EXHIBIT 4.17
AMENDED AND RESTATED DEBTOR IN POSSESSION
REVOLVING CREDIT AGREEMENT
dated as of December 31, 2002
among
NATIONSRENT, INC.
AND ITS SUBSIDIARIES PARTY HERETO,
as debtors and debtors in possession and as joint and several Borrowers,
and
The Lenders Referred to Herein,
as Lenders
and
GENERAL ELECTRIC CAPITAL CORPORATION,
as Administrative Agent, Syndication Agent, and Co-Agent
with
GECC CAPITAL MARKETS GROUP, INC., as Lead Arranger and Book Manager
TABLE OF CONTENTS
1. DEFINITIONS AND RULES OF INTERPRETATION..................................3
1.1. Definitions...................................................3
1.2. Rules of Interpretation......................................23
2. THE REVOLVING CREDIT FACILITY...........................................24
2.1. Commitment to Lend...........................................24
2.2. Commitment Fee...............................................25
2.3. Reduction of Total Commitment................................25
2.4. The Notes....................................................26
2.5. Interest on Loans............................................27
2.6. Requests for Loans...........................................27
2.6.1. General...........................................27
2.6.2. Swing Line........................................27
2.7. Funds for Loans..............................................28
2.7.1. Funding Procedures................................28
2.7.2. Advances by Co-Agent..............................28
2.8. Change in Borrowing Base.....................................29
2.9. Settlements..................................................29
2.9.1. General...........................................29
2.9.2. Failure to Make Funds Available...................30
2.9.3. No Effect on Other Lenders........................30
2.10. Repayments of Loans Prior to Termination Declaration Date...30
2.10.1. Credit for Funds Received in Concentration
Account..........................................31
2.10.2. Application of Payments Prior to Termination
Declaration Date.................................32
2.11. Repayments of Loans After Termination Declaration Date......32
3. REPAYMENT OF THE LOANS..................................................32
3.1. Maturity.....................................................33
3.2. Mandatory Repayments of Loans................................33
3.3. Optional Repayments of Loans.................................33
4. LETTERS OF CREDIT.......................................................34
4.1. Letter of Credit Commitments.................................34
4.1.1. Issuance..........................................34
4.1.2. Loans Automatic; Participations...................34
4.1.3. Terms of Letters of Credit........................35
4.1.4. Fees and Expenses.................................36
4.1.5. Request for Incurrence of Letter of Credit
Obligations.......................................36
4.2. Obligation of the Borrowers..................................37
4.3. Indemnification; Nature of Lenders'Duties....................37
5. WAIVER OF SURETYSHIP DEFENSES...........................................39
i
6. CERTAIN FEES............................................................39
6.1. Closing Fee..................................................39
6.2. Syndication Fee..............................................40
6.3. Fee Credits..................................................40
6.4. Agents' Fee..................................................40
6.5. Nature of Fees...............................................40
7. CERTAIN GENERAL PROVISIONS..............................................40
7.1. Funds for Payments...........................................40
7.1.1. Payments to Co-Agent..............................40
7.1.2. No Offset, etc....................................41
7.2. Computations.................................................41
7.3. Capital Adequacy.............................................41
7.4. Certificate..................................................42
7.5. Interest After Default.......................................42
7.6. Interest Limitation..........................................42
8. PRIORITY AND COLLATERAL SECURITY........................................43
8.1. Superpriority Claims and Collateral Security.................43
8.2. Collateral Security Perfection...............................44
8.3. No Discharge; Survival of Claims.............................44
9. REPRESENTATIONS AND WARRANTIES..........................................45
9.1. Corporate Authority..........................................45
9.1.1. Organization; Good Standing.......................45
9.1.2. Authorization.....................................45
9.1.3. Enforceability....................................45
9.2. Governmental Approvals.......................................46
9.3. Title to Properties; Leases..................................46
9.4. Fiscal Year; Financial Statements; Projections...............46
9.4.1. Fiscal Year, Fiscal Quarters......................46
9.4.2. Financial Statements..............................46
9.4.3. Cash Budget.......................................46
9.5. No Material Changes..........................................46
9.6. Franchises, Patents, Copyrights, etc.........................47
9.7. Litigation...................................................47
9.8. No Materially Adverse Contracts, etc.........................47
9.9. Compliance with Other Instruments, Laws, etc.................48
9.10. Tax Status..................................................48
9.11. No Event of Default.........................................48
9.12. Holding Company and Investment Company Acts.................48
9.13. Absence of Financing Statements, etc........................48
9.14. Certain Transactions........................................48
9.15. Employee Benefit Plans......................................49
9.15.1. In General.......................................49
9.15.2. Terminability of Welfare Plans...................49
9.15.3. Guaranteed Pension Plans.........................49
9.15.4. Multiemployer Plans..............................50
9.16. Use of Proceeds.............................................50
ii
9.16.1. General..........................................50
9.16.2. Regulations U and X..............................50
9.17. Environmental Compliance....................................50
9.18. Subsidiaries; Capitalization, Etc...........................52
9.19. Disclosure..................................................52
9.20. Perfection of Security Interest.............................52
9.21. Bank Accounts...............................................52
9.22. Filed Entities..............................................53
9.23. Eligible Receivables; Eligible Rental Equipment.............53
10. AFFIRMATIVE COVENANTS OF THE BORROWERS.................................53
10.1. Punctual Payment............................................53
10.2. Maintenance of Office.......................................53
10.3. Records and Accounts........................................53
10.4. Financial Statements, Certificates and Information..........53
10.5. Notices.....................................................55
10.5.1. Defaults.........................................55
10.5.2. Environmental Events.............................55
10.5.3. Notice of Litigation and Judgments...............55
10.5.4. Notification of Claim Against Collateral.........56
10.5.5. Notice Regarding Executory Contracts.............56
10.6. Corporate Existence; Maintenance of Properties; Etc.........56
10.7. Insurance...................................................56
10.8. Taxes.......................................................57
10.9. Inspection of Properties and Books; Information.............57
10.10. Compliance with Laws, Contracts, Licenses, and Permits.....57
10.11. Employee Benefit Plans.....................................58
10.12. Use of Proceeds............................................58
10.13. Cash Management Arrangements; Depository Arrangements......58
10.14. Retention of Commercial Finance Audits and Appraisals......59
10.15. Collateral Preservation....................................60
10.16. Real Estate Matters........................................60
10.17. Landlords and Warehousemen.................................61
10.18. Further Assurances.........................................61
11. CERTAIN NEGATIVE COVENANTS OF THE BORROWERS............................61
11.1. Restrictions on Indebtedness..................................61
11.2. Restrictions on Liens.........................................62
11.3. Restrictions on Investments...................................63
11.4. Distributions................................................64
11.5. Merger, Consolidation and Disposition of Assets..............64
11.5.1. Mergers and Acquisitions..........................64
11.5.2. Disposition of Assets.............................64
11.6. Sale and Leaseback...........................................65
11.7. Compliance with Environmental Laws...........................65
11.8. Subordinated Debt............................................65
11.9. Employee Benefit Plans.......................................65
11.10. Business Activities.........................................66
iii
11.11. Fiscal Year; Fiscal Quarters................................66
11.12. Transactions with Affiliates................................66
11.13. Bank Accounts...............................................66
11.14. Bankruptcy Cases............................................66
11.15. Prepetition Indebtedness....................................67
12. FINANCIAL COVENANTS OF THE BORROWERS...................................67
12.1. Minimum Adjusted Consolidated EBITDA........................68
12.2. Capital Expenditures........................................68
12.3 Leases......................................................69
12.4. Cumulative Cash Flow........................................69
13. CLOSING CONDITIONS.....................................................69
13.1. Final Order Amendment.......................................70
13.2. Loan Documents.............................................70
13.3. Certified Copies of Charter Documents.......................70
13.4. Corporate Action............................................70
13.5. Incumbency Certificate......................................70
13.6. Certificates of Insurance...................................71
13.7. Opinions of Counsel.........................................71
13.8. Payment of Fees.............................................71
13.9. Perfection Certificates and Search Results..................71
13.10. Validity of Liens..........................................71
13.11. Resignation of Fleet and Wachovia..........................71
13.12. Fleet Account Agency Agreements; Amendments to Agency
Account Agreements.........................................72
13.13. Initial Borrowing Base Certificate; Availability...........72
13.14. Minimum Adjusted EBITDA....................................72
13.15. Appraisal..................................................72
13.16. No Material Adverse Change.................................72
13.17. Consent of Prepetition Lenders.............................72
13.18. Transitional Arrangements with Fleet........................73
14. CONDITIONS TO ALL BORROWINGS...........................................73
14.1. Final Order; Final Order Amendment..........................73
14.2. Representations True; No Event of Default...................74
14.3. Borrowing Base Certificate..................................74
14.4. No Legal Impediment.........................................74
14.5. Governmental Regulation.....................................74
14.6. Proceedings and Documents...................................74
14.7. Payment of Fees.............................................74
15. EVENTS OF DEFAULT; ACCELERATION; ETC...................................74
15.1. Events of Default and Acceleration..........................75
15.2. Termination of Commitments..................................78
15.3. Remedies....................................................79
15.4. Distribution of Collateral Proceeds.........................80
16. SHARING OF SET-OFFS, ETC...............................................81
iv
17. THE AGENTS.............................................................81
17.1. Acceptance of Resignations..................................81
17.2. Authorization................................................82
17.3. Employees and Agent.........................................82
17.4. No Liability................................................83
17.5. No Representations..........................................83
17.5.1. General..........................................83
17.5.2. Closing Documentation, etc.......................83
17.6. Payments....................................................84
17.6.1. Payments to Co-Agent.............................84
17.6.2. Distribution by Co-Agent.........................84
17.6.3. Delinquent Lenders...............................84
17.7. Holders of Notes............................................85
17.8. Indemnity...................................................85
17.9. Agent as Lender.............................................85
17.10. Resignation................................................86
17.11. Notification of Defaults and Events of Default.............86
17.12. Duties in the Case of Enforcement..........................86
18. EXPENSES AND INDEMNIFICATION...........................................86
18.1. Expenses....................................................87
18.2. Indemnification.............................................87
18.3. Survival....................................................88
19. SURVIVAL OF COVENANTS, ETC.............................................88
20. ASSIGNMENT AND PARTICIPATION...........................................89
20.1. Conditions to Assignment by Lenders.........................89
20.2. Certain Representations and Warranties; Limitations;
Covenants...................................................89
20.3. Register....................................................91
20.4. New Notes...................................................91
20.5. Participations..............................................91
20.6. Disclosure..................................................92
20.7. Assignee or Participant Affiliated with the Borrowers.......92
20.8. Miscellaneous Assignment Provisions.........................92
20.9. Assignment by Borrowers.....................................93
20.10. Assignment of Agency Roles.................................93
21. NOTICES, ETC...........................................................93
22. GOVERNING LAW..........................................................94
23. HEADINGS...............................................................94
24. COUNTERPARTS...........................................................94
25. ENTIRE AGREEMENT, ETC..................................................95
v
26. WAIVER OF JURY TRIAL...................................................95
27. CONSENTS, AMENDMENTS, WAIVERS, ETC.....................................95
28. SEVERABILITY...........................................................97
29. TRANSITIONAL ARRANGEMENTS..............................................97
30. SYNDICATION............................................................97
vi
LIST OF EXHIBITS AND SCHEDULES
Exhibit A Form of Note
Exhibit B Form of Loan Request
Exhibit C Form of Assignment and Acceptance
Exhibit D Form of Borrowing Base Certificate
Exhibit E Form of Master Inventory Financing, Security and
Settlement Agreement
Schedule 1.1 Lenders; Commitment Percentages
Schedule 1.2 Agency Account Agreements
Schedule 1.3 Existing Letters of Credit
Schedule 9.3 Title to Properties
Schedule 9.6 Intellectual Properties
Schedule 9.7 Litigation
Schedule 9.8 Materially Adverse Contracts
Schedule 9.9 Compliance with Laws
Schedule 9.14 Certain Transactions
Schedule 9.15.1 Employee Benefit Plans
Schedule 9.17 Environmental Compliance
Schedule 9.18 Subsidiaries
Schedule 9.19 Disclosure
Schedule 9.21 Bank Accounts
Schedule 11.1 Indebtedness
Schedule 11.1(e) Certain Leased Inventory and Equipment
Schedule 11.2 Liens
Schedule 11.3 Investments
Schedule 11.12 Affiliate Transactions
vii
AMENDED AND RESTATED DEBTOR IN POSSESSION
REVOLVING CREDIT AGREEMENT
This AMENDED AND RESTATED DEBTOR IN POSSESSION REVOLVING CREDIT
AGREEMENT is made as of December 31, 2002, by and among NATIONSRENT, INC., a
Delaware corporation and a debtor and a debtor in possession (the "PARENT"), and
its Subsidiaries party hereto, each a debtor and a debtor in possession
(together with the Parent, the "BORROWERS"), the lenders listed on SCHEDULE 1.1
hereto, GENERAL ELECTRIC CAPITAL CORPORATION, as the administrative agent for
the Lenders (as successor to Fleet National Bank) (the "ADMINISTRATIVE AGENT"),
as the co-agent for the Lenders (the "CO-AGENT"), and as the syndication agent
for the Lenders (as successor to Wachovia Bank, National Association) (the
"SYNDICATION AGENT" and together with the Administrative Agent and the Co-Agent,
the "AGENTS"), and GECC CAPITAL MARKETS GROUP, INC., as lead arranger and book
manager (the "ARRANGER").
WHEREAS, on December 17, 2001 (the "FILING DATE"), the Borrowers filed
separate petitions under Chapter 11 of the Bankruptcy Code in the United States
Bankruptcy Court for the District of Delaware;
WHEREAS, since the Filing Date each of the Borrowers has continued to
operate its business pursuant to Sections 1107 and 1108 of the Bankruptcy Code;
WHEREAS, before the Filing Date, the Parent and its Subsidiaries party
thereto (the "PREPETITION BORROWERS"), the lending institutions party thereto
(the "PREPETITION LENDERS"), Fleet National Bank, as the administrative agent
(the "PREPETITION ADMINISTRATIVE AGENT"), Bankers Trust Company, as the
syndication agent, and The Bank of Nova Scotia, as the documentation agent
(collectively, the "PREPETITION AGENTS"), entered into that certain Fifth
Amended and Restated Revolving Credit and Term Loan Agreement, dated as of
August 2, 2000, as amended by that certain First Amendment to Fifth Amended and
Restated Revolving Credit and Term Loan Agreement, dated as of March 14, 2001,
that certain Second Amendment to Fifth Amended and Restated Revolving Credit and
Term Loan Agreement, dated as of August 10, 2001, that certain Third Amendment
to Fifth Amended and Restated Revolving Credit and Term Loan Agreement, dated as
of December 14, 2001, and that certain Fourth Amendment to Fifth Amended and
Restated Revolving Credit and Term Loan Agreement, dated as of December 5, 2002
(as so amended, the "PREPETITION CREDIT AGREEMENT"), pursuant to which the
Prepetition Lenders extended credit to the Prepetition Borrowers on the terms
set forth therein;
WHEREAS, as of the date hereof, the Prepetition Lenders under the
Prepetition Credit Agreement are owed:
(a) revolving loan principal obligations incurred directly by
the Prepetition Borrowers, plus interest, fees, costs and expenses
including letter of credit reimbursement obligations (the "PREPETITION
-1-
REVOLVER"), the obligations of the Prepetition Borrowers in respect of
the Prepetition Revolver being joint and several, and
(b) term loan principal obligations incurred directly by the
Prepetition Borrowers, plus interest, fees, costs and expenses (the
"TERM LOAN"), the obligations of the Prepetition Borrowers in respect
of the Term Loan being joint and several;
WHEREAS, the loan and letter of credit reimbursement obligations of the
Borrowers under the Prepetition Credit Agreement are secured by Liens on
substantially all of the existing and after-acquired assets of the Borrowers
pursuant to the Prepetition Credit Agreement and the other Loan Documents (as
defined therein) and pursuant to the Final Order (I) Authorizing Secured
Postpetition Financing on a Superpriority Basis pursuant to 11 U.S.C. xx.xx. 364
and 507(b), (II) Authorizing Use of Cash Collateral pursuant to 11 U.S.C. ss.
363, and (III) Granting Relief from the Automatic Stay pursuant to 11 U.S.C. ss.
362 entered in the Cases by the Bankruptcy Court on March 6, 2002, as amended by
the Order Authorizing (A) the Payment of an Administrative Fee in connection
with the Entry into Third Amendment to Debtor In Possession Revolving Credit
Agreement, (B) to the extent required, the Entry into the Third Amendment and
(C) the Reimbursement of Certain Out-of-Pocket Travel Expenses entered by the
Bankruptcy Court in the Cases on October 10, 2002 (as so amended, the "ORIGINAL
FINAL ORDER");
WHEREAS, after the Filing Date, the Parent and its Subsidiaries party
thereto, the lending institutions party thereto (the "ORIGINAL DIP LENDERS"),
Fleet National Bank, as the administrative agent (the "ORIGINAL DIP
ADMINISTRATIVE AGENT"), Wachovia Bank, National Association, as the syndication
agent (the "ORIGINAL DIP SYNDICATION AGENT"), entered into that certain Debtor
In Possession Revolving Credit Agreement, dated as of December 18, 2001, as
amended by the First Amendment to Debtor in Possession Revolving Credit
Agreement and to Security Agreement, dated as of January 31, 2002, the Second
Amendment to Debtor In Possession Revolving Credit Agreement, dated as of June
28, 2002, and the Third Amendment to Debtor in Possession Revolving Credit
Agreement, dated as of September 27, 2002 (as so amended, the "ORIGINAL DIP
CREDIT AGREEMENT"), pursuant to which the Original DIP Lenders extended credit
to the Borrowers on the terms set forth therein;
WHEREAS, the loan and letter of credit reimbursement obligations of the
Borrowers under the Original DIP Credit Agreement are secured by Liens on
substantially all of the existing and after-acquired assets of the Borrowers
pursuant to the Original DIP Credit Agreement and the other Loan Documents and
pursuant to the Original Final Order, and the Liens securing the obligations of
the Borrowers under the Original DIP Credit Agreement are senior in priority to
the Liens securing the obligations of the Borrowers under the Prepetition Credit
Agreement, all as contemplated by the consent of the Prepetition Lenders
contained in the Third and Fourth Amendments to the Prepetition Credit Agreement
referred to above and by the Original Final Order;
-2-
WHEREAS, Fleet, in its capacity as the Original DIP Administrative
Agent, and Wachovia, in its capacity as the Original DIP Syndication Agent, are
each resigning pursuant to ss.17.5 of the Original DIP Credit Agreement
effective as of the Closing Date (as hereinafter defined), the Lenders and the
Borrowers are accepting such resignations effective as of the Closing Date, the
Lenders have agreed to appoint General Electric Capital Corporation as the
successor to both the Original DIP Administrative Agent and the Original DIP
Syndication Agent, and the Borrowers have agreed to consent to such appointments
as well as the appointment of General Electric Capital Corporation as Co-Agent,
all in accordance with the terms hereof and the Original DIP Credit Agreement;
and
WHEREAS, the Lenders, the Borrowers, the Administrative Agent and the
Syndication Agent, together with the Co-Agent, have agreed to amend and restate
the terms of the Original DIP Credit Agreement on the terms and conditions set
forth herein to, among other things, (i) extend the outside Termination Date to
June 30, 2003 and (ii) increase the Total Commitment to $75,000,000;
NOW, THEREFORE, in consideration of these premises and of the mutual
undertakings set forth herein, the parties hereto hereby agree as follows:
1. DEFINITIONS AND RULES OF INTERPRETATION.
1.1. DEFINITIONS. The following terms shall have the meanings set forth
in this ss.1 or elsewhere in the provisions of this Credit Agreement referred to
below:
ACCOUNT DEBTOR. A Person who is obligated on a Receivable.
ADJUSTED CONSOLIDATED EBITDA. For any period, (i) consolidated net
income or loss of the Borrowers for such period, determined in accordance with
generally accepted accounting principles, after deduction of all expenses,
taxes, and other proper charges, MINUS (ii) to the extent included in the
calculation of consolidated net income for such period and without duplication,
(A) non-cash gains or other non-cash income for such period, and (B) any gains
from the sale or other disposition of assets (other than Specified Resale
Inventory) during such period, and PLUS (iii) to the extent deducted in the
calculation of consolidated net income for such period and without duplication,
(A) the interest expense of the Borrowers for such period, as determined in
accordance with generally accepted accounting principles, (B) income tax
expense, (C) cash restructuring charges incurred in connection with the Cases,
(D) depreciation, amortization and, if non-recurring, other non-cash charges to
income for such period, and (E) any losses from the sale or other disposition of
assets (other than Specified Resale Inventory) during such period.
AGENTS. As defined in the preamble hereto.
ADMINISTRATIVE AGENT. As defined in the preamble hereto.
AFFILIATE. Any Person that would be considered to be an affiliate of
any of the Borrowers under Rule 144(a) of the Rules and Regulations of the
-3-
Securities and Exchange Commission, as in effect on the date hereof, if the
Borrowers were issuing securities.
AGENCY ACCOUNT AGREEMENTS. Agreements, in form and substance reasonably
satisfactory to the Administrative Agent, entered into or to be entered into
between the Administrative Agent and the depository institutions at which any of
the Borrowers maintain depository accounts, including lockbox and collection
arrangements relating thereto. The term includes those agreements set forth on
SCHEDULE 1.2 attached hereto.
AGENTS. As defined in the preamble hereto.
AGENTS' FEE. See ss.6.4.
AGENTS' SPECIAL COUNSEL. Xxxxxxx XxXxxxxxx LLP or such other counsel as
may be approved by the Agents. For purposes of Article 18, the term includes any
predecessor counsel that served as the Agents' Special Counsel.
APPLICABLE INDEX MARGIN. The per annum interest rate of two percent
(2.0%).
ARRANGER. As defined in the preamble hereto.
ASSIGNMENT AND ACCEPTANCE. See ss.20.1.
AVOIDANCE ACTIONS. Avoidance actions of the Borrowers under Chapter 5
or Section 724(a) of the Bankruptcy Code and proceeds thereof. The term shall
not include an action to avoid a transfer under Section 549 of the Bankruptcy
Code if the transfer was of an asset otherwise constituting Collateral or
collateral securing the Prepetition Lender Debt.
BALANCE SHEET DATE. December 31, 2001.
BANKRUPTCY CODE. Xxxxx 00, Xxxxxx Xxxxxx Code.
BANKRUPTCY COURT. The United States Bankruptcy Court for the District
of Delaware or such other court having jurisdiction over the Cases.
BORROWING BASE. At the time of reference, the amount equal to the sum
of
(a) the lesser of
(i) the sum of (A) 75% of the book value of the Eligible
Receivables at such time PLUS (B) 35% of the Orderly
Liquidation Value of the Eligible Rental Equipment at such
time, and
(ii) the product of (A) Adjusted Consolidated EBITDA for the twelve
full calendar month period ending with the last month reported
prior to such time by the Borrowers pursuant to ss.10.14 of
-4-
this Credit Agreement or, in the case of any calculation of
the Borrowing Base as of a time prior to February 15, 2003,
then $25,000,000 multiplied by (B) three (3), MINUS
(b) the Commitment Reserve, MINUS
(c) the sum of $3,500,000 as a reserve in respect of the Carve-Out.
The Borrowing Base shall be determined by the Agents by reference to the
Borrowing Base Certificate most recently delivered to the Agents in accordance
with the terms of this Credit Agreement. Any adjustments to and the calculation
of Adjusted Consolidated EBITDA in clause (a)(ii) above shall be acceptable to
the Agents and shall be subject to verification, as provided in ss.10.14 hereof,
by any collateral auditor, appraiser or other third party acceptable to the
Agents. The Borrowing Base may be adjusted from time to time by the Agents in
accordance with ss.2.8 hereof.
BORROWING BASE CERTIFICATE. See ss.10.4(h).
BORROWERS. As defined in the preamble hereto.
BUSINESS DAY. Any day on which banking institutions in New York city,
New York and the city in which the Concentration Account Bank is located are
open for the transaction of banking business.
CAPITAL ASSETS. Fixed assets, both tangible (such as land, buildings,
fixtures, machinery and equipment) and intangible (such as patents, copyrights,
trademarks, franchises and good will). The term does not include any item
customarily charged directly to expense or depreciated over a useful life of
twelve (12) months or less in accordance with generally accepted accounting
principles.
CAPITAL EXPENDITURES. Amounts paid or Indebtedness incurred by any of
the Borrowers in connection with the purchase, lease, improvement, maintenance,
or repair by such Borrower of Capital Assets that would be required to be
capitalized and shown on the balance sheet of such Person in accordance with
generally accepted accounting principles. For purposes of the financial covenant
set forth in ss.12.2, "Capital Expenditures" shall not include inventory or
equipment disposed of in exchange for inventory or equipment acquired by the
Borrowers pursuant to the Exchange Agent Agreement.
CAPITAL STOCK. Any and all shares, interests, participations or other
equivalents (however designated) of capital stock of a corporation, any and all
equivalent ownership interests in a Person (other than a corporation) and any
and all warrants, rights or options to purchase any of the foregoing.
CAPITALIZED LEASE. With respect to any of the Borrowers, any lease of
any property (whether real, personal or mixed) by one or more of such Persons
as lessee that, in accordance with generally accepted accounting principles,
-5-
either would be required to be classified and accounted for as a capital lease
on a balance sheet of such Persons or otherwise be disclosed as such in a note
to such balance sheet, other than any such lease under which any of the
Borrowers is the lessor.
CARVE OUT. At the time of reference thereto, the sum of (i) allowed
administrative expenses payable pursuant to 28 U.S.C.ss.1930(a)(6) and (ii)
Priority Professional Expenses incurred on and after the Filing Date.
CASES. Collectively, the Borrowers' reorganization cases under Chapter
11 of the Bankruptcy Code pending in the Bankruptcy Court, which have been
consolidated into jointly administered Case No. 01-11628.
CASH COLLATERAL ACCOUNT. See ss.4.1.3(a).
CASH EQUIVALENTS. See ss.4.1.3(a).
CASH SWEEP DATE. The date which the Co-Agent designates as the "Cash
Sweep Date" in a written notice to the Borrowers received by the Borrowers at
least one Business Day prior to the Cash Sweep Date so designated.
CHANGE OF CONTROL. The individuals who were directors of the Parent on
the Closing Date shall cease to constitute a majority of the board of directors
of the Parent, unless the Borrowers demonstrate to the reasonable satisfaction
of the Agents that the change has received the support of holders of at least
66-2/3% in interest of the Prepetition Lender Debt.
CLOSING DATE. The first date on which the conditions set forth in ss.13
have been satisfied and any Loan is to be made or any Letter of Credit
Obligation is to be incurred hereunder and any "Loans" and "Letters of Credit"
under and as defined in the Original DIP Credit Agreement become Loans and
Letters of Credit under this Credit Agreement. The date shall be determined
after taking into account the deferral and waiver, in the discretion of the
Administrative Agent, of the satisfaction of any condition precedent pursuant to
the last paragraph of ss.13.
CO-AGENT. As defined in the preamble hereto.
CO-AGENT'S OFFICE. The Co-Agent's office located at 000 Xxxxxxx Xxxxx,
0xx Xxxxx, Xxxxxxx, Xxxxxxxxxxx 00000, or at such other location as the Co-Agent
may designate from time to time.
CODE. The Internal Revenue Code of 1986.
COLLATERAL. All of the property, rights and interests of the Borrowers
that are or are intended to be subject to the Liens created by the Security
Documents or the Final Order.
COMMITMENT. With respect to each Lender, the product of such Lender's
Commitment Percentage and the Total Commitment then in effect, as the same may
be reduced from time to time; or, if such commitment is terminated pursuant to
the provisions hereof, zero.
-6-
COMMITMENT PERCENTAGE. With respect to each Lender, the percentage set
forth on SCHEDULE 1.1 hereto as such Lender's percentage of the Total
Commitment.
COMMITMENT RESERVE. The sum of Two Million Dollars ($2,000,000).
COMPLIANCE CERTIFICATE. See ss.10.4(d).
CONCENTRATION ACCOUNT. The account no. 9429140760 maintained by the
Borrowers with Fleet, or such other account or accounts as shall be so
designated in writing by the Co-Agent.
CONCENTRATION ACCOUNT BANK. Fleet or, with the consent or at the
designation of the Co-Agent, any other bank or other depositary institution at
which the Concentration Account or the Borrowers' operating account is
maintained.
CONSOLIDATED. With reference to any term defined herein, shall mean
that term as applied to the accounts of the Borrowers, consolidated in
accordance with generally accepted accounting principles.
CREDIT AGREEMENT. This Amended and Restated Debtor In Possession
Revolving Credit Agreement, including the Schedules and Exhibits hereto.
CREDIT EXPOSURE. With respect to any Lender at the time of reference,
(i) prior to the termination of the Commitments, such Lender's Commitment and
(b) after the termination of the Commitments, the sum of (i) the aggregate
principal amount of the Loans of such Lender PLUS (ii) the aggregate amount of
such Lender's Letter of Credit Obligations.
CREDITORS' COMMITTEE. The Official Committee of Creditors Holding
Unsecured Claims appointed in the Cases by the United States Trustee for the
District of Delaware on January 4, 2002.
CUMULATIVE CASH FLOW. For any specified period commencing January 1,
2003, the Adjusted Consolidated EBITDA for such period, with the following
further adjustments:
(a) There shall be subtracted from Adjusted Consolidated
EBITDA for such period (i) cash interest expenses to the extent
added back to the calculation of Adjusted Consolidated EBITDA for
such period under clause (iii)(A) of the definition of that term,
(ii) cash adequate protection payments on purchase money secured
loans during such period to the extent not already added back
under the foregoing clause (i), (iii) cash restructuring charges
incurred in connection with the Cases to the extent added back to
the calculation of Adjusted Consolidated EBITDA for such period
under clause (iii)(C) of the definition of that term, and (iv) the
Borrowers' cash Capital Expenditures during such period.
(b) There shall be added to Adjusted Consolidated EBITDA for
such period the Borrowers' positive change in working capital
during such period or, as the case may be, there shall be
-7-
subtracted from Adjusted Consolidated EBITDA for such period the
Borrowers' negative change in working capital during such period.
(c) There shall be added to Adjusted Consolidated EBITDA for
such period (i) any cash and cash equivalents on hand of the
Borrowers on December 31, 2002, and (ii) any Net Cash Proceeds of
asset dispositions permitted by this Agreement, other than Net
Cash Proceeds in respect of the sale or other disposition of
Specified Resale Inventory.
DEFAULT. See ss.15.1.
DELINQUENT LENDER. See ss.17.6.3.
DERIVATIVE TRANSACTION. Any of (i) a "swap agreement" as defined in
Section 101(53B) of the Bankruptcy Code (other than a spot foreign exchange
transaction), (ii) any equity swap, floor, collar, cap or option transaction,
(iii) any option to enter into any of the foregoing, and (iv) any combination of
the foregoing.
DISTRIBUTION. The declaration or payment of any dividend on or in
respect of any shares of any class of Capital Stock of any of the Borrowers,
other than dividends payable solely in shares of common stock of any of the
Borrowers; the purchase, redemption, or other retirement of any shares of any
class of Capital Stock of any of the Borrowers, directly or indirectly through a
Subsidiary of any of the Borrowers; the return of capital by any of the
Borrowers to its shareholders as such; or any other distribution on or in
respect of any shares of any class of capital stock of any of the Borrowers.
DOLLARS OR $. Dollars in lawful currency of the United States of
America.
DRAWDOWN DATE. The date on which any Loan is made or is to be made.
ELIGIBLE ASSIGNEE. (a) Any Lender, any Affiliate of any Lender and,
with respect to any Lender that is an investment fund that invests in commercial
loans, any other investment fund that invests in commercial loans and that is
managed or advised by the same investment advisor as such Lender or by an
Affiliate of such investment advisor, (b) any commercial bank, savings and loan
association or savings bank or any other entity which is an "accredited
investor" (as defined in Regulation D under the Securities Act of 1933) which
extends credit or buys loans as one of its businesses, including insurance
companies, mutual funds, lease financing companies and commercial finance
companies, in each case, which has a rating of BBB or higher from S&P and a
rating of Baa2 or higher from Xxxxx'x at the date on which it becomes a Lender
and which, through its applicable lending office, is capable of lending to the
Borrowers without the imposition of any withholding or similar taxes; PROVIDED
-8-
that no Person or Affiliate determined by the Administrative Agent to be acting
in the capacity of a vulture fund or distressed debt purchaser shall be an
Eligible Assignee and no Person or Affiliate of such Person (other than a Person
that is already a Lender) holding Subordinated Debt or Capital Stock issued by
any Borrower shall be an Eligible Assignee, without the consent of the
Administrative Agent, and (c) any other Person approved by the Administrative
Agent.
ELIGIBLE RECEIVABLE. A Receivable of any Borrower that consists of the
unpaid portion of the obligation stated on an invoice issued to, or an
instrument issued by, an Account Debtor with respect to Inventory or equipment
sold and shipped to or services performed for such Account Debtor, or the unpaid
portion of rental obligations due or to become due on chattel paper from such
Account Debtor, all in the ordinary course of business of such Borrower
consistent with past practices, net of any commissions, discounts, credits,
rebates and other allowances of any kind or nature allowable or payable by such
Borrower. No Receivable shall be an Eligible Receivable unless it meets all of
the following requirements:
(i) such Receivable is owned solely by such Borrower, is
subject to a duly perfected, first priority Lien in favor of the
Administrative Agent and is subject to no other Liens other than
Permitted Liens;
(ii) such Receivable has not been outstanding more than 60
days past the originally scheduled due date or more than 90 days past
the Receivable's invoice date;
(iii) such Receivable arises out of the bona fide sale or true
lease of goods or rendition of services and is the valid, binding and
legally enforceable obligation of such Account Debtor;
(iv) the goods the sale or lease of which gave rise to such
Receivable were shipped or delivered to such Account Debtor on an
absolute sale or true lease basis and not on a xxxx and hold sale
basis, a consignment sale basis, a guaranteed sale basis, a sale or
return basis, or on the basis of any other similar understanding, and
in the case of the sale of goods, no material part of such goods has
been returned or rejected, and, in the case of the lease of goods, the
lease as to any material part of the leased goods has not been
rejected;
(v) such Receivable is payable in Dollars and from a place of
business or residence of such Account Debtor in the United States;
(vi) such Account Debtor with respect to such Receivable is
not insolvent or the subject of any bankruptcy or insolvency
proceedings of any kind or of any other pending proceeding or action,
which action or proceeding might, in the Agents' reasonable judgment,
have a materially adverse effect on such Account Debtor, and is not, in
the reasonable discretion of the Agents, deemed ineligible for credit
for other reasons; EXCLUDING, HOWEVER, from the operation of this
clause (vi) any Account Debtor that is a debtor in possession under
Chapter 11 of the Bankruptcy Code if the Receivable arises from a sale
-9-
or lease of Inventory to such Account Debtor after the commencement of
the Account Debtor's Chapter 11 case and the Account Debtor has in
place either (A) a debtor in possession financing facility available to
the Account Debtor, or (B) a cash collateral order under which the
Agents determine that the Account Debtor has adequate availability, in
either case in an amount and on other terms reasonably satisfactory to
the Agents;
(vii) such Receivable is not owing by such Account Debtor in
respect of which 30% or more in face value of the Receivables due from
such Account Debtor or any of its Affiliates are not deemed Eligible
Receivables hereunder by reason of being past due;
(viii) such Receivable is not owing by an Account Debtor whose
then-existing Receivables owing to any of the Borrowers exceed in face
amount 10% of total Eligible Receivables of all of the Borrowers;
PROVIDED, that such Receivables shall not cease to be Eligible
Receivables solely by reason of this clause (viii) except to the extent
of the Receivables in excess of such limits;
(ix) the goods giving rise to such Receivable have been
shipped or delivered or the services giving rise to such Receivable
have been performed by such Borrower, and the Receivable otherwise
represents a final sale or bona fide true lease with respect to such
goods or services;
(x) such Receivable is not subject to any present or
contingent (and no facts exist which are the basis for any future)
offset, deduction or counterclaim, dispute or other defense on the part
of such Account Debtor, to the extent of such offset, deduction,
counterclaim, dispute or other defense;
(xi) such Receivable is evidenced by an invoice, lease,
instrument or other documentation in form reasonably acceptable to the
Agents;
(xii) the Receivable is not subject to any enforceable
prohibition (under applicable law, by contract or otherwise) against
its assignment or requiring notice of or consent to any assignment to
the Agents, unless all such required notices have been given, all such
required consents have been received and all other procedures have been
complied with such that such Receivable shall have been duly and
validly assigned to the Administrative Agent, for the benefit of the
Lenders and the Agents;
(xiii) the goods giving rise to such Receivable were not, at
the time of the sale thereof, subject to any Lien, except Permitted
Liens;
(xiv) the applicable Borrower is not in breach in any material
respect of any express or implied representation or warranty with
respect to the goods the sale or lease of which gave rise to such
Receivable nor in breach of any representation or warranty, covenant or
other agreement contained in the Loan Documents with respect to such
Receivable;
(xv) such Receivable does not arise out of any transaction
with (A) any creditor, tenant, lessor or supplier of or to any of the
Borrowers, except to the extent of that portion of the Receivable which
-10-
is in excess of the amounts owed to such creditor, tenant, lessor or
supplier, or (B) any Affiliate of any of the Borrowers;
(xvi) such Account Debtor with respect to such Receivable is
not located in a state or jurisdiction denying creditors access to its
courts in the absence of qualification to transact business in such
state or the filing of a notice of business activities report or other
similar filing, unless the applicable Borrower (A) may qualify as a
foreign corporation authorized to transact business in such state or
jurisdiction and gain access to such courts, without incurring any cost
or penalty viewed by the Agents to be significant in amount, and such
later qualification cures any access to such courts to enforce payment
of such Receivable, or (B) has filed such notice or similar filing with
the applicable state or jurisdiction agency for the then current year;
(xvii) neither such Account Debtor with respect to such
Receivable, nor such Receivable, is determined by the Agents in their
reasonable discretion to be ineligible for any other reason; and
(xviii) such other characteristics as the Agents may require
from time to time, in their reasonable discretion, including, without
limitation, the establishment of any reserves to reflect any events,
contingencies, conditions, or risks which do or may adversely affect
any Receivable, the Administrative Agent's rights therein or the value
of a Receivable; PROVIDED that the Agents shall not exercise their
rights under this clause (xviii) unless in the reasonable discretion of
the Required Lenders a material adverse event or condition is newly
discovered, or there has been or is likely to occur a material and
adverse change, in the value or quality of the Eligible Receivables or
a newly discovered event or condition exists or a change occurs that
causes or is likely to cause an impairment in any respect of the
perfection or priority of Administrative Agent's Lien thereon or the
ability of the Administrative Agent to enforce the Lien, by collection
or otherwise.
ELIGIBLE RENTAL EQUIPMENT. With respect to the Borrowers, Inventory
owned by the Borrowers for the purpose of leasing the Inventory to customers in
the ordinary course of the Borrowers' businesses consistent with past practices.
No Inventory shall be Eligible Rental Equipment unless it meets all of the
following requirements:
(i) the Inventory is owned by the Borrowers free and clear of
all Liens and rights of any other Person, other than the Permitted
Liens specified in ss.11.2(b) or (e), the Lien in favor of the
Administrative Agent and the Lien in favor of the Prepetition
Administrative Agent, and the Administrative Agent's Lien therein is a
first priority perfected Lien entitled to priority under applicable
law;
-11-
(ii) the Inventory is located on premises in the United States
of America and the Inventory is not on consignment;
(iii) the Inventory is not covered by a negotiable document of
title, unless the document has been delivered to the Administrative
Agent or its nominee with all necessary endorsements and endorsed in
blank to the Administrative Agent, free and clear of all Liens, other
than Liens in favor of the Prepetition Administrative Agent;
(iv) the Inventory is not obsolete or otherwise materially
unfit, incapable of being leased or has been lost or stolen;
(v) the Inventory does not consist of display items, packing
or shipping materials, manufacturing supplies, work-in-process
Inventory or replacement parts;
(vi) the Inventory is of a type rented or leased by or held
for rent or lease by the Borrowers to customers in the ordinary course
of the Borrowers' businesses;
(vii) the Inventory complies with the representations or
warranties pertaining to Inventory set forth in the Loan Documents;
(viii) the Inventory does not comprise any costs associated
with "freight-in" charges;
(ix) the Inventory does not consist of Hazardous Substances
(other than gas, oil and lubricants used in the ordinary course of
operating and maintaining such Inventory), the Inventory does not fails
to comply with requirements of applicable law and the Inventory can be
transported, sold or leased in compliance with applicable law without
licenses other than licenses that are readily available;
(x) the Inventory is covered by casualty insurance reasonably
acceptable to the Agents and for which the Administrative Agent has
been named loss payee; and
(xi) the Inventory has such other characteristics as the
Agents may require from time to time, in their reasonable discretion,
including, without limitation, the establishment of any reserves to
reflect any events, contingencies, conditions, or risks which do or may
adversely affect the Inventory, the Administrative Agent's rights
therein or the value of the Inventory; PROVIDED that the Agents shall
not exercise their rights under this clause (xi) unless in the
reasonable discretion of the Required Lenders a material adverse event
or condition is newly discovered, or there has been or is likely to
occur a material and adverse change, in the value or quality of the
Inventory or a newly discovered event or condition exists or a change
-12-
occurs that causes or is likely to cause an impairment in any respect
of the perfection or priority of Administrative Agent's Lien thereon or
the ability of the Administrative Agent to enforce the Lien, by
disposition or otherwise.
EMPLOYEE BENEFIT PLAN. Any employee benefit plan within the meaning of
ss.3(3) of ERISA maintained or contributed to by any of the Borrowers or any
ERISA Affiliate, other than a Guaranteed Pension Plan or a Multiemployer Plan.
ENVIRONMENTAL LAWS. See ss.9.17.
ERISA. The Employee Retirement Income Security Act of 1974.
ERISA AFFILIATE. Any Person which is treated as a single employer with
any of the Borrowers under ss.414 of the Code.
ERISA REPORTABLE EVENT. A reportable event with respect to a Guaranteed
Pension Plan within the meaning of ss.4043 of ERISA and the regulations
promulgated thereunder.
EVENT OF DEFAULT. See ss.15.1.
EXCHANGE AGENT AGREEMENT. The Exchange Agent Agreement, dated as of
September 6, 2002, between Xxxxxxx Bros. Auctioneers (America) Inc. and the
Parent.
EXISTING LETTERS OF CREDIT. The letters of credit issued pursuant to
the Original DIP Credit Agreement listed on SCHEDULE 1.3 hereto.
FEDERAL FUNDS RATE. For any day, a floating rate equal to the weighted
average of the rates on overnight Federal funds transactions among members of
the Federal Reserve System, as determined by the Administrative Agent in its
sole and reasonable discretion, which determination shall be final, binding and
conclusive (absent manifest error).
FILING DATE. As defined in the recitals hereto.
FINAL ORDER. The Original Final Order, as amended by the Final Order
Amendment.
FINAL ORDER AMENDMENT. An order of the Bankruptcy Court in the Cases
entered at or after a final hearing and providing that the terms and conditions
of the Original Final Order with respect to the Original DIP Credit Agreement
apply to this Credit Agreement and the other Loan Documents, with the amounts of
the Loans and other extensions of credit and other terms provided herein,
together with the Collateral and Superpriority Claims contemplated by Article 8,
being authorized and approved under Sections 364(c) and 364(d) of the Bankruptcy
Code, all in form and substance satisfactory to the Agents and the Agents'
Special Counsel and the Borrowers and their counsel.
FLEET. Fleet National Bank.
-13-
FORM MASTER FINANCING AGREEMENT. That certain form of Master Inventory
Financing, Security and Settlement Agreement, which is attached as EXHIBIT F
hereto.
GECC. General Electric Capital Corporation, in its individual capacity.
GENERALLY ACCEPTED ACCOUNTING PRINCIPLES. (i) When used in ss.12,
whether directly or indirectly through reference to a capitalized term used
therein, means (A) principles that are consistent with the principles
promulgated or adopted by the Financial Accounting Standards Board and its
predecessors, in effect for the fiscal year ended December 31, 2001, and (B) to
the extent consistent with such principles, the accounting practice of each of
the Borrowers reflected in its financial statements for the year ended on the
December 31, 2001, and (ii) when used in general, other than as provided above,
means principles that are (A) consistent with the principles promulgated or
adopted by the Financial Accounting Standards Board and its predecessors, as in
effect from time to time, and (B) consistently applied with past financial
statements of the Borrowers adopting the same principles, PROVIDED that in each
case referred to in this definition of "generally accepted accounting
principles" a certified public accountant would, insofar as the use of such
accounting principles is pertinent, be in a position to deliver an unqualified
opinion (other than a qualification regarding changes in generally accepted
accounting principles and going-concern) as to financial statements in which
such principles have been properly applied.
GOVERNMENTAL AUTHORITY. Any foreign, federal, state, regional, local,
municipal or other government, or any department, commission, board, bureau,
agency, public authority or instrumentality thereof, or any court or arbitrator.
GUARANTEED PENSION PLAN. Any employee pension benefit plan within the
meaning of ss.3(2) of ERISA maintained or contributed to by any of the Borrowers
or any ERISA Affiliate the benefits of which are guaranteed on termination in
full or in part by the PBGC pursuant to Title IV of ERISA, other than a
Multiemployer Plan.
HAZARDOUS SUBSTANCES. See ss.9.17.
INDEBTEDNESS. As to any Person and whether recourse is secured by or is
otherwise available against all or only a portion of the assets of such Person
and whether or not contingent, but without duplication:
(i) every obligation of such Person for money borrowed,
(ii) every obligation of such Person evidenced by bonds,
debentures, notes or other similar instruments, including obligations
incurred in connection with the acquisition of property, assets or
businesses,
(iii) every reimbursement obligation of such Person with
respect to letters of credit, bankers' acceptances or similar
facilities issued for the account of such Person,
-14-
(iv) every obligation of such Person issued or assumed as the
deferred purchase price of property or services (including securities
repurchase agreements but excluding trade accounts payable or accrued
liabilities arising in the ordinary course of business which are not
overdue or which are being contested in good faith),
(v) every obligation of such Person under any Capitalized
Lease,
(vi) every obligation of such Person under any lease (a
"synthetic lease") treated as an operating lease under generally
accepted accounting principles and as a loan or financing for U.S.
income tax purposes,
(vii) all sales by such Person of (A) accounts or general
intangibles for money due or to become due, (B) chattel paper,
instruments or documents creating or evidencing a right to payment of
money or (C) other receivables (collectively "receivables"), whether
pursuant to a purchase facility or otherwise, other than in connection
with the disposition of the business operations of such Person relating
thereto or a disposition of defaulted receivables for collection and
not as a financing arrangement, and together with any obligation of
such Person to pay any discount, interest, fees, indemnities,
penalties, recourse, expenses or other amounts in connection therewith,
(viii) every obligation of such Person (an "equity related
purchase obligation") to purchase, redeem, retire or otherwise acquire
for value any shares of Capital Stock of any class issued by such
Person, any warrants, options or other rights to acquire any such
shares, or any rights measured by the value of such shares, warrants,
options or other rights,
(ix) every obligation of such Person under or in respect of a
Derivative Transaction,
(x) every obligation in respect of Indebtedness of any other
entity (including any partnership in which such Person is a general
partner) to the extent that such Person is liable therefor as a result
of such Person's ownership interest in or other relationship with such
entity, except to the extent that the terms of such Indebtedness
provide that such Person is not liable therefor and such terms are
enforceable under applicable law,
(xi) every obligation, contingent or otherwise, of such Person
guaranteeing, or having the economic effect of guarantying or otherwise
acting as surety for, any obligation of a type described in any of
clauses (i) through (x) (the "primary obligation") of another Person
(the "primary obligor"), in any manner, whether directly or indirectly,
and including, without limitation, any obligation of such Person (A) to
purchase or pay (or advance or supply funds for the purchase of) any
security for the payment of such primary obligation, (B) to purchase
-15-
property, securities or services for the purpose of assuring the
payment of such primary obligation, or (C) to maintain working capital,
equity capital or other financial statement condition or liquidity of
the primary obligor so as to enable the primary obligor to pay such
primary obligation.
The "amount" or "principal amount" of any Indebtedness at any time of
determination represented by (u) any Indebtedness, issued at a price that is
less than the principal amount at maturity thereof, shall be the amount of the
liability in respect thereof determined in accordance with generally accepted
accounting principles, (v) any Capitalized Lease shall be the principal
component of the aggregate of the rentals obligation under such Capitalized
Lease payable over the term thereof that is not subject to termination by the
lessee, (w) any sale of receivables shall be the amount of unrecovered capital
or principal investment of the purchaser thereof, excluding amounts
representative of yield or interest earned on such investment, (x) any synthetic
lease shall be the stipulated loss value, termination value or other equivalent
amount, (y) any Derivative Transaction shall be the maximum amount of any
termination or loss payment required to be paid by such Person if such
derivative contract were, at the time of determination, to be terminated by
reason of any event of default or early termination event thereunder, whether or
not such event of default or early termination event has in fact occurred and
(z) any equity related purchase obligation shall be the maximum fixed redemption
or purchase price thereof inclusive of any accrued and unpaid dividends to be
comprised in such redemption or purchase price.
INDEX RATE. For any day, a floating rate equal to the higher of (i) the
rate publicly quoted from time to time by THE WALL STREET JOURNAL as the "base
rate on corporate loans posted by at least 75% of the nation's 30 largest banks"
(or, if THE WALL STREET JOURNAL ceases quoting a base rate of the type
described, the highest per annum rate of interest published by the Federal
Reserve Board in Federal Reserve statistical release H.15 (519) entitled
"Selected Interest Rates" as the Bank prime loan rate or its equivalent), and
(ii) the Federal Funds Rate plus 50 basis points per annum. Each change in any
interest rate provided for in this Credit Agreement based upon the Index Rate
shall take effect at the time of such change in the Index Rate.
INELIGIBLE PROFESSIONAL EXPENSES. Fees or expenses incurred by any
Person, including the Creditors' Committee, in (i) preventing, hindering or
delaying the Lenders' or the Agents' enforcement or realization upon any of the
Collateral once the Termination Declaration Date has occurred, (ii) using cash
collateral or selling any other Collateral without the consent of the Lenders
(except to the extent permitted by this Credit Agreement), (iii) incurring
Indebtedness without the consent of the Lenders (except to the extent permitted
by this Credit Agreement) and (iv) objecting to or contesting in any manner, or
in raising any defenses to, the validity, extent, perfection, priority or
enforceability of the Obligations or any Liens with respect thereto or any other
rights or interests of the Agents and the Lenders, or in asserting any claims or
causes of action, including, without limitation, Avoidance Actions or equitable
subordination claims against the Agents or the Lenders. The term does not
include fees or expenses incurred to investigate such matters or litigation
respecting whether an Event of Default has occurred.
-16-
INTEREST PAYMENT DATE. The first Business Day of each calendar month
following the Drawdown Date of such Loan.
INVENTORY. All "inventory," as such term is defined in Section 9-102(a)
of the UCC, leased by any Borrower or held by any Borrower for sale or lease.
The term includes used goods as well as new goods.
INVENTORY DECLINE REPAYMENT. See ss.3.2(b).
INVESTMENTS. All expenditures made and all liabilities incurred
(contingently or otherwise) for the acquisition of stock or Indebtedness of, or
for loans, advances, capital contributions or transfers of property to, or in
respect of any guaranties (or other commitments as described under
Indebtedness), or obligations of, any Person. In determining the aggregate
amount of Investments outstanding at any particular time: (i) the amount of any
Investment represented by a guaranty shall be taken at not less than the
principal amount of the obligations guaranteed and still outstanding; (ii) there
shall be deducted in respect of each such Investment any amount received as a
return of capital (but only by repurchase, redemption, retirement, repayment,
liquidating dividend or liquidating distribution); (iii) there shall not be
deducted in respect of any Investment any amounts received as earnings on such
Investment, whether as dividends, interest or otherwise; and (iv) there shall
not be deducted from the aggregate amount of Investments any decrease in the
value thereof.
L/C ISSUER. See ss.4.1.1.
LENDERS. The lenders listed on SCHEDULE 1.1 hereto and any other Person
who becomes an assignee of any rights and obligations of a Lender pursuant
to ss.20.
LETTER(S) OF CREDIT. Collectively, the Existing Letters of Credit and
the letters of credit issued pursuant to ss.4
LETTER OF CREDIT OBLIGATIONS. All outstanding reimbursement and other
obligations incurred by the Co-Agent and the Lenders at the request of the
Borrowers, whether direct or indirect, contingent or otherwise, due or not due,
in connection with the issuance, extension or renewal of Letters of Credit by
the Co-Agent or another L/C Issuer or the purchase of a participation as set
forth in Article 4 with respect to any Letter of Credit. The amount of Letter of
Credit Obligations at any time relating to any Letter of Credit shall equal the
maximum amount that may be payable at such time or at any time thereafter by the
Co-Agent or the Lenders in respect of the Letter of Credit.
LIENS. Any lien, encumbrance, mortgage, pledge, hypothecation, charge,
restriction or other security interest of any kind securing any obligation of
any Person.
LOAN DOCUMENTS. This Credit Agreement, the Notes and the Security
Documents.
-17-
LOAN REQUEST. See ss.2.6.
LOANS. The Loans made or to be made by the Lenders to the Borrowers
pursuant to ss.2 and, with respect to Letter of Credit Obligations, automatic
Loans made to the Borrowers as provided in ss.4.1.2.
XXXXX'X. Xxxxx'x Investor Service, Inc.
MORTGAGES. The Amended and Restated Mortgage, Assignment of Leases and
Security Agreement dated on or about the Closing Date made by NationsRent of
Indiana, L.P. in favor of the Administrative Agent and the Amended and Restated
Open-End Mortgage, Security Agreement and Assignment of Rents dated on or about
the Closing Date made by NationsRent USA, Inc. in favor of the Administrative
Agent. Each such mortgage shall be in form and substance reasonably satisfactory
to the Administrative Agent.
MULTIEMPLOYER PLAN. Any multiemployer plan within the meaning
of ss.3(37) of ERISA maintained or contributed to by any of the Borrowers or any
ERISA Affiliate.
NET CASH PROCEEDS. (a) With respect to any sale or other disposition of
assets of any of the Borrowers (including, without limitation, the sale of
Capital Stock of any of the Borrowers), the cash proceeds received by such
Borrower from such sale or other disposition, (i) net of all reasonable costs of
sale or other disposition and property transfer or sales taxes paid or payable
as a result thereof by such Borrower and (ii) net after application of the gross
cash proceeds of the disposition to Indebtedness secured by any Liens on such
assets in favor of Persons, other than the Administrative Agent and the
Prepetition Administrative Agent, but only to the extent that such other Liens
constitute Permitted Prior Liens, and (b) with respect to the incurrence of any
Indebtedness, the cash proceeds received from such incurrence, net of all
reasonable costs thereof and reasonable fees and all expenses payable in
connection therewith by the Borrowers. The term does not include rental payments
received by a Borrower on Inventory leased by a Borrower in the ordinary course
of its business consistent with past practices.
NOTE RECORD. A Record with respect to a Note.
NOTES. See ss.2.4.
OBLIGATIONS. All indebtedness, obligations and liabilities of any of
the Borrowers to any of the Lenders and the Agents, individually or
collectively, existing on the date of this Credit Agreement or arising
thereafter, direct or indirect, joint or several, absolute or contingent,
matured or unmatured, liquidated or unliquidated, secured or unsecured, arising
by contract, operation of law or otherwise, in each case to the extent arising
or incurred under or in respect of this Credit Agreement or any of the other
Loan Documents or in respect of any of the Loans made or Letter of Credit
Obligations incurred or any of the Notes or other instruments at any time
evidencing any thereof or the Final Order.
-18-
ORDERLY LIQUIDATION VALUE. At the relevant time of reference thereto
with respect to any Eligible Rental Equipment, the amount which is the appraised
value of the Eligible Rental Equipment on an orderly liquidation basis
determined by the most recent appraisal thereof conducted pursuant to
ss.10.14(b) or ss.13.15, as the case may be.
ORIGINAL DIP ADMINISTRATIVE AGENT. As defined in the recitals.
ORIGINAL DIP CREDIT AGREEMENT. As defined in the recitals.
ORIGINAL DIP LENDERS. As defined in the recitals.
ORIGINAL DIP SYNDICATION AGENT. As defined in the recitals.
ORIGINAL FINAL ORDER. As defined in the recitals.
OUTSTANDING. With respect to the Loans, the aggregate unpaid principal
thereof as of any date of determination.
PARENT. As defined in the preamble hereto.
PARTNERSHIP ASSIGNMENTS. The Amended and Restated Collateral
Assignments of Partnership Interests, dated as of or about the Closing Date,
made by each of NationsRent USA, Inc., NR Delaware, Inc., and NRGP, Inc. in
favor of the Administrative Agent and the Amended and Restated Acknowledgements
and Consents, dated as of or about the Closing Date, executed by each of
NationsRent of Texas, L.P. and NationsRent of Indiana, L.P. Each such Amended
and Restated Collateral Assignment of Partnership Interests and Amended and
Restated Acknowledgement and Consents shall be in form and substance reasonably
satisfactory to the Administrative Agent.
PBGC. The Pension Benefit Guaranty Corporation created byss.4002 of
ERISA and any successor entity or entities having similar responsibilities.
PERMITTED 506(C) CHARGES. A charge under Section 506(c) of the
Bankruptcy Code against the collateral securing the Prepetition Lender Debt
under the Prepetition Credit Agreement or any of the other Loan Documents (as
defined therein) in the event that any interest paid on the Prepetition Lender
Debt after the commencement of the Cases is later reallocated to principal of
the Prepetition Lender Debt. Permitted 506(c) Charges shall be limited to an
amount equal to, for each day during which any principal of the Loans was
outstanding, the amount of interest paid or accrued on the principal of the
Loans. However, if on that day the principal of the Loans exceeded the sum of
any payments of interest on the Prepetition Lender Debt made after the
commencement of the Cases and before that day and so later reallocated, any
interest on the excess for that day shall be excluded from the computation of
Permitted 506(c) Charges.
PERMITTED LIENS. Liens and other encumbrances permitted byss.11.2.
-19-
PERMITTED PRIOR LIENS. Valid, perfected and otherwise unavoidable Liens
existing as of the Filing Date, senior to the prepetition Liens in respect of
the Prepetition Credit Agreement, and Liens otherwise approved in writing by the
Administrative Agent as Permitted Prior Liens. The term includes a Lien on
proceeds or products of, or accessions to, assets subject to a Permitted Prior
Lien and arising or created after the Filing Date to the extent that (a) such
Lien in the proceeds, products or accessions would have been valid, perfected
and not subject to avoidance if the proceeds, products or accessions had arisen
or been created immediately prior to the commencement of the Cases and (b) such
Lien in the proceeds, products or accessions would be entitled, under applicable
non-bankruptcy law, to priority over any Lien in the proceeds, products or
accessions securing the Prepetition Lender Debt.
PERSON. Any individual, corporation, partnership, trust, unincorporated
association, business, or other legal entity, and any government or any
governmental agency or political subdivision thereof.
PLEDGE AGREEMENT. The Amended and Restated Pledge Agreement entered or
to be entered into by each of the Borrowers in favor of the Administrative Agent
with respect to the Capital Stock of the Borrowers. The Amended and Restated
Pledge Agreement shall be in form and substance reasonably satisfactory to the
Administrative Agent.
PREPETITION ADMINISTRATIVE AGENT. As defined in the recitals hereto.
PREPETITION AGENTS. As defined in the recitals hereto.
PREPETITION BORROWERS. As defined in the recitals hereto.
PREPETITION CREDIT AGREEMENT. As defined in the recitals hereto.
PREPETITION LENDER DEBT. All of the "Obligations" under and as defined
in the Prepetition Credit Agreement.
PREPETITION LENDERS. As defined in the recitals hereto.
PREPETITION REVOLVER. As defined in the recitals hereto.
PRIORITY PROFESSIONAL EXPENSES. At the time of reference thereto,
allowed and unpaid fees, costs and reasonable expenses of professionals retained
in the Cases pursuant to Sections 327 and 1103 of the Bankruptcy Code consisting
of attorneys, accountants, financial advisors, and consultants retained by the
Borrowers or the Creditors' Committee; PROVIDED, HOWEVER, that the amount of
Priority Professional Expenses shall not exceed the applicable Professional
Expense Cap as in effect at the time of reference thereto. The term does not
include any Ineligible Professional Expenses or the expenses of any
professionals engaged by individual members of the Creditors' Committee.
-20-
PROFESSIONAL EXPENSE CAP. If, at the time of reference thereto, the
Termination Declaration Date has not occurred, there is no Professional Expense
Cap. If, at the time of reference thereto, the Termination Declaration Date has
occurred, the Professional Expense Cap is the aggregate sum of $3,500,000,
whether the fees and expenses are allowed and unpaid at the time of the
Termination Declaration Date or are incurred before or after the Termination
Declaration Date. The term includes any holdbacks required by the Bankruptcy
Court. All payments of Priority Professional Expenses made on and after the
Termination Declaration Date shall reduce the Professional Expense Cap dollar
for dollar.
REAL ESTATE. All real property at any time owned or leased (as lessee
or sublessee) by any of the Borrowers.
RECEIVABLES. With respect to any Person, all of the "accounts,"
"chattel paper" and "instruments" of such Person (as such terms are defined in
Section 9-102(a) of the UCC) whether or not such Receivable has been earned by
performance, whether now existing or hereafter arising. The term includes all
(a) rights to payment created by or arising from such Person's sale or lease of
goods or rendition of services; (b) unpaid seller's or lessor's rights
(including rescission, replevin, reclamation, stoppage in transit or other
analogous rights under applicable law) relating to the foregoing or arising
therefrom; (c) rights to any goods represented by any of the foregoing,
including returned or repossessed goods; (d) reserves and credit balances held
by such Person with respect to any such Receivables or any Account Debtor; (e)
supporting obligations or collateral for any of the foregoing; and (f) insurance
policies or rights relating to any of the foregoing.
RECORD. The grid attached to a Note, or the continuation of such grid,
or any other similar record, including computer records, maintained by any
Lender with respect to any Loan referred to in such Note.
REGISTER. See ss.20.3.
REORGANIZATION PLAN. A plan or plans of reorganization in the Cases.
REQUIRED LENDERS. As of any date, (a) if there is only one (1) Lender,
then one (1) Lender, (b) if there are only two (2) Lenders, then both Lenders
and (c) if there are more than two (2) Lenders, then the Lenders whose Credit
Exposure constitutes at least fifty one percent (51%) of the aggregate Credit
Exposure of all the Lenders.
SECURITY AGREEMENT. The Amended and Restated Security Agreement, dated
on or about the Closing Date, entered or to be entered into among the
Administrative Agent and the Borrowers. The Security Agreement shall be in form
and substance reasonably satisfactory to the Administrative Agent.
SECURITY DOCUMENTS. Collectively, the Security Agreement, the Agency
Account Agreements, the Mortgages, the Trademark Assignment, the Pledge
Agreement, and the Partnership Assignments.
-21-
SENIOR EXECUTIVE OFFICER. The chief financial officer, other senior
executive officer, treasurer or vice president of the Parent.
SETTLEMENT. The making or receiving of payments, in immediately
available funds, by the Lenders, to the extent necessary to cause each Lender's
actual share of the outstanding amount of Loans (after giving effect to any Loan
Request) to be equal to such Lender's Commitment Percentage of the outstanding
amount of such Loans (after giving effect to any Loan Request), in any case
where, prior to such event or action, the actual share is not so equal.
SETTLEMENT AMOUNT. See ss.2.9.1.
SETTLEMENT DATE. (a) The Drawdown Date relating to any Loan Request,
(b) at the option of the Co-Agent, Monday of each week, or if a Monday is not a
Business Day, the Business Day immediately following such Monday, or (c) at the
option of the Co-Agent, any other Business Day following at least two Business
Day's prior notice to the Lenders.
SETTLING LENDER. See ss.2.9.1.
S&P. Standard and Poor's Rating Group.
SPECIFIED RESALE INVENTORY. Inventory held by a Borrower for resale in
the ordinary course of such Borrower's business consistent with past practices.
SUBORDINATED DEBT. Unsecured Indebtedness of the Parent or a Subsidiary
of the Parent that is expressly subordinated and made junior to the payment and
performance in full of the Obligations or the Prepetition Lender Debt.
SUBSIDIARY. Any corporation, association, trust, or other business
entity of which the designated parent shall at any time own directly or
indirectly through a Subsidiary or Subsidiaries at least a majority (by number
of votes) of the outstanding Voting Stock.
SUPERPRIORITY CLAIM. A claim against a Borrower or its estate in its
Case which is an administrative expense claim having priority over (i) any and
all allowed administrative expenses and (ii) unsecured claims now existing or
hereafter arising, including, without limitation, administrative expenses of the
kind specified in Section 503(b), 506(c) or 507(b) of the Bankruptcy Code.
SWING LINE LOANS. Loans made pursuant to ss.2.6.2.
SYNDICATION AGENT. As defined in the preamble hereto.
TERM LOAN. As defined in the recitals hereto.
TERMINATION DATE. The earliest to occur of (i) June 30, 2003, (ii) the
effective date of a Reorganization Plan that has been confirmed by an order of
the Bankruptcy Court and (iii) the date on which the Borrowers sell all or
-22-
substantially all of their assets or the date on which all or substantially all
of the Capital Stock of the Parent or the Subsidiaries of the Parent is sold.
TERMINATION DECLARATION DATE. The earliest to occur of (i) the date on
which the Administrative Agent declares all Obligations to be due and payable on
account of an Event of Default, (ii) the date on which the Administrative Agent
declares a termination of the Commitments on account of an Event of Default, and
(iii) the Termination Date.
TOTAL COMMITMENT. An aggregate outstanding amount not to exceed the sum
of $75,000,000 as such amount may be reduced from time to time pursuant to the
provisions of this Credit Agreement. If the Commitments are terminated pursuant
to the provisions of this Credit Agreement, the Total Commitment shall be zero.
TRADEMARK ASSIGNMENT. The Amended and Restated Trademark Collateral
Security and Pledge Agreement, dated on or about the Closing Date, entered or to
be entered into by NationsRent West, Inc. in favor of the Administrative Agent.
Such Trademark Assignment shall be in form and substance reasonably satisfactory
to the Administrative Agent.
VOTING STOCK. Capital Stock of any class or classes (however
designated), the holders of which are at the time entitled, as such holders, to
vote for the election of a majority of the directors (or persons performing
similar functions) of the corporation, association, trust or other business
entity involved, whether or not the right so to vote exists by reason of the
happening of a contingency.
WACHOVIA. Wachovia Bank, National Association.
1.2. RULES OF INTERPRETATION.
(a) A reference to any document or agreement shall include
such document or agreement as amended, restated, modified or
supplemented from time to time in accordance with its terms and the
terms of this Credit Agreement.
(b) The singular includes the plural and the plural includes
the singular.
(c) A reference to any law includes any amendment or
modification to such law.
(d) A reference to any Person includes its permitted
successors and permitted assigns.
(e) Accounting terms not otherwise defined herein have the
meanings assigned to them by generally accepted accounting principles
applied on a consistent basis by the accounting entity to which they
refer.
-23-
(f) The words "include", "includes" and "including" are not
limiting.
(g) All terms not specifically defined herein or by generally
accepted accounting principles, which terms are defined in the Uniform
Commercial Code as in effect in the State of New York, have the
meanings assigned to them therein, with the term "instrument" being
that defined under Article 9 of the Uniform Commercial Code.
(h) Reference to a particular "ss." refers to that section of
this Credit Agreement unless otherwise indicated.
(i) The words "herein", "hereof", "hereunder" and words of
like import shall refer to this Credit Agreement as a whole and not to
any particular section or subdivision of this Credit Agreement.
(j) Unless otherwise expressly indicated, in the computation
of periods of time from a specified date to a later specified date, the
word "from" means "from and including," the words "to" and "until" each
mean "to but excluding," and the word "through" means "to and
including."
(k) This Credit Agreement and the other Loan Documents may use
several different limitations, tests or measurements to regulate the
same or similar matters. All such limitations, tests and measurements
are, however, cumulative and are to be performed in accordance with the
terms thereof.
(l) This Credit Agreement and the other Loan Documents are the
result of negotiation among, and have been reviewed by counsel to,
among others, the Agents and the Borrowers and are the product of
discussions and negotiations among all parties. Accordingly, this
Credit Agreement and the other Loan Documents are not intended to be
construed against any of the Agents or the Lenders merely on account of
such Agent's or Lender's involvement in the preparation of such
documents.
2. THE REVOLVING CREDIT FACILITY.
2.1. COMMITMENT TO LEND. Subject to the terms and conditions set forth
in this Credit Agreement, each of the Lenders severally agrees to lend to the
Borrowers as joint and several borrowers, and the Borrowers may on a joint and
several basis borrow, repay, and reborrow, from time to time from the Closing
Date up to but not including the Termination Date upon notice by the Borrowers
to the Agents given in accordance with ss.2.6.1, such sums as are requested by
the Borrowers up to a maximum aggregate amount outstanding (after giving effect
to all amounts requested) at any one time equal to such Lender's Commitment
MINUS such Lender's Commitment Percentage of the sum of the Commitment Reserve
and all Letter of Credit Obligations, PROVIDED that the sum of the outstanding
amount of the Loans (after giving effect to all amounts requested) PLUS all
Letter of Credit Obligations shall not at any time exceed the least of (i) the
-24-
Total Commitment in effect at such time MINUS the Commitment Reserve, (ii) the
Borrowing Base and (iii) the amount approved to be borrowed by way of Loans and
Letter of Credit Obligations in the Final Order. The Loans shall be made PRO
RATA in accordance with each Lender's Commitment Percentage. Each request for a
Loan hereunder shall constitute a representation and warranty by each of the
Borrowers that the conditions set forth in ss.13 and ss.14, in the case of the
initial Loans to be made on the Closing Date, and ss.14, in the case of all
other Loans, have been satisfied on the date of such request.
2.2. COMMITMENT FEE. The Borrowers jointly and severally agree to pay
to the Co-Agent for the accounts of the Lenders in accordance with their
respective Commitment Percentages a commitment fee equal to one-half of one
percent (0.50%) per annum on the average daily amount during each calendar month
or portion thereof from the Closing Date to the Termination Date by which the
Total Commitment MINUS the sum of all outstanding Letter of Credit Obligations
exceeds the outstanding amount of Loans during such calendar month. The
commitment fee shall be payable monthly in arrears on the first Business Day of
each calendar month for the immediately preceding calendar month, commencing on
the first such date following the Closing Date, with a final payment on the
Termination Date or any earlier date on which the Commitments shall terminate.
2.3. REDUCTION OF TOTAL COMMITMENT.
(a) OPTIONAL. The Borrowers shall have the right at any time
and from time to time upon two (2) Business Days prior written notice
to the Agents to reduce by $500,000 or an integral multiple thereof, or
terminate entirely, the Total Commitment, whereupon the Commitments of
the Lenders shall be reduced PRO RATA in accordance with their
respective Commitment Percentages of the amount specified in such
notice or, as the case may be, terminated. Promptly after receiving any
notice of the Borrowers delivered pursuant to this ss.2.3, the Co-Agent
will notify the Lenders of the substance thereof.
(b) MANDATORY. The Total Commitment shall be reduced (1)
concurrently with any mandatory prepayment in accordance with ss.3.2,
by the amount of such mandatory prepayment and (2) as provided in
ss.15.4(a)(v). In addition, the Total Commitment shall be reduced from
time to time prior to the Termination Declaration Date as follows:
(i) The Borrowers shall, on or before the end of the
Specified Period referred to below, notify the Agents of the
receipt of any Net Cash Proceeds of Collateral (other than
Specified Resale Inventory) and the amount of any such Net
Cash Proceeds invested by the Borrowers in new Inventory. Such
notification shall contain such details as are reasonably
requested by the Agents and shall be certified by a Senior
Executive Officer of the Parent.
(ii) In the event that such Net Cash Proceeds exceed
-25-
(A) $10,000,000 in the aggregate since the
Closing Date, the Total Commitment shall be
reduced, on the last day of the Specified
Period in which the disposition giving rise
to such Net Cash Proceeds occurred, by the
amount of the excess, MINUS the amount of
any previous reductions in the Total
Commitment made under this clause (A) or
clause (B) below at the end of any earlier
Specified Period; or
(B) $3,000,000 in the aggregate (but not greater
than $10,000,000) since the Closing Date,
the Total Commitment shall be reduced, on
the last day of the Specified Period in
which the disposition giving rise to such
Net Cash Proceeds occurred, by the amount of
the excess MINUS the amount of any previous
reductions in the Total Commitment under
this clause (B) at the end of any earlier
Specified Period; provided, however, if by
the end of the Specified Period in which
such asset disposition occurred, the Net
Cash Proceeds of such disposition have been
invested by the Borrowers in new Inventory,
the Total Commitment shall be reduced only
by the amount, if any, by which the Net Cash
Proceeds of such asset disposition exceed
the amount invested in new Inventory prior
to end of the applicable Specified Period.
(iii) The term "SPECIFIED PERIOD," as used in this
ss.2.3(b), means (A) in the case of a disposition giving rise
to such Net Cash Proceeds occurring on or before the fifteenth
day of a calendar month, the fifteenth day of the next
succeeding calendar month, and (B) in the case of a
disposition giving rise to such Net Cash Proceeds occurring
after the fifteenth day of a calendar month, the last day of
the next succeeding calendar month.
(c) GENERAL. Contemporaneously with any such reduction, the
Commitments of the Lenders shall be reduced PRO RATA in accordance with
their respective Commitment Percentages of the total amount of such
reduction. Upon the effective date of any such reduction or upon the
termination of the Total Commitment, the Borrowers shall pay to the
Co-Agent for the respective accounts of the Lenders, in accordance with
their Commitment Percentages, the full amount of any commitment fee
then accrued on the amount of the reduction or, as the case may be,
termination. No reduction or termination of the Commitments may be
reinstated.
2.4. THE NOTES. The Loans shall be evidenced by separate promissory
notes of the Borrowers in substantially the form of EXHIBIT A hereto (each a
"NOTE"), dated as of the Closing Date (or such other date on which a Lender may
become a party hereto in accordance with ss.20 hereof) and completed with
appropriate insertions. One Note shall be payable to the order of each Lender in
-26-
a principal amount equal to such Lender's Commitment or, if less, the
outstanding amount of all Loans made by such Lender, plus interest accrued
thereon, as set forth below. The Borrowers irrevocably authorize each Lender to
make or cause to be made, at or about the time of the Drawdown Date of any Loan
or at the time of receipt of any payment of principal on such Lender's Note, an
appropriate notation on such Lender's Note Record reflecting the making of such
Loan or (as the case may be) the receipt of such payment. The outstanding amount
of the Loans set forth on such Lender's Note Record shall be PRIMA FACIE
evidence of the principal amount thereof owing and unpaid to such Lender, but
the failure to record, or any error in so recording, any such amount on such
Lender's Note Record shall not limit or otherwise affect the joint and several
obligations of the Borrowers hereunder or under any Note to make payments of
principal of or interest on any Note when due.
2.5. INTEREST ON LOANS. Except as otherwise provided in ss.7.5, each
Loan shall bear interest for the period commencing with the Drawdown Date
thereof and ending on the date that such Loan has been repaid in full at the
rate per annum equal to the Index Rate plus the Applicable Index Margin. The
Borrowers promise to pay interest on each Loan in arrears on each Interest
Payment Date with respect thereto.
2.6. REQUESTS FOR LOANS.
2.6.1. GENERAL. The Borrowers shall give to the Agents written
notice in the form of Exhibit B hereto (or telephonic notice confirmed
in a writing in the form of EXHIBIT B hereto) of each Loan requested
hereunder (a "LOAN REQUEST") not later than 11:00 a.m. (New York City,
New York time) on the proposed Drawdown Date of any Loan (which must be
a Business Day). Each such notice shall be signed by a Senior Executive
Officer of the Parent and shall specify (A) the principal amount of the
Loan requested and (B) the proposed Drawdown Date of such Loan.
Promptly upon receipt of any such notice, the Co-Agent shall notify
each of the Lenders thereof. Each Loan Request shall be irrevocable and
binding on the Borrowers and shall obligate the Borrowers to accept the
Loan requested from the Lenders on the proposed Drawdown Date. Each
Loan Request shall be in a minimum aggregate amount of $500,000 or an
integral multiple thereof.
2.6.2. SWING LINE. Notwithstanding the notice and minimum
amount requirements set forth in ss.2.6.1 but otherwise in accordance
with the terms and conditions of this Credit Agreement, the Co-Agent
may, in its sole discretion and without conferring with the Lenders,
make Loans to the Borrowers (i) by entry of credits to the Borrowers'
operating account with the Concentration Account Bank to cover checks
or other charges which the Borrowers have drawn or made against such
account or (ii) in an amount as otherwise requested by the Borrowers.
The aggregate principal amount of Loans made pursuant to this ss.2.6.2
shall not, at any time, exceed $10,000,000. The Borrowers hereby
request and authorize the Co-Agent to make from time to time such Loans
by means of appropriate entries of such credits sufficient to cover
checks and other charges then presented for payment from the
Concentration Account or as otherwise so requested by the Borrowers.
The Borrowers acknowledge and agree that the making of such Loans
-27-
shall, in each case, be subject in all respects to the provisions of
this Credit Agreement as if they were Loans covered by a Loan Request
including, without limitation, the limitations set forth in ss.2.1 and
the requirements that the applicable provisions of ss.14 be satisfied.
All actions taken by the Co-Agent pursuant to the provisions of this
ss.2.6.2 shall be conclusive and binding on the Borrowers and the
Lenders (absent manifest error). Interest on Loans made pursuant to
this ss.2.6.2 shall, prior to a Settlement, be for the account of the
Co-Agent. Any outstanding Loans made pursuant to this ss.2.6.2 shall
reduce the amount of credit available under this Credit Agreement on a
dollar for dollar basis, so long as such Loan is outstanding.
2.7. FUNDS FOR LOANS.
2.7.1. FUNDING PROCEDURES. Not later than 1:00 p.m. (New York
City, New York time) on the proposed Drawdown Date of any Loans (other
than Swing Line Loans), each of the Lenders will make available to the
Co-Agent, at the Co-Agent's Office, in immediately available funds, the
amount of such Lender's Commitment Percentage of the amount of the
requested Loans. Upon receipt from each Lender of such amount, and upon
receipt of the documents required by ss.ss.13 and 14 and the
satisfaction of the other conditions set forth therein, to the extent
applicable, the Co- Agent will make available to the Borrowers by
credit to the Borrowers' operating account at the Concentration Account
Bank the aggregate amount of such Loans made available to the Co-Agent
by the Lenders. The failure or refusal of any Lender to make available
to the Co-Agent at the aforesaid time and place on any Drawdown Date
the amount of its Commitment Percentage of the requested Loans shall
not relieve any other Lender from its several obligation hereunder to
make available to the Co-Agent the amount of such other Lender's
Commitment Percentage of any requested Loans.
2.7.2. ADVANCES BY CO-AGENT. The Co-Agent may, unless notified
to the contrary by any Lender prior to a Drawdown Date, assume that
such Lender has made available to the Co-Agent on such Drawdown Date
the amount of such Lender's Commitment Percentage of the Loans to be
made on such Drawdown Date, and the Co-Agent may (but it shall not be
required to), in reliance upon such assumption, make available to the
Borrowers a corresponding amount. If any Lender makes available to the
Co-Agent such amount on a date after such Drawdown Date, such Lender
shall pay to the Co-Agent on demand an amount equal to the product of
(i) the average, computed for the period referred to in clause (iii)
below, of the weighted average interest rate paid by the Co-Agent for
federal funds acquired by the Co-Agent during each day included in such
period, TIMES (ii) the amount of such Lender's Commitment Percentage of
such Loans, TIMES (iii) a fraction, the numerator of which is the
number of days that elapse from and including such Drawdown Date to the
date on which the amount of such Lender's Commitment Percentage of such
Loans shall become immediately available to the Co-Agent, and the
denominator of which is 360. A statement of the Co-Agent submitted to
-28-
such Lender with respect to any amounts owing under this paragraph
shall be PRIMA FACIE evidence of the amount due and owing to the
Co-Agent by such Lender. If the amount of such Lender's Commitment
Percentage of such Loans is not made available to the Co-Agent by such
Lender within three (3) Business Days following such Drawdown Date, the
Co-Agent shall be entitled to recover such amount from the Borrowers on
demand, with interest thereon at the rate per annum applicable to the
Loans made on such Drawdown Date.
2.8. CHANGE IN BORROWING BASE. The Borrowing Base shall be determined
the first Business Day of every other calendar week (or at such other interval
as may be specified pursuant to ss.10.4(h)) by the Agents by reference to the
Borrowing Base Certificate and the appraisals of the Eligible Rental Equipment
delivered to the Lenders and the Agents pursuant to ss.10.4(h) and other
information obtained by or provided to the Agents. The Agents reserve the right,
upon written notice to the Borrowers and subject to any consent required by
ss.28, at any time and from time to time to modify advance rates in the
Borrowing Base, to modify standards and other criteria for Receivables to be
Eligible Receivables or for Inventory to be Eligible Rental Equipment, or to
impose or establish further reserves in the Borrowing Base, including, without
limitation, reserves with respect to landlords', warehousemen, materialmen,
bailee and mortgagee Liens and claims; PROVIDED that the Agents shall not
exercise such rights under this ss.2.8 unless, in the reasonable discretion of
the Agents, (a) a material adverse event or condition is newly discovered, or
there has been or is likely to occur a material and adverse change, in the value
or quality of the Eligible Receivables or Eligible Rental Equipment, (b) a newly
discovered event or condition exists or a change occurs that causes or is likely
to cause an impairment in any respect of the perfection or priority of
Administrative Agent's Lien on any material portion of the Eligible Receivables
or Eligible Rental Equipment or the ability of the Administrative Agent to
enforce the Administrative Agent's Lien, by collection. disposition or
otherwise, on any material portion of the Eligible Receivables or Eligible
Rental Equipment or (c) a material adverse change has occurred in the assets,
liabilities, financial condition or business prospects of the Borrowers
considered as a whole.
2.9. SETTLEMENTS.
2.9.1. GENERAL. On each Settlement Date, the Co-Agent may, not
later than 12:00 noon (New York City, New York time), give telephonic
or facsimile notice (i) to the Lenders and the Borrowers of the
respective outstanding amount of Loans made by the Co-Agent on behalf
of the Lenders from the immediately preceding Settlement Date through
the close of business on the prior day and (ii) to the Lenders of the
amount (a "SETTLEMENT AMOUNT") that each Lender (a "SETTLING LENDER")
shall pay to effect a Settlement of any Loan. A statement of the
Co-Agent submitted to the Lenders and the Borrowers or to the Lenders
with respect to any amounts owing under this ss.2.9 shall be PRIMA
FACIE evidence of the amount due and owing. Notwithstanding the notice
and minimum amount requirements set forth in ss.2.6, each Settling
-29-
Lender shall, not later than 3:00 p.m. (New York City, New York time)
on such Settlement Date, effect a wire transfer of immediately
available funds to the Co-Agent in the amount of the Settlement Amount
for such Settling Lender. All funds advanced by any Lender as a
Settling Lender pursuant to this ss.2.9 shall for all purposes be
treated as a Loan made by such Settling Lender to the Borrowers and all
funds received by any Lender pursuant to this ss.2.9 shall for all
purposes be treated as repayment of amounts owed with respect to Loans
made by such Lender. In the event that a Settling Lender is prevented
from making any Loan to effect a Settlement as contemplated hereby,
such Settling Lender will make such dispositions and arrangements with
the other Lenders with respect to such Loans, either by way of purchase
of participations, distribution, PRO TANTO assignment of claims,
subrogation or otherwise as shall result in each Lender's share of the
outstanding Loans being equal, as nearly as may be, to such Lender's
Commitment Percentage of the outstanding amount of the Loans.
2.9.2. FAILURE TO MAKE FUNDS AVAILABLE. If any Settling Lender
makes available to the Co-Agent its Settlement Amount on a date after
such Settlement Date, such Settling Lender shall pay to the Co-Agent on
demand an amount equal to the product of (i) the average, computed for
the period referred to in clause (iii) below, of the weighted average
interest rate paid by the Co-Agent for federal funds acquired by the
Co-Agent during each day included in such period, times (ii) the amount
of such Settlement Amount, times (iii) a fraction, the numerator of
which is the number of days that elapse from and including such
Settlement Date to the date on which the amount of such Settlement
Amount shall become immediately available to the Co-Agent, and the
denominator of which is 365. A statement of the Co-Agent submitted to
such Settling Lender with respect to any amounts owing under this
ss.2.9.2 shall be PRIMA FACIE evidence of the amount due and owing to
the Co-Agent by such Settling Lender. If such Settling Lender's
Settlement Amount is not made available to the Co-Agent by such
Settling Lender within three (3) Business Days following such
Settlement Date, the Co-Agent shall be entitled to recover such amount
from the Borrowers on demand, with interest thereon at the rate per
annum applicable to the Loans as of such Settlement Date.
2.9.3. NO EFFECT ON OTHER LENDERS. The failure or refusal of
any Settling Lender to make available to the Co-Agent at the aforesaid
time and place on any Settlement Date the amount of such Settling
Lender's Settlement Amount shall not (i) relieve any other Settling
Lender from its several obligations hereunder to make available to the
Co-Agent the amount of such other Settling Lender's Settlement Amount
or (ii) impose upon any Lender, other than the Settling Lender so
failing or refusing, any liability with respect to such failure or
refusal or otherwise increase the Commitment of such other Lender.
2.10. REPAYMENTS OF LOANS PRIOR TO TERMINATION DECLARATION DATE.
-30-
2.10.1. CREDIT FOR FUNDS RECEIVED IN CONCENTRATION ACCOUNT.
(a) Prior to the Cash Sweep Date and to the occurrence of the
Termination Declaration Date, all funds and cash proceeds received in
the Concentration Account and not required to make mandatory
prepayments pursuant to ss.3.2, may, when immediately available and at
the election of the Borrowers, be credited to the Borrowers' operating
account at the Concentration Account Bank to cover checks and other
charges which the Borrowers have drawn or made against such account.
Any funds and cash proceeds not so credited to the Borrowers' operating
account may, at the election of the Borrowers, or shall, in the case of
mandatory prepayments pursuant to ss.3.2 and otherwise at the request
of the Co-Agent, be applied as contemplated by ss.ss.2.10.1(b) and
2.10.2 as if the Cash Sweep Date had occurred.
(b) On and after the Cash Sweep Date and prior to the
occurrence of the Termination Declaration Date, (i) all funds and cash
proceeds in the form of money, checks and like items received in the
Concentration Account shall be credited, on the first Business Day
following the Business Day on which the Co-Agent determines that
immediately available funds have been received and shall be applied as
contemplated by ss.2.10.2, (ii) all funds and cash proceeds in the form
of a wire transfer received in the Concentration Account shall be
credited on the first Business Day following the Business Day on which
the Concentration Account has been credited with such funds (or up to
such later date as the Co-Agent determines that collected funds have
been received and are immediately available), and shall be applied as
contemplated by ss.2.10.2, and (iii) all funds and cash proceeds in the
form of an automated clearing house transfer received in the
Concentration Account shall be credited, on the next Business Day
following the Business Day that the Concentration Account was credited
with such funds (or up to such later date as the Co-Agent determines
that collected funds have been received and are immediately available),
and shall be applied as contemplated by ss.2.10.2.
(c) For purposes of the foregoing provisions of this
ss.2.10.1, the Concentration Account shall not be deemed to have
received any such funds or cash proceeds on any day unless the
Concentration Account Bank has received such funds for credit to the
Concentration Account before 2:30 p.m. (New York City, New York time)
on such day or before such other time on that day as the Concentration
Account Bank establishes as its "cut off" time for credit on that day.
The Borrowers further acknowledge and agree that any provisional
credits or credits in respect of wire or automatic clearing house funds
transfers that may be granted shall be subject to reversal if final
collection in good funds of the related item is not received by, or
final settlement of the funds transfer is not made in favor of, the
Concentration Account Bank in accordance with the Concentration Account
Bank's customary procedures and practices for collecting provisional
items or receiving settlement of funds transfers.
-31-
2.10.2. APPLICATION OF PAYMENTS PRIOR TO TERMINATION
DECLARATION DATE.
(a) The provisions of this ss.2.10.2(a) apply (x)
prior to the Cash Sweep Date and prior to the occurrence of the
Termination Declaration Date, to funds transferred to the Concentration
Account and for which the Borrowers have received credits, but only to
the extent that the funds have not been credited to the Borrowers'
operating account at the Concentration Account Bank pursuant to
ss.2.10.1(a), and (y) on and after the Cash Sweep Date and prior to the
occurrence of the Termination Declaration Date, to all funds
transferred to the Concentration Account and for which the Borrowers
have received credits. The funds shall be applied to the Obligations as
follows:
(i) first, if on a Settlement Date, to pay interest
then due and payable on, and then principal of, the Swing Line
Loans;
(ii) second, to pay interest on the Loans (other than
the Swing Line Loans) then due and payable and any other
Obligations (other than principal on the Swing Line Loans)
then due and payable;
(iii) third, to reduce the principal of the Loans;
(iv) fourth, if a Default or Event of Default has
occurred and is then continuing, to cash collateralize
outstanding Letters of Credit in an amount equal to 105% of
the Letter of Credit Obligations; and
(v) fifth, to the Borrowers' operating account at the
Concentration Account Bank.
(b) All prepayments of the Loans pursuant to this ss.2.10.2,
other than the prepayment of the Swing Line Loans, shall be allocated
among the Lenders, in proportion, as nearly as practicable, to the
respective unpaid principal amount of Loans outstanding owing to the
Lenders, with adjustments to the extent practicable to equalize any
prior payments or repayments not exactly in proportion. Prior to any
Settlement Date, however, all prepayments of the Loans shall be
applied, in accordance with this ss.2.10.2, first to outstanding Swing
Line Loans advanced by the Co-Agent.
2.11. REPAYMENTS OF LOANS AFTER TERMINATION DECLARATION DATE. Following
the occurrence of the Termination Declaration Date, all funds transferred to the
Concentration Account and for which the Borrowers have received credits, and all
other collections, Inventory Decline Repayments, Asset Disposition Repayments
and Net Cash Proceeds, shall be applied to the Obligations in accordance with
ss.15.4.
3. REPAYMENT OF THE LOANS.
-32-
3.1. MATURITY. The Borrowers jointly and severally promise to pay on
the Termination Date, and there shall become absolutely due and payable on the
Termination Date, all of the Loans outstanding on such date, together with any
and all accrued and unpaid interest thereon.
3.2. MANDATORY REPAYMENTS OF LOANS.
(a) If at any time the sum of the aggregate outstanding amount
of the Loans and the Letter of Credit Obligations exceeds the least of
(i) the Total Commitment in effect at such time MINUS the Commitment
Reserve, (ii) the Borrowing Base or (iii) the amount approved to be
borrowed by way of Loans and Letter of Credit Obligations in the Final
Order, then the Borrowers shall immediately pay the amount of such
excess to the Co-Agent for the respective accounts of the Lenders for
application; FIRST, to pay principal of Loans advanced by the Co-Agent
pursuant to ss.2.6.2; SECOND, to pay the principal of Loans (other than
Loans advanced by the Co-Agent pursuant to ss.2.6.2); and THIRD, to
provide the Co-Agent cash collateral for the Letter of Credit
Obligations as contemplated by ss.4.1.3. Each prepayment of Loans shall
be allocated among the Lenders, in proportion, as nearly as
practicable, to the respective unpaid principal amount of each Lender's
Note, with adjustments to the extent practicable to equalize any prior
payments or repayments not exactly in proportion.
(b) Prior to the Termination Declaration Date, in the event
that any quarterly Consolidated balance sheet of the Borrowers
delivered to the Lenders after the delivery of the Borrowers' audited
Consolidated balance sheet for the year ending December 31, 2002, shows
a decline in the value of their Inventory in excess of 25% from the
value of such Inventory shown on such audited Consolidated balance
sheet of the Borrowers, the Borrowers shall thereupon make a payment
(an "INVENTORY DECLINE REPAYMENT") to the Co-Agent to be applied in
accordance with ss.2.10.2 equal to the greater of (a) the amount of
such excess, MINUS the amount of any earlier Inventory Decline
Repayments, and (b) zero.
(c) In accordance with the terms of, and to the extent
provided for in, ss.ss.2.10.2 and 2.11, the Borrowers shall,
immediately upon the receipt thereof, prepay the outstanding Loans in
an amount equal to the Net Cash Proceeds received from the sale or
other disposition of assets.
3.3. OPTIONAL REPAYMENTS OF LOANS. The Borrowers shall have the right,
at their election, to repay the outstanding amount of the Loans, as a whole or
in part, at any time without penalty or premium. The Borrowers shall give the
Agents no later than 11:00 a.m., New York City, New York time, on the Business
Day prior to any proposed prepayment pursuant to this ss.3.4 of any Loan,
specifying the proposed date of prepayment of Loans and the principal amount to
be prepaid. Each such partial prepayment of the Loans shall be in a minimum
amount of $500,000 or an integral multiple thereof and shall be accompanied by
-33-
the payment of accrued interest on the principal prepaid to the date of
prepayment. Each partial prepayment shall be allocated among the Lenders in
accordance with their respective Commitment Percentages, in proportion, as
nearly as practicable, to the respective unpaid principal amount of each
Lender's Note, with adjustments to the extent practicable to equalize any prior
repayments not exactly in proportion.
4. LETTERS OF CREDIT.
4.1. LETTER OF CREDIT COMMITMENTS.
4.1.1. ISSUANCE. (a) Subject to the terms and conditions of
this Credit Agreement, the Co-Agent and the Lenders agree to incur,
from time to time prior to the Termination Date, upon the request of
the Borrowers and for the Borrowers' joint and several accounts, Letter
of Credit Obligations by causing standby Letters of Credit to be
issued, extended or renewed by GECC, a Subsidiary of GECC, Fleet or
another bank or other legally authorized Person selected by or
acceptable to the Co-Agent in its sole discretion (each, an "L/C
ISSUER") for the Borrowers' joint and several accounts; PROVIDED,
HOWEVER, that, after giving effect to such request, (i) the aggregate
amount of all such Letter of Credit Obligations (including those in
respect of the Existing Letters of Credit) shall not at any time exceed
the lesser of (A) Thirty Million Dollars ($30,000,000) and (B) any
specific amount approved by the Bankruptcy Court solely for Letter of
Credit Obligations in the Final Order and (ii) the sum of the Letter of
Credit Obligations (including those in respect of Existing Letters of
Credit) and the Loans outstanding shall not exceed the least of (A) the
Total Commitment at such time MINUS the Commitment Reserve, (B) the
Borrowing Base and (C) the amount approved to be borrowed by way of
Loans and Letter of Credit Obligations in the Final Order.
(b) In order to effect such undertaking, if the L/C Issuer is
not also a Lender, the Co-Agent may guaranty the Borrowers'
reimbursement and other obligations to the L/C Issuer with respect to
any Letter of Credit. In any event, each Lender shall, subject to the
terms and conditions hereinafter set forth, purchase (or be deemed to
have purchased) risk participations in all such Letters of Credit
issued with the guaranty or the written consent of the Co-Agent, as
more fully described in ss.4.1.2 below.
(c) No Letter of Credit shall have an expiry date that is more
than one year following the date of issuance thereof, unless otherwise
agreed by the Agents, in their sole discretion. The Agents and the
Lenders shall be under no obligation to incur Letter of Credit
Obligations in respect of, or to purchase risk participations in, any
Letter of Credit having an expiry date that is later than the
Termination Date unless the Letter of Credit is an Existing Letter of
Credit or unless otherwise agreed to by the Agents.
4.1.2. LOANS AUTOMATIC; PARTICIPATIONS. In the event that the
Co-Agent or any Lender which is an L/C Issuer shall make any payment on
or pursuant to any Letter of Credit Obligation, such payment shall then
be deemed automatically to constitute a Loan made to the Borrowers
under this Credit Agreement regardless of whether a Default or Event of
-34-
Default has occurred and is continuing and notwithstanding the
Borrowers' failure to satisfy the conditions precedent set forth in
ss.14, and each Lender shall be obligated to pay its Commitment
Percentage thereof. Upon demand by the Co-Agent, each Lender shall make
available to the Co-Agent for the Co-Agent's own account or, as the
case may be, the account of the Lender which is an L/C Issuer, the
Lender's Commitment Percentage of any such Loan. The failure of any
Lender to do so shall not relieve any other Lender of its obligation
hereunder to make available to the Co-Agent its Commitment Percentage
of the Loan, but no Lender shall be responsible for the failure of any
other Lender to make available such other Lender's Commitment
Percentage of the Loan. If any Lender fails to make available to the
Co-Agent for the Co-Agent's own account the Lender's Commitment
Percentage of any such Loan, the provisions of ss.2.7.2 shall apply for
the benefit of the Co-Agent or the Lender which is an L/C Issuer.
4.1.3. TERMS OF LETTERS OF CREDIT.
(a) If the Borrowers are required to provide cash collateral
in accordance with ss.ss.4.13(b) or ss.15.4 or for any Letter of Credit
Obligations pursuant to this Credit Agreement prior to the Termination
Date, the Borrowers will pay to the Co-Agent for the ratable benefit of
itself and the Lenders cash or cash equivalents acceptable to the
Co-Agent ("CASH EQUIVALENTS") in an amount equal to 105% of the Letter
of Credit Obligations. Such funds or Cash Equivalents shall be held by
the Co-Agent in a cash collateral account (the "CASH COLLATERAL
ACCOUNT") maintained at a bank or financial institution acceptable to
the Co-Agent. The Cash Collateral Account shall, if not held in the
name of the Co-Agent, be held in the name of the Borrowers and shall be
pledged to, and subject to the control of, the Co-Agent, for the
benefit of the Co-Agent and Lenders, in a manner satisfactory to the
Co-Agent. The Co-Agent agrees to cause the bank or other financial
institution with which the Cash Collateral Account is maintained to
agree not to exercise any right of recoupment or setoff with respect to
the Cash Collateral Account or to assert any Lien against or in the
Cash Collateral Account on account of any credit or obligation owed to
the bank or other financial institution by any of the Borrowers, except
for customary charges approved by the Agents.
(b) If any Letter of Credit Obligations, whether or not then
due and payable, shall for any reason be outstanding on the Termination
Declaration Date, the Borrowers shall provide cash collateral therefor
in the manner described above. Upon a reduction (but not termination)
of the Total Commitment to an amount less than the Letter of Credit
Obligations, the Borrowers shall provide cash collateral equal to 105%
of the amount of such difference in the manner described above.
(c) From time to time after funds are deposited in the Cash
Collateral Account by the Borrowers the Co-Agent may, except as may be
otherwise provided in ss. 15.4, apply such funds or Cash Equivalents
then held in the Cash Collateral Account to the payment of any amounts,
-35-
and in such order as the Co-Agent may elect, as shall be or shall
become due and payable by the Borrowers to the Co-Agent and the Lenders
with respect to such Letter of Credit Obligations and, upon the
satisfaction in full of all Letter of Credit Obligations, to any other
Obligations of the Borrowers then due and payable.
(d) None of the Borrowers nor any Person claiming on behalf of
or through any of the Borrowers shall have any right to withdraw any of
the funds or Cash Equivalents held in the Cash Collateral Account so
long as any of the Obligations remain outstanding and the Total
Commitment has not been terminated. Except as may be otherwise provided
in ss.15.4, upon the termination or satisfaction in cash of all Letter
of Credit Obligations and the payment of all amounts payable by the
Borrowers to the Agents and the Lenders in respect thereof, any funds
remaining in the Cash Collateral Account shall be applied to other
Obligations then due and owing and upon payment in full of such
Obligations and the termination of the Total Commitment, any remaining
amount shall be paid to the Borrowers or as otherwise required by law.
Interest earned on deposits in the Cash Collateral Account shall be for
the account of the Borrowers.
4.1.4. FEES AND EXPENSES. The Borrowers agree to pay to the
Co-Agent, as compensation for Letter of Credit Obligations, (i) for the
account of the Co-Agent or any Lender, all costs and expenses incurred
by the Co-Agent or such Lender on account of such Letter of Credit
Obligations, and (ii) for the ratable accounts of the Lenders, for each
month during which any Letter of Credit Obligation shall remain
outstanding, a fee (the "LETTER OF CREDIT FEE") in an amount equal to
three and one-quarter percent (3.25%) of the Letter of Credit
Obligations outstanding on the first Business Day of the month, divided
by twelve. The Letter of Credit Fee for each month shall be paid to the
Co-Agent for the benefit of the Lenders in arrears, on the first
Business Day of the month and on the Termination Date. In addition, the
Borrowers shall pay to any L/C Issuer, on demand, such fees (including
all per annum fees), charges and expenses of such L/C Issuer in respect
of the fronting, issuance, negotiation, acceptance, amendment, transfer
and payment of such Letter of Credit or otherwise payable pursuant to
the application and related documentation under which such Letter of
Credit is issued; provided the Co-Agent shall use commercially
reasonably efforts to negotiate for the fronting fee for any Letter of
Credit not to exceed 0.25% of the maximum drawing amount of such Letter
of Credit.
4.1.5. REQUEST FOR INCURRENCE OF LETTER OF CREDIT OBLIGATIONS.
The Borrowers shall give the Co-Agent at least two (2) Business Days'
prior written notice requesting the incurrence of any Letter of Credit
Obligation. The notice shall be accompanied by the form of the Letter
of Credit (which shall be acceptable to the L/C Issuer and the
Co-Agent) and a completed application for the Letter of Credit in a
form satisfactory to the L/C Issuer and the Co-Agent. Letter of Credit
-36-
applications by the Borrowers and approvals by the Co-Agent and the L/C
Issuer may be made and transmitted pursuant to electronic codes and
security measures mutually agreed upon and established by and among the
Borrowers, the Co-Agent and the L/C Issuer.
4.2. OBLIGATION OF THE BORROWERS. The obligation of the Borrowers to
reimburse the Co-Agent and the Lenders for payments made with respect to any
Letter of Credit Obligation shall be joint and several, absolute, unconditional
and irrevocable, without necessity of presentment, demand, protest or other
formalities, and the obligations of each Lender to make payments to the Co-Agent
with respect to Letters of Credit shall be unconditional and irrevocable. Such
obligations of the Borrowers and the Lenders shall be paid strictly in
accordance with the terms hereof under all circumstances notwithstanding the
existence of any of the following:
(a) any lack of validity or enforceability of any Letter of
Credit or this Credit Agreement, any other Loan Documents or any other
agreement;
(b) the existence of any claim, setoff, defense or other right
that any Borrower or any of the Borrowers' respective Affiliates or any
Lender may at any time have against a beneficiary or any transferee of
any Letter of Credit (or any Persons or entities for whom any such
transferee may be acting), any Agent, any Lender, or any other Person,
whether in connection with this Credit Agreement, any other Loan
Document, any Letter of Credit, the transactions contemplated herein or
therein or any unrelated transaction (including any underlying
transaction between any Borrower or any of their respective Affiliates
and the beneficiary for which the Letter of Credit was procured);
(c) any draft, demand, certificate or any other document
presented under any Letter of Credit proving to be forged, fraudulent,
invalid or insufficient in any respect or any statement therein being
untrue or inaccurate in any respect;
(d) payment by the Co-Agent (except as otherwise expressly
provided in ss.4.3(b)(iii) below) or any L/C Issuer under any Letter of
Credit or guaranty thereof against presentation of a demand, draft or
certificate or other document that does not comply with the terms of
such Letter of Credit or such guaranty;
(e) any other circumstance or event whatsoever, that is
similar to any of the foregoing; or
(f) the fact that a Default or an Event of Default has
occurred and is continuing.
4.3. INDEMNIFICATION; NATURE OF LENDERS' DUTIES.
-37-
(a) In addition to amounts payable as elsewhere provided in
this Credit Agreement, the Borrowers hereby agree on a joint and
several basis to pay and to protect, indemnify, and save harmless the
Co-Agent and each Lender from and against any and all claims, demands,
liabilities, damages, losses, costs, charges and expenses (including
reasonable attorneys' fees and allocated costs of internal counsel)
that the Co-Agent or any Lender may incur or be subject to as a
consequence, direct or indirect, of (i) the issuance, extension or
renewal of any Letter of Credit or guaranty thereof, or (ii) the
failure of the Co-Agent or any Lender seeking indemnification or of any
L/C Issuer to honor a demand for payment under any Letter of Credit or
guaranty thereof as a result of any act or omission, whether rightful
or wrongful, of any present or future de jure or de facto government or
Governmental Authority, in each case other than to the extent solely as
a result of the gross negligence or willful misconduct of the Co-Agent
or such Lender (as finally determined by a court of competent
jurisdiction).
(b) As between the Co-Agent and any Lender and the Borrowers,
the Borrowers assume all risks of the acts and omissions of, or misuse
of any Letter of Credit by, beneficiaries of any Letter of Credit. In
furtherance and not in limitation of the foregoing, to the fullest
extent permitted by law, no Agent or Lender shall be responsible for:
(i) the form, validity, sufficiency, accuracy, genuineness or legal
effect of any document issued by any party in connection with the
application for and issuance of any Letter of Credit, even if it should
in fact prove to be in any or all respects invalid, insufficient,
inaccurate, fraudulent or forged; (ii) the validity or sufficiency of
any instrument transferring or assigning or purporting to transfer or
assign any Letter of Credit or the rights or benefits thereunder or
proceeds thereof, in whole or in part, that may prove to be invalid or
ineffective for any reason; (iii) failure of the beneficiary of any
Letter of Credit to comply fully with conditions required in order to
demand payment under such Letter of Credit; PROVIDED, that in the case
of any payment by the Co-Agent under any Letter of Credit or guaranty
thereof, the Co-Agent shall be liable to the extent such payment was
made solely as a result of its gross negligence or willful misconduct
(as finally determined by a court of competent jurisdiction) in
determining that the demand for payment under such Letter of Credit or
guaranty thereof complies on its face with any applicable requirements
for a demand for payment under such Letter of Credit or guaranty
thereof; (iv) errors, omissions, interruptions or delays in
transmission or delivery of any messages, by mail, cable, telegraph,
telex or otherwise, whether or not they may be in cipher; (vi) errors
in interpretation of technical terms; (v) any loss or delay in the
transmission or otherwise of any document required in order to make a
payment under any Letter of Credit or guaranty thereof or of the
proceeds thereof; (vii) the credit of the proceeds of any drawing under
any Letter of Credit or guaranty thereof; and (viii) any consequences
arising from causes beyond the control of the Co-Agent or any Lender.
None of the above shall affect, impair, or prevent the vesting of the
Co-Agent's or any Lender's rights or powers hereunder or under this
Credit Agreement.
-38-
(c) Nothing contained herein shall be deemed to limit or to
expand any waivers, covenants or indemnities made by the Borrowers in
favor of any L/C Issuer in any letter of credit application,
reimbursement agreement or similar document, instrument or agreement
between or among the Borrowers and the L/C Issuer.
5. WAIVER OF SURETYSHIP DEFENSES.
Each of the Borrowers waives promptness, diligence, presentment,
demand, protest, notice of acceptance, notice of any Obligations incurred and
all other notices of any kind, all defenses which may be available by virtue of
any valuation, stay, moratorium law or other similar law now or hereafter in
effect, any right to require the marshalling of assets of any of the other
Borrowers or any other entity or other Person primarily or secondarily liable
with respect to any of the Obligations, and all suretyship defenses generally.
Without limiting the generality of the foregoing, each of the Borrowers agrees
to the provisions of any instrument evidencing, securing or otherwise executed
in connection with any Obligation and agrees that the obligations of such
Borrower hereunder shall not be released or discharged, in whole or in part, or
otherwise affected by (i) the failure of any Agent or any Lender to assert any
claim or demand or to enforce any right or remedy against any of the other
Borrowers or any other Person primarily or secondarily liable with respect to
any of the Obligations; (ii) the addition, substitution or release of any entity
or other Person primarily or secondarily liable for any Obligation; (iii) the
adequacy of any rights which any Agent or any Lender may have against any
collateral security or other means of obtaining repayment of any of the
Obligations; (iv) the impairment of any collateral securing any of the
Obligations, including without limitation the failure to perfect or preserve any
rights which any Agent or any Lender might have in such collateral security or
the substitution, exchange, surrender, release, loss or destruction of any such
collateral security; or (v) any other act or omission which might in any manner
or to any extent vary the risk of such Borrower or otherwise operate as a
release or discharge of such Borrower, all of which may be done without notice
to such Borrower. To the fullest extent permitted by law, each of the Borrowers
hereby expressly waives any and all rights or defenses arising by reason of (A)
any "one action" or "anti-deficiency" law which would otherwise prevent any
Agent or any Lender from bringing any action, including any claim for a
deficiency, or exercising any other right or remedy (including any right of
set-off), against such Borrower before or after such Agent's or such Lender's
commencement or completion of any foreclosure action, whether judicially, by
exercise of power of sale or otherwise, or (B) any other law which in any other
way would otherwise require any election of remedies by any Agent or any Lender.
6. CERTAIN FEES.
6.1. CLOSING FEE. A closing fee in the amount of $750,000 shall be
fully earned by the Lenders on the Closing Date. The Borrowers jointly and
severally agree to pay the closing fee on the Closing Date to the Co-Agent, for
the PRO RATA accounts of the Lenders in accordance with their Commitment
Percentages.
-39-
6.2. SYNDICATION FEE. A syndication fee in the amount of $750,000 shall
be fully earned by the Syndication Agent on the Closing Date. The Borrowers
jointly and severally agree to pay the syndication fee on the Closing Date to
the Syndication Agent.
6.3. FEE CREDITS. GECC hereby agrees that the Borrowers shall receive a
credit against that portion of each of the closing fee and the syndication fee
payable to GECC equal to the sum of (i) the commitment fee of $500,000 paid
pursuant to the commitment letter dated December 5, 2002 between GECC and the
Parent, and (ii)(A) the good faith deposit of $500,000 paid pursuant to the
letter of interest dated November 12, 2002, between GECC and the Parent, MINUS
(B) the out of pocket expenses incurred and estimated to be incurred by GECC in
connection with this Credit Agreement from November 12, 2002 through the Closing
Date and for post-closing matters. GECC further agrees that the Borrowers shall
receive a credit of $562,500 against any closing fees that the Borrowers may
incur in connection with any exit financing provided by the Capital Funding Unit
of GECC in connection with a Reorganization Plan. Nothing contained in the
foregoing sentence, however, constitutes a commitment by GECC or any other
Lender to provide any such exit financing.
6.4. AGENTS' FEE. The Borrowers jointly and severally agree to pay to
the Co-Agent monthly in advance commencing on January 1, 2003 and on the first
Business Day of each calendar month thereafter an Agents' fee (the "AGENTS'
FEE") in the amount of $20,000. Fifty percent (50%) of such Agents' Fee shall be
for the Co-Agent's own account, and the other fifty percent (50%) of such fee
shall be paid to the Administrative Agent, for the benefit of the Lenders (other
than a Lender which is also the Co-Agent), according to the allocation agreed to
among such Lenders.
6.5. NATURE OF FEES. All of the above fees will be fully-earned on the
Closing Date and will be non-refundable.
7. CERTAIN GENERAL PROVISIONS.
7.1. FUNDS FOR PAYMENTS.
7.1.1. PAYMENTS TO CO-AGENT. All payments of principal,
interest, Letter of Credit Obligations, commitment fees, Letter of
Credit Fees, Agents' Fees and any other amounts due hereunder or under
any of the other Loan Documents shall be made to the Co-Agent, for the
respective accounts of the Lenders and the Agents, at the Co-Agent's
Office or at such other location that the Co-Agent may from time to
time designate, in each case in Dollars and in immediately available
funds not later than 12:00 noon (New York City, New York time) on the
due date of such payment. Each of the Borrowers hereby expressly
authorizes the Co-Agent to charge any deposit account of such Borrower
with the Co-Agent, Fleet or any Concentration Account Bank or to
advance Loans hereunder to effect any payments due hereunder or under
the other Loan Documents.
-40-
7.1.2. NO OFFSET, ETC. All payments by the Borrowers hereunder
and under any of the other Loan Documents shall be made without setoff
or counterclaim and free and clear of and without deduction for any
taxes, levies, imposts, duties, charges, fees, deductions,
withholdings, compulsory loans, restrictions or conditions of any
nature now or hereafter imposed or levied by any jurisdiction or any
political subdivision thereof or taxing or other authority therein
unless the Borrowers are compelled by law to make such deduction or
withholding. If any such obligation is imposed upon the Borrowers with
respect to any amount payable by them hereunder or under any of the
other Loan Documents, the Borrowers will pay to the Co-Agent, for the
account of the Lenders, the Co-Agent or the Administrative Agent (as
the case may be), on the date on which such amount is due and payable
hereunder or under such other Loan Document, such additional amount in
Dollars as shall be necessary to enable the Lenders, the Co-Agent or
the Administrative Agent (as the case may be) to receive the same net
amount which the Lenders, the Co-Agent or the Administrative Agent
would have received on such due date had no such obligation been
imposed upon the Borrowers. The Borrowers will deliver promptly to the
Agents certificates or other valid vouchers for all taxes or other
charges deducted from or paid with respect to payments made by the
Borrowers hereunder or under such other Loan Document.
7.2. COMPUTATIONS. All computations of interest on the Loans and of
commitment fees and other fees hereunder expressed on a "per annum" basis shall
be based on a 365-day year and paid for the actual number of days elapsed.
Whenever a payment hereunder or under any other Loan Document becomes due on a
day that is not a Business Day, the due date for such payment shall be extended
to the next succeeding Business Day, and interest shall accrue during such
extension. The Index Rate is a floating rate determined for each day. Each
determination by the Administrative Agent of the Index Rate and any fees
hereunder shall be final, binding and conclusive on the Borrowers, absent
manifest error. The outstanding amount of the Loans as reflected on the Note
Records from time to time shall, with respect to the Borrowers, be considered
correct and binding unless within five (5) Business Days after receipt of any
notice from the Administrative Agent, the Co-Agent or any of the Lenders of such
outstanding amount, the Borrowers shall notify the Administrative Agent, the
Co-Agent or such Lender to the contrary or the Administrative Agent, the
Co-Agent or such Lender shall notify the Borrowers to the contrary.
7.3. CAPITAL ADEQUACY. If after the date hereof any Lender, the
Co-Agent or the Administrative Agent determines that (i) the adoption of or
change in any law, governmental rule, regulation, policy, guideline or directive
(whether or not having the force of law) regarding capital requirements for
banks or bank holding companies or any change in the interpretation or
application thereof by a Governmental Authority with appropriate jurisdiction,
or (ii) compliance by such Lender, the Co-Agent or the Administrative Agent or
any corporation controlling such Lender, the Co-Agent or the Administrative
Agent with any law, governmental rule, regulation, policy, guideline or
directive (whether or not having the force of law) of any such entity regarding
capital adequacy, has the effect of reducing the return on such Lender's, the
-41-
Co-Agent's or the Administrative Agent's commitment with respect to any Loans to
a level below that which such Lender, the Co-Agent or the Administrative Agent
could have achieved but for such adoption, change or compliance (taking into
consideration such Lender's, the Co-Agent's or the Administrative Agent's then
existing policies with respect to capital adequacy and assuming full utilization
of such entity's capital) by any amount deemed by such Lender, the Co-Agent or
the Administrative Agent (as the case may be) to be material, then such Lender,
the Co-Agent or the Administrative Agent may notify the Borrowers of such fact.
To the extent that the amount of such reduction in the return on capital is not
reflected in the Index Rate, the Borrowers jointly and severally agree to pay
such Lender, the Co-Agent or the Administrative Agent (as the case may be) for
the amount of such reduction in the return on capital as and when such reduction
is determined upon presentation by such Lender, the Co-Agent or the
Administrative Agent (as the case may be) of a certificate in accordance with
ss.7.4 hereof. Each Lender shall allocate such cost increases among its
customers in good faith and on an equitable basis.
7.4. CERTIFICATE. A certificate setting forth any additional amounts
payable pursuant to ss.7.3 and a brief explanation of such amounts which are
due, submitted by any Lender, the Co-Agent or the Administrative Agent to the
Borrowers, shall be PRIMA FACIE evidence, absent manifest error, that such
amounts are due and owing.
7.5. INTEREST AFTER DEFAULT. During the continuance of an Event of
Default, the principal of the Loans shall, until such Event of Default has been
cured or remedied or such Event of Default has been waived by the Required
Lenders pursuant to ss.27, bear interest at a rate per annum equal to two
percent (2%) above the rate of interest otherwise applicable to such Loans
pursuant to ss.2.5. During the continuance of an Event of Default, the Letter of
Credit Fee shall be the rate per annum equal to two percent (2%) above the rate
otherwise applicable.
7.6. INTEREST LIMITATION. Notwithstanding any other term of this Credit
Agreement, any Note or any other Loan Document, the maximum amount of interest
which may be charged to or collected from any Person liable hereunder, under any
Note or under any other Loan Document by any Lender, shall be absolutely limited
to, and shall in no event exceed, the maximum amount of interest (the "MAXIMUM
RATE") which could lawfully be charged or collected under applicable law, so
that the maximum of all amounts constituting interest under applicable law,
howsoever computed, shall never exceed, as to any Person liable therefor, the
Maximum Rate, and any term of this Credit Agreement, any Note or any other Loan
Document which could be construed as providing for interest in excess of such
lawful maximum shall be and hereby is made expressly subject to and modified by
the provisions of this Section. If, in respect of any applicable period, the
effective interest rate on any amounts owing pursuant to this Credit Agreement,
the Notes or any of the other Loan Documents, absent the Maximum Rate limitation
contained herein, would have exceeded the Maximum Rate, and if in any applicable
period, such effective interest rate would otherwise be less than the Maximum
Rate, then the effective interest rate for such future applicable period shall
be increased to the Maximum Rate until such time as the amount of interest paid
hereunder equals the amount of interest which would have been paid if the same
-42-
had not been limited by the Maximum Rate. In the event that a court of competent
jurisdiction shall, notwithstanding the provisions of this ss.7.6, determine
that any Lender has received interest hereunder or under any of the other Loan
Documents in excess of the Maximum Rate, such excess shall, to the extent
permitted by applicable law, be applied first to any interest not in excess of
the Maximum Rate then due and not yet paid, then to the outstanding principal of
the Loans, then to fees and any other unpaid Obligations, and thereafter shall
be refunded to the Borrowers or as a court of competent jurisdiction may
otherwise order. In the event that, upon payment in full of the Obligations, the
total amount of interest paid or accrued under the terms of this Credit
Agreement is less than the total amount of interest which would have been paid
or accrued had the interest not been limited hereby to the Maximum Rate, then
the Borrowers shall, to the extent permitted by applicable law, pay to the
Lenders hereunder or under the Notes an amount equal to the excess, if any, of
(a) the lesser of (i) the amount of interest which would have been charged if
the Maximum Rate had, at all times, been in effect with respect to the
Obligations hereunder or under the Notes and (ii) the amount of interest which
would have accrued had the applicable effective interest rate not been limited
hereunder by the Maximum Rate over (b) the amount of interest actually paid or
accrued under this Credit Agreement. In determining whether or not the interest
paid or payable under any specific contingency exceeds the Maximum Rate, the
Borrowers and any Lender, the Co-Agent or the Administrative Agent, as the case
may be, shall, to the maximum extent permitted under applicable law, (i)
characterize any non-principal payment as an expense, fee, or premium, rather
than as interest, (ii) exclude any voluntary prepayments and the effects
thereof, and (iii) spread the total amount of interest throughout the entire
contemplated term of the Obligations so that the interest rate is uniform
throughout the entire term of the Obligations. The term "applicable law" as used
in this ss.7.6 means the law chosen pursuant to ss.22 hereof or, if (despite the
parties' intentions otherwise) the forum court does not enforce such contractual
choice of law, the applicable law after the forum court applies the choice of
law rules of the forum, including any federally mandated choice of law. The term
includes applicable federal law, such as the provisions of Section 5197 of the
Revised Statutes of the United States of America, as amended, 12 U.S.C. Section
85, as amended.
8. PRIORITY AND COLLATERAL SECURITY.
8.1. SUPERPRIORITY CLAIMS AND COLLATERAL SECURITY. The Borrowers hereby
represent, warrant and covenant on a joint and several basis that, except as
otherwise expressly provided in this paragraph, all of the Obligations, upon
entry of the Final Order Amendment:
(a) shall at all times constitute a Superpriority Claim having
priority, pursuant to Sections 364(c)(1) of the Bankruptcy Code, over
the other Superpriority Claims granted as adequate protection in
respect of the Prepetition Lenders and any other claims of any entity,
-43-
including, without limitation, any claims under Sections 503, 506(c),
507, 1113, and 1114 of the Bankruptcy Code, and
(b) pursuant to Sections 364(c)(2) and (3) and 364(d) of the
Bankruptcy Code and the Security Documents, shall at all times be
secured by a first priority perfected Lien in all of the assets,
whether now owned or hereafter acquired of the Borrowers and their
estates, pursuant to the terms of the Security Documents.
Such Superpriority Claim shall not include Avoidance Actions but shall be
subject to the Carve Out. Such Lien shall not extend to Avoidance Actions and
shall be subject to the Carve Out, but otherwise such Lien shall be senior in
priority to the adequate protection Liens securing the Prepetition Lender Debt
and all other Liens other than Permitted Prior Liens. The Liens securing the
Obligations shall not be subject to Section 551 of the Bankruptcy Code, unless
the transfer avoided was to or for the benefit of the Prepetition Agents and the
Prepetition Lenders.
8.2. COLLATERAL SECURITY PERFECTION. Each of the Borrowers agrees to
take all action that the Administrative Agent or any Lender may reasonably
request as a matter of nonbankruptcy law to perfect and protect the Agents' and
the Lenders' Liens upon the Collateral and for such Liens to obtain the priority
therefor contemplated hereby, including, without limitation, executing and
delivering such documents and instruments, financing statements, providing such
notices and assents of third parties, obtaining such governmental approvals and
providing such other instruments and documents in recordable form as the
Administrative Agent or any Lender may reasonably request. Each Borrower 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 (a) indicate the
Collateral (i) as "all assets of such Borrower" 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 of New
York or such jurisdiction, or (ii) as being of an equal or lesser scope or with
greater detail, and (b) provide any other information required by part 5 of
Article 9 of the Uniform Commercial Code of any jurisdiction for the sufficiency
or filing office acceptance of any financing statement or amendment, including
(i) whether such Borrower is an organization, the type of organization and any
organization identification number issued to such Borrower and (ii) in the case
of a financing statement filed as a fixture filing, a sufficient description of
real property to which the Collateral relates. Such Borrower agrees to furnish
any such information to the Administrative Agent promptly upon the
Administrative Agent's request.
8.3. NO DISCHARGE; SURVIVAL OF CLAIMS. Each of the Borrowers agrees
that (i) the Obligations shall not be discharged by the entry of an order
confirming a Reorganization Plan (and each of the Borrowers pursuant to Section
1141(d)(4) of the Bankruptcy Code, hereby waives any such discharge), (ii) the
Superpriority Claim granted to the Agents and Lenders pursuant to the Final
-44-
Order and the Liens granted to the Administrative Agent, for the benefit of the
Agents and the Lenders, pursuant to the Final Order and the Security Documents,
shall not be affected in any manner by the entry of an order confirming a
Reorganization Plan and (iii) none of the Borrowers shall propose or support any
Reorganization Plan that is not conditioned upon the payment in full in cash, on
or prior to the Termination Date, of all of the Obligations, and, with respect
to Obligations arising pursuant to ss.18.1 or ss.18.2 after such date,
thereafter for the payment in full of such Obligations in cash when due and
payable.
9. REPRESENTATIONS AND WARRANTIES.
The Borrowers hereby represent and warrant on a joint and several basis
to the Lenders and the Agents as follows:
9.1. CORPORATE AUTHORITY.
9.1.1. ORGANIZATION; GOOD STANDING. Each of the Borrowers (i)
is a corporation (or similar business entity) duly organized, validly
existing and in good standing under the laws of its state of
incorporation, organization or formation, (ii) has all requisite power
to own its property and conduct its business as now conducted and as
presently contemplated, and (iii) is in good standing as a foreign
entity and is duly authorized to do business in each jurisdiction where
such qualification is necessary except where a failure to be so
qualified would not have a materially adverse effect on the business,
assets or financial condition of such Borrower.
9.1.2. AUTHORIZATION. The execution, delivery and performance
of this Credit Agreement and the other Loan Documents to which any of
the Borrowers is a party and the transactions contemplated hereby and
thereby (i) are within the requisite authority of such Person, (ii)
have been duly authorized by all necessary corporate proceedings (or
similar proceedings), (iii) do not conflict with or result in any
breach or contravention of any provision of law, statute, rule or
regulation to which any of the Borrowers is subject or any judgment,
order, writ, injunction, license or permit applicable to any of the
Borrowers and (iv) do not conflict with any provision of the corporate
charter or bylaws of, or any agreement or other instrument binding
upon, any of the Borrowers.
9.1.3. ENFORCEABILITY. The execution and delivery of this
Credit Agreement and the other Loan Documents to which any of the
Borrowers is a party will, upon entry of the Final Order Amendment,
result in valid and legally binding obligations of such Person
enforceable against it in accordance with the respective terms and
provisions hereof and thereof, except as enforceability is limited by
bankruptcy, insolvency, reorganization, moratorium or other laws
relating to or affecting generally the enforcement of creditors' rights
and except to the extent that availability of the remedy of specific
performance or injunctive relief is subject to the discretion of the
court before which any proceeding therefor may be brought.
-45-
9.2. GOVERNMENTAL APPROVALS. Except for the entry of the Final Order
Amendment, the execution, delivery and performance by any of the Borrowers of
this Credit Agreement and the other Loan Documents to which any of the Borrowers
is a party and the transactions contemplated hereby and thereby do not require
the approval or consent of, or filing with, any Governmental Authority other
than those already obtained.
9.3. TITLE TO PROPERTIES; LEASES. Except as indicated on SCHEDULE 9.3
hereto, each of the Borrowers owns all of the assets reflected in the
consolidated balance sheet of the Borrowers as at the Balance Sheet Date or
acquired since that date (except pursuant to the Exchange Agent Agreement and
except property and assets sold or otherwise disposed of in the ordinary course
of business since that date or which have been disclosed to the Agents), subject
to no rights of others, including any mortgages, leases, conditional sales
agreements, title retention agreements, liens or other encumbrances except
Permitted Liens.
9.4. FISCAL YEAR; FINANCIAL STATEMENTS; PROJECTIONS.
9.4.1. FISCAL YEAR, FISCAL QUARTERS. Each of the Borrowers has
a fiscal year which is the twelve months ending on December 31 of each
calendar year. Each of the Borrowers has fiscal quarters ending on
calendar quarters.
9.4.2. FINANCIAL STATEMENTS. There has been furnished to each
of the Lenders a consolidated balance sheet of the Borrowers as at the
Balance Sheet Date, and a consolidated statement of income of the
Borrowers for the fiscal year then ended, audited by Xxxxxx Xxxxxxxx
LLP. Such balance sheet and statement of income have been prepared in
accordance with generally accepted accounting principles and fairly
present the financial condition of the Borrowers as at the close of
business on the date thereof and the results of operations for the
fiscal year then ended. There are no contingent liabilities of the
Borrowers as of such date involving material amounts, known to the
officers of the Borrowers, which were not disclosed in such balance
sheet and the notes related thereto, other than cure payments in
connection with executory contracts to be assumed and other claims
arising in the Cases that are reasonably anticipated to be classified
as general unsecured claims.
9.4.3. CASH BUDGET. The Borrowers have delivered to the Agents
and each of the Lenders a projected cash revenue and expense budget
dated December 4, 2002 for the period through June 30, 2003. The budget
has been prepared in good faith based upon assumptions which the
Borrowers believe to be reasonable assumptions. To the knowledge of the
Borrowers, no facts exist that (individually or in the aggregate) would
result in any material change in the budget that has not been disclosed
to the Agents.
9.5. NO MATERIAL CHANGES. Except as disclosed in the Parent's filings
with the Securities and Exchange Commission or the Bankruptcy Court prior to the
Closing Date, since the Balance Sheet Date, there has occurred no materially
-46-
adverse change in the condition (financial or otherwise), operations,
performance, properties, or prospects of the Borrowers as shown on or reflected
in the consolidated balance sheet of the Borrowers as at the Balance Sheet Date,
or the consolidated statement of income for the fiscal year then ended, other
than (i) changes in the Borrowers' financial performance which are reflected in
the budget referred to in ss.9.4.3, (ii) the continuation of the Cases, and
(iii) changes in the ordinary course of business that have not had any
materially adverse effect either individually or in the aggregate on the
business or financial condition of the Borrowers, considered as a whole. Since
the Balance Sheet Date, the Parent has not made any Distribution, and except for
Distributions to other Borrowers, the Borrowers other than the Parent have not
made any Distributions since the Balance Sheet Date.
9.6. FRANCHISES, PATENTS, COPYRIGHTS, ETC. SCHEDULE 9.6 attached hereto
contains a true, complete and current listing of all copyrights, copyright
applications, trademarks, trademark rights, trade names, patents, patent rights
or licenses, patent applications and other intellectual property rights of the
Borrowers that are registered with any Governmental Authority as of the Closing
Date. Each of the Borrowers owns or possesses rights to use all franchises,
licenses, copyrights, copyright applications, patents, patent rights or
licenses, patent applications, trademarks, trademark rights, trade names, trade
name rights, copyrights and rights with respect to the foregoing which are
required to conduct its business. No event has occurred which permits, or after
notice or lapse of time or both would permit, the revocation or termination of
any such rights, and no Borrower is liable to any Person for infringement under
applicable law with respect to any such rights as a result of its business
operations.
9.7. LITIGATION. Except for the Cases and as set forth in SCHEDULE 9.7
hereto, there are no actions, suits, proceedings or investigations of any kind
pending or threatened against any of the Borrowers before any court, tribunal or
administrative agency or board that, if adversely determined, might, either in
any case or in the aggregate, materially adversely affect the properties,
assets, financial condition or business of the Borrowers, considered as a whole,
or materially impair the right of the Borrowers, considered as a whole, to carry
on business substantially as now conducted by them, or result in any substantial
liability not adequately covered by insurance, or for which adequate reserves
are not maintained on the consolidated balance sheet of the Borrowers, or which
question the validity of this Credit Agreement or any of the other Loan
Documents, or any action taken or to be taken pursuant hereto or thereto.
9.8. NO MATERIALLY ADVERSE CONTRACTS, ETC. Except as disclosed on
SCHEDULE 9.8, none of the Borrowers is subject to any charter, corporate or
other legal restriction, or any judgment, decree, order, rule or regulation that
has or is expected in the future to have a materially adverse effect on the
business, assets or financial condition of the Borrowers, considered as a whole.
Other than as set forth on SCHEDULE 9.8 and other than contracts which the
Borrowers may reject as executory contracts in the Cases and for which they are
under no material economic compulsion to fail to reject, none of the Borrowers
-47-
is a party to any contract or agreement that has or is expected, in the judgment
of such Borrower's officers, to have any materially adverse effect on the
business of such Borrower.
9.9. COMPLIANCE WITH OTHER INSTRUMENTS, LAWS, ETC. Except as set forth
on SCHEDULE 9.9, none of the Borrowers is in violation of any provision of its
charter documents, bylaws, or any agreement or instrument to which it may be
subject or by which it or any of its properties may be bound or any decree,
order, judgment, statute, license, rule or regulation, in any of the foregoing
cases in a manner that could result in the imposition of substantial penalties
or materially and adversely affect the financial condition, properties or
business of the Borrowers, considered as a whole.
9.10. TAX STATUS. The Borrowers (i) have made or filed all federal and
state income and all other tax returns, reports and declarations required by any
jurisdiction to which any of them is subject, (ii) have paid all taxes and other
governmental assessments and charges shown or determined to be due on such
returns, reports and declarations, except those being contested in good faith
and by appropriate proceedings and (iii) have set aside on their books
provisions reasonably adequate for the payment of all taxes for periods
subsequent to the periods to which such returns, reports or declarations apply.
There are no unpaid taxes of the Borrowers in any material amount claimed to be
due by the taxing authority of any jurisdiction, and the officers of the
Borrowers know of no basis for any such claim.
9.11. NO EVENT OF DEFAULT. No Default or Event of Default has occurred
and is continuing.
9.12. HOLDING COMPANY AND INVESTMENT COMPANY ACTS. None of the
Borrowers is a "holding company", or a "subsidiary company" of a "holding
company", or an "affiliate" of a "holding company", as such terms are defined in
the Public Utility Holding Company Act of 1935; nor is any of the Borrowers an
"investment company", or an "affiliated company" or a "principal underwriter" of
an "investment company", as such terms are defined in the Investment Company Act
of 1940.
9.13. ABSENCE OF FINANCING STATEMENTS, ETC. Except with respect to
Permitted Liens, there is no financing statement, security agreement, chattel
mortgage, real estate mortgage, or other document filed or recorded with any
filing records, registry or other public office, that purports to cover, affect
or give notice of any present or possible future lien on, or security interest
in, any assets or property of any of the Borrowers or any rights relating
thereto.
9.14. CERTAIN TRANSACTIONS. Except as set forth on SCHEDULE 9.14 and
except for arm's length transactions pursuant to which the Borrowers make
payments in the ordinary course of business upon terms no less favorable than
the Borrowers could obtain from third parties, none of the officers, directors,
or employees of the Borrowers is presently a party to any transaction with any
of the Borrowers (other than for services as employees, officers and directors),
including any contract, agreement or other arrangement providing for the
furnishing of services to or by, providing for rental of real or personal
-48-
property to or from, or otherwise requiring payments to or from, any such
officer, director or employee or, to the knowledge of the Borrowers, any
corporation, partnership, trust or other entity in which any such officer,
director, or employee has a substantial interest or is an officer, director,
trustee or partner.
9.15. EMPLOYEE BENEFIT PLANS.
9.15.1. IN GENERAL. Except as shown on SCHEDULE 9.15.1 hereto,
each Employee Benefit Plan and each Guaranteed Pension Plan has been
maintained and operated in compliance in all material respects with the
provisions of ERISA and, to the extent applicable, the Code, including
but not limited to the provisions thereunder respecting prohibited
transactions and the bonding of fiduciaries and other Persons handling
plan funds as required by ss.412 of ERISA. The Borrowers have
heretofore delivered to the Administrative Agent the most recently
completed annual report, Form 5500, with all required attachments, and
actuarial statement required to be submitted under ss.103(d) of ERISA,
with respect to each Guaranteed Pension Plan.
9.15.2. TERMINABILITY OF WELFARE PLANS. No Employee Benefit
Plan, which is an employee welfare benefit plan within the meaning of
ss.3(1) or ss.3(2)(B) of ERISA, provides benefit coverage subsequent to
termination of employment, except as required by Title I, Part 6 of
ERISA or the applicable state insurance laws or to the extent taken
into account in the latest actuarial valuation of post-employment
benefit obligations (FASB No. 10Bb report). By their respective terms,
and except as limited as a result of the filing of the Cases, the
Borrowers may terminate each such Plan at any time (or at any time
subsequent to the expiration of any applicable bargaining agreement) in
the discretion of the Borrowers without liability to any Person.
9.15.3. GUARANTEED PENSION PLANS. Each contribution required
to be made to a Guaranteed Pension Plan, whether required to be made to
avoid the incurrence of an accumulated funding deficiency, the notice
or lien provisions of ss.302(f) of ERISA, or otherwise, has been timely
made. No waiver of an accumulated funding deficiency or extension of
amortization periods has been received and remains in effect with
respect to any Guaranteed Pension Plan, and none of the Borrowers or
any ERISA Affiliate is obligated to or has posted security in
connection with an amendment to a Guaranteed Pension Plan pursuant to
ss.307 of ERISA or ss.401(a)(29) of the Code. No liability to the PBGC
(other than required insurance premiums, all of which have been paid)
has been incurred by any of the Borrowers or any ERISA Affiliate with
respect to any Guaranteed Pension Plan and there has not been any ERISA
Reportable Event (other than an ERISA Reportable Event as to which the
requirement of 30 days notice has been waived or attributable to the
filing of the Cases), or any other event or condition which presents a
material risk of termination of any Guaranteed Pension Plan by the
PBGC.
-49-
9.15.4. MULTIEMPLOYER PLANS. None of the Borrowers or any
ERISA Affiliate has incurred any material liability (including
secondary liability) to any Multiemployer Plan as a result of a
complete or partial withdrawal from such Multiemployer Plan under
ss.4201 of ERISA or as a result of a sale of assets described in
ss.4204 of ERISA. None of the Borrowers or any ERISA Affiliate has been
notified that any Multiemployer Plan is in reorganization or insolvent
under and within the meaning of ss.4241 or ss.4245 of ERISA or is at
risk of entering reorganization or becoming insolvent, or that any
Multiemployer Plan intends to terminate or has been terminated under
ss.4041A of ERISA.
9.16. USE OF PROCEEDS.
9.16.1. GENERAL. The proceeds of the Loans shall be used and
Letters of Credit shall be issued solely for working capital and
general corporate purposes, including, without limitation, the payments
on the Prepetition Lender Debt to the extent provided in the Final
Order.
9.16.2. REGULATIONS U AND X. No portion of any Loan is to be
used for the purpose of purchasing or carrying any "margin security" or
"margin stock" as such terms are used in Regulations U and X of the
Board of Governors of the Federal Reserve System, 12 C.F.R. Parts 221
and 224.
9.17. ENVIRONMENTAL COMPLIANCE. The Borrowers have taken all necessary
steps to investigate the past and present condition and usage of the Real Estate
and the operations conducted thereon and, based upon such diligent
investigation, have determined that:
(a) except as set forth on SCHEDULE 9.17 attached hereto, none
of the Borrowers or any operator of the Real Estate or any operations
thereon is in violation, or alleged violation, of any judgment, decree,
order, law, license, rule or regulation pertaining to environmental
matters, including without limitation, those arising under the Resource
Conservation and Recovery Act ("RCRA"), the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 as amended ("CERCLA"),
the Superfund Amendments and Reauthorization Act of 1986 ("XXXX"), the
Federal Clean Water Act, the Federal Clean Air Act, the Toxic
Substances Control Act, or any state or local statute, regulation,
ordinance, order or decree relating to health, safety or the
environment (hereinafter "ENVIRONMENTAL LAWS"), which violation would
have a material adverse effect on the environment or the business,
assets or financial condition of any of the Borrowers;
(b) except as set forth on SCHEDULE 9.17 attached hereto, none
of the Borrowers has received notice from any third party including,
without limitation, any Governmental Authority, (i) that any one of
them has been identified by the United States Environmental Protection
Agency ("EPA") as a potentially responsible party under CERCLA with
respect to a site listed on the National Priorities List, 40 C.F.R.
-50-
Part 000 Xxxxxxxx X; (ii) that any hazardous waste, as defined by 42
U.S.C. ss.6903(5), any hazardous substances as defined by 42 U.S.C.
ss.9601(14), any pollutant or contaminant as defined by 42 U.S.C.
ss.9601(33) and any toxic substances, oil or hazardous materials or
other chemicals or substances regulated by any Environmental Laws
("HAZARDOUS SUBSTANCES") which any one of them has generated,
transported or disposed of has been found at any site at which a
Governmental Authority or other third party has conducted or has
ordered that any of the Borrowers conduct a remedial investigation,
removal or other response action pursuant to any Environmental Law; or
(iii) that it is or shall be a named party to any claim, action, cause
of action, complaint, or legal or administrative proceeding (in each
case, contingent or otherwise) arising out of any third party's
incurrence of costs, expenses, losses or damages of any kind whatsoever
in connection with the release of Hazardous Substances;
(c) except as set forth on SCHEDULE 9.17 attached hereto, (i)
no portion of the Real Estate has been used for the handling,
processing, storage or disposal of Hazardous Substances except in
accordance with applicable Environmental Laws; and no underground tank
or other underground storage receptacle for Hazardous Substances is
located on any portion of the Real Estate, except where the presence of
such underground tank or other underground storage receptacle could not
be reasonably expected to have a material adverse effect on the value
of any of the Real Estate or a material adverse effect on the Borrowers
as a whole; (ii) in the course of any activities conducted by any of
the Borrowers or operators of their properties, no Hazardous Substances
have been generated or are being used on the Real Estate except in
accordance with applicable Environmental Laws; (iii) there have been no
releases (i.e. any past or present releasing, spilling, leaking,
pumping, pouring, emitting, emptying, discharging, injecting, escaping,
disposing or dumping) or threatened releases of Hazardous Substances
on, upon, into or from the properties of any of the Borrowers, which
releases would have a material adverse effect on the value of any of
the Real Estate or adjacent properties or the environment; (iv) to the
best of the Borrowers' knowledge, there have been no releases on, upon,
from or into any real property in the vicinity of any of the Real
Estate which, through soil or groundwater contamination, may have come
to be located on, and which would have a material adverse effect on the
value of, the Real Estate; and (v) in addition, any Hazardous
Substances that have been generated on any of the Real Estate have been
transported offsite only by carriers having an identification number
issued by the EPA, treated or disposed of only by treatment or disposal
facilities maintaining valid permits as required under applicable
Environmental Laws, which transporters and facilities have been and
are, to the best of the Borrowers' knowledge, operating in compliance
with such permits and applicable Environmental Laws; and
(d) except as set forth on SCHEDULE 9.17 attached hereto, none
of the Borrowers or any of the Real Estate is subject to any applicable
environmental law requiring the performance of Hazardous Substances
site assessments, or the removal or remediation of Hazardous
Substances, or the giving of notice to any Governmental Authority or
the recording or delivery to other Persons of an environmental
disclosure document or statement by virtue of the transactions set
forth herein and contemplated hereby, or as a condition to the
-51-
recording of any leasehold mortgage or to the effectiveness of any
other transactions contemplated hereby.
9.18. SUBSIDIARIES; CAPITALIZATION, ETC. All Subsidiaries, direct and
indirect, of the Borrowers are listed on SCHEDULE 9.18 hereto. None of the
Borrowers or any Subsidiary of the Borrowers is engaged in any joint venture or
partnership with any other Person. The capitalization of each of the Borrowers
consists of (i) the number of shares authorized, issued and outstanding, of such
classes and series, with or without par value or (ii) the partnership interests,
in each case described on SCHEDULE 9.18. All such outstanding shares have been
duly authorized and validly issued and are fully paid and nonassessable. The
shareholders or partners, as the case may be, of each of the Borrowers (other
than the Parent) and the number of shares (or partnership interests, as the case
may be) owned by each as of the Closing Date are described on SCHEDULE 9.18.
There are no outstanding stock purchase warrants, subscriptions, options,
securities, instruments or other rights of any type or nature whatsoever, which
are convertible into, exchangeable for or otherwise provide for or permit the
issuance of Capital Stock of any of the Borrowers (other than the Parent) as of
the Closing Date, except as described on SCHEDULE 9.18.
9.19. DISCLOSURE. None of this Credit Agreement or any of the other
Loan Documents contains any untrue statement of a material fact or omits to
state a material fact (known to any of the Borrowers in the case of any document
or information not furnished by it) necessary in order to make the statements
herein or therein not misleading. Except for the Cases and except as set forth
on SCHEDULE 9.19, there is no fact known to any of the Borrowers which
materially adversely affects, or which is reasonably likely in the future to
materially adversely affect, the business, assets, financial condition or
prospects of any of the Borrowers, considered as a whole, exclusive of effects
resulting from changes in general economic conditions, legal standards or
regulatory conditions.
9.20. PERFECTION OF SECURITY INTEREST. Upon the entry of the Final
Order Amendment, to the extent requested by the Administrative Agent, all
filings, assignments, pledges and deposits of documents or instruments will have
been made and all other actions will have been taken that are necessary or
advisable, under applicable law, to establish and perfect the Administrative
Agent's security interest in the Collateral. The Collateral and the
Administrative Agent's rights with respect to the Collateral are not subject to
any setoff, claims, withholdings, or other defenses. The Borrowers are the
owners of the Collateral, free from any lien, security interest, encumbrance, or
any other claim or demand, except for Permitted Liens.
9.21. BANK ACCOUNTS. SCHEDULE 9.21 hereto sets forth the account
numbers and location of all bank accounts of the Borrowers, as such Schedule may
be updated from time to time pursuant to ss.11.13.
-52-
9.22. FILED ENTITIES. All Subsidiaries of the Borrowers are debtors in
the Cases in the Bankruptcy Court.
9.23. ELIGIBLE RECEIVABLES; ELIGIBLE RENTAL EQUIPMENT. Each Receivable
reflected in the computations included in any Borrowing Base Certificate meets
the criteria enumerated in the definition of Eligible Receivables. All of the
Inventory of the Borrowers reflected in the computations of Eligible Rental
Equipment included in any Borrowing Base Certificate meets the criteria
enumerated in the definition of Eligible Rental Equipment.
10. AFFIRMATIVE COVENANTS OF THE BORROWERS.
The Borrowers covenant and agree on a joint and several basis that, so
long as any Loan, Letter of Credit Obligation, Letter of Credit or Note is
outstanding or any Lender has any obligation to make any Loans or the Co-Agent
or any Lender has any obligation to incur any Letter of Credit Obligations:
10.1. PUNCTUAL PAYMENT. The Borrowers will duly and punctually pay or
cause to be paid the principal and interest on the Loans, the Letter of Credit
Fees, the commitment fees, and all other amounts provided for in this Credit
Agreement and the other Loan Documents to which any of the Borrowers is a party,
all in accordance with the terms of this Credit Agreement and such other Loan
Documents.
10.2. MAINTENANCE OF OFFICE. Each of the Borrowers will maintain its
chief executive office in 000 Xxxx Xxx Xxxx Xxxx., Xxxxx 0000, Xx. Xxxxxxxxxx,
Xxxxxxx 00000, or at such other place in the United States of America as such
Borrower shall designate upon written notice to the Agents, where notices,
presentations and demands to or upon such Borrower in respect of the Loan
Documents to which such Borrower is a party may be given or made. Each of the
Borrowers will give the Agents thirty days prior written notice of any change in
the location of its chief executive office.
10.3. RECORDS AND ACCOUNTS. Each of the Borrowers will (i) keep true
and accurate records and books of account in which full, true and correct
entries will be made in accordance with generally accepted accounting
principles, (ii) maintain adequate accounts and reserves for all taxes
(including income taxes), depreciation, depletion, obsolescence and amortization
of its properties, contingencies, and other reserves, and (iii) at all times
engage Ernst & Young or other independent certified public accountants
reasonably satisfactory to the Administrative Agent as the independent certified
public accountants of such Borrower and will not permit more than thirty (30)
days to elapse between the cessation of such firm's (or any successor firm's)
engagement as the independent certified public accountants of such Borrower and
the appointment in such capacity of a successor firm as shall be reasonably
satisfactory to the Administrative Agent.
10.4. FINANCIAL STATEMENTS, CERTIFICATES AND INFORMATION. The Borrowers
will deliver to each of the Lenders:
-53-
(a) as soon as practicable, but in any event not later than
ninety (90) days after the end of the fiscal year of the Borrowers
ended December 31, 2002, the consolidated balance sheet of the
Borrowers as at the end of such year, and the related consolidated
statement of income and consolidated statement of cash flow for such
year, each setting forth in comparative form the figures for the
previous fiscal year and all such consolidated statements to be in
reasonable detail, prepared in accordance with generally accepted
accounting principles, and certified by Ernst & Young or by other
independent certified public accounts satisfactory to the
Administrative Agent;
(b) as soon as practicable, but in any event within forty-five
(45) days of the end of each fiscal quarter of the Borrowers commencing
with the fiscal quarter ended December 31, 2002, copies of the
unaudited consolidated balance sheet of the Borrowers as at the end of
such quarter, and the related consolidated statement of income and
consolidated statement of cash flow for the portion of the Borrowers'
fiscal year then elapsed, all in reasonable detail and prepared in
accordance with generally accepted accounting principles, together with
a certification by the principal financial or accounting officer of the
Borrowers that the information contained in such financial statements
fairly presents the financial position of the Borrowers on the date
thereof (subject to year-end adjustments);
(c) as soon as practicable, but in any event within forty-five
(45) days of the end of the calendar month ending December 31, 2002,
and within thirty (30) days after the end of each calendar month
thereafter, unaudited monthly consolidated financial statements of the
Borrowers for such month, each prepared in accordance with generally
accepted accounting principles;
(d) simultaneously with the delivery of the financial
statements referred to in subsections (a), (b) and (c) above, a
statement certified by the principal financial or accounting officer of
the Parent in form and substance satisfactory to the Agents (the
"COMPLIANCE CERTIFICATE") and setting forth in reasonable detail
computations evidencing compliance with the covenants contained in
ss.12 and (if applicable) reconciliations to reflect changes in
generally accepted accounting principles since the Balance Sheet Date;
(e) promptly, copies of all pleadings, papers, notices, orders
and other papers filed in or issued from the Bankruptcy Court or any
appellate court in the Cases and copies of all reports filed with the
Office of the United States Trustee relating to any of the Cases;
(f) on the first Business Day of each month, a rolling
thirteen (13) week cash flow projection, of the Borrowers in a form and
in such detail as is reasonably satisfactory to the Administrative
Agent, updating the prior cash flow projection and, for prior periods
ending up to one week prior to the date of the report, showing actual
performance and any variances of actual performance from projected
performance;
-54-
(g) from time to time upon request of any Agent, a summary of
accounts receivable and accounts payable of the Borrowers, including
accounts payable to lessors of goods and holders of Prior Permitted
Liens on account of dispositions of goods or collateral;
(h) not less frequently than semi-monthly, and from time to
time upon any Agent's request, a Borrowing Base Certificate in the form
of EXHIBIT D attached hereto (the "BORROWING BASE CERTIFICATE");
(i) from time to time upon request, a written or oral report,
in detail reasonably satisfactory to any Agent, as to the status of the
Reorganization Plan; and
(j) from time to time such other financial data and
information (including accountants' management letters) as any Agent
may reasonably request.
10.5. NOTICES.
10.5.1. DEFAULTS. The Borrowers will promptly notify the
Agents and each of the Lenders in writing of the occurrence of any
Default or Event of Default. If any Person shall give any notice or
take any other action in respect of a claimed default (whether or not
constituting an Event of Default) under this Credit Agreement or any
other note, evidence of Indebtedness, indenture or other obligation to
which or with respect to which any of the Borrowers is a party or
obligor, whether as principal, guarantor, surety or otherwise, the
Borrowers shall forthwith give written notice thereof to each of the
Agents and each of the Lenders, describing the notice or action and the
nature of the claimed default.
10.5.2. ENVIRONMENTAL EVENTS. The Borrowers will promptly give
notice to the Agents (i) of any material violation of any Environmental
Law that any of the Borrowers reports in writing or is reportable by
such Person in writing (or for which any written report supplemental to
any oral report is made) to any federal, state or local environmental
agency that has the potential to materially adversely affect the
assets, liabilities, financial conditions or operations of any of the
Borrowers, or the Administrative Agent's security interests pursuant to
the Security Documents and (ii) upon becoming aware thereof, of any
inquiry, proceeding, investigation, or other action, including a notice
from any agency of potential environmental liability, of any federal,
state or local environmental agency or board, that has the potential to
materially adversely affect the assets, liabilities, financial
conditions or operations of any of the Borrowers, or the Administrative
Agent's security interests pursuant to the Security Documents.
10.5.3. NOTICE OF LITIGATION AND JUDGMENTS. The Borrowers will
give notice to the Agents in writing within ten (10) days of becoming
aware of any litigation or proceedings threatened in writing or any
pending litigation and proceedings affecting any of the Borrowers or to
-55-
which any of the Borrowers is or becomes a party involving an uninsured
claim against any of the Borrowers, that could reasonably be expected
to have a materially adverse effect on any of the Borrowers and stating
the nature and status of such litigation or proceedings. The Borrowers
will give notice to the Agents, in writing, in form and detail
satisfactory to the Agents, within five (5) days of any judgment not
covered by insurance, final or otherwise, against any of the Borrowers
in an amount in excess of $250,000.
10.5.4. NOTIFICATION OF CLAIM AGAINST COLLATERAL. The
Borrowers will, immediately upon becoming aware thereof, notify the
Agents in writing of any setoff, claims, withholdings or other defenses
to which any of the Collateral, or the Administrative Agent's rights
with respect to the Collateral, are subject.
10.5.5. NOTICE REGARDING EXECUTORY CONTRACTS. The Borrowers
shall notify the Agents prior to any of the Borrowers rejecting any
contract or making any motion to reject any contract, setting forth in
such notice the Borrowers' reasons why such rejection (i) will be in
the best interests of the Borrowers and (ii) will not have a material
adverse effect on the Borrowers, considered as a whole, and avoid
proceeding with such rejection if such rejection will have a material
adverse effect on the Borrowers, considered as a whole.
10.6. CORPORATE EXISTENCE; MAINTENANCE OF PROPERTIES; ETC.
(a) Each of the Borrowers will do or cause to be done all
things necessary to preserve and keep in full force and effect its
corporate existence, rights and franchises.
(b) Each of the Borrowers (i) will cause all of its properties
used or useful in the conduct of its business to be maintained and kept
in good condition, repair and working order and supplied with all
necessary equipment, (ii) will cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in
the judgment of such Borrower may be necessary so that the business
carried on in connection therewith may be properly and advantageously
conducted at all times, and (iii) will continue to engage primarily in
the businesses now conducted by it and in related businesses; PROVIDED
that nothing in this ss.10.6 shall prevent any of the Borrowers from
discontinuing the operation and maintenance of any of its properties if
such discontinuance is, in the judgment of such Borrower, desirable in
the conduct of its business and that do not in the aggregate materially
adversely affect the business of the Borrowers on a consolidated basis.
10.7. INSURANCE. Each of the Borrowers will maintain with financially
sound and reputable insurers insurance with respect to its properties and
business against such casualties and contingencies as shall be in accordance
-56-
with the general practices of businesses engaged in similar activities in
similar geographic areas and in amounts, containing such terms, in such forms
and for such periods as may be reasonable and prudent and reasonably
satisfactory to the Administrative Agent.
10.8. TAXES. Each of the Borrowers will duly pay and discharge, or
cause to be paid and discharged, before the same shall become overdue, all
taxes, assessments and other governmental charges imposed upon it and its real
properties, sales and activities, or any part thereof, or upon the income or
profits therefrom, as well as all claims for labor, materials, or supplies that
if unpaid might by law become a lien or charge upon any of its property;
PROVIDED that any such tax, assessment, charge, levy or claim need not be paid
if the validity or amount thereof shall currently be contested in good faith by
appropriate proceedings and if such Borrower shall have set aside on its books
adequate reserves with respect thereto; and PROVIDED FURTHER that each of the
Borrowers will pay all such taxes, assessments, charges, levies or claims
forthwith upon the commencement of proceedings to foreclose any lien that may
have attached as security therefor.
10.9. INSPECTION OF PROPERTIES AND BOOKS; INFORMATION.
(a) Each of the Borrowers shall permit the Lenders, through
any Agent or any of the Lenders' other designated representatives, to
visit and inspect any of the properties of the Borrowers, to examine
the books of account of the Borrowers (and to make copies thereof and
extracts therefrom), and to discuss the affairs, finances and accounts
of the Borrowers with, and to be advised as to the same by, their
officers, all at such reasonable times and intervals as any Agent or
any Lender may reasonably request.
(b) Each of the Borrowers shall continue to cooperate fully
with the Agents, the Agents' Special Counsel and their representatives,
and use their best efforts to provide such information, documentation
and records as any of them may reasonably request concerning the
operations of the Borrowers, payables related thereto and other
matters, such that all such information will be presented to the Agents
as promptly as practicable after any reasonable request therefor by any
Agent, the Agent's Special Counsel or any of their representatives.
10.10. COMPLIANCE WITH LAWS, CONTRACTS, LICENSES, AND PERMITS. Each of
the Borrowers will comply with (i) in all material respects, the applicable laws
and regulations wherever its business is conducted, including all Environmental
Laws, (ii) the provisions of its charter documents and by-laws, (iii) except for
executory contracts rejected by such Borrower in compliance with the
requirements of ss.10.5.5 or as otherwise permitted by the Bankruptcy Code or by
order of the Bankruptcy Court, all contracts, agreements and instruments by
-57-
which it or any of its properties may be bound and (iv) all applicable decrees,
orders, and judgments. If any authorization, consent, approval, permit or
license from the Bankruptcy Court or any officer, agency or instrumentality of
any government shall become necessary or required in order that any of the
Borrowers may fulfill any of its obligations hereunder or any of the other Loan
Documents to which any of the Borrowers is a party, each of the Borrowers will
immediately take or cause to be taken all reasonable steps within the power of
such Borrower to obtain such authorization, consent, approval, permit or license
and furnish the Agents and the Lenders with evidence thereof.
10.11. EMPLOYEE BENEFIT PLANS. Each of the Borrowers will (i) promptly
upon filing the same with the Department of Labor or Internal Revenue Service,
furnish to the Agents a copy of the most recent actuarial statement required to
be submitted under ss.103(d) of ERISA and Annual Report, Form 5500, with all
required attachments, in respect of each Guaranteed Pension Plan and (ii)
promptly upon receipt or dispatch, furnish to the Agents any notice, report or
demand sent or received in respect of a Guaranteed Pension Plan under ss.ss.302,
4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA (and any other substantive
correspondence from or with the PBGC regarding the Guaranteed Pension Plans), or
in respect of a Multiemployer Plan, under ss.ss.4041A, 4202, 4219, 4242, or 4245
of ERISA.
10.12. USE OF PROCEEDS. Each of the Borrowers will use the proceeds of
the Loans and will obtain Letters of Credit solely for the purposes set forth in
ss.9.16.
10.13. CASH MANAGEMENT ARRANGEMENTS; DEPOSITORY ARRANGEMENTS.
(a) Each of the Borrowers shall implement (to the extent not
already implemented) and maintain in place cash management arrangements
as shall be in form and substance reasonably satisfactory to the
Agents. Without limiting the generality of the foregoing, the parties
agree that:
(i) all cash and cash equivalents held by the
Borrowers and all proceeds of Receivables and Inventory and
other accounts, chattel paper, general intangibles,
instruments and other payment rights for which any of the
Borrowers is an obligee shall be deposited into either the
Concentration Account or an agency account of one of the
Borrowers subject to an Agency Account Agreement, except as
otherwise permitted in subsection (d) below;
(ii) all cash and cash equivalents held by the
Borrowers and all such proceeds of Receivables and Inventory
and other accounts, chattel paper, general intangibles,
instruments and other payment rights shall, on each Business
Day or such other frequency as may be agreed to by the Agents
be transferred to the Concentration Account, to the extent not
already transferred to the Concentration Account, for
application to the Obligations pursuant to the provisions
hereof; and
(iii) the Borrowers shall cause the Concentration
Account Bank to apply such proceeds credited to the
Concentration Account so that the application is in accordance
with ss.2.10.2 or, as the case may be, ss.2.11, the Borrowers
hereby authorizing the Co-Agent to have control of the
-58-
Concentration Account and make such application without the
consent of the Borrowers.
(b) In the event that, any of the Borrowers receives any cash,
checks or other cash proceeds of Collateral, the Borrowers shall,
promptly upon receipt thereof, in the identical form received (except
for any endorsements thereon which may be required by the Co-Agent),
cause such cash, checks and cash proceeds to be paid directly into the
Concentration Account or into an agency account subject to an Agency
Account Agreement, except as otherwise permitted in subsection (d)
below.
(c) To the extent not already implemented, the Borrowers agree
to implement the foregoing cash management arrangements as soon as
practicable and in any event by the Closing Date.
(d) The Borrowers shall execute and deliver to the
Administrative Agent an Agency Account Agreement for each bank account
with an average weekly balance of $25,000 or greater. The Borrowers
agree to use their best efforts to execute and deliver to the
Administrative Agent an Agency Account Agreement for each Account with
an average weekly balance of less than $25,000 (the "DESIGNATED
ACCOUNTS"); provided that it shall not be an Event of Default if the
Borrowers fail to obtain an Agency Account Agreement for one or more of
such Designated Accounts, unless the Administrative Agent notifies the
Borrowers in writing that the Borrowers must obtain an Agency Account
Agreement for any of such Designated Accounts and the Borrowers fail to
deliver such Agency Account Agreement to the Administrative Agent
within fifteen (15) days of such request.
10.14. RETENTION OF COMMERCIAL FINANCE AUDITS AND APPRAISALS.
(a) Upon the reasonable request of any Agent, the Borrowers
will obtain and deliver to the Agents, or, if the Agents so elect, will
cooperate with the Agents in the Agents' obtaining, a report of an
independent collateral auditor satisfactory to the Agents (which may be
affiliated with any Agent or one of the Lenders) with respect to the
components included in the Borrowing Base, which report shall indicate
whether or not the information set forth in the Borrowing Base
Certificate most recently delivered at the time of reference thereto is
accurate and complete in all material respects based upon a review by
such auditors of the Receivables (including verification with respect
to the amount, aging, identity and credit of the respective Account
Debtors and the billing practices of the Borrowers) and Eligible Rental
Equipment. All such collateral value reports shall be conducted and
made at the expense of the Borrowers.
(b) No later than March 31, 2003, the Borrowers shall deliver
a desk-top appraisal report by Ritchie Brothers Inc., or another
appraiser acceptable to the Agents, as of a recent date acceptable to
the Agents and in form and substance and following methodologies
satisfactory to the Agents, stating the then current orderly
liquidation values of all of the rental equipment owned by the
-59-
Borrowers. At such other times as may be determined by the Agents if an
Event of Default shall have occurred and be continuing, the Borrowers
shall also deliver to the Agents appraisal reports by Ritchie Brothers,
Inc. or another appraiser acceptable to the Agents, which such
appraisal reports shall be acceptable to the Agents in form and
substance and following methodologies satisfactory to the Agents,
stating the then current orderly liquidation values of all or any
portion of the equipment or real estate owned by the Borrowers. In
addition to the foregoing, the Borrowers shall provide the Agents with
access to Ritchie Brothers, Inc. for purposes of enabling the Agents to
obtain, from time to time (but not more frequently than monthly) an
update to the latest appraisal delivered to the Agents pursuant to this
Credit Agreement. All such appraisals shall be conducted and made at
the expense of the Borrowers.
(c) Upon the reasonable request of any Agent, the Borrowers
will obtain and deliver to the Agents, or, if the Agents so elect, will
cooperate with the Agents in the Agents' obtaining, any other report of
an appraiser or appraisers satisfactory to the Agents (which may be
affiliated with any Agent or one of the Lenders) with respect to the
other assets of any of the Borrowers. All such appraisals shall be
conducted and made at the expense of the Borrowers.
(d) The Borrowers will cooperate with the Agents in the
Agents' obtaining, as soon as practicable and in any event by January
15, 2003, (i) a report of an auditor, financial advisor, legal advisor
or other professional satisfactory to the Agents (which may be
affiliated with any Agent or one of the Lenders) or (ii) other evidence
satisfactory to the Agents in their sole discretion, with respect to
the Borrowers' ownership of Eligible Rental Equipment included in
Borrowing Base Reports, free of Liens other than Permitted Liens
specified in ss.11.2(b) or (e) and the Lien in favor of the
Administrative Agent. The report and all related investigations shall
be at the expense of the Borrowers. The Administrative Agent may in its
sole discretion extend the deadline of January 15, 2003 set forth
above.
10.15. COLLATERAL PRESERVATION. Each of the Borrowers shall take all
such further actions as the Administrative Agent may from time to time
reasonably request to preserve, protect, perfect and ensure the priority of the
Collateral, subject to Permitted Liens entitled to priority under applicable
law.
10.16. REAL ESTATE MATTERS. At the request of the Administrative Agent,
the Borrowers shall execute such instruments, documents and agreements, and take
such other action as shall be necessary to convey to the Administrative Agent, a
first priority mortgage in any or all real property owned by any of the
Borrowers, and in connection therewith, deliver such appraisals, environmental
assessments, surveys, reports and information as the Administrative Agent shall
require. At the request of the Administrative Agent, the Borrowers shall execute
-60-
such instruments, documents and agreements, and take such other action as shall
be necessary to convey to the Administrative Agent, a first priority mortgage in
any or all real property leased by any of the Borrowers, and in connection
therewith, deliver such appraisals, environmental assessments, surveys, reports
and information as the Administrative Agent shall reasonably require.
10.17. LANDLORDS AND WAREHOUSEMEN. At the request of the Administrative
Agent, each of the Borrowers shall obtain and deliver to the Administrative
Agent an agreement, in form and substance satisfactory to the Administrative
Agent, regarding each property leased by the Borrowers on which Inventory is
held or maintained and by each land landlord and each other third party in
possession of any of the Collateral consisting of Inventory. Each such agreement
delivered under this section shall include an acknowledgement of the first
priority of the Lien of the Administrative Agent in such Inventory together with
such other agreements as to access to such Collateral, free of any Lien or right
of distraint of such party in possession, as the Administrative Agent may
reasonably request.
10.18. FURTHER ASSURANCES. Each of the Borrowers will cooperate with
the Lenders and the Agents and execute such further instruments and documents as
the Lenders or any Agent shall reasonably request to carry out to their
satisfaction the transactions contemplated by this Credit Agreement and the
other Loan Documents.
11. CERTAIN NEGATIVE COVENANTS OF THE BORROWERS.
The Borrowers covenant and agree on a joint and several basis that, so
long as any Loan, Letter of Credit Obligation, Letter of Credit or Note is
outstanding or any Lender has any obligation to make any Loans or the Co-Agent
or any Lender has any obligation to incur any Letter of Credit Obligations:
11.1 RESTRICTIONS ON INDEBTEDNESS. None of the Borrowers will create,
incur, assume, guarantee or be or remain liable, contingently or otherwise, with
respect to any Indebtedness other than:
(a) Indebtedness to the Lenders and the Agents arising under
any of the Loan Documents;
(b) endorsements for collection, deposit or negotiation and
warranties of products or services, in each case incurred in the
ordinary course of business;
(c) the Prepetition Lender Debt and Indebtedness existing on
the date hereof and listed and described on SCHEDULE 11.1 hereto;
(d) Indebtedness of a Subsidiary of any of the Borrowers owing
to such Borrower;
(e) (i) purchase money Indebtedness incurred by any of the
Borrowers since the Filing Date in the ordinary course of business
consistent with past practices in an aggregate amount not to exceed
$10,000,000, (ii) Indebtedness arising since the Filing Date from the
-61-
consignment of Inventory to any of the Borrowers in an aggregate amount
not to exceed $5,000,000; PROVIDED, that the sum of all amounts
outstanding under clauses (i) and (ii) shall not exceed an aggregate
amount of $12,000,000 at any time; and (iii) to the extent that the
Administrative Agent has consented thereto, Indebtedness incurred by
any of the Borrowers, on terms and conditions substantially similar to
those set forth in the Form Master Financing Agreement, with respect to
inventory or equipment that was subject to Indebtedness or an operating
lease described on SCHEDULE 11.1(E) hereto; and
(f) Indebtedness with respect to the indemnification of
officers and directors of the Borrowers in the ordinary course of
business consistent with past practices.
11.2 RESTRICTIONS ON LIENS. None of the Borrowers will (i) create or
incur or suffer to be created or incurred or to exist any lien, encumbrance,
mortgage, pledge, charge, restriction or other security interest of any kind
upon any of its property or assets of any character whether now owned or
hereafter acquired, or upon the income or profits therefrom; (ii) transfer any
of such property or assets or the income or profits therefrom for the purpose of
subjecting the same to the payment of Indebtedness or performance of any other
obligation in priority to payment of its general creditors; (iii) acquire, or
agree or have an option to acquire, any property or assets upon conditional sale
or other title retention or purchase money security agreement, device or
arrangement; or (iv) suffer to exist for a period of more than thirty (30) days
after the same shall have been incurred any Indebtedness or claim or demand
against it that if unpaid might by law or upon bankruptcy or insolvency, or
otherwise, be given any priority whatsoever over its general creditors; PROVIDED
that the Borrowers may create or incur or suffer to be created or incurred or to
exist:
(a) liens in favor of the Borrowers on all or part of the
assets of Subsidiaries of the Borrowers securing Indebtedness owing by
Subsidiaries of the Borrowers to the Borrowers;
(b) liens to secure taxes, assessments and other government
charges in respect of obligations not overdue or liens to secure claims
for labor, material or supplies in respect of obligations not overdue;
(c) deposits or pledges made in connection with, or to secure
payment of, workmen's compensation, unemployment insurance, old age
pensions or other social security obligations or to secure statutory
obligations arising in the ordinary course of the Borrowers' businesses
consistent with past practices and other security deposits arising in
the ordinary course of the Borrowers' business consistent with past
practices;
(d) liens in respect of judgments or awards that have been in
force for less than the applicable period for taking an appeal so long
as execution is not levied thereunder or in respect of which the
-62-
Borrowers shall at the time in good faith be prosecuting an appeal or
proceedings for review and in respect of which a stay of execution
shall have been obtained pending such appeal or review;
(e) liens or claims of carriers, warehousemen, mechanics, and
materialmen, and other like liens, in existence less than 120 days from
the date of creation thereof in respect of obligations which are either
(i) not overdue or (ii) being contested in good faith by the Borrowers;
(f) encumbrances on Real Estate consisting of easements,
rights of way, zoning restrictions, restrictions on the use of real
property and defects and irregularities in the title thereto,
landlord's or lessor's liens under leases to which any of the Borrowers
is a party, and other minor liens or encumbrances none of which in the
opinion of the Borrowers interferes materially with the use of the
property affected in the ordinary conduct of the business of the
Borrowers, which defects do not individually or in the aggregate have a
materially adverse effect on the business of the Borrowers individually
or of the Borrowers on a consolidated basis;
(g) liens existing on the date hereof and listed on SCHEDULE
11.2 hereto and liens in favor of the Prepetition Agents and the
Prepetition Lenders securing the Prepetition Lender Debt;
(h) liens in favor of the Administrative Agent or the
Administrative Agent for the benefit of the Lenders and the Agents
under the Loan Documents;
(i) adequate protection Liens in favor of holders of Prior
Permitted Liens, ratable with the adequate protection Liens in favor of
Prepetition Administrative Agent for the benefit of the Prepetition
Lenders, to the extent permitted by the Final Order; and
(j) security interests in respect of Indebtedness permitted
pursuant to ss.11.1(e).
Nothing contained in this Section subordinates the Liens in favor of the
Administrative Agent under the Security Documents or the Final Order to any
Permitted Lien that is not valid, perfected and entitled to priority over the
Administrative Agent's Liens under applicable law or that is avoidable under the
Bankruptcy Code. The Administrative Agent may, however, from time to time enter
into agreements with holders of purchase money and other Liens securing
Indebtedness permitted pursuant to ss.11.1(e) by which the Liens in favor of the
Administrative Agent securing the Obligations are subordinated to the Liens of
the holders in the applicable purchase money collateral, or the applicable
inventory or equipment referred to in ss.11.1(e)(iii), securing the Indebtedness
owed to the holders.
11.3 RESTRICTIONS ON INVESTMENTS. None of the Borrowers will make or
permit to exist or to remain outstanding any Investment except Investments in:
-63-
(a) marketable direct or guaranteed obligations of the United
States of America that mature within one (1) year from the date of
purchase by the Borrowers;
(b) demand deposits, certificates of deposit, bankers
acceptances and time deposits of any Lender or any United States banks
having total assets in excess of $1,000,000,000;
(c) securities commonly known as "commercial paper" issued by
a corporation organized and existing under the laws of the United
States of America or any state thereof that at the time of purchase
have been rated and the ratings for which are not less than "P 1" if
rated by Xxxxx'x and not less than "A 1" if rated by S&P; PROVIDED that
such Investment in such commercial paper otherwise permitted hereunder
shall be permitted if such commercial paper is rated either (i) not
less than "P 2" by Xxxxx'x and "A 1" by S&P or (ii) not less than "A 2"
by S&P and "P 1" by Xxxxx'x;
(d) Investments existing on the date hereof and listed on
SCHEDULE 11.3 hereto; and
(e) Investments with respect to Indebtedness permitted
byss.11.1(d) so long as such entities remain Subsidiaries of the
Borrowers.
11.4. DISTRIBUTIONS. None of the Borrowers will make any Distributions
other than Distributions to the Parent. No Borrower shall, or shall permit any
of its Subsidiaries to, create or permit to exist any restriction on the ability
of any of its Subsidiaries to pay dividends to the Parent.
11.5. MERGER, CONSOLIDATION AND DISPOSITION OF ASSETS.
11.5.1. MERGERS AND ACQUISITIONS. None of the Borrowers will
become a party to any merger or consolidation except the merger or
consolidation of one or more of the Subsidiaries of any Borrower with
and into such Borrower, with such Borrower being the surviving
corporation of such merger or consolidation; PROVIDED that, in each
case, no Default or Event of Default shall have occurred and be
continuing, or would result from such merger or consolidation. None of
the Borrowers will effect any asset acquisition or stock acquisition,
other than the acquisition of assets in the ordinary course of business
consistent with past practices.
11.5.2. DISPOSITION OF ASSETS. None of the Borrowers will
become a party to or agree to or effect any disposition of assets,
other than, so long as no Default or Event of Default has occurred and
is continuing, (a) true leases of Inventory, (b) sales of Specified
Resale Inventory, (c) dispositions of equipment or inventory by the
Borrowers pursuant to the Exchange Agent Agreement, and (d) up to the
total sum of $10,000,000 of dispositions of other assets since the
Closing Date, in each case in the ordinary course of business
consistent with past practices and for reasonably equivalent value.
-64-
11.6. SALE AND LEASEBACK. None of the Borrowers will enter into any
arrangement, directly or indirectly, whereby such Borrower shall sell or
transfer any property owned by it in order then or thereafter to lease such
property or lease other property that such Borrower intends to use for
substantially the same purpose as the property being sold or transferred.
11.7. COMPLIANCE WITH ENVIRONMENTAL LAWS. None of the Borrowers will,
(i) use any of the Real Estate or any portion thereof for the handling,
processing, storage or disposal of Hazardous Substances, other than in
compliance with all Environmental Laws and other applicable laws, (ii) cause or
permit to be located on any of the Real Estate any underground tank or other
underground storage receptacle for Hazardous Substances, except as described in
SCHEDULE 9.17, (iii) generate any Hazardous Substances on any of the Real
Estate, other than in compliance with all Environmental Laws and other
applicable laws, (iv) conduct any activity at any Real Estate or use any Real
Estate in any manner so as to cause a material release (i.e. releasing,
spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting,
escaping, leaching, disposing or dumping) or material threatened release of
Hazardous Substances on, upon or into the Real Estate or (v) otherwise conduct
any activity at any Real Estate or use any Real Estate in any manner that would
violate any Environmental Law in any material respect or bring such Real Estate
in violation in any material respect of any Environmental Law.
11.8. SUBORDINATED DEBT. Except pursuant to a Reorganization Plan that
has been confirmed by an order of the Bankruptcy Court with consent of the
Agents and the Lenders, none of the Borrowers will prepay, redeem, repurchase or
defease any of the Subordinated Debt. None of the Borrowers will, without the
prior written consent of the Administrative Agent, amend, supplement or
otherwise modify any of the terms of the Subordinated Debt or take any action
that would cause or permit the Obligations to fail to constitute senior
indebtedness to which the payment of the Subordinated Debt are subordinated.
11.9. EMPLOYEE BENEFIT PLANS. Except in accordance with the
Reorganization Plan that has been confirmed by an order of the Bankruptcy Court
with consent of the Agents and the Lenders, none of the Borrowers or any ERISA
Affiliate will
(a) engage in any "prohibited transaction" within the meaning
ofss.406 of ERISA orss.4975 of the Code which could result in a
material liability for any of the Borrowers; or
(b) permit any Guaranteed Pension Plan to incur an
"accumulated funding deficiency", as such term is defined in ss.302 of
ERISA, whether or not such deficiency is or may be waived; or
(c) fail to contribute to any Guaranteed Pension Plan to an
extent which, or terminate any Guaranteed Pension Plan in a manner
which, could result in the imposition of a lien or encumbrance on the
assets of any of the Borrowers pursuant to ss.302(f) or ss.4068 of
ERISA; or
-65-
(d) amend any Guaranteed Pension Plan in circumstances
requiring the posting of security pursuant to ss.307 of ERISA
or ss.401(a)(29) of the Code; or
(e) take any action which would result in the aggregate
benefit liabilities (with the meaning of ss.4001 of ERISA) of all
Guaranteed Pension Plans increasing by in excess of $250,000 (taking
into account the cumulative effect of any prior such actions).
11.10. BUSINESS ACTIVITIES. None of the Borrowers will engage directly
or indirectly (whether through Subsidiaries or otherwise) in any type of
business other than the businesses conducted by it on the date hereof.
11.11. FISCAL YEAR; FISCAL QUARTERS. None of the Borrowers will change
the date of the end of its fiscal year or any of its fiscal quarters from that
set forth in ss.9.4.1.
11.12. TRANSACTIONS WITH AFFILIATES. Except as set forth in SCHEDULE
11.12 or with the consent of the Administrative Agent, none of the Borrowers
will engage in any transaction with any Affiliate (other than for services as
employees, officers and directors), including any contract, agreement or other
arrangement providing for the furnishing of services to or by, providing for
rental of real or personal property to or from, or otherwise requiring payments
to or from any such Affiliate or, to the knowledge of the Borrowers, any
corporation, partnership, trust or other entity in which any such Affiliate has
a substantial interest or is an officer, director, trustee or partner.
11.13. BANK ACCOUNTS. None of the Borrowers will (i) establish any bank
accounts other than those listed on SCHEDULE 9.21 without the Administrative
Agent's prior written consent, (ii) violate directly or indirectly any Agency
Account Agreement with respect to such account, or (iii) deposit into any of the
payroll accounts listed on SCHEDULE 9.21 any amounts in excess of amounts
necessary to pay current payroll and related tax obligations from such accounts.
Upon the written consent of the Agents to the establishment of an additional
bank account pursuant to clause (i) of this ss.11.13, SCHEDULE 9.21 hereto will
be amended to reflect the addition of such bank account.
11.14. BANKRUPTCY CASES. None of the Borrowers will seek, consent or
suffer to exist (i) any modification, stay, vacation or amendment to the Final
Order, unless the Agents have consented to such modification, stay, vacation or
amendment in writing, (ii) a priority claim for any administrative expense or
unsecured claim against any of the Borrowers (now existing or hereafter arising
of any kind or nature whatsoever, including without limitation any
administrative expense of the kind specified in Section 503(b), 506(c) or 507(b)
of the Bankruptcy Code) equal or superior to the priority claim of the Agents
and the Lenders in respect of the Obligations, except for the Carve Out or (iii)
-66-
any Lien on any Collateral, having a priority equal or superior to the Lien in
favor of the Administrative Agent in respect of the Obligations, except for
Permitted Prior Liens and for purchase money Liens entitled to priority under
applicable law.
11.15. PREPETITION INDEBTEDNESS. The Borrowers shall not pay or
discharge, or cause to be paid or discharged, any Indebtedness of any Borrower
incurred before the Filing Date other than payments:
(a) approved by the Bankruptcy Court on or about the Filing
Date in connection the Borrowers' "first day orders",
(b) payments in respect of coverage for director and officer
liabilities and constituting the deductible amounts under applicable
director and officer insurance policies purchased by the Borrowers, to
the extent approved by the Bankruptcy Court and not exceeding the total
sum of $500,000,
(c) as required in the Reorganization Plan, on or about the
effective date of the Reorganization Plan,
(d) payments required to be made pursuant to an order of the
Bankruptcy Court in the Cases for adequate protection pursuant to the
Bankruptcy Code on account of Permitted Prior Liens, provided that in
the case of the Prepetition Lender Debt, this exception shall apply
only to adequate protection payments in respect of expenses approved by
the Final Order, or on account of other Liens primed pursuant to the
Final Order by the Liens securing the Obligations,
(e) as permitted by paragraph 4 of the Final Order,
(f) cure payments on any unexpired leases of real property,
and on other executory contracts, assumed by any of the Borrowers
pursuant to an order of the Bankruptcy Court in the Cases; or
(g) of severance and other employee related payments approved
by the Bankruptcy Court, or
(h) of Indebtedness incurred pursuant to Section 11.1(e)(iii)
of this Credit Agreement (including, without limitation, the incurrence
of such Indebtedness).
None of the Borrowers shall file any motion with the Bankruptcy Court in
accordance with Section 546(g) of the Bankruptcy Code seeking to return any
goods shipped to any of the Borrowers prior to the Filing Date, without the
Administrative Agent's consent in writing.
12. FINANCIAL COVENANTS OF THE BORROWERS.
-67-
The Borrowers covenant and agree on a joint and several basis that, so
long as any Loan, Letter of Credit Obligation, Letter of Credit or Note is
outstanding or any Lender has any obligation to make any Loans or the Co-Agent
or any Lender has any obligation to incur Letter of Credit Obligations:
12.1. MINIMUM ADJUSTED CONSOLIDATED EBITDA. The Borrowers' Adjusted
Consolidated EBITDA for the twelve-month period ending December 31, 2002 shall
be no less than $25,000,000. The Borrowers will not cause or permit Adjusted
Consolidated EBITDA for each period indicated in the table below to be less than
the amount set forth in the table opposite such period.
------------------------- -----------------------
Period Amount
------------------------- -----------------------
January 1, 2003 - ($6,000,000)
January 31, 2003
------------------------- -----------------------
January 1, 2003 - ($10,000,000)
February 28, 2003
------------------------- -----------------------
January 1, 2003 - ($9,000,000)
March 31, 2003
------------------------- -----------------------
February 1, 2003 - ($2,000,000)
April 30, 2003
------------------------- -----------------------
March 1, 2003 - $5,000,000
May 31, 2003
------------------------- -----------------------
12.2. CAPITAL EXPENDITURES. The Borrowers will not cause or permit the
aggregate amount of Capital Expenditures of the Borrowers made for any month
indicated in the table below to be greater than the amount set forth in the
table opposite such month; provided, however, that to the extent that the
Borrowers' actual Capital Expenditures for any given month are less than the
maximum permitted Capital Expenditures for such given month (with such
difference being referred to as the "CAPEX CARRY-FORWARD"), then the maximum
permitted Capital Expenditures for the next month will be increased by the
amount of such CapEx Carry-Forward.
--------------------- -----------------
Month Amount
--------------------- -----------------
January 2003 $3,951,800
--------------------- -----------------
February 2003 $3,564,800
--------------------- -----------------
March 2003 $3,701,800
--------------------- -----------------
April 2003 $1,990,800
--------------------- -----------------
May 2003 $1,744,600
--------------------- -----------------
-68-
12.3. LEASES. The Borrowers will not, as lessee, enter into, permit to
exist, or renew any agreements to rent or lease any Inventory if the aggregate
rental payments accrued and to accrue under all such agreements will exceed
$1,000,000 on an annual basis; PROVIDED that the agreements set forth on
Schedule 11.1(e), and any replacement leases for the same or substantially the
same Inventory (i) to the extent at existing or lower aggregate annual rental
payments, shall not be included in this calculation and (ii) to the extent at
greater annual rental payments than the replaced lease, the amount by which the
annual rental payments under such replacement lease exceed the annual rental
payments under the replaced lease shall be included in this calculation.
12.4. CUMULATIVE CASH FLOW. The Borrowers will not cause or permit
Cumulative Cash Flow for any period ending at the end of the month indicated in
the table below to be less than the amount set forth in the table opposite such
month.
--------------------------- -----------------------
Period Amount
--------------------------- -----------------------
January 1, 2003 - ($24,870,700)
January 31, 2003
--------------------------- -----------------------
January 1, 2003 - ($28,409,600)
February 28, 2003
--------------------------- -----------------------
January 1, 2003 - ($34,197,800)
March 31, 2003
--------------------------- -----------------------
February 1, 2003 - ($44,603,900)
April 30, 2003
--------------------------- -----------------------
March 1, 2003 - ($43,915,700)
May 31, 2003
--------------------------- -----------------------
13. CLOSING CONDITIONS.
The obligations of the Lenders to make the initial Loans under this
Credit Agreement, the obligations of the Co-Agent and the Lenders to incur any
Letter of Credit Obligations, and the obligations of the Lenders and the
Co-Agent to give effect to the transition provisions of ss.29 so that "Loans"
and "Letters of Credit" under and as defined in the Original DIP Credit
-69-
Agreement become Loans and Letters of Credit under this Credit Agreement, shall
be subject to the satisfaction of the following conditions precedent on or prior
to December 31, 2002:
13.1. FINAL ORDER AMENDMENT. The Bankruptcy Court shall have entered
the Final Order Amendment, and the Final Order shall be in full force and effect
and shall not have been amended, modified, stayed, or reversed. If either the
Final Order Amendment or the Final Order is the subject of a pending appeal in
any respect, none of the Final Order, the Final Order Amendment, the making of
the Loans, the issuance, extension or renewal of any Letters of Credit, "Loans"
and "Letters of Credit under and as defined in the Original DIP Credit Agreement
becoming Loans or Letters of Credit under this Credit Agreement, or the
performance by any of the Borrowers of any of the Obligations shall be the
subject of a presently effective stay pending appeal. The Borrowers, the Agents
and the Lenders shall be entitled to rely in good faith upon the Final Order
Amendment and the Final Order, notwithstanding objection thereto or appeal
therefrom by any interested party. The Borrowers, the Agents and the Lenders
shall be permitted and, at the election of the Agents and the Lenders, required
to perform their respective obligations in compliance with this Credit
Agreement, notwithstanding any such objection or appeal unless and for so long
as the Final Order Amendment or the Final Order has been stayed by a court of
competent jurisdiction. The Agents and the Lenders may, however, elect to defer
the Closing Date until such time as no objection or appeal is pending and the
period for lodging any objection or appeal has expired.
13.2. LOAN DOCUMENTS. Each of the Loan Documents shall have been duly
executed and delivered by the respective parties thereto, shall be in full force
and effect and shall be in form and substance satisfactory to each of the
Lenders. Each Lender shall have received a fully executed copy of each such
document.
13.3. CERTIFIED COPIES OF CHARTER DOCUMENTS. Each of the Lenders shall
have received from each of the Borrowers a copy, certified by a duly authorized
officer of such Person to be true and complete on the Closing Date, of each of
(i) its charter or other incorporation documents as in effect on such date of
certification, and (ii) its by-laws as in effect on such date.
13.4. CORPORATE ACTION. All corporate action necessary for the valid
execution, delivery and performance by each of the Borrowers of this Credit
Agreement and the other Loan Documents to which it is or is to become a party
shall have been duly and effectively taken, and evidence thereof satisfactory to
the Lenders shall have been provided to each of the Lenders.
13.5. INCUMBENCY CERTIFICATE. The Administrative Agent shall have
received from each of the Borrowers an incumbency certificate, dated as of the
Closing Date, signed by a duly authorized officer of such Borrower, and giving
the name and bearing a specimen signature of each individual who shall be
authorized: (i) to sign, in the name and on behalf of each such Borrower, each
-70-
of the Loan Documents to which such Borrower is or is to become a party; (ii) to
make Loan Requests; and (iii) to give notices and to take other action on its
behalf under the Loan Documents.
13.6. CERTIFICATES OF INSURANCE. The Administrative Agent shall have
received (i) a certificate of insurance from an independent insurance broker
dated as of the Closing Date, identifying insurers, types of insurance,
insurance limits, and policy terms, and otherwise describing the insurance
obtained in accordance with the provisions hereof and the Security Documents and
(ii) certified copies of all policies evidencing such insurance (or certificates
therefor signed by the insurer or an agent authorized to bind the insurer).
13.7. OPINIONS OF COUNSEL. Each of the Lenders and the Agents shall
have received a favorable legal opinion addressed to the Lenders and the Agents,
dated as of the Closing Date, in form and substance satisfactory to the Lenders
and the Agents, from counsel to the Borrowers and, to the extent requested by
the Administrative Agent, from local counsel.
13.8. PAYMENT OF FEES. The Borrowers shall have paid, or be
concurrently tendering, to the Co-Agent, for the accounts of the Lenders and the
Agents, as applicable, the fees to be paid on the Closing Date. The Borrowers
shall also have paid to the Co-Agent the amount of any fees and expenses for
which the Borrowers are responsible under ss.18.1 and to the Original DIP
Administrative Agent any interest, fees and expenses payable in accordance with
the terms of ss.29.
13.9. PERFECTION CERTIFICATES AND SEARCH RESULTS. The Administrative
Agent shall have received from each of the Borrowers a bring-down certificate
dated as of the Closing Date of the Perfection Certificate delivered by the
Borrowers to the Original DIP Administrative Agent or a new perfection
certificate dated as of the Closing Date, substantially in the form of the
Perfection Certificates previously delivered to the Original DIP Administrative
Agent and, except to the extent agreed in writing by the Administrative Agent to
be completed on a post-closing basis, the results of Uniform Commercial Code
searches with respect to the Collateral and the other assets of each of the
Borrowers, indicating no Liens other than Permitted Liens and otherwise in form
and substance satisfactory to the Administrative Agent.
13.10. VALIDITY OF LIENS. The Security Documents shall, upon entry of
the Final Order Amendment, be effective to create in favor of the Administrative
Agent and the Administrative Agent, as appropriate, for the benefit of the
Lenders and the Agents, a legal, valid and enforceable first priority (except
for Permitted Liens entitled to priority under applicable law) Lien upon the
Collateral. All filings, recordings, deliveries of instruments and other actions
necessary or desirable in the opinion of the Administrative Agent to protect and
preserve such Liens shall have been duly effected. The Administrative Agent
shall have received evidence thereof in form and substance satisfactory to the
Administrative Agent.
13.11. RESIGNATION OF FLEET AND WACHOVIA. Fleet shall have resigned as
the Original DIP Administrative Agent in accordance with the terms of ss.17.5 of
the Original DIP Credit Agreement. Wachovia shall have resigned as the Original
-71-
DIP Syndication Agent in accordance with the terms of ss.17.5 of the Original
DIP Credit Agreement.
13.12. FLEET ACCOUNT AGENCY AGREEMENTS; AMENDMENTS TO AGENCY ACCOUNT
AGREEMENTS. For each of the Borrowers' bank accounts with Fleet, including,
without limitation, the Concentration Account, the Borrowers and Fleet shall
have executed and delivered an Agency Account Agreement in form and substance
satisfactory to the Administrative Agent. The Borrowers shall deliver to the
Administrative Agent amendments to each of the Agency Account Agreements
reflecting the replacement of the Original DIP Administrative Agent with the
Administrative Agent and each such amendment shall be in form and substance
satisfactory to the Administrative Agent.
13.13. INITIAL BORROWING BASE CERTIFICATE; AVAILABILITY. The Agents
shall have received from the Borrowers the initial Borrowing Base Certificate
dated as of December 20, 2002. On December 20, 2002, the sum of (a) the
Borrowing Base LESS (b) the sum of (i) the Letter of Credit Obligations
(including those in respect of Existing Letters of Credit) and (ii) all Loans
outstanding, in each case including those to be issued or made on the Closing
Date, shall not be less than $35,000,000 (on a pro forma basis, with trade
payables being paid currently, and expenses and liabilities being paid in the
ordinary course of business and without acceleration of sales).
13.14. MINIMUM ADJUSTED EBITDA. The Borrowers' Adjusted Consolidated
EBITDA for the twelve-month period ending November 30, 2002 shall be no less
than $25,000,000.
13.15. APPRAISAL. The Borrowers, at their sole cost and expense, shall
have obtained and delivered to the Agents and the Lenders the appraisal dated
December 1, 2002 conducted and prepared by Ritchie Brothers, Inc. Such appraisal
shall be acceptable to the Agents and the Lenders.
13.16. NO MATERIAL ADVERSE CHANGE. Since November 1, 2002, (a) no
material adverse change shall have occurred, individually or in the aggregate,
in (i) the assets, liabilities, or financial condition of any of the Borrowers
or in the projections of the Borrowers delivered to the Agents or (ii) the
Collateral, and (b) there shall not have been any material increase in the
liabilities (which are not subject to compromise under the Reorganization Plan),
liquidated or contingent of the Borrowers or a material decrease in the assets
of the Borrowers.
13.17. CONSENT OF PREPETITION LENDERS. A consent of the Prepetition
Lenders, in form and substance satisfactory to the Administrative Agent, shall
have been duly executed and delivered by the Majority Lenders, and shall be in
full force and effect. The consent shall include, among other matters, the
agreement of the Prepetition Lenders to the deletion, in connection with this
Credit Agreement, of certain provisions in the Original DIP Credit Agreement,
including, without limitation those in ss.ss.2.10 and 3.2, which provided for
payments to made from the Concentration Account in respect of the Prepetition
Lender Debt.
-72-
13.18. TRANSITIONAL ARRANGEMENTS WITH FLEET. Fleet, the Syndication
Agent and the Co-Agent shall have entered into an agreement concerning
transitional arrangements with respect to the Existing Letters of Credit, the
Concentration Account and other cash management matters and certificates of
title for titled Collateral and such agreement shall be in form and substance
satisfactory to the Administrative Agent and the Co-Agent.
The Administrative Agent may in its discretion defer, and thereby waive as a
closing condition under this ss.13, the execution and delivery of one or more of
the Loan Documents (other than this Credit Agreement, the Notes and the Security
Agreement) or the execution, delivery or provision any of the documents or other
items to be executed and delivered or provided pursuant to ss.ss.13.6, 13.7,
13.9, and 13.10 (other than the first sentence) and the satisfaction of any
condition related thereto. In the event of such a deferral and waiver as to any
Loan Document or other document or item, the Borrowers agree to execute and
deliver such Loan Document or, as the case may be, execute and deliver or
provide such other document or item as soon as practicable following the Closing
Date.
14. CONDITIONS TO ALL BORROWINGS.
The obligations of the Lenders to make any Loan under this Credit
Agreement and the obligations of the Co-Agent and the Lenders to incur any
Letter of Credit Obligations under this Credit Agreement, in each case whether
on or after the Closing Date, and the obligations of the Lenders and the
Co-Agent to give effect to the transition provisions of ss.29 so that "Loans"
and "Letters of Credit" under and as defined in the Original DIP Credit
Agreement become Loans and Letters of Credit under this Credit Agreement on the
Closing Date, shall also be subject to the satisfaction of the following
conditions precedent:
14.1. FINAL ORDER; FINAL ORDER AMENDMENT. The Bankruptcy Court shall
have entered the Final Order Amendment, and the Final Order shall be in full
force and effect and shall not have been amended, modified, stayed, or reversed.
If either the Final Order Amendment or the Final Order is the subject of a
pending appeal in any respect, none of the Final Order, the Final Order
Amendment, the making of the Loans, the issuance, extension or renewal of any
Letters of Credit, "Loans" and "Letters of Credit under and as defined in the
Original DIP Credit Agreement becoming Loans or Letters of Credit under this
Credit Agreement, or the performance by any of the Borrowers of any of the
Obligations shall be the subject of a presently effective stay pending appeal.
The Borrowers, the Agents and the Lenders shall be entitled to rely in good
faith upon the Final Order Amendment and the Final Order, notwithstanding
objection thereto or appeal therefrom by any interested party. The Borrowers,
the Agents and the Lenders shall be permitted and, at the election of the Agents
and the Lenders, required to perform their respective obligations in compliance
with this Credit Agreement, notwithstanding any such objection or appeal unless
and for so long as the Final Order Amendment or the Final Order has been stayed
by a court of competent jurisdiction. The Agents and the Lenders may, however,
-73-
elect to defer the making of any Loans or the incurring of any Letter of Credit
Obligations hereunder until such time as no objection or appeal is pending and
the period for lodging any objection or appeal has expired.
14.2. REPRESENTATIONS TRUE; NO EVENT OF DEFAULT. Each of the
representations and warranties of any of the Borrowers contained in this Credit
Agreement, the other Loan Documents or in any document or instrument delivered
pursuant to or in connection with this Credit Agreement shall be true as of the
date as of which they were made and shall also be true at and as of the time of
the making of such Loan or the issuance of such Letter of Credit, with the same
effect as if made at and as of that time (except to the extent of changes
resulting from transactions contemplated or permitted by this Credit Agreement
and the other Loan Documents and to the extent that such representations and
warranties relate expressly to an earlier date) and no Default or Event of
Default shall have occurred and be continuing or would result from the making of
such Loan or the issuance of such Letters of Credit.
14.3. BORROWING BASE CERTIFICATE. The Agents shall have received the
most recent Borrowing Base Certificate required to be delivered to the Agents in
accordance with ss.10.4(h) and, if requested by any Agent, a Borrowing Base
Certificate dated within five (5) days of the Drawdown Date of such Loan or of
the date of issuance, extension or renewal of such Letter of Credit.
14.4. NO LEGAL IMPEDIMENT. No change shall have occurred in any law or
regulations thereunder or interpretations thereof that in the reasonable opinion
of any Lender would make it illegal for such Lender to make such Loan or to
incur any Letter of Credit Obligations.
14.5. GOVERNMENTAL REGULATION. Each Lender shall have received such
statements in substance and form reasonably satisfactory to such Lender as such
Lender shall require for the purpose of compliance with any applicable
regulations of the Comptroller of the Currency or the Board of Governors of the
Federal Reserve System.
14.6. PROCEEDINGS AND DOCUMENTS. All proceedings in connection with the
transactions contemplated by this Credit Agreement, the other Loan Documents and
all other documents incident thereto shall be reasonably satisfactory in
substance and in form to the Lenders and to the Agents and the Agents' Special
Counsel, and the Lenders, the Agents and such counsel shall have received all
information and such counterpart originals or certified or other copies of such
documents as any Agent or such counsel may reasonably request.
14.7. PAYMENT OF FEES. The Borrowers shall have paid all fees, expenses
and other amounts then due and owing on the Drawdown Date of such Loan or the
date of the issuance, extension or renewal of such Letter of Credit.
15. EVENTS OF DEFAULT; ACCELERATION; ETC.
-74-
15.1. EVENTS OF DEFAULT AND ACCELERATION. If any of the following
events ("EVENTS OF DEFAULT" or, if the giving of notice or the lapse of time or
both is required, then, prior to such notice or lapse of time, "DEFAULTS") shall
occur:
(a) any of the Borrowers shall fail to pay any principal of,
or interest on the Loans, the Letter of Credit Fee, commitment fee, or
other fee or expense hereunder when the same shall become due and
payable, whether at the stated date of maturity or any accelerated date
of maturity or at any other date fixed for payment;
(b) any of the Borrowers shall fail to comply with any of
their covenants contained in ss.10, 11 or 12;
(c) any of the Borrowers shall fail to perform any term,
covenant or agreement contained herein or in any of the other Loan
Documents (other than those specified elsewhere in this ss.15.1) and
such default shall continue for a period of ten (10) days after the
occurrence thereof;
(d) any representation or warranty of any of the Borrowers in
this Credit Agreement or any of the other Loan Documents or in any
other document or instrument delivered pursuant to or in connection
with this Credit Agreement shall prove to have been false in any
material respect upon the date when made or deemed to have been made or
repeated;
(e) any of the Borrowers shall default in the payment when due
of any principal of or interest on any postpetition Indebtedness, or
any pre-petition Indebtedness if, by order of the Bankruptcy Court
issued with respect to such pre-petition Indebtedness, the default
thereunder entitles the holder thereof to relief from the automatic
stay of ss.362 of the Bankruptcy Code, in excess of $250,000 in the
aggregate of such postpetition or pre-petition Indebtedness, or any
event specified in any note, agreement, indenture or other document
evidencing or securing any such postpetition Indebtedness shall occur
if the effect of such event is to cause, or (with the giving of notice
or the lapse of time or both) to permit the holder or holders of such
Indebtedness (or a trustee or agent on behalf of such holder or
holders) to cause such Indebtedness to become due, or to be prepaid in
full prior to its stated maturity; or any of the Borrowers shall
default in the payment when due of any amount in excess of $250,000 in
the aggregate under any postpetition Derivative Transaction, or any
event specified in any postpetition Derivative Transaction to which any
of the Borrowers is a party shall occur if the effect of such event is
to cause, or (with the giving of notice or the lapse of time or both)
to permit, termination or liquidation payments in respect of such
postpetition Derivative Transaction in excess of $250,000 to become
due;
(f) any of the Borrowers shall be enjoined from conducting any
part of its business as a debtor in possession, there shall occur any
act of terrorism or other "force majeure" event disrupting any material
portion of the businesses of the Borrowers, or there shall occur any
-75-
loss or change in any license or permit of any of the Borrowers, which
in each such case referred to in this clause (f) would reasonably be
expected to have a material adverse effect on the Borrowers, considered
as a whole;
(g) if any of the Loan Documents shall be cancelled,
terminated, revoked or rescinded; or the Administrative Agent's Lien on
any of the Collateral shall cease to be perfected or have the priority
contemplated by this Credit Agreement or the Final Order, or any action
at law, suit in equity or other legal proceeding to cancel, revoke,
rescind or otherwise challenge any of the Loan Documents or the Liens
securing the Obligations shall be commenced by any of the Borrowers; or
any court or any other Governmental Authority or agency of competent
jurisdiction shall make a determination that, or issue a judgment,
order, decree or ruling to the effect that, any one or more of the Loan
Documents is illegal, invalid or unenforceable in accordance with the
terms thereof;
(h) (i) any of the Borrowers or any ERISA Affiliate incurs any
liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV
of ERISA in an amount in excess of $250,000; (ii) any of the Borrowers
or any ERISA Affiliate is assessed withdrawal liability pursuant to
Title IV of ERISA by a Multiemployer Plan in an amount in excess of
$250,000; (iii) an ERISA Reportable Event, or a failure to make a
required installment or other payment (within the meaning of
ss.302(f)(1) of ERISA) in an amount in excess of $250,000 shall occur
and the Administrative Agent determines in its reasonable discretion
that such event could constitute grounds for the termination of such
Guaranteed Pension Plan by the PBGC, for the appointment by the
appropriate United States District Court of a trustee to administer
such Guaranteed Pension Plan or for the imposition of a lien in favor
of such Guaranteed Pension Plan; (iv) the appointment by a United
States District Court of a trustee to administer such Guaranteed
Pension Plan; or (v) the institution by the PBGC of proceedings to
terminate such Guaranteed Pension Plan;
(i) there shall occur any material damage to, or loss, theft
or destruction of any material item of Collateral which is not insured
or which is insured but as to which loss, theft or destruction, the
insurance proceeds relating thereto have not been paid to the Co-Agent
or the Administrative Agent, for the benefit of the Lenders and the
Agents, in accordance with the terms of the Security Documents;
(j) the Bankruptcy Court shall enter any order (i) amending,
supplementing, altering, staying, vacating, rescinding or otherwise
modifying the Final Order or any other order with respect to any of the
Cases affecting in any material respect this Credit Agreement (other
than the Final Order Amendment), (ii) appointing a chapter 11 trustee
or an examiner with enlarged powers relating to the operation of the
business (powers beyond those set forth in Section 1106(a)(3) and (4)
-76-
of the Bankruptcy Code) under Section 1106(b) of the Bankruptcy Code in
any of the Cases, (iii) dismissing any of the Cases or converting any
of the Cases to a chapter 7 case, or (iv) granting relief from the
automatic stay to any creditor holding or asserting a Lien or
reclamation claim on a material portion (i.e., more than $250,000 in
the aggregate) of the assets of any of the Borrowers or where the
deprivation of any of the Borrowers of such assets would reasonably be
expected to have a material adverse effect on the Borrowers, considered
as a whole;
(k) an application shall be filed by any of the Borrowers for
the approval of any other Superpriority Claim (exclusive of the
Superpriority Claim in favor of the Prepetition Lenders under the Final
Order) in any of the Cases which is PARI PASSU with or senior to the
claims of the Agents and the Lenders against any of the Borrowers
unless after giving effect to the transactions contemplated by such
application, all Obligations (whether contingent or otherwise) shall be
paid in full in cash and the Commitments shall be terminated), or there
shall arise any such Superpriority Claim;
(l) any of the Borrowers shall be unable to pay its
postpetition debts as they mature, shall fail to comply with any order
of the Bankruptcy Court in any material respect,
(m) the Borrowers shall make any adequate protection payments
in respect of expenses related to the Prepetition Lender Debt;
(n) there shall remain undischarged for more than thirty (30)
days any final postpetition judgment or execution action against any of
the Borrowers, or relief from the automatic stay of Section 362(a) of
the Bankruptcy Code shall be granted to any creditor or creditors of
any of the Borrowers with respect to assets having an aggregate value
in excess of $250,000 or where the deprivation of any of the Borrowers
of such assets would reasonably be expected to have a material adverse
effect on the Borrowers, considered as a whole;
(o) any of the Borrowers shall file a motion in any of the
Cases (i) except for the payment of payroll and payroll-related
expenses and as otherwise provided in the Final Order, to use cash
collateral of the Lenders under Section 363(c) of the Bankruptcy Code
without the Lenders' consent, (ii) to recover from any portions of the
Collateral any costs or expenses of preserving or disposing of such
Collateral under Section 506(c) of the Bankruptcy Code, other than
Permitted 506(c) Charges, to cut off rights in the Collateral under
Section 552(b) of the Bankruptcy Code, or (iii) to take any other
action or actions adverse to the Lenders or their rights and remedies
hereunder or under any of the other Loan Documents or the Lenders'
interest in any of the Collateral;
(p) a suit or action against any of the Lenders or the Agents
shall be commenced by any of the Borrowers, any federal, state
environmental protection or health and safety agency or any official
-77-
committee in any Case, which suit or action asserts any claim or legal
or equitable remedy contemplating subordination of any claim or Lien of
the Lenders or the Agents, and shall remain undismissed or unstayed for
thirty (30) days after its commencement without any preliminary relief
of the nature sought having been granted; and, with respect to any suit
or action by any such federal or state agency or official committee, a
preliminary order for relief or judgment or decree shall have been
entered in such suit or action against the Lenders or the Agents and,
in the case of a preliminary order, such preliminary order has not been
stayed within ten (10) days after its entry;
(q) (i) the failure of the Borrowers to file on or before
February 1, 2003 a Reorganization Plan supported in principle by the
Prepetition Agents and the Creditors' Committee, together with the
disclosure statement relating thereto or (ii) the failure of such
disclosure statement to be approved by the Bankruptcy Court on or
before March 1, 2003;
(r) the subordination terms of the Subordinated Debt or any
other prepetition subordination agreements in favor of any of the
Lenders shall not be enforceable by any of the Lenders or the Agents;
(s) the occurrence of an event of default or contempt under
the Final Order;
(t) Xxxxx Xxxx shall cease to serve as the Chief Executive
Officer of the Parent for any reason, unless, within thirty (30) days
following the date on which he ceases to serve, a new permanent chief
executive officer has been appointed and is serving who is reasonably
acceptable to the Agents; or
(u) a Change of Control shall occur;
then, and in any such event, so long as the same may be continuing, the
Administrative Agent may, and upon the request of the Required Lenders shall, by
notice in writing to the Borrowers declare all amounts owing with respect to
this Credit Agreement, the Notes and the other Loan Documents to be, and they
shall thereupon forthwith become, immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby expressly waived by each of the Borrowers.
15.2. TERMINATION OF COMMITMENTS. If any Event of Default shall have
occurred and be continuing, the Administrative Agent may and, upon the request
of the Required Lenders, shall, by notice to the Borrowers, terminate the unused
portion of the credit hereunder, and upon such notice being given such unused
portion of the credit hereunder shall terminate immediately and each of the
Lenders shall be relieved of all further obligations to make Loans and to incur
Letter of Credit Obligations hereunder. No termination of the credit hereunder
shall relieve any of the Borrowers of any of the Obligations.
-78-
15.3. REMEDIES.
(a) Upon the occurrence of an Event of Default, the
Administrative Agent shall provide the Borrowers, the holder of any
Lien, or the lessor of any goods, which has served upon the
Administrative Agent a request that the holder receive such notice, the
United States Trustee and the Creditors' Committee with five Business
Days prior notice to the exercise of remedies under this section and
under the Security Documents, which such notice will specify the Event
of Default and the basis therefor and will be given by the
Administrative Agent via facsimile to counsel to the Borrowers, the
holder of any Lien or lessor which has provided its facsimile number to
the Administrative Agent in the request described above, the United
States Trustee and counsel to the Creditors' Committee. During such
five Business Day notice period, the Borrowers have the right to seek
an emergency hearing before the Bankruptcy Court for the sole purpose
of determining whether an Event of Default has occurred; PROVIDED that
the Borrowers shall have no right to use or seek to use the Collateral
during such five Business Day notice period, except for the payment of
payroll and payroll-related expenses. Unless during such five Business
Day notice period the Bankruptcy Court determines that an Event of
Default has not occurred, upon the expiration of such five Business Day
notice period the Administrative Agent shall have relief from the
automatic stay and may foreclose on all or any portion of the
Collateral or otherwise exercise remedies against the Collateral
permitted by the Security Documents and other nonbankruptcy law,
including, without limitation, the exercise of rights of setoff and the
maintenance of cash collateral in an amount equal to 105% of the Letter
of Credit Obligations.
(b) In addition, at the expiration of any five Business Day
notice period referred to above, in case any one or more of the Events
of Default shall have occurred and be continuing, and whether or not
the Lenders shall have accelerated the maturity of the Loans pursuant
to ss.15.1, each Lender, if owed any amount with respect to the Loans
or other Obligations, may, and the Administrative Agent may, if
requested by the Required Lenders and in its sole discretion, on behalf
of the Lenders, proceed to protect and enforce its rights by suit in
equity, action at law or other appropriate proceeding, whether for the
specific performance of any covenant or agreement contained in this
Credit Agreement and the other Loan Documents or any instrument
pursuant to which the Obligations to such Lender are evidenced,
including as permitted by applicable law the obtaining of the EX PARTE
appointment of a receiver, and, if such amount shall have become due,
by declaration or otherwise, proceed to enforce the payment thereof or
any other legal or equitable right of such Lender. No remedy herein
conferred upon any Lender or any Agent or the holder of any Note is
intended to be exclusive of any other remedy and each and every remedy
shall be cumulative and shall be in addition to every other remedy
given hereunder or now or hereafter existing at law or in equity or by
statute or any other provision of law.
-79-
(c) The rights and remedies of the Administrative Agent under
this ss.15.3 as to any Collateral shall be subject the rights of any
other holder of a Lien in such Collateral to the extent that the Lien
of such other holder is entitled to priority over the Lien of the
Administrative Agent in such Collateral. The rights of such other
holder are those provided by the Final Order and by applicable
non-bankruptcy law.
15.4. DISTRIBUTION OF COLLATERAL PROCEEDS.
(a) In the event that, following the Termination Declaration
Date, any Agent or any Lender, as the case may be, receives any monies
in connection with the enforcement of any of the Security Documents, or
otherwise with respect to the realization upon any of the Collateral,
such monies shall be applied to the Obligations as follows:
(i) first, to the payment of, or (as the case may be)
the reimbursement of the Agents for or in respect of all
reasonable costs, expenses, disbursements and losses which
shall have been incurred or sustained by the Agents in
connection with the collection of such monies by any Agent,
for the exercise, protection or enforcement by any Agent of
all or any of the rights, remedies, powers and privileges of
any Agent under this Credit Agreement or any of the other Loan
Documents or in respect of the Collateral or in support of any
provision of adequate indemnity to the Agents against any
taxes or liens which by law shall have, or may have, priority
over the rights of the Agents to such monies;
(ii) second, to pay interest on, and then principal
of, Swing Line Loans;
(iii) third, to pay interest on the Loans then due
and payable;
(iv) fourth, if all of the Obligations have not been
declared due and payable, to any other Obligations then due
and payable;
(v) fifth, to pay the principal of the Loans (it
being understood that each such repayment shall be accompanied
by a permanent reduction in the Total Commitment (if then in
effect) in the amount of such repayment);
(vi) sixth, to cash collateralize Letters of Credit
in an amount equal to 105% of the Letter of Credit
Obligations;
(vii) seventh, to any other Obligations then due and
payable;
(viii) eighth, upon payment and satisfaction in full
or other provisions for payment in full satisfactory to the
-80-
Lenders and the Agents of all of the Obligations, to the
payment of any obligations required to be paid pursuant to
ss.9-608(a)(1)(c) or 9-615(a)(3) of the Uniform Commercial
Code; and
(ix) ninth, the excess, if any, shall be returned to
the Borrowers or to such other Persons as are entitled
thereto.
(b) (i) With respect to each type of Obligation owing to the
Lenders, such as interest, principal, fees and expenses, all payments
shall be made to the Lenders PRO RATA, and (ii) the Administrative
Agent may in its discretion make proper allowance on a PRO RATA basis
among the Lenders to take into account any Obligations not then due and
payable.
(c) None of the Agents and the Lenders shall be subject to
marshalling.
16. SHARING OF SET-OFFS, ETC.
Each of the Lenders agrees with each other Lender that if such Lender
shall receive from any of the Borrowers, whether by voluntary payment,
counterclaim, cross action, enforcement of the claim evidenced by the Notes held
by such Lender, by proceedings against any of the Borrowers at law or in equity
or by proof thereof in bankruptcy, reorganization, liquidation, receivership or
similar proceedings, or otherwise, and shall retain and apply to the payment of
the Note or Notes held by such Lender, any amount in excess of its ratable
portion of the payments received by all of the Lenders with respect to the Notes
held by all of the Lenders, such Lender will make such disposition and
arrangements with the other Lenders with respect to such excess, either by way
of distribution, PRO TANTO assignment of claims, subrogation or otherwise as
shall result in each Lender receiving in respect of the Notes held by it its
proportionate payment as contemplated by this Credit Agreement; PROVIDED that if
all or any part of such excess payment is thereafter recovered from such Lender,
such disposition and arrangements shall be rescinded and the amount restored to
the extent of such recovery, but without interest.
17. THE AGENTS.
17.1. ACCEPTANCE OF RESIGNATIONS.
(a) By execution of this Credit Agreement, the Lenders and the
Borrowers hereby accept the resignation of Fleet, as administrative
agent, and waive the 60-day notice requirement for such resignation set
forth in the Original DIP Credit Agreement. The Lenders hereby appoint,
and the Borrowers hereby accept the appointment of, General Electric
Capital Corporation, as the administrative agent for the Lenders under
this Credit Agreement.
(b) By execution of this Credit Agreement, the Lenders and the
Borrowers hereby accept the resignation of Wachovia, as syndication
agent, and waive the 60-day notice requirement for such resignation set
forth in the Original DIP Credit Agreement. The Lenders hereby appoint,
-81-
and the Borrowers hereby accept the appointment of, General Electric
Capital Corporation, as the syndication agent for the Lenders under
this Credit Agreement.
17.2. AUTHORIZATION.
(a) The Agents are authorized to take such action on behalf of
each of the Lenders and to exercise all such powers as are hereunder
and under any of the other Loan Documents and any related documents
delegated to the Agents, together with such powers as are reasonably
incident thereto, provided that no duties or responsibilities not
expressly assumed herein or therein shall be implied to have been
assumed by the Agents.
(b) The relationship between each Agent and each of the
Lenders is that of an independent contractor. The use of the term
"Agent" is for convenience only and such term is used to describe, as a
form of convention, the independent contractual relationship between
any Agent and each of the Lenders. Nothing contained in this Credit
Agreement or the other Loan Documents shall be construed to create an
agency, trust or other fiduciary relationship between any Agent and any
of the Lenders.
(c) As an independent contractor empowered by the Lenders to
exercise certain rights and perform certain duties and responsibilities
hereunder and under the other Loan Documents, each Agent is
nevertheless a "representative" of the Lenders as that term is defined
in Article 1 of the Uniform Commercial Code, for purposes of actions
for the benefit of the Lenders and the Administrative Agent with
respect to all collateral security and guaranties contemplated by the
Loan Documents. Such actions include the designation of the
Administrative Agent as "secured party", "mortgagee" or the like on all
financing statements and other documents and instruments, whether
recorded or otherwise, relating to the attachment, perfection, priority
or enforcement of any Liens in collateral security intended to secure
the payment or performance of any of the Obligations, all for the
benefit of the Lenders and the Agents.
(d) In addition, to the extent deemed necessary or advisable
by the Administrative Agent in order to receive and hold the security
interest contemplated by the Security Documents, but without conflict
with the provisions of ss.17.1(b), each of the Lenders hereby appoints
General Electric Capital Corporation, in its capacity as Administrative
Agent, and any successor Administrative Agent, to act as
trustee/mortgagee on its behalf and the Administrative Agent hereby
accepts such appointment. The provisions of this ss.17 shall apply to
such appointment as well.
17.3. EMPLOYEES AND AGENT. Each Agent may exercise its powers and
execute its duties by or through employees or agents and shall be entitled to
take, and to rely on, advice of counsel concerning all matters pertaining to its
rights and duties under this Credit Agreement and the other Loan Documents. Each
-82-
Agent may utilize the services of such Persons as such Agent in its sole
discretion may reasonably determine, and all reasonable fees and expenses of any
such Persons shall be paid by the Borrowers, subject to any limitations therefor
provided in ss.18.1.
17.4. NO LIABILITY. No Agent or nor any of its shareholders, directors,
officers or employees or any other Person assisting such Agent in its duties or
any agent or employee thereof, shall be liable for any waiver, consent or
approval given or any action taken, or omitted to be taken, in good faith by it
or them hereunder or under any of the other Loan Documents, or in connection
herewith or therewith, or be responsible for the consequences of any oversight
or error of judgment whatsoever, except that such Agent or such other Person, as
the case may be, may be liable for losses due to its willful misconduct or gross
negligence.
17.5. NO REPRESENTATIONS.
17.5.1. GENERAL. No Agent shall be responsible for the
execution or validity or enforceability of this Credit Agreement, the
Notes, the Letters of Credit, any of the other Loan Documents or any
instrument at any time constituting, or intended to constitute,
collateral security for the Obligations, or for the value of any such
collateral security or for the validity, enforceability or
collectability of any such amounts owing with respect to the Notes or
the Letters of Credit, or for any recitals or statements, warranties or
representations made herein or in any of the other Loan Documents or in
any certificate or instrument hereafter furnished to it by or on behalf
of any of the Borrowers, nor shall any Agent be bound to ascertain or
inquire as to the performance or observance of any of the terms,
conditions, covenants or agreements herein or in any instrument at any
time constituting, or intended to constitute, collateral security for
the Obligations or to inspect any of the properties, books or records
of any of the Borrowers. No Agent shall be bound to ascertain whether
any notice, consent, waiver or request delivered to it by any of the
Borrowers or any holder of any of the Notes shall have been duly
authorized or is true, accurate and complete. No Agent has made nor
does it now make any representations or warranties, express or implied,
nor does it assume any liability to the Lenders, with respect to the
credit worthiness or financial condition of any of the Borrowers. Each
Lender acknowledges that it has, independently and without reliance
upon any Agent or any other Lender, and based upon such information and
documents as it has deemed appropriate, made its own credit analysis
and decision to enter into this Credit Agreement.
17.5.2. CLOSING DOCUMENTATION, ETC. For purposes of
determining compliance with the conditions set forth in ss.13, each
Lender that has executed this Credit Agreement shall be deemed to have
consented to, approved or accepted, or to be satisfied with, each
document and matter either sent, or made available, by any Agent to
such Lender for consent, approval, acceptance or satisfaction, or
-83-
required thereunder to be consented to or approved by or acceptable or
satisfactory to such Lender, unless an officer of the Administrative
Agent active upon the Borrowers' account shall have received notice
from such Lender prior to the Closing Date specifying such Lender's
objection thereto and such objection shall not have been withdrawn by
notice to the Administrative Agent to such effect on or prior to the
Closing Date.
17.6. PAYMENTS.
17.6.1. PAYMENTS TO CO-AGENT. A payment by the Borrowers to
the Co-Agent hereunder or any of the other Loan Documents for the
account of any Lender shall constitute a payment to such Lender. The
Co-Agent agrees promptly to distribute to each Lender such Lender's PRO
RATA share of payments received by the Co-Agent for the account of the
Lenders except as otherwise expressly provided herein or in any of the
other Loan Documents.
17.6.2. DISTRIBUTION BY CO-AGENT. If in the opinion of the
Co-Agent the distribution of any amount received by it in such capacity
hereunder, under the Notes or under any of the other Loan Documents
might involve it in liability, it may refrain from making distribution
until its right to make distribution shall have been adjudicated by a
court of competent jurisdiction. If a court of competent jurisdiction
shall adjudge that any amount received and distributed by the Co-Agent
is to be repaid, each Person to whom any such distribution shall have
been made shall either repay to the Co-Agent its proportionate share of
the amount so adjudged to be repaid or shall pay over the same in such
manner and to such Persons as shall be determined by such court.
17.6.3. DELINQUENT LENDERS. Notwithstanding anything to the
contrary contained in this Credit Agreement or any of the other Loan
Documents, any Lender that fails (i) to make available to the Co-Agent
its PRO RATA share of any Loan or any Letter of Credit Obligation or
(ii) to comply with the provisions of ss.17 with respect to making
dispositions and arrangements with the other Lenders, where such
Lender's share of any payment received, whether by setoff or otherwise,
is in excess of its PRO rata share of such payments due and payable to
all of the Lenders, in each case as, when and to the full extent
required by the provisions of this Credit Agreement, shall be deemed
delinquent (a "DELINQUENT LENDER") and shall be deemed a Delinquent
Lender until such time as such delinquency is satisfied. A Delinquent
Lender shall be deemed to have assigned any and all payments due to it
from the Borrowers, whether on account of outstanding Loans, Letter of
Credit Obligations, interest, fees or otherwise, to the remaining
nondelinquent Lenders for application to, and reduction of, their
respective PRO RATA shares of all outstanding Loans and Letter of
Credit Obligations. The Delinquent Lender hereby authorizes the
Co-Agent to distribute such payments to the nondelinquent Lenders in
-84-
proportion to their respective PRO RATA shares of all outstanding Loans
and Letter of Credit Obligations. A Delinquent Lender shall be deemed
to have satisfied in full a delinquency when and if, as a result of
application of the assigned payments to all outstanding Loans and
Letter of Credit Obligations of the nondelinquent Lenders, the Lenders'
respective PRO RATA shares of all outstanding Loans and Letter of
Credit Obligations have returned to those in effect immediately prior
to such delinquency and without giving effect to the nonpayment causing
such delinquency.
17.7. HOLDERS OF NOTES. Each Agent may deem and treat the payee of any
Note as the absolute owner or purchaser thereof for all purposes hereof until it
shall have been furnished in writing with a different name by such payee or by a
subsequent holder, assignee or transferee.
17.8. INDEMNITY. The Lenders ratably agree hereby to indemnify and hold
harmless each Agent and its affiliates from and against any and all claims,
actions and suits (whether groundless or otherwise), losses, damages, costs,
expenses (including any expenses for which any Agent or such affiliate has not
been reimbursed by the Borrowers as required by ss.18), and liabilities of every
nature and character arising out of or related to this Credit Agreement, the
Notes, or any of the other Loan Documents or the transactions contemplated or
evidenced hereby or thereby, or any Agent's actions taken hereunder or
thereunder, except to the extent that any of the same shall be directly caused
by the such Agent's willful misconduct or gross negligence.
17.9. AGENT AS LENDER.
(a) In its individual capacity, each of General Electric
Capital Corporation, any successor Administrative Agent, any successor
Co-Agent and any successor Syndication Agent shall have the same
obligations and the same rights, powers and privileges in respect to
its Commitment and the Loans made by it, and as the holder of any of
the Notes, as it would have were it not also an Agent.
(b) Without limitation upon the foregoing, with respect to its
Commitment hereunder, GECC shall have the same rights and powers under
this Credit Agreement and the other Loan Documents as any other Lender
and may exercise the same as though it were not an Agent. The term
"Lender" or "Lenders" shall, unless otherwise expressly indicated,
include GECC in its individual capacity as lender hereunder. GECC and
its Affiliates may lend money to, invest in, and generally engage in
any kind of business with, any Borrower, any of their Affiliates and
any Person who may do business with or own Capital Stock of any
Borrower or any such Affiliate, all as if GECC were not an Agent and
without any duty to account therefor to the Lenders. GECC and its
Affiliates may accept fees and other consideration from any Borrower
for services without having to account for the same to the Lenders.
GECC has purchased certain claims and interests in the Parent and GECC
and its Affiliates are party to certain rental equipment leases with
certain of the Borrowers. Each Lender acknowledges the positions of
GECC as a Lender holding interests in the Loans, GECC as a holder of
-85-
claims and interests in the Parent, GECC and its Affiliates as
equipment lessors to the Borrowers and GECC as the Administrative
Agent, the Co-Agent and the Syndication Agent, and is entering into
this Credit Agreement with full knowledge thereof.
17.10. RESIGNATION. Any Agent may resign at any time by giving sixty
(60) days prior written notice thereof to the Lenders and the Borrowers. Upon
any such resignation, the Required Lenders shall have the right to appoint a
successor Agent, except as otherwise provided in ss.20.10. Unless a Default or
Event of Default shall have occurred and be continuing and except as otherwise
provided in ss.20.10, such successor Agent shall be reasonably acceptable to the
Borrowers. If no successor Agent shall have been so appointed by the Required
Lenders and shall have accepted such appointment within thirty (30) days after
the retiring Agent's giving of notice of resignation, then the retiring Agent
may, on behalf of the Lenders, appoint a successor Agent, which shall be a
financial institution having a rating of not less than A or its equivalent by
S&P. Upon the acceptance of any appointment as Agent hereunder by a successor
Agent, such successor Agent shall thereupon succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Agent, and the
retiring Agent shall be discharged from its duties and obligations hereunder.
After any retiring Agent's resignation, the provisions of this Credit Agreement
and the other Loan Documents shall continue in effect for its benefit in respect
of any actions taken or omitted to be taken by it while it was acting as Agent.
17.11. NOTIFICATION OF DEFAULTS AND EVENTS OF DEFAULT. Each Lender
hereby agrees that, upon learning of the existence of a Default or an Event of
Default, it shall promptly notify the Agents thereof. The Agents hereby agree
that upon receipt of any notice under this ss.17.11 they shall promptly notify
the other Lenders of the existence of such Default or Event of Default.
17.12. DUTIES IN THE CASE OF ENFORCEMENT. In case one or more Events of
Default have occurred and shall be continuing, and whether or not acceleration
of the Obligations shall have occurred, the Administrative Agent shall, if (i)
so requested by the Required Lenders and (ii) the Lenders have provided to the
Administrative Agent such additional indemnities and assurances against expenses
and liabilities as the Administrative Agent may reasonably request, proceed to
enforce the provisions of the Security Documents authorizing the sale or other
disposition of all or any part of the Collateral and exercise all or any such
other legal and equitable and other rights or remedies as it may have in respect
of such Collateral. The Required Lenders may direct the Administrative Agent in
writing as to the method and the extent of any such sale or other disposition,
the Lenders hereby agreeing to indemnify and hold the Administrative Agent,
harmless from all liabilities incurred in respect of all actions taken or
omitted in accordance with such directions, PROVIDED that the Administrative
Agent need not comply with any such direction to the extent that the
Administrative Agent reasonably believes the Administrative Agent's compliance
with such direction to be unlawful or commercially unreasonable in any
applicable jurisdiction.
18. EXPENSES AND INDEMNIFICATION.
-86-
18.1. EXPENSES. The Borrowers jointly and severally agree to pay (i)
the reasonable costs of producing and reproducing this Credit Agreement, the
other Loan Documents and the other agreements and instruments mentioned herein,
(ii) any taxes (including any interest and penalties in respect thereto) payable
by any Agent or any of the Lenders (other than taxes based upon any Agent's or
any Lender's net income) on or with respect to the transactions contemplated by
this Credit Agreement (the Borrowers hereby agreeing to jointly and severally
indemnify each Agent and each Lender with respect thereto), (iii) the reasonable
fees, expenses and disbursements of the Agents' Special Counsel, additional
special counsel to the Agents, any other counsel to any Agent and any local
counsel to the Agents incurred in connection with the preparation, execution,
delivery, syndication, administration or interpretation of the Loan Documents
and other instruments mentioned herein, any cash management documentation and
related matters, each closing hereunder, any amendments, modifications,
approvals, consents or waivers hereto or hereunder, the cancellation of any Loan
Document upon payment in full in cash of all of the Obligations and the
termination of the Commitments or pursuant to any terms of such Loan Document
providing for such cancellation, or services rendered in connection with
representing the Agents and the Lenders in the chapter 11 or 7 cases of the
Borrowers, (iv) the fees, expenses and disbursements of each of the Agents or
any of their affiliates incurred by such Agent or such affiliate in connection
with the preparation, syndication, administration or interpretation of the Loan
Documents and other instruments mentioned herein, including fees, expenses and
disbursements associated with collateral examination and appraisals and
environmental surveys, (v) all reasonable out-of-pocket expenses (including
without limitation reasonable attorneys' fees and costs, which attorneys may be
employees of any Lender or any Agent, and reasonable consulting, accounting,
appraisal, investment banking and similar professional fees and charges)
incurred by any Lender or any Agent in connection with (A) the enforcement of or
preservation of rights under any of the Loan Documents against any of the
Borrowers or the administration thereof after the occurrence of an Event of
Default and (B) any litigation, proceeding or dispute whether arising hereunder
or otherwise, in any way related to any Lender's or such Agent's relationship
with any of the Borrowers, (vi) all reasonable fees, expenses and disbursements
of any Lender or any Agent and their counsel incurred in connection with the
filing and recordation of the Administrative Agent's liens and security
interests pursuant to the Security Documents and with UCC searches, any fees,
costs and expenses and bank charges, including bank charges for returned checks,
incurred by any Agent or any Lender in establishing, maintaining or handling
agency accounts, lock box accounts, cash management arrangements and/or any
other accounts, agreements or arrangements for the collection of any of the
Collateral, and (viii) the reasonable fees and expenses of the advisor(s), if
any, retained by any Agent, including those retained in connection with the
chapter 11 or 7 cases of the Borrowers.
18.2. INDEMNIFICATION. (a) The Borrowers jointly and severally agree to
indemnify and hold harmless each of the Agents, its affiliates and the Lenders
and their respective directors, officers, employees, representatives and agents
(including the Agents and their affiliates when exercising discretionary rights
granted hereunder) from and against any and all claims, actions and suits
whether groundless or otherwise, and from and against any and all liabilities,
-87-
losses, damages and expenses of every nature and character arising out of this
Credit Agreement or any of the other Loan Documents or the transactions
contemplated hereby including, without limitation, (i) any actual or proposed
use by any of the Borrowers of the proceeds of any of the Loans or Letters of
Credit, (ii) any of the Borrowers entering into or performing this Credit
Agreement or any of the other Loan Documents, (iii) with respect to any of the
Borrowers and their respective properties and assets, the violation of any
Environmental Law, the presence, disposal, escape, seepage, leakage, spillage,
discharge, emission, release or threatened release of any Hazardous Substances
or any action, suit, proceeding or investigation brought or threatened with
respect to any Hazardous Substances (including, but not limited to, claims with
respect to wrongful death, personal injury or damage to property), or (iv)
except to the extent that any such liability, loss, damage or expense shall have
been finally determined by a court of competent jurisdiction to have been caused
by the gross negligence or willful misconduct of any Agent or a Lender, any
Agent or any Lender entering into any agency agreements or other arrangements
with respect to any lockbox accounts maintained by any of the Borrowers with any
Person, including any liability of any Agent or any Lender arising under any
indemnification obligations incurred pursuant to any of the foregoing, in each
case including, without limitation, the reasonable out-of-pocket fees and
disbursements of counsel and allocated costs of internal counsel incurred in
connection with any such investigation, litigation or other proceeding. In
litigation, or the preparation therefor, the Lenders and the Agents and their
affiliates shall be entitled to select their own counsel and, in addition to the
foregoing indemnity, the Borrowers agree to pay promptly the reasonable fees and
expenses of such counsel. If and to the extent that the obligations of the
Borrowers under this ss.18.2 are unenforceable for any reason, the Borrowers
hereby agree to make the maximum contribution to the payment in satisfaction of
such obligations which is permissible under applicable law.
(b) The Borrowers shall further jointly and severally indemnify the
Agents (and their affiliates) and the Lenders and hold the Agents (and their
Affiliates) and the Lenders harmless from and against any loss, cost or expense
incurred or sustained by such Agent (or such affiliate) or any Lenders (i) in
providing payroll, concentration account, lock box, collection, disbursement and
other cash management services to any of the Borrowers or (ii) in connection
with the transition arrangements with Fleet described in ss.13.19.
18.3. SURVIVAL. The covenants contained in this ss.18 shall survive
payment or satisfaction in full of all other Obligations and the termination of
the Commitments.
19. SURVIVAL OF COVENANTS, ETC.
All covenants, agreements, representations and warranties made herein,
in the Notes, in any of the other Loan Documents or in any documents or other
papers delivered by or on behalf of any of the Borrowers pursuant hereto shall
be deemed to have been relied upon by the Lenders and the Agents,
notwithstanding any investigation heretofore or hereafter made by any of them,
-88-
and shall survive the making by the Lenders of any of the Loans or the
incurrence by the Lenders of any Letter of Credit Obligations and the issuance,
extension or renewal of any Letters of Credit and shall continue in full force
and effect so long as any amount due under this Credit Agreement or the Notes or
any of the other Loan Documents remains outstanding or any Lender has any
obligation to make any Loans or any Lender or the Co-Agent has any obligation to
incur Letter of Credit Obligations, and for such further time as may be
otherwise expressly specified in this Credit Agreement. All statements contained
in any certificate, document, instrument or other paper delivered by any of the
Borrowers to any Lender or any Agent pursuant to or in connection with this
Credit Agreement or any of the other Loan Documents shall constitute
representations and warranties by such Borrower hereunder.
20. ASSIGNMENT AND PARTICIPATION.
20.1. CONDITIONS TO ASSIGNMENT BY LENDERS. Except as provided herein,
each Lender may assign to one or more Eligible Assignees all or a portion of its
interests, rights and obligations under this Credit Agreement (including all or
a portion of its Commitment Percentage and Commitment and the same portion of
the Loans at the time owing to it and the Notes held by it and its participating
interest in the risk related to any Letters of Credit); PROVIDED that (i) either
(a) such assignment is to another Lender or an affiliate, managed fund, or
managed account of the assigning Lender or (b) the Administrative Agent shall
have given its prior written consent to such assignment, which consent will not
be unreasonably withheld, (ii) each such assignment shall be of a constant, and
not a varying, percentage of all the assigning Lender's rights and obligations
under this Credit Agreement, (iii) each assignment shall be in a minimum amount
of $500,000 (or if less, the entire Commitment of the assigning Lender), and
(iv) the parties to such assignment shall execute and deliver to the
Administrative Agent, for recording in the Register (as hereinafter defined), an
Assignment and Acceptance, substantially in the form of EXHIBIT C hereto (an
"ASSIGNMENT AND ACCEPTANCE"), together with any Notes subject to such
assignment. Upon such execution, delivery, acceptance and recording, from and
after the effective date specified in each Assignment and Acceptance, which
effective date shall be at least five (5) Business Days after the execution
thereof (unless an earlier effective date is agreed to by the Administrative
Agent), (i) the assignee thereunder shall be a party hereto and, to the extent
provided in such Assignment and Acceptance, have the rights and obligations of a
Lender hereunder, and (ii) the assigning Lender shall, to the extent provided in
such assignment and upon payment to the Administrative Agent of the registration
fee referred to in ss.20.3, be released from its obligations under this Credit
Agreement.
20.2. CERTAIN REPRESENTATIONS AND WARRANTIES; LIMITATIONS; COVENANTS.
By executing and delivering an Assignment and Acceptance, the parties to the
assignment thereunder confirm to and agree with each other and the other parties
hereto as follows:
(a) other than the representation and warranty that it is the
legal and beneficial owner of the interest being assigned thereby free
and clear of any adverse claim, and that it has made arrangements with
the assignee Lender satisfactory to such assignor with respect to its
-89-
PRO RATA share of Letter of Credit Fees with respect to outstanding
Letters of Credit, the assigning Lender makes no representation or
warranty, express or implied, and assumes no responsibility with
respect to any statements, warranties or representations made in or in
connection with this Credit Agreement or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of this
Credit Agreement, the other Loan Documents or any other instrument or
document furnished pursuant hereto or the attachment, perfection or
priority of any security interest or mortgage;
(b) the assigning Lender makes no representation or warranty
and assumes no responsibility with respect to the financial condition
of the Borrowers or any other Person primarily or secondarily liable in
respect of any of the Obligations, or the performance or observance by
the Borrowers or any other Person primarily or secondarily liable in
respect of any of the Obligations or any of their obligations under
this Credit Agreement or any of the other Loan Documents or any other
instrument or document furnished pursuant hereto or thereto;
(c) such assignee confirms that it has received a copy of this
Credit Agreement, together with copies of the most recent financial
statements referred to in ss.9.4 and ss.10.4 and such other documents
and information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment and Acceptance;
(d) such assignee will, independently and without reliance
upon the assigning Lender, any 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 this Credit Agreement;
(e) such assignee represents and warrants that it is an
Eligible Assignee;
(f) such assignee appoints and authorizes each Agent to take
such action as agent on its behalf and to exercise such powers under
this Credit Agreement and the other Loan Documents as are delegated to
such Agent by the terms hereof or thereof, together with such powers as
are reasonably incidental thereto;
(g) such assignee agrees that it will perform in accordance
with their terms all of the obligations that by the terms of this
Credit Agreement are required to be performed by it as a Lender; and
(h) such assignee represents and warrants that it is legally
authorized to enter into such Assignment and Acceptance.
-90-
20.3. REGISTER. The Administrative Agent shall maintain a copy of each
Assignment and Acceptance delivered to it and a register or similar list (the
"REGISTER") for the recordation of the names and addresses of the Lenders and
the Commitment Percentages, and principal amount of the Loans owing to, and
Letter of Credit Obligations purchased by, the Lenders from time to time. The
entries in the Register shall be conclusive, in the absence of manifest error,
and the Borrowers, the Agents and the Lenders may treat each Person whose name
is recorded in the Register as a Lender hereunder for all purposes of this
Credit Agreement. The Register shall be available for inspection by the
Borrowers and the Lenders at any reasonable time and from time to time upon
reasonable prior notice. Upon each such recordation, the assigning Lender agrees
to pay to the Administrative Agent a registration fee in the sum of $5,000;
provided, however, that the foregoing fee shall not apply with respect to an
assignment to an affiliate, managed fund or managed account of the assigning
Lender.
20.4. NEW NOTES. Upon its receipt of an Assignment and Acceptance
executed by the parties to such assignment, together with each Note subject to
such assignment, the Administrative Agent shall (i) record the information
contained therein in the Register, and (ii) give prompt notice thereof to the
Borrowers and the Lenders (other than the assigning Lender). Within five (5)
Business Days after receipt of such notice, the Borrowers, at its own expense,
shall execute and deliver to the Administrative Agent, in exchange for each
surrendered Note, a new Note to the order of such Eligible Assignee in an amount
equal to the amount assumed by such Eligible Assignee pursuant to such
Assignment and Acceptance and, if the assigning Lender has retained some portion
of its obligations hereunder, a new Note to the order of the assigning Lender in
an amount equal to the amount retained by it hereunder. Such new Notes shall
provide that they are replacements for the surrendered Notes, shall be in an
aggregate principal amount equal to the aggregate principal amount of the
surrendered Notes, shall be dated the effective date of such Assignment and
Acceptance and shall otherwise be in substantially the form of the assigned
Notes. Within five (5) days of issuance of any new Notes pursuant to this
ss.20.4, the Borrowers shall deliver an opinion of counsel, addressed to the
Lenders and the Administrative Agent, relating to the due authorization,
execution and delivery of such new Notes and the legality, validity and binding
effect thereof, in form and substance satisfactory to the Lenders. The
surrendered Notes shall be cancelled and returned to the Borrowers.
20.5. PARTICIPATIONS. Each Lender may sell participations to one or
more Lenders or other entities in all or a portion of such Lender's rights and
obligations under this Credit Agreement and the other Loan Documents; PROVIDED
that (i) any such sale or participation shall not affect the rights and duties
of the selling Lender hereunder to the Borrowers and (ii) the only rights
granted to the participant pursuant to such participation arrangements with
respect to waivers, amendments or modifications of the Loan Documents shall be
the rights to approve waivers, amendments or modifications that would reduce the
principal of or the interest rate on any Loans, extend the term or increase the
-91-
amount of the Commitments of such Lender as it relates to such participant,
reduce the amount of any commitment fees or Letter of Credit Fees to which such
participant is entitled or extend the Termination Date.
20.6. DISCLOSURE. Each of the Borrowers agrees that in addition to
disclosures made in accordance with standard and customary banking practices any
Lender may disclose information obtained by such Lender pursuant to this Credit
Agreement to assignees or participants and potential assignees or participants
hereunder; PROVIDED that such assignees or participants or potential assignees
or participants shall agree (i) to treat in confidence such information unless
such information otherwise becomes public knowledge, (ii) not to disclose such
information to a third party, except as required by law or legal process and
(iii) not to make use of such information for purposes of transactions unrelated
to such contemplated assignment or participation.
20.7. ASSIGNEE OR PARTICIPANT AFFILIATED WITH THE BORROWERS. If any
assignee Lender is an Affiliate of the Borrowers, then any such assignee Lender
shall have no right to vote as a Lender hereunder or under any of the other Loan
Documents for purposes of granting consents or waivers or for purposes of
agreeing to amendments or other modifications to any of the Loan Documents or
for purposes of making requests to the Administrative Agent pursuant to ss.15.1
or ss.15.2, and the determination of the Required Lenders shall for all purposes
of this Credit Agreement and the other Loan Documents be made without regard to
such assignee Lender's interest in any of the Loans or Letter of Credit
Obligations. If any Lender sells a participating interest in any of the Loans to
a participant, and such participant is one of the Borrowers or an Affiliate of
one of the Borrowers, then such transferor Lender shall promptly notify the
Administrative Agent of the sale of such participation. A transferor Lender
shall have no right to vote as a Lender hereunder or under any of the other Loan
Documents for purposes of granting consents or waivers or for purposes of
agreeing to amendments or modifications to any of the Loan Documents or for
purposes of making requests to the Administrative Agent pursuant to ss.15.1 or
ss.15.2 to the extent that such participation is beneficially owned by one of
the Borrowers or any Affiliate of one of the Borrowers, and the determination of
the Required Lenders shall for all purposes of this Credit Agreement and the
other Loan Documents be made without regard to the interest of such transferor
Lender in the Loans or Letter of Credit Obligations to the extent of such
participation.
20.8. MISCELLANEOUS ASSIGNMENT PROVISIONS. Any assigning Lender shall
retain its rights to be indemnified pursuant to ss.18 with respect to any claims
or actions arising prior to the date of such assignment. If any assignee Lender
is not incorporated under the laws of the United States of America or any state
thereof, it shall, prior to the date on which any interest or fees are payable
hereunder or under any of the other Loan Documents for its account, deliver to
the Borrowers and the Agents certification as to its exemption from deduction or
withholding of any United States federal income taxes. Anything contained in
this ss.20 to the contrary notwithstanding, any Lender may at any time pledge
-92-
all or any portion of its interest and rights under this Credit Agreement
(including all or any portion of its Notes) to any (a) of the twelve Federal
Reserve Banks organized under ss.4 of the Federal Reserve Act, 12 U.S.C. ss.341
or (b) to a lender to such Lender (or a trustee therefor) in connection with a
bona fide financing transaction. No such pledge or the enforcement thereof shall
release the pledgor Lender from its obligations hereunder or under any of the
other Loan Documents.
20.9. ASSIGNMENT BY BORROWERS. None of the Borrowers shall assign or
transfer any of its rights or obligations under any of the Loan Documents
without the prior written consent of each of the Lenders.
20.10. ASSIGNMENT OF AGENCY ROLES. At any time GECC shall be permitted
to assign (i) the role of Syndication Agent to any Person acceptable to the
Administrative Agent in its sole discretion which becomes a Lender hereunder as
an Eligible Assignee (the "NEW SYNDICATION AGENT") and (ii) the role of Co-Agent
to any Person acceptable to the Administrative Agent in its sole discretion
which becomes a Lender hereunder as an Eligible Assignee (the "NEW CO-AGENT").
After any such assignment, the New Syndication Agent or Co-Agent shall be
treated as the "Syndication Agent" or "Co-Agent," as the case may be, for all
purposes hereunder. The assignor Syndication Agent and Co-Agent shall retain
their rights to receive payment pursuant to ss.18 for expenses arising prior to
the date of such assignment, and to be indemnified pursuant to ss.ss.17.8 and 18
with respect to any claims or actions arising prior to the date of such
assignment.
21. NOTICES, ETC.
Except as otherwise expressly provided in this Credit Agreement, all
notices and other communications made or required to be given pursuant to this
Credit Agreement or the Notes shall be in writing and shall be delivered in
hand, mailed by United States registered or certified first class mail, postage
prepaid, sent by overnight courier, or sent by facsimile and confirmed by
delivery via courier or postal service, addressed as follows:
(a) if to the Borrowers, at NationsRent, Inc., 000 Xxxx Xxx Xxxx
Xxxxxxxxx, Xxxxx 0000, Xx. Xxxxxxxxxx, Xxxxxxx 00000, Attention: Xxxx Xxxxxxxx,
Executive Vice President, or at such other address for notice as the Borrowers
shall last have furnished in writing to the Person giving the notice;
(b) if to the Administrative Agent, at General Electric Capital
Corporation, 000 Xxxxxxx Xxxxx, 0xx Xxxxx, Xxxxxxx, Xxxxxxxxxxx, 00000,
Attention: Capital Markets Group, Xxxxxx X. Xxxxxxxx, Vice President, or such
other address for notice as the Administrative Agent shall last have furnished
in writing to the Person giving the notice;
(c) if to the Syndication Agent, at GECC Capital Markets, Inc., 000
Xxxxxxx Xxxxx, 0xx Xxxxx, Xxxxxxx, Xxxxxxxxxxx, 00000, Attention: Xxxxxx X.
Xxxxxxxx, Vice President, or such other address for notice as the Syndication
Agent shall last have furnished in writing to the Person giving the notice;
-93-
(d) if to the Co-Agent, at GECC Capital Markets, Inc., 000 Xxxxxxx
Xxxxx, 0xx Xxxxx, Xxxxxxx, Xxxxxxxxxxx, 00000, Attention: Xxxxxx X. Xxxxxxxx,
Vice President, or such other address for notice as the Co-Agent shall last have
furnished in writing to the Person giving the notice; and
(e) if to any Lender, at such Lender's address as set forth the Note
executed by the Borrowers and delivered to such Lender, or such other address
for notice as such Lender shall have last furnished in writing to the Person
giving the notice.
Any such notice or demand shall be deemed to have been duly given or
made and to have become effective (i) if delivered by hand, overnight courier or
facsimile to a responsible officer of the party to which it is directed, at the
time of the receipt thereof by such officer or the sending of such facsimile and
(ii) if sent by registered or certified first-class mail, postage prepaid, on
the third Business Day following the mailing thereof.
22. GOVERNING LAW.
THIS CREDIT AGREEMENT AND, EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED
THEREIN, EACH OF THE OTHER LOAN DOCUMENTS ARE CONTRACTS UNDER THE LAWS OF THE
STATE OF NEW YORK AND SHALL FOR ALL PURPOSES BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF SAID STATE OF NEW YORK (EXCLUDING THE LAWS, OTHER THAN
NEW YORK GENERAL OBLIGATIONS LAW SS.5-1401, APPLICABLE TO CONFLICTS OR CHOICE OF
LAW). EACH OF THE BORROWERS AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF THIS
CREDIT AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS MAY BE BROUGHT IN THE
BANKRUPTCY COURT AND/OR THE COURTS OF THE STATE OF NEW YORK OR ANY FEDERAL COURT
SITTING THEREIN AND CONSENTS TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURT AND
SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON THE BORROWERS BY MAIL AT THE
ADDRESS SPECIFIED IN SS.21. EACH OF THE BORROWERS HEREBY WAIVES ANY OBJECTION
THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT OR ANY SUCH
COURT OR THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT COURT.
23. HEADINGS.
The captions in this Credit Agreement are for convenience of reference
only and shall not define or limit the provisions hereof.
24. COUNTERPARTS.
This Credit Agreement and any amendment hereof may be executed in
several counterparts and by each party on a separate counterpart, each of which
when executed and delivered shall be an original, and all of which together
shall constitute one instrument. In proving this Credit Agreement it shall not
-94-
be necessary to produce or account for more than one such counterpart signed by
the party against whom enforcement is sought. Delivery by facsimile by any of
the parties hereto of an executed counterpart hereof or of any amendment or
waiver hereto shall be as effective as an original executed counterpart hereof
or of such amendment or waiver and shall be considered a representation that an
original executed counterpart hereof or such amendment or waiver, as the case
may be, will be delivered.
25. ENTIRE AGREEMENT, ETC.
The Loan Documents and any other documents executed in connection
herewith or therewith express the entire understanding of the parties with
respect to the transactions contemplated hereby. Neither this Credit Agreement
nor any term hereof may be changed, waived, discharged or terminated, except as
provided in ss.27.
26. WAIVER OF JURY TRIAL.
EACH PARTY HERETO HEREBY WAIVES ITS RIGHT TO A JURY TRIAL WITH RESPECT
TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS CREDIT
AGREEMENT, THE NOTES OR ANY OF THE OTHER LOAN DOCUMENTS, ANY RIGHTS OR
OBLIGATIONS HEREUNDER OR THEREUNDER OR THE PERFORMANCE OF SUCH RIGHTS AND
OBLIGATIONS. EXCEPT AS PROHIBITED BY LAW, EACH OF THE BORROWERS HEREBY WAIVES
ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY LITIGATION REFERRED TO IN THE
PRECEDING SENTENCE ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR
ANY DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES. EACH OF THE BORROWERS
(I) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY LENDER OR ANY
AGENT HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH LENDER OR SUCH AGENT
WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS AND
(II) ACKNOWLEDGES THAT THE AGENTS AND THE LENDERS HAVE BEEN INDUCED TO ENTER
INTO THIS CREDIT AGREEMENT, THE OTHER LOAN DOCUMENTS TO WHICH IT IS A PARTY BY,
AMONG OTHER THINGS, THE WAIVERS AND CERTIFICATIONS CONTAINED HEREIN.
27. CONSENTS, AMENDMENTS, WAIVERS, ETC.
Except as otherwise expressly provided in this Credit Agreement, any
consent or approval required or permitted by this Credit Agreement to be given
by the Lenders may be given, and any term of this Credit Agreement or of any
other instrument related hereto or mentioned herein may be amended, and the
performance or observance by the Borrowers of any terms of this Credit Agreement
-95-
or such other instrument or the continuance of any Default or Event of Default
may be waived (either generally or in a particular instance and either
retroactively or prospectively) with, but only with, the written consent of the
Borrowers and the written consent of the Required Lenders. Notwithstanding the
foregoing,
(a) the rate of interest on the Notes (other than interest
accruing pursuant to ss.7.5 following the effective date of
any waiver by the Required Lenders of the Default or Event of
Default relating thereto) or the amount of the closing fee,
the syndication fee, the commitment fee, the Agents' Fee or
Letter of Credit Fees may not be decreased without the written
consent of each Lender affected thereby;
(b) the principal amount of the Loans may not be decreased without
the written consent of each Lender affected thereby;
(c) the amount of the Commitments may not be increased without the
written consent of the Borrowers and of each Lender affected
thereby;
(d) the Collateral may not be released, other than as provided in
this Credit Agreement, without the written consent of all of
the Lenders;
(e) the Liens of the Administrative Agent shall not be
contractually subordinated, except as permitted by this Credit
Agreement, without the consent of all of the Lenders;
(f) no Obligation of the Borrowers for the payment of money
hereunder shall be released, without the written consent of
each Lender affected thereby;
(g) the Termination Date may not be postponed without the written
consent of each Lender affected thereby;
(h) none of the definitions of Borrowing Base, Eligible
Receivables, Eligible Rental Equipment, Orderly Liquidation
Value, Adjusted Consolidated EBITDA, Commitment Reserve or
Carve-Out may be amended, without the written consent of all
of the Lenders,
(i) this ss.27, the definitions of Required Lenders and Commitment
Percentage and any provisions expresslY requiring the consent
of all of the Lender may not be amended, without the written
consent of all of the Lenders, and
(j) ss.17 may not be amended without the written consent of each
Agent affected thereby.
No waiver shall extend to or affect any obligation not expressly waived or
impair any right consequent thereon. No course of dealing or delay or omission
on the part of any Agent or any Lender in exercising any right shall operate as
-96-
a waiver thereof or otherwise be prejudicial thereto. No notice to or demand
upon any of the Borrowers shall entitle any of the Borrowers to other or further
notice or demand in similar or other circumstances.
28. SEVERABILITY.
The provisions of this Credit Agreement are severable and if any one
clause or provision hereof shall be held invalid or unenforceable in whole or in
part in any jurisdiction, then such invalidity or unenforceability shall affect
only such clause or provision, or part thereof, in such jurisdiction, and shall
not in any manner affect such clause or provision in any other jurisdiction, or
any other clause or provision of this Credit Agreement in any jurisdiction.
29. TRANSITIONAL ARRANGEMENTS.
This Credit Agreement shall supersede the Original DIP Credit Agreement
in its entirety, except as provided in this ss.29. On the Closing Date, the
rights and obligations of the parties under the Original DIP Credit Agreement
and the "Notes" defined therein shall be subsumed within and be governed by this
Credit Agreement and the Notes; PROVIDED however, that any of the "Loans" (as
defined in Original DIP Credit Agreement) outstanding under the Original DIP
Credit Agreement shall, for purposes of this Credit Agreement, be Loans
hereunder, any "Unpaid Reimbursement Obligations" (as defined in the Original
DIP Credit Agreement) shall, for purposes of this Credit Agreement, be Letter of
Credit Obligations hereunder, and any of the Existing Letters of Credit shall,
for purposes of this Credit Agreement, be Letters of Credit hereunder. Upon its
receipt of the Notes to be delivered hereunder on the Closing Date, each Lender
will promptly return to the Borrowers, marked "Cancelled" or "Replaced", the
notes of the Borrowers held by such Lender pursuant to the Original DIP Credit
Agreement. All interest and all commitment, facility and other fees and expenses
owing or accruing under or in respect of the Original DIP Credit Agreement shall
be calculated as of the Closing Date (prorated in the case of any fractional
periods), and shall be paid on the Closing Date in accordance with the method
specified in the Original DIP Credit Agreement, as if the Original DIP Credit
Agreement were still in effect.
30. SYNDICATION.
(a) Until a Successful Syndication (as defined below) has
occurred, the Administrative Agent reserves the right, after
consultation with the Borrowers, to adjust the pricing and structure
set forth in this Credit Agreement and the other Loan Documents as the
Administrative Agent and the Arranger deem appropriate in order to
effect a Successful Syndication; PROVIDED that in no event shall any
interest rates be increased by a sum in excess of .5% per annum or any
up-front fees be increased by a sum in excess of .5% of the Total
Commitment or shall there be any material change in the structure. The
Borrowers hereby acknowledge and agree that it shall not be a material
-97-
change in the structure if the provisos at the end of clause (xviii) of
the definition of "Eligible Receivable," at the end of clause (xi) of
the definition of "Eligible Rental Equipment," and at the end of ss.2.8
are modified or deleted iN whole or in part.
(b) The Borrowers shall assist the Arranger with the
syndication of this facility. Such assistance shall include, but not be
limited to, (i) prompt assistance in the preparation of an information
memorandum and the verification of the completeness and accuracy of the
information contained therein; (ii) preparation of offering materials
and projections by the Borrowers and their advisors taking into account
the Obligations of the Borrowers hereunder; (iii) providing the
Arranger with all information reasonably deemed necessary by the
Arranger to successfully complete the syndication; (iv) confirmation as
to the accuracy and completeness of such offering materials,
information and projections; (v) participation of the Borrowers' senior
management in meetings and conference calls with potential lenders at
such times and places as the Arranger may reasonably request; and (vi)
using best efforts to ensure that the syndication efforts benefit from
the Borrowers' existing lending relationships.
(c) The Borrowers agree to execute and deliver any amendments
to this Credit Agreement or any of the other Loan Documents reasonably
requested by the Administrative Agent to effect a Successful
Syndication within the limitations provided in this ss.30.
(d) For purposes of this ss.30, "Successful Syndication" means
a syndication satisfactory to thE Administrative Agent and to the
Arranger, and after which GECC's Commitment does not exceed one-third
of the Total Commitment.
-98-
IN WITNESS WHEREOF, the undersigned have duly executed this Credit
Agreement as of the date first set forth above.
BORROWERS:
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: /s/ Xxxxx House
--------------------------------
Name: Xxxxx House
Title: Controller
NATIONSRENT OF TEXAS, LP
NATIONSRENT OF INDIANA, LP, each as
a debtor and a debtor in possession
By: NRGP, Inc., general partner
By: /s/ Xxxxx House
--------------------------------
Name: Xxxxx House
Title: Controller
ADMINISTRATIVE AGENT, SYNDICATION
AGENT, CO-AGENT, AND LENDER:
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Risk Manager
-99-
LEAD ARRANGER AND BOOK MANAGER:
GECC CAPITAL MARKETS GROUP, INC.
By: /s/ Xxxx X. Xxxxx
--------------------------------
Name: Xxxx X. Xxxxx
Title: Managing Director
-100-
SCHEDULE 1.1
COMMITMENT PERCENTAGES
LENDER COMMITMENT PERCENTAGE
------ ---------------------
General Electric Capital Corporation 100.000000%
EXHIBIT A
NOTE
$__________________ December __, 2002
FOR VALUE RECEIVED, the undersigned NATIONSRENT, INC., a Delaware
corporation and a debtor and a debtor in possession (the "PARENT"), and its
Subsidiaries party hereto, each a debtor and a debtor in possession
(collectively, the "BORROWERS"), hereby promise to pay on a joint and several
basis to the order of ___________________________ (the "LENDER") at the Lender's
office at ________________________________________________:
(a) prior to or on the Termination Date the principal
amount of _________________ Dollars ($________________) or, if less,
the aggregate unpaid principal amount of Loans advanced by the Lender
to the Borrowers pursuant to the Amended and Restated Debtor In
Possession Revolving Credit Agreement, dated as of December 31, 2002
(as amended and in effect from time to time, the "CREDIT AGREEMENT"),
among the Borrowers, the Lender and the other lending institutions
party thereto, General Electric Capital Corporation, as the
administrative agent for the Lenders (as successor to Fleet National
Bank) (the "ADMINISTRATIVE AGENT"), General Electric Capital
Corporation, as the syndication agent for the Lenders (the "SYNDICATION
AGENT"), General Electric Capital Corporation, as the co-agent for the
Lenders (the "CO-AGENT" and, together with the Administrative Agent and
the Syndication Agent, the "AGENTS"), and GECC Capital Markets Group,
Inc., as Lead Arranger and Book Manager;
(b) the principal outstanding hereunder from time to time
at the times provided in the Credit Agreement; and
(c) interest on the principal balance hereof from time to
time outstanding from the Closing Date under the Credit Agreement
through and including the maturity date hereof at the times and at the
rate provided in the Credit Agreement.
This Note and the other Notes issued pursuant to the Credit Agreement
(the "SUBSTITUTE NOTES") are issued in substitution for the unpaid principal
balances outstanding under all of the notes previously issued by the Borrowers
under the Original DIP Credit Agreement (the "ORIGINAL NOTES"), and which
Original Notes are outstanding as of the date hereof. Up to the full amount of
the principal balances of the Substitute Notes, the principal balances
outstanding under the Original Notes shall continue in all respects to be
outstanding under the Substitute Notes, and the Substitute Notes shall not be
deemed to evidence a novation or payment and refunding of any part of the
outstanding principal balances under the
-2-
Original Notes. Notwithstanding the dates thereof, the Substitute Notes carry
all of the rights to unpaid interest that were carried by the Original Notes
such that no loss of interest shall result from any such substitution.
This Note evidences borrowings under and has been issued by the
Borrowers in accordance with the terms of the Credit Agreement. Capitalized
terms which are used herein without definition and which are defined in the
Credit Agreement shall have the same meanings herein as in the Credit Agreement.
The Lender and any holder hereof is entitled to the benefits of the Credit
Agreement, the Security Documents and the other Loan Documents, and may enforce
the agreements of the Borrowers contained therein, and any holder hereof may
exercise the respective remedies provided for thereby or otherwise available in
respect thereof, all in accordance with the respective terms thereof.
The Borrowers irrevocably authorize the Lender to make or cause to be
made, at or about the time of the Drawdown Date of any Loan or the day of any
automatic conversion of a Letter of Credit Obligation to a Loan in accordance
with the Credit Agreement or at the time of receipt of any payment of principal
of this Note, an appropriate notation on the grid attached to this Note, or the
continuation of such grid, or any other similar record, including computer
records, reflecting the making of such Loan or (as the case may be) the receipt
of such payment. The outstanding amount of the Loans set forth on the grid
attached to this Note, or the continuation of such grid, or any other similar
record, including computer records, maintained by the Lender with respect to any
Loans shall be prima facie evidence of the principal amount thereof owing and
unpaid to the Lender, but the failure to record, or any error in so recording,
any such amount on any such grid, continuation or other record shall not limit
or otherwise affect the obligation of the Borrowers hereunder or under the
Credit Agreement to make payments of principal of and interest on this Note when
due.
The Borrowers have the right in certain circumstances and the
obligation under certain other circumstances to prepay the whole or part of the
principal of this Note on the terms and conditions specified in the Credit
Agreement.
If any one or more of the Events of Default shall occur, the entire
unpaid principal amount of this Note and all of the unpaid interest accrued
thereon may become or be declared due and payable in the manner and with the
effect provided in the Credit Agreement.
No delay or omission on the part of the Lender or any holder hereof in
exercising any right hereunder shall operate as a waiver of such right or of any
other rights of the Lender or such holder, nor shall any delay, omission or
waiver on any one occasion be deemed a bar or waiver of the same or any other
right on any further occasion.
Each of the Borrowers and every endorser and guarantor of this Note or
the obligation represented hereby waives presentment, demand, notice, protest
and all other demands and notices in connection with the delivery, acceptance,
performance,
-3-
default or enforcement of this Note, and assents to any extension or
postponement of the time of payment or any other indulgence, to any
substitution, exchange or release of collateral and to the addition or release
of any other party or person primarily or secondarily liable. Each of the
Borrowers further waive all suretyship defenses generally.
THIS NOTE AND THE OBLIGATIONS OF THE BORROWERS HEREUNDER SHALL FOR ALL
PURPOSES BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF
NEW YORK (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW). THE
BORROWERS AGREE THAT ANY SUIT FOR THE ENFORCEMENT OF THIS NOTE MAY BE BROUGHT IN
THE COURTS OF THE STATE OF NEW YORK OR ANY FEDERAL COURT SITTING THEREIN OR THE
BANKRUPTCY COURT AND CONSENT TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURTS AND
THE SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON THE BORROWERS BY MAIL AT
THE ADDRESSES SPECIFIED IN SS.21 OF THE CREDIT AGREEMENT. THE BORROWERS HEREBY
WAIVE ANY OBJECTION THAT THEY MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH
SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT COURT.
-4-
IN WITNESS WHEREOF, each of the undersigned has caused this Note to be
signed in its corporate name and its corporate seal to be impressed thereon by
its duly authorized officer as of the day and year 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:
-5-
Amount of Balance of
Amount Principal Paid Principal Notation
Date of Loan Or Prepaid Unpaid Made By:
---- ------- -------------- ---------- --------
------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------
EXHIBIT B
FORM OF LOAN REQUEST
______________ __, ____
To the Co-Agent
[____________________
_____________________
_____________________]
Attention: [______________]
Re: Loan Request
Ladies and Gentlemen:
Reference is hereby made to that certain Amended and Restated Debtor In
Possession Revolving Credit Agreement dated as of December 31, 2002 (as amended
and in effect from time to time, the "CREDIT AGREEMENT"), among NationsRent
Inc., as a debtor and a debtor in possession, and its Subsidiaries party
thereto, each as a debtor and a debtor in possession (collectively, the
"BORROWERS"), certain other lending institutions which are or may become parties
thereto from time to time (the "Lenders"), General Electric Capital Corporation,
as the administrative agent for the Lenders (as successor to Fleet National
Bank) (the "ADMINISTRATIVE AGENT"), General Electric Capital Corporation, as the
syndication agent for the Lenders (the "SYNDICATION AGENT"), and General
Electric Capital Corporation, as the co-agent for the Lenders (the "CO-AGENT"
and, together with the Administrative Agent and the Syndication Agent, the
"AGENTS"). Capitalized terms which are used herein without definition and which
are defined in the Credit Agreement shall have the same meanings herein as in
the Credit Agreement.
Pursuant to ss.2.6.1 of the Credit Agreement, we hereby request that a
Loan consisting in the principal amount of $________________________be made
on________________________, _____. We understand that this request is
irrevocable and binding on us and obligates us to accept the requested Loan on
such date.
We hereby certify (a) that the aggregate outstanding principal amount
of the Loans on today's date is $______________________, (b) that we will use
the proceeds of the
-2-
requested Loan in accordance with the provisions of the Credit Agreement, (c)
that each of the representations and warranties contained in the Credit
Agreement or in any document or instrument delivered pursuant to or in
connection with the Credit Agreement was true as of the date as of which it was
made and is true at and as of the date hereof (except to the extent of changes
resulting from transactions contemplated or permitted by the Credit Agreement
and the other Loan Documents and changes occurring in the ordinary course of
business that singly or in the aggregate are not materially adverse, and to the
extent that such representations and warranties relate expressly to an earlier
date) and (d) that no Default or Event of Default has occurred and is
continuing.
Very truly yours,
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:
EXHIBIT C
ASSIGNMENT AND ACCEPTANCE
Dated as of [_____________________, 200_]
Reference is hereby made to that certain Amended and Restated Debtor In
Possession Revolving Credit Agreement dated as of December 31, 2002 (as amended
and in effect from time to time, the "CREDIT AGREEMENT"), by and among (i)
NationsRent, Inc., a Delaware corporation and a debtor and a debtor in
possession and its Subsidiaries party thereto, each as a debtor and a debtor in
possession (collectively, the "BORROWERS"), (ii) the lending institutions
referred to therein as Lenders (collectively, the "LENDERS"), and (iii) General
Electric Capital Corporation, as administrative agent for the Lenders (as
successor to Fleet National Bank) (the "ADMINISTRATIVE AGENT"), General Electric
Capital Corporation, as the syndication agent for the Lenders (the "SYNDICATION
AGENT"), General Electric Capital Corporation, as the co-agent for the Lenders
(the "CO-AGENT' and, together with the Administrative Agent and the Syndication
Agent, the "AGENTS"). Capitalized terms which are used herein without definition
and which are defined in the Credit Agreement shall have the same meanings
herein as in the Credit Agreement.
[_________________________] (the "ASSIGNOR") and
[______________________________] (the "Assignee") hereby agree as follows:
1. ASSIGNMENT. Subject to the terms and conditions of this
Assignment and Acceptance, the Assignor hereby sells and assigns to the
Assignee, and the Assignee hereby purchases and assumes without recourse to the
Assignor, a $[______________________] interest in and to the rights, benefits,
indemnities and obligations of the Assignor under the Credit Agreement equal to
[________________________%] in respect of the Total Commitment immediately prior
to the Effective Date (as hereinafter defined).
2. ASSIGNOR'S REPRESENTATIONS. The Assignor (i) represents and
warrants that (A) it is legally authorized to enter into this Assignment and
Acceptance, (B) as of the date hereof, its Commitment is
$[____________________________], its Commitment Percentage is [______]%, the
aggregate outstanding principal balance of its Loans equals
$[______________________], the aggregate amount of its Letter of Credit
Obligations equals $[______________________] (in each case after giving effect
to the assignment contemplated hereby but without giving effect to any
contemplated assignments which have not yet become effective), and (C)
immediately after giving effect to all assignments which have not yet become
effective, the Assignor's Commitment Percentage will be sufficient to give
effect to this Assignment and Acceptance, (ii) makes no representation or
warranty, express or implied, and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the
Credit Agreement or any of the other Loan Documents or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Credit
-2-
Agreement, the other Loan Documents or any other instrument or document
furnished pursuant thereto or the attachment, perfection or priority of any
security interest or mortgage, other than that it is the legal and beneficial
owner of the interest being assigned by it hereunder free and clear of any claim
or encumbrance; (iii) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of any of the Borrowers
or any other Person primarily or secondarily liable in respect of any of the
Obligations, or the performance or observance by any of the Borrowers or any
other Person primarily or secondarily liable in respect of any of the
Obligations or any of its obligations under the Credit Agreement or any of the
other Loan Documents or any other instrument or document delivered or executed
pursuant thereto; and (iv) attaches hereto the Note delivered to it under the
Credit Agreement.
The Assignor requests that the Borrowers exchange the Assignor's Note
for a new Note payable to the Assignor and the Assignee as follows:
@@
Notes Payable to Amount of
the Order of: Note
---------------- ---------
Assignor $
Assignee $
@@
3. ASSIGNEE'S REPRESENTATIONS. The Assignee (i) represents and
warrants that (A) it is duly and legally authorized to enter into this
Assignment and Acceptance, (B) the execution, delivery and performance of this
Assignment and Acceptance do not conflict with any provision of law or of the
charter or by-laws of the Assignee, or of any agreement binding on the Assignee,
(C) all acts, conditions and things required to be done and performed and to
have occurred prior to the execution, delivery and performance of this
Assignment and Acceptance, and to render the same the legal, valid and binding
obligation of the Assignee, enforceable against it in accordance with its terms,
have been done and performed and have occurred in due and strict compliance with
all applicable laws; (ii) confirms that it has received a copy of the Credit
Agreement, together with copies of the most recent financial statements
delivered pursuant to ss.10.4 thereof and such other documents and information
as it has deemed appropriate to make its own credit analysis and decision to
enter into this Assignment and Acceptance; (iii) agrees that it will,
independently and without reliance upon the Assignor, any 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; (iv) represents and warrants that it is an
Eligible Assignee; (v) appoints and authorizes each Agent to take such action as
agent on its behalf and to exercise such powers under the Credit Agreement and
the other Loan Documents as are delegated to such Agent by the terms thereof,
together with such powers as are reasonably incidental thereto; (vi) agrees that
it will perform in
-3-
accordance with their terms all the obligations which by the terms of the Credit
Agreement are required to be performed by it as a Lender, as the case may be;
and (vii) acknowledges that it has made arrangements with the Assignor
satisfactory to the Assignee with respect to its pro rata share of Letter of
Credit Fees in respect of outstanding Letters of Credit.
4. EFFECTIVE DATE. The effective date for this Assignment and
Acceptance shall be_________________ __, ____ (the "EFFECTIVE DATE"). Following
the execution of this Assignment and Acceptance, each party hereto shall deliver
its duly executed counterpart hereof to the Administrative Agent for acceptance
by the Administrative Agent and recording in the Register by the Administrative
Agent. Schedule 1.1 to the Credit Agreement shall thereupon be replaced as of
the Effective Date by the Schedule 1.1 annexed hereto.
5. RIGHTS UNDER CREDIT
AGREEMENT. Upon such acceptance and recording, from and after the Effective
Date, (i) the Assignee shall be a party to the Credit Agreement and, to the
extent provided in this Assignment and Acceptance, have the rights and
obligations of a Lender thereunder, and (ii) the Assignor shall, with respect to
that portion of its interest under the Credit Agreement assigned hereunder,
relinquish its rights and be released from its obligations under the Credit
Agreement; provided, however, that the Assignor shall retain its rights to be
indemnified pursuant to ss.18.2 of the Credit Agreement with respect to any
claims or actions arising prior to the Effective Date.
6. PAYMENTS. Upon such acceptance of this Assignment and
Acceptance by the Administrative Agent and such recording, from and after the
Effective Date, the Administrative Agent shall make all payments in respect of
the rights and interests assigned hereby (including payments of principal,
interest, fees and other amounts) to the Assignee. The Assignor and the Assignee
shall make any appropriate adjustments in payments for periods prior to the
Effective Date by the Administrative Agent or with respect to the making of this
assignment directly between themselves.
7. GOVERNING LAW. THIS ASSIGNMENT AND ACCEPTANCE IS INTENDED TO
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK (WITHOUT REFERENCE TO CONFLICT OF LAWS).
8. COUNTERPARTS. This Assignment and Acceptance may be executed
in any number of counterparts which shall together constitute but one and the
same agreement.
-4-
IN WITNESS WHEREOF, intending to be legally bound, each of the
undersigned has caused this Assignment and Acceptance to be executed on its
behalf by its officer thereunto duly authorized, as of the date first above
written.
[ ]
By:
-----------------------
Name:
Title:
[ ]
By:
-----------------------
Name:
Title:
CONSENTED TO:
GENERAL ELECTRIC CAPITAL
CORPORATION, as Administrative Agent
By:
-----------------------
Name:
Title:
EXHIBIT D
FORM OF BORROWING BASE CERTIFICATE
We refer to that certain Amended and Restated Debtor In Possession
Revolving Credit Agreement dated as of December 31, 2002 (as the same may be
amended, restated, supplemented or otherwise modified and in effect from time to
time, the "CREDIT AGREEMENT"), by and among NationsRent, Inc., a Delaware
corporation and a debtor and a debtor in possession ("NATIONSRENT"), and its
Subsidiaries party thereto, each a debtor and a debtor in possession
(collectively, the "BORROWERS"), the lending institutions referred to therein as
the Lenders, General Electric Capital Corporation, as administrative agent for
the Lenders (as successor to Fleet National Bank) (the "ADMINISTRATIVE AGENT"),
General Electric Capital Corporation, as the syndication agent for the Lenders
(the "SYNDICATION AGENT"), and General Electric Capital Corporation, as the
co-agent for the Lenders (the "CO-AGENT" and, together with the Administrative
Agent and the Syndication Agent, the "AGENTS"). Each capitalized term contained
herein and not otherwise defined herein shall have the meaning given to such
term in the Credit Agreement.
The undersigned, in his capacity as the __________________ of
NationsRent, hereby certifies that the following information is true, correct
and complete as of ______________________, _, 200_.
1. Product of (i) (A) Adjusted Consolidated
EBITDA for the twelve full calendar
month period immediately prior to such
date or (B) in the case of a calculation
date prior to February 15, 2003,
$25,000,000 multiplied by (ii) 3 $___________
2. Total Receivables of Borrowers (book value) $___________
Less: Receivables (i) not solely owned by
a Borrower, (ii) not subject to a duly
perfected, first priority Lien in
favor of the Administrative Agent,
or (iii) subject to Liens other than
Permitted Liens ($___________)
Less: Receivables outstanding more than
60 days past original due date or
more than 90 days past the
Receivable's invoice date ($___________)
-2-
Less: Receivables not arising out of the
bona fide sale or true lease of goods
or rendition of services, or not the
valid, binding and legally
enforceable obligation of the
applicable Account Debtor ($___________)
Less: Receivables arising from the sale or
lease of goods that were not shipped
or delivered to such Account Debtor
on an absolute sale or true lease
basis, or were shipped or delivered
to such Account Debtor on a xxxx
and hold sale basis, a consignment
sale basis, a guaranteed sale basis,
a sale or return basis, or on the
basis of any other similar
understanding, or, in the case of
sale of goods, a material part of
such goods has been returned or
rejected, or in the case of the lease
of goods, the lease as to any
material part of such leased goods
has been rejected ($___________)
Less: Receivables owing by an Account
Debtor located outside of the
United States, or not payable in
Dollars ($___________)
Less: Receivables owing by (i) Account
Debtors who are insolvent or the
subject of any bankruptcy or
insolvency proceedings of any kind
or of any other pending proceeding
or action, which might have a
materially adverse effect on such
Account Debtor or (ii) Account
Debtors otherwise deemed
ineligible by the Agents for credit
for other reasons (subject, in the
case of clause (i) to certain
exceptions found in clause (vi) of
the definition of Eligible
Receivable) ($___________)
Less: Receivables owing by Account
-3-
Debtors in respect of which 30% or
more in face value of the
Receivables of such Account Debtor
or any of its Affiliates are not
deemed Eligible Receivables by
reason of being past due ($___________)
Less: Receivables owing by an Account
Debtor whose then-existing
Receivables owing to any of the
Borrowers exceed in face amount
10% of total Eligible Receivables of
all of the Borrowers; provided that
such Receivables cease to be
Eligible Receivables only in excess
of such limits ($___________)
Less: Receivables attributable to goods
not yet shipped or delivered or the
services giving rise to such
Receivable have not been performed
by such Borrower, or the Receivable
otherwise does not represent a final
sale or bona fide true lease with
respect to such goods or services ($___________)
Less: Receivables subject to any present
or contingent (or facts exist which
are the basis for any future) offset,
deduction or counterclaim, dispute,
or other defense on the part of the
Account Debtor, to the extent of
such offset, deduction, or
counterclaim, dispute or defense ($___________)
Less: Receivables not evidenced by an
invoice, lease, instrument or other
documentation in form reasonably
acceptable to the Agents ($___________)
Less: Receivables subject to any
enforceable prohibition (under
applicable law, by contract or
otherwise) against its assignment
or requiring notice of or consent to
any assignment to the Agents
(unless such notices and consents
-4-
have been given or received and
such Receivable has been duly and
validly assigned to the
Administrative Agent, for the
benefit of the Lenders and the
Agents) ($___________)
Less: Receivables arising from goods that
at the time of sale were subject to
Liens other than Permitted Liens ($___________)
Less: Receivables arising from the sale of
goods subject to any express or
implied representation or warranty
breached by Borrowers, or
Receivables subject to any Loan
Document with respect to which
any representation, warranty, or
covenant has been breached ($___________)
Less: The portion of Receivables arising
out of any transaction with any
creditor, tenant, lessor, or supplier
of or to the Borrowers which is not
in excess of any amounts owed by
the Borrowers to such creditor,
tenant, lessor, or supplier ($___________)
Less: Receivables arising out of any
transaction with any Affiliate of
the Borrowers ($___________)
Less: Receivables attributable to Account
Debtors located in a state or
jurisdiction denying creditors
access to its courts in the absence of
qualification to transact business in
such state or the filing of a notice of
business activities report or other
similar filing, unless the applicable
Borrower may qualify as a foreign
corporation authorized to transact
business in such state or
jurisdiction and gain access to such
courts (without incurring cost or
penalty viewed by the Agents as
significant) and such later
-5-
qualification cures any access to
courts to enforce payment of such
Receivable, or such Borrower has
filed such notice or similar filing
with the applicable state or
jurisdiction agency for the then
current year ($___________)
Less: Receivables which are determined
by the Agents, in their reasonable
discretion to be ineligible for any
reason, or which are attributable to
Account Debtors which are
determined by the Agents, in their
reasonable discretion to be
ineligible for any reason ($___________)
Less: Receivables which do not have such
other characteristics as the Agents
may require from time to time, in
their reasonable discretion in
accordance with the Credit
Agreement ($___________)
Less: Other Receivables that are not
Eligible Receivables ($___________)
3. Total Eligible Receivables of Borrowers
(book value) $___________
4. Line (3) multiplied by 0.75 $___________
5. Total Inventory of the Borrowers
consisting of owned rental equipment
(orderly liquidation value) $___________
Less: Inventory which is not owned by
the Borrowers or owned by the
Borrowers but not free and clear of
Liens or rights of other Persons,
other than (i) the Permitted Liens
specified in ss.11.2(b) and (e) of the
Credit Agreement and (ii) first
priority perfected Liens entitled to
priority under applicable law in
favor of the Administrative Agent
-6-
and the Prepetition Administrative
Agent ($___________)
Less: Inventory not located on premises
in the United ($ States of America ($___________)
Less: Inventory on consignment ($___________)
Less: Inventory covered by a negotiable
document of title, which document
has not been delivered to the
Administrative Agent or its
nominee with all necessary
endorsements and which has not
been endorsed in blank to the
Administrative Agent, free and
clear of all Liens, other than liens
in favor of the Prepetition
Administrative Agent ($___________)
Less: Inventory obsolete or otherwise
materially unfit, incapable of being
leased or lost or stolen ($___________)
Less: Inventory which consists of display
items, packing or shipping
materials, manufacturing supplies,
work-in-progress Inventory or
replacement parts ($___________)
Less: Inventory which is not of a type
rented or leased by or held for rent
or lease by the Borrowers to
customers in the ordinary course of
the Borrowers' business ($___________)
Less: Inventory which does not comply
with any of the representations and
warranties pertaining to Inventory
set forth in the Loan Documents ($___________)
Less: Inventory which comprises costs
associated with "freight-in" charges ($___________)
Less: Inventory which (i) consists of
Hazardous Substances (other than
-7-
gas, oil and lubricants used in the
ordinary course of operating and
maintaining such Inventory), (ii)
fails to comply with requirements of
applicable law or (iii) Inventory
which cannot be transported, sold
or leased in compliance with
applicable law without licenses
other than licenses that are readily
available ($___________)
Less: Inventory which is not covered by
casualty insurance reasonably
acceptable to the Agents and for
which the Administrative Agent
has been named loss payee ($___________)
Less: Inventory which does not have such
other characteristics as the Agents
may require from time to time, in
their reasonable discretion, in
accordance with the Credit Agreement ($___________)
Less: Other Inventory which is not
Eligible Rental Equipment ($___________)
6. Total Eligible Rental Equipment of
Borrowers (orderly liquidation value) $___________
7. Line (6) multiplied by 0.35 $___________
8. Total Eligible Receivables plus Eligible
Rental Equipment (Add Line (4) and Line
(7)) $___________
9. The lesser of Lines (1) and (8) $___________
10. Commitment Reserve plus any other
reserves established by the Agents $___________
11. Carve-Out ($3,500,000) $___________
12. Borrowing Base (Subtract Lines (10) and
(11) from Line (9)) $___________
13. Total Amount of Outstanding Loans and
Letter of Credit Obligations ($___________)
14. Remaining Availability under Borrowing
Base (Subtract Line (13) from the lesser
of the current Total Commitment and
Line (12)) $___________
-8-
In addition, the undersigned, in his capacity as the __________________
of NationsRent, hereby certifies that (i) attached hereto as Schedule 1 is a
true and correct list of each item of Eligible Rental Equipment as of the
Closing Date or, in the case of a Borrowing Base Certificate delivered after the
Closing Date, Eligible Rental Equipment added to the Borrowing Base since the
delivery to the Agents of the immediately preceding Borrowing Base Certificate,
including for each such item of Eligible Rental Equipment its serial number, and
(ii) in the case of a Borrowing Base Certificate delivered after the Closing
Date, attached hereto as Schedule 2 is a true and correct list of each item of
Inventory that has been deleted from the Borrowing Base since the delivery to
the Agents of the immediately preceding Borrowing Base Certificate, including
for each such item of Inventory its serial number.
The Agents acknowledge that, because of practical issues in the
Borrowers tracking sales of Inventory, lost Inventory and casualties to
Inventory, Inventory sold by the Borrowers in the ordinary course of business,
Inventory lost and casualties to Inventory may not be reported on Schedule 2
hereto as deletions from the Borrowing Base until the Borrowing Base Certificate
immediately following the end of the Relevant Period in which the sale, loss or
casualty has occurred. The term "Relevant Period" means (a) in the case of a
sale or loss of or casualty to Inventory occurring during the first fifteen days
of a calendar month, the period ending on the fifteenth day of the next
succeeding month and (b) in the case of a sale or loss of or casualty to
Inventory occurring during a calendar month after the first fifteen days of the
calendar month, the period ending on the last day of the next succeeding month.
IN WITNESS WHEREOF, the undersigned has executed and delivered this
certificate as of the ____ day of ________________,____.
NATIONSRENT, INC.
NATIONSRENT USA, INC.
NATIONSRENT TRANSPORTATION
SERVICES, INC.
NR DELAWARE, INC.
-9-
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:
EXHIBIT E
MASTER INVENTORY FINANCING, SECURITY, AND SETTLEMENT AGREEMENT
This Master Inventory Financing, Security, and Settlement Agreement,
dated as of **[_____________________________________________], 2002 (this
"Agreement"), is by and between **[___________________________________________,
__________], a **[_________________________________________ corporation]
("Lender"). NationsRent, Inc., a Delaware corporation ("Parent"), and its
subsidiaries party hereto (collectively with Parent, the "Borrowers").
Initially capitalized terms used herein and not otherwise defined have the
meanings ascribed to such terms in Section 11.1 of this Agreement.
BACKGROUND
A. On December 17, 2001 (the "Petition Date"). Borrowers filed for relief
with the United States Bankruptcy Court, District of Delaware (the
"Bankruptcy Court"), under chapter 11 of the Bankruptcy Code
(collectively, the "Cases").
B. Prior to the Petition Date, Parent (and/or certain of its
subsidiaries) and Lender entered into the [financing] [leasing]
arrangements described on Annex A hereto (together with any
amendments, modifications, and other documents related thereto, the
"Pre-Petition Agreements") with respect to, among other things, the
Inventory.
C. Lender has demonstrated to the Pre-Petition Agent and Borrowers that,
immediately prior to the Petition Date, Lender had a first priority
perfected security interest in the Inventory [if the Pre-Petition
Agreements were deemed to create a "security interest" under the UCC
and were not deemed to be "leases" under the UCC].
D. Borrowers and Lender desire to: (i) terminate the Pre-Petition
Agreements; (ii) cause each of the Borrowers and Lender to be fully
and finally released from any and all liabilities and obligations
arising under or in connection with the Pre-Petition Agreements; and
(iii) enter into a new financing arrangement with respect to the
Inventory, in each case, on the terms and conditions set forth in this
Agreement.
AGREEMENT
In consideration of the mutual covenants contained in this Agreement,
and for other good and valuable consideration, the receipt and sufficiency of
which is acknowledged, the parties agree as follows:
1. Termination and Release.
1.1 Termination of Pre-Petition Agreements. As of the Effective
Date, except with respect to the Bankruptcy Related Claims,
Borrowers and Lender agree that the Pre-Petition Agreements
are terminated and that no Person will be entitled to any
rights or claims arising under the Pre-Petition Agreements.
1.2 Release of Borrowers.
(a) In exchange for the Notes and other rights and
benefits arising under this Agreement, as of the
Effective Date, Lender, on behalf of itself and each
of its present and former directors, officers,
employees, agents, representatives, advisors, and
affiliates (collectively with Lender, the "Lender
Parties"), releases and discharges Borrowers and
each of their respective present and former
directors, officers, employees, agents,
representatives, advisors, and affiliates from any
and all claims, causes of action, liabilities, and
obligations (each, a "Claim") arising under or
related to the Pre-Petition Agreements **
[(including, without limitation, the Litigation)].
**[In addition, without limiting the generality of
the foregoing, as of the Effective Date, Lender
agrees to promptly dismiss the Litigation with
prejudice.]
(b) As of the Effective Date, Lender authorizes
Borrowers to file such UCC termination statements
and to take such other actions as may be reasonably
required or necessary to terminate Lender's security
interest and any other interests arising under the
Pre-Petition Agreements.
1.3 Release of Lender. In exchange for the Loans and the other
rights and benefits arising under this Agreement, as of the
Effective Date, each of the Borrowers, on behalf of itself
and each of its present and former directors, officers,
employees, agents, representatives, advisors, and affiliates,
releases and discharges the Lender Parties from any and all
Claims arising under or related to the Pre-Petition
Agreements **[(including, without limitation, the
Litigation)]. **[In addition, without limiting the generality
of the foregoing, as of the Effective Date, Borrowers agree
to promptly dismiss the Litigation with prejudice.]
1.4 Limitation. Notwithstanding anything in this Agreement to the
contrary, the provisions of Sections 1.1, 1.2, and 1.3 do not
apply to any and all Claims arising under this Agreement or
to the Bankruptcy Related Claims.
1.5 Bankruptcy Related Claims. Borrowers will take such actions
as may be commercially reasonable to ensure that the Plan of
Reorganization provides for the Bankruptcy Related Claims to
be treated as general unsecured claims.
1.6 Survival. Notwithstanding any provision in this Agreement to
the contrary, the provisions of this Article 1 will survive
the termination or expiration of this Agreement for any
reason whatsoever.
2. Loans.
2.1 General. On the Effective Date: (i) Lender will, subject to
the satisfaction or waiver (in writing) of the conditions
precedent specified in Section 3.1 of this Agreement, make
each of the loans (each, a "Loan") to Borrowers in the
respective original principal amounts set forth on Annex B
hereto; (ii) for each such Loan, Borrowers will issue to
Lender a Note with an original principal amount equal to the
applicable original principal amount set forth on Annex B
2
hereto; and (iii) Lender will issue to Borrowers a Xxxx of
Sale, conveying to Borrowers good and marketable title to all
of the Inventory subject to this Agreement, free and clear of
all Liens. Each Loan will be governed by the terms and
conditions of this Agreement and the Note evidencing such
Loan.
2.2 Use of Proceeds. Lender will credit the proceeds of each
given Loan to pay Lender the respective Settlement Value for
each item of Inventory.
2.3 Principal Amount and Maturity Date. The Settlement Value for
a given item of Inventory represents the principal amount of
the applicable Loan allocable to such item of Inventory. The
maturity date for each Loan is set forth on Annex B hereto.
2.4 Interest. Commencing on ** [January 2, 2003] (the
"Anticipated Interest Commencement Date"), the unpaid
principal amount of each Loan will accrue interest at a per
annum rate of interest equal to ___%; provided, however,
that, during the continuation of an Event of Default, a
premium of ___% per annum will be added to such rate of
interest. Such interest will be calculated on the basis of a
360-day year and will be payable quarterly in arrears
beginning on **[April 1, 2003] and each quarter thereafter on
the first Business Day of each **[July, October, January, and
April] through the maturity date of such Loan.
2.5 Principal Payment.
(a) Scheduled Payments. With respect to each given Loan,
subject to Sections 2.5(b) and (c) of this
Agreement: (i) Borrowers will make the scheduled
payments of principal as set forth on Schedule 1 to
the applicable Note; (ii) any such scheduled
principal payments will be: (A) applied to reduce
the outstanding principal balance of such Loan; and
(B) allocated on a pro rata basis computed with
respect to the then outstanding principal balance of
each item of Inventory relating to such Loan; and
(iii) Borrowers will make the scheduled payments of
accrued interest in accordance with Section 2.4 of
this Agreement; provided, however, that,
notwithstanding anything in any of the Transaction
Documents to the contrary, no interest will accrue
with respect to any of the Loans, and no payments of
principal or interest with respect to any of the
Loans will become due and owing, unless and until
the Effective Date occurs.
(b) Prepayment of Entire Loan. Borrowers have the right,
at their election, to prepay the outstanding
principal amount and accrued interest, if any, of
one or more of the Loans, as a whole, at any time or
from time to time, without penalty or premium.
(c) Prepayment With Respect to Item of Inventory.
Borrowers have the right, at their election, to
prepay the outstanding principal amount and accrued
interest, if any, of any item or items of Inventory,
at any time or from time to time, without penalty or
premium. To the extent that Borrowers make
3
such a prepayment with respect to any item of
Inventory: (i) any and all Obligations with respect
to such item of Inventory will be deemed to be fully
and completely discharged; and (ii) Lender will
apply such prepayment to reduce the outstanding
principal amount of the applicable Loan by reducing
each of the remaining principal payments by an
amount equal to such remaining principal payment
multiplied by the Payment Reduction Factor. The
"Payment Reduction Factor" means, with respect to
any given item of Inventory, an amount equal to: (A)
the outstanding principal amount relating to such
given item of Inventory with respect to the
applicable Loan, divided by: (B) the then
outstanding principal amount with respect to such
Loan (prior to giving effect to application of the
payment of the item of Inventory that is being
prepaid).
2.6 Refinancing in Relation to Other Equipment Financings. As of
the date of this Agreement, Borrowers are seeking financing
that may enable Borrowers to prepay the Notes (and the notes
of other lenders that have entered into agreements that are
similar to this Agreement with Borrowers (collectively with
this Agreement, the "Equipment Financings")). When
determining which of the Equipment Financings should be so
prepaid, Borrowers are likely to prepay Equipment Financings
in the relative order in which they were entered into;
provided, however, that, notwithstanding the foregoing,
Borrowers are under no obligation to do so.
2.7 Treatment in Plan of Reorganization. Since the maturity date
for each Loan is scheduled to occur after the likely
effective date of any Plan of Reorganization, Lender agrees,
notwithstanding ss. 1129(a)(9)(A) of the Bankruptcy Code, to
accept treatment for the Loans under the Plan of
Reorganization as provided in this Agreement so that the
terms of this Agreement will survive and govern the
relationship between the parties hereto following the
effective date of the Plan of Reorganization.
2.8 Reduction of Principal. Notwithstanding anything in the
Transaction Documents to the contrary, if the Effective Date
does not occur by the Anticipated Interest Commencement Date,
then, with respect to each Loan: (i) the original principal
amount will be reduced by the amount of any payments made by
Borrowers under the Pre-Petition Agreements as required by
Section 365(d)(10) of the Bankruptcy Code after the date of
this Agreement, but only to the extent that such payments
relate to the Inventory subject to such Loan (each, a
"Pre-Petition Agreement Payment"): and (ii) Schedule 1 of the
applicable Note will be modified accordingly so as to reduce
each of the scheduled principal payments for such Loan by an
amount equal to the aggregate amount of such Pre-Petition
Agreement Payments, divided by the number of scheduled
principal payments.
3. Conditions Precedent to Loans.
4
3.1 Notwithstanding any other terms of this Agreement, the
obligation of Lender to make the Loans is subject to the
fulfillment, satisfaction, or waiver (in writing) by Lender
of the following conditions immediately prior to the making
of the Loans:
(a) Representations and Warranties. Borrowers'
representations and warranties contained in this
Agreement shall be true and correct in all material
respects on the date the Loans are made.
(b) Insurance. Borrowers shall have provided Lender
evidence of insurance coverage with respect to the
Collateral that complies with Section 4.6 of this
Agreement.
(c) Non-Existence of Event of Default. There shall not
be an Event of Default.
(d) Corporate Action and Incumbency Certificate. Lender
shall have received a certified copy of the
corporate action authorizing the execution and
delivery of this Agreement and the other Transaction
Documents and the performance of the obligations
described herein and therein, together with an
incumbency certificate of the authorized signers.
(e) Intercreditor Acknowledgement. Lender shall have
received an Intercreditor Acknowledgement executed
by Borrowers, the Pre-Petition Agent, and the
Administrative Agent.
(f) Bankruptcy Court Approval. The Bankruptcy Court
shall have entered an order approving this
Agreement, and such order shall have become a final
order not subject to appeal, and the time for filing
any such appeal shall have expired.
(g) Notes. Borrowers shall have duly executed and
delivered to Lender each of the Notes.
3.2 Notwithstanding any other terms of this Agreement, the
Borrowers' Obligations are subject to the fulfillment,
satisfaction, or waiver (in writing) by Borrowers of the
following conditions immediately prior to the making of the
Loans:
(a) Xxxx of Sale. Borrowers shall have received a duly
executed Xxxx of Sale, in form and substance
reasonably satisfactory to Borrowers, along with
such other documents and instruments evidencing the
sale and transfer to Borrowers (or such Borrower as
the Borrowers may designate) of good and marketable
title to all of the Inventory subject to this
Agreement free and clear of all Liens, except for
Liens arising under this Agreement.
(b) Intercreditor Acknowledgement. The Borrowers shall
have received a copy of the Intercreditor
Acknowledgement executed by the Pre-Petition Agent,
Administrative Agent, and Lender.
5
(c) Bankruptcy Court Approval. The Bankruptcy Court
shall have entered an order approving this
Agreement, and such order shall have become a final
order not subject to appeal, and the time for filing
any such appeal shall have expired.
4. Security Interest; Insurance; Inspection.
4.1 Grant. As of the Effective Date, to secure Borrowers'
outstanding obligations under this Agreement and a given
Note, in each case, with respect to a given item of Inventory
(such obligations, with respect to such given item of
Inventory, being referred to as the "Obligations"), Borrowers
grant to Lender a security interest in such given item of
Inventory and the proceeds thereof (each, an item of
"Collateral"'); provided, however, that Lender agrees that:
(i) the Rental Contracts and the proceeds thereof related to
such given item of Inventory do not constitute Collateral;
and (ii) Lender will not claim an interest in any Rental
Contracts or the proceeds thereof.
4.2 Perfection of Security Interest. Borrowers hereby authorize
Lender to file, in the office of the Secretary of State of
the State of Delaware, or in any other applicable Uniform
Commercial Code filing office, one or more UCC financing
statements indicating the Collateral as the collateral.
Borrowers further agree to execute and deliver promptly to
Lender, concurrently with execution of this Agreement and at
any time or times hereafter at the reasonable request of
Lender, all assignments, affidavits, reports, notices, and
any and all other documents and agreements as Lender may
reasonably request, in form reasonably satisfactory to
Lender, to perfect and to at all times maintain the
perfection of Lender's security interests in the Collateral.
4.3 Covenants. So long as there are any Obligations outstanding
with respect to any given item of Collateral, Borrowers will:
(i) defend and indemnify Lender against the claims and
demands of all other persons claiming a Lien (other than a
Permitted Lien) in such item of Collateral; (ii) except as
rented, used, being repaired or serviced in the ordinary
course of business, locate such item of Collateral at one of
the Borrowers' places of business and not remove such item of
Collateral from the continental United States; (iii) on a
quarterly basis, provide Lender with a location report
setting forth, to the actual knowledge of Borrowers, where
the Collateral is located as of the date of such report; (iv)
not use such item of Collateral, and to the actual knowledge
of Borrowers, not permit such item of Collateral to be used,
for any unlawful purpose; (v) not conduct their respective
businesses under any other names that are not set forth on
Annex F (as the same may be updated from time to time by
Borrowers); and (vi) maintain such item of Collateral in good
condition and repair, ordinary wear and tear excepted.
4.4 Taxes. Borrowers agree to promptly pay all taxes, levies,
assessments, judgments, and charges of any kind (collectively
referred to as "Impositions") arising after the Effective
Date upon or relating to: (i) the Collateral; and (ii)
Borrowers' ownership or use of the Collateral unless: (A)
Borrowers are reasonably
6
contesting such Impositions in good faith; (B) such
Impositions are computed on the basis of Lender's income; or
(C) such Impositions have been caused by the intentional,
reckless, or negligent acts or omissions of Lender (with the
Impositions arising under clauses (A), (B), and (C) being
referred to as "Permitted Impositions").
4.5 Maintenance. Borrowers will, at their sole cost and expense,
perform all necessary or routinely scheduled maintenance on
the Inventory.
4.6 Insurance.
(a) So long as there are any Obligations outstanding,
Borrowers agree to, at their own expense: (i) keep
all of the Collateral insured against loss or damage
by fire, theft, explosion, and other risks; and (ii)
maintain public liability insurance, in each case,
in such amounts, with such companies, and under such
policies as shall be customary in the industry for
similarly situated companies.
(b) All policies obtained in accordance with this
Section 4.6 shall: (i) name Lender as a loss payee
or an additional insured, as the case may be; and
(ii) entitle Lender to at least thirty (30) days
advanced notice of cancellation. Borrowers will
furnish Lender with evidence of payment of premiums
on the insurance policies referred to in Section
4.6(a) of this Agreement, upon written request of
Lender, which notice may be made not more than once
per calendar year.
4.7 Inspection. Upon forty-eight (48) hours advance written
notice by Lender, Borrowers will, once per calendar quarter,
allow Lender, by or through any of its officers, agents,
attorneys or accountants, to inspect, at Lender's sole cost
and expense, the Collateral located at Borrowers' places of
business and to examine and make copies, at Lender's sole
cost and expense, of Borrowers' books and records located at
Borrowers' place of business related to the maintenance,
location, and condition of the Collateral. During the
continuation of an Event of Default, Borrowers will also
allow Lender (no less frequently than monthly) to inspect, at
Lender's sole cost and expense, and will reasonably cooperate
with Lender in any such inspections of, the Collateral at
Borrowers' places of business or where the Collateral may
then be located.
5. Borrowers' Representations And Warranties. Borrowers represent and
warrant to Lender, all of which representations and warranties shall
be continuing until all of the Loans are fully paid to Lender and
Borrowers' Obligations under this Agreement and the other Transaction
Documents are fully performed, as follows:
5.1 Existence and Authority. Each Borrower is a Delaware
corporation or limited partnership, as the case may be, and
has the corporate or limited partnership, as the case may be,
power and authority to execute this Agreement and all other
Transaction Documents.
7
5.2 Validity of Obligations and Agreement. To the extent required
by law, and subject to approval by the Bankruptcy Court,
Borrowers' Obligations to Lender, this Agreement, and all
other Transaction Documents have been duly authorized by
Borrowers, and are enforceable against Borrowers in
accordance with their respective terms.
5.3 Nature of Business. The nature of Borrowers' business is
primarily the rental of construction and industrial related
inventory and equipment.
5.4 Financial Information. To the extent applicable, all
financial information provided to Lender has been prepared
and will continue to be prepared in accordance with generally
accepted accounting principles, consistently applied, and
fairly presents the financial condition of Borrowers, in all
material respects.
5.5 Title and Encumbrances. Upon the Effective Date and the
receipt of the Xxxx of Sale for each item of Inventory,
Borrowers will own good and marketable title to each item of
Inventory subject to this Agreement, free and clear of all
Liens except for Permitted Liens.
5.6 No Litigation. As of the execution and delivery of this
Agreement, except for the Cases, there are no suits or
proceedings pending before any court, government agency,
arbitration panel, or administrative tribunal, which may
result in any material adverse change in the business, the
Collateral or financial condition of Borrowers.
5.7 No Misrepresentations. All representations and warranties in
this Agreement and the other Transaction Documents are true
and correct, in all material respects, as of the date given.
6. Borrowers' Affirmative Covenants. Until Borrowers' Obligations under
this Agreement and the other Transaction Documents are fully performed
and all Loans are fully repaid to Lender, Borrowers shall at all
times:
6.1 Financial Statements. If Parent is not required to file the
reports required by Section 13 or 15(d) of the Securities
Exchange Act of 1934, as amended:
(a) Within one hundred twenty (120) days after the end
of each fiscal year of Parent, furnish to Lender
consolidated audited financial statements of
Borrowers prepared and certified by Parent's
certified public accountant; and
(b) Within sixty (60) days after the end of each fiscal
quarter commencing after the Effective Date (other
than the fiscal quarter that contains the Parent's
fiscal year end), furnish to Lender the consolidated
financial statements of Borrowers.
6.2 Notice of Adverse Events. Promptly notify Lender of any
litigation or governmental proceeding against the Borrowers,
which is reasonably likely to
8
have a material adverse effect on this Agreement or the
Collateral. Borrowers shall also promptly provide Lender with
notice of any occurrence that is an Event of Default or would
become an Event of Default solely with the giving of notice,
passage of time, or both.
6.3 Maintain Business Existence and Operations. Do all things
reasonably necessary to keep in full force and effect
Borrowers' corporate existence, and to continue Borrowers'
business described in Section 5.3 of this Agreement.
6.4 Change in Place of Business or Name. Give Lender prompt
written notice of any change in: (i) its respective state of
incorporation; and (ii) any Borrower's name.
6.5 General Compliance with Law. At all times operate Borrowers'
business in material compliance with all applicable federal,
state, and local laws, ordinances and regulations to the
extent that, the failure to do so, would have a material
adverse effect on the Collateral.
7. Borrowers' Negative Covenants. So long as any Obligations are
outstanding with respect to a given item of Collateral, Borrowers
shall not:
7.1 Mortgage, assign, encumber, or sell any of the Collateral,
except: (i) for Permitted Liens; (ii) in the normal and
ordinary course of business; and (iii) as otherwise permitted
by this Agreement; provided, however, that if Borrowers sell
any item of Collateral, Borrowers will pay Lender the
outstanding Obligations in full with respect to such item of
Collateral within forty-five (45) days of such sale in
accordance with Section 2.5(c) of this Agreement; or
7.2 Except as provided in the Plan of Reorganization, sell
substantially all of its assets to, or merge with or into,
any other Person, without the prior written consent of
Lender, which shall not be unreasonably withheld or delayed.
8. Events of Default. The occurrence and continuation of any of the
following events after the Effective Date shall constitute an "Event
of Default" under this Agreement.
8.1 Failure to Pay Amounts Due. Borrowers' failure to make any
payments of principal or interest with respect to the Notes
within five (5) days after becoming due and owing, and such
failure continues for a period of ten (10) days after
Borrowers receive written notice from Lender of such failure.
8.2 Misrepresentation; False Financial Information. Any
statement, warranty or representation of Borrowers in
connection with or contained in this Agreement, the other
Transaction Documents, or any financial statements now or
hereafter furnished to Lender by or on behalf of Borrowers,
is false or misleading in any material respect.
8.3 Noncompliance with Agreements. Borrowers breach any material
covenant, term, condition or agreement stated in this
Agreement or the other Transaction
9
Documents, and such breach continues unremedied for a period
of thirty (30) days after Borrowers receive written notice
thereof from Lender.
8.4 Termination of Existence. Parent ceases to do business or
Parent is sold, dissolved, merged or liquidated, except as
provided in the Plan or Reorganization or as permitted by
Section 7.2 of this Agreement.
8.5 Attachments. Any Lien, to the extent the same does not
constitute a Permitted Lien, is issued against the Collateral
and is not removed within thirty (30) calendar days after
Parent is notified of such Lien, unless such Lien is being
contested in good faith and does not present a material risk
to Lender's interest in the Collateral.
8.6 Credit Agreement Default and Acceleration. The lenders under
the Credit Agreement or any successor or replacement
agreement have declared Borrowers to be in default and have
accelerated the indebtedness due thereunder.
9. Remedies. Upon the occurrence and continuance of any Event of Default
and the delivery of any required notice and the expiration of any
applicable cure period, Lender may exercise any of the following
remedies:
9.1 Acceleration. Lender may, at its option, and without further
demand or notice of any kind, declare all Obligations to be
immediately due and payable.
9.2 Termination. Terminate this Agreement and all other
Transaction Documents.
9.3 Possession and Disposition. Exercise the rights of a secured
party under the UCC to take possession and dispose of the
Collateral (provided that the proceeds of any such
dispositions are applied to the Obligations), and, unless
previously terminated under Section 9.2 of this Agreement,
terminate this Agreement and all other Transaction Documents
as of the date of disposition of the Collateral. If the
proceeds of disposition, after deducting all costs and
expenses incurred in connection with the recovery, repair,
storage, and disposition of the Collateral, are less than the
then outstanding Obligations, Borrowers will be liable for
the deficiency.
9.4 Other Remedies. Exercise any other remedy provided by law,
including the recovery of damages caused by Borrowers'
failure to perform or observe any covenant or condition of
this Agreement or any other Transaction Document.
9.5 Remedies Cumulative. The remedies provided for in this
Agreement are cumulative and not exclusive, and Lender may
exercise any remedies available to it at law or in equity,
and as are provided in this Agreement and the other
Transaction Documents.
9.6 No Waiver. No delay or failure of Lender in exercising any
right, remedy, power or privilege hereunder shall affect that
right, remedy, power or privilege, nor shall any single or
partial exercise thereof preclude the exercise of any other
right,
10
remedy, power or privilege. No delay or failure of Lender to
demand strict adherence to the terms of this Agreement shall
be deemed to constitute a course of conduct inconsistent with
Lender's right to at any time, before or after any Event of
Default, demand strict adherence to the terms of this
Agreement and the other Transaction Documents.
10. Miscellaneous.
10.1 Further Action. Borrowers and Lender agree, from time to time
upon the other party's reasonable request, to make, execute,
acknowledge, and deliver to such party such further and
additional instruments, documents, and agreements, and to
take such further action as may be reasonably required to
carry out the intent and purpose of this Agreement.
10.2 GOVERNING LAW, PARTIAL ILLEGALITY. REGARDLESS OF THE
LOCATION OF THE EXECUTION OF THIS AGREEMENT, THE PARTIES
EXPRESSLY AGREE THAT THIS AGREEMENT AND THE OTHER TRANSACTION
DOCUMENTS SHALL BE INTERPRETED AND THE RIGHTS OF THE PARTIES
DETERMINED UNDER THE LAWS OF THE STATE OF DELAWARE. SHOULD
ANY PART, TERM, OR PROVISION OF THIS AGREEMENT BE ADJUDGED
ILLEGAL OR IN CONFLICT WITH ANY LAW OF THE UNITED STATES OR
STATE OF DELAWARE, THE VALIDITY OF THE REMAINING PORTION OR
PROVISIONS OF THE AGREEMENT SHALL NOT BE AFFECTED. NOTHING
CONTAINED IN THIS AGREEMENT SHALL CONSTITUTE A WAIVER OF ANY
RIGHT OF THE BORROWERS, OR OF ANY DUTY OF LENDER, WHICH MAY
NOT BE VARIED BY AGREEMENT UNDER THE UCC.
10.3 Writings Constitute Entire Agreement; Modifications Only in
Writing. The Transaction Documents constitute the entire
agreement of the parties, and there are no other agreements,
express or implied. This Agreement supersedes any and all
documents, oral statements or terms heretofore issued in
connection with this Agreement. None of the parties shall be
bound by anything not expressed in writing, and neither this
Agreement, nor the other Transaction Documents can be
modified except by a writing executed by Borrowers and
Lender. This Agreement shall inure to the benefit of and
shall be binding upon all of the parties to this Agreement
and their respective successors, estate representatives, and
assigns, provided, however, that, except as provided in the
Plan of Reorganization, neither party can assign or transfer
its rights or obligations under this Agreement without the
other party's prior written consent.
10.4 Confidentiality. Lender agrees, on behalf of itself, each of
its affiliates, directors, officers, employees, agents,
consultants, advisors, and other representatives
(collectively, "Representatives"): (a) to hold and keep any
and all information received from or regarding Borrowers in
connection with this Agreement (the "Information") in
confidence; (b) not to use the Information other than in
connection with the performance of its obligations under this
Agreement; and
11
(c) not to use the Information to inform a decision by its or
any of its Representatives to purchase or sell any debt or
equity security of Borrowers. Notwithstanding anything in
this Section 10.4 to the contrary, nothing in this Section
10.4 shall be deemed to limit Lender's ability to disclose or
use any of the Information: (A) after such Information has
become public other than through a violation of this Section
10.4; (B) to the extent necessary for Lender to comply with
any statute, rule, or regulation or as required by any court
of law, governmental agency, or regulatory authority that
Lender reasonably believes has jurisdiction and authority
over Lender; or (C) in accordance with any consent made by
Borrowers in writing after the date of this Agreement.
10.5 Headings. All section and paragraph headings in this
Agreement are included for convenience only and do not
constitute a part of this Agreement.
10.6 Term of Agreement. Unless superseded by a later written
agreement, this Agreement shall continue in full force and
effect until all of Borrowers' Obligations to Lender are
fully satisfied.
10.7 Notices. All notices and other communications provided for
hereunder shall be in writing and shall be deemed to have
been given when sent (and confirmation of delivery is
received by the sender) by telecopy, facsimile or other
electronic transmission (which transmission shall also be
followed by overnight, or regular mail delivery of a
confirmation copy) addressed to the party at the addresses
described below (unless such party shall otherwise designate
another addressee to receive certain types of notices):
If to Borrowers: NationsRent, Inc.
000 Xxxx Xxx Xxxx Xxxx.
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx
Xxxx Xxxxxxx
Telecopier: 000-000-0000
With a copy to: Xxxxx, Day, Xxxxxx & Xxxxx
00 X. Xxxx Xxxxxx
Xxxxx 0000
Xxxxxxxx, Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Xxxx X. Xxxxxx
Telecopier: 614-461-4198
If to Lender: **[_______________________]
**[_______________________]
**[_______________________]
Attention: **[____________]
Telecopier: **[___________]
With a copy to: **[_______________________]
**[_______________________]
**[_______________________]
Attention: **[____________]
Telecopier: **[___________]
12
11. Defined Terms; Construction.
11.1 Defined Terms. When used in any of the Transaction Documents,
the following terms have the following meanings:
(a) "Administrative Agent" means General Electric
Capital Corporation, as administrative agent under
the Credit Agreement, and any successor thereto or
replacement thereof.
(b) "Agreement" has the meaning set forth in the
preamble to this Agreement.
(c) "Anticipated Interest Commencement Date" has the
meaning set forth in Section 2.4 of this Agreement.
(d) "Bankruptcy Code" means Title 11 of the United
States Code, 11 U.S.C. ss.ss.101, et seq.
(e) "Bankruptcy Court" has the meaning set forth in the
Background section to this Agreement.
(f) "Bankruptcy Related Claims" means the deficiency
claims and the other general unsecured claims that
Lender will be allowed under the Plan of
Reorganization with respect to the Pre-Petition
Agreements, and no other Claims whatsoever;
provided, however, that the amount of such
Bankruptcy Related Claims will be determined after
giving the Borrowers a credit for the aggregate
original principal amount of the Loans.
(g) "Xxxx of Sale" means a general xxxx of sale, duly
executed and delivered by Lender, in substantially
the form set forth as Annex C hereto, conveying to
Borrowers good and marketable title to all of the
Inventory subject to this Agreement, free and clear
of all Liens.
(h) "Borrowers" has the meaning set forth in the
preamble to this Agreement.
(i) "Business Day" means any day on which commercial
banks are not authorized or required to close in
Fort Lauderdale, Florida.
(j) "Cases" has the meaning set forth in the Background
section to this Agreement.
(k) "Claim" has the meaning set forth in Section 1.2(a)
of this Agreement.
(1) "Collateral" has the meaning, with respect to any
given Loan and item of Inventory, set forth in
Section 4.1 of this Agreement; provided, however,
that, to the extent that the Obligations relating to
any given item of
13
Inventory have been satisfied, such item of
Inventory and its proceeds will no longer be deemed
Collateral and such item of Inventory will
automatically be deemed deleted from the applicable
Note Schedule without any further action and Lender
will no longer be entitled to an interest in such
item of Inventory or the proceeds thereof.
(m) "Credit Agreement" means that certain Amended and
Restated Debtor In Possession Revolving Credit
Agreement, dated as of December **[___], 2002 (as
amended, restated, amended and restated, superceded,
or replaced from time to time), by and among Parent,
certain of its subsidiaries, the Administrative
Agent, and the other parties thereto, or any
successor agreement thereto; provided, however,
that, without limiting the generality of the
foregoing, the term "Credit Agreement" includes,
without limitation: (i) any credit agreement by
which the Credit Agreement is refinanced, in whole
or in part, and (ii) any credit agreement by which
financing is provided to the Borrowers to emerge
from the Cases, in each case, regardless of whether
such credit agreement is with the same or different
lenders and regardless of whether the aggregate
principal amount outstanding under such credit
agreement is greater than the maximum amount
permitted under the original Credit Agreement.
(n) "Effective Date" means, subject to the satisfaction
or waiver of the conditions precedent set forth in
Article 3 of this Agreement, **[December 5, 2002].
(o) "Equipment Financings" has the meaning set forth in
Section 2.6 of this Agreement.
(p) "Event of Default" has the meaning set forth in
Article 8 of this Agreement.
(q) "Impositions" has the meaning set forth in Section
4.4 of this Agreement,
(r) "Information" has the meaning set forth in Section
10.4 of this Agreement.
(s) "Intercreditor Acknowledgement" means an
acknowledgement in substantially the form set forth
as Annex E hereto executed by the Administrative
Agent, the Pre-Petition Agent, the Lender, and the
Borrowers with respect to the Inventory and the
proceeds thereof.
(t) "Inventory" means, with respect to any given Loan,
each item of inventory described on the Note
Schedule of the given Note evidencing such Loan, as
such Note Schedule may be amended from time to time
in accordance with the Transaction Documents.
(u) "Lender" has the meaning set forth in the Preamble
to this Agreement.
14
(v) "Lender Parties" has the meaning set forth in
Section 1.2(a) of this Agreement.
(w) "Liens" means any liens, security interests,
mortgages, and any other claims or encumbrances
whatsoever.
(x) **["Litigation" means that certain adversary
proceeding styled as NationsRent. Inc. v. ???. Adv.
Pro. No. ??? (PJW), filed on _______________________
______, 2002.]
(y) "Loan" has the meaning set forth in Section 2.1 of
this Agreement.
(z) "Note" means, with respect to any given Loan, the
promissory note, in substantially the form set forth
as Annex D hereto, issued by Borrowers as of the
Effective Date evidencing such Loan.
(aa) "Note Schedule" means, with respect to any Note, the
schedule attached as Schedule 2 to such Note
describing the Inventory financed by such Note.
(bb) "Obligations" has the meaning set forth in Section
4.1 of this Agreement,
(cc) "Parent" has the meaning set forth in the Preamble to
this Agreement.
(dd) "Payment Reduction Factor" has the meaning set forth
in Section 2.5(c) of this Agreement.
(ee) "Permitted Impositions" has the meaning set forth in
Section 4.4 of this Agreement.
(ff) "Permitted Liens" means: (i) any and all Liens
arising under the Transaction Documents; (ii) any
and all Liens arising under or with respect to the
Credit Agreement, any Senior Debt, or the Rental
Contracts, but only to the extent that such Liens
are subordinate to the Liens arising under the
Transaction Documents; (iii) Liens of carriers,
warehousemen, mechanics, and materialmen and other
like Liens, in existence less than 120 days from the
date of creation thereof in respect of obligations
not overdue; provided that such Liens may continue
to exist for a period of more than 120 days if the
validity or amount thereof shall currently be
contested by the Borrowers in good faith by
appropriate proceedings and if Borrowers have set
aside on their books adequate reserves with respect
thereto as required by generally accepted accounting
principles; and (iv) Permitted Impositions.
(gg) "Person" means any individual, corporation,
partnership, limited liability company, joint
venture, association, trust, unincorporated
association, joint stock company, government,
municipality, political subdivision, agency, or
other entity.
15
(hh) "Petition Date" has the meaning set forth in the
Background section of this Agreement.
(ii) "Plan of Reorganization" means any Plan of
Reorganization of the Borrowers in the Cases to the
extent confirmed by the Bankruptcy Court.
(jj) "Pre-Petition Agent" means Fleet National Bank, as
administrative agent under the Pre-Petition Credit
Agreement, and any successor thereto or replacement
thereof.
(kk) "Pre-Petition Agreements" has the meaning set forth
in the Background section to this Agreement.
(11) "Pre-Petition Agreement Payment" has the meaning set
forth in Section 2.8 to this Agreement.
(mm) "Pre-Petition Credit Agreement" means that certain
Fifth Amended and Restated Revolving Credit and Term
Loan Agreement, dated as of August 2, 2000, as
amended, among the Borrowers, the lenders party
thereto, the Pre-Petition Agent, and the other
parties thereto.
(nn) "Rental Contracts" means the rental contracts with
respect to Borrowers' inventory entered into by
Borrowers' with their customers in the normal and
ordinary course of business.
(oo) "Representatives" has the meaning set forth in
Section 10.4 of this Agreement.
(pp) "Senior Debt" means the principal of, premium, if
any, and interest (including any interest accruing
subsequent to the filing of a petition of bankruptcy
at the rate provided for in the documentation with
respect thereto, whether or not such interest is an
allowed claim under applicable law) on any
indebtedness of the Borrowers, whether outstanding
on the date of this Agreement or thereafter created,
incurred, or assumed, unless, in the case of any
particular indebtedness, the instrument creating or
evidencing the same or pursuant to which the same is
outstanding expressly provides that such
indebtedness shall not be senior in right of payment
to the Notes. Without limiting the generality of the
foregoing, "Senior Debt" shall also include the
principal or, premium, if any, interest (including
any interest accruing subsequent to the filing of a
petition of bankruptcy at the rate provided for in
the documentation with respect thereto, whether or
not such interest is an allowed claim under
applicable law) on, and all other amounts owing in
respect of, (x) all monetary obligations (including
guarantees thereof) of every nature of the Borrowers
under the Credit Agreement or the Pre-Petition
Credit Agreement, including, without limitation,
obligations to pay principal and interest,
reimbursement obligations under letters of credit,
fees, expenses and indemnities, (y) all interest
swap obligations (including guarantees
16
thereof) and (z) all obligations (including
guarantees thereof) under currency agreements, in
each case whether outstanding on the date of this
Agreement or thereafter incurred.
(qq) "Settlement Value" means, with respect to any given
item of Inventory, the "Settlement Value" indicated
for such item of Inventory on Annex B hereto.
(rr) "Transaction Documents" means this Agreement, each
Note, and any other documents, agreements, or
instruments executed or delivered in connection with
the Loans.
(ss) "UCC" means the Uniform Commercial Code, as in
effect from time to time in the State of Delaware.
11.2 Other Interpretive Provisions. The following interpretive
provisions apply to this Agreement: (i) a reference to any
document or agreement shall include such document or
agreement as amended, modified or supplemented from time to
time in accordance with its terms and the terms of this
Agreement; (ii) the singular includes the plural and the
plural includes the singular; (iii) a reference to any Person
includes its permitted successors and permitted assigns; (iv)
the words "include," "includes" and "including" are not
limiting; (v) the words "herein," "hereof," "hereunder" and
words of like import shall refer to this Agreement as a whole
and not to any particular section or subdivision of this
Agreement; and (vi) unless otherwise expressly indicated, in
the computation of periods of time from a specified date to a
later specified date, the word "from" means "from and
including," the words "to" and "until" each mean "to but
excluding," and the word "through" means "to and including."
[Remainder of Page Intentionally Blank - Signature Page Follows]
17
IN WITNESS WHEREOF, the parties have duly executed and delivered this
Agreement on the date first written above.
NATIONSRENT, INC. [_______________________________]
By: By:
-------------------------------- -------------------------------
Name: Name:
------------------------------ -----------------------------
Title: Title:
----------------------------- ----------------------------
NATIONSRENT USA, INC. Acknowledged in the presence of:
NATIONSRENT TRANSPORTATION
SERVICES, INC.
NR DELAWARE, INC. ----------------------------------
NRGP, INC. Notary Public
NATIONSRENT WEST, INC. [NOTARY SEAL]
XXXXX EQUIPMENT CORP. My Commission Expires:
NR DEALER, INC.
NR FRANCHISE COMPANY
BDK EQUIPMENT COMPANY, INC.
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
NATIONSRENT OF TEXAS, LP
NATIONSRENT OF INDIANA, LP
By: NRGP, Inc., general partner
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
Each acknowledged in the presence of:
-----------------------------------
Notary Public
[NOTARY SEAL]
My Commission Expires:
18
ANNEX A
Pre-Petition Agreements
[INSERT LIST OF PRE-PETITION AGREEMENTS BETWEEN LENDER AND BORROWERS]
A-1
ANNEX B
Loans
Note Inventory Maturity Settlement
Number Description Date Value
B-1
ANNEX C
Xxxx of Sale
This XXXX OF SALE ("Xxxx of Sale") is executed and delivered by
___________________________ , a ___________________________ corporation
("Transferor"), to NationsRent, Inc., a Delaware corporation ("Transferee").
KNOW ALL MEN BY THESE PRESENTS, that, as of the Effective Date,
Transferor, for good and valuable consideration paid by Transferee, the receipt
and sufficiency of which are hereby acknowledged, does hereby grant, bargain,
sell, assign, convey, transfer, set over and deliver to Transferee, its
successors and assigns, good and marketable title in and to all of the
Inventory (as defined in that certain Master Inventory Financing, Security, and
Settlement Agreement, dated as of ___________________________________, 200__
(the "Agreement"), by and between Transferor, Transferee, and certain
affiliates of Transferee) subject to the Agreement, free and clear of all liens
except for Liens created by the Agreement.
TO HAVE AND TO HOLD all of the Inventory unto Transferee, its
successors and assigns, to and for its use and benefit forever.
Transferor hereby warrants to Transferee, its successors and assigns,
that there is hereby conveyed to Transferee, as of the Effective Date, good and
marketable title to the Inventory, free and clear of all Liens except for Liens
created by the Agreement, and that Transferor will warrant and defend such
title forever and against all claims and demands whatsoever.
Transferor covenants and agrees that it will whenever and as often as
reasonably requested to do so by the Transferee, its successors and assigns,
execute, acknowledge and deliver such other instruments of conveyance and
transfer and take such other action as may be required more effectively to
convey and transfer to, and vest in, Transferee, its successors and assigns,
possession of and good and marketable title to the Inventory free and clear of
all Liens except for Liens created by the Agreement.
This Xxxx of Sale is made pursuant to and is subject to the Agreement,
and shall be binding upon Transferor, its successors and assigns, and shall
inure to the benefit of Transferee and its successors and assigns; provided,
however, that this Xxxx of Sale shall only be effective if and when the
Effective Date occurs.
Unless otherwise defined herein, all capitalized terms used in this
Xxxx of Sale have the respective meanings assigned to them in the Agreement.
C-1
IN WITNESS WHEREOF, Transferor has caused this Xxxx of Sale to be duly
executed by its authorized representative as of the ______ day of
___________________________ 2002.
[Transferor]
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
C-2
ANNEX D
Promissory Note
PROMISSORY NOTE
$___________ _________________________ ,200__
FOR VALUE RECEIVED, the undersigned, NationsRent, Inc., a Delaware
corporation, and each of its subsidiaries party to the Agreement (as defined
below) (collectively, the "Borrowers"), jointly and severally, promise to pay
to ________________________________________________________, a
______________________________________corporation (the "Lender"), at its office
set forth below or at such other place as Lender may designate in writing, the
principal sum of _________________________________________ DOLLARS
($_______________________) plus interest at the rates and in accordance with
the terms of the Agreement, all in lawful money of the United States of
America. Borrowers shall, subject to the terms and conditions of the Agreement
(as defined below), make payments of principal together with all accrued and
unpaid interest in accordance with Schedule 1 attached hereto. Notwithstanding
anything in this Note to the contrary, this Note shall only be effective if and
when the Effective Date (as defined in the Agreement) occurs.
This Promissory Note (this "Note") has been issued by the Borrowers in
accordance with the terms of that certain Master Inventory Financing, Security,
and Settlement Agreement, dated as of___________________________________, 2002
(the "Agreement"), among Borrowers and Lender. The Lender is entitled to the
benefits of the Agreement and may exercise the remedies provided for thereby or
otherwise available in respect thereof, all in accordance with the terms
thereof. All capitalized terms used in this Note and not otherwise defined
herein have the meanings ascribed to such terms in the Agreement.
The Borrowers irrevocably authorize the Lender to make or cause to be
made, at the time of receipt of any payment of principal of this Note, an
appropriate notation on the grid attached to this Note, or the continuation of
such grid, or any other similar record, including computer records, reflecting
the receipt of such payment. The outstanding amount of the Loans set forth on
the grid attached to this Note, or the continuation of such grid, or any other
similar record, including computer records, maintained by the Lender with
respect to any Loans shall be prima facie evidence of the principal amount
thereof owing and unpaid to the Lender, but the failure to record, or any error
in so recording, any such amount on any such grid, continuation or other record
shall not limit or otherwise affect the obligation of the Borrowers hereunder
or under the Agreement to make payments of principal of and interest on this
Note when due.
The Borrowers have the right to prepay the whole or part of the
principal of this Note on the terms and conditions specified in the Agreement.
Each of the Borrowers waives presentment, demand, notice, protest and
all other demands and notices in connection with the delivery, acceptance,
performance, default or enforcement of this Note, and assents to any extension
or postponement of the time of payment
D-1
or any other indulgence, to any substitution, exchange or release of Collateral
and to the addition or release of any other party or person primarily or
secondarily liable. Each of the Borrowers further waive all suretyship defenses
generally.
THE LAWS OF THE STATE OF DELAWARE SHALL GOVERN ALL RIGHTS AND
OBLIGATIONS HEREUNDER.
Additional terms and conditions relating to this Note are contained in
the Agreement. Without limiting or expanding the grant of the security interest
in the Agreement, the purpose of this Note is to provide financing for the
items described on the attached Schedule 2.
[Remainder of Page Blank -- Signature Page Follows]
D-2
SIGNATURE PAGE TO PROMISSORY NOTE
BORROWERS:
NATIONSRENT, INC.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
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.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
NATIONSRENT OF TEXAS, LP
NATIONSRENT OF INDIANA, LP
By: NRGP, Inc., general partner
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
Each acknowledged in the presence of:
----------------------------------------
Notary Public
[NOTARY SEAL]
My Commission Expires:
D-3
Amount of Balance of
Amount Principal Paid Principal Notation
Date of Loan Or Prepaid Unpaid Made By:
D-4
SCHEDULE 1
REPAYMENT SCHEDULE
Subject to the terms of the Agreement, the Note will be repaid as follows:
Date Amount of Scheduled Payment of Principal
Subject to the terms and conditions of this Note and the Agreement, and without
modifying this Note or the Agreement in any manner, for illustrative purposes,
set forth below is an amortization schedule that would be applicable if all of
the scheduled principal and interest payments were made in accordance with this
Note and the Agreement and no prepayments were made whatsoever:
PAYMENT # DATE PAYMENT INTEREST PRINCIPAL BALANCE
D-5
SCHEDULE 2
Inventory
[ATTACH LIST OF EACH ITEM OF INVENTORY FINANCED BY THE NOTE AND THE APPLICABLE
SETTLEMENT VALUE THEREFOR]
D-6
ANNEX E
Intercreditor Acknowledgement
INTERCREDITOR ACKNOWLEDGEMENT
This INTERCREDITOR ACKNOWLEDGEMENT (this "Acknowledgement"), dated as
of__________________________, 200_____, is by and among ______________________,
a ________ corporation ("Lender"), NationsRent, Inc., a Delaware corporation
("Parent"), its subsidiaries party hereto (collectively with Parent, the
"Borrowers"), and: (i) Fleet National Bank, as administrative agent (the
"Pre-Petition Agent"), under that certain Fifth Amended and Restated Revolving
Credit and Term Loan Agreement, dated as of August 2, 2000 (as amended,
restated, superseded, or replaced from time to time, the "Pre-Petition Credit
Agreement"), by and among Borrowers, the Pre-Petition Agent, and the other
parties thereto (the "Pre-Petition Lenders"); and (ii) General Electric Capital
Corporation, as administrative agent (the "Administrative Agent") under that
certain Amended and Restated Debtor In Possession Revolving Credit Agreement,
dated as of December **[__________], 2002 (as amended, restated, superseded, or
replaced from time to time, the "Credit Agreement"), by and among Borrowers, the
Administrative Agent, and the other parties thereto (the "Post-Petition
Lenders").
BACKGROUND
A. In connection with the Pre-Petition Credit Agreement, the Pre-Petition
Agent has acquired a security interest in certain property of
Borrowers.
B. In connection with the Credit Agreement, the Administrative Agent has
acquired a security interest in certain property of Borrowers.
C. In connection with that certain Master Inventory Financing, Security,
and Settlement Agreement, dated as of______________________, 200___(the
"Agreement"), by and between Lender and Borrowers, Lender has sold
certain inventory (the "Inventory") to Borrowers.
D. To induce Lender to sell the Inventory to Borrowers as provided under
the Agreement, the Pre-Petition Agent and the Administrative Agent have
agreed to provide this Acknowledgement with respect to the Collateral
(as defined below).
ACKNOWLEDGEMENT
For good and valuable consideration, the receipt and sufficiency of
which are acknowledged, the Pre-Petition Agent, on behalf of the Pre-Petition
Lenders, and the Administrative Agent, on behalf of the Post-Petition Lenders,
agree as follows:
1. Subordination. Any security interest that Lender may now have or may
hereafter acquire in the Collateral ("Lender's Interest") will be
senior and prior to any security interest which the Pre-Petition Agent,
the Pre-Petition Lenders, the Administrative Agent, or the
Post-Petition Lenders (collectively, the "Subordinate Lenders") may now
have or may hereafter acquire in the Collateral, and any security
interest of the Subordinate Lenders in respect of the Collateral will
be in all respects subordinate to and in rank after the security
E-l
interest created by or in relation to the Agreement so long as Lender's
Interest is perfected and is not subject to avoidance; provided,
however, to the extent that Lender has been paid in full for a
particular item of Inventory, then such particular item of Inventory
and the proceeds thereof will no longer be deemed Collateral, and
Lender will not claim an interest in such particular item of Inventory
and the proceeds thereof. Lender does not claim a security interest in
any property of Borrowers other than the Collateral. For purposes of
this Agreement, the term "Collateral" means the Inventory and the
proceeds thereof, but excludes: (i) proceeds that are chattel paper
arising out of the Borrowers' leasing or rental of the Inventory in the
ordinary course; and (ii) any proceeds of such chattel paper.
2. Priority. The priority of Lender's Interest described in Section 1 will
apply regardless of: (i) the time or order of attachment or perfection
of the respective ownership and/or security interests of Lender and the
Pre-Petition Agent or the Administrative Agent; or (ii) the time or
sequence in which any financing statements are or were filed; provided,
however, that nothing in this Acknowledgement is intended to modify the
rights of the Pre-Petition Agent or the Administrative Agent arising
under ss.9-315 of the Uniform Commercial Code (the "UCC") (as adopted
in any applicable jurisdiction) with respect to the proceeds of the
Inventory.
3. Inventory Schedules. The Inventory subject to this Acknowledgement will
be set forth in various schedules, the form of which will be
substantially as set forth in Exhibit A (each, an "Inventory
Schedule"). To be effective, an Inventory Schedule must be signed by
the Pre-Petition Agent, the Administrative Agent, Lender, and Borrowers
and incorporate this Acknowledgement by reference. Notwithstanding the
foregoing, to the extent that Lender has been paid in full for a
particular item of Inventory on the Inventory Schedule, then such
particular item of Inventory will be deemed deleted from such Inventory
Schedule, and Lender will not claim an interest in such particular item
of Inventory and the proceeds thereof.
4. Reconciliation of Schedules. Upon either: (i) the reasonable request of
any party hereto; or (ii) to the extent there are changes to the
Inventory Schedule, on the last business day of the month in which such
changes occur, the parties hereto may execute a replacement Inventory
Schedule that will include any new Inventory subject to this
Acknowledgement and that will omit any items of Inventory for which the
Lender has been paid in full.
5. Successors and Assigns. This Acknowledgement will be binding upon the
successors and assigns of the Pre-Petition Agent and the Administrative
Agent and inure to the benefit of the successors and assigns of the
Lender, the Pre-Petition Lenders, the Post-Petition Lenders, and
Borrowers.
6. Representations and Warranties. The Pre-Petition Agent represents and
warrants to the Lender and Borrowers that the execution, delivery, and
performance of this Acknowledgment has been duly authorized by the
Pre-Petition Lenders, and that this Acknowledgment is enforceable
against the Pre-Petition Agent and the Pre-Petition Lenders in
accordance with its terms. The Administrative Agent represents and
warrants to the Lender and Borrowers that the execution, delivery, and
performance of this
E-2
Acknowledgment has been duly authorized by the Post-Petition Lenders,
and that this Acknowledgment is enforceable against the Administrative
Agent and the Post-Petition Lenders in accordance with its terms.
7. Governing Law. This Acknowledgement will be governed by and construed
in accordance with the internal substantive laws of the State of
Delaware, without giving effect to the rules thereof relating to
conflict of laws.
8. Notices. All notices given under this Acknowledgement will be
sufficiently given for all purposes if in writing and delivered either
by: (i) personal delivery; (ii) documented overnight delivery service;
or (iii) to the extent receipt is confirmed, telecopy, facsimile, or
other electronic transmission service to the appropriate address or
number as set forth below:
If to Lender: with a copy to:
---------------------- -------------------------
---------------------- -------------------------
---------------------- -------------------------
Attention: Attention:
--------------------- --------------------------
Telecopier: Telecopier:
--------------------- --------------------------
If to Borrowers: with a copy to:
NationsRent, Inc. Xxxxx, Day, Xxxxxx & Xxxxx
000 Xxxx Xxx Xxxx Xxxx. 0000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000 Xxxxxxxx, XX 00000
Ft. Xxxxxxxxxx, XX 00000 Attention: Xxxxxxx X. Xxxxxxx, Esq.
Attention: Xxxxxx X. Xxxxxxxx, Esq. Xxxx X. Xxxxxx, Esq.
Mr. Xxxx Xxxxxxx Telecopier: 614-461-4198
Telecopier: 000-000-0000
If to Pre-Petition Agent: with a copy to:
Fleet National Bank Xxxxxxx XxXxxxxxx, LLP
000 Xxxxxxx Xxxxxx 000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000 Xxxxxx, XX 00000-0000
Attention: Xx. Xxxxxxxx Xxxxxxx Attention: Xxxxx X. Xxxxx, Esq.
Telecopier: 000-000-0000 Xxxxx X. Xxxxxxxx, Esq.
Telecopier: 000-000-0000
E-3
If to Administrative Agent: with a copy to:
General Electric Capital Corporation Xxxxxxx XxXxxxxxx, LLP
000 Xxxxxxx Xxxxx, 0xx Xxxxx 000 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000 Xxxxxx, XX 00000-0000
Attention: Capital Markets Group Attention: Xxxxx X. Xxxxx, Esq.
Xxxxxx X. Xxxxxxxx Xxxxx X. Xxxxxxxx, Esq.
Telecopier: **[___-____-____] Telecopier: 000-000-0000
or at such other address and to the attention of such other person as
any party hereto may designate by written notice to the other parties
hereto.
9. Entire Agreement; Amendment. This Acknowledgement is the entire
agreement between the parties with respect to the subject matter
hereof. Neither this Acknowledgement nor any term hereof will be
amended or modified in any manner except by an instrument in writing
which refers to this Acknowledgement and is executed by each of the
parties hereto.
10. Counterparts. This Acknowledgement may be executed by the parties
hereto in one or more counterparts, each of which will be deemed to be
an original, but all of which together will constitute one and the same
agreement. Any signature pages of this Acknowledgement or any Inventory
Schedules transmitted by telecopier will have the same legal effect as
an original executed signature page.
11. Effective Date. Notwithstanding anything in this Acknowledgment to the
contrary, this Acknowledgment will only become effective if and when
the Effective Date (as defined in the Agreement) occurs.
E-4
IN WITNESS WHEREOF, the parties have executed this Acknowledgement as
of the date first written above.
FLEET NATIONAL BANK, [LENDER], a ____________corporation
as Pre-Petition Agent
By: By:
-------------------------- ---------------------------------
Name: Name:
-------------------------- ---------------------------------
Title: Title:
-------------------------- ---------------------------------
NATIONSRENT, INC., a Delaware NATIONSRENT USA, INC.
corporation NATIONSRENT TRANSPORTATION SERVICES, INC.
NR DELAWARE, INC.
By: NRGP, INC.
------------------------- NATIONSRENT WEST, INC.
Name: XXXXX EQUIPMENT CORP.
------------------------- NR DEALER, INC.
Title: NR FRANCHISE COMPANY
------------------------- BDK EQUIPMENT COMPANY, INC.
By:
-----------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
GENERAL ELECTRIC CAPITAL CORPORATION, NATIONSRENT OF TEXAS, LP
as Administrative Agent NATIONSRENT OF INDIANA, LP
By: NRGP, Inc., general partner
By: By:
-------------------------- ---------------------------------
Name: Name:
-------------------------- ---------------------------------
Title: Title:
-------------------------- ---------------------------------
E-5
EXHIBIT A
Form of Inventory Schedule
This Inventory Schedule No.______________, dated as
of_______________________, 200____(this "Inventory Schedule"), is being executed
and delivered pursuant to that certain Intercreditor Acknowledgement (the
"Acknowledgement"), dated as of_________________________________, 200____, by
and among [Lender], a___________corporation ("Lender"), NationsRent, Inc., a
Delaware corporation ("Parent") and its subsidiaries party hereto (collectively
with Parent, the "Borrowers"), and: (i) Fleet National Bank, as administrative
agent (the "Pre-Petition Agent"), under that certain Fifth Amended and Restated
Revolving Credit and Term Loan Agreement, dated as of August 2, 2000 (as
amended, restated, superseded, or replaced from time to time), by and among
Borrowers, the Pre-Petition Agent, and the other parties thereto; and (ii)
General Electric Capital Corporation, as administrative agent (the
"Administrative Agent"), under that certain Amended and Restated Debtor In
Possession Revolving Credit Agreement, dated as of December ___________________,
2002 (as amended, restated, superseded, or replaced from time to time), by and
among Borrowers, the Administrative Agent and the other parties thereto.
1. This Inventory Schedule is entered into pursuant to Section 3 of the
Acknowledgement, and the Acknowledgement is incorporated hereby by
reference. [This Inventory Schedule replaces the Inventory Schedule
No._______________, dated as of_______________________, 200____, by and
among the Lender, Borrowers, and Fleet.][NB: DELETE BRACKETED LANGUAGE
IN SCHEDULE NO. 1]
2. The inventory described on Schedule 1 hereto is Inventory (as defined
in the Acknowledgement) and is subject to the terms and conditions of
the Acknowledgement.
3. To the extent that Lender has been paid in full for a particular item
of Inventory on this Inventory Schedule, then such particular item of
Inventory will be deemed deleted from this Inventory Schedule.
[Remainder of Page Intentionally Blank - Signature Page Follows]
E-6
IN WITNESS WHEREOF, the parties have executed this Inventory Schedule
as of the date first written above.
FLEET NATIONAL BANK, [LENDER], a ____________corporation
as Pre-Petition Agent and as
Administrative Agent
By: By:
------------------------- --------------------------------
Name: Name:
------------------------- --------------------------------
Title: Title:
------------------------- --------------------------------
NATIONSRENT, INC., a Delaware
corporation
By:
--------------------------------
Name:
--------------------------------
Title:
--------------------------------
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.
By:
--------------------------------
Name:
--------------------------------
Title:
--------------------------------
GENERAL ELECTRIC CAPITAL CORPORATION, NATIONSRENT OF TEXAS, LP
as Administrative Agent NATIONSRENT OF INDIANA, LP
By: NRGP, Inc., general partner
By: By:
------------------------- --------------------------------
Name: Name:
------------------------- --------------------------------
Title: Title:
------------------------- --------------------------------
E-7
SCHEDULE 1
List of Inventory
[Attached]
E-8
ANNEX F
Names
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.
NationsRent of Texas, LP
NationsRent of Indiana, LP
F-l
Schedules
To
Amended and Restated Debtor In Possession Revolving Credit Agreement, dated as
of December 31, 2002 (the "Credit Agreement"), among NationsRent, Inc.
("Parent") and its subsidiaries party thereto (together with the Parent, the
"Borrowers"), General Electric Capital Corporation, as Administrative Agent, and
the lending institutions party thereto
These Schedules are furnished by the Borrowers to the Agents and the
Lenders as of December 31, 2002, pursuant to and as part of the Credit
Agreement. Capitalized terms used, but not otherwise defined herein, have the
meanings ascribed to such terms in the Credit Agreement. Headings have been
inserted to these Schedules for convenience of reference only and shall to no
extent have the effect of amending or changing the express description of the
Schedules as set forth in the Credit Agreement.
SCHEDULE 1.1
Commitment Percentages
Lender Commitment Percentage
------- ---------------------
General Electric Capital Corporation 100.000000%
SCHEDULE 1.2
Agency Account Agreements
Three Party Agreement Relating to Lockbox Services, entered into as of May
21, 2002, as amended, among NationsRent, Inc., NationsRent USA, Inc.,
NationsRent of Texas, LP, NationsRent West, Inc., Fleet National Bank, and
Bank of America, N.A.
Schedule for Lockbox and Blocked Account Services, dated as of April____, 2002,
by and between Fifth Third Bank, Fleet National Bank, and NationsRent, Inc.
Master Treasury Management Agreement, dated as of April______, 2002, by and
between Fifth Third Bank and NationsRent, Inc.
Deposit Account Control Agreement, dated as of June 4, 2002, among NationsRent
of Texas, L.P., Fleet National Bank and Texas Gulf Bank
SCHEDULE 1.3
Existing Letters of Credit
FLEET STANDBY LETTERS OF CREDIT
LETTER OF CREDIT ISSUE EXPIRY AMOUNT AMENDED INCREMENTAL INCREASE RENEWED RENEWED
DATE DATE INCREASE DATE EXPIRY
1S1228792 1-Sep-00 31-Aug-0l 1,218,500.00 10-Aug-0l 2,437,000.00 1-Dec-00 31-Aug-0l 31-Aug-0
Beneficiary: 3,655,500.00 l-Mar-01
The Travelers Indemnity Company 4,874,000.00 l-Jun-01 31-Aug-02 31-Aug-0
1S1286488 7-Sep-0l 31-Aug-02 2,166,666.67 10-Sep-0l 4,333,333.34 l-Jan-02
Beneficiary: 6,500,000.00 l-May-02 31-Aug-02 31-Aug-0
The Travelers Indemnity Company
1S1339213
Beneficiary:
Xxx X. Xxxxx,Esq., as rep. 9-Jul-02 18-Dec-02 500,000.00 9-Jul-02 0.00 NONE 18-Dec-02 18-Jun-0
Xxxx Xxxxxx & Parks LLP
1S1350529
Beneficiary: 29-Aug-02 l-Feb-03 8,125,000.00 0.00 NONE
The Travelers Indemnity Company
19,999,000.00
SCHEDULE 9.3
Title to Properties
Assets exchanged pursuant to the Exchange Agent Agreement.
The rights of customers in the ordinary course of business pursuant to rental
contracts, and the rights of customers in the ordinary course of business
pursuant to rental purchase options allowing the customers to elect to purchase
such assets.
SCHEDULE 9.6
Intellectual Properties
See attached Schedule 9.6-A
Schedule 9.6A
APPLI- XXXXX- XXXXX-
CATION TRATION TRATION RENEWAL
COUNTRY TRADEMARK STATUS NUMBER FILING DATE NUMBER DATE DATE CLASSES OWNER NAME
------- ---------- -------- -------- ----------- -------- ---------- --------- ------- --------------
Argentina NATIONSRENT
& Design Published 2,208,755 18-Mar-1999 37 NationsRent, Inc.
Argentina NATIONSRENT
& Design Published 2,208,754 18-Mar-1999 35 NationsRent, Inc.
Argentina NATIONSRENT Registered 2,208,752 18-Mar-1999 1,793,594 10-May-2000 10-May-2010 35 NationsRent, Inc.
Argentina NATIONSRENT Registered 2,208,753 18-Mar-1999 1,793,595 10-May-2000 10-May-2010 37 NationsRent, Inc.
Argentina NATIONSRENT
& Design Registered 2,208,754 18-Mar-1999 1,793,596 10-May-2000 10-May-2010 35 NationsRent, Inc.
Australia NATIONSRENT
& Design Registered 787,013 01-Mar-1999 787,013 01-Mar-1999 01-Mar-2009 35,37 NationsRent, Inc.
Australia NATIONSRENT Published 787,012 01-Mar-1999 787,012 01-Mar-1999 01-Mar-2009 35,37 NationsRent, me.
Brazil NATIONSRENT
& Design Published 821489747 15-Mar-1999 7 NationsRent, Inc.
Brazil NATIONSRENT
& Design Published 821489755 15-Mar-1999 40 NationsRent, hie.
Brazil NATIONSRENT Published 821489771 15-Mar-1999 7 NationsRent, Inc.
Brazil NATIONSRENT Published 821489763 15-Mar-1999 40 NationsRent, Inc.
Canada NATIONSRENT
& Design Allowed 887,824 18-Aug-1998 NationsRent, Inc.
Canada NATIONSRENT
& Design Allowed 887,823 18-Aug-1998 NationsRent, Inc.
Chile NATIONSRENT
& Design Registered 444342 26-Mar-1999 558,973 19-Jan-2000 19-Jan-2010 37,42 NationsRent, Inc.
Chile NATIONSRENT
& Design Registered 456509 558,975 19-Jan-2000 19-Jan-2010 7,8 NationsRent, Inc.
Chile NATIONSRENT Registered 444341 26-Mar-1999 562,974 02-Mar-2000 02-Mar-2010 37,42 NationsRent, Inc.
Chile NATIONSRENT Registered 456508 558,974 19-Jan-2000 19-Jan-2010 7,8 NationsRent, Inc.
China NATIONSRENT Registered 9900024190 15-Mar-1999 1415717 28-Jun-2000 27-Jun-2010 37 NationsRent, Inc.
Colombia NATIONSRENT
& Design Published 99016177 16-Mar-1999 42 NationsRent, Inc.
Colombia NATIONSRENT
& Design Registered 99016176 16-Mar-1999 224,665 31-Jan-2000 01-Mar-2010 37 NationsRent, Inc.
Colombia NATIONSRENT Registered 99016178 16-Mar-1999 224,664 31-Jan-2000 01-Mar-2010 37 NationsRent, Inc.
Colombia NATIONSRENT Published 99016179 16-Mar-1999 242,927 03-Oct-2001 03-Oct-2011 42 NationsRent, Inc.
Colombia NATIONSRENT
& Design Registered 99016177 16-Mar-1999 233,519 23-Apr-2001 23-Apr-2011 42 NationsRent, Inc.
European NATIONSRENT Registered 962,803 21-Oct-1998 962,803 21-Oct-1998 21-Oct-2008 7,8,37 NationsRent, Inc.
Community
European NATIONSRENT Registered 962,795 21-Oct-1998 962,795 21-0ct-1998 21-Oct-2008 7,8,37 NationsRent, Inc.
Community
Indonesia NATIONSRENT
& Design Pending J99-9749 10-Jun-1999 10-Dec-2008 37 NationsRent, Inc.
Indonesia NATIONSRENT
& Design Pending J99-9750 10-Jun-1999 10-Dec-2008 35 NationsRent, Inc.
Indonesia NATIONSRENT Registered J99-9752 10-Jun-1999 459103 21-Dec-2000 07-Jan-2009 35 NationsRent, Inc.
Indonesia NATIONSRENT
& Design Registered J99-9750 10-Jun-1999 459102 21-Dec-2000 07-Jan-2009 37 NationsRent, Inc.
Israel NATIONSRENT Registered 127,626 03-May-1999 127,626 06-Jun-2000 03-May-2006 35 NationsRent, Inc.
Israel NATIONSRENT Registered 127,627 03-May-1999 127,627 06-Apr-2000 03-May-2006 37 NationsRent, Inc.
Israel NATIONSRENT
& Design Registered 127,628 03-May-1999 127,628 06-Jun-2000 03-May-2006 35 NationsRent, Inc.
Israel NATIONSRENT
& Design Registered 127,629 03-May-1999 127,629 06-Jun-1999 03-May-2006 37 NationsRent, Inc.
Japan NATIONSRENT Registered 108359/98 17-Dec-1998 4423196 06-Oct-2000 06-Oct-2010 7,37 NationsRent, Inc.
Japan NATIONSRENT Registered 2000-089657 14-Aug-2000 4526297 30-Nov-2001 30-Nov-2011 39,40,42 NationsRent, Inc.
Japan NATIONSRENT
& Design Registered 108360/98 17-Dec-1998 4423197 06-Oct-2000 06-Oct-2010 7,37 NationsRent, Inc.
Japan NATIONSRENT
& Design Registered 2000-1089658 14-Aug-2000 4449407 26-Jan-2001 26-Jan-2011 39,40,42 NationsRent, Inc.
Korea, NATIONSRENT
South & Design Registered 00-0000-0000 27-Mar-1999 58801 04-Jan-2000 04-Jan-2010 37 NationsRent, Inc.
Korea, NATIONSRENT
South & Design Registered 00-0000-0000 27-Mar-1999 58800 04-Jan-2000 04-Jan-2010 37 NationsRent, Inc.
Mexico NATIONSRENT
& Design Registered 344,459 20-Aug-1998 628,064 ll-Oct-1999 20-Aug-2008 37 NationsRent, Inc.
Mexico NATIONSRENT
& Design Registered 344,460 20-Aug-1998 607,675 29-Apr-1999 20-Aug-2008 42 NationsRent, Inc.
APPLI- XXXXX- XXXXX-
CATION TRATION TRATION RENEWAL
COUNTRY TRADEMARK STATUS NUMBER FILING DATE NUMBER DATE DATE CLASSES OWNER NAME
------- ----------- ---------- ---------- ----------- ---------- ----------- ---------- ------- ------------
Mexico NATIONSRENT Registered 344,503 20-Aug-1998 628,066 ll-Oct-1999 20-Aug-2008 42 NationsRent,
& Design Inc.
Mexico NATIONSRENT Registered 344,504 20-Aug-1998 628,067 ll-Oct-1999 20-Aug-2008 37 NationsRent,
& Design Inc.
Mexico NATIONSALES Registered 344,501 20-Aug-1998 610,037 21-May-1999 20-Aug-2008 37 NationsRent,
Inc.
Mexico NATIONSALES Registered 344,502 20-Aug-1998 610038 21-May-1999 20-Aug-2008 42 NationsRent,
Inc.
Mexico NATIONSRENT Registered 344,506 20-Aug-1998 610039 21-May-1999 20-Aug-2008 42 NationsRent,
Inc.
Mexico NATIONSRENT Registered 344,505 20-Aug-1998 598,606 27-Jan-1999 20-Aug-2008 37 NationsRent,
Inc.
New NATIONSRENT Registered 305893 03-Mar-1999 305893 31-Aug-1999 03-Mar-2006 37 NationsRent,
Zealand & Design Inc.
New NATIONSRENT Registered 305892 03-Mar-1999 305892 31-Aug-1999 03-Mar-2006 37 NationsRent,
Zealand Inc.
Peru NATIONSRENT Registered 080751 ll-Mar-1999 00019215 26-Oct-1999 26-Oct-2009 37 NationsRent,
& Design Inc.
Peru NATIONSRENT Registered 082339 12-Apr-1999 00058974 15-Nov-1999 15-Nov-2009 7 NationsRent,
& Design Inc.
Peru NATIONSRENT Registered 082338 12-Apr-1999 00058544 26-Oct-1999 26-Oct-2009 7 NationsRent,
Inc.
Peru NATIONSRENT Registered 080750 ll-Mar-1999 00018790 16-Sep-1999 16-Sep-2009 37 NationsRent,
Inc.
Singapore NATIONSRENT Pending T99/02643E 17-Mar-1999 37 NationsRent,
& Design Inc.
Singapore NATIONSRENT Registered T99/02642G 17-Mar-1999 T99/02642G 17-Mar-1999 17-Mar-2009 37 NationsRent,
Inc.
Thailand NATIONSRENT Registered 387,538 20-May-1999 SM10699 18-Sep-2000 19-May-2009 37 NationsRent,
& Design Inc.
Thailand NATIONSRENT Registered 387,537 20-May-1999 SM10586 31-Aug-2000 19-May-2000 37 NationsRent,
Inc.
United 1-800-NO-SWEAT Registered 75/594,299 23-Nov-1998 2,407,059 21-Nov-2000 21-Nov-2010 35,37 NationsRent
States of West, Inc.
America
United 0000XXXXXXX.XXX Open 14-May-2001 14-May-2002 NationsRent
States of (Domain Name) West, Inc.
America
United 0-000-XXXXXXX.XXX Open 14-May-2001 14-May-2002 NationsRent
States of (Domain Name) West, Inc.
America
United 0-000-XX-XXXXX.XXX Open 14-May-2001 14-May-2002 NationsRent
States of (Domain Name) West, Inc.
America
United 0000XXXXXXX.XXX Open 14-May-2001 14-May-2002 NationsRent
States of (Domain Name) West, Inc.
America
United 0-000-XXXXXXX.XXX Open 14-May-2001 14-May-2002 NationsRent
States of (Domain Name) West, Inc.
America
United 0-000-XX-XXXXX.XXX Open 14-May-2001 14-May-2002 NationsRent
States of (Domain Name) West, Inc.
America
United A-ACTION Registered 74/584,281 ll-Oct-1994 1,925,894 10-Oct-1995 10-0ct-2005 37 NationsRent
States of West, Inc.
America
United ACTION EQUIPMENT Registered 75/347,877 27-Aug-1997 2,206,927 Ol-Dec-1998 Ol-Dec-2008 35,37 NationsRent
States of CO. INC. of New
America Hampshire
United C&E RENTAL & Registered 75/277,241 18-Apr-1997 2,154,938 05-May-1998 05-May-2008 35,39 NationsRent
States of SERVICE INC. of Indiana,
America Inc.
United MISCELLANEOUS Registered 75/594,298 23-Nov-1998 2,390,584 26-Sep-2000 26-Sep-2010 35,37 NationsRent
States of DESIGN West, Inc.
America (NATIONSRENT)
United MISCELLANEOUS Registered 75/594,094 23-Nov-1998 2,478,688 14-Aug-2001 14-Aug-2011 35,37 NationsRent
States of DESIGN West, Inc.
America (NATIONSRENT)
United MISCELLANEOUS Registered 75/594,092 23-Nov-1998 2,354,802 06-Jun-2000 06-Jun-2010 35,37 NationsRent
States of DESIGN West, Inc.
America (NATIONSRENT)
United MISCELLANEOUS Registered 75/615.381 04-Jan-1999 2,331,810 21-Mar-2000 21-Mar-2010 35,37 NationsRent
States of DESIGN West, Inc.
America (Outdoor Sign)
United XXXXXX-XXXX.XXX Open 14-May-2001 14-May-2002 NationsRent
States of (Domain Name) West, Inc.
America
APPLI- XXXXX- XXXXX-
CATION TRATION TRATION RENEWAL CLA-
COUNTRY TRADEMARK STATUS NUMBER FILING DATE NUMBER DATE DATE SSES OWNER NAME
--------- ----------- --------- ---------- ----------- ---------- ----------- ---------- ------ ------------
United XXXXXXXXXX.XXX Open 14-May-2001 14-May-2002 NationsRent
States of (Domain Name) West, Inc.
America
United XXXXXX-XXXX.XXX Open 14-May-2001 14-May-2002 NationsRent
States of (Domain Name) West, Inc.
America
United NATIONSRENT Registered 76/152,645 24-Oct-2000 2,496,250 09-Oct-2001 09-Oct-2011 28 NationsRent
States of & Design West, Inc.
America
United NATIONSRENT Registered 75/513,132 06-Jul-1998 2,367,538 18-Jul-2000 18-Jul-2010 35,37 NationsRent
States of & Design West, Inc.
America
United NATIONSRENT Registered 75/512,988 02-Jul-1998 2,315,739 08-Feb-2000 08-Feb-2010 35,37 NationsRent
States of & Design West, Inc.
America
United NATIONSRENT Registered 75/856,567 23-Nov-1999 2,483,579 28-Aug-2001 28-Aug-2011 41 NationsRent
States of & Design West, Inc.
America
United NATIONSRENT Registered 75/603,347 10-Dec-1998 2,365,905 ll-Jul-2000 ll-Jul-2010 35,37 NationsRent
States of & Design West, Inc.
America
United NATIONSRENT Registered 75/654,613 05-Mar-1999 2,478,421 14-Aug-2001 14-Aug-2011 35,37 NationsRent
States of 1-800-NO SWEAT West, Inc.
America & Design
United NATIONSRENT Registered 75/856,553 23-Nov-1999 2,480,812 21-Aug-2001 21-Aug-2011 41 NationsRent
States of NATIONSRENT West, Inc.
America & Design
United NATIONSRENT Registered 75/514,678 02-Jul-1998 2,287,604 19-Oct-1999 19-Oct-2009 35,37 NationsRent
States of NATIONSRENT West, Inc.
America & Design
United NATIONSRENT Registered 75/514,695 02-Jul-1998 2,380,392 29-Aug-2000 29-Aug-2010 35,37 NationsRent
States of NATIONSRENT West, Inc.
America & Design
United NATIONSRENT Registered 75/654,612 05-Mar-1999 2,392,280 03-Oct-2000 03-Oct-2010 35,37 NationsRent
States of NATIONSRENT West, Inc.
America 1-800-NO SWEAT
& Design
United NATIONSRENT Registered 75/603,348 10-Dec-1998 2,448,196 Xx-Xxx-0000 Xx-Xxx-0000 35,37 NationsRent
States of NO SWEAT West, Inc.
America & Design
United NATIONSRENT Registered 75/856,554 23-Nov-1999 2,480,813 21-Aug-2001 21-Aug-2011 41 NationsRent
States of RACING West, Inc.
America & Design
United NATIONSRENT Registered 76/152,644 24-Oct-2000 2,509,600 20-Nov-2001 20-Nov-2011 25 NationsRent
States of RACING West, Inc.
America & Design
United NATIONSRENT Registered 75/856,552 23-Nov-1999 2,478,588 14-Aug-2001 14-Aug-2011 41 NationsRent
States of RACING West, Inc.
America & Design (color)
United NATIONS Allowed 75/774,576 12-Aug-1999 7,8,25 NationsRent
States of TOOLS West, Inc.
America & Design
United NATIONS TOOLS Allowed 75/774,152 12-Aug-1999 7,8,25 NationsRent
States of NATIONSTOOLS West, Inc.
America & Design
United NATIONSRENT Registered 75/856,568 23-Nov-1999 2,483,580 28-Aug-2001 28-Aug-2011 41 NationsRent
States of West, Inc.
America
United NATIONSRENT Registered 75/653,790 04-Mar-1999 2,388,694 19-Sep-2000 19-Sep-2010 35 NationsRent
States of West, Inc.
America
United NATIONSRENT Registered 75/448,172 ll-Mar-1998 2,312,467 25-Jan-2000 25-Jan-2010 37 NationsRent
States of West, Inc.
America
United NATIONSRENT Registered 75/615,382 04-Jan-1999 2,357,016 13-Jun-2000 13-Jun-2010 35,37 NationsRent
States of & Design West, Inc.
America
United NATIONSRENT Allowed 76/070,440 15-Jun-2000 35,37 NationsRent,
States of 1-800-NO SWEAT & Inc.
America DECAL Design (B&W)
APPLI- XXXXX- XXXXX-
CATION TRATION TRATION RENEWAL CLA-
COUNTRY TRADEMARK STATUS NUMBER FILING DATE NUMBER DATE DATE SSES OWNER NAME
--------- ----------- --------- ---------- ----------- ---------- ----------- ---------- ---- ------------
United NATIONSRENT Allowed 76/070,444 15-Jun-2000 35,37 NationsRent,
States of 1-800-NO SWEAT & Inc.
America DECAL Design
(Color)
United NATIONSRENT Registered 75/856,570 23-Nov-1999 2,483,581 28-Aug-2001 28-Aug-2011 41 NationsRent
States of RACING West, Inc.
America
United NATIONSRENT WE Registered 75/615,380 04-Jan-1999 2,357,015 13-Jun-2000 13-Jun-2010 35,37 NationsRent
States of APPRECIATE YOUR West, Inc.
America BUSINESS & Design
United XXXXXXXXXXX.XXX Open 05-Nov-1997 06-Nov-2005 NationsRent,
States of Inc.
America
United NATIONSRENT- Open 29-Dec-2000 29-Dec-2002 NationsRent,
States of XXXXXX.XXX Inc.
America
United XXXXXXX-XXXX.XXX Open 14-May-2001 14-May-2002 NationsRent
States of (Domain Name) West, Inc.
America
United XXXXXXX-XXXX.XXX Open 14-May-2001 14-May-2002 NationsRent
States of (Domain Name) West, Inc.
America
United NATIONSRENT Open 29-Dec-2000 29-Dec-2002 NationsRent,
States of XXXXXX.XXX Inc.
America (Domain Name)
United NATIONSRENT- Open 14-May-2001 14-May-2002 NationsRent
States of XXXXXX.XXX West, Inc.
America (Domain Name)
United NATIONS-RENT- Open 14-May-2001 14-May-2002 NationsRent
States of XXXXXX.XXX West, Inc.
America (Domain Name)
United NATIONSRENT- Open 14-May-2001 14-May-2002 NationsRent
States of XXXXXX.XXX West, Inc.
America (Domain Name)
United NATIONS-RENT- Open 14-May-2001 14-May-2002 NationsRent
States of XXXXXX.XXX West, Inc.
America (Domain Name)
United NO SWEAT... Registered 76/006,094 21-Mar-2000 2,454,199 22-May-2001 22-May-2011 41 NationsRent
States of JUST West, Inc.
America PERFORMANCE
United ON THE JOB WITH Registered 75/525,960 27-Jul-1998 2,328,190 14-Mar-2000 14-Mar-2010 35,37 NationsRent
States of CONSTRUCTION West, Inc.
America XXX & Design
United ONWARD AND Registered 74/237,048 13-Jan-1992 1,716,728 15-Sep-1992 15-Sep-2002 41 NationsRent
States of UPWARD West, Inc.
America
United RENTAL 1 & Design Opposed 75/328,347 21-Jul-1997 00 Xxxxxxx
Xxxxxx xx Xxxxxx,
Xxxxxxx Inc.
United RENTCENTER Registered 72/107,252 27-Oct-1960 723,393 21-Oct-1961 31-Oct-2001 42 NationsRent
States of & Design West, Inc.
America
United NATIONSRENT Allowed 75/654,617 05-Mar-1999 35,37 NationsRent
States of NATIONSRENT West, Inc.
America NO SWEAT
& Design
United NATIONSRENT Allowed 75/772,926 ll-Aug-1999 37 NationsRent
States of TOOLRENTAL West, Inc.
America & Design
United NATIONSRENT Allowed 75/773,166 ll-Aug-1999 39 NationsRent
States of TRUCKRENTAL West, Inc.
America & Design
Venezuela NATIONS RENT Registered 99-004988 24-Mar-1999 22-Nov-2000 22-Nov-2010 37 NationsRent,
& Design Inc.
Venezuela NATIONS RENT Published 99-012393 21-Jul-1999 37 NationsRent,
& Design Inc.
Venezuela NATIONSRENT Published 99-012394 21-Jul-1999 42 NationsRent,
Inc.
Venezuela NATIONSRENT Registered 99-004967 24-Mar-1999 07-Jul-2000 07-Jul-2010 37 NationsRent,
Inc.
SCHEDULE 9.7
Litigation
See attached Schedule 9.7A.
Schedule 9.7A
NationsRent, Inc. currently has twenty-six (26) pending adversary
proceedings relating to the characterization of certain financing agreements to
which NationsRent is a party. (1) To facilitate the purchase of equipment,
NationsRent entered into financing agreements with third parties that were
labeled "leases." NationsRent's position in the adversary proceedings is that
the economic realities of these transactions make them financing arrangements,
not leases. As such, NationsRent is seeking a declaration from the court that
"recharacterizes" the leases as financing agreements. The twenty-six (26)
pending cases, along with pending motions relating to the same agreements, are
listed below and sorted by the law firms handling each proceedings.
PROCEEDINGS BEING HANDLED BY XXXXX DAY AND XXXXXXXX XXXXXX & FINGER
NationsRent, Inc. et al. v. EFC, Inc.. Adv. Proc. No. 02-04471
NationsRent, Inc. et al. v. BB&T Leasing. Adv. Proc. No. 02-04475
Motion to Compel the Debtors to Comply with Bankruptcy Code Section
365(d)(10) and for Allowance of Administrative Claim Pursuant to
Bankruptcy Code Section 503(b)(l) (Docket Nos. 405 & 406)
NationsRent, Inc. et al. v. Debis Financial Services. Inc.. Adv. Proc. No.
02-04479 and Counterclaim.
NationsRent, Inc. et al. v. Dime Commercial Corporation. Adv. Proc. No. 02-04482
and Counterclaim.
NationsRent, Inc. et al. v. M Credit. Inc.. Adv. Proc. No. 02-04483 and
Counterclaim.
NationsRent, Inc. et al. v. Sanwa Business Credit Corp., Adv. Proc.
No. 02-04484
NationsRent, Inc. et al. v. AmSouth Leasing. Ltd., Adv. Proc. No. 02-04485
Motion of AmSouth Leasing to Compel; (I) Assumption or Rejection of
Unexpired Leases, (II) Payment of Post-Petition Lease Obligations, and
(III) Allowance and Payment of Administrative Expense Claim (Docket No.
450)
NationsRent, Inc. et al. v. South Trust Bank. Adv. Proc. No. 02-04486 Motion of
South Trust Bank for Order: (1) Allowing and Requiring Immediate
Payment of Unpaid PostPetition Rent as an Administrative Claim Pursuant
to 11 U.S.C. ss. 365(d)(10); (2) Compelling the Debtors to Assume or
Reject Unexpired Leases Pursuant to 11 U.S.C. ss. 365(d)(2); and (3)
Compelling the Debtors to Provide Adequate Protection Pursuant to 11
U.S.C. xx.xx. 361-362 (d)(l) and 363; or in the Alternative, Granting
South Trust Relief from the Automatic Stay Pursuant to 11 U.S.C. ss.
362(d)(l) and (2) (Docket No. 459)
NationsRent, Inc. et al. v. Citizens Leasing Corporation. Adv. Proc. No.
02-04488 and Counterclaim.
Motion for Relief from Stay Or In The Alternative For Adequate
Protection; (II) For Allowance and Payment Of An Administrative
Expense; (III) For Payment Of
--------------
(1) An additional adversary proceeding, NationsRent, Inc. et al v. Xxxx
Xxxxxxx Leasing Corp. Adv. Proc. No. 02-04617 has been voluntarily dismissed,
with NationsRent rejecting the leases involved in that proceeding. Also pending,
is a motion to reject the leases involved in the Verizon proceeding.
Schedule 9.7A
Postpetition Rent As Required Under 11 U.S.C. Section 365(d)(10); And
(IV) To Compel The Debtors To Assume Or Reject Leases (Docket No. 391)
NationsRent, Inc. et al. v. Southern Pacific BanCapital, Adv. Proc. No.
02-04489 and Counterclaim.
NationsRent, Inc et al. x. Xxxxx Credit Corporation, Adv. Proc. No. 02-04490
Motion of Zions Credit Corporation (i) for Adequate Protection Pursuant
to 11 U.S.C. 363(e) or in the Alternative for Relief from the Automatic
Stay, (ii) to Compel the Debtors to Assume or Reject Lease, and (iii)
for Allowance and Payment of an Administrative Expense Claim (Docket
No. 352)
NationsRent, Inc. et al. v. NorLease, Inc., Adv. Proc. No. 02-04494 and
Counterclaim.
Motion of NorLease, Inc. for Order: (A) for Allowance and Immediate
Payment of Unpaid PostPetiton Rent; (B) Requiring Debtors to Assume or
Reject Lease; and (C) Granting Adequate Protection (Docket No. 373)
Motion for Relief from Stay (Docket No. 374) NationsRent, Inc. et al.
v. ICX Corporation, Adv. Proc. No. 02-04495 and Counterclaim.
NationsRent, Inc. et al. v. Bombardier Capital Inc., Adv. Proc. - No.
02-04610
NationsRent, Inc. et al. v. TCF Leasing, Inc., Adv. Proc. No. 02-04469 and
Counterclaim.
Motion for Relief from Stay Motion of TCF Leasing, Inc.(i)Relief from
Automatic Stay or in the Alternative Adequate Protection;(ii) for
Allowance and Payment of Administrative Expense Claim; (iii) for
Payment of Postpetition Rent Under 11 U.S.C. Section 365(d)(10); and
(iv) to Compel the Debtors to Assume or Reject Equipment Lease (Docket
No. 393)
PROCEEDINGS BEING HANDLED BY XXXXXXXX XXXXXX & FINGER
NationsRent, Inc. et al. x. XxXxxxx Leasing Corporation, Adv. Proc. No. 02-04476
and Counterclaim.
NationsRent, Inc. et al. v. Pacific Century Leasing, Adv. Proc. No. 02-04478 and
Counterclaim.
Motion for Relief from Stay Motion of the Pacific Century Leasing, Inc.
For (i)(a) An Order Pursuant to 11 U.S.C. Section 362(d)(l) And (2)
Granting Relief From The Automatic Stay, Compelling Surrender And
Turnover of Property Or, In The Alternative, (b) Compelling The Debtor
To Provide Adequate Protection Pursuant to 11 U.S.C. Sections 361,
362(d)(l) and 363, or, in The Alternative, (c) Compelling The Debtor to
Assume or Reject Unexpired Leases Pursuant to 11 U.S.C. Section
365(d)(2), And(ii) Allowing An Administrative Claim Pursuant to 11
U.S.C. Sections 503(b)(l)(A) And 365(d)(10) (Docket No. 358).
NationsRent, Inc. et al. v. Banc One Leasing, Adv. Proc. No. 02-04491 and
Counterclaim.
Motion for Relief from Stay Motion of Banc One Leasing
Corporation(i)Relief from Automatic Stay or in the Alternative Adequate
Protection;(ii) for Allowance and Payment of Administrative Expense
Claim; (iii) for Payment of Postpetition Rent Under 11 U.S.C. Section
365(d)(10); and (iv) to Compel the Debtors to Assume or Reject
Equipment Lease (Docket No. 394)
SCHEDULE 9.7A
PROCEEDINGS BEING HANDLED BY XXXXXXXX XXXXXXXX & XXXXXXXXXXX AND XXXXX DAY
NationsRent, Inc. et al. v. IBJ Whitehall Business Credit Corporation. Adv.
Proc. No. 02-04694
Motion to Compel (I) Assumption or Rejection of Unexpired Lease, (II)
Payment of Post-Petition Lease Obligations and (III) Allowance and
Payment of Administrative Expense Claim (Docket No. 357).
NationsRent, Inc. et al. v. US Bancorp Equipment Finance, Inc., Adv. Proc. No.
02-04693
Motion to Compel (I) Assumption or Rejection of Unexpired Leases, (II)
Payment of Post-Petition Lease Obligations and (III) Allowance and
Payment of Administrative Expense Claim (Docket No. 359)
PROCEEDINGS BEING HANDLED BY XXXXXXXX XXXXXXXX & XXXXXXXXXXX
NationsRent, Inc. et al. v. Banc of America Leasing and Capital LLC. Adv. Proc.
No. 02-04737 and Counterclaim.
NationsRent, Inc. et al. v. Citicorp Del-Lease. Inc., d/b/a Citicorp Dealer
Finance. Adv. Proc. No. 02-04727
Motion to Compel (A) Debtor, Nationsrent, Inc. to Assume or Reject
Lease Agreements, (B) Compelling Payment Pursuant to 365(D)(10), (C)
for Relief from the Automatic Stay, or, in the Alternative, Granting
Adequate Protection and (D) Allowing Administrative Claim and Directing
Payment Thereof (Docket No. 502)
NationsRent, Inc. et al. x. Xxxxxx Financial Leasing. Inc., Adv. Proc. No.
02-04492 and Counterclaim.
Motion to Compel (I) Assumption or Rejection of Unexpired Lease, (II)
Payment of Post-Petition Lease Obligations and (III) Allowance and
Payment of Administrative Expense Claim Filed by Xxxxxx Financial
Leasing, Inc. (Docket No. 369)
NationsRent, Inc. et al. v. Key Corporate Capital. Inc., Adv. Proc. No. 02-04697
and Counterclaim.
NationsRent, Inc. et al. v. Verizon Credit. Inc.. Adv. Proc. No. 02-04704 and
Counterclaim.
NationsRent, Inc. et al. v. General Electric Capital Corporation. Adv. Proc. No.
02-04696 and Counterclaim.
Motion to Compel (I) Payment and Performance of Postpetition
Obligations, (II) For Allowance of Administrative Expense Claim, (IE)
Adequate Protection, (IV) To Compel Debtors to Assume or Reject
Unexpired Leases, (V) For an Accounting, and (VI) For Other Related
Relief (Docket No. 381) Motion for Relief from Stay or for Adequate
Protection and Notice of Non-Consent to Use of Cash Collateral (Docket
No. 649)
SCHEDULE 9.8
Materially Adverse Contracts
None
SCHEDULE 9.9
Compliance with Laws
The Borrowers are in compliance with all agreements, except for agreements not
performed as a result of filing the Cases.
SCHEDULE 9.14
Certain Transactions
Reference is made to (i) Note 16 ("Related Party Transactions") of the Notes to
Consolidated Financial Statements of NationsRent, Inc. contained in NationsRent,
Inc.'s Annual Report on Form 10K, dated May 24, 2002, for the year ended
December 31, 2001 (the "Form 10K") and (ii) the section entitled "Certain
Relationships and Related Transactions" contained in the Form 10K.
SCHEDULE 9.15.1
Employee Benefit Plans
None
SCHEDULE 9.17
Environmental Compliance
None
See attached Schedule 9.17A for listing of storage tanks.
SOUTHEAST REGION PETROLEUM AND NATURAL GAS TANK INVENTORY
STORE QUANTITY U.S.T.
NUMBER REGION ADDRESS CITY STATE OF U.S.T.'s GALLONS
33 SOUTHEAST 0000 Xxxxxxxxx Xx. Xxxxxxxx XX 0 0
34 SOUTHEAST 0000 X. Xxxxxxx Xxxxx Xxxx Xxxxxxxxx XX 0 0
35 SOUTHEAST 0000 Xxxxx Xxxx. Xxxxxx XX 0 0
36 SOUTHEAST 0000 X. Xxxxxxx Xxxxxxx Xx. Xxxxxx XX 0 0
56 SOUTHEAST 000 X. Xxxxxxx Xx. Xxxxxxx Xxxxx XX 0 0
57 SOUTHEAST 0000 Xxxx Xxxxxx Xxxxxxx XX 0 0
58 SOUTHEAST 000 X. Xxxxx xx Xxxx Xxxx. Xx. Xxxxxxxxx XX 0 0
59 SOUTHEAST 0000 Xxxxxxxxxx Xxxxxxx Xxxxxxxxxxxxx XX 0 0
61 SOUTHEAST 000 Xxxxxxx Xxxxxx Xxxxxxx XX 0 0
62 SOUTHEAST 0000 XX 00xx Xxx Xxxxxxxxx Xxxxx XX 0 0
64 SOUTHEAST 0000 Xxxx Xxxxx Xxxx Xxxxx XX 0 0
67 SOUTHEAST 0000 Xxxxxx Xxxxxx Xxxx Xxxxx XX 0 0
68 SOUTHEAST 0000 X.X. Xxxxxxxx Xx. Xxxxx XX 0 0
69 SOUTHEAST 0000 0xx Xxxxxx X. Birmingham AL 0 0
70 SOUTHEAST 0000 Xxxxxxx 000 X. Xxxxxxxxxx XX 0 0
74 SOUTHEAST 0000 Xxxx Xxxxxxx Xxxxxxxxxx XX 0 0
75 SOUTHEAST 1595 South Memorial Dr. Prattville AL 0 0
77 SOUTHEAST 00 Xxxx Xxxxxx Xxxxxxxxx XX 0 0
78 SOUTHEAST 0000 Xxxxxxx 00 X. Xxxxxxxxxxx XX 0 0
79 SOUTHEAST 0000 Xxxxxxx 00 X. Xxxxxxx XX 0 0
80 SOUTHEAST 0000 Xxxxxxxxx Xxxx. Xxxxxxxxxxxx XX 0 0
88 SOUTHEAST 000 X. Xxxxx Xxxxxxxx Xxxx. Xxxxxxxx XX 0 0
90 SOUTHEAST 0000 Xxxxxxxxx Xxxx. Xxxxxxxxx XX 0 0
92 SOUTHEAST 0000 X. Xxxx Xxxx Xxxxxxx Xxxxxxxxx XX 0 0
97 SOUTHEAST 0000 Xxxxx Xxxxx Xx. Xxxxxxxx XX 0 0
114 SOUTHEAST 0000 Xxx 00 Xxxxx Xxxxxx XX 0 0
136 SOUTHEAST 0000 Xxxx Xxxxxxx XX Xxxxxxxx XX 0 0
137 SOUTHEAST 0000 Xxxx Xxxxxx Xxxxxxxxx XX 0 0
139 SOUTHEAST 0000 Xxx Xxxxxxxxxx Xx. Tuscaloosa AL 3 1,000 D 1,000 D
1,000 GAS
141 SOUTHEAST 0000 Xxxxxx Xxxxxx Xxxxxx XX 0 0
142 SOUTHEAST 00000 Xxxxxx Xxxx. Xxxxxxxxxxx XX 0 0
146 SOUTHEAST 0000 X. Xxxxxxx Xxx. Xx. Xxxxxxxxxx XX 0 0
154 SOUTHEAST 0000 Xxxxx Xxxx 84
(INCLUDES STORE 66) Davie FL 0 0
155 SOUTHEAST 0000 Xxxxxxx Xxxxx Xxxx Xxxxxxxx XX 0 0
157 SOUTHEAST 0000 Xxxxxxxx Xxxxxxx Xxxxxxxxxxxx XX 0 0
166 SOUTHEAST 0000 X. Xxxxxxxxxx Xxxxxx Xxxxxxxxxx XX 0 0
167 SOUTHEAST 0000 Xxxxxxx Xxxxx Xxxxxxx XX 0 0
193 SOUTHEAST 5390 US 1 Ft. Xxxxxx FL 0 0
194 SOUTHEAST 0000 Xxxxxxx Xxxxx Xxxx Xxxxx XX 0 0
195 SOUTHEAST 0000 Xxxx Xxxxx Xxxxxxx XX 0 0
196 SOUTHEAST 0000 Xxxxxxx 0 Xxxxxxxxxxxx XX 0 0
208 SOUTHEAST 0000 X. Xxxxxx Xxxxxx Xxxxxxxxxx XX 0 0
227 SOUTHEAST 00000 XX Xxx 00 Xxxxx Xxxxxxxxxx XX 0 0
283 SOUTHEAST 00X-X Xxxx Xxxx Xxxxxx Xxxxxxxxxxxxxx XX 0 0
242 SOUTHEAST 0000 Xxxxxxxxx Xxxx Xxxxxxxxx XX 0 0
REGION TOTALS 3 0
QUANTITY LPG
STORE QUANTITY OF OF LPG (PROPANE)
NUMBER A.S.T.'s A.S.T. GALLONS TOTAL GALLONS TANKS GALLONS
33 3 1,000 D 1,000 D 500 GAS 2,500 1 400
34 2 500 D 500 GAS 1,000 0 0
35 2 500 D 500 GAS 1,000 0 0
36 2 500 GAS 500 D 1,000 0 0
56 1 SPLIT TANK 1,000 D 1,000 D 1,000 GAS 3,000 0 0
57 3 500 D 500 D 500 GAS 1,500 0 0
58 3 500 D 500 D 500 GAS 1,500 0 0
59 3 2,000 D 1,000 D 350 GAS 3,350 0 0
61 2 500 D 500 GAS 1,000 0 0
62 3 500 D 500 D 250 GAS 1,250 0 0
64 1 500 D 500 0 0
67 2 500 D 500 GAS 1,000 0 0
68 1 SPLIT TANK 1,000 D 1,000 D 1,000 GAS 3,000 0 0
69 4 550 D 550 GAS 250 2,350 1 800
KERESENE 1,000 D
70 3 500 D 500 KERESENE 250 GAS 1,250 1 1,000
74 4 1,000 D 1,000 D 1,000 GAS 250 3,250 1 500
KERESENE
75 3 NO TANKS ON SITE NO TANKS ON SITE 0 0
77 6 500 keresene 500 keresene 500 3,500 0 0
gas 500 gas 500 d 1,000 d
78 3 550 GAS 550 KERESENE 1,000 D 2,100 0 0
79 3 500 D 500 GAS 500 KERESENE 1,500 0 0
80 3 500 D 300 GAS 300 KERESENE 1,100 0 0
88 3 500 D 500 GAS 500 KERESENE 1,500 0 0
90 3 500 D 500 D 500 GAS 1,500 0 0
92 3 500 D 500 D 500 GAS 1,500 0 0
97 3 500 D 500 D 285 GAS 1,285 0 0
114 3 500 GAS 500 D 500 KERESENE 1,500 0 0
136 2 500 D 250 GAS 750 0 0
137 2 1500 D 1000 GAS 2,500 0 0
139 0 0 3,000 0 0
141 1 500 D 500 0 0
142 0 0 0 0 0
146 3 500 D 500 D 250 GAS 1,250 0 0
154 3 500 D 500 D 250 GAS 1,250 0 0
155 3 500 D 500 D 500 GAS 1,500 1 400
157 2 500 D 500 GAS 1,000 0 0
166 2 500 D 500 GAS 1,000 0 0
167 2 500 D 500 GAS 1,000 0 0
193 3 500 D 500 D 250 GAS 1,250 0 0
194 3 500 D 500 D 250 GAS 1,250 0 0
195 2 1,000 D 250 GAS 1,250 0 0
196 2 1,000 D 250 GAS 1,250 0 0
208 3 500 D 500 GAS 200 KERESENE 1,200 1 1,000
227 2 500 D 500 GAS 0 0 0
283 0 0 0 0 0
242 1 SPLIT TANK 2000 D 1000 GAS 3,000 0 0
REGION TOTALS 105 0 66,885 6 4,100
NORTHEAST REGION PETROLEUM AND NATURAL GAS TANK INVENTORY
STORE QUANTITY OF U.S.T. QUANTITY OF
NUMBER REGION ADDRESS CITY STATE U.S.T.'s GALLONS A.S.T.'s
115 NORTHEAST 00 Xxxxxxxx Xxxxxx X. Xxxxxxxx XX 0 0 0
116 NORTHEAST 000 X. Xxxx Xxxx X. Xxxxxxxx XX 0 0 2
117 NORTHEAST 0000 Xxxx Xxxxxxxxx Xxxx Xxxxxx XX 0 0 1
118 NORTHEAST 000 Xxxx Xxxx Xxxxxx XX 0 0 2
119 NORTHEAST 00 Xxx Xxxxxxxxxx Xxxx Candia NH 0 0 2
123 NORTHEAST 00 Xxxxxxxx Xxxxxx. Xxx. 0 X. Xxxxxxxxxx XX 0 0 0
124 NORTHEAST 000 Xxxxxxxx Xxxxxxxx Xxxxxxxxxx XX 0 0 2
125 NORTHEAST 0000 Xxxx Xxxx Xxx. Xxxx Xxxx XX 0 0 2
128 NORTHEAST 000 XX Xxxxxx Xxxxxxxxx XX 0 0 0
129 NORTHEAST 00 Xxxxxxx Xxxx Xxxxxxxxx VT 0 0 0
130 NORTHEAST 0000 Xxxxxxx Xxxxxx Xxxxxx XX 0 0 0
148 NORTHEAST 000 Xxxxxxxxxx Xxx. Xxxxxxxx XX 0 0 2
149 NORTHEAST 0000 Xxxxxxxxxx Xxx. Xxxxxx XX 0 0 2
150 NORTHEAST 0 Xxxx Xxxx Xxxxxxxxxx XX 0 0 1
161 NORTHEAST 000 Xxx Xxxxxx Xxxxxx Xxxxx XX 0 0 0
186 NORTHEAST 000 Xxxxxx Xxxxxx Xxxxxxxxxx XX 0 0 0
000 XXXXXXXXX 00 Xxxxxx Xxxxxx Xxxxx Xxxxxxxxx XX X 0 0
000 XXXXXXXXX 00 X. 00xx Xxxxxx Xxxxxxxx XX 0 0 0
203 NORTHEAST 000 Xxxxx 000 Xxxxxxxxx Xxxxx Xxxxx XX 0 0 2
204 NORTHEAST 000 Xxxxxxxx Xxxxxxx XX 0 0 0
205 NORTHEAST 00 Xxxx Xxxxxx Xxxxxxxx XX 0 0 2
206 NORTHEAST 000 X. Xxxxxxx Xxxxxxx Xxxxxxxx XX 0 0 0
207 NORTHEAST 000-00 X. Xxxxxxx Xxxxxx X. Xxxxx Xxxx XX 0 0 0
0 0 21
QUANTITY OF LPG
STORE A.S.T. A.S.T. TOTAL LPG (PROPANE)
NUMBER LISTING GALLONS GALLONS TANKS GALLONS
115 0 0 0 0 0
116 275 D; 000 X 000 000 0 0
117 275 K 275 275 1 1,000
118 500 D; 250 K 750 750 1 500
119 500 D; 275 K 775 775 1 1,000
123 0 0 0 0 0
124 4,000 D; 1,500 D 5,500 5,500 0 0
125 1000 D; 275 K 1,275 1,275 0 0
128 0 0 0 0 0
129 0 0 0 0 0
130 0 0 0 1 1,000
148 1,000 D; 1,000 G 2,000 2,000 0 0
149 1,000 D; 1,000 G 2,000 2,000 0 0
150 1,000 D; 1,000 G 2,000 2,000 0 0
161 0 0 0 0 0
186 0 0 0 1 1,000
197 1,000 D 1,000 1,000 0 0
198 0 0 0 0 0
203 1,000 D; 1,000 K 2,000 2,000 0 0
204 0 0 0 0 0
205 275 D; 275 K 550 550 0 0
206 0 0 0 0 0
207 0 0 0 0 0
0 18,675 18,675 5 4,500
MIDWEST REGION PETROLEUM AND NATURAL GAS TANK INVENTORY
QUANTITY
STORE OF QUANTITY
NUMBER REGION ADDRESS CITY STATE U.S.T.'s U.S.T. GALLONS OF A.S.T.'s
1 MIDWEST 0000 X. Xxxxx Xx. Xxxxxxxx XX 1 20,000 4
2 MIDWEST 0000 Xxxxxxxxxxx Xxxx Xxxxxxxxxxx XX 0 0 2
3 MIDWEST 0000 Xxxxxxxx Xxxx Xxxxxxxx XX 0 0 2
4 MIDWEST 0000 Xxxxxxxx Xxxxxx Xxxxxxxxxx XX 0 0 2
5 MIDWEST 0000 Xxxxxx Xxxx Xxxxx XX 0 0 3
6 MIDWEST 0000 Xxxxxx Xxxxxxx Xxxxxxx XX 0 0 3
7 MIDWEST 000 Xxxxxxxxx Xxxx Xxxxxx XX 0 0 2
11 MIDWEST 0000 X. Xxxx Xxxxxx Xxx Xxxxx. XX 0 0 3
12 MIDWEST 0000 Xxxxxx Xxxx Xxxx Xxxxxxxxx XX 0 0 2
13 MIDWEST 0000 Xxxx Xxxxxx Xxxx Xxxxxxx XX 0 0 3
14 MIDWEST 0000 Xxxxxx Xxxxx XX X. Xxxxxx XX 0 0 3
15 MIDWEST 0000 Xxxxx Xxxxxxxxx Xxxx Xxxxxxxxx XX 0 0 3
17 MIDWEST 0000 Xxxxxx Xxxxx Xxxxxx Xxxxxxxxxx XX 0 0 2
18 MIDWEST 0000 Xxxxxxx Xxxxxx Xxxxxx XX 0 0 2
20 MIDWEST 0000 Xxxxxxxxxx Xxxxxx Xxxxxxx XX 0 0 2
21 MIDWEST 000 Xxxx Xxx Xxxxxxx Xxxxxxxxx XX 0 0 3
24 MIDWEST 0000 XxxXxxxxx Xxxxxx XX Xx. Xxxxxx XX 0 0 1
25 MIDWEST 0000 Xxxxxxxx Xxxxxx Xxxx Xxxxxxxx XX 0 0 1
26 MIDWEST 9999 Xxxxxxxxx Court Noblesville IN 0 0 4
27 MIDWEST 8639 X. Xxxxxxxxxx Indianapolis IN 0 0 3
29 MIDWEST 00000 X. Xxxxxxxx Xxxx Carmel IN 0 0 4
31 MIDWEST 0000 X. Xxxxxxxx Xxxx Xxxxxxxx XX 0 0 3
32 MIDWEST 0000 X. Xxxxxxxx Xxxx. Ft. Xxxxx IN 0 0 3
38 MIDWEST 00000 Xxxxxxx Xx. / X.X. Xxx 00 Independence KY 0 0 3
39 MIDWEST 1651 Toledo Rd. Elkhart IN 0 0 3
48 MIDWEST 0000 X. 0 Xxxx Xxxxxx Xxxxx Xxxx XX 0 0 3
49 MIDWEST 00000 Xxxxx Xxxxx Xxxxxx Xxxx XX 0 0 2
50 MIDWEST 000 Xxxxxxxxx Xx. Xxxxxxxxxx XX 6,000 D: 6,000 D 12,000 1
51 MIDWEST 4949 X. Xxxxxxx St. Indianapolis IN 0 0 6
52 MIDWEST 0000 Xxxxxx Xx. Xxxxxxxxxx XX 0 0 2
53 MIDWEST 0000 X. Xxxxxxx Xxx Xxxxxxx XX 0 0 3
54 MIDWEST 00000 Xxxxxxxxx Xx. Xxxxxxxxx XX 0 0 2
60 MIDWEST 0000 Xxxx Xx. Xxxxxxxx Xxxx XX 0 0 2
113 MIDWEST 00000 Xxxxxxxxx Xxx. Xxxxxx XX 0 0 0
156 MIDWEST 000 Xxxxxxxx Xxxxxxx X. Xxxxxxxxx XX 0 0 4
165 MIDWEST 0 Xxxxx Xxxx Xxxxx XX 0 0 2
187 MIDWEST 0000 Xxxxx Xxxx Xxxxxxxxxxxx IN 0 0 4
188 MIDWEST 000 Xxxxx Xxxxx Xxxx Xxxx Carmel IN 0 0 5
191 MIDWEST 000 X. Xxxxx Xxxxxx Xxxxxxxxx XX 0 0 2
192 MIDWEST 0000 Xxxxx Xxxxxxx Xxxxxxxxx XX 0 0 2
216 MIDWEST 0000 Xxxxxx Xxxxxxxxx Xxxxxx XX 0 0 2
235 MIDWEST 0000 Xxxxxxxxxxxx Xxxxxx Xxxxx Xxxxxxxx XX 0 0 0
236 MIDWEST 0000 Xxxxx Xxxxxxxx Xxxx Xxxxxxxx XX 0 0 0
241 MIDWEST 0000 Xxxxx Xxxxxx Xxxxxx XX 0 0 2
247 MIDWEST 000 Xxxxxx Xxxxxx Xxxxx Xxxxx IN 0 0 3
1 32,000 113
STORE QUANTITY OF LPG (PROPANE)
NUMBER A.S.T. LISTING A.S.T. GALLONS TOTAL GALLONS LPG TANKS GALLONS
1 1,000 G, 2,000 D 3,700 23,700 1 1,000
(split); 400 K;
300 bad fuel
2 500 G; 500 D; 250 K 1,250 1,250 1 1,000
3 200 G; 200 D 400 400 0 0
4 500 G; 500 D; 250 K 1,250 1,250 0 0
5 1,000 D; 500 G 2,000 2,000 1 1,000
(split); 500 K
6 1,000 D; 500 G; 300 K 1,800 1,800 1 1,000
7 250 D; 250 G 500 500 0 0
11 500 G; 500 D; 300 K 1,300 1,300 0 0
12 1,000 D; 500 G 1,000 1,000 1 1,000
13 300 D; 300 G; 300 K 900 900 0 0
14 500 D; 500 D; 500 G 1,500 1,500 0 0
15 2,000 D; 550 G; 550 K 3,100 3,100 0 0
17 1,000 D:1,000G 2,000 2,000 0 0
18 500 D;500 G 1,000 1,000 0 0
20 500 D;500 G 1.000 1,000 0 0
21 500 G; 500 D; 300 K 1.300 1,300 0 0
24 2,000 D 2,000 2,000 0 0
25 1,000 D 1,000 1,000 0 0
26 500 D; 500 G; 300 K 1,300 1,300 1 1,000
27 500 G; 500 D; 500 K 1,500 1,500 1 1,000
29 500 D; 500 D; 500 G; 250 - K 1,750 1,750 1 1,000
31 500 G; 500 D; 500 K 1,500 1,500 0 0
32 2,000 D;1,000 G; 250 K 3,250 3,250 Removed By Propane Supplier September 2002
38 2,500 D; 2,000 D; 200 G 4,700 4,700 0 0
39 500 G; 500 D; 500 K 1,500 1,500 0 0
48 1,000 D; 300 G; 300 K 1,600 1,600 1
49 550 D; 500 G 1,050 1,050 1 1,000
50 400 K 400 12,400 0 1,000
51 10,000 D; 10,000 D; 500 D 22,000 22,000 0 0
500 D; 500 G; 500 K
52 500 D; 500 G 1,000 1,000 0 0
53 500 D; 500 G; 275 K 1,275 1,275 0 0
54 3,000 D;,1,000 G 4,000 4,000 0 0
(split)
60 1,000 D; 1,000 G 2,000 2,000 0 0
113 0 0 0 1 1,000
156 500 D; 500 G; 500 K 1,500 1,500 0 0
165 275 D:275 D 550 550 0 0
187 500 K; 500 D; 200 G 1.200 1,200 1 1,000
188 550 D; 500 G; 500 K; 1,750 1,750 1 1,000
100 K; 100 K
191 600 D: 400 G 1,000 1,000 0 0
192 500 D; 500 G 1,000 1,000 1 1,000
216 500 D: 500 G 1,000 1,000 0 0
235 na 0 0 0 0
236 na 0 0 0 0
241 500 D; 500 G (split) 1,000 1,000 0 0
247 500 D; 500 D; 500 G 1,500 1,500 0 0
86,325 118,325 14 14,000
WEST REGION PETROLEUM AND NATURAL GAS TANK INVENTORY
STORE QUANTITY OF U.S.T.
NUMBER REGION ADDRESS CITY STATE U.S.T.'S GALLONS
131 WEST 0000 Xxxxxxx Xxxx. Xxxxxx Xxxxxxx XX 0 0
132 WEST 0000 Xxxxxxxxx Xxxx. Xxxxxxxxxx XX 0 0
134 WEST 0000 Xxxxxxx Xxxx Xxxxxxxxxx XX 0 0
135 WEST 0000 Xxxxxxxx Xxxxxx Xxxxxx XX 0 0
140 WEST 00000 Xxxxxxxx Xxxxx Xxxxxxxxx XX 0 0
000 XXXX 00 Xxxx 0000 Xxxxx Xxxx Xxxx Xxxx XX 0 0
145 WEST 000 Xxxxx Xxxxxx Xxx Xxxxxx XX 0 0
158 WEST 0000 X. Xxxxx Xxxx Xxxxxxxxx XX 0 0
172 WEST 0000 X. Xxxxxx Xxxxxx Xxxxxxx XX 0 0
173 WEST 0000 X. XxXxxxxx Xxxxxxxxxx XX 0 0
174 WEST 0000 X. Xxxxxx Xx. Xxxxxxx XX 2,000 D,
2,000 D, 2,000 G 6,000
000 XXXX 0000 X. Xxxxxxxx Xxxxxx Xx Xxxxx XX 0 0
177 WEST 0000 XX Xxxxxxx 00 Xxxxxxxx XX 0 0
178 WEST 83651 Doctor Xxxxxxx Blvd. Indio CA 0 0
180 WEST 0000 X. Xxxxxxx Xxxx. Xxxxxx XX 12,000 D,
12,000 D, 12,000 G 36,000
000 XXXX 0000 Xxxxxxxx Xxx. Xxxxxxxxx XX 0 0
184 WEST 0000 Xxxxxxx Xx. Xxx Xxxxx XX 10,000 D, 10,000 D, 10,000 38,000
G, 8,000 K
199 WEST 0000 Xxxxx Xxxxxxx Xxxxxxx XX 0 0
000 XXXX 000 X. Xxxx Xxxxxxxx XX 1,000 D, 1,000 G, 1,000 K 3,000
201 WEST 00000 Xxxxx Xxxxxx Xxxxxxxxxx XX 0 0
202 WEST 000 Xxxxxxxx Xxxxx Xxxxxxxx XX 0 0
210 WEST 00000 X. Xxxxxx Xxxx. Xxxx xx Xxxxxxxx XX 0 0
212 WEST 0000 Xxxxxxxxx Xxx. Xxxxxx Xxxxxxxxx XX 0 0
213 WEST 00000 Xxxxxxx Xxx. Xxxxx XX 0 0
218 WEST 000 X. Xxxxxxx Xxxxxx Xxxxx Xxxx XX 10,0000 D, 10,0000 G 20,000
000 XXXX 000 Xxxx Xxxx Xxxxxx Xxxx Xxxxxx XX 0 0
000 XXXX 0000 Xxxxx 0000 Xxxx Xxxx Xxxx XX 0 0
15 103,000
QUANTITY
OF LPG
STORE QUANTITY OF A.S.T. TOTAL LPG (PROPANE)
NUMBER A.S.T.'S GALLONS GALLONS TANKS GALLONS
131 500 D, 500 G 1,000 1,000 1 1,000
132 500 D, 500 G 1,000 1,000 1 1,000
134 2,000 D, 500 D, 500 G 3,000 3,000 1 1,150
135 500 D, 500 G 1,000 1,000 1 1,150
140 500 D, 500 G 1,000 1,000 1 1,000
144 500 D, 500 G 1,000 1,000 1 1,000
145 1,000 D, 1,000 G 2,000 2,000 1 1,100
158 500 D, 500 G 1,000 1,000 0 0
172 1,000 D, 1,000 G 2,000 2,000 1 500
173 500 D, 500 G 1,000 1,000 1 500
174
0 0 6,000 0 0
175 0 0 0 1 500
177 2,5000, 750 D, 1,500 G 4,750 4,750 1 500
178 500 D, 500 G 1,000 1,000 0 0
180
0 0 36,000 0 0
182 500 D, 500 D, 240 G 1,240 1,240 0 0
184 0 0 38,000 1 500
199 500 D, 750 G, 500 K 1,750 1,750 3 3,000
200 0 0 3,000 1 1,000
201 750 D, 500 G, 500 K 1,750 1,750 1 1,000
202 500 D, 500 G 1,000 1,000 1 1,200
210 500 D, 500 D, 500 G 1,500 1,500 1 1,000
212 500 D, 100 D, 100 G 700 700 1 500
213 500 D, 290 G 790 790 1 1,100
218 0 0 20,000 1 100
219 1,000 D, 1,000 G 2,000 2,000 1 500
245 500 D, 500 G 1,000 1,000 1 1,000
49 31,480 134,480 24 20,300
CENTRAL REGION PETROLEUM AND NATURAL GAS TANK INVENTORY
STORE QUANTITY U.S.T.
NUMBER REGION ADDRESS CITY STATE OF U.S.T.'S GALLONS
40 CENTRAL 0000 Xxxxxxx 00 Xxxx Xxxx Xxxxxxx XX 0 0
43 CENTRAL 000 Xxxxx Xxxxxx Xxxxxxxx XX 0 0
44 CENTRAL 0000 Xxxxxxx 00 Xxxx Xxxxxx XX 0 0
45 CENTRAL 0000 Xxxxx Xxxxxx Xxxxx Xxxxx Xxxx XX 0 0
46 CENTRAL 0000 XX 0000 Xxxxxx XX 0 0
47 CENTRAL 0000 Xxxx Xxxx 000 Xxxxxxxx XX 0 0
71 CENTRAL 0000 XX 00 Xxxxxxxx XX 0 0
72 CENTRAL 0000 Xxxxxx Xxxxxxx Xxx Xxxxxxx XX 0 0
73 CENTRAL 0000 Xxxxxxx 000 Xxxxxx XX 0 0
81 CENTRAL 00000 Xxxxxxxxx Xxxxxxx Xxxxxxx XX 0 0
82 CENTRAL 000 Xxxxx Xxxxxxx Xxxxxx Xxxxxx XX 0 0
84 CENTRAL 0000 Xxxx Xxxx 000 Xxxxxxxx XX 0 0
86 CENTRAL 00000 XX 0000 Xxxxxx XX 0 0
87 CENTRAL 0000 Xxxxx Xxxxx Xxxxxx Xxxxxxxxxxxxxx XX 0 0
98 CENTRAL 000 X. Xxxxx Xx. Xxxxx XX 10,000 D, 8,000 D, 28,000
5,000 G, 5,000 K
100 CENTRAL 00000 X. Xxxxxxxx Xxxxxxx Xxxxxx XX 6,000 D, 2,000 D, 4,000 G 12,000
101 CENTRAL 0000 X. Xxxxxxxx Xxxxxxxxx XX 10,000 D, 5,000 D, 5,000 25,000
G, 5,000 K
102 CENTRAL 0000 X. Xxxx 00 Xxxxxx XX 10,000 D, 5,000 D, 5,000 25,000
G, 5,000 K
000 XXXXXXX 000 0-00X Xxxxx Xxxxxx XX 6,000 D, 4.000 D, 4,000 G 14,000
104 CENTRAL 0000 Xxxxxxxxxx Xxxxx XX 6,000 D, 6,000 D,
4,000 G, 2,000 K 18,000
000 XXXXXXX 000 X. Xxxxxx Xx. Xxxxxxxxx XX 5,000 D, 3,000 D, 1,000 G 9,000
106 CENTRAL 0000 Xxxxxx Xxxx Xxxxxxx XX 5,000 D, 5,000 D, 2,000 G 12,000
107 CENTRAL 0000 X. Xxxxxxx Xx. Xxxxxx XX 5,000 D, 2,000 D, 2,000 G, 1,000 10,000
108 CENTRAL 0000 Xxxxxxx 000 X. Xxxxxx XX 6,000 D, 4,000 G, 2,000 K 12,000
109 CENTRAL 0000 Xxxxxxx Xxxxx Xxxx XX 0 0
110 CENTRAL 0000 Xxxxxxxx Xx. Xxxxxxxx XX 0 0
112 CENTRAL 0000 Xxxxxxx 000 X. Xx. Xxxxx XX 2,000 D, 3,000 G 5,000
152 CENTRAL 0000 X. X-00 Xxxxxx XX 0 0
153 CENTRAL 000 X.X. Xxxxxxxx Xxxxxxxx XX 0 0
171 CENTRAL 0000 Xxxxx Xxxxxxx 000 Xxxxxxx XX 0 0
190 CENTRAL 0000 X. Xxxxxxxxx Xxx. Denison TX 0 0
214 CENTRAL 000 Xxxxx Xxxxxxxxxx 00 Xxxxx Xxxx XX 0 0
220 CENTRAL 3805 Xxxxx Houston TX 0 0
221 CENTRAL 0000 Xxxxx Xxxxxxx Xxxxxxxx XX 0 0
222 CENTRAL 0000 Xxxxxxx Xxxxxxx Xxxxxxxx XX 0 0
223 CENTRAL 000 Xxxxxxxx Xxxxxxxx Xxxx Xxxxxx Xxxxxxx XX 0 0
225 CENTRAL 0000 Xxxxxxxx Xxxxxxxx XX 0 0
226 CENTRAL 000 Xxxxxxxx Xxxxx Xxxxx XX 0 0
237 CENTRAL 00000 Xxxx Xxxxxxx Xxxx XX 0 0
238 CENTRAL 00000 Xxxxx Xxx 000 Xxxxxxx XX 0 0
244 CENTRAL 0000 Xxxxxxxx Xxxxxxxxxx Xxxxxxx XX 0 0
246 CENTRAL 0000 Xxxx Xxx 000 Xxxxxxxx Xxxxxxxxxx XX 0 0
335 CENTRAL 0000 Xxxxxxxxxx Xx Xxxxxxx XX 0 0
37 170,000
STORE QUANTITY A.S.T. TOTAL QUANTITY OF LPG (PROPANE)
NUMBER OF A.S.T.'s GALLONS GALLONS LPG TANKS GALLONS
40 1,000 G 5,000 5,000 0 0
43 10,000 D, 6,000 D, 1,000 G 17,000 17,000 0 0
44 2,000 D, 2,000 D, 1,000 G 5,000 5,000 0 0
45 2,000 0, 2,000 D, 1,000 G 5,000 5,000 0 0
46 2,000 D, 2,000 D, 1,000 G 5,000 5,000 0 0
47 2,000 D, 2,000 G, 300 K 4,300 4,300 0 0
71 1,200 D, 800 G 2,000 2,000 0 0
72 1,000 D, 1,000 G 2,000 2,000 0 0
73 3,00 D, 300 G 600 600 0 0
81 2,000 D, 2,000 D, 1,000 G, 5,200 5,200 0 0
200 K
82 500 D, 500 G 1,000 1,000 0 0
84 2,000 D, 2,000 D, 500 G, 500 G 5,000 5,000 0 0
86 1,000 D, 1,000 X, 000 X, 000 X 3,000 3,000 0 0
87 250 D, 250 G 500 500 0 0
98 500 D, 500 G 1,000 29,000 0 0
100 500 D, 500 G 1,000 13,000 0 0
101 500 D, 500 G 1,000 26,000 0 0
102 500 D, 500 G 1,000 26,000 0 0
103 500 D, 500 G 1,000 15,000 0 0
104 500 D, 500 G 1,000 19,000 0 0
105 500 D, 500 G 1,000 10,000 0 0
106 500 D, 500 G 1,000 13,000 0 0
107 500 D. 500 G 1,000 11,000 0 0
108 500 D, 500 G 1,000 13,000 0 0
109 6,000 D, 4,000 D, 2,000 G 12,000 12,000 0 0
110 600 D, 400 G 1,000 1,000 0 0
112 500 D, 500 G 1,000 6,000 0 0
152 1,000 D, 1,000 X, 000 X, 000 X 3,500 3,500 0 0
153 1,000 D, 1,000 G 2,000 2,000 0 0
171 1,200 D, 800 G 2,000 2,000 0 0
190 550 D, 1,000 D, 550 G 2,100 2,100 0 0
214 1,000 D, 1,000 G 2,000 2,000 0 0
220 250 D, 250 D, 250 G 750 750 0 0
221 500 G, 500 D 1,000 1,000 0 0
222 250 D, 000 X, 000 X, 000 X 1,000 1,000 0 0
223 1000 D, 500 G 1,500 1,500 0 0
225 500 G, 500 D 1,000 1,000 0 0
226 2,000 D, 2,000 D, 1,000 G 5,000 5,000 0 0
237 0 0 0 0 0
238 0 0 0 0 0
244 1,000 D, 500 G 1,500 1,500 0 0
246 500 D, 500 G 1,000 1,000 0 0
335 500 G, 500 D 1,000 1,000 0 0
102 109,950 279,950 0 0
SCHEDULE 9.18
Subsidiaries: Capitalization
Subsidiary Capitalization Shareholder
NRGP, Inc. 1,000 authorized shares of stock, par value $.01 per share,
100 shares issued and outstanding NationsRent, Inc.
NationsRent USA, Inc. 1,000 authorized shares of stock, par value $.01 per share,
100 shares issued and outstanding NationsRent, Inc.
NationsRent West, Inc. 1,000 authorized shares of stock, par value $.01 per share,
100 shares issued and outstanding NationsRent, Inc.
Xxxxx Equipment Corp. 1,000 authorized shares of stock, par value $.01 per share,
100 shares issued and outstanding NationsRent, Inc.
NationsRent
Transportation Services, Inc. 1,000 authorized shares of stock, par value $.01 per share,
100 shares issued and outstanding NationsRent, Inc.
NR Franchise Company 1,000 authorized shares of stock, par value $.01 per share,
100 shares issued and outstanding NationsRent, Inc.
BDK Equipment Company, Inc. 20,000 authorized shares of stock, 4,388 shares
issued and outstanding NationsRent, Inc.
NR Delaware, Inc. 1,000 authorized shares of stock, par value $.01 per
share, 100 shares issued and outstanding NRGP, Inc.
NR Dealer, Inc. 1,000 authorized shares of stock, par value $.01 per
share, 100 shares issued and outstanding NationsRent West, Inc.
NationsRent of Texas, LP NRGP, Inc. is the sole
general partner (1%
interest) and NR Delaware,
Inc. is the sole limited
partner (99% interest)
NationsRent of Indiana, LP NRGP, Inc. is the sole
general partner (1%
interest) and NationsRent
USA, Inc. is the sole
limited partner (99%
interest)
SCHEDULE 9.19
Disclosure
All matters disclosed in the Borrowers' (i) budgets submitted to General
Electric Capital Corporation as the Administrative Agent; (ii) filings with the
Securities and Exchange Commission; and (iii) filings with the Bankruptcy
Court.
SCHEDULE 9.21
Bank Accounts
See attached schedule 9.21-A
Schedule 9.21-A
NationsRent, Inc. Bank Account Listing
Bank Account Name Region Account #
Bank of America, N.A. NationsRent of Texas, LP - Central Region C 003661088471
Bank of America, N.A. NationsRent of Texas, LP C 003664331662
Bank of America, N.A. NationsRent of Texas, LP - Central Region C 003660352985
Bank of America, N.A. NationsRent, Inc. - Central Region C 000480109547
Bank One, TX NationsRent of Texas, LP C 1559623689
Bank One, LA NationsRent USA, Inc. C 1578390427
Xxxxxx State Bank NationsRent TX, LP C 0042226
Pioneer National Bank NationsRent TX, LP C 0000000
Texas Gulf Bank NationsRent TX, LP C 1000709527
Bank of America, N.A. NationsRent, Inc. - Corporate Corp 003448966978
Bank of America, N.A. NationsRent USA, Inc. - Midwest Region MW 003664331727
Bank of America, N.A. NationsRent USA, Inc. - Midwest Region MW 003664331675
Bank One, OH NationsRent USA, Inc. MW 618061964
Fifth Third Bank NationsRent USA, Inc. MW 00000000
Huntington Bank NationsRent USA, Inc. MW 01891796483
National City Bank, PA NationsRent USA, Inc. MW 239444092
Bank of America, N.A. NationsRent USA, Inc. - Northeast Region NE 003664919071
Sank of America, N.A. NationsRent USA, Inc. NE 003664919084
Bank of America, N.A. NationsRent USA, Inc. NE 003448966826
Fleet Bank NationsRent USA, toe. NE 9395545478
Bank of America, N.A. NationsRent USA, Inc. - Southeast Region SE 003664331730
Bank of America, N.A. NationsRent USA, Inc. - Southeast Region SE 003664331701
Bank of America, N.A. NationsRent USA, Inc. SE 003664331743
Legions Bank NationsRent USA, toe. SE 0509085785
Bank of America, N.A. NationsRent West, Inc. W 003664919097
Bank of America, N.A. NationsRent West, Inc. W 003664919107
Bank of America, N.A. NationsRent West, Inc. W 003664331659
Xxxxx Fargo Bank NationsRent USA, toe. W 1828114811
Bank of America, N.A. NationsRent, Inc. - Gov't EFT Corp 003661088866
Bank of America, N.A. NationsRent, Inc. - Master Clearing Corp 003660952537
Fifth Third Bank NationsRent USA, toe. MW 00000000
Citibank, N.A. NationsRent, Inc. Corp 00000000
Citibank, N.A. NationsRent, Inc. Corp 00000000
Citibank, N.A. NationsRent, Inc. Corp 0495214918
Citibank, N.A. NationsRent, Inc. Corp 0551955115
Fleet Bank NationsRent, Inc. Corp 31-0000000-LC
Fleet Bank NationsRent, Inc. Corp 0080219562
Fleet Bank NationsRent, Inc. Corp 0080219570
Fleet Bank NationsRent, Inc. - Flex Spending Account Corp 9421967808
Purpose Address
Depository - Merchant 0 Xxxxxxxxx Xxxxx 00xx Xxxxx Xx. Xxxxxxxxxx XX 333
Lockbox - Central Region 0 Xxxxxxxxx Xxxxx 00xx Xxxxx Xx. Xxxxxxxxxx XX 333
Regional Depository 0 Xxxxxxxxx Xxxxx 00xx Xxxxx Xx. Xxxxxxxxxx XX 333
Store Checking - C Region 0 Xxxxxxxxx Xxxxx 00xx Xxxxx Xx. Xxxxxxxxxx XX 333
Regional Depository 0000 Xxxx Xxxxxx Xxxxxx XX 752
Regional Depository 000 Xxxxxxx Xxxxxx Xxxxx Xxxxx XX 708
Regional Depository X.X. Xxx 000 Xxxxxx XX 775
Regional Depository 0000 X. Xxxxx Xxxxxxxxxxxxxx XX 786
Regional Depository 0000 Xxxxxx Xxxxx Xxxxx XX 775
Merchant Account - Lowe's Credit Card 1 Financial Plaza 13th Floor Ft. Lauderdale FL 333
Depository - Merchant 0 Xxxxxxxxx Xxxxx 00xx Xxxxx Xx. Xxxxxxxxxx XX 333
Regional Clearing Account 0 Xxxxxxxxx Xxxxx 00xx Xxxxx Xx. Xxxxxxxxxx XX 333
Regional Depository 000 X. Xxxxx Xxxxxx Xxxxxxxx XX 432
Regional Depository 00 Xxxxxxxx Xxxxxx Xxxxx XX#0000X0 Xxxxxxxxxx XX 452
Regional Depository X.X. Xxx 0000 Xxxxxxxx XX 432
Regional Depository 0000 Xxxxxxx Xxxxxxxxx Xxxxxxxxxx XX 152
Depository - Merchant 0 Xxxxxxxxx Xxxxx 00xx Xxxxx Xx. Xxxxxxxxxx XX 333
Depository - Regional Clearing 0 Xxxxxxxxx Xxxxx 00xx Xxxxx Xx. Xxxxxxxxxx XX 333
Lockbox - N.E. Region 0 Xxxxxxxxx Xxxxx 00xx Xxxxx Xx. Xxxxxxxxxx XX 333
Regional Depository 000 Xxxxxxx Xxxxxx Xxxxxxxx XX 060
Depository - Merchant 0 Xxxxxxxxx Xxxxx 00xx Xxxxx Xx. Xxxxxxxxxx XX 333
Depository - SE Region 1 Financial Plaza 13th Floor Ft. Lauderdale FL 333
Lockbox - S.E. Region 0 Xxxxxxxxx Xxxxx 00xx Xxxxx Xx. Xxxxxxxxxx XX 333
Depository 000 Xxxxx 00xx Xxxxxx Xxxxxxxxxx XX 352
Depository - Lockbox 1 Financial Plaza 13th Floor Ft. Lauderdale FL 333
Depository - Merchant 0 Xxxxxxxxx Xxxxx 00xx Xxxxx Xx. Xxxxxxxxxx XX 333
Depository - West Region 1 Financial Plaza 13th Floor Ft. Lauderdale FL 333
Depository P.O. Box 5247 Denver CO 802
Vendor EFT Payments 1 Financial Plaza 13th Floor Ft. Lauderdale FL 333
Master Funding Account 0 Xxxxxxxxx Xxxxx 00xx Xxxxx Xx. Xxxxxxxxxx XX 333
Regional Lockbox 00 Xxxxxxxx Xxxxxx Xxxxx XX#0000X0 Cincinnati OH 452
Health Benefits Account (Cigna) One Penn's Way Newcastle DE 197
Health Benefits Account (Cigna) CA One Penn's Way Newcastle DE 197
Investment Account 000 X. 00 Xxxxxx Xxx Xxxx XX 100
Investment Account 000 X. 00 Xxxxxx Xxx Xxxx XX 100
Investment Account 000 Xxxxxxx Xxxxxx Xxxxxxxx XX 060
Master A/P Account 000 Xxxxxxx Xxxxxx Xxxxxxxx XX 060
Government EFT Account - Sales Tax 000 Xxxxxxx Xxxxxx Xxxxxxxx XX 060
Reimbursement Account (Cigna) 000 Xxxxxxx Xxxxxx Xxxxxxxx XX 060
NationsRent, Inc. Bank Account Listing
Bank Account Name Region Account #
Fleet Bank NationsRent, Inc. Corp 9429140752
Fleet Bank NationsRent, Inc. Corp 9429140760
Fleet Bank NationsRent, Inc. - Master Payroll Account Corp 9429147989
Fleet Bank Xxxxx Equipment - Union Payroll Account Corp 9429147997
Fleet Bank Xxxxx Equipment, Inc. - Union Dues Corp 9429167816
Fleet Bank NationsRent, Inc. - Health Benefits Corp 9429167824
Fleet Bank NationsRent USA, Inc. Corp 9429175672
Fleet Bank NationsRent of Indiana, LP Corp 9429175680
Fleet Bank NationsRent of Texas, LP Corp 9429175699
Fleet Bank NationsRent West, Inc. Corp 9429175701
Fleet Bank BDK Equipment Company Inc. Corp 9429175728
Purpose Address
Depository Master Operating Account 000 Xxxxxxx Xxxxxx Xxxxxxxx XX 060
Depository Master Concentration Account 000 Xxxxxxx Xxxxxx Xxxxxxxx XX 060
Payroll Manual Checks 000 Xxxxxxx Xxxxxx Xxxxxxxx XX 060
Payroll Manual Checks 000 Xxxxxxx Xxxxxx Xxxxxxxx XX 060
Operating - Union Checking 000 Xxxxxxx Xxxxxx Xxxxxxxx XX 060
Health Benefits Account (Cigna) 000 Xxxxxxx Xxxxxx Xxxxxxxx XX 060
Depository - Tax 000 Xxxxxxx Xxxxxx Xxxxxxxx XX 060
Depository - Tax 000 Xxxxxxx Xxxxxx Xxxxxxxx XX 060
Depository - Tax 000 Xxxxxxx Xxxxxx Xxxxxxxx XX 060
Depository - Tax 000 Xxxxxxx Xxxxxx Xxxxxxxx XX 060
Depository - Tax 000 Xxxxxxx Xxxxxx Xxxxxxxx XX 060
SCHEDULE 11.1
Indebtedness
Consolidated
NATIONSRENT, INC.
In Millions of $ as of November 30,2002 unless otherwise noted
Senior Credit Facilities - Revolver $ 355.4(1)
Senior Credit Facilities - Term B 393.7(1)
Letters of Credit Reimbursement Obligations 19.9(1)
Derivative Transactions 2.7(1)
Equipment Notes & Other 63.4(4)
A/P - Secured (estimated) 0.0
Seller Convertible Notes 99.7(1)
Other Seller Notes 0.6(1)
Senior Subordinated Notes 175.0(1)
Rental Equipment Leases 283.6(2)(3)
Vehicle Leases 36.0(2)(3)
Credit Card Obligations 0.1(4)
Insurance Premium Financing Obligations 1.3(4)
--------
Total $1,431.4
========
---------------
(1) As of December 30, 2002
(2) As of November 30, 2002 estimated based on stipulated loss value tables
(3) These amounts represent operating leases that may be recapitalized as
capital leases.
(4) As of November 30, 2002
Obligations with respect to the Convertible Preferred Stock, Series A of
NationsRent, Inc. and the Convertible Preferred Stock, Series B of NationsRent,
Inc.
Obligations with respect to make whole agreements, earn out agreements, and
other similar arrangements entered into prior to the date hereof in connection
with acquisitions permitted under the Prepetition Credit Agreement or its
predecessors.
SCHEDULE 11.1(e)
Operating Leases
MASTER LEASE LESSOR SCHEDULE
------------ ------ --------
Master Equipment Lease, dated March 17, 2000, among AMERICAN FINANCE GROUP, INC.
D/B/A GUARANTY CAPITAL CORPORATION and NationsRent, Inc. ("NationsRent")
American Finance Al
American Finance A2
Master Lease Agreement No. 1, dated October 22, 1997, among AMSOUTH LEASING,
LTD. and NationsRent (as successor in interest to Reliable Rental & Supply Co.,
Inc.)
AmSouth AMI
AmSouth AM4
AmSouth XX0
XxXxxxx XX0
XxXxxxx XX0
Master Lease Agreement, dated August 25, 1998, among ASSOCIATES LEASING, INC.
and NationsRent and NationsRent of Texas, Inc.
Associates AL1
Associates AL2
Associates AL3
Associates AL4
Associates AL5
Associates AL6
Associates AL7
Master Equipment Lease Agreement, dated November 29, 1999, among BANC ONE
LEASING CORPORATION and NationsRent
Banc One BO1
Banc One B02
Banc One BOS
Banc One BO4
Equipment Master Lease Agreement, dated July 20, 1999, among CASE CREDIT
CORPORATION and NationsRent
Case Credit CC1
Case Credit CC11
Case Credit CC12
Case Credit CC13
Case Credit CC15
Case Credit CC16
Case Credit CC2
Case Credit CC4
Case Credit CC5
Case Credit CC6
Case Credit CC7
Case Credit CC8
Case Credit CC9
Master Tax Lease, dated as of August 24, 1998, between CATERPILLAR FINANCIAL
SERVICES CORPORATION and NationsRent
Caterpillar Financial 92054
Master Equipment Lease Agreement, dated December 18, 1998, among FLEET CAPITAL
CORPORATION, NationsRent, and each of its subsidiaries
Fleet Capital FL1
Fleet Capital FL3
Master Equipment Lease Agreement, dated October 29, 1999, among IBJ WHITEHALL
BUSINESS CREDIT Corporation and NationsRent
1
SCHEDULE 11.1(e)
Operating Leases
MASTER LEASE LESSOR SCHEDULE
------------ ------ --------
IBJ Whitehall I-l
IBJ Whitehall 1-2
IBJ Whitehall 1-3
Master Equipment Lease Agreement, dated September 30, 1999, among NORLEASE, INC.
and NationsRent
NorLease N-l
Master Equipment Lease Agreement, dated September 1, 1998, among GENIE FINANCIAL
SERVICES, INC. and NationsRent and Master Lease Agreement, dated August 5, 1997,
among GENIE FINANCIAL SERVICES, INC. and Xxxx-Xxxx Company
Genie Financial BF1
Genie Financial BF2
Genie Financial BF4
Genie Financial BF5
Genie Financial BF6
Genie Financial BF7
Genie Financial BF8
Genie Financial GC1
Genie Financial GC2
Genie Financial GC3
Genie Financial GC4
Genie Financial GC5
Genie Financial NR1
Genie Financial NR10
Genie Financial NR11
Genie Financial NR2
Genie Financial NR3
Genie Financial NR4
Genie Financial NR5
Genie Financial NR6
Genie Financial NR7
Genie Financial NR8
Genie Financial NR9
Master Lease Agreement, dated April 16, 2001, among THE CIT GROUP/EQUIPMENT
FINANCING, INC. D/B/A JCB FINANCE, and NationsRent
JCB JCB1
JCB JCB2
JCB JCB3
Master Fair Market Value Lease Agreement among DEERE CREDIT, INC. and
NationsRent
Xxxx Deere Credit L0011
Xxxx Deere Credit L0012
Xxxx Deere Credit L0013
Xxxx Deere Credit L0014
Xxxx Deere Credit L0015
Xxxx Deere Credit L0016
Xxxx Deere Credit XX
Xxxx Deere Credit L10
Xxxx Deere Credit L2
Xxxx Deere Credit L3
Xxxx Deere Credit L4
Xxxx Deere Credit L5
Xxxx Deere Credit L6
Xxxx Deere Credit L7
2
SCHEDULE 11.1(e)
Operating Leases
MASTER LEASE LESSOR SCHEDULE
------------ ------ --------
Xxxx Deere Credit L8
Xxxx Deere Credit L9
Master Equipment Lease Agreement, dated February 24, 2000, among KEY CORPORATE
CAPITAL INC. and NationsRent (and various of its subsidiaries)
KeyCorp KEY1
Amendment and Restatement of Equipment Lease Agreement, dated February 25, 1999,
among LASALLE NATIONAL LEASING CORPORATION, NationsRent, and each of its
subsidiaries
AmSouth 40
AmSouth 41
BB&T 37
BB&T 39
Bombardier 33
Xxxxxxxxxx 00
XXX 0
XXX 00
XXX 0
XXX X-0
Citizens 42
Citizens 43
Citizens 44
Citizens 45
Debis 25
Debis 26
Debis 27
Debis 29
Debis 30
Debis 51
Debis 52
Debis 58
Debis 59
Xxxxx X-x
Dime 54
Dime 55
Fleet Capital 22
Fleet Capital 23
Fleet Capital 24
GE Capital 1
GE Capital 10
GE Capital 17
GE Capital 4
Xxxxxx 35
Xxxxxx 36
ICX 49
ICX 50
ICX 62
ICX 63
ICX 64
KeyCorp 38
KeyCorp 5
XxxXxxx 0
XxXxxxx 00
0
SCHEDULE 11.1(e)
Operating Leases
MASTER LEASE LESSOR SCHEDULE
------------ ------ --------
LaSalle 28
LaSalle 60
LaSalle 61
LaSalle 73
LaSalle 74
LaSalle 75
LaSalle 76
LaSalle B-3
NationsBanc 2
NationsBanc 8
NationsBanc 9
Omaha 53
Pacific 13
Pacific 14
Southtrust 15
Southtrust 16
StarBank 11
Starbank 12
TCF 65
TransAmerica 19
TransAmerica 20
TransAmerica 21
TransAmerica 31
TransAmerica 32
TransAmerica 46
TransAmerica 47
TransAmerica 66
TransAmerica 67
TransAmerica 68
TransAmerica 69
TransAmerica 70
TransAmerica 71
Zion 72
Rental Inventory Financing Agreement, dated as of November 19, 1999, by and
between NEW HOLLAND CREDIT COMPANY, LLC and NationsRent
New Holland Credit New Holland Credit NHL1
New Holland Credit New Holland Credit NHL2
Master Lease Agreement, dated November 1, 2000, among TEXTRON FINANCIAL
CORPORATION, NationsRent, and certain of its subsidiaries
Textron Financial TTL1
Textron Financial TTL10
Textron Financial TTL100
Textron Financial TTL101
Textron Financial TTL102
Textron Financial TTL103
Textron Financial TTL104
Textron Financial TTL105
Textron Financial TTL106
Textron Financial TTL107
Textron Financial TTL108
Textron Financial TTL109
4
SCHEDULE 11.1(e)
Operating Leases
MASTER LEASE LESSOR SCHEDULE
------------ ------ --------
Textron Financial TTLll
Textron Financial TTL110
Textron Financial TTL112
Textron Financial TTL113
Textron Financial TTL114
Textron Financial TTLll5
Textron Financial TTL116
Textron Financial TTL12
Textron Financial TTL13
Textron Financial TTL14
Textron Financial TTL15
Textron Financial TTL16
Textron Financial TTL17
Textron Financial TTL18
Textron Financial TTL19
Textron Financial TTL2
Textron Financial TTL20
Textron Financial TTL21
Textron Financial TTL22
Textron Financial TTL23
Textron Financial TTL24
Textron Financial TTL25
Textron Financial TTL26
Textron Financial TTL27
Textron Financial TTL28
Textron Financial TTL29
Textron Financial TTL3
Textron Financial TTL30
Textron Financial TTL31
Textron Financial TTL32
Textron Financial TTL33
Textron Financial TTL34
Textron Financial TTL35
Textron Financial TTL36
Textron Financial TTL37
Textron Financial TTL38
Textron Financial TTL39
Textron Financial TTL4
Textron Financial TTL40
Textron Financial TTL41
Textron Financial TTL42
Textron Financial TTL43
Textron Financial TTL44
Textron Financial TTL45
Textron Financial TTL46
Textron Financial TTL47
Textron Financial TTL48
Textron Financial TTL49
Textron Financial TTL5
Textron Financial TTL50
Textron Financial TTL51
5
SCHEDULE 11.1(e)
Operating Leases
MASTER LEASE LESSOR SCHEDULE
------------ ------ --------
Textron Financial TTL52
Textron Financial TTL53
Textron Financial TTL54
Textron Financial TTL55
Textron Financial TTL56
Textron Financial TTL57
Textron Financial TTL58
Textron Financial TTL59
Textron Financial TTL6
Textron Financial TTL60
Textron Financial TTL61
Textron Financial TTL62
Textron Financial TTL63
Textron Financial TTL64
Textron Financial TTL66
Textron Financial TTL67
Textron Financial TTL68
Textron Financial TTL69
Textron Financial TTL7
Textron Financial TTL70
Textron Financial TTL71
Textron Financial TTL72
Textron Financial TTL73
Textron Financial TTL74
Textron Financial TTL75
Textron Financial TTL76
Textron Financial TTL77
Textron Financial TTL78
Textron Financial TTL79
Textron Financial TTL8
Textron Financial TTL80
Textron Financial TTL81
Textron Financial TTL82
Textron Financial TTL83
Textron Financial TTL84
Textron Financial TTL85
Textron Financial TTL86
Textron Financial TTL87
Textron Financial TTL88
Textron Financial TTL89
Textron Financial TTL9
Textron Financial TTL90
Textron Financial TTL91
Textron Financial TTL92
Textron Financial TTL93
Textron Financial TTL94
Textron Financial TTL95
Textron Financial TTL96
Textron Financial TTL97
Textron Financial TTL98
Textron Financial TTL99
6
SCHEDULE 11.1(e)
Operating Leases
MASTER LEASE LESSOR SCHEDULE
------------ ------ --------
Commercial Lease Agreement (TRAC), dated September 14, 1999, among FORD MOTOR
CREDIT COMPANY and NationsRent and Commercial Lease Agreement (TRAC), dated
January 1, 2000 among FORD MOTOR CREDIT COMPANY and NationsRent Transportation
Services, Inc.
Ford Motor Credit 34130
Ford Motor Credit 96203
Master Lease Agreement, dated May 20, 1998, among DONLEN CORPORATION and
NationsRent
Donlen 9300
Equipment Lease Agreement, dated August 15, 1997, among PACCAR FINANCIAL CORP.
and NationsRent Transportation Services, Inc. (as successor in interest to
Xxxxx Equipment Corp.)
Paccar 1
Paccar 2
Paccar 3
Paccar 4
Paccar 5
Paccar 6
Master Equipment Lease Agreement, dated December 18, 1998, among FLEET CAPITAL
CORPORATION, NationsRent, and each of its subsidiaries
Fleet Capital 1
7
SCHEDULE 11.2
Liens
Liens disclosed on the Certificates Regarding UCC Filings of each of the
Borrowers, dated as of December 31,2002, and delivered to the Administrative
Agent.
SCHEDULE 11.3
Investments
RDO Equipment RDO 100 4.2500 $ 425.00
Toromont Industries TMTNF 100 12.6240 $ 1,262.40
United Rentals Inc. URI 100 9.6900 $ 969.00
Western Power & Equipment Corp WPEC 100 0.2400 $ 24.00
National Equip Svcs, Inc. NSV 100 0.3000 $ 30.00
Xxxx Corp NFFCA 100 0.2000 $ 20.00
Lowes LOW 200 41.5000 $ 8,300.00
Home Depot HD 100 26.4200 $ 2,642.00
Mobile Mini MINI 100 14.8600 $ 1,486.00
Ashtead ASHTF 100 0.4820 $ 48.20
$15,206.60
Total Shares
NationsRent NRNT 1,070,200
SCHEDULE 11.12
Affiliate Transactions
Reference is made to (i) Note 16 ("Related Party Transactions") of the Notes to
Consolidated Financial Statements of NationsRent, Inc. contained in
NationsRent, Inc.'s Annual Report on Form 10K, dated May 24, 2002, for the year
ended December 31, 2001 (the "Form 10K") and (ii) the section entitled "Certain
Relationships and Related Transactions" contained in the Form 10K.
