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Exhibit 4.7
SECOND AMENDED AND RESTATED SECURITY AGREEMENT
SECOND AMENDED AND RESTATED SECURITY AGREEMENT (this "Security
Agreement"), dated as of August 2, 2000, between NATIONSRENT, INC., a Delaware
corporation (the "Parent") and its Restricted Subsidiaries party to the Credit
Agreement defined below (each a "Borrower" and collectively, the "Borrowers"),
and FLEET NATIONAL BANK (f/k/a BankBoston, N.A.), a national banking
association, as administrative agent (hereinafter, in such capacity, the
"Administrative Agent") for itself and other lending institutions (hereinafter,
collectively, the "Lenders"), which are or may become parties to a Fifth Amended
and Restated Revolving Credit and Term Loan Agreement dated as of August 2, 2000
(as amended and in effect from time to time, the "Credit Agreement"), among the
Borrowers, the Lenders, the Administrative Agent, Bankers Trust Company, as
syndication agent (the "Syndication Agent"), and Scotiabanc Inc., as
documentation agent (the "Documentation Agent").
WHEREAS, certain of the Borrowers as well as certain other parties
entered into a Fourth Amended and Restated Revolving Credit and Term Loan
Agreement dated as of July 20, 1999 (such agreement as heretofore amended and in
effect from time to time, the "Prior Credit Agreement"); and
WHEREAS, certain of the Borrowers and the Administrative Agent were
parties to that certain Security Agreement dated as of July 20, 1999 (as amended
to date, the "Prior Security Agreement"), pursuant to which the Borrowers named
therein pledged and granted security interests in favor of the Administrative
Agent for the benefit of the Lenders to secure the payment and performance of
such Borrowers' obligations under the Prior Credit Agreement; and
WHEREAS, the remainder of the Borrowers joined the Prior Security
Agreement pursuant to various Joinder Agreements or amendments to the Prior
Security Agreement; and
WHEREAS, each of the Borrowers is expected to receive substantial
direct and indirect benefits from the extensions of credit by the Lenders to the
Borrowers pursuant to the Credit Agreement; and
WHEREAS, the Prior Credit Agreement will be superseded by the Credit
Agreement on the Closing Date (as defined in the Credit Agreement); and
WHEREAS, it is a condition precedent to the Lenders' making any Loans
to, and the Issuing Banks' issuing Letters of Credit for the account of, the
Borrowers under the Credit Agreement that each of the Borrowers execute and
deliver to the Administrative Agent, for the benefit of the Lenders and the
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Administrative Agent, a security agreement in substantially the form hereof; and
WHEREAS, the parties hereto desire to amend and restate all of their
rights and obligations under the Security Agreement and reaffirm and grant
security interests in favor of and as provided herein; and
NOW, THEREFORE, in consideration of the promises contained herein and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
1. DEFINITIONS. All capitalized terms used herein without definitions
shall have the respective meanings provided therefor in the Credit Agreement.
All terms defined in the Uniform Commercial Code of the State of New York and
used herein shall have the same definitions herein as specified therein. "Motor
Vehicle Equipment" shall mean all trucks, trailers, automobiles, tires and all
related equipment and accessions with respect to which any Borrower now or
hereafter has full and unencumbered title, except for Permitted Liens.
2. GRANT OF SECURITY INTEREST.
2.1. COLLATERAL GRANTED. Each of the Borrowers (a) hereby
ratifies and affirms the grant of security interests made pursuant to
the Prior Security Agreement subject to any amendment thereof pursuant
to Section 2.3 hereof, and (b) to the extent not covered under clause
(a), further grants to the Administrative Agent, for the benefit of the
Lenders and any Person who was a Lender at the time of the making of
any Swap Contract (but only to the extent such indebtedness,
obligations, or liabilities under such Swap Contract become due and
owing during the term of the Credit Agreement) and the Administrative
Agent, to secure the payment and performance in full of all of the
Obligations, a security interest in and so pledges and collaterally
assigns to the Administrative Agent, for the benefit of the Lenders,
any Person who was a Lender at the time of the making of any Swap
Contract (but only to the extent such indebtedness, obligations, or
liabilities under such Swap Contract become due and owing during the
term of the Credit Agreement) and the Administrative Agent, the
following properties, assets and rights of such Borrower, wherever
located, whether now owned or hereafter acquired or arising, and all
proceeds and products thereof (all of the same being hereinafter called
the "Collateral"):
All personal and fixture property of every kind and
nature including without limitation all furniture, fixtures,
equipment (including all titled or registered equipment and
rental equipment), raw materials, motor vehicles, trucks,
trailers, tractors, cranes, and all related equipment, parts
and accessions and additions with respect thereto, inventory,
other goods, accounts, contract rights, rights to the payment
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of money, insurance refund claims and all other insurance
claims and proceeds, tort claims, chattel paper, documents,
instruments, securities and other investment property, deposit
accounts and all general intangibles including, without
limitation, all tax refund claims, license fees, patents,
patent applications, trademarks, trademark applications, trade
names, copyrights, copyright applications, rights to ▇▇▇ and
recover for past infringement of patents, trademarks and
copyrights, computer programs, computer software, engineering
drawings, service marks, customer lists, goodwill, and all
licenses, permits, agreements of any kind or nature pursuant
to which such Borrower possesses, uses or has authority to
possess or use property (whether tangible or intangible) of
others or others possess, use or have authority to possess or
use property (whether tangible or intangible) of such
Borrower, and all recorded data of any kind or nature,
regardless of the medium of recording including, without
limitation, all software, writings, plans, specifications and
schematics.
2.2. DELIVERY OF INSTRUMENTS, ETC.
(a) If requested, each of the Borrowers shall
endorse, assign and deliver to the Administrative Agent all
negotiable or non-negotiable instruments (including
certificated securities) and chattel paper pledged by it
hereunder, together with instruments of transfer or assignment
duly executed in blank as the Administrative Agent may have
specified. In the event that any of the Borrowers shall, after
the date of this Security Agreement, acquire any other
negotiable or non-negotiable instruments (including
certificated securities) or chattel paper to be pledged by it
hereunder, such Borrower shall forthwith endorse, assign and
deliver the same to the Administrative Agent, accompanied by
such instruments of transfer or assignment duly executed in
blank as the Administrative Agent may from time to time
specify. The Administrative Agent agrees with each of the
Borrowers that the Administrative Agent shall not take any
actions with respect to such instruments and chattel paper
unless a Default or an Event of Default has occurred and is
continuing and the Administrative Agent has elected to
exercise its rights and remedies as contemplated by ss.15.
(b) To the extent that any securities now or
hereafter acquired by any of the Borrowers are uncertificated
and are issued to such Borrower or its nominee directly by the
issuer thereof, such Borrower shall cause the issuer to note
on its books the security interest of the Administrative Agent
in such securities and shall cause the issuer, pursuant to an
agreement in form and substance satisfactory to the
Administrative Agent, to agree to comply with instructions
from the Administrative Agent as to such securities, without
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further consent of such Borrower or such nominee. To the
extent that any securities, whether certificated or
uncertificated, or other financial assets now or hereafter
acquired by any of the Borrower are held by such Borrower or
its nominee through a securities intermediary, such Company
shall (i) cause such securities intermediary to note on its
books the security interest of the Administrative Agent in
such securities or other financial assets and to confirm such
notation promptly to the Administrative Agent and (ii), at the
request of the Administrative Agent, cause such securities
intermediary, pursuant to an agreement in form and substance
satisfactory to the Administrative Agent, to agree to comply
with entitlement orders or other instructions from the
Administrative Agent as to such securities or other financial
assets, without further consent of such Borrower or such
nominee. The Administrative Agent agrees with each of the
Borrowers that the Administrative Agent shall not give any
such entitlement orders or instructions to any such issuer or
securities intermediary unless a Default or an Event of
Default has occurred and is continuing and the Administrative
Agent has elected to exercise its rights and remedies as
contemplated by ss.15.
2.3. EXCLUDED COLLATERAL. Notwithstanding the foregoing
provisions of this ss.2, such grant of security interest shall not
extend to, and the term "Collateral" shall not include, the capital
stock (or similar interests) of any Unrestricted Subsidiary and any
chattel paper and general intangibles which are now or hereafter held
by any of the Borrowers as licensee, lessee or otherwise, to the extent
that (i) such chattel paper and general intangibles are not assignable
or capable of being encumbered as a matter of law or under the terms of
the license, lease or other agreement applicable thereto (but solely to
the extent that any such restriction shall be enforceable under
applicable law), without the consent of the licensor or lessor thereof
or other applicable party thereto and (ii) such consent has not been
obtained; PROVIDED, HOWEVER, that the foregoing grant of security
interest shall extend to, and the term "Collateral" shall include, (A)
any and all proceeds of such chattel paper and general intangibles to
the extent that the assignment or encumbering of such proceeds is not
so restricted and (B) upon any such licensor, lessor or other
applicable party consent with respect to any such otherwise excluded
chattel paper or general intangibles being obtained, thereafter such
chattel paper or general intangibles as well as any and all proceeds
thereof that might have theretofore have been excluded from such grant
of a security interest and the term "Collateral".
2.4. STOCK PLEDGE AGREEMENT. Concurrently herewith the Parent,
NRGP, Inc. and NationsRent West, Inc. are executing and delivering to
the Administrative Agent, for the benefit of the Lenders and the
Administrative Agent, a stock pledge agreement pursuant to which the
Parent and NRGP, Inc. are each pledging to the Administrative Agent,
for the benefit of the Lenders and the Administrative Agent, all the
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shares of the capital stock of each of their Restricted Subsidiaries.
Such pledge shall be governed by the terms of such stock pledge
agreement and not by the terms of this Security Agreement.
2.5. PARTNERSHIP PLEDGE AGREEMENTS. Concurrently herewith
NRGP, Inc., NR Delaware, Inc., and NationsRent USA, Inc. are executing
and delivering to the Administrative Agent, for the benefit of the
Lenders and the Administrative Agent, several partnership pledge
agreements pursuant to which NRGP, Inc., NR Delaware, Inc., and
NationsRent USA, Inc. are each pledging to the Administrative Agent,
for the benefit of the Lenders and the Administrative Agent, all the
shares of the partnership interests of each of NationsRent of Indiana,
LP and NationsRent of Texas, LP. Such pledges shall be governed by the
terms of such partnership pledge agreements and not by the terms of
this Security Agreement.
3. TITLE TO COLLATERAL, ETC. Each of the Borrowers is the owner of the
Collateral free from any adverse lien, security interest or other encumbrance,
except for the security interest created by this Security Agreement and
Permitted Liens. None of the Collateral constitutes, or is the proceeds of,
"farm products" as defined in ss.9-109(3) of the Uniform Commercial Code of the
State of New York. None of the account debtors in respect of any accounts,
chattel paper or general intangibles and none of the obligors in respect of any
instruments included in the Collateral is a governmental authority subject to
the Federal Assignment of Claims Act.
4. CONTINUOUS PERFECTION - IN GENERAL. Each Borrower's place of
business or, if more than one, chief executive office is indicated on the
Perfection Certificate delivered by each Borrower to the Administrative Agent
herewith (the "Perfection Certificates"). None of the Borrowers will change the
same, or the name, identity or corporate structure of such Borrower in any
manner, without providing at least thirty (30) days prior written notice to the
Administrative Agent. The Collateral, other than Motor Vehicle Equipment, to the
extent not delivered to the Administrative Agent pursuant to ss.2.2, except
under rental arrangements in the ordinary course of business, will be kept at
those locations listed on the Perfection Certificates and none of the Borrowers
will remove the Collateral from such locations, without providing at least
thirty (30) days prior written notice to the Administrative Agent.
5. PERFECTION - MOTOR VEHICLE EQUIPMENT. (a) ON THE CLOSING DATE. If
required under ss.7.19 of the Credit Agreement, each item of Collateral the
ownership of, or title to, which is evidenced by a motor vehicle or other
certificate of title statute (the "Titled Equipment"), the jurisdiction in which
each such item of Titled Equipment is registered or titled, and the vehicle
identification number, or other appropriate serial number relating thereto, is
listed on the Schedule of Titled Equipment (the "Titled Equipment Schedule")
attached to the Perfection Certificate delivered by each Borrower to the
Administrative Agent. On the Closing Date, the Borrowers shall either (i)
deliver to the Administrative Agent properly completed applications to note the
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lien of the Administrative Agent on the certificates of title with respect to
each item of Titled Equipment owned by any Borrower which will evidence the lien
of the Administrative Agent in such Titled Equipment together with the originals
of each such certificate of title and provide for payment of all filing fees
with respect thereto or (ii) make appropriate electronic application(s) to note
the lien of the Administrative Agent on certificates of title (which will
evidence the lien of the Administrative Agent in such Titled Equipment) with the
appropriate state registries of motor vehicles on behalf of the Administrative
Agent and provide evidence satisfactory to the Administrative Agent that
originals of such certificates of title have been delivered to such registries
of motor vehicles and that the Borrowers have paid all filing fees relating to
such applications.
(b) COVENANTS OF THE BORROWERS. Each Borrower will, at all times,
except for transfers permitted pursuant to ss.6 hereof, if required under
ss.7.19 of the Credit Agreement, (i) maintain the registration and titling of
each item of Titled Equipment in the jurisdiction set forth with respect thereto
on the applicable Perfection Certificate and (ii) cause the lien of the
Administrative Agent on each item of Titled Equipment to be noted on the
certificate of title relating thereto. Upon the acquisition of any additional
Titled Equipment, such Borrower shall promptly, and in any event within ten (10)
days after such acquisition, (i) cause the lien of the Administrative Agent on
such Titled Equipment to be noted on the certificate of title relating thereto
and (ii) deliver to the Administrative Agent such certificate of title (which
shall evidence the lien of the Administrative Agent thereon). The Borrowers
shall cause all additional Titled Equipment to be listed on the Titled Equipment
Schedule Update delivered to the Administrative Agent pursuant to ss.6(c)
hereof. Each certificate of title relating to Titled Equipment shall be
delivered by the Borrowers to the Administrative Agent at the Administrative
Agent's Head Office, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Environmental Division.
6. TRANSFERS OF COLLATERAL, ETC.(a) IN GENERAL. Except (i) as otherwise
permitted under the Credit Agreement (including, without limitation, in
connection with a Permitted Equipment Securitization described in clause (d)
below) and (ii) in compliance with the terms of this ss.6, if applicable, none
of the Borrowers will sell or offer to sell or otherwise transfer the Collateral
or any interest therein.
(b) TRANSFERS OF TITLED EQUIPMENT. If the Lenders' liens have been
noted on titled equipment pursuant to ss.7.19 of the Credit Agreement, in
connection with any sale or other transfer of Titled Equipment permitted
pursuant to ss.8.4.2 of the Credit Agreement or in connection with a Permitted
Equipment Securitization, the applicable Borrower shall request the
Administrative Agent to release the lien of the Administrative Agent in such
Titled Equipment; PROVIDED that the Borrowers shall not take or request or cause
the Administrative Agent to take, any action to release such lien if (i) such
release of lien or transfer of Titled Equipment would not be in compliance with
the terms of this Security Agreement or the other Loan Documents, or (ii) after
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giving effect to such sale or transfer, a Default or Event of Default shall
exist under the Credit Agreement. The proceeds from the sale of Titled Equipment
shall be applied in accordance with ss.8.4.2 of the Credit Agreement.
(c) REVISED TITLED EQUIPMENT SCHEDULE. If required pursuant to ss.7.19
of the Credit Agreement and requested by the Majority Lenders, within 30 days of
such request, each Borrower shall deliver to the Administrative Agent an updated
Titled Equipment Schedule, listing, as of the last day of the immediately
preceding calendar month, (i) each item of Titled Equipment owned by such
Borrower, (ii) the jurisdiction in which each such item of Titled Equipment is
registered or titled, (iii) the vehicle identification number, or other
appropriate serial number relating thereto, and (iv) each item of Titled
Equipment acquired and each item of Titled Equipment sold or otherwise
transferred during such calendar month.
(d) PERMITTED EQUIPMENT SECURITIZATION. In accordance with the terms of
the Credit Agreement and, if applicable, the Intercreditor Agreements, the
Administrative Agent may execute a release and/or agree to subordinate the lien
granted hereunder on certain Collateral which is released and/or subordinated in
connection with a Permitted Equipment Transfer, or is subject to a Permitted
Securitization Lien.
7. NO LIENS. Except for the security interest herein granted and
Permitted Liens, the Borrowers shall be the owner of the Collateral free from
any lien, security interest or other encumbrance, and each of the Borrowers
shall defend the same against all material claims and demands of all persons at
any time claiming the same or any interests therein adverse to the
Administrative Agent or any of the Lenders. None of the Borrowers shall pledge,
mortgage or create, or suffer to exist a security interest in the Collateral in
favor of any person other than the Administrative Agent, for the benefit of the
Lenders and the Administrative Agent, except for Permitted Liens.
8. INSURANCE.
8.1. MAINTENANCE OF INSURANCE. Each of the Borrowers will
maintain with financially sound and reputable insurers insurance with
respect to its properties and business against such casualties and
contingencies as shall be in accordance with general practices of
businesses engaged in similar activities in similar geographic areas.
Such insurance shall be in such minimum amounts that such Borrower will
not be deemed a co-insurer under applicable insurance laws, regulations
and policies and otherwise shall be in such amounts, contain such
terms, be in such forms and be for such periods as may be reasonably
satisfactory to the Administrative Agent. In addition, all such
insurance covering losses over $1,000,000 shall be payable to the
Administrative Agent as loss payee under a "standard" or "New York"
loss payee clause for the benefit of the Lenders and the Administrative
Agent and the Administrative Agent shall be named as additional insured
on all liability insurance policies. Without limiting the foregoing,
each of the Borrowers will (i) keep all of its physical property
insured with casualty or physical hazard insurance on an "all risks"
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basis, with broad form flood and earthquake coverage and electronic
data processing coverage, with a full replacement cost endorsement and
an "agreed amount" clause in an amount equal to 100% of the full
replacement cost of such property, (ii) maintain all such workers'
compensation or similar insurance as may be required by law and (iii)
maintain, in amounts and with deductibles equal to those generally
maintained by businesses engaged in similar activities in similar
geographic areas, general public liability insurance against claims of
bodily injury, death or property damage occurring, on, in or about the
properties of such Borrower; business interruption insurance; and
product liability insurance.
8.2. INSURANCE PROCEEDS. The proceeds of any casualty
insurance in respect of any casualty loss of any of the Collateral
shall, subject to the rights, if any, of other parties with a prior
interest in the property covered thereby, (i) so long as no Default or
Event of Default has occurred and is continuing and to the extent that
the amount of such proceeds is less than $1,000,000 be disbursed to the
Borrower which has suffered such loss for direct application by such
Borrower solely to the repair or replacement of such Borrower's
property so damaged or destroyed and (ii) in all other circumstances,
be held by the Administrative Agent as cash collateral for the
Obligations. Upon the occurrence of an Event of Default, the
Administrative Agent may, at its sole option, disburse from time to
time all or any part of such proceeds so held as cash collateral, upon
such terms and conditions as the Administrative Agent may reasonably
prescribe, for direct application by the Borrowers solely to the repair
or replacement of the Borrowers property so damaged or destroyed, or
the Administrative Agent may apply all or any part of such proceeds to
the Obligations with the Total Commitment (if not then terminated)
being reduced by the amount so applied to the Obligations.
8.3. NOTICE OF CANCELLATION, ETC. All policies of insurance
shall provide for at least thirty (30) days prior written cancellation
notice to the Administrative Agent. In the event of failure by any of
the Borrowers to provide and maintain insurance as herein provided, the
Administrative Agent may, at its option, provide such insurance and
charge the amount thereof to the Borrowers. Each of the Borrowers shall
furnish the Administrative Agent with certificates of insurance and
policies evidencing compliance with the foregoing insurance provision.
9. MAINTENANCE OF COLLATERAL; COMPLIANCE WITH LAW. Each of the
Borrowers will keep the Collateral in good order and repair in their reasonable
business judgment and will not use the same in violation of law or any policy of
insurance thereon. The Administrative Agent, or its designee, may inspect the
Collateral at any reasonable time, wherever located. Each of the Borrowers will
pay promptly when due all taxes, assessments, governmental charges and levies
upon the Collateral or incurred in connection with the use or operation of such
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Collateral or incurred in connection with this Security Agreement. Each of the
Borrowers has at all times operated, and such Borrower will continue to operate,
its business in compliance with all applicable provisions of the federal Fair
Labor Standards Act, as amended, and with all applicable provisions of federal,
state and local statutes and ordinances dealing with the control, shipment,
storage or disposal of hazardous materials or substances.
10. COLLATERAL PROTECTION EXPENSES; PRESERVATION OF COLLATERAL.
10.1. EXPENSES INCURRED BY ADMINISTRATIVE AGENT. In its
discretion, the Administrative Agent may discharge taxes and other
encumbrances at any time levied or placed on any of the Collateral,
make repairs thereto and pay any necessary filing fees. Each of the
Borrowers agrees to reimburse the Administrative Agent on demand for
any and all expenditures so made. The Administrative Agent shall have
no obligation to any of the Borrowers to make any such expenditures,
nor shall the making thereof relieve the Borrowers of any default.
10.2. ADMINISTRATIVE AGENT'S OBLIGATIONS AND DUTIES. Anything
herein to the contrary notwithstanding, each of the Borrowers shall
remain liable under each contract or agreement comprised in the
Collateral to be observed or performed by such Borrower thereunder.
Neither the Administrative Agent nor any Lender shall have any
obligation or liability under any such contract or agreement by reason
of or arising out of this Security Agreement or the receipt by the
Administrative Agent or any Lender of any payment relating to any of
the Collateral, nor shall the Administrative Agent or any Lender be
obligated in any manner to perform any of the obligations of such
Borrower under or pursuant to any such contract or agreement, to make
inquiry as to the nature or sufficiency of any payment received by the
Administrative Agent or any Lender in respect of the Collateral or as
to the sufficiency of any performance by any party under any such
contract or agreement, to present or file any claim, to take any action
to enforce any performance or to collect the payment of any amounts
which may have been assigned to the Administrative Agent or to which
the Administrative Agent or any Lender may be entitled at any time or
times. The Administrative Agent's sole duty with respect to the
custody, safe keeping and physical preservation of the Collateral in
its possession, under ss.9-207 of the Uniform Commercial Code of the
State of New York or otherwise, shall be to deal with such Collateral
in the same manner as the Administrative Agent deals with similar
property for its own account and as otherwise required by law.
11. SECURITIES AND DEPOSITS. The Administrative Agent may at any time,
at its option, transfer to itself or any nominee any securities constituting
Collateral, receive any income thereon and hold such income as additional
Collateral or apply it to the Obligations. Whether or not any Obligations are
due, the Administrative Agent may at any time ▇▇▇ for, collect, or make any
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settlement or compromise which it deems desirable with respect to the
Collateral. Regardless of the adequacy of Collateral or any other security for
the Obligations, any deposits or other sums at any time credited by or due from
the Administrative Agent or any Lender to any of the Borrowers may at any time
be applied to or set off against any of the Obligations.
12. NOTIFICATION TO ACCOUNT DEBTORS AND OTHER OBLIGORS. If an Event of
Default shall have occurred and be continuing, each of the Borrowers shall, at
the request of the Administrative Agent, notify account debtors on accounts,
chattel paper and general intangibles of such Borrower and obligors on
instruments for which such Borrower is an obligee of the security interest of
the Administrative Agent in any account, chattel paper, general intangible or
instrument and that payment thereof is to be made directly to the Administrative
Agent or to any financial institution designated by the Administrative Agent as
the Administrative Agent's agent therefor, and the Administrative Agent may
itself, if a Default or an Event of Default shall have occurred and be
continuing, without notice to or demand upon such Borrower, so notify account
debtors and obligors. After the making of such a request or the giving of any
such notification, each of the Borrowers shall hold any proceeds of collection
of accounts, chattel paper, general intangibles and instruments received by such
Borrower as trustee for the Administrative Agent, for the benefit of the Lenders
and the Administrative Agent, without commingling the same with other funds of
such Borrower and shall turn the same over to the Administrative Agent in the
identical form received, together with any necessary endorsements or
assignments. The Administrative Agent shall apply the proceeds of collection of
accounts, chattel paper, general intangibles and instruments received by the
Administrative Agent to the Obligations, such proceeds to be immediately entered
after final payment in cash or solvent credits of the items giving rise to them.
13. FURTHER ASSURANCES. Each of the Borrowers, at its own expense,
shall do, make, execute and deliver all such additional and further acts,
things, deeds, assurances and instruments as the Administrative Agent may
reasonably require more completely to vest in and assure to the Administrative
Agent and the Lenders their respective rights hereunder or in any of the
Collateral, including, without limitation, (i) executing, delivering and, where
appropriate, filing financing statements and continuation statements under the
Uniform Commercial Code, (ii) obtaining governmental and other third party
consents and approvals, including without limitation any consent of any
licensor, lessor or other applicable party referred to in ss.2.3, (iii)
obtaining waivers from mortgagees and landlords, and (iv) taking all actions
required by Sections 8-313 and 8-321 of the Uniform Commercial Code (1990) or
Sections 8-106 and 9-115 of the Uniform Commercial Code (1994), as applicable in
each relevant jurisdiction, with respect to certificated and uncertificated
securities.
14. POWER OF ATTORNEY.
14.1. APPOINTMENT AND POWERS OF ADMINISTRATIVE AGENT. Each of
the Borrowers hereby irrevocably constitutes and appoints the
Administrative Agent and any officer or agent thereof, with full power
of substitution, as its true and lawful attorneys-in-fact with full
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irrevocable power and authority in the place and stead of such Borrower
or in the Administrative Agent's own name, for the purpose of carrying
out the terms of this Security Agreement, to take any and all
appropriate action and to execute any and all documents and instruments
that may be necessary or desirable to accomplish the purposes of this
Security Agreement and hereby gives said attorneys the power and right,
on behalf of such Borrower, without notice to or assent by such
Borrower, to do the following:
(a) upon the occurrence and during the continuance of
a Default or an Event of Default, generally to sell, transfer,
pledge, make any agreement with respect to or otherwise deal
with any of the Collateral in such manner as is consistent
with the Uniform Commercial Code of the State of New York and
as fully and completely as though the Administrative Agent
were the absolute owner thereof for all purposes, and to do at
such Borrower's expense, at any time, or from time to time,
all acts and things which the Administrative Agent deems
necessary to protect, preserve or realize upon the Collateral
and the Administrative Agent's security interest therein, in
order to effect the intent of this Security Agreement, all as
fully and effectively as such Borrower might do, including,
without limitation, (i) the filing and prosecuting of
registration and transfer applications with the appropriate
federal or local agencies or authorities with respect to
trademarks, copyrights and patentable inventions and
processes, (ii) upon written notice to such Borrower, the
exercise of voting rights with respect to voting securities,
which rights may be exercised, if the Administrative Agent so
elects, with a view to causing the liquidation in a
commercially reasonable manner of assets of the issuer of any
such securities and (iii) the execution, delivery and
recording, in connection with any sale or other disposition of
any Collateral, of the endorsements, assignments or other
instruments of conveyance or transfer with respect to such
Collateral; and
(b) to file such financing statements with respect
hereto, with or without such Borrower's signature, or a
photocopy of this Security Agreement in substitution for a
financing statement, as the Administrative Agent may deem
appropriate and to execute in such Borrower's name such
financing statements and amendments thereto and continuation
statements which may require such Borrower's signature.
14.2. RATIFICATION BY BORROWERS. To the extent permitted by
law, each of the Borrowers hereby ratifies all that said attorneys
shall lawfully do or cause to be done by virtue hereof. This power of
attorney is a power coupled with an interest and shall be irrevocable.
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14.3. NO DUTY ON ADMINISTRATIVE AGENT. The powers conferred on
the Administrative Agent hereunder are solely to protect the interests
of the Administrative Agent and the Lenders in the Collateral and shall
not impose any duty upon the Administrative Agent to exercise any such
powers. The Administrative Agent shall be accountable only for the
amounts that it actually receives as a result of the exercise of such
powers and neither it nor any of its officers, directors, employees or
agents shall be responsible to any of the Borrowers for any act or
failure to act, except for the Administrative Agent's own gross
negligence or willful misconduct.
15. REMEDIES. If an Event of Default shall have occurred and be
continuing, the Administrative Agent may, without notice (except as otherwise
provided for in the Credit Agreement) to or demand upon any of the Borrowers,
declare this Security Agreement to be in default, and the Administrative Agent
shall thereafter have in any jurisdiction in which enforcement hereof is sought,
in addition to all other rights and remedies, the rights and remedies of a
secured party under the Uniform Commercial Code, including, without limitation,
the right to take possession of the Collateral, and for that purpose the
Administrative Agent may, so far as the Borrowers can give authority therefor,
enter upon any premises on which the Collateral may be situated and remove the
same therefrom. The Administrative Agent may in its discretion require any of
the Borrowers to assemble all or any part of the Collateral at such location or
locations within the state(s) of such Borrower's principal office(s) or at such
other locations as the Administrative Agent may designate. Unless the Collateral
is perishable or threatens to decline speedily in value or is of a type
customarily sold on a recognized market, the Administrative Agent shall give to
the Borrowers at least ten (10) Business Days prior written notice of the time
and place of any public sale of Collateral or of the time after which any
private sale or any other intended disposition is to be made. Each of the
Borrowers hereby acknowledges that ten (10) Business Days prior written notice
of such sale or sales shall be reasonable notice. In addition, each of the
Borrowers waives any and all rights that it may have to a judicial hearing in
advance of the enforcement of any of the Administrative Agent's rights
hereunder, including, without limitation, its right following an Event of
Default to take immediate possession of the Collateral and to exercise its
rights with respect thereto.
16. NO WAIVER, ETC. Each of the Borrowers waives demand, notice (except
as otherwise provided for in the Credit Agreement), protest, notice of
acceptance of this Security Agreement, notice of loans made, credit extended,
Collateral received or delivered or other action taken in reliance hereon and
all other demands and notices of any description. With respect to both the
Obligations and the Collateral, each of the Borrowers assents to any extension
or postponement of the time of payment or any other indulgence, to any
substitution, exchange or release of or failure to perfect any security interest
in any Collateral, to the addition or release of any party or person primarily
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or secondarily liable, to the acceptance of partial payment thereon and the
settlement, compromising or adjusting of any thereof, all in such manner and at
such time or times as the Administrative Agent may deem advisable. The
Administrative Agent shall have no duty as to the collection or protection of
the Collateral or any income thereon, nor as to the preservation of rights
against prior parties, nor as to the preservation of any rights pertaining
thereto beyond the safe custody thereof as set forth in ss.10.2. The
Administrative Agent shall not be deemed to have waived any of its rights upon
or under the Obligations or the Collateral unless such waiver shall be in
writing and signed by the Administrative Agent with the consent of the Majority
Lenders. No delay or omission on the part of the Administrative Agent in
exercising any right shall operate as a waiver of such right or any other right.
A waiver on any one occasion shall not be construed as a bar to or waiver of any
right on any future occasion. All rights and remedies of the Administrative
Agent with respect to the Obligations or the Collateral, whether evidenced
hereby or by any other instrument or papers, shall be cumulative and may be
exercised singularly, alternatively, successively or concurrently at such time
or at such times as the Administrative Agent deems expedient.
17. MARSHALLING. Neither the Administrative Agent nor any Lender shall
be required to marshal any present or future collateral security (including but
not limited to this Security Agreement and the Collateral) for, or other
assurances of payment of, the Obligations or any of them or to resort to such
collateral security or other assurances of payment in any particular order, and
all of the rights of the Administrative Agent hereunder and of the
Administrative Agent or any Lender in respect of such collateral security and
other assurances of payment shall be cumulative and in addition to all other
rights, however existing or arising. To the extent that it lawfully may, each of
the Borrowers hereby agrees that it will not invoke any law relating to the
marshalling of collateral which might cause delay in or impede the enforcement
of the Administrative Agent's rights under this Security Agreement or under any
other instrument creating or evidencing any of the Obligations or under which
any of the Obligations is outstanding or by which any of the Obligations is
secured or payment thereof is otherwise assured, and, to the extent that it
lawfully may, each of the Borrowers hereby irrevocably waives the benefits of
all such laws.
18. PROCEEDS OF DISPOSITIONS; EXPENSES. The Borrowers shall pay to the
Administrative Agent on demand any and all expenses, including reasonable
attorneys' fees and disbursements, incurred or paid by the Administrative Agent
in protecting, preserving or enforcing the Administrative Agent's rights under
or in respect of any of the Obligations or any of the Collateral. After
deducting all of said expenses, the residue of any proceeds of collection or
sale of the Obligations or Collateral shall, to the extent actually received in
cash, be applied to the payment of the Obligations in such order or preference
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as is provided in the Credit Agreement, proper allowance and provision being
made for any Obligations not then due. Upon the final payment and satisfaction
in full of all of the Obligations and after making any payments required by
Section 9-504(1)(c) of the Uniform Commercial Code of the State of New York, any
excess shall be returned to the Borrowers, and each of the Borrowers shall
remain liable for any deficiency in the payment of the Obligations.
19. OVERDUE AMOUNTS. Until paid, all amounts remaining unpaid past the
date on which such amounts shall have first become due and payable by any of the
Borrowers hereunder shall be a debt secured by the Collateral and shall bear,
whether before or after judgment, interest at the rate of interest for overdue
principal set forth in the Credit Agreement.
20. GOVERNING LAW; CONSENT TO JURISDICTION. THIS SECURITY AGREEMENT
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK. Each of the Borrowers agrees that any suit for the enforcement of this
Security Agreement may be brought in the courts of the State of New York or any
federal court sitting therein and consents to the non-exclusive jurisdiction of
such court and to service of process in any such suit being made upon such
Borrower by mail at the address set forth in ss.20 of the Credit Agreement. Each
of the Borrowers hereby waives any objection that it may now or hereafter have
to the venue of any such suit or any such court or that such suit is brought in
an inconvenient court.
21. WAIVER OF JURY TRIAL. EACH OF THE ADMINISTRATIVE AGENT AND THE
BORROWERS WAIVES ITS RIGHT TO A JURY TRIAL WITH RESPECT TO ANY ACTION OR CLAIM
ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS SECURITY AGREEMENT, ANY
RIGHTS OR OBLIGATIONS HEREUNDER OR THE PERFORMANCE OF ANY SUCH RIGHTS OR
OBLIGATIONS. Except as prohibited by law and absent gross negligence and willful
misconduct of the Administrative Agent or the Lenders, each of the Borrowers
waives any right which it may have to claim or recover in any litigation
referred to in the preceding sentence any special, exemplary, punitive or
consequential damages or any damages other than, or in addition to, actual
damages. Each of the Borrowers (i) certifies that neither the Administrative
Agent nor any Lender nor any representative, agent or attorney of the
Administrative Agent or any Lender has represented, expressly or otherwise, that
the Administrative Agent or any Lender would not, in the event of litigation,
seek to enforce the foregoing waivers and (ii) acknowledges that, in entering
into the Credit Agreement and the other Loan Documents to which the
Administrative Agent or any Lender is a party, the Administrative Agent and the
Lenders are relying upon, among other things, the waivers and certifications
contained in this ss.21.
22. CONCERNING REVISED ARTICLE 9 OF THE UNIFORM COMMERCIAL CODE. The
parties acknowledge and agree to the following provisions of this Agreement in
anticipation of the possible application, in one or more jurisdictions to the
transactions contemplated hereby, of the revised Article 9 of the Uniform
Commercial Code in the form or substantially in the form approved by the
American Law Institute and the National Conference of Commissioners on Uniform
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State Law and contained in the 1999 official text of Revised Article 9 ("Revised
Article 9").
22.1. ATTACHMENT. In applying the law of any jurisdiction in
which Revised Article 9 is in effect, the Collateral is all assets of
the Company, whether or not within the scope of Revised Article 9. The
Collateral shall include, without limitation, the following categories
of assets as defined in Revised Article 9: goods (including inventory,
equipment and any accessions thereto), instruments (including
promissory notes), documents, accounts (including health-care-insurance
receivables), chattel paper (whether tangible or electronic), deposit
accounts, letter-of-credit rights (whether or not the letter of credit
is evidenced by a writing), commercial tort claims, securities and all
other investment property, general intangibles (including payment
intangibles and software), supporting obligations and any and all
proceeds of any thereof, wherever located, whether now owned and
hereafter acquired. If the Company shall at any time, whether or not
Revised Article 9 is in effect in any particular jurisdiction, acquire
a commercial tort claim, as defined in Revised Article 9, the Company
shall immediately notify the Administrative Agent in a writing signed
by the Company of the brief details thereof and grant to the
Administrative Agent in such writing a security interest therein and in
the proceeds thereof, all upon the terms of this Agreement, with such
writing to be in form and substance satisfactory to the Administrative
Agent.
22.2. PERFECTION BY FILING. The Administrative Agent may at
any time and from time to time, pursuant to the provisions of ss.14,
file financing statements, continuation statements and amendments
thereto that describe the Collateral as all assets of the Company or
words of similar effect and which contain any other information
required by Part 5 of Revised Article 9 for the sufficiency or filing
office acceptance of any financing statement, continuation statement or
amendment, including whether the Company is an organization, the type
of organization and any organization identification number issued to
the Company. The Company agrees to furnish any such information to the
Administrative Agent promptly upon request. Any such financing
statements, continuation statements or amendments may be signed by the
Administrative Agent on behalf of the Company, as provided in ss.14,
and may be filed at any time in any jurisdiction whether or not Revised
Article 9 is then in effect in that jurisdiction.
22.3. OTHER PERFECTION, ETC. The Company shall at any time and
from time to time, whether or not Revised Article 9 is in effect in any
particular jurisdiction, take such steps as the Administrative Agent
may reasonably request for the Administrative Agent (a) to obtain an
acknowledgement, in form and substance satisfactory to the
Administrative Agent, of any bailee having possession of any of the
Collateral that the bailee holds such Collateral for the Administrative
Agent, (b) to obtain "control" of any investment property, deposit
accounts, letter-of-credit rights or electronic chattel paper (as such
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terms are defined in Revised Article 9 with corresponding provisions in
Rev. ▇▇.▇▇. 9-104, 9-105, 9-106 and 9-107 relating to what constitutes
"control" for such items of Collateral), with any agreements
establishing control to be in form and substance satisfactory to the
Administrative Agent, and (c) otherwise to insure the continued
perfection and priority of the Administrative Agent's security interest
in any of the Collateral and of the preservation of its rights therein,
whether in anticipation and following the effectiveness of Revised
Article 9 in any jurisdiction.
22.4. OTHER PROVISIONS. In applying the law of any
jurisdiction in which Revised Article 9 is in effect, the following
references to sections in this Agreement to existing Article 9 of that
jurisdiction shall be to the Revised Article 9 Section of that
jurisdiction indicated below:
------------------------------------- ----------------------------------- -----------------------------------
Agreement Section Existing Article 9 Revised Article 9
------------------------------------- ----------------------------------- -----------------------------------
3 ss. 9-109(3) Rev. ss. 9-102(a)(34)
------------------------------------- ----------------------------------- -----------------------------------
9.2 ss. 9-207 Rev. ss.9-207
------------------------------------- ----------------------------------- -----------------------------------
12 ss.ss.8-106 and 9-115 (1994) Rev.ss.ss.8-106 and 9-106
------------------------------------- ----------------------------------- -----------------------------------
17 ss. 9-504(1)(c) Rev. ▇▇.▇▇. 9-608(a)(1)(C) and
9-615(a)(3)
------------------------------------- ----------------------------------- -----------------------------------
22.5. SAVINGS CLAUSE. Nothing contained in this ss.22 shall be
construed to narrow the scope of the Administrative Agent's security interest in
any of the Collateral or the perfection or priority thereof or to impair or
otherwise limit any of the rights, powers, privileges or remedies of the
Administrative Agent or any Bank hereunder except (and then only to the extent)
mandated by Revised Article 9 to the extent then applicable.
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23. MISCELLANEOUS.
(a) The headings of each section of this Security Agreement
are for convenience only and shall not define or limit the provisions
thereof. This Security Agreement and all rights and obligations
hereunder shall be binding upon each of the Borrowers and its
respective successors and assigns, and shall inure to the benefit of
the Administrative Agent, the Lenders and their respective successors
and assigns. If any term of this Security Agreement shall be held to be
invalid, illegal or unenforceable, the validity of all other terms
hereof shall in no way be affected thereby, and this Security Agreement
shall be construed and be enforceable as if such invalid, illegal or
unenforceable term had not been included herein. Each of the Borrowers
acknowledges receipt of a copy of this Security Agreement.
(b) To the extent this Security Agreement is inconsistent with
or conflicts with the Credit Agreement, the Credit Agreement will
control.
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IN WITNESS WHEREOF, intending to be legally bound, each of the
Borrowers has caused this Security Agreement to be duly executed as of the date
first above written.
NATIONSRENT, INC.
NATIONSRENT USA, INC.
NATIONSRENT TRANSPORTATION
SERVICES, INC.
NR DELAWARE, INC.
NRGP, INC.
NATIONSRENT WEST, INC.
▇▇▇▇▇ EQUIPMENT CORP.
NR DEALER, INC.
NR FRANCHISE COMPANY
BDK EQUIPMENT COMPANY, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
NATIONSRENT OF TEXAS, LP
NATIONSRENT OF INDIANA, LP
By: NRGP, Inc., general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
Accepted and Agreed:
FLEET NATIONAL BANK (f/k/a BANKBOSTON, N.A.),
as Administrative Agent
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
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STATE OF OHIO )
) ss.
COUNTY OF Franklin )
Before me, the undersigned, a Notary Public in and for the county
aforesaid, on this ______ day of August, 2000, personally appeared ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇▇ to me known personally, and who, being by me duly sworn, deposes and
says that he is the Vice President of each of NATIONSRENT, INC., NRGP, INC.,
NATIONSRENT WEST, INC., ▇▇▇▇▇ EQUIPMENT CORP., NATIONSRENT TRANSPORTATION
SERVICES, INC., NR DELAWARE, INC., NATIONSRENT USA, INC., NR DEALER, INC., NR
FRANCHISE COMPANY and BDK EQUIPMENT COMPANY, INC. and that said instrument was
signed on behalf of each of said entities by authority of its Board of
Directors, and said ________________ acknowledged said instrument to be the free
act and deed of each of said entities.
-------------------------
Notary Public
My commission expires:
STATE OF OHIO )
) ss.
COUNTY OF FRANKLIN )
Before me, the undersigned, a Notary Public in and for the county
aforesaid, on this ______ day of August, 2000, personally appeared ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇▇ to me known personally and who, being by me duly sworn, deposes and
says that he is the Vice President of NRGP, Inc., the sole general partner of
NATIONSRENT OF TEXAS, LP and NATIONSRENT OF INDIANA, LP and that said instrument
was signed on behalf of each of said entities and said _________________
acknowledged said instrument to be the free act and deed of each of said
entities.
-------------------------
Notary Public
My commission expires:
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CERTIFICATE OF ACKNOWLEDGMENT
COMMONWEALTH OF MASSACHUSETTS )
) ss.
COUNTY OF SUFFOLK )
Before me, the undersigned, a Notary Public in and for the county
aforesaid, on this ______ day of August, 2000, personally appeared ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇ to me known personally, and who, being by me duly sworn, deposes and
says that he is the Managing Director of FLEET NATIONAL BANK (f/k/a BankBoston,
N.A.) and that said instrument was signed on behalf of said lending institution
by authority of its governing body, and said Director acknowledged said
instrument to be the free act and deed of said lending institution.
--------------------------
Notary Public
My commission expires:
20
