EXHIBIT 10.35
[EXECUTION COPY]
THIRD AMENDMENT, CONSENT AND LIMITED WAIVER
TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS THIRD AMENDMENT, CONSENT AND LIMITED WAIVER TO AMENDED AND
RESTATED CREDIT AGREEMENT (the "Third Amendment") dated as of May 22, 1997
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relates to that certain Amended and Restated Credit Agreement dated as of
September 24, 1996 (as previously amended and as further amended, restated,
supplemented or otherwise modified from time to time, the "Credit Agreement"),
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among Acme Alabama, Inc., RSC Industrial Corporation (formerly known as Acme
Xxxxx Inc.), Acme Xxxxx Inc., Acme Rents, Inc., The Air & Pump Company and
Xxxxxx Xxxxx Equipment, Inc. (collectively, the "Borrowers"), RSC Acquisition
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Corp., RSC Holdings, Inc. and Rental Service Corporation (collectively, the
"Parent Guarantors"), each financial institution identified on Annex I thereto
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(together with its successors and permitted assigns pursuant to Section 12.8
thereof, a "Lender"), the Issuing Bank and BT Commercial Corporation ("BTCC")
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acting as agent for the Lenders and the Issuing Bank (in such capacity, together
with any successor agent appointed pursuant to Section 11.8 thereof, the
"Agent").
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1. DEFINITIONS. Capitalized terms used and not otherwise defined
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herein have the meanings assigned to them in the Credit Agreement.
2. AMENDMENTS TO THE CREDIT AGREEMENT. Upon the "Amendment Effective
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Date" (as defined in Section 6 below), the Credit Agreement is hereby amended as
follows:
2.1 AMENDMENTS TO SECTION 1.1. Section 1.1 of the Credit
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Agreement is hereby amended as follows:
(a) the definition of "Acme Xxxxx" is amended and restated
in its entirety to read as follows:
Acme Dixie means RSC Industrial Corporation, a Delaware
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corporation formerly known as Acme Dixie Inc.
(b) the definition of "Applicable Eurodollar Rate Margin"
is amended and restated in its entirety to read as set forth on
Exhibit I attached hereto and made a part hereof;
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(c) the definition of "Applicable Prime Rate Margin" is
amended and restated in its entirety to read
as set forth on Exhibit II attached hereto and made a part hereof;
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(d) the definition of "Commitment" is amended to delete the
reference therein to "$200,000,000" and to substitute in lieu thereof
"$300,000,000";
(e) the definition of "Interest Coverage Ratio" is amended
and restated in its entirety to read as follows:
Interest Coverage Ratio as of a Quarterly Determination Date
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means, solely for purposes of determining the Applicable
Eurodollar Rate Margin and the Applicable Prime Rate Margin, the
ratio of (i) EBITA to (ii) Interest Expense for the six-month
period ending on such Quarterly Determination Date.
(f) the following definition of "New Offering" is hereby
added to Section 1.1 of the Credit Agreement in proper alphabetical
order:
New Offering means the public offering by RSC of the sale of
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shares of its common stock, to be made concurrently with the sale
of shares of RSC's common stock by certain shareholders of RSC.
(g) the definition of "Pro Forma" is amended and restated
in its entirety to read as follows:
Pro Forma means the unaudited pro forma consolidated balance
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sheet of RSC contained in the Registration Statement for the New
Offering, dated as of March 31, 1997, and giving effect to the
New Offering, the consummation of the acquisitions described
therein and the extensions of credit contemplated by this Credit
Agreement.
(h) the definition of "Registration Statement" is amended
and restated in its entirety to read as follows:
Registration Statement means, as applicable, (i) the
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Registration Statement No. 333-0549 on Form S-1 filed by RSC with
the Commission on June 13, 1996 with respect to the IPO, as
amended by amendments provided to the Agent pursuant to Section
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5.1(a) and (ii) the Registration Statement No. 333-____ on Form
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S-1 filed by RSC with the
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Commission on May 9, 1997 with respect to the New Offering, as
amended by amendments provided to the Agent pursuant to Section 5
of the Third Amendment.
(i) the following definition of "Third Amendment" is hereby
added to Section 1.1 of the Credit Agreement in proper alphabetical
order:
Third Amendment means the Third Amendment, Consent and
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Limited Waiver dated as of May 22, 1997 to Amended and Restated
Credit Agreement dated as of September 24, 1996, among the
Borrowers, the Parent Guarantors, the Agent and the Lenders.
(j) the following definition of "Third Amendment Effective
Date" is hereby added to Section 1.1 of the Credit Agreement in proper
alphabetical order:
Third Amendment Effective Date means the "Amendment
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Effective Date" under (and as defined in) the Third Amendment.
2.2 AMENDMENT TO SECTION 4.4. Section 4.4 of the Credit
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Agreement is hereby amended and restated in its entirety to read as
follows:
4.4 Unused Line Fee. The Borrowers jointly and severally
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agree to pay to the Agent, for the account of the Lenders in
accordance with their respective Proportionate Shares, a fee (the
"Unused Line Fee"), accruing at the rate of 0.25% per annum on the
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average daily amount by which the Commitments at the close of business
on such day exceeds the sum of (a) the outstanding principal amount of
the Loans, plus (b) the outstanding Letter of Credit Obligations, for
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the period commencing on the Third Amendment Effective Date and ending
on the Expiration Date, such Unused Line Fee being payable (x)
monthly, in arrears, commencing on the first day of the calendar month
immediately following the Third Amendment Effective Date and (y) on
the Expiration Date.
2.3 AMENDMENT TO SECTION 4.5(a). Section 4.5(a) of the Credit
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Agreement is hereby amended to delete the reference to "4.75%" therein and
to substitute in lieu thereof "4.00%".
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2.4 AMENDMENTS TO SECTION 4.6. Section 4.6 of the Credit
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Agreement is hereby amended as follows:
(a) to delete each reference to "3.25%" therein and to
substitute in lieu thereof "2.50%"; and
(b) to delete the reference to "4.75%" therein and to
substitute in lieu thereof "4.00%".
2.5 AMENDMENT TO SECTION 6.7. Section 6.7 of the Credit
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Agreement is hereby amended to add the phrase "and the New Offering"
immediately following the reference to "the IPO" therein.
2.6 AMENDMENT TO SECTION 6.9. Section 6.9 of the Credit
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Agreement is hereby amended and restated in its entirety to read as
follows:
6.9 Financial Data. The Credit Parties have provided to
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the Agent and each of the Lenders complete and accurate copies of (a)
the audited consolidated financial statements for RSC and its
Subsidiaries as of December 31, 1996, (b) the unaudited financial
statements of RSC and its Subsidiaries as of March 31, 1997, (c) the
Pro Forma and (d) the Projections. Such Financial Statements have
been prepared in accordance with GAAP consistently applied throughout
the periods involved except as stated therein and fairly present the
respective consolidated financial positions, results of operations and
cash flows of RSC and its Subsidiaries for each of the periods
covered, subject in the case of clause (b) to audit adjustments and
reclassification and month-end reconciliations. None of the Credit
Parties has any Contingent Obligation, contingent liability or
liability for taxes, long-term leases or commitments, which is not
reflected (to the extent required by GAAP consistently applied) in
such Financial Statements. The Pro Forma fairly presents on a pro
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forma basis the financial condition of RSC and its Subsidiaries as of
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March 31, 1997 but after giving effect to the New Offering and the
consummation of the acquisitions described therein, and reflects on a
pro forma basis those liabilities reflected in the notes thereto and
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resulting from consummation of the New Offering, the acquisitions
described therein and the transactions contemplated by the Credit
Documents. The Projections and the assumptions expressed in the Pro
Forma are reasonable based on the information available to the Credit
Parties at the time so furnished.
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2.7 AMENDMENT TO ANNEX I. Annex I to the Credit Agreement is
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hereby deleted in its entirety and new Annex I, attached hereto as Exhibit
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III, is substituted in lieu thereof.
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2.8 AMENDMENT TO EXHIBIT I. Exhibit I to the Credit Agreement
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(Pro Forma) is hereby deleted in its entirety.
2.9 AMENDMENT TO EXHIBIT J. Exhibit J to the Credit Agreement
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(Projections) is hereby deleted in its entirety and new Exhibit J, attached
hereto as Exhibit IV, is substituted in lieu thereof.
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2.10 AMENDMENT TO EXHIBIT O. Exhibit O to the Credit Agreement
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(Form of Compliance Certificate) is hereby deleted in its entirety and new
Exhibit O, attached hereto as Exhibit V, is substituted in lieu thereof.
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2.11 AMENDMENT TO SCHEDULE B. Schedule B to the Credit Agreement
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is hereby deleted in its entirety and new Schedule B, attached hereto as
Exhibit VI, is substituted in lieu thereof.
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2.12 AMENDMENTS TO SCHEDULE D. Schedule D to the Credit
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Agreement is hereby amended as set forth on Exhibit VII attached hereto.
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3. CONSENT. As of the date the Agent shall have received
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counterparts hereof executed by each Borrower, each Parent Guarantor, the Agent
and the Majority Lenders, the Majority Lenders hereby approve (a) the following
acquisitions (collectively, the "Acquisitions"): (i) the acquisition by Xxxxxx
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Xxxxx of substantially all of the assets of Brute Equipment, Inc., an Iowa
corporation d/b/a Foxx-Hy Reach Company ("FHR") on substantially the terms set
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forth in the Asset Purchase Agreement dated as of April 25, 1997 by and among
RSC, Xxxxxx Xxxxx, FHR and Xxxxxx X. Xxxxxx, as "Seller Stockholder", a copy of
which is attached hereto as Exhibit VIII (the "FHR Asset Purchase Agreement")
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and (ii) the acquisition by Xxxxxx Xxxxx of substantially all of the assets of
Central States Equipment, Inc., a Kansas corporation ("CSE") and Equipment
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Lessors, Inc., a Kansas corporation ("EL") on substantially the terms set forth
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in the Asset Purchase Agreement dated as of April 26, 1997 by and among Xxxxxx
Xxxxx, CSE, EL and Xxxx Xxxxxx, as the "Seller Stockholder", a copy of which is
attached hereto as Exhibit IX (the "CSE Asset Purchase Agreement" and, together
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with the FHR Asset Purchase Agreement, the "Purchase Agreements"); provided,
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however, that, if the Amendment Effective Date has not then occurred, then prior
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to or concurrently with the consummation of the applicable Acquisition described
above, (x)
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the Agent shall have received the documents described in clauses (v) through
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(xiv), (xv)(A), (xvi), (xviii) and (xxii) of Section 6(a) below, in each case
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pertaining to such Acquisition and otherwise in form and substance satisfactory
to the Agent and (y) each of the conditions set forth in Sections 6(b), 6(c) and
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6(e) below, as they pertain to such Acquisition, shall have been satisfied; and
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(b) the Stock Option Plan for Key Employees, the 1996 Equity Participation Plan
of Rental Service Corporation and the Rental Service Corporation Employee
Qualified Stock Purchase Plan, copies of which are attached hereto as Exhibit X.
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4. LIMITED WAIVER. As of the date the Agent shall have received
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counterparts hereof executed by each Borrower, each Parent Guarantor, the Agent
and the Majority Lenders, the Majority Lenders hereby waive (a) the provisions
of Section 8.13 of the Credit Agreement and Section 9 of the Security Agreement
in respect of (and solely in respect of) the requirements that (i) the Agent
receive at least 30 Business Days' prior written notice of Acme Dixie's change
of name to RSC Industrial Corporation (the "Acme Xxxxx Name Change") and (ii)
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the Agent receive amended exhibits, financing statements and other documents
relating to the Acme Xxxxx Name Change at least 10 Business Days prior thereto
so long as all documents pertaining thereto are delivered pursuant to Section 6
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below and (b) for a period of 30 days after the consummation of the applicable
Acquisition, the provisions of Sections 4.12 and 8.17 of the Credit Agreement in
respect of (and solely in respect of) the requirement that Lockbox Agreements or
Restricted Account Agreements be executed with respect to each bank account
opened or acquired by Xxxxxx Xxxxx in connection with such Acquisition into
which Collections and proceeds of Collateral are to be deposited, provided that
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Xxxxxx Xxxxx shall transfer balances in such bank accounts to its Concentration
Account in accordance with procedures satisfactory to the Agent.
5. REPRESENTATIONS AND WARRANTIES. Each of the Borrowers hereby
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represents and warrants to each Lender, the Issuing Bank and the Agent that, as
of the Amendment Effective Date (after giving effect to this Third Amendment and
the New Offering) and as of the date of consummation of each Acquisition (after
giving effect to the consents contained in Section 3 above and the limited
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waivers contained in Section 4 above):
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(a) Each of the representations and warranties contained in the
Credit Agreement and the other Credit Documents are true and correct on and
as of such dates, as if then made, other than representations and
warranties that relate solely to an earlier date;
(b) No Default or Event of Default shall have occurred and is
continuing;
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(c) No change, occurrence, event or development or event involving a
prospective change that is reasonably likely to have a Material Adverse
Effect shall have occurred and be continuing;
(d) No Change of Control has occurred; and
(e) Each Acquisition is an Acquisition permitted by Section 8.5(g) of
the Credit Agreement.
6. AMENDMENT EFFECTIVE DATE. Except as set forth in Section 3
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above, this Third Amendment shall become effective as of the date, on or before
June 30, 1997 (the "Amendment Effective Date") when each of the following
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conditions shall have been satisfied, provided, however, that to the extent
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either Acquisition has not been consummated on or prior to the date on which
this Third Amendment would otherwise become effective, the conditions relating
to such Acquisition need not be satisfied in order for the Amendment Effective
Date to occur:
(a) the Agent shall have received each of the following documents, in
each case in form and substance reasonably satisfactory to the Agent:
(i) counterparts hereof executed by each Borrower, each Parent
Guarantor, the Agent and each Lender;
(ii) an amended and restated Note made by each Borrower, in each
case payable to BTCC, each in a principal amount of $122,500,000 and
otherwise in substantially in the form of Exhibit D to the Credit
Agreement;
(iii) a Reaffirmation of Guaranty and Contribution Agreements
executed by each Borrower in favor of the Agent, the Issuing Bank and
the Lenders, pursuant to which each Borrower confirms its full and
unconditional guarantee of the payment and performance of the
Obligations of each other Borrower;
(iv) if the Comtect Consolidation has not then been consummated,
a Reaffirmation of Guaranty and Contribution Agreement executed by
each Subsidiary Guarantor in favor of the Agent, the Issuing Bank and
the Lenders, pursuant to which each Subsidiary Guarantor confirms its
full and unconditional guarantee of the payment and performance of the
Obligations of Acme Xxxxx;
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(v) an amendment to the Security Agreement giving effect to the
Acquisitions;
(vi) to the extent that Xxxxxx Xxxxx acquires any federally
registered trademarks or trademark applica tions in either
Acquisition, an amendment to the Trademark Security Agreement giving
effect to such Acquisition;
(vii) Collateral Access Agreements with respect to each real
property location leased or subleased by Xxxxxx Xxxxx from the
applicable selling shareholders where assets acquired in either
Acquisition are or will be located (provided that Xxxxxx Xxxxx shall
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use its best efforts to obtain Collateral Access Agreements with
respect to all other real property locations where such assets are or
will be located in accordance with Section 7.17 of the Credit
Agreement);
(viii) collateral assignments of all of RSC's and Xxxxxx Xxxxx'
rights under the Purchase Agreements;
(ix) (A) Uniform Commercial Code financing statements naming
Xxxxxx Xxxxx as debtor and the Agent as secured party as to the assets
acquired in the Acquisitions for all jurisdictions as may be necessary
or desirable to perfect the Liens granted to the Agent, for the
benefit of the Holders, in such assets pursuant to the Security
Agreement and (B) Uniform Commercial Code financing and amendment
statements reflecting the Acme Xxxxx Name Change;
(x) personal property tax, lien and judgment searches against
FHR, CSE, EL and any other Person selling assets in either Acquisition
(collectively, the "Selling Parties") and all trade names of any of
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them in all jurisdictions where any Selling Party has, or within the
last five years had, personal property;
(xi) evidence that all Indebtedness which is secured by any Lien
encumbering any asset acquired in either Acquisition has been repaid
and that all such Liens have been terminated other than such
Indebtedness permitted under Section 8.6(c) or Section 8.6(d) of the
Credit Agreement and Liens permitted by Section 8.7(c) of the Credit
Agreement;
(xii) appraisals of all Rental Equipment acquired in each
Acquisition;
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(xiii) copies of all Phase I environmental reports delivered
with respect to real property owned or to be owned or leased or to be
leased by the Credit Parties where assets acquired in either
Acquisition are or will be located;
(xiv) Evidence that the Xxxx-Xxxxx-Xxxxxx waiting period with
respect to each Acquisition has expired or has been terminated;
(xv) a certificate of the Secretary or Assistant Secretary of
each Credit Party certifying (A) the resolutions of the Board of
Directors of such Credit Party authorizing, to the extent applicable,
the Acquisitions, the New Offering, the execution, delivery and
performance of this Third Amendment and the Credit Documents executed
in connection herewith, (B) the names, incumbency and signatures of
the officers of such Credit Party authorized to execute, deliver and
perform such Credit Documents and (C) the accuracy and completeness of
the Governing Documents delivered to the Agent, the Issuing Banks and
the Lenders prior to the Amendment Effective Date, attaching thereto
any and all amendments and modifications of such Governing Documents
not previously delivered to such parties;
(xvi) a certificate of the chief executive officer, chief
financial officer or treasurer of each Credit Party executed and
delivered on behalf of such Credit Party certifying that all
conditions precedent to the effectiveness of this Third Amendment
(other than conditions within the control of the Agent and the
Lenders) have been met (or, concurrently with the Amendment Effective
Date, will be met), all representations and warranties made in this
Third Amendment are true and correct and (after giving effect to this
Third Amendment) no Default or Event of Default has occurred and is
continuing, provided that, to the extent such a certificate is
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required to be delivered prior to the Amendment Effective Date
pursuant to Section 3 above, such certificate shall certify that all
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conditions precedent to the consent of the Majority Lenders to the
applicable Acquisition have been met, all representations and
warranties made in this Third Amendment as of the date of consummation
of such Acquisition are true and correct as of such date and no
Default or Event of Default has occurred and is continuing as of such
date;
(xvii) a Solvency Certificate for the Credit Parties, on a
combined basis, executed by the Senior
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Vice President of Operations of RSC and chief financial officer or
treasurer of the other Credit Parties and giving effect to this Third
Amendment and the New Offering;
(xviii) Good Standing Certificates (including tax certifications
where available) for Xxxxxx Xxxxx from the appropriate Governmental
Authorities in the States of Illinois, Iowa, Kansas, Missouri and
Oklahoma (or other evidence satisfactory to the Agent that Xxxxxx
Xxxxx has qualified to do business in such states);
(xix) a certified copy of the prospectus and Registration
Statement for the New Offering;
(xx) a funds flow memorandum certified by the chief financial
officer or treasurer of the Credit Parties with respect to the
proceeds of the New Offering and the payment of transaction costs
related thereto;
(xxi) an opinion of Xxxxxx & Xxxxxxx, special counsel to the
Credit Parties, with respect to this Third Amendment and other matters
which the Agent may reasonably request;
(xxii) to the extent delivered in connection with either
Acquisition, an opinion of counsel to the applicable Selling Parties
with respect to such Acquisition which permits, either expressly or
pursuant to a reliance letter, the Agent, the Issuing Bank and the
Lenders to rely thereon; and
(xxiii) such additional documentation as the Agent may
reasonably request.
(b) The Agent and each Lender shall have completed its review of the
business, operations, assets, liabilities and Contractual Obligations of
the Credit Parties, after giving effect to the New Offering and the
Acquisitions, the results of which shall have provided the Agent and each
Lender with results and information which, in the judgment of each such
Person, are satisfactory to permit the Agent and each Lender to enter into
this Third Amendment.
(c) All aspects of each Acquisition shall have been, or concurrently
with the effectiveness hereof will be, consummated, in compliance with all
applicable Requirements of Law, the Credit Agreement (as amended by this
Third Amendment), the other Credit Documents and the applicable Purchase
Agreement (unless waived in writing by the Majority Lenders).
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(d) All aspects of the New Offering shall have been consummated in
compliance with all applicable Requirements of Law and the Registration
Statement therefor, and RSC shall have received net proceeds from the New
Offering in an amount not less than $45,000,000.
(e) No law, regulation, order, judgment or decree of any Governmental
Authority shall, and the Agent shall not have received any notice that
litigation is pending or threatened which is likely to, enjoin, prohibit or
restrain the consummation of the Acquisitions, the New Offering or the
transactions contemplated by this Third Amendment, except for such laws,
regulations, orders or decrees, or pending or threatened litigation that in
the aggregate could not reasonably be expected to result in a Material
Adverse Effect.
(f) Complete and accurate copies of the Pro Forma and the Projections
shall have been delivered to the Agent. After review of the foregoing, the
Agent shall be satisfied, in its sole discretion, that (i) the financial
condition of the Credit Parties does not differ in any material adverse
respect from the condition evidenced by the financial information provided
to the Agent prior to April 30, 1997 and (ii) the Credit Parties will be
able to comply with the Financial Covenants.
(g) Since April 30, 1997, there shall not have occurred a material
adverse change in financial, banking or capital market conditions generally
that, in the sole judgment of BTCC, would substantially impair the
subsequent marketability of the Commitment of BTCC.
(h) All Fees, and all Expenses as to which the Credit Parties have
received an invoice, in each case which are payable on or before the
Amendment Effective Date shall have been paid.
7. OTHER REQUIRED DELIVERIES. The Credit Parties shall deliver to
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the Agent: (a) as soon as practicable and in any event not later than five
Business Days after the consummation of the applicable Acquisition, a certified
copy of the Purchase Agreement relating to such Acquisition, together with all
schedules thereto duly completed and any other material agreements executed in
connection therewith; (b) as soon as practicable and in any event not later than
30 days after the consummation of the applicable Acquisition, fully executed
Lockbox Agreements or Restricted Account Agreements with respect to each bank
account opened or acquired by Xxxxxx Xxxxx in connection with such Acquisition
into which Collections and proceeds of Collateral are to be deposited; and (c)
as soon as
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practicable and in any event not later than 30 days after the Third Amendment
Effective Date, Certificates of Insurance issued by the Credit Parties'
insurance agent(s) or carrier(s) evidencing the Credit Parties' insurance
coverage listed on Schedule C to the Credit Agreement (A) showing that all
Collateral locations (including Collateral locations acquired in the
Acquisitions) are covered by such insurance policies and (B) showing the Agent
as an additional insured with respect to RSC's liability insurance policies and
loss payee with respect to the Credit Parties' business interruption policies
and casualty insurance policies covering the Collateral, together with a
Lender's Loss Payable Endorsement (mortgagee form), executed by such agent or
carrier in favor of the Agent.
8. MISCELLANEOUS. This Third Amendment is a Credit Document. The
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headings herein are for convenience of reference only and shall not alter or
otherwise affect the meaning hereof. Except to the extent specifically amended
or modified hereby for the periods specified herein, the provisions of the
Credit Agreement shall not be amended, modified, impaired or otherwise affected
hereby and the Credit Agreement and all of the Obligations are hereby confirmed
in full force and effect. The execution, delivery and effectiveness of this
Third Amendment shall not, except as expressly provided herein, operate as a
waiver of any right, power or remedy of the Agent, any Lender or the Issuing
Bank under any of the Credit Documents, nor constitute a waiver of any provision
of any of the Credit Documents.
9. COUNTERPARTS. This Third Amendment may be executed in any number
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of counterparts and by the different parties hereto in separate counterparts,
each of which when so executed and delivered shall be an original, but all of
which shall together constitute one and the same instrument.
10. GOVERNING LAW. THE VALIDITY, INTERPRETATION AND ENFORCEMENT OF
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THIS THIRD AMENDMENT AND ANY DISPUTE ARISING OUT OF OR IN CONNECTION WITH THIS
THIRD AMENDMENT, WHETHER SOUNDING IN CONTRACT, TORT, EQUITY OR OTHERWISE, SHALL
BE GOVERNED BY THE INTERNAL LAWS (AS OPPOSED TO THE CONFLICTS OF LAWS PROVISIONS
OTHER THAN THOSE CONTAINED IN NEW YORK GENERAL OBLIGATIONS LAW SECTION 5-1401)
AND DECISIONS OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the Agent, the Lenders, the Borrowers and the
Parent Guarantors have caused this Third Amendment to be executed by their
respective officers thereunto duly authorized as of the date first above
written.
BORROWERS: ACME ALABAMA, INC.,
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an Alabama corporation
By: /s/ Xxxxxxx X. Xxxxxxxx
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Title: Secretary
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RSC INDUSTRIAL CORPORATION,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxxx
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Title: Secretary
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ACME XXXXX INC.,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxxx
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Title: Secretary
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ACME RENTS, INC.,
a California corporation
By: /s/ Xxxxxxx X. Xxxxxxxx
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Title: Secretary
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THE AIR & PUMP COMPANY,
a Texas corporation
By: /s/ Xxxxxxx X. Xxxxxxxx
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Title: Secretary
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XXXXXX XXXXX EQUIPMENT, INC.,
a Mississippi corporation
By: /s/ Xxxxxxx X. Xxxxxxxx
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Title: Secretary
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PARENT GUARANTORS: RSC ACQUISITION CORP.,
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a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxxx
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Title: Secretary
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RSC HOLDINGS, INC.,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxxx
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Title: Secretary
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RENTAL SERVICE CORPORATION,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxxx
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Title: Senior Vice President
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AGENT: BT COMMERCIAL CORPORATION,
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as Agent
By: /s/ Xxxxxx X. Xxxxxxxx
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Senior Vice President
LENDERS: BT COMMERCIAL CORPORATION
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By: /s/ Xxxxxx X. Xxxxxxxx
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Senior Vice President
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THE CIT GROUP/BUSINESS CREDIT, INC.
By: /s/ Xxxxxxx Xxxxx
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Assistant Vice President
CONGRESS FINANCIAL CORPORATION (WESTERN)
By: /s/ Xxxxx X. Xxxxxxx
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Vice President
DEUTSCHE FINANCIAL SERVICES CORPORATION
By: /s/ X.X. XxXxxxxxx
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Vice President
GIBRALTAR CORPORATION OF AMERICA
By: /s/ Xxxxxx Xxxxxxxx
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Executive Vice President
IBJ XXXXXXXX BANK & TRUST COMPANY
By: /s/ Xxxxxxxxxxx X. Morrito
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Vice President
LASALLE NATIONAL BANK, N.A.
By: /s/ Xxxxxxxxxxx X. Xxxxxxxx
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Senior Vice President
NATIONSBANK OF TEXAS, N.A.
By: /s/ E. Xxxxx Xxxxxxxxxx
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Vice President
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SANWA BANK CALIFORNIA
By: /s/ Xxxxxx X. Arco
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Vice President
SUMITOMO BANK OF CALIFORNIA
By: /s/ Xxxxxxx X. Xxx Xxxxxxxxxx
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Vice President
UNION BANK OF CALIFORNIA, N.A.
By: /s/ Xxxxxx X. Xxxxxxxx
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Assistant Vice President
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EXHIBIT I
TO
THIRD AMENDMENT, CONSENT AND LIMITED WAIVER
New Definition of Applicable Eurodollar Rate Margin
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Applicable Eurodollar Rate Margin means (a) from the Third Amendment
---------------------------------
Effective Date until the first anniversary of the Effective Date, a rate per
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annum equal to 1.75%, provided that if the Interest Coverage Ratio for the
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applicable period ending on the then most recent Quarterly Determination Date
(as shown on the quarterly Compliance Certificate delivered pursuant to Section
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7.1(c)) is within the ranges set out below and no Default or Event of Default
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exists as of such Quarterly Determination Date, the Applicable Eurodollar Rate
Margin shall be the per annum rate set out opposite the applicable range
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indicated below:
=================================================
INTEREST COVERAGE RATIO APPLICABLE EURODOLLAR
RATE MARGIN
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Greater than 3.5:1 1.50%
and not more than
4.0:1
-----------------------------------------------
Greater than 4.0:1 1.25%
===============================================
and (b) from and after the first anniversary of the Effective Date, a rate per
---
annum equal to 2.00%, provided that if the Interest Coverage Ratio for the
----- --------
applicable period ending on the then most recent Quarterly Determination Date
(as shown on the quarterly Compliance Certificate delivered pursuant to Section
-------
7.1(c)) is within the ranges set out below and no Default or Event of Default
------
exists as of such Quarterly Determination Date, the Applicable Eurodollar Rate
Margin shall be the per annum rate set out opposite the applicable range
--- -----
indicated below:
==================================================
INTEREST COVERAGE RATIO APPLICABLE EURODOLLAR
RATE MARGIN
--------------------------------------------------
Greater than 3.0:1 1.75%
and not more than
3.5:1
----------------------------------------------
Greater than 3.5:1 1.50%
and not more than
4.0:1
----------------------------------------------
Greater than 4.0:1 1.25%
==============================================
In the event of the delivery of a Compliance Certificate showing an increase or
decrease in the Interest Coverage Ratio which requires a change in the
Applicable Eurodollar Rate Margin, the change in the Applicable Eurodollar Rate
Margin shall be effective from the first day of the calendar month immediately
following receipt of the Compliance Certificate (provided that the Compliance
--------
Certificate is received by the Agent no later than 3:00 P.M. New York City time
at least one (1) Business Day prior to the first day of such calendar month)
until the next such date on which the Applicable Eurodollar Rate Margin is
subject to change following the delivery of (or failure to deliver) a Compliance
Certificate showing an increase or decrease in the Interest Coverage Ratio which
requires a change in the Applicable Eurodollar Rate Margin. The failure to
deliver any Compliance Certificate by the date required under the Credit
Agreement (after giving effect to any applicable grace period) shall
automatically cause the Applicable Eurodollar Rate Margin to be the maximum per
---
annum rate for the applicable period described in clause (a) or (b) above, as
----- ---------- ---
applicable, effective as of the first day of the calendar month immediately
following the date on which the delivery of the Compliance Certificate was
otherwise required.
-I-2-
EXHIBIT II
TO
THIRD AMENDMENT, CONSENT AND LIMITED WAIVER
New Definition of Applicable Prime Rate Margin
----------------------------------------------
Applicable Prime Rate Margin means (a) from the Third Amendment
----------------------------
Effective Date until the first anniversary of the Effective Date, a rate per
---
annum equal to 0.25%, provided that if the Interest Coverage Ratio for the
----- --------
applicable period ending on the then most recent Quarterly Determination Date
(as shown on the quarterly Compliance Certificate delivered pursuant to Section
-------
7.1(c)) is within the ranges set out below and no Default or Event of Default
------
exists as of such Quarterly Determination Dates, the Applicable Prime Rate
Margin shall be the per annum rate set out opposite the applicable range
--- -----
indicated below:
==============================================
INTEREST COVERAGE RATIO APPLICABLE PRIME
RATE MARGIN
----------------------------------------------
Greater than 3.5:1 -0-
and not more than
4.0:1
------------------------------------------
Greater than 4.0:1 (0.25%)
==========================================
and (b) from and after the first anniversary of the Effective Date, a rate per
---
annum equal to 0.50%, provided that if the Interest Coverage Ratio for the
----- --------
applicable period ending on the then most recent Quarterly Determination Date
(as shown on the quarterly Compliance Certificate delivered pursuant to Section
-------
7.1(c)) is within the ranges set out below and no Default or Event of Default
------
exists as of such Quarterly Determination Date, the Applicable Prime Rate Margin
shall be the per annum rate set out opposite the applicable range indicated
--- -----
below:
===========================================
INTEREST COVERAGE APPLICABLE PRIME
RATIO RATE MARGIN
-------------------------------------------
Greater than 3.0:1 .25%
and not more than
3.5:1
-----------------------------------------
Greater than 3.5:1 -0-
and not more than
4.0:1
-----------------------------------------
Greater than 4.0:1 (0.25%)
=========================================
In the event of the delivery of a Compliance Certificate showing an increase or
decrease in the Interest Coverage Ratio which requires a change in the
Applicable Prime Rate Margin, the change in the Applicable Prime Rate Margin
shall be effective from the first day of the calendar month immediately
following receipt of the Compliance Certificate (provided that the Compliance
--------
Certificate is received by the Agent no later than 3:00 P.M. New York City time
at least one (1) Business Day prior to the first day of such calendar month)
until the next such date on which the Applicable Prime Rate Margin is subject to
change following the delivery of (or failure to deliver) a Compliance
Certificate showing an increase or decrease in the Interest Coverage Ratio which
requires a change in the Applicable Prime Rate Margin. The failure to deliver
any Compliance Certificate by the date required under the Credit Agreement
(after giving effect to any applicable grace period) shall automatically cause
the Applicable Prime Rate Margin to be the maximum per annum rate for the
--- -----
applicable period described in clause (a) or (b) above, as applicable, effective
---------- ---
as of the first day of the calendar month immediately following the date on
which the delivery of the Compliance Certificate was otherwise required.
-II-2-
EXHIBIT III
TO
THIRD AMENDMENT, CONSENT AND LIMITED WAIVER
New Annex I to Credit Agreement
-------------------------------
ANNEX I
-------
LENDERS AND COMMITMENT AMOUNTS
AS OF THIRD AMENDMENT EFFECTIVE DATE
Name and Address of Lender Commitment
-------------------------- ----------
BT Commercial Corporation $122,500,000.00
Domestic and Eurodollar Lending Offices:
00 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxxxx
Telecopy No: 000-000-0000
The CIT Group/Business Credit, Inc. $26,500,000.00
Domestic and Eurodollar Lending Offices:
000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxxxx XX 00000
Attention: Xxxxxx Xxxxx
Telecopier No: 000-000-0000
Congress Financial Corporation (Western) $20,000,000.00
Domestic and Eurodollar Lending Offices:
000 Xxxxx Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx XX 00000
Attention: Xxxxxx Xxxxxxx
Telecopy No: 000-000-0000
Deutsche Financial Services Corporation $15,000,000.00
Domestic and Eurodollar Lending Offices:
0000 Xxx Xxxxx Xxxx, Xxxxx 000
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Vice President,
Corporate Lending Unit
Telecopy No: 000-000-0000
Gibraltar Corporation of America $13,500,000.00
Domestic and Eurodollar Lending Offices:
000 Xxxxx Xxxxxx - Xxxxx 00
Xxx Xxxx XX 00000
Attention: Xxxxx Xxxxxxxx
Telecopier No: 000-000-0000
IBJ Xxxxxxxx Bank & Trust Company $20,000,000.00
Domestic and Eurodollar Lending Offices:
Xxx Xxxxx Xxxxxx
Xxx Xxxx XX 00000
Attention: Xxxxxx X. Xxxxx
Telecopier No: 000-000-0000
LaSalle National Bank, N.A. $17,500,000.00
Domestic and Eurodollar Lending Offices:
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxxxxxx Xxxxxxxx
Telecopier No: 312-750-6450
NationsBank of Texas, N.A. $15,000,000.00
Domestic and Eurodollar Lending Offices:
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxx Xxxx
Telecopy No.: 000-000-0000
Sanwa Bank California $20,000,000.00
Domestic and Eurodollar Lending Offices:
000 Xxxxx Xxxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx
Telecopy No: 000-000-0000
-III-2-
Sumitomo Bank of California $15,000,000.00
Domestic and Eurodollar Lending Offices:
000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxx Xxxxxxxxxx
Telecopy No: 000-000-0000
Union Bank of California, N.A. $15,000,000.00
Domestic and Eurodollar Lending Offices:
Commercial Finance Division
00 Xxxxx Xxxx Xxxxxx
Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxx
Telecopy No: 000-000-0000
Total Commitments: $300,000,000.00
===============
-III-3-
