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EXHIBIT 4.1
AMENDMENT NO. 2
TO
AMENDED AND RESTATED CREDIT AGREEMENT
This Amendment No. 2 to Amended and Restated Credit Agreement (this
"Amendment") is dated as of October 5, 2000, by and among XxXXXXX RENTCORP, a
California corporation (the "Borrower"), the banks listed on the signature pages
hereof (individually a "Bank" and collectively "Banks"), and UNION BANK OF
CALIFORNIA, N.A., in its capacities as a Bank ("UBOC") and as agent (the
"Agent") for Banks.
Recitals
A. Agent, UBOC, Fleet National Bank, formerly known as Fleet Bank, N.A.
("Fleet"), Bank of America, N.A., formerly known as Bank of America, National
Trust and Savings Association ("BofA") and Borrower are parties to that certain
Amended and Restated Credit Agreement dated as of June 30, 1999, as amended by
that certain Amendment No. 1 to Amended and Restated Credit Agreement dated as
of December 15, 1999 (the "Credit Agreement").
B. Borrower wishes to increase the Commitment from $100 million to $120
million through the addition of Comerica Bank-California ("Comerica") as a Bank
party to the Credit Agreement. Comerica desires to join in the Credit Agreement
as a Bank and to provide $20 million as its Pro Rata Share of the Commitment.
UBOC, Fleet, BofA, and Agent desire that Comerica join in the Credit Agreement
in such manner, and the parties are willing to amend the Credit Agreement
subject to the terms and conditions set forth in this Amendment.
NOW, THEREFORE, the parties hereto hereby agree as follows:
ARTICLE I
AMENDMENTS TO CREDIT AGREEMENT
This Amendment shall be deemed to be an amendment to the Credit Agreement
and shall not be construed in any way as a replacement or substitution therefor.
All of the terms and conditions of, and terms defined in, this Amendment are
hereby incorporated by reference into the Credit Agreement as if such terms and
provisions were set forth in full therein. Any capitalized term used but not
otherwise defined in this Amendment shall have the meaning ascribed to it in the
Credit Agreement.
1.1 Comerica is hereby added to the Credit Agreement as a Bank. Comerica
hereby extends to Borrower as its Pro Rata Share of the Commitment the sum of
Twenty Million Dollars ($20,000,000.00).
1.2 Section 1.1 of the Credit Agreement, entitled "Definitions," is hereby
amended as follows:
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(a) The definition of "Bank" is amended and restated in its entirety
as follows:
"Bank" means, individually, Union Bank of California, N.A., Fleet
National Bank, Bank of America, N.A., and Comerica Bank-California,
and their respective successors, and such other banks as may become
party to this Agreement, collectively referred to herein as "Banks."
(b) The definition of "Commitment" is amended and restated in its
entirety as follows:
"Commitment" means, subject to the terms and conditions of this
Agreement, and adjusted from time to time in accordance therewith, the
obligation of Banks to make Loans to Borrower in the aggregate
principal amount outstanding at any time not to exceed the lesser of
(a) One Hundred Twenty Million Dollars ($120,000,000), and (b) the
Adjusted Borrowing Base.
(c) The definition of "Pro Rata Share" is amended and restated in its
entirety as follows:
"Pro Rata Share" means, with respect to each Bank, the percentage set
forth next to that Bank's name as follows:
Bank Pro Rata Share
---- --------------
Union Bank of California, N.A. 28.3333%
Bank of America, N.A. 27.5000%
Fleet National Bank 27.5000%
Comerica Bank-California 16.6667%
(d) The definition of "Revolving Loan Commitment Period" is amended
and restated in its entirety as follows:
"Revolving Loan Commitment Period" means, for each Bank, the period
from and including such Bank's Commitment Effective Date to, but not
including, the Revolving Loan Termination Date.
(e) A new defined term, "Commitment Effective Date," is added as
follows:
"Commitment Effective Date" means:
(i) with respect to UBOC, Fleet and BofA, June 30, 1999; and
(ii) with respect to Comerica, October 5, 2000.
(f) A new defined term, "Prior Banks," is added as follows:
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"Prior Banks" means UBOC, Fleet and BofA.
1.3 Each Bank's Pro Rata Share of the Commitment shall be the dollar
amount set forth opposite such Bank's name on the signature pages to this
Amendment.
1.4 As of the Commitment Effective Date applicable to Comerica, Comerica
shall purchase from each of the Prior Banks Comerica's Pro Rata Share of each
Prior Bank's outstanding Loans by payment of same day funds in the amount of
such Pro Rata Share. To facilitate such purchase, as of such Commitment
Effective Date, Borrower shall prepay all outstanding Eurodollar Loans that do
not otherwise mature on such Commitment Effective Date, and shall request a new
Revolving Loan pursuant to the Procedure for Loans in Section 2.4 of the Credit
Agreement for an amount equal to such prepaid amount and with a Funding Date
that is the same as such Commitment Effective Date.
1.5 From and after the Commitment Effective Date applicable to Comerica,
Comerica's Pro Rata Share of outstanding Loans shall be deemed outstanding under
and evidenced by its Revolving Note, and no longer outstanding under or
evidenced by the Revolving Notes of the Prior Banks.
1.6 Section 2.4.4 of the Credit Agreement is amended and restated in its
entirety as follows:
2.4.4 Minimum Amount of Revolving Loans. Loan Requests for Revolving
Loans shall be in one or the other of the following minimum amounts,
as the case may be, with integral multiples of Twenty-Five Thousand
Dollars ($25,000) in excess of such minimum amounts:
(a) for a Reference Rate Loan, a minimum amount of Four Hundred
Thousand Dollars ($400,000); and
(b) for a Eurodollar Loan, a minimum amount of One Million
Dollars ($1,000,000.00).
1.7 Section 3.5 of the Credit Agreement is amended by replacing the phrase
"All payments hereunder shall be in Dollars" in the first sentence of the
Section with the following:
"All payments hereunder shall be made, irrespective of and without
condition or deduction for any counterclaim, defense, recoupment, or
setoff, in Dollars"
1.8 All Commitment Fees under Section 3.6 of the Credit Agreement and all
interest on outstanding Loans accruing prior to Comerica's Commitment Effective
Date shall be for the ratable accounts of the Prior Banks; and all Commitment
Fees and interest accruing on outstanding Loans on and after Comerica's
Commitment Effective Date shall be for the ratable accounts of all of the Banks.
1.9 Section 7.3 of the Credit Agreement is amended by replacing the
introductory phrase, "Borrower will furnish to Agent:" with the following
phrase:
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"Borrower will furnish to Agent and each Bank:"
1.10 Section 11.1 of the Credit Agreement is amended by adding the
following subsection (e):
(e) Modify the definition of either "Borrowing Base" or "Adjusted
Borrowing Base" in Section 1.1 or modify or delete the reference
to the "Adjusted Borrowing Base" in the definition of
"Commitment" in Section 1.1.
1.11 Section 11.19 of the Credit Agreement is amended by adding the
following phrase to the end of the last sentence of the section:
", which consent shall not be unreasonably withheld."
1.12 For purposes of Section 11.20 of the Credit Agreement, the addresses
of the parties set forth on the signature pages to this Amendment shall
supercede, and be used for notices and other communications after the date
hereof instead of the addresses set forth on the signature pages to the Credit
Agreement.
ARTICLE II
CONDITIONS TO EFFECTIVENESS
OF AMENDMENT
2.1 The effectiveness of this Amendment is subject to the fulfillment to
the satisfaction of Agent, in its sole discretion, of the following conditions
precedent:
(a) Each Bank shall have executed and delivered to Agent a
counterpart of this Amendment;
(b) Borrower shall have executed and delivered to Agent a counterpart
of this Amendment, and a Revolving Note, payable to Comerica, in the form
attached hereto as Exhibit "A";
(c) Agent shall have received appropriate authorization documents,
including borrowing resolutions and certificates of incumbency, confirming to
Agent's satisfaction that all necessary corporate and organizational actions
have been taken to authorize Borrower to enter into this Amendment; and
(d) Agent shall have received such other documents, instruments or
agreements as Agent may require to effectuate the intents and purposes of this
Amendment.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Borrower hereby represents and warrants to Agent and each Bank that:
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3.1 After giving effect to the amendment of the Credit Agreement pursuant
to this Amendment and the consummation of the transactions contemplated hereby
(i) each of the representations and warranties set forth in Article 6 of the
Credit Agreement is true and correct in all respects as if made on the date
hereof (with references to the Credit Agreement being deemed to include this
Amendment), and (ii) there exists no Default or Event of Default under the
Credit Agreement after giving effect to this Amendment.
3.2 Borrower has full corporate power and authority to execute and deliver
this Amendment, to make and deliver the Revolving Note to Comerica, and to
perform the obligations of its part to be performed thereunder and under the
Credit Agreement as amended hereby. Borrower has taken all necessary action,
corporate or otherwise, to authorize the execution and delivery of this
Amendment and each of the documents described herein. No consent or approval of
any person, no consent or approval of any landlord or mortgagee, no waiver of
any lien or similar right and no consent, license, approval or authorization of
any governmental authority or agency is or will be required in connection with
the execution or delivery by Borrower of this Amendment or the performance by
Borrower of the Credit Agreement as amended hereby.
3.3 This Amendment, the Revolving Note payable to Comerica, and the Credit
Agreement as amended hereby are, or upon delivery thereof to Agent or Comerica,
as applicable, will be, the legal, valid and binding obligations of Borrower,
enforceable against Borrower in accordance with their respective terms, except
as such enforceability may be limited by bankruptcy, insolvency, reorganization
or similar laws affecting creditors' rights generally.
ARTICLE IV
MISCELLANEOUS
4.1 The Credit Agreement, the other Loan Documents and all agreements,
instruments and documents executed and delivered in connection with any of the
foregoing shall each be deemed to be amended hereby to the extent necessary, if
any, to give effect to the provisions of this Amendment. Except as so amended
hereby, the Credit Agreement and the other Loan Documents shall remain in full
force and effect in accordance with their respective terms.
4.2 Borrower shall pay Agent on demand reasonable fees and costs of
attorneys incurred by Agent in connection with the preparation, negotiation and
execution of this Amendment and any document required to be furnished hereunder.
4.3 Borrower affirms its obligation pursuant to Section 4.1.4 of the
Credit Agreement to pay applicable breakage fees (if any) incurred by any Prior
Bank in connection with Comerica's purchase of its Pro Rata Share of such Prior
Bank's outstanding Loans.
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IN WITNESS WHEREOF, Borrower, Banks and Agent have executed this Amendment
as of the date set forth in the preamble hereto.
XXXXXXX RENTCORP
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By: Xxxxxx X. Xxxxx
Title: Vice President and Chief Financial Officer
Notice Address:
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0000 Xxx Xxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xx. Xxxxxx Xxxxx, Chief Financial Officer
Fax: (000) 000-0000
UNION BANK OF CALIFORNIA, N.A.,
individually and as Agent
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By: Xxxxxx Xxxx Xxxxxxxxxx
Title: Vice President
Pro Rata Share of
Notice Address: Commitment: $34,000,000
-------------- Pro Rata Share: 28.3333%
000 Xxxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xx. Xxxxxx Xxxx Xxxxxxxxxx
Fax No.: (000) 000-0000
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FLEET NATIONAL BANK
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By: Xxxxxxxx X. Xxxxxxxx, Xx.
Title:Vice President
Pro Rata Share of
Notice Address: Commitment: $33,000,000
-------------- Pro Rata Share: 27.5000%
000 Xxxxxxx Xxxxxx
Mail Stop: MA DE 10008B
Xxxxxx, XX 00000
Attention: Xx. Xxxx Xxxxxxxx
Fax No.: (000) 000-0000
BANK OF AMERICA, N.A.,
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By: Xxxx X. Xxxxxx
Title:Senior Vice President
Pro Rata Share of
Notice Address: Commitment: $33,000,000
-------------- Pro Rata Share: 27.5000%
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xx. Xxxx X. Xxxxxx
Fax No.: (000) 000-0000
COMERICA BANK-CALIFORNIA
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By: R. Xxxxxxx Xxx
Title:Vice President
Pro Rata Share of
Notice Address: Commitment: $20,000,000
-------------- Pro Rata Share: 16.6667%
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: Mr. R. Xxxxxxx Xxx
Fax No.: (000) 000-0000
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