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EXHIBIT 4.7
AMENDMENT NO. 1 AND CONSENT
TO
SECOND AMENDED AND RESTATED
REVOLVING CREDIT AND TERM LOAN AGREEMENT
This Amendment No. 1 and Consent (the "Amendment"), dated as of
October 9, 1998, is among NATIONSRENT, INC., a Delaware corporation (the
"Parent"), and its Subsidiaries (collectively with the Parent, the
"Borrowers"), BANKBOSTON, N.A. ("BankBoston"), LASALLE NATIONAL BANK, THE FIFTH
THIRD BANK OF COLUMBUS, NATIONSBANK, N.A., FLEET BANK, N.A., HUNTINGTON
NATIONAL BANK, COMERICA BANK, NATIONAL CITY BANK, DEUTSCHE BANK AG, NEW YORK
AND/OR CAYMAN ISLANDS BRANCHES, FIRST UNION NATIONAL BANK, US TRUST and BANKERS
TRUST COMPANY (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 Second
Amended and Restated Revolving Credit and Term Loan Agreement dated as of
September 24, 1998 (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 the pricing provisions
under the Credit Agreement and to permit reallocations of the dollar amounts of
the Commitments and the Term Loan;
NOW, THEREFORE, in consideration of the foregoing premises, the
parties hereby agree as follows:
Section 1. AMENDMENT TO LOAN DOCUMENTs.
Section 1.1. THE CREDIT AGREEMENT. The Credit Agreement is
hereby amended as follows:
(a) The definition of "Pricing Table" set forth in Section 1.1 of the
Credit Agreement is amended by deleting the table contained in such
definition and substituting in place thereof the following table:
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---------- -------------------------- ------------- ------------- -------------- ---------------- --------------
APPLICABLE APPLICABLE APPLICABLE APPLICABLE APPLICABLE
LEVEL PRICING RATIO EURODOLLAR BASE RATE L/C MARGIN COMMITMENT RATE EURODOLLAR
REVOLVER MARGIN (PER ANNUM) (PER ANNUM) TERM LOAN
MARGIN (PER ANNUM) MARGIN
(PER ANNUM) (PER ANNUM)
---------- -------------------------- ------------- ------------- -------------- ---------------- --------------
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
---------- -------------------------- ------------- ------------- -------------- ---------------- --------------
(b) The text, "(except with respect to payments made in accordance
with Section 8.11)" is inserted immediately after the phrase
"Revolving Credit Maturity Date" in the definition of "Subordinated
Debt".
(c) The text, "except with respect to Subordinated Debt that is repaid
in accordance with Section 8.11" is inserted immediately after the
word "Lenders" in Section 8.1(e).
(d) The text ", except in accordance with Section 8.11," is inserted
immediately after the text "amended and prepaid" appearing in Section
8.1(e) of the Credit Agreement.
(e) The text ", except in accordance with Section 8.11," is inserted
immediately after the text "prepay, redeem or repurchase any of the
Subordinated Debt" appearing in the first sentence of Section 8.11 of
the Credit Agreement.
(f) The following sentence is added to the end of Section 8.11 of the
Credit Agreement:
"Subordinated Debt (other than Subordinated Debt Offering) 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) a Subordinated Debt Offering, 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 borrowings
needed to make such payment AND any other Indebtedness incurred since
the most recent Compliance Certificate delivered to the Administrative
Agent, assuming such payment and borrowing had been completed 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."
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(g) The text "total net property plant and equipment" in Section 7.19
is hereby deleted and replaced with the text "net rental equipment".
(h) All references to "The X. Xxxxx Company" in any Loan Document
shall be deemed to be references to "The X. Xxxxx Co., Inc.".
(i) SCHEDULE 2 to the Credit Agreement is hereby deleted and replaced
in its entirety with SCHEDULE 2 attached hereto.
Section 1.2 JOINDER DOCUMENTS. In the supplement to the stock pledge
agreement dated as of June 5, 1998 wherein NationsRent, Inc. pledges
the stock of Xxxxxxx Equipment Co., all references to "Action Rental"
shall be deemed to be references to "Jobs".
Section 2. CONSENT TO REALLOCATIONS. The Borrowers and the
Administrative Agent have advised the Lenders that in order to syndicate the
Term Loan, the Administrative Agent may need to reallocate the aggregate dollar
amounts of the Commitments and the Term Loan and have requested that the Lenders
permit the Administrative Agent, in its discretion, to make such reallocations
as the Administrative Agent may determine. Each of the Lenders and the Borrowers
hereby agrees that the Administrative Agent may reallocate the dollar amount of
the Commitments and the Term Loan in any manner that the Administrative Agent so
determines PROVIDED that (i) the aggregate dollar amount of the sum of the
Commitments and the Term Loan shall not be less than $435,000,000 (less any
permanent prepayments or scheduled principal payments that the Borrowers may
have made prior to the effectiveness of any reallocation), (ii) the aggregate
dollar amount of the Commitments shall not be less than $260,000,000, (iii) no
Lender's Commitment or portion of such Lender's Term Loan shall be changed
without the prior written consent of such Lender and (iv) prior to giving effect
to any such reallocation, the Administrative Agent shall have provided written
notice to the Lenders and the Borrowers of such reallocation. Each of the
Lenders and the Borrowers further agrees that the Administrative Agent may make
such conforming changes to the Credit Agreement as the Administrative Agent may
determine are necessary to accomplish the reallocations authorized herein,
including, without limitation, revisions to SCHEDULE 1 to the Credit Agreement
provided that prior to giving effect to any such changes, the Administrative
Agent shall have provided written notice to the Lenders and the Borrowers of
such changes. If requested by the Administrative Agent, the Borrowers agree to
issue new Notes, and the Lenders agree to return any old Notes that are replaced
by such new Notes, as applicable in connection with any such reallocations.
Section 3. CONDITIONS TO EFFECTIVENESS. The effectiveness of this
Amendment shall be conditioned upon the satisfaction of the following
conditions precedent:
Section 3.1. 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.
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Section 3.2. LEGALITY OF TRANSACTION. No change in applicable law
shall have occurred as a consequence of which it shall have become and continue
to be unlawful on the date this Amendment is to become effective (a) for the
Administrative Agent or any Lender to perform any of its obligations under any
of the Loan Documents or (b) for any Borrower to perform any of its agreements
or obligations under any of the Loan Documents.
Section 3.3. PERFORMANCE. The Borrowers shall have duly and properly
performed, 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, except with respect to certain
legal opinions to be delivered in connection with the Credit Agreement and the
termination of certain UCC-1 financing statements, all of which shall be
delivered to the Administrative Agent pursuant to the terms of a post-closing
agreement dated as of September 24, 1998. 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.
Section 3.4. PROCEEDINGS AND DOCUMENTS. All corporate, governmental
and other proceedings in connection with the transactions contemplated by this
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.
Section 4. 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 the 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
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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 the
Borrower, enforceable against the 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.
Section 5. 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.
Section 6. 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.
Section 7. EFFECTIVE DATE. Subject to the satisfaction of the
conditions precedent set forth in ss.3 hereof, this Amendment shall be deemed
to be effective as of the date hereof.
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IN WITNESS WHEREOF, the undersigned have duly executed this Amendment
as of the date first above written.
THE BORROWERS:
NATIONSRENT, INC.
NATIONSRENT OF ALABAMA, 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.
NATIONSRENT OF TEXAS, INC.
NATIONSRENT OF WEST VIRGINIA, INC.
A-ACTION RENTAL, INC.
A TO Z RENTS IT, INC.
A TO Z RENTS IT, INC. #2
THE XXXX-XXXX COMPANY
CENTRAL ALABAMA RENTAL
CENTER, INC.
XXXXXXX TRAILER
MANUFACTURING COMPANY, INC.
GOLD COAST AERIAL LIFT, INC.
HIGH REACH COMPANY, INC.
THE X. XXXXX CO., INC.
XXXXXXX EQUIPMENT CO.
SAM'S EQUIPMENT RENTAL, INC.
TITAN RENTALS, INC.
TENNESSEE TOOL AND SUPPLY, INC.
SOUTHEAST RENTAL & LEASING, INC.
BY: /s/
---------------------------------------
NAME:
TITLE:
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THE LENDERS:
BANKBOSTON, N.A.,
individually and as Administrative Agent
By: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx, Director
LASALLE NATIONAL BANK,
individually and as Documentation Agent
By: /s/ Xxxx X. Xxxx
---------------------------------------
Name: Xxxx X. Xxxx
Title: Vice President
THE FIFTH THIRD BANK OF COLUMBUS
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President
NATIONSBANK, N.A.,
individually and as Co-Agent
By: /s/ Xxxxxxx Xxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
FLEET BANK, N.A.,
individually and as Co-Agent
By: /s/ Xxxxxxxxxxx Xxxxxxx
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Name: Xxxxxxxxxxx Xxxxxxx
Title: Vice President
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HUNTINGTON NATIONAL BANK
By: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
Title: Vice President
COMERICA BANK
By: /s/ Xxx X. Xxxxx
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Name: Xxx X. Xxxxx
Title: Vice President
NATIONAL CITY BANK
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Vice President
DEUTSCHE BANK AG, NEW YORK AND/OR CAYMAN
ISLAND BRANCHES
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Director
By: /s/ Xxxx Xxxxxxxx
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Name: Xxxx Xxxxxxxx
Title: Director
FIRST UNION NATIONAL BANK
By: /s/ Xxxxxxxxx X. Xxxxx
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Name: Xxxxxxxxx X. Xxxxx
Title: Senior Vice President
USTRUST
By: /s/
---------------------------------------
Name:
Title:
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BANKERS TRUST COMPANY
By: /s/ G. Xxxxxx Xxxxx
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Name: G. Xxxxxx Xxxxx
Title: Vice President
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SCHEDULE 2
SUBSIDIARIES OF NATIONSRENT, INC.
As of October 9, 1998
NationsRent, Inc., a Delaware Corporation
WHOLLY OWNED SUBSIDIARIES THEREOF:
NationsRent of Ohio, Inc., a Delaware corporation
NationsRent of Georgia, Inc., a Delaware corporation
NationsRent of Louisiana, Inc., a Delaware corporation
NationsRent of Michigan, Inc., a Delaware corporation
NationsRent of Tennessee, Inc., a Delaware corporation
WHOLLY OWNED SUBSIDIARIES THEREOF:
Tennessee Tool and Supply, Inc., a Tennessee corporation
NationsRent of Indiana, Inc., a Delaware corporation
NationsRent of Kentucky, Inc., a Delaware corporation
Xxxxxxx Trailer Manufacturing Company, Inc., an Ohio corporation
WHOLLY OWNED SUBSIDIARIES THEREOF:
Sam's Equipment Rental, Inc., an Ohio corporation
NationsRent of West Virginia, Inc., a Delaware corporation
WHOLLY OWNED SUBSIDIARIES THEREOF:
Titan Rentals, Inc., a West Virginia corporation
NationsRent of Florida, Inc., a Delaware corporation
NationsRent of Texas, Inc., a Delaware corporation
A-Action Rental, Inc., a Pennsylvania corporation
Xxxxxxx Equipment Company, a Kentucky corporation
The Xxxx-Xxxx Company, an Ohio corporation
The X. Xxxxx Co., Inc., a Michigan corporation
A to Z Rents It, Inc., a Texas corporation
A to Z Rents It, Inc. #2, a Texas corporation
Central Alabama Rental Center Inc., an Alabama corporation
High Reach Company, Inc., a Florida corporation
NationsRent of Alabama, Inc., a Delaware corporation
Gold Coast Aerial Lift, Inc., a Florida corporation
Southeast Rental & Leasing, Inc., a Florida corporation
