EXHIBIT 4.12
SECURITY AGREEMENT
SECURITY AGREEMENT, dated as of December 18, 2001 (this "AGREEMENT"),
among NATIONSRENT, INC., a Delaware corporation and a debtor and a debtor in
possession ("NATIONSRENT"), and its Subsidiaries parties hereto, each a debtor
and a debtor in possession (together with NationsRent, the "COMPANIES", and each
individually a "COMPANY"), and FLEET NATIONAL BANK, as the administrative agent
(the "ADMINISTRATIVE AGENT") and as the syndication agent (the "SYNDICATION
AGENT"), for itself and other lending institutions (hereinafter, collectively,
the "BANKS") which are or may become parties to that certain Debtor In
Possession Revolving Credit Agreement dated as of December 18, 2001 (as amended
and in effect from time to time, the "CREDIT AGREEMENT"), among the Companies,
the Banks, the Administrative Agent and the Syndication Agent.
WHEREAS, on December 17, 2001 (the "FILING DATE"), the Companies filed
separate petitions under chapter 11 of Title 11, United States Code (the
"BANKRUPTCY CODE") in the United States Bankruptcy Court for the District of
Delaware;
WHEREAS, each of the Companies intends to continue to operate its
business pursuant to Sections 1107 and 1108 of the Bankruptcy Code;
WHEREAS, the Companies have requested that (a) the Banks provide
financing to the Companies consisting of advances and letter of credit
reimbursement obligations pursuant to Sections 364(c)(1), (2) and (3) and 364(d)
of the Bankruptcy Code in order to provide working capital for the Companies, to
refinance the Companies' obligations in respect of Existing Letters of Credit
(as defined in the Credit Agreement), and for other general corporate purposes;
WHEREAS, it is a condition precedent to the Banks' making any loans or
otherwise extending credit to the Companies under the Credit Agreement that the
Companies execute and deliver to the Administrative Agent, for the benefit of
the Banks and the Administrative Agent, a security agreement in substantially
the form hereof; and
WHEREAS, each of the Companies wishes to grant a security interest in
favor of the Administrative Agent, for the benefit of the Banks and the
Administrative Agent, as herein provided.
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.
The term "STATE", as used herein, means the Commonwealth of Massachusetts. All
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terms defined in the Uniform Commercial Code of the State and used herein shall
have the same definitions herein as specified therein. However, if a term is
defined in Article 9 of the Uniform Commercial Code of the State differently
than in another Article of the Uniform Commercial Code of the State, the term
has the meaning specified in Article 9.
2. GRANT OF SECURITY INTEREST. (a) Each of the Companies hereby grants
to the Administrative Agent, for the benefit of the Banks 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 assigns to the Administrative Agent,
for the benefit of the Banks and the Administrative Agent, the following
properties, assets and rights of such Company, 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 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, supporting obligations, any other contract
rights or rights to the payment of money, insurance claims and proceeds, and all
general intangibles (including all payment intangibles). The foregoing grant of
security interest shall extend to Avoidance Actions (other than Avoidance
Actions against the Prepetition Lenders and the Prepetition Agents) from and
after the entry of the Final Order.
(b) The liens and security interest provided for in this Agreement have
also been granted pursuant to the Orders. This Agreement supplements the Orders
without in any way diminishing or limiting the effect of the Orders or the lien
and security interest granted thereunder.
3. AUTHORIZATION TO FILE FINANCING STATEMENTS. (a) Each of the
Companies hereby irrevocably authorizes the Administrative Agent at any time and
from time to time to file in any filing office in any Uniform Commercial Code
jurisdiction any initial financing statements and amendments thereto that (i)
indicate the Collateral (A) as all assets of such Company or words of similar
effect, regardless of whether any particular asset comprised in the Collateral
falls within the scope of Article 9 of the Uniform Commercial Code of the State
or such jurisdiction, or (B) as being of an equal or lesser scope or with
greater detail, and (ii) provide any other information required by part 5 of
Article 9 of the Uniform Commercial Code of the State or such other jurisdiction
for the sufficiency or filing office acceptance of any financing statement or
amendment, including (A) whether such Company is an organization, the type of
organization and any organizational identification number issued to such Company
and, (B) in the case of a financing statement filed as a fixture filing or
indicating Collateral as as-extracted collateral or timber to be cut, a
sufficient description of real property to which the Collateral relates. Each of
the Companies agrees to furnish any such information to the Administrative Agent
promptly upon the Administrative Agent's request.
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(b) Each of the Companies hereby acknowledges that (i) any and all
Uniform Commercial Code financing statements filed in connection with any other
previously or now existing credit facilities (including, without limitation, the
Prepetition Credit Agreement) naming Fleet National Bank, as administrative
agent (or otherwise as a representative for itself and other financial
institutions), as secured party, and such Company, as debtor, shall be effective
to perfect the Administrative Agent's security interest granted by such Company
pursuant to this Agreement to the extent that such security interest may be
perfected by the filing of Uniform Commercial Code financing statements and (ii)
such prior filings represent pre-filings of Uniform Commercial Code financing
statements for purposes of so perfecting the security interests granted by the
Companies hereunder. Until all of the obligations have been finally paid and
satisfied in full, the provisions of this ss.3(b) shall continue to apply, and
such pre-filings shall continue to be effective to the fullest extent permitted
by law and not subject to any right of termination in respect of the security
interests granted herein, whether any such other credit facilities are to be
discharged with the proceeds of any of the Loans, or are to continue
independently.
4. OTHER ACTIONS. Further to insure the attachment, perfection and
first priority (subject to Permitted Liens entitled to priority under applicable
law) of, and the ability of the Administrative Agent to enforce, the
Administrative Agent's security interest in the Collateral, each of the
Companies agrees, in each case at such Company's expense, to take the following
actions with respect to the following Collateral and without limitation on such
Company's other obligations contained in this Agreement:
4.1. PROMISSORY NOTES AND TANGIBLE CHATTEL PAPER. If any
Company shall, now or at any time hereafter, hold or acquire any
promissory notes or tangible chattel paper entered into by any Company,
such Company 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. However, unless otherwise requested by the
Administrative Agent, such Company need not endorse, assign or deliver
to the Administrative Agent any tangible chattel paper arising in the
ordinary course of such Company's business consistent with past
practices.
4.2. DEPOSIT ACCOUNTS. For each deposit account that any
Company, now or at any time hereafter, opens or maintains, such Company
shall, at the Administrative Agent's request and option, pursuant to an
agreement in form and substance satisfactory to the Administrative
Agent, either (a) cause the depositary bank to agree to comply, without
further consent of such Company, at any time with instructions from the
Administrative Agent to such depositary bank directing the disposition
of funds from time to time credited to such deposit account, or (b)
arrange for the Administrative Agent to become the customer of the
depositary bank with respect to the deposit account, with such Company
being permitted, only with the consent of the Administrative Agent, to
exercise rights to withdraw funds from such deposit account. The
provisions of this paragraph shall not apply to a deposit account for
which the Administrative Agent is the depositary bank and is in
automatic control.
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4.3. INVESTMENT PROPERTY. If any Company shall, now or at any
time hereafter, hold or acquire any certificated securities, such
Company 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. If any securities now or hereafter acquired by
any Company are uncertificated and are issued to such Company or its
nominee directly by the issuer thereof, such Company shall immediately
notify the Administrative Agent thereof and, at the Administrative
Agent's request and option, pursuant to an agreement in form and
substance satisfactory to the Administrative Agent, either (a) cause
the issuer to agree to comply without further consent of such Company
or such nominee, at any time with instructions from the Administrative
Agent as to such securities, or (b) arrange for the Administrative
Agent to become the registered owner of the securities. If any
securities, whether certificated or uncertificated, or other investment
property now or hereafter acquired by any Company are held by such
Company or its nominee through a securities intermediary or commodity
intermediary, such Company shall immediately notify the Administrative
Agent thereof and, at the Administrative Agent's request and option,
pursuant to an agreement in form and substance satisfactory to the
Administrative Agent, either (i) cause such securities intermediary or
(as the case may be) commodity intermediary to agree to comply, in each
case without further consent of such Company or such nominee, at any
time with entitlement orders or other instructions from the
Administrative Agent to such securities intermediary as to such
securities or other investment property, or (as the case may be) to
apply any value distributed on account of any commodity contract as
directed by the Administrative Agent to such commodity intermediary, or
(ii) in the case of financial assets or other investment property held
through a securities intermediary, arrange for the Administrative Agent
to become the entitlement holder with respect to such investment
property, with such Company being permitted, only with the consent of
the Administrative Agent, to exercise rights to withdraw or otherwise
deal with such investment property. The provisions of this paragraph
shall not apply to any financial assets credited to a securities
account for which the Administrative Agent is the securities
intermediary.
4.4. COLLATERAL IN THE POSSESSION OF A BAILEE, CONSIGNEE, ETC.
Except (a) as otherwise provided in the Credit Agreement, (b) with
respect to goods on lease and in the possession of lessees in the
ordinary course of any Company's business, and (c) with respect to
goods being (i) repaired and in the possession of the Person repairing
such goods, (ii) sold at auction and in the possession of the
auctioneer, and (iii) shipped and in the possession of the shipping
agency, in each case in the ordinary course of any Company's business
consistent with past practices, if any Collateral is at any time in the
possession of a third-party bailee, consignee or processor, the
applicable Company shall promptly notify the Administrative Agent
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thereof and shall promptly obtain an acknowledgement from the bailee,
consignee, or processor, in form and substance satisfactory to the
Administrative Agent, that the bailee, consignee, or processor holds
such Collateral for the benefit of the Administrative Agent and the
agreement of such bailee, consignee, or processor to comply, without
further consent of such Company, at any time with instructions of the
Administrative Agent as to such Collateral.
4.5. ELECTRONIC CHATTEL PAPER AND TRANSFERABLE RECORDS. If any
Company at any time holds or acquires an interest in any electronic
chattel paper or any "transferable record," as that term is defined in
Section 201 of the federal Electronic Signatures in Global and National
Commerce Act, or in ss.16 of the Uniform Electronic Transactions Act as
in effect in any relevant jurisdiction, such Company shall promptly
notify the Administrative Agent thereof and, at the request and option
of the Administrative Agent, shall take such action as the
Administrative Agent may reasonably request to vest in the
Administrative Agent control, under ss.9-105 of the Uniform Commercial
Code, of such electronic chattel paper or control under Section 201 of
the federal Electronic Signatures in Global and National Commerce Act
or, as the case may be, ss.16 of the Uniform Electronic Transactions
Act, as so in effect in such jurisdiction, of such transferable record.
4.6. LETTER-OF-CREDIT RIGHTS. If any Company is at any time a
beneficiary under a letter of credit now or hereafter, such Company
shall promptly notify the Administrative Agent thereof and, at the
request and option of the Administrative Agent, such Company shall,
pursuant to an agreement in form and substance satisfactory to the
Administrative Agent, either (a) arrange for the issuer and any
confirmer or other nominated person of such letter of credit to consent
to an assignment to the Administrative Agent of the proceeds of the
letter of credit or (b) arrange for the Administrative Agent to become
the transferee beneficiary of the letter of credit, with the
Administrative Agent agreeing, in each case, that the proceeds of the
letter of credit are to be applied as provided in ss.2.10.2(b) of the
Credit Agreement.
4.7. COMMERCIAL TORT CLAIMS. If any Company shall, now or at
any time hereafter, hold or acquire a commercial tort claim, such
Company shall immediately notify the Administrative Agent in a writing
signed by such Company of the particulars thereof and grant to the
Administrative Agent, for the benefit of the Banks and 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.
4.8. OTHER ACTIONS AS TO ANY AND ALL COLLATERAL. Each of the
Companies further agrees, upon request of the Administrative Agent and
at the Administrative Agent's option, to take any and all other actions
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as the Administrative Agent may determine to be necessary or useful for
the attachment, perfection and first priority (subject to Permitted
Liens entitled to priority under applicable law) of, and the ability of
the Administrative Agent to enforce, the Administrative Agent's
security interest in any and all of the Collateral, including, without
limitation, (a) executing and delivering any supplemental security
agreements or assignments requested by the Administrative Agent and
relating to Collateral consisting of patents, trademarks, copyrights or
other intellectual property or property related thereto or other
specialized collateral for which additional documentation may be
necessary or advisable in the opinion of the Administrative Agent, (b)
executing, delivering and, where appropriate, filing (i) financing
statements and amendments relating thereto under the Uniform Commercial
Code, to the extent, if any, that such Company's signature thereon is
required therefor, and (ii) documents and notices in any other state,
federal or other filing office for any portion of the Collateral in
which documents or notices relating to such Collateral are in the
opinion of the Administrative Agent necessary or advisable to be filed
or recorded, (c) causing the Administrative Agent's name to be noted as
secured party on any certificate of title for a titled good if such
notation is a condition to the attachment, perfection or priority of,
or ability of the Administrative Agent to enforce, the Administrative
Agent's security interest in such Collateral, (d) complying with any
provision of any statute, regulation or treaty of the United States as
to any Collateral if compliance with such provision is a condition to
attachment, perfection or priority of, or ability of the Administrative
Agent to enforce, the Administrative Agent's security interest in such
Collateral, (e) using commercially reasonable efforts to obtain
governmental and other third party waivers, consents and approvals in
form and substance satisfactory to the Administrative Agent, including,
without limitation, any consent of any licensor, lessor or other person
obligated on Collateral, (f) except as otherwise provided in the Credit
Agreement, using commercially reasonable efforts to obtain waivers from
mortgagees and landlords in form and substance satisfactory to the
Administrative Agent and (g) taking all actions under any earlier
versions of the Uniform Commercial Code or under any other law, as
reasonably determined by the Administrative Agent to be applicable in
any relevant Uniform Commercial Code or other jurisdiction, including
any foreign jurisdiction.
5. RELATION TO OTHER SECURITY DOCUMENTS. The provisions of this
Agreement supplement the provisions of any real estate mortgage or deed of trust
granted by any of the Companies to the Administrative Agent, for the benefit of
the Banks and the Administrative Agent, and which secures the payment or
performance of any of the Obligations. Nothing contained in any such real estate
mortgage or deed of trust shall derogate from any of the rights or remedies of
the Administrative Agent or any of the Banks hereunder. In addition, to the
provisions of this Agreement being so read and construed with any such mortgage
or deed of trust, the provisions of this Agreement shall be read and construed
with the other Security Documents referred to below in the manner so indicated.
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5.1. STOCK PLEDGE AGREEMENT. Upon the Administrative Agent's
request, certain of the Companies will execute and deliver to the
Administrative Agent, for the benefit of the Banks and the
Administrative Agent, a stock pledge agreement pursuant to which each
such Company will pledge to the Administrative Agent all of the shares
of the capital stock of its Subsidiaries. Such pledges shall be
governed by the terms of such stock pledge agreement and not by the
terms of this Agreement.
5.2. TRADEMARK ASSIGNMENTS. Upon the Administrative Agent's
request, certain of the Companies will execute and deliver to the
Administrative Agent, for the benefit of the Banks and the
Administrative Agent, a Trademark Assignment pursuant to which each
such Company will pledge to the Administrative Agent, for the benefit
of the Banks and the Administrative Agent, certain Collateral
consisting of trademarks, service marks and trademark and service xxxx
rights, together with the goodwill appurtenant thereto. The provisions
of the Trademark Assignment will be supplemental to the provisions of
this Agreement, and nothing contained in the Trademark Assignment shall
derogate from any of the rights or remedies of the Administrative Agent
or any of the Banks hereunder. Neither the delivery of, nor anything
contained in, the Trademark Assignment shall be deemed to prevent or
postpone the time of attachment or perfection of any security interest
in such Collateral created hereby.
6. REPRESENTATIONS AND WARRANTIES CONCERNING COMPANIES' LEGAL STATUS.
Each of the Companies delivered to the Administrative Agent in March 2001, a
certificate signed by it and entitled "Perfection Certificate" (each a
"PERFECTION CERTIFICATE"). Each of the Companies represents and warrants to the
Banks and the Administrative Agent as follows: (a) its exact legal name is that
indicated on its Perfection Certificate and the signature page hereto, (b) it is
an organization of the type, and is organized in the jurisdiction, set forth in
its Perfection Certificate, (c) its Perfection Certificate accurately sets forth
its organizational identification number or accurately states that it has none,
(d) its Perfection Certificate accurately sets forth its place of business or,
if more than one, its chief executive office, as well as its mailing address, if
different, (e) all other information set forth on the Perfection Certificate
pertaining to it is accurate and complete in all material respects, and (f)
there has been no change in any material respect in any of such information
since the date on which the Perfection Certificate was signed by it.
7. COVENANTS CONCERNING COMPANIES' LEGAL STATUS. Each of the Companies
covenants with the Banks and the Administrative Agent as follows: (a) without
providing at least thirty (30) days prior written notice to the Administrative
Agent, it will not change its name, its place of business or, if more than one,
chief executive office, or its mailing address or organizational identification
number if it has one, (b) if it does not have an organizational identification
number and later obtains one, it will forthwith notify the Administrative Agent
of such organizational identification number, and (c) except as permitted by the
Credit Agreement and then without providing at least thirty (30) days prior
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written notice to the Administrative Agent, it will not change its type of
organization, jurisdiction of organization or other legal structure.
8. REPRESENTATIONS AND WARRANTIES CONCERNING COLLATERAL, ETC. Each of
the Companies further represents and warrants to the Banks and the
Administrative Agent as follows: (a) it is the owner of the Collateral to be
pledged by it hereunder, free from any right or claim of any person or any
adverse Lien, except for the security interest created by this Agreement and
other Liens permitted by the Credit Agreement, (b) none of the Collateral
constitutes, or is the proceeds of, "farm products" as defined in
ss.9-102(a)(34) of the Uniform Commercial Code of the State, (c) none of the
account debtors or other persons obligated on any of the Collateral is a
governmental authority covered by the Federal Assignment of Claims Act or like
federal, state or local statute or rule in respect of such Collateral, (d) to
the knowledge of the Company, it holds no commercial tort claim except as set
forth on the Perfection Certificate, and (e) it has at all times operated its
business in compliance in all material respects with all applicable provisions
of the federal Fair Labor Standards Act, as amended, and, except as otherwise
disclosed in the Credit Agreement, 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.
9. COVENANTS CONCERNING COLLATERAL, ETC. Each of the Companies further
covenants with the Banks and the Administrative Agent as follows: (a) the
Collateral pledged by it hereunder, to the extent not delivered to the
Administrative Agent pursuant to ss.4, will be kept at those locations listed on
its Perfection Certificate and it will not remove the Collateral from such
locations, except in the ordinary course of business, without providing at least
30 days prior written notice to the Administrative Agent, (b) except for the
security interest herein granted and Liens permitted by the Credit Agreement, it
shall be the owner of the Collateral pledged by it hereunder free from any right
or claim of any other person or any Lien, and it shall defend the same against
all 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 Banks, (c)
it shall not pledge, mortgage or create, or suffer to exist any right of any
person in or claim by any person to the Collateral pledged by it hereunder, or
any Lien in the Collateral pledged by it hereunder in favor of any person, other
than the Administrative Agent except for Liens permitted by the Credit
Agreement, (d) it will keep the Collateral pledged by it hereunder in good order
and repair and will not use the same in violation of law or any policy of
insurance thereon, (e) it will permit the Administrative Agent, or its designee,
to inspect the Collateral pledged by it hereunder at any reasonable time,
wherever located, (f) it will pay promptly when due all taxes, assessments,
governmental charges and levies upon the Collateral pledged by it hereunder or
incurred in connection with the use or operation of the Collateral pledged by it
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hereunder or incurred in connection with this Agreement, (g) it will continue to
operate, its business in compliance in all material respects 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, (h) it will not sell or otherwise dispose, or offer to sell or
otherwise dispose, of the Collateral pledged by it hereunder or any interest
therein except for sales and other dispositions permitted by ss.11.5.2 of the
Credit Agreement, and (i) it will provide an updated Perfection Certificate to
the Administrative Agent from time to time upon the request of the
Administrative Agent.
10. INSURANCE.
10.1. MAINTENANCE OF INSURANCE. Each of the Companies 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 none of the
Companies will 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 shall be payable to the Administrative Agent as loss
payee under a "standard" or "New York" loss payee clause for the
benefit of the Banks and the Administrative Agent. Without limiting the
foregoing, each of the Companies will (a) maintain all such workers'
compensation or similar insurance as may be required by law and (b)
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 its
properties; business interruption insurance; and product liability
insurance.
10.2. 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 an interest
having priority in the property covered thereby, shall be applied by
the Administrative Agent to the Obligations (a) in the case of proceeds
resulting from a casualty loss of Specified Resale Inventory, as
provided in ss.2.10.2(a) of the Credit Agreement, and (b) in all other
cases as if such proceeds were proceeds of other asset dispositions as
provided in ss.2.10.2(b) of the Credit Agreement. However, the
Administrative Agent may, at its sole option, disburse from time to
time all or any part of such proceeds, upon such terms and conditions
as the Administrative Agent may reasonably prescribe, for direct
application by any of the Companies solely to the repair or replacement
of such Company's property so damaged or destroyed.
10.3. CONTINUATION OF INSURANCE. 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 Companies 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 Companies. Each of the Companies shall
furnish the Administrative Agent with certificates of insurance and
policies evidencing compliance with the foregoing insurance provision.
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11. COLLATERAL PROTECTION EXPENSES; PRESERVATION OF COLLATERAL.
11.1. EXPENSES INCURRED BY ADMINISTRATIVE AGENT. In the
Administrative Agent's discretion, if any of the Companies fails to do
so, the Administrative Agent may discharge taxes and other
encumbrances, which are not Permitted Liens, at any time levied or
placed on any of the Collateral, maintain any of the Collateral, make
repairs thereto, provide adequate assurance of future performance on
executory contracts and agreements following an Event of Default and
five (5) days notice from the Administrative Agent to the Borrowers of
the occurrence of such Event of Default, and pay any necessary filing
fees or insurance premiums. The Companies agree to reimburse the
Administrative Agent on demand for all expenditures so made. The
Administrative Agent shall have no obligation to any of the Companies
to make any such expenditures, nor shall the making thereof be
construed as a waiver or cure of any Default or Event of Default.
11.2. ADMINISTRATIVE AGENT'S OBLIGATIONS AND DUTIES. Anything
herein to the contrary notwithstanding, each of the Companies shall
remain obligated and liable under each contract or agreement comprised
in the Collateral to be observed or performed by it thereunder, subject
to any provisions of the Bankruptcy Code relieving such Company of its
obligations to perform such contract or agreement or permitting such
Company to defer such performance. Neither the Administrative Agent nor
any Bank shall have any obligation or liability under any such contract
or agreement by reason of or arising out of this Agreement or the
receipt by the Administrative Agent or any Bank of any payment relating
to any of the Collateral, nor shall the Administrative Agent or any
Bank be obligated in any manner to perform any of the obligations of
any of the Companies 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 Bank 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 Bank 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 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.
12. 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 as set forth in the Credit Agreement.
Following the Termination Declaration Date and five (5) Business Days notice
from the Administrative Agent to the Borrowers of the occurrence of the
Termination Declaration Date, the Administrative Agent may demand, xxx for,
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collect, or make any settlement or compromise which it deems desirable with
respect to the Collateral. Subject to the terms and conditions of the Credit
Agreement, 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 Bank to any of the Companies may at any time be
applied to or set off against any of the Obligations.
13. NOTIFICATION TO ACCOUNT DEBTORS AND OTHER PERSONS OBLIGATED ON
COLLATERAL. If at any time any Company is not in compliance with the
requirements of ss.10.13 of the Credit Agreement, or if an Event of Default
shall have occurred and be continuing, each of the Companies shall, at the
request and option of the Administrative Agent, notify account debtors and other
persons obligated on any of the Collateral pledged by it hereunder of the
security interest of the Administrative Agent in any account, chattel paper,
general intangible, instrument or other Collateral pledged by it hereunder 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 an Event of Default shall have occurred and be continuing, without notice to
or demand upon such Company, so notify account debtors and other persons
obligated on Collateral pledged by such Company hereunder. After the making of
such a request or the giving of any such notification, each such Company shall
hold any proceeds of collection of accounts, chattel paper, general intangibles,
instruments and other Collateral received by such Company as trustee for the
Administrative Agent, for the benefit of the Banks and the Administrative Agent,
without commingling the same with other funds of such Company 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, instruments and other Collateral received by the Administrative
Agent to the Obligations in accordance with the terms of the Credit Agreement,
such proceeds to be immediately credited after final payment in cash or other
immediately available funds of the items giving rise to them.
14. POWER OF ATTORNEY.
14.1. APPOINTMENT AND POWERS OF ADMINISTRATIVE AGENT. Each of
the Companies 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
irrevocable power and authority in the place and stead of such Company
or in the Administrative Agent's own name, for the purpose of carrying
out the terms of this Agreement, to take any and all appropriate action
and to execute any and all documents and instruments that may be
necessary or useful to accomplish the purposes of this Agreement and,
without limiting the generality of the foregoing, hereby gives said
attorneys the power and right, on behalf of such Company, without
notice to or assent by such Company, to do the following:
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(a) following the Termination Declaration Date and
five (5) Business Days notice from the Administrative Agent to
the Borrowers of the occurrence of the Termination Declaration
Date, generally to sell, transfer, pledge, make any agreement
with respect to or otherwise dispose of or deal with any of
the Collateral pledged by it hereunder in such manner as is
consistent with the Uniform Commercial Code of the State and
as fully and completely as though the Administrative Agent
were the absolute owner thereof for all purposes, and to do,
at such Company's expense, at any time, or from time to time,
all acts and things which the Administrative Agent deems
necessary or useful to protect, preserve or realize upon the
Collateral pledged by such Company hereunder and the
Administrative Agent's security interest therein, in order to
effect the intent of this Agreement, all no less fully and
effectively as such Company might do, including, without
limitation, (i) the filing and prosecuting of registration and
transfer applications with the appropriate federal, state or
local agencies or authorities with respect to trademarks,
copyrights and patentable inventions and processes, (ii) upon
written notice to such Company, 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 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 pledged by such Company hereunder, of the
endorsements, assignments or other instruments of conveyance
or transfer with respect to such Collateral; and
(b) to the extent that such Company's authorization
given in ss.3 is not sufficient, to file such financing
statements with respect hereto, with or without such Company's
signature, or a photocopy of this Agreement in substitution
for a financing statement, as the Administrative Agent may
deem appropriate and to execute in such Company's name such
financing statements and amendments thereto and continuation
statements which may require such Company's signature.
14.2. RATIFICATION BY COMPANIES. To the extent permitted by
law, each of the Companies 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 is irrevocable.
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 Banks 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
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agents shall be responsible to any of the Companies for any act or
failure to act, except for the Administrative Agent's own gross
negligence or willful misconduct.
15. RIGHTS AND REMEDIES.
(a) Following the Termination Declaration Date and five (5) Business
Days notice from the Administrative Agent to the Borrowers of the occurrence of
the Termination Declaration Date, the Administrative Agent, without any other
notice to or demand upon any of the Companies, shall 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 of the State and any additional rights and remedies as may be
provided to a secured party in any jurisdiction in which Collateral is located,
including, without limitation, the right to take possession of the Collateral,
and for that purpose the Administrative Agent may, so far as the applicable
Company 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 each of the Companies to assemble all or any
part of the Collateral pledged by it hereunder at such location or locations
within the jurisdiction(s) of such Company's principal office(s) or at such
other locations as the Administrative Agent may reasonably 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 Companies at least five (5) 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
Companies hereby acknowledges that five (5) Business Days prior written notice
of such sale or sales shall be reasonable notice. In addition, except as
otherwise provided in the Credit Agreement, each of the Companies 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 and remedies hereunder, including,
without limitation, its right following the Termination Declaration Date to take
immediate possession of the Collateral and to exercise its rights and remedies
with respect thereto.
(b) Following the Termination Declaration Date and five (5) Business
Days notice from the Administrative Agent to the Borrowers of the occurrence of
the Termination Declaration Date, the Administrative Agent, or any successor to
the Administrative Agent or any purchaser at a foreclosure sale or other
disposition from the Administrative Agent or similar Person, shall have the
right to cause all rights and obligations of any Company under or in respect of
all executory contracts and agreements to which any Company is a party and which
constitute part of the Collateral to be assumed or rejected pursuant to
ss.365(a) of the Bankruptcy Code as the Administrative Agent or such Person may
direct (except to the extent that such obligations were theretofore duly
rejected by such Company), and to cause such rights or obligations to be
assigned to the Administrative Agent or to such Person pursuant to ss.365(f) of
the Bankruptcy Code (assuming that adequate assurance of future performance is
given). To the fullest extent permitted by law, each of the Companies agrees
that the Administrative Agent and such other Persons shall have the right to
effect such assumption, rejection or
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assignment, all as the Administrative Agent or such Persons may direct without
further action by any Company. Each of the Companies hereby agrees to, following
the Termination Declaration Date and five (5) Business Days notice from the
Administrative Agent to the Borrowers of the occurrence of the Termination
Declaration Date, take all such action as the Administrative Agent and such
other Persons may reasonably request to effect any such assumption, rejection or
assignment (including but not limited to, in the case of assumption, the
Administrative Agent reserving its rights under ss.11.1 to cure any defaults and
provide adequate assurance of future performance to the extent that any Company
refuses or otherwise fails to do so) following the Termination Declaration Date
and five (5) days notice from the Administrative Agent to the Borrowers of the
occurrence of the Termination Declaration Date.
(c) In addition to the rights and remedies described hereunder, the
Administrative Agent shall have the rights and remedies set forth in ss.15.3 of
the Credit Agreement.
16. STANDARDS FOR EXERCISING RIGHTS AND REMEDIES. To the extent that
applicable law imposes duties on the Administrative Agent to exercise remedies
in a commercially reasonable manner, each of the Companies acknowledges and
agrees that it is not commercially unreasonable for the Administrative Agent (a)
to fail to incur expenses reasonably deemed significant by the Administrative
Agent to prepare Collateral for disposition or otherwise to fail to complete raw
material or work in process into finished goods or other finished products for
disposition, (b) to fail to obtain third party consents for access to Collateral
to be disposed of, or to obtain or, if not required by other law, to fail to
obtain governmental or third party consents for the collection or disposition of
Collateral to be collected or disposed of, (c) to fail to exercise collection
remedies against account debtors or other persons obligated on Collateral or to
fail to remove Liens on or any adverse claims against Collateral, (d) to
exercise collection remedies against account debtors and other persons obligated
on Collateral directly or through the use of collection agencies and other
collection specialists, (e) to advertise dispositions of Collateral through
publications or media of general circulation, whether or not the Collateral is
of a specialized nature, (f) to contact other persons, whether or not in the
same business as the Companies, for expressions of interest in acquiring all or
any portion of the Collateral, (g) to hire one or more professional auctioneers
to assist in the disposition of Collateral, whether or not the collateral is of
a specialized nature, (h) to dispose of Collateral by utilizing Internet sites
that provide for the auction of assets of the types included in the Collateral
or that have the reasonable capability of doing so, or that match buyers and
sellers of assets, (i) to dispose of assets in wholesale rather than retail
markets, (j) to disclaim disposition warranties, (k) to purchase insurance or
credit enhancements to insure the Administrative Agent against risks of loss,
collection or disposition of Collateral or to provide to the Administrative
Agent a guaranteed return from the collection or disposition of Collateral, or
(l) to the extent deemed appropriate by the Administrative Agent, to obtain the
services of brokers, investment bankers, consultants and other professionals to
assist the Administrative Agent in the collection or disposition of any of the
Collateral. Each of the Companies acknowledges that the purpose of this ss.16 is
to provide non-exhaustive indications of what actions or omissions by the
Administrative Agent would fulfill the Administrative Agent's duties under the
Uniform Commercial Code of the State or any other relevant jurisdiction in the
Administrative Agent's exercise of remedies against the Collateral and that
other actions or omissions
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by the Administrative Agent shall not be deemed to fail to fulfill such duties
solely on account of not being indicated in this ss.16. Without limitation upon
the foregoing, nothing contained in this ss.16 shall be construed to grant any
rights to any of the Companies or to impose any duties on the Administrative
Agent that would not have been granted or imposed by this Agreement or by
applicable law in the absence of this ss.16.
17. NO WAIVER BY ADMINISTRATIVE AGENT, ETC. The Administrative Agent
shall not be deemed to have waived any of its rights and remedies in respect of
the Obligations or the Collateral unless such waiver shall be in writing and
signed by the Administrative Agent with the consent of the Required Banks. No
delay or omission on the part of the Administrative Agent in exercising any
right or remedy shall operate as a waiver of such right or remedy or any other
right or remedy. A waiver on any one occasion shall not be construed as a bar to
or waiver of any right or remedy 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.
18. SURETYSHIP WAIVERS BY COMPANIES. Each of the Companies waives
demand, notice, protest, notice of acceptance of this 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 Companies
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 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 therefrom, the preservation of rights
against prior parties, or the preservation of any rights pertaining thereto
beyond the safe custody thereof as set forth in ss.11.2. Each of the Companies
further waives any and all other suretyship defenses.
19. MARSHALLING. Neither the Administrative Agent nor any Bank shall be
required to marshal any present or future collateral security (including but not
limited to 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 and
remedies of the Administrative Agent or any Bank hereunder and of the
Administrative Agent or any Bank in respect of such collateral security and
other assurances of payment shall be cumulative and in addition to all other
rights and remedies, however existing or arising. To the extent that it lawfully
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may, each of the Companies 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 and remedies under this
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 Companies hereby irrevocably waives
the benefits of all such laws.
20. PROCEEDS OF DISPOSITIONS; EXPENSES. The Companies 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 and
remedies 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 or other disposition of Collateral shall, to the extent actually
received in cash, be applied in such order or preference as is provided in the
Credit Agreement. Upon the final payment and satisfaction in full of all of the
Obligations and after making any other payments required by the Credit Agreement
and Sections 9-608(a)(1)(C) or 9-615(a)(3) of the Uniform Commercial Code of the
State, any excess shall be returned to the Companies. In the absence of final
payment and satisfaction in full of all of the Obligations, the Companies shall
remain liable for any deficiency.
21. OVERDUE AMOUNTS. Until paid, all amounts due and payable by the
Companies 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.
22. GOVERNING LAW; CONSENT TO JURISDICTION. THIS AGREEMENT IS INTENDED
TO TAKE EFFECT AS A SEALED INSTRUMENT AND SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE. Each of the Companies agrees that any
action or claim arising out of any dispute in connection with this Agreement,
any rights or obligations hereunder or the performance or enforcement of such
rights or obligations may be brought in the Bankruptcy Court or the courts of
the State or any federal court sitting therein and consents to the non-exclusive
jurisdiction of such courts and to service of process in any such suit being
made upon such Company by mail at the address specified in ss.21 of the Credit
Agreement. Each of the Companies 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 inconvenient court.
23. WAIVER OF JURY TRIAL. EACH OF THE COMPANIES WAIVES ITS RIGHT TO A
JURY TRIAL WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN
CONNECTION WITH THIS AGREEMENT, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THE
PERFORMANCE OR ENFORCEMENT OF ANY SUCH RIGHTS OR OBLIGATIONS. Except as
prohibited by law, each of the Companies waives any right which it may have to
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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 Companies (a) certifies that
neither the Administrative Agent or any Bank nor any representative, agent or
attorney of the Administrative Agent or any Bank has represented, expressly or
otherwise, that the Administrative Agent or any Bank would not, in the event of
litigation, seek to enforce the foregoing waivers or other waivers contained in
this Agreement and (b) acknowledges that, in entering into the Credit Agreement
and the other Loan Documents to which the Administrative Agent or any Bank is a
party, the Administrative Agent and the Banks are relying upon, among other
things, the waivers and certifications contained in this ss.23.
24. MISCELLANEOUS. The headings of each section of this Agreement are
for convenience only and shall not define or limit the provisions thereof. This
Agreement and all rights and obligations hereunder shall be binding upon each of
the Companies and their successors and assigns, and shall inure to the benefit
of the Administrative Agent, the Banks and their respective successors and
assigns. If any term of this 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 Agreement shall be construed and be enforceable as if
such invalid, illegal or unenforceable term had not been included herein. Each
of the Companies acknowledges receipt of a copy of this Agreement. In the event
that a provision of this Agreement is contrary to a provision of the Credit
Agreement, the provision of the Credit Agreement will control.
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IN WITNESS WHEREOF, intending to be legally bound, each of the
Companies has caused this 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.
XXXXX EQUIPMENT CORP.
NR DEALER, INC.
NR FRANCHISE COMPANY
BDK EQUIPMENT COMPANY, INC., each as
a debtor and a debtor in possession
By:
--------------------------------
Name:
Title:
NATIONSRENT OF TEXAS, LP
NATIONSRENT OF INDIANA, LP, each as
a debtor and a debtor in possession
By: NRGP, Inc., general partner
By:
--------------------------------
Name:
Title:
Accepted:
FLEET NATIONAL BANK, as
Administrative Agent
By: ___________________________________
Name:
Title:
CERTIFICATE OF ACKNOWLEDGMENT
STATE OF DELAWARE )
) ss.
COUNTY OF __________________ )
Before me, the undersigned, a Notary Public in and for the county
aforesaid, on this ______ day of December, 2001, personally appeared
_____________________________ to me known personally, and who, being by me duly
sworn, deposes and says that s/he is the _____________________________ of each
of NATIONSRENT, INC., NRGP, INC., NATIONSRENT WEST, INC., XXXXX 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 DELAWARE )
) ss.
COUNTY OF _____________ )
Before me, the undersigned, a Notary Public in and for the county
aforesaid, on this ____ day of December, 2001, personally appeared
_______________________________________ to me known personally and who, being by
me duly sworn, deposes and says that s/he is the _____________________________
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:
