Exhibit 4.2(b from Amendment to Note Purchase Agreement
THIS CONSENT AND THIRD AMENDMENT TO NOTE PURCHASE AGREEMENT (this Consent) is entered into as of March 20, 2007 by and among PANTHER II TRANSPORTATION, INC., an Ohio corporation (Borrower), PANTHER EXPEDITED SERVICES, INC., a Delaware corporation f/k/a PTHR Holdings, Inc. (Holdings), PANTHER II, INC., an Ohio corporation f/k/a Sokolowski, Inc. (Panther Sub), INTEG MERGER, INC., a Delaware corporation (Merger Sub); Borrower, Holdings, Panther Sub and Merger Sub are collectively referred to herein as the Loan Parties and each individually as a Loan Party), YORK STREET MEZZANINE PARTNERS L.P., YORK STREET MEZZANINE PARTNERS II, L.P., CUNA MUTUAL LIFE INSURANCE COMPANY, MEMBERS LIFE INSURANCE COMPANY, CUNA MUTUAL INSURANCE SOCIETY, CUMIS INSURANCE SOCIETY, INC. and the other lenders from time to time party to the Note Purchase Agreement (collectively, the Lenders and individually each a Lender).
Exhibit 4.2(b. Exhibit 4.2(b) to the Note Purchase Agreement is hereby amended in its entirety and as so amended shall read as set forth on Exhibit 4.2(b) hereto. 5. Conditions Precedent. The effectiveness of this Consent is subject to the following conditions precedent: (a) the execution and delivery of this Consent by each of the Loan Parties, and the Majority Purchasers; (b) delivery to the Lenders of the documents and other items identified in the Document Checklist, a copy of which is attached hereto as Exhibit A, all in form and substance reasonably satisfactory to the Majority Purchasers; (c)(i) the Integres Acquisition shall satisfy all of the conditions set forth in the definition of Permitted Acquisition contained in Annex A of the Note Purchase Agreement (other than the conditions set forth in clauses (b)(i), (f) and (g) thereof), (ii) the Integres Acquisition shall have been consummated in accordance with all material Requirements of Law and of the Integres Merger Agreement (no material provision of which shall have been amended or otherwise modified or waived without the prior written consent of the Majority Purchasers), for a purchase price not to exceed (A) $4,100,000 payable solely in cash on the closing date of the Integres Acquisition (exclusive of the $400,000 escrow) and (B) up to $4,000,000 (or such lesser amount as may be due and owing under the terms of the Integres Merger Agreement) constituting the Integres Earn-Out Payment and (iii) Integres and TCV shall have fully performed all of the obligations to be performed by them under the Integres Merger Agreement; (d) the payment of all fees and expenses of the Lenders, including, the fees and expenses of Goodwin Procter LLP; and (e) receipt by the Lenders of evidence in form and substance reasonably satisfactory to the Majority Purchasers of the consent to and acknowledgment of the Integres Acquisition by the Senior Lenders. 6. Representations and Warranties. Each Loan Party, jointly and severally, hereby represents and warrants to the Lenders as follows: (a) Such Loan Party is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation; (b) Such Loan Party has the power and authority to execute, deliver and perform its obligations under this Consent, the Integres Merger Agreement (in the case of the Borrower and the Merger Sub) and each other document, agreement and instrument executed by such Loan Party in connection with each of the foregoing; (c) the execution, delivery and performance by such Loan Party of this Consent, the Integres Merger Agreement (in the case of the Borrower and the Merger Sub) and each other document, agreement and instrument executed by such Loan Party in connection with each of the foregoing have been duly authorized by all necessary action; (d) this Consent, the Integres Merger Agreement (in the case of the Borrower and the Merger Sub) and each other document, agreement and instrument executed by such Loan Party in connection with each of the foregoing constitutes the legal, valid and binding obligation of such Loan Party, enforceable against such Loan Party in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, or similar laws affecting the enforcement of creditors rights generally or by equitable principles relating to enforceability; (e) the Integres Acquisition is permitted pursuant to all material Requirements of Law and all material agreements, documents and instruments to which the Borrower is a party or by which any of its properties or assets are bound; (f) the Integres Merger Agreement and all other documents, agreements and instruments executed in connection therewith collectively set forth the entire agreement and understanding of the parties thereto relating to the subject matter thereof, and there are no other agreements, arrangements or understandings, written or oral, relating to the matters covered thereby;