EXHIBIT 4.14
SECOND AMENDMENT TO
DEBTOR IN POSSESSION REVOLVING CREDIT AGREEMENT
This Second Amendment (this "AMENDMENT"), dated as of June 28, 2002, is
by and among (a) 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"), (b) the financial
institutions referred to in the Credit Agreement defined below as Banks
(collectively, the "BANKS"), (c) Fleet National Bank, a national banking
association, as administrative agent for the Banks (in such capacity, the
"ADMINISTRATIVE AGENT") and Wachovia Bank, National Association (f/k/a First
Union National Bank), as syndication agent for the Banks (in such capacity, the
"SYNDICATION AGENT" and together with the Administrative Agent, the "AGENTS").
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 Banks and the Agents are parties to 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 (as
heretofore amended, the "CREDIT AGREEMENT"); and
WHEREAS, the Borrowers, the Banks and the Agents wish to make certain
amendments and other modifications to the Credit Agreement as provided herein;
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. AMENDMENT TO SECTION 10.14 OF THE CREDIT AGREEMENT. Section 10.14 of
the Credit Agreement is hereby amended by adding the following subsection (d)
thereto:
"(d) The Borrowers, at their sole cost and expense, shall
obtain and deliver to the Agents and the Banks by October 1, 2002, a
fair market value appraisal of such of the Borrowers' rental equipment
as the Agents may request. The appraisal shall be conducted by Ritchie
Brothers, Inc. or another appraiser acceptable to the Agents and shall
follow a methodology and be delivered in a form acceptable to the
Agents. The Borrowers, at their sole cost and expense, shall provide to
the Agents and the Banks such supplemental appraisal related
information and follow up appraisals as the Administrative Agent may
from time to time reasonably request. The Administrative Agent shall be
entitled to share all such appraisals and appraisal related information
with the Prepetition Agents and the Prepetition Lenders. "
2. AMENDMENT TO SECTION 10.18(A) OF THE CREDIT AGREEMENT. Section
10.18(a) of the Credit Agreement is hereby amended by deleting subsection (iv)
thereof in its entirety and substituting in lieu thereof the following text:
"(iv) conclude the search and hire for such positions a person,
reasonably acceptable
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to the Agents and the Prepetition Agents, so that such person's
employment terms have been agreed to by such person and the Borrowers
by no later than July 15, 2002, and such person begins to perform his
or her duties by no later than July 31, 2002."
3. SUSPENSION OF CERTAIN COVENANTS.
(a) The operation of Section 12.1 (Minimum Adjusted Consolidated
EBITDA) of the Credit Agreement for the consecutive three-month period ending at
the end of May 2002 and also for the consecutive three-month period ending at
the end of June 2002, and the operation of Section 12.2 (Cumulative Cash Flow)
for the period ending at the end of May 2002 and also for the period ending at
the end of June 2002, are hereby suspended until the Suspension Expiration Date
(as hereinafter defined).
(b) On the Suspension Expiration Date, the provisions of ss.3(a) shall
expire and be of no further force or effect, and the Banks and the Agents shall
thereupon have all of the rights and remedies set forth in the Credit Agreement,
the other Loan Documents and applicable law, as if the provisions of Sections
12.1 and 12.2 had never been suspended.
(c) The suspension set forth in ss.3(a) shall apply only to the
provisions and for the periods specified therein and only until the Suspension
Expiration Date. Any obligation of the Banks to make Loans, or of the Issuing
Bank to issue, extend or renew Letters of Credit, shall, at all times, be
subject to the satisfaction of all of the terms and conditions of the Credit
Agreement, including, without limitation, the conditions precedent set forth in
the Credit Agreement (after giving effect to ss.3(a) until the Suspension
Expiration Date). The Banks and the Agents shall at all times retain all rights
and remedies in respect of any Default or Event of Default (after giving effect
to ss.3(a) until the Suspension Expiration Date).
(d) The term "SUSPENSION EXPIRATION DATE," as used in this Amendment,
means the earliest to occur of (i) 5:00 p.m. Boston time on July 31, 2002, (ii)
the date on which outstanding Loans to the Borrowers under the Credit Agreement
exceed the total sum of $10,000,000, (iii) the date on which any Letters of
Credit are issued, extended or renewed, other than Letters of Credit issued
prior to the date hereof and the $500,000 Letter of Credit contemplated by
Paragraph 4 of the Final Order, and (iv) the date on which the Borrowers request
Loans or Letters of Credit which would cause an event referred to in the
foregoing clause (ii) or (iii) to occur.
4. CONDITIONS TO EFFECTIVENESS. This Amendment and shall become
effective upon the receipt by the Administrative Agent of counterparts of this
Amendment executed by the Borrowers, the Agents and the Required Banks.
5. REPRESENTATIONS AND WARRANTIES. Each Borrower hereby represents and
warrants to the Agents and the Banks as follows:
(a) 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, as amended hereby, 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
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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);
(b) 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 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
(c) 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.
6. 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 (as amended hereby), and the other Loan Documents to which such
Borrower is a party; each of the Borrowers 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, commercial tort claims, deposit accounts, letter-of-credit rights,
general intangibles and other personal property assets in which any of the
Borrowers has ownership or other rights, together with any and all Uniform
Commercial Code financing statements and other instruments or documents
previously executed or filed 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 Banks 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 either Agent's
or any Bank's dealings with any other Borrower in respect of the Credit
Agreement, any other Loan Document or otherwise.
7. 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
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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.
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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., each as a
debtor and a debtor in possession
By:
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Name:
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Title:
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NATIONSRENT OF TEXAS, LP
NATIONSRENT OF INDIANA, LP, each as a
debtor and a debtor in possession
By: NRGP, Inc., its general partner
By:
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Name:
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Title:
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THE BANKS:
FLEET NATIONAL BANK,
individually and as Administrative Agent
By:
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Name:
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Title:
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WACHOVIA BANK, NATIONAL ASSOCIATION (f/k/a First Union National Bank),
individually and as Syndication Agent
By:
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Name:
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Title:
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GENERAL ELECTRIC CAPITAL CORPORATION
By:
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Name:
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Title:
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▇▇▇▇▇▇▇ SACHS CREDIT PARTNERS, LP
By:
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Name:
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Title:
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SENIOR DEBT PORTFOLIO
By: Boston Management and Research,
as Investment Advisor
By:
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Name:
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Title:
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▇▇▇▇▇▇▇ & CO.
By: Boston Management and Research,
as Investment Advisor
By:
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Name:
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Title:
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GMAC COMMERCIAL CREDIT LLC
By:
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Name:
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Title:
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▇▇▇▇▇ ▇▇▇▇▇ INSTITUTIONAL SENIOR LOAN FUND
By: ▇▇▇▇▇ ▇▇▇▇▇ Management,
as Investment Advisor
By:
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Name:
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Title:
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CERTIFICATE OF ACKNOWLEDGMENT
STATE OF DELAWARE )
) ss.
COUNTY OF __________________ )
Before me, the undersigned, a Notary Public in and for the county
aforesaid, on this ______ day of June, 2002, personally appeared _______________
_____________________________ to me known personally, and who, being by me duly
sworn, deposes and says that s/he is the _____________________________ of each
of NATIONSRENT, INC., NRGP, INC., NATIONSRENT WEST, INC., ▇▇▇▇▇ EQUIPMENT CORP.,
NATIONSRENT TRANSPORTATION SERVICES, INC., NR DELAWARE, INC., NATIONSRENT USA,
INC., NR DEALER, INC., NR FRANCHISE COMPANY and BDK EQUIPMENT COMPANY, INC. and
that said instrument was signed on behalf of each of said entities by authority
of its Board of Directors, and said ________________ acknowledged said
instrument to be the free act and deed of each of said entities.
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Notary Public
My commission expires:
STATE OF DELAWARE )
) ss.
COUNTY OF __________________ )
Before me, the undersigned, a Notary Public in and for the county
aforesaid, on this __ day of June, 2002, personally appeared
_____________________________________ to me known personally and who, being by
me duly sworn, deposes and says that s/he is the _____________________________
of NRGP, Inc., the sole general partner of NATIONSRENT OF TEXAS, LP and
NATIONSRENT OF INDIANA, LP and that said instrument was signed on behalf of each
of said entities and said _________________ acknowledged said instrument to be
the free act and deed of each of said entities.
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Notary Public
My commission expires: