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Exhibit 4.6(iii)
SECOND AMENDMENT TO CREDIT AGREEMENT
AND CONSENT
THIS AMENDMENT AND CONSENT, dated as of October 29, 1997 (the "Amendment")
relating to the Credit Agreement referenced below, by and among NATIONAL
EQUIPMENT SERVICES, INC., a Delaware corporation (the "Company"), NES
ACQUISITION CORP., a Delaware corporation, BAT ACQUISITION CORP., a Delaware
corporation, AERIAL PLATFORMS, INC., a Georgia corporation, and MST
ENTERPRISES, INC., a Virginia corporation, (collectively referred to as the
"Subsidiary Borrowers" or individually referred to as a "Subsidiary Borrower")
(hereinafter, the Company and the Subsidiary Borrowers collectively referred to
as the "Borrowers" or individually referred to as a "Borrower"), each of those
financial institutions identified as Lenders on the signature pages hereto
(together with each of their successors and assigns, referred to individually
as a "Lender" and, collectively, as the "Lenders"), and FIRST UNION COMMERCIAL
CORPORATION ("FUCC"), acting in the manner and to the extent described in
Article XIII of the Credit Agreement (in such capacity, the "Agent"). Terms
used herein but not otherwise defined herein shall have the meanings provided
in the Credit Agreement.
W I T N E S S E T H
WHEREAS, a $115,000,000 credit facility has been extended to the
Borrowers pursuant to the terms of that certain Credit Agreement dated as of
July 1, 1997 (as amended, modified or otherwise supplemented, the "Credit
Agreement") among the Borrowers, the Lenders and the Agent;
WHEREAS, the Company proposes to issue the Senior Subordinated Notes (as
defined below);
WHEREAS, the Borrowers have requested that (a) the Required Lenders
consent to the issuance of the Senior Subordinated Notes and acknowledge that
the Senior Subordinated Notes constitute Subordinated Debt under the Credit
Agreement and (b) certain amendments, inter alia, be made to the Credit
Agreement to permit the making of the payment of interest on the Senior
Subordinated Notes and to modify the Leverage Ratio; and
WHEREAS, the Lenders are willing to furnish such consent and
acknowledgment and make such amendments;
NOW, THEREFORE, IN CONSIDERATION of these premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
(A) Each of the Lenders executing this Amendment hereby consents to the
issuance of the Senior Subordinated Notes and acknowledges that the Senior
Subordinated Notes constitute Subordinated Debt under the Credit Agreement.
The Company hereby confirms and agrees that it will prepay the Term Loans
promptly upon receipt of the proceeds of the Senior Subordinated Notes.
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(B) 1. (a) The definition of Leverage Ratio is amended by adding "minus
proceeds of the Senior Subordinated Notes held in cash by the Company or
invested by the Company in Cash Equivalents" immediately after the term
"Consolidated Funded Indebtedness" each time it appears therein.
(b) Section 1.1 of the Credit Agreement is hereby amended by
adding the following new definition:
"Senior Subordinated Notes" shall mean the $100,000,000
Senior Subordinated Notes of the Company to be issued by the
Company on or about November 26, 1997 due in 2004,
substantially on the terms and conditions approved by the
Required Lenders.
2. Section 9.13 of the Credit Agreement is hereby amended by
deleting the phrase "Permitted Liens" from subclause (i) thereof , and
inserting in place thereof the phrase "pursuant to the indenture for the
Senior Subordinated Notes".
3. Section 9.14 of the Credit Agreement is hereby amended by
inserting immediately after the phrase "Existing Subordinated Notes" in
the ninth (9th) line thereof, the new phrase "and the Senior Subordinated
Notes".
4. Section 9.17 of the Credit Agreement is hereby amended by
inserting immediately after the phrase "Capital Stock" in clause (a)
thereof, the new phrase "other than pursuant to the indenture for the
Senior Subordinated Notes".
(C) Each Borrower hereby represents and warrants that (i) the
representations and warranties contained in Section 6 of the Credit Agreement
are correct on and as of the date hereof as though made on and as of such date
(except for those representations and warranties which by their terms relate
solely to an earlier date) and after giving effect to the amendments contained
herein, (ii) no Default or Event of Default exists under the Credit Agreement
on and as of the date hereof and after giving effect to the amendments
contained herein, (iii) it has the corporate power and authority to execute and
deliver this Amendment and to perform its obligations hereunder and has taken
all necessary corporate action to authorize the execution, delivery and
performance by it of this Amendment and (iv) it has duly executed and delivered
this Amendment, and this Amendment constitutes its legal, valid and binding
obligation enforceable in accordance with its terms except as the
enforceability thereof may be limited by bankruptcy, insolvency or other
similar laws affecting the rights of creditors generally or by general
principles of equity.
(D) Except as modified hereby, all of the terms and provisions of the
Credit Agreement (and Exhibits and Schedules thereto) remain in full force and
effect.
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(E) The Borrowers agrees to pay all reasonable costs and expenses of the
Agent in connection with the preparation, execution and delivery of this
Amendment, including without limitation the reasonable fees and expenses of
Xxxxx & Xxx Xxxxx, PLLC.
(F) This Amendment may be executed in any number of counterparts, each of
which when so executed and delivered shall be deemed an original and it shall
not be necessary in making proof of this Amendment to produce or account for
more than one such counterpart.
(G) The effectiveness of this Amendment is subject to the receipt by the
Lenders of the final indenture for the Senior Subordinated Notes and the
approval of the terms and provisions thereof by the Required Lenders.
(H) This Amendment and the Credit Agreement as amended hereby shall be
governed by and construed and interpreted in accordance with the laws of the
State of New York.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, 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
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Name: Xxxx X. Xxxxxxxxx
Title: Vice President and Secretary
NES ACQUISITION CORP.
By: /s/ Xxxx X. Xxxxxxxxx
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Name: Xxxx X. Xxxxxxxxx
Title: Vice President, Secretary and Treasurer
BAT ACQUISITION CORP.
By: /s/ Xxxx X. Xxxxxxxxx
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Name: Xxxx X. Xxxxxxxxx
Title: Vice President, Secretary and Treasurer
AERIAL PLATFORMS, INC.
By: /s/ Xxxx X. Xxxxxxxxx
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Name: Xxxx X. Xxxxxxxxx
Title: Vice President, Secretary and Treasurer
MST ENTERPRISES, INC.
By: /s/ Xxxx X. Xxxxxxxxx
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Name: Xxxx X. Xxxxxxxxx
Title: Vice President, Secretary and Treasurer
AGENT: FIRST UNION COMMERCIAL CORPORATION,
as Agent and a Lender
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By: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
Title: Senior Vice President
[SIGNATURES CONTINUE]
LENDERS: BANKBOSTON, N.A.,
as a Lender
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Vice President
AMERICAN NATIONAL BANK AND TRUST COMPANY OF
CHICAGO, as a Lender
By: /s/ Xxxxx Xxxxxxxxx
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Name: Xxxxx Xxxxxxxxx
Title: Vice President
COMERICA BANK,
as a Lender
By: /s/ Xxxxxxx X. Block
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Name: Xxxxxxx X. Block
Title: Vice President
THE CIT GROUP/BUSINESS CREDIT, INC.,
as a Lender
By: /s/ Xxxx Xxxxx
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Name: Xxxx Xxxxx
Title: Vice President
BANKERS TRUST COMPANY,
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as a Lender
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Assistant Vice President
[SIGNATURES CONTINUE]
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XXXXXX TRUST AND SAVINGS BANK,
as a Lender
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Vice President
XXXXXX FINANCIAL, INC.,
as a Lender
By: /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
Title: Assistant Vice President
MERCANTILE BUSINESS CREDIT, INC.,
as a Lender
By: /s/ Mercantile Business Credit, Inc.
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President
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