Exhibit 10.5
INDEMNIFICATION AGREEMENT
This INDEMNIFICATION AGREEMENT, dated as of November 27, 2006 (the
"Agreement"), is among Atlas Copco North America Inc. (the "Company"), Rental
Service Corporation, an Arizona Corporation ("RSC" and, together with the
Company, the "Company Entities"), RSC Acquisition LLC ("Ripplewood 1"), RSC
Acquisition II LLC ("Ripplewood 2", and together with Ripplewood 1,
"Ripplewood"). OHCP II RSC, LLC ("Oak Hill 1"). OHCMP II RSC, LLC ("Oak Hill
2"), OHCP II RSC COI, LLC ("Oak Hill 3", and together with Xxx Xxxx 0 xxx Xxx
Xxxx 2, "Oak Hill"). Ripplewood Holdings L.L.C., a Delaware limited liability
corporation (the "Ripplewood Manager") and Oak Hill Capital Management, LLC (the
"Oak Hill Manager" and, together with the Ripplewood Manager, the "Managers"),
and Atlas Copco Finance S.a.r.l., a company organized under the laws of
Luxembourg ("AC"). Capitalized terms used herein without definition have the
meanings set forth in Section 1 of this Agreement.
RECITALS
A. In connection with the recapitalization of the Company (the
"Recapitalization"), Ripplewood and Oak Hill (together, the "Investors") have
agreed to acquire 85.47% of the outstanding shares of capital stock of the
Company pursuant to a Recapitalization Agreement, dated as of October 6, 2006
(the "Recapitalization Agreement"), by and among Atlas Copco AB, AC, Ripplewood,
Oak Hill and the Company.
B. Pursuant to the Recapitalization, AC has agreed to sell a number of
shares such that after the consummation of the Recapitalization it will own
14.53% of the outstanding shares of capital stock of the Company.
C. The Company, AC, and the Investors have entered into a Stockholders
Agreement, dated as of the date hereof (as the same may be amended from time to
time in accordance with the terms thereof, the "Stockholders Agreement"),
setting forth certain agreements with respect to, among other things, the
management of the Company and transfers of its shares in various circumstances.
D. Concurrently with the execution and delivery of this Agreement on the
date hereof, the Company has entered into a Transaction Agreement with RSC and
the Managers (as the same may be amended from time to time in accordance with
its terms, the "Transaction Agreement") and a Monitoring Agreement with RSC and
the Managers (as the same may be amended from time to time in accordance with
its terms, the "Monitoring Agreement").
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E. In connection with the Recapitalization and related transactions, the
Company is selling shares of its common stock, without par value ("Shares"), to
the Investors (the "Equity Offering"),
F. In connection with the Recapitalization, certain of the Company's
Subsidiaries, including RSC, intend (i) to enter into a senior asset based loan
facility and a senior second-lien term loan facility (the "Bank Financing") and
(ii) to issue senior unsecured notes (the "Bond Offering" and, together with the
Bank Financing, the "Financings").
G. The Managers have performed the Initial Services (as defined in the
Transaction Agreement) for the benefit of Company and its Subsidiaries.
H. The Company or one or more of its Subsidiaries from time to time in the
future may (i) offer and sell or cause to be offered and sold equity or debt
securities (such offerings, collectively, the "Subsequent Offerings"), including
without limitation (a) offerings of shares of capital stock of the Company or
any of its Subsidiaries, and/or options to purchase such shares to employees,
directors, managers, dealers, franchisees and consultants of and to the Company
or any of its Subsidiaries (any such offering, a "Management Offering"), and (b)
one or more offerings of debt securities for the purpose of refinancing any
indebtedness of the Company or any of its Subsidiaries or for other corporate
purposes, and (ii) repurchase, redeem or otherwise acquire certain securities of
the Company or any of its Subsidiaries or engage in recapitalization or
structural reorganization transactions relating thereto (any such repurchase,
redemption, acquisition, recapitalization or reorganization, a "Redemption").
I. The parties hereto recognize the possibility that claims might be made
against and liabilities incurred by each Manager, each Investor, or any of their
respective Affiliates or related Persons under applicable securities laws or
otherwise in connection with the Transactions or the Securities Offerings, or
relating to other actions or omissions of or by members of the Company Group, or
relating to the provision of management consulting, monitoring and financial
advisory services to the Company Group by either Manager or its Affiliates, and
the parties hereto accordingly wish to provide for each Manager, each Investor
and their respective Affiliates and related Persons to be indemnified in respect
of any such claims and liabilities.
J. The parties hereto recognize that claims might be made against and
liabilities incurred by directors and officers of any member of the Company
Group in connection with their acting in such capacity, and accordingly wish to
provide for such directors and officers to be indemnified to the fullest extent
permitted by law in respect of any such claims and liabilities.
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NOW, THEREFORE, in consideration of the foregoing premises, and the mutual
agreements and covenants and provisions herein set forth, the parties hereto
hereby agree as follows:
1. Definitions.
(a) "AC Indemnitee" means AC and its Affiliates, their respective
successors and assigns, and the respective directors, officers, partners,
members, employees, agents, advisors, consultants, representatives and
controlling persons (within the meaning of the Securities Act) of each of them,
or of their partners, members and controlling persons, and each other person who
is or becomes a director or an officer of any member of the Company Group, in
each case irrespective of the capacity in which such person acts.
(b) "Affiliate" means, with respect to any Person, (i) any other Person
directly or indirectly Controlling, Controlled by or under common Control with,
such Person (ii) any Person directly or indirectly owning or Controlling 10% or
more of any class of outstanding voting securities of such Person or (iii) any
officer, director, general partner or trustee of any such Person described in
clause (i) or (ii). "Control" of any Person shall consist of the power to direct
the management and policies of such Person (whether through the ownership of
voting securities, by contract, as trustee or executor, or otherwise).
(c) "Claim" means, with respect to any Indemnitee, any claim against such
Indemnitee involving any Obligation with respect to which such Indemnitee may be
entitled to be defended and indemnified by any member of the Company Group under
this Agreement.
(d) "Commission" means the United States Securities and Exchange
Commission or any successor entity thereto.
(e) "Company Group" means the Company Entities and any of their respective
Subsidiaries.
(f) "Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
(g) "Indemnitee" means (i) each Manager, each Investor, their respective
Affiliates, their respective successors and assigns, and the respective
directors, officers, partners, members, employees, agents, advisors,
consultants, representatives and controlling persons (within the meaning of the
Securities Act) of each of them, or of their partners, members and controlling
persons, and each other person who is or becomes a director or an officer of any
member of the Company Group, in each case irrespective of the capacity in which
such person acts and (ii) solely with respect to Obligations arising under the
securities laws in connection with the Bond Offering and imposed on the AC
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Indemnitees by virtue of the fact that at the time of the Bond Offering AC was
in control of the Company, the AC Indemnitees.
(h) "Obligations" means, collectively, any and all claims, obligations,
liabilities, causes of actions, actions, suits, proceedings, investigations,
judgments, decrees, losses, damages, fees, costs and expenses (including without
limitation interest, penalties and fees and disbursements of attorneys,
accountants, investment bankers and other professional advisors), in each case
whether incurred, arising or existing with respect to third parties or otherwise
at any time or from time to time.
(i) "Person" means an individual, corporation, limited liability company,
limited or general partnership, trust or other entity, including a governmental
or political subdivision or an agency or instrumentality thereof.
(j) "Related Document" means any agreement, certificate, instrument or
other document to which any member of the Company Group may be a party or by
which it or any of its properties or assets may be bound or affected from time
to time relating in any way to the Transactions or any Securities Offering or
any of the transactions contemplated thereby, including without limitation, in
each case as the same may be amended from time to time, (i) any registration
statement filed by or on behalf of any member of the Company Group with the
Commission in connection with the Transactions or any Securities Offering,
including all exhibits, financial statements and schedules appended thereto, and
any submissions to the Commission in connection therewith, (ii) any prospectus,
preliminary or otherwise, included in such registration statements or otherwise
filed by or on behalf of any member of the Company Group in connection with the
Transactions or any Securities Offering or used to offer or confirm sales of
their respective securities in any Securities Offering, (iii) any private
placement or offering memorandum or circular, information statement or other
information or materials distributed by or on behalf of any member of the
Company Group or any placement agent or underwriter in connection with the
Transactions or any Securities Offering, (iv) any federal, state or foreign
securities law or other governmental or regulatory filings or applications made
in connection with any Securities Offering, the Transactions or any of the
transactions contemplated thereby, (v) any dealer-manager, underwriting,
subscription, purchase, stockholders, option or registration rights agreement or
plan entered into or adopted by any member of the Company Group in connection
with any Securities Offering, (vi) any purchase, repurchase, redemption,
recapitalization or reorganization or other agreement entered into by any member
of the Company Group in connection with any Redemption, or (vii) any quarterly,
annual or current reports or other filing filed, furnished or supplementally
provided by any member of the Company Group with or to the Commission or any
securities exchange, including all exhibits, financial statements and schedules
appended thereto, and any submission to the Commission or any securities
exchange in connection therewith.
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(k) "Securities Act" means the Securities act of 1933, as amended, and the
rules and regulations promulgated thereunder.
(1) "Securities Offerings" means any Management Offering, any Redemption
and any Subsequent Offering.
(m) "Subsidiary" means each corporation or other Person in which a Person
owns or Controls, directly or indirectly, capital stock or other equity
interests representing more than 50% of the outstanding voting stock or other
equity interests.
(n) "Transactions" means the Equity Offering, the Financings and the
Recapitalization.
2. Indemnification.
(a) Each of the Company Entities (each, an "Indemnifying Party" and
collectively, the "Indemnifying Parties"), jointly and severally, agrees to
indemnify, defend and hold harmless each Indemnitee:
(i) from and against any and all Obligations, whether incurred with
respect to third parties or otherwise, in any way resulting from, arising
out of or in connection with, based upon or relating to (A) the Securities
Act, the Exchange Act or any other applicable securities or other laws, in
connection with any Securities Offering, the Financings, any Related
Document or any of the transactions contemplated thereby, (B) any other
action or failure to act of any member of the Company Group or any of
their predecessors, whether such action or failure has occurred or is yet
to occur or (C) the performance by a Manager of management consulting,
monitoring, financial advisory or other services for any member of the
Company Group (whether performed prior to or on the date hereof,
hereafter, pursuant to the Transaction Agreement, the Monitoring Agreement
or otherwise), except to the extent that any such Obligation is found in a
final judgment by a court of competent jurisdiction to have resulted from
the gross negligence or intentional misconduct of such Manager; and
(ii) to the fullest extent permitted by applicable law, from and
against any and all Obligations in any way resulting from, arising out of
or in connection with, based upon or relating to (A) the fact that such
Indemnitee is or was a director or an officer of any member of the Company
Group or is or was serving at the request of such corporation as a
director, officer, employee or agent of or advisor or consultant to
another corporation, partnership, joint venture, trust or other enterprise
or (B) any breach or alleged breach by such Indemnitee of his or her
fiduciary duty as a director or an officer of any member of the Company
Group;
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in each case including but not limited to any and all fees, costs and expenses
(including without limitation fees and disbursements of attorneys and other
professional advisers) incurred by or on behalf of any Indemnitee in asserting,
exercising or enforcing any of its rights, powers, privileges or remedies in
respect of this Agreement, the Transaction Agreement or the Monitoring
Agreement, provided that no Indemnifying Party shall be obligated to indemnify
and hold harmless any Indemnitee under this Section 2(a) in respect of any claim
made against the Indemnitee by any of its own directors, officers, partners,
members, stockholders, employees, agents, advisors, consultants, representatives
and controlling persons (any of the foregoing, a "Related Person") to the extent
arising from any obligation of such Indemnitee to such Related Person (whether
arising from contract, by law or otherwise).
(b) Without in any way limiting the foregoing Section 2(a), each of the
Indemnifying Parties agrees, jointly and severally, to indemnify, defend and
hold harmless each Indemnitee from and against any and all Obligations resulting
from, arising out of or in connection with, based upon or relating to
liabilities under the Securities Act, the Exchange Act or any other applicable
securities or other laws, rules or regulations in connection with (i) the
inaccuracy or breach of or default under any representation, warranty, covenant
or agreement in any Related Document, (ii) any untrue statement or alleged
untrue statement of a material fact contained in any Related Document or (iii)
any omission or alleged omission to state in any Related Document a material
fact required to be stated therein or necessary to make the statements therein
not misleading. Notwithstanding the foregoing, the Indemnifying Parties shall
not be obligated to indemnify such Indemnitee from and against any such
Obligation to the extent that such Obligation arises out of or is based upon an
untrue statement or omission made in such Related Document in reliance upon and
in conformity with written information furnished to the Company Entities, as the
case may be, in an instrument duly executed by such Indemnitee and specifically
stating that it is for use in the preparation of such Related Document.
(c) For the avoidance of doubt, consistent with clause (ii) of the
definition of "Indemnitee," the AC Indemnitees shall be indemnified under this
Section 2(a) solely for Obligations arising under the securities laws in
connection with the Bond Offering that are imposed on the AC Indemnities by
virtue of the fact that at the time of the Bond Offering AC was in control of
the Company.
3. Contribution.
(a) Except to the extent that Section 3(b) is applicable, if for any
reason the indemnity provided for in Section 2(a) is unavailable or is
insufficient to hold harmless any Indemnitee from any of the Obligations covered
by such indemnity, then the Indemnifying Parties, jointly and severally, shall
contribute to the amount paid or payable by such Indemnitee as a result of such
Obligation in such proportion as is appropriate to
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reflect (i) the relative fault of each member of the Company Group, on the one
hand, and such Indemnitee, on the other, in connection with the state of facts
giving rise to such Obligation, (ii) if such Obligation results from, arises out
of, is based upon or relates to the Transactions or any Securities Offering, the
relative benefits received by each member of the Company Group, on the one hand,
and such Indemnitee, on the other, from such Transaction or Securities Offering
and (iii) if required by applicable law, any other relevant equitable
considerations.
(b) If for any reason the indemnity specifically provided for in Section
2(b) is unavailable or is insufficient to hold harmless any Indemnitee from any
of the Obligations covered by such indemnity, then the Indemnifying Parties,
jointly and severally, shall contribute to the amount paid or payable by such
Indemnitee as a result of such Obligation in such proportion as is appropriate
to reflect (i) the relative fault of each of the members of the Company Group,
on the one hand, and such Indemnitee, on the other, in connection with the
information contained in or omitted from any Related Document, which inclusion
or omission resulted in the inaccuracy or breach of or default under any
representation, warranty, covenant or agreement therein, or which information is
or is alleged to be untrue, required to be stated therein or necessary to make
the statements therein not misleading, (ii) the relative benefits received by
the members of the Company Group, on the one hand, and such Indemnitee, on the
other, from such Transaction or Securities Offering and (iii) if required by
applicable law, any other relevant equitable considerations.
(c) For purposes of Section 3(a), the relative fault of each member of the
Company Group, on the one hand, and of the Indemnitee, on the other, shall be
determined by reference to, among other things, their respective relative
intent, knowledge, access to information and opportunity to correct the state of
facts giving rise to such Obligation. For purposes of Section 3(b), the relative
fault of each of the members of the Company Group, on the one hand, and of the
Indemnitee, on the other, shall be determined by reference to, among other
things, (i) whether the included or omitted information relates to information
supplied by the members of the Company Group, on the one hand, or by such
Indemnitee, on the other, (ii) their respective relative intent, knowledge,
access to information and opportunity to correct such inaccuracy, breach,
default, untrue or alleged untrue statement, or omission or alleged omission,
and (iii) applicable law. For purposes of Section 3(a) or 3(b), the relative
benefits received by each member of the Company Group, on the one hand, and the
Indemnitee, on the other, shall be determined by weighing the direct monetary
proceeds to the Company Group, on the one hand, and such Indemnitee, on the
other, from such Transaction or Securities Offering.
(d) The parties hereto acknowledge and agree that it would not be just and
equitable if contributions pursuant to Section 3(a) or 3(b) were determined by
pro rata allocation or by any other method of allocation that does not take into
account the
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equitable considerations referred to in such respective Section. The
Indemnifying Parties shall not be liable under Section 3(a) or 3(b), as
applicable, for contribution to the amount paid or payable by any Indemnitee
except to the extent and under such circumstances any Indemnifying Party would
have been liable to indemnify, defend and hold harmless such Indemnitee under
the corresponding Section 2(a) or 2(b), as applicable, if such indemnity were
enforceable under applicable law. No Indemnitee shall be entitled to
contribution from any Indemnifying Party with respect to any Obligation covered
by the indemnity specifically provided for in Section 2(b) in the event that
such Indemnitee is finally determined to be guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
in connection with such Obligation and the Indemnifying Parties are not guilty
of such fraudulent misrepresentation.
4. Indemnification Procedures.
(a) Whenever any Indemnitee shall have actual knowledge of the reasonable
likelihood of the assertion of a Claim, either Manager (acting on its own behalf
or, if requested by any such Indemnitee other than itself, on behalf of such
Indemnitee) or such Indemnitee shall notify the appropriate member of the
Company Group in writing of the Claim (the "Notice of Claim") with reasonable
promptness after such Indemnitee has such knowledge relating to such Claim and
has notified such Manager thereof. The Notice of Claim shall specify all
material facts known to such Manager (or if given by such Indemnitee, such
Indemnitee) that may give rise to such Claim and the monetary amount or an
estimate of the monetary amount of the Obligation involved if such Manager (or
if given by such Indemnitee, such Indemnitee) has knowledge of such amount or a
reasonable basis for making such an estimate. The failure of such Manager or
Indemnitee to give such Notice of Claim shall not relieve any Indemnifying Party
of its respective indemnification obligations under this Agreement except to the
extent that such omission results in a failure of actual notice to it and it is
materially injured as a result of the failure to give such Notice of Claim. The
Indemnifying Parties shall, at their expense, undertake the defense of such
Claim with attorneys of their own choosing reasonably satisfactory in all
respects to such Manager or Indemnitee. Such Manager or Indemnitee may
participate in such defense with counsel of such Manager's or Indemnitee's
choosing at the expense of the Indemnifying Parties. In the event that none of
the Indemnifying Parties undertake the defense of the Claim within a reasonable
time after such Manager or Indemnitee has given the Notice of Claim, or in the
event that such Manager or Indemnitee shall in good faith determine that the
defense of any claim by the Indemnifying Parties is inadequate or may conflict
with the interest of any Indemnitee, such Manager or Indemnitee may, at the
expense of the Indemnifying Parties and after giving notice to the Indemnifying
Parties of such action, undertake the defense of the Claim and compromise or
settle the Claim, all for the account of and at the risk of the Indemnifying
Parties. In the defense of any Claim, the Indemnifying Parties shall not, except
with the prior written consent of such Manager or Indemnitee, consent to entry
of any judgment or enter into any settlement that includes any injunctive or
other non-
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monetary relief, or that does not include as an unconditional term thereof the
giving by the Person or Persons asserting such Claim to such Indemnitee of a
release from all liability with respect to such Claim. In each case, such
Manager and each other Indemnitee seeking indemnification hereunder will
cooperate with the Indemnifying Parties, so long as the Indemnifying Parties are
conducting the defense of the Claim, in the preparation for and the prosecution
of the defense of such Claim, including making available evidence within the
control of such Manager or such Indemnitee, as the case may be, and persons
needed as witnesses who are employed by such Manager or such Indemnitee, as the
case may be, in each case as reasonably needed for such defense and at cost,
which cost, to the extent reasonably incurred, shall be paid by the Indemnifying
Parties.
(b) The Indemnifying Parties hereby agree to advance reasonable costs and
expenses, including attorney's fees, incurred by either Manager (acting on its
own behalf or, if requested by any such Indemnitee other than itself, on behalf
of such Indemnitee) or any Indemnitee in defending any Claim in advance of the
final disposition of such Claim upon receipt of an undertaking by or on behalf
of such Manager or such Indemnitee to repay amounts so advanced if it shall
ultimately be determined that such Manager or such Indemnitee is not entitled to
be indemnified by any Indemnifying Party as authorized by this Agreement.
(c) The applicable Manager shall notify the Indemnifying Parties in
writing of the amount of any Claim actually paid by such Manager (the "Notice of
Payment"). The amount of any Claim actually paid by such Manager shall bear
compounded interest at the rate equal to the JPMorgan Chase Bank, N.A. prime
rate as of the date of such payment plus 2% per annum, from the date any
Indemnifying Party receives the Notice of Payment to the date on which any
Indemnifying Party shall repay the amount of such Claim plus interest thereon to
such Manager.
(d) Notwithstanding anything in this Agreement to the contrary, in the
event that any AC Indemnitee delivers a Notice of Claim in conformity with this
Agreement to a member of the Company Group, the rights of the Indemnifying
Parties and the AC Indemnitees with respect to the matters set forth in this
Section 4 shall be governed by Section 10.1(f) of the Recapitalization
Agreement, mutatis mutandis.
5. Certain Covenants. The rights of each Indemnitee to be indemnified
under any other agreement, document, certificate or instrument or applicable law
are independent of and in addition to any rights of such Indemnitee to be
indemnified under this Agreement. The rights of each Indemnitee and the
obligations of each Indemnifying Party hereunder shall remain in full force and
effect regardless of any investigation made by or on behalf of such Indemnitee.
Following the Transactions, each of the Company Entities, and each of their
corporate successors, shall implement and maintain in full force and effect any
and all corporate charter and by-law provisions that may be
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necessary or appropriate to enable it to carry out its obligations hereunder to
the fullest extent permitted by applicable law, including without limitation a
provision of its certificate of incorporation (or comparable organizational
document under its jurisdiction of incorporation) eliminating liability of a
director for breach of fiduciary duty to the fullest extent permitted by
applicable law, as amended from time to time.
6. Notices. All notices and other communications hereunder shall be in
writing and shall be delivered by certified or registered mail (first class
postage prepaid and return receipt requested), telecopier, overnight courier or
hand delivery, as follows:
(a) If to any Company Entity, to it:
c/o Rental Service Corporation
0000 X. Xxxxxxxx Xxxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxx Xxxxxx
Facsimile: (000) 000-0000
(b) If to Ripplewood or the Ripplewood Manager, to it:
x/x Xxxxxxxxxx Xxxxxxxx, X.X.X.
Xxx Xxxxxxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxxxxxx X. Xxxxxxxxx, Esq.
Facsimile: (000) 000-0000
(b) If to Oak Hill or the Oak Hill Manager, to it:
x/x Xxx Xxxx Xxxxxxx Xxxxxxxxxx, X.X.X.
00 X. 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
(c) If to AC, to it:
x/x Xxxxx Xxxxx XX
XX-000 00
Xxxxxxxxx, Xxxxxx
Attn: Xxxxx Xxxxxx
Facsimile: 011-46-8-743-8037
With a copy to:
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Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxxxx, Esq.
Xxxxxxx X. Xxxxx, Esq.
Facsimile: (000)000-0000
or to such other address or such other person as the applicable party shall have
designated by notice to the other parties hereto. All communications hereunder
shall be effective upon receipt by the party to which they are addressed. A copy
of any notice or other communication given under this Agreement shall also be
given to:
Debevoise & Xxxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Facsimile: (000)000-0000
7. Governing Law: Jurisdiction, Waiver of Jury Trial. This Agreement shall
be governed in all respects, including validity, interpretation and effect, by
the law of the State of New York, regardless of the law that might be applied
under principles of conflict of laws to the extent such principles would require
or permit the application of the laws of another jurisdiction. Each of the
parties hereto irrevocably and unconditionally (a) agrees that any legal suit,
action or proceeding brought by any party hereto arising out of or based upon
this Agreement or the transactions contemplated hereby may be brought in any
court of the State of New York or Federal District Court for the Southern
District of New York located in the City, County and State of New York (each, a
"New York Court"), (b) waives, to the fullest extent that it may effectively do
so, any objection that it may now or hereafter have to the laying of venue of
any such proceeding brought in a New York Court, and any claim that any such
action or proceeding brought in a New York Court has been brought in an
inconvenient forum, (c) submits to the non-exclusive jurisdiction of any New
York Court in any suit, action or proceeding and (d) ACKNOWLEDGES AND AGREES
THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE
COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE HEREBY WAIVES ANY RIGHT THAT
SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR
INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE BREACH,
TERMINATION OR VALIDITY OF THIS AGREEMENT. With respect to clause (d) of the
immediately preceding sentence, each of the parties hereto acknowledges and
certifies that (i) no representative, agent or attorney of any other party has
represented, expressly or otherwise, that such other party would not, in the
event of litigation, seek to enforce the
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waiver contained therein, (ii) it understands and has considered the
implications of such waiver, (iii) it makes such waiver voluntarily and (iv) it
has been induced to enter into this Agreement by, among other things, the mutual
waivers and certifications contained in this Section 7.
8. Severability. If any provision or provisions of this Agreement shall be
held to be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions hereof shall not in any way be
affected or impaired thereby.
9. Successors; Binding Effect. Each Indemnifying Party will require any
successor (whether direct or indirect, by purchase, merger, consolidation,
reorganization or otherwise) to all or substantially all of the business and
assets of such Indemnifying Party, by agreement in form and substance
satisfactory to each Manager, each Investor and their counsel, expressly to
assume and agree to perform this Agreement in the same manner and to the same
extent that such Indemnifying Party would be required to perform if no such
succession had taken place. This Agreement shall be binding upon and inure to
the benefit of each party hereto and its successors and permitted assigns, and
each other Indemnitee, but neither this Agreement nor any right, interest or
obligation hereunder shall be assigned, whether by operation of law or
otherwise, by the Company Entities without the prior written consent of the
Managers and the Investors.
10. Miscellaneous. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. This Agreement is not intended to confer any
right or remedy hereunder upon any Person other than each of the parties hereto
and their respective successors and permitted assigns and each other Indemnitee.
No amendment, modification, supplement or discharge of this Agreement, and no
waiver hereunder shall be valid and binding unless set forth in writing and duly
executed by the party or other Indemnitee against whom enforcement of the
amendment, modification, supplement or discharge is sought. Neither the waiver
by any of the parties hereto or any other Indemnitee of a breach of or a default
under any of the provisions of this Agreement, nor the failure by any party
hereto or any other Indemnitee on one or more occasions, to enforce any of the
provisions of this Agreement or to exercise any right, powers or privilege
hereunder, shall be construed as a waiver of any other breach or default of a
similar nature, or as a waiver of any provisions hereof, or any rights, powers
or privileges hereunder. The rights, indemnities and remedies herein provided
are cumulative and are not exclusive of any rights, indemnities or remedies that
any party or other Indemnitee may otherwise have by contract, at law or in
equity or otherwise; provided that AC acknowledges, for itself and the AC
Indemnitees, that rights of the AC Indemnitees under this Agreement are not
intended to, and shall not, modify, impair or otherwise prevent the Company
Entities for exercising their rights under the Recapitalization Agreement,
including without limitation their rights against any AC Indemnitee under
Section 10.1(a) thereof. This Agreement
12
may be executed in several counterparts, each of which shall be deemed an
original, and all of which together shall constitute one and the same
instrument.
[The remainder of this page has been left blank intentionally.]
13
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
by their authorized representatives as of the date first above written.
RIPPLEWOOD HOLDINGS L.L.C.
By: /s/ Xxxxxxxxxxx X. Xxxxxxxxx
----------------------------------
Name:
Title:
RSC ACQUISITION LLC
By: Ripplewood Partners II, L.P.
its Sole Member
By: Ripplewood Partners II GP, L.P.
its General Partner
By: XX XX GP, LLC
its General Partner
By: /s/ Xxxxxxxxxxx X. Xxxxxxxxx
----------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxxxx
Title: Secretary
- Indemnification Agreement -
RSC ACQUISITION II LLC
By: Ripplewood Partners II Parallel Fund, L.P.
its Sole Member
By: Ripplewood Partners II GP, L.P.
its General Partner
By: XX XX GP, LLC
its General Partner
By: /s/ Xxxxxxxxxxx X. Xxxxxxxxx
----------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxxxx
Title: Secretary
- Indemnification Agreement -
OAK HILL CAPITAL MANAGEMENT, LLC
By: /s/ Xxxx X. Xxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
OHCP II RSC, LLC
By: Oak Hill Capital Partners II, L.P.
its Sole Member
By: OHCP Gen Par II, L.P.
its General Partner
By: OHCP MGP II, L.L.C.
its General Partner
By: /s/ Xxxx X. Xxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
- Indemnification Agreement -
OHCMP II RSC, LLC
By: Oak Hill Capital Management Partners II, L.P.
its Sole Member
By: OHCP Gen Par II, L.P.
its General Partner
By: OHCP MGP II, L.L.C.
its General Partner
By: /s/ Xxxx X. Xxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
OHCP II RSC COI, LLC
By: OHCP Gen Par II, L.P.
its Sole Partner
By: OHCP MGP II, L.L.C.
its General Partner
By: /s/ Xxxx X. Xxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
- Indemnification Agreement -
ATLAS COPCO NORTH AMERICA INC.
By: /s/ Xxxx Xxxxx
-------------------------------------
Name: Xxxx Xxxxx
Title: President
RENTAL SERVICE CORPORATION
By:
-------------------------------------
Name:
Title:
ATLAS COPCO FINANCE S.A.R.L.
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
-Indemnification Agreement-
ATLAS COPCO NORTH AMERICA INC.
By:
-------------------------------------
Name:
Title:
RENTAL SERVICE CORPORATION
By: /s/ Xxxx Xxxxxx
-------------------------------------
Name: Xxxx Xxxxxx
Title: President & CFO
ATLAS COPCO FINANCE S.A.R.L.
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
-Indemnification Agreement-
ATLAS COPCO NORTH AMERICA INC.
By:
-------------------------------------
Name:
Title:
RENTAL SERVICE CORPORATION
By:
-------------------------------------
Name:
Title:
ATLAS COPCO FINANCE S.A.R.L.
By: /s/ Xxx Xxxxxxxxx
-------------------------------------
Name: Xxx Xxxxxxxxx
Title: Manager
By: Illegible
-------------------------------------
Name: Illegible
Title: Director
-Indemnification Agreement-
