exv10w3w6



 




Exhibit 10.3.6 

SECOND AMENDMENT TO

AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT




          This SECOND AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
(this “Amendment”) is dated as of March 16, 2004, and entered into by and among
FLEET CAPITAL CORPORATION (“Fleet”), a Rhode Island corporation with an office
at 15260 Ventura Boulevard, Suite 400, Sherman Oaks, California 91403,
individually as a Lender and as Agent (“Agent”) for itself and any other
financial institution which is or becomes a party to the Loan Agreement
referred to below (each, a “Lender” and collectively, the “Lenders”), the
LENDERS signatory hereto and MOBILE MINI, INC., a Delaware corporation with its
chief executive office and principal place of business at 7420 South Kyrene
Road, Suite 101, Tempe, Arizona 85283.



          Whereas, Borrower, Agent, Deutsche Bank Securities Inc. and Washington
Mutual Bank, as Co-Documentation Agents, Bank One, NA and JP Morgan Chase Bank,
as Co-Syndication Agents, and the Lenders have entered into that certain
Amended and Restated Loan and Security Agreement dated as of February 11, 2002,
as amended and restated as of June 26, 2003, and amended by that certain First
Amendment to Amended and Restated Loan and Security Agreement dated as of
January 14, 2004 (as it may be further amended, restated, amended and restated,
supplemented or otherwise modified from time to time, the “Loan Agreement”);
capitalized terms used in this Amendment without definition shall have the
meanings given such terms in the Loan Agreement; and



          Whereas, Borrower has requested further amendments to the Loan Agreement;
and



          Whereas, the Lenders are willing to agree to amend the Loan Agreement,
subject to the conditions and on the terms set forth herein;



          Now Therefore, in consideration of the premises and the mutual agreements
set forth herein, Borrower, the Lenders and Agent agree as follows:



          1. AMENDMENT TO LOAN AGREEMENT. Subject to the conditions and on the
terms set forth in this Amendment and in reliance on the representations and
warranties of Borrower set forth in this Amendment, the Loan Agreement is
hereby amended as follows:



                          1.1 Amendment to Subsection 8.2.6. Subsection 8.2.6 of the Loan Agreement
is hereby amended to (a) delete clause (a) thereof and replace it with the
following:




               (a) declare or pay any dividend (other than dividends payable solely
in common stock of Borrower) on, or make any payment on account of, or
set apart assets for a sinking or other analogous fund for, the purchase,
redemption, defeasance, retirement or other acquisition of, any shares of
any class of Securities of Borrower or any warrants, options or rights to
purchase any such Securities, whether now or hereafter outstanding, or
make any other distribution in respect thereof, either directly or
indirectly,



1









 






whether in cash or property or in obligations of Borrower or any of
its Subsidiaries (each of the foregoing, a “Restricted Payment”);
provided, (i) any Subsidiary may declare and pay dividends or
distributions to Borrower or any other Subsidiary of Borrower which is a
Guarantor; (ii) Borrower may make up to $10,000 of payments to call
warrants with respect to Borrower’s common stock; and (iii) Borrower may
purchase on the open market Securities consisting of its common stock for
an aggregate amount not to exceed $10,000,000 if, (A) both before and
after giving effect to such purchase, no Default or Event of Default
exists or would result therefrom and Borrower has Availability of at
least $30,000,000, (B) such purchase is in compliance with the Senior
Note Documents, (C) all shares of such Securities so purchased are
thereafter immediately cancelled or shall have the status of treasury
stock of Borrower and (D) if the Restricted Payment under this clause
(iii) is to be made with the proceeds of a Loan, the request for such
Loan shall be made under a separate request for borrowing and shall be
accompanied by calculations in reasonable detail showing compliance with
this Subsection 8.2.6 (iii);




          and (b) to delete the revisions to Section 8.2.6 which were added by
the First Amendment to Amended and Restated Loan and Security Agreement.



                      1.2 Amendment to Appendix A. Appendix A of the Loan Agreement is amended
to delete the definition of “Consolidated Net Cash Flow” and to replace it with
the following:




          “Consolidated
Net Cash Flow” – for a period, Consolidated EBITDA
less the sum of (i) Unfinanced Capital Expenditures during such period
plus (ii) income taxes paid in cash during such period.



                      1.3 Amendment to Exhibit 8.3. Section 8.3.1 of Exhibit 8.3 is amended to
delete the ratio of 2.10 to 1.0 and to replace it with 1.85 to 1.0.



          2. REPRESENTATIONS AND WARRANTIES OF BORROWER. In order to induce the
Lenders and Agent to enter into this Amendment, Borrower represents and
warrants to each Lender and Agent that the following statements are true,
correct and complete:



                      2.1 Corporate Action. Borrower is duly authorized and empowered to enter
into, execute, deliver and perform this Amendment and the Loan Agreement as
amended hereby and Guarantors are duly authorized to enter into, execute,
deliver and perform the Consent of Guarantors and Reaffirmation Agreement
attached hereto (the “Guarantor Consent”). The execution, delivery and
performance of this Amendment, the Loan Agreement as amended hereby and the
Guarantor Consent, and the purchase of the Securities in accordance with the
terms hereof, have been duly authorized by all necessary corporate or other
relevant action and do not and will not (i) require any consent or approval of
the shareholders of Borrower or any of the Guarantors; (ii) contravene
Borrower’s or any of the Guarantors’ charter or articles or certificate of
incorporation or other organizational documents, as applicable; (iii) violate,
or cause Borrower or any Guarantor to be in default under, any provision of any
law, rule, regulation, order, writ, judgment, injunction, decree, determination
or award in effect having applicability to Borrower or any Guarantor; (iv)
result in a breach of or constitute a default under any indenture or loan or
credit agreement or any other agreement, lease or instrument to which



2









 





Borrower or any Guarantor is a party or by which it or its Properties may
be bound or affected (including without limitation the Senior Note Documents);
or (v) result in, or require, the creation or imposition of any Lien upon or
with respect to any of the Properties now owned or hereafter acquired by
Borrower or any Guarantor. As of the date hereof, the Collateral does not
include any “margin stock” (as defined in Regulation U of the Board of
Governors of the Federal Reserve Board.



               2.2 Legally Enforceable Agreement. This Amendment and the Guarantor
Consent have been duly executed and delivered by Borrower and the Guarantors.
Each of this Amendment and the Loan Agreement as amended hereby is a legal,
valid and binding obligation of Borrower, enforceable against it in accordance
with its terms, and the Guarantor Consent is a legal, valid and binding
obligation of the Guarantors, enforceable against each of them in accordance
with its terms, except in each case as limited by applicable bankruptcy or
insolvency laws, and by general principles of equity.



               2.3 Solvent Financial Condition. Borrower is Solvent.



               2.4 No Default or Event of Default. No event has occurred and is
continuing or will result from the execution and delivery of this Amendment
that would constitute a Default or an Event of Default. Borrower is in
compliance with the terms of the Senior Note Documents.



               2.5 No Material Adverse Effect. No event has occurred that has resulted,
or could reasonably be expected to result, in a Material Adverse Effect.



               2.6 Representations and Warranties. Each of the representations and
warranties contained in the Loan Documents is and will be true and correct in
all material respects on and as of the date hereof and as of the effective date
of this Amendment, except to the extent that such representations and
warranties specifically relate to an earlier date, in which case they were
true, correct and complete in all material respects as of such earlier date.



          3. CONDITIONS TO EFFECTIVENESS OF THIS AMENDMENT. This Amendment shall be
effective only if and when signed by, and when counterparts hereof shall have
been delivered to the Agent or its counsel (by hand delivery, mail or telecopy)
by, Borrower and the Majority Lenders and only if and when each of the
following conditions is satisfied:



               3.1 Consent of Guarantors. Each of the Guarantors shall have executed and
delivered to Agent as its counsel the Guarantor Consent.



               3.2 No Default or Event of Default; Accuracy of Representations and
Warranties. No Default or Event of Default shall exist and each of the
representations and warranties made by the various parties herein and in or
pursuant to the Loan Documents shall be true and correct in all material
respects as if made on and as of the date on which this Amendment becomes
effective (except that any such representation or warranty that is expressly
stated as being made only as of a specified earlier date shall be true and
correct as of such earlier date).



3









 





               3.3 Other Documents. Agent shall have received such documents as Agent
may reasonably request in connection with this Amendment.



          4. EFFECTIVE DATE. This Amendment shall become effective on the date (
the “Amendment Effective Date”) of the satisfaction of the conditions set forth
in Section 3.



          5. EFFECT OF THIS AMENDMENT. From and after the Amendment Effective Date,
all references in the Loan Documents to the Loan Agreement shall mean the Loan
Agreement as amended hereby. Except as expressly amended hereby, the Loan
Agreement and the other Loan Documents, including the Liens granted thereunder,
shall remain in full force and effect, and are hereby ratified and confirmed.



          6. GOVERNING LAW. THIS AMENDMENT HAS BEEN NEGOTIATED AND DELIVERED IN AND
SHALL BE DEEMED TO HAVE BEEN MADE IN LOS ANGELES, CALIFORNIA. THIS AMENDMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
CALIFORNIA.



          7. COMPLETE AGREEMENT. This Amendment sets forth the complete agreement
of the parties in respect of any amendment to any of
isions of any Loan
Document or any waiver thereof.



          8. CATCHLINES & COUNTERPARTS. The catchlines and captions herein are
intended solely for convenience of reference and shall not be used to interpret
or construe the provisions hereof. This Amendment may be executed by one or
more of the parties to this Amendment on any number of separate counterparts
(including by telecopy), each of which when so executed and delivered shall be
deemed an original, but all of which shall together constitute one and the same
agreement.



[signatures follow; remainder of page intentionally left blank]




4









 





          IN WITNESS WHEREOF, this Second Amendment To Amended and Restated Loan and
Security Agreement has been duly executed on the day and year specified at the
beginning of this Second Amendment To Amended and Restated Loan and Security
Agreement.



	 	 	 
	

	 	MOBILE MINI, INC., a Delaware corporation
	 
	 	 
	

	 	By:
	

	 	Name: Lawrence Trachtenberg
	

	 	Title: Executive Vice President
	 
	 	 
	

	 	FLEET CAPITAL CORPORATION,
	

	 	a Rhode Island corporation,
	

	 	as Agent and as a Lender
	 
	 	 
	

	 	By:   
	

	 	Name: Matthew R. Van Steenhuyse
	

	 	Title: Senior Vice President






Second Amendment Signature Page


 









 






	 	 	 
	

	 	JP MORGAN CHASE BANK, as a Lender
	 
	 	 
	

	 	By:   
	

	 	Name: Donna DiForio
	

	 	Title: Vice President






Second Amendment Signature Page

 









 






	 	 	 
	

	 	BANK ONE, NA, with its main
office in Chicago, 
Illinois, as a Lender
	 
	 	 
	

	 	By:   
	

	 	Name: Steve Krakoski
	

	 	Title: First Vice President





Second Amendment Signature Page


 









 






	 	 	 
	

	 	WASHINGTON MUTUAL BANK, as a Lender
	 
	 	 
	

	 	By:   
	

	 	Name: Benjamin R. Haslam
	

	 	Title: Assistant Vice President






Second Amendment Signature Page

 









 






	 	 	 
	

	 	GE COMMERCIAL DISTRIBUTION FINANCE
	

	 	f/k/a Deutsche Financial Services Corp., as a Lender
	 
	 	 
	

	 	By:   
	

	 	Name: Joseph Kinkenon
	

	 	Title: Vice President





Second Amendment Signature Page


 









 






	 	 	 
	

	 	U.S. BANK NATIONAL ASSOCIATION,
	

	 	as a Lender
	 
	 	 
	

	 	By:   
	

	 	Name: Joseph P. Howard
	

	 	Title: Vice President






Second Amendment Signature Page

 









 






	 	 	 
	

	 	PNC BANK, NATIONAL ASSOCIATION,
	

	 	as a Lender
	 
	 	 
	

	 	By:   
	

	 	Name: Lawrence Weinstein
	

	 	Title: Vice President





Second Amendment Signature Page


 









 






	 	 	 
	

	 	THE PROVIDENT BANK, as a Lender
	 
	 	 
	

	 	By:   
	

	 	Name: Thomas J. Evans
	

	 	Title: Credit Officer





Second Amendment Signature Page


 









 






	 	 	 
	

	 	BANK LEUMI USA, as a Lender
	 
	 	 
	

	 	By:   
	

	 	Name: Jacques Delvoye
	

	 	Title: Vice President





Second Amendment Signature Page


 









 






	 	 	 
	

	 	DEUTSCHE BANK TRUST COMPANY
AMERICAS , as a Lender
	 
	 	 
	

	 	By:   
	

	 	Name: Albert Fischetti
	

	 	Title: Director





Second Amendment Signature Page


 









 






	 	 	 
	

	 	CIBC, INC., as a Lender
	 
	 	 
	

	 	By:   
	

	 	Name: George Knight
	

	 	Title: Managing Director






Second Amendment Signature Page

 









 






	 	 	 
	

	 	NATIONAL CITY BANK, as a Lender
	 
	 	 
	

	 	By:   
	

	 	Name: Chris Kytzidis
	

	 	Title: Vice President





Second Amendment Signature Page


 









 






	 	 	 
	

	 	LASALLE BUSINESS CREDIT, LLC, as a Lender
	 
	 	 
	

	 	By:   
	

	 	Name: Steven Fenton
	

	 	Title: Senior Vice President





Second Amendment Signature Page


 









 






CONSENT OF GUARANTORS AND REAFFIRMATION AGREEMENT




     Reference is hereby made to that certain Second Amendment to Amended and
Restated Loan and Security Agreement, dated as of March 16, 2004 (as the same
shall be amended, restated, amended and restated, supplemented or otherwise
modified from time to time, the “Amendment”), among Fleet Capital Corporation
(“Fleet”), a Rhode Island corporation with an office at 15260 Ventura
Boulevard, Suite 400, Sherman Oaks, California 91403, individually as a Lender
and as Agent (“Agent”) for itself and any other financial institution which is
or becomes a party to the Loan Agreement (as defined below) (each such
financial institution, including Fleet, is referred to hereinafter individually
as a “Lender” and collectively as the “Lenders”), the Lenders, and Mobile Mini,
Inc., a Delaware corporation with its chief executive office and principal
place of business at 7420 South Kyrene Road, Suite 101, Tempe, Arizona 85283
(“Borrower”). Capitalized terms used herein and not otherwise defined shall
have the meanings given them in the Amended and Restated Loan and Security
Agreement, dated as of February 11, 2002 as amended and restated as of June 26,
2003, by and among Borrower, the Lenders, Agent, Deutsche Bank Securities Inc.
and Washington Mutual Bank, as Co-Documentation Agents, and Bank One, NA and JP
Morgan Chase Bank, as Co-Syndication Agents, as amended by the First Amendment
to Amended and Restated Loan and Security Agreement dated as of January 14,
2004 (the “Loan Agreement”).



     Each of the undersigned hereby (a) acknowledges receipt of a copy of the
Amendment, (b) consents to the terms of the Amendment, (c) agrees and reaffirms
that the Guaranty executed by it remains in full force and effect as a
continuing guaranty of the Obligations owing to the Agent and Lenders under the
Loan Agreement and the Loan Documents referred to therein and (d) agrees and
reaffirms that all of its Obligations under each other Loan Document executed
by it pursuant to the Loan Agreement, and all liens and security interests
granted thereunder, remain in full force and effect, unimpaired by the
execution and delivery of the Amendment and continue to secure its Obligations.
Following the effectiveness of the Amendment, all references in the Loan
Documents to the Loan Agreement shall be deemed to refer to the Loan Agreement
as amended by the Amendment.



     Although Agent has informed us of the matters set forth above, and we have
acknowledged same, we understand and agree that Agent has no duty under the
Loan Agreement or any other Loan Document or any other agreement between us to
so notify us or to seek an acknowledgement, and nothing contained herein is
intended to or shall create such a duty as to any advances or transactions
hereafter.



     THIS CONSENT OF GUARANTORS AND REAFFIRMATION AGREEMENT HAS BEEN NEGOTIATED
AND DELIVERED IN AND SHALL BE DEEMED TO HAVE BEEN MADE IN LOS ANGELES,
CALIFORNIA. THIS CONSENT OF GUARANTORS AND REAFFIRMATION AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
CALIFORNIA.



     This Consent of Guarantors and Reaffirmation Agreement may be executed in
any number of counterparts, each of which when so executed and delivered shall
be deemed an original, but all of which shall together constitute one and the
same agreement.

 
Consent of Guarantors

1









 





     IN WITNESS WHEREOF, each of the Guarantors has executed and delivered this
Consent of Guarantors and Reaffirmation Agreement as of the date set forth in
the first paragraph hereof.



	 	 	 
	

	 	GUARANTORS:
	

	 	MOBILE MINI I, INC.,
	

	 	an Arizona corporation
	 
	 	 
	

	 	By:   
	

	 	Name: Lawrence Trachtenberg
	

	 	Title: Executive Vice President
	 
	 	 
	

	 	MOBILE MINI HOLDINGS, INC.,
	

	 	a Delaware corporation
	 
	 	 
	

	 	By:   
	

	 	Name: Lawrence Trachtenberg
	

	 	Title: President
	 
	 	 
	

	 	DELIVERY DESIGN SYSTEMS, INC.,
	

	 	an Arizona corporation
	 
	 	 
	

	 	By:   
	

	 	Name: Lawrence Trachtenberg
	

	 	Title: Executive Vice President
	 
	 	 
	

	 	MOBILE MINI, LLC,
	

	 	a Delaware limited liability company
	 
	 	 
	

	 	By:   
	

	 	Name: Lawrence Trachtenberg
	

	 	Title: Executive Vice President
	 
	 	 
	

	 	MOBILE MINI, LLC,
	

	 	a California limited liability company
	 
	 	 
	

	 	By:   
	

	 	Name: Lawrence Trachtenberg
	

	 	Title: Executive Vice President
	 
	 	 
	

	 	MOBILE MINI OF OHIO, LLC,
	

	 	a Delaware limited liability company
	 
	 	 
	

	 	By:   
	

	 	Name: Lawrence Trachtenberg
	

	 	Title: Executive Vice President
	 
	 	 
	

	 	MOBILE MINI TEXAS LIMITED PARTNERSHIP, L.L.P.
	

	 	a Texas limited partnership
	 
	 	 
	

	 	By:   
	

	 	Name: Lawrence Trachtenberg
	

	 	Title: Treasurer






 Consent of Guarantors


2