EXHIBIT 4.6(V)
THIRD AMENDMENT TO CREDIT AGREEMENT
AND CONSENT
THIS AMENDMENT AND CONSENT, dated as of April 7, 1998 (the "Amendment")
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relating to the Credit Agreement referenced below, by and among NATIONAL
EQUIPMENT SERVICES, INC., a Delaware corporation (the "Company"), NES
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ACQUISITION CORP., a Delaware corporation and BAT ACQUISITION CORP., a Delaware
corporation, (collectively referred to as the "Existing Subsidiary Borrowers" or
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individually referred to as an "Existing Subsidiary Borrower"), NES EAST
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ACQUISITION CORP., a Delaware corporation (and successor to AERIAL PLATFORMS,
INC., a Georgia corporation and MST ENTERPRISES, INC., a Virginia corporation),
NES MICHIGAN ACQUISITION CORP., a Delaware corporation, and ALBANY LADDER
COMPANY, INC., a New York corporation (collectively referred to as the
"Applicant Subsidiary Borrowers" or individually referred to as an "Applicant
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Subsidiary Borrower" (hereinafter, the Company, the Existing Subsidiary
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Borrowers and the Applicant Subsidiary Borrowers collectively referred to as the
"Borrowers" or individually referred to as a "Borrower"), each of those
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financial institutions identified as Lenders on the signature pages hereto
(together with each of their successors and assigns, referred to individually as
a "Lender" and, collectively, as the "Lenders"), and FIRST UNION COMMERCIAL
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CORPORATION ("FUCC"), acting in the manner and to the extent described in
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Article XIII of the Credit Agreement (in such capacity, the "Agent"). Terms
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used herein but not otherwise defined herein shall have the meanings provided in
the Credit Agreement.
W I T N E S S E T H
WHEREAS, a $115,000,000 credit facility has been extended to the Borrowers
pursuant to the terms of that certain Credit Agreement dated as of July 1, 1997
(as amended, modified or otherwise supplemented, the "Credit Agreement") among
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the Borrowers, the Lenders and the Agent;
WHEREAS, the Borrowers have requested that the Credit Agreement be amended
as described herein;
WHEREAS, BankBoston, N.A. (the "Withdrawing Lender") desires to withdraw
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from the Credit Agreement;
WHEREAS, the Applicant Borrowers desire to become Borrowers under the Credit
Agreement; and
WHEREAS, the Lenders other than the Withdrawing Lender (collectively, the
"Non-Withdrawing Lenders") are willing to furnish such consent and
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acknowledgment and make such amendments;
NOW, THEREFORE, IN CONSIDERATION of these premises and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
(A) Amendments.
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1. (a) The definitions of Consolidated EBITDAR, Consolidated
Rental Expense, Excess Cash Flow, Interest/Rental Expense Coverage
Ratio and Leverage Ratio are deleted from Section 1.1 in their
entireties.
(b) The definition of Applicable Percentage appearing in
Section 1.1 of the Credit Agreement is amended in its entirety to read
as follows:
"Applicable Percentage" shall mean for Eurodollar Loans, Base
Rate Loans and Unused Line Fees, the appropriate applicable
percentages corresponding to the Total Debt Leverage Ratio in
effect as of the most recent Calculation Date as shown below:
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Total Debt Applicable Applicable Applicable
Leverage Percentage for Percentage for Percentage for
Tier Level Ratio Eurodollar Loans Base Rate Loans Unused Line Fee
s
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1 greater than or equal to 4.5 to 1.0 2.25% 0.75% 0.375%
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2 greater than or equal to 3.5 to 1.0 2.00% 0.50% 0.375%
but less 4.5 to 1.0
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3 greater than or equal to 2.5 to 1.0 1.75% 0.25% 0.375%
but less than 3.5 to 1.0
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4 less than 2.5 to 1.0 1.50% 0% 0.30%
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The Applicable Percentages shall be determined and adjusted
quarterly on the date (each a "Calculation Date") five Business
Days after the date on which the Company provides the quarterly
officer's certificate in accordance with the provisions of
Section 7.1(c); provided, however, that (i) the initial
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Applicable Percentages shall be based on Tier Level 1 (as shown
above) and shall remain at Tier Level 1 until the first
Calculation Date subsequent to September 30, 1997, (ii) on and
after March 31, 1998, the Applicable Percentages shall be based
on Tier Level 3 until the first Calculation Date following such
date, and thereafter, the Tier Level shall be determined by the
then current Total Debt Leverage Ratio, and (iii) if the Company
fails to provide the officer's certificate to the Agent for any
fiscal quarter as required by and within the time limits set
forth in Section 7.1(c), the Applicable Percentages from the
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applicable date of such failure shall be based on
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Tier Level 1 until five Business Days after an appropriate
officer's certificate is provided, whereupon the Tier Level shall
be determined by the Total Debt Leverage Ratio set forth in such
certificate. Except as set forth above, each Applicable
Percentage shall be effective from one Calculation Date until the
next Calculation Date.
(c) The definition of Consolidated Fixed Charges appearing
in Section 1.1 of the Credit Agreement is amended in its entirety to
read as follows:
"Consolidated Fixed Charges" shall mean, for any period of
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computation, the sum of (i) Consolidated Interest Expense for the
applicable period minus (ii) capitalized costs incurred in
connection with the issuance of the Senior Subordinated Notes
which are amortized during the applicable period (to the extent
any such capitalized costs amortized during such period were
included in the calculation of Consolidated Interest Expense)
plus (iii) Consolidated Funded Debt Payments for the applicable
period.
(d) Section 1.1 of the Credit Agreement is hereby amended
by adding the following new definition:
"Consolidated Senior Debt" shall mean, as of the date of
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determination, Consolidated Funded Indebtedness excluding
Subordinated Debt.
(e) Clause (iii) of the definition of Permitted Acquisition
appearing in Section 1.1 of the Credit Agreement is amended in its
entirety to read as follows:
(iii) the ratio of the purchase price for the Acquired Company
to the net income of the Acquired Company before interest, taxes,
depreciation and amortization (computed for the most recently
ended 12-month period) shall not exceed 5.0 to 1.0 or such
greater ratio as approved by the Required Lenders,
(f) The definition of Revolving Committed Amount appearing in
Section 1.1 of the Credit Agreement is amended in its entirety to read
as follows:
"Revolving Credit Committed Amount" shall mean the aggregate
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revolving credit line extended by the Lenders to the Borrowers
for Revolving Loans and Letters of Credit pursuant to and in
accordance with the terms of this Credit Agreement, in an amount
up to $140,000,000, as such revolving credit line may be reduced
from time to time in accordance with Section 2.3(d).
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(g) Section 1.1 of the Credit Agreement is hereby amended
by adding the following new definition:
"Senior Debt Leverage Ratio" shall mean (i) as of March 31, 1998,
the ratio of Consolidated Senior Debt (computed as of the last
day of such fiscal quarter) to Consolidated EBITDA multiplied by
one and one-third (1-1/3) (computed for the three fiscal quarters
then ending) and (ii) as of June 30, 1998 and as of the last day
of each fiscal quarter ending thereafter, the ratio of
Consolidated Senior Debt (computed as of the last day of each
such fiscal quarter) to Consolidated EBITDA (computed for the
four fiscal quarters then ending).
(h) The definition of Subordinated Debt appearing in
Section 1.1 of the Credit Agreement is amended in its entirety to read
as follows:
"Subordinated Debt" shall mean (a) the indebtedness evidenced by
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the Existing Subordinated Notes, (b) $100,000,000 10% Senior
Subordinated Notes of the Company due 2004 and (c) any other
unsecured Indebtedness incurred by any Borrower, which, in each
case, is expressly subordinated and made junior to the payment
and performance in full of the Obligations and contains terms and
conditions reasonably satisfactory to the Required Lenders,
provided that the Lenders acknowledge that subordination and
other terms and conditions substantially identical, in the sole
judgment of the Agent, to those contained in the form of
Subordinated Note attached hereto as Exhibit N are satisfactory.
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(i) Section 1.1 of the Credit Agreement is hereby amended
by adding the following new definition:
"Total Debt Leverage Ratio" shall mean (i) as of March 31, 1998,
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the ratio of Consolidated Funded Indebtedness minus proceeds of
the Senior Subordinated Notes held in cash by the Company or
invested by the Company in Cash Equivalents (computed as of the
last day of such fiscal quarter) to Consolidated EBITDA
multiplied by one and one-third (1-1/3) (computed for the three
fiscal quarters then ending) and (ii) as of June 30, 1998 and as
of the last day of each fiscal quarter ending thereafter, the
ratio of Consolidated Funded Indebtedness minus proceeds of the
Senior Subordinated Notes held in cash by the Company or invested
by the Company in Cash Equivalents (computed as of the last day
of each such fiscal quarter) to Consolidated EBITDA (computed for
the four fiscal quarters then ending).
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2. Section 2.3(b)(ii) of the Credit Agreement is deleted in its
entirety.
3. The first sentence of Section 3.1 of the Credit Agreement is
amended to read as follows:
Subject to the terms and conditions hereof and of the Letter of Credit
Documents, if any, and any other terms and conditions which the
Issuing Bank may reasonably require, the Lenders will participate in
the issuance by the Issuing Bank from time to time of such Letters of
Credit in Dollars from the Closing Date until the Maturity Date as the
Borrowers may request, in a form acceptable to the Issuing Bank;
provided, however, that (i) the Letter of Credit Obligations
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outstanding shall not at any time exceed ONE MILLION DOLLARS
($1,000,000) (the "Letter of Credit Committed Amount") and
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(ii) the sum of the aggregate principal amount of outstanding
Revolving Loans plus Letter of Credit Obligations outstanding shall
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not at any time exceed the lesser of the Revolving Credit Committed
Amount or the Borrowing Base.
4. The requirement in Section 7.1(c) of the Credit Agreement to
deliver the annual calculation of Excess Cash Flow is deleted in its
entirety.
5. Section 8.2 of the Credit Agreement is amended in its entirety to
read as follows:
8.2 Total Debt Leverage Ratio.
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The Borrowers shall maintain a Total Debt Leverage Ratio of not
greater than 5.0 to 1.0 as of the last day of each fiscal quarter.
6. Section 8.4 of the Credit Agreement is replaced with a new
Section 8.4 to read as follows:
8.4 Senior Debt Leverage Ratio.
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The Borrowers shall maintain a Senior Debt Leverage Ratio of not
greater than 3.5 to 1.0 as of the last day of each fiscal quarter.
7. Section 8.5 of the Credit Agreement is deleted in its entirety.
8. Schedule 1.1A of the Credit Agreement is deleted in its entirety
and replaced with new Schedule 1.1A attached hereto.
(B) Reallocation/Termination of Commitments; Repayment to Withdrawing
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Lender.
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The Commitment of the Withdrawing Lender shall be terminated and
reallocated among the Non-Withdrawing Lenders as provided in Schedule 1.1A
attached hereto. On the
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effective date of this Amendment the Non-Withdrawing Lenders shall each pay to
the Agent, for the benefit of the Withdrawing Lender, its pro rata share of the
amount of outstanding Loans made by the Withdrawing Lender to reflect the
reallocation and termination of the Withdrawing Lender's Commitment effected
hereby. The Agent shall notify the Non-Withdrawing Lenders of their respective
pro rata shares of the amount to be repaid to the Withdrawing Lender and shall
promptly repay the amount so received from the Non-Withdrawing Lenders to the
Withdrawing Lender. The Withdrawing Lender joins in the execution of this
Amendment for purposes of acknowledging and consenting to the termination of its
Commitment under the Credit Agreement.
(C) Releases.
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The Non-Withdrawing Lenders and the Borrowers hereby agree to release the
Withdrawing Lender from its obligations and liabilities under the Credit
Agreement and other Credit Documents and the Withdrawing Lender hereby agrees to
relinquish and forego any claims it has or may have against the Agent and the
Borrowers under the Credit Agreement or any other Credit Document. From and
after the date hereof, the Withdrawing Lender shall no longer be considered a
"Lender" for purposes of the Credit Agreement and the other Credit Documents.
The Withdrawing Lender agrees to return any Notes from the Borrowers in its
possession upon payment in full of the Withdrawing Lender's pro rata share of
all outstanding Loans and of any other fees and amounts owed by the Borrowers to
the Withdrawing Lender.
(D) Joinder Provisions.
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1. Each Applicant Borrower hereby acknowledges, agrees and confirms
that, by its execution of this Amendment, such Applicant Borrower will be
deemed to be a party to the Credit Agreement and a "Borrower" for all
purposes of the Credit Agreement and the other Credit Documents, and shall
have all of the obligations of a Borrower thereunder as if it has executed
the Credit Agreement and the other Credit Documents. Each Applicant
Borrower hereby ratifies, as of the date hereof, and agrees to be bound by,
all of the terms, provisions and conditions contained in the Credit
Agreement and in the Credit Documents, including without limitation (i) all
of the representations and warranties of the Credit Parties set forth in
Section 6 of the Credit Agreement, as supplemented from time to time in
accordance with the term thereof, and (ii) all of the affirmative and
negative covenants set forth in Sections 7, 8, and 9 of the Credit
Agreement.
2. Each Applicant Borrower hereby acknowledges, agrees and confirms
that, by its execution of this Amendment, such Applicant Borrower will be
deemed to be a party to the Security Agreement, and shall have all the
obligations of an "Obligor" (as such term is defined in the Security
Agreement) thereunder as if it had executed the Security Agreement. Each
Applicant Borrower hereby ratifies, as of the date hereof, and agrees to be
bound by, all of the terms, provisions and conditions
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contained in the Security Agreement. Without limiting the generality of the
foregoing terms of this paragraph, each Applicant Borrower hereby grants to
the Agent, for the benefit of the Lenders, a continuing security interest
in, and a right of set off against any and all right, title and interest of
such Applicant Borrower in and to the Collateral (as such term is defined
in Section 2 of the Security Agreement) of such Applicant Borrower.
3. Each Applicant Borrower hereby acknowledges, agrees and confirms
that, by its execution of this Amendment, such Applicant Borrower will be
deemed to be a party to the Pledge Agreement, and shall have all the
obligations of a "Pledgor" thereunder as if it had executed the Pledge
Agreement. Each Applicant Borrower hereby ratifies, as of the date hereof,
and agrees to be bound by, all the terms, provisions and conditions
contained in the Pledge Agreement. Without limiting the generality of the
foregoing terms of this paragraph, each Applicant Borrower hereby pledges
and assigns to the Agent, for the benefit of the Lenders, and grants to the
Agent, for the benefit of the Lenders, a continuing security interest in
any and all right, title and interest of such Applicant Borrower in and to
Pledged Stock (as such term is defined in Section 1 of the Pledge
Agreement) and the other Collateral (as such term is defined in Section 1
of the Pledge Agreement).
4. Each Applicant Borrower acknowledges and confirms that it has
received a copy of the Credit Agreement and the schedules and exhibits
thereto, the Pledge Agreement and the schedules and exhibits thereto and
the Security Agreement and the schedules and exhibits relating thereto. The
Schedules to the Credit Agreement, the Pledge Agreement and the Security
Agreement are amended and restated in their entirety and attached hereto.
5. The Company confirms that all of its and its Subsidiaries'
obligations under the Credit Agreement are, and upon each Applicant
Borrower becoming a Borrower shall continue to be, in full force and
effect. The Company further confirms that immediately upon each Applicant
Borrower becoming a Borrower the term "Obligations", as used in the Credit
Agreement, shall include all Obligations of such Applicant Borrower under
the Credit Agreement and under each other Credit Document.
6. Each Applicant Borrower hereby agrees that upon becoming a
Borrower it will assume all Obligations of a Borrower as set forth in the
Credit Agreement. By its execution of this Amendment, each Applicant
Borrower appoints each of Xxxx Xxxxxxxxx, Vice President and Secretary and
Xxxxxx X'Xxxxxx, Chief Financial Officer, of National Equipment Services,
Inc., to be its attorneys ("its Attorneys") and in its name and on its
behalf and as its act and deed or otherwise to sign all documents and carry
out all such acts as are necessary or appropriate in connection with
executing any Notice of Borrowing, Notice of Extension/Conversion or any
Borrowing Base Certificate or any security documents (the "Documents") in
connection with the Credit Agreement, provided that such Documents are in
substantially the form provided
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therefor in the applicable exhibits thereto. This Power of Attorney shall
be valid for the duration of the term of the Credit Agreement. The
Applicant Borrower hereby undertakes to ratify everything which either of
its Attorneys shall do in order to execute the Documents mentioned
herein.
(B) Waiver.
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Compliance with Section 8.4 of the Credit Agreement as in effect immediately
prior to the effectiveness of this amendment is hereby forever waived.
(E) Representations and Warranties.
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Each Borrower hereby represents and warrants that (i) the representations
and warranties contained in Section 6 of the Credit Agreement are correct on and
as of the date hereof as though made on and as of such date (except for those
representations and warranties which by their terms relate solely to an earlier
date) and after giving effect to the amendments contained herein and the amended
and restated Schedules to the Credit Documents attached hereto, (ii) no Default
or Event of Default exists under the Credit Agreement on and as of the date
hereof and after giving effect to the amendments contained herein, (iii) it has
the corporate power and authority to execute and deliver this Amendment and to
perform its obligations hereunder and has taken all necessary corporate action
to authorize the execution, delivery and performance by it of this Amendment and
(iv) it has duly executed and delivered this Amendment, and this Amendment
constitutes its legal, valid and binding obligation enforceable in accordance
with its terms except as the enforceability thereof may be limited by
bankruptcy, insolvency or other similar laws affecting the rights of creditors
generally or by general principles of equity.
(F) Conditions to Effectiveness. This Amendment shall become effective
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upon satisfaction of the following conditions precedent:
1. Receipt by the Agent of executed replacement Revolving Notes
substantially in the form attached to the Credit Agreement.
2. Receipt by the Agent of the following:
(a) Copies of the articles or certificates of incorporation
or other charter documents of each Applicant Borrower certified to
be true and complete as of a recent date by the appropriate
Governmental Authority of the state or other jurisdiction of its
incorporation and certified by a secretary or assistant secretary
of such Applicant Borrower to be true and correct as of the date
hereof.
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(b) A copy of the bylaws of each Applicant Borrower
certified by a secretary or assistant secretary of such Applicant
Borrower to be true and correct as of the date hereof.
(c) Copies of resolutions of the Board of Directors of each
Borrower approving and adopting the Credit Documents to which it
is a party, the transactions contemplated therein and authorizing
execution and delivery thereof, certified by a secretary or
assistant secretary of such Borrower to be true and correct and
in force and effect as of the date hereof.
(d) Copies of (i) certificates of good standing, existence
or its equivalent with respect to each Applicant Borrower
certified as of a recent date by the appropriate governmental
authorities of the state or other jurisdiction of incorporation
and each other jurisdiction in which the failure to so qualify
and be in good standing could reasonably be expected to have a
Material Adverse Effect and (ii) to the extent available, a
certificate indicating payment of all corporate franchise taxes
certified as of a recent date by the appropriate governmental
taxing authorities.
(e) An incumbency certificate of each Applicant Borrower
certified by a secretary or assistant secretary to be true and
correct as of the date hereof.
(f) New and/or amended UCC-1 financing statements for the
Borrowers, as appropriate.
(g) UCC search reports for the Acquired Companies acquired
since the acquisition of MST Enterprises, Inc. (the "New Acquired
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Companies").
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(h) Stock certificates of the Applicant Borrowers and
undated stock powers executed in blank.
(i) Acknowledgment Agreements with respect to all leased
and mortgaged properties of the Applicant Borrowers.
(j) Copies of final executed Acquisition Documents.
3. Receipt by the Agent of an opinion, or opinions (which shall
cover, among other things, authority, legality, validity, binding
effect, enforceability of this Amendment and, in the case of the
Applicant Borrowers, attachment and perfection of liens), satisfactory
to the Agent, addressed to the Agent and the Lenders and dated the
Closing Date, from legal counsel to the Borrowers.
(G) Except as modified hereby, all of the terms and provisions of the
Credit Agreement (and Exhibits and Schedules thereto) shall remain in full force
and effect.
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(H) The Borrowers shall, on the effective date hereof, pay to the Agent,
for the benefit of the Non-Withdrawing Lenders, an amendment fee equal to 0.125%
of the aggregate Commitments in effect as of the date hereof to be shared among
the Non-Withdrawing Lenders pro rata based on their respective Revolving Credit
Commitment Percentages.
(I) The Borrowers agree to pay all reasonable costs and expenses of the
Agent in connection with the preparation, execution and delivery of this
Amendment, including without limitation the reasonable fees and expenses of
Xxxxx & Xxx Xxxxx, PLLC.
(J) Execution and delivery of this Amendment by the Borrowers shall
constitute compliance with and satisfaction of the terms and conditions of
Section 7.16 of the Credit Agreement as such section applies to the New Acquired
Companies.
(K) This Amendment may be executed in any number of counterparts, each of
which when so executed and delivered shall be deemed an original and it shall
not be necessary in making proof of this Amendment to produce or account for
more than one such counterpart.
(L) This Amendment and the Credit Agreement as amended hereby shall be
governed by and construed and interpreted in accordance with the laws of the
State of New York.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of
this Amendment to be duly executed and delivered as of the date first above
written.
BORROWER: NATIONAL EQUIPMENT SERVICES, INC.
By: /s/ Xxxx X. Xxxxxxxxx
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Name: Xxxx X. Xxxxxxxxx
Title: Vice President
NES ACQUISITION CORP.
By: /s/ Xxxx X. Xxxxxxxxx
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Name: Xxxx X. Xxxxxxxxx
Title: Vice President
BAT ACQUISITION CORP.
By: /s/ Xxxx X. Xxxxxxxxx
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Name: Xxxx X. Xxxxxxxxx
Title: Vice President
NES EAST ACQUISITION CORP.
By: /s/ Xxxx X. Xxxxxxxxx
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Name: Xxxx X. Xxxxxxxxx
Title: Vice President
NES MICHIGAN ACQUISITION CORP.
By: /s/ Xxxx X. Xxxxxxxxx
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Name: Xxxx X. Xxxxxxxxx
Title: Vice President
ALBANY LADDER COMPANY, INC.
By: /s/ Xxxx X. Xxxxxxxxx
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Name: Xxxx X. Xxxxxxxxx
Title: Vice President
Name:
Title:
AGENT: FIRST UNION COMMERCIAL CORPORATION,
as Agent and a Lender
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Senior Vice President
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LENDERS:
AMERICAN NATIONAL BANK AND TRUST
COMPANY OF CHICAGO, as a Lender
By: /s/ Xxxxx Xxxxxxxxx
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Name: Xxxxx Xxxxxxxxx
Title:
COMERICA BANK,
as a Lender
By: /s/ Xxxxxxx X. Block
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Name: Xxxxxxx X. Block
Title: Vice President
THE CIT GROUP/BUSINESS CREDIT, INC.,
as a Lender
By: /s/ Xxxx Xxxxx
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Name: Xxxx Xxxxx
Title: Vice President
BANKERS TRUST COMPANY,
as a Lender
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Assistant Vice President
XXXXXX TRUST AND SAVINGS BANK,
as a Lender
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Vice President
XXXXXX FINANCIAL, INC.,
as a Lender
By: /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
Title: Vice President
MERCANTILE BUSINESS CREDIT, INC.,
as a Lender
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President
BANKBOSTON, N.A.
By: /s/ Xxxxxxx X.X. Xxxxx
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Name: Xxxxxxx X.X. Xxxxx
Title: Managing Director
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SCHEDULE 1.1A
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LENDERS AND COMMITMENTS
REVOLVING
REVOLVING CREDIT
CREDIT COMMITMENT
LENDER COMMITMENT PERCENTAGE
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First Union Commercial
Corporation $ 25,000,000 17.85714%
American National Bank
and Trust Company of Chicago $ 25,000,000 17.85714%
Comerica Bank $ 23,000,000 16.42857%
The CIT Group/
Business Credit, Inc. $ 18,000,000 12.85714%
Xxxxxx Trust and Savings Bank $ 18,000,000 12.85714%
Mercantile Business Credit, Inc. $ 13,000,000 9.28571%
Xxxxxx Financial, Inc. $ 10,000,000 7.14286%
Bankers Trust Company $ 8,000,000 5.71429%
TOTAL $140,000,000 100.0%
