Exhibit 4.1.2
Prudential Investment Management,
Inc.
and each of the Purchasers listed on Annex A
hereto
c/o Prudential Capital Group
Four Embarcadero Center, Suite 2700
San Francisco, CA 94111-4180
October 20,
2008
McGrath RentCorp
5700 Las Positas Road
Livermore, California
94551
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Re:
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Amendment to
Note Purchase and Private Shelf Agreement
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Ladies and Gentlemen:
Reference is made to that certain
Note Purchase and Private Shelf Agreement, dated as of June 2,
2004 (as amended, restated or supplemented from time to time, the
“ Note Purchase Agreement ”), by and between
McGrath RentCorp (the “ Company ”), on the one
hand, and Prudential Investment Management, Inc. (“
PIM ”) and each of the Persons listed on Annex A
hereto (collectively, the “ Purchasers ”), on
the other hand. Capitalized terms used and not otherwise defined
herein shall have the meanings provided in the Note Purchase
Agreement.
Pursuant to the request of the
Company and the provisions of paragraph 11C of the Note Purchase
Agreement, subject to the terms and conditions of this letter
agreement and subject to the consummation prior to March 31,
2009 of the Company’s acquisition of Adler Tank Rentals,
Inc., the Purchasers hereby amend the Note Purchase Agreement, as
follows:
1. A new definition for the term “Adler Tank
Acquisition” is added to paragraph 10B and placed in its
proper alphabetical order, as follows:
““ Adler Tank
Acquisition ” shall mean the acquisition of Adler Tank
Rentals, Inc.”
2. The definition of the term “Tangible Net
Worth” is amended to insert the following language
immediately prior to the period: “; provided , that,
notwithstanding anything to the contrary in clause (ii) of
this definition, Tangible Net Worth shall include all intangible
assets associated with the Adler Tank
Acquisition”.
Limitation of
Amendments. Each of the
amendments set forth in this letter agreement shall be limited
precisely as written and shall not be deemed to be (a) an
amendment, consent or waiver of any other terms or conditions of
the Note Purchase Agreement or any other document related to the
Note Purchase Agreement, or (b) a consent to any future
amendment, consent or waiver. Except as expressly set forth in
this
McGrath RentCorp
October [__], 2008
Page 2
letter agreement, the Note Purchase
Agreement and the documents related to the Note Purchase Agreement
shall continue in full force and effect. The Company hereby
acknowledges and reaffirms all of its obligations and duties under
the Note Purchase Agreement and the Notes.
Representations and
Warranties. The Company
hereby represents and warrants as follows (both before and after
giving effect to the effectiveness of this letter agreement):
(i) No Default or Event of Default has occurred and is
continuing; (ii) the Company’s execution, delivery and
performance of the Note Purchase Agreement, as modified by this
letter agreement, have been duly authorized by all necessary
corporate action and do not and will not require any registration
with, consent or approval of, or notice to or action by, any Person
(including any governmental authority) in order to be effective and
enforceable; (iii) the Note Purchase Agreement, as modified by
this letter agreement, constitutes the legal, valid and binding
obligation of the Company, enforceable against the Company in
accordance with its terms except as the enforceability thereof may
be limited by bankruptcy, insolvency or other similar laws of
general application relating to or affecting the enforcement of
creditors’ rights or by general principles of equity; and
(iv) each of the representations and warranties set forth in
paragraph 8 of the Note Purchase Agreement is true, correct and
complete as of the date hereof (except to the extent such
representations and warranties expressly relate to another date, in
which case such representations and warranties are true, correct
and complete as of such other date).
Conditions Precedent.
This letter agreement shall become
effective on the date on which (i) each of the Purchasers
shall have received a fully executed counterpart of this letter
agreement from the Company and the Guarantors, and
(ii) Bingham McCutchen LLP shall have received from the
Company its accrued and unpaid legal fees and expenses, including,
without limitation, its fees and expenses in connection with the
preparation, negotiation, execution and delivery of this letter
agreement.
Counterparts.
This document may be executed in
multiple counterparts, which together shall constitute a single
document.
Governing Law. THIS AGREEMENT
SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS
OF THE PARTIES SHALL BE GOVERNED BY, THE INTERNAL LAWS OF THE STATE
OF NEW YORK, EXCLUDING CHOICE-OF-LAW PRINCIPLES OF THE LAW OF SUCH
STATE THAT WOULD PERMIT THE APPLICATION OF THE LAWS OF A
JURISDICTION OTHER THAN SUCH STATE.
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