-32845), pursuant to Section 12(b) of the Exchange Act,
including any amendment or report filed for the purpose of updating
such description;
●
the description of
our 9.00% Series C Cumulative Redeemable Perpetual Preferred Stock,
par value $0.0001 per share, contained in our Registration
Statement on Form 8-A/A filed with the SEC on May 15, 2013 (File
No. 001-32845), pursuant to Section 12(b) of the Exchange Act,
including any amendment or report filed for the purpose of updating
such description; and
●
the description of
our 8.125% Senior Notes due 2021 contained in our Registration
Statement on Form 8-A filed with the SEC on June 13, 2014 (File No.
001-32845), pursuant to Section 12(b) of the Exchange Act,
including any amendment or report filed for the purpose of updating
such description.
Any
future filings we make with the SEC under Sections
13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934, as amended, during the period
after the date of the initial registration statement and prior to
effectiveness of the registration statement will be deemed
incorporated by reference. In addition, any
future filings
we make with the SEC under Sections
13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934, as amended, filed after the date
of the prospectus and prior to the termination of the offering are
deemed incorporated herein by reference.
Notwithstanding
the foregoing, information furnished under Items 2.02 and 7.01 of
any Current Report on Form 8-K, including the related exhibits
under Item 9.01, is not incorporated by reference in this
prospectus.
You
may obtain copies, without charge, of documents incorporated by
reference in this prospectus, by requesting them in writing or
orally. To receive any such copy, call or write or send us an
email:
General Finance Corporation
39 East Union Street
Pasadena, California 91103
Attention: Christopher A. Wilson
(626) 204-6308
notices@generalfinance.com
Exhibits to the filings will not be sent, unless
those exhibits have been specifically incorporated by reference in
this prospectus. General information about us, including our annual
reports on Form 10-K, quarterly reports on Form 10-Q and current
reports on Form 8-K, as well as any amendments and exhibits to
those reports, are available free of charge through our website
at
http://www.generalfinance.com/investor.html
as
soon as reasonably practicable after we file them with, or furnish
them to, the SEC.
Information contained on , or that can be
accessed through, our web site is not incorporated by reference
into this prospectus, and you should not consider information
contained on our web site as part of this prospectus.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
|
|
|
|
Item 14.
|
Other Expenses of Issuance and Distribution.
|
The
estimated expenses payable by us in connection with the offering
described in this registration statement (other than the
underwriting discount and commissions) will be as
follows:
|
SEC
registration fee
|
$
31,125
|
|
FINRA
filing fee
|
*
|
|
Accounting
fees and expenses
|
*
|
|
Printing
expenses
|
*
|
|
Legal
fees and expenses
|
*
|
|
Trustee
fees
|
*
|
|
Transfer agent
fees
|
|
|
Rating
agency fees
|
*
|
|
Miscellaneous
|
*
|
|
Total
|
$
*
|
*
Estimated fees and expenses are not presently
known
and will vary depending upon the amount of securities
issued in the offering
. The foregoing
sets forth the general categories of fees and expenses (other than
underwriting discounts and commissions) that we anticipate we will
incur in connection with the offering of securities under this
registration statement. An estimate of the aggregate fees and
expenses in connection with the issuance and distribution of the
securities being offered will be included in the applicable
prospectus supplement.
|
Item 15.
|
Indemnification of Directors and Officers.
|
We
are incorporated under the laws of the State of Delaware. Our
amended and restated certificate of incorporation provides that all
directors, officers, employees and agents of the registrant shall
be entitled to be indemnified by us to the fullest extent permitted
by Section 145 of the General Corporation Law of the State of
Delaware (the “DGCL”).
Section
145 of the DGCL provides that a Delaware corporation may indemnify
any persons who are, or are threatened to be made, parties to any
threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other
than an action by or in the right of such corporation), by reason
of the fact that such person was an officer, director, employee or
agent of such corporation, or is or was serving at the request of
such person as an officer, director, employee or agent of another
corporation or enterprise. The indemnity may include expenses
(including attorneys’ fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by such person
in connection with such action, suit or proceeding, provided that
such person acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the
corporation’s best interests and, with respect to any
criminal action or proceeding, had no reasonable cause to believe
that his or her conduct was unlawful. A Delaware corporation may
indemnify any persons who are, or are threatened to be made, a
party to any threatened, pending or completed action or suit by or
in the right of the corporation by reason of the fact that such
person was a director, officer, employee or agent of such
corporation, or is or was serving at the request of such
corporation as a director, officer, employee or agent of another
corporation or enterprise. The indemnity may include expenses
(including attorneys’ fees) actually and reasonably incurred
by such person in connection with the defense or settlement of such
action or suit provided such person acted in good faith and in a
manner he or she reasonably believed to be in or not opposed to the
corporation’s best interests except that no indemnification
is permitted without judicial approval if the officer or director
is adjudged to be liable to the corporation. Where an officer or
director is successful on the merits or otherwise in the defense of
any action referred to above, the corporation must indemnify him or
her against the expenses that such officer or director has actually
and reasonably incurred.
Our
amended and restated certificate of incorporation provides that
expenses incurred by any officer or director in defending any such
action, suit or proceeding in advance of its final disposition
shall be paid by us upon delivery to us of an undertaking, by or on
behalf of such director or officer, to repay all amounts so
advanced if it shall ultimately be determined that such director or
officer is not entitled to be indemnified by us.
Section
174 of the DGCL provides, among other things, that a director who
willfully or negligently approves of an unlawful payment of
dividends or an unlawful stock purchase or redemption may be held
liable for such actions. A director who was either absent when the
unlawful actions were approved, or dissented at the time, may avoid
liability by causing his or her dissent to such actions to be
entered in the books containing minutes of the meetings of the
board of directors at the time such action occurred or immediately
after such absent director receives notice of the unlawful
acts.
We
have entered into indemnification agreements with each of our
directors and officers that provide that we will indemnify the
directors and officers to the fullest extent permitted by
law.
Insofar
as indemnification for liabilities arising under the Securities Act
may be permitted to our directors, officers, and controlling
persons pursuant to the foregoing provisions or otherwise, we have
been advised that in the opinion of the SEC such indemnification is
against public policy as expressed in the Securities Act and is,
therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment of
expenses incurred or paid by a director, officer or controlling
person in a successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling person in
connection with the securities being registered, we will, unless in
the opinion of its counsel the matter has been settled by
controlling precedent, submit to the court of appropriate
jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will
be governed by the final adjudication of such issue.
|
Item 16.
|
Exhibits and Financial Statement Schedules.
|
(a)
The following exhibits are filed as part of this Registration
Statement:
|
Exhibit No.
|
|
Description
|
|
1.1
|
|
Form of Underwriting Agreement relating to
the
securities issued by the
Registrant
†
|
|
4.1
|
|
Amended and Restated Certificate of Incorporation of the Registrant
as filed with the Delaware Secretary of State on April 4, 2006
(incorporated by reference to Exhibit 3.1 to Amendment No. 7 to the
Registrant
’
s Form S-1
Registration Statement (File No. 333-129830) filed on April 5,
2006)
|
|
4.2
|
|
Amended and Restated Bylaws of the Registrant (incorporated by
reference to Exhibit 3.2 to the
Registrant
’
s Quarterly
Report on Form 10-Q filed on November 14, 2007)
|
|
4.3
|
|
Form of
Common Stock Certificate (incorporated by reference to Exhibit 4.2
to Amendment No. 2 to the Registrant’s Form S-1 Registration
Statement (File No. 333-129830) filed on February 6,
2006)
|
|
4.4
|
|
Senior Indenture dated as of June 12, 2014 between General Finance
Corporation and Wells Fargo Bank, N.A., as trustee (incorporated by
reference to Exhibit 4.1 to the Current Report on Form 8-K filed on
June 18, 2014)
|
|
4.5
|
|
First Supplemental Indenture dated as of June 18, 2014 between
General Finance Corporation and Wells Fargo Bank, N.A., as trustee
(incorporated by reference to Exhibit 4.2 to the Current Report on
Form 8-K filed on June 18, 2014)
|
|
|
|
Form of Second Supplemental Indenture between General Finance
Corporation and the Trustee
|
|
4.7
|
|
Form of Senior Note (included in Exhibit
4.6
)
|
|
|
|
Form of Warrant Agreement
|
|
4.9
|
|
Form of
Preferred Stock Certificate†
|
|
|
|
Legal Opinion of Morrison & Foerster LLP
|
|
12.1
|
|
Statement regarding Computation of Ratio of Earnings to Fixed
Charges
†
|
|
|
|
Consent of Independent Registered Public Accounting Firm (Crowe
LLP)
|
|
23.2
|
|
Consent of Morrison & Foerster LLP (contained in Exhibit
5.1)
|
|
|
|
Power of Attorney
|
|
25.1
|
|
Statement of Eligibility on Form T-1 under the Trust Indenture Act
of 1939, as amended, of Wells Fargo Bank, National Association, as
trustee under the senior indenture**
|
|
25.2
|
|
Statement of Eligibility on Form T-1 under the Trust Indenture Act
of 1939, as amended, of Wells Fargo Bank, National Association, as
trustee under the subordinated indenture**
|
|
|
†
|
To be filed, if necessary, subsequent to the effective date of this
registration statement by an amendment to this registration
statement or incorporated by reference pursuant to a Current Report
on Form 8-K in connection with the offering of
securities.
|
|
|
**
|
To be filed pursuant to Section 305(b)(2) of the Trust Indenture
Act of 1939, as amended.
|
(a)
The undersigned registrant hereby undertakes:
|
|
(1) To file, during any period
in which offers or sales are being made, a post-effective amendment
to this registration statement:
|
|
|
(i) To include any prospectus
required by Section 10(a)(3) of the Securities Act of
1933;
|
|
|
|
|
|
(ii) To reflect in the
prospectus any facts or events arising after the effective date of
the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase
or decrease in volume of securities offered (if the total dollar
value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the
Securities and Exchange
Commission pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price represent no more
than 20 percent change in the maximum aggregate offering price set
forth in the “Calculation of Registration Fee” table in
the effective registration statement
; and
|
|
|
|
|
|
(iii) To include any material
information with respect to the plan of distribution not previously
disclosed in the registration statement or any material change to
such information in the registration statement.
|
|
|
provided, however
, that
paragraphs (
a)(1)(
i),
(
a)(1)(
ii) and
(
a)(1)(
iii) above do not apply
if the information required to be included in a post-effective
amendment by those paragraphs is contained in reports filed with or
furnished to the Securities and Exchange Commission by the
registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference
in this registration statement, or is contained in a form of
prospectus filed pursuant to Rule 424(b) that is part of the
registration statement.
|
|
|
(2) That, for the purpose of
determining any liability under the Securities Act of 1933, each
such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
|
|
|
|
|
|
(3) To remove from registration
by means of a post-effective amendment any of the securities being
registered which remain unsold at the termination of the
offering.
|
|
|
(4) That, for the purpose of
determining liability under the Securities Act of 1933 to any
purchaser:
|
|
|
(
i
) Each prospectus filed by the registrant pursuant
to Rule 424(b)(3) shall be deemed to be part of the registration
statement as of the date the filed prospectus was deemed part of
and included in the registration statement; and
|
|
|
|
|
|
(
ii
) Each prospectus required to be filed pursuant to
Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration
statement in reliance on Rule 430B relating to an offering made
pursuant to Rule 415(a)(1)(i), (vii), or(x) for the purpose of
providing the information required by section 10(a) of the
Securities Act of 1933 shall be deemed to be part of and included
in the registration statement as of the earlier of the date such
form of prospectus is first used after effectiveness or the date of
the first contract of sale of securities in the offering described
in the prospectus. As provided in Rule 430B, for liability purposes
of the issuer and any person that is at that date an underwriter,
such date shall be deemed to be a new effective date of the
registration statement relating to the securities in the
registration statement to which that prospectus relates, and the
offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof. Provided, however, that no
statement made in a registration statement or prospectus that is
part of the registration statement or made in a document
incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of
contract of sale prior to such effective date, supersede or modify
any statement that was made in the registration statement or
prospectus that was part of the registration statement or made in
any such document immediately prior to such effective
date
.
|
|
|
(5) That, for the purpose of
determining liability of the registrant under the Securities Act of
1933 to any purchaser in the initial distribution of the
securities:
|
The
undersigned registrant undertakes that in a primary offering of
securities of the undersigned registrant pursuant to this
registration statement, regardless of the underwriting method used
to sell the securities to the purchaser, if the securities are
offered or sold to such purchaser by means of any of the following
communications, the undersigned registrant will be a seller to the
purchaser and will be considered to offer or sell such securities
to such purchaser:
|
|
(i)
|
Any preliminary prospectus or prospectus of the undersigned
registrant relating to the offering required to be filed pursuant
to Rule 424;
|
|
|
|
|
|
(ii)
|
Any free writing prospectus relating to the offering prepared by or
on behalf of the undersigned registrant or used or referred to by
the undersigned registrant;
|
|
|
|
|
|
(iii)
|
The portion of any other free writing prospectus relating to the
offering containing material information about the undersigned
registrant or its securities provided by or on behalf of the
undersigned registrant; and
|
|
|
(iv)
|
Any other communication that is an offer in the offering made by
the undersigned registrant to the purchaser.
|
(b)
The undersigned Registrant hereby undertakes to file an application
for the purpose of determining the eligibility of the trustee to
act under subsection (a) of Section 310 of the Trust Indenture Act
in accordance with the rules and regulations prescribed by the
Commission under Section 305(b)(2) of the Trust Indenture
Act.
(c) The undersigned registrant hereby undertakes
that, for purposes of determining any liability under the
Securities Act of 1933, each filing of the
registrant
’
s annual
report pursuant to
Section
13(a) or
Section
15(d) of the Securities Exchange Act of 1934 (and,
where applicable, each filing of an employee benefit
plan
’
s annual report
pursuant to
Section
15(d) of
the Securities Exchange Act of 1934) that is incorporated by
reference in the registration statement shall be deemed to be a new
registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
(d)
The undersigned hereby undertakes to provide to the underwriter at
the closing specified in the underwriting agreements, certificates
in such denominations and registered in such names as required by
the underwriter to permit prompt delivery to each
purchaser.
(e)
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that in
the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer
or controlling person of the registrant in the successful defense
of any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities
being registered, the registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such
issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused
this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Pasadena,
State of California, on the 18th day of September,
2018.
|
|
|
|
|
|
|
|
GENERAL FINANCE CORPORATION
|
|
|
|
By:
|
/s/ Charles E. Barrantes
|
|
|
|
|
Charles E. Barrantes
|
|
|
|
|
Chief Financial Officer
|
|
|
|
KNOW
ALL PERSONS BY THESE PRESENTS, that each of the undersigned hereby
constitutes and appoints Ronald F. Valenta, Charles E. Barrantes
and Christopher A. Wilson, and each or any of them, as the
undersigned’s true and lawful attorney-in-fact and agent,
each with full power of substitution and re-substitution, for the
undersigned and on the undersigned’s behalf in any and all
capacities (including the undersigned’s capacity as a
director of General Finance Corporation) to sign, execute and file
this registration statement and any registration statement that is
to become effective upon filing pursuant to Rule 462 under the
Securities Act of 1933, as amended, relating to any offering of
securities in connection with this registration statement and any
or all amendments (including, without limitation, post-effective
amendments) to any such registration statements, and to file the
same, with all exhibits thereto and any and all documents required
to be filed with respect therewith, with the Securities and
Exchange Commission or any regulatory authority, granting unto such
attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite
and necessary to be done in connection therewith and about the
premises in order to effectuate the same as fully to all intents
and purposes as he might or could do if personally present, hereby
ratifying and confirming all that such attorneys-in-fact and
agents, or any of them, or his or her substitute or substitutes,
have done, may lawfully do or may cause to be done.
Pursuant to the requirements of the Securities Act
of 1933, this
Registration Statement
has been signed by the following persons in the
capacities and on the
dates
indicated.
|
Name
|
|
Position
|
|
Date
|
|
|
|
|
|
|
|
*
|
|
Chairman of the Board of Directors
|
|
September 18, 2018
|
|
Ronald F. Valenta
|
|
|
|
|
|
|
|
|
|
|
|
*
|
|
Director, President and Chief Executive Officer
|
|
September 18, 2018
|
|
Jody E. Miller
|
|
|
|
|
|
|
|
|
|
|
|
/s/ Charles E. Barrantes
|
|
Executive Vice President and Chief Financial Officer (Principal
Accounting Officer)
|
|
September 18, 2018
|
|
Charles E. Barrantes
|
|
|
|
|
|
|
|
|
|
|
|
*
|
|
Director
|
|
September 18, 2018
|
|
William H. Baribault
|
|
|
|
|
|
|
|
|
|
|
|
*
|
|
Director
|
|
September 18, 2018
|
|
Susan L. Harris
|
|
|
|
|
|
|
|
|
|
|
|
*
|
|
Director
|
|
September 18, 2018
|
|
Manuel Marrero
|
|
|
|
|
|
|
|
|
|
|
|
*
|
|
Director
|
|
September 18, 2018
|
|
James B. Roszak
|
|
|
|
|
|
|
|
|
|
|
|
*
|
|
Director
|
|
September 18, 2018
|
|
Douglas B. Trussler
|
|
|
|
|
|
|
|
|
|
|
|
*
|
|
Director
|
|
September 18, 2018
|
|
Larry D. Tashjian
|
|
|
|
|
|
|
|
|
|
|
* By
Christopher A. Wilson, Attorney in Fact
EXHIBIT
4.6
This
SECOND SUPPLEMENTAL INDENTURE (this “
Second Supplemental
Indenture
”), dated as of ________, 20__, among GENERAL
FINANCE CORPORATION, a Delaware corporation (the
“
Company
”),
and ___________, as trustee (the “
Trustee
”).
RECITALS
WHEREAS, the
Company and the Wells Fargo Bank, National Association have
heretofore executed and delivered an indenture, dated as of June
18, 2014 (the “
Indenture
”), providing
for the issuance by the Company from time to time of its debt
securities to be issued in one or more series;
WHEREAS, Sections
2.1 and 9.1 of the Indenture provide, among other things, that the
Company and the trustee under this Second Supplemental Indenture
(the “
Trustee
”) may, without
the consent of Holders, enter into indentures supplemental to the
Indenture to provide for specific terms applicable to any series of
Securities;
WHEREAS, Section
2.1 of the Indenture provides, among other things, that there shall
be established in or pursuant to a Board Resolution, and set forth,
or determined in the manner provided, in an Officers’
Certificate of the Company or in a Company Order, or established in
one or more indentures supplemental to the Indenture, prior to the
issuance of Securities of any series, or any exceptions to or
changes to those set forth in Article X of the
Indenture;
WHEREAS, the
Company intends by this Second Supplemental Indenture to create and
provide for the issuance of a new series of debt securities to be
designated as the “___% Senior Securities due ____”
(the “
Securities
”);
WHEREAS, pursuant
to Section 9.1(9) and (11) of the Indenture, the Trustee and
the Company are authorized to execute and deliver this Second
Supplemental Indenture to amend or supplement the Indenture,
without the consent of any Holder of Securities; and
WHEREAS, all things
necessary to make the Securities, when executed by the Company and
authenticated and delivered by the Trustee, issued upon the terms
and subject to the conditions set forth hereinafter and in the
Indenture and delivered as provided in the Indenture against
payment therefor, valid, binding and legal obligations of the
Company according to their terms, and all actions required to be
taken by the Company under the Indenture to make this Second
Supplemental Indenture a valid, binding and legal agreement of the
Company, have been done.
NOW,
THEREFORE, in consideration of the premises and for other good and
valuable consideration, the sufficiency and adequacy of which are
hereby acknowledged, the parties hereto hereby agree as
follows:
ARTICLE I
DEFINITIONS
AND INCORPORATION BY REFERENCE
Section
.01
Definitions
.
(a)
All capitalized
terms used herein and not otherwise defined below shall have the
meanings ascribed thereto in the Indenture.
(b)
The following are
definitions used in this Second Supplemental Indenture, and to the
extent that a term is defined both herein and in the Indenture, the
definition in this Second Supplemental Indenture shall govern with
respect to the Securities.
“Acquired
Indebtedness” means Indebtedness of a Person or any of its
Subsidiaries existing at the time such Person becomes a Restricted
Subsidiary of the Company or at the time it merges or consolidates
with or into the Company or any of its Subsidiaries or assumed in
connection with the acquisition of assets from such Person and in
each case not incurred by such Person in connection with, or in
anticipation or contemplation of, such Person becoming a Restricted
Subsidiary of the Company or such acquisition, merger or
consolidation.
“Acquisition”
means (a) the purchase or other acquisition by a Person or its
Subsidiaries of all or substantially all of the assets of (or any
division or business line of) any other Person, or (b) the
purchase or other acquisition (whether by means of a merger,
amalgamation, consolidation, or otherwise) by a Person or its
Subsidiaries of all or substantially all of the Capital Stock of
any other Person.
“Additional
Issue Date” means the date or dates on which the Company
issues Additional Securities issued as a result of the exercise by
the underwriters of the offering of the Securities of their right
to purchase up to $___ million aggregate principal amount of
Securities within 30 days of the date of the prospectus relating to
the offering of the Securities.
“Additional
Securities” means Securities issued pursuant to Article II of
the Indenture and in compliance with Section 4.04 hereof, in
addition to and having substantially the same terms as the
Securities issued on the Issue Date.
“Asset
Acquisition” means (1) an Investment by the Company or any
Restricted Subsidiary of the Company in any other Person pursuant
to which such Person shall become a Restricted Subsidiary of the
Company, or shall be merged with or into the Company or any
Restricted Subsidiary of the Company, or (2) the acquisition by the
Company or any Restricted Subsidiary of the Company of the assets
of any Person (other than a Restricted Subsidiary of the Company)
which constitute all or substantially all of the assets of such
Person or comprises any division or line of business of such Person
or any other properties or assets of such Person other than in the
ordinary course of business.
“Asset
Sale” means any direct or indirect sale, issuance,
conveyance, transfer, lease (other than operating leases entered
into in the ordinary course of business), assignment or other
transfer for value by the Company or any Restricted Subsidiary
(including any Sale and Leaseback Transaction) to any Person other
than the Company or a Restricted Subsidiary of: (1) any Capital
Stock of any Restricted Subsidiary; or (2) any other property or
assets of the Company or any Restricted Subsidiary other than in
the ordinary course of business; provided, however, that asset
sales or other dispositions shall not include: (a) a transaction or
series of related transactions for which the Company or a
Restricted Subsidiary receive aggregate consideration (exclusive of
any indemnities) of less than $5.0 million; (b) the sale, lease,
conveyance, disposition or other transfer of all or substantially
all of the assets of the Company as permitted under Article V
hereof; (c) any Restricted Payment permitted by Section 4.02 or
that constitutes a Permitted Investment; (d) the sale or discount,
in each case without recourse, of accounts receivable arising in
the ordinary course of business, but only in connection with the
compromise or collection thereof; (e) the sale of or other
disposition of cash or Cash Equivalents; (f) any sale or
disposition deemed to occur in connection with creating or granting
any Liens pursuant to Section 4.07; (g) the lease, assignment or
sublease of any real or personal property in the ordinary course of
business; (h) sales of Unrestricted Subsidiaries; (i) disposals,
trade-ins or replacements of obsolete or worn-out equipment or
other assets; (j) the sale, lease or other disposition of inventory
in the ordinary course of business; and (k) the surrender, or
waiver of contract rights or settlement, release or surrender of
contract, tort or other claims.
“Borrowing
Base” shall have the meaning given such term in the Credit
Agreement.
“Capital
Stock” means:
(1) in
the case of a corporation, corporate stock;
(2) in
the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however
designated) of corporate stock;
(3) in
the case of a partnership or limited liability company, partnership
interests (whether general or limited) or membership interests;
and
(4) any
other interest or participation that confers on a Person the right
to receive a share of the profits and losses of, or distributions
of assets of, the issuing Person;
but
excluding from all of the foregoing any debt securities convertible
into Capital Stock, whether or not such debt securities include any
right of participation with Capital Stock.
“Cash
Equivalents” means:
(1) marketable
direct obligations issued by, or unconditionally guaranteed by, the
United States Government or issued by any agency thereof and backed
by the full faith and credit of the United States, in each case
maturing within one year from the date of acquisition
thereof;
(2) marketable
direct obligations issued by any state of the United States of
America or any political subdivision of any such state or any
public instrumentality thereof maturing within one year from the
date of acquisition thereof and, at the time of acquisition, having
one of the two highest ratings obtainable from either S&P or
Moody’s;
(3) commercial
paper maturing no more than one year from the date of creation
thereof and, at the time of acquisition, having a rating of at
least A-1 from S&P or at least P-1 from
Moody’s;
(4) certificates
of deposit or bankers’ acceptances maturing within one year
from the date of acquisition thereof issued by any bank organized
under the laws of the United States of America or any state thereof
or the District of Columbia or any U.S. branch of a foreign bank
having at the date of acquisition thereof combined capital and
surplus of not less than $250 million;
(5) repurchase
obligations with a term of not more than seven days for underlying
securities of the types described in clause (1) above entered into
with any bank meeting the qualifications specified in clause (4)
above; and
(6) investments
in money market funds which invest substantially all their assets
in securities of the types described in clauses (1) through (5)
above.
“Cash
Management Services” means any cash management or related
services including treasury, depository, return items, overdraft,
controlled disbursement, merchant store value cards, e-payables
services, electronic funds transfer, interstate depository network,
automatic clearing house transfer (including the Automated Clearing
House processing of electronic funds transfers through the direct
Federal Reserve Fedline system) and other cash management
arrangements.
“Change of
Control” means the occurrence of one or more of the following
events:
(1) the
direct or indirect sale, lease, transfer, conveyance or other
disposition (other than by way of merger or consolidation), in one
or a series of related transactions, of all or substantially all of
the assets of the Company and its Subsidiaries taken as a whole to
any “person” (as that term is used in Section 13(d)(3)
of the Exchange Act) other than to the Company or one of its
Subsidiaries;
(2) the
consummation of any transaction (including without limitation, any
merger or consolidation) the result of which is that any
“person” (as that term is used in Section 13(d)(3) of
the Exchange Act) becomes the “beneficial owner” (as
defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly
or indirectly, of more than 50% of the outstanding Voting Stock of
the Company, measured by voting power rather than number of
shares;
(3) the
Company consolidates with, or merges with or into, any Person, or
any Person consolidates with, or merges with or into, the Company,
in any such event pursuant to a transaction in which any of the
outstanding Voting Stock of the Company or such other Person is
converted into or exchanged for cash, securities or other property,
other than any such transaction where the shares of the Voting
Stock of the Company outstanding immediately prior to such
transaction constitute, or are converted into or exchanged for, a
majority of the Voting Stock of the surviving Person immediately
after giving effect to such transaction;
(4) the
first day on which the majority of the members of the board of
directors of the Company cease to be Continuing Directors;
or
(5) the
adoption of a plan relating to the liquidation or dissolution of
the Company.
“Commission”
means the Securities and Exchange Commission.
“Common
Stock” of any Person means any and all shares, interests or
other participations in, and other equivalents (however designated
and whether voting or non-voting) of such Person’s common
stock, whether outstanding on the Issue Date or issued after the
Issue Date, and includes, without limitation, all series and
classes of such common stock.
“Comparable
Treasury Issue” means the United States treasury security
selected by an Independent Investment Bank as having an actual or
interpolated maturity comparable to the remaining term of the
Securities to be redeemed that would be utilized, at the time of
selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable
maturity to the remaining term of such Securities.
“Comparable
Treasury Price” means, with respect to any Redemption
Date:
(1) the
average of the bid and ask prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) on
the third business day preceding such Redemption Date, as set forth
in the most recently published statistical release designated
“H.15 (519)” (or any successor release) published by
the Board of Governors of the Federal Reserve System and which
establishes yields on actively traded United States treasury
securities adjusted to constant maturity under the caption
“Treasury Constant Maturities,” or
(2) if
such release (or any successor release) is not published or does
not contain such prices on such business day, the average of the
Reference Treasury Dealer Quotations for such Redemption
Date.
“Consolidated
Assets” means, as of the date of determination, the total
assets (less goodwill and intangible assets) of the Company and its
Restricted Subsidiaries as shown on the balance sheet of the
Company and its Subsidiaries for the most recently ended fiscal
quarter for which financial statements are available, determined on
a consolidated basis in accordance with GAAP.
“Consolidated
EBITDA” means, with respect to any Person, for any period,
the sum (without duplication) of:
(1) Consolidated
Net Income; and
(2) to
the extent Consolidated Net Income has been reduced
thereby:
(a) all
income taxes of such Person and its Restricted Subsidiaries paid or
accrued in accordance with GAAP for such period (other than income
taxes attributable to extraordinary, unusual or nonrecurring gains
or losses or taxes attributable to sales or dispositions outside
the ordinary course of business);
(b) Consolidated
Interest Expense;
(c) Consolidated
Non-cash Charges less any non-cash items increasing Consolidated
Net Income for such period, and
(d) any
expenses, charges or other costs related to any equity offering,
Permitted Investment, acquisition (including amounts paid in
connection with the acquisition or retention of one or more
individuals comprising part of a management team retained to manage
the acquired business,
provided
that such payments are made
at
the time of such
acquisition and are consistent with the customary practice in the
industry at the time of such acquisition), disposition, incurrence
or refinancing of Indebtedness permitted to be incurred by the
Indenture, (whether or not successful)
all as
determined on a consolidated basis for such Person and its
Restricted Subsidiaries in accordance with GAAP.
“Consolidated
Fixed Charge Coverage Ratio” means, with respect to any
Person, the ratio of Consolidated EBITDA of such Person during the
four full fiscal quarters (the “Four Quarter Period”)
ending prior to the date of the transaction giving rise to the need
to calculate the Consolidated Fixed Charge Coverage Ratio for which
financial statements are available (the “Transaction
Date”) to Consolidated Fixed Charges of such Person for the
Four Quarter Period. In addition to and without limitation of the
foregoing, for purposes of this definition, “Consolidated
EBITDA” and “Consolidated Fixed Charges” shall be
calculated after giving effect on a pro forma basis for the period
of such calculation to:
(1) the
incurrence or repayment of any Indebtedness of such Person or any
of its Restricted Subsidiaries (and the application of the proceeds
thereof) giving rise to the need to make such calculation and any
incurrence or repayment of other Indebtedness (and the application
of the proceeds thereof), other than the incurrence or repayment of
Indebtedness in the ordinary course of business for working capital
purposes pursuant to working capital facilities, occurring during
the Four Quarter Period or at any time subsequent to the last day
of the Four Quarter Period and on or prior to the Transaction Date,
as if such incurrence or repayment, as the case may be (and the
application of the proceeds thereof), occurred on the first day of
the Four Quarter Period; and
(2) any
asset sales or other dispositions or Asset Acquisitions (including,
without limitation, any Asset Acquisition giving rise to the need
to make such calculation as a result of such Person or one of its
Restricted Subsidiaries (including any Person who becomes a
Restricted Subsidiary as a result of the Asset Acquisition)
incurring, assuming or otherwise being liable for Acquired
Indebtedness and also including any Consolidated EBITDA (including
any pro forma expense and cost reductions and other operating
improvements or synergies (x) calculated on a basis consistent with
Regulation S-X under the Exchange Act) or (y) as determined in good
faith by a responsible financial or accounting officer of the
Company for which steps have been taken or are reasonably expected
to be taken within six (6) months of such transaction and are
supportable and quantifiable and as set forth on an Officer’s
Certificate) attributable to the assets which are the subject of
the Asset Acquisition or asset sale or other disposition during the
Four Quarter Period) occurring during the Four Quarter Period or at
any time subsequent to the last day of the Four Quarter Period and
on or prior to the Transaction Date, as if such asset sale or other
disposition or Asset Acquisition (including the incurrence,
assumption or liability for any such Acquired Indebtedness)
occurred on the first day of the Four Quarter Period. If such
Person or any of its Restricted Subsidiaries directly or indirectly
guarantees Indebtedness of a third Person, the preceding sentence
shall give effect to the incurrence of such guaranteed Indebtedness
as if such Person or any Restricted Subsidiary of such Person had
directly incurred or otherwise assumed such guaranteed
Indebtedness.
Furthermore, in
calculating “Consolidated Fixed Charges” for purposes
of determining the denominator (but not the numerator) of this
“Consolidated Fixed Charge Coverage
Ratio”:
(1) interest
on outstanding Indebtedness determined on a fluctuating basis as of
the Transaction Date and which will continue to be so determined
thereafter shall be deemed to have accrued at a fixed rate per
annum equal to the rate of interest on such Indebtedness in effect
on the Transaction Date; and
(2) notwithstanding
clause (1) above, interest on Indebtedness determined on a
fluctuating basis, to the extent such interest is covered by
agreements relating to Hedge Agreements, shall be deemed to accrue
at the rate per annum resulting after giving effect to the
operation of such agreements.
Furthermore, in
calculating “Consolidated EBITDA” for purposes of
determining the “Consolidated Fixed Charge Coverage
Ratio,” the net income (or loss) of a Restricted Subsidiary
that has become a Guarantor during the relevant Four Quarter Period
shall be included from the beginning of such Four Quarter
Period.
“Consolidated
Fixed Charges” means, with respect to any Person for any
period, the sum, without duplication, of:
(1) Consolidated
Interest Expense; plus
(2) the
product of (x) the amount of all dividend payments to any Person
other than the Company or a Restricted Subsidiary on any series of
Preferred Stock of such Person and, to the extent permitted under
this Indenture, its Restricted Subsidiaries (other than dividends
paid in Qualified Capital Stock) paid, accrued or scheduled to be
paid or accrued during such period times (y) a fraction, the
numerator of which is one and the denominator of which is one minus
the then current effective consolidated federal, state and local
income tax rate of such Person, expressed as a
decimal.
“Consolidated
Interest Expense” means, with respect to any Person for any
period, the sum of, without duplication:
(1) The
aggregate of the interest expense of such Person and its Restricted
Subsidiaries for such period determined on a consolidated basis in
accordance with GAAP, including without limitation: (a) any
amortization of debt discount and amortization or write-off of
deferred financing costs; (b) the net costs under Hedge Agreements
incurred in the fiscal quarter beginning after the Issue Date; (c)
all capitalized interest; and (d) the interest portion of any
deferred payment obligation; and
(2) the
interest component of Capitalized Lease Obligations paid, accrued
and/or scheduled to be paid or accrued by such Person and its
Restricted Subsidiaries during such period as determined on a
consolidated basis in accordance with GAAP; less
(3) interest
income for such period.
“Consolidated
Net Income” means, with respect to any Person, for any
period, the aggregate net income (or loss) of such Person and its
Restricted Subsidiaries for such period on a consolidated basis,
determined in accordance with GAAP; provided that
(a) there
shall be included thereto (without duplication) the amount of cash
dividends or distributions actually received by the referent Person
or a Wholly Owned Restricted Subsidiary of the referent Person from
any Person that is not a Restricted Subsidiary; and
(b) there
shall be excluded therefrom (without duplication):
(1) after-tax
gains from Asset Sales (without regard to the $5.0 million
limitation set forth in the definition thereof) or abandonments or
reserves relating thereto;
(2) after-tax
items classified as extraordinary or nonrecurring
gains;
(3) the
net income (but not loss) of any Restricted Subsidiary (other than
a Guarantor of the Securities)of the referent Person to the extent
that the declaration of dividends or similar distributions by that
Restricted Subsidiary of that income is restricted by a contract,
operation of law or otherwise;
(4) any
restoration to income of any contingency reserve, except to the
extent that provision for such reserve was made out of Consolidated
Net Income accrued at any time following the Issue
Date;
(5) income
or loss attributable to discontinued operations (including, without
limitation, operations disposed of during such period whether or
not such operations were classified as discontinued);
(6) in
the case of a successor to the referent Person by consolidation or
merger or as a transferee of the referent Person’s assets,
any earnings of the successor corporation prior to such
consolidation, merger or transfer of assets;
(7) fees
and expenses incurred in connection with the refinancing or
repayment of indebtedness;
(8) the
amount of extraordinary, nonrecurring or unusual losses or charges
(including all fees, expenses or charges incurred in connection
with acquisitions, mergers of consolidations after the Issue
Date);
(9) any
non-cash compensation charge or expense, including any such charge
or expense arising from the grants of stock appreciation or similar
rights, stock options, restricted stock or other rights or equity
incentive programs;
(10) any
net after-tax effect of income (loss) from the early extinguishment
or conversion of (a) Indebtedness, (b) Hedging Obligations or (c)
other derivative instruments;
(11) any
impairment charge or asset write-off or write-down, including
impairment charges or asset write-offs or write-downs related to
goodwill, intangible assets, long-lived assets, investments in debt
and equity securities or as a result of a change in law or
regulation, in each case, pursuant to GAAP, and the amortization of
intangibles arising pursuant to GAAP;
(12) any
non-cash income (or loss) related to the recording of the fair
market value of Hedge Agreements entered into in the ordinary
course of business and not for speculative purposes;
and
(13) the
cumulative effect of a change in accounting
principles.
“Consolidated
Non-cash Charges” means, with respect to any Person, for any
period, the aggregate depreciation, amortization and other non-cash
expenses of such Person and its Restricted Subsidiaries reducing
Consolidated Net Income of such Person and its Restricted
Subsidiaries for such period, determined on a consolidated basis in
accordance with GAAP (excluding any such charges constituting an
extraordinary item or loss or any such charge which requires an
accrual of or a reserve for cash charges for any future
period).
“Consolidated
Secured Leverage Ratio” means, as of the date of
determination (the “Secured Leverage Ratio Calculation
Date”), the ratio of (a) the total Indebtedness of the
Company and its Restricted Subsidiaries as of the end of the most
recent fiscal quarter for which internal financial statements are
available that is secured by Liens (other than property or assets
held in a defeasance or similar trust or arrangement for the
benefit of the Indebtedness secured thereby) to (b) Consolidated
EBITDA of the Company and its Restricted Subsidiaries for the most
recently ended four fiscal quarters ending immediately prior to
such date for which internal financial statements are available,
with such pro forma adjustments as are appropriate and consistent
with the pro forma adjustment provisions set forth in the
definition of “Consolidated Fixed Charge Coverage
Ratio.”
“Continuing
Director” means, as of any date of determination, any member
of the board of directors of the Company who:
(1) was
a member of such board of directors on the Issue Date;
or
(2) was
nominated for election or elected to such board of directors with
the approval of a majority of the Continuing Directors who were
members of such board of directors at the time of such nomination
or election.
“Credit
Agreement” means the amended and restated credit agreement,
dated as of April 7, 2014, as amended to date, by and among Wells
Fargo Bank, National Association, as Administrative Agent, Wells
Fargo Bank, National Association and HSBC Bank USA, N.A.,
as Co-Lead Arrangers, Wells Fargo Bank, National Association, as
Book Runner, HSBC Bank USA, N.A., as Syndication Agent,
the lenders that are parties thereto, Pac-Van, Inc., Lone Star
Tank Rental Inc. and the Subsidiaries that are signatories
thereto, as borrowers, together with the related documents thereto
(including, without limitation, any notes, guarantee agreements and
security documents), in each case as such agreements may be amended
(including any amendment and restatement thereof), supplemented or
otherwise modified from time to time, including one or more credit
agreements, loan agreements, indentures or similar agreements
extending the maturity of, refinancing, replacing, renewing or
otherwise restructuring (including increasing the amount of
available credit thereunder or adding Subsidiaries of the Company
as additional borrowers or guarantors thereunder) all or any
portion of the Indebtedness under such agreement or agreements or
any successor or replacement agreement or agreements and whether by
the same or any other agent, lender or group of
lenders.
“Credit
Facilities” means one or more of (i) the Credit Agreement and
(ii) any other facilities or arrangements designated by the
Company, in each case with one or more banks or other lenders or
institutions, providing for revolving credit loans, term loans,
receivables or fleet financings (including without limitation
through the sale of receivables or fleet assets to such
institutions or to special purpose entities formed to borrow from
such institutions against such receivables or fleet assets or the
creation of any Liens in respect of such receivables or fleet
assets in favor of such institutions), letters of credit or other
Indebtedness, in each case, including all agreements, instruments
and documents executed and delivered pursuant to or in connection
with any of the foregoing, including but not limited to any notes
and letters of credit issued pursuant thereto and any guarantee and
collateral agreement, patent and trademark security agreement,
mortgages or letter of credit applications and other guarantees,
pledge agreements, security agreements and collateral documents, in
each case as the same may be amended, supplemented, waived or
otherwise modified from time to time, or refunded, refinanced,
restructured, replaced, renewed, repaid, increased or extended from
time to time (whether in whole or in part, whether with the
original banks, lenders or institutions or other banks, lenders or
institutions or otherwise, and whether provided under any original
Credit Agreement or one or more other credit agreements,
indentures, financing agreements or other Credit Facilities or
otherwise). Without limiting the generality of the foregoing, the
term “Credit Facility” shall include any agreement (i)
changing the maturity of any Indebtedness Incurred thereunder or
contemplated thereby, (ii) adding Subsidiaries as additional
borrowers or guarantors thereunder, (iii) increasing the amount of
Indebtedness Incurred thereunder or available to be borrowed
thereunder or (iv) otherwise altering the terms and conditions
thereof.
“Disqualified
Capital Stock” means that portion of any Capital Stock which,
by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable at the option of the
holder thereof), or upon the happening of any event (other than an
event which would constitute a Change of Control), matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise, or is redeemable at the sole option of the holder
thereof (except, in each case, upon the occurrence of a Change of
Control) on or prior to the final maturity date of the
Securities.
“Domestic
Restricted Subsidiary” means a Restricted Subsidiary
incorporated or otherwise organized or existing under the laws of
the United States, any state thereof or any territory or possession
of the United States.
“Earn-Outs”
shall mean unsecured liabilities of the Company or a Restricted
Subsidiary arising under an agreement to make any deferred payment
as a part of the purchase price for a Permitted Acquisition,
including performance bonuses or consulting payments in any related
services, employment or similar agreement, in an amount that is
subject to or contingent upon the revenues, income, cash flow or
profits (or the like) of the target of such Permitted
Acquisition.
“Equity
Offering” means a public or private offering of Qualified
Capital Stock of the Company or any of its Subsidiaries other
than:
(1) public
offerings with respect to the common stock of the Company or any
Subsidiary registered on Form S-8;
(2) the
registration of common stock of the Company on Form S-4 issued in
connection with acquisitions by the Company or any Subsidiary of
the Company.
(3) issuances
to any Subsidiary of the Company.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended,
or any successor statute or statutes thereto.
“fair market
value” means, with respect to any asset or property, the
price which could be negotiated in an arm’s-length,
free-market transaction, for cash, between a willing seller and a
willing and able buyer, neither of whom is under undue pressure or
compulsion to complete the transaction. Fair market value shall be
determined by the Board of Directors of the Company acting
reasonably and in good faith and shall be evidenced by a Board
Resolution of the Board of Directors of the Company delivered to
the Trustee.
“Foreign
Subsidiary” means any Restricted Subsidiary that is not a
Domestic Restricted Subsidiary.
“guarantee”
means, as to any Person, a guarantee, direct or indirect, in any
manner, including, without limitation, by way of a pledge of assets
or through letters of credit or reimbursement agreements in respect
thereof, of all or any part of any Indebtedness of another Person,
but excluding endorsements for collection or deposit in the normal
course of business.
“Guarantor”
means any Restricted Subsidiary of the Company that fully and
unconditionally guarantees the payment of principal of, premium, if
any, and accrued and unpaid interest on the Notes by executing and
delivering to the Trustee a supplemental indenture, until such time
as such Restricted Subsidiary is released from its Subsidiary
Guarantee.
“Hedge
Agreement” means a “swap agreement” as that term
is defined in the Bankruptcy Code.
“Indebtedness”
means with respect to any Person, without duplication:
(1) all
Obligations of such Person for borrowed money;
(2) all
Obligations of such Person evidenced by bonds, debentures, notes or
other similar instruments;
(3) all
Capitalized Lease Obligations of such Person;
(4) all
Obligations of such Person issued or assumed as the deferred
purchase price of property, all conditional sale obligations and
all Obligations under any title retention agreement (but excluding
trade accounts payable and other accrued liabilities arising in the
ordinary course of business that are not overdue by 90 days or more
or are being contested in good faith by appropriate proceedings
promptly instituted and diligently conducted);
(5) all
Obligations for the reimbursement of any obligor on any letter of
credit, banker’s acceptance or similar credit
transaction;
(6) guarantees
and other contingent obligations in respect of Indebtedness
referred to in clauses (1) through (5) above and clause (8)
below;
(7) all
Obligations of any other Person of the type referred to in clauses
(1) through (6) which are secured by any lien on any property or
asset of such Person, the amount of such Obligation being deemed to
be the lesser of the fair market value of such property or asset or
the amount of the Obligation so secured;
(8) all
Obligations under Hedge Agreements of such Person; and
(9) all
Disqualified Capital Stock issued by such Person or any Preferred
Stock of any Restricted Subsidiary with the amount of Indebtedness
represented by such Disqualified Capital Stock or Preferred Stock
being equal to the greater of its voluntary or involuntary
liquidation preference and its maximum fixed repurchase price, but
excluding accrued dividends, if any.
For
purposes hereof, the “maximum fixed repurchase price”
of any Disqualified Capital Stock which does not have a fixed
repurchase price shall be calculated in accordance with the terms
of such Disqualified Capital Stock as if such Disqualified Capital
Stock were purchased on any date on which Indebtedness shall be
required to be determined pursuant to this Indenture, and if such
price is based upon, or measured by, the fair market value of such
Disqualified Capital Stock, such fair market value shall be
determined reasonably and in good faith by the Board of Directors
of the issuer of such Disqualified Capital Stock.
“Independent
Financial Advisor” means a firm: (1) which does not, and
whose directors, officers and employees or Affiliates do not, have
a direct or indirect financial interest in the Company; and (2)
which, in the judgment of the Board of Directors of the Company, is
otherwise independent and qualified to perform the task for which
it is to be engaged.
“Independent
Investment Bank” means one of the Reference Treasury Dealers
appointed by the Company.
“Investment”
means, with respect to any Person, any direct or indirect loan or
other extension of credit (including, without limitation, a
guarantee) or capital contribution to (by means of any transfer of
cash or other property to others or any payment for property or
services for the account or use of others), or any purchase or
acquisition by such Person of any Capital Stock, bonds, notes,
debentures or other securities or evidences of Indebtedness issued
by, any other Person. “Investment” shall exclude (i)
extensions of trade credit by the Company and its Restricted
Subsidiaries on commercially reasonable terms in accordance with
normal trade practices of the Company or such Restricted
Subsidiary, as the case may be; (ii) the acquisition of property
and assets from suppliers and other vendors in the normal course of
business and consistent with past practice; and (iii) prepaid
expenses and workers’ compensation, utility, lease and
similar deposits, in the normal course of business and consistent
with past practice. If the Company or any Restricted Subsidiary of
the Company sells or otherwise disposes of any Common Stock of any
direct or indirect Restricted Subsidiary of the Company such that,
after giving effect to any such sale or disposition, such Person is
no longer a Restricted Subsidiary, the Company shall be deemed to
have made an Investment on the date of any such sale or disposition
equal to the fair market value of the Common Stock of such
Restricted Subsidiary not sold or disposed of.
“Issue
Date” means _____________.
“Net Cash
Proceeds” means, with respect to any Asset Sale, the proceeds
in the form of cash or Cash Equivalents including payments in
respect of deferred payment obligations when received in the form
of cash or Cash Equivalents (other than the portion of any such
deferred payment constituting interest) received by the Company or
any of its Restricted Subsidiaries from such Asset Sale net
of:
(1) reasonable
out-of-pocket expenses and fees relating to such Asset Sale
(including, without limitation, legal, accounting and investment
banking fees and sales commissions);
(2) taxes
paid or payable after taking into account any reduction in
consolidated tax liability due to available tax credits or
deductions and any tax sharing arrangements;
(3) repayment
of Indebtedness that is secured by the property or assets that are
the subject of such Asset Sale;
(4) amounts
required to be paid to any Person owning a beneficial interest in
or having a Lien on the assets subject to the Asset Sale;
and
(5) appropriate
amounts to be provided by the Company or any Restricted Subsidiary,
as the case may be, as a reserve, in accordance with GAAP, against
any liabilities associated with such Asset Sale and retained by the
Company or any Restricted Subsidiary, as the case may be, after
such Asset Sale, including, without limitation, pension and other
post-employment benefit liabilities, liabilities related to
environmental matters and liabilities under any indemnification
obligations associated with such Asset Sale.
“Obligations”
means all obligations for principal, premium, interest, penalties,
fees, indemnifications, reimbursements, damages and other
liabilities payable under the documentation governing any
Indebtedness.
“Pari
Passu Debt” means any Indebtedness of the Company that ranks
pari passu in right of payment with the Securities, as
applicable.
“Permitted
Acquisition” means any Acquisition so long as:
(1)
no
Default or Event of Default shall have occurred and be continuing
or would result from the consummation of the proposed
Acquisition,
(2) no
Indebtedness will be incurred, assumed, or would exist with respect
to the Company or any Restricted Subsidiary as a result of such
Acquisition, other than (A) Indebtedness permitted under clause (7)
of the definition of Permitted Indebtedness or (B) such
Indebtedness is incurred in compliance with Section
4.04(a);
(3) no
Liens will be incurred, assumed, or would exist with respect to the
assets of the Company or any Restricted Subsidiary as a result of
such Acquisition other than Permitted Liens; and
(4) the
assets being acquired (other than a de minimis amount of assets in
relation to the Company and its Restricted Subsidiaries’
total assets), or the Person whose Capital Stock is being acquired,
constitute a Permitted Business.
“Permitted
Business” means any business conducted by the Company on the
Issue Date, any reasonable extension thereof, and any additional
business reasonably ancillary, incidental, complementary or related
to, or a reasonable extension, development or expansion of, the
business conducted by the Company and the Restricted Subsidiaries
on the Issue Date, in each case, as determined in good faith by the
Board of Directors of the Company.
“Permitted
Indebtedness” means, without duplication, each of the
following:
(1) Indebtedness
under the Securities issued on the Issue Date or Additional Issue
Date;
(2) Indebtedness
incurred pursuant to the Credit Agreement, including any permitted
refinancing thereof, in an aggregate principal amount at any time
outstanding not to exceed the greater of (i) $200 million (or $225
million upon the exercise of the $25 million accordion increase
under the Credit Agreement) less the amount of all required
permanent repayments (which are accompanied by a corresponding
permanent commitment reduction thereunder) and (ii) the Borrowing
Base, including any permitted refinancing thereof;
(3) other
Indebtedness of the Company and its Restricted Subsidiaries
outstanding on the Issue Date reduced by the amount of any
scheduled amortization payments or mandatory prepayments when
actually paid or permanent reductions thereon;
(4) Permitted
Purchase Money Indebtedness;
(5) endorsement
of instruments or other payment items for deposit;
(6) Indebtedness
consisting of (i) unsecured guarantees incurred in the
ordinary course of business with respect to surety and appeal
bonds, performance bonds, bid bonds, appeal bonds, completion
guarantee and similar obligations; (ii) unsecured guarantees
arising with respect to customary indemnification obligations to
purchasers in connection with dispositions in the ordinary course
of business; and (iii) unsecured guarantees with respect to
Indebtedness of the Company or a Restricted Subsidiary, to the
extent that the Person that is obligated under such guaranty could
have incurred such underlying Indebtedness,
(7) Acquired
Indebtedness of the Company or any Restricted Subsidiary including
any permitted refinancing thereof, in an aggregate principal amount
not to exceed $10.0 million outstanding at any one time and any
refinancing thereof;
(8) Indebtedness
incurred in the ordinary course of business under performance,
surety, statutory, or appeal bonds;
(9) Indebtedness
owed to any Person providing property, casualty, liability, or
other insurance to the Company or any Restricted Subsidiary, so
long as the amount of such Indebtedness is not in excess of the
amount of the unpaid cost of, and shall be incurred only to defer
the cost of, such insurance for the year in which such Indebtedness
is incurred and such Indebtedness is outstanding only during such
year;
(10) Indebtedness
under Hedge Agreements that are incurred for the bona fide purpose
of hedging the interest rate, commodity, or foreign currency risks
associated with Company and its Subsidiaries’ operations and
not for speculative purposes as determined in good faith by the
Board of Directors of the Company;
(11) Indebtedness
incurred in the ordinary course of business in respect of credit
cards, credit card processing services, debit cards, stored value
cards, commercial cards (including so-called “purchase
cards”, “procurement cards” or
“p-cards”), or Cash Management Services;
(12) unsecured
Subordinated Indebtedness owing to former employees, officers, or
directors (or any spouses, ex-spouses, or estates of any of the
foregoing) of the Company or any of its Subsidiaries or their
authorized representatives upon the death, disability or
termination of employment of such employees or termination of their
seat on our Board of Directors, so long as (i) no Default or
Event of Default has occurred and is continuing or would result
from the incurrence of such Indebtedness and (ii) the
aggregate amount of all such Indebtedness outstanding at any one
time does not exceed $250,000;
(13) unsecured
Indebtedness owing to sellers of assets or Capital Stock to the
Company or a Restricted Subsidiary that is incurred by the Company
or a Restricted Subsidiary in connection with the consummation of
one or more Permitted Acquisitions so long as the aggregate
principal amount for all such unsecured Indebtedness does not
exceed $15 million at any one time outstanding;
(14) contingent
liabilities in respect of any indemnification obligation,
adjustment of purchase price, non-compete, or similar obligation of
the Company or any Restricted Subsidiary Party incurred in
connection with the consummation of one or more Permitted
Acquisitions;
(15) Indebtedness
composing Permitted Investments;
(16) unsecured
Indebtedness incurred in respect of netting services, overdraft
protection, and other like services, in each case, incurred in the
ordinary course of business,
(17) unsecured
Indebtedness of the Company or any Restricted Subsidiary in respect
of Earn-Outs owing to sellers of assets or Capital Stock to the
Company or a Restricted Subsidiary that is incurred in connection
with the consummation of one or more Permitted
Acquisitions;
(18) accrual
of interest, accretion or amortization of original issue discount,
or the payment of interest in kind, in each case, on Indebtedness
that otherwise constitutes Permitted Indebtedness,
(19) (i)
a guarantee by the Company of any Indebtedness of any Restricted
Subsidiary, provided that such Indebtedness was incurred in
accordance with Section 4.04 and (ii) a guarantee by any Restricted
Subsidiary of any Indebtedness of the Company provided that (a)
such Indebtedness was incurred in accordance with Section 4.04 and
(b) the Restricted Subsidiary concurrently guarantees the
Securities in accordance with Section 4.08;
(20) the
incurrence by the Company or any Restricted Subsidiary of
Indebtedness in respect of workers’ compensation and claims
arising under similar legislation, captive insurance companies, or
pursuant to self-insurance obligations and not in connection with
the borrowing of money or the obtaining of advances or
credit;
(21) Indebtedness
of a Restricted Subsidiary to the Company or to a Restricted
Subsidiary for so long as such Indebtedness is held by the Company
or a Restricted Subsidiary or the holder of a Lien permitted under
the Indenture, in each case subject to no Lien held by a Person
other than the Company or a Restricted Subsidiary or the holder of
a Lien permitted under the Indenture; provided that if as of any
date any Person other than the Company or a Restricted Subsidiary
or the holder of a Lien permitted under the Indenture owns or holds
any such Indebtedness or holds a Lien in respect of such
Indebtedness, such date shall be deemed the incurrence of
Indebtedness not constituting Permitted Indebtedness under this
clause (21) by the issuer of such Indebtedness;
(22) Indebtedness
of the Company to a Restricted Subsidiary for so long as such
Indebtedness is held by a Restricted Subsidiary or the holder of a
Lien permitted under the Indenture, in each case subject to no Lien
other than a Lien permitted under the Indenture; provided that (a)
any Indebtedness of the Company to any Restricted Subsidiary is
unsecured and subordinated, pursuant to a written agreement, to the
Company’s obligations under the Indenture and the Securities
and (b) if as of any date any Person other than a Restricted
Subsidiary or the holder of a Lien permitted under the Indenture
owns or holds any such Indebtedness or any Person holds a Lien in
respect of such Indebtedness, such date shall be deemed the
incurrence of Indebtedness not constituting Permitted Indebtedness
under this clause (22) by the Company;
(23)
Indebtedness incurred pursuant to that certain Facility Agreement
dated March 31, 2014 among the Company, GFN U.S. Australasia
Holdings, Inc. and Credit Suisse AG in an aggregate principal
amount at any time outstanding not to exceed $25 million
thereunder;
(24) Indebtedness
incurred pursuant to the Master Lease Agreement number 27026-90000
dated April 29, 2014 by and among Banc of America Leasing &
Capital, LLC, Pac-Van, Inc. and Lone Star Tank Rental Inc. in an
aggregate amount at any time outstanding not to exceed $10
million.
(25) Indebtedness
incurred pursuant to the Credit and Security Agreement, dated
October 1, 2012, by and among Southern Frac, LLC, GFN Manufacturing
Corporation, the Company and Wells Fargo Bank, National
Association, as amended as of the date hereof, including any
permitted refinancing thereof, in an aggregate principal amount at
any time outstanding not to exceed $15 million, less the amount of
all required permanent repayments (which are accompanied by a
corresponding permanent commitment reduction
thereunder).
(26) Indebtedness
consisting of (i) Acquired Indebtedness and/or (ii) Additional
Securities or any unsecured Indebtedness of the Company represented
by notes or bonds (A) with terms substantially identical to the
Securities and (B) having a final maturity date no earlier that the
final maturity date of the Securities (and no optional redemption
prior to the final maturity date of the Securities), in all cases
incurred by the Company to finance (or refinance within 180 days of
the incurrence thereof of any Indebtedness incurred to finance) the
acquisition of any assets used in a Permitted Business or all or
substantially all of the Capital Stock of a Person engaged in a
Permitted Business; provided that in the case of both clauses (i)
and (ii) on the date of the incurrence (or refinancing) of such
Indebtedness, after giving effect to the incurrence thereof and the
use of proceeds therefrom, either
(a) the
Company would be permitted to incur at least $1.00 of additional
Indebtedness pursuant to the Section 4.04(a) or
(b) the
Consolidated Fixed Charge Coverage Ratio of the Company would not
be less than the Consolidated Fixed Charge Coverage Ratio of the
Company immediately prior to the incurrence of such
Indebtedness.
(27) Refinancing
Indebtedness;
(28) (i)
any other unsecured Indebtedness incurred by the Company or any of
its Restricted Subsidiaries, including any permitted refinancing
thereof, and (ii) guarantees by the Company of amounts borrowed
under the credit facility described in clause (25) above, in either
case in an aggregate outstanding amount not to exceed at any one
time outstanding the greater of (x) $4.0 million and (y) 1% of
Consolidated Assets of the Company (which amount may, but need not,
be incurred in whole or in part under the Credit
Agreement).
For
purposes of determining compliance with Section 4.04, (1) in the
event that an item of Indebtedness meets the criteria of more than
one of the categories of Permitted Indebtedness described in
clauses (1) through (27) above or is entitled to be incurred
pursuant to the Consolidated Fixed Charge Coverage Ratio provisions
of Section 4.04, the Company shall, in its sole discretion,
classify (or later reclassify) such item of Indebtedness in any
manner that complies with this definition; provided that all
Indebtedness outstanding under the Credit Agreement up to the
maximum amount permitted under clause (2) of this definition above
shall be deemed to have been incurred pursuant to clause (2) of
this definition. For the avoidance of doubt the foregoing will not
prohibit the Company or any of its Restricted Subsidiaries from
incurring Indebtedness in an amount in excess of the amount
permitted to be incurred under clause (2) so long as such Debt
is otherwise Permitted Indebtedness; (2) the outstanding principal
amount of any particular Indebtedness shall be counted only once
and any obligations arising under any guarantee, lien, letter of
credit or similar instrument supporting such Indebtedness shall be
disregarded; (3) the maximum amount of Indebtedness that the
Company or a Restricted Subsidiary may incur pursuant to Section
4.04 shall not be deemed to be exceeded, with respect to any
outstanding Indebtedness, due solely to the result of fluctuations
in the exchange rates of currencies; and (4) the accrual of
interest, accretion or amortization of original issue discount, the
payment of interest on any Indebtedness in the form of additional
Indebtedness with the same terms, and the payment of dividends on
Disqualified Capital Stock in the form of additional shares of the
same class of Disqualified Capital Stock will not be deemed to be
an incurrence of Indebtedness or an issuance of Disqualified
Capital Stock for purposes of Section 4.04.
“Permitted
Investments” means:
(1) Investments
by the Company or any Restricted Subsidiary of the Company in any
Person that is or will become immediately after such Investment a
Restricted Subsidiary of the Company or that will merge or
consolidate into the Company or a Restricted Subsidiary of the
Company;
(2) Investments
in the Company by any Restricted Subsidiary of the
Company;
(3) investments
in cash and Cash Equivalents;
(4) loans
and advances to employees, directors and officers of the Company
and its Restricted Subsidiaries in the ordinary course of business
for bona fide business purposes not in excess of $1.0 million at
any one time outstanding;
(5) Hedge
Agreements entered into in the ordinary course of the
Company’s or its Restricted Subsidiaries’ businesses
and otherwise in compliance with this Indenture;
(6) additional
Investments in an aggregate principal amount not to exceed the
greater of (x) $5.0 million and (y) 1.0% of Consolidated Assets of
the Company at any one time outstanding;
provided,
that if an Investment is made
pursuant to this clause in a Person that is not a Restricted
Subsidiary and such Person subsequently becomes a Restricted
Subsidiary or is subsequently designated a Restricted Subsidiary,
such Investment, if applicable, shall thereafter be deemed to have
been made pursuant to clause (1) or (2) above and not this
clause;
(7) investments
in the Securities and any other Indebtedness of the Company or any
Restricted Subsidiary;
(8)
Investments in securities of trade creditors or customers received
pursuant to any plan of reorganization or similar arrangement upon
the bankruptcy or insolvency of such trade creditors or customers
or in good faith settlement of delinquent obligations of such trade
creditors or customers;
(9) Investments
made by the Company or its Restricted Subsidiaries as a result of
consideration received in connection with an Asset Sale made in
compliance with Section 4.10;
(10) Investments
represented by guarantees of Indebtedness that are otherwise
permitted under this Indenture;
(11) Investments
made by the Company or its subsidiaries in the Capital Stock of
Royal Wolf Holdings Limited;
(12) Investments
the payment for which is Qualified Capital Stock of the Company;
and
(13) Investments
in existence on the date of this Indenture and an Investment in any
Person to the extent such Investment replaces or refinances an
Investment in such Person existing on the date of this Indenture in
an amount not exceeding the amount of the Investment being replaced
or refinanced; provided, however, that the new Investment is on
terms and conditions no less favorable to the Company and its
Restricted Subsidiaries than the Investment being renewed or
replaced.
“Permitted
Liens” means the following types of Liens:
(1) Liens
for taxes, assessments or governmental charges or claims either (a)
not delinquent or (b) contested in good faith by appropriate
proceedings and as to which the Company or its Restricted
Subsidiaries shall have set aside on its books such reserves as may
be required pursuant to GAAP;
(2) statutory
Liens of landlords and Liens of carriers, warehousemen, mechanics,
suppliers, materialmen, repairmen and other Liens imposed by law
incurred in the ordinary course of business for sums not yet
delinquent or being contested in good faith, if such reserve or
other appropriate provision, if any, as shall be required by GAAP
shall have been made in respect thereof;
(3) Liens
incurred or deposits made in the ordinary course of business in
connection with workers’ compensation, unemployment insurance
and other types of social security, including any Lien securing
letters of credit issued in the ordinary course of business
consistent with past practice in connection therewith, or to secure
the performance of tenders, statutory obligations, surety and
appeal bonds, bids, leases, warranty requirements, government
contracts, performance and return-of-money bonds and other similar
obligations (exclusive of obligations for the payment of borrowed
money);
(4) judgment
Liens not giving rise to an Event of Default so long as such Lien
is adequately bonded and any appropriate legal proceedings which
may have been duly initiated for the review of such judgment shall
not have been finally terminated or the period within which such
proceedings may be initiated shall not have expired;
(5) easements,
rights-of-way, zoning restrictions and other similar charges or
encumbrances in respect of real property not interfering in any
material respect with the ordinary conduct of the business of the
Company or any of its Restricted Subsidiaries;
(6) any
interest or title of a lessor under any Capitalized Lease
Obligation; provided that such Liens do not extend to any property
or assets which is not leased property subject to such Capitalized
Lease Obligation other than proceeds thereof;
(7) Liens
securing Purchase Money Indebtedness incurred or in the ordinary
course of business; provided, however, that (a) such Purchase Money
Indebtedness shall not exceed the purchase price or other cost of
such property or equipment and shall not be secured by any property
or equipment of the Company or any Restricted Subsidiary of the
Company other than the property and equipment so acquired and (b)
the Lien securing such Purchase Money Indebtedness shall be created
within 90 days of such acquisition;
(8) Liens
upon specific items of inventory or other goods and proceeds of any
Person securing such Person’s obligations in respect of
letters of credit or bankers’ acceptances issued or created
for the account of such Person to facilitate the purchase, shipment
or storage of such inventory or other goods;
(9) Liens
securing reimbursement obligations with respect to commercial
letters of credit which encumber documents and other property
relating to such letters of credit and products and proceeds
thereof;
(10) Liens
encumbering deposits made to secure obligations arising from
statutory, regulatory, contractual, or warranty requirements of the
Company or any of its Restricted Subsidiaries, including rights of
offset and set-off;
(11) Liens
securing Hedge Agreements which Hedge Agreements relate to
Indebtedness that is otherwise permitted under this
Indenture;
(12) Liens
securing Acquired Indebtedness incurred in accordance with Section
4.04; provided that:
(a) such
Liens secured such Acquired Indebtedness at the time of and prior
to the incurrence of such Acquired Indebtedness by the Company or a
Restricted Subsidiary of the Company and were not granted in
connection with, or in anticipation of, the incurrence of such
Acquired Indebtedness by the Company or a Restricted Subsidiary of
the Company, and
(b) such
Liens do not extend to or cover any property or assets of the
Company or of any of its Restricted Subsidiaries other than the
property or assets that secured the Acquired Indebtedness prior to
the time such Indebtedness became Acquired Indebtedness of the
Company or a Restricted Subsidiary of the Company and are no more
favorable to the lienholders than those securing the Acquired
Indebtedness prior to the incurrence of such Acquired Indebtedness
by the Company or a Restricted Subsidiary of the
Company;
(13) Liens
on assets of a Restricted Subsidiary of the Company that is not a
guarantor of the Securities to secure Indebtedness of such
Restricted Subsidiary that is otherwise permitted under this
Indenture;
(14) leases,
subleases, licenses and sublicenses granted to others that do not
materially interfere with the ordinary cause of business of the
Company and its Restricted Subsidiaries;
(15) banker’s
Liens, rights of setoff and similar Liens with respect to cash and
Cash Equivalents on deposit in one or more bank accounts in the
ordinary course of business;
(16) Liens
arising from filing Uniform Commercial Code financing statements
regarding leases;
(17) Liens
in favor of customs and revenue authorities arising as a matter of
law to secure payments of customs duties in connection with the
importation of goods;
(18) other
Liens securing obligations or Indebtedness for borrowed money with
respect to property or assets with an aggregate fair market value
(valued at the time of creation thereof) of not more than $10.0
million at any time in the aggregate; and
(19) Liens
existing on the Issue Date securing the repayment of amounts
borrowed under the Credit Agreement;
(20) deposits
made in the ordinary course of business to secure liability to
insurance carriers.
“Preferred
Stock” of any Person means any Capital Stock of such Person
that has preferential rights to any other Capital Stock of such
Person with respect to dividends or redemptions or upon
liquidation.
“Purchase
Date” means, with respect to any Security to be repurchased,
the date fixed for such repurchase by or pursuant to this
Indenture.
“Purchase
Price” means the amount payable for the repurchase of any
Security on a Purchase Date, exclusive of accrued and unpaid
interest thereon to the Purchase Date, unless otherwise
specifically provided.
“Permitted
Purchase Money Indebtedness” means, as of any date of
determination, Indebtedness incurred after the Issue Date and at
the time of, or within 20 days after, the acquisition of any fixed
assets for the purpose of financing all or any part of the
acquisition cost thereof, in an aggregate principal amount
outstanding at any one time not in excess of $3
million.
“Qualified
Capital Stock” means any Capital Stock that is not
Disqualified Capital Stock.
“Reference
Treasury Dealer” means a primary U.S. Government securities
dealer in New York City (a “Primary Treasury Dealer”)
chosen by the Company; provided that if such dealer shall cease to
be a Primary Treasury Dealer, the Company shall substitute therefor
another Primary Treasury Dealer.
“Reference
Treasury Dealer Quotations” means, with respect to each
Reference Treasury Dealer and any Redemption Date, the average, as
determined by the Company, of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage
of its principal amount) quoted in writing to the Company by such
Reference Treasury Dealer at 5:00 p.m. (New York City time) on the
third business day preceding such Redemption Date.
“Refinance”
means, in respect of any security or Indebtedness, to refinance,
extend, renew, refund, repay, prepay, redeem, defease or retire, or
to issue a security or Indebtedness in exchange or replacement for,
such security or Indebtedness in whole or in part.
“Refinanced” and “Refinancing” shall have
correlative meanings.
“Refinancing
Indebtedness” means any Refinancing by the Company or any
Restricted Subsidiary of Indebtedness incurred in accordance with
the Section 4.04(a) or described in clauses (1), (2), (3), (4),
(7), (24), (25), (26), (27) and (28) of the definition of Permitted
Indebtedness), in each case that does not:
(1) result
in an increase in the aggregate principal amount of Indebtedness of
such Person as of the date of such proposed Refinancing above the
sum of (i) the aggregate principal amount of such Indebtedness,
plus (ii) the accrued interest on and amount of any premium
required to be paid under the terms of the instrument governing
such Indebtedness, plus (iii) the amount of reasonable expenses
incurred by the Company in connection with such Refinancing;
or
(2) create
Indebtedness with: (a) a Weighted Average Life to Maturity that is
less than the Weighted Average Life to Maturity of the Indebtedness
being Refinanced; or (b) a final maturity earlier than the final
maturity of the Indebtedness being Refinanced;
provided
that (x) if such Indebtedness being Refinanced is Indebtedness
solely of the Company (and is not otherwise guaranteed by a
Restricted Subsidiary of the Company), then such Refinancing
Indebtedness shall be Indebtedness solely of the Company and (y) if
such Indebtedness being Refinanced is subordinate or junior to the
Securities, then such Refinancing Indebtedness shall be subordinate
to the Securities at least to the same extent and in the same
manner as the Indebtedness being Refinanced.
“Restricted
Subsidiary” means any Subsidiary that has not been designated
as an “Unrestricted Subsidiary” in accordance with this
Indenture.
“Sale and
Leaseback Transaction” means any direct or indirect
arrangement with any Person or to which any such Person is a party,
providing for the leasing to the Company or a Restricted Subsidiary
of any property, whether owned by the Company or any Restricted
Subsidiary at the Issue Date or later acquired, which has been or
is to be sold or transferred by the Company or such Restricted
Subsidiary to such Person or to any other Person from whom funds
have been or are to be advanced by such Person on the security of
such Property.
“Significant
Subsidiary”, with respect to any Person, means any Subsidiary
of such Person that satisfies the criteria for a “significant
subsidiary” set forth in Rule 1.02(w) of Regulation S-X under
the Exchange Act.
“Subordinated
Indebtedness” means Indebtedness of the Company that is
subordinated or junior in right of payment to the
Securities.
“Subsidiary”
of a Person means a corporation, partnership, joint venture,
limited liability company or other business entity of which a
majority of the shares of securities or other interests having
ordinary voting power for the election of directors or other
governing body (other than securities or interests having such
power only by reason of the happening of a contingency) are at the
time beneficially owned, or the management of which is otherwise
controlled, directly, or indirectly through one or more
intermediaries, or both, by such Person.
“Subsidiary
Guarantee” means any guarantee of the Securities by any
Restricted Subsidiary.
“Treasury
Rate” means, with respect to any Redemption Date, the rate
per annum equal to the yield to maturity of the Comparable Treasury
Issue, compounded semi-annually, assuming a price for such
Comparable Treasury Issue (expressed as a percentage of its
principal amount) equal to the Comparable Treasury Price for such
Redemption Date.
“Unrestricted
Subsidiary” of any Person means:
(1) unless
otherwise designated by the Company’s Board of Directors,
Royal Wolf Holdings Limited, an Australian corporation, and its
subsidiaries;
(2) any
Subsidiary of the Company that at the time of determination shall
be or continue to be designated an Unrestricted Subsidiary by the
Board of Directors of the Company in the manner provided below;
and
(3) any
Subsidiary of an Unrestricted Subsidiary.
The
Board of Directors may designate any Subsidiary (including any
newly acquired or newly formed Subsidiary) to be an Unrestricted
Subsidiary unless such Subsidiary owns any Capital Stock of, or
owns or holds any Lien on any property of, the Company or any other
Subsidiary of the Company that is not a Subsidiary of the
Subsidiary to be so designated; provided that:
(1) the
Company certifies to the Trustee that such designation complies
with Section 4.7; and
(2) each
Subsidiary to be so designated and each of its Subsidiaries has not
at the time of designation, and does not thereafter, create, incur,
issue, assume, guarantee or otherwise become directly or indirectly
liable with respect to any Indebtedness pursuant to which the
lender has recourse to any of the assets of the Company or any of
its Restricted Subsidiaries.
For
purposes of making the determination of whether any such
designation of a Subsidiary as an Unrestricted Subsidiary complies
with Section 4.7, the portion of the fair market value of the net
assets of such Subsidiary of the Company at the time that such
Subsidiary is designated as an Unrestricted Subsidiary that is
represented by the interest of the Company and its Restricted
Subsidiaries in such Subsidiary, in each case as determined in good
faith by the Board of Directors of the Company, shall be deemed to
be an Investment. Such designation will be permitted only if such
Investment would be permitted at such time under Section
4.7.
The
Board of Directors may designate any Unrestricted Subsidiary to be
a Restricted Subsidiary only if:
(1) immediately
after giving effect to such designation, the Company is able to
incur at least $1.00 of additional Indebtedness (other than
Permitted Indebtedness) in compliance with Section 4.04;
and
(2) immediately
before and immediately after giving effect to such designation, no
Default or Event of Default shall have occurred and be
continuing.
Any
such designation by the Board of Directors shall be evidenced to
the Trustee by promptly filing with the Trustee a copy of the Board
Resolution giving effect to such designation and an Officer’s
Certificate certifying that such designation complied with the
foregoing provisions.
“Weighted
Average Life to Maturity” means, when applied to any
Indebtedness at any date, the number of years obtained by dividing
(a) the then outstanding aggregate principal amount of such
Indebtedness into (b) the sum of the total of the products obtained
by multiplying (i) the amount of each then remaining installment,
sinking fund, serial maturity or other required payment of
principal, including payment at final maturity, in respect thereof,
by (ii) the number of years (calculated to the nearest one-twelfth)
which will elapse between such date and the making of such
payment.
“Wholly Owned
Restricted Subsidiary” of any Person means any Wholly Owned
Subsidiary of such Person which at the time of determination is a
Restricted Subsidiary of such Person.
“Wholly Owned
Subsidiary” of any Person means any Subsidiary of such Person
of which all the outstanding voting securities (other than in the
case of a foreign Subsidiary, directors’ qualifying shares or
an immaterial amount of shares required to be owned by other
Persons pursuant to applicable law) are owned by such Person or any
Wholly Owned Subsidiary of such Person.
Section
.02
Other
Definitions
.
|
Term
|
Defined
in Section
|
|
“Affiliate
Transaction”
|
4.06(a)
|
|
“Change
of Control
Offer”
|
3.02(a)
|
|
“Change
of Control
Period”
|
3.02(d)
|
|
“incur”
|
4.04
|
|
|
|
|
“Interest
Payment
Date”
|
2.04(c)
|
|
“Maturity
Date”
|
2.04(b)
|
|
“Net
Proceeds
Offer”
|
4.05(b)
|
|
“Net
Proceeds Offer Trigger
Date”
|
4.05(B)
|
|
“Regular
Record
Date”
|
2.04(c)
|
Section
.03
Incorporation
by Reference of Trust Indenture Act
.
This
First Supplemental Indenture is subject to the mandatory provisions
of the TIA, which are incorporated by reference in and made a part
of this First Supplemental Indenture. The following TIA terms have
the following meanings:
“Commission”
means the SEC.
“indenture
securities” means the Securities.
“indenture
security holder” means a Holder.
“indenture to
be qualified” means this First Supplemental
Indenture.
“indenture
trustee” or “institutional trustee” means the
Trustee.
“obligor”
on the indenture securities means the Company and any other obligor
on the indenture securities.
All
other TIA terms used in this First Supplemental Indenture that are
defined by the TIA, defined by TIA reference to another statute or
defined by SEC rules promulgated under the TIA have the meanings
assigned to them by such definitions.
ARTICLE II
APPLICATION
OF SUPPLEMENTAL INDENTURE
AND
CREATION, FORMS, TERMS AND CONDITIONS OF SECURITIES
Section
.01
Application
of this First Supplemental Indenture
. Notwithstanding any
other provision of this First Supplemental Indenture, the
provisions of this First Supplemental Indenture, including the
covenants set forth herein, are expressly and solely for the
benefit of the Holders of the Securities. The Securities constitute
a separate series of Securities as provided in Section 2.1 of
the Indenture.
Section
.02
Creation
of the Securities
. In accordance with Section 2.1 of the
Indenture, the Company hereby creates the Securities as a separate
series of its Securities issued pursuant to the Indenture. The
Securities shall be issued initially in an aggregate principal
amount of up to $_______.
Section
.03
Form
of the Securities
. The Securities shall each be issued in
the form of a Global Security, duly executed by the Company and
authenticated by the Trustee, which shall be deposited with the
Trustee as custodian for DTC and registered in the name of
“Cede & Co.,” as the nominee of DTC. The Securities
shall be substantially in the form of
Exhibit A
attached hereto. So
long as DTC, or its nominee, is the registered owner of a Global
Security, DTC or its nominee, as the case may be, shall be
considered the sole owner or Holder of the Securities represented
by such Global Security for all purposes under the Indenture and
under such Securities. Ownership of beneficial interests in such
Global Security shall be shown on, and transfers thereof will be
effective only through, records maintained by DTC or its nominee
(with respect to beneficial interests of participants) or by
participants or Persons that hold interests through participants
(with respect to beneficial interests of beneficial owners). The
Securities shall not be issuable in temporary global
form.
Section
.04
Terms
and Conditions of the Securities
.
The
Securities shall be governed by all the terms and conditions of the
Indenture, as supplemented by this First Supplemental Indenture. In
particular, the following provisions shall be terms of the
Securities:
(a)
Title and Conditions of the
Securities
. The title of the Securities shall be as
specified in the Recitals; and the aggregate principal amount of
the Securities shall be as specified in Section 2.02 of this
Article II, except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, the
Securities pursuant to Sections 2.8, 2.9, 2.13, 2.16, 5.7 or 9.5 of
the Indenture.
(b)
Stated Maturity
. The Securities
shall mature, and the principal of the Securities shall be due and
payable in U.S. Dollars to the Holders thereof, together with
all accrued and unpaid interest thereon, on _________ (the
“
Maturity
Date
”).
(c)
Payment of Principal and
Interest
. The Securities shall bear interest at ____% per
annum, from and including __________, or from the most recent
Interest Payment Date (as defined hereafter) on which interest has
been paid or provided for until the principal thereof becomes due
and payable, and on any overdue principal. Interest shall be
calculated on the basis of a 360-day year comprised of twelve
30-day months. Interest on the Securities shall be payable
quarterly in arrears in U.S. Dollars on January 31, April 30, July
31 and October 31 of each year, commencing on _________ (each such
date, a “
Interest
Payment Date
” for the purposes of the Securities under
this First Supplemental Indenture). Payments of interest shall be
made to the Person in whose name a Security (or predecessor
Security) is registered (which shall initially be the Depositary)
at the close of business on the January 15, April 15, July 15 and
October 15 (whether or not that date is a Business Day), as the
case may be, immediately preceding such Interest Payment Date (each
such date, a “
Regular Record Date
” for
the purposes of the Securities under this First Supplemental
Indenture).
(d)
Registration and Form
. The
Securities shall be issuable as registered securities as provided
in Section 2.03 of this Article II. The form of the Securities
shall be as set forth in
Exhibit A
attached hereto. The
Securities shall be issued and may be transferred only in minimum
denomination of $[*] and integral multiples of $[*] in excess
thereof. All payments of principal, Redemption Price, any purchase
price relating to a Change of Control Offer and accrued unpaid
interest in respect of the Securities shall be made by the Company
as set forth in the Securities.
(e)
Legal Defeasance and Covenant
Defeasance
. The provisions for legal defeasance in Section
8.2 of the Indenture, and the provisions for covenant defeasance in
Section 8.3 of the Indenture, shall be applicable to the
Securities.
(f)
Further Issuance
.
Notwithstanding anything to the contrary contained herein or in the
Indenture, the Company may, from time to time, without the consent
of or notice to the Holders, create and issue further securities
having the same interest rate, maturity and other terms (except for
the issue date, the public offering price and the first Interest
Payment Date) as, ranking equally and ratably with, the Securities.
Additional Securities issued in this manner shall be consolidated
with and shall form a single series with the previously outstanding
Securities.
(g)
Redemption
. The Securities are
subject to redemption by the Company in whole or in part in the
manner described herein.
(h)
Ranking
. The Securities will be
the Company’s unsecured and unsubordinated obligations and
will rank equally with all of its current and future unsecured and
unsubordinated indebtedness and senior to all of its current and
future subordinated debt.
(i)
Sinking Fund
. The Securities
are not entitled to any sinking fund.
(j)
Additional
Amounts. No Additional Amounts shall be payable with respect to the
Securities.
(k)
Other Terms and Conditions
. The
Securities shall have such other terms and conditions as provided
herein.
ARTICLE III
REDEMPTION
AND REPURCHASE
Section
.01
Optional
Redemption
.
(a)
Prior to _________,
the Securities are subject to redemption, in whole or in part, from
time to time, at the Company’s option at a Redemption Price
equal to the sum of:
(i)
100% of the
principal amount of the Securities to be redeemed, and
(ii)
the excess, if any,
of (A) the present value at such redemption date of (i) the
redemption price of such Security on _________ (as described in the
immediately succeeding paragraph but excluding accrued and unpaid
interest to the redemption date) plus (ii) all remaining scheduled
interest payments due on the Securities through _________ (but
excluding accrued and unpaid interest to the redemption date),
discounted to the redemption date on a semi-annual basis (assuming
a 360-day year consisting of twelve 30-day months) at the Treasury
Rate plus 50 basis points, over (B) the principal amount of the
Securities on the redemption date.
plus,
in either case, accrued and unpaid interest, if any, to the
Redemption Date (subject to the right of Holders on the relevant
record date to receive interest due on the relevant Interest
Payment Date).
On and after
_________, the Securities are subject to redemption, in whole or in
part, from time to time, at the Company’s option at the
following redemption prices (expressed as percentages of the
principal amount thereof) if redeemed during the twelve-month
period commencing on July 31 of the year set forth
below:
|
Year
|
Percentage
|
|
[*]
|
[*]%
|
|
[*]
|
[*]%
|
|
[*]
|
[*]%
|
|
[*] and
thereafter
|
[*]%;
|
plus
accrued and unpaid interest, if any, to the Redemption Date
(subject to the right of Holders on the relevant record date to
receive interest due on the relevant Interest Payment
Date).
(b)
Redemption Following Equity
Offering
. Prior to _________, upon not less than 30 nor more
than 60 days’ written notice, the Company may on any one or
more occasions redeem up to 35% of the aggregate principal amount
of the Securities at a redemption price equal to [*]% of the
principal amount of the Securities being redeemed plus accrued and
unpaid interest, if any, to, but not including, the redemption date
(subject to the rights of holders of Securities on the relevant
record date to receive interest on the relevant interest payment
date), with the net cash proceeds from one or more Equity
Offerings. The Company may only do this, however, if:
(i) at
least 65% of the aggregate principal amount of the Securities that
were initially issued under the Indenture (excluding Securities
held by the Issuer or any of its Subsidiaries) would remain
outstanding immediately after the occurrence of such proposed
redemption; and
(ii)
the redemption occurs within 180 days after the closing of such
Equity Offering.
Notice
of any redemption upon any Equity Offering may be given prior to
the completion thereof, and any such redemption or notice may, at
the Company’s discretion, be subject to one or more
conditions precedent, including, but not limited to, completion of
the related Equity Offering.
Section
.02
Repurchase upon Change of Control
Offer
.
(a)
Upon the
occurrence of a Change of Control, each Holder will have the right
to require that the Company purchase all or a portion of such
Holder’s Securities pursuant to the offer described below
(the “
Change of
Control Offer
”), at a purchase price equal to 101% of
the principal amount thereof plus accrued and unpaid interest
thereon to the Purchase Date.
(b)
The Company will
not be required to make a Change of Control Offer upon a Change of
Control if a third party makes the Change of Control Offer in the
manner, at the times and otherwise in compliance with the
requirements set forth in this Supplemental Indenture applicable to
a Change of Control Offer made by the Company and purchases all
Securities validly tendered and not withdrawn under such Change of
Control Offer.
(c)
The Company shall
comply with the requirements of Rule 14e-1 under the Exchange Act
and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with
the repurchase of Securities pursuant to a Change of Control Offer.
To the extent that the provisions of any securities laws or
regulations conflict with this Section 3.02, the Company shall
comply with the applicable securities laws and regulations and
shall not be deemed to have breached its obligations under this
Section 3.02 by virtue thereof.
(d)
The Change of
Control Offer shall remain open for a period from the date of the
mailing of the notice of the Change of Control Offer described in
paragraph (c) until a date determined by the Company which is at
least 30 but no more than 60 days from the date of mailing of such
notice and no longer, except to the extent that a longer period is
required by applicable law (the “
Change of Control Offer
Period
”). On the Purchase Date, which shall be no
earlier than 30 days prior to the last day of the Change of Control
Offer Period and no later than such last day, the Company shall
purchase the principal amount of Securities properly tendered in
response to the Change of Control Offer. Payment for any Securities
so purchased shall be made in the same manner as interest payments
are made.
(e)
Within 30 days
following any Change of Control, the Company shall send, by first
class mail (or, in the case of Securities held in book-entry form,
by electronic transmission) , a notice to the Trustee and the
Paying Agent and each of the Holders. The notice shall contain all
instructions and materials necessary to enable such Holders to
tender Securities pursuant to the Change of Control Offer. The
Change of Control Offer shall be made to all Holders. The notice,
which shall govern the terms of the Change of Control Offer, shall
state:
(i)
the transaction or
transactions that constitute the Change of Control, providing
information, to the extent publicly available, regarding the Person
or Persons acquiring control, and stating that the Change of
Control Offer is being made pursuant to this Section 3.02 and that,
to the extent lawful, all Securities properly tendered will be
accepted for payment;
(ii)
the
Purchase Price, the last day of the Change of Control Offer Period,
and the Purchase Date;
(iii)
that
any Security not properly tendered or otherwise not accepted for
repurchase will continue to accrue interest;
(iv)
that,
unless the Company defaults in the payment of the amount due on the
Purchase Date, all Securities or portions thereof accepted for
repurchase pursuant to the Change of Control Offer shall cease to
accrue interest after the Purchase Date;
(v)
that Holders
electing to have any Securities purchased pursuant to the Change of
Control Offer will be required to tender the Securities, with the
form entitled Option of Holder to Elect Purchase on the reverse of
the Securities completed, or transfer by book-entry transfer, to
the Company, a Depositary, if appointed by the Company, or a Paying
Agent at the address specified in the notice not later than the
third Business Day preceding the Purchase Date;
(vi)
that
Holders will be entitled to withdraw their election if the Company,
the Depositary or the Paying Agent, as the case may be, receives,
not later than the expiration of the Change of Control Offer
Period, a facsimile transmission or letter setting forth the name
of the Holder, the principal amount of Securities delivered for
repurchase, and a statement that such Holder is withdrawing his
election to have the Securities redeemed in whole or in
part;
(vii)
that
Holders whose Securities are being repurchased only in part will be
issued new Securities equal in principal amount to the portion of
the Securities tendered (or transferred by book-entry transfer)
that is not to be repurchased, which portion must be equal to
$[*]in principal amount or an integral multiple of $[*] in excess
thereof; and
(viii)
that,
notwithstanding anything herein to the contrary, all Securities
held in book entry form shall be tendered and withdrawn in
accordance with the applicable procedures of the
Depositary
.
(f)
On or before 10:00
A.M. (New York City time) on the Purchase Date, the Company shall
to the extent lawful, (i) accept for payment all Securities or
portions thereof properly tendered pursuant to the Change of
Control Offer, (ii) deposit with the Paying Agent an amount equal
to the Purchase Price, together with accrued and unpaid interest
thereon to the Purchase Date in respect of all Securities or
portions thereof so tendered and accepted for repurchase and (iii)
deliver or cause to be delivered to the Trustee the Securities so
accepted together with an Officers’ Certificate stating the
aggregate principal amount of Securities or portions thereof being
repurchased by the Company. The Paying Agent shall promptly (but in
any case not later than five days after the Purchase Date) mail to
each Holder of Securities so repurchased the amount due in
connection with such Securities, and the Company shall promptly
issue a new Security, and the Trustee, upon written request from
the Company in the form of an Officer’s Certificate shall
authenticate and mail or deliver (or cause to transfer by book
entry) to each relevant Holder a new Security, in a principal
amount equal to any unpurchased portion of the Securities
surrendered to the Holder thereof;
provided
that each such new Security
shall be in a principal amount of $[*] or an integral multiple of
$[*] in excess thereof. The Company shall publicly announce the
results of the Change of Control Offer on or as soon as practicable
after the Purchase Date.
(g)
If the Purchase
Date is on or after an interest record date and on or before the
related interest payment date, any accrued and unpaid interest in
each case to the Purchase Date, shall be paid to the Person in
whose name a Security is registered at the close of business on
such record date, and no additional interest shall be payable to
Holders pursuant to the Change of Control Offer.
Section
.03
Repurchase upon Application of Net
Proceeds
.
(a)
In the event that,
pursuant to Section 4.05, the Company shall be required to commence
a Net Proceeds Offer, it shall follow the procedures specified in
this Section 3.03.
(b)
The notice of a Net
Proceeds Offer shall contain all instructions and materials
necessary to enable such Holders to tender Securities pursuant to
the Net Proceeds Offer. Each Net Proceeds Offer will be sent to all
record Holders as shown on the register of Holders within 30 days
following the Net Proceeds Offer Trigger Date, with a copy to the
Trustee, and shall comply with the procedures set forth in this
Indenture. Upon receiving notice of the Net Proceeds Offer, Holders
may elect to tender their Securities in whole or in part in a
principal amount of $[*] (or integral multiples of $[*] in excess
thereof) in exchange for cash. A Net Proceeds Offer shall remain
open for a period of 20 Business Days or such longer period as may
be required by law. Upon the expiration of that period, the Company
shall promptly (but in any event within three Business Days
following such expiration) purchase the Securities and any such
other pari passu Indebtedness properly tendered in accordance with
this Section 3.03 and Section 4.05. The notice, which shall govern
the terms of the Net Proceeds Offer, shall state:
(i)
that the Net
Proceeds Offer is being made pursuant to this Section 3.03 and
Section 4.05;
(ii)
the
Net Proceeds Offer Amount, the Purchase Price and the Purchase
Date;
(iii)
that
any Security not properly tendered or otherwise not accepted for
repurchase shall continue to accrue interest;
(iv)
that,
unless the Company defaults in the payment of the amount due on the
Purchase Date, all Securities or portions thereof accepted for
repurchase pursuant to the Net Proceeds Offer shall cease to accrue
interest after the Purchase Date;
(v)
that Holders
electing to have any Securities repurchased pursuant to any Net
Proceeds Offer shall be required to tender the Securities, with the
form entitled Option of Holder to Elect Purchase on the reverse of
the Securities completed, or transfer by book-entry transfer, to
the Company, a Depositary, if appointed by the Company, or a Paying
Agent at the address specified in the notice prior to the close of
business on the third Business Day preceding the Purchase
Date;
(vi)
that
Holders will be entitled to withdraw their election if the Company,
the Depositary or the Paying Agent, as the case may be, receives,
not later than expiration time by facsimile transmission a letter
setting forth the name of the Holder, the principal amount of the
Securities delivered for repurchase and a statement that such
Holder is withdrawing his election to have such Securities
repurchased in whole or in part; and
(vii)
that,
to the extent Holders properly tender Securities (along with any
other pari passu Indebtedness of the Company properly tendered) in
an amount exceeding the Net Proceeds Offer Amount, the tendered
Securities will be purchased
pro
rata
based on the aggregate amounts of Securities and other
pari passu Indebtedness of the Company properly tendered (and the
Trustee shall select the tendered Securities of tendering Holders
pro rata
based on the
amount of Securities and other pari passu Indebtedness of the
Company properly tendered).
(c)
On or before 10:00
A.M. (New York City time) on the Purchase Date, the Company shall
to the extent lawful, (i) accept for payment,
pro rata
in accordance with this
Indenture to the extent necessary, the Net Proceeds Offer Amount of
Securities or portions thereof properly tendered pursuant to the
Net Proceeds Offer (along with any other pari passu Indebtedness of
the Company properly tendered), or if less than the Net Proceeds
Offer Amount has been tendered, all Securities properly tendered,
(ii) deposit with the Paying Agent an amount equal to the Purchase
Price,
plus
accrued
and unpaid interest thereon to the Purchase Date in respect of all
Securities or portions thereof so tendered and accepted for
repurchase and (iii) deliver or cause to be delivered to the
Trustee the Securities so accepted together with an Officers’
Certificate stating the aggregate principal amount of Securities or
portions thereof being repurchased by the Company. The Paying Agent
shall promptly (but in any case not later than five days after the
Purchase Date) mail to each Holder of Securities so repurchased the
amount due in connection with such Securities, and the Company
shall promptly issue a new Security, and the Trustee, upon written
request from the Company in the form of an Officer’s
Certificate shall authenticate and mail or deliver such new
Security to such Holder, in a principal amount equal to any
unpurchased portion to the Holder thereof;
provided
that each such new Security
shall be in a principal amount of $[*] or an integral multiple of
$[*] in excess thereof. The Company shall publicly announce the
results of the Net Proceeds Offer on or as soon as practicable
after the Purchase Date.
(d)
If the Purchase
Date is on or after an interest record date and on or before the
related interest payment date, any accrued and unpaid interest to
the Purchase Date, shall be paid to the Person in whose name a
Security is registered at the close of business on such record
date, and no additional interest shall be payable to Holders to the
Net Proceeds Offer.
ARTICLE IV
COVENANTS
The
covenants set forth in this Article IV shall be applicable to
the Company in addition to the covenants in Article III of the
Indenture, which shall in all respects be applicable in respect of
the Securities.
Section
.01
Reports
.
(a)
Whether or not
required by the rules and regulations of the Commission, so long as
any Securities are outstanding, the Company will furnish the
Trustee, for delivery to the Holders of the Securities upon their
written request therefor:
(i)
all quarterly and
annual financial information that would be required to be contained
in a filing with the Commission on Forms 10-Q and 10-K if the
Company were required to file such Forms, including a
“Management’s Discussion and Analysis of Financial
Condition and Results of Operations” that describes the
financial condition and results of operations of the Company and
its consolidated Subsidiaries (showing in reasonable detail, either
on the face of the financial statements or in the footnotes thereto
and in “Management’s Discussion and Analysis of
Financial Condition and Results of Operations,” the financial
condition and results of operations of the Company and its
Restricted Subsidiaries separate from the financial condition and
results of operations of the Unrestricted Subsidiaries of the
Company, if any) and, with respect to the annual information only,
a report thereon by the Company’s certified independent
accountants; and
(ii)
all
current reports that would be required to be filed with the
Commission on Form 8-K if the Company were required to file such
reports,
in each case within the time
periods specified in the Commission’s rules and regulations.
The Company shall at all times comply with TIA §
314(a).
Provided
that, the delivery of such reports, information and documents to
the Trustee is for informational purposes only and the Trustee's
receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information
contained therein, including the Company's compliance with any of
its covenants hereunder or under the Indenture (as to which the
Trustee is entitled to rely exclusively on Officers’
Certificates).
(b)
In addition,
whether or not required by the rules and regulations of the
Commission, the Company will file a copy of all such information
and reports with the Commission for public availability within the
time periods specified in the Commission’s rules and
regulations (unless the Commission will not accept such a filing)
and make such information available to securities analysts and
prospective investors upon request.
Section
.02
Limitation on Restricted
Payments
.
(a)
The Company will
not, and will not cause or permit any of its Restricted
Subsidiaries to, directly or indirectly (each of the actions set
forth in clauses (i), (ii), (iii) and (iv) below being referred to
as a “
Restricted
Payment
”):
(i)
declare or pay any
dividend or make any distribution (other than dividends or
distributions payable in Qualified Capital Stock of the Company) on
or in respect of shares of the Company’s Capital Stock to
holders of such Capital Stock;
(ii)
purchase,
redeem or otherwise acquire or retire for value any Capital Stock
of the Company or any warrants, rights or options to purchase or
acquire shares of any class of such Capital Stock (other than any
such Capital Stock or warrants, rights or options owned by the
Company or any Restricted Subsidiary of the Company);
(iii)
make
any principal payment on, purchase, defease, redeem, prepay,
decrease or otherwise acquire or retire for value, prior to any
scheduled final maturity, scheduled repayment or scheduled sinking
fund payment, any Subordinated Indebtedness; or
(iv)
make
any Investment (other than Permitted Investments);
if at
the time of such Restricted Payment or immediately after giving
effect thereto,
(a)
a Default or an
Event of Default shall have occurred and be continuing;
or
(b)
the Company is not
able to incur at least $1.00 of additional Indebtedness (other than
Permitted Indebtedness) in compliance with Section 4.04(a);
or
(c)
the aggregate
amount of Restricted Payments (including such proposed Restricted
Payment) made subsequent to the Issue Date (the amount expended for
such purposes, if other than in cash, being the fair market value
of such property as determined in good faith by the Board of
Directors of the Company) shall exceed the sum of:
(i)
50% of the
cumulative Consolidated Net Income (or if cumulative Consolidated
Net Income shall be a loss, minus 100% of such loss) of the Company
from ___________ to the date the Restricted Payment occurs (the
“
Reference
Date
”) (treating such period as a single accounting
period); plus
(ii)
100% of the
aggregate net cash proceeds (or the fair market value of any
marketable securities or other property) received by the Company
from any Person (other than a Subsidiary of the Company) from the
issuance and sale subsequent to ___________ and on or prior to the
Reference Date of (1) Qualified Capital Stock of the Company, (2)
warrants, options or other rights to acquire Qualified Capital
Stock of the Company (but excluding any debt security that is
convertible into, or exchangeable for, Qualified Capital Stock) or
(3) convertible or exchangeable Disqualified Capital Stock or debt
securities that have been converted or exchanged in accordance with
their terms for Qualified Capital Stock; plus
(iii)
without duplication
of any amounts included in clause (c)(ii) above, 100% of the
aggregate net cash proceeds (or the fair market value of any
marketable securities or other property) from any equity
contribution received by the Company from a holder of the
Company’s Capital Stock subsequent to ___________ and on or
prior to the Reference Date; plus
(iv)
without
duplication, the sum of:
(A)
the aggregate
amount returned in cash on or with respect to Investments (other
than Permitted Investments) made subsequent to ___________ whether
through interest payments, principal payments, dividends or other
distributions or payments;
(B)
the net cash
proceeds received by the Company or any of its Restricted
Subsidiaries from the disposition of all or any portion of such
Investments (other than to a Restricted Subsidiary of the Company);
and
(C)
upon redesignation
of an Unrestricted Subsidiary as a Restricted Subsidiary, the fair
market value of such Subsidiary;
provided
,
however
,
that the sum of clauses (A), (B) and (C) above shall not exceed the
aggregate amount of all such Investments made subsequent to the
Issue Date.
(b)
Notwithstanding the
foregoing, the provisions of paragraph (a) of this Section 4.02 do
not prohibit:
(i)
the payment of any
dividend within 60 days after the date of declaration of such
dividend if the dividend would have been permitted on the date of
declaration;
(ii)
the
redemption, repurchase, purchase, retirement, defeasance or other
acquisition of any shares of Capital Stock of the Company, either
(A) solely in exchange for shares of Qualified Capital Stock of the
Company or (B) through the application of net proceeds of a
substantially concurrent sale for cash (other than to a Restricted
Subsidiary of the Company) of shares of Qualified Capital Stock of
the Company, provided that such net proceeds are not included in
the calculation described in clause (c) of the preceding
paragraph;
(iii)
the
redemption, repurchase, retirement, defeasance or other acquisition
of any Subordinated Indebtedness either (A) solely in exchange for
shares of Qualified Capital Stock of the Company, or (B) through
the application of net proceeds of a substantially concurrent sale
for cash (other than to a Restricted Subsidiary of the Company) of
(I) shares of Qualified Capital Stock of the Company or (II)
Refinancing Indebtedness provided that such net proceeds are not
included in the calculation described in clause (c) of the
preceding paragraph;
(iv)
so
long as no Default or Event of Default shall have occurred and be
continuing redemption, repurchase, retirement, defeasance or other
acquisition by the Company of Common Stock of the Company from
officers, directors and employees of the Company or any of its
Subsidiaries or their authorized representatives upon the death,
disability or termination of employment of such employees or
termination of their seat on the board of the Company, in an
aggregate amount not to exceed the sum of (x) $250,000 plus (y)
$100,000 in any calendar year since the Issue Date, with any unused
amounts in such calendar year being carried forward to the next
succeeding calendar year;
provided
that the aggregate amount of
repurchases that may be made pursuant to this clause (4) in any
calendar year shall not exceed $250,000 in any calendar
year;
(v)
so long as no
Default or Event of Default shall have occurred and be continuing,
Restricted Payments in an aggregate amount not to exceed $6.0
million;
(vi)
repurchases
of Qualified Capital Stock deemed to occur upon the exercise of
stock options, warrants or other convertible or exchangeable
securities to the extent such Qualified Capital Stock represents a
portion of the exercise price of those stock options, warrants or
other convertible or exchangeable securities;
(vii)
the
payment of any dividend (or, in the case of any partnership or
limited liability company, any similar distribution) by a
Restricted Subsidiary of the Company to the holders of its Capital
Stock on a pro rata basis;
(viii)
the
repurchase of Capital Stock deemed to occur upon the exercise of
stock options to the extent such Capital Stock represents a portion
of the exercise price of those stock options;
(ix)
payments
of cash in lieu of issuing fractional shares upon (i) the
exercise of options or warrants or (ii) the exchange or
conversion of Qualified Capital Stock of any such Person;
and
(x)
the declaration and
payment of dividends to holders of any class or series of
Disqualified Capital Stock of the Company or any Preferred Stock of
any Restricted Subsidiary incurred in accordance with the Section
4.04.
If the
Company makes a Restricted Payment which, at the time of the making
of such Restricted Payment, in the good faith determination of the
Board of Directors of the Company, would be permitted under the
requirements of this Indenture, such Restricted Payment shall be
deemed to have been made in compliance with this Indenture
notwithstanding any subsequent adjustment made in good faith to the
Company’s financial statements affecting Consolidated Net
Income.
In
determining the aggregate amount of Restricted Payments made
subsequent to the Issue Date in accordance with clause (c) of
Section 4.02(a), amounts expended pursuant to clauses (i), (ii)(B),
(iii)(B)(II) and (iv) shall be included in such
calculation.
Section
.03
Limitation on Dividend and Other
Payment Restrictions Affecting Restricted
Subsidiaries
.
The
Company will not, and will not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly, create or
otherwise cause or permit to exist or become effective any
encumbrance or restriction on the ability of any Restricted
Subsidiary of the Company to:
(i)
pay dividends or
make any other distributions on or in respect of its Capital
Stock;
(ii)
make
loans or advances to the Company or any other Restricted Subsidiary
or to pay any Indebtedness or other obligation owed to the Company
or any other Restricted Subsidiary of the Company; or
(iii)
transfer
any of its property or assets to the Company or any other
Restricted Subsidiary of the Company,
except
in each case for such encumbrances or restrictions existing under
or by reason of:
(c)
applicable law,
rule, regulation or order;
(d)
the Indenture and
the Securities;
(e)
the Credit
Agreement;
(f)
customary
non-assignment and similar provisions of any contract, lease or
license entered into in the ordinary course of
business;
(g)
any instrument
governing Acquired Indebtedness, which encumbrance or restriction
is not applicable to any Person, or the properties or assets of any
Person, other than the Person or the properties or assets of the
Person so acquired;
(h)
agreements existing
on the Issue Date and any amendments, restatements, modifications,
renewals, supplements, refundings, replacements or refinancings of
those agreements to the extent and in the manner such agreements
are in effect on the Issue Date;
provided
that the amendments,
restatements, modifications, renewals, supplements, refundings,
replacements or refinancings are not materially more restrictive,
taken as a whole, with respect to such dividend and other payment
restrictions than those contained in those agreements on the Issue
Date (as determined in good faith by the Board of Directors of the
Company);
(i)
any encumbrance or
restriction on the transfer of assets subject to any Lien permitted
under the Indenture imposed by the holder of such
Lien;
(j)
restrictions
imposed by any agreement to sell assets or Capital Stock permitted
under the Indenture to any Person pending the closing of such
sale;
(k)
Permitted Purchase
Money Indebtedness and mortgage financings for property acquired in
the ordinary course of business and Capitalized Lease Obligations
that only impose restrictions on the property so
acquired;
(l)
any agreement
pursuant to which Indebtedness was issued if (i) the encumbrance or
restriction applies only in the event of a payment default or a
default with respect to a financial covenant contained in such
Indebtedness, (ii)(A) the encumbrance or restriction is not
materially more disadvantageous to the holders of the Securities
than is customary in comparable financings (as determined by the
Company) and (B) the Company determines that any such encumbrance
or restriction will not materially affect its ability to make
principal or interest payments on the Securities;
(m)
Indebtedness
permitted to be incurred subsequent to the date of the Indenture
pursuant to Section 4.04;
provided
that such encumbrances or
restrictions are no less favorable to the Company, taken as a
whole, in any material respect than the encumbrances or
restrictions contained in the Credit Agreement as in effect on the
Issue Date;
(n)
customary
provisions in joint venture agreements, Sale and Leaseback
Transactions and other similar agreements (in each case relating
solely to the respective joint venture or similar entity or the
equity interests therein) entered into in the ordinary course of
business; and
(o)
an agreement
governing Indebtedness incurred to Refinance the Indebtedness
issued, assumed or incurred pursuant to an agreement referred to in
clauses (b) and (d) through (k) above; provided, however, that the
provisions relating to such encumbrance or restriction contained in
any such Indebtedness are no less favorable to the Company in any
material respect as determined by the Company’s Board of
Directors in their reasonable and good faith judgment than the
provisions relating to such encumbrance or restriction contained in
agreements referred to in such clauses (b) and (d) through
(k).
Section
.04
Limitation on Incurrence of Additional
Indebtedness
.
(a)
The Company will
not, and will not permit any of its Restricted Subsidiaries to,
directly or indirectly, create, incur, assume, guarantee, acquire,
become liable, contingently or otherwise, with respect to, or
otherwise become responsible for payment of (collectively,
“incur”) any Indebtedness (other than Permitted
Indebtedness);
provided,
however
, that if no Default or Event of Default shall have
occurred and be continuing at the time of or as a consequence of
the incurrence of any such Indebtedness, the Company or any of its
Restricted Subsidiaries may incur Indebtedness (including, without
limitation, Acquired Indebtedness), in each case if on the date of
the incurrence of such Indebtedness, after giving effect to the
incurrence thereof, the Consolidated Fixed Charge Coverage Ratio of
the Company is greater than 2.0 to 1.0.
(b)
The Company will
not, and will not permit any Restricted Subsidiary to directly or
indirectly, incur any Indebtedness which by its terms (or by the
terms of any agreement governing such Indebtedness) is expressly
subordinated in right of payment to any other Indebtedness of the
Company or such Restricted Subsidiary, as the case may be, unless
such Indebtedness is also by its terms (or by the terms of any
agreement governing such Indebtedness) made expressly subordinate
to the Securities to the same extent and in the same manner as such
Indebtedness is subordinated to other Indebtedness of the Company
or such Restricted Subsidiary, as the case may be.
Section
.05
Limitation on Asset
Sales
.
(a)
The Company will
not, and will not permit any of its Restricted Subsidiaries to,
consummate an Asset Sale unless:
(i)
the
Company or the applicable Restricted Subsidiary, as the case may
be, receives consideration at the time of such Asset Sale at least
equal to the fair market value of the assets sold or otherwise
disposed of (as determined in good faith by the Company’s
Board of Directors);
(ii)
at
least 75% of the consideration received by the Company or the
Restricted Subsidiary, as the case may be, from such Asset Sale
shall be in the form of cash, Cash Equivalents and/or Replacement
Assets (as defined below) (or a combination thereof) and is
received at the time of such disposition;
provided
that
(A)
the amount of any
liabilities (as shown on the Company’s or such Restricted
Subsidiary’s most recent balance sheet) of the Company or any
such Restricted Subsidiary (other than liabilities that are by
their terms subordinated to the Securities) that are assumed by the
transferee of any such assets;
(B)
the fair market
value of any securities or other assets received by the Company or
any such Restricted Subsidiary in exchange for any such assets that
are converted into cash within 180 days after such Asset Sale;
and
(C)
any of the assets
described in clauses (iii)(B) and (C)
shall
be deemed to be cash for purposes of this provision;
and
(iii)
upon
the consummation of an Asset Sale, the Company shall apply, or
cause such Restricted Subsidiary to apply, the Net Cash Proceeds
relating to such Asset Sale within 365 days of receipt thereof
either:
(A)
to repay (i) any
Obligations under the Credit Agreement and effect a permanent
reduction in the availability under such Credit Agreement and (ii)
in the case of an Asset Sale by a Restricted Subsidiary,
Obligations of such Restricted Subsidiary;
(B)
to invest or commit
to invest in properties and assets that replace the properties and
assets that were the subject of such Asset Sale or in properties
and assets (including Capital Stock) that will be used in the
business of the Company and its Restricted Subsidiaries as existing
on the Issue Date or in businesses reasonably related thereto
(“Replacement Assets”);
(C)
to acquire or
commit to acquire all or substantially all of the assets of, or a
majority of the voting Capital Stock of a Permitted Business;
and/or
(D)
a combination of
prepayment and investment permitted by the foregoing clauses
(iii)(A) through (iii)(C);
provided
that in the case of a commitment under clauses (B)
and (C) above made prior to the expiration of such 365-day period,
such investment or acquisition shall be deemed to comply with this
covenant if consummated within six months after such
commitment.
(b)
When the Net Cash
Proceeds from Asset Sales not applied or invested as provided in
the preceding paragraph total $5.0 million or more (each, a
“
Net Proceeds Offer
Trigger Date
”), the Company will, within 30 days, make
an offer to purchase (the “
Net Proceeds Offer
”) to
all Holders and, to the extent required by the terms of any Pari
Passu Debt, an offer to purchase to all holders of such Pari Passu
Debt, on a date (the “
Net Proceeds Offer Payment
Date
”) not less than 30 nor more than 60 days
following the applicable Net Proceeds Offer Trigger Date, from all
Holders (and holders of any Pari Passu Debt) on a
pro rata
basis, that amount of
Securities (and Pari Passu Debt) equal to the Net Proceeds Offer
Amount at a price equal to 100% of the principal amount of the
Securities (and Pari Passu Debt) to be purchased, plus accrued and
unpaid interest thereon, if any, to the date of purchase;
provided
,
however
, that if at any time any
non-cash consideration received by the Company or any Restricted
Subsidiary of the Company, as the case may be, in connection with
any Asset Sale is converted into or sold or otherwise disposed of
for cash (other than as contemplated by clause 2(b) above and other
than interest received with respect to any such non-cash
consideration), then such conversion or disposition shall be deemed
to constitute an Asset Sale hereunder and the Net Cash Proceeds
thereof shall be applied in accordance with this
covenant.
(c)
In the event of the
transfer of substantially all (but not all) of the property and
assets of the Company and its Restricted Subsidiaries as an
entirety to a Person in a transaction permitted under Article V
hereof, which transaction does not constitute a Change of Control,
the successor corporation shall be deemed to have sold the
properties and assets of the Company and its Restricted
Subsidiaries not so transferred for purposes of this covenant, and
shall comply with the provisions of this covenant with respect to
such deemed sale as if it were an Asset Sale. In addition, the fair
market value of such properties and assets of the Company or its
Restricted Subsidiaries deemed to be sold shall be deemed to be Net
Cash Proceeds for purposes of this covenant.
(d)
Each Net Proceeds
Offer will be mailed to the record Holders as shown on the register
of Holders within 30 days following the Net Proceeds Offer Trigger
Date, with a copy to the Trustee, and shall comply with the
procedures set forth in this Indenture. Upon receiving notice of
the Net Proceeds Offer, Holders may elect to tender their
Securities in whole or in part in a principal amount of $[*] and
integral multiples of $[*] in excess thereof in exchange for cash.
To the extent Holders properly tender Securities in an amount
exceeding the Net Proceeds Offer Amount, Securities of tendering
Holders will be purchased on a
pro
rata
basis (based on amounts tendered). A Net Proceeds Offer
shall remain open for a period of 20 business days or such longer
period as may be required by law. If any Net Cash Proceeds remain
after the consummation of any Net Proceeds Offer, the Company may
use those Net Cash Proceeds for any purpose not otherwise
prohibited by this Indenture. Upon completion of each Net Proceeds
Offer, the amount of Net Cash Proceeds will be reset at
zero.
(e)
The Company will
comply with the requirements of Rule 14e-1 under the Exchange Act
and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with
the repurchase of Securities pursuant to a Net Proceeds Offer. To
the extent that the provisions of any securities laws or
regulations conflict with this Section 4.05 or Section 3.03, the
Company shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its
obligations under this Section 4.05 or Section 3.03 by virtue
thereof.
Section
.06
Limitations on Transactions with
Affiliates
.
(a)
The Company will
not, and will not permit any of its Restricted Subsidiaries to,
directly or indirectly, enter into or permit to exist any
transaction or series of related transactions (including, without
limitation, the purchase, sale, lease or exchange of any property
or the rendering of any service) with, or for the benefit of, any
of its Affiliates (each, an “
Affiliate Transaction
”),
other than (x) Affiliate Transactions permitted under paragraph (c)
of this Section and (y) Affiliate Transactions on terms that are no
less favorable than those that might reasonably have been obtained
in a comparable transaction at such time on an arm’s-length
basis from a Person that is not an Affiliate of the Company or such
Restricted Subsidiary (as determined in good faith by the Board of
Directors of the Company).
(b)
All Affiliate
Transactions (and each series of related Affiliate Transactions
which are similar or part of a common plan) involving aggregate
payments or other property with a fair market value in excess of
$1.0 million must be approved by the Company’s Board of
Directors or such Restricted Subsidiary, as the case may be, such
approval to be evidenced by a Board Resolution stating that such
Board of Directors has determined that such transaction complies
with the foregoing provisions. If the Company or any Restricted
Subsidiary enters into an Affiliate Transaction (or a series of
related Affiliate Transactions related to a common plan) that
involves an aggregate fair market value of more than $2.5 million,
the Company or such Restricted Subsidiary, as the case may be,
shall, prior to the consummation thereof, obtain a written opinion
stating that the Affiliate Transaction or series of related
Affiliate Transactions is (i) fair to the Company or the relevant
Restricted Subsidiary, as the case may be, from a financial point
of view, from an Independent Financial Advisor or (ii) on terms not
less favorable than might have been obtained in a comparable
transaction at such time on an arm’s length basis from a
Person who is not an Affiliate, and file the same with the
Trustee.
(c)
The restrictions
set forth in paragraphs (a) and (b) shall not apply
to:
(i)
reasonable
fees and compensation (including the payment of reasonable and
customary benefits (including retirement, health, option, deferred
compensation and other benefits plans) to officers and employees of
the Company) paid to, and indemnity provided on behalf of,
officers, directors, employees or consultants of the Company or any
Restricted Subsidiary of the Company as determined in good faith by
the Company’s Board of Directors or senior
management;
(ii)
transactions
exclusively between or among the Company and any of its Restricted
Subsidiaries or exclusively between or among such Restricted
Subsidiaries,
provided
such
transactions are not otherwise prohibited by this
Indenture;
(iii)
any
agreement as in effect as of the Issue Date or any amendment
thereto or any transaction contemplated thereby (including pursuant
to any amendment thereto) in any replacement agreement thereto so
long as any such amendment or replacement agreement is not more
disadvantageous to the Holders in any material respect than the
original agreement as in effect on the Issue Date;
(iv)
Restricted
Payments or Permitted Investments permitted by this Indenture;
and
(v)
the
issuance of Qualified Capital Stock of the Company otherwise
permitted hereunder.
Section
.07
Limitation on
Liens
.
The
Company will not, and will not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly, create, incur,
assume or permit or suffer to exist any Liens of any kind against
or upon any property or assets of the Company or any of its
Restricted Subsidiaries whether owned on the Issue Date or acquired
after the Issue Date, or any proceeds therefrom, or assign or
otherwise convey any right to receive income or profits therefrom
unless:
(a)
in the case of
Liens securing Subordinated Indebtedness or the Securities, as the
case may be, are secured by a Lien on such property, assets or
proceeds that is senior in priority to such Liens; and
(b)
in all other cases,
the Securities are equally and ratably secured,
except
for:
(i)
Liens existing as
of the Issue Date to the extent and in the manner such Liens are in
effect on the Issue Date;
(ii)
Liens
securing Indebtedness and other Obligations under Credit Facilities
in an aggregate amount not to exceed the amount permitted to be
incurred pursuant to clause (2) of the definition of
“Permitted Indebtedness”;
(iii)
Liens
securing the Securities or any guarantee thereof;
(iv)
Liens
of the Company or a Wholly Owned Restricted Subsidiary of the
Company on assets of any Restricted Subsidiary of the
Company;
(v)
Liens securing
Refinancing Indebtedness which is incurred to Refinance any
Indebtedness which has been secured by a Lien permitted under this
Indenture and which has been incurred in accordance with the
provisions of this Indenture;
provided
,
however
, that such Liens: (i) are no
less favorable to the Holders in any material respect and are not
more favorable to the lienholders in any material respect with
respect to such Liens than the Liens in respect of the Indebtedness
being Refinanced; and (ii) do not extend to or cover any property
or assets of the Company or any of its Restricted Subsidiaries not
securing the Indebtedness so Refinanced;
(vi)
Liens
securing Indebtedness (including Liens securing any Obligations in
respect thereof) consisting of Indebtedness incurred in compliance
with Section 4.04, provided that after giving effect to such
incurrence of Indebtedness (or on the date of the initial borrowing
of such Indebtedness after giving pro forma effect to the
incurrence of the entire committed amount of such Indebtedness),
the Consolidated Secured Leverage Ratio shall not exceed 3.0 to
1.0; and
(vii)
Permitted
Liens.
Section
.08
Limitation on Subsidiary Guarantees of
Company Indebtedness
. The Company shall not permit any
Restricted Subsidiary, directly or indirectly, to guarantee any
Indebtedness of the Company (other than the Securities) unless such
Restricted Subsidiary executes and delivers to the Trustee a
supplemental indenture providing for the guarantee of the
Securities by such Subsidiary, which guarantee of the Securities
will rank equally in right of payment with such Subsidiary’s
guarantee of the Company Indebtedness (unless the Company
Indebtedness is subordinated in right of payment to the Securities,
in which case the guarantee of the Indebtedness of the Company
shall be subordinated to the guarantee of the Securities to the
same extent as the Indebtedness of the Company is subordinated to
the Securities). Any guarantee of the Securities provided pursuant
to this Section 4.08 will be automatically released when the
Indebtedness is no longer outstanding or the guarantee of the
Indebtedness is released or terminated, in each case, other than as
a result of a payment thereon by the Restricted
Subsidiary.
Section
.09
Payments for
Consent
.
The
Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, pay or cause to be paid
any consideration to or for the benefit of any Holder of Securities
for or as an inducement to any consent, waiver or amendment of any
of the terms or provisions of this Indenture or the Securities
unless such consideration is offered to be paid and is paid to all
Holders of the Securities that consent, waive or agree to amend in
the time frame set forth in the solicitation documents relating to
such consent, waiver or agreement.
Section
.10
Limitation on Preferred Stock of
Restricted Subsidiaries
.
The
Company will not permit any Restricted Subsidiary to issue any
Preferred Stock other than Preferred Stock issued to the Company or
a Wholly Owned Restricted Subsidiary. The Company will not sell,
transfer or otherwise dispose of Preferred Stock issued by a
Restricted Subsidiary or permit a Restricted Subsidiary to sell,
transfer or otherwise dispose of Preferred Stock issued by a
Restricted Subsidiary, other than to the Company or a Wholly Owned
Restricted Subsidiary. Notwithstanding the foregoing, nothing in
this Section 4.10 will prohibit Preferred Stock issued by a Person
prior to the time:
(A)
such person becomes
a Restricted Subsidiary;
(B)
such person merges
with or into a Restricted Subsidiary; or
(C)
a Restricted
Subsidiary merges with or into such person;
provided, however
, that such Preferred Stock was not issued
or incurred by such person in anticipation of a transaction
contemplated by subclause (B) or (C) above.
Section
.11
Conduct of
Business
.
The
Company and its Restricted Subsidiaries will not engage in any
businesses other than a Permitted Business, except to the extent as
would not be material to the Company and its Restricted
Subsidiaries taken as a whole.
ARTICLE V
SUCCESSORS
Section
.01
Merger, Consolidation and Sale of
Assets
. Section 4.1 of the Indenture shall be deleted in its
entirety and replaced with the following:
(a)
The Company will
not, in a single transaction or series of related transactions,
consolidate or merge with or into any Person, or sell, assign,
transfer, lease, convey or otherwise dispose of (or cause or permit
any Restricted Subsidiary of the Company to sell, assign, transfer,
lease, convey or otherwise dispose of) all or substantially all of
the Company’s assets (determined on a consolidated basis for
the Company and the Company’s Restricted Subsidiaries)
whether as an entirety or substantially as an entirety to any
Person unless:
(i)
either:
(A) the
Company shall be the surviving or continuing corporation;
or
(B) the
Person (if other than the Company) formed by such consolidation or
into which the Company is merged or the Person which acquires by
sale, assignment, transfer, lease, conveyance or other disposition
the properties and assets of the Company and of the Company’s
Restricted Subsidiaries substantially as an entirety (the
“Surviving Entity”):
(x)
shall be a
corporation organized and validly existing under the laws of the
United States or any State thereof or the District of Columbia;
and
(y)
shall expressly
assume, by supplemental indenture (in form and substance reasonably
satisfactory to the Trustee), executed and delivered to the
Trustee, the due and punctual payment of the principal of, and
premium, if any, and interest on all of the Securities and the
performance of every covenant of the Securities and this Indenture
on the part of the Company to be performed or
observed;
(ii)
immediately
after giving effect to such transaction and the assumption
contemplated by clause (i)(B)(y) above (including giving effect to
any Indebtedness and Acquired Indebtedness incurred or anticipated
to be incurred in connection with or in respect of such
transaction), either (x) the Company or such Surviving Entity, as
the case may be, shall be able to incur at least $1.00 of
additional Indebtedness (other than Permitted Indebtedness)
pursuant to Section 4..04(a) or (y) the Consolidated Fixed Charge
Coverage Ratio of the Company would be no less than such ratio
immediately prior to such transaction;
(iii)
immediately
before and immediately after giving effect to such transaction and
the assumption contemplated by clause (i)(B)(y) above (including,
without limitation, giving effect to any Indebtedness and Acquired
Indebtedness incurred or anticipated to be incurred and any Lien
granted in connection with or in respect of the transaction), no
Default or Event of Default shall have occurred or be continuing;
and
(iv)
the
Company or the Surviving Entity shall have delivered to the Trustee
an Officer’s Certificate and an Opinion of Counsel, each
stating that such consolidation, merger, sale, assignment,
transfer, lease, conveyance or other disposition and, if a
supplemental indenture is required in connection with such
transaction, such supplemental indenture comply with the applicable
provisions of this Indenture and that all conditions precedent in
this Indenture relating to such transaction have been satisfied and
constitutes the legal, valid and binding obligation of the Company
or the Surviving Entity, enforceable against it in accordance with
its terms.
For
purposes of the foregoing, the transfer (by lease, assignment, sale
or otherwise, in a single transaction or series of transactions) of
all or substantially all of the properties or assets of one or more
Restricted Subsidiaries of the Company the Capital Stock of which
constitutes all or substantially all of the properties and assets
of the Company, shall be deemed to be the transfer of all or
substantially all of the properties and assets of the
Company.
(b)
Notwithstanding the
foregoing clauses (i), (ii) and (iii) of Section 5.1(a), the
Company may merge with an Affiliate that is a Person that has no
material assets or liabilities and which was organized solely for
the purpose of reorganizing the Company in another
jurisdiction.
Any
merger or consolidation of a Guarantor with and into the Company
(with the Company being the surviving entity) or another Guarantor
that is a Restricted Subsidiary of the Company need only comply
with clause (iv) of Section 5.1(a).
Section
.02
Successor Corporation
Substituted
.
Upon
any consolidation, combination or merger or any transfer of all or
substantially all of the assets of the Company in accordance with
Section 5.1 in which the Company is not the continuing corporation,
the successor Person formed by such consolidation or into which the
Company is merged or to which such conveyance, lease or transfer is
made shall succeed to, and be substituted for, and may exercise
every right and power of, the Company under this Indenture and the
Securities with the same effect as if such Surviving Entity had
been named as such. When a successor corporation assumes all of the
obligations of the predecessor hereunder and under the Securities
and the Security Documents and agrees in writing to be bound hereby
and thereby, the predecessor shall be released from such
obligations.
ARTICLE VI
[RESERVED]
ARTICLE VII
MISCELLANEOUS
Section
.01
Ratification
of Indenture
.
This
First Supplemental Indenture is executed and shall be constructed
as an indenture supplement to the Indenture, and as supplemented
and modified hereby, the Indenture is in all respects ratified and
confirmed, and the Indenture and this First Supplemental Indenture
shall be read, taken and constructed as one and the same
instrument.
Section
.02
Trust
Indenture Act Controls
.
If any
provision of this First Supplemental Indenture limits, qualifies or
conflicts with another provision that is required or deemed to be
included in this First Supplemental Indenture by the TIA, the
required or deemed provision shall control.
Section
.03
Notices
.
All
notices and other communications shall be given as provided in the
Indenture;
provided
that
notices to a Guarantor shall be given to such Guarantor in care of
the Company.
Section
.04
Governing
Law
.
THIS
SECOND SUPPLEMENTAL INDENTURE AND THE SECURITIES SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK. EACH OF THE COMPANY, THE TRUSTEE AND THE HOLDERS HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS FIRST SUPPLEMENTAL INDENTURE,
THE SECURITIES OR THE TRANSACTION CONTEMPLATED HEREBY.
Section
.05
Successors
.
All
agreements of the Company in this Second Supplemental Indenture and
the Securities shall bind their successors. All agreements of the
Trustee in this Second Supplemental Indenture shall bind its
successors.
Section
.06
Multiple
Originals
.
The
parties may sign any number of copies of this Second Supplemental
Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement. One signed copy is enough to
prove this Second Supplemental Indenture. The exchange of copies of
this Second Supplemental Indenture and of signature pages by
facsimile or PDF transmission shall constitute effective execution
and delivery of this Second Supplemental Indenture as to the
parties hereto and may be used in lieu of the original Second
Supplemental Indenture for all purposes. Signatures of the parties
hereto transmitted by facsimile or PDF shall be deemed to be their
original signatures for all purposes.
Section
.07
Headings
.
The
headings of the Articles and Sections of this Second Supplemental
Indenture have been inserted for convenience of reference only, are
not intended to be considered a part hereof and shall not modify or
restrict any of the terms or provisions hereof.
Section
.08
Trustee
Not Responsible for Recitals
The
Trustee accepts the amendments of the Indenture effected by this
Supplemental Indenture, but on the terms and conditions set forth
in the Indenture, including the terms and provisions defining and
limiting the liabilities and responsibilities of the Trustee.
Without limiting the generality of the foregoing, the recitals
contained herein shall be taken as statements of the Company, and
the Trustee does not assume any responsibility for their
correctness. The Trustee makes no representations as to (i) the
validity or sufficiency of this Supplemental Indenture or any of
the terms or provisions hereof, (ii) the proper authorization
hereof by the Company by action or otherwise, (iii) the due
execution hereof by the Company or (iv) the consequences of any
amendment herein provided for, and the Trustee makes no
representation with respect to any such matters, except that the
Trustee represents that it is duly authorized to execute and
deliver this Second Supplemental Indenture and perform its
obligations hereunder.
Section
.09
.
Binder Nature of Supplemental
Indenture
.
The
Company hereby represents and warrants that this Second
Supplemental Indenture is its legal, valid and binding obligation,
enforceable against it in accordance with its terms.
IN
WITNESS WHEREOF, the parties have caused this Second Supplemental
Indenture to be duly executed as of the date first written
above.
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COMPANY:
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GENERAL FINANCE CORPORATION
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By:
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/s/ Charles E. Barrantes
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Name:
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Charles E. Barrantes
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Title:
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Chief Financial Officer
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Signature page to the Second Supplemental Indenture
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TRUSTEE:
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___________________,
as Trustee
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By:
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Name:
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Title:
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Signature page to the Second Supplemental Indenture
SCHEDULE I
EXHIBIT A
FORM OF NOTE
THIS
NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITARY OR A NOMINEE THEREOF. THIS NOTE MAY NOT BE EXCHANGED IN
WHOLE OR IN PART FOR A NOTE REGISTERED, AND NO TRANSFER OF THIS
SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY
PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN
THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS
THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO., OR SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR SUCH
OTHER ENTITY AS IS REQUESTED BY THE DEPOSITORY TRUST COMPANY), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE
& CO., HAS AN INTEREST HEREIN.
CUSIP
NO.
GENERAL
FINANCE CORPORATION
●%
SENIOR NOTE DUE ___
GENERAL
FINANCE CORPORATION, a Delaware corporation (herein called the
“Company”), for value received, hereby promises to pay
to CEDE & CO., or registered assigns, the principal sum of
_______ MILLION DOLLARS
or such other
principal amount as shall be set forth on Schedule I hereto
on June ●, ___ and to pay interest thereon at the rate of
●% per annum from and including ●, ____, or from the
most recent Interest Payment Date to which interest has been paid
or duly provided for, on January 31. April 30, July 31 and October
31 of each year, commencing on July 31, ____ (each, an
“Interest Payment Date”), until the principal hereof is
paid or made available for payment.
The
interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, except as provided in the Indenture
hereinafter referred to, be paid to the Person in whose name this
Security (or one or more predecessor Securities) is registered at
the close of business on the regular record date for such interest,
which will be the January 15, April 15, July 15 and October 15
(whether or not that date is a Business Day), as the case may be
(each, a “Regular Record Date”), immediately preceding
each Interest Payment Date. Any such interest not so punctually
paid or duly provided for shall forthwith cease to be payable to
the Holder on such Regular Record Date and either may be paid to
the Person in whose name this Security (or one or more predecessor
Securities) is registered at the close of business on a Special
Record Date for the payment of such defaulted interest to be fixed
by the Trustee, notice whereof shall be given to the Holders not
less than ten days prior to such Special Record Date, or may be
paid at any time in any other lawful manner, all as more fully
provided in the Indenture. Payment of the principal of and interest
on this Security (including, without limitation, any Redemption
Price, Special Mandatory Redemption Price or purchase price
relating to a Change of Control Offer) will be made at the office
or agency of the Company maintained for that purpose pursuant to
the Indenture (initially the Corporate Trust Office of the
Trustee), in such coin or currency of the United States of America
as at the time of payment is legal tender for payment of public and
private debts;
provided,
however
, that payment of interest may be made at the option
of the Company (i) by check mailed to the address of the Person
entitled thereto as such address shall appear in the Securities
Register or (ii) by wire transfer to an account maintained by the
Person entitled thereto as specified in the Securities Register.
Payments of principal and interest at maturity will be made against
presentation of this Security at the Corporate Trust Office (or
such other office as may be established pursuant to the Indenture),
by check or wire transfer.
Reference is hereby
made to the further provisions of this Security set forth on the
reverse side hereof, which further provisions shall for all
purposes have the same effect as though fully set forth at this
place.
Unless
the Certificate of Authentication hereon has been executed by the
Trustee or an authenticating agent under the Indenture referred to
on the reverse hereof by the manual signature of one of its
authorized signatories, this Security shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any
purpose.
[Signature Pages Follow]
IN
WITNESS WHEREOF, the Company has caused this Security to be to be
duly executed as of the date set forth below.
GENERAL
FINANCE CORPORATION
By:
_____________________________
Name:
Title:
By:
_____________________________
Name:
Title:
Trustee’s
Certificate of Authentication
This is
one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
Dated:
June 18, 2014
WELLS
FARGO BANK, NATIONAL ASSOCIATION,
as
Trustee
By:
___________________________
Authorized
Signatory
(Reverse
of Security)
GENERAL
FINANCE CORPORATION
●%
SENIOR NOTE DUE ____
1. This
Security is one of a duly authorized issue of securities of the
Company designated as its ●% Senior Notes due ____ (the
“Securities”) limited in aggregate principal amount to
$● issued and to be issued under an indenture, dated as of
_____ ●, ____, between the Company and Wells Fargo Bank,
National Association, as trustee (herein called the
“Trustee,” which term includes any successor Trustee
under the Indenture), and the first supplemental indenture, dated
as of _____ ●, ____ (the “Base Indenture,” as so
supplemented and as it may be further supplemented or amended from
time to time, is herein referred to as the
“Indenture”), between the Company and the Trustee.
Reference is hereby made to the Indenture for a statement of the
respective rights thereunder of the Company, the Trustee and the
Holders of the Securities, and the terms upon which the Securities
are, and are to be, authenticated and delivered. The indebtedness
of the Company evidenced by the Securities, including the principal
thereof and interest thereon (including post-default interest),
will constitute unsecured and unsubordinated indebtedness of the
Company and will rank equally in right of payment with all of the
Company's current and future unsecured and unsubordinated
indebtedness.
2.
The Securities are
subject to redemption, in whole or in part, from time to time, at
the Company’s option at the Redemption Prices set forth in
the Indenture.
3. Upon
the occurrence of a Change of Control Triggering Event, unless the
Company has given written notice with respect to a redemption of
the Securities pursuant to paragraph 2 of this Security, each
Holder of Securities will have the right to require the Company to
purchase all or a portion of such Holder’s Securities
pursuant to the Change of Control Offer, at a purchase price equal
to 101% of the principal amount thereof plus accrued and unpaid
interest, if any, to the date of purchase.
4. When
the Net Cash Proceeds from Asset Sales not applied or invested as
provided in the Indenture total $5.0 million or more, the Company
will be required to make an offer to purchase an amount of
Securities (and Pari Passu Debt) equal to the Net Proceeds Offer
Amount at a price equal to 100% of the principal amount of the
Securities (and Pari Passu Debt) to be purchased, plus accrued and
unpaid interest thereon, if any, to the date of
purchase.
5. If
an Event of Default with respect to the Securities shall occur and
be continuing, the principal of the Securities may be declared due
and payable in the manner and with the effect provided in the
Indenture.
6. The
Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and
obligations of the Company and the Guarantors and the rights of the
Holders of Securities under the Indenture at any time by the
Company, the Guarantors and the Trustee with the consent of the
Holders of a majority in aggregate principal amount of Securities
at the time outstanding. The Indenture also contains provisions
permitting the Holders of a majority in aggregate principal amount
of Securities at the time outstanding, on behalf of the Holders of
all Securities, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the
Holder of this Security shall be conclusive and binding upon such
Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in
exchange therefor or in lieu hereof, whether or not notation of
such consent or waiver is made upon this Security.
7. No
reference herein to the Indenture and no provisions of this
Security or of the Indenture shall alter or impair the obligation
of the Company, which is absolute and unconditional, to pay the
principal of and interest on this Security at the times, places and
rate, and in the coin or currency, herein prescribed.
8. As
provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security may be registered
on the Securities Register of the Company, upon surrender of this
Security for registration of transfer at the Corporate Trust
Office, duly endorsed by, or accompanied by a written instruction
of transfer in form satisfactory to the Company, and duly executed
by the Holder hereof or such Holder’s attorney, duly
authorized in writing, on which instruction the Company can rely,
and thereupon one or more new Securities, of authorized
denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
9. The
Securities are issuable only in fully registered form, without
coupons, in minimum denominations of $[*] or any amount in excess
thereof which is an integral multiple of $[*]. As provided in the
Indenture, and subject to certain limitations therein set forth,
the Securities are exchangeable for a like aggregate principal
amount of Securities in authorized denominations, as requested by
the Holder surrendering the same.
10. No
service charge shall be made to the Holder for any such
registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith.
11. Prior
to the due presentment of this Security for registration of
transfer or exchange, the Company, the Trustee and any agent of the
Company or the Trustee may treat the Person in whose name this
Security is registered as the owner hereof for all purposes,
whether or not this Security be overdue, and neither the Company,
the Trustee, nor any such agent shall be affected by notice to the
contrary.
12. Interest
on the Securities shall be computed on the basis of a 360-day year
consisting of twelve 30-day months.
13. The
Trustee, in its individual or any other capacity, may make loans
to, accept deposits from, and perform services for the Company or
its Affiliates, and may otherwise deal with the Company or its
Affiliates, as if it were not the Trustee.
14. No
past, present or future director, manager, officer, employee,
incorporator, member, partner, stockholder or other owner of
Capital Stock of the Company or any Guarantor, as such, shall have
any liability for any obligations of the Company or of the
Guarantors under the Securities, the Indenture, the Securities
Guarantees or for any claim based on, in respect of, or by reason
of, such obligations or their creation. Each Holder of Securities
by accepting a Security waives and releases all such liability. The
waiver and release are part of the consideration for issuance of
the Securities. The waiver and release may not be effective to
waive or release liabilities under the federal securities
laws.
15. This
Security shall not be valid until authenticated by the manual
signature of the Trustee or an authenticating agent.
16. Customary
abbreviations may be used in the name of a Holder or an assignee,
such as: TEN COM (= tenants in common), TEN ENT (= tenants by the
entireties), JT TEN (= joint tenants with right of survivorship and
not as tenants in common), CUT (= Custodian), and U/G/M/A (=
Uniform Gifts to Minors Act).
17. Each
Holder of this Security covenants and agrees by such Holder’s
acceptance thereof to comply with and be bound by the foregoing
provisions.
18. THIS
NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK. EACH OF THE COMPANY, THE TRUSTEE AND
THE HOLDERS HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN
ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS
NOTE.
19. All
capitalized terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the
Indenture.
ASSIGNMENT FORM
FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE
INSERT SOCIAL SECURITY OR
OTHER
IDENTIFYING NUMBER OF ASSIGNEE
PLEASE
PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF
ASSIGNEE
______________________________________
______________________________________
______________________________________
the
within Security and all rights thereunder, hereby irrevocably
constituting and appointing ______ _____________________________
attorney to transfer said Security on the books of the Company,
with full power of substitution in the premises.
Dated:
__________________________
Signature:
____________________________
NOTICE:
THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THE WITHIN INSTRUMENT IN EVERY PARTICULAR,
WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE
WHATEVER.
Signature
Guarantee:
SIGNATURE
GUARANTEE
Signatures must be
guaranteed by an “eligible guarantor institution”
meeting the requirements of the Registrar, which requirements
include membership or participation in the Security Transfer Agent
Medallion Program (“STAMP”) or such other
“signature guarantee program” as may be determined by
the Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as
amended.
OPTION OF HOLDER TO ELECT PURCHASE
If you
want to elect to have this Security purchased by the Issuer
pursuant to Section 3.02 or Section 4.05 of the Supplemental
Indenture, check the appropriate box:
Section
3.02
[ ] Change of
Control Offer
Section
4.05
[ ] Net proceeds
Offer
If you
want to elect to have only part of this Security purchased by the
Company pursuant to Section 3.02 or Section 4.05 of the
Supplemental Indenture, state the amount you elect to have
purchased:
$
Dated:
________________________________________
NOTICE:
The signature on this assignment must correspond with the name as
it appears upon the face of the within Note in every particular
without alteration or enlargement or any change whatsoever and be
guaranteed.
Signature
Guarantee:
Schedule
I
SCHEDULE OF TRANSFERS AND EXCHANGES
The
following increases or decreases in principal amount of this Global
Security have been made:
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Date of
Exchange
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Amount
of Decrease in Principal Amount of this Global
Security
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Amount
of Increase in Principal Amount of this Global
Security
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Principal
Amount of this Global Security following such Decrease or
Increase
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Signature
of Authorized Signatory of trustee or Custodian
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EXHIBIT
4.8
FORM OF WARRANT AGREEMENT
THIS
WARRANT AGREEMENT (this “
Agreement
”), dated as of
_______, 20__, is entered into by and between General Finance
Corporation, a Delaware corporation (the “
Company
”), and
__________________ (the “
Warrant
Agent
”).
WHEREAS, the
Company has filed with the Securities and Exchange Commission a
Registration Statement on Form S-3, No. 333-______ (the
“
Registration
Statement
”), for the registration, under the
Securities Act of 1933, as amended (the “
Act
”), of, among other
securities, the Warrants and the Common Stock issuable upon
exercise of the Warrants;
WHEREAS, the
Company desires the Warrant Agent to act on behalf of the Company,
and the Warrant Agent is willing to so act, in connection with the
issuance, registration, transfer, exchange, redemption and exercise
of the Warrants;
WHEREAS, the
Company desires to provide for the form and provisions of the
Warrants, the terms upon which they shall be issued and exercised,
and the respective rights, limitation of rights, and immunities of
the Company, the Warrant Agent, and the holders of the Warrants;
and
WHEREAS, all acts
and things have been done and performed which are necessary to make
the Warrants, when executed on behalf of the Company and
countersigned by or on behalf of the Warrant Agent, as provided
herein, the valid, binding and legal obligations of the Company,
and to authorize the execution and delivery of this
Agreement.
NOW,
THEREFORE, in consideration of the mutual agreements herein
contained, the parties hereto agree as follows:
1.
Appointment of Warrant Agent
.
The Company hereby appoints the Warrant Agent to act as agent for
the Company for the Warrants, and the Warrant Agent hereby accepts
such appointment and agrees to perform the same in accordance with
the terms and conditions set forth in this Agreement.
2.
Warrants
.
2.1
Form of Warrant
. Each Warrant
shall be (a) issued in registered form only, (b) in substantially
the form of
Exhibit
A
hereto, the provisions of which are incorporated herein,
and (c) signed by, or bear the facsimile signature of, the Chairman
of the Board or the President and the Treasurer or the Secretary of
the Company. In the event the person whose facsimile signature has
been placed upon any Warrant shall have ceased to serve in the
capacity in which such person signed the Warrant before such
Warrant is issued, it may be issued with the same effect as if he
or she had not ceased to be such at the date of
issuance.
2.2
Effect of Countersignature
.
Unless and until countersigned by the Warrant Agent pursuant to
this Agreement, a Warrant shall be invalid and of no effect and may
not be exercised by the holder thereof.
2.3
Registration
.
2.3.1
Warrant
Register
. The Warrant Agent shall maintain books (the
“
Warrant
Register
”) for the registration of the original
issuance and transfers of the Warrants. Upon the initial issuance
of the Warrants, the Warrant Agent shall issue and register the
Warrants in the names of the respective holders thereof in such
denominations and otherwise in accordance with instructions
delivered to the Warrant Agent by the Company.
2.3.2
Registered
Holder
. Prior to due presentment for registration of
transfer of any Warrant, the Company and the Warrant Agent may deem
and treat the person in whose name such Warrant shall be registered
upon the Warrant Register (the “
registered holder
”), as
the absolute owner of such Warrant and of each Warrant represented
thereby (notwithstanding any notation of ownership or other writing
on the warrant certificate made by anyone other than the Company or
the Warrant Agent), for the purpose of any exercise thereof, and
for all other purposes, and neither the Company nor the Warrant
Agent shall be affected by any notice to the contrary.
3.
Terms and Exercise of
Warrants
.
3.1
Warrant Price
. Each two
Warrants shall, when countersigned by the Warrant Agent, entitle
the registered holder thereof, subject to the provisions of such
Warrant, as the case may be, and of this Warrant Agreement, to
purchase from the Company [*] share[s] of Common Stock stated
therein, at the price of $[*] per whole share, subject to the
adjustments provided in Section 4 hereof and in the last sentence
of this Section 3.1. The term “
Warrant Price
” as used in
this Warrant Agreement refers to the price per share at which
Common Stock may be purchased at the time a Warrant is exercised.
The Company, in its sole discretion, may lower the Warrant Price at
any time prior to the Expiration Date (as defined
below).
3.2
Duration of Warrants
. A Warrant
may be exercised only during the period (“
Exercise Period
”)
commencing on the date that the Company's Registration Statement is
declared effective by the Securities and Exchange Commission and
expiring at 11:59 p.m. New York City Time on ________, 20__ (the
“
Expiration
Date
”). Each Warrant not exercised on or before the
Expiration Date shall become void, and all rights thereunder and
all rights in respect thereof under this Agreement shall cease at
the close of business on the Expiration Date. The Company, in its
sole discretion, may extend the duration of the Warrants by
delaying the Expiration Date.
3.3
Exercise of
Warrants
.
3.3.1
Payment
.
Subject to the provisions of the Warrant and this Warrant
Agreement, a Warrant, when countersigned by the Warrant Agent, may
be exercised by the registered holder thereof by surrendering it,
at the office of the Warrant Agent, or at the office of its
successor as Warrant Agent, in _________, New York, with the
subscription form, as set forth in the Warrant, duly executed, and
by paying in full the Warrant Price for each full share of Common
Stock as to which the Warrant is exercised and any and all
applicable taxes due in connection with the exercise of the
Warrant, as follows: by check payable to the order of the Warrant
Agent or immediately available funds via wire transfer or
electronic transmission acceptable to the Warrant
Agent.
3.3.2
Issuance
of Certificates
. As soon as practicable after the exercise
of any Warrant and the clearance of the funds in payment of the
Warrant Price or upon surrender of the Warrant (or portion thereof)
as set forth in Section 3.3.1(b), the Company shall issue to the
registered holder of such Warrant a certificate or certificates
representing the number of full shares of Common Stock to which he,
she or it is entitled, registered in such name or names as may be
directed by him, her or it, and, if such Warrant shall not have
been exercised in full, a new countersigned Warrant for the number
of shares as to which such Warrant shall not have been exercised.
Notwithstanding the foregoing, the Company shall not be obligated
to deliver any securities pursuant to the exercise of a Warrant
unless (a) a registration statement under the Act with respect to
the Common Stock issuable upon exercise of such Warrants is
effective and a current prospectus relating to the shares of Common
Stock issuable upon exercise of the Warrants is available for
delivery to the Warrant holders or (b) in the opinion of counsel to
the Company, the exercise of the Warrants is exempt from the
registration requirements of the Act and such securities are
qualified for sale or exempt from qualification under applicable
securities laws of the states or other jurisdictions in which the
registered holder resides. Warrants may not be exercised by, or
securities issued to, any registered holder in any state in which
such exercise or issuance would be unlawful. In the event that a
registration statement under the Act with respect to the Common
Stock underlying the Warrants is not effective or a current
prospectus is not available, or because such exercise would be
unlawful with respect to a registered holder in any state, the
registered holder shall not be entitled to exercise such Warrants
and such Warrants may have no value and expire worthless. In no
event will the Company be required to “net cash settle”
the warrant exercise.
3.3.3
Valid
Issuance
. All shares of Common Stock issued upon the proper
exercise of a Warrant in conformity with this Agreement shall be
validly issued, fully paid and nonassessable.
3.3.4
Date
of Issuance
. Each person in whose name any such certificate
for shares of Common Stock is issued shall for all purposes be
deemed to have become the holder of record of such shares on the
date on which the Warrant was surrendered and payment of the
Warrant Price was made, irrespective of the date of delivery of
such certificate, except that, if the date of such surrender and
payment is a date when the stock transfer books of the Company are
closed, such person shall be deemed to have become the holder of
such shares at the close of business on the next succeeding date on
which the stock transfer books are open.
4.
Adjustments
.
4.1
Stock Dividends and Split
.
If the Company, at any time while this
Warrant is outstanding, (i) pays a stock dividend on its
Common Stock or otherwise makes a distribution on any class of
capital stock that is payable in shares of Common Stock,
(ii) subdivides outstanding shares of Common Stock into a
larger number of shares, or (iii) combines outstanding shares
of Common Stock into a smaller number of shares, then in each such
case the Warrant Price shall be multiplied by a fraction of which
the numerator shall be the number of shares of Common Stock
outstanding immediately before such event and of which the
denominator shall be the number of shares of Common Stock
outstanding immediately after such event. Any adjustment made
pursuant to clause (i) of this paragraph shall become
effective immediately after the record date for the determination
of stockholders entitled to receive such dividend or distribution,
and any adjustment pursuant to clause (ii) or (iii) of
this paragraph shall become effective immediately after the
effective date of such subdivision or combination. If any event
requiring an adjustment under this paragraph occurs during the
period that an Warrant Price is calculated hereunder, then the
calculation of such Warrant Price shall be adjusted appropriately
to reflect such event.
4.2
Fundamental
Transactions
. If, at any time
while this Warrant is outstanding, (1) the Company effects any
merger or consolidation of the Company with or into another
individual, a limited liability company, a partnership, a joint
venture, a corporation, a trust, an unincorporated organization,
any other entity and a government or any department or agency
thereof (each a “
Person
”,
(2) the Company effects any sale of all or substantially all
of its assets in one or a series of related transactions,
(3) any tender offer or exchange offer (whether by the Company
or another Person) is completed pursuant to which holders of Common
Stock are permitted to tender or exchange their shares for other
securities, cash or property, or (4) the Company effects any
reclassification of the Common Stock or any compulsory share
exchange pursuant to which the Common Stock is effectively
converted into or exchanged for other securities, cash or property
(in any such case, a
“
Fundamental
Transaction
”
), then the Warrant holder shall have the right
thereafter to receive, upon exercise of this Warrant, the same
amount and kind of securities, cash or property as it would have
been entitled to receive upon the occurrence of such Fundamental
Transaction if it had been, immediately prior to such Fundamental
Transaction, the holder of the number of Warrant Shares then
issuable upon exercise in full of this Warrant (the
“
Alternate
Consideration
”
). For purposes of any such exercise, the
determination of the Warrant Price shall be appropriately adjusted
to apply to such Alternate Consideration based on the amount of
Alternate Consideration issuable in respect of one share of Common
Stock in such Fundamental Transaction, and the Company shall
apportion the Warrant Price among the Alternate Consideration in a
reasonable manner reflecting the relative value of any different
components of the Alternate Consideration. If holders of Common
Stock are given any choice as to the securities, cash or property
to be received in a Fundamental Transaction, then the Warrant
holder shall be given the same choice as to the Alternate
Consideration it receives upon any exercise of this Warrant
following such Fundamental Transaction. The terms of any agreement
pursuant to which a Fundamental Transaction is effected shall
include terms requiring any such surviving entity to comply with
the provisions of this paragraph (b) and insuring that the
Warrant (or any such replacement security) will be similarly
adjusted upon any subsequent transaction analogous to a Fundamental
Transaction.
4.3
Number
of Warrant Shares
.
Simultaneously with any adjustment to the Warrant Price pursuant to
paragraph (a) of this Section, unless waived in writing by the
Holder with respect to a particular adjustment, the number of
Warrant Shares that may be purchased upon exercise of this Warrant
shall be increased or decreased proportionately, so that after such
adjustment the aggregate Warrant Price payable hereunder for the
adjusted number of Warrant Shares shall be the same as the
aggregate Warrant Price in effect immediately prior to such
adjustment.
4.4
Calculations
.
All calculations under this Section 4 shall be made to the
nearest cent or the nearest 1/100
th
of a share, as applicable. The number
of shares of Common Stock outstanding at any given time shall not
include shares owned or held by or for the account of the Company,
and the disposition of any such shares shall be considered an issue
or sale of Common Stock.
4.5
Notice
of Adjustments
. Upon the
occurrence of each adjustment pursuant to this Section 4, the
Company at its expense will promptly compute such adjustment in
accordance with the terms of this Warrant and promptly prepare a
certificate setting forth such adjustment, including a statement of
the adjusted Warrant Price and adjusted number or type of Warrant
Shares or other securities issuable upon exercise of this Warrant
(as applicable), describing the transactions giving rise to such
adjustments and showing in detail the facts upon which such
adjustment is based. Upon written request of a Warrant holder, the
Company will promptly deliver a copy of each such certificate to
the holder and to the Company’s transfer
agent.
4.6
Notice
of Corporate Events
. If the
Company (i) declares a dividend or any other distribution of
cash, securities or other property in respect of its Common Stock,
including, without limitation, any granting of rights or warrants
to subscribe for or purchase any capital stock of the Company or
any subsidiary, (ii) authorizes or approves, enters into any
agreement contemplating or solicits stockholder approval for any
Fundamental Transaction or (iii) authorizes the voluntary
dissolution, liquidation or winding up of the affairs of the
Company, then the Company shall deliver to the holder a notice
describing the material terms and conditions of such transaction,
at least 10 calendar days prior to the applicable record or
effective date on which a Person would need to hold Common Stock in
order to participate in or vote with respect to such transaction,
and the Company will take all steps reasonably necessary in order
to insure that the holder is given the practical opportunity to
exercise this Warrant prior to such time so as to participate in or
vote with respect to such transaction; provided, however, that the
failure to deliver such notice or any defect therein shall not
affect the validity of the corporate action required to be
described in such notice. To the extent that any notice provided
hereunder constitutes, or contains, material, non-public
information, the Company shall simultaneously file such notice
pursuant to a Current Report on Form 8-K.
4.7
Adjustments
in Exercise Price
. Whenever the
number of shares of Common Stock purchasable upon the exercise of
the Warrants is adjusted, as provided in Section 4.1 above, the
Warrant Price shall be adjusted (to the nearest cent) by
multiplying such Warrant Price immediately prior to such adjustment
by a fraction (x) the numerator of which shall be the number of
shares of Common Stock purchasable upon the exercise of the
Warrants immediately prior to such adjustment, and (y) the
denominator of which shall be the number of shares of Common Stock
so purchasable immediately thereafter.
4.8
No
Fractional Shares
. Notwithstanding any provision contained
in this Warrant Agreement to the contrary, the Company shall not
issue fractional shares upon exercise of Warrants. If, by reason of
any adjustment made pursuant to this Section 4, the holder of any
Warrant would be entitled, upon the exercise of such Warrant, to
receive a fractional interest in a share, the Company shall, upon
such exercise, round up or down to the nearest whole number the
number of shares of Common Stock to be issued to the Warrant
holder.
4.9
Form
of Warrant
. The form of Warrant need not be changed because
of any adjustment pursuant to this Section 4, and Warrants issued
after such adjustment may state the same Warrant Price and the same
number of shares as is stated in the Warrants initially issued
pursuant to this Agreement. However, the Company may, at any time,
in its sole discretion, make any change in the form of Warrant that
the Company may deem appropriate and that does not affect the
substance thereof, and any Warrant thereafter issued or
countersigned, whether in exchange or substitution for an
outstanding Warrant or otherwise, may be in the form as so
changed.
5.
Transfer
and Exchange of Warrants.
5.1
Registration of Transfer
. The
Warrant Agent shall register the transfer, from time to time, of
any outstanding Warrant in the Warrant Register, upon surrender of
such Warrant for transfer, properly endorsed with signatures
properly medallion guaranteed and accompanied by appropriate
instructions for transfer. Upon any such transfer, a new Warrant
representing an equal aggregate number of Warrants shall be issued
and the old Warrant shall be cancelled by the Warrant Agent. The
Warrants so cancelled may be delivered by the Warrant Agent to the
Company from time to time upon request.
5.2
Procedure for Surrender of
Warrants
. Warrants may be surrendered to the Warrant Agent,
together with a written request for exchange or transfer, and
thereupon the Warrant Agent shall issue in exchange therefor one or
more new Warrants as requested by the registered holder of the
Warrants so surrendered, representing an equal aggregate number of
Warrants; provided, however, that in the event that a Warrant
surrendered for transfer bears a restrictive legend, the Warrant
Agent shall not cancel such Warrant and issue new Warrants in
exchange therefor until the Warrant Agent has received an opinion
of counsel for the Company stating that such transfer is exempt
from registration under the Act and indicating whether the new
Warrants must also bear a restrictive legend.
5.3
Fractional Warrants
. The
Warrant Agent shall not be required to effect any registration of
transfer or exchange which will result in the issuance of a warrant
certificate for a fraction of a warrant.
5.4
Service Charges
. No service
charge shall be made for any exchange or registration of transfer
of Warrants.
5.5
Warrant Execution and
Countersignature
. The Warrant Agent is hereby authorized to
countersign and to deliver, in accordance with the terms of this
Agreement, the Warrants required to be issued pursuant to the
provisions of this Section 5, and the Company, whenever required by
the Warrant Agent, will supply the Warrant Agent with Warrants duly
executed on behalf of the Company for such purpose.
6.
Other Provisions Relating to Rights of
Holders of Warrants
.
6.1
No Rights as Stockholder
. A
Warrant does not entitle the registered holder thereof to any of
the rights of a stockholder of the Company, including, without
limitation, the right to receive dividends, or other distributions,
exercise any preemptive rights to vote or to consent or to receive
notice as stockholders in respect of the meetings of stockholders
or the election of directors of the Company or any other
matter.
6.2
Lost, Stolen, Mutilated, or Destroyed
Warrants
. If any Warrant is lost, stolen, mutilated or
destroyed, the Company and the Warrant Agent may, on such terms as
to indemnity or otherwise as they may in their discretion impose
(which terms shall, in the case of a mutilated Warrant, include the
surrender thereof), issue a new Warrant of like denomination, tenor
and date as the Warrant so lost, stolen, mutilated or destroyed.
Any such new Warrant shall constitute a substitute contractual
obligation of the Company, whether or not the allegedly lost,
stolen, mutilated or destroyed Warrant shall be at any time
enforceable by anyone.
6.3
Reservation of Common Stock
.
The Company shall at all times reserve and keep available a number
of its authorized but unissued shares of Common Stock that will be
sufficient to permit the exercise in full of all outstanding
Warrants issued pursuant to this Agreement.
6.4
Registration of Common Stock
.
The Company agrees that prior to the commencement of the Exercise
Period, it shall use its best efforts to file with the Securities
and Exchange Commission a post-effective amendment to the
Registration Statement, or a new registration statement, for the
registration under the Act of the Common Stock issuable upon
exercise of the Warrants, and it shall take such action as is
necessary to qualify for sale, in those states in which the
Warrants were initially offered by the Company, the Common Stock
issuable upon exercise of the Warrants. In either case, the Company
will use its best efforts to cause the same to become effective and
to maintain the effectiveness of such registration statement until
the expiration of the Warrants in accordance with the provisions of
this Agreement. In no event will the registered holder of a Warrant
be entitled to receive a “net cash settlement” in lieu
of physical settlement in shares of Common Stock, regardless of
whether the Company complies with this Section 6.4.
6.5
Limitation on Monetary Damages
.
In no event shall the registered holder of a Warrant be entitled to
receive monetary damages for failure to settle any Warrant exercise
if the Common Stock issuable upon exercise of the Warrants has not
been registered with the Securities and Exchange Commission
pursuant to an effective registration statement or if a current
prospectus is not available for delivery by the Warrant Agent,
provided the Company has fulfilled its obligations under Section
6.4 to use its best efforts to effect the registration under the
Act of the Common Stock issuable upon exercise of the
Warrants.
7.
Concerning the Warrant Agent and Other
Matters
.
7.1
Payment of Taxes
. The Company
will from time to time promptly pay all taxes and charges that may
be imposed upon the Company or the Warrant Agent in respect of the
issuance or delivery of shares of Common Stock upon the exercise of
Warrants, but the Company shall not be obligated to pay any
transfer taxes in respect of the Warrants or such
shares.
7.2
Resignation, Consolidation, or Merger
of Warrant Agent
.
7.2.1
Appointment
of Successor Warrant Agent
. The Warrant Agent, or any
successor to it hereafter appointed, may resign its duties and be
discharged from all further duties and liabilities hereunder after
giving sixty (60) days’ notice in writing to the Company. If
the office of the Warrant Agent becomes vacant by resignation or
incapacity to act or otherwise, the Company shall appoint in
writing a successor Warrant Agent in place of the Warrant Agent. If
the Company shall fail to make such appointment within a period of
30 days after it has been notified in writing of such resignation
or incapacity by the Warrant Agent or by the holder of the Warrant
(who shall, with such notice, submit his, her or its Warrant for
inspection by the Company), then the holder of any Warrant may
apply to the Supreme Court of the State of New York for the County
of New York for the appointment of a successor Warrant Agent at the
Company’s cost. Any successor Warrant Agent, whether
appointed by the Company or by such court, shall be a corporation
organized and existing under the laws of the State of New York, in
good standing and having its principal office in the Borough of
Manhattan, City and State of New York, and authorized under such
laws to exercise corporate trust powers and subject to supervision
or examination by federal or state authority. After appointment,
any successor Warrant Agent shall be vested with all the authority,
powers, rights, immunities, duties, and obligations of its
predecessor Warrant Agent with like effect as if originally named
as Warrant Agent hereunder, without any further act or deed; but if
for any reason it becomes necessary or appropriate, the predecessor
Warrant Agent shall execute and deliver, at the expense of the
Company, an instrument transferring to such successor Warrant Agent
all the authority, powers, and rights of such predecessor Warrant
Agent hereunder; and upon request of any successor Warrant Agent
the Company shall make, execute, acknowledge, and deliver any and
all instruments in writing for more fully and effectually vesting
in and confirming to such successor Warrant Agent all such
authority, powers, rights, immunities, duties, and
obligations.
7.2.2
Notice
of Successor Warrant Agent
. In the event a successor Warrant
Agent shall be appointed, the Company shall give notice thereof to
the predecessor Warrant Agent and the transfer agent for the Common
Stock not later than the effective date of any such
appointment.
7.2.3
Merger
or Consolidation of Warrant Agent
. Any corporation into
which the Warrant Agent may be merged or with which it may be
consolidated or any corporation resulting from any merger or
consolidation to which the Warrant Agent shall be a party shall be
the successor Warrant Agent under this Agreement without any
further act.
7.3
Fees and Expenses of Warrant
Agent
.
7.3.1
Remuneration
.
The Company agrees to pay the Warrant Agent reasonable remuneration
for its services as such Warrant Agent hereunder and will reimburse
the Warrant Agent upon demand for all expenditures that the Warrant
Agent may reasonably incur in the execution of its duties
hereunder.
7.3.2
Further
Assurances
. The Company agrees to perform, execute,
acknowledge and deliver or cause to be performed, executed,
acknowledged and delivered all such further and other acts,
instruments and assurances as may reasonably be required by the
Warrant Agent for the carrying out or performing of the provisions
of this Agreement.
7.4
Liability of Warrant
Agent
.
7.4.1
Reliance
on Company Statement
. Whenever in the performance of its
duties under this Warrant Agreement the Warrant Agent shall deem it
necessary or desirable that any fact or matter be proved or
established by the Company prior to taking or suffering any action
hereunder, such fact or matter (unless other evidence in respect
thereof be herein specifically prescribed) may be deemed to be
conclusively proved and established by a statement signed by the
President or Chairman of the Board of the Company and delivered to
the Warrant Agent. The Warrant Agent may rely upon such statement
for any action taken or suffered in good faith by it pursuant to
the provisions of this Agreement.
7.4.2
Indemnity
.
The Warrant Agent shall be liable hereunder only for its own gross
negligence, willful misconduct or bad faith. The Company agrees to
indemnify the Warrant Agent and save it harmless against any and
all liabilities, including judgments, costs and reasonable counsel
fees, for anything done or omitted by the Warrant Agent in the
execution of this Agreement, except as a result of the Warrant
Agent’s gross negligence, willful misconduct or bad
faith.
7.4.3
Exclusions
.
The Warrant Agent shall have no responsibility with respect to the
validity of this Agreement or with respect to the validity or
execution of any Warrant (except its countersignature thereof); nor
shall it be responsible for any breach by the Company of any
covenant or condition contained in this Agreement or in any
Warrant; nor shall it be responsible to make any adjustments
required under the provisions of Section 4 hereof or responsible
for the manner, method or amount of any such adjustment or the
ascertaining of the existence of facts that would require any such
adjustment; nor shall it by any act hereunder be deemed to make any
representation or warranty as to the authorization or reservation
of any shares of Common Stock to be issued pursuant to this
Agreement or any Warrant or as to whether any shares of Common
Stock will when issued be valid and fully paid and
nonassessable.
7.5
Acceptance of Agency
. The
Warrant Agent hereby accepts the agency established by this
Agreement and agrees to perform the same upon the terms and
conditions herein set forth and, among other things, shall account
promptly to the Company with respect to Warrants exercised and
concurrently account for, and pay to the Company, all moneys
received by the Warrant Agent for the purchase of shares of Common
Stock through the exercise of Warrants.
8.
Miscellaneous
Provisions
.
8.1
Successors
. All the covenants
and provisions of this Agreement by or for the benefit of the
Company or the Warrant Agent shall bind and inure to the benefit of
their respective successors and assigns.
8.2
Notices
. Any notice, statement
or demand authorized by this Warrant Agreement to be given or made
by the Warrant Agent or by the holder of any Warrant to or on the
Company shall be delivered by hand or sent by registered or
certified mail or overnight courier service, addressed (until
another address is filed in writing by the Company with the Warrant
Agent) as follows:
|
|
General
Finance Corporation
Attention:
Christopher Wilson
39 East
Union Street
Pasadena,
California 91103
|
|
Any
notice, statement or demand authorized by this Agreement to be
given or made by the holder of any Warrant or by the Company to or
on the Warrant Agent shall be delivered by hand or sent by
registered or certified mail or overnight courier service,
addressed (until another address is filed in writing by the Company
with the Warrant Agent) as follows:
|
|
________________________
________________________
________________________
Attn:
____________________
|
|
Any
notice, sent pursuant to this Warrant Agreement shall be effective,
if delivered by hand, upon receipt thereof by the party to whom it
is addressed, if sent by overnight courier, on the next business
day of the delivery to the courier, and if sent by registered or
certified mail on the third day after registration or certification
thereof.
8.3
Applicable Law
. The validity,
interpretation and performance of this Agreement and of the
Warrants shall be governed in all respects by the laws of the State
of New York, without giving effect to conflicts of law principles
that would result in the application of the substantive laws of
another jurisdiction. The Company hereby agrees that any action,
proceeding or claim against it arising out of or relating in any
way to this Agreement shall be brought and enforced in the courts
of the State of New York or the United States District Court for
the Southern District of New York, and irrevocably submits to such
jurisdiction, which jurisdiction shall be exclusive. The Company
hereby waives any objection to such exclusive jurisdiction and that
such courts represent an inconvenient forum. Any such process or
summons to be served upon the Company may be served by transmitting
a copy thereof by registered or certified mail, return receipt
requested, postage prepaid, addressed to it at the address set
forth in Section 8.2 hereof. Such mailing shall be deemed personal
service and shall be legal and binding upon the Company in any
action, proceeding or claim.
8.4
Persons Having Rights under this
Agreement
. Nothing in this Agreement expressed and nothing
that may be implied from any of the provisions hereof is intended,
or shall be construed, to confer upon, or give to, any person or
corporation other than the parties hereto and the registered
holders of the Warrants, any right, remedy, or claim under or by
reason of this Warrant Agreement or of any covenant, condition,
stipulation, promise, or agreement hereof. All covenants,
conditions, stipulations, promises, and agreements contained in
this Warrant Agreement shall be for the sole and exclusive benefit
of the parties hereto and their successors and assigns and of the
registered holders of the Warrants.
8.5
Examination of the Warrant
Agreement
. A copy of this Agreement shall be available at
all reasonable times at the office of the Warrant Agent in the
Borough of Manhattan, City and State of New York, for inspection by
the registered holder of any Warrant. The Warrant Agent may require
any such holder to submit his, her or its Warrant for inspection by
it.
8.6
Counterparts
. This Agreement
may be executed in any number of original or facsimile counterparts
and each of such counterparts shall for all purposes be deemed to
be an original, and all such counterparts shall together constitute
but one and the same instrument.
8.7
Effect of Headings
. The section
headings herein are for convenience only and are not part of this
Warrant Agreement and shall not affect the interpretation
thereof.
8.8
Amendments
. This Agreement may
be amended by the parties hereto without the consent of any
registered holder for the purpose of curing any ambiguity, or
curing, correcting or supplementing any defective provision
contained herein or adding or changing any other provisions with
respect to matters or questions arising under this Agreement as the
parties may deem necessary or desirable and that the parties deem
shall not adversely affect the interest of the registered holders.
All other modifications or amendments, including any amendment to
increase the Warrant Price or shorten the Exercise Period, shall
require the written consent of the registered holders of a majority
of the then outstanding Warrants. Notwithstanding the foregoing,
the Company may lower the Warrant Price or extend the duration of
the Exercise Period pursuant to Sections 3.1 and 3.2, respectively,
without the consent of the registered holders.
8.9
Severability
. Whenever
possible, each provision of this Agreement shall be interpreted in
such manner as to be effective and valid under applicable law, but
if any provision of this Agreement is held to be prohibited by or
invalid under applicable law, such provision shall be ineffective
only to the extent of such prohibition or invalidity, without
invalidating the remainder of this Agreement.
[Signature page
follows]
IN
WITNESS WHEREOF, this Agreement has been duly executed by the
parties hereto as of the day and year first above
written.
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GENERAL FINANCE CORPORATION
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By:
_______________________
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Name:
____________________
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Title:
_____________________
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_________________________________
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By:
_______________________
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Name:
____________________
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Title:
_____________________
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