EXHIBIT 4.13
FIRST AMENDMENT TO
DEBTOR IN POSSESSION REVOLVING CREDIT AGREEMENT
AND TO SECURITY AGREEMENT
This First Amendment (the "Amendment"), dated as of January 31, 2002,
is by and among (a) NationsRent, Inc., a Delaware corporation and a debtor and a
debtor in possession and its Subsidiaries party thereto, each as a debtor and a
debtor in possession (collectively, the "BORROWERS"), (b) the financial
institutions referred to in the Credit Agreement defined below as Banks
(collectively, the "BANKS"), (c) Fleet National Bank, a national banking
association, as administrative agent for the Banks (in such capacity, the
"ADMINISTRATIVE AGENT") and First Union National Bank, as syndication agent for
the Banks (in such capacity, the "SYNDICATION AGENT" and together with the
Administrative Agent, the "AGENTS"). 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 Banks and the Agents are parties to that
certain Debtor in Possession Revolving Credit Agreement, dated as of December
18, 2001 (the "CREDIT AGREEMENT"); and
WHEREAS, the Borrowers and the Administrative Agent are parties to that
certain Security Agreement, dated as of December 18, 2001 (the "SECURITY
AGREEMENT"); and
WHEREAS, in connection with the entry of the Final Order the Borrowers
and the Banks have agreed, on the terms and subject to the conditions set forth
herein, to make certain changes to the Credit Agreement and the Security
Agreement;
NOW, THEREFORE, in consideration of the premises contained herein, and
for other good and valuable consideration, the receipt and sufficiency of which
are acknowledged, the parties hereto agree as follows:
1. AMENDMENT TO SS.1.1 OF THE CREDIT AGREEMENT. Section 1.1 of the
Credit Agreement is hereby amended by:
(a) replacing the definition of "Avoidance Actions" with the following
new definition of "Avoidance Actions":
"AVOIDANCE ACTIONS. Avoidance actions of the Borrowers under
Chapter 5 or Section 724(a) of the Bankruptcy Code and proceeds
thereof. From and after the entry of the Final Order, the term shall
not include an action to avoid a transfer under Section 549 of the
Bankruptcy Code if the transfer was of an asset otherwise constituting
Collateral or collateral securing the Prepetition Lender Debt."
(b) inserting the words "the sum of $2,000,000 PLUS" immediately before
the words "the greater of" in the first sentence of the definition of
"Commitment Reserve", and replacing the word "zero" in the second sentence of
the definition of "Commitment Reserve" with the figure "$2,000,000";
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(c) inserting the following new sentence at the end of the definition
of "Cumulative Cash Flow":
"There shall also be deducted from Cumulative Cash Flow for
such period the amount of any payments, other than interest, required
to be made pursuant to an order of the Bankruptcy Court in the Cases
for adequate protection pursuant to the Bankruptcy Code on account of
Permitted Prior Liens, or on account of other Liens primed pursuant to
the Orders by the Liens securing the Obligations, and made during such
period."
(d) replacing clauses (vii) and (viii) in the definition of "Final
Order" with the following new clauses (vii) and (viii):
"(vii) provided for the preservation of certain challenges to
the Prepetition Lender Debt and the Liens securing the Prepetition
Lender Debt but subject to the requirement that any such challenges be
commenced (A) by the Creditors' Committee no later than the date which
falls on the 120th day following the appointment of the Creditors'
Committee (or if such day is not a Business Day, on the next succeeding
Business Day), and (B) by any party in interest other than the
Creditors' Committee no later than the date which falls on the 75th day
following the Filing Date (or if such day is not a Business Day, on the
next succeeding Business Day), PROVIDED that even if such 75 day or 120
day period has expired, any party in interest other than the Borrowers
may seek to reallocate any payments of interest or fees on Prepetition
Lender Debt made after the commencement of the Cases to payments of
principal on Prepetition Lender Debt; and
(viii) provided that the Collateral and the collateral
securing the Prepetition Lender Debt shall not be charged under Section
506(c) of the Bankruptcy Code (other than Permitted 506(c) Charges),
and that the Prepetition Administrative Agent's Lien on any proceeds,
products or profits of collateral securing the Prepetition Lender Debt
at the time of the commencement of the Cases shall not be subject to
being cut off based on the "equities of the case" under Section 552(b)
of the Bankruptcy Code."
(e) replacing the definition of "Net Cash Proceeds" with the following
new definition of "Net Cash Proceeds":
"NET CASH PROCEEDS. (a) With respect to any sale or other
disposition of assets of any of the Borrowers, the cash proceeds
received by such Borrower from such sale or other disposition, (i) net
of all reasonable costs of sale or other disposition and property
transfer or sales taxes paid or payable as a result thereof by such
Borrower and (ii) net after application of the gross cash proceeds of
the disposition to Indebtedness secured by any Liens on such assets in
favor of persons other than the Administrative Agent or the Prepetition
Administrative Agent, but only to the extent that such other Liens
constitute Permitted Prior Liens, and (b) with respect to the
incurrence of any Indebtedness, the cash proceeds received from such
incurrence, net of all reasonable costs thereof and reasonable fees and
all expenses payable in connection therewith by the Borrowers. The term
does not include rental payments received by a Borrower on Inventory
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leased by the Borrower in the ordinary course of its business
consistent with past practices."
(f) adding the following new definition of "Permitted 506(c) Charges"
in proper alphabetical order therein:
"PERMITTED 506(c) CHARGE. A charge under Section 506(c) of the
Bankruptcy Code against the collateral securing the Prepetition Lender
Debt under the Prepetition Credit Agreement or any of the other Loan
Documents (as defined therein) in the event that any interest paid on
the Prepetition Lender Debt after the commencement of the Cases is
later reallocated to principal of the Prepetition Lender Debt.
Permitted 506(c) Charges shall be limited to an amount equal to, for
each day during which any principal of the Loans were outstanding, the
amount of interest paid or accrued on the principal of the Loans.
However, if on that day the principal of the Loans exceeded the sum of
any payments of interest on the Prepetition Lender Debt made after the
commencement of the Cases and before that day and so later reallocated,
any interest on the excess for that day shall be excluded from the
computation of Permitted 506(c) Charges."
(g) inserting at the end of the definition of "Permitted Prior Liens"
the words "as Permitted Prior Liens" and then adding the following new sentence
at the end of the definition of "Permitted Prior Liens":
"The term includes a Lien on proceeds or products of, or accessions to,
assets subject to a Permitted Prior Lien and arising or created after
the Filing Date to the extent that (a) such Lien in the proceeds,
products or accessions would have been valid, perfected and not subject
to avoidance if the proceeds, products or accessions had arisen or been
created immediately prior to the commencement of the Cases and (b) such
Lien in the proceeds, products or accessions would be entitled, under
applicable non-bankruptcy law, to priority over any Lien in the
proceeds, products or accessions securing the Prepetition Debt."
(h) replacing the word "such" in the first sentence of the definition
of "Reserves" with the words "the sum of $2,000,000 PLUS such other"; and
(i) replacing the definition of "Total Commitment" with the following
new definition of "Total Commitment":
"TOTAL COMMITMENT. An aggregate outstanding amount not to
exceed:
(i) except as otherwise provided in clauses (ii) and
(iii) below, the sum of $20,000,000;
(ii) on and after (A) the entry of the Final Order,
(B) the implementation of the cash management arrangements set
forth in ss.10.13, (C) the satisfaction of any condition that
has been deferred and waived in the discretion of the
Administrative Agent pursuant to the last paragraph of ss.13,
and (D) the execution and delivery by the Borrowers of new
Notes to the Banks in an aggregate face amount of $30,000,000,
the sum of $30,000,000; and
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(iii) on and after (A) the satisfaction of the conditions set
forth in clause (ii) of this definition of "Total Commitment", (B) the
earlier of (1) the delivery of the Borrowers' business plan addressing
the restructuring of the Borrowers' business operations and written
notice from the Agents to the Parent that such business plan is
acceptable to the Agents in their sole discretion, and (2) the hiring
of a permanent president and chief executive officer as set forth in
ss.10.18 and the commencement by such person of his or her duties, and
(C) the execution and delivery by the Borrowers of new Notes to the
Banks in an aggregate face amount of $55,000,000, the sum of
$55,000,000.
If the Commitments are terminated pursuant to the provisions of this
Credit Agreement, the Total Commitment shall be zero."
2. AMENDMENT TO SS.8.1 OF THE CREDIT AGREEMENT. Section 8.1 of the
Credit Agreement is hereby amended by deleting the last paragraph thereof and
replacing it with the following paragraph:
"Such Superpriority Claim shall not include Avoidance Actions but shall
be subject to the Carve Out. Such Lien shall not extend to Avoidance
Actions and shall be subject to the Carve Out, but otherwise such Lien
shall be senior in priority to the adequate protection Liens securing
the Prepetition Lender Debt and all other Liens other than Permitted
Prior Liens. The Liens securing the Obligations shall not be subject to
Section 551 of the Bankruptcy Code, unless the transfer avoided was to
or for the benefit of the Prepetition Agents and the Prepetition
Lenders."
3. AMENDMENT TO SS.9.22 OF THE CREDIT AGREEMENT. Section 9.22 of the
Credit Agreement is hereby amended by deleting the text ", other than those
Subsidiaries listed on SCHEDULE 9.22 hereto," therein.
4. AMENDMENT TO SS.10.4 OF THE CREDIT AGREEMENT. Section 10.4 of the
Credit Agreement is hereby amended by inserting the text ", including accounts
payable to lessors of goods and holders of Prior Permitted Liens on account of
dispositions of goods or collateral" immediately prior to the semicolon (";") in
ss.10.4(f).
5. AMENDMENT TO SS.10.18 OF THE CREDIT AGREEMENT. Section 10.18 of the
Credit Agreement is hereby amended by:
(a) deleting the current ss.10.18(a) and relettering the
current ss.10.18(b) as ss.10.18(a);
(b) inserting in proper alphabetical order the following
new ss.ss.10.18(b) and (c):
"(b) The Borrowers shall (i) select the executive search firm
referred to in ss.10.18(a) not later than Xxxxx 0, 0000, (xx) obtain
approval from the Bankruptcy Court for the engagement of such search
firm by no later than April 2, 2002, and (iii) select the permanent
president and chief executive officer not later than June 1, 2002.
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(c) The requirement that the Borrowers engage and obtain
Bankruptcy Court approval for the engagement of an executive search
firm, and the requirement that the permanent president and chief
executive officer be selected by no later than June 1, 2002, may each
be waived by the Agents in their sole discretion, but any such waiver
shall not affect the other requirements of this ss.10.18."
6. AMENDMENT TO SS.11.2 OF THE CREDIT AGREEMENT. Section 11.2 of the
Credit Agreement is hereby amended by deleting the word "and" at the end of
ss.11.2(h) and inserting the following new ss.11.2(i) in proper alphabetical
order:
"(i) adequate protection Liens in favor of holders of Prior
Permitted Liens, ratable with the adequate protection Liens lien in
favor of Prepetition Administrative Agent for the benefit of the
Prepetition Lenders, to the extent permitted by the Final Order; and"
7. AMENDMENT TO SS.11.14 OF THE CREDIT AGREEMENT. Section 11.14 of the
Credit Agreement is hereby amended by inserting at the end of ss.11.14(ii),
immediately before the semi-colon therein, the text "and Permitted 506(c)
Charges."
8. AMENDMENT TO SS.11.15 OF THE CREDIT AGREEMENT. Section 11.15 of the
Credit Agreement is hereby amended by:
(a) deleting the word "or" at the end of ss.11.15(d), relettering the
current ss.11.15(e) as ss.11.15(h) and by inserting in proper alphabetical order
the following new ss.ss.11.15(e), (f) and (g):
"(e) payments required to be made pursuant to an order of the
Bankruptcy Court in the Cases for adequate protection pursuant to the
Bankruptcy Code on account of Permitted Prior Liens or on account of
other Liens primed pursuant to the Orders by the Liens securing the
Obligations,
(f) as permitted by paragraph 4 of the Final Order,
(g) cure payments on any unexpired leases of real property,
and on other executory contracts, assumed by any of the Borrowers
pursuant to an order of the Bankruptcy Court in the Cases, or".
(b) inserting the words "employee related" immediately prior to the
word "payments" in the new ss.11.15(h).
9. AMENDMENT TO SS.13 OF THE CREDIT AGREEMENT. Section 13 of the Credit
Agreement is hereby amended by deleting the initial paragraph of ss.13 and by
replacing it with the following paragraph:
"The obligations of the Banks to make the initial Loans or to
issue, extend or renew any Letters of Credit on the Closing Date shall
be subject to the satisfaction of the following conditions precedent on
or prior to March 15, 2002:".
10. AMENDMENT TO SS.15.1 OF THE CREDIT AGREEMENT. Section 15.1 of the
Credit Agreement is hereby amended by:
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(a) deleting the date "January 31, 2002" in ss.15.1(k) therein and
replacing it with the date "March 5, 2002";
(b) deleting clause (ii) in ss.15.1(o) therein and replacing it with
the following new clause (ii):
"(ii) to recover from any portions of the Collateral any costs
or expenses of preserving or disposing of such Collateral under Section
506(c) of the Bankruptcy Code, other than Permitted 506(c) Charges, to
cut off rights in the Collateral under Section 552(b) of the Bankruptcy
Code,".
(c) deleting the date "February 28, 2002" in ss.15.1(q)(i) therein and
replacing it with the date "March 31, 2002";
(d) inserting the text "or, if such date is extended by the Agents in
writing, by April 30, 2002," immediately following the text "March 31, 2002," in
ss.15.1(q)(ii); and
(e) deleting the word "or" at the end of ss.15.1(r), inserting the word
"or" at the end of ss.15.1(s) and by inserting in proper alphabetical order the
following new ss.15.1(t):
"(t) the permanent president and chief executive officer
appointed pursuant to ss.10.18 shall cease to serve for any reason,
unless, within thirty (30) days following the date on which such person
ceases to serve, a new permanent president and chief executive officer
has been appointed and is serving who is reasonably acceptable to the
Agents;".
11. AMENDMENT TO SS.15.3 OF THE CREDIT AGREEMENT. Section 15.3 of the
Credit Agreement is hereby amended by:
(a) deleting the first sentence therein and replacing it with the
following sentence:
"Upon the occurrence of an Event of Default, the Administrative Agent
shall provide the Borrowers, the holder of any Lien, or the lessor of
any goods, which has served upon the Administrative Agent a request
that the holder receive such notice, the United States Trustee and the
Creditors' Committee with five Business Days prior notice to the
exercise of remedies under this section and under the Security
Documents, which such notice will specify the Event of Default and the
basis therefor and will be given by the Administrative Agent via
facsimile to counsel to the Borrowers, the holder of any Lien or lessor
which has provided its facsimile number to the Administrative Agent in
the request described above, the United States Trustee and counsel to
the Creditors' Committee."
(b) inserting the following new paragraph immediately following the
second paragraph of ss.15.3:
"The rights and remedies of the Administrative Agent under
this ss.15.3 as to any Collateral shall be subject the rights of any
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other holder of a Lien in such Collateral to the extent that the Lien
of such other holder is entitled to priority over the Lien of the
Administrative Agent in such Collateral. The rights of such other
holder are those provided by the Orders and by applicable
non-bankruptcy law."
12. AMENDMENT TO EXHIBIT E OF THE CREDIT AGREEMENT. Exhibit E of the
Credit Agreement is hereby amended by (a) inserting the text "(no less than
$2,000,000)" at the end of line number 4 of Exhibit E, and (b) inserting the
words "MINUS the Commitment Reserve" immediately after the words "current Total
Commitment" in line number 7 of Exhibit E.
13. AMENDMENT TO SS.2 OF THE SECURITY AGREEMENT. Section 2(a) of the
Security Agreement is hereby amended by deleting the final sentence therein and
replacing it with the following sentence:
"The foregoing grant of security interest shall not extend to Avoidance
Actions."
14. CONDITIONS TO EFFECTIVENESS. This Amendment shall become effective
upon the receipt by the Administrative Agent of counterparts of this Amendment
executed by the Borrowers, the Agents and the Banks.
15. REPRESENTATIONS AND WARRANTIES. Each Borrower hereby represents and
warrants to the Banks as follows:
5.1. 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, as
amended hereby, continue to be true on the date hereof (except to the
extent of changes resulting from transactions contemplated or permitted
by the Credit Agreement, the other Loan Documents and this Amendment
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);
5.2. 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; (iv) 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; (v) do not conflict with any provision of the corporate
charter or bylaws of such Borrower; and (vi) 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 material
adverse effect on the Borrowers taken as a whole; and
5.3. This Amendment, the Credit Agreement as amended hereby,
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and the other Loan Documents as amended hereby 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.
16. RATIFICATION. Each of the Borrowers hereby adopts again, ratifies
and confirms in all respects, as its own act and deed, each of the Credit
Agreement, as amended hereby, and the other Loan Documents, as amended hereby,
to which such Borrower is a party; each of the Borrowers hereby adopts again,
ratifies and confirms in all respects, as its own act and deed, the grant of a
security interest under the Security Documents, as amended hereby, in all of the
existing and after-acquired or arising goods, accounts, chattel paper,
investment property, documents, instruments, commercial tort claims, deposit
accounts, letter-of-credit rights, general intangibles and other personal
property assets in which any of the Borrower has ownership or other rights,
together with any and all Uniform Commercial Code financing statements and other
instruments or documents previously executed or filed in connection therewith to
create, evidence, perfect or preserve the priority of such security interest in
favor of the Administrative Agent for the benefit of the Banks and the
Administrative Agent. To the extent that it has not already done so, each
Borrower hereby waives all suretyship defenses of whatsoever nature, whether
arising out of either Agent's or any Bank's dealings with any other Borrower in
respect of the Credit Agreement, any other Loan Document or otherwise.
17. EXECUTION IN COUNTERPARTS; DELIVERY BY FACSIMILE. This Amendment
may be executed in any number of counterparts, each of which shall be an
original but all of which together shall constitute one and the same instrument.
This Amendment, to the extent signed and delivered by means of a facsimile
machine, shall be treated in all manner and respects as an original agreement or
instrument and shall be considered to have the same binding legal effect as if
it were the original signed version thereof delivered in person. At the request
of any party hereto or to any such agreement or instrument, each other party
hereto or thereto shall re-execute original forms thereof and deliver them to
all other parties. No party hereto or to any such agreement or instrument shall
raise the use of a facsimile machine to deliver a signature or the fact that any
signature or agreement or instrument was transmitted or communicated through the
use of a facsimile machine as a defense to the formation of a contract and each
party forever waives such defense.
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IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Amendment as of the date set forth above.
THE BORROWERS:
NATIONSRENT, INC.
NRGP, INC.
NATIONSRENT USA, INC.
NATIONSRENT WEST, INC.
NATIONSRENT TRANSPORTATION SERVICES, INC.
NR DELAWARE, INC.
XXXXX EQUIPMENT CORP.
NR DEALER, INC.
NR FRANCHISE COMPANY
BDK EQUIPMENT COMPANY, INC., each as a
debtor and a debtor in possession
By:
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Name:
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Title:
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NATIONSRENT OF TEXAS, LP
NATIONSRENT OF INDIANA, LP, each as a
debtor and a debtor in possession
By: NRGP, Inc., its general partner
By:
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Name:
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Title:
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THE BANKS:
FLEET NATIONAL BANK,
individually and as Administrative Agent
By:
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Name:
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Title:
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FIRST UNION NATIONAL BANK, individually and as Syndication Agent
By:
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Name:
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Title:
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CERTIFICATE OF ACKNOWLEDGMENT
STATE OF DELAWARE )
) ss.
COUNTY OF )
Before me, the undersigned, a Notary Public in and for the county
aforesaid, on this ______ day of February, 2002, personally appeared
____________________________ to me known personally, and who, being by me duly
sworn, deposes and says that s/he is the _______________________________
____________ of each of NATIONSRENT, INC., NRGP, INC., NATIONSRENT WEST, INC.,
XXXXX EQUIPMENT CORP., NATIONSRENT TRANSPORTATION SERVICES, INC., NR DELAWARE,
INC., NATIONSRENT USA, INC., NR DEALER, INC., NR FRANCHISE COMPANY and BDK
EQUIPMENT COMPANY, INC. and that said instrument was signed on behalf of each of
said entities by authority of its Board of Directors, and said ________________
____________________ acknowledged said instrument to be the free act and deed of
each of said entities.
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Notary Public
My commission expires:
STATE OF DELAWARE )
) ss.
COUNTY OF )
Before me, the undersigned, a Notary Public in and for the county
aforesaid, on this _______ day of February, 2002, personally appeared __________
_______________________ to me known personally and who, being by me duly sworn,
deposes and says that s/he is the ___________________________ of NRGP, Inc., the
sole general partner of NATIONSRENT OF TEXAS, LP and NATIONSRENT OF INDIANA, LP
and that said instrument was signed on behalf of each of said entities and said
_____________________ acknowledged said instrument to be the free act and deed
of each of said entities.
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Notary Public
My commission expires:
