<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
(MARK ONE)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended March 31, 1999
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from _______________ to _______________.
Commission file number 001-14299
NATIONSRENT, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 31-1570069
(State or other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
450 E. LAS OLAS BLVD., FORT LAUDERDALE, FL 33301
(Address of principal executive offices) (Zip Code)
(954) 760-6550
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act
of 1934 during the preceding 12 months (or for such shorter period that
the registrant was required to file such reports), and (2) has been
subject to such filing requirements for the past 90 days.
Yes [X] No [ ]
The number of shares of Common Stock, par value $0.01 per share,
outstanding on May 14, 1999 was 55,759,496.
<PAGE> 2
NATIONSRENT, INC.
INDEX TO QUARTERLY REPORT
ON FORM 10-Q
FOR THE QUARTER ENDED MARCH 31, 1999
<TABLE>
<CAPTION>
PAGE
NUMBER
------
<S> <C>
PART I
FINANCIAL INFORMATION
Item 1. Unaudited Financial Statements
Consolidated Balance Sheets as of March 31, 1999
and December 31, 1998 ................................................................... 1
Consolidated Statements of Income for the Three Months
Ended March 31, 1999 and 1998 ........................................................... 2
Consolidated Statements of Cash Flows for the Three Months
Ended March 31, 1999 and 1998 ........................................................... 3
Notes to Consolidated Financial Statements ................................................ 4
Item 2. Management's Discussion and Analysis of Financial Condition and Results of Operations ..... 8
PART II
OTHER INFORMATION
Item 1. Legal Proceedings ......................................................................... 16
Item 2. Changes in Securities and Use of Proceeds ................................................. 17
Item 6. Exhibits and Reports on Form 8-K .......................................................... 17
Signatures ......................................................................................... 20
</TABLE>
<PAGE> 3
PART I -- FINANCIAL INFORMATION
Item 1. FINANCIAL STATEMENTS
NATIONSRENT, INC.
CONSOLIDATED BALANCE SHEETS
(In Thousands, Except Share Data)
<TABLE>
<CAPTION>
March 31, December 31,
1999 1998
---------- ----------
(Unaudited)
<S> <C> <C>
ASSETS
Cash and cash equivalents ............................................. $ 3,981 $ 10,597
Accounts receivable, net .............................................. 67,973 72,951
Inventories ........................................................... 25,044 23,147
Prepaid expenses and other assets ..................................... 27,678 24,451
Rental equipment, net ................................................. 404,832 382,573
Property and equipment, net ........................................... 44,503 37,839
Intangible assets related to acquired businesses, net ................. 523,329 524,254
---------- ----------
Total Assets .................................................. $1,097,340 $1,075,812
========== ==========
LIABILITIES AND STOCKHOLDERS' EQUITY
Liabilities:
Accounts payable ................................................... $ 50,832 $ 68,177
Accrued compensation and related taxes ............................. 3,675 4,901
Accrued expenses and other liabilities ............................. 30,862 32,970
Debt ............................................................... 715,204 678,035
Income taxes payable ............................................... 610 3,115
Deferred income taxes .............................................. 8,610 6,384
---------- ----------
Total liabilities ............................................. 809,793 793,582
---------- ----------
Commitments and Contingencies
Stockholders' Equity:
Preferred stock - $0.01 par value, 5,000,000 shares authorized,
no shares issued and outstanding .............................. -- --
Common stock - $0.01 par value, 250,000,000 shares authorized,
55,759,496 shares and 55,618,023 shares issued and outstanding
at March 31, 1999 and December 31, 1998, respectively ......... 558 556
Additional paid-in capital ......................................... 269,017 268,019
Retained earnings .................................................. 17,972 13,655
---------- ----------
Total stockholders' equity .................................... 287,547 282,230
---------- ----------
Total Liabilities and Stockholders' Equity .................... $1,097,340 $1,075,812
========== ==========
</TABLE>
THE ACCOMPANYING NOTES ARE AN INTEGRAL PART OF THESE
CONSOLIDATED FINANCIAL STATEMENTS.
1
<PAGE> 4
NATIONSRENT, INC.
UNAUDITED CONSOLIDATED STATEMENTS OF INCOME
(In Thousands, Except Per Share Data)
<TABLE>
<CAPTION>
Three Months Ended
March 31,
-------------------------
1999 1998
--------- ---------
<S> <C> <C>
Revenue:
Equipment rentals ......................................................... $ 75,100 $ 5,911
Sales of equipment, merchandise, service, parts and supplies .............. 27,215 3,128
--------- ---------
Total revenue ......................................................... 102,315 9,039
--------- ---------
Cost of revenue:
Cost of equipment rentals, excluding depreciation ......................... 29,312 2,661
Rental equipment depreciation ............................................. 11,625 1,076
Cost of sales of equipment, merchandise, service, parts and supplies ...... 18,166 2,252
--------- ---------
Total cost of revenue ................................................. 59,103 5,989
--------- ---------
Gross profit .................................................................. 43,212 3,050
Operating expenses:
Selling, general and administrative expenses .............................. 19,007 1,758
Non-rental equipment depreciation and amortization ........................ 4,565 447
--------- ---------
Operating income .............................................................. 19,640 845
--------- ---------
Other (income)/expense:
Interest expense .......................................................... 14,446 808
Other, net ................................................................ (2,185) (123)
--------- ---------
12,261 685
--------- ---------
Income before provision for income taxes ...................................... 7,379 160
Provision for income taxes ................................................ 3,062 67
--------- ---------
Net income .................................................................... $ 4,317 $ 93
========= =========
Net income per share - basic and diluted ...................................... $ 0.08 $ 0.00
========= =========
Weighted average common shares outstanding:
Basic ..................................................................... 55,706 25,000
========= =========
Diluted ................................................................... 64,776 25,069
========= =========
</TABLE>
THE ACCOMPANYING NOTES ARE AN INTEGRAL PART OF
THESE CONSOLIDATED FINANCIAL STATEMENTS.
2
<PAGE> 5
NATIONSRENT, INC.
UNAUDITED CONSOLIDATED STATEMENTS OF CASH FLOWS
(In Thousands)
<TABLE>
<CAPTION>
Three Months Ended
March 31,
-----------------------
1999 1998
-------- --------
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income ......................................................................... $ 4,317 $ 93
Adjustments to reconcile net income to net cash (used in)/provided by operating
activities:
Depreciation and amortization ................................................... 16,574 1,523
Gain on sale of rental equipment ................................................ (3,765) (200)
Gain on sale of lift truck dealership ........................................... (1,818) --
Deferred income tax provision ................................................... 2,664 420
Changes in operating assets and liabilities:
Accounts receivable ......................................................... (634) 904
Inventories ................................................................. (6,516) 262
Prepaid expenses and other assets ........................................... (569) (1,411)
Accounts payable ............................................................ (15,520) 7,547
Accrued expenses and other liabilities ...................................... (4,870) 349
Income taxes payable ........................................................ (2,584) (848)
-------- --------
Net cash (used in)/provided by operating activities ......................... (12,721) 8,639
-------- --------
CASH FLOWS FROM INVESTING ACTIVITIES:
Acquisition of business, net of cash acquired .................................. (2,216) (5,221)
Payment of contingent acquisition consideration ................................ (500) --
Deferred in-process merger costs ............................................... (2,256) --
Proceeds from sale of lift truck dealership .................................... 23,229 --
Purchases of rental equipment .................................................. (49,760) (19,584)
Purchases of property and equipment ............................................ (10,633) (1,113)
Proceeds from sale of rental equipment ......................................... 12,596 1,255
-------- --------
Net cash used in investing activities ...................................... (29,540) (24,663)
-------- --------
CASH FLOWS FROM FINANCING ACTIVITIES:
Capital contribution ........................................................... -- 6,000
Proceeds from debt ............................................................. 73,240 31,638
Repayments of debt ............................................................. (36,171) (22,457)
Debt issuance costs ............................................................ (1,424) --
-------- --------
Net cash provided by financing activities .................................. 35,645 15,181
-------- --------
Net decrease in cash and cash equivalents .......................................... (6,616) (843)
Cash and cash equivalents, beginning of period ..................................... 10,597 1,493
-------- --------
Cash and cash equivalents, end of period ........................................... $ 3,981 $ 650
======== ========
SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION:
Cash paid for interest .......................................................... $ 12,400 $ 551
======== ========
Cash paid for income taxes ...................................................... $ 3,825 $ 604
======== ========
SUPPLEMENTAL SCHEDULE OF NONCASH INVESTING AND FINANCING ACTIVITIES:
The Company acquired the net assets and assumed certain liabilities of a
certain business as follows:
Total assets, net of cash acquired ........................................... $ 2,922 $ 6,099
Total liabilities assumed .................................................... (106) (878)
Amount paid through the issuance of debt ........................................ (600) --
-------- --------
Net cash paid ................................................................... $ 2,216 $ 5,221
======== ========
</TABLE>
THE ACCOMPANYING NOTES ARE AN INTEGRAL PART OF
THESE CONSOLIDATED FINANCIAL STATEMENTS.
3
<PAGE> 6
NATIONSRENT, INC.
NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
MARCH 31, 1999
NOTE 1 - BASIS OF PRESENTATION
The accompanying unaudited interim consolidated financial statements
have been prepared by NationsRent, Inc. (the "Company") and reflect all
adjustments of a normal recurring nature which are, in the opinion of
management, necessary for a fair presentation of financial results for the three
months ended March 31, 1999 and 1998, in accordance with generally accepted
accounting principles for interim financial reporting and pursuant to Article 10
of Regulation S-X. The preparation of financial statements in conformity with
generally accepted accounting principles requires management to make estimates
and assumptions that affect the amounts reported in the financial statements and
accompanying notes. Actual results could differ from those estimates. Certain
information and footnote disclosures normally included in financial statements
prepared in accordance with generally accepted accounting principles have been
condensed or omitted pursuant to such rules and regulations. These unaudited
interim consolidated financial statements should be read in conjunction with the
consolidated financial statements for the period ended December 31, 1998
appearing in the Company's Annual Report on Form 10-K filed with the Securities
and Exchange Commission. The results of operations for the three months ended
March 31, 1999 are not necessarily indicative of the results which may be
reported for the year ending December 31, 1999.
The unaudited interim consolidated financial statements include the
accounts of the Company and its wholly-owned subsidiaries. All material
intercompany transactions and balances have been eliminated in consolidation.
IMPACT OF RECENTLY ISSUED ACCOUNTING STANDARDS
In March 1998, the American Institute of Certified Public Accountants
issued Statement of Position ("SOP") 98-1, "Accounting for the Costs of Computer
Software Developed or Obtained for Internal Use." SOP 98-1 establishes criteria
for determining which costs of developing or obtaining internal-use computer
software should be charged to expense and which should be capitalized. SOP 98-1
is effective for all transactions entered into in fiscal years beginning after
December 15, 1998. The Company adopted SOP 98-1 prospectively effective January
1, 1999. The adoption of SOP 98-1 did not have a material effect on the
Company's financial position or results of operations.
In April 1998, the American Institute of Certified Public Accountants
issued SOP 98-5, "Reporting on the Costs of Start-Up Activities." SOP 98-5
requires that all non-governmental entities expense costs of start-up
activities, including pre-operating, pre-opening and organization activities, as
those costs are incurred. The Company adopted SOP 98-5 effective January 1,
1999. The adoption of SOP 98-5 did not have a material effect on the Company's
financial position or results of operations.
NOTE 2 - ACQUISITIONS AND PENDING MERGER
The Company made one acquisition of an equipment rental business during
the three months ended March 31, 1999. The aggregate consideration for this
acquisition was $2,922,000 and consisted of (i) $2,322,000 of cash and (ii)
$600,000 of subordinated convertible debt. The cash portion of the consideration
was funded through borrowings under the Company's revolving credit facility (the
"Credit Facility"). This acquisition has been accounted for using the purchase
method and, accordingly, the acquired assets and assumed liabilities, including
goodwill, have been recorded at their estimated fair values as of the date of
acquisition. Purchase accounting values for this acquisition have been assigned
on a preliminary basis, and are subject to adjustment when final information as
to the fair values of the net assets acquired is available. The Company is
awaiting information from third-party appraisers as to the fair value of certain
rental equipment acquired and the final determination of certain liabilities
assumed. The Company does not believe the final assignment of the fair value of
the net assets acquired will have a significant impact on future operating
results. The operations of the acquired business have been included in the
Company's consolidated statements of income since the date of acquisition.
4
<PAGE> 7
NATIONSRENT, INC.
NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS - CONTINUED
MARCH 31, 1999
The following table sets forth the estimated fair value of the assets
acquired and liabilities assumed for the aforementioned acquisition (in
thousands):
Assets, including cash ...... $ 773
Goodwill .................... 2,255
Liabilities ................. 106
The following table sets forth the unaudited pro forma consolidated
results of operations for the three months ended March 31, 1999 and 1998 giving
effect to the acquisitions completed during 1999 and 1998 as if the acquisitions
had occurred on January 1, 1998 (in thousands, except per share data):
<TABLE>
<CAPTION>
Three Months Ended
March 31,
----------------------
1999 1998
-------- --------
<S> <C> <C>
Revenue ................................. $102,452 $ 96,951
Net income .............................. 4,232 1,731
Basic and diluted earnings per share .... 0.08 0.03
</TABLE>
The above unaudited pro forma consolidated results of operations are
based upon certain assumptions and estimates which the Company believes are
reasonable. The unaudited pro forma consolidated results of operations may not
be indicative of the operating results that actually would have been reported
had the acquisitions been consummated on January 1, 1998, nor are they
necessarily indicative of results which will be reported in the future.
During the three months ended March 31, 1999, the Company paid
consideration of $500,000 of cash and 78,973 shares of common stock to the
former owners of a previous acquisition related to the achievement of certain
operating results. The Company's records amounts paid for contingent payments as
additional purchase price once they are incurred since the payments are required
regardless of the former owners continued association with the Company.
On January 20, 1999, the Company entered into an Agreement and Plan of
Merger with Rental Service Corporation ("RSC"), a Delaware corporation. The
merger agreement provides, subject to the terms and conditions set forth
therein, for the Company to be merged with and into RSC with RSC continuing as
the surviving corporation to be named RSC NationsRent. Following the merger, the
Company's subsidiaries will become wholly-owned subsidiaries of RSC. At the
effective time of the merger (i) each outstanding share of the Company's common
stock will be converted into 0.355 of a share of RSC's common stock (the
"Exchange Ratio") and (ii) all outstanding options to purchase shares of the
Company's common stock will be assumed by RSC and converted into options to
purchase RSC common stock subject to adjustment for the Exchange Ratio. The
merger is expected to be qualified as a tax free reorganization and to be
accounted for as a pooling of interests. The merger is subject to stockholder
approvals and other closing conditions. The merger with RSC will constitute a
change of control under the terms of the indenture governing the senior
subordinated notes. Upon a change of control, the Company must offer to
repurchase the notes at a purchase price of 101% of the principal amount. The
Company and RSC have entered into a commitment letter with a group of financial
institutions which have agreed to collectively underwrite a new $1,500,000,000
senior credit facility conditioned upon a number of requirements including the
closing of the merger of the Company into RSC. The repurchase of any of the
senior subordinated notes would be made with proceeds from the new senior credit
facility. The Company has deferred $2,256,000 of costs related to the pending
RSC merger. Such costs are recorded on the balance sheet in prepaid expenses and
other assets and will be charged to operations upon consummation of the merger
or in the event the merger does not occur.
On April 5, 1999, United Rentals, Inc. and UR Acquisition Corporation
commenced a tender offer for all the issued and outstanding shares of RSC's
common stock, at a price of $22.75 per share in cash. As a result of such tender
offer, the Company has become involved in certain litigation. See "PART II -
OTHER INFORMATION Item. 1 LEGAL PROCEEDINGS."
5
<PAGE> 8
NATIONSRENT, INC.
NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS - CONTINUED
MARCH 31, 1999
NOTE 3 - SEASONALITY
The Company's revenue and income are dependent upon the activity in the
construction industry in the markets served by the Company. Construction
activity is dependent upon weather and the traditional seasons for construction
work. Because of this variability in demand, the Company's quarterly revenue may
fluctuate, and revenue for the first quarter of each year can be expected to be
lower than the remaining quarters. Although the Company believes that the
historical trend in quarterly revenue for the second, third and fourth quarters
of each year is generally higher than the first quarter, there can be no
assurance that this will occur in future periods. Accordingly, quarterly or
other interim results should not be considered indicative of results to be
expected for any quarter or for the full year.
NOTE 4 - EARNINGS PER SHARE
The following table sets forth the computation of basic and diluted
earnings per share (in thousands, except per share data):
<TABLE>
<CAPTION>
Three Months Ended
March 31,
--------------------
1999 1998
------- -------
<S> <C> <C>
Numerator:
Numerator for basic earnings per share - net income ......... $ 4,317 $ 93
Interest expense on convertible subordinated debt, net of
income taxes ............................................ 736 --
------- -------
Numerator - diluted earnings per share ...................... $ 5,053 $ 93
======= =======
Denominator:
Denominator for basic earnings per share -
weighted-average shares ................................. 55,706 25,000
Effect of dilutive securities:
Convertible subordinated debt ............................ 8,773 --
Employee stock options ................................... 297 69
------- -------
Denominator for diluted earnings per share -
adjusted weighted-average shares ........................ 64,776 25,069
======= =======
Basic and diluted earnings per share .......................... $ 0.08 $ 0.00
======= =======
</TABLE>
NOTE 5 - DEBT
In February 1999, the Company amended its Credit Facility to increase
the total aggregate commitment to $500,000,000. At that time the term loan (the
"Term Loan") was increased to $180,000,000 and the aggregate commitment under
the revolving credit facility (the "Revolver") was increased to $320,000,000.
The Revolver has a three-year term scheduled to expire in June 2001 and the Term
Loan has a six-year term scheduled to expire in September 2004. Borrowings under
the Revolver bear interest at either the BankBoston base rate plus a percentage
ranging from 0.00% to 0.50% or, at the Company's option, the Eurodollar market
rate plus a percentage ranging from 2.00% to 2.75%. The Term Loan bears interest
ranging from 3.00% to 3.25% over the Eurodollar market rate. The percentage over
the BankBoston base rate or the Eurodollar market rate is based on the Company's
financial performance as measured by the total funded debt ratio. The Credit
Facility is secured by a security interest in substantially all of the assets of
the Company. The Credit Facility also imposes, among other covenants, a tangible
assets to senior debt covenant, a restriction on all of the Company's retained
earnings including the declaration and payment of cash dividends, consent
requirements on certain acquisitions and a restriction on the ratio of total
funded debt to earnings before interest, income taxes, depreciation and
amortization.
In February 1999, the Company completed an exchange offer to replace
its privately issued 10.375% Senior Subordinated Notes due 2008 with publicly
registered notes.
6
<PAGE> 9
NATIONSRENT, INC.
NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS - CONTINUED
MARCH 31, 1999
NOTE 6 - NON-RECURRING GAIN
In January of 1999, the Company received net proceeds of $23,229,000
related to the sale of a lift truck dealership acquired as part of an
acquisition made in April 1998. The carrying value of the tangible assets sold
was $15,118,000 resulting in proceeds in excess of carrying value of $8,111,000.
The Company recorded a pre-tax gain of $1,818,000 based on the increase in value
of the dealership since the date of acquisition. The remaining $6,293,000 of
proceeds in excess of carrying value was recorded as a reduction of goodwill.
The Company continues to evaluate the carrying value of its goodwill for
impairment in accordance with SFAS 121.
NOTE 7 - COMPREHENSIVE INCOME
The objective of reporting comprehensive income is to disclose all
changes in equity of an enterprise that result from transactions and other
economic events in a period other than transactions with owners. The
comprehensive income of the Company was equal to net income for all periods
presented.
NOTE 8 - SUBSEQUENT EVENTS
The Company has completed two acquisitions of rental equipment
businesses since March 31, 1999 for aggregate consideration of $12,549,000. Such
consideration consisted of an aggregate (i) $7,974,000 of cash and (ii)
$4,575,000 of subordinated convertible debt. The cash portion of the
consideration was funded through borrowings under the Credit Facility. In
addition, the Company repaid or assumed outstanding indebtedness of the acquired
companies in the aggregate amount of $1,466,000. Each of the acquisitions has
been accounted for using the purchase method.
7
<PAGE> 10
Item 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
The following discussion and analysis of our consolidated results of
operations and financial condition should be read in conjunction with the
unaudited interim consolidated financial statements and the related notes
included herein and the consolidated financial statements for the year ended
December 31, 1998 appearing in our Annual Report on Form 10-K filed with the
Securities and Exchange Commission.
GENERAL
NationsRent is one of the fastest growing equipment rental companies in
the United States. We have acquired a platform of equipment rental businesses
concentrated in selected markets and are building a network of nationally
branded locations. As of May 7, 1999, we operated 135 equipment rental locations
in 21 states. We have become a leading provider of rental equipment as a result
of our strategy to acquire core businesses, open or acquire additional locations
concentrated around those businesses, and expand our rental fleet. We believe
that this cluster strategy enables us to increase profitability in our acquired
stores and achieve profitability in our newly opened locations more quickly than
our competitors. By implementing the cluster strategy and expanding our fleet of
rental equipment, we are able to provide a full range of rental equipment to
customers with a wide variety of equipment rental needs.
NationsRent seeks to acquire businesses that have:
o strong positions in their geographic market;
o experienced local management teams that will continue to work
with us following the acquisition;
o high quality inventory of rental equipment; and
o physical and operating characteristics that are suited to
conversion to the NationsRent format.
During the period January 1, 1999 through May 7, 1999, we have acquired
three equipment rental businesses. We paid an aggregate of approximately $15.5
million for these three acquisitions which consisted of approximately:
o $10.3 million in cash, and
o $5.2 million of convertible subordinated debt.
We funded the cash portion of the consideration paid for these
acquisitions with borrowings under our senior credit facilities. The
acquisitions have been accounted for using the purchase method and, accordingly,
the acquired assets and assumed liabilities have been recorded at their
estimated fair values as of the date of acquisition. Purchase accounting values
for certain acquisitions have been assigned on a preliminary basis, and are
subject to adjustment when additional information as to the fair values of the
net assets acquired is available. We are awaiting information from third-party
appraisers as to the fair value of certain rental equipment acquired and the
final determination of certain liabilities assumed. We do not believe the final
assignment of the fair value of the net assets acquired will have a significant
impact on future operating results.
After making an acquisition, we convert acquired locations to the
NationsRent format. Distinguishing characteristics of this format include
drive-through lanes, clearly marked equipment aisles, prominent use of the
NationsRent logo and colors, and attractive, well-organized and clean store
facilities. The cost of converting an acquired location to the NationsRent
format varies depending on the physical properties of the acquired location and
the condition, breadth and depth of rental equipment inventory at such location,
which are factors considered in the selection and pricing of acquisition
candidates. Once we have established a presence in a particular market, we may
open new locations in that geographic area or adjacent areas. Since August 1997,
we have opened eight new locations two of which have been opened since January
1, 1999. We plan to open eight to 12 new locations in 1999 and continue to
evaluate the need for new locations as we acquire equipment rental companies in
new markets. The cost of opening our new locations has varied depending on
whether we leased or purchased the underlying real property, the size of the
location, and the breadth and depth of inventory at each location. See
"--Liquidity and Capital Resources."
8
<PAGE> 11
We derive our revenue from equipment rental, sales of new and used
equipment, spare parts and supplies, and maintenance and repair services. Rental
revenue is dependent on several factors including demand for rental equipment,
the amount and quality of equipment available for rent, rental rates, and
general economic conditions. Revenue generated from the sale of used equipment
is affected by price, general economic conditions, and the condition of the
equipment. Revenue from the sale of new equipment is affected by price and
general economic conditions. Revenue from the sale of spare parts and supplies
as well as maintenance and repair services is primarily affected by equipment
rental and sales volume.
The principal components of our cost of revenue include depreciation of
rental equipment, costs of new and used equipment sold, personnel costs,
occupancy costs, the cost of rental equipment under operating leases, repair and
maintenance costs, and vehicle operations. Rental equipment depreciation is
calculated using the straight-line method over the estimated useful life of such
equipment. The range of useful lives estimated by management for rental
equipment is primarily three to ten years and is depreciated to a salvage value
ranging from zero to ten percent of original cost.
Selling, general and administrative expenses include management
salaries, advertising and marketing, travel, administrative and clerical
salaries, and data processing.
Non-rental equipment depreciation and amortization includes the
depreciation of fixed assets that are not offered for rent, amortization of
leasehold improvements, and amortization of intangible assets related to the
acquired businesses.
On January 20, 1999, the Company entered into an Agreement and Plan of
Merger with Rental Service Corporation ("RSC"), a Delaware corporation. The
merger agreement provides, subject to the terms and conditions set forth
therein, for the Company to be merged with and into RSC with RSC continuing as
the surviving corporation to be named RSC NationsRent. Following the merger, the
Company's subsidiaries will become wholly-owned subsidiaries of RSC. At the
effective time of the merger (1) each outstanding share of the Company's common
stock will be converted into 0.355 of a share of RSC's common stock (the
"Exchange Ratio") and (2) all outstanding options to purchase shares of the
Company's common stock will be assumed by RSC and converted into options to
purchase RSC common stock subject to adjustment for the Exchange Ratio. The
merger is expected to be qualified as a tax free reorganization and to be
accounted for as a pooling of interests. The merger is subject to stockholder
approvals and other closing conditions. The merger with RSC will constitute a
change of control under the terms of the indenture governing the senior
subordinated notes. Upon a change of control, the Company must offer to
repurchase the notes at a purchase price of 101% of the principal amount. The
Company and RSC have entered into a commitment letter with a group of financial
institutions which have agreed to collectively underwrite a new $1.5 billion
senior credit facility conditioned upon a number of requirements including the
closing of the merger of the Company into RSC. The repurchase of any of the
senior subordinated notes would be made with proceeds from the new senior credit
facility.
HISTORICAL RESULTS OF OPERATIONS
THREE MONTHS ENDED MARCH 31, 1999 AND 1998
REVENUE. The following table sets forth our revenue by type for the
three months ended March 31, 1999 and March 31, 1998 (in thousands, except
percentages):
<TABLE>
<CAPTION>
Three Months Ended March 31,
-------------------------------------------------
1999 1998
---------------------- ----------------------
<S> <C> <C> <C> <C>
Equipment rentals ............................ $ 75,100 73.4% $ 5,911 65.4%
Sales of equipment, merchandise, service,
parts and supplies ......................... 27,215 26.6% 3,128 34.6%
-------- --------
$102,315 100.0% $ 9,039 100.0%
======== ========
</TABLE>
Total revenue for the three months ended March 31, 1999 increased to
$102.3 million from $9.0 million for the three months ended March 31, 1998. This
increase was due primarily to the inclusion of revenue from businesses acquired
since March 31, 1998. Also contributing to the growth in revenue was an increase
in revenue from equipment rentals resulting from the expansion of our rental
fleet at existing locations and the opening of eight new locations since
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March 31, 1998. Equipment rental revenue as a percentage of total revenue was
73.4% for the three months ended March 31, 1999 up from 65.4% for the three
months ended March 31, 1998. The higher mix of rental revenue in the 1999 period
is due primarily to the mix of revenue of companies acquired and growth in
equipment rentals. It also is the result of a decrease in the sales of new
equipment, parts and service resulting from the sale in January 1999 of a lift
truck dealership that derived the majority of its revenue from sales of new
equipment and related parts and service.
GROSS PROFIT. Gross profit for the three months ended March 31, 1999
increased to $43.2 million compared with $3.0 million for the three months ended
March 31, 1998 due primarily to the increase in revenue. Gross profit as a
percentage of revenue increased to 42.2% for the three months ended March 31,
1999 compared with 33.7% for the same period in 1998. The increase in gross
profit as a percentage of revenue was due to the growth in revenue from
equipment rentals and the resulting increase in the percentage of revenue from
equipment rentals that have higher margins than revenue from sales of equipment,
merchandise, service, parts and supplies.
OPERATING EXPENSES. Selling, general and administrative expenses for
the three months ended March 31, 1999 increased to $19.0 million compared with
$1.8 million for the three months ended March 31, 1998. The increase was due
primarily to the inclusion of such costs from companies acquired since March 31,
1998 and additional corporate expenses including costs associated with our
strategic marketing initiatives launched during the quarter. Selling, general
and administrative expenses for the three months ended March 31, 1999 as a
percentage of revenue declined to 18.6% from 19.4% for the three months ended
March 31, 1998 due primarily to the increase in revenue.
Non-rental equipment depreciation and amortization for the three
months ended March 31, 1999 increased to $4.6 million from $0.4 million for the
same period in 1998 due primarily to the increase in goodwill amortization in
connection with acquisitions completed since March 31, 1998.
OPERATING INCOME. Operating income for the three months ended March 31,
1999 increased to $19.6 million compared with $0.8 million for the three months
ended March 31, 1998 due primarily to the increase in revenue. Operating income
as a percentage of revenue for the three months ended March 31, 1999 increased
to 19.2% from 9.3% for the comparable 1998 period due primarily to the increase
in revenue and the higher percentage of revenue from equipment rentals.
OTHER INCOME AND EXPENSE. Interest expense for the three months ended
March 31, 1999 increased to $14.4 million compared with $0.8 million for the
three months ended March 31, 1998 due primarily to the increase in debt incurred
to finance acquisitions and expansion of our rental fleet since March 31, 1998.
Interest expense is primarily attributable to borrowings under our senior credit
facilities, notes issued to finance the purchase of equipment, subordinated
notes issued to sellers of businesses we acquired and our senior subordinated
notes issued in December 1998.
Other income for the three months ended March 31, 1999 included a
pre-tax gain of approximately $1.8 million from the sale of a lift truck
dealership during the quarter. See "Note 6 to the consolidated financial
statements."
INCOME TAXES. Our effective income tax rate for the three months ended
March 31, 1999 was 41.5%. The amount above statutory income tax rates is
attributable primarily to non-deductible goodwill amortization for federal
income tax purposes.
LIQUIDITY AND CAPITAL RESOURCES
Our primary uses of cash have been the funding of acquisitions and
capital expenditures. To date, we have funded our cash requirements primarily
with borrowings under our senior credit facilities, proceeds from the issuance
of debt and equity securities, equity contributions from our founding
stockholders, and cash provided by operations.
Our net cash used by operations was $12.7 million for the three months
ended March 31, 1999 compared to net cash provided by operations of $8.6 million
for the same period in 1998. The increase in cash used by operations was due
primarily to an increase in the working capital required as a result of the
acquisitions and to fund our internal growth. Net cash used in investing
activities was $29.5 million for the three months ended March 31, 1999. Cash
used in investing activities in the period was primarily a result of cash
consideration of $5.0 million for the acquisition of a business and expenditures
made in connection with the pending merger with RSC, offset by $23.2 million of
net
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proceeds from the sale of the lift truck dealership; $49.8 million for purchases
of rental equipment partially offset by $12.6 million of proceeds from the sale
of used equipment, and $10.6 million for purchases of and improvements to
property and equipment. Cash provided by financing activities was $35.6 million
for the three months ended March 31, 1999 net of the repayment of debt assumed
in connection with an acquired business, and was primarily a result of net
borrowings under our senior credit facilities.
In February 1999, we increased our senior credit facilities to $500.0
million consisting of a $180.0 million term loan due September 2004 and a $320.0
million revolving line of credit due June 2001. The credit facilities can be
used to complete permitted acquisitions, make capital expenditures, enter into
standby letters of credit, or for working capital and other general corporate
purposes. Borrowings under the revolving line of credit bear interest at either
the BankBoston, N.A. base rate plus a percentage ranging from 0.00% to 0.50% or,
at our option, the Eurodollar market rate plus a percentage ranging from 2.00%
to 2.75%. The term loan bears interest ranging from 3.00% to 3.25% over the
Eurodollar market rate. The percentage over the BankBoston, N.A. base rate or
the Eurodollar market rate is based on our financial performance as measured by
the total funded debt ratio. The credit facilities are secured by a security
interest in substantially all of our assets. The credit facilities also impose,
among other covenants, a tangible assets to senior debt covenant, a restriction
on all of our retained earnings including cash dividends, consent requirements
on certain acquisitions, and a restriction on the ratio of total funded debt to
earnings before interest, income taxes, depreciation and amortization. On March
31, 1999, $175.9 million and $180.0 million of cash borrowings were outstanding
under the revolving line of credit and term loan, respectively.
During the three months ended March 31, 1999, we added $47.7 million of
new equipment to our rental equipment fleet using operating leases. These
operating leases have terms expiring over the next seven years.
Our short-term cash requirements for our existing operations consist
primarily of:
o capital expenditures to maintain, modernize and expand our
rental equipment inventory;
o working capital requirements; and
o repair and maintenance of rental equipment, purchase of
merchandise inventory, and other operating activities.
We estimate that equipment expenditures over the next 12 months for our
existing locations and for new store openings will be in the range of $175.0
million to $225.0 million, net of proceeds from used equipment sales.
Approximately one-third of the estimated net capital expenditures is to replace
existing rental equipment. We believe that we will be able to finance our
short-term cash needs through borrowings under the senior credit facilities, the
use of equipment leases, and cash generated from operations. We estimate that
such sources will be sufficient to fund the cash required for our existing
operations for at least 12 months.
During the three months ended March 31, 1999, we opened two new
locations in markets where we already have a presence. We estimate that the
aggregate capital costs associated with each such new location were in the range
of $2.0 million to $4.5 million. We expect to open eight to 12 new locations in
1999. We believe that cash generated from operations and borrowings under our
senior credit facilities will be sufficient to fund these costs without the
issuance of additional debt or equity securities.
We are developing a management information system that became
operational at certain locations in the fourth quarter of 1998. We estimate the
total cost to complete development and installation of the system at our
existing locations will range from $6.0 million to $8.0 million over the next
several years and we believe cash generated from operations and borrowings under
our senior credit facilities will be sufficient to fund these costs.
We plan to continue our acquisition strategy and believe that, in
connection with new acquisitions, we will be required to make additional
expenditures to expand and modernize rental equipment of acquired companies. We
expect to finance future acquisitions and related rental equipment expenditures
using cash, capital stock, notes, and/or assumption of indebtedness. To fully
implement our growth strategy and meet the resulting capital requirements, we
will be required to increase amounts available under our senior credit
facilities or raise additional capital through issuance of additional debt or
equity securities. There can be no assurance that additional capital, if and
when required,
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will be available on terms satisfactory to us, or at all.
There may be liabilities that we fail or are unable to discover in the
course of performing due diligence investigations on each company or business we
have acquired or seek to acquire in the future. Such liabilities could include
those arising from employee benefits contribution obligations of a prior owner
or non-compliance with applicable federal, state, or local environmental
requirements by prior owners for which we, as a successor owner, may be
responsible. We try to minimize these risks by conducting such due diligence,
including employee benefit and environmental reviews, as we deem appropriate
under the circumstances. However, we cannot assure that we have identified, or
in the case of future acquisitions, will identify, all existing or potential
risks. We also generally require each seller of acquired businesses or
properties to indemnify us against undisclosed liabilities. In some cases this
indemnification obligation may be supported by deferring payment of a portion of
the purchase price or other appropriate security. However, we cannot assure that
the indemnification, even if obtained, will be enforceable, collectible, or
sufficient in amount, scope, or duration to fully offset the possible
liabilities associated with the business or property acquired. Any such
liabilities, individually or in the aggregate, could have a material adverse
effect on our business, financial condition or results of operations.
SEASONALITY AND FLUCTUATIONS IN OPERATING RESULTS
Our revenue and income are dependent upon activity in the construction
industry in the markets we serve. Construction activity is dependent upon
weather and other seasonal factors affecting construction in the geographic
areas where we have operations. Because of this variability in demand, our
quarterly revenue may fluctuate, and revenue for the first quarter of each year
can be expected to be lower than the remaining quarters. Although we believe
that the historical trend in quarterly revenue for the second, third and fourth
quarters of each year is generally higher than the first quarter, there can be
no assurance that this will occur in future periods. Accordingly, quarterly or
other interim results should not be considered indicative of results to be
expected for any other quarter or for a full year.
Operating results may fluctuate due to other factors including, but not
limited to:
o changes in general economic conditions including changes in
national, regional, or local construction or industrial
activities;
o the timing of acquisitions and opening of new locations;
o the timing of expenditures for new rental equipment and the
disposition of used equipment;
o competitive pricing pressures; and
o changes in interest rates.
We will incur significant expenses in opening new locations, such as
employee training, marketing and facility set-up costs. Initially, new locations
may generate lower operating margins than established locations and may operate
at a loss for a period of time. Our new locations have on average achieved
profitability within approximately five months of their opening. In addition,
when we purchase new rental equipment, the depreciation related to such
equipment may contribute to near-term margin decline, because such equipment may
not initially generate revenue at a rate that is sufficient to match such
increased depreciation expense. As such, the opening of new rental locations and
the purchase of new equipment to expand our current rental equipment inventory
may reduce our operating margins during a start-up period.
INFLATION
We do not believe that inflation has been a significant factor to the
cost of our operations.
IMPACT OF RECENTLY ISSUED ACCOUNTING STANDARDS
In March 1998, the American Institute of Certified Public Accountants
issued Statement of Position ("SOP") 98-1, "Accounting for the Costs of Computer
Software Developed or Obtained for Internal Use." SOP 98-1 establishes
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criteria for determining which costs of developing or obtaining internal-use
computer software should be charged to expense and which should be capitalized.
SOP 98-1 is effective for all transactions entered into in fiscal years
beginning after December 15, 1998. The Company adopted SOP 98-1 prospectively
effective January 1, 1999. The adoption of SOP 98-1 did not have a material
effect on the Company's financial position or results of operations.
In April 1998, the American Institute of Certified Public Accountants
issued SOP 98-5, "Reporting on the Costs of Start-Up Activities." SOP 98-5
requires that all non-governmental entities expense costs of start-up
activities, including pre-operating, pre-opening and organization activities, as
those costs are incurred. The Company adopted SOP 98-5 effective January 1,
1999. The adoption of SOP 98-5 did not have a material effect on the Company's
financial position or results of operations.
YEAR 2000
Since many computer systems and other equipment with embedded chips or
microprocessors use only two digits to represent the year, these systems may be
unable to process accurately certain data before, during or after the year 2000.
As a result, business and governmental entities are at risk for possible
miscalculations or systems failures causing disruptions in their business
operations. This is commonly known as the "Year 2000" issue. We may be affected
by Year 2000 issues in our own information technology ("IT") systems or non-IT
systems, as well as by Year 2000 issues related to IT and non-IT systems
operated by third parties.
STATE OF READINESS
Our plan to address the Year 2000 issue is structured in five phases:
inventory, assessment, correction, testing, and implementation. The inventory
phase is an investigation of all our operations to identify the software and
hardware of all of our systems. The assessment phase is an analysis of each
component of each system to determine date sensitivity to the year 2000. The
correction phase is the effort to correct, replace, upgrade, or eliminate
non-compliant hardware and software. The testing phase involves verifying that
corrections to our systems are Year 2000 compliant. Finally, the implementation
phase is the effort to deploy the corrected and verified systems throughout our
current operations.
IT SYSTEMS. Our current state of progress with our IT systems is as
follows:
o INVENTORY AND ASSESSMENT. Since our inception, we have
acquired 39 equipment rental companies, each with its own
information system for rental counter operations, inventory
control, and financial reporting. In assessing the systems of
the companies that we acquired, we determined that there was
no one system that could manage our projected growth and that
was Year 2000 compliant. We determined, therefore, that we
needed to develop our own Year 2000 compliant management
information system. We believe the inventory and assessment
phases of our IT systems are complete.
o CORRECTION AND TESTING. During the second quarter of 1998, we
began developing our own management information system that
included software modules for rental counter operations,
inventory control, database, and financial reporting to
replace the information systems of businesses we have
acquired. During the development of our systems, we tested and
validated them for Year 2000 compliance and selected our
third-party vendors for the software modules and hardware
components of our new system based on their certification of
Year 2000 compliance. To date, we have handled our Year 2000
plan with our own internal personnel and have not engaged any
third-party consultants. The system is functional and we
believe we are 95% complete with testing of all of the
components. We are not currently aware of any Year 2000
problems relating to our new IT system or the systems and
hardware supplied by third parties which would have a material
effect on our business, results of operations, or financial
condition.
o IMPLEMENTATION. For us, the implementation phase consists of
the conversion and replacement of the non-Year 2000 compliant
systems of our acquired businesses with our new management
information system. During October 1998, we began converting
our operations to our new management information system. As of
May 7, 1999, we operated 135 locations. We have completely
converted ten of these locations to our new system and have
converted 44 additional locations to the financial reporting
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component of our system. We expect to have all of our current
operations fully converted to our new system by September 30,
1999.
NON-IT SYSTEMS. We are at the initial inventory phase for our non-IT
systems such as chips and microprocessors that may be embedded in our facilities
and equipment. We believe there is a minimal amount of dependence of our
critical operations on non-IT systems. However, since we have not completed our
inventory and assessment, we cannot currently determine if there are any
potential Year 2000 problems that would cause a material adverse effect on our
business, results of operations, or financial condition. We expect to complete
all five phases of our Year 2000 plan for our non-IT systems by September 30,
1999.
THIRD-PARTY SYSTEMS. We rely on third-party suppliers for operating
supplies, merchandise for resale, utilities, transportation, equipment for rent
and retail sales and other key services. Interruption of any such third-party's
operations due to Year 2000 issues could have a material adverse effect on our
business, results of operations or financial condition. We have begun efforts to
evaluate the progress of our critical third-party suppliers relative to their
Year 2000 issues. Letters and questionnaires are being sent to all essential
third parties with which we do business to assess their Year 2000 readiness. To
the extent necessary, we will seek alternative third-party relationships if
circumstances warrant. We have begun efforts to evaluate the progress of our
critical customers' relative to their Year 2000 issues. We expect to complete
all five phases of our Year 2000 plan for our third-party systems by September
30, 1999.
COSTS
The majority of our costs to address the Year 2000 issue are related to
the development of our new management information system. Such costs principally
consist of licensing and developing software and purchasing hardware. To date,
we have spent a total of approximately $6.1 million for the new system, of which
approximately $4.8 million was related to software development and approximately
$1.3 million was related to purchases of hardware. Such costs have been
capitalized in accordance with generally accepted accounting principles. We
expect to incur in the range of approximately $1.5 million to $2.0 million in
additional software and hardware costs installing the new IT system at the rest
of our current locations in 1999. The aggregate cost of conversion and training
employees to the new IT system, which will be charged to expense in the period
incurred, is expected to range from $0.7 million to $1.0 million. Although we do
not expect to incur significant expenses to address the Year 2000 issue beyond
our capital investment in the new IT system software and hardware, Year 2000
problems may require us to incur unanticipated expenses which could have a
material adverse effect on our business, financial condition, or results of
operations. These costs account for approximately 90% of our information
technology budget for 1999. To date, the development of our management
information system has run concurrent with and been a part of our Year 2000
compliance efforts. No other major projects have been deferred as a result of
the system development effort. The source of the funds for our Year 2000
compliance efforts has been cash generated from operations and borrowings under
our senior credit facilities.
RISKS RELATING TO THE COMPANY'S FAILURE TO BECOME YEAR 2000 COMPLIANT
Our worst case scenarios resulting from the Year 2000 issue include:
o Interruptions in our customers' operations which could prevent
them from renting our equipment, using our services or paying
for equipment rented or services rendered.
o Disruptions to our utilities and other service providers which
could prevent our locations from operating in the normal
course of business.
o Failure of our suppliers' operations which could result in our
inability to obtain rental equipment and other supplies to
meet the demands of our customers.
o Failure to convert all of our locations to our new management
information system before December 31, 1999 which could
prevent such locations from processing invoices from our
counter systems and tracking accounts receivable, equipment
utilization and other critical financial data. This could also
prevent our locations from sharing equipment and data to
service our customers in a timely manner.
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o Failure to convert all of the systems of the businesses we
acquire during 1999 to our system prior to the year 2000 which
could prevent these locations from being integrated into the
rest of our operations.
Such failures could materially and adversely affect our business,
results of operations and financial condition. Due to the general uncertainty
inherent in the Year 2000 problem, resulting in part from the uncertainty of the
Year 2000 readiness of third-party suppliers and customers, we are unable to
determine at this time what our most reasonably likely worst case scenario would
be or whether the consequences of Year 2000 failures will have a material
adverse impact on our results of operations, liquidity, or financial condition.
As we complete all of the phases of our Year 2000 compliance plan, we expect to
have a better understanding of our most reasonably likely worst case scenarios
and will tailor our contingency plans accordingly.
CONTINGENCY PLANS
Our Year 2000 efforts are ongoing and our overall plan, as well as the
consideration of contingency plans, will continue to evolve as new information
becomes available. Contingency plans for Year 2000-related interruptions are
being developed and will include emergency backup and recovery procedures for
lost data, manual invoicing, billing and collection procedures, identification
of alternate suppliers, acceleration of conversion times to our management
information system and increasing inventory levels of critical supplies and
rental equipment. All plans are expected to be completed by the end of the third
quarter of 1999. These activities are intended to provide a means of managing
risk, but cannot eliminate the potential for disruption due to third-party
failure.
We are currently considering what our final contingency plans will be
in the event that we are not able to bring all of our existing and acquired
systems into Year 2000 compliance by the end of 1999. We currently plan to
complete such contingency plans by September 30, 1999.
FORWARD LOOKING STATEMENTS
Certain statements and information in this Quarterly Report on Form
10-Q may include "forward-looking statements" within the meaning of Section 27A
of the Securities Act of 1933, as amended, and Section 21E of the Securities
Exchange Act of 1934, as amended, including in particular the statements about
our plans, strategies, and prospects under the heading "Management's Discussion
and Analysis of Financial Condition and Results of Operations." Although we
believe that our plans, intentions, and expectations reflected in or suggested
by such forward-looking statements are reasonable, we cannot assure you that
such plans, intentions or expectations will be achieved. Important factors that
could cause actual results to differ materially from our forward-looking
statements are set forth below and elsewhere in this Quarterly Report on Form
10-Q. Such factors include, among others: the ability to develop and implement
operational and financial systems to manage rapidly growing operations;
competition in our principal businesses; the ability to integrate and
successfully operate acquired businesses and the risks associated with such
businesses; the ability to obtain financing on terms acceptable to us to finance
our growth strategy, and for us to operate within the limitations imposed by
financing arrangements; dependence on key personnel; and the ability to properly
assess and capitalize on future business opportunities.
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PART II -- OTHER INFORMATION
Item 1. LEGAL PROCEEDINGS
On January 21, 1999, the Company announced that it had entered into an
Agreement and Plan of Merger with Rental Service Corporation ("RSC") which,
among other things, provides for the merger (the "Merger") of the Company into
RSC, with RSC as the surviving corporation. In the Merger, each share of the
Company's common stock will be converted into 0.355 of a share of RSC's common
stock.
On April 5, 1999, United Rentals, Inc. and UR Acquisition Corporation
(collectively, "United Rentals") commenced a tender offer for all the issued and
outstanding shares of RSC's common stock, at a price of $22.75 per share in
cash. On April 13, 1999, United Rentals commenced a consent solicitation of RSC
stockholders to remove the board of directors of RSC and replace the board with
nominees of United Rentals. On April 16, 1999, the RSC board of directors
determined that United Rental's tender offer was inadequate and was not in the
best interests of RSC or its stockholders. The RSC board of directors
recommended that RSC's stockholders reject the tender offer and not tender their
shares of RSC common stock pursuant to the tender offer.
On April 5, 1999, United Rentals also filed a complaint against the
Company, RSC and RSC's board of directors in the Court of Chancery of the State
of Delaware (the "Delaware Chancery Court") which seeks, among other things, a
determination that the termination and expense amounts provided for in the
Merger Agreement and the stock option granted by RSC to the Company to purchase
19.9% of RSC's outstanding common stock under certain circumstances (the "Stock
Option") are unlawful, invalid and void (the "URI Delaware Litigation"). On
April 6, 1999, United Rentals filed a motion seeking, among other things, to
preliminarily enjoin the operation of the termination and expense provisions of
the Merger Agreement and the Stock Option and seeking an order requiring RSC to
provide United Rentals with a fair and equal opportunity to acquire RSC. On
April 14, 1999, the Company filed its answer in the URI Delaware Litigation with
the Delaware Chancery Court. A hearing on United Rental's motion for a
preliminary injunction is scheduled for May 17, 1999. The Company believes that
the URI Delaware Litigation is without merit and intends to contest vigorously
this litigation.
On April 7, 1999, United Rentals filed a verified complaint against
James L. Kirk, RSC and NationsRent in the United States District Court for the
District of Connecticut (the "URI Connecticut Litigation") which seeks, among
other things, declaratory relief that the defendants violated Sections 14(a),
14(d) and 14(e) of the Exchange Act of 1934, as amended, and requests an order
requiring the defendants to make all appropriate disclosures and correct
allegedly false and misleading statements and omissions of material fact made by
the Company regarding the superiority of the Merger to United Rental's tender
offer and by RSC regarding the anticipated schedule for the special meeting of
RSC's stockholders in connection with the Merger. In addition, United Rentals
seeks injunctive relief enjoining the defendants and certain other persons from,
among other things, (1) soliciting from any stockholder of RSC any proxy,
consent or authorization to vote any shares of RSC common stock at any meeting
to be held in connection with the Merger, and (2) soliciting any stockholder of
RSC with respect to whether or not to tender shares of RSC common stock in the
tender offer, in either case, unless and until the defendants comply in full
with all applicable provisions of the federal securities laws. The Company has
not filed an answer in the URI Connecticut Litigation. The Company believes that
the URI Connecticut Litigation is without merit and intends to contest
vigorously this litigation.
On May 4, 1999, the Company filed a complaint against United Rentals,
Bradley S. Jacobs, John N. Milne and Goldman, Sachs & Co. in the Circuit Court
in Broward County, Florida which alleges, among other things, that defendants
have tortiously interfered with the contractual rights of the Company contained
in the Merger Agreement and the advantageous business relationships established
by the Company with RSC, the RSC Board and RSC's stockholders through the Merger
Agreement and otherwise (the "Florida Litigation"). On May 4, 1999, United
Rentals filed a Motion for an Order restraining the Company from prosecuting the
Florida Litigation and memorandum in support in the Delaware Chancery Court. On
May 5, 1999, the Delaware Chancery Court held a hearing on United Rentals'
motion and issued an order restraining the Company from proceeding with the
prosecution of the Florida Litigation until further order of the Delaware
Chancery Court.
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Item 2. CHANGES IN SECURITIES AND USE OF PROCEEDS
(c) Recent Sales of Unregistered Securities
During the period covered by this report (January 1, 1999 through March
31, 1999), the Company has issued securities in the transactions set forth
below. Each of these transactions was intended to be exempt from the
registration requirements of the Securities Act of 1933, as amended, by virture
of Section 4(2) thereunder based on being issued in a transaction not involving
a public offering.
In January 1999, in connection with the acquisition of Gold Coast
Aerial Lift, Inc. and Villella Holding Company (collectively, the "Gold Coast
Companies"), the Company issued an aggregate of 78,973 shares of Common Stock to
the stockholders of the Gold Coast Companies.
In February 1999, the Company issued to the holder of a convertible
subordinated promissory note 62,500 shares of Common Stock upon conversion of
$500,000 principal amount of such note at a conversion price of $8.00 per share.
From January 1, 1999 to March 31, 1999, to Company granted options to
certain of its employees to purchase an aggregate of 150,000 shares of Common
Stock at exercise prices ranging from $5.75 to $6.44 per share. These options
generally vest over a four year period at the rate of 25% per year beginning on
the first anniversary of the date of grant.
Item 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits
EXHIBIT
NUMBER DESCRIPTION
------ -----------
2.1 -- Agreement and Plan of Merger, dated as of January 20, 1999, between
the Company and Rental Service Corporation.(7)
2.2 -- Stock Option Agreement, dated as of January 20, 1999, between the
Company and Rental Service Corporation.(7)
2.3 -- Stock Option Agreement, dated as of January 20, 1999, between Rental
Service Corporation and the Company.(7)
2.4 -- Voting Agreement, dated as of January 20, 1999, between Kirk
Holdings Limited Partnership, H. Family Investments, Inc. and Huizenga
Investments Limited Partnership, as shareholders, and Rental Service
Corporation.(7)
3.1 -- Amended and Restated Certificate of Incorporation of the Company.(2)
3.2 -- Amended and Restated By-Laws of the Company.(1)
4.1 -- Unregistered 10 3/8% Global Senior Subordinated Note due 2008.(6)
4.2 -- Registered 10 3/8% Senior Subordinated Notes due 2008.(3)
4.3 -- Senior Subordinated Guarantee dated December 11, 1998 of the
Guarantors.(6)
4.4 -- Indenture, dated December 11, 1998, by and among Company, the
Guarantors and The Bank of New York.(6)
4.5 -- Registration Rights Agreement, dated December 11, 1998, by and among
the Company, the Guarantors and the Initial Purchasers as defined
therein.(6)
4.6* -- Third Amended and Restated Revolving Credit and Term Loan Agreement,
dated as of February 11, 1999, by and among the Company, its
subsidiaries, BankBoston, N.A., LaSalle National Bank, Fleet Bank,
N.A., NationsBank, N.A., and other lending institutions named therein
4.7* -- First Amendment to Third Amended and Restated Revolving Credit and
Term Loan Agreement, dated March 24, 1999, by and among the Company,
its subsidiaries, BankBoston, N.A., LaSalle National Bank, Fleet Bank,
N.A., NationsBank, N.A., and other lending institutions named therein
4.8 -- Security Agreement, dated as of March 18, 1998, between the Company
and BankBoston, N.A.(1)
4.9 -- Omnibus Amendment to Security Documents, dated as of June 29, 1998,
among the Company, its subsidiaries and BankBoston, N.A.(1)
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4.10 -- Omnibus Amendment No. 2 to Security Documents, dated as of
September 24, 1998, among the Company, its subsidiaries and
BankBoston, N.A.(4)
4.11* -- Omnibus Amendment No. 3 to Security Documents, dated as of
February 11, 1999, by and among the Company, its subsidiaries and
BankBoston, N.A.
10.1 -- Stock Purchase Agreement, dated August 15, 1997, by and among the
Company, Sam's and the shareholders of Sam's, together with Amendment
Nos. 1-6.(1)
10.2 -- Form of Unsecured Subordinated Promissory Notes -- Sam's.(1)
10.3 -- Form of Unsecured Convertible Promissory Notes -- Sam's.(1)
10.4 -- Form of Unsecured Contingent Convertible Subordinated Promissory
Notes -- Sam's.(1)
10.5 -- Agreement, dated September 22, 1997, between the Company and Gary
L. Gabriel.(1)
10.6 -- Asset Purchase Agreement, dated December 8, 1997, by and among
NationsRent of Ohio, Inc., R&R Rental, Inc. ("R&R") and the sole
shareholder of R&R, together with an Amendment dated December 10,
1997.(1)
10.7 -- Form of Unsecured Subordinated Promissory Note -- R&R.(1)
10.8 -- Asset Purchase Agreement, dated December 8, 1997, as amended,
among NationsRent of Indiana, Inc. and C&E Rental and Service, Inc.
("C&E"), together with an Amendment dated December 23, 1997.(1)
10.9 -- Form of Unsecured Convertible Subordinated Promissory Note --
C&E.(1)
10.10 -- Stock Purchase Agreement, dated December 20, 1997, as amended,
among NationsRent of West Virginia, Inc., Titan Rentals, Inc.
("Titan") and the shareholder of Titan, together with an Amendment
dated December 31, 1997.(1)
10.11 -- Form of Unsecured Convertible Subordinated Promissory Note --
Titan.(1)
10.12 -- Stock Purchase Agreement, dated March 24, 1998, among the Company,
Bode-Finn Limited Partnership ("Bode-Finn") and the shareholders of
Bode-Finn, together with Amendment No. 1, dated April 6, 1998, and
Amendment No. 2, dated April 17, 1998.(1)
10.13 -- Form of Unsecured Convertible Subordinated Promissory Notes --
Bode-Finn.(1)
10.14 -- Form of Warrant -- Bode-Finn.(1)
10.15 -- Registration Rights Agreement, dated May 5, 1998, among the
Company, Bode-Finn, and Raymond E. Mason Foundation.(1)
10.16 -- Asset Purchase Agreement, dated March 25, 1998, among NationsRent
of Indiana, Inc., RFL, Enterprises, Inc. and the sole shareholder of
RFL Enterprises, Inc. ("RFL").(1)
10.17 -- Asset Purchase Agreement, dated April 21, 1998, among NationsRent
of Florida, Inc. and Naples Rent-All and Sales Company, Inc.
("Naples").(1)
10.18 -- Form of Unsecured Convertible Subordinated Promissory Note --
Naples.(1)
10.19 -- Stock Purchase Agreement, dated May 7, 1998, among the Company,
Raymond Equipment Co. ("Raymond Equipment") and the shareholders of
Raymond Equipment.(1)
10.20 -- Form of Unsecured Subordinated Promissory Notes -- Raymond
Equipment.(1)
10.21 -- Form of Unsecured Convertible Subordinated Promissory Notes --
Raymond Equipment.(1)
10.22 -- Asset Purchase Agreement, dated May 14, 1998, among the Company
and General Rental, Inc.(1)
10.23 -- Stock Purchase Agreement, dated May 30, 1998, among the Company,
J. Kelly Co., Inc. ("J. Kelly") and the shareholders of J. Kelly.(1)
10.24 -- Form of Unsecured Convertible Subordinated Promissory Note -- J.
Kelly.(1)
10.25 -- Form of Registration Rights Agreement among the Company and the
shareholders of J. Kelly.(1)
10.26 -- Asset Purchase Agreement, dated June 7, 1998, among the Company,
Associated Rental Equipment Management Company, Inc. ("Associated")
and the sole shareholder of Associated.(1)
10.27 -- Form of Unsecured Convertible Subordinated Promissory Note --
Associated.(1)
10.28 -- Form of Registration Rights Agreement -- Associated.(1)
10.29 -- Form of Subscription Agreement, dated May 1998, between the
Company and certain subscribers.(1)
10.30 -- NationsRent 1998 Stock Option Plan.(2)
10.31 -- Form of Stock Option Agreement.(1)
10.32 -- Amended and Restated Purchase Agreement, dated as of September 9,
1998, by and among NationsRent, Inc., Ray L. O'Neal, Inc., Arenco,
L.L.C., Don R. O'Neal, Elizabeth M. O'Neal and the O'Neal Revocable
Trust dated December 29, 1987.(5)
10.33 -- Unsecured Convertible Subordinated Promissory Note, dated as of
October 23, 1998, from the Company to Ray L. O'Neal, Inc.(5)
27.1* -- Financial Data Schedule (for SEC use only).
18
<PAGE> 21
- -------------
* Filed herewith
(1) Incorporated by reference to the Company's Registration Statement on
Form S-1, as amended, Commission File No. 333-56233.
(2) Incorporated by reference to the Company's Quarterly Report on Form
10-Q for the period ended June 30, 1998.
(3) Included in Exhibit 4.4 hereto as Exhibit A.2.
(4) Incorporated by reference to the Company's Quarterly Report on Form
10-Q for the period ended September 30, 1998.
(5) Incorporated by reference to the Company's Current Report on Form 8-K filed
on November 9, 1998.
(6) Incorporated by reference to the Company's Registration Statement on
Form S-4, Commission File No. 333-69691.
(7) Incorporated by reference to the Company's Current Report on Form 8-K
filed on April 8, 1999.
(b) Reports on Form 8-K
We filed a Current Report on Form 8-K/A on January 6, 1999 to include
historical and pro forma financial statements relating to the Company's
acquisition of Ray L. O'Neal, Inc. and Arenco, L.L.C.
We filed a Current Report on Form 8-K dated January 27, 1999 relating
to the execution of the Agreement and Plan of Merger, dated as of January 20,
1999, between the Company and Rental Service Corporation.
19
<PAGE> 22
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
NATIONSRENT, INC.
Date: May 17, 1999 By /s/ James L. Kirk
----------------------------------------------------
James L. Kirk
Chairman of the Board and
Chief Executive Officer
(Duly Authorized Officer)
Date: May 17, 1999 By /s/ Gene J. Ostrow
----------------------------------------------------
Gene J. Ostrow
Executive Vice President and Chief Financial Officer
(Principal Financial Officer)
Date: May 17, 1999 By /s/ Kris E. Hansel
----------------------------------------------------
Kris E. Hansel
Vice President and Controller
(Principal Accounting Officer)
20
<PAGE> 23
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------
EXHIBITS TO
FORM 10-Q
MARCH 31, 1999
----------
NATIONSRENT, INC.
================================================================================
<PAGE> 24
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
- ------ -----------
2.1 -- Agreement and Plan of Merger, dated as of January 20, 1999, between
the Company and Rental Service Corporation.(7)
2.2 -- Stock Option Agreement, dated as of January 20, 1999, between the
Company and Rental Service Corporation.(7)
2.3 -- Stock Option Agreement, dated as of January 20, 1999, between Rental
Service Corporation and the Company.(7)
2.4 -- Voting Agreement, dated as of January 20, 1999, between Kirk
Holdings Limited Partnership, H. Family Investments, Inc. and
Huizenga Investments Limited Partnership, as shareholders, and Rental
Service Corporation.(7)
3.1 -- Amended and Restated Certificate of Incorporation of the Company.(2)
3.2 -- Amended and Restated By-Laws of the Company.(1)
4.1 -- Unregistered 10 3/8% Global Senior Subordinated Note due 2008.(6)
4.2 -- Registered 10 3/8% Senior Subordinated Notes due 2008.(3)
4.3 -- Senior Subordinated Guarantee dated December 11, 1998 of the
Guarantors.(6)
4.4 -- Indenture, dated December 11, 1998, by and among Company, the
Guarantors and The Bank of New York.(6)
4.5 -- Registration Rights Agreement, dated December 11, 1998, by and among
the Company, the Guarantors and the Initial Purchasers as defined
therein.(6)
4.6* -- Third Amended and Restated Revolving Credit and Term Loan Agreement,
dated as of February 11, 1999, by and among the Company, its
subsidiaries, BankBoston, N.A., LaSalle National Bank, Fleet Bank,
N.A., NationsBank, N.A., and other lending institutions named therein
4.7* -- First Amendment to Third Amended and Restated Revolving Credit and
Term Loan Agreement, dated March 24, 1999, by and among the Company,
its subsidiaries, BankBoston, N.A., LaSalle National Bank, Fleet
Bank, N.A., NationsBank, N.A., and other lending institutions named
therein
4.8 -- Security Agreement, dated as of March 18, 1998, between the Company
and BankBoston, N.A.(1)
4.9 -- Omnibus Amendment to Security Documents, dated as of June 29, 1998,
among the Company, its subsidiaries and BankBoston, N.A.(1)
4.10 -- Omnibus Amendment No. 2 to Security Documents, dated as of
September 24, 1998, among the Company, its subsidiaries and
BankBoston, N.A.(4)
4.11* -- Omnibus Amendment No. 3 to Security Documents, dated as of
February 11, 1999, by and among the Company, its subsidiaries and
BankBoston, N.A.
10.1 -- Stock Purchase Agreement, dated August 15, 1997, by and among the
Company, Sam's and the shareholders of Sam's, together with Amendment
Nos. 1-6.(1)
10.2 -- Form of Unsecured Subordinated Promissory Notes -- Sam's.(1)
10.3 -- Form of Unsecured Convertible Promissory Notes -- Sam's.(1)
10.4 -- Form of Unsecured Contingent Convertible Subordinated Promissory
Notes -- Sam's.(1)
10.5 -- Agreement, dated September 22, 1997, between the Company and Gary
L. Gabriel.(1)
10.6 -- Asset Purchase Agreement, dated December 8, 1997, by and among
NationsRent of Ohio, Inc., R&R Rental, Inc. ("R&R") and the sole
shareholder of R&R, together with an Amendment dated December 10,
1997.(1)
10.7 -- Form of Unsecured Subordinated Promissory Note -- R&R.(1)
10.8 -- Asset Purchase Agreement, dated December 8, 1997, as amended,
among NationsRent of Indiana, Inc. and C&E Rental and Service, Inc.
("C&E"), together with an Amendment dated December 23, 1997.(1)
10.9 -- Form of Unsecured Convertible Subordinated Promissory Note --
C&E.(1)
10.10 -- Stock Purchase Agreement, dated December 20, 1997, as amended,
among NationsRent of West Virginia, Inc., Titan Rentals, Inc.
("Titan") and the shareholder of Titan, together with an Amendment
dated December 31, 1997.(1)
10.11 -- Form of Unsecured Convertible Subordinated Promissory Note --
Titan.(1)
10.12 -- Stock Purchase Agreement, dated March 24, 1998, among the Company,
Bode-Finn Limited Partnership ("Bode-Finn") and the shareholders of
Bode-Finn, together with Amendment No. 1, dated April 6, 1998, and
Amendment No. 2, dated April 17, 1998.(1)
<PAGE> 25
10.13 -- Form of Unsecured Convertible Subordinated Promissory Notes --
Bode-Finn.(1)
10.14 -- Form of Warrant -- Bode-Finn.(1)
10.15 -- Registration Rights Agreement, dated May 5, 1998, among the
Company, Bode-Finn, and Raymond E. Mason Foundation.(1)
10.16 -- Asset Purchase Agreement, dated March 25, 1998, among NationsRent
of Indiana, Inc., RFL, Enterprises, Inc. and the sole shareholder of
RFL Enterprises, Inc. ("RFL").(1)
10.17 -- Asset Purchase Agreement, dated April 21, 1998, among NationsRent
of Florida, Inc. and Naples Rent-All and Sales Company, Inc.
("Naples").(1)
10.18 -- Form of Unsecured Convertible Subordinated Promissory Note --
Naples.(1)
10.19 -- Stock Purchase Agreement, dated May 7, 1998, among the Company,
Raymond Equipment Co. ("Raymond Equipment") and the shareholders of
Raymond Equipment.(1)
10.20 -- Form of Unsecured Subordinated Promissory Notes -- Raymond
Equipment.(1)
10.21 -- Form of Unsecured Convertible Subordinated Promissory Notes --
Raymond Equipment.(1)
10.22 -- Asset Purchase Agreement, dated May 14, 1998, among the Company
and General Rental, Inc.(1)
10.23 -- Stock Purchase Agreement, dated May 30, 1998, among the Company,
J. Kelly Co., Inc. ("J. Kelly") and the shareholders of J. Kelly.(1)
10.24 -- Form of Unsecured Convertible Subordinated Promissory Note -- J.
Kelly.(1)
10.25 -- Form of Registration Rights Agreement among the Company and the
shareholders of J. Kelly.(1)
10.26 -- Asset Purchase Agreement, dated June 7, 1998, among the Company,
Associated Rental Equipment Management Company, Inc. ("Associated")
and the sole shareholder of Associated.(1)
10.27 -- Form of Unsecured Convertible Subordinated Promissory Note --
Associated.(1)
10.28 -- Form of Registration Rights Agreement -- Associated.(1)
10.29 -- Form of Subscription Agreement, dated May 1998, between the
Company and certain subscribers.(1)
10.30 -- NationsRent 1998 Stock Option Plan.(2)
10.31 -- Form of Stock Option Agreement.(1)
10.32 -- Amended and Restated Purchase Agreement, dated as of September 9,
1998, by and among NationsRent, Inc., Ray L. O'Neal, Inc., Arenco,
L.L.C., Don R. O'Neal, Elizabeth M. O'Neal and the O'Neal Revocable
Trust dated December 29, 1987.(5)
10.33 -- Unsecured Convertible Subordinated Promissory Note, dated as of
October 23, 1998, from the Company to Ray L. O'Neal, Inc.(5)
27.1* -- Financial Data Schedule (for SEC use only).
- ----------------------
* Filed herewith
(1) Incorporated by reference to the Company's Registration Statement on
Form S-1, as amended, Commission File No. 333-56233.
(2) Incorporated by reference to the Company's Quarterly Report on Form
10-Q for the period ended June 30, 1998.
(3) Included in Exhibit 4.4 hereto as Exhibit A.2.
(4) Incorporated by reference to the Company's Quarterly Report on Form
10-Q for the period ended September 30, 1998.
(5) Incorporated by reference to the Company's Current Report on Form 8-K
filed on November 9, 1998.
(6) Incorporated by reference to the Company's Registration Statement on
Form S-4, Commission File No. 333-69691.
(7) Incorporated by reference to the Company's Current Report on Form 8-K
filed on April 8, 1999.
<PAGE> 1
EXHIBIT 4.6
THIRD AMENDED AND RESTATED
REVOLVING CREDIT AND TERM LOAN AGREEMENT
Dated as of February 11, 1999
by and among
NATIONSRENT, INC.
AND ITS SUBSIDIARIES
(the "Borrowers"),
BANKBOSTON, N.A., AS ADMINISTRATIVE AGENT
LASALLE NATIONAL BANK, AS
DOCUMENTATION AGENT
FLEET BANK, N.A., AS CO-AGENT
NATIONSBANK, N.A., AS CO-AGENT
and
THE LENDING INSTITUTIONS PARTY HERETO
(the "Lenders"),
WITH
BANCBOSTON ROBERTSON STEPHENS INC., AS ARRANGER
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
<S> <C> <C>
ss.1. DEFINITIONS AND RULES OF INTERPRETATION........................................................2
ss.1.1. Definitions...........................................................................2
ss.1.2. Rules of Interpretation..............................................................19
ss.2. THE REVOLVING CREDIT FACILITY.................................................................20
ss.2.1. Commitment to Lend...................................................................20
ss.2.2. Reduction of Total Commitment........................................................20
ss.2.3. The Revolving CreditNotes............................................................21
ss.2.4. Interest on Revolving Credit Loans and Swing Line Loans..............................21
ss.2.5. Election of Eurodollar Rate; Notice of Election; Interest Periods; Minimum Amounts...21
ss.2.6. Requests for Revolving Credit Loans and Swing Line Loans.............................22
ss.2.7. Funds for Revolving Credit Loans.....................................................23
ss.2.8. Swing Line Loans;Settlements.........................................................24
ss.2.9. Maturity of the Revolving Credit Loans...............................................26
ss.2.10. Mandatory Repayments of the Revolving Credit Loans and Swing
Line Loans and Reimbursement Obligations............................................ 26
ss.2.11. Optional Prepayments of Revolving Credit Loans and Swing Line
Loans.***..........................................................................26
ss.3. THE TERM LOAN.................................................................................28
3.1. Commitment to Lend...................................................................28
3.2. The Term Notes.......................................................................28
3.3. Schedule of Installment Payments of Principal of Term Loan...........................28
3.4. Mandatory Prepayments................................................................28
3.5. Optional Prepayment of Term Loan.....................................................29
3.6. Interest on Term Loan................................................................29
3.6.1. Interest Rates..............................................................29
3.6.2. Notification by Borrowers...................................................29
3.6.3. Amounts, etc................................................................30
ss.4. LETTERS OF CREDIT.............................................................................30
ss.4.1. Letter of Credit Commitments.........................................................30
ss.4.2. Reimbursement Obligation of the Borrowers............................................31
ss.4.3. Letter of Credit Payments............................................................32
ss.4.4. Obligations Absolute.................................................................32
ss.4.5. Reliance by Administrative Agent.....................................................33
ss.5. CERTAIN GENERAL PROVISIONS....................................................................33
ss.5.1. Fees.................................................................................33
</TABLE>
<PAGE> 3
<TABLE>
<CAPTION>
<S> <C> <C>
ss.5.2. Payments.............................................................................34
ss.5.3. Computations.........................................................................36
ss.5.4. Capital Adequacy.....................................................................36
ss.5.5. Certificate..........................................................................37
ss.5.6. Interest After Default...............................................................37
ss.5.7. Interest Limitation..................................................................37
ss.5.8. Eurodollar Indemnity.................................................................37
ss.5.9. Illegality; Inability to Determine Eurodollar Rate...................................38
ss.5.10. Additional Costs, Etc...............................................................39
ss.5.11. Replacement of Lenders..............................................................40
ss.5.12. Concerning Joint and Several Liability of the Borrowers.............................41
ss.6. REPRESENTATIONS AND WARRANTIES................................................................43
ss.6.1. Corporate Authority..................................................................44
ss.6.2. Governmental Approvals...............................................................44
ss.6.3. Title to Properties; Leases..........................................................44
ss.6.4. Financial Statements; Solvency.......................................................45
ss.6.5. No Material Changes, Etc.............................................................45
ss.6.6. Permits, Franchises, Patents, Copyrights, Etc........................................45
ss.6.7. Litigation...........................................................................45
ss.6.8. No Materially Adverse Contracts, Etc.................................................46
ss.6.9. Compliance With Other Instruments, Laws, Etc.........................................46
ss.6.10. Tax Status..........................................................................46
ss.6.11. No Event of Default.................................................................46
ss.6.12. Holding Company and Investment Company Acts.........................................46
ss.6.13. Absence of Financing Statements, Etc................................................47
ss.6.14. Employee Benefit Plans..............................................................47
ss.6.15. Use of Proceeds.....................................................................48
ss.6.15.1. General................................................................48
ss.6.15.2. Regulations U and X....................................................48
ss.6.15.3. Ineligible Securities..................................................48
ss.6.16. Environmental Compliance............................................................49
ss.6.17. Perfection of Security Interests....................................................50
ss.6.18. Transactions with Affiliates........................................................50
ss.6.19. Subsidiaries........................................................................50
ss.6.20. True Copies of Charter and Other Documents..........................................51
ss.6.21. Disclosure..........................................................................51
ss.6.22. Capitalization......................................................................51
ss.6.23. Year 2000 Compliance................................................................51
ss.6.24. Subordinated Debt...................................................................52
ss.7. AFFIRMATIVE COVENANTS OF THE BORROWERS........................................................52
ss.7.1. Punctual Payment.....................................................................52
ss.7.2. Maintenance of Offices...............................................................52
</TABLE>
-ii-
<PAGE> 4
<TABLE>
<CAPTION>
<S> <C> <C>
ss.7.3. Records and Accounts.................................................................52
ss.7.4. Financial Statements, Certificates and Information...................................52
ss.7.5. Corporate Existence and Conduct of Business..........................................53
ss.7.6. Maintenance of Properties............................................................54
ss.7.7. Insurance............................................................................54
ss.7.8. Taxes................................................................................54
ss.7.9. Inspection of Properties, Books, and Contracts.......................................55
ss.7.10. Compliance with Laws, Contracts, Licenses and Permits;
Maintenance of Material Licenses and Permits........................................55
ss.7.11. Environmental Indemnification.......................................................56
ss.7.12. Further Assurances..................................................................56
ss.7.13. Notice of Potential Claims or Litigation............................................56
ss.7.14. Notice of Certain Events Concerning Insurance and Environmental Claims..............57
ss.7.15. Notice of Default...................................................................58
ss.7.16. New Subsidiaries....................................................................58
ss.7.17. Employee Benefit Plans..............................................................59
ss.7.18. Use of Proceeds.....................................................................59
ss.7.19. Title and Registration..............................................................59
ss.8. CERTAIN NEGATIVE COVENANTS OF THE BORROWERS...................................................59
ss.8.1. Restrictions on Indebtedness.........................................................59
ss.8.2. Restrictions on Liens................................................................61
ss.8.3. Restrictions on Investments..........................................................62
ss.8.4. Merger, Consolidation and Disposition of Assets......................................63
ss.8.4.1. Mergers and Acquisitions..................................................63
ss.8.4.2. Disposition of Assets.....................................................65
ss.8.5. Sale and Leaseback...................................................................65
ss.8.6. Restricted Distributions and Redemptions.............................................66
ss.8.7. Employee Benefit Plans...............................................................66
ss.8.8. Negative Pledges.....................................................................66
ss.8.9. Business Activities..................................................................66
ss.8.10. Transactions with Affiliates........................................................66
ss.8.11. Subordinated Debt...................................................................67
ss.8.12. Fiscal Year.........................................................................67
ss.9. FINANCIAL COVENANTS...........................................................................68
ss.9.1. Leverage Ratio.......................................................................68
ss.9.2. Senior Funded Debt to EBITDA.........................................................68
ss.9.3. Interest Coverage Ratio..............................................................68
ss.9.4. Tangible Assets to Senior Debt.......................................................68
ss.9.5. Consolidated Net Worth...............................................................69
ss.9.6. Capital Expenditures.................................................................69
ss.10. CLOSING CONDITIONS............................................................................69
ss.10.1. Loan Documents, Etc.................................................................69
</TABLE>
-iii-
<PAGE> 5
<TABLE>
<CAPTION>
<S> <C> <C>
ss.10.2. Corporate Action....................................................................69
ss.10.3. Certificate of Secretary; Good Standing Certificates................................70
ss.10.4. Validity of Liens...................................................................70
ss.10.5. Perfection Certificates and UCC Search Results......................................70
ss.10.6. Certificates of Insurance...........................................................71
ss.10.7. Legal Opinions......................................................................71
ss.10.8. Payment of Fees.....................................................................71
ss.10.9. Closing Certificate.................................................................71
ss.10.10. Consents...........................................................................71
ss.10.11. Subordinated Debt Documents........................................................71
ss.10.12. Compliance Certificate.............................................................71
ss.11. CONDITIONS OF ALL LOANS.......................................................................71
ss.11.1. Representations True; No Event of Default...........................................72
ss.11.2. Performance; No Event of Default....................................................72
ss.11.3. No Legal Impediment.................................................................72
ss.11.4. Governmental Regulation.............................................................72
ss.11.5. Proceedings and Documents...........................................................72
ss.12. COLLATERAL SECURITY...........................................................................73
ss.13. EVENTS OF DEFAULT; ACCELERATION; TERMINATION OF COMMITMENT....................................73
ss.13.1. Events of Default and Acceleration..................................................73
ss.13.2. Termination of Commitments..........................................................76
ss.13.3. Remedies............................................................................76
ss.13.4. Distribution of Collateral Proceeds.................................................77
ss.14. SETOFF........................................................................................78
ss.15. THE ADMINISTRATIVE AGENT......................................................................78
ss.15.1. Authorization.......................................................................78
ss.15.2. Employees and Agents................................................................79
ss.15.3. No Liability........................................................................79
ss.15.4. Non-Reliance on Agent and Other Banks...............................................80
ss.15.5. No Representations..................................................................80
ss.15.5.1. General..................................................................80
ss.15.5.2. Closing Documentation, etc...............................................81
ss.15.6. Payments............................................................................81
ss.15.6.1. Payments to Administrative Agent.........................................81
ss.15.6.2. Distribution by Administrative Agent.....................................81
ss.15.6.3. Delinquent Lenders.......................................................82
ss.15.7. Holders of Notes....................................................................82
ss.15.8. Indemnity...........................................................................82
ss.15.9. Administrative Agent as Lender......................................................83
ss.15.10. Resignation........................................................................83
ss.15.11. Notification of Defaults and Events of Default.....................................83
</TABLE>
-iv-
<PAGE> 6
<TABLE>
<CAPTION>
<S> <C> <C>
ss.15.12. Duties in the Case of Enforcement..................................................84
ss.15.13. Duties of Documentation Agent and Co-Agents........................................84
ss.16. EXPENSES AND INDEMNIFICATION..................................................................84
ss.16.1. Expenses............................................................................84
ss.16.2 Indemnification.....................................................................85
ss.16.3 Survival............................................................................85
ss.17. SURVIVAL OF COVENANTS, ETC....................................................................86
ss.18. ASSIGNMENT AND PARTICIPATION..................................................................86
ss.18.1. Conditions to Assignment by Lenders..................................................86
ss.18.2. Certain Representations and Warranties;
Limitations; Covenants........................................................................87
ss.18.3. Register.............................................................................88
ss.18.4. New Notes............................................................................88
ss.18.5. Participations.......................................................................89
ss.18.6. Disclosure...........................................................................89
ss.18.7. Assignee or Participant Affiliated with a Borrower...................................89
ss.18.8. Miscellaneous Assignment Provisions..................................................90
ss.18.9. Assignment by Borrowers..............................................................90
ss.19. PARTIES IN INTEREST...........................................................................90
ss.20. NOTICES, ETC..................................................................................90
ss.21. TREATMENT OF CERTAIN CONFIDENTIAL INFORMATION.................................................91
ss.21.1. Sharing of Information with Section 20 Subsidiary....................................91
ss.21.2. Confidentiality......................................................................91
ss.21.3. Prior Notification...................................................................92
ss.21.4. Other................................................................................92
ss.22. MISCELLANEOUS.................................................................................92
ss.23. ENTIRE AGREEMENT, ETC.........................................................................93
ss.24. WAIVER OF JURY TRIAL..........................................................................93
ss.25. GOVERNING LAW; SUBMISSION TO JURISDICTION.....................................................93
ss.26. SEVERABILITY..................................................................................94
ss.27. CONSENTS, AMENDMENTS, WAIVERS, ETC............................................................94
ss.28. TRANSITIONAL ARRANGEMENTS.....................................................................95
ss.28.1. Prior Loan Agreement Superseded......................................................95
ss.28.2. Return and Cancellation of Notes.....................................................95
ss.28.3. Reference to Agent...................................................................95
ss.28.4. Interest and Fees Under Superseded Agreement.........................................95
</TABLE>
-v-
<PAGE> 7
SCHEDULES & EXHIBITS
---------------------
Exhibit A-1 Form of Revolving Credit Note
Exhibit A-2 Form of Swing Line Note
Exhibit B Form of Term Note
Exhibit C Form of Loan and Letter of Credit Request
Exhibit D Form of Compliance Certificate
Exhibit E Form of Assignment and Acceptance
Exhibit F Form of Joinder Agreement
Exhibit G Terms of Subordinated Debt
Schedule 1 Lenders; Addresses; Commitment Percentages
Schedule 2 Subsidiaries
Schedule 4.1(d) Letters of Credit Outstanding
Schedule 6.7 Litigation
Schedule 6.14 Employee Benefit Plans
Schedule 6.16 Environmental Matters
Schedule 6.18 Transactions with Affiliates
Schedule 8.1 Existing Indebtedness
Schedule 8.2 Existing Liens
Schedule 8.3 Existing Investments
Schedule 13.1(m) Rule 13d-3 Shareholders
<PAGE> 8
THIRD AMENDED AND RESTATED
REVOLVING CREDIT AND TERM LOAN AGREEMENT
This THIRD AMENDED AND RESTATED REVOLVING CREDIT AND TERM LOAN
AGREEMENT is made as of February 11, 1999 (the "Credit Agreement"), by and among
(a) NATIONSRENT, INC., a Delaware corporation (the "Parent"), and its
Subsidiaries (collectively with the Parent, the "Borrowers"), (b) BANKBOSTON,
N.A., a national banking association having its principal place of business at
100 Federal Street, Boston, Massachusetts 02110 (acting in its individual
capacity, "BKB"), LASALLE NATIONAL BANK, a national banking association having
its principal place of business at 135 South LaSalle Street, Chicago, Illinois
60603 (acting in its individual capacity "LaSalle"), the other lending
institutions which become parties hereto (collectively, the "Lenders"), (c)
BANKBOSTON, N.A., as administrative agent and syndication agent for the Lenders
(the "Administrative Agent"), (d) LASALLE NATIONAL BANK, as documentation agent
for the Lenders (the "Documentation Agent") (e) FLEET BANK, N.A. and
NATIONSBANK, N.A., as co-agents (the "Co-Agents") and (f) BANCBOSTON ROBERTSON
STEPHENS INC. as arranger (the "Arranger").
WHEREAS, pursuant to that certain Second Amended and Restated Revolving
Credit and Term Loan Agreement dated as of September 24, 1998, as amended by the
Amendment No. 1 and Consent to Second Amended and Restated Revolving Credit and
Term Loan Agreement, dated as of October 9, 1998, as further amended by the
Second Amendment, dated as of November 2, 1998, and as further amended by the
Confirmatory Amendment No. 3, dated as of November 4, 1998 (as so heretofore
amended, the "Prior Credit Agreement"), certain of the Term Loan Lenders have
made a Term Loan and certain of the Revolving Credit Lenders have made revolving
credit loans and otherwise extended credit to the Borrowers for the purposes
described therein; and
WHEREAS, the Borrowers, the Lenders and the Administrative Agent wish
to amend and restate the Prior Credit Agreement in order to add new Lenders, to
provide additional financing and to make certain other changes to the terms and
provisions of the Prior Credit Agreement.
NOW THEREFORE, the Borrowers, the Lenders and the Administrative Agent
hereby agree that the Prior Credit Agreement is hereby amended and restated in
its entirety and remains in force and effect only as set forth herein and the
Term Loan, the Revolving Credit Loans, the Swing Line Loans and Letters of
Credit (each as defined in the Prior Credit Agreement) shall constitute the Term
Loan, Revolving Credit Loans, Swing Line Loans and Letters of Credit,
respectively, hereunder.
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SS.1. DEFINITIONS AND RULES OF INTERPRETATION.
SS.1.1. DEFINITIONS. The following terms shall have the meanings set
forth in this ss.1 or elsewhere in the provisions of this Credit Agreement
referred to below:
Accountants. Any independent accounting firm of national standing, or
in connection with acquisitions permitted by ss.8.4 hereof, regional accounting
firms, reasonably acceptable to the Administrative Agent.
Affected Lender. See ss.5.11.
Affiliate. Any Person that would be considered to be an affiliate of
any of the Borrowers under Rule 144 (a) of the Rules and Regulations of the
Securities and Exchange Commission, as in effect on the date hereof if such
Borrower were issuing securities.
Administrative Agent. See Preamble.
Administrative Agent's Head Office. The Administrative Agent's head
office located at 100 Federal Street, Boston, Massachusetts 02110, or such other
location as the Administrative Agent may designate from time to time.
Applicable Base Rate Margin. The applicable margin with respect to
Loans made at the Base Rate as set forth in the Pricing Table.
Applicable Commitment Rate. The applicable rate with respect to the
Commitment Fee as set forth in the Pricing Table.
Applicable Laws. See ss.7.10.
Applicable L/C Margin. The applicable margin with respect to the Letter
of Credit Fee as set forth in the Pricing Table.
Applicable Revolver Eurodollar Margin. The applicable margin with
respect to Revolving Credit Loans made at the Eurodollar Rate as set forth in
the Pricing Table.
Applicable Term Loan Eurodollar Margin. The applicable margin with
respect to a Term Loan made at the Eurodollar Rate as set forth in the Pricing
Table.
Arranger. BancBoston Robertson Stephens Inc.
Assignment and Acceptance. See ss.18.
Balance Sheet Date. December 31, 1997.
Base Rate. The higher of (a) the annual rate of interest announced from
time to time by the Administrative Agent at the Administrative Agent's
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Head Office as its "base rate" (it being understood that such rate is a
reference rate and not necessarily the lowest rate of interest charged by the
Administrative Agent) or (b) one percent (1%) above the overnight federal funds
effective rate, as published by the Board of Governors of the Federal Reserve
System, as in effect from time to time.
Base Rate Loans. Loans bearing interest calculated by reference to the
Base Rate.
BKB. See Preamble.
Borrowers. See Preamble.
Business Day. Any day on which banking institutions in Boston,
Massachusetts, New York, New York and Ft. Lauderdale, Florida are open for the
transaction of banking business.
Capital Assets. Fixed assets, both tangible (such as land, buildings,
fixtures, machinery and equipment) and intangible (such as patents, copyrights,
trademarks, franchises and goodwill); provided that Capital Assets shall not
include (a) any item customarily charged directly to expense or depreciated over
a useful life of twelve (12) months or less in accordance with GAAP, or (b) any
item obtained through an acquisition permitted by ss.8.4 hereof.
Capital Expenditures. Amounts paid or Indebtedness incurred by the
Borrowers in connection with (i) the purchase or lease of Capital Assets that
would be required to be capitalized and shown on the balance sheet of such
Person in accordance with GAAP or (ii) the lease of any assets by any Borrower
as lessee under any Synthetic Lease to the extent that such assets would have
been Capital Assets had the Synthetic Lease been treated for accounting purposes
as a Capitalized Lease.
Capitalized Leases. Leases under which any Borrower is the lessee or
obligor, the discounted future rental payment obligations under which are
required to be capitalized on the balance sheet of the lessee or obligor in
accordance with GAAP.
CERCLA. See definition of Release.
Certified. With respect to the financial statements of any Person, such
statements as audited by a firm of independent auditors, whose report expresses
the opinion, without qualification, that such financial statements present
fairly the financial position of such Person.
CFO. See ss.7.4(b).
Closing Date. The date on which the conditions precedent set forth in
ss.10 are satisfied.
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Co-Agents. See Preamble.
Code. The Internal Revenue Code of 1986, as amended and in effect from
time to time.
Collateral. All of the property, rights and interests of the Borrowers
that are or are intended to be subject to the security interests created by the
Security Documents.
Commitment. With respect to each Revolving Credit Lender, the amount
determined by multiplying such Lender's Commitment Percentage by the Total
Commitment specified in ss.2.1 hereof as the amount of such Revolving Credit
Lender's commitment to make Revolving Credit Loans to, to participate in the
making of Swing Line Loans to and to participate in the issuance, extension and
renewal of Letters of Credit for the account of the Borrowers, as the same may
be reduced or increased in accordance with the terms hereof from time to time;
or if such commitment is terminated pursuant to the provisions hereby, zero.
Commitment Fee. See ss.5.1(a).
Commitment Percentage. With respect to each Revolving Credit Lender,
the percentage set forth beside its name on Schedule 1 (subject to adjustment in
accordance with ss.18) as such Revolving Credit Lender's percentage of the
aggregate Commitments of all of the Revolving Credit Lenders.
Compliance Certificate. See ss.7.4(c).
Consolidated or consolidated. With reference to any term defined
herein, shall mean that term as applied to the accounts of the Borrowers,
consolidated in accordance with GAAP.
Consolidated Earnings Before Interest and Taxes or EBIT. For any
period, the actual reported Consolidated Net Income (or Deficit) of the
Borrowers, plus (a) interest expense for such period and (b) income taxes for
such period, to the extent that each was deducted in determining Consolidated
Net Income (or Deficit), determined in accordance with GAAP, provided that, EBIT
(plus nonrecurring private company expenses that are (A) discontinued or
adjusted upon acquisition by the Parent or its Subsidiaries, such as owner
compensation and adjustments to depreciation to conform to the Parent's
accounting treatment, and (B) approved by the Administrative Agent) of the
Subsidiaries of the Parent acquired during the period reported in the most
recent financial statements delivered to the Lenders pursuant to ss.7.4 shall be
included in the calculation of EBIT if (i) the financial statements of such
acquired Subsidiaries have been audited, or with the consent of the
Administrative Agent, reviewed, by Accountants for the most recent fiscal year
ended of such acquired Subsidiaries, a portion of which fiscal year is sought to
be included in the
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calculation of EBIT, or (ii) the Administrative Agent consents to such inclusion
after being furnished with other acceptable financial statements, (such
statements accepted under (i) and (ii) hereof are referred to as "Acceptable
Financials") and (iii) a Compliance Certificate and other appropriate
documentation, in form and substance satisfactory to the Administrative Agent,
certifying the historical operating results and balance sheet of the acquired
companies are provided to the Administrative Agent.
Consolidated Earnings Before Interest, Taxes, Depreciation and
Amortization or EBITDA. For any period, EBIT plus (a) depreciation expense for
such period and (b) amortization expense relating to intangible assets for such
period, to the extent that each was deducted in determining Consolidated Net
Income (or Deficit), determined in accordance with GAAP, provided that, EBITDA
of the Subsidiaries of the Parent acquired during the period reported in the
most recent financial statements delivered to the Lenders pursuant to ss.7.4
(plus adjustments approved by the Administrative Agent as set forth in the
definition of EBIT) shall be included in the calculation of EBITDA (without
duplication).
Consolidated Net Income (or Deficit). The consolidated net income (or
deficit) of the Borrowers after deduction of all expenses, taxes, and other
proper charges, determined in accordance with GAAP.
Consolidated Net Worth. The excess of Consolidated Total Assets over
Consolidated Total Liabilities, less, to the extent otherwise includable in the
computation of Consolidated Net Worth, any subscriptions receivable.
Consolidated Tangible Assets. All accounts receivable, inventory
(including rental inventory), property, plants and equipment, (including titled
equipment) of the Borrowers on which the Administrative Agent for the benefit of
the Lenders and the Administrative Agent has a first priority perfected security
interest (other than perfection of titled equipment unless required by ss.7.19),
and which in any case are subject to no other liens, encumbrances, restrictions
or other security interests of any kind, determined on a consolidated basis in
accordance with GAAP.
Consolidated Total Assets. The sum of (i) all assets ("consolidated
balance sheet assets") of the Borrowers determined on a consolidated basis in
accordance with GAAP, plus (ii) without duplication, all assets leased by
Borrowers as lessee under any Synthetic Lease to the extent that such assets
would have been consolidated balance sheet assets had the Synthetic Lease been
treated for accounting purposes as a Capitalized Lease, plus (iii) without
duplication, all sold receivables referred to in clause (vii) of the definition
of the term "Indebtedness" to the extent that such receivables would have been
consolidated balance sheet assets had they not been sold.
Consolidated Total Interest Expense. For any period, the aggregate
amount of interest required to be paid or accrued by the Borrowers during
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such period on all Indebtedness of the Borrowers outstanding during all or any
part of such period, whether such interest was or is required to be reflected as
an item of expense or capitalized, including payments consisting of interest in
respect of any Capitalized Lease or any Synthetic Lease and including commitment
fees, agency fees, facility fees, balance deficiency fees and similar fees or
expenses in connection with the borrowing of money.
Consolidated Total Liabilities. All liabilities of the Borrowers
determined on a consolidated basis in accordance with GAAP and classified as
such on the consolidated balance sheet of the Borrowers and all other
Indebtedness of the Borrowers, whether or not so classified.
Credit Agreement. This Third Amended and Restated Revolving Credit and
Term Loan Agreement, including the Schedules and Exhibits hereto, as amended and
in effect from time to time.
Default. See ss.13.
Delinquent Lender. See ss.15.6.3.
Disposal (or Disposed). See definition of Release.
Distribution. The declaration or payment of any dividend or
distribution on or in respect of any shares of any class of capital stock, any
partnership interests or any membership interests of any Person (other than
dividends or other distributions payable solely in shares of common stock,
partnership interests or membership units of such Person, as the case may be);
the purchase, redemption, or other retirement of any shares of any class of
capital stock, partnership interests or membership units of such Person,
directly or indirectly through a Subsidiary or otherwise; the return of equity
capital by any Person to its shareholders, partners or members as such; or any
other distribution on or in respect of any shares of any class of capital stock,
partnership interest or membership unit of such Person.
Documentation Agent. See Preamble.
Dollars or $. Dollars in lawful currency of the United States of
America.
Drawdown Date. The date on which any Loan is made or is to be made, and
the date on which any Loan is converted or continued in accordance with
ss.ss.2.5 or 3.6.2 or the date that any draft or other form of demand for
payment is honored with respect to a Letter of Credit.
EBIT. See definition of Consolidated Earnings Before Interest and
Taxes.
EBITDA. See definition of Consolidated Earnings Before Interest, Taxes,
Depreciation and Amortization.
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Eligible Assignee. Any of (i) a commercial bank organized under the
laws of the United States, or any State thereof or the District of Columbia, and
having total assets in excess of $1,000,000,000; (ii) a savings and loan
association or savings bank organized under the laws of the United States, or
any State thereof or the District of Columbia, and having a net worth of at
least $100,000,000, calculated in accordance with generally accepted accounting
principles; (iii) an Eligible Foreign Bank (iv) any Lender and any Affiliate of
any Lender and, with respect to any Lender that is a fund that invests in loans,
any other fund that invests in loans and is managed by the same investment
advisor of such Lender or by an Affiliate of such investment advisor (and
treating all such funds so managed as a single Eligible Assignee); and (v) any
other bank, insurance company, commercial finance company or other financial
institution or fund approved by the Administrative Agent, such approval not to
be unreasonably withheld.
Eligible Foreign Bank. (a) Any commercial bank organized under the laws
of any other country which is a member of the Organization for Economic
Cooperation and Development (the "OECD"), or a political subdivision of any such
country, provided that such bank is acting through a branch or agency located in
the Cayman Islands, in the country in which it is organized or another country
which is also a member of the OECD; or (b) the central bank of any country which
is a member of the OECD.
Employee Benefit Plan. Any employee benefit plan within the meaning of
ss.3(3) of ERISA maintained or contributed to by any Borrower or any ERISA
Affiliate, other than a Guaranteed Pension Plan or a Multiemployer Plan.
Environmental Laws. See ss.6.16(a).
EPA. See ss.6.16(b).
ERISA. The Employee Retirement Income Security Act of 1974.
ERISA Affiliate. Any Person which is treated as a single employer with
any Borrower under ss.414 of the Code.
ERISA Reportable Event. A reportable event with respect to a Guaranteed
Pension Plan within the meaning of ss.4043 of ERISA and the regulations
promulgated thereunder.
Eurodollar Business Day. Any Business Day on which dealings in foreign
currency and exchange are carried on among banks in London, England or such
other eurodollar interbank market as may be selected by the Administrative Agent
and approved by the Majority Lenders.
Eurodollar Interest Determination Date. For any Interest Period, the
date two Eurodollar Business Days prior to the first day of such Interest
Period.
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Eurodollar Loans. Loans bearing interest calculated by reference to the
Eurodollar Rate.
Eurodollar Offered Rate. The rate per annum at which deposits of
dollars are offered to the Administrative Agent by prime banks in the London
interbank market or other eurodollar interbank market as may be selected by the
Administrative Agent and approved by the Majority Lenders, at or about 11:00
a.m. local time in such interbank market, on the Eurodollar Interest
Determination Date, for a period equal to the requested Interest Period in an
amount substantially equal to the principal amount requested to be loaned at or
converted to a rate based on the Eurodollar Rate.
Eurodollar Rate. The rate per annum, rounded upwards to the nearest
1/16 of 1%, determined by the Administrative Agent with respect to an Interest
Period in accordance with the following formula:
Eurodollar Rate = Eurodollar Offered Rate
-----------------------
1-Reserve Rate
Event of Default. See ss.13.
Fee Letter. See ss.10.8.
Funded Debt. Consolidated Indebtedness of the Borrowers for borrowed
money, every obligation of such Person issued or assumed as the deferred
purchase price of assets or services (including securities repurchase agreements
but excluding trade accounts payable or accrued liabilities arising in the
ordinary course of business which are not overdue in accordance with their terms
or the Borrowers' normal trade practices as applicable, or which are being
contested in good faith), and guarantees of such Indebtedness, recorded on the
consolidated balance sheet of the Borrowers, including reimbursement obligations
of the Borrowers with respect to letters of credit which are due and owing and
the amount of any Indebtedness of such Persons for Capitalized Leases which
corresponds to principal.
generally accepted accounting principles or GAAP. (i) When used in
ss.9, whether directly or indirectly through reference to a capitalized term
used therein, means (A) principles that are consistent with the principles
promulgated or adopted by the Financial Accounting Standards Board and its
predecessors, in effect for the fiscal year ended on the Balance Sheet Date, and
(B) to the extent consistent with such principles, the accounting practice of
the Borrowers reflected in their financial statements for the year ended on the
Balance Sheet Date, and (ii) when used in general, other than as provided above,
means principles that are (A) consistent with the principles promulgated or
adopted by the Financial Accounting Standards Board and its predecessors, as in
effect from time to time, and (B) consistently applied with past financial
statements of the Borrowers
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adopting the same principles, provided that in each case referred to in this
definition of "generally accepted accounting principles" a certified public
accountant would, insofar as the use of such accounting principles is pertinent,
be in a position to deliver an unqualified opinion (other than a qualification
regarding changes in generally accepted accounting principles) as to financial
statements in which such principles have been properly applied.
Guaranteed Pension Plan. Any employee pension benefit plan within the
meaning of ss.3(2) of ERISA maintained or contributed to by any Borrower or any
ERISA Affiliate, the benefits of which are guaranteed on termination in full or
in part by the PBGC pursuant to Title IV of ERISA, other than a Multiemployer
Plan.
Hazardous Substances. See ss.6.16(b).
Indebtedness. As to any Person and whether recourse is secured by or is
otherwise available against all or only a portion of the assets of such Person
and whether or not contingent, but without duplication:
(i) every obligation of such Person for money borrowed,
(ii) every obligation of such Person evidenced by bonds,
debentures, notes or other similar instruments, including obligations
incurred in connection with the acquisition of property, assets or
businesses,
(iii) every reimbursement obligation of such Person with
respect to letters of credit, bankers' acceptances or similar
facilities issued for the account of such Person,
(iv) every obligation of such Person issued or assumed as
the deferred purchase price of property or services (including
securities repurchase agreements but excluding trade accounts payable
or accrued liabilities arising in the ordinary course of business which
are not overdue or which are being contested in good faith),
(v) every obligation of such Person under any Capitalized
Lease,
(vi) every obligation of such Person under any Synthetic
Lease,
(vii) all sales by such Person of (A) accounts or general
intangibles for money due or to become due, (B) chattel paper,
instruments or documents creating or evidencing a right to payment of
money or (C) other receivables (collectively, "receivables"), whether
pursuant to a purchase facility or otherwise, other than in connection
with the disposition of the business operations of such Person relating
thereto or a disposition of defaulted receivables for collection and
not as a financing arrangement, and together with any obligation
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of such Person to pay any discount, interest, fees, indemnities,
penalties, recourse, expenses or other amounts in connection therewith,
(viii) every obligation of such Person (an "equity related
purchase obligation") to purchase, redeem, retire or otherwise acquire
for value any shares of capital stock of any class issued by such
Person, any warrants, options or other rights to acquire any such
shares, or any rights measured by the value of such shares, warrants,
options or other rights which obligations may be required to be
exercised prior to the Term Loan Maturity Date,
(ix) every obligation of such Person under any forward
contract, futures contract, swap, option or other financing agreement
or arrangement (including, without limitation, caps, floors, collars
and similar agreements), the value of which is dependent upon interest
rates, currency exchange rates, commodities or other indices,
(x) every obligation in respect of Indebtedness of any
other entity (including any partnership in which such Person is a
general partner) to the extent that such Person is liable therefor as a
result of such Person's ownership interest in or other relationship
with such entity, except to the extent that the terms of such
Indebtedness provide that such Person is not liable therefor and such
terms are enforceable under applicable law,
(xi) every obligation, contingent or otherwise, of such
Person guaranteeing, or having the economic effect of guaranteeing or
otherwise acting as surety for, any obligation of a type described in
any of clauses (i) through (x) (the "primary obligation") of another
Person (the "primary obligor"), in any manner, whether directly or
indirectly, and including, without limitation, any obligation of such
Person (A) to purchase or pay (or advance or supply funds for the
purchase of) any security for the payment of such primary obligation,
(B) to purchase property, securities or services for the purpose of
assuring the payment of such primary obligation, or (C) to maintain
working capital, equity capital or other financial statement condition
or liquidity of the primary obligor so as to enable the primary obligor
to pay such primary obligation.
The "amount" or "principal amount" of any Indebtedness at any time of
determination represented by (v) any Indebtedness, issued at a price that is
less than the principal amount at maturity thereof, shall be the amount of the
liability in respect thereof determined in accordance with GAAP, (w) any
Capitalized Lease shall be the principal component of the aggregate of the
rentals obligation under such Capitalized Lease payable over the term thereof
that is not subject to termination by the lessee, (x) any sale of receivables
shall be the amount of unrecovered capital or principal investment of the
purchaser (other than the Borrowers) thereof, excluding
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amounts representative of yield or interest earned on such investment, (y) any
Synthetic Lease shall be the stipulated loss value, termination value or other
equivalent amount and (z) any equity related purchase obligation shall be the
maximum fixed redemption or purchase price thereof inclusive of any accrued and
unpaid dividends to be comprised in such redemption or purchase price.
Ineligible Securities. Securities which may not be underwritten or
dealt in by member banks of the Federal Reserve System under Section 16 of the
Banking Act of 1993 (12 U.S.C. ss.24, Seventh), as amended.
Interest Period. With respect to each Eurodollar Loan:
(a) initially, the period commencing on the date of the
making of a Eurodollar Loan or the conversion from a Base Rate Loan into a
Eurodollar Loan and ending one (1), two (2), three (3), or six (6) months
thereafter, as selected by the Borrowers in a Loan and Letter of Credit Request;
and
(b) thereafter, each subsequent Interest Period shall begin
on the last day of the preceding Interest Period and shall end one (1), two (2),
three (3), or six (6) months thereafter, as selected by the Borrowers in a Loan
and Letter of Credit Request;
provided, however, that whenever the first day of any Interest
Period occurs on a day of an initial calendar month for which there is no
numerically corresponding day in the calendar month that succeeds such initial
calendar month by the number of months equal to the number of months in such
Interest Period, such Interest Period shall end on the last Business Day of such
succeeding calendar month.
International Standby Practices. With respect to any standby Letter of
Credit, International Standby Practices (ISP98) as promulgated by the Institute
of International Banking Law & Practice, Inc., or any successor code of standby
letter of credit practices among banks adopted by the Administrative Agent in
the ordinary course of its business as a standby letter of credit issuer and in
effect at the time of issuance of such Letter of Credit.
Issuance Fee. See ss.5.1(b).
Joinder Agreement. See ss.7.16(a).
LaSalle. See Preamble.
Lease. Any lease, master lease, sublease, chattel paper, installment
sales agreement or rental agreement (including progress payment authorizations),
including any and all schedules, supplements and amendments thereto and
modifications thereof.
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Lenders. The Revolving Credit Lenders and/or Term Loan Lenders, as
applicable.
Lessee. The lessee under a Lease.
Letter of Credit Applications. Letter of Credit Applications in such
form as may be agreed upon by the Borrowers and the Administrative Agent from
time to time which are entered into pursuant to ss.4 hereof, as such Letter of
Credit Applications are amended, varied or supplemented from time to time;
provided, however, in the event of any conflict or inconsistency between the
terms of any Letter of Credit Application and this Agreement, the terms of this
Agreement shall control.
Letter of Credit Fee. See ss.5.1(b).
Letter of Credit Participation. See ss.4.1(b).
Letters of Credit. Standby Letters of Credit issued or to be issued by
the Administrative Agent under ss.4 hereof or under the Prior Credit Agreement
for the account of the Borrowers.
Loan and Letter of Credit Request. See ss.2.6.
Loan Documents. This Credit Agreement, the Joinder Agreement(s), the
Notes, the Letter of Credit Applications, the Letters of Credit, the Security
Documents and Fee Letter, each as amended and in effect from time to time.
Loans. Revolving Credit Loans, Swing Line Loans and the Term Loan made
or to be made by the Lenders to the Borrowers hereunder.
Loan Percentage. With respect to each Lender as of a particular date,
such Lender's portion of and participating interests in (calculated as a
percentage) the sum of (i) the outstanding principal amount of the Revolving
Credit Loans on such date, (ii) the outstanding principal amount of the Term
Loan on such date, (iii) the outstanding principal amount of the Swing Line
Loans on such date, (iv) the Maximum Drawing Amount of Letters of Credit and any
unpaid Reimbursement Obligations on such date and, (v) with respect to the
definition of Majority Lenders and ss.15.8 only, the unused Commitments on such
date.
Majority Consent. See ss.8.4.1(f).
Majority Lenders. As of any date, the Lenders whose aggregate
percentages constitute at least fifty-one percent (51%) of the Loan Percentage,
provided that for purposes of this definition "Lender" shall not include any
Delinquent Lender until such Delinquent Lender is no longer deemed a Delinquent
Lender under ss.15.6.3.
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Maximum Drawing Amount. The maximum aggregate amount from time to time
that the beneficiaries may draw under outstanding Letters of Credit, as such
aggregate amount may be reduced from time to time pursuant to terms of the
Letters of Credit.
Maximum Rate. With respect to each Lender, the maximum lawful
nonusurious rate of interest (if any) which under Applicable Law such Lender may
charge the Borrowers on the Loans and other Obligations from time to time.
Multiemployer Plan. Any multiemployer plan within the meaning of
ss.3(37) of ERISA maintained or contributed to by any Borrower or any ERISA
Affiliate.
Notes. The Revolving Credit Notes, Swing Line Note and Term Notes.
Obligations. All indebtedness, obligations and liabilities of the
Borrowers to any of the Lenders or the Administrative Agent, individually or
collectively, existing on the date of this Credit Agreement or arising
thereafter, direct or indirect, joint or several, absolute or contingent,
matured or unmatured, liquidated or unliquidated, secured or unsecured, arising
by contract, operation of law or otherwise, arising or incurred under this
Credit Agreement or any of the other Loan Documents, or under any Swap Contract
between the Borrowers and any Lender, or in respect of any of the Loans made or
Reimbursement Obligations incurred or any of the Letter of Credit Applications,
the Letters of Credit, the Notes or any other instrument at any time evidencing
any thereof.
Omnibus Security Amendment. The Omnibus Amendment to Security Documents
dated as of June 29, 1998, among the Borrowers and the Administrative Agent.
Omnibus Security Amendment No. 2. The Omnibus Amendment No. 2 to
Security Documents dated as of September 24, 1998, among the Borrowers and the
Administrative Agent.
Omnibus Security Amendment No. 3. The Omnibus Amendment No. 3 to
Security Documents dated as of the date hereof, among the Borrowers and the
Administrative Agent.
Omnibus Security Amendments. Collectively, the Omnibus Security
Amendment, the Omnibus Security Amendment No. 2 and the Omnibus Security
Amendment No. 3.
outstanding. With respect to the Loans, the aggregate unpaid principal
thereof as of any date of determination.
PBGC. The Pension Benefit Guaranty Corporation created by ss.4002 of
ERISA and any successor entity or entities having similar responsibilities.
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Perfection Certificates. The Perfection Certificates as defined in the
Security Agreement.
Permitted Liens. See ss.8.2.
Person. Any individual, corporation, partnership, trust, unincorporated
association, business, or other legal entity, and any government or any
governmental agency or political subdivision thereof.
Pricing Ratio. As of the end of any fiscal quarter of the Borrowers
commencing with the fiscal quarter ending December 31, 1998, the ratio of (a)
Funded Debt as at the end of such quarter to (b) EBITDA for the period of four
(4) consecutive fiscal quarters ending on such date.
Pricing Table:
<TABLE>
<CAPTION>
----------------------------------------------------------------------------------------------------------------
APPLICABLE APPLICABLE APPLICABLE APPLICABLE APPLICABLE
LEVEL PRICING RATIO EURODOLLAR BASE RATE L/C COMMITMENT EURODOLLAR
REVOLVER MARGIN MARGIN RATE TERM LOAN
MARGIN (PER (PER (PER ANNUM) MARGIN
(PER ANNUM) ANNUM) (PER
ANNUM) ANNUM)
----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
1 Less than 2.75:1 2.00% 0.00% 2.00% 0.375% 3.00%
----------------------------------------------------------------------------------------------------------------
2 Greater than or equal to 2.25% 0.00% 2.25% 0.375% 3.00%
2.75:1 but less than
3.25:1
----------------------------------------------------------------------------------------------------------------
3 Greater than or equal to 2.50% 0.25% 2.50% 0.375% 3.25%
3.25:1 but less than
4.25:1
----------------------------------------------------------------------------------------------------------------
4 Greater than or equal to 2.75% 0.50% 2.75% 0.500% 3.25%
4.25:1
----------------------------------------------------------------------------------------------------------------
</TABLE>
Any change in the applicable margin shall become effective on the first day
after receipt by the Lenders of financial statements delivered pursuant to
ss.7.4(a) or (b) which indicate a change in the Pricing Ratio or, with respect
to the Eurodollar Applicable Margin, on the first day of each Interest Period
which begins three (3) or more days after receipt of such financial statements.
If at any time such financial statements are not delivered within the time
periods specified in ss.7.4(a) or (b), the applicable margin shall be the
highest rate set forth in the respective column of the Pricing Table, subject to
adjustment prospectively upon actual receipt of such financial statements.
Notwithstanding the above, the initial pricing set forth in Level 3 of
the Pricing Table above shall be effective from the Closing Date until the
delivery to the Agent of a Compliance Certificate for the fiscal quarter ending
December 31, 1998.
Prior Credit Agreement. See Preamble.
RCRA. See definition of Release.
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<PAGE> 22
Real Property. All real property heretofore, now, or hereafter owned or
leased (as lessee or sublessee) by any Borrowers.
Register. See ss.18.3.
Reimbursement Obligation. The Borrowers' joint and several obligations
to reimburse the Administrative Agent and the Revolving Credit Lenders on
account of any drawing under any Letter of Credit as provided in ss.4.2.
Release. Shall have the meaning specified in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended, 42
U.S.C. ss.ss.9601 et seq. ("CERCLA") and the term "Disposal" (or "Disposed")
shall have the meaning specified in the Resource Conservation and Recovery Act
of 1976, 42 U.S.C. ss.ss.6901 et seq. ("RCRA") and regulations promulgated
thereunder; provided that in the event either CERCLA or RCRA is amended so as to
amend the meaning of any term defined thereby, such amended meaning shall apply
as of the effective date of such amendment and provided further, to the extent
that the laws of a state wherein the property lies establishes a meaning for
"Release" or "Disposal" which is broader than specified in either CERCLA or
RCRA, such broader meaning shall apply.
Required Revolving Credit Lenders. As of any date, the Revolving Credit
Lenders whose aggregate Commitments constitute at least fifty-one percent (51%)
of the Total Commitment, or if the Commitments have been terminated, at least
fifty-one percent (51%) of the sum of the Revolving Credit Loans outstanding
plus participating interests in the Maximum Drawing Amounts of Letters of Credit
outstanding plus Swing Line Loans outstanding plus unpaid Reimbursement
Obligations in respect of Letters of Credit outstanding.
Replacement Lender. See ss.5.11.
Replacement Notice. See ss.5.11.
Reserve Rate. The rate, expressed as a decimal, at which the Lenders
would be required to maintain reserves under Regulation D of the Board of
Governors of the Federal Reserve System (or any subsequent or similar regulation
relating to such reserve requirements) against "Eurocurrency Liabilities" (as
such term is defined in Regulation D), or against any other category of
liabilities which might be incurred by the Lenders to fund Eurodollar Loans, if
such liabilities were outstanding. The Reserve Rate shall be adjusted
automatically on and as of the effective date of any change in the Reserve Rate.
Revolving Credit Lenders. Each of the Lenders holding a Commitment as
set forth on Schedule 1 hereto and any other Person who
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<PAGE> 23
becomes an assignee of any rights and obligations of a Revolving Credit Lender
pursuant to ss.18.
Revolving Credit Loans. Revolving credit loans converted, made or to be
made by the Revolving Credit Lenders to the Borrowers pursuant to ss.2.
Revolving Credit Maturity Date. June 29, 2001, or such earlier date on
which the Obligations become due and owing.
Revolving Credit Notes. See ss.2.3.
SEC. The Securities and Exchange Commission or any successor thereto.
Section 20 Subsidiary. A Subsidiary of the bank holding company
controlling any Lender, which Subsidiary has been granted authority by the
Federal Reserve Board to underwrite and deal in certain Ineligible Securities.
Securities Act. The Securities Act of 1933, as amended.
Security Agreement. The Security Agreement, dated as of March 18, 1998,
among the Borrowers and the Administrative Agent, as supplemented, amended and
effective from time to time.
Security Documents. The Security Agreement, the Stock Pledge
Agreements, the Omnibus Security Amendments, the notices to banks of the
Administrative Agent's security interest for the benefit of the Lenders and the
Administrative Agent in the Borrowers' bank accounts and any other instruments
and documents, including, without limitation, Uniform Commercial Code financing
statements, required to be executed or delivered pursuant to any Security
Document or evidencing or perfecting the Administrative Agent's lien on the
assets of the Borrowers for the benefit of the Lenders.
Senior Funded Debt. At any time of determination, the result of Funded
Debt minus the aggregate principal amount of Subordinated Debt outstanding as of
such date.
Senior Subordinated Indenture. The Indenture, dated as of December 11,
1998, among the Parent, certain Subsidiaries of the Parent and The Bank of New
York, as trustee, in the form delivered to the Administrative Agent prior to the
Closing Date.
Senior Subordinated Notes. The 10 3/8% Senior Subordinated Notes due
2008 issued by the Parent in the aggregate principal amount of up to
$225,000,000 pursuant to the Senior Subordinated Indenture, in the form
delivered to the Administrative Agent prior to the Closing Date.
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<PAGE> 24
Settlement. The making or receiving of payments, in immediately
available funds, by the Revolving Credit Lenders to or from the Administrative
Agent in accordance with ss.2.8 hereof to the extent necessary to cause each
such Lender's actual share of the outstanding amount of the Revolving Credit
Loans to be equal to such Lender's Commitment Percentage of the outstanding
amount of such Revolving Credit Loans, in any case when, prior to such action,
the actual share is not so equal.
Settlement Amount. See ss.2.8(b).
Settlement Date. See ss.2.8(b).
Settling Lender. See ss.2.8(b).
Significant Subsidiary. Any Subsidiary that is a "significant
subsidiary" as defined in Rule 1-02(w) of the Regulation S-X (17 CFR 210), as
amended from time to time.
Stock Pledge Agreements. The several Stock Pledge Agreements between
the Parent and/or certain of its Subsidiaries and the Administrative Agent in
form and substance satisfactory to the Administrative Agent, as amended and in
effect from time to time, pursuant to which 100% of the capital stock of each
such Subsidiary of the Parent is pledged to the Administrative Agent for the
benefit of the Lenders.
Subordinated Debt. Collectively (1) Indebtedness with respect to the
Senior Subordinated Notes and (2) other unsecured Indebtedness of the Parent
that is expressly subordinated and made junior to the payment and performance in
full of the Obligations with all principal payments amortizing after the
Revolving Credit Maturity Date (except with respect to payments made in
accordance with Section 8.11), and evidenced as such by the Subordinated Debt
Documents.
Subordinated Debt Documents. Collectively, (1) the Senior Subordinated
Indenture, (2) the Unsecured Convertible Subordinated Promissory Notes issued by
the Parent to Bode-Finn Limited Partnership and Raymond E. Mason Foundation in
connection with the Parent's acquisition of The Bode-Finn Company, dated April
30, 1998 in the aggregate principal amount of $8,080,000 and $1,920,000
respectively (the "Bode-Finn Notes"), and (3) other written agreements
containing subordination provisions substantially similar to those attached
hereto as Exhibit G.
Subsidiary. Any corporation, association, trust, partnership, limited
liability company or other business entity of which the designated parent shall
at any time own directly, or indirectly through a Subsidiary or Subsidiaries, at
least a majority (by number of votes) of the outstanding capital stock or other
interest entitled to vote generally.
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<PAGE> 25
Swap Contracts. Any agreement (including any master agreement and any
agreement, whether or not in writing, relating to any single transaction) that
is an interest rate swap agreement, basis swap, forward rate agreement,
commodity swap, commodity option, equity or equity index swap or option, bond
option, interest rate option, forward foreign exchange agreement, rate cap,
collar or floor agreement, currency swap agreement, cross-currency rate swap
agreement, swaption, currency option or other similar agreement (including any
option to enter into any of the foregoing).
Swing Line Loans. Loans converted or made by BKB to the Borrowers
pursuant to ss.2.8.
Swing Line Note. See ss.2.8.
Synthetic Lease. Any lease treated as an operating lease under
generally accepted accounting principles and as a loan or financing for U.S.
income tax purposes.
Term Loan. The term loan made or to be made by the Term Loan Lenders to
the Borrowers on the Closing Date in the aggregate principal amount of
$180,000,000.
Term Loan Lenders. Each of the Lenders holding a portion of the Term
Loan as set forth on Schedule 1 hereto and any other Person who becomes an
assignee of any rights and obligations of a Term Loan Lender pursuant to ss.18.
Term Loan Maturity Date. September 24, 2004, or such earlier date on
which the Obligations become due and owing.
Term Loan Percentage. With respect to each Term Loan Lender, the
percentage set forth on Schedule 1 (subject to adjustment in accordance with
ss.18 hereof) as such Lender's percentage of the Term Loan.
Term Notes. See ss.3.2.
Term Note Record. A record with respect to a Term Note.
Total Commitment. See ss.2.1.
Uniform Customs. With respect to any Letter of Credit, the Uniform
Customs and Practices for Documentary Credits (1993 Revisions), International
Chamber of Commerce Publication No. 500 or any successor version thereto adopted
by the Administrative Agent in the ordinary course of its business as a letter
of credit issuer and in effect at the time of issuance of such Letter of Credit.
Year 2000 Compliance. The risk that computer applications used by the
Borrowers may be unable to recognize and properly perform date-
-18-
<PAGE> 26
sensitive functions involving certain dates prior to, and any date after,
December 31, 1999.
SS.1.2. RULES OF INTERPRETATIOn.
(a) A reference to any document or agreement shall include
such document or agreement as amended, modified or supplemented from time to
time in accordance with its terms and the terms of this Credit Agreement.
(b) The singular includes the plural and the plural
includes the singular.
(c) A reference to any law includes any amendment or
modification to such law.
(d) A reference to any Person includes its permitted
successors and permitted assigns.
(e) Accounting terms capitalized but not otherwise defined
herein have the meanings assigned to them by generally accepted accounting
principles applied on a consistent basis by the accounting entity to which they
refer.
(f) The words "include," "includes" and "including" are not
limiting.
(g) All terms not specifically defined herein or by
generally accepted accounting principles, which terms are defined in the Uniform
Commercial Code as in effect in the State of New York, have the meanings
assigned to them therein.
(h) Reference to a particular "ss." refers to that section
of this Credit Agreement unless otherwise indicated.
(i) The words "herein," "hereof," "hereunder" and words of
like import shall refer to this Credit Agreement as a whole and not to any
particular section or subdivision of this Credit Agreement.
(j) Unless otherwise expressly indicated, in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including," the words "to" and "until" each mean
"to but excluding," and the word "through" means "to and including."
(k) This Credit Agreement and the other Loan Documents may
use several different limitations, tests or measurements to regulate the same or
similar matters. All such limitations, tests and measurements are, however,
cumulative and are to be performed in accordance with the terms thereof.
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<PAGE> 27
(l) This Credit Agreement and the other Loan Documents are
the result of negotiation among, and have been reviewed by counsel to, among
others, the Administrative Agent and the Borrowers and are the product of
discussions and negotiations among all parties. Accordingly, this Credit
Agreement and the other Loan Documents are not intended to be considered against
the Administrative Agent or any of the Lenders merely on account of the
Administrative Agent's or any Lender's involvement in the preparation of such
documents.
SS.2. THE REVOLVING CREDIT FACILITY.
SS.2.1. COMMITMENT TO LEND. Subject to the terms and conditions set
forth in this Credit Agreement, each of the Revolving Credit Lenders severally
agrees (i) on the Closing Date, to convert the revolving credit loans
outstanding and owed under the Prior Credit Agreement into Revolving Credit
Loans under this Credit Agreement and (ii) to lend to the Borrowers and the
Borrowers may borrow, repay, and reborrow from time to time from the Closing
Date to the Revolving Credit Maturity Date, upon notice by the Borrowers to the
Administrative Agent given in accordance with ss.2.6, its Commitment Percentage
of the Revolving Credit Loans as are requested by the Parent on behalf of the
Borrowers, provided that the outstanding amount of Revolving Credit Loans (after
giving effect to all amounts requested), Swing Line Loans, unpaid Reimbursement
Obligations, and the Maximum Drawing Amount shall not exceed a maximum aggregate
amount outstanding of $320,000,000 at any time, as such amount may be reduced or
increased, as the case may be, pursuant to ss.2.2 hereof (the "Total
Commitment"). The Revolving Credit Loans shall be made pro rata in accordance
with each Revolving Credit Lender's Commitment Percentage. Each request for a
Revolving Credit Loan hereunder shall constitute a representation and warranty
by the Borrowers that the conditions set forth in ss.10 and ss.11, as the case
may be, have been satisfied on the date of such request.
SS.2.2. REDUCTION OF TOTAL COMMITMENT. (a) The Borrowers shall have
the right at any time and from time to time upon five (5) Business Days' prior
written notice to the Administrative Agent to reduce by $1,000,000 or an
integral multiple of $500,000 in excess thereof, or terminate entirely, the
Total Commitment, whereupon the Commitments of the Revolving Credit Lenders
shall be reduced pro rata in accordance with their respective Commitment
Percentages of the amount specified in such notice or, as the case may be,
terminated. The Administrative Agent will notify the Revolving Credit Lenders
promptly after receiving any notice of the Borrowers delivered pursuant to this
ss.2.2.1. BKB will, on the Closing Date, convert all outstanding Swing Line
Loans under the Prior Credit Agreement into Swing Line Loans hereunder.
(b) No reduction or termination of the Commitments once
made may be revoked; the portion of the Commitments reduced or
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<PAGE> 28
terminated may not be reinstated; and amounts in respect of such reduced or
terminated portion may not be reborrowed.
SS.2.3. THE REVOLVING CREDIT NOTES. The Revolving Credit Loans shall
be evidenced by separate promissory notes of the Borrowers in substantially the
form of Exhibit A-1 hereto (each a "Revolving Credit Note") dated as of the
Closing Date (or such other date on which a Person may become a party hereto in
accordance with ss.18 hereof) and completed with appropriate insertions. One
Revolving Credit Note shall be payable to the order of each Revolving Credit
Lender in a principal amount equal to such Lender's Commitment or, if less, the
outstanding amount of all Revolving Credit Loans made by such Lender, plus
interest accrued thereon, as set forth below. The Borrowers irrevocably
authorize each Revolving Credit Lender to make or cause to be made, in
connection with a Drawdown Date of any Revolving Credit Loan or at the time of
receipt of any payment of principal on such Lender's Revolving Credit Note, an
appropriate notation on such Lender's records reflecting the making of such
Revolving Credit Loan or the receipt of such payment (as the case may be). The
outstanding amount of the Revolving Credit Loans set forth on such Lender's
record shall be prima facie evidence of the principal amount thereof owing and
unpaid to such Lender, but the failure to record, or any error in so recording,
any such amount shall not limit or otherwise affect the obligation of the
Borrowers hereunder or under any Revolving Credit Note to make payments of
principal of or interest on any Revolving Credit Note when due.
SS.2.4. INTEREST ON REVOLVING CREDIT LOANS AND SWING LINE LOANS.
Except as otherwise provided in ss.5.6, the outstanding principal amount of the
Revolving Credit Loans shall bear interest at the rate per annum equal to (a)
the Base Rate plus the Applicable Base Rate Margin on Base Rate Loans or (b) the
Eurodollar Rate plus the Applicable Revolver Eurodollar Margin on Eurodollar
Loans and the outstanding principal amount of the Swing Line Loans shall bear
interest at the rate per annum equal to the Base Rate plus the Applicable Base
Rate Margin. The Borrowers jointly and severally promise to pay interest on each
Revolving Credit Loan and Swing Line Loan (i) quarterly in arrears on the first
Business Day of each calendar quarter for the immediately preceding calendar
quarter, commencing April 1, 1999, on Base Rate Loans, (ii) the last day of the
applicable Interest Period, and if such Interest Period is longer than three (3)
months, also on the day which is three (3) months after the commencement of such
Interest Period, on Eurodollar Loans, and (iii) on the Revolving Credit Maturity
Date for all Revolving Credit Loans and Swing Line Loans.
SS.2.5. ELECTION OF EURODOLLAR RATE; NOTICE OF ELECTION; INTEREST
PERIODS; MINIMUM AMOUNTS.
(a) At the Borrowers' option, so long as no Default or
Event of Default has occurred and is then continuing, the Borrowers may (i)
elect
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<PAGE> 29
to convert any Revolving Credit Loan (other than a Swing Line Loan) which is a
Base Rate Loan or a portion thereof to a Eurodollar Loan, (ii) at the time of
any Loan and Letter of Credit Request, specify that a requested Revolving Credit
Loan shall be a Eurodollar Loan, or (iii) upon expiration of the applicable
Interest Period, elect to maintain an existing Eurodollar Loan as such, provided
that the Borrowers give notice to the Administrative Agent pursuant to ss.2.5(b)
hereof. Upon determining any Eurodollar Rate, the Administrative Agent shall
forthwith provide notice thereof to the Borrowers and the Revolving Credit
Lenders, and each such notice to the Borrowers and such Lenders shall be
considered prima facie correct and binding, absent manifest error.
(b) Three (3) Eurodollar Business Days prior to the making
of any Eurodollar Loan or the conversion of any Base Rate Loan to a Eurodollar
Loan, or, in the case of an outstanding Eurodollar Loan, the expiration date of
the applicable Interest Period, the Borrowers shall give telephonic notice
(confirmed by telecopy on the same Eurodollar Business Day) to the
Administrative Agent not later than 1:00 p.m. (Boston time) of their election
pursuant to ss.2.5(a). Each such notice delivered to the Administrative Agent
shall specify the aggregate principal amount of the Revolving Credit Loans to be
borrowed or maintained as or converted to Eurodollar Loans and the requested
duration of the Interest Period that will be applicable to such Eurodollar Loan,
and shall be irrevocable and binding upon the Borrowers. If the Borrowers shall
fail to give the Administrative Agent notice of their election hereunder
together with all of the other information required by this ss.2.5(b) with
respect to any Revolving Credit Loan, such Revolving Credit Loan shall be deemed
a Base Rate Loan. In the event that the Borrowers fail to provide any such
notice with respect to the continuation of any Eurodollar Loan as such, then
such Eurodollar Loan shall be automatically converted to a Eurodollar Loan with
an Interest Period of one (1) month at the end of the then expiring Interest
Period relating thereto.
(c) Notwithstanding anything herein to the contrary, the
Borrowers may not specify an Interest Period that would extend beyond the
Revolving Credit Maturity Date.
(d) All Revolving Credit Loans shall be in a minimum amount
of $500,000 or an integral multiple of $100,000 in excess thereof. In no event
shall the Borrowers have more than ten (10) different maturities of Eurodollar
Loans (whether Revolving Credit Loans or a portion of the Term Loan) outstanding
at any time.
SS.2.6. REQUESTS FOR REVOLVING CREDIT LOANS AND SWING LINE LOANS.
The Borrowers shall give to the Administrative Agent written notice in the form
of Exhibit C hereto (or telephonic notice confirmed by telecopy on the same
Business Day in the form of Exhibit C hereto) of each Revolving Credit Loan and
Swing Line Loan requested hereunder (a "Loan and Letter of Credit Request") not
later than (a) 11:00 a.m. (Boston time) on the day of
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<PAGE> 30
the proposed Drawdown Date of any Base Rate Loan, or (b) 1:00 p.m. (Boston time)
three (3) Eurodollar Business Days prior to the proposed Drawdown Date of any
Eurodollar Loan, or (c) 1:00 p.m. (Boston time) on the proposed Drawdown Date of
funding of any Swing Line Loan. Each such notice shall be given by the Borrowers
and shall specify the principal amount of the Revolving Credit Loan and Swing
Line Loan requested, if a Revolving Credit Loan, whether such Revolving Credit
Loan is a Base Rate Loan or a Eurodollar Loan, the Drawdown Date of such Loan
and shall include a current Loan and Letter of Credit Request reflecting the
Maximum Drawing Amount and the outstanding Loans. Each Loan and Letter of Credit
Request shall be irrevocable and binding on the Borrowers and shall obligate the
Borrowers to accept the Loan requested from the applicable Revolving Credit
Lenders on the proposed Drawdown Date. Each of the representations and
warranties made by or on behalf of the Borrowers to the Lenders or the
Administrative Agent in this Credit Agreement or any other Loan Document shall
be true and correct in all material respects when made and shall, for all
purposes of this Credit Agreement, be deemed to be repeated on and as of the
date of the submission of any Loan and Letter of Credit Request and on and as of
the Drawdown Date of such Loan, or the date of issuance of such Letter of Credit
(except to the extent of changes resulting from transactions contemplated or
permitted by this Credit Agreement and the other Loan Documents and changes
occurring in the ordinary course of business that singly or in the aggregate are
not materially adverse, or to the extent that such representations and
warranties expressly relate solely to an earlier date). The Administrative Agent
shall promptly notify each Revolving Credit Lender of each Loan and Letter of
Credit Request (other than requests for Swing Line Loans only) received by the
Administrative Agent and provide, upon request by any Lender, a monthly summary
with respect to Letters of Credit issued hereunder.
SS.2.7. FUNDS FOR REVOLVING CREDIT LOANS
(a) Not later than 1:00 p.m. (Boston time) on the proposed Drawdown
Date of any Revolving Credit Loan, each of the Revolving Credit Lenders will
make available to the Administrative Agent, at the Administrative Agent's Head
Office, in immediately available funds, the amount of such Lender's Commitment
Percentage of the amount of the requested Revolving Credit Loans. Upon receipt
from each Revolving Credit Lender of such amount, and upon receipt of the
documents required by ss.ss.10 and 11 and the satisfaction of the other
conditions set forth therein, to the extent applicable, the Administrative Agent
will make available to the Borrowers in immediately available funds the
aggregate amount of such Revolving Credit Loans made available to the
Administrative Agent by the Revolving Credit Lenders. The failure or refusal of
any Revolving Credit Lender to make available to the Administrative Agent at the
aforesaid time and place on any Drawdown Date the amount of its Commitment
Percentage of the requested Revolving Credit Loans shall not relieve any other
Revolving Credit Lender from its several obligation hereunder to make
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<PAGE> 31
available to the Administrative Agent the amount of such other Lender's
Commitment Percentage of any requested Revolving Credit Loans.
(b) The Administrative Agent may, unless notified to the contrary by
any Revolving Credit Lender prior to a Drawdown Date, assume that such Lender
has made available to the Administrative Agent on such Drawdown Date the amount
of such Lender's Commitment Percentage of the Revolving Credit Loans to be made
on such Drawdown Date, and the Administrative Agent may (but shall not be
required to), in reliance upon such assumption, make available to the Borrowers
a corresponding amount. If any Revolving Credit Lender makes available to the
Administrative Agent such amount on a date after such Drawdown Date, such Lender
shall pay to the Administrative Agent on demand an amount equal to the product
of (i) the average computed for the period referred to in clause (iii) below, of
the weighted average interest rate paid by the Administrative Agent for federal
funds acquired by the Administrative Agent during each day included in such
period, times (ii) the amount of such Lender's Commitment Percentage of such
Revolving Credit Loans, times (iii) a fraction, the numerator of which is the
number of days that elapse from and including such Drawdown Date to the date on
which the amount of such Lender's Commitment Percentage of such Revolving Credit
Loans shall become immediately available to the Administrative Agent, and the
denominator of which is 365. A statement of the Administrative Agent submitted
to such Lender with respect to any amounts owing under this paragraph shall be
prima facie evidence, absent manifest error, of the amount due and owing to the
Administrative Agent by such Lender. If the amount of such Lender's Commitment
Percentage of such Revolving Credit Loans is not made available to the
Administrative Agent by such Lender within three (3) Business Days following
such Drawdown Date, the Administrative Agent shall be entitled to recover such
amount from the Borrowers on demand, with interest thereon at the rate per annum
applicable to the Revolving Credit Loans made on such Drawdown Date.
SS.2.8. SWING LINE LOANS; SETTLEMENTS.
(a) Solely for ease of administration of the Revolving Credit Loans,
BKB may, upon receipt of a Loan and Letter of Credit Request no later than 1:00
p.m. (Boston time) on the proposed date of funding, but shall not be required
to, fund Base Rate Loans made in accordance with the provisions of this Credit
Agreement ("Swing Line Loans") for periods not to exceed seven (7) days in any
one case, bearing interest as set forth in ss.2.4. The Swing Line Loans shall be
evidenced by a promissory note of the Borrowers in substantially the form of
Exhibit A-2 hereto (the "Swing Line Note") dated as of the Closing Date, and
shall each be in a minimum amount of $100,000 or greater, provided that the
outstanding amount of Swing Line Loans advanced by BKB hereunder shall not
exceed $15,000,000 at any time. Each Revolving Credit Lender shall remain
severally and unconditionally liable to fund its pro rata share (based upon each
Revolving Credit Lender's Commitment Percentage) of such Swing Line Loans on
each Settlement Date
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<PAGE> 32
and, in the event BKB chooses not to fund all Base Rate Loans requested on any
date, to fund its Commitment Percentage of the Base Rate Loans requested,
subject to satisfaction of the provisions hereof relating to the making of Base
Rate Loans. Prior to each Settlement, all payments or repayments of the
principal of, and interest on, Swing Line Loans shall be credited to the account
of BKB. BKB will, on the Closing Date, convert all outstanding Swing Line Loans
under the Prior Credit Agreement into Swing Line Loans hereunder.
(b) The Revolving Credit Lenders shall effect Settlements on (i) the
Business Day immediately following any day which BKB gives written notice to the
Administrative Agent to effect a Settlement, (ii) the Business Day immediately
following the Administrative Agent's becoming aware of the existence of any
Default or Event of Default, (iii) the Revolving Credit Maturity Date, (iii) any
date on which the Borrowers wish to convert a Swing Line Loan into a Eurodollar
Rate Loan, and (iv) in any event, the seventh day on which any Swing Line Loan
remains outstanding (each such date, a "Settlement Date"). One (1) Business Day
prior to each such Settlement Date, the Administrative Agent shall give
telephonic notice to the Revolving Credit Lenders of (A) the respective
outstanding amount of Revolving Credit Loans made by each Revolving Credit
Lender as at the close of business on the prior day, (B) the amount that any
Revolving Credit Lender, as applicable (a "Settling Lender"), shall pay to
effect a Settlement (a "Settlement Amount"). A statement of the Administrative
Agent submitted to the Revolving Credit Lenders with respect to any amounts
owing hereunder shall be prima facie evidence of the amount due and owing. Each
Settling Lender shall, not later than 1:00 p.m. (Boston time) on each Settlement
Date, effect a wire transfer of immediately available funds to the
Administrative Agent at the Administrative Agent's Head Office in the amount of
such Lender's Settlement Amount. All funds advanced by any Revolving Credit
Lender as a Settling Lender pursuant to this ss.2.8 shall for all purposes be
treated as a Base Rate Loan to the Borrowers.
(c) The Administrative Agent may (unless notified to the contrary by
any Settling Lender by 12:00 noon (Boston time) one (1) Business Day prior to
the Settlement Date) assume that each Settling Lender has made available (or
will make available by the time specified in ss.2.8(b)) to the Administrative
Agent its Settlement Amount, and the Administrative Agent may (but shall not be
required to), in reliance upon such assumption, effect Settlements. If the
Settlement Amount of such Settling Lender is made available to the
Administrative Agent on a date after such Settlement Date, such Settling Lender
shall pay the Administrative Agent on demand an amount equal to the product of
(i) the average, computed for the period referred to in clause (iii) below, of
the weighted average annual interest rate paid by the Administrative Agent for
federal funds acquired by the Administrative Agent during each day included in
such period times (ii) such Settlement Amount times (iii) a fraction, the
numerator of which is the number of days that elapse from and including such
Settlement Date to but not including the date on which such Settlement Amount
shall become
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immediately available to the Administrative Agent, and the denominator of which
is 365. Upon payment of such amount such Settling Lender shall be deemed to have
delivered its Settlement Amount on the Settlement Date and shall become entitled
to interest payable by the Borrowers with respect to such Settling Lender's
Settlement Amount as if such share were delivered on the Settlement Date. If
such Settlement Amount is not in fact made available to the Administrative Agent
by such Settling Lender within three (3) Business Days of such Settlement Date,
the Administrative Agent shall be entitled to recover such amount from the
Borrowers, with interest thereon at the Base Rate.
(d) After any Settlement Date, any payment by the Borrowers of Swing
Line Loans hereunder shall be allocated pro rata among the Revolving Credit
Lenders, in accordance with such Lender's Commitment Percentage.
SS.2.9. MATURITY OF THE REVOLVING CREDIT LOANS. The Revolving Credit
Loans and Swing Line Loans shall be due and payable on the Revolving Credit
Maturity Date. The Borrowers jointly and severally promise to pay on the
Revolving Credit Maturity Date all Revolving Credit Loans and Swing Line Loans
outstanding on such date, together with any and all accrued and unpaid interest
thereon.
SS.2.10. MANDATORY REPAYMENTS OF THE REVOLVING CREDIT LOANS AND SWING
LINE LOANS ANd REIMBURSEMENT OBLIGATIONS.
If at any time the sum of the outstanding amount of the Revolving
Credit Loans plus the Swing Line Loans plus the Maximum Drawing Amount plus
unpaid Reimbursement Obligations exceeds the Total Commitment, whether by
reduction of the Total Commitment or otherwise, then the Borrowers shall
immediately pay the amount of such excess to the Administrative Agent for
application first, to any Swing Line Loans, second, to unpaid Reimbursement
Obligations, third, to the Revolving Credit Loans, or if no Revolving Credit
Loans shall be outstanding, to be held by the Administrative Agent as collateral
security for the Reimbursement Obligations, provided, however, that if the
amount of cash collateral held by the Administrative Agent pursuant to this
ss.2.10 exceeds the amount of the Reimbursement Obligations, the Administrative
Agent shall return such excess to the Borrowers. Each payment of any unpaid
Reimbursement Obligations or prepayment of Revolving Credit Loans shall be
allocated among the Revolving Credit Lenders, in proportion, as nearly as
practicable, to each Reimbursement Obligation or (as the case may be) the
respective unpaid principal amount of each Revolving Credit Lender's Revolving
Credit Note, with adjustments to the extent practicable to equalize any prior
payments or repayments not exactly in proportion.
SS.2.11. OPTIONAL PREPAYMENTS OF REVOLVING CREDIT LOANS AND SWING LINE
LOANS. The Borrowers shall have the right, at their election, to prepay the
outstanding amount of the Revolving Credit Loans and Swing Line Loans, as a
whole or in part, at any time without penalty or premium
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(other than the obligation to reimburse the Revolving Credit Lenders and the
Administrative Agent pursuant to ss.5.8 hereof). The Borrowers shall give
written notice to the Administrative Agent (or telephonic notice confirmed in
writing) no later than (a) 1:00 p.m. (Boston time) on the Business Day of the
proposed prepayment of any Base Rate Loan, (b) 1:00 p.m. (Boston time) three (3)
Eurodollar Business Days prior to the proposed prepayment of any Eurodollar Loan
or (c) 1:00 p.m. (Boston time) on the Business Day of the proposed prepayment of
any Swing Line Loan, in each case specifying the proposed date of prepayment of
the Revolving Credit Loans or Swing Line Loans and the principal amount to be
paid. Each such partial repayment of (i) the Revolving Credit Loans shall be in
the amount of $1,000,000 or an integral multiple of $500,000 in excess thereof
and (ii) the Swing Line Loans shall be in the amount of $100,000 or a greater
integral multiple of $10,000 in excess thereof, and shall be accompanied by the
payment of accrued interest on the principal prepaid to the date of prepayment
and shall be applied, in the absence of instruction by the Borrowers, first to
the principal of Base Rate Loans and then to the principal of Eurodollar Loans.
Each partial prepayment of Revolving Credit Loans shall be allocated among the
Revolving Credit Lenders, in proportion, as nearly as practicable, to the
respective unpaid principal amount of each Revolving Credit Lender's Revolving
Credit Loans, with adjustments to the extent practicable to equalize any prior
repayments not exactly in proportion.
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3. THE TERM LOAN.
3.1. COMMITMENT TO LEND. Subject to the terms and conditions set forth
in this Credit Agreement, each Term Loan Lender agrees to lend to the Borrowers
on the Closing Date the amount of its Term Loan Percentage of the principal
amount of $180,000,000.
3.2. THE TERM NOTES. The Term Loan shall be evidenced by separate
promissory notes of the Borrowers in substantially the form of Exhibit B hereto
(each a "Term Note"), dated the Closing Date (or such other date on which a Term
Loan Lender may become a party hereto in accordance with ss.18 hereof) and
completed with appropriate insertions. One Term Note shall be payable to the
order of each Term Loan Lender in a principal amount equal to such Lender's Term
Loan Percentage of the Term Loan and representing the obligation of the
Borrowers to pay to such Lender such principal amount or, if less, the
outstanding amount of such Lender's Term Loan Percentage of the Term Loan, plus
interest accrued thereon, as set forth below. The Borrowers irrevocably
authorize each Term Loan Lender to make or cause to be made a notation on such
Lender's Term Note Record reflecting the original principal amount of such
Lender's Term Loan Percentage of the Term Loan and, at or about the time of such
Lender's receipt of any principal payment on such Lender's Term Note, an
appropriate notation on such Lender's Term Note Record reflecting such payment.
The aggregate unpaid amount set forth on such Lender's Term Note Record shall be
prima facie evidence of the principal amount thereof owing and unpaid to such
Lender, but the failure to record, or any error in so recording, any such amount
on such Lender's Term Note Record shall not affect the obligations of the
Borrowers hereunder or under any Term Note to make payments of principal of and
interest on any Term Note when due.
3.3. SCHEDULE OF INSTALLMENT PAYMENTS OF PRINCIPAL OF TERM LOAN. The
Borrowers jointly and severally promise to pay to the Administrative Agent for
the account of the Term Loan Lenders, in accordance with their respective Term
Loan Percentages, the principal amount of the Term Loan in five consecutive
payments equal to $1,800,000 each, such installments to be due and payable on
each anniversary of the Term Loan, commencing on the first anniversary of such
Term Loan, with a final payment on the Term Loan Maturity Date in an amount
equal to the unpaid balance of the Term Loan.
3.4. MANDATORY PREPAYMENTS. If at any time any of the Borrowers are
required to make any prepayments of the Senior Subordinated Notes as a result of
any sale or other disposition of assets otherwise permitted hereunder, the
Borrowers shall, one Business Day prior to making such prepayment, prepay the
Term Loan in an amount at least equal to such prepayment. Such prepayment of the
Term Loan shall be allocated among
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the Term Loan Lenders in proportion in accordance with such Lenders' Term Loan
Percentages. Any prepayment of principal of the Term Loan shall include all
interest accrued to the date of prepayment and shall be applied against the
scheduled installments of principal due on the Term Loan in the inverse order of
maturity. No amount repaid with respect to the Term Loan may be reborrowed.
3.5. OPTIONAL PREPAYMENT OF TERM LOAN. The Borrowers shall have the
right at any time to prepay the Term Notes on or before the Term Loan Maturity
Date, as a whole, or in part, upon not less than five (5) Business Days prior
written notice to the Administrative Agent, without premium or penalty, provided
that (i) each partial prepayment shall be in the principal amount of $1,000,000
or an integral multiple of $500,000 thereof, (ii) no portion of the Term Loan
bearing interest at the Eurodollar Rate may be prepaid pursuant to this ss.3.5
except on the last day of the Interest Period relating thereto, and (iii) each
partial prepayment shall be allocated among the Term Loan Lenders in accordance
with such Lenders' Term Loan Percentages. Any prepayment of principal of the
Term Loan shall include all interest accrued to the date of prepayment and shall
be applied against the scheduled installments of principal due on the Term Loan
in the inverse order of maturity. No amount repaid with respect to the Term Loan
may be reborrowed.
3.6. INTEREST ON TERM LOAN.
3.6.1. INTEREST RATES. Except as otherwise provided in ss.5.6, the
outstanding principal amount of the Term Loan shall bear interest at the rate
per annum equal to the Eurodollar Rate plus the Applicable Term Loan Eurodollar
Margin on Eurodollar Loans. The Borrowers jointly and severally promise to pay
interest on the Term Loan on the last day of the applicable Interest Period, and
if such Interest Period is longer than three (3) months, also on the day which
is three (3) months after the commencement of such Interest Period, on
Eurodollar Loans, and (ii) in any event, on the Term Loan Maturity Date,
provided, however, that the Borrowers shall not request any Eurodollar Rate Loan
having an Interest Period longer than one (1) month until the Term Loan is fully
syndicated (as determined by the Arranger).
3.6.2. NOTIFICATION BY BORROWERS. The Borrowers shall notify the
Administrative Agent, such notice to be irrevocable, at least three (3)
Eurodollar Business Days prior to the Drawdown Date of the Term Loan (or any
portion thereof). After the Term Loan has been made, the provisions of ss.2.5
shall apply mutatis mutandis with respect to all or any portion of the Term Loan
so that the Borrowers may have the same Eurodollar interest rate options with
respect to all or any portion of the Term Loan as they would be entitled to with
respect to the Revolving Credit Loans, provided, however, the Borrowers will
have no more than ten (10) different maturities of Eurodollar Loans (whether
Revolving Credit Loans or a portion of the Term Loan) outstanding at any time.
In the event that the Borrowers fail to give the Administrative Agent notice
with respect to the continuation of any
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Eurodollar Loan hereunder within three (3) days prior to the expiration of the
Interest Period relating thereto, then such Eurodollar Loan shall be converted
to a Eurodollar Loan with an interest period of one (1) month at the end of the
then expiring Interest Period relating thereto.
3.6.3. AMOUNTS, ETC. Any portion of the Term Loan bearing interest at
the Eurodollar Rate relating to any Interest Period shall be in the amount of
$1,000,000 or an integral thereof. No Interest Period relating to the Term Loan
or any portion thereof bearing interest at the Eurodollar Rate shall extend
beyond the date on which any regularly scheduled installment payment of the
principal of the Term Loan is to be made unless a portion of the Term Loan at
least equal to such installment payment has an Interest Period ending on such
date.
SS.4. LETTERS OF CREDIT.
SS.4.1. LETTER OF CREDIT COMMITMENTS.
(a) Subject to the terms and conditions hereof and the execution and
receipt of a Loan and Letter of Credit Request reflecting the Maximum Drawing
Amount of all Letters of Credit (including the requested Letter of Credit) and
the outstanding Revolving Credit Loans and Swing Line Loans and a Letter of
Credit Application, the Administrative Agent, on behalf of the Revolving Credit
Lenders with respect to each Revolving Credit Lender's Commitment Percentage and
in reliance upon the agreement of the Revolving Credit Lenders set forth in
ss.4.1(b) and upon the representations and warranties of the Borrowers contained
herein, agrees to issue, extend, and renew for the account of the Borrowers one
or more standby letters of credit, in such form as may be requested from time to
time by the Borrowers and agreed to by the Administrative Agent; provided,
however, that, after giving effect to such request, the Maximum Drawing Amount
plus all unpaid Reimbursement Obligations shall not exceed the lesser of (i)
$25,000,000 or (ii) the Total Commitment minus the aggregate outstanding amount
of the Revolving Credit Loans and Swing Loan. No Letter of Credit shall have an
expiration date later than the earlier of (i) one (1) year after the date of
issuance of the Letter of Credit (which may incorporate automatic renewals for
periods of up to one (1) year, provided that no later than thirty (30) days
prior to the date of any automatic renewal the Administrative Agent may
terminate such Letter of Credit), or (ii) fourteen (14) days prior to the
Revolving Credit Maturity Date. Each Letter of Credit so issued, extended or
renewed shall (i) provide for the payment of sight drafts for honor thereunder
when presented in accordance with the terms thereof and when accompanied by the
documents described therein and (ii) be subject to the Uniform Customs or, in
the case of a standby Letter of Credit, either the Uniform Customs or the
International Standby Practices..
(b) Each Revolving Credit Lender severally agrees that it shall be
absolutely liable, without regard to the occurrence of any Default or Event
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of Default or any other condition precedent whatsoever, to the extent of such
Lender's Commitment Percentage thereof, to reimburse the Administrative Agent on
demand for the amount of each draft or other form of demand for payment paid by
the Administrative Agent under each Letter of Credit issued, extended or renewed
in accordance with the terms hereof to the extent that such amount is not
reimbursed by the Borrowers pursuant to ss.4.2 (such agreement for a Revolving
Credit Lender being called herein the "Letter of Credit Participation" of such
Lender).
(c) Each such payment made by a Revolving Credit Lender shall be
treated as the purchase by such Lender of a participating interest in the
Borrowers' Reimbursement Obligation under ss.4.2 in an amount equal to such
payment. Each Revolving Credit Lender shall share in accordance with its
participating interest in any interest which accrues pursuant to ss.4.2.
(d) All Letters of Credit outstanding under the Prior Credit
Agreement shall constitute Letters of Credit hereunder, as listed on Schedule
4.1(d) hereto.
SS.4.2. REIMBURSEMENT OBLIGATION OF THE BORROWERS. In order to induce
the Administrative Agent to issue, extend and renew each Letter of Credit and
the Revolving Credit Lenders to participate therein, the Borrowers hereby agree
to reimburse or pay to the Administrative Agent with respect to each Letter of
Credit issued, extended or renewed by the Administrative Agent hereunder as
follows:
(a) on each date that any draft or other form of demand for payment
presented under any Letter of Credit is honored by the Administrative Agent or
the Administrative Agent otherwise makes payment with respect thereto, (i) the
amount paid by the Administrative Agent under or with respect to such Letter of
Credit, and (ii) the amount of any taxes, fees, charges or other costs and
expenses whatsoever incurred by the Administrative Agent or any Revolving Credit
Lender in connection with any payment made by the Administrative Agent or any
Revolving Credit Lender under, or with respect to, such Letter of Credit;
provided however, if the Borrowers do not reimburse the Administrative Agent on
the Drawdown Date, such amount shall, provided that no Event of Default under
ss.ss.13(g) or 13(h) has occurred, become automatically a Revolving Credit Loan
which is a Base Rate Loan advanced hereunder in an amount equal to such sum; and
(b) upon the Revolving Credit Maturity Date or the termination of the
Total Commitment, or the acceleration of the Reimbursement Obligations in
accordance with ss.13, an amount equal to the Maximum Drawing Amount, which
amount shall be held by the Administrative Agent for the benefit of the
Revolving Credit Lenders and the Administrative Agent as cash collateral for all
Reimbursement Obligations.
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Each such payment shall be made to the Administrative Agent at the
Administrative Agent's Head Office in immediately available funds. Interest on
any and all amounts remaining unpaid by the Borrowers under this ss.4.2 at any
time from the date such amounts become due and payable (whether as stated in
this ss.4.2, by acceleration or otherwise) until payment in full (whether before
or after judgment) shall be payable to the Administrative Agent on demand at the
rate specified in ss.5.6 for overdue principal on the Loans.
SS.4.3. LETTER OF CREDIT PAYMENTS. If any draft shall be presented or
other demand for payment shall be made under any Letter of Credit, the
Administrative Agent shall notify the Borrowers of the date and amount of the
draft presented or demand for payment and of the date and time when it expects
to pay such draft or honor such demand for payment. On the date that such draft
is paid or other payment is made by the Administrative Agent, the Administrative
Agent shall promptly notify the Revolving Credit Lenders of the amount of any
unpaid Reimbursement Obligation. No later than 3:00 p.m. (Boston time) on the
Business Day next following the receipt of such notice, each Revolving Credit
Lender shall make available to the Administrative Agent, at the Administrative
Agent's Head Office, in immediately available funds, such Lender's Commitment
Percentage of such unpaid Reimbursement Obligation, together with an amount
equal to the product of (a) the weighted average, computed for the period
referred to in clause (c) below, of the interest rate paid by the Administrative
Agent for federal funds acquired by the Administrative Agent during each day
included in such period, times (b) the amount equal to such Lender's Commitment
Percentage of such unpaid Reimbursement Obligation, times (c) a fraction, the
numerator of which is the number of days that have elapsed from and including
the date the Administrative Agent paid the draft presented for honor or
otherwise made payment until the date on which such Lender's Commitment
Percentage of such unpaid Reimbursement Obligation shall become immediately
available to the Administrative Agent, and the denominator of which is 365. The
responsibility of the Administrative Agent to the Borrowers and the Revolving
Credit Lenders shall be only to determine that the documents (including any
draft or other form of demand for payment) delivered under each Letter of Credit
in connection with such presentment shall be in conformity in all material
respects with such Letter of Credit in accordance with the Uniform Customs.
SS.4.4. OBLIGATIONS ABSOLUTE. The Borrowers' obligations under this
ss.4 shall be absolute and unconditional under any and all circumstances and
irrespective of the occurrence of any Default or Event of Default or any
condition precedent whatsoever or any setoff, counterclaim or defense to payment
which any Borrower may have or have had against the Administrative Agent, any
Revolving Credit Lender or any beneficiary of a Letter of Credit. Subject to the
obligations of the Revolving Credit Lenders pursuant to Article V of the Uniform
Commercial Code and the obligations of the Administrative Agent pursuant to the
last sentence of ss.4.3, the
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Borrowers further agree with the Administrative Agent and the Revolving Credit
Lenders that the Administrative Agent and the Revolving Credit Lenders shall not
be responsible for, and the Borrowers' Reimbursement Obligations under ss.4.2
shall not be affected by, among other things, the validity or genuineness of
documents or of any endorsements thereon, even if such documents should in fact
prove to be in any or all respects invalid, fraudulent or forged, or any dispute
between or among any Borrower, the beneficiary of any Letter of Credit or any
financing institution or other party to which any Letter of Credit may be
transferred or any claims or defenses whatsoever of any Borrower against the
beneficiary of any Letter of Credit or any such transferee. The Administrative
Agent and the Revolving Credit Lenders shall not be liable for any error,
omission, interruption or delay in transmission, dispatch or delivery of any
message or advice, however transmitted, in connection with any Letter of Credit.
The Borrowers agree that any action taken or omitted by the Administrative Agent
or any Revolving Credit Lender under or in connection with each Letter of Credit
and the related drafts or other forms of demand for payment and documents, if
done in good faith, shall be binding upon the Borrowers and shall not result in
any liability on the part of the Administrative Agent or any Revolving Credit
Lender to the Borrowers.
SS.4.5. RELIANCE BY ADMINISTRATIVE AGENT. To the extent not
inconsistent with ss.4.4, the Administrative Agent shall be entitled to rely,
and shall be fully protected in relying upon, any Letter of Credit, draft,
writing, resolution, notice, consent, certificate, affidavit, letter, cablegram,
telegram, telecopy, telex or teletype message, statement, order or other
document believed by it to be genuine and correct and to have been signed, sent
or made by the proper Person or Persons and upon advice and statements of legal
counsel, independent accountants or other experts selected by the Administrative
Agent. The Administrative Agent shall be fully justified in failing or refusing
to take any action under this Credit Agreement unless it shall first have
received such advice or concurrence of the Required Revolving Credit Lenders as
it reasonably deems appropriate or it shall first be indemnified to its
reasonable satisfaction by the Lenders against any and all liability and expense
which may be incurred by it by reason of taking or continuing to take any such
action. The Administrative Agent shall in all cases be fully protected in
acting, or in refraining from acting, under this Credit Agreement in accordance
with a request of the Required Revolving Credit Lenders, and such request and
any action taken or failure to act pursuant thereto shall be binding upon the
Revolving Credit Lenders and all future holders of the Revolving Credit Notes or
of a Letter of Credit Participation.
SS.5. CERTAIN GENERAL PROVISIONS.
SS.5.1. FEES.
(a) COMMITMENT FEE. The Borrowers jointly and severally
agree to pay to the Administrative Agent, for the respective account of each
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Revolving Credit Lender, a fee (the "Commitment Fee") equal to the Applicable
Commitment Rate multiplied by the average daily amount of the unused portion of
such Lender's Commitment during each calendar quarter or portion thereof from
the Closing Date to the Revolving Credit Maturity Date (or to the date of
termination in full of the Total Commitment, if earlier). The Commitment Fee
shall be payable quarterly in arrears on the first day of each calendar quarter
for the immediately preceding calendar quarter commencing on April 1, 1999, with
a final payment on the Revolving Credit Maturity Date or any earlier date on
which the Commitments shall terminate. Prior to any Settlement, the Swing Line
Loan shall not constitute usage of any Revolving Credit Lender's Commitment
other than BKB.
(b) LETTER OF CREDIT FEES. The Borrowers shall pay a fee
(the "Letter of Credit Fee") equal to the Applicable L/C Margin multiplied by
the Maximum Drawing Amount of each Letter of Credit. Such Letter of Credit Fee
shall be payable to the Administrative Agent for the account of the Revolving
Credit Lenders, to be shared pro rata by the Revolving Credit Lenders in
accordance with their respective Commitment Percentages. The Borrowers shall
also pay a fee (the "Issuance Fee") to the Administrative Agent, for its own
account, equal to 0.125% per annum on the Maximum Drawing Amount of all Letters
of Credit issued by the Administrative Agent, plus its customary administrative
charges. The Letter of Credit Fee and the Issuance Fee shall be payable for the
number of days each Letter of Credit is outstanding, and shall be payable
quarterly in arrears on the first day of each calendar quarter for the
immediately preceding calendar quarter, and on the Revolving Credit Maturity
Date.
(c) ADMINISTRATIVE AGENT'S FEES. The Borrowers shall pay to
the Administrative Agent an Administrative Agent's fee, as previously agreed
upon among the Borrowers and the Administrative Agent.
SS.5.2. PAYMENTs.
(a) All payments of principal, interest, Reimbursement
Obligations, fees and any other amounts due hereunder or under any of the other
Loan Documents shall be made to the Administrative Agent, for the respective
accounts of the applicable Lenders and the Administrative Agent, to be received
at the Administrative Agent's Head Office in immediately available funds by 1:00
p.m. (Boston time) on any due date.
(b) All payments by the Borrowers hereunder and under any
of the other Loan Documents shall be made without setoff or counterclaim and
free and clear of and without deduction for any taxes, levies, imposts, duties,
charges, fees, deductions, withholdings, compulsory loans, restrictions or
conditions of any nature now or hereafter imposed or levied by any jurisdiction
or any political subdivision thereof or taxing or other authority therein unless
the Borrowers are compelled by law to make such deduction or withholding. Except
as otherwise provided in this Section 5.2,
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if any such obligation is imposed upon the Borrowers with respect to any amount
payable by them hereunder or under any of the other Loan Documents, the
Borrowers will pay to the Administrative Agent, for the account of the
applicable Lenders or (as the case may be) the Administrative Agent, on the date
on which such amount is due and payable hereunder or under such other Loan
Document, such additional amount in Dollars as shall be necessary to enable the
applicable Lenders or the Administrative Agent to receive the same net amount
which such Lenders or the Administrative Agent would have received on such due
date had no such obligation been imposed upon the Borrowers. The Borrowers will
deliver promptly to the Lender certificates or other valid vouchers for all
taxes or other charges deducted from or paid with respect to payments made by
the Borrowers hereunder or under such other Loan Document.
(c) Each Lender that is not incorporated under the laws of
the United States of America or a state thereof or the District of Columbia (a
"Non-U.S. Lender") agrees that, prior to the first date on which any payment is
due to it hereunder, it will deliver to the Borrowers and the Administrative
Agent (i) two duly completed copies of United States Internal Revenue Service
Form 1001 or 4224 or successor applicable form, as the case may be, certifying
in each case that such Non-U.S. Lender is entitled to receive payments under
this Credit Agreement and the Notes payable to it, without deduction or
withholding of any United States federal income taxes, or (ii) if such Lender is
not a "bank" within the meaning of Section 881(c)(3)(A) of the Code and intends
to claim exemption from U.S. Federal withholding tax under Section 871(h) or
881(c) of the Code with respect to payments of "portfolio interest," a Form W-8,
or any subsequent versions thereof or successors thereto (and, if such Non-U.S.
Lender delivers a Form W-8, a certificate (a "Section 5.2(c)(ii) Certificate")
representing that such Non-U.S. Lender is not a bank for purposes of Section
881(c) of the Code), is not a ten-percent shareholder (within the meaning of
Section 871(h)(3)(B) of the Code) of the Borrowers and is not a controlled
foreign corporation related to the Borrowers (within the meaning of Section
864(d)(4) of the Code)), properly completed and duly executed by such Non-U.S.
Lender claiming complete exemption from, or a reduced rate of, U.S. Federal
withholding tax on payments of interest by the Borrowers under this Credit
Agreement and the other Loan Documents. Each Non-U.S. Lender that so delivers a
Form 1001 or 4224, or a Form W-8 and a Section 5.2(c)(ii) Certificate, as the
case may be, pursuant to the preceding sentence further undertakes to deliver to
each of the Borrowers and the Administrative Agent two further copies of Form
1001 or 4224, or Form W-8 and Section 5.2(c)(ii) Certificate, as the case may
be, or successor applicable form, or other manner of certification, as the case
may be, on or before the date that any such letter or form expires or becomes
obsolete or after the occurrence of any event requiring a change in the most
recent form previously delivered by it to the Borrowers, and such extensions or
renewals thereof as may reasonably be requested by the Borrowers, certifying in
the case of a Form 1001 or 4224, or a Form W-8 and a Section 5.2(c)(ii)
Certificate, as the case may be, that such Non-U.S. Lender is entitled to
receive payments under
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this Credit Agreement and the Notes without deduction or withholding of any
United States federal income taxes, unless in any such case an event (including,
without limitation, any change in treaty, law or regulation) has occurred prior
to the date on which any such delivery would otherwise be required which renders
all such forms inapplicable or which would prevent such Non-U.S. Lender from
duly completing and delivering any such form with respect to it and such
Non-U.S. Lender advises the Borrowers that it is not capable of receiving
payments without any deduction or withholding of United States federal income
tax.
(d) In the event that the Borrowers are required to make
such deduction or withholding as a result of the fact that a Lender is organized
outside of the United States, such Lender shall use its reasonable best efforts
to transfer its Loans to an affiliate organized within the United States if such
transfer would have no adverse effect on such Lender or the Loans.
(e) Whenever a payment or fee hereunder or under any of the
other Loan Documents becomes due on a day that is not a Business Day, the due
date for such payment or fee shall be extended to the next succeeding Business
Day, and interest shall accrue during such extension; provided that any Interest
Period for any Eurodollar Loan which ends on a day that is not a Eurodollar
Business Day shall end on the next succeeding Eurodollar Business Day unless the
result of such extension would be to carry such Interest Period into another
calendar month, in which event such Interest Period shall end on the immediately
preceding Eurodollar Business Day.
SS.5.3. COMPUTATIONS. All computations of interest on Base Rate Loans
and of Commitment Fees, Letter of Credit Fees or other fees shall, unless
otherwise expressly provided herein, be based on a 365-day year (or 366-day
year, as applicable) and paid for the actual number of days elapsed. All
computations of interest on Eurodollar Loans shall, unless otherwise expressly
provided herein, be based on a 360-day year and paid for the actual number of
days elapsed.
SS.5.4. CAPITAL ADEQUACY. If any present or future law, governmental
rule, regulation, policy, guideline or directive (whether or not having the
force of law) or the interpretation thereof by a court or governmental authority
with appropriate jurisdiction affects the amount of capital required or expected
to be maintained by any Lender or the Administrative Agent or any corporation
controlling such Lender or the Administrative Agent, and such Lender or the
Administrative Agent determines that the amount of capital required to be
maintained by it is increased by or based upon the existence of such Lender's or
the Administrative Agent's Loans, Letter of Credit Participations or Letters of
Credit, or commitment with respect thereto, then such Lender or the
Administrative Agent may notify the Borrowers of such fact. To the extent that
the costs of such increased
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capital requirements are not reflected in the Base Rate (if relating to Base
Rate Loans), the Borrowers and such Lender or (as the case may be) the
Administrative Agent shall thereafter attempt to negotiate in good faith, within
thirty (30) days of the day on which the Borrowers receive such notice, an
adjustment payable hereunder that will adequately compensate such Lender or the
Administrative Agent in light of these circumstances. If the Borrowers and such
Lender or the Administrative Agent are unable to agree to such adjustment within
thirty (30) days of the date on which the Borrowers receive such notice, then
commencing on the date of such notice (but not earlier than the effective date
of any such increased capital requirement), the fees payable hereunder shall
increase by an amount that will, in such Lender's or the Administrative Agent's
reasonable determination, provide adequate compensation. Each Lender and the
Administrative Agent shall allocate such cost increases among its customers in
good faith and on an equitable basis.
SS.5.5. CERTIFICATE. A certificate setting forth any additional
amounts payable pursuant to ss.5.4 and a brief explanation of such amounts which
are due, submitted by any Lender or the Administrative Agent to the Borrowers,
shall be prima facie evidence that such amounts are due and owing.
SS.5.6. INTEREST AFTER DEFAULT. After and during the continuance of an
Event of Default, interest on the Loans (and any overdue amounts payable
hereunder or under any of the other Loan Documents) shall bear interest
compounded monthly and payable on demand at a rate per annum equal to the Base
Rate plus, if applicable, the Applicable Base Rate Margin plus two (2)
percentage points (2.00%) until such amount shall be paid in full (after, as
well as before, judgment).
SS.5.7. INTEREST LIMITATION. Notwithstanding any other term of this
Credit Agreement or any Note or any other document referred to herein or
therein, the maximum amount of interest which may be charged to or collected
from any person liable hereunder or under any Note by any Lender shall be
absolutely limited to, and shall in no event exceed, the maximum amount of
interest which could lawfully be charged or collected under applicable law
(including, to the extent applicable, the provisions of Section 5197 of the
Revised Statutes of the United States of America, as amended, 12 U.S.C. Section
85, as amended), so that the maximum of all amounts constituting interest under
applicable law, however computed, shall never exceed as to any Person liable
therefor such lawful maximum, and any term of this Credit Agreement, the Notes,
the Letter of Credit Applications, or any other document referred to herein or
therein which could be construed as providing for interest in excess of such
lawful maximum shall be and hereby is made expressly subject to and modified by
the provisions of this paragraph.
SS.5.8. EURODOLLAR INDEMNITY. The Borrowers agree to indemnify the
Lenders and the Administrative Agent and to hold them harmless from and
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against any loss, cost or expenses that the Lenders and the Administrative Agent
may sustain or incur as a consequence of (a) default by the Borrowers in payment
of the principal amount of or any interest on any Eurodollar Loans as and when
due and payable, including any such loss or expense arising from interest or
fees payable by any Lender or the Administrative Agent to lenders of funds
obtained by it in order to maintain its Eurodollar Loans, (b) a prepayment of
principal on any Eurodollar Loan, including prepayments which are the result of
acceleration by the Lenders, or (c) failure by the Borrowers to make a borrowing
or conversion after the Borrowers have given (or are deemed to have given)
notice pursuant to ss.2.5, ss.2.6 or 3.6.2 or (d) the making of any payment of a
Eurodollar Loan or the making of any conversion of any such Eurodollar Loan to a
Base Rate Loan on a day that is not the last day of the applicable Interest
Period with respect thereto, including interest or fees payable by any Lender to
lenders of funds obtained by it in order to maintain any such Loans. Such loss
or reasonable expense shall include an amount equal to (i) the excess, if any,
as reasonably determined by each Lender of its cost of obtaining the funds for
the Eurodollar Loan being paid, prepaid, converted, not converted, or not
borrowed, as the case may be (based on the Eurodollar Rate) for the period from
the date of such payment, prepayment, conversion, or failure to borrow or
convert, as the case may be, to the last day of the Interest Period for such
Loan (or, in the case of a failure to borrow, the Interest Period for the Loan
which would have commenced on the date of such failure to borrow) over (ii) the
amount of interest (as reasonably determined by such Lender) that would be
realized by such Lender in reemploying the funds so paid, prepaid, converted, or
not borrowed, converted, or prepaid for such period or Interest Period, as the
case may be, which determinations shall be conclusive absent manifest error.
SS.5.9. ILLEGALITY; INABILITY TO DETERMINE EURODOLLAR RATE.
Notwithstanding any other provision of this Credit Agreement, if (a) the
introduction of, any change in, or any change in the interpretation of, any law
or regulation applicable to the Administrative Agent or any Lender shall make it
unlawful, or any central bank or other governmental authority having
jurisdiction thereof shall assert that it is unlawful, for any Lender or the
Administrative Agent to perform its obligations in respect of any Eurodollar
Loans, or (b) if any Lender or the Administrative Agent shall determine with
respect to Eurodollar Loans that (i) by reason of circumstances affecting the
Eurodollar interbank market generally, adequate and reasonable methods do not
exist for ascertaining the Eurodollar Rate which would otherwise be applicable
during any Interest Period, or (ii) deposits of Dollars in the relevant amount
for the relevant Interest Period are not available to such Lender or the
Administrative Agent in any Eurodollar interbank market, or (iii) the Eurodollar
Rate does not or will not accurately reflect the cost to such Lender or the
Administrative Agent of obtaining or maintaining the applicable Eurodollar Loans
during any Interest Period, then such Lender or the Administrative Agent shall
promptly give telephonic, telex or cable notice of such determination to the
Parent (which notice shall be conclusive and binding upon the Borrowers).
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Upon such notification by such Lender or the Administrative Agent, the
obligation of such Lender or the Administrative Agent to make Eurodollar Loans
shall be suspended until such Lender or the Administrative Agent determines that
such circumstances no longer exist, and the outstanding Eurodollar Loans shall
continue to bear interest at the applicable rate based on the Eurodollar Rate
until the end of the applicable Interest Period or such earlier periods as may
be required by law, and thereafter shall be deemed converted to Base Rate Loans
in equal principal amounts.
SS.5.10. ADDITIONAL COSTS, ETC. If any present or future applicable
law, which expression, as used herein, includes statutes, rules and regulations
thereunder and interpretations thereof by any competent court or by any
governmental or other regulatory body or official charged with the
administration or the interpretation thereof and requests, directives,
instructions and notices at any time or from time to time hereafter made upon or
otherwise issued to any Lender by any central bank or other fiscal, monetary or
other authority (whether or not having the force of law), shall:
(a) subject any Lender or the Administrative Agent to any
tax, levy, impost, duty, charge, fee, deduction or withholding of any nature
with respect to this Credit Agreement, the other Loan Documents, any Letters of
Credit or participations therein, such Lender's Commitment or the Loans or
participations therein (other than taxes based upon or measured by the income or
profits of such Lender or the Administrative Agent), or
(b) materially change the basis of taxation (except for
changes in taxes on income or profits) of payments to any Lender of the
principal of or the interest on any Loans or any other amounts payable to any
Lender or the Administrative Agent under this Credit Agreement or any of the
other Loan Documents, or
(c) impose or increase or render applicable (other than to
the extent specifically provided for elsewhere in this Credit Agreement) any
special deposit, reserve, assessment, liquidity, capital adequacy or other
similar requirements (whether or not having the force of law) against assets
held by, or deposits in or for the account of, or loans by, or letters of credit
issued by or participated in, or commitments of an office of any Lender, or
(d) impose on any Lender or the Administrative Agent any
other conditions or requirements with respect to this Credit Agreement, the
other Loan Documents, any Letters of Credit, the Loans, such Lender's
Commitment, or any class of loans, letters of credit or commitments of which any
of the Loans or such Lender's Commitment forms a part, and the result of any of
the foregoing is:
(i) to increase the cost to any Lender of making,
funding, issuing, renewing, extending or maintaining any of the Loans or such
Lender's Commitment or any Letter of Credit or participations therein, or
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(ii) to reduce the amount of principal, interest,
Reimbursement Obligation or other amount payable to such Lender or the
Administrative Agent hereunder on account of such Lender's Commitment, any
Letter of Credit or any of the Loans or any participations therein, or
(iii) to require such Lender or the Administrative
Agent to make any payment or to forego any interest or Reimbursement Obligation
or other sum payable hereunder, the amount of which payment or foregone interest
or Reimbursement Obligation or other sum is calculated by reference to the gross
amount of any sum receivable or deemed received by such Lender or the
Administrative Agent from the Borrowers hereunder;
then, and in each such case, the Borrowers will, upon demand made by such Lender
at any time and from time to time and as often as the occasion therefor may
arise, pay to such Lender such additional amounts as will be sufficient to
compensate such Lender for such additional cost, reduction, payment or foregone
interest or other sum (after such Lender shall have allocated the same fairly
and equitably among all customers of any class generally affected thereby).
SS.5.11. REPLACEMENT OF LENDERS. If any Lender (an "Affected Lender")
(i) makes demand upon the Borrowers for (or if the Borrowers are otherwise
required to pay) amounts pursuant to ss.ss.5.4 or 5.10 or (ii) is unable to make
or maintain Eurodollar Loans as a result of a condition described in ss.5.9, the
Borrowers may, within 90 days of receipt of such demand or notice (or the
occurrence of such other event causing the Borrowers to be required to pay such
compensation or causing ss.5.9 to be applicable), by notice in writing to the
Administrative Agent and such Affected Lender (a "Replacement Notice") obtain a
replacement lender satisfactory to the Administrative Agent (the "Replacement
Lender") to assume the Affected Lender's Commitment and/or the Affected Lender's
Term Loan Percentage of the Term Loan, as applicable, by (A) requesting the
non-Affected Lenders to acquire and assume all of the Affected Lender's Loans
and Commitment, as provided herein, but none of such Lenders shall be under an
obligation to do so; or (B) designating a Replacement Lender reasonably
satisfactory to the Administrative Agent. If any satisfactory Replacement Lender
shall be obtained, and/or any of the non-Affected Lenders shall agree to acquire
and assume all of the Affected Lender's Loans and Commitment, then such Affected
Lender shall, so long as no Event of Default shall have occurred and be
continuing, assign, in accordance with ss.18, all of its Commitment, Loans,
Notes and other rights and obligations under this Credit Agreement and all other
Loan Documents to such Replacement Lender or non-Affected Lenders, as the case
may be, in exchange for payment of the principal amount so assigned and all
interest and fees accrued on the amount so assigned, plus all other Obligations
then due and payable to the Affected Lender; provided, however, that (i) such
assignment shall be without recourse, representation or warranty and shall be on
terms and conditions reasonably satisfactory to such Affected Lender and such
Replacement Lender and/or non-Affected Lenders, as the case
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may be, and (ii) prior to any such assignment, the Borrowers shall have paid to
such Affected Lender all amounts properly demanded and unreimbursed under
ss.ss.5.4, 5.8, 5.9 and 5.10. Upon the effective date of such assignment, the
Borrowers shall issue replacement Revolving Credit Notes or Term Notes, as
applicable, to such Replacement Lender and/or non-Affected Lenders, as the case
may be, and such institution shall become a "Lender" for all purposes under this
Credit Agreement and the other Loan Documents.
SS.5.12. CONCERNING JOINT AND SEVERAL LIABILITY OF THE BORROWERS. (a)
Each of the Borrowers is accepting joint and several liability hereunder and
under the other Loan Documents in consideration of the financial accommodations
to be provided by the Lenders under this Credit Agreement, for the mutual
benefit, directly and indirectly, of each of the Borrowers and in consideration
of the undertakings of each other Borrower to accept joint and several liability
for the Obligations.
(b) Each of the Borrowers, jointly and severally, hereby irrevocably
and unconditionally accepts, not merely as a surety but also as a co-debtor,
joint and several liability with the other Borrowers with respect to the payment
and performance of all of the Obligations (including, without limitation, any
Obligations arising under this ss.5.12), it being the intention of the parties
hereto that all of the Obligations shall be the joint and several Obligations of
each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that any of the Borrowers shall fail to make
any payment with respect to any of the Obligations as and when due or to perform
any of the Obligations in accordance with the terms thereof, then in each such
event the other Borrowers will make such payment with respect to, or perform,
such Obligation.
(d) The Obligations of each of the Borrowers under the provisions of
this ss.5.12 constitute full recourse Obligations of each of the Borrowers
enforceable against each such Person to the full extent of its properties and
assets, irrespective of the validity, regularity or enforceability of this
Credit Agreement or any other circumstance whatsoever.
(e) Except as otherwise expressly provided in this Credit Agreement,
each of the Borrowers hereby waives notice of acceptance of its joint and
several liability, notice of any Loans made under this Credit Agreement, notice
of any action at any time taken or omitted by the Lenders under or in respect of
any of the Obligations, and, generally, to the extent permitted by applicable
law, all demands, notices and other formalities of every kind in connection with
this Credit Agreement. Each Borrower hereby waives all defenses which may be
available by virtue of any valuation, stay, moratorium law or other similar law
now or hereafter in effect, any right to require the marshaling of assets of the
Borrowers and any other entity or Person primarily or secondarily liable with
respect to any of the Obligations,
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and all suretyship defenses generally. Each of the Borrowers hereby assents to,
and waives notice of, any extension or postponement of the time for the payment
of any of the Obligations, the acceptance of any payment of any of the
Obligations, the acceptance of any partial payment thereon, any waiver, consent
or other action or acquiescence by the Lenders at any time or times in respect
of any default by any of the Borrowers in the performance or satisfaction of any
term, covenant, condition or provision of this Credit Agreement, any and all
other indulgences whatsoever by the Lenders in respect of any of the
Obligations, and the taking, addition, substitution or release, in whole or in
part, at any time or times, of any security for any of the Obligations or the
addition, substitution or release, in whole or in part, of any of the Borrowers.
Without limiting the generality of the foregoing, each of the Borrowers assents
to any other action or delay in acting or failure to act on the part of the
Lenders with respect to the failure by any of the Borrowers to comply with any
of its respective Obligations, including, without limitation, any failure
strictly or diligently to assert any right or to pursue any remedy or to comply
fully with applicable laws or regulations thereunder, which might, but for the
provisions of this ss.5.12, afford grounds for terminating, discharging or
relieving any of the Borrowers, in whole or in part, from any of its Obligations
under this ss.5.12, it being the intention of each of the Borrowers that, so
long as any of the Obligations hereunder remain unsatisfied, the Obligations of
such Borrowers under this ss.5.12 shall not be discharged except by performance
and then only to the extent of such performance. The Obligations of each of the
Borrowers under this ss.5.12 shall not be diminished or rendered unenforceable
by any winding up, reorganization, arrangement, liquidation, re-construction or
similar proceeding with respect to any of the Borrowers or the Lenders. The
joint and several liability of the Borrowers hereunder shall continue in full
force and effect notwithstanding any absorption, merger, amalgamation or any
other change whatsoever in the name, membership, constitution or place of
formation of any of the Borrowers or the Lenders.
(f) Each of the Borrowers hereby agrees that it will not enforce any
of its rights of contribution or subrogation against the other Borrowers with
respect to any liability incurred by it hereunder or under any of the other Loan
Documents, any payments made by it to any of the Lenders or the Administrative
Agent with respect to any of the Obligations or any collateral security therefor
until such time as all of the Obligations have been irrevocably paid in full in
cash. Any claim which any Borrower may have against any other Borrower with
respect to any payments to the Lenders or the Administrative Agent hereunder or
under any other Loan Document are hereby expressly made subordinate and junior
in right of payment, without limitation as to any increases in the Obligations
arising hereunder or thereunder, to the prior payment in full of the Obligations
and, in the event of any insolvency, bankruptcy, receivership, liquidation,
reorganization or other similar proceeding under the laws of any jurisdiction
relating to any Borrower, its debts or its assets, whether voluntary or
involuntary, all such Obligations shall be paid in full before any payment or
distribution of any
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character, whether in cash, securities or other property, shall be made to any
other Borrower therefor.
(g) Each of Borrowers hereby agrees that the payment of any amounts
due with respect to the indebtedness owing by any Borrower to any other Borrower
is hereby subordinated to the prior payment in full in cash of the Obligations.
Each Borrower hereby agrees that after the occurrences and during the
continuance of any Default or Event of Default, such Borrower will not demand,
sue for or otherwise attempt to collect any indebtedness of any other Borrower
owing to such Borrower until the Obligations shall have been paid in full in
cash. If, notwithstanding the foregoing sentence, such Borrower shall collect,
enforce or receive any amounts in respect of such indebtedness, such amounts
shall be collected, enforced, received by such Borrower as trustee for the
Administrative Agent and be paid over to the Administrative Agent for the pro
rata accounts of the Lenders (in accordance with each Lender's Loan Percentage)
to be applied to repay (or be held as security for the repayment of) the
Obligations.
(h) The provisions of this ss.5.12 are made for the benefit of the
Lenders and their successors and assigns, and may be enforced in good faith by
them from time to time against any or all of the Borrowers as often as the
occasion therefor may arise and without requirement on the part of the Lenders
first to marshal any of their claims or to exercise any of their rights against
any other Borrower or to exhaust any remedies available to them against any
other Borrower or to resort to any other source or means of obtaining payment of
any of the Obligations hereunder or to elect any other remedy. The provisions of
this ss.5.12 shall remain in effect until all of the Obligations shall have been
paid in full or otherwise fully satisfied. If at any time, any payment, or any
part thereof, made in respect of any of the Obligations, is rescinded or must
otherwise be restored or returned by the Lenders upon the insolvency, bankruptcy
or reorganization of any of the Borrowers or is repaid in good faith settlement
of a pending or threatened avoidance claim, or otherwise, the provisions of this
ss.5.12 will forthwith be reinstated in effect, as though such payment had not
been made.
(i) Each of the Borrowers hereby appoints the Parent, the Parent
hereby agrees, to act as its representative and authorized signor with respect
to any notices, demands, communications or requests under this Credit Agreement
or the other Loan Documents, including, without limitation, with respect to Loan
and Letter of Credit Requests and Compliance Certificates and pursuant to ss.20
of this Credit Agreement.
SS.6. REPRESENTATIONS AND WARRANTIES. Each of the Borrowers jointly
and severally represents and warrants to the Lenders that on and as of the date
of this Credit Agreement, each Drawdown Date, and the date of issuance of any
Letter of Credit (with any disclosure on a schedule pursuant to this ss.6
applying to all relevant representations and warranties, regardless of whether
such schedule is referenced in each relevant representation):
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SS.6.1. CORPORATE AUTHORITY.
(a) INCORPORATION; GOOD STANDING. Each Borrower (i) is a
corporation duly organized, validly existing and in good standing or in current
status under the laws of its respective state of incorporation, (ii) has all
requisite corporate power to own its property and conduct its business as now
conducted and as presently contemplated, and (iii) is in good standing as a
foreign corporation and is duly authorized to do business in each jurisdiction
in which its property or business as presently conducted or contemplated makes
such qualification necessary except where a failure to be so qualified would not
have a materially adverse effect on the business, assets or financial condition
of such Borrower.
(b) AUTHORIZATION. The execution, delivery and performance of the
Loan Documents and the transactions contemplated hereby and thereby (i) are
within the corporate authority of each Borrower, (ii) have been duly authorized
by all necessary corporate proceedings, (iii) do not conflict with or result in
any breach or contravention of any provision of law, statute, rule or regulation
to which any Borrower is subject or any judgment, order, writ, injunction,
license or permit applicable to any Borrower, (iv) do not conflict with any
provision of the corporate charter or bylaws of any Borrower, and (v) do not
conflict with any provision of any agreement or other instrument binding upon
any Borrower in a manner which is reasonably likely to have a materially adverse
effect on the Borrowers taken as a whole.
(c) ENFORCEABILITY. The execution, delivery and performance of the
Loan Documents will result in valid and legally binding obligations of the
Borrowers enforceable against each in accordance with the respective terms and
provisions hereof and thereof, except as enforceability is limited by
bankruptcy, insolvency, reorganization, moratorium or other laws relating to or
affecting generally the enforcement of creditors' rights and except to the
extent that availability of the remedy of specific performance or injunctive
relief is subject to the discretion of the court before which any proceeding
therefor may be brought.
SS.6.2. GOVERNMENTAL APPROVALS. The execution, delivery and
performance by the Borrowers of the Loan Documents and the transactions
contemplated hereby and thereby do not require any approval or consent of, or
filing with, any governmental agency or authority other than those already
obtained except filings required by the Security Documents which may not have
been completed on the Closing Date but executed copies of which, if applicable,
have been delivered to the Administrative Agent in form and substance
satisfactory to the Administrative Agent.
SS.6.3. TITLE TO PROPERTIES; LEASES. The Borrowers own all of the
assets reflected in the consolidated balance sheets as at the Balance Sheet Date
or acquired since that date (except property and assets sold or otherwise
disposed of in the ordinary course of business since that date),
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subject to no mortgages, capitalized leases, conditional sales agreements, title
retention agreements, liens or other encumbrances except Permitted Liens.
SS.6.4. FINANCIAL STATEMENTS; SOLVENCY.
(a) There has been furnished to each of the Lenders
audited consolidated financial statements of the Borrowers dated the Balance
Sheet Date. Said financial statements have been prepared in accordance with GAAP
and fairly present in all material respects the financial condition of the
Borrowers on a consolidated basis, as at the close of business on the date
thereof and the results of operations for the period then ended. There are no
contingent liabilities of the Borrowers involving material amounts, known to the
officers of the Borrowers, which have not been disclosed in said balance sheets
and the related notes thereto or otherwise in writing to the Lenders.
(b) The Borrowers on a consolidated basis (both before
and after giving effect to the transactions contemplated by this Credit
Agreement) are and will be solvent (i.e., they have assets having a fair value
in excess of the amount required to pay their probable liabilities on their
existing debts as they become absolute and matured) and have, and expect to
have, the ability to pay their debts from time to time incurred in connection
therewith as such debts mature.
(c) Each Borrower has a fiscal year which is the twelve
months ending on December 31 of each calendar year.
SS.6.5. NO MATERIAL CHANGES, ETC. Since the Balance Sheet Date, except
as described in the Parent's filings with the SEC prior to the Closing Date,
there have occurred no material adverse changes in the financial condition or
businesses of the Borrowers, taken as a whole, as shown on or reflected in the
consolidated balance sheet of the Borrowers as of the Balance Sheet Date, or the
consolidated statement of income for the fiscal period then ended. Since the
Balance Sheet Date, there have not been any Distributions other than as
permitted by ss.8.6 hereof.
SS.6.6. PERMITS, FRANCHISES, PATENTS, COPYRIGHTS, ETC. Each Borrower
possess all franchises, patents, copyrights, trademarks, trade names, licenses
and permits, and rights in respect of the foregoing, adequate for the conduct of
their businesses substantially as now conducted without known conflict with any
rights of others.
SS.6.7. LITIGATION. Except as shown on Schedules 6.7 and 6.16 hereto,
there are no actions, suits, proceedings or investigations of any kind pending
or, to the knowledge of any Borrower, threatened against any Borrower before any
court, tribunal or administrative agency or board which, if adversely
determined, might, either in any individual case or in the aggregate, materially
adversely affect the properties, assets, financial
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condition or business of the Borrowers, taken as a whole, or materially impair
the right of the Borrowers, taken as a whole, to carry on business substantially
as now conducted, or result in any material liability not adequately covered by
insurance, or for which adequate reserves are not maintained on the consolidated
balance sheet or which question the validity of any of the Loan Documents or any
action taken or to be taken pursuant hereto or thereto.
SS.6.8. NO MATERIALLY ADVERSE CONTRACTS, ETC. No Borrower is subject
to any charter, corporate or other legal restriction, or any judgment, decree,
order, rule or regulation which in the judgment of the Borrowers' officers has
or is expected in the future to have a materially adverse effect on the
business, assets or financial condition of the Borrowers, taken as a whole. No
Borrower is a party to any contract or agreement which in the judgment of the
Borrowers' officers has or is expected to have any materially adverse effect on
the business of the Borrowers, taken as a whole.
SS.6.9. COMPLIANCE WITH OTHER INSTRUMENTS, LAWS, ETC. No Borrower is
violating any material provision of (a) its charter documents or by-laws or (b)
any agreement or instrument by which it may be subject or by which it or any of
its properties may be bound or any decree, order, judgment, or any statute,
license, rule or regulation in a manner which could have a materially adverse
effect on the financial condition, properties or business of the Borrowers,
taken as a whole.
SS.6.10. TAX STATUS. Each Borrower has made or filed all federal and
state income and all other tax returns, reports and declarations required by any
jurisdiction to which any of them is subject (unless and only to the extent that
such Borrower has set aside on its books provisions reasonably adequate for the
payment of all unpaid and unreported taxes); and have paid all taxes and other
governmental assessments and charges that are material in amount, shown or
determined to be due on such returns, reports and declarations, except those
being contested in good faith and by appropriate proceedings; and have set aside
on their books provisions reasonably adequate for the payment of all taxes for
periods subsequent to the periods to which such returns, reports or declarations
apply. There are no unpaid taxes in any material amount claimed to be due by the
taxing authority of any jurisdiction, and the officers of the Borrowers know of
no basis for any such claim.
SS.6.11. NO EVENT OF DEFAULT. No Default or Event of Default has
occurred and is continuing.
SS.6.12. HOLDING COMPANY AND INVESTMENT COMPANY ACTS. No Borrower is a
"holding company," or a "subsidiary company" of a "holding company," or an
"affiliate" of a "holding company," as such terms are defined in the Public
Utility Holding Company Act of 1935; nor is any Borrower a "registered
investment company," or an "affiliated company" or a
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"principal underwriter" of a "registered investment company," as such terms are
defined in the Investment Company Act of 1940, as amended.
SS.6.13. ABSENCE OF FINANCING STATEMENTS, ETC. Except with respect to
Permitted Liens, there is no financing statement, security agreement, chattel
mortgage, real estate mortgage or other document filed or recorded with any
filing records, registry, or other public office, which purports to cover,
affect or give notice of any present or possible future lien on, or security
interest in, any assets or property of any Borrower, or any rights relating
thereto, other than financing statements covering assets acquired in
acquisitions permitted under ss.8.4.1 for which the Borrowers are in the process
of obtaining termination statements or amendments releasing the acquired assets
covered thereunder, provided that the Borrowers have evidence in each case that
the obligations secured by such liens have been discharged.
SS.6.14. EMPLOYEE BENEFIT PLANS.
(a) Except as shown on Schedule 6.14 hereto, each Employee Benefit
Plan and each Guaranteed Pension Plan has been maintained and operated in
compliance in all material respects with the provisions of ERISA and, to the
extent applicable, the Code, including but not limited to the provisions
thereunder respecting prohibited transactions and the bonding of fiduciaries and
other persons handling plan funds as required by ss.412 of ERISA. Each Borrower
has heretofore delivered to the Administrative Agent the most recently completed
annual report, Form 5500, with all required attachments, and actuarial statement
required to be submitted under ss.103(d) of ERISA, with respect to each
Guaranteed Pension Plan.
(b) No Employee Benefit Plan, which is an employee welfare benefit
plan within the meaning of ss.3(1) or ss.3(2)(B) of ERISA, provides benefit
coverage subsequent to termination of employment, except as required by Title I,
Part 6 of ERISA or the applicable state insurance laws. A Borrower may terminate
each such Plan at any time (or at any time subsequent to the expiration of any
applicable bargaining agreement) in the discretion of such Borrower without
liability to any Person other than for claims arising prior to termination.
(c) Each contribution required to be made to a Guaranteed Pension
Plan, whether required to be made to avoid the incurrence of an accumulated
funding deficiency, the notice or lien provisions of ss.302(f) of ERISA, or
otherwise, has been timely made. No waiver of an accumulated funding deficiency
or extension of amortization periods has been received with respect to any
Guaranteed Pension Plan, and no Borrower nor any ERISA Affiliate is obligated to
or has posted security in connection with an amendment to a Guaranteed Pension
Plan pursuant to ss.307 of ERISA or ss.401(a)(29) of the Code. No liability to
the PBGC (other than required insurance premiums, all of which have been paid)
has been incurred by any Borrower or any ERISA Affiliate with respect to any
Guaranteed Pension
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Plan and there has not been any ERISA Reportable Event (other than an ERISA
Reportable Event as to which the requirement of 30 days notice has been waived),
or any other event or condition which presents a material risk of termination of
any Guaranteed Pension Plan by the PBGC. Based on the latest valuation of each
Guaranteed Pension Plan (which in each case occurred within twelve months of the
date of this representation), and on the actuarial methods and assumptions
employed for that valuation, the aggregate benefit liabilities of all such
Guaranteed Pension Plans within the meaning of ss.4001 of ERISA did not exceed
the aggregate value of the assets of all such Guaranteed Pension Plans,
disregarding for this purpose the benefit liabilities and assets of any
Guaranteed Pension Plan with assets in excess of benefit liabilities.
(d) No Borrower nor any ERISA Affiliate has incurred any material
liability (including secondary liability) to any Multiemployer Plan as a result
of a complete or partial withdrawal from such Multiemployer Plan under ss.4201
of ERISA or as a result of a sale of assets described in ss.4204 of ERISA. No
Borrower nor any ERISA Affiliate has been notified that any Multiemployer Plan
is in reorganization or insolvent under and within the meaning of ss.4241 or
ss.4245 of ERISA or is at risk of entering reorganization or becoming insolvent,
or that any Multiemployer Plan intends to terminate or has been terminated under
ss.4041A of ERISA.
SS.6.15. USE OF PROCEEDS.
SS.6.15.1. GENERAL. The proceeds of the Loans shall be used
solely as follows: (a) to finance acquisitions permitted pursuant to ss.8.4; and
(b) for capital expenditures, working capital, and general corporate purposes.
The Borrowers will use Letters of Credit solely for working capital and general
corporate purposes.
SS.6.15.2. REGULATIONS U AND X. No portion of any Loan is to
be used, and no portion of any Letter of Credit is to be obtained, for the
purpose of purchasing or carrying any "margin security" or "margin stock" as
such terms are used in Regulations U and X of the Board of Governors of the
Federal Reserve System, 12 C.F.R. Parts 221 and 224.
SS.6.15.3. INELIGIBLE SECURITIES. No portion of the proceeds
of any Loans is to be used, and no portion of any Letter of Credit is to be
obtained, for the purpose of (a) knowingly purchasing, or providing credit
support for the purchase of, Ineligible Securities from a Section 20 Subsidiary
during any period in which such Section 20 Subsidiary makes a market in such
Ineligible Securities, (b) knowingly purchasing, or providing credit support for
the purchase of, during the underwriting or placement period, any Ineligible
Securities being underwritten or privately placed by a Section 20 Subsidiary, or
(c) making, or providing credit support for the making of, payments of principal
or interest on Ineligible Securities underwritten or privately placed by a
Section 20 Subsidiary and issued by or for the benefit of the Borrowers or other
Affiliate of the Borrowers.
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SS.6.16. ENVIRONMENTAL COMPLIANCE. Each Borrower has investigated the
past and present condition and usage of the Real Property now or heretofore
owned or leased by such Borrower and the operations conducted thereon and, based
upon such diligent investigation, has determined that, except as shown on
Schedule 6.16:
(a) No Borrower, nor any operator of the Borrowers' properties, is
in violation, or alleged violation, of any judgment, decree, order, law, permit,
license, rule or regulation pertaining to environmental matters, including
without limitation, those arising under RCRA, CERCLA, the Superfund Amendments
and Reauthorization Act of 1986, the Federal Clean Water Act, the Federal Clean
Air Act, the Toxic Substances Control Act, or any state or local statute,
regulation, ordinance, order or decree relating to health, safety or the
environment (the "Environmental Laws"), which violation would have a material
adverse effect on the business, assets or financial condition of the Borrowers
on a consolidated basis.
(b) No Borrower has received notice from any third party,
including, without limitation: any federal, state or local governmental
authority, (i) that any of the Borrowers has been identified by the United
States Environmental Protection Agency ("EPA") as a potentially responsible
party under CERCLA with respect to a site listed on the National Priorities
List, 40 C.F.R. Part 300 Appendix B; (ii) that any hazardous waste, as defined
by 42 U.S.C. ss.6903(5), any hazardous substances as defined by 42 U.S.C.
ss.9601(14), any pollutant or contaminant as defined by 42 U.S.C. ss.9601(33) or
any toxic substance, oil or hazardous materials or other chemicals or substances
regulated by any Environmental Laws ("Hazardous Substances") which any of the
Borrowers has generated, transported or disposed of has been found at any site
at which a federal, state or local agency or other third party has conducted or
has ordered that any Borrower conduct a remedial investigation, removal or other
response action pursuant to any Environmental Law; or (iii) that it is or shall
be a named party to any claim, action, cause of action, complaint, legal or
administrative proceeding arising out of any third party's incurrence of costs,
expenses, losses or damages of any kind whatsoever in connection with the
release of Hazardous Substances.
(c) Except where it would not have a material adverse effect on
the Borrowers taken as a whole, (i) no portion of the Real Property has been
used for the handling, processing, storage or disposal of Hazardous Substances;
and no underground tank or other underground storage receptacle for Hazardous
Substances is located on such properties; (ii) in the course of any activities
conducted by the Borrowers, or operators of the Real Property, no Hazardous
Substances have been generated or are being used on such properties in violation
of any Environmental Law; (iii) there have been no unpermitted Releases or
threatened Releases of Hazardous Substances on, upon, into or from the Real
Property; (iv) to the best of the Borrowers' knowledge, there have been no
Releases on, upon, from or into any real property in the vicinity of the Real
Property which, through soil or
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groundwater contamination, may have come to be located on such properties; and
(v) in addition, when required under applicable Environmental Laws, any
Hazardous Substances that have been generated on the Real Property have been
transported offsite only by carriers having an identification number issued by
the EPA, treated or disposed of only by treatment or disposal facilities
maintaining valid permits as required under applicable Environmental Laws, which
transporters and facilities, to the best of the Borrowers' knowledge, have been
and are operating in material compliance with such permits and applicable
Environmental Laws.
(d) None of the Real Property is or shall be subject to any
applicable environmental clean-up responsibility law or environmental
restrictive transfer law or regulation, by virtue of the transactions set forth
herein and contemplated hereby.
SS.6.17. PERFECTION OF SECURITY INTERESTS. Except as contemplated by
ss.7.19 and subject to ss.8.4.1, all filings, assignments, pledges and deposits
of documents or instruments have been made and all other actions have been taken
that are necessary or advisable under applicable law to establish and perfect
the Administrative Agent's security interest in the Collateral. Subject to
ss.8.4.1, the Collateral and the Administrative Agent's rights with respect to
the Collateral are not subject to any setoff, claims, withholdings or other
defenses. The Borrowers' rights in the Collateral are free from any lien,
security interest, encumbrance and any other claim or demand, except for
Permitted Liens.
SS.6.18. TRANSACTIONS WITH AFFILIATES. Except as set forth on Schedule
6.18 and arm's length transactions pursuant to which a Borrower makes payments
in the ordinary course of business upon terms no less favorable than such
Borrower could obtain from third parties, none of the officers, directors, or
employees of any Borrower is presently a party to any transaction with any
Borrower (other than for services as employees, officers and directors),
including any contract, agreement or other arrangement providing for the
furnishing of services to or by, providing for rental of real or personal
property to or from, or otherwise requiring payments to or from any officer,
director or such employee or, to the knowledge of any Borrower, any corporation,
partnership, trust or other entity in which any officer, director, or any such
employee has a substantial interest or is an officer, director, trustee or
partner.
SS.6.19. SUBSIDIARIES. Schedule 2 sets forth a complete and accurate
list of the Subsidiaries of the Parent, including the name of each Subsidiary, ,
and its jurisdiction of incorporation. The Perfection Certificate of each
Subsidiary of the Parent sets forth the location of such Subsidiary's chief
executive office, its tax identification number and the number of its authorized
and outstanding shares of capital stock. Each Subsidiary listed on Schedule 2 is
wholly owned by the Parent or a Subsidiary of the Parent and is a Borrower
hereunder, 100% of the assets and stock or other equity interests of which have
been pledged to the Administrative Agent on behalf
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of the Lenders pursuant to the Security Documents. The Parent or a Subsidiary of
the Parent has good and marketable title to all of the shares or other equity
interests it purports to own of each such Subsidiary, free and clear in each
case of any lien or encumbrance. All such shares have been duly issued and are
fully paid and non-assessable. None of the Borrowers is engaged in any joint
venture or partnership with any other Person.
SS.6.20. TRUE COPIES OF CHARTER AND OTHER DOCUMENTS. Each Borrower has
furnished the Administrative Agent copies, in each case true and complete as of
the Closing Date, of its (a) charter and other incorporation documents and (b)
by-laws, each including any amendments thereto.
SS.6.21. DISCLOSURE. Neither this Credit Agreement, nor any of the
other Loan Documents, nor any document or information furnished by the Borrowers
in connection therewith contains any untrue statement of a material fact or
omits to state a material fact (known to any Borrower in the case of any
document or information not furnished by the Borrowers) necessary in order to
make the statements herein or therein not misleading. There is no fact known to
any Borrower which materially adversely affects, or which is reasonably likely
in the future to materially adversely affect, the business, assets, or financial
condition of any Borrower, exclusive of effects resulting from changes in
general economic conditions, legal standards or regulatory conditions.
SS.6.22. CAPITALIZATION.
(a) As of the Closing Date, the authorized capital stock of the
Parent consists of 250,000,000 shares of common stock (par value $0.01 per
share), of which 55,759,496 shares are outstanding as of February 5, 1999, and
5,000,000 shares of preferred stock (par value $0.01 per share), of which no
shares are outstanding as of February 5, 1999. All of such outstanding shares
are fully paid and non-assessable.
(b) The shares of the capital stock of the Borrowers (other than
the Parent) pledged to the Administrative Agent pursuant to the Stock Pledge
Agreements are held of record as set forth on Annex A to the Stock Pledge
Agreements. Such capital stock constitutes, of record, 100% of the outstanding
capital stock of each such Subsidiary, and, to the Borrowers' knowledge, on a
fully-diluted basis, 100% of such outstanding capital stock.
SS.6.23. YEAR 2000 COMPLIANCE. The Borrowers have reviewed the areas
within their business and operations which could be adversely affected by, and
have developed or are developing a program to address on a timely basis, the
Year 2000 Compliance. Based on such review and program, the Year 2000 Compliance
will not have a material adverse effect on their business and operations.
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SS.6.24. SUBORDINATED DEBT. The incurrence of Senior Funded Debt,
including without limitation, the Obligations, will not be prohibited pursuant
to the terms of the then existing Subordinated Debt.
SS.7. AFFIRMATIVE COVENANTS OF THE BORROWERS. Each of the Borrowers
jointly and severally covenants and agrees that, so long as any Loan, Note or
other Obligation is outstanding or the Lenders have any obligation to make Loans
or participate in Loans or Letters of Credit, or the Administrative Agent has
any obligation to issue, extend, or renew any Letters of Credit:
SS.7.1. PUNCTUAL PAYMENT. The Borrowers will duly and punctually pay or
cause to be paid the principal and interest on the Loans, all Reimbursement
Obligations, fees and other amounts provided for in this Credit Agreement and
the other Loan Documents, all in accordance with the terms of this Credit
Agreement and such other Loan Documents.
SS.7.2. MAINTENANCE OF OFFICES. The Parent will maintain its chief
executive office at 450 E. Las Olas Blvd., Suite 1400, Ft. Lauderdale, Florida
33301, and each Borrower will maintain its chief executive offices at the
location set forth in the Perfection Certificate of such Borrower, or at such
other place in the United States as any Borrower shall designate upon 30 days'
prior written notice to the Administrative Agent.
SS.7.3. RECORDS AND ACCOUNTS. Each Borrower will (i) keep true and
accurate records and books of account in which full, true and correct entries
will be made in accordance with GAAP, (ii) maintain adequate accounts and
reserves for all taxes (including income taxes), depreciation, depletion,
obsolescence and amortization of its properties, contingencies, and other
reserves, and (iii) at all times engage Accountants as the independent certified
public accountants of the Borrowers.
SS.7.4. FINANCIAL STATEMENTS, CERTIFICATES AND INFORMATION. The
Borrowers will deliver to the Lenders:
(a) as soon as practicable, but, in any event not later than 90
days after the end of each fiscal year of the Parent, the consolidated and
consolidating balance sheets of the Parent as at the end of such year,
statements of cash flows, and the related consolidated and consolidating
statements of operations, each setting forth in comparative form the figures for
the previous fiscal year, all such consolidated and consolidating financial
statements to be in reasonable detail, prepared in accordance with GAAP and,
with respect to the consolidated financial statements, certified by the
Accountants;
(b) as soon as practicable, but in any event not later than 45
days after the end of each fiscal quarter of the Borrowers, copies of the
consolidated and consolidating balance sheets and statement of operations of the
Parent as at the end of such quarter, subject to year end
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adjustments, the related statement of cash flows, all in reasonable detail and
prepared in accordance with GAAP, with a certification by the principal
financial or accounting officer of each Borrower (the "CFO") that the
consolidated financial statements are prepared in accordance with GAAP and
fairly present the consolidated financial condition of the Borrowers as at the
close of business on the date thereof (subject to year-end adjustments) and the
results of operations for the period then ended;
(c) simultaneously with the delivery of the financial statements
referred to in (a) and (b) above, a statement in the form of Exhibit D hereto
(the "Compliance Certificate") certified by the CFO that the Borrowers are in
compliance with the covenants contained in ss.ss.7, 8 and 9 hereof, as of the
end of the applicable period and setting forth in reasonable detail computations
evidencing such compliance, provided that if the Borrowers shall at the time of
issuance of such certificate or at any other time obtain knowledge of any
Default or Event of Default, the Borrowers shall include in such certificate or
otherwise deliver forthwith to the Lenders a certificate specifying the nature
and period of existence thereof and what action the Borrowers propose to take
with respect thereto;
(d) annually or at such other time as may be requested by the
Administrative Agent, copies of the financial statements, financial projections,
annual budget, variance reports and business plan concerning the Borrowers in
substantially the same form in which such information is supplied to the boards
of directors of the Borrowers;
(e) contemporaneously with, or promptly following, the filing or
mailing thereof, copies of all material of a financial nature filed with the SEC
or sent to the stockholders of the Borrowers; and
(g) from time to time, such other financial data and other
information (including accountants' management letters) as the Lenders may
reasonably request.
Subject to ss.21 hereof, the Borrowers hereby authorize the Lenders to
disclose any information obtained pursuant to this Credit Agreement to all
appropriate governmental regulatory authorities where required by law; provided,
however, that this authorization shall not be deemed to be a waiver of any
rights to object to the disclosure by the Lenders of any such information which
the Borrowers have or may have under the federal Right to Financial Privacy Act
of 1978, as in effect from time to time.
SS.7.5. CORPORATE EXISTENCE AND CONDUCT OF BUSINESS. Each Borrower will
do or cause to be done all things necessary to preserve and keep in full force
and effect its corporate existence, corporate rights and franchises and will not
convert to a limited liability company except as determined by such Borrower's
Board of Directors in its reasonable discretion and only after taking all
actions that the Administrative Agent deems necessary or desirable under
applicable law to continue the
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perfection and preservation of the Administrative Agent's security interest in
the Collateral and the effectiveness of this Credit Agreement and the other Loan
Documents with respect to such Borrower; effect and maintain its foreign
qualifications, licensing, domestication or authorization except as terminated
by such Borrower's Board of Directors in the exercise of its reasonable judgment
and except where the failure of a Borrower to remain so qualified would not
materially adversely impair the financial condition of the Borrowers on a
consolidated basis; use its reasonable best efforts to comply with all
applicable laws; and shall not become obligated under any contract or binding
arrangement which, at the time it was entered into would materially adversely
impair the financial condition of the Borrowers on a consolidated basis. Each
Borrower will continue to engage primarily in the businesses now conducted by it
and in related businesses.
SS.7.6. MAINTENANCE OF PROPERTIES. The Borrowers will cause all
material properties used or useful in the conduct of their businesses to be
maintained and kept in good condition, repair and working order and supplied
with all necessary equipment and will cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the
judgment of the Borrowers may be necessary so that the businesses carried on in
connection therewith may be properly and advantageously conducted at all times;
provided, however, that nothing in this section shall prevent the Borrowers from
discontinuing the operation and maintenance of any of their properties if such
discontinuance is, in the judgment of the Borrowers, desirable in the conduct of
their business and which does not in the aggregate materially adversely affect
the businesses of the Borrowers on a consolidated basis.
SS.7.7. INSURANCE. The Borrowers will maintain with financially sound
and reputable insurance companies, funds or underwriters' insurance of the
kinds, covering the risks (other than risks arising out of or in any way
connected with personal liability of any officers and directors thereof) and in
the relative proportionate amounts usually carried by reasonable and prudent
companies conducting businesses similar to that of the Borrowers, but in no
event less than that required under ss.8 of the Security Agreement. In addition,
the Borrowers will furnish from time to time, upon the Administrative Agent's
request, a summary of the insurance coverage of each of the Borrowers, which
summary shall be in form and substance satisfactory to the Administrative Agent
and, if requested by the Administrative Agent, will furnish to the
Administrative Agent copies of the applicable policies.
SS.7.8. TAXES. The Borrowers will duly pay and discharge, or cause to
be paid and discharged, before the same shall become overdue, all taxes,
assessments and other governmental charges imposed upon it and its real
properties, sales and activities, or any material part thereof, or upon the
income or profits therefrom, as well as all claims for labor, materials, or
supplies, which if unpaid might by law become a lien or charge upon any material
portion of its property; provided, however, that any such tax,
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assessment, charge, levy or claim need not be paid if the validity or amount
thereof shall currently be contested in good faith by appropriate proceedings
and if such Borrower shall have set aside on its books adequate reserves with
respect thereto; and provided, further, that the Borrowers will pay all such
taxes, assessments, charges, levies or claims forthwith upon the commencement of
proceedings to foreclose any lien which may have attached as security therefor.
SS.7.9. INSPECTION OF PROPERTIES, BOOKS, AND CONTRACTS.
(a) Each Borrower will permit the Lenders, the Agent or
any of their designated representatives, upon reasonable notice during normal
business hours, to visit and inspect any of its properties, to examine its books
of account (including the making of periodic accounts receivable reviews), or
contracts (and to make copies thereof and extracts therefrom), and to discuss
its affairs, finances and accounts with, and to be advised as to the same by,
their officers, all at such times and intervals as the Administrative Agent or
any Lender may reasonably request.
(b) No more frequently than once during each calendar
year, or more frequently as determined by the Administrative Agent if an Event
of Default shall have occurred and be continuing, upon the request of the
Administrative Agent, in each case upon reasonable notice and during normal
business hours, the Borrowers will obtain and deliver to the Administrative
Agent, or, if the Administrative Agent so elects, will cooperate with the
Administrative Agent in the Administrative Agent's obtaining, a report of an
independent collateral auditor satisfactory to the Administrative Agent (which
may be affiliated with one of the Lenders) based on a review and audit of the
rental equipment and inventory of the Borrowers, including verification of the
existence and condition of the same, and such report shall be in form and
substance satisfactory to the Administrative Agent. All such collateral reports
shall be conducted and made at the expense of the Borrowers.
(c) Each Borrower authorizes the Administrative Agent
and, if accompanied by the Administrative Agent, the Lenders to communicate
directly with the Accountants and authorizes the Accountants to disclose to the
Administrative Agent and the Lenders any and all financial statements and other
supporting financial documents and schedules including copies of any management
letter with respect to the business, financial condition and other affairs of
the Borrowers. At the request of the Administrative Agent, each Borrower shall
deliver a letter addressed to such Accountants instructing them to comply with
the provisions of this ss.7.9(c).
SS.7.10. COMPLIANCE WITH LAWS, CONTRACTS, LICENSES AND PERMITS;
MAINTENANCE OF MATERIAL LICENSES AND PERMITS. Each Borrower will (i) comply with
the provisions of its charter documents and by-laws, (ii) comply with the
provisions of all agreements and instruments by which it or any of its
properties may be bound except where noncompliance with such
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provisions would not have a materially adverse effect in the aggregate on the
consolidated financial condition, properties or business of the Borrowers taken
as a whole; and (ii) comply with all applicable laws and regulations (including
Environmental Laws), decrees, orders, judgments, licenses and permits,
including, without limitation, all environmental permits applicable hereto
("Applicable Laws"), except where noncompliance with such Applicable Laws would
not have a materially adverse effect in the aggregate on the consolidated
financial condition, properties or businesses of the Borrowers taken as a whole.
If at any time while the Notes, or any Loan or Letter of Credit is outstanding
or any Lender or the Administrative Agent has any obligation to make Loans or
issue Letters of Credit hereunder, any authorization, consent, approval, permit
or license from any officer, agency or instrumentality of any government shall
become necessary or required in order that the Borrowers may fulfill any of
their obligations hereunder, the Borrowers will immediately take or cause to be
taken all reasonable steps within the power of the Borrowers to obtain such
authorization, consent, approval, permit or license and furnish the Lenders with
evidence thereof.
SS.7.11. ENVIRONMENTAL INDEMNIFICATION. Each Borrower covenants and
agrees that it will indemnify and hold the Administrative Agent and the Lenders
harmless from and against any and all claims, expense, damage, loss or liability
incurred by the Administrative Agent or any Lender (including all costs of legal
representation incurred by the Administrative Agent and the Lenders) relating to
(a) any release or threatened release of hazardous substances on the Real
Property; (b) any violation of any Environmental Laws with respect to conditions
at the Real Property or the operations conducted thereon; or (c) the
investigation or remediation of offsite locations at which any Borrower or its
predecessors are alleged to have directly or indirectly disposed of hazardous
substances. It is expressly acknowledged by each Borrower that this covenant of
indemnification shall not include claims, expense, damage, loss or liability
incurred by the Administrative Agent or any Lender based upon the Administrative
Agent's or such Lenders' gross negligence or willful misconduct (other than
gross or willful misconduct which is attributed to the Administrative Agent or
any Lender solely by nature of any interest it may have in the Real Property),
and this covenant shall survive any foreclosure or any modification, release or
discharge of the Loan Documents or the payment of the Loans and shall inure to
the benefit of the Lenders, their successors and assigns.
SS.7.12. FURTHER ASSURANCES. The Borrowers will cooperate with the
Lenders and execute such further instruments and documents as the Lenders shall
reasonably request to carry out to the Lenders' satisfaction the transactions
contemplated by this Credit Agreement and the Loan Documents.
SS.7.13. NOTICE OF POTENTIAL CLAIMS OR LITIGATION. The Borrowers will
give notice to the Administrative Agent and each of the Lenders in writing
within thirty (30) days of becoming aware of any pending litigation
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or proceedings affecting any Borrower or to which any Borrower is or becomes a
party (including without limitation any alleged violation of any Environmental
Law) involving an uninsured claim against any Borrower, wherein the potential
liability is in excess of $1,000,000, and stating the nature and status of such
litigation or proceedings. The Borrowers will give notice to the Administrative
Agent and each of the Lenders, in writing, in form and detail satisfactory to
the Administrative Agent, within ten (10) days of any judgment not covered by
insurance, final or otherwise, against any Borrower in an amount in excess of
$1,000,000.
SS.7.14. NOTICE OF CERTAIN EVENTS CONCERNING INSURANCE AND
ENVIRONMENTAL CLAIMS.
(a) The Borrowers will provide the Lenders with written
notice as to any material cancellation or material change in any insurance of
the Borrowers within ten (10) Business Days after the Borrowers' receipt of any
notice (whether formal or informal) of such cancellation or change by any of
their insurers.
(b) The Borrowers will promptly notify the Lenders in
writing of any of the following events:
(i) upon any Borrower obtaining knowledge of any
violation of any Environmental Law regarding the Real Property or any Borrower's
operations, which violation could have a materially adverse effect on the
Borrowers' operations taken as a whole; (ii) upon any Borrower obtaining
knowledge of any potential or known Release or threat of Release of any
Hazardous Substance at, from, or into the Real Property which any Borrower
reports in writing or is reportable by it in writing to any governmental
authority and which is material in amount or nature or which could materially
affect the value of the Real Property; (iii) upon any Borrower's receipt of any
notice of violation of any Environmental Laws or of any Release or threatened
Release of Hazardous Substances, including a notice or claim of liability or
potential responsibility from any third party (including without limitation any
federal, state or local governmental officials) and including notice of any
formal inquiry, proceeding, demand, investigation or other action with regard to
(A) any Borrower's or any Person's operation of the Real Property, (B)
contamination on, from or into the Real Property, or (C) investigation or
remediation of offsite locations at which any Borrower or any of its
predecessors is alleged to have directly or indirectly Disposed of Hazardous
Substances, which violation or Release in any such case could have a material
adverse effect on the Real Property or on any Borrower's operations; or (iv)
upon any Borrower obtaining knowledge that any material expense or loss has been
incurred by such governmental authority in connection with the assessment,
containment, removal or remediation of any Hazardous Substances with respect to
which any Borrower may be liable or for which a lien may be imposed on the Real
Property.
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SS.7.15. NOTICE OF DEFAULT. The Borrowers will promptly notify the
Lenders in writing of the occurrence of any Default or Event of Default. If any
Person shall give any notice or take any other action in respect of a claimed
default (whether or not constituting an Event of Default) under this Credit
Agreement or any other note, evidence of Indebtedness, indenture or other
obligation evidencing Indebtedness in excess of $1,000,000 as to which any
Borrower is a party or obligor, whether as principal or surety, the Borrowers
shall forthwith give written notice thereof to the Lenders, describing the
notice of action and the nature of the claimed default.
SS.7.16. NEW SUBSIDIARIES. (a) Any newly-created or acquired Subsidiary
of the Parent permitted under ss.8.4 shall, within ten (10) days of being
created or acquired, become a Borrower hereunder and become a party to the
Security Documents by (i) signing a joinder agreement in substantially the form
attached hereto as Exhibit F (the "Joinder Agreement"), (ii) signing allonges to
the Notes, (iii) pledging to the Administrative Agent for the benefit of the
Lenders all of the assets of such new Subsidiary and delivering UCC-1 financing
statements naming the Administrative Agent as secured party and executed on
behalf of such Subsidiary and (iv) providing such other documentation in such
time period as the Administrative Agent shall reasonably request. Within such
ten-day period, the Parent or other Borrower, as applicable, shall pledge to the
Administrative Agent for the benefit of the Lenders 100% of the stock or other
equity interests of such new Subsidiary. In such event, the Administrative Agent
is hereby authorized by the parties to amend Schedule 2 to include such new
Subsidiary.
(b) The Parent shall at all times directly or indirectly
through a Subsidiary own all of the shares of capital stock of each of the
Borrowers (other than the Parent), and such shares shall at all times be pledged
to the Administrative Agent pursuant to the Stock Pledge Agreements.
(c) The Parent shall deliver legal opinions in form and
substance satisfactory to the Administrative Agent for each new Subsidiary
within thirty (30) days of delivery to the Administrative Agent of the Joinder
Agreement for such Subsidiary, provided that no legal opinion shall be required
for any new Subsidiary with less than $5,000,000 in total assets (calculated as
of the creation or acquisition of such Subsidiary and in accordance with GAAP),
unless the assets of such new Subsidiary, when aggregated with the assets of all
other Subsidiaries for which a legal opinion was not required to be delivered
hereunder, exceed 2.5% of Consolidated Total Assets calculated as of the date of
the creation or acquisition of such Subsidiary. Notwithstanding the foregoing,
the Parent shall deliver, at the request of the Administrative Agent or any
Lender, to the Administrative Agent within such time period as the
Administrative Agent shall reasonably request, a legal opinion for any new
Subsidiary (for which a legal opinion was not required at the time of creation
or acquisition) that becomes a Significant Subsidiary.
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SS.7.17. EMPLOYEE BENEFIT PLANS. The Borrowers will (i) promptly upon
filing the same with the Department of Labor or Internal Revenue Service, upon
request of the Administrative Agent, furnish to the Administrative Agent a copy
of the most recent actuarial statement required to be submitted under ss.103(d)
of ERISA and Annual Report, Form 5500, with all required attachments, in respect
of each Guaranteed Pension Plan and (ii) promptly upon receipt or dispatch,
furnish to the Administrative Agent any notice, report or demand sent or
received in respect of a Guaranteed Pension Plan under ss.ss.302, 4041, 4042,
4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan,
under ss.ss.4041A, 4202, 4219, 4242, or 4245 of ERISA.
SS.7.18. USE OF PROCEEDS. The Borrowers will use the proceeds of the
Loans and obtain Letters of Credit solely for the purposes set forth in
ss.6.15.1 hereof.
SS.7.19. TITLE AND REGISTRATION. If requested by the Majority Lenders
and if the value of titled or registered equipment exceeds five percent (5%) of
net rental equipment, as shown on the Borrowers' consolidated financial
statements in accordance with GAAP, within 30 days of such request, the
Borrowers will cause such inventory and equipment, now owned or hereafter
acquired by any of the Borrowers, which, under applicable law, is required to be
registered, to be properly registered in the name of such Person and cause all
inventory and equipment, now owned or hereafter acquired by any of the
Borrowers, the ownership of which, under applicable law, is evidenced by a
certificate of title, to be properly titled in the name of such Person and will
cause the lien of the Administrative Agent to be properly noted on the
certificates of title issued with respect to the equipment and inventory and
deliver such certificates of title to the Administrative Agent in accordance
with the terms of the Security Agreement.
SS.8. CERTAIN NEGATIVE COVENANTS OF THE BORROWERS. Each Borrower agrees
that, so long as any Loan or any Note or other Obligation is outstanding or the
Lenders have any obligation to make Loans or participate in Loans or Letters of
Credit or the Administrative Agent has any obligation to issue, extend or renew
any Letters of Credit hereunder:
SS.8.1. RESTRICTIONS ON INDEBTEDNESS. The Borrowers shall not become or
be a guarantor or surety of, or otherwise create, incur, assume, or be or remain
liable, contingently or otherwise, with respect to any Indebtedness, or become
or be responsible in any manner (whether by agreement to purchase any
obligations, stock, assets, goods or services, or to supply or advance any
funds, assets, goods or services or otherwise) with respect to any undertaking
or Indebtedness of any other Person, or incur any Indebtedness other than:
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(a) Indebtedness to the Lenders and the Administrative Agent
arising under this Credit Agreement or the Loan Documents;
(b) incurrence of guaranty, suretyship or indemnification
obligations in connection with the Borrowers' performance of services for their
respective customers in the ordinary course of their businesses;
(c) Indebtedness of one Borrower to another then existing
Borrower;
(d) (i) purchase money Indebtedness incurred in connection with
the acquisition after June 29, 1998 of any real or personal property or under
equipment leases or equipment chattel, (ii) existing Indebtedness of any
Subsidiary acquired after June 29, 1998 (the "Acquired Subsidiary") originally
incurred by the Acquired Subsidiary in connection with the lease or acquisition
of property or fixed assets used in the business of the Acquired Subsidiary; or
with respect to industrial finance bonds issued to finance the purchase of such
property or assets; (iii) other unsecured existing Indebtedness of any Acquired
Subsidiary; (iv) Indebtedness with respect to obligations under Capitalized
Leases or sale and leaseback transactions and (v) Indebtedness (other than
Subordinated Debt) incurred in connection with acquisitions after the date
hereof of any equity interest in, or assets of any Person owing to the seller(s)
of such equity interests or assets; provided that (A) such acquisitions are
otherwise permitted pursuant to ss.8.4; (B) the aggregate amount of such
Indebtedness under this subsection (d) shall not exceed the greater of (x)
$65,000,000 and (y) EBITDA for the four fiscal quarters most recently ended
multiplied by 0.75 (calculated on a pro forma basis assuming any acquisition
made at any time during such period had been completed at the beginning of such
period) and (C) the incurrence of such Indebtedness would not otherwise create
an Event of Default under ss.9;
(e) Subordinated Debt, provided such Indebtedness is not amended
or prepaid, except in accordance with Section 8.11, without the consent of the
Majority Lenders, except with respect to Subordinated Debt that is repaid in
accordance with Section 8.11, provided further that in the event that after the
Closing Date any Subsidiary of the Parent guarantees any Subordinated Debt, the
terms of such guaranty shall provide for the release of such guaranty upon the
sale of stock or all or substantially all of the assets of such Subsidiary (even
if such sale was made in a foreclosure) in substantially the same form of
release provision as in the Senior Subordinated Notes and the Senior
Subordinated Indenture;
(f) Indebtedness existing as of June 29, 1998 and listed and
described on Schedule 8.1 hereto; and
(g) additional unsecured Indebtedness of the Borrowers in an
aggregate amount not to exceed $5,000,000;
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provided that if the creation, incurrence, assumption or existence of any
Indebtedness would constitute an Event of Default under, or be prohibited
pursuant to the terms of, the then existing Subordinated Debt, then the
creation, incurrence, assumption or existence of such Indebtedness shall not be
permitted hereunder.
SS.8.2. RESTRICTIONS ON LIENS. The Borrowers shall not create or incur
or suffer to be created or incurred or to exist any lien, encumbrance, mortgage,
pledge, charge, restriction or other security interest of any kind upon any
property or assets of any character, whether now owned or hereafter acquired, or
upon the income or profits therefrom; or transfer any of such property or assets
or the income or profits therefrom for the purpose of subjecting the same to the
payment of Indebtedness or performance of any other obligation in priority to
payment of its general creditors; or acquire, or agree or have an option to
acquire, any property or assets upon conditional sale or other title retention
or purchase money security agreement, device or arrangement; or suffer to exist
for a period of more than 30 days after the same shall have been incurred any
Indebtedness or claim or demand against it which if unpaid might by law or upon
bankruptcy or insolvency, or otherwise, be given any priority whatsoever over
its general creditors; or sell, assign, pledge or otherwise transfer any
accounts, contract rights, general intangibles or chattel paper, with or without
recourse, except as follows (the "Permitted Liens"):
(a) Liens to secure taxes, assessments and other government
charges in respect of obligations not overdue or liens on properties to secure
claims for labor, material or supplies in respect of obligations not overdue;
(b) Deposits or pledges made in connection with, or to secure
payment of, workmen's compensation, unemployment insurance, old age pensions or
other social security obligations;
(c) Liens in respect of judgments or awards which have been in
force for less than the applicable period for taking an appeal so long as
execution is not levied thereunder or in respect of which the applicable
Borrower shall at the time in good faith be prosecuting an appeal or proceedings
for review and in respect of which a stay of execution shall have been obtained
pending such appeal or review and in respect of which such Borrower maintains
adequate reserves;
(d) Liens of carriers, warehousemen, mechanics and materialmen,
and other like liens, in existence less than 120 days from the date of creation
thereof in respect of obligations not overdue, provided that such liens may
continue to exist for a period of more than 120 days if the validity or amount
thereof shall currently be contested by the applicable Borrower in good faith by
appropriate proceedings and if such Borrower shall have set aside on its books
adequate reserves with respect thereto as required by GAAP and provided further
that such Borrower will pay any such claim forthwith upon commencement of
proceedings to foreclose any such lien;
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(e) Encumbrances on Real Property consisting of easements, rights
of way, zoning restrictions, restrictions on the use of real property and
defects and irregularities in the title thereto, landlord's or lessor's liens
under leases to which any Borrower is a party, and other minor liens or
encumbrances none of which in the opinion of such Borrower interferes materially
with the use of the property affected in the ordinary conduct of the business of
such Borrower, which defects do not individually or in the aggregate have a
material adverse effect on the business of such Borrower individually or of the
Borrowers on a consolidated basis;
(f) Liens existing as of June 29, 1998 and listed on Schedule 8.2
on the terms and conditions in effect as of the date hereof (subject to the
termination or amendment of certain liens as noted on such Schedule);
(g) (i) previously existing Liens granted by acquired Subsidiaries
with respect to asset financings (mortgages, Capitalized Leases, etc.) or
industrial revenue bonds permitted under ss.8.1(d) on the terms and conditions
in effect as of the date of the acquisition, and the replacement, extension or
renewal of any such Lien provided that in each such case such Liens shall
encumber only the property or assets so financed and shall not exceed the fair
market value thereof and shall not have been incurred in contemplation of such
acquisition; (ii) Liens in respect of Indebtedness to Sellers and Capitalized
Leases permitted by ss.8.1(d); and (iii) purchase money security interests in or
purchase money mortgages on real or personal property to secure purchase money
Indebtedness of the type and amount permitted by ss.8.1(d), incurred in
connection with the acquisition of such property, which security interests or
mortgages cover only the real or personal property so acquired, and the
replacement, extension or renewal of any such Lien encumbering no more than the
property or assets encumbered by such Lien; and
(h) Liens in favor of the Administrative Agent for the benefit of
the Lenders and the Administrative Agent under the Loan Documents.
SS.8.3. RESTRICTIONS ON INVESTMENTS. The Borrowers shall not purchase
or acquire, or make any commitment therefor, any capital stock, equity interest,
or other obligations or securities of, or any interest in, any other Person, or
make or commit to make any acquisition under ss.8.4, or make or commit to make
any advance, loan, extension of credit or capital contribution to or any other
investment in, any other Person, other than:
(a) marketable direct or guaranteed obligations of the United
States of America that mature within one (1) year from the date of purchase;
(b) demand deposits, certificates of deposit, bankers acceptances
and time deposits of United States banks or Eligible Foreign Banks having
unimpaired capital and surplus in excess of $250,000,000;
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(c) securities commonly known as "commercial paper" issued by a
corporation organized and existing under the laws of the United States of
America or any state thereof that at the time of purchase have been rated and
the ratings for which are not less than "P 1" if rated by Moody's Investors
Service, Inc., and not less than "A 1" if rated by Standard and Poor's Rating
Group;
(d) extensions of credit in the nature of accounts receivable or
notes receivable arising from the sale or lease of goods or services in the
ordinary course of business;
(e) investments existing as of June 29, 1998 and listed on
Schedule 8.3;
(f) loans, investments and advances by any Borrower in or to
another Borrower;
(g) investments with respect to Indebtedness permitted by
ss.8.1(e); and
(h) investments permitted under ss.8.4.
SS.8.4. MERGER, CONSOLIDATION AND DISPOSITION OF ASSETS.
SS.8.4.1. MERGERS AND ACQUISITIONS. The Borrowers will not
become a party to any merger or consolidation, or agree to or effect any asset
acquisition or stock acquisition (other than the acquisition of assets in the
ordinary course of business consistent with past practices) except the merger or
consolidation of, or asset or stock acquisitions between existing Borrowers
(provided that the Parent will be the survivor of any such transaction between
the Parent and another Borrower) and except as otherwise provided in this
ss.8.4. Any Borrower may purchase or otherwise acquire all or substantially all
of the assets or stock or other equity interests of any other Person provided
that:
(a) the Borrowers are in current compliance with and, giving
effect to the proposed acquisition (including any borrowings made or to be made
in connection therewith), will continue to be in compliance with all of the
covenants in ss.9 hereof on a pro forma historical combined basis as if the
transaction occurred on the first day of the period of measurement, provided
that a Compliance Certificate demonstrating such compliance shall have been
provided to the Administrative Agent and, upon a request by any Lender, to such
Lender, for any acquisition requiring Majority Consent;
(b) at the time of such acquisition, no Default or Event of
Default has occurred and is continuing, and such acquisition will not otherwise
create a Default or an Event of Default hereunder;
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(c) the business to be acquired is predominantly in the same lines
of business as the Borrowers, or businesses reasonably related or incidental
thereto;
(d) the business to be acquired operates predominantly in the
United States or Canada;
(e) all of the assets to be acquired shall be owned by an existing
or newly created Subsidiary of the Parent which Subsidiary shall, subject to
ss.7.16, be a Borrower, 100% of the assets and stock or other equity interests
of which have been or, within ten (10) days after such acquisition, will be
pledged to the Administrative Agent on behalf of the Lenders or, in the case of
a stock or other equity interest acquisition, the acquired company, within ten
(10) days after such acquisition, shall become a Borrower or shall be merged
with and into a wholly owned Subsidiary that is a Borrower and such newly
acquired or created Subsidiary shall otherwise comply with the provisions of
ss.7.16 hereof;
(f) (i) not later than seven (7) days prior to the proposed
acquisition date of an acquisition requiring the consent of the Majority Lenders
(including without limitation, acquisitions under ss.8.4.1(j)) ("Majority
Consent"), a copy of the purchase agreement, together with audited (if
available, or otherwise unaudited) financial statements for any Subsidiary to be
acquired or created for the preceding two (2) fiscal years or such shorter
period of time as such Subsidiary has been in existence shall have been
furnished to the Administrative Agent; the Administrative Agent will, at the
request of any Lender, deliver a copy of such agreement to such Lender after the
Administrative Agent's receipt thereof;
(ii) for any Subsidiary to be acquired or created not
requiring Majority Consent, the Parent will deliver to the Administrative Agent
at the time the first Compliance Certificate covering such Subsidiary is
delivered to the Administrative Agent (A) a copy of the purchase agreement (if
requested by the Administrative Agent or any Lender); (B) audited (if available,
or otherwise unaudited) financial statements for any such Subsidiary for the
preceding two (2) fiscal years (from the date of creation or acquisition, as the
case may be) or such shorter period of time as such Subsidiary has been in
existence; and (C) the applicable Due Diligence Summary; the Administrative
Agent will, at the request of any Lender, deliver a copy of such materials to
such Lender after the Administrative Agent's receipt thereof;
(g) not later than seven (7) days prior to the proposed
acquisition date of an acquisition requiring Majority Consent, each acquisition
is preceded by the Borrowers' standard due diligence practices, summaries of
which shall have been provided to the Administrative Agent (each a "Due
Diligence Summary"); the Administrative Agent will, at the request of any
Lender, deliver a copy of such summaries to such Lender after the Administrative
Agent's receipt thereof;
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(h) the board of directors and (if required by applicable law) the
shareholders, or the equivalent thereof, of the business to be acquired has
approved such acquisition;
(i) if such acquisition is made by a merger, a Borrower shall be
the surviving entity;
(j) after giving effect to such acquisition, the cash
consideration to be paid by the Borrowers in connection with such acquisition or
series of related acquisitions (including deferred payments and the aggregate
amount of all Funded Debt assumed) shall not exceed 5% of Consolidated Total
Assets as of such acquisition date without the consent of Administrative Agent
and the Majority Lenders; and
(k) for acquisitions requiring Majority Consent, the Parent shall
provide a certificate certifying that such acquisition has been completed
substantially in accordance with the terms of its acquisition documents.
Notwithstanding anything herein to the contrary, the ability
of the Borrowers to incur any Indebtedness in connection with any transaction
permitted pursuant to this ss.8.4 shall be governed by ss.8.1.
Notwithstanding the above, the Parent has signed a certain
merger agreement with Rental Service Corp. and the Lenders and the
Administrative Agent hereby agree that the signing of such agreement does not
create a Default or Event of Default hereunder, but the provisions of this
Section 8.4 shall remain in full force and effect in all other respects.
SS.8.4.2. DISPOSITION OF ASSETS. The Borrowers will not become
a party to or agree to or effect any sale or disposition of assets, other than
(a) among existing Borrowers, (b) the licensing of intellectual property and the
disposition of obsolete assets, in each case in the ordinary course of business
consistent with past practices and (c) so long as no Default or Event of Default
shall have occurred and be continuing at the time of such disposition, the sale
of rental equipment provided the net proceeds of such disposition are invested
by the Borrowers within ninety (90) days of such disposition in the purchase of
new rental equipment. The Administrative Agent will release its lien on the
assets disposed of in accordance with this ss.8.4.2(b) and (c) and will deliver
to the Borrowers' such evidence of such release as the Borrowers may reasonably
request.
SS.8.5. SALE AND LEASEBACK. None of the Borrowers shall enter into any
arrangement, directly or indirectly, whereby any Borrower shall sell or transfer
any property owned by it in order then or thereafter to lease such property or
lease other property which such Borrower intends to use for substantially the
same purpose as the property being sold or transferred, without the prior
written consent of the Majority Lenders.
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SS.8.6. RESTRICTED DISTRIBUTIONS AND REDEMPTIONS. None of the
Borrowers shall make Distributions except any Borrower may make Distributions to
another Borrower provided no Default or Event of Default exists or would be
created by the making of such Distribution. None of the Borrowers shall effect
or permit any change in or amendment to any document or instrument pertaining to
the terms of any Borrower's (other than the Parent's) capital stock.
SS.8.7. EMPLOYEE BENEFIT PLANS. None of the Borrowers nor any ERISA
Affiliate will:
(a) engage in any "prohibited transaction" within the meaning of
ss.406 of ERISA or ss.4975 of the Code which could result in a material
liability for any Borrower; or
(b) permit any Guaranteed Pension Plan to incur an "accumulated
funding deficiency", as such term is defined in ss.302 of ERISA, whether or not
such deficiency is or may be waived; or
(c) fail to contribute to any Guaranteed Pension Plan to an extent
which, or terminate any Guaranteed Pension Plan in a manner which, could result
in the imposition of a lien or encumbrance on the assets of any Borrower
pursuant to ss.302(f) or ss.4068 of ERISA; or
(d) amend any Guaranteed Pension Plan in circumstances requiring
the posting of security pursuant to ss.307 of ERISA or ss.401(a)(29) of the
Code; or
(e) permit or take any action which would result in the aggregate
benefit liabilities (within the meaning of ss.4001 of ERISA) of all Guaranteed
Pension Plans exceeding the value of the aggregate assets of such Plans,
disregarding for this purpose the benefit liabilities and assets of any such
Plan with assets in excess of benefit liabilities.
SS.8.8. NEGATIVE PLEDGES. The Borrowers shall not enter into or permit
to exist any arrangement or agreement, enforceable under applicable law, which
directly or indirectly prohibits any Borrower from creating or incurring any
lien, encumbrance, mortgage, pledge, charge, restriction or other security
interest in favor of the Administrative Agent for the benefit of the Lenders and
the Administrative Agent under the Loan Documents.
SS.8.9. BUSINESS ACTIVITIES. The Borrowers will not engage directly or
indirectly (whether through Subsidiaries or otherwise) in any type of business
other than the businesses conducted by any Borrower on the Closing Date and in
related businesses.
SS.8.10. TRANSACTIONS WITH AFFILIATES. The Borrowers will not engage in
any transaction with any Affiliate (other than for services as employees,
officers and directors), including any contract, agreement or other arrangement
providing for the furnishing of services to or by, providing for
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rental of real or personal property to or from, or otherwise requiring payments
to or from any such Affiliate or, to the knowledge of any Borrower, any
corporation, partnership, trust or other entity in which any such Affiliate has
a substantial interest or is an officer, director, trustee or partner, on terms
more favorable to such Person than would have been obtainable on an arm's-length
basis in the ordinary course of business.
SS.8.11. SUBORDINATED DEBT. None of the Borrowers will amend,
supplement or otherwise modify the terms of any of the Subordinated Debt without
thirty (30) days prior written notice to the Administrative Agent and the
Lenders of such change, and will not make any change which, in the opinion of
the Administrative Agent, would be in any way materially adverse to the Lenders
without the prior written consent of the Majority Lenders or prepay, redeem or
repurchase any of the Subordinated Debt, except in accordance with Section 8.11.
Prior to the making of any scheduled payment of principal on any of the
Subordinated Debt, the Borrowers shall deliver to the Administrative Agent and
Lenders a Compliance Certificate demonstrating that on a pro forma basis after
giving effect to the proposed payment and any borrowings needed to make such
payment, assuming such payment and borrowing had been competed as of the last
day of the fiscal quarter, the Borrowers are and shall continue to be in
compliance with all of the covenants in ss.9 hereof. In the event that the
Borrowers are unable to deliver such Compliance Certificate, the Borrowers shall
prepay the Term Loan, at least one Business Day prior to making any payment on
any Subordinated Debt, in an amount sufficient to bring the Borrowers into pro
forma compliance with the covenants in ss.9 of the Credit Agreement. Each such
payment on the Term Loan shall be allocated in the manner set forth in ss.3.4 of
this Credit Agreement. Notwithstanding anything herein to the contrary, in no
case may the Borrowers make any payment of principal, interest, or other amounts
owing with respect to the Subordinated Debt if an Event of Default under
ss.13.1(a) or (b) exists or would be created by the making of such payment.
Subordinated Debt (other than the Senior Subordinated Notes) may be repaid prior
to the scheduled maturity date thereof from the proceeds of (i) an offer and
sale of shares of common stock of the Parent or (ii) the Senior Subordinated
Notes, provided that prior to such payments the Borrowers shall deliver to the
Administrative Agent and Lenders a Compliance Certificate demonstrating that on
a pro forma basis after giving effect to the proposed payment and any other
Indebtedness incurred since the most recent Compliance Certificate delivered to
the Administrative Agent, assuming such payment had been incurred as of the last
day of the fiscal quarter immediately prior to such payment, the Borrowers are
and shall continue to be in compliance with all of the covenants in Section 9
hereof as of such date of delivery of such Compliance Certificate.
SS.8.12. FISCAL YEAR. None of the Borrowers will change the date of its
fiscal year from that set forth in ss.6.4(c) hereof.
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SS.9. FINANCIAL COVENANTS. Each of the Borrowers covenants and agrees
that, so long as any Loan, any Revolving Credit Note, Swing Line Note, Term
Note, any Reimbursement Obligation or other Obligation is outstanding or the
Lenders have any obligation to make Loans or participate in Loans or Letters of
Credit or the Administrative Agent has any obligation to issue, extend or renew
any Letters of Credit hereunder:
SS.9.1. LEVERAGE RATIO. Commencing with the fiscal quarter ending
September 30, 1998, the ratio of (a) Funded Debt as at the end of any fiscal
quarter to (b) EBITDA for the period of four (4) consecutive fiscal quarters
ending on such date shall not exceed 4.50:1.00.
SS.9.2. SENIOR FUNDED DEBT TO EBITDA. Commencing with the fiscal
quarter ending September 30, 1998, the ratio of (a) Senior Funded Debt as at the
end of any fiscal quarter ending during a period described in the table below to
(b) EBITDA for the period of four (4) consecutive fiscal quarters ending on such
date shall not exceed the ratio set forth in the following table:
<TABLE>
<CAPTION>
Period Percentage
------ ----------
<S> <C>
October 1, 1998 - June 30, 1999 3.25:1.00
July 1, 1999 and thereafter 3.00:1.00
</TABLE>
SS.9.3. INTEREST COVERAGE RATIO. As of the end of any fiscal quarter of
the Borrowers commencing with the fiscal quarter ending September 30, 1998, the
Borrowers will not permit the ratio (the "Interest Coverage Ratio") of (a) the
sum of (i) actual reported EBIT (without adjustment) plus (ii) amortization
expense relating to intangible assets to (b) Consolidated Total Interest Expense
to be less than the ratio appearing opposite the relevant period in the table
set forth below:
<TABLE>
<CAPTION>
Period Ratio
------ -----
<S> <C>
July 1, 1998 - December 31, 1998 1.75:1
January 1, 1999 - December 31,
1999 2.00:1
January 1, 2000 and thereafter 2.25:1
</TABLE>
The Interest Coverage Ratio shall be calculated on a cumulative
quarterly basis for the fiscal quarters ending September 30, 1998 through
December 31, 1998, and thereafter for the four fiscal quarters then ending.
SS.9.4. TANGIBLE ASSETS TO SENIOR DEBT. The Borrowers will not permit
at any time the ratio of (a) Consolidated Tangible Assets to (b) the sum of the
Loans, unpaid Reimbursement Obligations and the Maximum Drawing Amount to be
less than 1.00:1.
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SS.9.5. CONSOLIDATED NET WORTH. The Borrowers will not permit
Consolidated Net Worth at any time to be less than $175,000,000 plus the sum of
(i) 50% of positive Consolidated Net Income for each fiscal quarter, beginning
with the fiscal quarter ended September 30, 1998, and (ii) 100% of the net
proceeds of any sale by the Borrowers of (A) equity securities issued by the
Borrowers or (B) warrants or subscription rights for equity securities issued by
the Borrowers.
SS.9.6. CAPITAL EXPENDITURES. Capital Expenditures (other than for
rental equipment inventory used in the ordinary course of business) for the
fiscal years set forth below shall not exceed the amounts set forth opposite
such fiscal year in the following table:
<TABLE>
<CAPTION>
Fiscal Year Amount
----------- ------
<S> <C>
1998 $10,000,000
1999 $20,000,000
2000 $25,000,000
</TABLE>
provided, however, that, if during any fiscal year the amount of Capital
Expenditures permitted for that fiscal year is not utilized, such unutilized
amount may be utilized in the next succeeding fiscal year after application of
the amount set forth in the table above, but not in any subsequent fiscal year.
SS.10. CLOSING CONDITIONS. The obligations of (a) the Lenders to
convert the Loans and Letters of Credit under the Prior Credit Agreement into
Revolving Credit Loans and Letters of Credit and to make the initial Loans, (b)
the Administrative Agent to issue any initial Letters of Credit, and (c) the
Lenders and the Administrative Agent otherwise be bound by the terms of this
Credit Agreement shall be subject to the satisfaction of each of the following
conditions precedent:
SS.10.1. LOAN DOCUMENTS, ETC. Each of the Loan Documents shall have
been duly and properly authorized, executed and delivered by the respective
parties thereto and shall be in full force and effect in a form satisfactory to
the Lenders.
SS.10.2. CORPORATE ACTION. All corporate action necessary for the valid
execution, delivery and performance by each Borrower of the Loan Documents shall
have been duly and effectively taken, and satisfactory evidence thereof shall
have been provided to the Administrative Agent.
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SS.10.3. CERTIFICATE OF SECRETARY; GOOD STANDING CERTIFICATES. The
Administrative Agent shall have received from each Borrower either (i) a
certificate as to the good standing of such Borrower from the Secretary of State
or other appropriate official of the state of its organization and from each
state in which it is authorized to conduct business, in each case dated as of a
recent date or (ii) a certificate stating that the good standing certificate
previously delivered by such Borrower to the Administrative Agent remains true,
accurate and complete as of the Closing Date. The Administrative Agent shall
also have received from each Borrower either (i) a certificate of its Secretary
certifying the following attachments thereto: (a) a copy of its certificate or
articles of incorporation or constitutive documents, in each case as amended to
date, certified as of a recent date by the Secretary of State or other
appropriate official of the state of its organization, (b) a true, correct and
complete copy of its by-laws, including all amendments thereto, and (c) a true,
correct and complete copy of the resolutions of its board of directors
authorizing the transactions contemplated hereunder and under the other Loan
Documents or (ii) a certificate of its Secretary certifying that such documents
previously delivered to the Administrative Agent with respect to such Borrower
is true, accurate and complete as of the Closing Date. Such Secretary's
Certificate shall also give the name and bear a specimen signature of each
individual who shall be authorized (i) to sign the Loan Documents on behalf of
each Borrower; (ii) to make Loan and Letter of Credit Requests; and (iii) to
give notices and to take other action on each Borrower's behalf under the Loan
Documents.
SS.10.4. VALIDITY OF LIENS. The Security Documents shall be effective
to create and maintain in favor of the Administrative Agent a legal, valid and
enforceable first (except for Permitted Liens entitled to priority under
applicable law) security interest in and lien upon the Collateral. All filings,
recordings, deliveries of instruments and other actions necessary or desirable
in the opinion of the Administrative Agent to protect and preserve such security
interests shall have been duly effected, including, without limitation, notation
of the Administrative Agent's lien on certificates of title as described in
ss.7.19 and filing such UCC-3 Amendments to reflect the name changes of
NationsRent of New Hampshire, Inc. to NationsRent Northeast, Inc., NRI/LEC
Merger Corp. to Logan Equipment Corp. and The Bode-Finn Company to NationsRent
AWP Company. The Administrative Agent shall have received evidence thereof in
form and substance satisfactory to the Administrative Agent.
SS.10.5. PERFECTION CERTIFICATES AND UCC SEARCH RESULTS. The
Administrative Agent shall have received from each Borrower either (i) a
completed and fully executed Perfection Certificate or (ii) a certificate
stating that the Perfection Certificate previously delivered by such Borrower is
true, accurate and complete as of the Closing Date and the results of UCC
searches with respect to the Collateral, indicating no liens other than
Permitted Liens and otherwise in form and substance satisfactory to the
Administrative Agent.
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SS.10.6. CERTIFICATES OF INSURANCE. The Administrative Agent shall have
received either (i) a certificate of insurance signed by the insurer or an agent
authorized to bind the insurer dated as of the Closing Date, identifying
insurers, types of insurance, insurance limits, and policy terms, and otherwise
describing the Borrowers' insurance coverage and naming the Administrative Agent
as loss payee and additional insured as further provided in the Security
Agreement or (ii) a certificate from the Borrowers stating that the insurance
certificate previously delivered on June 29, 1998 is true, accurate and complete
as of the Closing Date.
SS.10.7. LEGAL OPINIONS. The Administrative Agent shall have received a
favorable legal opinion from counsel to the Borrowers, addressed to the
Administrative Agent and each Lender, dated as of the Closing Date, in form and
substance satisfactory to the Administrative Agent, including but not limited to
an opinion regarding noncontravention of the Loan Documents and the transactions
contemplated herein and therein with the Subordinated Debt Documents.
SS.10.8. PAYMENT OF FEES. The Borrowers shall have paid all fees owing
to any of the Lenders or the Administrative Agent, as appropriate, including,
without limitation, the fees and expenses of the Administrative Agent's counsel
and the fees set forth in the fee letter dated as of the Closing Date (the "Fee
Letter").
SS.10.9. CLOSING CERTIFICATE. The Borrowers shall have delivered to the
Administrative Agent a certificate, dated as of the Closing Date, stating that,
as of such date (a) the representations and warranties set forth herein or in
any other Loan Document are true and correct and (b) no Default or Event of
Default has occurred and is continuing.
SS.10.10. CONSENTS. The Borrowers shall have delivered to the
Administrative Agent evidence that all requisite third-party consents to the
transactions contemplated hereunder and under the other Loan Documents have been
received.
SS.10.11. SUBORDINATED DEBT DOCUMENTS. The Borrowers shall have
delivered to the Administrative Agent true, correct and complete copies of the
Subordinated Debt Documents in existence as of the Closing Date and such
documents shall be in form and substance satisfactory to the Administrative
Agent.
SS.10.12. COMPLIANCE CERTIFICATE. The Borrowers shall have delivered to
the Administrative Agent a duly executed and completed Compliance Certificate.
SS.11. CONDITIONS OF ALL LOANS. The obligations of the Lenders to
convert the Loans under the Prior Credit Agreement into Revolving Credit Loans
hereunder and to make or extend any Loan and of the Administrative
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Agent to issue, extend or renew any Letter of Credit on or after the Closing
Date, shall also be subject to the following conditions precedent:
SS.11.1. REPRESENTATIONS TRUE; NO EVENT OF DEFAULT. Each of the
representations and warranties of the Borrowers contained in this Credit
Agreement, the other Loan Documents or in any document or instrument delivered
pursuant to or in connection with this Credit Agreement shall be true as of the
date as of which they were made and shall also be true at and as of the time of
any Drawdown Date or the issuance, extension or renewal of any Letter of Credit
with the same effect as if made at and as of that time (except to the extent of
changes resulting from transactions contemplated or permitted by this Credit
Agreement and the other Loan Documents and changes occurring in the ordinary
course of business which singly or in the aggregate are not materially adverse,
or to the extent that such representations and warranties relate solely and
expressly to an earlier date) and no Default or Event of Default shall have
occurred and be continuing.
SS.11.2. PERFORMANCE; NO EVENT OF DEFAULT. The Borrowers shall have
performed and complied with all terms and conditions herein required to be
performed or complied with by the Borrowers prior to or at the time of any Loan,
and at the time of any Loan, there shall exist no Event of Default or condition
which would result in an Event of Default upon consummation of such Loan
(including without limitation any amounts to be drawn under a Letter of Credit).
Each request by the Borrowers for a Loan and each request for issuance,
extension or renewal of a Letter of Credit subsequent to the Closing Date shall
constitute certification by the Borrowers that the conditions specified in
ss.ss.11.1 and 11.2 will be duly satisfied on the date of such Loan or Letter of
Credit issuance.
SS.11.3. NO LEGAL IMPEDIMENT. No change shall have occurred in any law
or regulations thereunder or interpretations thereof which in the reasonable
opinion of any Lender would make it illegal for such Lender to make Loans
hereunder or to participate in the issuance, extension or renewal of letters of
credit or in the reasonable opinion of the Administrative Agent would make it
illegal for the Administrative Agent to issue, extend or renew such Letter of
Credit.
SS.11.4. GOVERNMENTAL REGULATION. Each Lender shall have received such
statements in form and substance reasonably satisfactory to such Lender as such
Lender shall require for the purpose of compliance with any applicable
regulations of the Comptroller of the Currency or the Board of Governors of the
Federal Reserve System.
SS.11.5. PROCEEDINGS AND DOCUMENTS. All proceedings in connection with
the transactions contemplated by this Credit Agreement, the other Loan Documents
and all documents incident thereto shall have been delivered to the Lenders in
form and substance satisfactory to the Lenders, the Administrative Agent and its
counsel, including without limitation a
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Loan and Letter of Credit Request in the form attached hereto as Exhibit C, and
the Lenders, the Administrative Agent and such counsel shall have received all
information and such counterpart originals or certified or other copies of such
documents as the Administrative Agent or any Lender may reasonably request.
SS.12. COLLATERAL SECURITY. The Obligations shall be secured by (a) a
perfected first priority security interest (subject only to Permitted Liens
entitled to priority under applicable law) in all assets of each Borrower (other
than perfection of titled or registered equipment unless perfection is required
pursuant to ss.7.19), whether now owned or hereafter acquired, pursuant to the
terms of the Security Documents to which such Borrower is a party and (b) a
pledge of one hundred percent (100%) of the stock or other equity interests of
each Subsidiary of the Parent pursuant to the terms of the Stock Pledge
Agreements.
SS.13. EVENTS OF DEFAULT; ACCELERATION; TERMINATION OF COMMITMENT.
SS.13.1. EVENTS OF DEFAULT AND ACCELERATION. If any of the following
events ("Events of Default" or, if the giving of notice or the lapse of time or
both is required, then, prior to such notice and/or lapse of time, "Defaults")
shall occur:
(a) the Borrowers shall fail to pay any principal of the Loans or
any Reimbursement Obligation when the same shall become due and payable, whether
at the Revolving Credit Maturity Date, Term Loan Maturity Date or any
accelerated date of maturity or at any other date fixed for payment (including,
without limitation, any prepayments required by ss.ss.3.4 or 8.11);
(b) the Borrowers shall fail to pay any interest or fees or other
amounts owing hereunder within five (5) Business Days after the same shall
become due and payable whether at the Revolving Credit Maturity Date, Term Loan
Maturity Date or any accelerated date of maturity or at any other date fixed for
payment;
(c) any Borrower shall fail to comply with any of the covenants
contained in ss.ss.7.1, the first clause of 7.5, 7.15, 7.16, 7.19, 8 or 9;
(d) any Borrower shall fail to perform any term, covenant or
agreement contained herein or in any of the other Loan Documents (other than
those specified in subsections (a), (b), and (c) above) within thirty (30) days
after the earlier to occur of (i) written notice of such failure has been given
to the Borrowers by the Administrative Agent or any Lender or (ii) the date on
which any Borrower knew or should have known about such event;
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(e) any representation or warranty contained in this Credit
Agreement, any of the Loan Documents or in any document or instrument delivered
pursuant to or in connection with this Credit Agreement shall prove to have been
false in any material respect upon the date when made or repeated;
(f) any Borrower shall fail to pay at maturity, or within any
applicable period of grace, any obligation for borrowed money (other than the
Obligations) or any guaranty with respect thereto in an aggregate amount greater
than $1,000,000 or fail to observe or perform any material term, covenant or
agreement contained in any agreement by which it is bound, evidencing or
securing borrowed money in an aggregate amount greater than $1,000,000 for such
period of time as would, or would have permitted (assuming the giving of
appropriate notice if required) the holder or holders thereof or of any
obligations issued thereunder to accelerate the maturity thereof;
(g) any Borrower makes an assignment for the benefit of creditors,
or admits in writing its inability to pay or generally fails to pay its debts as
they mature or become due, or petitions or applies for the appointment of a
trustee or other custodian, liquidator or receiver of any Borrower or of any
substantial part of the assets of any Borrower or commences any case or other
proceeding relating to any Borrower under any bankruptcy, reorganization,
arrangement, insolvency, readjustment of debt, dissolution or liquidation or
similar law of any jurisdiction, now or hereafter in effect, or takes any action
to authorize or in furtherance of any of the foregoing, or if any such petition
or application is filed or any such case or other proceeding is commenced
against any Borrower and such Borrower indicates its approval thereof, consent
thereto or acquiescence therein or such petition or application shall not have
been dismissed within ninety (90) days following the filing thereof;
(h) a decree or order is entered appointing any such trustee,
custodian, liquidator or receiver or adjudicating any Borrower bankrupt or
insolvent, or approving a petition in any such case or other proceeding, or a
decree or order for relief is entered in respect of any Borrower in an
involuntary case under federal bankruptcy laws as now or hereafter constituted;
(i) there shall remain in force, undischarged, unsatisfied and
unstayed, for more than thirty (30) days, whether or not consecutive, any final
judgment against any Borrower which, with other outstanding final judgments,
undischarged, unsatisfied and unstayed against the Borrowers, exceeds in the
aggregate $1,000,000 after taking into account any undisputed insurance
coverage;
(j) the holders of all or any part of the Subordinated Debt shall
accelerate the maturity of all or any part of the Subordinated Debt or the
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Subordinated Debt shall be prepaid, redeemed or repurchased in whole or in part,
other than payments made in compliance with ss.3.4 hereof;
(k) any Borrower or any ERISA Affiliate incurs any liability to
the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an
aggregate amount exceeding $1,000,000, or any Borrower or any ERISA Affiliate is
assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer
Plan requiring aggregate annual payments exceeding $1,000,000, or any of the
following occurs with respect to a Guaranteed Pension Plan: (i) an ERISA
Reportable Event, or a failure to make a required installment or other payment
(within the meaning of ss.302(f)(1) of ERISA), provided that the Administrative
Agent determines in its reasonable discretion that such event (A) could be
expected to result in liability of any Borrower to the PBGC or such Guaranteed
Pension Plan in an aggregate amount exceeding $1,000,000 and (B) could
constitute grounds for the termination of such Guaranteed Pension Plan by the
PBGC, for the appointment by the appropriate United States District Court of a
trustee to administer such Guaranteed Pension Plan or for the imposition of a
lien in favor of such Guaranteed Pension Plan; or (ii) the appointment by a
United States District Court of a trustee to administer such Guaranteed Pension
Plan; or (iii) the institution by the PBGC of proceedings to terminate such
Guaranteed Pension Plan;
(l) any of the Loan Documents shall be cancelled, terminated,
revoked or rescinded or the Administrative Agent's security interests or liens
in a substantial portion of the Collateral shall cease to be perfected, or shall
cease to have the priority contemplated by the Security Documents, in each case
otherwise than in accordance with the terms thereof or with the express prior
written agreement, consent or approval of the Lenders, or any action at law,
suit or in equity or other legal proceeding to cancel, revoke or rescind any of
the Loan Documents shall be commenced by or on behalf of any Borrower or any of
their respective stockholders, or any court or any other governmental or
regulatory authority or agency of competent jurisdiction shall make a
determination that, or issue a judgment, order, decree or ruling to the effect
that, any one or more of the Loan Documents is illegal, invalid or unenforceable
in accordance with the terms thereof;
(m) (i) the Parent shall at any time, legally or beneficially own
less than one hundred percent (100%) of the shares of the capital stock of each
other Borrower, as adjusted pursuant to any stock split, stock dividend or
recapitalization or reclassification of the capital of such Borrower; or (ii)
except as set forth on Schedule 13.1(m) any person or group of persons (within
the meaning of Section 13 or 14 of the Securities Exchange Act of 1934, as
amended) shall have acquired beneficial ownership (within the meaning of Rule
13d-3 promulgated by the Securities and Exchange Commission under said Act) of
20% or more of the outstanding shares of common stock of the Parent; or, during
any period of twelve consecutive calendar months, individuals who were directors
of the Parent on the first
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day of such period shall cease to constitute a majority of the board of
directors;
then, and in any such event, so long as the same may be continuing, the
Administrative Agent may, and at the request of the Majority Lenders shall, by
notice in writing to the Borrowers, declare all amounts owing with respect to
this Credit Agreement, the Notes and the other Loan Documents and all
Reimbursement Obligations to be, and they shall thereupon forthwith become,
immediately due and payable without presentment, demand, protest or other notice
of any kind, all of which are hereby expressly waived by the Borrowers; provided
that in the event of any Event of Default specified in ss.ss.13(g), 13(h) or
13(j) all such amounts shall become immediately due and payable automatically
and without any requirement of notice from the Administrative Agent or any
Lender. Upon demand by the Required Revolving Credit Lenders after the
occurrence of any Event of Default, the Borrowers shall immediately provide to
the Administrative Agent cash in an amount equal to the Maximum Drawing Amount,
to be held by the Administrative Agent as collateral security for the Letter of
Credit Obligations, provided that in the event of any Event of Default specified
in ss.ss.13(g), 13(h) or 13(j), all such amounts shall become immediately due
and payable automatically and without any requirement of notice from the
Administrative Agent or any Lender.
SS.13.2. TERMINATION OF COMMITMENTS. If any Event of Default shall
occur, the Administrative Agent may, and at the request of the Required
Revolving Credit Lenders shall, by notice to the Borrowers, terminate the unused
portion of the Total Commitment hereunder, and upon such notice being given,
such unused portion of the Total Commitment hereunder shall terminate
immediately and the Revolving Credit Lenders shall be relieved of all further
obligations to make Revolving Credit Loans to the Borrowers and the
Administrative Agent shall be relieved of all further obligations to issue,
extend or renew Letters of Credit for the account of the Borrowers hereunder,
provided that in the event of any Event of Default specified in ss.ss.13(g),
13(h) or 13(j), the Total Commitment shall forthwith terminate and each of the
Revolving Credit Lenders shall be relieved of all further obligations to make
Revolving Credit Loans to the Borrowers and the Administrative Agent shall be
relieved of all further obligations to issue, extend or renew Letters of Credit
automatically and without any requirement of notice from the Administrative
Agent or any Lender. No termination of any portion of the Total Commitment
hereunder shall relieve the Borrowers of any of their existing Obligations to
the Revolving Credit Lenders hereunder or elsewhere.
SS.13.3. REMEDIES. Subject to ss.14, in case any one or more Events of
Default shall have occurred and be continuing, and whether or not the Lenders
shall have accelerated the maturity of the Loans pursuant to ss.13.1, each
Lender may proceed to protect and enforce its rights by suit in equity, action
at law or other appropriate proceeding, whether for the specific performance of
any covenant or agreement contained in this Credit
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Agreement and the other Loan Documents or any instrument pursuant to which the
Obligations to such Lender are evidenced, including, without limitation, as
permitted by applicable law the obtaining of the ex parte appointment of a
receiver, and, if such amount shall have become due, by declaration or
otherwise, proceed to enforce the payment thereof or any legal or equitable
right of such Lender, provided that, if any of the Collateral is Real Property
located in California, Louisiana or any other state or province having a one
form of action rule or any rule which might impair the Collateral, then prior to
initiating any such proceeding, such Lender shall have supplied the
Administrative Agent with opinions of nationally recognized law firms
specializing in California law, Louisiana law, and the law of any other state or
province, as applicable, having a one form of action rule to the effect that
actions by such Lender under such circumstances shall not constitute an action
for purposes of such state's or province's one form of action rule or in any
other way impair the Collateral. No remedy herein conferred upon any Lender or
the Administrative Agent or the holder of any Note or purchaser of any Letter of
Credit Participation is intended to be exclusive of any other remedy and each
and every remedy shall be cumulative and shall be in addition to every other
remedy given hereunder or now or hereafter existing at law or in equity or by
statute or any other provision of law.
SS.13.4. DISTRIBUTION OF COLLATERAL PROCEEDS. In the event that,
following the occurrence or during the continuance of any Event of Default, the
Administrative Agent or any Lender, as the case may be, receives any monies in
connection with the enforcement of any of the Security Documents, or otherwise
with respect to the realization upon any of the Collateral, such monies shall be
distributed for application as follows:
(a) First, to the payment of, or (as the case may be)
the reimbursement of the Administrative Agent for or in
respect of all reasonable costs, expenses, fees, disbursements
and losses which shall have been incurred or sustained by the
Administrative Agent in connection with the collection of such
monies by the Administrative Agent, for the exercise,
protection or enforcement by the Administrative Agent of all
or any of the rights, remedies, powers and privileges of the
Administrative Agent under this Credit Agreement or any of the
other Loan Documents or in respect of the Collateral or in
support of any provision of adequate indemnity to the
Administrative Agent against any taxes or liens which by law
shall have, or may have, priority over the rights of the
Administrative Agent to such monies;
(b) Second, notwithstanding anything to the contrary
set forth herein, to the payment of the Lenders, be
distributed pari passu in accordance with the aggregate
outstanding principal amount of, or held as cash collateral
for, the Obligations (including the Maximum Drawing Amount of
Letters of Credit outstanding) owing to each Lender divided by
the aggregate outstanding principal amount of all Obligations
(including the Maximum Drawing Amount
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of Letters of Credit outstanding), provided that upon the
expiration or termination of any Letters of Credit, the
Maximum Drawing Amount which has been included in calculating
outstanding Obligations and any cash collateral held for the
benefit of the Revolving Credit Lenders in respect thereto
will be redistributed pari passu to the Lenders in accordance
with this paragraph (b);
(c) Third, upon payment and satisfaction in full or
other provisions for payment in full satisfactory to the
Lenders and the Administrative Agent of all of the
Obligations, to the payment of any obligations required to be
paid pursuant to ss.9-504(1)(c) of the Uniform Commercial Code
of the State of New York; and
(d) Fourth, the excess, if any, shall be returned to
the Borrowers or to such other Persons as are entitled
thereto.
SS.14. SETOFF. Regardless of the adequacy of any Collateral, during
the continuance of an Event of Default, any deposits or other sums credited by
or due from any Lender to any Borrower and any securities or other property of
any Borrower in the possession of such Lender may be applied to or set off
against the payment of the Obligations and any and all other liabilities, direct
or indirect, absolute or contingent, due or to become due, now existing or
hereafter arising, of any Borrower to the Lenders. The Lenders agree among
themselves that, if a Lender shall obtain payment on any Obligation outstanding
under this Credit Agreement through the exercise of a right of offset, banker's
lien or counterclaim, or from any other source including under ss.13.3 (other
than by way of a pro rata payment under this Credit Agreement), it shall
promptly make such adjustments with the other Lenders as shall be equitable to
the end that all the Lenders shall share the benefits of such payments pro rata
in accordance with each Lender's Loan Percentage immediately prior to the
payment obtained by such Lender as aforesaid. The Lenders further agree among
themselves that if any payment to a Lender obtained by such Lender through the
exercise of a right of offset, banker's lien or counterclaim, or from any other
source (other than by way of a pro rata payment) as aforesaid shall be rescinded
or must otherwise be restored, the Lenders who shall have shared the benefit of
such payment shall return their share of that benefit to the Lender whose
payment shall have been rescinded or otherwise restored.
SS.15. THE ADMINISTRATIVE AGENT.
SS.15.1. AUTHORIZATION.
(a) The Administrative Agent is authorized to take such action on
behalf of each of the Lenders and to exercise all such powers as are
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hereunder and under any of the other Loan Documents and any related documents
delegated to the Administrative Agent, together with such powers as are
reasonably incident thereto, provided that no duties or responsibilities not
expressly assumed herein or therein shall be implied to have been assumed by the
Administrative Agent.
(b) The relationship between the Administrative Agent and each of the
Lenders is that of an independent contractor. The use of the term
"Administrative Agent" is for convenience only and is used to describe, as a
form of convention, the independent contractual relationship between the
Administrative Agent and each of the Lenders. Nothing contained in this Credit
Agreement nor the other Loan Documents shall be construed to create an agency,
trust or other fiduciary relationship between the Administrative Agent and any
of the Lenders.
(c) As an independent contractor empowered by the Lenders to exercise
certain rights and perform certain duties and responsibilities hereunder and
under the other Loan Documents, the Administrative Agent is nevertheless a
"representative" of the Lenders, as that term is defined in Article 1 of the
Uniform Commercial Code, for purposes of actions for the benefit of the Lenders
and the Administrative Agent with respect to all collateral security and
guaranties contemplated by the Loan Documents. Such actions include the
designation of the Administrative Agent as "secured party", "mortgagee" or the
like on all financing statements and other documents and instruments, whether
recorded or otherwise, relating to the attachment, perfection, priority or
enforcement of any security interests, mortgages or deeds of trust in collateral
security intended to secure the payment or performance of any of the
Obligations, all for the benefit of the Lenders and the Administrative Agent.
SS.15.2. EMPLOYEES AND AGENTS. The Administrative Agent may exercise
its powers and execute its duties by or through employees or agents and shall be
entitled to take, and to rely on, advice of counsel concerning all matters
pertaining to its rights and duties under this Credit Agreement and the other
Loan Documents. The Administrative Agent may utilize the services of such
Persons as the Administrative Agent in its sole discretion may reasonably
determine, and all reasonable fees and expenses of any such Persons shall be
paid by the Borrowers.
SS.15.3. NO LIABILITY. Neither the Administrative Agent nor any of its
shareholders, directors, officers or employees nor any other Person assisting
them in their duties nor any agent or employee thereof, shall be liable for any
waiver, consent or approval given or any action taken, or omitted to be taken,
in good faith by it or them hereunder or under any of the other Loan Documents,
or in connection herewith or therewith, or be responsible for the consequences
of any oversight or error of judgment whatsoever, except that the Administrative
Agent or such other Person, as the case may be, may be liable for losses due to
its willful misconduct or gross negligence.
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SS.15.4. NON-RELIANCE ON AGENT AND OTHER BANKS. Each Lender represents
that it has, independently and without reliance on the Administrative Agent or
any other Lender, and based on such documents and information as it has deemed
appropriate, made its own appraisal of the financial condition and affairs of
the Borrowers and decision to enter into this Credit Agreement and the other
Loan Documents and agrees that it will, independently and without reliance upon
the Administrative Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
appraisals and decisions in taking or not taking action under this Credit
Agreement or any other Loan Document. The Administrative Agent shall not be
required to keep informed as to the performance or observance by the Borrowers
of this Credit Agreement, the other Loan Documents or any other document
referred to or provided for herein or therein or by any other Person of any
other agreement or to make inquiry of, or to inspect the properties or books of,
any Person. Except for notices, reports and other documents and information
expressly required to be furnished to the Lenders by the Administrative Agent
hereunder, the Administrative Agent shall not have any duty or responsibility to
provide any Lender with any credit or other information concerning any person
which may come into the possession of the Administrative Agent or any of its
affiliates. Each Lender shall have access to all documents relating to the
Administrative Agent's performance of its duties hereunder at such Lender's
request. Unless any Lender shall promptly object to any action taken by the
Administrative Agent hereunder (other than actions to which the provisions of
ss.27 are applicable and other than actions which constitute gross negligence or
willful misconduct by the Administrative Agent), such Lender shall conclusively
be presumed to have approved the same.
SS.15.5. NO REPRESENTATIONS.
SS.15.5.1. GENERAL. The Administrative Agent shall not be
responsible for the execution or validity or enforceability of this
Credit Agreement, the Notes, the Letters of Credit, any of the other
Loan Documents or any instrument at any time constituting, or intended
to constitute, collateral security for the Notes, or for the value of
any such collateral security or for the validity, enforceability or
collectability of any such amounts owing with respect to the Notes, or
for any recitals or statements, warranties or representations made
herein or in any of the other Loan Documents or in any certificate or
instrument hereafter furnished to it by or on behalf of any Borrower,
or be bound to ascertain or inquire as to the performance or observance
of any of the terms, conditions, covenants or agreements herein or in
any instrument at any time constituting, or intended to constitute,
collateral security for the Notes or to inspect any of the properties,
books or records of any Borrower. The Administrative Agent shall not be
bound to ascertain whether any notice, consent, waiver or request
delivered to it by the Borrowers or any holder of any of the Notes
shall have been duly authorized or is true, accurate and
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complete. The Administrative Agent has not made nor does it now make
any representations or warranties, express or implied, nor does it
assume any liability to the Lenders, with respect to the credit
worthiness or financial conditions of any Borrower. Each Lender
acknowledges that it has, independently and without reliance upon the
Administrative Agent or any other Lender, and based upon such
information and documents as it has deemed appropriate, made its own
credit analysis and decision to enter into this Credit Agreement.
SS.15.5.2. CLOSING DOCUMENTATION, ETC. For purposes of
determining compliance with the conditions set forth in ss.10, each
Lender that has executed this Credit Agreement shall be deemed to have
consented to, approved or accepted, or to be satisfied with, each
document and matter either sent, or made available, by the
Administrative Agent or the Arranger to such Lender for consent,
approval, acceptance or satisfaction, unless an officer of the
Administrative Agent or the Arranger active upon the Borrowers' account
shall have received notice from such Lender prior to the Closing Date
specifying such Lender's objection thereto and such objection shall not
have been withdrawn by notice to the Administrative Agent or the
Arranger to such effect on or prior to the Closing Date.
SS.15.6. PAYMENTS.
SS.15.6.1. PAYMENTS TO ADMINISTRATIVE AGENT. A payment by the
Borrower to the Administrative Agent hereunder or any of the other Loan
Documents for the account of any Lender shall constitute a payment to
such Lender. The Administrative Agent agrees promptly to distribute to
each Lender such Lender's pro rata share (based on such Lender's Loan
Percentage) of payments received by the Administrative Agent for the
account of the Lenders except as otherwise expressly provided herein or
in any of the other Loan Documents.
SS.15.6.2. DISTRIBUTION BY ADMINISTRATIVE AGENT. If in the
opinion of the Administrative Agent the distribution of any amount
received by it in such capacity hereunder, under the Notes or under any
of the other Loan Documents might involve it in liability, it may
refrain from making distribution until its right to make distribution
shall have been adjudicated by a court of competent jurisdiction. If a
court of competent jurisdiction shall adjudge that any amount received
and distributed by the Administrative Agent is to be repaid, each
Person to whom any such distribution shall have been made shall either
repay to the Administrative Agent its proportionate share of the amount
so adjudged to be repaid or shall pay over the same in such manner and
to such Persons as shall be determined by such court.
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SS.15.6.3. DELINQUENT LENDERS. Notwithstanding anything to the
contrary contained in this Credit Agreement or any of the other Loan
Documents, any Lender that fails (i) when required hereunder to make
available to the Administrative Agent its pro rata share of any Loan or
to purchase any Letter of Credit Participation or (ii) to comply with
the provisions of ss.14 with respect to making dispositions and
arrangements with the other Lenders, where such Lender's share of any
payment received, whether by setoff or otherwise, is in excess of its
pro rata share of such payments due and payable to all of the Lenders,
in each case as, when and to the full extent required by the provisions
of this Credit Agreement, shall be deemed delinquent (a "Delinquent
Lender") and shall be deemed a Delinquent Lender until such time as
such delinquency is satisfied. A Delinquent Lender shall be deemed to
have assigned any and all payments due to it from the Borrowers,
whether on account of outstanding Loans, unpaid Reimbursement
Obligations, interest, fees or otherwise, to the remaining
nondelinquent Lenders for application to, and reduction of, their
respective pro rata shares of all outstanding Loans and unpaid
Reimbursement Obligations. The Delinquent Lender hereby authorizes the
Administrative Agent to distribute such payments to the nondelinquent
Lenders in proportion to their respective pro rata shares of all
outstanding Loans and unpaid Reimbursement Obligations. A Delinquent
Lender shall be deemed to have satisfied in full a delinquency when and
if, as a result of application of the assigned payments to all
outstanding Loans and unpaid Reimbursement Obligations of the
nondelinquent Lenders, the Lenders' respective pro rata shares of all
outstanding Loans and unpaid Reimbursement Obligations have returned to
those in effect immediately prior to such delinquency and without
giving effect to the nonpayment causing such delinquency. A Delinquent
Lender shall not be entitled to vote on any matters under this Credit
Agreement or the other Loan Documents until such delinquency is
satisfied in accordance with this ss.15.6.3, other than matters
specified in ss.27 that require the consent of each Lender affected
thereby (and such Delinquent Lender is affected thereby) or the consent
of all Lenders.
SS.15.7. HOLDERS OF NOTES. The Administrative Agent may deem and treat
the payee of any Note or the purchaser of any Letter of Credit Participation as
the absolute owner or purchaser thereof for all purposes hereof until it shall
have been furnished in writing with a different name by such payee or by a
subsequent holder, assignee or transferee.
SS.15.8. INDEMNITY. The Lenders ratably (based on such Lender's Loan
Percentage) agree hereby to indemnify and hold harmless the Administrative
Agent, its affiliates and the Documentation Agent from and against any and all
claims, actions and suits (whether groundless or otherwise), losses, damages,
costs, expenses, and liabilities of every nature and character arising out of or
related to this Credit Agreement, the Notes,
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or any of the other Loan Documents or the transactions contemplated or evidenced
hereby or thereby, or the Administrative Agent's, such affiliates or the
Documentation Agent's actions taken hereunder or thereunder, except to the
extent that (a) the Administrative Agent, such affiliate or the Documentation
Agent has been reimbursed by the Borrowers as required by ss.16 or (b) any of
the same shall be directly caused by the Administrative Agent's, such affiliates
or the Documentation Administrative Agent's willful misconduct or gross
negligence.
SS.15.9. ADMINISTRATIVE AGENT AS LENDER. In its individual capacity,
BKB shall have the same obligations and the same rights, powers and privileges
in respect to its Commitment and the Loans made by it, and as the holder of any
of the Notes and as the purchaser of any Letter of Credit Participations, as it
would have were it not also the Administrative Agent. In its individual
capacity, LaSalle shall have the same obligations and the same rights, powers
and privileges in respect to its Commitment and the Loans made by it, and as the
holder of any of the Notes and as the purchaser of any Letter of Credit
Participations, as it would have were it not also the Documentation Agent.
SS.15.10. RESIGNATION. The Administrative Agent may resign at any time
by giving sixty (60) days prior written notice thereof to the Lenders and the
Borrowers. Upon any such resignation, the Majority Lenders shall have the right
to appoint a successor Administrative Agent. Unless a Default or Event of
Default shall have occurred and be continuing, such successor Administrative
Agent shall be reasonably acceptable to the Borrowers. If no successor
Administrative Agent shall have been so appointed by the Majority Lenders and
shall have accepted such appointment within thirty (30) days after the retiring
Administrative Agent's giving of notice of resignation, then the retiring
Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent, which shall be a financial institution having a rating of
not less than A or its equivalent by Standard & Poor's Ratings Group. Upon the
acceptance of any appointment as Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Administrative Agent, and the retiring Administrative Agent
shall be discharged from its duties and obligations hereunder. After any
retiring Administrative Agent's resignation, the provisions of this Credit
Agreement and the other Loan Documents shall continue in effect for its benefit
in respect of any actions taken or omitted to be taken by it while it was acting
as Administrative Agent.
SS.15.11. NOTIFICATION OF DEFAULTS AND EVENTS OF DEFAULT. Each Lender
hereby agrees that, upon learning of the existence of a Default or an Event of
Default, it shall promptly notify the Administrative Agent thereof. The
Administrative Agent hereby agrees that upon receipt of any notice under this
ss.15.11 it shall promptly notify the other Lenders of the existence of such
Default or Event of Default.'
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SS.15.12. DUTIES IN THE CASE OF ENFORCEMENT. In case one of more Events
of Default have occurred and shall be continuing, and whether or not
acceleration of the Obligations shall have occurred, the Administrative Agent
shall, if (i) so requested by the Majority Lenders and (ii) the Lenders have
provided to the Administrative Agent such additional indemnities and assurances
against expenses and liabilities as the Administrative Agent may reasonably
request, proceed to enforce the provisions of the Security Documents authorizing
the sale or other disposition of all or any part of the Collateral and exercise
all or any such other legal and equitable and other rights or remedies as it may
have in respect of such Collateral. The Majority Lenders may direct the
Administrative Agent in writing as to the method and the extent of any such sale
or other disposition, the Lenders hereby agreeing to indemnify and hold the
Administrative Agent, harmless from all liabilities incurred in respect of all
actions taken or omitted in accordance with such directions, provided that the
Administrative Agent need not comply with any such direction to the extent that
the Administrative Agent reasonably believes the Administrative Agent's
compliance with such direction to be unlawful in any applicable jurisdiction.
SS.15.13. DUTIES OF DOCUMENTATION AGENT AND CO-AGENTS. The
Documentation Agent and Co-Agents as such shall have no duties or
responsibilities to the Borrowers, the Lenders or the Administrative Agent
hereunder.
SS.16. EXPENSES AND INDEMNIFICATION.
SS.16.1. EXPENSES. Whether or not the transactions contemplated herein
shall be consummated, the Borrowers jointly and severally agree to pay (i) the
reasonable costs of producing and reproducing this Credit Agreement, the other
Loan Documents and the other agreements and instruments mentioned herein, (ii)
any taxes (including any interest and penalties in respect thereto) payable by
the Administrative Agent or any of the Lenders (other than taxes based upon the
Administrative Agent's or any Lender's net income) on or with respect to the
transactions contemplated by this Credit Agreement (the Borrowers hereby
agreeing to indemnify the Administrative Agent and each Lender with respect
thereto), (iii) the reasonable fees, expenses and disbursements of counsel to
the Administrative Agent incurred in connection with the preparation,
syndication, administration or interpretation of the Loan Documents and other
instruments mentioned herein, each closing hereunder, any amendments,
modifications, approvals, consents or waivers hereto or hereunder, or the
cancellation of any Loan Document upon payment in full in cash of all of the
Obligations or pursuant to any terms of such Loan Document providing for such
cancellation, (iv) the fees, expenses and disbursements of the Administrative
Agent, the Arranger, or any of their affiliates incurred by the Administrative
Agent, the Arranger, or such affiliate in connection with the preparation,
syndication, administration or interpretation of the Loan Documents and other
instruments mentioned
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herein, including all appraisal charges, (v) all reasonable out-of-pocket
expenses (including without limitation reasonable attorneys' fees and costs,
other than attorneys which are employees of any Lender or the Administrative
Agent, and reasonable consulting, accounting, appraisal, investment banking and
similar professional fees and charges) incurred by any Lender or the
Administrative Agent in connection with (A) the enforcement of or preservation
of rights under any of the Loan Documents against any Borrower or the
administration thereof after the occurrence of a Default or Event of Default and
(B) any litigation, proceeding or dispute whether arising hereunder or
otherwise, in any way related to any Lender's or the Administrative Agent's
relationship with any Borrower and (vi) all reasonable fees, expenses and
disbursements of the Administrative Agent incurred in connection with UCC
searches and UCC filings.
SS.16.2. INDEMNIFICATION. The Borrowers agree to indemnify and hold
harmless the Administrative Agent, their affiliates, the Arranger and the
Lenders from and against any and all claims, actions and suits whether
groundless or otherwise, and from and against any and all liabilities, losses,
damages and expenses of every nature and character arising out of this Credit
Agreement or any of the other Loan Documents or the transactions contemplated
hereby including, without limitation, (i) any actual or proposed use by the
Borrowers of the proceeds of any of the Loans or Letters of Credit, (ii) the
Borrowers entering into or performing this Credit Agreement or any of the other
Loan Documents or (iii) with respect to the Borrowers and their respective
properties and assets, the violation of any Environmental Law, the presence,
disposal, escape, seepage, leakage, spillage, discharge, emission, release or
threatened release of any Hazardous Substances or any action, suit, proceeding
or investigation brought or threatened with respect to any Hazardous Substances
(including, but not limited to, claims with respect to wrongful death, personal
injury or damage to property), in each case including, without limitation, the
reasonable fees and disbursements of counsel (excluding the allocated costs of
internal counsel) incurred in connection with any such investigation, litigation
or other proceeding except for claims, actions, suits, liabilities, losses,
damages and expenses arising from the gross negligence or willful misconduct of
the Administrative Agent, such affiliate or such Lender. In litigation, or the
preparation therefor, the Lenders, the Administrative Agent, the Arranger and
their affiliates shall be entitled to select their own counsel and, in addition
to the foregoing indemnity, the Borrowers agree to pay promptly the reasonable
fees and expenses of such counsel for each Lender and the Administrative Agent.
If, and to the extent that the obligations of the Borrowers under this ss.16.2
are unenforceable for any reason, the Borrowers hereby agree to make the maximum
contribution to the payment in satisfaction of such obligations which is
permissible under applicable law.
SS.16.3. SURVIVAL. The covenants contained in this ss.16 shall survive
payment or satisfaction in full of all other Obligations.
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SS.17. SURVIVAL OF COVENANTS, ETC. Unless otherwise stated herein,
all covenants, agreements, representations and warranties made herein, in the
Notes, in the other Loan Documents or in any documents or other papers delivered
by or on behalf of the Borrowers pursuant hereto shall be deemed to have been
relied upon by the Lenders and the Administrative Agent, notwithstanding any
investigation heretofore or hereafter made by any of them, and shall survive the
making by the Lenders of the Loans and the issuance, extension or renewal of any
Letters of Credit, as herein contemplated, and shall continue in full force and
effect so long as any amount due under this Credit Agreement, any Letter of
Credit or the Notes remains outstanding and unpaid or any Lender has any
obligation to make any Loans or the Administrative Agent has any obligation to
issue any Letters of Credit hereunder. All statements contained in any
certificate or other paper delivered by or on behalf of the Borrowers pursuant
hereto or in connection with the transactions contemplated hereby shall
constitute representations and warranties by the Borrowers hereunder.
SS.18. ASSIGNMENT AND PARTICIPATION.
SS.18.1. CONDITIONS TO ASSIGNMENT BY LENDERS. Except as provided
herein, each Lender may assign to one or more Eligible Assignees all or a
portion of its interests, rights and obligations under this Credit Agreement
(including all or a portion of its Commitment Percentage and Commitment and the
same portion of the Revolving Credit Loans and/or all or a portion of its Term
Loan at the time owing to it, the Revolving Credit Note or Term Note held by it
and, if applicable, its participating interest in the risk relating to any
Letters of Credit or Swing Line Loans); provided that (i) each of the
Administrative Agent and, unless a Default or Event of Default shall have
occurred and be continuing, the Parent (as the representative of the Borrowers)
shall have given its prior written consent to such assignment, which consent
will not be unreasonably withheld, (ii) each such assignment shall be of a
constant, and not a varying, percentage of all the assigning Lender's rights and
obligations under this Credit Agreement, provided, however, that nothing
contained herein shall restrict any Lender from making a non-pro rata assignment
of its Loans, (iii) each assignment shall be in a minimum amount of $5,000,000,
or, if less, the entire Commitment of such Lender and (iv) the parties to such
assignment shall execute and deliver to the Administrative Agent, for recording
in the Register (as hereinafter defined), an Assignment and Acceptance,
substantially in the form of Exhibit E hereto (an "Assignment and Acceptance"),
together with any Notes subject to such assignment. Upon such execution,
delivery, acceptance and recording, from and after the effective date specified
in each Assignment and Acceptance, which effective date shall be at least five
(5) Business Days after the execution thereof, (i) the assignee thereunder shall
be a party hereto and, to the extent provided in such Assignment and Acceptance,
have the rights and obligations of a Lender hereunder, and (ii) the assigning
Lender shall, to the extent provided in such assignment and upon payment to the
Administrative Agent of the registration fee referred to in ss.18.3, be released
from its obligations under this Credit Agreement.
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SS.18.2. CERTAIN REPRESENTATIONS AND WARRANTIES; LIMITATIONS;
COVENANTS. By executing and delivering an Assignment and Acceptance, the parties
to the assignment thereunder confirm to and agree with each other and the other
parties hereto as follows:
(a) other than the representation and warranty that it is the legal
and beneficial owner of the interest being assigned thereby free and clear of
any adverse claim, the assigning Lender makes no representation or warranty,
express or implied, and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Credit Agreement or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Credit Agreement, the other Loan
Documents or any other instrument or document furnished pursuant hereto or the
attachment, perfection or priority of any security interest,
(b) the assigning Lender makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the
Borrowers or any other Person primarily or secondarily liable in respect of any
of the Obligations, or the performance or observance by the Borrowers or any
other Person primarily or secondarily liable in respect of any of the
Obligations of any of their obligations under this Credit Agreement or any of
the other Loan Documents or any other instrument or document furnished pursuant
hereto or thereto;
(c) such assignee confirms that it has received a copy of this Credit
Agreement, together with copies of the most recent financial statements referred
to in ss.7.4 and ss.8.4 and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
such Assignment and Acceptance;
(d) such assignee will, independently and without reliance upon the
assigning Lender, the Administrative Agent or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under this Credit
Agreement;
(e) such assignee represents and warrants that it is an Eligible
Assignee;
(f) such assignee appoints and authorizes the Administrative Agent to
take such action as agent on its behalf and to exercise such powers under this
Credit Agreement and the other Loan Documents as are delegated to the
Administrative Agent by the terms hereof or thereof, together with such powers
as are reasonably incidental thereto;
(g) such assignee agrees that it will perform in accordance with
their terms all of the obligations that by the terms of this Credit Agreement
are required to be performed by it as a Lender;
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(h) such assignee represents and warrants that it is legally
authorized to enter into such Assignment and Acceptance; and
(i) if applicable, such assignee acknowledges that it has made
arrangements with the assigning Lender satisfactory to such assignee with
respect to its pro rata share of Letter of Credit Fees in respect of outstanding
Letters of Credit.
SS.18.3. REGISTER. The Administrative Agent shall maintain a copy of
each Assignment and Acceptance delivered to it and a register or similar list
(the "Register") for the recordation of the names and addresses of the Lenders
and the Commitment Percentage of, and principal amount of the Loans owing to and
Letter of Credit Participations purchased by, the Lenders from time to time. The
entries in the Register shall be conclusive, in the absence of manifest error,
and the Borrowers, the Administrative Agent and the Lenders may treat each
Person whose name is recorded in the Register as a Lender hereunder for all
purposes of this Credit Agreement. The Register shall be available for
inspection by the Borrowers and the Lenders at any reasonable time and from time
to time upon reasonable prior notice. Upon each such recordation, the assigning
Lender (or, in the case that the assignee Lender is a Replacement Lender, the
Replacement Lender) agrees to pay to the Administrative Agent a registration fee
in the sum of $3,500, provided, however, that no such fee shall be payable in
the case of an assignment between existing Lenders or between a Lender and an
Affiliate of such Lender and, provided further that in the case of
contemporaneous assignments by a Lender to more than one fund that invest in
loans and that are managed by the same investment advisor (which funds are not
Lenders hereunder), only one such fee shall be payable for all such
contemporaneous assignments.
SS.18.4. NEW NOTES. Upon its receipt of an Assignment and Acceptance
executed by the parties to such assignment, together with each Note subject to
such assignment, the Administrative Agent shall (i) record the information
contained therein in the Register, and (ii) give prompt notice thereof to the
Borrower and the Lenders (other than the assigning Lender). Within five (5)
Business Days after receipt of such notice, the Borrowers, at their own expense,
shall execute and deliver to the Administrative Agent, in exchange for each
surrendered Note, a new Note or Notes to the order of such Eligible Assignee in
an amount equal to the amount assumed by such Eligible Assignee pursuant to such
Assignment and Acceptance and, if the assigning Lender has retained some portion
of its obligations hereunder, a new Note or Notes to the order of the assigning
Lender in an amount equal to the amount retained by it hereunder. Such new Note
or Notes shall provide that they are replacements for the surrendered Notes,
shall be in an aggregate principal amount equal to the aggregate principal
amount of the surrendered Notes, shall be dated the effective date of such in
Assignment and Acceptance and shall otherwise be substantially the form of the
assigned Note or Notes. Within five (5) days of issuance of any new Notes
pursuant to this ss.18.4, if requested by the assignor or assignee Lender, the
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Borrowers shall deliver an opinion of counsel, addressed to the Lenders and the
Administrative Agent, relating to the due authorization, execution and delivery
of such new Note or Notes and the legality, validity and binding effect thereof,
in form and substance satisfactory to the Lenders. The surrendered Notes shall
be cancelled and returned to the Borrowers.
SS.18.5. PARTICIPATIONS. Each Lender may sell participations to one or
more Lenders or other entities in all or a portion of such Lender's rights and
obligations under this Credit Agreement and the other Loan Documents; provided
that (i) each such participation shall be in an amount of not less than
$5,000,000, (ii) any such sale or participation shall not affect the rights and
duties of the selling Lender hereunder to the Borrowers and (iii) the only
rights granted to the participant pursuant to such participation arrangements
with respect to waivers, amendments or modifications of the Loan Documents shall
be the rights to approve waivers, amendments or modifications that would reduce
the principal of or the interest rate on any Loans, extend the term or increase
the amount of the Commitment of such Lender as it relates to such participant,
reduce the amount of any fees to which such participant is entitled or extend
any regularly scheduled payment date for principal or interest.
SS.18.6. DISCLOSURE. Each Borrower agrees that in addition to
disclosures made in accordance with standard and customary lending practices any
Lender may disclose information obtained by such Lender pursuant to this Credit
Agreement to assignees or participants and potential assignees or participants
hereunder; provided that such assignees or participants or potential assignees
or participants shall agree (i) to treat in confidence such information unless
such information otherwise becomes public knowledge, (ii) not to disclose such
information to a third party, except as required by law or legal process and
(iii) not to make use of such information for purposes of transactions unrelated
to such contemplated assignment or participation.
SS.18.7. ASSIGNEE OR PARTICIPANT AFFILIATED WITH A BORROWER. If any
assignee Lender is an Affiliate of any Borrower, then any such assignee Lender
shall have no right to vote as a Lender hereunder or under any of the other Loan
Documents for purposes of granting consents or waivers or for purposes of
agreeing to amendments or other modifications to any of the Loan Documents or
for purposes of making requests to the Administrative Agent pursuant to ss.13.1
or ss.13.2, and the determination of the Majority Lenders shall for all purposes
of this Credit Agreement and the other Loan Documents be made without regard to
such assignee Lender's interest in any of the Loans or Reimbursement
Obligations. If any Lender sells a participating interest in any of the Loans or
Reimbursement Obligations to a participant, and such participant is a Borrower
or an Affiliate of a Borrower, then such transferor Lender shall promptly notify
the Administrative Agent of the sale of such participation. A transferor Lender
shall have no right to vote as a Lender hereunder or under any of the other Loan
Documents for purposes of granting consents or waivers or for purposes of
agreeing to
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amendments or modifications to any of the Loan Documents or for purposes of
making requests to the Administrative Agent pursuant to ss.13.1 or ss.13.2 to
the extent that such participation is beneficially owned by a Borrower or any
Affiliate of a Borrower, and the determination of the Majority Lenders shall for
all purposes of this Credit Agreement and the other Loan Documents be made
without regard to the interest of such transferor Lender in the Loans or
Reimbursement Obligations to the extent of such participation.
SS.18.8. MISCELLANEOUS ASSIGNMENT PROVISIONS. Any assigning Lender
shall retain its rights to be indemnified pursuant to ss.16 with respect to any
claims or actions arising prior to the date of such assignment. If any assignee
Lender is not incorporated under the laws of the United States of America or any
state thereof, it shall, prior to the date on which any interest or fees are
payable hereunder or under any of the other Loan Documents for its account,
deliver to the Borrower and the Administrative Agent certification as to its
exemption from deduction or withholding of any United States federal income
taxes. Anything contained in this ss.18 to the contrary notwithstanding, any
Lender may at any time pledge all or any portion of its interest and rights
under this Credit Agreement (including all or any portion of its Notes) to (a)
any of the twelve Federal Reserve Banks organized under ss.4 of the Federal
Reserve Act, 12 U.S.C. ss.341 or (b) to a lender or such bank (or trustee
therefor) in connection with a bona fide financing. No such pledge or the
enforcement thereof shall release the pledgor Lender from its obligations
hereunder or under any of the other Loan Documents, provide any voting rights
hereunder to the pledgee thereof, or affect any rights or obligations of the
Borrowers or the Administrative Agent hereunder. Notwithstanding any contained
herein to the contrary, no assignment or participation shall operate to increase
the Total Commitment hereunder or otherwise alter the substantive terms of this
Credit Agreement.
SS.18.9. ASSIGNMENT BY BORROWERS. None of the Borrowers shall assign or
transfer any of its rights or obligations under any of the Loan Documents
without the prior written consent of each of the Lenders.
SS.19. PARTIES IN INTEREST. All the terms of this Credit Agreement
and the other Loan Documents shall be binding upon and inure to the benefit of
and be enforceable by the respective successors and assigns of the parties
hereto and thereto.
SS.20. NOTICES, ETC. Except as otherwise expressly provided in this
Credit Agreement, all notices and other communications made or required to be
given pursuant to this Credit Agreement or the other Loan Documents shall be in
writing and shall be delivered in hand, mailed by United States first-class
mail, postage prepaid, or sent by telegraph, telecopy, telex or facsimile and
confirmed by delivery via courier or postal service, addressed as follows:
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(a) if to the Borrowers, at NationsRent Inc., 450 E. Los Olas
Blvd., Suite 1400, Ft. Lauderdale, Florida 33301, Attention: Gene J. Ostrow,
Executive Vice President, telephone number (954)-760-6550, fax number
(954)-760-6585;
(b) if to the Administrative Agent or BKB, at 100 Federal Street,
Boston, Massachusetts 02110, Attention: Timothy M. Laurion, Director, telephone
number 617-434-9689, fax number 617-434-2160; and
(c) if to any Lender, at such Lender's address set forth on
Schedule 1 hereto;
or, in each case, such other address for notice as shall have last been
furnished in writing to the Person giving the notice.
Any such notice or demand shall be deemed to have been duly given or
made and to have become effective (a) if delivered by hand, overnight courier or
facsimile to a responsible officer of the party to which it is directed, at the
time of the receipt thereof by such officer or the sending of such facsimile,
(b) if sent by registered or certified first-class mail, postage prepaid, five
Business Days after the posting thereof, and (c) if sent by telex or cable, at
the time of the dispatch thereof, if in normal business hours in the country of
receipt, or otherwise at the opening of business on the following Business Day.
SS.21. TREATMENT OF CERTAIN CONFIDENTIAL INFORMATION.
SS.21.1. SHARING OF INFORMATION WITH SECTION 20 SUBSIDIARY. Each
Borrower acknowledges that from time to time financial advisory, investment
banking and other services may be offered or provided to the Borrowers, in
connection with this Credit Agreement or otherwise, by a Section 20 Subsidiary.
Each Borrower hereby authorizes (a) such Section 20 Subsidiary to share with the
Administrative Agent and each Lender any information delivered to such Section
20 Subsidiary by such Borrower, and (b) the Administrative Agent and each Lender
to share with such Section 20 Subsidiary any information delivered to the
Administrative Agent or such Lender by the Borrowers pursuant to this Credit
Agreement, or in connection with the decision of such Lender to enter into this
Credit Agreement; it being understood, in each case, that any such Section 20
Subsidiary receiving such information shall be bound by the confidentiality
provisions of this Credit Agreement. Such authorization shall survive the
payment and satisfaction in full of all of the Obligations.
SS.21.2. CONFIDENTIALITY. Each of the Lenders and the Administrative
Agent agrees, on behalf of itself and each of their affiliates, directors,
officers, employees and representatives, to use reasonable precautions to keep
confidential, in accordance with their customary procedures for handling
confidential information of the same nature and in accordance
-91-
<PAGE> 99
with safe and sound commercial lending practices, any non-public information
supplied to it by the Borrowers pursuant to this Credit Agreement unless such
information is identified by such Person as not being confidential at the time
the same is delivered to the Lenders or the Administrative Agent, provided that
nothing herein shall limit the disclosure of any such information (a) after such
information shall have become public other than through a violation of this
ss.21, (b) to the extent required by statute, rule, regulation or judicial
process, (c) to counsel for any of the Lenders or the Administrative Agent, (d)
to bank examiners or any other regulatory authority having jurisdiction over any
Lender or the Administrative Agent, or to auditors or accountants, (e) to the
Administrative Agent, any Lender or any Section 20 Subsidiary, (f) in connection
with any litigation to which any one or more of the Lenders, the Administrative
Agent or any Section 20 Subsidiary is a party, or in connection with the
enforcement of rights or remedies hereunder or under any other Loan Document,
(g) to a subsidiary or affiliate of such Lender or (h) to any assignee or
participant (or prospective assignee or participant) so long as such assignee or
participant agrees to be bound by the provisions of this ss.21.
SS.21.3. PRIOR NOTIFICATION. Unless specifically prohibited by
applicable law or court order, each of the Lenders and the Administrative Agent
shall, prior to disclosure thereof, notify the Borrowers of any request for
disclosure of any such non-public information by any governmental agency or
representative thereof (other than any such request in connection with an
examination of such Lender by such governmental agency) or pursuant to legal
process.
SS.21.4. OTHER. In no event shall any Lender or the Administrative
Agent be obligated or required to return any materials furnished to it or any
Section 20 Subsidiary by the Borrowers. The obligations of each Lender under
this ss.21 shall supersede and replace the obligations of such Lender under any
confidentiality letter in respect of this financing signed and delivered by such
Lender to the Borrowers prior to the date hereof and shall be binding upon any
assignee of, or purchaser of any participation in, any interest in any of the
Loans or Reimbursement Obligations from any Lender.
SS.22. MISCELLANEOUS. The rights and remedies herein expressed are
cumulative and not exclusive of any other rights which the Lenders or
Administrative Agent would otherwise have. The captions in this Credit Agreement
are for convenience of reference only and shall not define or limit the
provisions hereof. This Credit Agreement and any amendment hereof may be
executed in several counterparts and by each party on a separate counterpart,
each of which when so executed and delivered shall be an original, but all of
which together shall constitute one instrument. In proving this Credit Agreement
it shall not be necessary to produce or account for more than one such
counterpart signed by the party against whom enforcement is sought.
-92-
<PAGE> 100
SS.23. ENTIRE AGREEMENT, ETC. The Loan Documents and any other
documents executed in connection herewith or therewith express the entire
understanding of the parties with respect to the transactions contemplated
hereby. Neither this Credit Agreement nor any term hereof may be changed,
waived, discharged or terminated, except as provided in ss.27. No waiver shall
extend to or affect any obligation not expressly waived or impair any right
consequent thereon. No course of dealing or omission on the part of the
Administrative Agent or any Lender in exercising any right shall operate as a
waiver thereof or otherwise be prejudicial thereto. No notice to or demand upon
the Borrowers shall entitle the Borrowers to other or further notice or demand
in similar or other circumstances.
SS.24. WAIVER OF JURY TRIAL. TO THE EXTENT PERMITTED BY APPLICABLE
LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A
JURY TRIAL WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN
CONNECTION WITH THIS CREDIT AGREEMENT, THE NOTES OR ANY OF THE OTHER LOAN
DOCUMENTS, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THEREUNDER OR THE PERFORMANCE
OF SUCH RIGHTS AND OBLIGATIONS. EXCEPT AS PROHIBITED BY LAW, THE BORROWERS
HEREBY WAIVE ANY RIGHT ANY OF THEM MAY HAVE TO CLAIM OR RECOVER IN ANY
LITIGATION REFERRED TO IN THE PRECEDING SENTENCE ANY SPECIAL, EXEMPLARY,
PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO,
ACTUAL DAMAGES. EACH BORROWER (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY LENDER, THE ADMINISTRATIVE AGENT OR ANY AGENT HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH LENDER, THE ADMINISTRATIVE AGENT OR SUCH AGENT
WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS AND
(B) ACKNOWLEDGES THAT THE ADMINISTRATIVE AGENT, THE OTHER AGENTS AND THE LENDERS
HAVE BEEN INDUCED TO ENTER INTO THIS CREDIT AGREEMENT AND THE OTHER LOAN
DOCUMENTS BECAUSE OF, AMONG OTHER THINGS, THE BORROWERS' WAIVERS AND
CERTIFICATIONS CONTAINED HEREIN.
SS.25. GOVERNING LAW; SUBMISSION TO JURISDICTION. THIS CREDIT
AGREEMENT AND EACH OF THE OTHER LOAN DOCUMENTS ARE CONTRACTS UNDER THE LAWS OF
THE STATE OF NEW YORK AND SHALL, PURSUANT TO NEW YORK GENERAL OBLIGATIONS LAW
SS.5-1401, BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE
OF NEW YORK. THE BORROWERS CONSENT AND AGREE THAT ANY SUIT FOR THE ENFORCEMENT
OF THIS CREDIT AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS MAY BE BROUGHT IN
THE COURTS OF THE STATE OF NEW YORK OR ANY FEDERAL COURT SITTING THEREIN AND
CONSENTS TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURT AND SERVICE OF PROCESS
IN ANY SUCH SUIT BEING MADE UPON THE BORROWERS IN
-93-
<PAGE> 101
ACCORDANCE WITH LAW AT THE ADDRESS SPECIFIED IN SS.20. THE BORROWERS HEREBY
WAIVE ANY OBJECTION THAT THEY MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH
SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT COURT.
SS.26. SEVERABILITY. The provisions of this Credit Agreement are
severable and if any one clause or provision hereof shall be held invalid or
unenforceable in whole or in part in any jurisdiction, then such invalidity or
unenforceability shall affect only such clause or provision, or part thereof, in
such jurisdiction, and shall not in any manner affect such clause or provision
in any other jurisdiction, or any other clause or provision of this Credit
Agreement in any jurisdiction.
SS.27. CONSENTS, AMENDMENTS, WAIVERS, ETC. Any consent or approval
required or permitted by this Credit Agreement to bE given by the Lenders may be
given, and any term of this Credit Agreement, the other Loan Documents or any
other instrument related hereto or mentioned herein may be amended, and the
performance or observance by the Borrowers of any terms of this Credit
Agreement, the other Loan Documents or such other instrument or the continuance
of any Default or Event of Default may be waived (either generally or in a
particular instance and either retroactively or prospectively) with, but only
with, the written consent of the Borrowers and the written consent of the
Majority Lenders, provided however, that the Administrative Agent may, in its
reasonable discretion, release Collateral with an aggregate value of $500,000 or
less in any calendar year (in addition to Collateral released pursuant to
ss.8.4.2) provided that the Administrative Agent shall promptly thereafter
notify the Lenders regarding the reasons for such release. Notwithstanding the
foregoing, no amendment, waiver or consent shall do any of the following unless
in writing and signed by the Borrowers and each of the Lenders affected thereby:
(a) increase the Commitments of the Lenders or the principal amount of the Term
Loan or subject any Lender to any additional obligations, (b) reduce the
principal of or the rate of interest (including, without limitation, the default
interest rate) or any fees or postpone the date for payment of fees payable
hereunder, or (c) waive or postpone the date for any mandatory prepayment under
ss.3.4; and FURTHER, no amendment, waiver or consent shall do any of the
following unless in writing and signed by ALL of the Lenders: (d) postpone the
Revolving Credit Maturity Date or Term Loan Maturity Date or any date fixed for
any payment in respect of principal or interest (including, without limitation,
the default interest rate) on the Notes; (e) change the definition of "Majority
Lenders"; "Loan Percentage" or the percentage of Lenders which shall be required
for the Lenders or any of them to take any action under the Loan Documents; (f)
amend this ss.27; (g) release any Collateral with an aggregate value exceeding
$500,000 (in addition to Collateral released pursuant to ss.8.4.2) in any
calendar year or (h) release any Borrower from its obligations hereunder; and
FURTHER, no amendment, waiver or consent shall do any of the following unless in
-94-
<PAGE> 102
writing and signed by the Administrative Agent: (i) amend the amount of the
Administrative Agent's fee or Issuance Fees payable for the Administrative
Agent's account (j) amend ss.15; and further, no amendment, waiver or consent
shall amend ss.2.8 or any other provisions relating to the Swing Line Loans
unless in writing anD signed by BKB or (k) without the written consent of all
Revolving Credit Lenders, change the definition of "Required Revolving Credit
Lenders".
No waiver shall extend to or affect any obligation not expressly waived
or impair any right consequent thereon. No course of dealing or delay or
omission on the part of the Administrative Agent or any Lender in exercising any
right shall operate as a waiver thereof or otherwise be prejudicial thereto. No
notice to or demand upon the Borrowers shall entitle the Borrowers to other or
further notice or demand in similar or other circumstances.
SS.28. TRANSITIONAL ARRANGEMENTS.
SS.28.1. PRIOR LOAN AGREEMENT SUPERSEDED. This Credit Agreement shall
supersede the Prior Credit Agreement in itS entirety, except as provided in this
ss.28. On the Closing Date, the rights and obligations of the parties under the
Prior Credit Agreement shall be subsumed within and be governed by this Credit
Agreement; provided, however, that each of the "Loans" (as defined in the Prior
Credit Agreement) outstanding under the Prior Credit Agreement on the Closing
Date shall, for purposes of this Credit Agreement, be included as Revolving
Credit Loans (as defined herein), Swing Line Loans (as defined herein) or the
Term Loan (as defined herein), as applicable.
SS.28.2. RETURN AND CANCELLATION OF NOTES. As soon as reasonably
practicable after its receipt of its Notes hereunder oN the Closing Date, each
of the Lenders will promptly return to the Parent, marked "Cancelled," any
superseded promissory notes of the Borrowers, and any allonges thereto, held by
such Lender pursuant to the Prior Credit Agreement.
SS.28.3. REFERENCE TO AGENT. Each of the parties hereto agree that all
references to the "Agent" made in any UCC-1 financing statements filed
previously in connection with this Credit Agreement or in any other Loan
Agreement shall be amended and deemed to be references to the "Administrative
Agent" as defined herein.
SS.28.4. INTEREST AND FEES UNDER SUPERSEDED AGREEMENT. All interest and
all commitment, facility and other fees anD expenses owing or accruing under or
in respect of the Prior Credit Agreement shall be calculated as of the Closing
Date (prorated in the case of any fractional periods) and shall be paid on the
dates and in accordance with the method specified in the Prior Credit Agreement,
as if the Prior Credit Agreement were still in effect.
-95-
<PAGE> 103
[Signature Pages Follow]
-96-
<PAGE> 104
IN WITNESS WHEREOF, each of the undersigned have duly executed this
Credit Agreement under seal as of the date first set forth above.
THE BORROWERS:
NATIONSRENT, INC.
A TO Z RENTS IT, INC.
A TO Z RENTS IT, INC. #2
A-ACTION RENTAL, INC.
ACME RENTAL, INC.
ADVANCED CONSTRUCTION EQUIPMENT, INC.
CENTRAL ALABAMA RENTAL CENTER, INC.
GABRIEL TRAILER MANUFACTURING COMPANY, INC.
GOLD COAST AERIAL LIFT, INC.
HIGH REACH COMPANY, INC.
THE J. KELLY CO., INC.
LOGAN EQUIPMENT CORP.
NATIONSRENT AWP COMPANY
NATIONSRENT NORTHEAST, INC.
NATIONSRENT OF ALABAMA, INC.
NATIONSRENT OF CALIFORNIA, INC.
NATIONSRENT OF FLORIDA, INC.
NATIONSRENT OF GEORGIA, INC.
NATIONSRENT OF INDIANA, INC.
NATIONSRENT OF KENTUCKY, INC.
NATIONSRENT OF LOUISIANA, INC.
NATIONSRENT OF MICHIGAN, INC.
NATIONSRENT OF OHIO, INC.
NATIONSRENT OF TENNESSEE, INC.
TENNESSEE TOOL AND SUPPLY, INC.
NATIONSRENT OF TEXAS, INC.
NATIONSRENT OF WEST VIRGINIA, INC.
TITAN RENTALS, INC.
RAYMOND EQUIPMENT CO.
SAM'S EQUIPMENT RENTAL, INC.
SOUTHEAST RENTAL & LEASING, INC.
By: /s/
------------------------------------------
Thomas C. Richardson
Vice President
THE LENDERS:
BANKBOSTON, N.A.,
<PAGE> 105
individually and as Administrative Agent
By: /s/
------------------------------------------
Timothy M. Laurion, Director
LASALLE NATIONAL BANK,
individually and as Documentation Agent
By: /s/
------------------------------------------
Name:
Title:
NATIONSBANK, N.A.,
individually and as Co-Agent
By: /s/
------------------------------------------
Name:
Title:
FLEET BANK, N.A.,
individually and as Co-Agent
By: /s/
------------------------------------------
Name:
Title:
HUNTINGTON NATIONAL BANK
By: /s/
------------------------------------------
Name:
Title:
FIFTH THIRD BANK, CENTRAL OHIO (FORMERLY
KNOWN AS FIFTH THIRD BANK OF COLUMBUS)
By: /s/
------------------------------------------
<PAGE> 106
Name:
Title:
COMERICA BANK
By: /s/
------------------------------------------
Name:
Title:
FIRST UNION NATIONAL BANK
By: /s/
------------------------------------------
Name:
Title:
DEUTSCHE BANK A.G., NEW YORK A
AND/OR CAYMAN ISLAND BRANCH
By: /s/
------------------------------------------
Name:
Title:
By: /s/
------------------------------------------
Name:
Title:
USTRUST
By: /s/
------------------------------------------
Name:
Title:
BANKERS TRUST COMPANY
By: /s/
------------------------------------------
Name:
Title:
<PAGE> 107
NATIONAL CITY BANK
By: /s/
------------------------------------------
Name:
Title:
GENERAL ELECTRIC CAPITAL
CORPORATION
By: /s/
------------------------------------------
Name:
Title:
CITICORP DEL-LEASE, INC.
By: /s/
------------------------------------------
Name:
Title:
ERSTE BANK DER OESTERREICHISCHEN
SPARKASSEN, AG
By: /s/
------------------------------------------
Name:
Title:
By: /s/
------------------------------------------
Name:
Title:
FIRST SOURCE FINANCIAL LLP
By: First Source Financial, Inc.,
Its Agent/Manager
By: /s/
------------------------------------------
Name:
Title:
<PAGE> 108
UNION PLANTERS BANK
By: /s/
------------------------------------------
Name:
Title:
BAY VIEW FINANCIAL CORPORATION
By: /s/
------------------------------------------
Name:
Title:
BAY VIEW BANK
By: /s/
------------------------------------------
Name:
Title:
INDOSUEZ CAPITAL FUNDING IIA,
LIMITED
By: Indosuez Capital,
As Portfolio Advisor
By: /s/
------------------------------------------
Name:
Title:
INDOSUEZ CAPITAL FUNDING III,
LIMITED
By: Indosuez Capital,
As Portfolio Advisor
By: /s/
------------------------------------------
Name:
Title:
<PAGE> 109
ALLSTATE LIFE INSURANCE COMPANY
By: /s/
------------------------------------------
Name:
Title:
By: /s/
------------------------------------------
Name:
Title:
<PAGE> 110
BANK AUSTRIA CREDITANSTALT
CORPORATE FINANCE, INC.
By: /s/
------------------------------------------
Name:
Title:
By: /s/
------------------------------------------
Name:
Title:
FIRST BANK TEXAS, N.A.
By: /s/
------------------------------------------
Name:
Title:
CREDIT LYONNAIS ATLANTA AGENCY
By: /s/
------------------------------------------
Name:
Title:
DRESDNER BANK LATEINAMERIKA
AG, MIAMI AGENCY
By: /s/
------------------------------------------
Name:
Title:
By: /s/
------------------------------------------
Name:
Title:
NATIONSBANK, N.A.
<PAGE> 111
By: /s/
------------------------------------------
Name:
Title:
MERRILL LYNCH SENIOR FLOATING
RATE FUND, INC.
By: /s/
------------------------------------------
Name:
Title:
STEIN ROE FLOATING RATE LIMITED
LIABILITY COMPANY
By: /s/
------------------------------------------
Name:
Title:
STEIN ROE & FARNHAM INCORPORATED,
AS AGENT FOR KEYPORT LIFE
INSURANCE COMPANY
By: /s/
------------------------------------------
Name:
Title:
UNION BANK OF CALIFORNIA, N.A.
By: /s/
------------------------------------------
Name:
Title:
<PAGE> 1
EXHIBIT 4.7
FIRST AMENDMENT TO
THIRD AMENDED AND RESTATED
REVOLVING CREDIT AND TERM LOAN AGREEMENT
This First Amendment (the "Amendment"), dated as of March 24, 1999, is
among NATIONSRENT, INC., a Delaware corporation (the "Parent"), and its
Subsidiaries (collectively with the Parent, the "Borrowers"), the lending
institutions listed on the signature pages hereto (collectively, the "Lenders"),
BANKBOSTON, N.A., as administrative agent for the Lenders (the "Administrative
Agent"), LASALLE NATIONAL BANK, as documentation agent for the Lenders (the
"Documentation Agent") and NATIONSBANK, N.A. and FLEET BANK, N.A. as co-agents
for the Lenders. Capitalized terms used herein unless otherwise defined herein
shall have the respective meanings set forth in the Credit Agreement (as
hereinafter defined).
WHEREAS, the Borrowers, the Lenders, the Documentation Agent, the
Co-Agents and the Administrative Agent are parties to that certain Third Amended
and Restated Revolving Credit and Term Loan Agreement dated as of February 11,
1999 (as amended, restated, modified or supplemented and in effect from time to
time, the "Credit Agreement"); and
WHEREAS, the Borrowers have requested that the Majority Lenders agree,
and the Majority Lenders have agreed, on the terms and subject to the conditions
set forth herein, to make certain changes to Credit Agreement;
NOW, THEREFORE, in consideration of the foregoing premises, the parties
hereby agree as follows:
SS.1. AMENDMENT TO THE CREDIT AGREEMENT. The Credit Agreement is hereby
amended by deleting the dollar amount "$10,000,000" as it appears in Section 9.6
of the Credit Agreement and substituting in lieu thereof the dollar amount
"$16,000,000".
SS.2. CONDITIONS TO EFFECTIVENESS. The effectiveness of this Amendment
shall be conditioned upon the satisfaction of the following conditions
precedent:
SS.2.1. DELIVERY OF DOCUMENTS. The Borrowers and the Majority Lenders
shall have delivered to the Administrative Agent, contemporaneously with the
execution hereof, this Amendment signed by each Borrower and the Majority
Lenders.
SS.2.2. PERFORMANCE. The Borrowers shall have duly and properly
performed and complied with all terms and conditions contained in the Loan
Documents required to be performed or complied with by it on or prior to the
date this Amendment is to become effective. No event shall have occurred on or
prior to the date this Amendment is to become effective and be continuing, and
no condition shall exist on the date this Amendment is to become effective which
constitutes a Default or Event of Default under any of the Loan Documents, in
each case after giving effect to this Amendment.
SS.2.3. PROCEEDINGS AND DOCUMENTS. All corporate, governmental and
other proceedings in connection with the transactions contemplated by this
<PAGE> 2
Amendment and all instruments and documents incidental thereto shall be in the
form and substance reasonably satisfactory to the Administrative Agent and its
counsel and the Administrative Agent and such counsel shall have received all
such counterpart originals or certified or other copies of all such instruments
and documents as the Administrative Agent or any Lender shall have reasonably
requested.
SS.3. REPRESENTATIONS AND WARRANTIES. Each Borrower hereby
represents and warrants to the Lenders as follows:
(a) The representations and warranties of such Borrower contained
in the Credit Agreement, as amended hereby, the other Loan Documents or in any
document or instrument delivered pursuant to or in connection with the Credit
Agreement were true when made and continue to be true on the date hereof (except
to the extent of changes resulting from transactions contemplated or permitted
by the Credit Agreement and the other Loan Documents and changes occurring in
the ordinary course of business which singly or in the aggregate are not
materially adverse, or to the extent that such representations and warranties
related solely and expressly to an earlier date) and no Default or Event of
Default shall have occurred and be continuing;
(b) The execution, delivery and performance by each Borrower of
this Amendment and the consummation of the transactions contemplated hereby: (i)
are within the corporate powers of such Borrower; (ii) have been duly authorized
by all necessary corporate proceedings on the part of such Borrower; (iii) do
not require any approval, consent of, or filing with, any governmental agency or
authority, or any other person, association or entity, which bears on the
validity of this Amendment and which is required by law or the regulation or
rule of any agency or authority, or other person, association or entity, (iii)
do not conflict with or result in any breach or contravention of any provision
of law, statute, rule or regulation to which any Borrower is subject or any
judgment, order, writ, injunction, license or permit applicable to such
Borrower, (iv) do not conflict with any provision of the corporate charter or
bylaws of such Borrower, and (v) do not conflict with any provision of any
agreement or other instrument binding upon such Borrower in a manner which is
reasonably likely to have a materially adverse effect on the Borrowers taken as
a whole; and
(c) This Amendment, the Credit Agreement as amended hereby, and
the other Loan Documents constitute the legal, valid and binding obligations of
each Borrower, enforceable against each Borrower in accordance with their
respective terms, provided that (i) enforcement may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws of general
application affecting the rights and remedies of creditors, and (ii) enforcement
may be subject to general principles of equity, and the availability of the
remedies of specific performance and injunctive relief may be subject to the
discretion of the court before which any proceeding for such remedies may be
brought.
-2-
<PAGE> 3
SS.4. NO OTHER AMENDMENTS. Except as expressly provided in this
Amendment, all of the terms and conditions of the Credit Agreement, the Notes
and the other Loan Documents shall remain in full force and effect.
SS.5. EXECUTION IN COUNTERPARTS. This Amendment may be executed in any
number of counterparts and by each party on a separate counterpart, each of
which when so executed and delivered shall be an original, but all of which
together shall constitute one instrument. In proving this Amendment, it shall
not be necessary to produce or account for more than one such counterpart signed
by the party against whom enforcement is sought.
SS.6. EFFECTIVE DATE. Subject to the satisfaction of the conditions
precedent set forth in ss.2 hereof, this Amendment shall be deemed to be
effective as of the date hereof.
[Remainder of page intentionally left blank]
-3-
<PAGE> 4
IN WITNESS WHEREOF, the undersigned have duly executed this Amendment
as of the date first above written.
THE BORROWERS:
NATIONSRENT, INC.
A TO Z RENTS IT, INC.
A TO Z RENTS IT, INC. #2
A-ACTION RENTAL, INC.
ACME RENTAL, INC.
ADVANCED CONSTRUCTION EQUIPMENT, INC.
CENTRAL ALABAMA RENTAL CENTER, INC.
GABRIEL TRAILER MANUFACTURING COMPANY, INC.
GOLD COAST AERIAL LIFT, INC.
HIGH REACH COMPANY, INC.
HUDSON RENTAL CENTER, INC.
THE J. KELLY CO., INC.
LOGAN EQUIPMENT CORP.
NATIONSRENT AWP COMPANY
NATIONSRENT NORTHEAST, INC.
NATIONSRENT OF ALABAMA, INC.
NATIONSRENT OF CALIFORNIA, INC.
NATIONSRENT OF FLORIDA, INC.
NATIONSRENT OF GEORGIA, INC.
NATIONSRENT OF INDIANA, INC.
NATIONSRENT OF KENTUCKY, INC.
NATIONSRENT OF LOUISIANA, INC.
NATIONSRENT OF MICHIGAN, INC.
NATIONSRENT OF OHIO, INC.
NATIONSRENT OF TENNESSEE, INC.
TENNESSEE TOOL AND SUPPLY, INC.
NATIONSRENT OF TEXAS, INC.
NATIONSRENT OF WEST VIRGINIA, INC.
TITAN RENTALS, INC.
RAYMOND EQUIPMENT CO.
SAM'S EQUIPMENT RENTAL, INC.
SOUTHEAST RENTAL & LEASING, INC.
By: /s/
-----------------------------------------
Thomas C. Richardson
Vice President
<PAGE> 5
THE LENDERS:
BANKBOSTON, N.A.,
individually and as Administrative Agent
By: /s/
--------------------------------------
Timothy M. Laurion, Director
LASALLE NATIONAL BANK,
individually and as Documentation Agent
By: /s/
--------------------------------------
Name:
Title:
NATIONSBANK, N.A.,
individually and as Co-Agent
By: /s/
--------------------------------------
Name:
Title:
FLEET BANK, N.A.,
individually and as Co-Agent
By: /s/
--------------------------------------
Name:
Title:
HUNTINGTON NATIONAL BANK
By: /s/
--------------------------------------
Name:
Title:
<PAGE> 6
FIFTH THIRD BANK, CENTRAL OHIO (FORMERLY KNOWN AS
FIFTH THIRD BANK OF COLUMBUS)
By: /s/
--------------------------------------
Name:
Title:
COMERICA BANK
By: /s/
--------------------------------------
Name:
Title:
FIRST UNION NATIONAL BANK
By: /s/
--------------------------------------
Name:
Title:
DEUTSCHE BANK A.G., NEW YORK AND/OR CAYMAN ISLAND
BRANCH
By: /s/
--------------------------------------
Name:
Title:
By: /s/
--------------------------------------
Name:
Title:
USTRUST
By: /s/
--------------------------------------
Name:
Title:
BANKERS TRUST COMPANY
By: /s/
--------------------------------------
Name:
Title:
<PAGE> 7
NATIONAL CITY BANK
By: /s/
--------------------------------------
Name:
Title:
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/
--------------------------------------
Name:
Title:
CITICORP DEL-LEASE, INC.
By: /s/
--------------------------------------
Name:
Title:
ERSTE BANK DER OESTERREICHISCHEN
SPARKASSEN, AG
By: /s/
--------------------------------------
Name:
Title:
By: /s/
--------------------------------------
Name:
Title:
FIRST SOURCE FINANCIAL LLP
By: First Source Financial, Inc.,
Its Agent/Manager
By: /s/
--------------------------------------
Name:
Title:
<PAGE> 8
UNION PLANTERS BANK
By: /s/
--------------------------------------
Name:
Title:
BAY VIEW FINANCIAL CORPORATION
By: /s/
--------------------------------------
Name:
Title:
BAY VIEW BANK
By: /s/
--------------------------------------
Name:
Title:
INDOSUEZ CAPITAL FUNDING IIA, LIMITED
By: Indosuez Capital,
As Portfolio Advisor
By: /s/
--------------------------------------
Name:
Title:
INDOSUEZ CAPITAL FUNDING III, LIMITED
By: Indosuez Capital,
As Portfolio Advisor
By: /s/
--------------------------------------
Name:
Title:
<PAGE> 9
ALLSTATE LIFE INSURANCE COMPANY
By: /s/
--------------------------------------
Name:
Title:
By: /s/
--------------------------------------
Name:
Title:
BANK AUSTRIA CREDITANSTALT CORPORATE
FINANCE, INC.
By: /s/
--------------------------------------
Name:
Title:
By: /s/
--------------------------------------
Name:
Title:
FIRST BANK TEXAS, N.A.
By: /s/
--------------------------------------
Name:
Title:
CREDIT LYONNAIS ATLANTA AGENCY
By: /s/
--------------------------------------
Name:
Title:
<PAGE> 10
DRESDNER BANK LATEINAMERIKA
AG, MIAMI AGENCY
By: /s/
--------------------------------------
Name:
Title:
By: /s/
--------------------------------------
Name:
Title:
NATIONSBANK, N.A.
By: /s/
--------------------------------------
Name:
Title:
MERRILL LYNCH SENIOR FLOATING
RATE FUND, INC.
By: /s/
--------------------------------------
Name:
Title:
STEIN ROE FLOATING RATE LIMITED LIABILITY
COMPANY
By: /s/
--------------------------------------
Name:
Title:
<PAGE> 11
STEIN ROE & FARNHAM INCORPORATED,
AS AGENT FOR KEYPORT LIFE INSURANCE COMPANY
By: /s/
--------------------------------------
Name:
Title:
UNION BANK OF CALIFORNIA, N.A.
By: /s/
--------------------------------------
Name:
Title:
SENIOR DEBT PORTFOLIO
By: Boston Management & Research,
as Investment Advisor
By: /s/
--------------------------------------
Name:
Title:
EATON VANCE SENIOR INCOME TRUST
By: Eaton Vance Management,
as Investment Advisor
By: /s/
--------------------------------------
Name:
Title:
INDOSUEZ CAPITAL FUNDING IV, L.P.
By: Indosuez Capital Luxembourg, SA,
as Collateral Manager
By: /s/
--------------------------------------
Name:
Title:
<PAGE> 12
MERRILL LYNCH PRIME RATE PORTFOLIO
By: Merrill Lynch Asset Management, L.P.,
as Investment Advisor
By: /s/
--------------------------------------
Name:
Title:
ELC (CAYMAN) LTD.
By: /s/
--------------------------------------
Name:
Title:
<PAGE> 1
EXHIBIT 4.11
OMNIBUS AMENDMENT NO. 3
TO
SECURITY DOCUMENTS
OMNIBUS AMENDMENT NO. 3 TO SECURITY DOCUMENTS (this "Amendment") dated
as of February 11, 1999, by and among NATIONSRENT, INC. (the "Parent"), a
Delaware corporation and its Subsidiaries (collectively with the Parent, the
"Borrowers" and each a "Borrower"), and BANKBOSTON, N.A., as administrative
agent (the "Administrative Agent"). Capitalized terms used herein without
definition shall have the meanings set forth in the Third Amended and Restated
Credit Agreement (as defined below).
WHEREAS, the Parent, the Borrowers and the Administrative Agent are
parties to that certain Security Agreement dated as of March 18, 1998 (as
supplemented prior to the date hereof and as otherwise amended, modified or
supplemented and in effect from time to time, the "Security Agreement");
WHEREAS, the Parent and the Administrative Agent are parties to that
certain Stock Pledge Agreement dated as of March 18, 1998 (as supplemented prior
to the date hereof and as otherwise amended, modified or supplemented and in
effect from time to time, the "Parent Stock Pledge Agreement");
WHEREAS, NationsRent of West Virginia, Inc. ("NR-WV") and the
Administrative Agent are parties to that certain Stock Pledge Agreement dated as
of March 18, 1998 (as amended, modified or supplemented and in effect from time
to time, the "NR-WV Stock Pledge Agreement");
WHEREAS, Gabriel Trailer Manufacturing Company ("Gabriel") and the
Administrative Agent are parties to that certain Stock Pledge Agreement dated as
of March 18, 1998 (as amended, modified or supplemented and in effect from time
to time, the "Gabriel Stock Pledge Agreement";
WHEREAS, NationsRent of Tennessee, Inc. ("NR-T") and the Administrative
Agent are parties to that certain Stock Pledge Agreement dated as of October 2,
1998 (as amended, modified or supplemented and in effect from time to time, the
"NR-T Stock Pledge Agreement");
WHEREAS, the Borrowers and the Administrative Agent are parties to that
certain Omnibus Amendment to Security Documents dated as of June 29, 1998 and
that certain Omnibus Amendment No. 2 to Security Documents dated as of September
24, 1998;
WHEREAS, the Borrowers, BankBoston, N.A. and certain lending
institutions (collectively the "Lenders"), BankBoston, N.A. as Administrative
<PAGE> 2
Agent for the Lenders, LaSalle National Bank as documentation agent for the
Lenders, and Fleet Bank, N.A. as co-agent and NationsBank, N.A. as co-agent
entered into a Second Amended and Restated Revolving Credit and Term Loan
Agreement dated as of September 24, 1998, as amended by the Amendment No. 1 and
Consent to Second Amended and Restated Revolving Credit and Term Loan Agreement,
dated as of October 9, 1998, among the Borrowers, the Lenders and the other
parties named therein, as further amended by the Second Amendment, dated as of
November 2, 1998, among the Borrowers, the Lenders and the other parties named
therein, as further amended by the Confirmatory Amendment No. 3, dated as of
November 4, 1998, by the Administrative Agent (as amended, modified or
supplemented and in effect as of the date hereof, the "Prior Credit Agreement").
WHEREAS, the Borrowers, the Administrative Agent, the Lenders and
certain other parties thereto have agreed to enter into an amendment and
restatement of the Prior Credit Agreement (the "Third Amended and Restated
Credit Agreement") dated as of the date hereof pursuant to which, among other
things, the Lenders have agreed to extend loans to the Borrowers;
WHEREAS, the effectiveness of the Third Amended and Restated Credit
Agreement is conditioned upon, among other things, the Borrowers and the
Administrative Agent amending certain provisions of the Security Agreement and
reaffirming the continued effectiveness of the Security Agreement;
WHEREAS, the effectiveness of the Third Amended and Restated Credit
Agreement is further conditioned upon, among other things, the Borrowers and the
Administrative Agent amending certain provisions of the Parent Stock Pledge
Agreement and reaffirming the continued effectiveness of the Parent Stock Pledge
Agreement;
WHEREAS, the effectiveness of the Third Amended and Restated Credit
Agreement is further conditioned upon, among other things, NR-WV and the
Administrative Agent amending certain provisions of the NR-WV Stock Pledge
Agreement and reaffirming the continued effectiveness of the NR-WV Stock Pledge
Agreement;
WHEREAS, the effectiveness of the Third Amended and Restated Credit
Agreement is further conditioned upon, among other things, Gabriel and the
Administrative Agent amending certain provisions of the Gabriel Stock Pledge
Agreement and reaffirming the continued effectiveness of the Gabriel Stock
Pledge Agreement;
WHEREAS, the effectiveness of the Third Amended and Restated Credit
Agreement is further conditioned upon, among other things, NR-T and the
Administrative Agent amending certain provisions of the NR-T Stock Pledge
Agreement and reaffirming the continued effectiveness of the NR-T Stock Pledge
Agreement;
-2-
<PAGE> 3
NOW, THEREFORE, in consideration of the premises contained herein, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
1. AMENDMENT TO THE SECURITY DOCUMENTS. The Security Documents (as
defined in the Third Amended and Restated Credit Agreement) are amended to
provide the following:
1.1. For each of the Security Documents, any and all references to the
"Credit Agreement" shall be deemed to be references to the Third Amended and
Restated Credit Agreement. Each of the Security Documents are hereby further
amended mutatis mutandis as appropriate to reflect the fact that the Prior
Credit Agreement has been amended and restated as the Third Amended and Restated
Credit Agreement.
1.2. For each of the Security Documents, any and all references to the
"Agent" and the "Administrative Agent" shall be deemed to be references to the
"Administrative Agent", as defined in the Third Amended and Restated Credit
Agreement.
1.3. With respect to each of the Security Documents, any and all
references to the "Lenders" and the "Banks" shall be deemed to be references to
"Lenders", as defined in the Third Amended and Restated Credit Agreement.
1.4. For each of the Security Documents, any and all references to the
words "Revolving Credit Notes" shall be deemed to be references to the word
"Notes", as defined in the Third Amended and Restated Credit Agreement.
1.5. With respect to the Security Agreement, (i) delete the phrase
"Commonwealth of Massachusetts" wherever it appears in the Security Agreement
and insert the phrase "State of New York" in lieu thereof, (ii) any and all of
the references to the Uniform Commercial Code in the Security Agreement shall be
deemed to be references to the Uniform Commercial Code of the State of New York,
and (iii) in Section 21 of the Security Agreement, insert the phrase "EACH OF
THE ADMINISTRATIVE AGENT AND" at the beginning of the first sentence of such
Section 21.
1.6. With respect to each of the Parent Stock Pledge Agreement, the
NR-WV Stock Pledge Agreement, the Gabriel Stock Pledge Agreement and the NR-T
Stock Pledge Agreement, (i) delete the phrase "Commonwealth of Massachusetts"
wherever it appears in such Stock Pledge Agreement and insert the phrase "State
of New York" in lieu thereof, (ii) delete the phrase "Massachusetts Uniform
Commercial Code" wherever it appears in such Stock Pledge Agreement and insert
the phrase "New York Uniform
-3-
<PAGE> 4
Commercial Code" in lieu thereof, (iii) any and all of the references to the
Uniform Commercial Code in such Stock Pledge Agreement shall be deemed to be
references to the Uniform Commercial Code of the State of New York, and (iv) in
Section 18 of each Stock Pledge Agreement, insert the phrase "EACH OF THE
ADMINISTRATIVE AGENT AND" at the beginning of the first sentence of such Section
18 in each Stock Pledge Agreement.
2. CONFIRMATION OF SECURITY DOCUMENTS. Each of the Borrowers hereby
ratifies and confirms the Security Documents (as amended hereby) to which it is
a party and the pledges and security interests created thereby. Each of the
Borrowers hereby further ratifies and confirms that each of the Security
Documents (as amended hereby) to which it is a party and the pledges and
security interests created thereby secure the Obligations of the Borrowers under
the Third Amended and Restated Credit Agreement, the Security Documents (as
amended hereby) and the Notes.
3. CONDITIONS TO EFFECTIVENESS. This Amendment shall not become
effective unless and until the Administrative Agent receives counterparts of
this Amendment and each of the conditions set forth in ss.10 of the Third
Amended and Restated Credit Agreement have been met.
4. REPRESENTATIONS AND WARRANTIES; NO DEFAULT. Each of the Borrowers
represents and warrants to the Administrative Agent and the Lenders that (a)
each and every one of the representations and warranties made by each Borrower
to the Administrative Agent and the Lenders in ss.6 or elsewhere in the Third
Amended and Restated Credit Agreement or in the other Loan Documents are true
and correct in all material respects; (b) each of the Borrowers has duly and
properly performed, complied with and observed each of its covenants, agreements
and obligations contained in ss.ss.7, 8 and 9 or elsewhere in the Prior Credit
Agreement or the other Loan Documents (as defined in the Prior Credit
Agreement); and (c) no event has occurred or is continuing and no condition
exists which constitutes a Default or Event of Default.
5. RATIFICATION, ETC. Except as expressly amended by this Amendment,
the Security Documents and all documents, instruments and agreements related
thereto are hereby ratified and confirmed in all respects and shall continue in
full force and effect. The Security Documents (as amended hereby) and the
perfected first priority security interests of the Administrative Agent on
behalf of the Lenders thereunder shall continue in full force and effect, and
the collateral security and guaranties provided for in the Security Documents
shall not be impaired by this Amendment.
6. MISCELLANEOUS. Nothing contained herein shall constitute a waiver
of, impair or otherwise affect any Obligations, any other obligation of any
Borrower or any rights of the Administrative Agent or any of the Lenders
consequent thereon. This Amendment may be executed in one or more counterparts,
each of which shall be deemed an original but which together shall constitute
one and the same instrument. Section headings in
-4-
<PAGE> 5
this Amendment are included herein for convenience of reference only and shall
not constitute part of this Amendment for any other purpose. This Amendment
shall, pursuant to New York General Obligations Law ss.5-1401, be governed by,
and construed in accordance with, the laws of the State of New York (without
reference to conflict of laws).
7. GOVERNING LAW; SUBMISSION TO JURISDICTION. THIS AMENDMENT AND EACH
OF THE SECURITY DOCUMENTS ARE CONTRACTS UNDER THE LAWS OF THE STATE OF NEW YORK
AND SHALL, PURSUANT TO NEW YORK GENERAL OBLIGATIONS LAW ss.5-1401, BE CONSTRUED
IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK. THE
BORROWERS CONSENT AND AGREE THAT ANY SUIT FOR THE ENFORCEMENT OF THIS AMENDMENT
OR ANY OF THE OTHER SECURITY DOCUMENTS MAY BE BROUGHT IN THE COURTS O THE STATE
OF NEW YORK OR ANY FEDERAL COURT SITTING THEREIN AND CONSENTS TO THE
NONEXCLUSIVE JURISDICTION OF SUCH COURT AND SERVICE OF PROCESS IN ANY SUCH SUIT
BEING MADE UPON THE BORROWERS IN ACCORDANCE WITH LAW AT THE ADDRESS SPECIFIED IN
ss.20 OF THE CREDIT AGREEMENT. THE BORROWERS HEREBY WAIVE ANY OBJECTION THAT
THEY MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT OR ANY SUCH COURT
OR THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT COURT.
-5-
<PAGE> 6
IN WITNESS WHEREOF, the Borrowers and the Administrative Agent
have duly executed this Amendment as a sealed instrument as of the date first
above written.
BANKBOSTON, N.A.,
as Administrative Agent
By: /s/
-----------------------------------
Timothy M. Laurion, Director
-6-
<PAGE> 7
THE BORROWERS:
NATIONSRENT, INC.
A TO Z RENTS IT, INC.
A TO Z RENTS IT, INC. #2
A-ACTION RENTAL, INC.
ACME RENTAL, INC.
ADVANCED CONSTRUCTION EQUIPMENT, INC.
CENTRAL ALABAMA RENTAL CENTER, INC.
GABRIEL TRAILER MANUFACTURING COMPANY, INC.
GOLD COAST AERIAL LIFT, INC.
HIGH REACH COMPANY, INC.
THE J. KELLY CO., INC.
LOGAN EQUIPMENT CORP.
NATIONSRENT AWP COMPANY
NATIONSRENT NORTHEAST, INC.
NATIONSRENT OF ALABAMA, INC.
NATIONSRENT OF CALIFORNIA, INC.
NATIONSRENT OF FLORIDA, INC.
NATIONSRENT OF GEORGIA, INC.
NATIONSRENT OF INDIANA, INC.
NATIONSRENT OF KENTUCKY, INC.
NATIONSRENT OF LOUISIANA, INC.
NATIONSRENT OF MICHIGAN, INC.
NATIONSRENT OF OHIO, INC.
NATIONSRENT OF TENNESSEE, INC.
TENNESSEE TOOL AND SUPPLY, INC.
NATIONSRENT OF TEXAS, INC.
NATIONSRENT OF WEST VIRGINIA, INC.
TITAN RENTALS, INC.
RAYMOND EQUIPMENT CO.
SAM'S EQUIPMENT RENTAL, INC.
SOUTHEAST RENTAL & LEASING, INC.
By: /s/
----------------------------------------
Name:
Title:
-7-
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<ARTICLE> 5
<MULTIPLIER> 1,000
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<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> JAN-01-1999
<PERIOD-END> MAR-31-1999
<CASH> 3,981
<SECURITIES> 0
<RECEIVABLES> 72,678
<ALLOWANCES> 4,705
<INVENTORY> 25,044
<CURRENT-ASSETS> 0
<PP&E> 487,420
<DEPRECIATION> 38,085
<TOTAL-ASSETS> 1,097,340
<CURRENT-LIABILITIES> 0
<BONDS> 715,204
0
0
<COMMON> 558
<OTHER-SE> 286,989
<TOTAL-LIABILITY-AND-EQUITY> 1,097,340
<SALES> 27,215
<TOTAL-REVENUES> 102,315
<CGS> 18,166
<TOTAL-COSTS> 59,103
<OTHER-EXPENSES> 23,572
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 14,446
<INCOME-PRETAX> 7,379
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<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 4,317
<EPS-PRIMARY> .08
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