Exhibit 4.6(ii)
SYNDICATION AMENDMENT AND ASSIGNMENT
THIS SYNDICATION AMENDMENT AND ASSIGNMENT (this "Amendment"), dated as of
August 10, 1998, is by and among NATIONAL EQUIPMENT SERVICES, INC., a Delaware
corporation (the "Borrower"), certain Subsidiaries of the Borrower (each a
"Subsidiary Guarantor", and collectively, the "Subsidiary Guarantors"), THE
PERSONS IDENTIFIED AS "EXISTING LENDERS" ON THE SIGNATURE PAGES HERETO (the
"Existing Lenders"), THE PERSONS IDENTIFIED AS "NEW LENDERS" ON THE SIGNATURE
PAGES HERETO (the "New Lenders" and, together with the Existing Lenders, the
"Lenders") and FIRST UNION NATIONAL BANK, as Agent for the Lenders (the
"Agent").
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement dated as of July 17, 1998 (the
"Existing Credit Agreement") among the Borrower, the Subsidiary Guarantors, the
Existing Lenders and the Agent, the Existing Lenders have extended commitments
to make certain credit facilities available to the Borrower; and
WHEREAS, the parties hereto have agreed to amend the Existing Credit
Agreement as set forth herein;
NOW, THEREFORE, in consideration of the agreements herein contained, the
parties hereby agree as follows:
PART I
DEFINITIONS
SUBPART 1.1. Certain Definitions. Unless otherwise defined
herein or the context otherwise requires, the following terms
used in this Amendment, including its preamble and recitals, have
the following meanings:
"Amended Credit Agreement" means the Existing Credit
Agreement as amended hereby.
"Amendment Effective Date" is defined in Subpart 4.1.
SUBPART 1.2. Other Definitions. Unless otherwise defined
herein or the context otherwise requires, terms used in this
Amendment, including its preamble and recitals, have the meanings
provided in the Amended Credit Agreement.
PART II
AMENDMENTS TO EXISTING CREDIT AGREEMENT
Effective on (and subject to the occurrence of) the Amendment Effective
Date, the Existing Credit Agreement is hereby amended in accordance with this
Part II. Except as so amended, the Existing Credit Agreement shall continue in
full force and effect.
SUBPART 2.1. Amendment to Section 1.1.
(a) The following definitions of "Additional Commitment" and "New
Commitment Agreement" appearing in Section 1.1 of the Credit Agreement are
hereby deleted in their entireties.
(b) The definition of "Eligible Assignee" appearing in Section 1.1 of the
Credit Agreement is hereby amended and restated in its entirety to read as
follows:
"Eligible Assignee" means (i) a Lender; (ii) an Affiliate of a
Lender; and (iii) any other Person approved by the Agent (such approval not
to be unreasonably withheld or delayed) and, unless an Event of Default has
occurred and is continuing at the time any assignment is effected in
accordance with Section 11.3, the Borrower (such approval not to be
unreasonably withheld or delayed by the Borrower and such approval to be
deemed given by the Borrower if no objection is received by the assigning
Lender and the Agent from the Borrower within five Business Days after
notice of such proposed assignment has been provided by the assigning Lender
to the Borrower); provided, however, that neither the Borrower nor an
Affiliate of the Borrower shall qualify as an Eligible Assignee.
SUBPART 2.2. Amendment to Section 2.1(a). The first sentence of Section
2.1(a) of the Credit Agreement is hereby amended and restated in its entirety to
read as follows:
(a) Revolving Commitment. Subject to the terms and conditions hereof and
in reliance upon the representations and warranties set forth herein, each
Lender severally agrees to make available to the Borrower such Lender's
Revolving Commitment Percentage of revolving credit loans requested by the
Borrower in Dollars ("Revolving Loans") from time to time from the Closing Date
until the Maturity Date, or such earlier date as the Revolving Commitments shall
have been terminated as provided herein; provided, however, that (i) with regard
to the Lenders collectively, the amount of Revolving Obligations outstanding
shall not exceed the lesser of (A) THREE HUNDRED MILLION DOLLARS ($300,000,000)
(as such aggregate maximum amount may be reduced from time to time as provided
in Section 3.4, the "Revolving Committed Amount") and (B) the Borrowing Base
less the outstanding Term Loan; provided, further, (ii) with regard to each
Lender individually, the amount of such Lender's Revolving Commitment Percentage
of the sum of the Revolving Loans plus LOC Obligations outstanding shall not
exceed such Lender's Revolving Committed Amount.
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SUBPART 2.3. Amendment to Section 2.2(a). Section 2.2(a) of the Credit
Agreement is hereby amended by deleting the phrase "less LOC Obligations
outstanding" from clause (ii)(B) of the first sentence thereof.
SUBPART 2.4. Amendment to Section 3.4(b). Section 3.4(b) of the Credit
Agreement is hereby deleted in its entirety.
SUBPART 2.5. Amendment to Section 5.2(f). Section 5.2(f) of the Credit
Agreement is hereby amended and restated in its entirety to read as follows:
(f) Immediately after giving effect to the making of such Loan
(and the application of the proceeds thereof) or to the issuance of such
Letter of Credit, as the case may be, (i) the amount of the Revolving
Obligations shall not exceed the lesser of (A) the Revolving Committed Amount
and (B) the Borrowing Base less the outstanding Term Loan and (ii) the LOC
Obligations shall not exceed the LOC Committed Amount.
SUBPART 2.6. Amendment to Section 11.3(b). Clause (iii) appearing in
Section 11.3(b) of the Credit Agreement is hereby deleted in its entirety and
the remaining clauses appearing in Section 11.3(b) are renumbered accordingly.
SUBPART 2.7. Amendment to Section 11.6. Clause (y) appearing in the final
sentence of Section 11.6 of the Credit Agreement is hereby amended and restated
in its entirety to read as follows:
(y) Lenders holding at least 75% of the aggregate Commitments may consent to
allow a Credit Party to use cash collateral in the context of a bankruptcy or
insolvency proceeding.
SUBPART 2.8. Amendment to Schedule 2.1(a). Schedule 2.1(a) of the
Existing Credit Agreement is hereby deleted in its entirety and a new schedule
in the form of Schedule 2.1(a) attached hereto is substituted therefor.
SUBPART 2.9. Amendment to Exhibit 3.4(b). Exhibit 3.4(b) to the Credit
Agreement is hereby deleted in its entirety.
SUBPART 2.10. Amendment to Exhibit 7.1(d). Exhibit 7.1(d) to the Credit
Agreement is hereby amended to conform with the amendments made to Section
2.1(a) of the Credit Agreement.
PART III
ASSIGNMENTS AND ASSUMPTIONS
The Existing Lenders hereby sell and assign, without recourse, to the New
Lenders, and the New Lenders hereby purchase and assume, without recourse, from
the Existing Lenders, effective as of the Amendment Effective Date, such
interests in the Existing Lenders' rights and obligations
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under the Existing Credit Agreement (including, without limitation, the
Commitments of the Existing Lenders on the Amendment Effective Date and the
Revolving Loans and the portions of the Term Loans owing to the Existing Lenders
which are outstanding on the Amendment Effective Date) as shall be necessary in
order to give effect to the reallocations of the Revolving Committed Amount, the
Revolving Commitment Percentages, the Term Loan Committed Amount and the Term
Loan Commitment Percentages effected by the amendment to Schedule 2.1(a) to the
Existing Credit Agreement pursuant to Subpart 2.1. Each Existing Lender hereby
represents and warrants that it is the lawful owner of its interests being
assigned hereby, free and clear of any adverse claim. The New Lenders shall make
payment in exchange for such interests in the Existing Lenders' rights and
obligations under the Existing Credit Agreement on August 7, 1998, in the
amounts and in accordance with the instructions of the Agent. Each New Lender
(a) represents and warrants that it is legally authorized to enter into this
Amendment; (b) confirms that it has received a copy of the Credit Agreement,
together with copies of the financial statements referred to in Section 5.1(c)
thereof, the financial statements delivered pursuant to Section 7.1 thereof, if
any, and such other documents and information as it has deemed appropriate to
make its own credit analysis and decision to enter into this Amendment; (c)
agrees that it will, independently and without reliance upon the Existing
Lenders, the Agent or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Credit Agreement, the
other Credit Documents or any other instrument or document furnished pursuant
hereto or thereto; (d) appoints and authorizes the Agent to take such action as
agent on its behalf and to exercise such powers and discretion under the Credit
Agreement, the other Credit Documents or any other instrument or document
furnished pursuant hereto or thereto as are delegated to the Agent by the terms
thereof, together with such powers as are incidental thereto; and (e) agrees
that it will be bound by the provisions of the Credit Agreement and will perform
in accordance with its terms all the obligations which by the terms of the
Credit Agreement are required to be performed by it as a Lender including, if it
is organized under the laws of a jurisdiction outside the United States, its
obligations pursuant to subsection 3.11 of the Credit Agreement. Each Existing
Lender shall, to the extent of the interests assigned hereby, relinquish its
rights and be released from its obligations under the Existing Credit Agreement.
The Agent shall maintain in its internal records and record in the Register the
information relating to the assignments and assumptions effected pursuant to
this Part III and as required by Section 11.3(c). The Agent hereby agrees (i)
that no transfer fee shall be payable under Section 11.3(b) of the Existing
Credit Agreement or otherwise in connection with the assignments effected
pursuant to this Part III and (ii) to pay to each New Lender its portion of the
upfront fee as set forth in the fee letter dated July 16, 1998.
PART IV
CONDITIONS TO EFFECTIVENESS
SUBPART 4.1. Amendment Effective Date. This Amendment shall be
and become effective as of the date hereof (the "Amendment Effective Date")
when all of the conditions set forth in this Part IV shall have been
satisfied, and thereafter this Amendment shall be known, and may be
referred to, as "Syndication Amendment and Assignment."
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SUBPART 4.2. Execution of Counterparts of Amendment. The Agent shall
have received counterparts (or other evidence of execution, including
telephonic message, satisfactory to the Agent) of this Amendment, which
collectively shall have been duly executed on behalf of each of the
Borrower, the Subsidiary Guarantors, the Agent and the Lenders.
SUBPART 4.3. Execution and Delivery of New Notes. Each Lender shall
have received a new Note or Notes, as the case may be, each in the
principal amount of its respective Commitments and duly executed on behalf
of the Borrower.
SUBPART 4.4. Corporate Resolutions. The Agent shall have received
copies of resolutions of the board of directors of each Credit Party
approving and adopting this Amendment, the transactions contemplated herein
and authorizing execution and delivery thereof, certified by a secretary or
assistant secretary of such Credit Party to be true and correct and in
force and effect as of the Amendment Effective Date.
PART V
MISCELLANEOUS
SUBPART 5.1. Cross-References. References in this Amendment to any
Part or Subpart are, unless otherwise specified, to such Part or Subpart of
this Amendment.
SUBPART 5.2. Instrument Pursuant to Existing Credit Agreement. This
Amendment is a Credit Document executed pursuant to the Existing Credit
Agreement and shall (unless otherwise expressly indicated therein) be
construed, administered and applied in accordance with the terms and
provisions of the Existing Credit Agreement.
SUBPART 5.3. References in Other Credit Documents. At such time as
this Amendment shall become effective pursuant to the terms of Subpart 4.1,
all references in the Existing Credit Agreement to the "Agreement" and all
references in the other Credit Documents to the "Credit Agreement" shall be
deemed to refer to the Amended Credit Agreement.
SUBPART 5.4. Representations and Warranties of the Borrower. The
Borrower hereby represents and warrants that (a) the conditions precedent
to the initial Loans were satisfied as of the Closing Date (assuming
satisfaction or waiver, if applicable, of all requirements in such
conditions that an item be in form and/or substance reasonably satisfactory
to the Agent or any Lenders or that any event or action have been completed
or performed to the reasonable satisfaction of the Agent or any Lenders),
(b) the representations and warranties contained in Section 6 of the
Existing Credit Agreement (as amended by this Amendment) are correct in all
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material respects on and as of the date hereof as though made on and as of
such date and after giving effect to the amendments contained herein and
(c) no Default or Event of Default exists under the Existing Credit
Agreement on and as of the date hereof and after giving effect to the
amendments contained herein.
SUBPART 5.5. Representations and Warranties of the New Lenders. Each
of the New Lenders hereby represents and warrants to the Borrower that at
least one of the following statements is an accurate representation as to
the source of funds to be used by such New Lender in connection with the
financing under the Credit Agreement:
(a) no part of such funds constitutes assets allocated to any
separate account maintained by such Lender in which any employee benefit
plan (or its related trust) has any interest;
(b) to the extent that any part of such funds constitutes assets
allocated to any separate account maintained by such Lender, such Lender
has disclosed to the Borrower the name of each employee benefit plan whose
assets in such account exceed 10% of the total assets of such account as of
the date of such purchase (and, for purposes of this subsection (b), all
employee benefit plans maintained by the same employer or employee
organization are deemed to be a single plan);
(c) to the extent that any part of such funds constitutes assets of
an insurance company's general account, there is no employee benefit plan
or group of plans maintained by the same employee organization with respect
to which the amount of such insurance company's general account reserves
(as determined under Code Section 807(d)) for all contracts held by or on
behalf of such plan or plans exceeds 10% of the total liabilities of such
insurance company's general account, and such insurance company is relying
on Prohibited Transaction Class Exemption 95-60 (issued July 12, 1995);
(d) to the extent that any part of such funds constitutes assets of
an insurance company's general account, such insurance company has complied
with all of the requirements of the regulations issued under Section
401(c)(1)(A) of ERISA; or
(e) such funds constitute assets of one or more specific benefit
plans which such Lender has identified in writing to the Borrower.
As used in this Subpart 5.5, the terms "employee benefit plan" and
"separate account" shall have the respective meanings assigned to such
terms in Section 3 of ERISA.
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SUBPART 5.6. Counterparts. This Amendment may be executed by the
parties hereto in several counterparts, each of which shall be deemed to be
an original and all of which shall constitute together but one and the same
agreement.
SUBPART 5.7. Governing Law. THIS AMENDMENT SHALL BE DEEMED TO BE A
CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW
YORK WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES THEREOF.
SUBPART 5.8. Successors and Assigns. This Amendment shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
SUBPART 5.9. Assignment Pursuant to the Credit Agreement.
Notwithstanding any provision in the Credit Agreement to the contrary, the
execution of this Amendment shall constitute an assignment for purposes of
Section 11 of the Credit Agreement.
[The remainder of this page has been left blank intentionally]
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Each of the parties hereto has caused a counterpart of this Amendment to be duly
executed and delivered as of the date first above written.
BORROWER: NATIONAL EQUIPMENT SERVICES, INC.
By: /s/ Xxxx X. Xxxxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Vice President
SUBSIDIARY
GUARANTORS:
NES ACQUISITION CORP.
BAT ACQUISITION CORP.
NES EAST ACQUISITION CORP.
NES MICHIGAN ACQUISITION CORP.
ALBANY LADDER COMPANY, INC.
FALCONITE, INC.
FALCONITE EQUIPMENT, INC.
M&M PROPERTIES, INC.
CARL'S MID SOUTH RENT-ALL CENTER
INCORPORATED
FALCONITE REBUILD CENTER, INC.
FALCONITE AVIATION, INC.
XXXXXXX & FALCONITE EQUIPMENT CO., INC.
By: /s/ Xxxx X. Xxxxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Vice President
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EXISTING LENDERS: FIRST UNION NATIONAL BANK,
individually in its capacity as an Existing
Lender and in its capacity as Agent
By: /s/ Xxxx X. Xxxxxxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: Senior Vice President
COMERICA BANK,
as a Lender
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: First Vice President
THE CIT GROUP/BUSINESS CREDIT, INC.,
as a Lender
By: /s/ Xxxx Xxxxx
-----------------------------------------
Name: Xxxx Xxxxx
Title: Vice President
AMERICAN NATIONAL BANK AND
TRUST COMPANY OF CHICAGO,
as a Lender
By: /s/ Xxx XxXxxx
-----------------------------------------
Name: Xxx XxXxxx
Title: AVP
MERCANTILE BUSINESS CREDIT, INC.,
as a Lender
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
[SIGNATURES CONTINUED]
NEW LENDERS:
TRANSAMERICA BUSINESS CREDIT
CORPORATION,
as a Lender
By: /s/ Xxxxxx X. Xxxxx
---------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President
XXXXXXX XXXXX BUSINESS FINANCIAL
SERVICES INC.,
as a Lender
By: /s/ Xxxxx X. Xxxxxxx
---------------------------
Name: Xxxxx X. Xxxxxxx
Title: Assistant Vice President
NATIONAL BANK OF CANADA,
A Canadian Chartered Bank, as a Lender
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
By: /s/ Xxxxxx X. Xxxx, Xx.
---------------------------
Name: Xxxxxx X. Xxxx, Xx.
Title: Assistant Vice President
AMSOUTH BANK,
as a Lender
By: /s/ Xxxxxx Xxxxxx
---------------------------
Name: Xxxxxx Xxxxxx
Title: Attorney-in-Fact (8/6/98)
[SIGNATURES CONTINUED]
COMPASS BANK,
as a Lender
By: /s/ Xxxxxxx May
---------------------------
Name: Xxxxxxx May
Title: Assistant Vice-President
FLEET NATIONAL BANK,
as a Lender
By:
---------------------------
Name:
---------------------------
Title:
---------------------------
BANKERS TRUST COMPANY,
as a Lender
By: /s/ Xxxx Xx Xxxxx
---------------------------
Name: Xxxx Xx Xxxxx
Title: Assistant Vice President
LASALLE NATIONAL BANK,
as a Lender
By: /s/ Xxxxxx Xxxxxxxxxxx
---------------------------
Name: Xxxxxx Xxxxxxxxxxx
Title: Group S.V.P. - Group Head
CITICORP DEL-LEASE, INC.,
as a Lender
By: /s/ Xxxxxx Xxxxxxxx, Xx.
---------------------------
Name: Xxxxxx Xxxxxxxx, Xx.
Title: Vice President
KEY CORPORATE CAPITAL INC.,
as a Lender
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxxx X. Xxxxxx
Title: V. P.
[SIGNATURES CONTINUED]
THE PROVIDENT BANK,
as a Lender
By: /s/ Xxxx Xxxxx
------------------------
Name: Xxxx Xxxxx
Title: VP
WACHOVIA BANK, N.A.,
as a Lender
By: /s/ Xxxxxxxx X. Xxxxxx
------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Senior Vice President
THE LONG-TERM CREDIT BANK OF JAPAN,
LTD., as a Lender
By: /s/ Xxxxx X. Xxxxx
-------------------------
Name: Xxxxx X. Xxxxx
Title: Senior Vice President
SANWA BUSINESS CREDIT CORPORATION,
as a Lender
By:
----------------------
Name:
----------------------
Title:
----------------------
XXXXXX TRUST AND SAVINGS BANK,
as a Lender
By: /s/ Xxxx X. Xxxxxx
----------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
[SIGNATURES CONTINUED]
CITIZENS BUSINESS CREDIT,
as a Lender
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: S.V.P.
ERSTE BANK DER OESTERREICHISCHEN
SPARKASSEN AG,
as a Lender
By: /s/ Xxxx X. Xxxxxxx
------------------------
Name: Xxxx X. Xxxxxxx
Title: First Vice President
By: /s/ Xxxx Xxx
------------------------
Name: Xxxx Xxx
Title: Assistant Vice President
THE FUJI BANK, LIMITED,
as a Lender
By: /s/ Xxxxx X. Xxxxxxxx
------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Joint General Manager
NATIONAL CITY BANK,
as a Lender
By: /s/ Xxxxx Xxxxx
------------------------
Name: Xxxxx Xxxxx
Title: Vice President
