EXHIBIT 4.15
THIRD AMENDMENT TO
DEBTOR IN POSSESSION REVOLVING CREDIT AGREEMENT
This Third Amendment (this "AMENDMENT"), dated as of September 27,
2002, is by and among (a) NationsRent, Inc., a Delaware corporation and a debtor
and a debtor in possession and its Subsidiaries party to the Credit Agreement
(as defined below), each as a debtor and a debtor in possession (collectively,
the "BORROWERS"), (b) the financial institutions referred to in the Credit
Agreement 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 Wachovia Bank, National Association
(f/k/a 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, as amended by the First Amendment to Debtor in Possession Revolving
Credit Agreement and to Security Agreement, dated as of January 31, 2002, and
the Second Amendment to Debtor In Possession Revolving Credit Agreement, dated
as of June 28, 2002 (as heretofore amended, the "CREDIT AGREEMENT"); and
WHEREAS, the Borrowers, the Banks and the Agents wish to make certain
amendments and other modifications to the Credit Agreement as provided herein;
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 SECTION 1.1 OF THE CREDIT AGREEMENT. Section 1.1 of the
Credit Agreement is hereby amended as follows:
(a) The following sentence is hereby added to the definition of
"Capital Expenditures" in Section 1.1 of the Credit Agreement:
"For purposes of the financial covenant set forth in ss. 12.2, "Capital
Expenditures" shall not include inventory or equipment disposed of in
exchange for inventory or equipment acquired by the Borrowers pursuant
to the Exchange Agent Agreement."
(b) The definition of "Commitment Reserve" in Section 1.1 of the
Credit Agreement is hereby amended and restated as follows:
"Commitment Reserve. The sum of Two Million Dollars ($2,000,000)."
(c) The following definition is hereby added to Section 1.1 of the
Credit Agreement in the proper alphabetic sequence:
-2-
"Exchange Agent Agreement. The Exchange Agent Agreement, dated as of
September 6, 2002, between Xxxxxxx Bros. Auctioneers (America) Inc. and
the Parent."
(d) The reference to "December 18, 2002" in the definition of
"Termination Date" in Section 1.1 of the Credit Agreement is hereby deleted and
replaced with "December 31, 2002."
(e) The definition of "Total Commitment" in Section 1.1 of the
Credit Agreement is hereby deleted and replaced in its entirety with the
following:
"Total Commitment. An aggregate outstanding amount not to exceed (i)
prior to November 30, 2002, the sum of $55,000,000, and (ii) on and
after November 30, 2002, the sum of $50,000,000. If the Commitments are
terminated pursuant to the provisions of this Credit Agreement, the
Total Commitment shall be zero."
(f) The following definition is hereby added to Section 1.1 of the
Credit Agreement in the proper alphabetic sequence:
"Form Master Financing Agreement. That certain form of Master Inventory
Financing, Security, and Settlement Agreement, which is attached as
Exhibit F hereto."
2. AMENDMENT TO SECTION 2.1 OF THE CREDIT AGREEMENT. Section 2.1 of the
Credit Agreement is hereby amended by adding the following sentence after the
first sentence of such section:
"In addition to the foregoing limitations, unless the Required Banks
consent in writing, outstanding Loans to the Borrowers under this
Credit Agreement shall not exceed the amounts set forth below during
the periods set forth below:
Period Amount
------ -----------
September 27, 2002 to September 30, 2002 $ 7,500,000
October 1, 2002 to November 2, 2002 $26,000,000
November 3, 2002 to November 30, 2002 $20,000,000
December 1, 2002 to December 31, 2002 $14,000,000"
3. AMENDMENT TO SECTION 10.14(D) OF THE CREDIT AGREEMENT. Section 10.14(d)
of the Credit Agreement is hereby amended and restated in its entirety as
follows:
"(d) The Borrowers, at their sole cost and expense, shall obtain and
deliver to the Agents and the Banks (i) by October 20, 2002, a desktop
fair market value appraisal of the Borrowers' rental equipment to which
the Borrowers hold fee title, which appraisal shall be adjusted where
appropriate on the basis of the then concluded field sampling fair
market value appraisal by Ritchie Brothers, Inc. of the rental
equipment leased by the Borrowers, and (ii) by November 30, 2002, a
fair market value appraisal of such rental equipment owned by the
Borrowers, which appraisal includes the results of a field sampling of
such rental equipment and the size and scope of which sampling shall be
acceptable to the Administrative Agent. The Administrative Agent, in
its sole and absolute discretion, may extend any of the dates set forth
in the foregoing sentence. The
-3-
appraisals shall be conducted by Ritchie Brothers, Inc. or another
appraiser acceptable to the Administrative Agent and shall follow
methodologies and be delivered in forms acceptable to the
Administrative Agent. The Borrowers, at their sole cost and expense,
shall provide to the Agents and the Banks such supplemental appraisal
related information and follow up appraisals as the Administrative
Agent may from tune to time reasonably request. The Administrative
Agent shall be entitled to share all such appraisals and appraisal
related information with the Prepetition Agents and the Prepetition
Lenders."
4. AMENDMENT TO SECTION 10.18 OF THE CREDIT AGREEMENT. Section 10.18 of
the Credit Agreement is hereby deleted in entirety and replaced with "ss. 10.18.
[Intentionally Omitted]."
5. AMENDMENT TO SECTION 11.1(E) OF THE CREDIT AGREEMENT. Section 11.1(e)
of the Credit Agreement is hereby amended and restated in its entirety as
follows:
"(e)(i) purchase money Indebtedness incurred by any of the Borrowers in
the ordinary course of business consistent with past practices in an
aggregate amount not to exceed $10,000,000, (ii) Indebtedness arising
from the consignment of Inventory to any of the Borrowers hi an
aggregate amount not to exceed $5,000,000; provided, that the sum of
all amounts outstanding under clauses (i) and (ii) shall not exceed an
aggregate amount of $12,000,000 at any time; and (iii) to the extent
that the Administrative Agent has consented thereto, Indebtedness
incurred by any of the Borrowers, on terms and conditions substantially
similar to those set forth in the Form Master Financing Agreement, with
respect to inventory or equipment that was subject to Indebtedness or
an operating lease described on Schedule 11.1(e) hereto; and"
6. AMENDMENT TO SECTION 11.5.2 OF THE CREDIT AGREEMENT. Section 11.5.2 of
the Credit Agreement is hereby amended and restated in its entirety as follows:
"None of the Borrowers will become a party to or agree to or effect any
disposition of assets, other than, so long as no Default or Event of
Default has occurred and is continuing, (a) true leases of Inventory,
(b) sales of Specified Resale Inventory, (c) dispositions of equipment
or inventory by the Borrowers pursuant to the Exchange Agent Agreement,
and (d) up to the total sum of $12,000,000 of dispositions of other
assets, in each case in the ordinary course of business consistent with
past practices and for reasonably equivalent value."
7. AMENDMENT TO SECTION 11.15 OF THE CREDIT AGREEMENT. The "or" at the end
of subsection (g) of Section 11.15 is hereby deleted and the "." at the end of
subsection (h) is hereby deleted and replaced with ", or." The following text is
added immediately after such "or" in Section 11.15(h) of the Credit Agreement
and before the text "None of the Borrowers shall file" appearing in Section
11,15 of the Credit Agreement:
"(i) of Indebtedness incurred pursuant to Section ll.l(e)(iii) of this
Agreement (including, without limitation, the incurrence of such
Indebtedness)."
8. AMENDMENT TO SECTION 12 OF THE CREDIT AGREEMENT. Section 12 of the
Credit Agreement is hereby amended and restated in its entirety as follows:
-4-
"12. FINANCIAL COVENANTS OF THE BORROWERS. Each of the Borrowers
covenants and agrees that, so long as any Loan, Reimbursement
Obligation, Letter of Credit or Note is outstanding or any Bank has any
obligation to make any Loans or the Issuing Bank has any obligation to
issue, extend or renew any Letter of Credit:
12.1 MINIMUM ADJUSTED CONSOLIDATED EBITDA. The Borrowers will not cause
or permit Adjusted Consolidated EBITDA for each period indicated in the
table below to be less than the amount set forth in the table opposite
such period.
One month period ending
September 30,2002 $ 2,889,000
Two month period ending
October 31, 2002 $ 7,984,000
Three month period ending
November 30, 2002 $10,129,000
12.2 CAPITAL EXPENDITURES. The Borrowers will not cause or permit the
aggregate amount of Capital Expenditures of the Borrowers made for any
month indicated in the table below to be greater than the amount set
forth in the table opposite such month; provided, however, that to the
extent that the Borrowers' actual Capital Expenditures for any given
month are less than the maximum permitted Capital Expenditures for such
given month (with such difference being referred to as the "CAPEX
CARRY-FORWARD)", then the maximum permitted Capital Expenditures for
the next month will be increased by the amount of such CapEx
Carry-Forward.
September 2002 $5,000,000
October 2002 $2,000,000
November 2002 $1,500,000
December 2002 $ 725,000"
9. AMENDMENT TO SECTION 15.1 OF THE CREDIT AGREEMENT.
(a) Clause (s) of Section 15.1 is amended by deleting the "or"
after the word "Orders".
(b) Clause (t) of Section 15.1 of the Credit Agreement is hereby
amended and restated as follows:
"(t) Xxxxx Xxxx shall cease to serve as the Chief Executive
Officer of the Company for any reason, unless, within thirty (30) days
following the date on which he ceases to serve, a new permanent chief
executive officer has been appointed and is serving who is reasonably
acceptable to the Agents;".
-5-
(b) Section 15.1 of the Credit Agreement is hereby further amended
by adding the following subsections after subsection (t):
"(u) the Bankruptcy Court shall not have entered by October
11, 2002 (i) an order, in form and substance satisfactory to the
Administrative Agent, approving the engagement by the Parent of an
investment banking firm of nationally recognized standing satisfactory
to the Administrative Agent to explore a capital transaction for the
Borrowers or (ii) an order, in form and substance satisfactory to the
Administrative Agent, approving the payment of the amendment fee to be
paid to the Banks pursuant to the Third Amendment to the Debtor In
Possession Revolving Credit Agreement, dated as of September 27, 2002,
among the Administrative Agent, the Banks and the Borrowers and any
other provisions of such amendment requiring approval of the Bankruptcy
Court;
(v) the Parent shall fail: (i) to have distributed an offering
book to potential investors by October 15, 2002, (ii) to have
established a deadline no later than November 20, 2002 for receiving
initial indications of interest from one or more potential investors,
or (iii) to have established a deadline no later than December 15, 2002
for receiving a letter of intent or other similar expression of intent;
or
(w) the Borrowers shall fail to have received a financing
commitment from one or more institutional lenders satisfactory to the
Administrative Agent, upon terms satisfactory to the Administrative
Agent, by December 15, 2002;"
Section 15.1 of the Credit Agreement is hereby further amended by the
adding the following sentence to the end of such section:
"The Administrative Agent, in its sole and absolute discretion, may (i)
extend any of the dates set forth in subsections (u), (v) and (w) above
or (ii) waive any of the Events of Default in subsections (u), (v) or
(w)."
10. AMENDMENT TO SECTION 17.1 TO THE CREDIT AGREEMENT. Section 17.1 of the
Credit Agreement is hereby amended by adding subsection (e) below:
"(e) With respect to the equipment and inventory subject to leases and
indebtedness set forth on Schedule ll.l(e) hereto, the Banks hereby authorize
the Administrative Agent to execute in it capacity as administrative agent on
behalf of the Banks intercreditor acknowledgments, substantially in the form
attached to the Form Master Financing Agreement, which acknowledgements will
subordinate the security interest of the Administrative Agent in such equipment
and inventory in accordance with the terms thereof."
11. AMENDMENT TO SECTION 27 TO THE CREDIT AGREEMENT. Section 27 of the
Credit Agreement is hereby amended by adding to the first sentence of the such
section after the first appearance of the words the "Credit Agreement" and
before the "," thereafter the following words: ", including, without limitation,
the last sentence of ss. 15.1".
-6-
12. SCHEDULES AND EXHIBITS TO THE CREDIT AGREEMENT. The Schedules to the
Credit Agreement are hereby amended by adding Schedule ll.l(e) to this Amendment
as "Schedule 1 l.l(e)" to the Credit Agreement. The Exhibits to the Credit
Agreement are hereby amended by adding Exhibit F attached hereto to the Credit
Agreement as "Exhibit F."
13. AMENDMENT FEE. The Borrowers shall pay to the Administrative Agent, for
the benefit of the Banks executing this Amendment, an amendment fee (the
"Amendment Fee") in the amount of 0.50% of the Total Commitment as of the date
hereof ($55,000,000), upon entry by the Bankruptcy Court of an order, in form
and substance satisfactory to the Administrative Agent, approving the payment of
the Amendment Fee and any other provisions of this Amendment requiring approval
by the Bankruptcy Court. The Amendment Fee shall be allocated among the Banks
executing this Amendment pro rata based on their respective Commitment
Percentages. The full amount of the Amendment Fee shall be fully earned by the
applicable Banks upon the execution by the Borrowers, the Required Banks and the
Administrative Agent of this Amendment, and shall not be subject to refund,
rebate or forgiveness under any circumstance.
14. WAIVER. The Banks and the Agents hereby agree to waive all Defaults and
Events of Defaults by the Borrowers prior to the date hereof to the extent that
such Defaults or Events of Default were expressly referred to as Defaults or
Events of Default in and subject to any forbearance agreements (collectively,
the "Forbearance Agreements") previously executed by the Agents and the Required
Banks.
15. CONDITIONS TO EFFECTIVENESS. This Amendment shall not become effective
unless on or prior to 5:00 p.m. Boston time, on September 27, 2002:
(i) the Administrative Agent shall have received this
Amendment duly executed and delivered by the
Borrowers, the Administrative Agent, and the Required
Banks;
(ii) the Administrative Agent shall have received a
waiver, in form and substance satisfactory to the
Administrative Agent, duly executed and delivered by
the requisite Prepetition Lenders providing for the
deferral of adequate protection payments equivalent
to interest on the Prepetition Lender Debt;
(iii) the Banks shall have received a modification to the
Borrowers' business plan, satisfactory to the Banks,
addressing cash conservation measures being
undertaken by the Borrowers;
(iv) the Borrowers shall have paid to the Administrative
Agent, for the ratable accounts of the Banks, the
balance of any interest and fees owing at the rate
set forth in ss. 7.5 of the Credit Agreement; and
(v) the Borrowers shall have filed a motion, in form and
substance satisfactory to the Administrative Agent,
in the Bankruptcy Court seeking entry of an order
approving the payment of the Amendment Fee and any
other provisions of this Amendment requiring approval
of the Bankruptcy Court.
-7-
16. REPRESENTATIONS AND WARRANTIES. Each Borrower hereby represents and
warrants to the Agents and the Banks as follows:
(a) The representations and warranties of such Borrower contained in the
Credit Agreement, 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, after taking into consideration this Amendment, 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);
(b) 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, subject
to the approval of the Bankruptcy Court to the extent required; (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, subject
to the approval of the Bankruptcy Court to the extent required; (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
(c) This Amendment, the Credit Agreement (as amended hereby), and the other
Loan Documents constitute the legal, valid, and binding obligations of each
Borrower, enforceable against each Borrower in accordance with their respective
terms, subject to the approval of the Bankruptcy Court to the extent required,
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.
17. 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 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 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 Borrowers 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
-8-
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.
18. 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.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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: /s/ Xxxx Xxxxxxxx
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
NATIONSRENT OF TEXAS, LP
NATIONSRENT OF INDIANA, LP, each as a debtor and a
debtor in possession
By: NRGP, Inc., its general partner
By: /s/ Xxxx Xxxxxxxx
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
THE BANKS:
FLEET NATIONAL BANK,
individually and as Administrative Agent
By: /s/ Xxxxx Xxxxx
------------------------------------------
Name: Xxxxx Xxxxx
----------------------------------------
Title: Authorized Officer
---------------------------------------
WACHOVIA BANK, NATIONAL ASSOCIATION (f/k/a First Union National Bank),
individually and as Syndication Agent
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
GENERAL ELECTRIC CAPITAL CORPORATION
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
XXXXXXX SACHS CREDIT PARTNERS, LP
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
THE BANKS:
FLEET NATIONAL BANK,
individually and as Administrative Agent
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
WACHOVIA BANK, NATIONAL ASSOCIATION (f/k/a First Union National Bank),
individually and as Syndication Agent
By: /s/ Xxx Xxxxxx
------------------------------
Name: Xxx Xxxxxx
----------------------------
Title: Director
---------------------------
GENERAL ELECTRIC CAPITAL CORPORATION
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
XXXXXXX XXXXX CREDIT PARTNERS, LP
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
THE BANKS;
FLEET NATIONAL BANK,
individually and as Administrative Agent
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
WACHOVIA BANK, NATIONAL ASSOCIATION (f/k/a First Union National Bank),
individually and as Syndication Agent
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Xxxx Fitty
--------------------------------------
Name: Xxxx Fitty
-------------------------------------
Title: Senior Risk Manager
------------------------------------
XXXXXXX SACHS CREDIT PARTNERS, LP
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
THE BANKS:
FLEET NATIONAL BANK,
individually and as Administrative Agent
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
WACHOVIA BANK, NATIONAL ASSOCIATION (f/k/a First Union National Bank),
individually and as Syndication Agent
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
GENERAL ELECTRIC CAPITAL CORPORATION
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
XXXXXXX XXXXX CREDIT PARTNERS, LP
By: /s/ Xxxxx XxXxxxxxx
---------------------------------------
Name: Xxxxx XxXxxxxxx
-------------------------------------
Title: Xxxxx XxXxxxxxx
------------------------------------
Authorized Signatory
SENIOR DEBT PORTFOLIO
By: Boston Management and Research,
as Investment Advisor
By: /s/ Xxxxx X. Page
---------------------------------------
Name: Xxxxx X. Page
-------------------------------------
Title: Vice President
------------------------------------
XXXXXXX & CO.
By: Boston Management and Research,
as Investment Advisor
By: /s/ Xxxxx X. Page
---------------------------------------
Name: Xxxxx X. Page
-------------------------------------
Title: Vice President
------------------------------------
GMAC COMMERCIAL CREDIT LLC
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
XXXXX XXXXX INSTITUTIONAL SENIOR LOAN FUND
By: Xxxxx Xxxxx Management,
as Investment Advisor
By: /s/ Xxxxx X. Page
---------------------------------------
Name: Xxxxx X. Page
-------------------------------------
Title: Vice President
------------------------------------
