Exhibit 10.2
CALL
AGREEMENT
This
CALL AGREEMENT (this "Agreement") is made as of June 13, 2003 by
and between NR HOLDINGS, INC., a Delaware corporation ("Holdco")
and Perry Mandarino, as Trustee (the "Holder") on behalf of
NationsRent Unsecured Creditor’s Liquidating Trust, a
Delaware business trust (the "Liquidating Trust") established
pursuant to the NationsRent Liquidating Trust Agreement (the "Trust
Agreement") dated the date hereof.
W I
T N E S S E T
H :
WHEREAS, the First Amended Joint Plan of Reorganization of
NationsRent, Inc. ("NationsRent"), and NationsRent USA, Inc.,
NationsRent Transportation Services, Inc., NR Delaware, Inc., NRGP,
Inc., NationsRent West, Inc., Logan Equipment Corp., NR Dealer,
Inc., NR Franchise Company, BDK Equipment Company, Inc.,
NationsRent of Texas, LP and NationsRent of Indiana, LP, was filed
on February 7, 2003 (as modified by certain modifications filed
with the Court on April 16, 2003, May 6, 2003 and May 13, 2003, the
"Plan") and confirmed by the United States Bankruptcy Court for the
District of Delaware in the Chapter 11 Cases No. 01-11628 through
01-11639 (Jointly Administered) by Order dated May 14, 2003 (the
"Confirmation Order"), the Liquidating Trust was formed for such
purposes enumerated under Section 2.2 of the Trust Agreement;
WHEREAS,
pursuant to the Plan and the Confirmation Order, NationsRent was
merged with and into an indirect wholly-owned subsidiary of
Holdco;
WHEREAS,
pursuant to the Plan and the Confirmation Order, certain New
Securities (as defined below) were deposited into the Liquidating
Trust;
WHEREAS,
one of the purposes of the Liquidating Trust is to hold, vote and
sell or exchange the New Securities until such time as the
Liquidating Trust is terminated pursuant to Article XI of the Trust
Agreement; and
WHEREAS,
Holdco is entering into this Agreement with Holder in order to set
forth certain rights, obligations and options relating to the
option of Holdco to purchase the New Securities held in the
Liquidating Trust.
NOW,
THEREFORE, in consideration of the mutual promises hereinafter set
forth and other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, and intending to be
legally bound thereby, the parties hereto hereby agree as
follows.
1. Definitions . All
capitalized terms used but not otherwise defined in this Agreement
shall have the meanings ascribed to such terms in the Trust
Agreement, the Plan or the Stockholders' Agreement (defined below).
In addition to the capitalized terms defined in other Sections of
this Agreement, the following capitalized terms shall have the
meanings ascribed to such terms:
"
Appraiser " means an independent nationally recognized
investment bank or other qualified financial institution reasonably
acceptable to Holdco and the Holder.
"
Call Notice " means the written notice given by Holdco to
Holder pursuant to Section 2 hereof exercising its option to
purchase all of Holder’s New Securities.
"
Call Period " means the period of 120 days commencing on the
date Holder’s Notice is delivered and ending on the 120th day
thereafter.
"
Call Price " means, if Holdco decides to exercise its rights
to purchase the New Securities held by the Liquidating Trust
pursuant to this Agreement, the Fair Market Value.
"
Certificate of Designation " means the Certificate of
Designation, Preferences and Relative, Optional and Other Special
Rights, and Qualifications, Limitations and Restrictions of Series
A Preferred Stock, as filed by Holdco with the Secretary of State
of the State of Delaware on June 12, 2003.
"
Convertible Subordinated Notes " shall mean the thirty
million dollar ($30,000,000) aggregate principal amount of 6.5%
unsecured convertible subordinated promissory notes due 2008 issued
by Holdco.
"
Expiration Date " means, the earlier of (x) the date the
Liquidating Trust is to be terminated pursuant to Section 11.2 of
the Trust Agreement or (y) the fifth anniversary of the Effective
Date (as such term is defined in the Plan).
"
Fair Market Value " means, the fair market value of the New
Securities then held by the Liquidating Trust as determined by the
Appraiser in accordance with Section 2(b) hereof. In arriving at
its determination of fair market value, the Appraiser: (A) shall
use the then aggregate principal amount of the Convertible
Subordinated Notes, plus any accrued but unpaid interest, as the
fair market value for the Convertible Subordinated Notes and (B)
shall (i) base the valuation of the Holdco Common Stock and the
Holdco Preferred Stock then held by the Trust upon the assumption
that such securities were sold to an independent third party in an
arm’s length transaction and (ii) with respect to such
securities determine a valuation based on the arithmetic mean of
(x) a valuation without regard to a minority interest discount
(i.e., a valuation based upon (A) the aggregate value of the
outstanding Holdco Common Stock multiplied by the percentage of the
outstanding Holdco Common Stock then held by the Trust and (B) the
aggregate value of the outstanding Holdco Preferred Stock
multiplied by the percentage of the outstanding Holdco Preferred
Stock then held by the Trust) and (y) a valuation with regard to a
minority interest discount.
"
Governmental Entity " means any government, governmental
entity, department, commission, board, agency or instrumentality,
whether federal, state or local, and whether domestic or
foreign.
"
Holdco Common Stock " shall mean Holdco’s common
stock, par value $.01 per share.
"
Holdco Preferred Stock " shall mean Holdco’s Series A
Preferred Stock, par value $.01 per share.
"
Holder’s Notice " means the written notice given by
Holder to Holdco pursuant to Section 2 hereof, triggering the
commencement of the Call Period.
"
New Securities " shall mean the Holdco Common Stock, the
Holdco Preferred Stock and the Convertible Subordinated Notes held,
from time to time, as Trust Assets in the Liquidating Trust.
"
Stockholders’ Agreement " shall mean that
Stockholders’ Agreement, dated as of June 13, 2003, between
Holdco and the Stockholders signatory thereto.
"
34 Act " shall mean the Securities Exchange Act of 1934, as
amended, or any similar federal statute, and the rules or
regulations of the Securities Exchange Commission (or any other
federal agency then administering the 34 Act) under the 34 Act, all
as the same shall be in effect at the time.
"
Transfer " shall mean any direct or indirect, voluntary or
involuntary, sale, pledge, hypothecation, assignment or transfer of
any shares of New Securities or any economic or voting interest in
any New Securities.
2. Call Option .
