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Exhibit 4.8
FIRST AMENDMENT TO
THE FIFTH AMENDED AND RESTATED
REVOLVING CREDIT AND TERM LOAN AGREEMENT
This First Amendment (the "Amendment"), dated as of March 14, 2001, is
among NATIONSRENT, INC., a Delaware corporation (the "Parent"), and its
Subsidiaries (collectively with the Parent, the "Borrowers"), the lending
institutions listed on the signature pages hereto (collectively, the "Lenders"),
FLEET NATIONAL BANK, as administrative agent for the Lenders (the
"Administrative Agent"), BANKERS TRUST COMPANY, as syndication agent for the
Lenders (the "Syndication Agent"), and THE BANK OF NOVA SCOTIA, as documentation
agent for the Lenders (the "Documentation Agent"). Capitalized terms used herein
unless otherwise defined herein shall have the respective meanings set forth in
the Credit Agreement (as hereinafter defined).
WHEREAS, the Borrowers, the Lenders, the Administrative Agent, the
Syndication Agent and the Documentation Agent are parties to that certain Fifth
Amended and Restated Revolving Credit and Term Loan Agreement, dated as of
August 2, 2000 (as amended, restated, modified, or supplemented and in effect
from time to time, the "Credit Agreement"); and
WHEREAS, the Borrowers have requested that the Lenders agree, and the
Lenders have agreed, on the terms and subject to the conditions set forth
herein, to make certain changes to the Credit Agreement and Security Agreement;
NOW, THEREFORE, in consideration of the premises contained herein, and
for other good and valuable consideration, the receipt and sufficiency of which
are acknowledged, the parties hereto agree as follows:
1. AMENDMENTS TO SS.1.1. Section 1.1 of the Credit Agreement is hereby
amended by:
(a) deleting the following definitions and respectively
replacing such definitions in their entirety with the following new definitions:
"CAPITAL EXPENDITURES. Amounts paid or accrued or
Indebtedness incurred, without duplication, by the Borrowers
in connection with (i) the purchase or lease of Capital Assets
that would be required to be capitalized and shown on the
balance sheet of such Person in accordance with GAAP or (ii)
the lease of any assets by any Borrower as lessee under any
Synthetic Lease to the extent that such assets would have been
Capital Assets had the Synthetic Lease been treated for
accounting purposes as a Capitalized Lease or (iii) Operating
Lease Obligations; PROVIDED, HOWEVER, that, notwithstanding
the foregoing, Capital Expenditures excludes any such amounts
paid with the proceeds of insurance.
CONSOLIDATED EARNINGS BEFORE INTEREST AND TAXES OR
EBIT. For any period, the Consolidated Net Income (or Deficit)
but without giving effect to any extraordinary gains
(including any gains on Permitted Equipment Transfers) of the
Borrowers and without giving effect to any non-cash gains or
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losses related to Financial Accounting Standard 133 and
related pronouncements with respect to derivatives, PLUS
without duplication and to the extent that each was deducted
in determining Consolidated Net Income (or Deficit), (a)
interest expense for such period (excluding that portion of
the Special Charge relating to the write-off of deferred
financing costs), (b) income taxes for such period, (c) that
portion of Rental Expense related to Operating Leases which
have been permanently recharacterized as Indebtedness in such
period, (d) Rental Expense with respect to the Equipment
Securitization Obligations, (e) EBIT of the businesses
acquired by the Parent or any of its Restricted Subsidiaries
(through asset purchases or otherwise) other than Unrestricted
Subsidiaries (each an "Acquired Business") or the Restricted
Subsidiaries acquired or formed during such period other than
Unrestricted Subsidiaries (each a "New Subsidiary") PROVIDED
THAT (i) the financial statements of such Acquired Businesses
or New Subsidiaries have been audited for the most recent
fiscal year ended of such Acquired Businesses or New
Subsidiaries, or (ii) the Administrative Agent consents to
such inclusion after being furnished with other acceptable
financial statements, and, in each case, a Compliance
Certificate and other reasonably appropriate documentation, in
form and substance reasonably satisfactory to the
Administrative Agent, with respect to the historical operating
results and balance sheet of such Acquired Businesses or New
Subsidiaries (which information to the knowledge of the CFO is
correct in all material respects) are provided to the
Administrative Agent, (f) PRO FORMA expense and cost
reductions (i) calculated on a basis consistent with
Regulation S-X promulgated under the Securities Act incurred
in connection with any merger, consolidation or acquisition
permitted under ss.8.4.1 as if such merger, consolidation or
acquisition had been consummated on the first day of the
applicable period, as determined in good faith by the CFO
based on reasonable assumptions, and (ii) such other expenses
and cost reductions approved by the Administrative Agent, (g)
special charges and expenses previously disclosed to the
Lenders (regardless of the line items on which such charges
and expenses are reported in the Borrower's financial
statements) taken or incurred in the fiscal quarters ending
December 31, 2000 and March 31, 2001 not to exceed $99,442,000
in the aggregate (the "Special Charge") (including that
portion of the Special Charge relating to the write-off of
deferred financing costs), MINUS (h) net income (or deficit)
attributable to Unrestricted Subsidiaries other than actual
cash dividends received from Unrestricted Subsidiaries during
such period on or prior to the date of determination of EBIT.
CONSOLIDATED TOTAL INTEREST EXPENSE. For any period,
the aggregate amount of interest expense calculated and
reported in accordance with GAAP, whether paid or accrued, by
the Borrowers during such period on all Indebtedness of the
Borrowers outstanding during all or any part of such period,
whether such interest was or is required to be reflected as an
item of expense or capitalized, including payments consisting
of interest in respect of any Capitalized Lease or any
Synthetic Lease and including commitment fees, agency fees,
facility fees, and balance deficiency fees, but excluding
non-cash charges for amortized financing costs (such as
closing fees, similar fees or expenses and that portion of the
Special Charge relating to the write-off of
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deferred financing costs) arising in connection with the
establishment of financing arrangements including this Credit
Agreement (or prior credit agreements) and other similar
Funded Debt of the Borrowers permitted pursuant to ss.8.1.
EXCESS CASH FLOW. EBITDA MINUS, with respect to the
Borrowers (but not the Unrestricted Subsidiaries unless
otherwise noted), without duplication, (a) (i) cash taxes,
(ii) permitted Investments under ss.8.3(j) and (k), (iii) to
the extent included in the calculation of EBITDA, gains on
asset sales (including Rental Equipment), (iv) Capital
Expenditures of the Borrowers and the ES SPV (including the
purchase of Rental Equipment, but excluding Rental Equipment
acquired through acquisitions permitted by ss.8.4 hereof or
acquired through a Permitted Equipment Transfer and excluding
Capital Expenditures financed by Capitalized Leases), (v)
voluntary prepayments under ss.2.11 to the extent the Total
Commitment is permanently reduced by the amount of such
prepayments pursuant to ss.2.2, (vi) mandatory prepayments of
the Term Loan and permanent reductions of the Total Commitment
by the amount of such prepayments or reductions pursuant to
ss.4.4 (other than the prepayment to be made under
ss.4.4.2(b)) and ss.4A (other than the payment to be made
under ss.4A(f)), (vii) Consolidated Total Interest Expense,
(viii) Capitalized Lease payments (excluding the interest
portion included in Consolidated Total Interest Expense), (ix)
cash payments made with respect to acquisitions permitted
under ss.8.4.1 or by consent of the Majority Lenders, (x)
principal payments with respect to Indebtedness (excluding any
payments under clause (viii) above), (xi) increases in working
capital, and (xii) Rental Expense with respect to Permitted
Equipment Securitizations; PLUS with respect to the Borrowers
(but not the Unrestricted Subsidiaries unless otherwise
noted), without duplication, (b) (i) decreases in working
capital, (ii) asset sales proceeds (including proceeds from
the sale of Rental Equipment other than sales related to an
Equipment Securitization) less reasonable selling expenses
unless such proceeds are committed within 90 days of the
fiscal year end to be used to purchase Rental Equipment or are
used to permanently pay down the Loans, (iii) losses on asset
sales (including Rental Equipment) to the extent deducted in
the calculation of EBITDA, and (iv) cash dividends received by
the Borrowers from the ES SPV.
NET CASH PROCEEDS. With respect to (a) any
Subordinated Debt Offering, Permitted Equipment Securitization
or Equity Offering, the excess of the gross cash proceeds
received by a Borrower from such Subordinated Debt Offering,
Permitted Equipment Securitization or Equity Offering after
deduction of reasonable and customary transaction expenses
(including without limitation, underwriting discounts and
commissions) actually incurred in connection with the
Subordinated Debt Offering, Permitted Equipment Securitization
or Equity Offering, and (b) any asset sales, the net cash
proceeds received by a Borrower in respect thereof, less the
sum of (i) all reasonable out-of-pocket fees, commissions and
other reasonable and customary expenses actually incurred in
connection with such asset sale, including the amount of
income, franchise, sales and other applicable taxes required
to be paid by such Borrower in connection with such asset
sale, and
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(ii) the aggregate amount of cash so received by such Borrower
which is required to be used to retire (in whole or in part)
any Indebtedness (other than under the Loan Documents) of such
Borrower permitted by this Credit Agreement that was secured
by a lien or security interest permitted by this Credit
Agreement with respect to such assets transferred (including
in order to obtain terminations or releases of liens or other
encumbrances on such assets) and which is required to be
repaid in whole or in part in connection with such asset sale.
REDUCTION AMOUNT. The aggregate amount of Net Cash
Proceeds received by the Borrowers from Permitted Equipment
Securitizations or from asset sales or financings by the ES
SPV in excess of $100,000,000 PLUS the aggregate amount of any
prior reductions under ss.4.4.2(c).
RENTAL EXPENSE. All rental payments and related
charges made or incurred by any of the Borrowers during any
applicable fiscal period with respect to Operating Leases.
SECURITY DOCUMENTS. The Security Agreement, the
Pledge Agreements, the Mortgages, the Trademark Assignments,
the Copyright Mortgages, and any other instruments and
documents, including, without limitation, Uniform Commercial
Code financing statements, required to be executed or
delivered pursuant to any Security Document or evidencing or
perfecting the Administrative Agent's lien on the assets of
the Borrowers for the benefit of the Lenders.
UNRESTRICTED SUBSIDIARIES. The ES SPV."
(b) deleting clause (g) of the definition of "Permitted
Equipment Securitization" in its entirety and replacing it with the
following new clause (g):
"(g) the terms and conditions are otherwise
acceptable to the Majority Lenders (including, without
limitation, a determination as to which assets may be sold or
transferred as part of such Equipment Securitization)."
(c) adding the following text at the end of the definition of
"Pricing Table":
"Notwithstanding the above Pricing Table, the pricing
during the period from the First Amendment Effective Date
until receipt of the Compliance Certificate (which shall
include a certification that the Borrowers are in compliance
with the Credit Agreement as contemplated by ss.7.4(c)) for
the fiscal quarter ended March 31, 2001 shall be ▇▇▇▇▇ ▇ of
the interim Pricing Table set forth below. Until such time as
the Senior Debt Pricing Ratio is less than 3.50:1 and the
Parent's senior secured debt is rated not less than "BB" if
rated by Standard & Poor's Rating Group or "B 1" by ▇▇▇▇▇'▇
Investor Service, Inc., the following interim Pricing Table
shall apply:
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----------- ------------- ----------------- ------------------ ---------------- ----------------- -----------------
Senior Debt Applicable Applicable Applicable Applicable Euro- Applicable Base
Level Pricing Revolver Revolver Base Commitment dollar Term Rate Term Margin
Ratio Eurodollar Rate Margin Rate Loan Margin (per annum)
Margin (per annum) (per annum) (per annum)
(per annum)
----------- ------------- ----------------- ------------------ ---------------- ----------------- -----------------
1 Less than 4.00% 2.25% 0.750% 4.00% 2.25%
4.00:1
----------- ------------- ----------------- ------------------ ---------------- ----------------- -----------------
2 Greater 4.50% 2.50% 0.750% 4.50% 2.50%
than or
equal to
4.00:1
----------- ------------- ----------------- ------------------ ---------------- ----------------- -----------------
(d) deleting the definitions of "Due Diligence Summary" and "Majority
Consent" in their entirety; and
(e) adding the following new definitions in proper alphabetical order:
"AGENCY ACCOUNT AGREEMENT. The several agency account
agreement(s) and notice(s) of security interest by and among the
Borrowers, certain Lenders and the Administrative Agent, to be entered
into on or after the First Amendment Effective Date pursuant to
ss.7.22, and any other agency account agreement and/or notice of
security interest from time to time entered into among any Borrower,
the Administrative Agent and other financial institutions, in form and
substance satisfactory to the Administrative Agent.
BANK ACCOUNTS. See Section 6.24.
COPYRIGHT MORTGAGES. Any Copyright Mortgage and Security
Agreement entered into after the First Amendment Effective Date, made
by any of the Borrowers in favor of the Administrative Agent. Copyright
Mortgages shall also include any Copyright Mortgage entered into
pursuant to a Joinder Agreement.
CUMULATIVE EBITDA. For the period commencing March 31, 2001
and ending on December 31, 2001, the sum of EBITDA of the Borrowers for
each fiscal quarter ending in such period.
DEMINIMIS ACCOUNTS. See Section 6.24.
EQUITY OFFERING. The sale or issuance by any of the Borrowers
of any of their capital stock or equity interests or any warrants,
rights or options to acquire their capital stock or equity interests
(including any debt securities that are convertible into, or
exchangeable for, capital stock or equity interests); PROVIDED,
HOWEVER, that notwithstanding the foregoing, Equity Offering will not
include any Equity Offering: (i) resulting from the exercise of any
options, conversion rights, subscription rights, or warrants, in each
case issued prior to the First Amendment Effective Date, for the
purchase or acquisition of any securities of Parent; or (ii) pursuant
to an Employee Benefit Plan or employee stock option plan.
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FIRST AMENDMENT ANCILLARY DOCUMENTS. The Mortgages and the
applicable Phase I environmental site assessments therefor, the
Trademark Assignments, Agency Account Agreements, the certificates of
title to designated Titled Collateral, and such other documents,
including without limitation, UCC-1 financing statements, as may
reasonably be requested by the Administrative Agent.
FIRST AMENDMENT EFFECTIVE DATE. March 14, 2001.
MORTGAGES. The several mortgages and/or deeds of trust from
time to time granted by certain of the Borrowers to the Administrative
Agent with respect to the fee interests of the Borrowers in the real
estate at any time owned by any of the Borrowers (the "Real Estate").
OPERATING LEASE(s). Operating leases for Rental Equipment
(including, but not limited to, Synthetic Leases and operating leases
with respect to Equipment Securitization Obligations) and, without
duplication, all other non-balance sheet lease or financing
arrangements permitted under ss. 8.14; provided, HOWEVER, that,
notwithstanding the foregoing, Operating Leases shall exclude "re-rent"
obligations up to an aggregate amount not to exceed $12,000,000 at any
one time under contracts or similar arrangements which can be
terminated by the Borrowers upon thirty (30) days notice or less
without a penalty or termination fee and are entered into in accordance
with industry practice.
OPERATING LEASE OBLIGATIONS. An amount equal to the sum of the
present value of all Rental Expense for the applicable period of
determination; PROVIDED, HOWEVER, that Operating Lease Obligations will
not include such amounts related to: (i) Operating Leases entered into
on or prior to December 31, 2000 or the Operating Lease with New
Holland Credit Company, LLC for Rental Equipment that was a Capital
Expenditure in 2000; and (ii) any refinancing or replacement thereof;
PROVIDED, THAT the amount of such refinancing or replacement Operating
Lease Obligations shall not exceed the amount so refinanced or replaced
and the terms of such refinancing or replacement Operating Lease
Obligations are not more onerous in the aggregate to Borrowers than the
terms so refinanced or replaced. The present value calculation of all
Rental Expense will include as the discount rate the respective imputed
rate of interest for each Operating Lease.
PRO RATA PAYMENT. Any payment which is to be applied pro rata
to the Lenders shall be made pro rata according to the outstanding
amount of the Term Loan as of such date and the amount of the Total
Commitment as of such date (the portion of such amount owing to the
Term Loan Lenders being hereinafter referred to as the "TERM PAYMENT
AMOUNT", and the portion of such amount owing to the Revolving Credit
Lenders being hereinafter referred to as the "REVOLVER PAYMENT
AMOUNT").
RESTRICTED ACCOUNTS. See Section 6.24.
REVOLVER CAPS. See Section 2.1.
REVOLVER PAYMENT AMOUNT. See definition of "Pro Rata Payment".
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SENIOR DEBT PRICING RATIO. See ss.9.2.
SENIOR EXECUTIVE OFFICER. The CFO or other senior executive
officer of the Parent.
TERM PAYMENT AMOUNT. See definition of "Pro Rata Payment".
TITLED COLLATERAL. See Section 7.19.
TRADEMARK ASSIGNMENTS. The several Trademark Assignments,
dated or to be dated on or prior to the First Amendment Effective Date,
made by certain of the Borrowers in favor of the Administrative Agent.
Trademark Assignments shall also include any Trademark Assignment
entered into pursuant to a Joinder Agreement."
2. AMENDMENTS TO SS.2.1. Section 2.1 of the Credit Agreement is hereby
amended by (a) deleting the figure "$525,000,000" therein and replacing it with
the figure "$450,000,000", and (b) inserting the following proviso immediately
before the period in the first sentence thereof:
"; PROVIDED FURTHER that, until delivery of financial statements for
the fiscal quarter ending March 31, 2002 showing compliance with all
financial covenants contained in ss.9 hereof as amended, the
outstanding amount of Revolving Credit Loans (after giving effect to
all amounts requested), Swing Line Loans, unpaid Reimbursement
Obligations and the Maximum Drawing Amount shall not exceed a maximum
aggregate amount outstanding of (a) $346,000,000 at any time on or
after the First Amendment Effective Date through ▇▇▇▇▇ ▇▇, ▇▇▇▇, (▇)
$378,000,000 at any time on or after April 1, 2001 through June 30,
2001, (c) $404,000,000 at any time on or after July 1, 2001 through
September 29, 2001, (d) $365,000,000 at any time on or after September
30, 2001 through December 30, 2001, and (e) $364,000,000 at any time on
or after December 31, 2001 through the date the Administrative Agent
receives financial statements for the fiscal quarter ending March 31,
2002 showing compliance with all financial covenants contained in ss.9
hereof (such borrowing limits collectively referred to as the "Revolver
Caps"); PROVIDED FURTHER that the Commitment Fee shall be payable on
the Total Commitment, regardless of any Revolver Cap. The Revolver Caps
may only be waived or otherwise modified with the consent of the
Required Revolving Credit Lenders."
3. AMENDMENT TO SS.2.6(a). Section 2.6(a) of the Credit Agreement shall
be revised by deleting the words "shall be given by the Borrowers" appearing in
the second sentence thereof and by inserting the words "shall be signed by a
Senior Executive Officer" in their place.
4. AMENDMENT TO SS.2.8. Section 2.8 of the Credit Agreement is hereby
amended by deleting the figure "$50,000,000" in clause (a) thereof and replacing
it with the text "$10,000,000 (or such lesser amount as the Total Commitment may
be as of such date)".
5. AMENDMENTS TO SS.2.10. Section 2.10 of the Credit Agreement is
hereby amended by:
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(a) amending and restating ss.ss.2.10(b) and (c) thereof as follows:
"(b) If at any time the ratio of (i) the sum of the Loans,
unpaid Reimbursement Obligations and the Maximum Drawing Amount to (ii)
Consolidated Tangible Assets exceeds the maximum permitted ratio set
forth in ss.9.4, then the Borrowers shall, within three (3) Business
Days of knowledge of such occurrence, pay the Dollar amount needed to
eliminate such excess to the Administrative Agent for application
first, to any Swing Line Loans (if applicable), second, to any unpaid
Reimbursement Obligations, and third, to any Revolving Credit Loans, or
if no Revolving Credit Loans shall be outstanding, to be held by the
Administrative Agent as collateral security for the Reimbursement
Obligations, provided, however, that if the amount of cash collateral
held by the Administrative Agent pursuant to this ss.2.10(b), exceeds
the amount of the Reimbursement Obligations required to be
collateralized pursuant to this ss.2.10, the Administrative Agent shall
return such excess to the Borrowers. Payment of such excess within the
time period specified herein shall constitute a cure of any Default or
Event of Default under ss.9.4 which was triggered by such excess,
PROVIDED that no default exists under the Subordinated Debt.
(c) In connection with any Permitted Equipment Securitization,
any Revolver Payment Amount required to be made by the Borrowers
pursuant to ss.8.13(b) shall be applied by the Administrative Agent as
set forth in ss.4A(d)."
and (b) adding the following new clause (e) in proper alphabetical order
therein:
"(e) If at any time the aggregate balance of the Bank Accounts
exceeds $5,000,000 (or would exceed $5,000,000 after giving effect to
any requested borrowing) PLUS issued and outstanding checks in the
ordinary course of business PLUS checks to be issued within five (5)
Business Days for payroll and other employee benefit and tax
obligations PLUS intercompany transfers consistent with past practices
not to exceed $15,000,000 at any time for royalty payments among the
Borrowers for a 24 hour period or less, then the Borrowers shall pay
the Dollar amount needed to eliminate such excess to the Administrative
Agent for application first, to any Swing Line Loans (if applicable),
and second, to any unpaid Reimbursement Obligations, and third, to any
Revolving Credit Loans."
6. ADDITION OF SS.4A. The Credit Agreement is hereby amended by
inserting the following new Section 4A therein in the appropriate numerical
order:
"SS.4A. MANDATORY REDUCTIONS. Subject in all cases to ss.28:
(a) On December 31, 2001, the Borrowers shall prepay
the Term Loan in an amount equal to $53,700,000.
(b) In the event any Equity Offering occurs at any
time after the First Amendment Effective Date, the Borrowers
shall make a Pro Rata Payment to the Lenders in accordance
with ss.ss.4A(d) and (e) in an amount equal to one hundred
percent (100%) of the Net Cash Proceeds of such Equity
Offering.
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(c) In the event any Subordinated Debt Offering
occurs at any time after the First Amendment Effective Date,
the Borrowers shall make a Pro Rata Payment to the Lenders in
accordance with ss.ss.4A(d) and (e) in an amount equal to one
hundred percent (100%) of the Net Cash Proceeds of the first
$200,000,000 of such Subordinated Debt Offering(s).
(d) The Revolver Payment Amount shall be applied
first, to repay any outstanding Swing Line Loans, second, to
repay unpaid Reimbursement Obligations, third, to repay
outstanding Revolving Credit Loans, or if no Revolving Credit
Loans shall be outstanding, to be held by the Administrative
Agent as collateral security for the Reimbursement
Obligations, PROVIDED, HOWEVER, that if the amount of cash
collateral held by the Administrative Agent exceeds the amount
of the Reimbursement Obligations, the Administrative Agent
shall apply such excess amount to the outstanding amount of
the Term Loan in accordance with the provisions set forth
below. Each payment of any unpaid Reimbursement Obligations or
prepayment of Revolving Credit Loans shall be allocated among
the Revolving Credit Lenders, in proportion, as nearly as
practicable, to each Reimbursement Obligation or (as the case
may be) the respective unpaid principal amount of each
Revolving Credit Lender's Revolving Credit Note with
adjustments to the extent practicable to equalize any prior
payments or repayments not exactly in proportion. In addition,
the Total Commitment shall be reduced by the Revolver Payment
Amount, whereupon the Commitments of the Revolving Credit
Lenders shall be reduced pro rata in accordance with their
respective Commitment Percentages or, as the case may be,
terminated. The Administrative Agent will notify the Revolving
Credit Lenders promptly after receiving any notice of the
Borrowers delivered pursuant to this ss.2.2. No reduction or
termination of the Commitments once made may be revoked; the
portion of the Commitments reduced or terminated may not be
reinstated; and amounts in respect of such reduced or
terminated portion may not be reborrowed.
(e) The Term Payment Amount shall be allocated among
the Term Loan Lenders in accordance with each such Lender's
Term Loan Percentage. Any prepayment of principal of the Term
Loan shall include all interest accrued to the date of
prepayment and shall be applied against the scheduled
installments of principal due on the Term Loan in the inverse
order of maturity. No amount repaid with respect to the Term
Loan may be reborrowed. After the Term Loan has been repaid in
full, any remaining amount of such payments will be applied to
reduce the Total Commitment.
(f) In addition to the above, after payment of 50% of
Excess Cash Flow to the Term Lenders pursuant to ss.4.4.2(b),
the Borrowers shall use the next 25% of Excess Cash Flow to
make a Pro Rata Payment to the Lenders in accordance with
ss.ss.4A(d) and (e).
(g) Any reduction, postponement, amendment, waiver or
other modification of (i) ss.ss.4A(a) and (e) shall require
the written consent of the Borrowers and the written consent
of fifty-one percent (51%) of the Term
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Lenders, (ii) ss.ss.4A(b) - (c) and (f) shall require the
written consent of the Borrowers and the written consent of
the Majority Lenders, and (iii) ss.ss.4A(d) shall require the
written consent of the Borrowers and the written consent of
fifty-one percent (51%) of the Revolving Credit Lenders."
7. AMENDMENTS TO SS.6.17. Section 6.17 of the Credit Agreement is
hereby amended and restated as follows:
"SS.6.17 PERFECTION OF SECURITY INTERESTS. Subject to ss.7.19
and except with respect to documents delivered to the Administrative
Agent but not yet filed or recorded, all filings, assignments, pledges
and deposits of documents or instruments have been made and all other
actions have been taken that are necessary or advisable under
applicable law to establish and perfect the Administrative Agent's
security interest in the Collateral. Except for Permitted Liens, 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' rights in the Collateral are free from any
lien, security interest, encumbrance and any other claim or demand,
except for Permitted Liens."
8. ADDITION OF SS.6.24. The Credit Agreement is hereby amended by
adding the following new ss.6.24 in proper numerical order therein:
"SS.6.24 BANK ACCOUNTS. SCHEDULE 6.24, as the same shall be
updated from time-to-time by Borrowers, sets forth the account numbers
and location of all bank accounts, deposit accounts and investment
accounts of Borrowers (collectively, the "Bank Accounts"). Except for
(i) funds in restricted accounts consisting solely of tax accounts,
escrow accounts, segregated payroll accounts and accounts maintained in
connection with Employee Benefit Plans to the extent the funds in such
accounts are used solely for such purposes (collectively, the
"Restricted Accounts"), and (ii) unrestricted accounts with aggregate
average daily cash balances not exceeding $500,000 (the "DeMinimis
Accounts"), all other Bank Accounts are subject to an Agency Account
Agreement."
9. AMENDMENT TO SS.7.4. Section 7.4 of the Credit Agreement is hereby
amended by inserting the following new clause (h) therein in the appropriate
alphabetical order:
"(h) In addition to the reports and financial statements
required pursuant to ss.7.4(a) through (g), as soon as practicable, and
in any event, within 40 days after the end of each month, the unaudited
consolidated balance sheets of the Parent as at the end of each month,
and unaudited consolidated statements of income and cash flows of the
Parent for the month then ended, each in reasonable detail, prepared in
accordance with GAAP consistently applied except for provisions for
footnotes and subject to normal year-end audit adjustments; and a
Compliance Certificate certified by the CFO that the Borrowers are in
compliance with the covenants contained in ss.9.6 hereof, as of the end
of the applicable period and setting forth in reasonable detail
computations evidencing such compliance. The reporting package
delivered to the Administrative Agent shall include a management
discussion and analysis addressed to the Lenders, including, but not
limited to, presentation of regional information, utilization data and
a discussion and comparison of the actual results with the Borrowers'
projections."
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10. AMENDMENT TO SS.7.19. Section 7.19 of the Credit Agreement is
hereby amended and restated as follows:
"SS.7.19. TITLE REGISTRATION, MORTGAGES.
(a) The Borrowers will cause: (i) all motor vehicles
and other certificated goods, now owned or hereafter acquired
by any of the Borrowers, which, under applicable law, is
required to be registered, to be properly registered in the
name of the applicable Borrower; and (ii) all such Collateral
which is not subject to any Permitted Lien, the ownership of
which, under applicable law, is evidenced by a certificate of
title ("Titled Collateral"), to be properly titled in the name
of the applicable Borrower and will cause the lien of the
Administrative Agent to be properly noted on the certificates
of title issued with respect to such Titled Collateral
(provided that unless requested by the Administrative Agent
after occurrence of an Event of Default, notation of the lien
of the Administrative Agent on certificates of title shall not
be required with respect to any motor vehicles of a model year
earlier than five (5) years prior to the then calendar year)
and deliver such certificates of title to the Administrative
Agent in accordance with the terms of the Security Agreement.
(b) The Borrowers shall deliver to the Administrative
Agent a fully executed mortgage or deed of trust over the Real
Estate in form and substance reasonably satisfactory to the
Administrative Agent, together with environmental site
assessments conducted by environmental consultants acceptable
to the Administrative Agent and title insurance policies, and
other documents and certificates reasonably requested by the
Administrative Agent to obtain a valid and enforceable first
priority mortgage or deed of trust over such Real Estate,
subject only to Permitted Liens."
11. ADDITION OF SS.7.22. The Credit Agreement is hereby amended by
deleting the existing ss.7.22 in its entirety and by adding the following
new ss.7.22 in place thereof:
"SS.7.22. AGENCY ACCOUNT AGREEMENTS. Other than with respect
to (a) Restricted Accounts and (b) DeMinimis Accounts, the Borrowers
shall enter into and deliver to the Administrative Agent, and will
maintain thereafter in effect and from time to time in effect an Agency
Account Agreement on all other Bank Accounts, and shall take all such
other steps as shall be reasonably necessary to grant to the
Administrative Agent for the benefit of the Lenders and the
Administrative Agent, a first priority perfected security interest in
such accounts. The Borrowers shall maintain all Bank Accounts other
than DeMinimis Accounts with a Lender."
12. AMENDMENT TO SS.8.1. Section 8.1 of the Credit Agreement is hereby
amended and restated as follows:
"SS.8.1. RESTRICTIONS ON INDEBTEDNESS. The Borrowers shall
not, nor permit any of their Subsidiaries to, become or be a guarantor
or surety of, or otherwise create, incur, assume, or be or remain
liable, contingently or otherwise, with respect to any Indebtedness, or
become or be responsible in any manner (whether by
12
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agreement to purchase any obligations, stock, assets, goods or
services, or to supply or advance any funds, assets, goods or services
or otherwise) with respect to any undertaking or Indebtedness of any
other Person, or incur any Indebtedness other than:
(a) Indebtedness to the Lenders, the Administrative
Agent and the Issuing Bank arising under this Credit Agreement
or the other Loan Documents;
(b) incurrence of guaranty, suretyship or
indemnification obligations in connection with the Borrowers'
performance of services for their respective customers in the
ordinary course of their businesses;
(c) Indebtedness of one Borrower to another then
existing Borrower;
(d) (i) purchase money Indebtedness incurred in
connection with the acquisition of any real or personal
property, (ii) Indebtedness of any Restricted Subsidiary
acquired after the Closing Date (the "Acquired Subsidiary")
originally incurred by the Acquired Subsidiary in connection
with the lease or acquisition of property or fixed assets used
in the business of the Acquired Subsidiary or with respect to
industrial finance bonds issued to finance the purchase of
such property or assets and existing on the date of
acquisition of such Acquired Subsidiary; (iii) other unsecured
Indebtedness of any Acquired Subsidiary existing on the date
of acquisition of such Acquired Subsidiary; (iv) Indebtedness
with respect to obligations under Capitalized Leases or sale
and leaseback transactions (without duplication); (v)
Indebtedness in respect of Synthetic Leases, (vi) Indebtedness
(other than Subordinated Debt) incurred in connection with
acquisitions after the date hereof of any equity interest in,
or assets of any Person owing to the seller(s) of such equity
interests or assets and; (vii) any guarantee or sale of
recourse promissory notes by any of the Borrowers of
Indebtedness of any Person incurred in connection with the
purchase of equipment from the Borrowers, the Unrestricted
Subsidiaries, or a manufacturer or supplier of such equipment,
provided that the aggregate of all such guarantees of and
sales by the Borrowers does not exceed $5,000,000, PROVIDED
THAT (A) any such acquisitions are otherwise permitted
pursuant to ss.8.4; (B) the aggregate amount of all
Indebtedness under this subsection (d) shall not exceed
$15,000,000 MINUS, without duplication, Operating Lease
Obligations, and (C) the incurrence of any such Indebtedness
would not otherwise create an Event of Default under ss.9;
(e) Subordinated Debt, provided such Indebtedness is
not amended or prepaid, except in accordance with Section
8.11, without the consent of the Majority Lenders, provided
further that in the event that after the Closing Date any
Restricted Subsidiary of the Parent guarantees any
Subordinated Debt, the terms of such guaranty shall provide
for the release of such guaranty upon the sale of stock or all
or substantially all of the assets of such Restricted
Subsidiary (even if such sale was made in a foreclosure) in
substantially the same form of release provision as in the
Senior
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Subordinated Indenture and PROVIDED further that the
Obligations hereunder shall be "senior debt";
(f) Indebtedness incurred in respect of Swap
Contracts;
(g) Indebtedness existing as of the First Amendment
Effective Date and listed and described on SCHEDULE 8.1 hereto
(h) Indebtedness of any Borrower incurred to
refinance or replace other Indebtedness permitted under this
ss.8.1, PROVIDED THAT (i) the principal amount (or committed
principal amount) of such refinancing Indebtedness shall not
exceed the outstanding principal amount (or committed
principal amount) of the Indebtedness being refinanced and
(ii) the terms of such refinancing Indebtedness are not more
onerous in the aggregate to such Borrower than the terms of
the Indebtedness being refinanced;
(i) unsecured guarantees of the Parent of any of the
Indebtedness permitted in (b) through (h) above;
(j) Indebtedness of the ES SPV with respect to
Permitted Equipment Securitizations which Indebtedness shall
be non-recourse to the Borrowers except as permitted in
ss.8.1(l) hereof;
(k) other Indebtedness of any Unrestricted Subsidiary
which is non-recourse to the Borrowers (except that the
capital stock of such Unrestricted Subsidiary may be pledged
by the Borrowers to secure such Indebtedness of such
Unrestricted Subsidiary);
(l) recourse Indebtedness of the Borrowers with
respect to (i) Reimbursement Obligations under the Equipment
Securitization L/C, and (ii) lease payment obligations of the
Borrowers to the ES SPV (and any guarantees by the Parent in
respect thereof) arising in connection with Permitted
Equipment Securitizations;
(m) Indebtedness with respect to the indemnification
of officers and directors of the Borrowers or any Subsidiary
in the ordinary course of business; and
(n) contingent Indebtedness with respect to the
Series A Preferred Stock and the Series B Preferred Stock,
provided that no Distribution shall be made with respect to
such Indebtedness;
provided that if the creation, incurrence, assumption or existence of
any Indebtedness would constitute an Event of Default under, or be
prohibited pursuant to the terms of, the then existing Subordinated
Debt, then the creation, incurrence, assumption or existence of such
Indebtedness shall not be permitted hereunder."
13. AMENDMENTS TO SS.8.2. Section 8.2 of the Credit Agreement is hereby
amended by (a) deleting the word "and" at the end of clause (i) thereof; (b)
deleting the period at the end of clause (j) thereof and replacing it with the
text "; and"; and (c) adding the following new clause (k) in proper alphabetical
order therein:
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"(k) Liens granted by Borrowers with respect to Indebtedness
in effect on the First Amendment Effective Date that is listed on
SCHEDULE 8.1 hereto, to the extent that such Liens were Permitted Liens
immediately prior to the First Amendment Effective Date."
14. AMENDMENT TO SS.8.3. Section 8.3 of the Credit Agreement is hereby
amended by deleting subsection (l) thereof and by deleting the amount
"$5,000,000" appearing in subsection (k) and replacing it with "$3,000,000".
15. AMENDMENT TO SS.8.4.1. Section 8.4.1 of the Credit Agreement is
hereby amended and restated as follows:
"SS.8.4.1. MERGERS AND ACQUISITIONS. The Borrowers will not
effect any merger, amalgamation, consolidation, asset acquisition of a
business or any division thereof or stock acquisition (other than
Capital Expenditures permitted by ss.9.6) without the consent of the
Majority Lenders except the merger, amalgamation or consolidation of,
or asset or stock acquisitions between then existing Borrowers
(provided that the Parent will be the survivor of any such transaction
between the Parent and another Borrower)."
16. AMENDMENT TO SS.8.4.2. Section 8.4.2 of the Credit Agreement is
hereby amended and restated as follows:
"SS.8.4.2. DISPOSITION OF ASSETS. The Borrowers will not
effect any sale or disposition of assets (other than sales pursuant to
a Permitted Equipment Securitization approved by the Majority Lenders
in writing); unless (a) the Net Cash Proceeds of any such sale or
disposition of Rental Equipment are applied to reduce the outstanding
amount of Revolving Credit Loans; (b) at any time when the Net Cash
Proceeds from sales of non-Rental Equipment not previously applied or
set aside for application under this ss.8.4.2(b) exceeds $5,000,000,
then all such excess Net Cash Proceeds shall be applied to make a Pro
Rata Payment to the Lenders in accordance with ss.ss.4A(d) and (e);
PROVIDED, however that such application shall be made when the
aggregate amount of all such excess Net Cash Proceeds equals at least
$5,000,000 and thereafter in increments of a minimum of $5,000,000; and
(c) in connection with the substitution or exchange of Rental Equipment
for Rental Equipment under Operating Leases, the relative values of the
Rental Equipment being so substituted or exchanged are equal, the
Rental Equipment received in such substitution or exchange is sold, and
the Net Cash Proceeds of such sale are applied to reduce the
outstanding amount of the Revolving Credit Loans. The Administrative
Agent shall release its lien on the assets disposed of in accordance
with this ss.8.4.2 and will deliver to the Borrowers such evidence of
such release as the Borrowers may reasonably request."
17. AMENDMENT TO SS.8.5. Section 8.5 of the Credit Agreement is hereby
amended by deleting the reference to "ss.8.4.2(c)(ii)" appearing therein.
18. AMENDMENT TO SS.8.6. Section 8.6 of the Credit Agreement is hereby
amended and restated as follows:
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"SS.8.6 RESTRICTED DISTRIBUTIONS AND REDEMPTIONS. None of the
Borrowers shall make Distributions nor repurchase shares of its capital
stock. Notwithstanding the foregoing, any Borrower may make
Distributions to the Parent. None of the Borrowers shall effect or
permit any change in or amendment to any document or instrument
pertaining to the terms of any Borrower's (other than the Parent's)
capital stock that could adversely affect the rights of the Lenders and
the Administrative Agent."
19. AMENDMENT TO SS.8.9. Section 8.9 of the Credit Agreement is hereby
amended and restated as follows:
"SS.8.9 BUSINESS ACTIVITIES. The Borrowers will not engage
directly or indirectly (whether through Subsidiaries or otherwise) in
any type of business other than the businesses conducted by any
Borrower on the Closing Date and in acquired businesses predominantly
in the same lines of business as the Borrowers, or businesses
reasonably related or incidental thereto."
20. AMENDMENT TO SS.8.10. Section 8.10 of the Credit Agreement is
hereby amended by deleting the last sentence thereof and replacing it in its
entirety with the following new sentence: "Nothing in this ss.8.10 shall
prohibit transactions permitted by ss.ss.8.1(c), 8.3(f), 8.4.2, 8.5, 8.6 and
8.13, sales or dispositions of assets pursuant to a Permitted Equipment
Securitization (provided that Net Cash Proceeds of such sales or dispositions
are applied in accordance with the applicable provisions of this Credit
Agreement), or customary indemnification of officers and directors of the
Borrowers."
21. AMENDMENT TO SS.8.11. Section 8.11 of the Credit Agreement is
hereby amended and restated as follows:
"SS.8.11 SUBORDINATED DEBT. None of the Borrowers will amend,
supplement or otherwise modify the terms of any of the Subordinated
Debt (except that the Borrowers may (a) amend Seller Notes containing
the Prior Exhibit G language to include the language from Exhibit G
hereto, and (b) extend the maturity date of the $7,400,000 Seller Notes
due October 1, 2001 to March 31, 2002 or later) without thirty (30)
days prior written notice to the Administrative Agent and the Lenders
of such change, and will not make any change which, in the opinion of
the Administrative Agent, would be in any way materially adverse to the
Lenders without the prior written consent of the Majority Lenders or
prepay, redeem or repurchase any of the Subordinated Debt, except in
accordance with this Section 8.11. At least four (4) Business Days
prior to the making of any scheduled payment of principal on any of the
Subordinated Debt, the Borrowers shall deliver to the Administrative
Agent and the Lenders a Compliance Certificate demonstrating that on a
pro forma basis after giving effect to the proposed payment and any
borrowings needed to make such payment, AND any other Indebtedness
incurred since the most recent Compliance Certificate delivered to the
Administrative Agent, assuming such payment and borrowing had been
incurred as of the last day of the prior fiscal quarter, the Borrowers
are and shall continue to be in compliance with all of the covenants in
ss.9 hereof as of such date of delivery of such Compliance Certificate,
provided any pro forma compliance calculation to be made on or prior to
September 30, 2001 shall be measured against the September 30, 2001
financial covenant levels. In the event that the Borrowers are unable
to deliver such Compliance
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Certificate when required hereby or if the Compliance Certificate
delivered does not demonstrate such compliance, the Borrowers shall
prepay the Term Loan, at least three (3) Business Days prior to making
any payment on any Subordinated Debt, in an amount sufficient to bring
the Borrowers into pro forma compliance with the covenants in ss.9 of
the Credit Agreement. Each such payment on the Term Loan shall be
allocated in the manner set forth in ss.4.4.3 of this Credit Agreement.
Notwithstanding anything herein to the contrary, in no case may the
Borrowers make any payment of principal, interest, or other amounts
owing with respect to the Subordinated Debt if an Event of Default
under ss.13.1(a) or (b) exists or would be created by the making of
such payment."
22. AMENDMENT TO SS.8.13(b). Subsection (b) of Section 8.13 of the
Credit Agreement is amended and restated as follows:
"(b) The Borrowers shall not enter into any Equipment
Securitization Obligations and no equipment inventory or other assets
of the Borrowers shall be transferred to or financed by the ES SPV
without the prior consent of the Majority Lenders, and provided further
that the Net Cash Proceeds of any Permitted Equipment Securitization or
related asset sale or financing shall be applied as follows: (i) the
first $100,000,000 of such proceeds shall be used to make a Pro Rata
Payment to the Lenders in accordance with ss.4A (d) and (e) hereof, and
(ii) the Reduction Amount shall be applied to reduce the Term Loan as
set forth in ss.4.4.2(c)."
23. ADDITION OF SS.8.14. The Credit Agreement is hereby amended by
adding the following new ss.8.14:
"SS.8.14. OPERATING LEASES, ETC. The Operating Lease
Obligations of the Borrowers shall not exceed $5,000,000 in the
aggregate at any time."
24. AMENDMENTS TO SS.9. Section 9 of the Credit Agreement is hereby
amended and restated as follows:
"SS.9. FINANCIAL COVENANTS. Each of the Borrowers covenants
and agrees that, so long as any Loan, any Note, any Reimbursement
Obligation or other Obligation is outstanding or the Lenders have any
obligation to make Loans or participate in Loans or Letters of Credit,
or the Issuing Bank has any obligation to issue, extend or renew any
Letters of Credit hereunder:
SS.9.1. LEVERAGE RATIO. Commencing with the fiscal
quarter ending September 30, 2001, the ratio of (a) Funded
Debt as at the end of any fiscal quarter to (b) EBITDA for the
period of four (4) consecutive fiscal quarters ending on such
date shall not exceed the ratio for the quarters ending on or
within the respective periods set forth in the following
table:
Fiscal Quarters Ending: Maximum Ratio:
------------------------------------------------------------
9/30/01 6.35:1
------------------------------------------------------------
12/31/01 5.00:1
------------------------------------------------------------
3/31/02 - 9/30/02 4.25:1
------------------------------------------------------------
12/31/02 -9/30/03 4.00:1
------------------------------------------------------------
12/31/03 3.75:1
------------------------------------------------------------
3/31/04 and thereafter 3.50:1
------------------------------------------------------------
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SS.9.2. SENIOR FUNDED DEBT TO EBITDA. Commencing with
the fiscal quarter ending September 30, 2001, the ratio of (a)
Senior Funded Debt as at the end of any fiscal quarter to (b)
EBITDA for the period of four (4) consecutive fiscal quarters
ending on such date (the "Senior Debt Pricing Ratio") shall
not exceed the ratio for the quarters ending on or within the
respective periods set forth in the following table:
Fiscal Quarters Ending: Minimum Ratio:
--------------------------------------------------------
9/30/01 4.80:1
--------------------------------------------------------
12/31/01 3.75:1
--------------------------------------------------------
3/31/02 - 9/30/03 3.25:1
--------------------------------------------------------
12/31/03 and thereafter 3.00:1
--------------------------------------------------------
SS.9.3 INTEREST COVERAGE RATIO. As of the end of any
fiscal quarter of the Borrowers commencing with the fiscal
quarter ending March 31, 2001, the Borrowers will not permit
the ratio (the "Interest Coverage Ratio") of (a) EBITDAR
(without PRO FORMA adjustment for acquisitions) for the period
of four (4) consecutive fiscal quarters ending on such date to
(b) the sum of Consolidated Total Interest Expense and Rental
Expense for such period to be less than the ratio for the
quarters ending on or within the respective periods set forth
in the following table:
Fiscal Quarters Ending Minimum Ratio
--------------------------------------- ---------------------------------
3/31/01 1.35:1
--------------------------------------- ---------------------------------
6/30/01 - 9/30/01 1.30:1
--------------------------------------- ---------------------------------
12/31/01 1.50:1
--------------------------------------- ---------------------------------
3/31/02 - 12/31/02 2.00:1
--------------------------------------- ---------------------------------
3/31/03 and thereafter 2.25:1
--------------------------------------- ---------------------------------
SS.9.4 SENIOR DEBT TO TANGIBLE ASSETS. The Borrowers
will not permit at any time the ratio of (a) the sum of the
Loans, unpaid Reimbursement Obligations and the Maximum
Drawing Amount to (b) Consolidated Tangible Assets to be
greater than the ratio opposite such period set forth in the
table below:
Fiscal Quarters Ending Ratio
-------------------------------------- -----------------------------------
3/31/01 - 9/30/01 1.10:1
-------------------------------------- -----------------------------------
12/31/01 1.05:1
-------------------------------------- -----------------------------------
3/31/02 and thereafter 1.00:1
-------------------------------------- -----------------------------------
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SS.9.5 CONSOLIDATED NET WORTH. The Borrowers will not
permit Consolidated Net Worth at any time to be less than
$410,000,000 PLUS the sum of (i) 50% of positive Consolidated
Net Income for each fiscal quarter, beginning with the fiscal
quarter ended March 31, 2001, and (ii) 100% of the Net Cash
Proceeds of any sale on or after the First Amendment Effective
Date, of (A) equity securities issued by the Borrowers or (B)
warrants or subscription rights for equity securities issued
by the Borrowers.
SS.9.6. CAPITAL EXPENDITURES. (a) Capital
Expenditures for the fiscal quarters commencing with the
fiscal quarter ending March 31, 2001 through the fiscal
quarter ending December 31, 2001, shall not exceed the amounts
for each category of equipment set forth opposite such period
set forth in the following table:
Quarter Ended Rental Equipment Non-Rental Equipment Total Cumulative
---------------------- ------------------------ ---------------------- ---------------------- --------------------
3/31/01 $5,800,000 $2,700,000 $8,500,000 $8,500,000
---------------------- ------------------------ ---------------------- ---------------------- --------------------
6/30/01 $11,400,000 $3,100,000 $14,500,000 $23,000,000
---------------------- ------------------------ ---------------------- ---------------------- --------------------
9/30/01 $6,000,000 $1,200,000 $7,200,000 $30,200,000
---------------------- ------------------------ ---------------------- ---------------------- --------------------
12/31/01 $4,900,000 $500,000 $5,400,000 $35,600,000
---------------------- ------------------------ ---------------------- ---------------------- --------------------
Fiscal Year Ended
12/31/01 $28,100,000 $7,500,000 $35,600,000 $35,600,000
---------------------- ------------------------ ---------------------- ---------------------- --------------------
PROVIDED that Capital Expenditures for new Lowe's Stores
opened in 2001 shall not exceed $8,300,000. The Borrower may
increase Capital Expenditures attributed to Rental Equipment
in exchange for a 1:1 reduction in Capital Expenditures
attributed to non-Rental Equipment. If during any of the first
three quarters of the 2001 fiscal year, any permitted Capital
Expenditures are not utilized, such unutilized amount may be
utilized in the next succeeding quarter, PROVIDED HOWEVER,
that, (i) such amount does not exceed the cumulative Capital
Expenditures as set forth in the above table and (ii) annual
Capital Expenditures for the fiscal year ending December 31,
2001 do not exceed $35,600,000, PROVIDED FURTHER, HOWEVER,
that if the Borrowers extend the maturity date of at least
fifty percent (50%) of the $7,400,000 Seller Notes due October
1, 2001 to March 31, 2002 or later, then the Capital
Expenditures for the new Lowe's Stores opened in 2001 will be
increased to $12,000,000, the annual Capital Expenditures
permitted for the fiscal year ending December 31, 2001 will be
increased to $39,300,000, and the numbers with respect to
Capital Expenditures in the above table shall be adjusted
accordingly by the Agents and the Borrowers to reflect such
increases. Capital Expenditures for Rental Equipment for the
fiscal year ending December 31, 2002 and each fiscal year
thereafter shall not exceed $50,000,000 (or such other amount
as agreed to by the Majority Lenders) and Capital Expenditures
for non-Rental Equipment shall not exceed such amount as
agreed to by the Majority Lenders.
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(b) Notwithstanding the above, commencing with the
quarter ending March 31, 2001 and ending with the quarter
ending December 31, 2001, the Borrowers shall not permit
cumulative Capital Expenditures MINUS the sum of (i) the
cumulative Net Cash Proceeds from sales of Rental Equipment
after January 1, 2001, PLUS (ii) the cumulative Net Cash
Proceeds from other asset sales up to an aggregate amount of
$5,000,000, to be greater than zero; PROVIDED that, for
purposes of this subsection (b), Capital Expenditures and Net
Cash Proceeds will be determined on an accrual basis.
SS.9.7. MINIMUM CONSOLIDATED EBITDA. As of the end of
any fiscal quarter of the Borrowers commencing with the fiscal
quarter ending March 31, 2001, the Borrowers will not permit
EBITDA for such period and Cumulative EBITDA for the periods
then ending to be less than the respective amounts set forth
opposite such periods set forth in the following table:
QUARTER ENDED EBITDA PERIOD ENDED CUMULATIVE EBITDA
------------------------- -------------------- -------------------------- ---------------------------------
3/31/01 $23,000,000 3 month period ending $ 23,000,000
3/31/01
------------------------- -------------------- -------------------------- ---------------------------------
6/30/01 $45,000,000 6 month period ended $ 70,000,000
6/30/01
------------------------- -------------------- -------------------------- ---------------------------------
9/30/01 $63,000,000 9 month period ended $135,000,000
9/30/01
------------------------- -------------------- -------------------------- ---------------------------------
12/31/01 $60,000,000 12 month period ended $200,000,000"
12/31/01
------------------------- -------------------- -------------------------- ---------------------------------
25. AMENDMENT TO SS.12. Section 12 of the Credit Agreement is hereby
amended and restated as follows:
"SS.12 COLLATERAL SECURITY. The Obligations shall be secured
by (a) a perfected first priority security interest (except for assets
subject to Basket Liens, other Permitted Liens entitled to priority
under applicable law or other exclusions permitted pursuant to ss.7.19)
in all assets of each Borrower, whether now owned or hereafter
acquired, pursuant to the terms of the Security Documents to which such
Borrower is a party; and (b) a pledge of 100% of the capital stock or
other equity interests of each Restricted Subsidiary of the Parent
pursuant to the terms of the Pledge Agreements (provided that unless
requested by the Administrative Agent, after occurrence of an Event of
Default, notation of the Administrative Agent's lien on certificates of
title shall not be required with respect to any motor vehicles of a
model year earlier than five (5) years prior to the then calendar
year). Notwithstanding anything herein to the contrary, (a) the
Administrative Agent may release, and/or subordinate, the
Administrative Agent's lien on certain Collateral if such Collateral is
released or subordinated in connection with a Permitted Equipment
Transfer, or is subject to a Permitted Equipment Securitization Lien;
and (b) upon the consent of the Majority Lenders, the Borrowers shall
be relieved of their duty to perfect the Administrative Agent's
interest in Titled Collateral under ss.7.19 and this ss.12 to provide
the Administrative Agent with a first priority security interest in all
Titled Collateral."
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26. AMENDMENT TO SS.20. Section 20 of the Credit Agreement is hereby
amended by deleting the words "▇▇▇▇ ▇. ▇▇▇▇▇▇, Executive Vice President,
telephone number (▇▇▇) ▇▇▇-▇▇▇▇, fax number (▇▇▇) ▇▇▇-▇▇▇▇" as addressee in
clause (a) thereof and replacing it with "▇▇▇▇ ▇▇▇▇▇▇▇▇, Executive Vice
President, telephone number (▇▇▇) ▇▇▇-▇▇▇▇, fax number (▇▇▇) ▇▇▇-▇▇▇▇" as
addressee.
27. AMENDMENT TOSS.21.2. Section 21.2 of the Credit Agreement is hereby
amended by inserting the following text immediately before the comma at the end
of clause (g) thereof: "so long as such Subsidiary or affiliate agrees to be
bound by the provisions of this ss.21".
28. AMENDMENTS TO SCHEDULES AND EXHIBITS. The Schedules and Exhibits of
the Credit Agreement is hereby amended by (a) deleting the current Schedules 1,
6.14 and 8.1 and Exhibits D and F thereto and replacing them with the new
Schedules 1, 6.14 and 8.1 and Exhibits D and F attached hereto; and (b) adding
the new Schedule 6.24 attached hereto in proper numerical order therein.
29. AMENDMENT TO SECTION 2.1(b) OF THE SECURITY AGREEMENT. Section
2.1(b) of the Security Agreement is hereby amended by inserting the following
text immediately following the words "deposit accounts" appearing therein:
", rights to proceeds of letters of credit".
30. WAIVERS AND CONSENTS. Each of the Majority Lenders hereby (a)
waives the Borrowers' compliance with the financial covenants set forth in ss.9
of the Credit Agreement for the fiscal period ending December 31, 2000, and (b)
consents to the payment by the Borrowers of the $1,400,000 of Seller Notes due
December 31, 2000.
31. SUSPENSION OF SS.SS.2.2(c) AND 4.1(b) OF THE CREDIT AGREEMENT. Each
of the undersigned hereby agrees that the provisions of ss.ss.2.2(c) and 4.1(b)
shall be suspended until such time as the Majority Lenders agree to reinstate
such provisions.
32. AMENDMENT FEE. Upon the receipt by the Administrative Agent of
counterparts of this Amendment executed by the Majority Lenders and the
Borrowers, each Lender (a) which executed and delivered its signature pages and
(b) delivered its contact information form, to ▇▇▇▇▇▇▇ ▇▇▇▇, counsel to the
Agents, by 5:00 p.m. Boston time on March 14, 2001 by facsimile (to be followed
by originals), shall receive from the Parent an amendment fee payable to such
Lender for its own account equal to 0.25% of such Lender's Commitment (as
reduced hereby) and/or outstanding principal balance of its Term Loan, as
applicable.
33. CONDITIONS TO EFFECTIVENESS. This Amendment shall become effective
upon:
(a) the receipt by the Administrative Agent of counterparts of this
Amendment executed by the Majority Lenders and the Borrowers;
(b) the payment of all fees due to each Lender hereunder;
(c) the execution and, subject to the requirements of ss.7.19 of the
Credit Agreement, delivery of the First Amendment Ancillary Documents, PROVIDED
that, (i) with
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respect to the certificates of title for the Titled Collateral, for any
certificates of title which are required to be delivered and for which the
Borrowers do not possess the original of, and for which the Borrowers have
applied for a duplicate certificate of title and are diligently doing all things
reasonably necessary in connection therewith, the Borrowers will deliver such
duplicate certificates within five (5) days of receipt thereof, (ii) with
respect to the Mortgages, the Borrowers will deliver mortgagee title insurance
policies in form and substance acceptable to the Administrative Agent within
sixty (60) days after the First Amendment Effective Date, and (iii) with respect
to the Phase I environmental site assessments, the Borrowers will deliver the
Phase I environmental site assessments for the Real Estate in Indiana within
thirty (30) days after the First Amendment Effective Date;
(d) the receipt by the Administrative Agent of officers' certificates
for each of the Borrowers as to (i) incumbency, (ii) resolutions, and (iii) no
change to organizational documents since last delivered to the Administrative
Agent;
(e) the receipt by the Administrative Agent of evidence of good
standing for each Borrower in the relevant jurisdictions;
(f) delivery of an opinion of ▇▇▇▇▇ Day issued to the Agents and the
Lenders in form and substance satisfactory to the Administrative Agent;
(g) a certificate of the Borrowers that (i) taking into account this
amendment no Default or Event of Default exists and (ii) except for the
$1,400,000 of Seller Notes due December 31, 2000, there is no default of the
Subordinated Debt, and except as disclosed in writing to the Lenders, there have
been no modifications with respect to the terms of the Subordinated Debt; and
(h) the receipt by the Administrative Agent of counterparts of the
Post-Closing Agreement executed by the Parent.
34. REPRESENTATIONS AND WARRANTIES. Each Borrower hereby represents and
warrants to the Lenders as follows:
34.1 The representations and warranties of such Borrower
contained in the Credit Agreement, as amended hereby, the other Loan
Documents, or in any document or instrument delivered pursuant to or in
connection with the Credit Agreement were true when made and continue
to be true on the date hereof (except to the extent of changes
resulting from transactions contemplated or permitted by the Credit
Agreement, the other Loan Documents and this Amendment and changes
occurring in the ordinary course of business which singly or in the
aggregate are not materially adverse, or to the extent that such
representations and warranties related solely and expressly to an
earlier date) and no Default or Event of Default shall have occurred
and be continuing;
34.2 The execution, delivery, and performance by each Borrower
of this Amendment and the consummation of the transactions contemplated
hereby: (i) are within the corporate powers of such Borrower; (ii) have
been duly authorized by all necessary corporate proceedings on the part
of such Borrower; (iii) do not require any approval, consent of, or
filing with, any governmental agency or authority, or any other person,
association or entity, which bears on the validity of this
22
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Amendment and which is required by law or the regulation or rule of any
agency or authority, or other person, association or entity; (iv) do
not conflict with or result in any breach or contravention of any
provision of law, statute, rule, or regulation to which any Borrower is
subject or any judgment, order, writ, injunction, license, or permit
applicable to such Borrower; (v) do not conflict with any provision of
the corporate charter or bylaws of such Borrower; and (vi) do not
conflict with any provision of any agreement or other instrument
binding upon such Borrower in a manner which is reasonably likely to
have a material adverse effect on the Borrowers taken as a whole; and
34.3 This Amendment, the Credit Agreement as amended hereby,
and the other Loan Documents constitute the legal, valid, and binding
obligations of each Borrower, enforceable against each Borrower in
accordance with their respective terms, provided that: (i) enforcement
may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium, or similar laws of general application affecting the rights
and remedies of creditors, and (ii) enforcement may be subject to
general principles of equity, and the availability of the remedies of
specific performance and injunctive relief may be subject to the
discretion of the court before which any proceeding for such remedies
may be brought.
35. RATIFICATION. Each of the Borrowers hereby adopts again, ratifies
and confirms in all respects, as its own act and deed, each of the Credit
Agreement and the other Loan Documents to which such Borrower is a party; each
of the Borrower hereby adopts again, ratifies and confirms in all respects, as
its own act and deed, the grant of a security interest under the Security
Documents in all of the existing and after-acquired or arising goods, accounts,
chattel paper, investment property, documents, instruments, general intangibles
and other personal property assets in which any of the Borrower has ownership or
other rights, together with any and all Uniform Commercial Code financing
statements and other instruments or documents previously executed in connection
therewith to create, evidence, perfect or preserve the priority of such security
interest in favor of the Administrative Agent for the benefit of the Lenders and
the Administrative Agent. To the extent that it has not already done so, each
Borrower hereby waives all suretyship defenses of whatsoever nature, whether
arising out of the Administrative Agent's or any Lender's dealings with any
other Borrower in respect of the Credit Agreement, any other Loan Document or
otherwise.
36. RELEASE. In order to induce the Agents and the Lenders to enter
into this Amendment, each of the Borrowers acknowledges and agrees that: (a)
none of the Borrowers has any claim or cause of action against the Agents or any
Lender (or any of its respective directors, officers, employees or agents); (b)
none of the Borrowers has any offset right, counterclaim or defense of any kind
against any of their respective obligations, indebtedness or liabilities to the
Agents or any Lender; and (c) each of the Agents and the Lenders has heretofore
properly performed and satisfied in a timely manner all of its obligations to
the Borrowers. The Borrowers wish to eliminate any possibility that any past
conditions, acts, omissions, events, circumstances or matters would impair or
otherwise adversely affect any of the Agents' and the Lenders' rights,
interests, contracts, collateral security or remedies. Therefore, each of the
Borrowers unconditionally releases, waives and forever discharges (x) any and
all liabilities, obligations, duties, promises or indebtedness of any kind of
any Agent or any
23
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Lender to any of the Borrowers, except the obligations to be performed by any
Agent or any Lender on or after the date hereof as expressly stated in this
Amendment, the Credit Agreement and the other Loan Documents, and (y) all
claims, offsets, causes of action, suits or defenses of any kind whatsoever (if
any), whether arising at law or in equity, whether known or unknown, which the
Borrowers might otherwise have against any Agent, any Lender or any of its
directors, officers, employees or agents, in either case (x) or (y), on account
of any past or presently existing condition, act, omission, event, contract,
liability, obligation, indebtedness, claim, cause of action, defense,
circumstance or matter of any kind.
37. EXECUTION IN COUNTERPARTS; DELIVERY BY FACSIMILE. This Amendment
may be executed in any number of counterparts, each of which shall be an
original but all of which together shall constitute one and the same instrument.
This Amendment, to the extent signed and delivered by means of a facsimile
machine, shall be treated in all manner and respects as an original agreement or
instrument and shall be considered to have the same binding legal effect as if
it were the original signed version thereof delivered in person. At the request
of any party hereto or to any such agreement or instrument, each other party
hereto or thereto shall re-execute original forms thereof and deliver them to
all other parties. No party hereto or to any such agreement or instrument shall
raise the use of a facsimile machine to deliver a signature or the fact that any
signature or agreement or instrument was transmitted or communicated through the
use of a facsimile machine as a defense to the formation of a contract and each
party forever waives such defense.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
24
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IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Amendment as of the date set forth above.
The Borrowers:
NationsRent, Inc.
NRGP, Inc.
Nationsrent USA, Inc.
Nationsrent West, Inc.
Nationsrent Transportation Services, Inc.
NR Delaware, Inc.
▇▇▇▇▇ Equipment Corp.
NR Dealer, Inc.
NR Franchise Company
BDK Equipment Company, Inc.
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
NationsRent of Indiana, LP
By: NRGP, Inc., its general partner
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
NationsRent of Texas, LP
By: NRGP, Inc., its general partner
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
25
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The Lenders:
Fleet National Bank,
individually and as Administrative Agent
By:
--------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Managing Director
Bankers Trust Company, individually and as Syndication Agent
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
Bank Austria Creditanstalt Corporate Finance, Inc.
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
Washington Mutual Bank, FA (f/k/a Bank United)
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
Bay View Financial Corporation
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
26
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Citicorp Del-Lease, Inc.
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
Credit Lyonnais New York Branch
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
Dime Commercial Corp.
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
Erste Bank
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
The Fifth Third Bank, Central Ohio
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
27
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First Bank Texas, N.a.
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
General Electric Capital Corporation
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
▇▇▇▇▇▇▇▇ Bank, N.a.
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
Huntington National Bank
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
28
-28-
LaSalle Bank National Association
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
Bank One, N.A.
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
The Bank of Nova Scotia
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
SunTrust Bank
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
Union Bank of California, N.A.
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
29
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Union Planters Bank
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
Citizens Bank of Massachusetts as Successor to USTrust
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
30
-30-
First Source Financial LLP
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
First Union National Bank
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
First Dominion Funding I
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
Franklin Floating Rate Trust
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
31
-31-
Archimedes Funding, L.L.C.
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
Archimedes Funding II, Ltd
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
Archimedes Funding III, L.L.C.
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ Senior Floating Rate Fund II, Inc.
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ Senior Floating Rate Fund, Inc.
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
32
-32-
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Prime Income Trust
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
Paribas Capital Funding LLC
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
The Prudential Insurance Company of America
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
Allstate Life Insurance Co.
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
33
-33-
Great Point CLO 1999-1 Ltd.
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
Ares Leveraged Investment Fund, L.P.
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
Ares Leveraged Investment Fund II, L.P.
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
Ares III CLO LTD.
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
NationsBank, N.A.
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
34
-34-
Indosuez Capital Funding IIA Limited
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
Indosuez Capital Funding III Limited
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
Indosuez Capital Funding IV LP
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
Toronto Dominion (New York) Inc.
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇-▇, Ltd.
By: Sankaty Advisors, Inc., As Collateral Manager
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
35
-35-
Firstrust Bank
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
Sequils - ING I (HBDGM), Ltd.
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
▇▇▇▇▇ ▇▇▇ & FARNHAM CLO1 LTD.,
By ▇▇▇▇▇ ▇▇▇ & ▇▇▇▇▇▇▇ Incorporated, as
Portfolio Manager
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
BNY Factoring LLC
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
Simsbury CLO, LTD.
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
36
-36-
First Dominion Funding III
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
SRF Trading, Inc.
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
Swiss Life US Rainbow
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
Longhorn CDO (Cayman) Ltd.
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
37
-37-
▇▇▇ ▇▇▇▇▇▇ Prime Rate Income Trust
By: ▇▇▇ ▇▇▇▇▇▇ Investment Advisory Corp.
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
▇▇▇ ▇▇▇▇▇▇ Senior Income Trust
By: ▇▇▇ ▇▇▇▇▇▇ Investment Advisory Corp.
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
▇▇▇ ▇▇▇▇▇▇ CLO I, Limited
By: ▇▇▇ ▇▇▇▇▇▇ Management Inc.
as Collateral Manager
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
▇▇▇ ▇▇▇▇▇▇ CLO II, Limited
By: ▇▇▇ ▇▇▇▇▇▇ Management Inc.
as Collateral Manager
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
Franklin Floating Rate Master Series
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
38
-38-
Franklin CLO I, Limited
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
SEQUILS I, LTD
By: TCW Advisors, Inc. as its Collateral Manager
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
SEQUILS IV, LTD
By: TCW Advisors, Inc. as its Collateral Manager
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
Captiva II Finance Ltd.
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
39
-39-
BNP Paribas
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
National City
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
RZB Finance LLC
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
KZH CYPRESSTREE-1, LLC
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
CYPRESSTREE INVESTMENT FUND, LLC
By: Cypress Investment Management Company, Inc.
its Managing Member
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
40
-40-
CYPRESSTREE INSTITUTIONAL FUND, LLC
By: Cypress Investment Management Company, Inc.
its Managing Member
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
NORTH AMERICA SENIOR FLOATING RATE FUND
By: CypressTree Investment Management Company, Inc.,
as Portfolio Manager
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
Amico CDO Series 2000-A
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
Nuveen Senior Income Fund
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
Flagship CLO 2000-1
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
41
-41-
Nemean CLO Ltd.
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
Indosuez Capital Funding VI Ltd.
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
▇▇▇▇▇▇ Guaranty Trust Company
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
Senior Debt Portfolio
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
Bank Montreal
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ Senior Floating Rate Fund Inc.
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
42
-42-
CypressTree Investment Partners I, Ltd.
By: CypressTree Investment Management Company, Inc.
as Portfolio Manager
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
Ares IV CLO Ltd.
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------