EXHIBIT 10.48
XXXXXXX XXXXX RENTAL, L.P.
FIRST AMENDMENT TO TERM LOAN CREDIT AGREEMENT
This FIRST AMENDMENT TO TERM LOAN CREDIT AGREEMENT (this "Amendment") is
dated as of June 30, 1999 and entered into by and among XXXXXXX XXXXX RENTAL,
L.P., a Pennsylvania limited partnership ("Company"), XXXXXXX XXXXX RENTAL
HOLDINGS, L.P., a Pennsylvania limited partnership ("Holdings"), XXXXXXX SACHS
CREDIT PARTNERS L.P. ("GSCP") as arranger and syndication agent (in such
capacity, "Syndication Agent"), THE FINANCIAL INSTITUTIONS LISTED ON THE
SIGNATURE PAGES HEREOF (each individually referred to herein as a "Lender" and
collectively as "Lenders") and FLEET NATIONAL BANK ("Fleet"), as administrative
agent for Lenders (in such capacity, "Administrative Agent") and Fleet as
collateral agent for Lenders (in such capacity, "Collateral Agent") (such
agreement as amended, supplemented or otherwise modified from time to time, the
"Agreement"). Capitalized terms used herein without definition shall have the
same meanings herein as set forth in the Agreement and in the amendments
contained in Section 1 hereof.
RECITALS
WHEREAS, Company requested that Requisite Lenders agree to (i) revise the
applicable margins in respect of the Term Loans; and (ii) revise certain
definitions in respect thereof.
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
SECTION 1. AMENDMENTS TO AGREEMENT
1.1 Amendments to Section 1: Definitions
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A. Subsection 1.1 of the Agreement is hereby amended by the addition of
the following definition, which shall be inserted in proper alphabetical order:
"First Amendment" means that certain First Amendment to this Agreement
dated as of June 30, 1999.
"First Amendment Effective Date" has the meaning assigned to that term
in the First Amendment.
B. Subsection 1.1 of the Agreement is hereby further amended by deleting
the definitions of "Applicable Base Rate Margin" and "Applicable Eurodollar Rate
Margin" in their entirety and substituting the following therefor:
"Applicable Base Rate Margin" means prior to the First Amendment
Effective Date 1.75% per annum and on and from the First Amendment Effective
Date 2.50% per annum.
"Applicable Eurodollar Rate Margin" means prior to the First Amendment
Effective Date 2.75% per annum and on and from the First Amendment Effective
Date 3.50% per annum.
SECTION 2. CONDITIONS TO EFFECTIVENESS
Section 1 of this Amendment shall become effective only upon the
satisfaction of all of the following conditions precedent (the date of
satisfaction of such conditions being referred to herein as the "First Amendment
Effective Date").
A. Notification. Syndication Agent shall have notified each of the
Lenders, Company and Holdings on or before July 2, 1999, that this Amendment
shall have become effective.
B. Execution. Company, Holdings, Subsidiary Guarantors and Requisite
Lenders shall have executed this Amendment.
C. Necessary Consents. Company shall have obtained all material consents
necessary or advisable in connection with this Amendment.
SECTION 3. COMPANY'S REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Amendment and to amend the
Agreement in the manner provided herein, each of Holdings, Company, and
Subsidiary Guarantors represents and warrants to each Lender on the date hereof
that the following statements are true, correct and complete:
A. Corporate Power and Authority. Each of Holdings, Company, and
Subsidiary Guarantors has all requisite corporate or partnership (as applicable)
power and authority to enter into this Amendment and to carry out the
transactions contemplated by, and perform its obligations under the Agreement as
amended by this Amendment (the "Amended Agreement") and the other Loan Documents
to which it in a party.
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B. Authorization of Agreements. The execution and delivery of this
Amendment and the performance of the Amended Agreement and the other Loan
Documents to which such Person is a party have been duly authorized by all
necessary corporate or partnership (as applicable) action on the part of each of
Holdings, Company, and Subsidiary Guarantors.
C. No Conflict. The execution and delivery by each of Holdings, Company,
and Subsidiary Guarantors of this Amendment and the performance by each of
Holdings, Company, and Subsidiary Guarantors of the Amended Agreement and the
other Loan Documents, to which each is a party, do not and will not (i) violate
any provision of any law or any governmental rule or regulation applicable to
each of Holdings, Company, and Subsidiary Guarantors, the Certificate or
Articles of Incorporation or Bylaws (or other analogous organizational document)
of each of Holdings, Company, and Subsidiary Guarantors or any order, judgment
or decree of any court or other agency of government binding on each of
Holdings, Company, and Subsidiary Guarantors, (ii) conflict with, result in a
breach of or constitute (with due notice or lapse of time or both) a default
under any Contractual Obligation of each of Holdings, Company, and Subsidiary
Guarantors, other than could not reasonably be expected to have a Material
Adverse Effect (iii) result in or require the creation or imposition of any Lien
upon any of the properties or assets of each of Holdings, Company, and
Subsidiary Guarantors (other than any Permitted Encumbrances or Liens created
under any of the Loan Documents in favor of Collateral Agent on behalf of
Lenders), or (iv) require any approval of stockholders or partners or any
approval or consent of any Person under any Contractual Obligation of each of
Holdings, Company, and Subsidiary Guarantors, except for such approvals or
consents which will be obtained on or before the First Amendment Effective Date
and disclosed in writing to Lenders other than could not reasonably be expected
to have a Material Adverse Effect.
D. Governmental Consents. The execution and delivery by Company of this
Amendment and the performance by each of Holdings, Company, and Subsidiary
Guarantors of the Amended Agreement and the other Loan Documents to which such
Person is a party do not require any registration with, consent or approval of,
or notice to, or other action to, with or by, any federal, state or other
governmental authority or regulatory body.
E. Binding Obligation. This Amendment, the Amended Agreement and the
Subsidiary Guaranties have been duly executed and delivered by each of Holdings,
Company, and Subsidiary Guarantors to which such Person is a party and are the
legally valid and binding obligations of each of Holdings, Company, and
Subsidiary Guarantors, enforceable against such Person in accordance with their
respective terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or limiting creditors'
rights generally or by equitable principles relating to enforceability.
F. Absence of Default. No event has occurred and is continuing or will
result from the consummation of the transactions contemplated by this Amendment
that would constitute an Event of Default or a Potential Event of Default.
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SECTION 4. ACKNOWLEDGMENT AND CONSENT
Each of Xxxxxxx Xxxxx International, L.P., Xxxxxxx Xxxxx Sales and Leasing,
L.P., Xxxxxxx Xxxxx Capital Corporation and Xxxxxxx Xxxxx Holdings Capital
Corporation is a party to the Subsidiary Guaranty and Pledge and Security
Agreement, and Holdings is a party to the Holdings Guaranty and the Pledge and
Security Agreement, in each case as amended through the First Amendment
Effective Date, pursuant to which each of Xxxxxxx Xxxxx International, L.P.,
Xxxxxxx Xxxxx Sales and Leasing, L.P., Xxxxxxx Xxxxx Capital Corporation and
Xxxxxxx Xxxxx Holdings Capital Corporation has (i) guarantied the Obligations
and (ii), created Liens in favor of Lenders on certain Collateral to secure its
obligations under the Subsidiary Guaranty (in the case of Subsidiary Guarantors)
and the Holdings Guaranty (in the case of Holdings). Xxxxxxx Xxxxx
International, L.P., Xxxxxxx Xxxxx Sales and Leasing, L.P., Xxxxxxx Xxxxx
Capital Corporation, Xxxxxxx Xxxxx Holdings Capital Corporation and Holdings are
collectively referred to herein as the "Credit Support Parties", and the
Subsidiary Guaranty, the Holdings Guaranty and the Pledge and Security Agreement
are collectively referred to herein as the "Credit Support Documents".
Each Credit Support Party hereby acknowledges that it has reviewed the
terms and provisions of the Agreement and this Amendment and consents to the
amendment of the Agreement effected pursuant to this Amendment. Each Credit
Support Party hereby confirms that each Credit Support Document to which it is a
party or otherwise bound and all Collateral encumbered thereby will continue to
guaranty or secure, as the case may be, to the fullest extent possible the
payment and performance of all "Guarantied Obligations" and "Secured
Obligations", as the case may be (in each case as such terms are defined in the
applicable Credit Support Document), including without limitation the payment
and performance of all such "Guarantied Obligations" or "Secured Obligations",
as the case may be, in respect of the Obligations of Company now or hereafter
existing under or in respect of the Amended Agreement, the Term Notes and the
other Loan Documents, all as defined therein.
Each Credit Support Party acknowledges and agrees that any of the Credit Support
Documents to which it is a party or otherwise bound shall continue in full force
and effect and that all of its obligations thereunder shall be valid and
enforceable in accordance with their respective terms, except as may be limited
by bankruptcy, insolvency, reorganization, moratorium or similar laws relating
to or limiting creditors' rights generally or by equitable principles relating
to enforceability and shall not be impaired or limited by the execution or
effectiveness of this Amendment.
Each Credit Support Party acknowledges and agrees that (i) notwithstanding
the conditions to effectiveness set forth in this Amendment, such Credit Support
Party (other than Holdings) is not required by the terms of the Agreement or any
other Loan Document to consent to the amendments to the Agreement effected
pursuant to this Amendment and (ii) nothing in the Agreement, this Amendment or
any other Loan Document shall be deemed to require the consent of such Credit
Support Party to any future amendments to the Agreement.
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SECTION 5. MISCELLANEOUS
A. Reference to and Effect on the Agreement and the Other Loan Documents.
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(i) On and after the First Amendment Effective Date, each reference in
the Agreement to "this Agreement", "hereunder", "hereof", "herein" or words
of like import referring to the Agreement, and each reference in the other
Loan Documents to the "Agreement", "thereunder", "thereof" or words of like
import referring to the Agreement shall mean and be a reference to the
Agreement as amended by this Amendment.
(ii) Except as specifically amended by this Amendment, the Agreement
and the other Loan Documents shall remain in full force and effect and are
hereby ratified and confirmed.
(iii) The execution, delivery and performance of this Amendment shall
not, except as expressly provided herein, constitute a waiver of any
provision of, or operate as a waiver of any right, power or remedy of any
Agent or Lender under, the Agreement or any of the other Loan Documents.
B. Headings. Section and subsection headings in this Amendment are
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included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose or be given any substantive effect.
C. Applicable Law. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
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PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING WITHOUT
LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW
YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
D. Counterparts. This Amendment may be executed in any number of
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counterparts and by different parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument;
signature pages may be detached from multiple separate counterparts and attached
to a single counterpart so that all signature pages are physically attached to
the same document.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
COMPANY: XXXXXXX XXXXX RENTAL, L.P..
By: ACR Management LLC, as its general partner
By: ______________________________________
Name:
Title:
HOLDINGS XXXXXXX XXXXX RENTAL HOLDINGS, L.P. as Holdings and as a
Credit Support Party
By: ACR Management LLC, as its general partner
By: ______________________________________
Name:
Title:
Notice Address:
Xxxxxxx Xxxxx Rental, L.P.
0000 Xxxx Xxxxxx Xxxx
Xxxx Xxxxxxx, XX 00000
Attention: Chief Financial Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Xxxx Capital, Inc.
Xxx Xxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxx Xxxxxx
Telephone (000) 000-0000
Facsimile: (000) 000-0000
S-1
and:
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxxxxxx Xxxxxx
Telephone (000) 000-0000
Facsimile: (000) 000-0000
CREDIT SUPPORT XXXXXXX XXXXX INTERNATIONAL,
PARTIES: L.P.
as a Credit Support Party
By: Xxxxxxx International Equipment Services Corpora-
tion, as its general partner
By:
-------------------------------------------------
Name:
Title:
XXXXXXX XXXXX SALES AND LEASING, L.P.
as a Credit Support Party
By: Xxxxxxx Sales and Leasing Corporation, as its
general partner
By: ______________________________________
Name:
Title:
XXXXXXX XXXXX CAPITAL CORPORATION
as a Credit Support Party
By: ______________________________________
Name:
Title:
S-2
XXXXXXX XXXXX HOLDINGS CAPITAL CORPORATION
as a Credit Support Party
By: ______________________________________
Name:
Title:
S-3
AGENTS AND LENDERS:
XXXXXXX SACHS CREDIT PARTNERS L.P.,
individually as a Lender and as Syndication Agent
By: __________________________________________
Authorized Signatory
Notice Address:
Xxxxxxx Xxxxx Credit Partners L.P.
c/o Goldman, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Makinos
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
S-4
FLEET NATIONAL BANK,
individually as a Lender and as Administrative
Agent and Collateral Agent
By: ____________________________________
Name: Xxxx X. Xxxxxxxxx
Title: Vice President
Notice Address:
Fleet National Bank
Xxx Xxxxxxx Xxxxx
XX/XX/X00X
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Fleet National Bank
Xxx Xxxxxxx Xxxxx
XX/XX/X00X
Xxxxxx, XX 00000
Attention: Xxx Xxxxx/Xxxx Xxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
S-5
FIRST DOMINION FUNDING I
as a Lender
By: ____________________________________
Name:
Title:
Notice Address:
First Dominion Capital
1330 Avenue of the Xxxxxxxx, 00xx xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxx/Xxx Xxxxxxxx
Telephone: 000-000-0000
Facsimile: 212-603-8505
S-6
FIRST DOMINION FUNDING II
as a Lender
By: ____________________________________
Name:
Title:
Notice Address:
First Dominion Capital
1330 Avenue of the Xxxxxxxx, 00xx xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxx/Xxx Xxxxxxxx
Telephone: 000-000-0000
Facsimile: 212-603-8505
X-0
XXXXXXX XXXXXXXX (XXX XXXX), INC.
as a Lender
By: ____________________________________
Name:
Title:
Notice Address:
Toronto Dominion (New York)
000 Xxxxxx Xxxxxx
Xxx. 0000
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
S-8
XXXXXXX XXXXX DEBT STRATEGIES
PORTFOLIO
as a Lender
By: Xxxxxxx Xxxxx Asset Management, L.P.,
As Investment Advisor
By: ____________________________________
Name:
Title:
Notice Address:
C/o Merrill Xxxxx Asset Management
000 Xxxxxxxx Xxxx Xxxx-Xxxx 0X
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxxx Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
S-9
XXXXXXX XXXXX DEBT STRATEGIES FUND II, INC.
as a Lender
By: ____________________________________
Name:
Title:
Notice Address:
c/o Merrill Xxxxx Asset Mangement
800 Scudders Mill Road - Area 1B
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxxx Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
S-10
XXXXXXX XXXXX GLOBAL INVESTMENT
SERIES: INCOME STRATEGIES PORTFOLIO
as a Lender
By: Xxxxxxx Xxxxx Asset Management, L.P., as
Investment Advisor
By: ____________________________________
Name:
Title:
Notice Address:
c/o Merrill Xxxxx Asset Management
800 Scudders Mill Road - Area 1B
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxxx Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
S-11
