Exhibit 4.4
EXECUTION VERSION
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CREDIT AGREEMENT
among
RSC HOLDINGS II, LLC,
RSC HOLDINGS III, LLC,
RENTAL SERVICE CORPORATION,
RENTAL SERVICE CORPORATION OF CANADA LTD.,
EACH OTHER BORROWER PARTY HERETO,
VARIOUS LENDERS,
DEUTSCHE BANK AG, NEW YORK BRANCH,
as U.S. Administrative Agent and U.S. Collateral Agent,
DEUTSCHE BANK AG, CANADA BRANCH,
as Canadian Administrative Agent and Canadian Collateral Agent,
CITICORP NORTH AMERICA, INC.,
as Syndication Agent,
and
BANK OF AMERICA, N.A., LASALLE BUSINESS CREDIT, LLC and
WACHOVIA CAPITAL FINANCE CORPORATION (WESTERN),
as Co-Documentation Agents
Dated as of November 27, 2006
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DEUTSCHE BANK SECURITIES INC.,
and
CITIGROUP GLOBAL MARKETS INC.,
as Joint Lead Arrangers and Joint Book Managers
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Table of Contents
Section 1. Definitions ................................................... 2
1.1 Defined Terms .................................................... 2
1.2 Other Definitional Provisions .................................... 54
Section 2. Amount and Terms of Commitments ............................... 54
2.1 Initial Term Loans ............................................... 54
2.2 RCF Commitments .................................................. 56
2.3 Procedure for Borrowings ......................................... 62
2.4 Termination or Reduction of Commitments .......................... 63
2.5 Swing Line Commitments ........................................... 63
2.6 Repayment of Loans ............................................... 66
2.7 Incremental Commitments .......................................... 67
Section 3. Letters of Credit ............................................. 71
3.1 L/C Commitment ................................................... 71
3.2 Procedure for Issuance of Letters of Credit ...................... 72
3.3 Fees, Commissions and Other Charges .............................. 73
3.4 L/C Participations ............................................... 74
3.5 Reimbursement Obligation of the Borrowers ........................ 75
3.6 Obligations Absolute ............................................. 76
3.7 L/C Payments ..................................................... 76
3.8 L/C Request ...................................................... 77
3.9 Additional Issuing Lenders ....................................... 77
Section 4. General Provisions Applicable to Loans and Letters of Credit .. 77
4.1 Interest Rates and Payment Dates ................................. 77
4.2 Conversion and Continuation Options .............................. 79
4.3 Minimum Amounts of Sets .......................................... 80
4.4 Optional and Mandatory Prepayments ............................... 80
4.5 Commitment Fees; U.S. Administrative Agent's Fee; Other Fees ..... 85
4.6 Computation of Interest and Fees ................................. 86
4.7 Inability to Determine Interest Rate ............................. 90
4.8 Pro Rata Treatment and Payments .................................. 91
4.9 Illegality ....................................................... 94
4.10 Requirements of Law .............................................. 94
4.11 Taxes ............................................................ 96
4.12 Indemnity ........................................................ 100
4.13 Certain Rules Relating to the Payment of Additional Amounts ...... 101
4.14 Controls on Prepayment if Aggregate Outstanding RCF Credit
Exceeds Aggregate RCF Commitments ............................. 103
4.15 Canadian RCF Lenders ............................................. 103
4.16 Cash Receipts .................................................... 104
i
Tables of Contents
(continued)
Section 5. Representations and Warranties ................................ 108
5.1 Financial Condition .............................................. 108
5.2 No Change; Solvent ............................................... 109
5.3 Corporate Existence .............................................. 109
5.4 Corporate Power; Authorization; Consents; Enforceable
Obligations ................................................... 109
5.5 No Legal Bar ..................................................... 110
5.6 No Material Litigation ........................................... 110
5.7 No Default ....................................................... 110
5.8 Ownership of Property; Liens ..................................... 110
5.9 Intellectual Property ............................................ 111
5.10 Compliance With Requirements of Law and Contractual
Obligations ................................................... 111
5.11 Taxes ............................................................ 111
5.12 Federal Regulations .............................................. 111
5.13 ERISA ............................................................ 111
5.14 Collateral ....................................................... 112
5.15 Investment Company Act; Other Regulations ........................ 113
5.16 Subsidiaries ..................................................... 113
5.17 Purpose of Loans ................................................. 113
5.18 Environmental Matters ............................................ 113
5.19 True and Correct Disclosure ...................................... 114
5.20 Delivery of the Recapitalization Agreement ....................... 115
5.21 Certain Representations and Warranties Contained in the
Recapitalization Agreement .................................... 115
5.22 Labor Matters .................................................... 115
5.23 Special Purpose Corporation ...................................... 115
5.24 Insurance ........................................................ 116
5.25 Eligible Accounts and Eligible Unbilled Accounts ................. 116
5.26 Eligible Rental Fleet ............................................ 116
5.27 Eligible Inventory ............................................... 116
5.28 Anti-Terrorism ................................................... 116
5.29 Capitalization ................................................... 116
5.30 Rental Fleet; Business of the Credit Parties ..................... 117
Section 6. Conditions Precedent .......................................... 117
6.1 Conditions to Initial Extension of Credit ........................ 117
6.2 Conditions to Each Extension of Credit ........................... 123
Section 7. Affirmative Covenants ......................................... 124
7.1 Financial Statements ............................................. 124
7.2 Certificates; Other Information .................................. 125
7.3 Payment of Obligations ........................................... 127
7.4 Conduct of Business and Maintenance of Existence ................. 127
7.5 Maintenance of Property; Insurance ............................... 127
7.6 Inspection of Property; Books and Records; Discussions ........... 129
ii
Tables of Contents
(continued)
7.7 Notices.............................................................. 130
7.8 Environmental Laws................................................... 132
7.9 New Subsidiaries; Additional Security; Further Assurances............ 132
7.10 Maintenance of New York Process Agent................................ 135
Section 8. Negative Covenants................................................ 135
8.1 Financial Condition Covenants........................................ 135
8.2 Limitation on Indebtedness........................................... 136
8.3 Limitation on Liens.................................................. 139
8.4 Limitation on Guarantee Obligations.................................. 142
8.5 Limitation on Fundamental Changes.................................... 144
8.6 Limitation on Sale of Assets......................................... 144
8.7 Limitation on Dividends.............................................. 145
8.8 Limitation on Investments, Loans and Advances........................ 148
8.9 Limitations on Certain Acquisitions.................................. 150
8.10 Limitation on Transactions with Affiliates........................... 151
8.11 Limitation on Sale and Leaseback Transactions........................ 153
8.12 Limitation on Dispositions of Collateral............................. 153
8.13 Limitation on Optional Payments and Modifications of Debt
Instruments and Other Documents................................... 153
8.14 Limitation on Changes in Fiscal Year................................. 155
8.15 Limitation on Negative Pledge Clauses................................ 155
8.16 Limitation on Lines of Business...................................... 155
8.17 Limitations on Currency, Commodity and Other Hedging Transactions.... 156
Section 9. Events of Default................................................. 156
Section 10. The Agents And The Lead Arrangers................................ 161
10.1 Appointment.......................................................... 161
10.2 Delegation of Duties................................................. 162
10.3 Exculpatory Provisions............................................... 162
10.4 Reliance by Agents................................................... 163
10.5 Notice of Default.................................................... 163
10.6 Acknowledgements and Representations by Lenders...................... 164
10.7 Indemnification...................................................... 164
10.8 Agents and Lead Arrangers in Their Individual Capacity............... 165
10.9 Collateral Matters................................................... 165
10.10 Successor Agent...................................................... 166
10.11 Lead Arrangers and Syndication Agent................................. 167
10.12 Swing Line Lender.................................................... 167
10.13 Withholding Tax...................................................... 167
iii
Tables of Contents
(continued)
Section 11. Miscellaneous.................................................... 168
11.1 Amendments and Waivers............................................... 168
11.2 Notices.............................................................. 170
11.3 No Waiver; Cumulative Remedies....................................... 172
11.4 Survival of Representations and Warranties........................... 172
11.5 Payment of Expenses and Taxes........................................ 172
11.6 Successors and Assigns; Participations and Assignments............... 174
11.7 Adjustments; Set-off; Calculations; Computations..................... 178
11.8 Judgment Currency.................................................... 179
11.9 Counterparts......................................................... 179
11.10 Severability......................................................... 179
11.11 Integration.......................................................... 180
11.12 GOVERNING LAW........................................................ 180
11.13 Submission To Jurisdiction; Waivers.................................. 180
11.14 Acknowledgments...................................................... 181
11.15 WAIVER OF JURY TRIAL................................................. 182
11.16 Confidentiality...................................................... 182
11.17 USA Patriot Act Notice............................................... 182
11.18 INTERCREDITOR AGREEMENT.............................................. 183
11.19 Special Provisions Regarding Pledges of Capital Stock in, and
Promissory Notes Owed by, Persons Not Organized in the U.S. or
Canada............................................................ 183
11.20 Joint and Several Liability; Postponement of Subrogation............. 184
11.21 Reinstatement........................................................ 186
11.22 Language............................................................. 186
Section 12. Holdings Guaranty................................................ 186
12.1 Guaranty............................................................. 186
12.2 Bankruptcy........................................................... 187
12.3 Nature of Liability.................................................. 187
12.4 Independent Obligation............................................... 188
12.5 Amendments, etc. with respect to the Obligations..................... 188
12.6 Reliance............................................................. 188
12.7 No Subrogation....................................................... 189
12.8 Waiver............................................................... 189
12.9 Payments............................................................. 190
12.10 Maximum Liability.................................................... 190
SCHEDULES
A -- Commitments and Addresses
B -- Assumed Indebtedness
C -- Fiscal Periods
D -- Rental Fleet Locations
4.16(a) -- DDAs
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Tables of Contents
(continued)
4.16(b) -- Credit Card Arrangements
4.16(c) -- Blocked Accounts
5.2 -- Material Adverse Effect Disclosure
5.4 -- Consents Required
5.8 -- Real Property
5.9 -- Intellectual Property Claims
5.16 -- Subsidiaries
5.18 -- Environmental Matters
5.24 -- Insurance
6.1(e) -- Closing Date Adjustments to EBITDA
6.1(g) -- Lien Searches
8.3(j) -- Permitted Liens
8.4(a) -- Permitted Guarantee Obligations
8.6(j) -- Permitted Asset Sales
8.8(c) -- Permitted Investments
8.10(v) -- Permitted Transactions with Affiliates
8.11(b) -- Sale and Leaseback Real Properties
EXHIBITS
A-1 -- Form of Initial Term Loan Note
A-2 -- Form of Incremental Term Loan Note
A-3 -- Form of RCF Note
A-4 -- Form of Swing Line Note
B -- Form of Swing Line Loan Participation Certificate
C -- Form of Incremental Commitment Agreement
D -- Form of L/C Request
E -- Form of U.S. Tax Compliance Certificate
F -- Form of Intercreditor Agreement
G-1 -- Form of Canadian Guarantee Agreement
G-2 -- Form of U.S. Guarantee and Collateral Agreement
G-3 -- Form of Canadian Security Agreement
H -- Form of Closing Certificate
I -- Form of Borrowing Certificate
J -- Form of Borrowing Base Certificate
K -- Form of Borrower Joinder Agreement
L -- Form of Intercompany Subordination Provisions
M -- Form of Assignment and Acceptance
v
CREDIT AGREEMENT, dated as of November 27, 2006, among RSC HOLDINGS
II, LLC, a Delaware limited liability company ("Holdings"), RSC HOLDINGS III,
LLC, a Delaware limited liability company (the "Parent Borrower"), RENTAL
SERVICE CORPORATION, an Arizona corporation ("RSC"), RENTAL SERVICE CORPORATION
OF CANADA LTD., a corporation incorporated and existing under the laws of the
Province of Alberta ("RSC Canada"), the several banks and other financial
institutions from time to time parties to this Agreement, DEUTSCHE BANK AG, NEW
YORK BRANCH, as U.S. administrative agent and U.S. collateral agent for the
Lenders hereunder (in such capacities, respectively, the "U.S. Administrative
Agent" and the "U.S. Collateral Agent"), DEUTSCHE BANK AG, CANADA BRANCH, as
Canadian administrative agent and Canadian collateral agent for the Lenders
hereunder (in such capacities, respectively, the "Canadian Administrative Agent"
and the "Canadian Collateral Agent"), CITICORP NORTH AMERICA, INC. ("CNAI"), as
syndication agent (in such capacity, the "Syndication Agent") and BANK OF
AMERICA, N.A., LASALLE BUSINESS CREDIT, LLC and WACHOVIA CAPITAL FINANCE
CORPORATION (WESTERN), as Co-Documentation Agents. All capitalized terms used
herein and defined in subsection 1.1 are used herein as therein defined.
The parties hereto hereby agree as follows:
WITNESSETH:
WHEREAS, Holdings and the Parent Borrower are newly-formed companies
organized by Atlas Copco North America, Inc., a Delaware corporation ("ACNA"),
at the direction of Affiliates of Ripplewood Partners II, L.P. ("Ripplewood")
and Oak Hill Capital Partners II, L.P. ("Oak Hill" and, together with
Ripplewood, the "Sponsors" and each a "Sponsor") or any of their respective
Affiliates;
WHEREAS, as a result of the consummation of the transactions
contemplated in the Recapitalization Agreement, dated as of October 6, 2006 (as
the same may be amended, modified and/or supplemented from time to time in
accordance with the terms hereof and thereof, the "Recapitalization Agreement"),
among Atlas Copco AB and Atlas Copco Finance S.a.r.l., as the sellers, RSC
Acquisition, LLC, a Delaware limited liability company, RSC Acquisition II, LLC,
a Delaware limited liability company, OHCP II RSC, LLC, a Delaware limited
liability company, OHCMP II RSC, LLC, a Delaware limited liability company, and
OHCP II RSC COI, LLC, a Delaware limited liability company, as the investors,
and ACNA, (i) such investors shall acquire (the "Recapitalization")
approximately 85% of the outstanding Capital Stock of ACNA, (ii) ACNA will hold
(indirectly) 100% of the Capital Stock of Holdings, (iii) Holdings shall own
100% of the outstanding Capital Stock of the Parent Borrower and (iv) the Parent
Borrower shall own 100% of the outstanding Capital Stock of RSC;
WHEREAS, in connection with the Recapitalization and prior to the
Closing Date, ACNA shall have (i) formed RSC Holdings I, LLC, a Delaware limited
liability company, ("RSC LLC I") and contributed to it all of the outstanding
stock of RSC, (ii) caused RSC LLC I to form Holdings and contribute to Holdings
all of the outstanding stock of RSC and (iii) caused Holdings to form the Parent
Borrower and contribute to the Parent Borrower all of the outstanding capital
stock of RSC;
WHEREAS, ACNA will receive a direct or indirect cash investment from
the Sponsors and/or one or more Affiliates of either Sponsor and (if so
determined by the Sponsors) one or both of the Sellers and/or one or more
affiliates of the Sellers and (if so determined by the Sponsors) one or more
other investors in an aggregate amount of at least $500,000,000 in accordance
with the provisions of the Recapitalization Agreement (the "Equity Financing");
WHEREAS, the Parent Borrower and RSC will obtain a second-lien term
loan facility (the "Second-Lien Term Facility"), under which the Parent Borrower
and RSC shall obtain second-lien term loans (as further defined in subsection
1.1, the "Second-Lien Term Loans") in an initial aggregate principal amount of
$1,130,000,000;
WHEREAS, the Parent Borrower and RSC will co-issue $620,000,000 in
aggregate principal amount of senior unsecured notes; and
WHEREAS, in order to (i) fund a portion of the Transaction, (ii) pay
certain fees and expenses related to the Transaction and (iii) finance the
working capital and other business requirements and other general corporate
purposes of the Parent Borrower and its Subsidiaries following the consummation
of the Transaction, the U.S. Borrowers and the Canadian Borrowers have requested
that the Lenders make the Loans and issue and participate in the Letters of
Credit provided for herein;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein, the parties hereto agree as follows:
Section 1. Definitions.
1.1 Defined Terms. As used in this Agreement, the following terms
shall have the following meanings:
"ABR": for any day, a rate per annum (rounded upwards, if necessary,
to the next 1/16 of 1%) equal to the greater of (a) the Prime Rate in effect on
such day and (b) the Federal Funds Effective Rate in effect on such day plus 1/2
of 1%. For purposes hereof: "Prime Rate" shall mean the rate of interest per
annum publicly announced from time to time by the U.S. Administrative Agent (or
another bank of recognized standing reasonably selected by the U.S.
Administrative Agent and reasonably satisfactory to the Parent Borrower) as its
prime rate in effect at its principal office in New York City (the Prime Rate
not being intended to be the lowest rate of interest charged by the U.S.
Administrative Agent in connection with extensions of credit to debtors).
"Federal Funds Effective Rate" shall mean, for any day, the weighted average of
the rates on overnight federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve of New York, or, if such rate is
not so published for any day which is a Business Day, the average of the
quotations for the day of such transactions received by the U.S. Administrative
Agent from three federal funds brokers of recognized standing selected by it.
Any change in the ABR due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective as of the opening of business on the effective
day of such change in the Prime Rate or the Federal Funds Effective Rate,
respectively.
2
"ABR Loans": Loans the rate of interest applicable to which is based
upon the ABR or, with respect to Canadian RCF Loans, the Canadian Prime Rate.
"Acceleration": as defined in subsection 9(e).
"Account Debtor": each Person who is obligated on an Account, chattel
paper or a General Intangible.
"Accounts": as defined in the UCC or (to the extent governed thereby)
the PPSA as in effect from time to time or (to the extent governed by the Civil
Code of Quebec) defined as all "claims" for the purposes of the Civil Code of
Quebec; and, with respect to any Person, all such Accounts of such Person,
whether now existing or existing in the future, including (a) all accounts
receivable of such Person (whether or not specifically listed on schedules
furnished to the U.S. Administrative Agent), including all accounts created by
or arising from all of such Person's sales of goods or rendition of services
made under any of its trade names, or through any of its divisions, (b) all
unpaid rights of such Person (including rescission, replevin, reclamation and
stopping in transit) relating to the foregoing or arising therefrom, (c) all
rights to any goods represented by any of the foregoing, including returned or
repossessed goods, (d) all reserves and credit balances held by such Person with
respect to any such accounts receivable of any Obligors, (e) all letters of
credit, guarantees or collateral for any of the foregoing and (f) all insurance
policies or rights relating to any of the foregoing.
"ACNA": as defined in the Recitals hereto.
"Additional Commitment Lender": as defined in subsection 2.7.
"Adjustment Date": each date after June 30, 2007 that is the second
Business Day following receipt by the Lenders of both (a) the financial
statements required to be delivered pursuant to subsection 7.1(a) or 7.1(b), as
applicable, for the most recently completed fiscal period and (b) the related
compliance certificate required to be delivered pursuant to subsection 7.2(b)
with respect to such fiscal period.
"Administrative Agent": the U.S. Administrative Agent and/or the
Canadian Administrative Agent, as the context may require.
"Affected Loans": as defined in subsection 4.9.
"Affected Rate": as defined in subsection 4.7.
"Affiliate": as to any Person, any other Person (other than a
Subsidiary) which, directly or indirectly, is in control of, is controlled by,
or is under common control with, such Person. For purposes of this definition,
"control" of a Person means the power, directly or indirectly, either to (a)
vote 20% or more of the securities having ordinary voting power for the election
of directors of such Person or (b) direct or cause the direction of the
management and policies of such Person, whether by contract or otherwise.
"Agent Advance": as defined in subsection 2.2(d).
3
"Agent Advance Period": as defined in subsection 2.2(d).
"Agents": the collective reference to the U.S. Administrative Agent,
the U.S. Collateral Agent, the Canadian Administrative Agent and the Canadian
Collateral Agent.
"Aggregate Canadian RCF Lender Exposure": the sum of (a) the aggregate
principal amount of all Canadian RCF Loans (using the Dollar Equivalent thereof
in the case of Canadian RCF Loans denominated in Canadian Dollars) then
outstanding and (b) the aggregate amount of all Canadian RCF L/C Obligations
(using the Dollar Equivalent thereof in the case of Canadian RCF L/C Obligations
denominated in Canadian Dollars) at such time.
"Aggregate Outstanding RCF Credit": as to any RCF Lender at any time,
an amount equal to the sum of (a) the aggregate principal amount of all RCF
Loans made by such RCF Lender then outstanding, (b) the aggregate amount equal
to such RCF Lender's U.S. RCF Commitment Percentage or Canadian RCF Commitment
Percentage, as applicable, of the U.S. RCF L/C Obligations or the Canadian RCF
L/C Obligations, respectively, then outstanding and (c) the aggregate amount
equal to such RCF Lender's U.S. RCF Commitment Percentage, if any, of the Swing
Line Loans then outstanding.
"Aggregate U.S. RCF Lender Exposure": the sum of (a) the aggregate
principal amount of all U.S. RCF Loans then outstanding, (b) the aggregate
amount of all U.S. RCF L/C Obligations at such time and (c) the aggregate
principal amount of the Swing Line Loans then outstanding.
"Agreement": this Credit Agreement, as amended, supplemented, waived
or otherwise modified, from time to time.
"Applicable Margin": the rate per annum determined as follows: (i) in
the case of Initial Term Loans maintained as ABR Loans, 0.75% and in the case of
Initial Term Loans maintained as Eurocurrency Loans, 1.75%, (ii) during the
period from the Closing Date until the first Adjustment Date, in the case of RCF
Loans, maintained as (x) ABR Loans (including Swing Line Loans), 0.75% per
annum, (y) Eurocurrency Loans, 1.75% per annum, and (z) Bankers' Acceptance
Loans, 1.75% per annum; and (iii) in the case of any Tranche of Incremental Term
Loans, except as otherwise provided in subsection 2.7(e), the respective
percentages per annum applicable to the Initial Term Loans set forth in clause
(i) above; provided, however, that if agreed otherwise in accordance with
subsection 2.7(e), the Applicable Margin for such Incremental Term Loans shall
be as provided in the respective Incremental Commitment Agreement pursuant to
which such Incremental Term Loans have been provided. The Applicable Margins for
(x) RCF Loans (including Swing Line Loans) will be adjusted on each subsequent
Adjustment Date to the applicable rate per annum set forth under the heading
"Applicable Margin for RCF Loans maintained as ABR Rate ABR Loans and Swing Line
Loans", "Applicable Margin for RCF Loans maintained as Canadian Prime Rate ABR
Loans", or "Applicable Margin for RCF Loans maintained as Eurocurrency Loans and
Bankers' Acceptance Loans", in each case on the applicable Pricing Grid which
corresponds to the Consolidated Leverage Ratio determined from the financial
statements and compliance certificate relating to the end of the fiscal quarter
immediately preceding such Adjustment Date; provided that in the event that the
financial statements required to be delivered pursuant to subsection 7.1(a) or
4
7.1(b), as applicable, and the related compliance certificate required to be
delivered pursuant to subsection 7.2(b), are not delivered when due, then:
(1) if such financial statements and certificate are delivered after
the date such financial statements and certificate were required to be
delivered (without giving effect to any applicable cure period) and the
Applicable Margin increases from that previously in effect as a result of
the delivery of such financial statements, then the Applicable Margin
during the period from the date upon which such financial statements were
required to be delivered (without giving effect to any applicable cure
period) until the date upon which they actually are delivered shall, except
as otherwise provided in clause (3) below, be the Applicable Margin as so
increased;
(2) if such financial statements and certificate are delivered after
the date such financial statements and certificate were required to be
delivered and the Applicable Margin decreases from that previously in
effect as a result of the delivery of such financial statements, then such
decrease in the Applicable Margin shall not become applicable until the
date upon which the financial statements and certificate actually are
delivered; and
(3) if such financial statements and certificate are not delivered
prior to the expiration of the applicable cure period, then, effective upon
such expiration, for the period from the date upon which such financial
statements and certificate were required to be delivered (after the
expiration of the applicable cure period) until two Business Days following
the date upon which they actually are delivered, the Applicable Margin
shall be 1.00% per annum, in the case of ABR Loans, 2.00% per annum, in the
case of Eurocurrency Loans and 2.00% per annum, in the case of Bankers'
Acceptance Loans (it being understood that the foregoing shall not limit
the rights of the Agents and the Lenders set forth in Section 9).
In addition, at all times while an Event of Default known to the Parent Borrower
shall have occurred and be continuing, the Applicable Margin shall not decrease
from that previously in effect as a result of the delivery of such financial
statements and certificate.
"Approved Fund": any Person (other than a natural person) that is
engaged in making, purchasing, holding or investing in bank loans and similar
extensions of credit in the ordinary course and that is administered or managed
by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate
of an entity that administers or manages a Lender.
"Asset Sale": any sale, issuance, conveyance, transfer, lease or other
disposition (including through a Sale and Leaseback Transaction) (a
"Disposition") by Holdings or any of its Subsidiaries (other than sales of
Inventory or Equipment in the ordinary course of business), in one or a series
of related transactions, of any real or personal, tangible or intangible,
property (including Capital Stock) of Holdings or such Subsidiary to any Person.
"Assignee": as defined in subsection 11.6(b).
"Assignment and Acceptance": an Assignment and Acceptance,
substantially in the form of Exhibit M.
5
"Assumed Indebtedness": existing Indebtedness of the Recapitalized
Business identified on Schedule B, which will not be repaid in connection with
the Transaction.
"Availability Reserves": without duplication of any other reserves or
items that are otherwise addressed or excluded through eligibility criteria,
such reserves, subject to subsection 2.2(c), as the respective Administrative
Agent, in its Permitted Discretion, determines as being appropriate to reflect
any impediments to the realization upon the Collateral consisting of Eligible
Accounts, Eligible Unbilled Accounts, Eligible Rental Fleet or Eligible
Inventory included in the U.S. Borrowing Base or Canadian Borrowing Base
(including claims that the Agents determine will need to be satisfied in
connection with the realization upon such Collateral).
"Available Canadian RCF Commitment": as to any Canadian RCF Lender at
any time, an amount equal to the excess, if any, of (a) the lesser of (i) the
amount of such Canadian RCF Lender's Canadian RCF Commitment at such time and
(ii) the sum of (A) the amount equal to such Canadian RCF Lender's Canadian RCF
Commitment Percentage of the Canadian Borrowing Base and (B) the amount equal to
such Canadian RCF Lender's Canadian RCF Commitment Percentage of the U.S.
Borrowing Base over (b) the sum of (i) the aggregate unpaid principal amount at
such time of all Canadian RCF Loans made by such Canadian RCF Lender (or any
Non-Canadian Affiliate of such Canadian RCF Lender) and (ii) an amount equal to
such Canadian RCF Lender's Canadian RCF Commitment Percentage of the outstanding
Canadian RCF L/C Obligations at such time; collectively, as to all the Canadian
RCF Lenders, the "Available Canadian RCF Commitments".
"Available RCF Commitment": without duplication of amounts calculated
thereunder, the Available Canadian RCF Commitments and the Available U.S. RCF
Commitments.
"Available U.S. RCF Commitment": as to any U.S. RCF Lender at any
time, an amount equal to the excess, if any, of (a) the lesser of (i) the amount
of such U.S. RCF Lender's U.S. RCF Commitment at such time and (ii) the amount
equal to such U.S. RCF Lender's U.S. RCF Commitment Percentage of the U.S.
Borrowing Base over (b) the sum of (i) the aggregate unpaid principal amount at
such time of all U.S. RCF Loans made by such U.S. RCF Lender, (ii) the amount
equal to such U.S. RCF Lender's U.S. RCF Commitment Percentage of the aggregate
unpaid principal amount at such time of all Swing Line Loans, provided that for
purposes of calculating Available RCF Commitments pursuant to subsection 4.5(a)
such amount under this clause (ii) shall be zero, (iii) the amount equal to such
U.S. RCF Lender's U.S. RCF Commitment Percentage of the outstanding U.S. RCF L/C
Obligations at such time, (iv) the amount equal to such U.S. RCF Lender's U.S.
RCF Commitment Percentage of the amount by which all Extensions of Credit to the
Canadian Borrowers exceed the Canadian Borrowing Base, (v) the amount equal to
such U.S. RCF Lender's U.S. RCF Commitment Percentage of the amount of all
Canadian RCF Loans made to the U.S. Borrowers and (vi) the amount equal to such
U.S. RCF Lender's U.S. RCF Commitment Percentage of the outstanding Extensions
of Credit to Canadian Xxxxx; collectively, as to all the U.S. RCF Lenders, the
"Available U.S. RCF Commitments".
6
"Average RCF Loan Utilization": on each date on which the Commitment
Fee is being calculated, the average of the daily quotient of (i) the sum of (x)
the Aggregate Canadian RCF Lender Exposure plus (y) the Aggregate U.S. RCF
Lender Exposure (excluding any Aggregate U.S. RCF Lender Exposure resulting from
any outstanding Swing Line Loans) calculated on each date of the three-month
period immediately preceding such date, divided by (ii) the sum of (x) the Total
Canadian RCF Commitments plus (y) the Total U.S. RCF Commitments, in each case
on each such date.
"BA Fee": the amount calculated by multiplying the face amount of each
Bankers' Acceptance accepted by, and each Draft purchased but not accepted by, a
Canadian Lender hereunder by the rate for the BA Fee specified in the Pricing
Grid, and then multiplying the result by a fraction, the numerator of which is
the duration of its term on the basis of the actual number of days to elapse
from and including the date of acceptance of a Bankers' Acceptance, or date of
purchase of such Draft, by the Canadian Lender up to but excluding the maturity
date of the Bankers' Acceptance and the denominator of which is 365.
"B/A Instruments": collectively, Bankers' Acceptances, Drafts and
Discount Notes and, in the singular, any one of them.
"BA Proceeds": in respect of any Bankers' Acceptance to be accepted
by, or any Draft to be purchased but not accepted by, a Canadian Lender
hereunder, an amount calculated on the applicable Borrowing Date which is
(rounded to the nearest full cent, with one half of one cent being rounded up)
equal to the face amount of such Bankers' Acceptance multiplied by the price,
where the price is calculated by dividing one by the sum of one plus the product
of (i) the BA Rate applicable thereto expressed as a decimal fraction multiplied
by (ii) a fraction, the numerator of which is the term of such Bankers'
Acceptance and the denominator of which is 365, which calculated price will be
rounded to the nearest multiple of 0.001%.
"BA Rate": with respect to an issue of Bankers' Acceptances or Drafts
in Canadian Dollars with the same maturity date, (a) for a Schedule I Lender,
(i) the arithmetic average of the rates applicable to bankers' acceptances
having an identical or comparable term as the proposed Bankers' Acceptance or
Draft displayed and identified as such on the display referred to as the "CDOR
Page" (or any display substituted therefor) of Xxxxxx Monitor Money Rates
Service as at or about 10:00 A.M. on such day (or, if such day is not a Business
Day, as of 10:00 A.M. on the immediately preceding Business Day), or (ii) if
such rates do not appear on the CDOR Page at such time and on such date, the
rate for such date will be the annual discount rate (rounded upward to the
nearest whole multiple of 1/100 of 1%) as of 10:00 A.M. on such day at which
such Lender is then offering to purchase Bankers' Acceptances accepted by it
having such specified term (or a term as closely as possible comparable to such
specified term), and (b) for a Lender which is not a Schedule I Lender, the
lesser of (i) the arithmetic average of the annual discount rates for bankers'
acceptances for such term quoted by such Lender at or about 10:00 A.M. and (ii)
the annual discount rate applicable to Bankers' Acceptances and Drafts as
determined for the Schedule I Lender in (a) above for the same Bankers'
Acceptances issue plus 10 basis points.
"Bankers' Acceptance": a Draft drawn by a Canadian Borrower and
accepted by a Canadian Lender pursuant to subsection 4.6(c)(iv).
7
"Bankers' Acceptance Loans": (i) the creation and acceptance of
Bankers' Acceptances; or (ii) the creation and purchase of completed Drafts and
the exchange of such Drafts for Discount Notes, in each case as contemplated in
subsection 2.2(b) and subsection 4.6(c)(iv).
"Benefited Lender": as defined in subsection 11.7(a).
"Blocked Account Agreement": as defined in subsection 4.16(c).
"Blocked Accounts": as defined in subsection 4.16(c).
"Board": the Board of Governors of the Federal Reserve System.
"Borrower Joinder Agreement": a Joinder Agreement in the form of
Exhibit K.
"Borrowers": the U.S. Borrowers, the Canadian Borrowers and from and
after such date as when it executes and delivers to the Administrative Agent a
Borrower Joinder Agreement, Canadian Xxxxx.
"Borrowing": the borrowing of one Type of Loan of a single Tranche by
the U.S. Borrowers (on a joint and several basis), the Canadian Borrowers (on a
joint and several basis) or Canadian Xxxxx, from all the Lenders having
Commitments of the respective Tranche on a given date (or resulting from a
conversion or conversions on such date) having in the case of Eurocurrency Loans
the same Interest Period and, in the case of Bankers' Acceptance Loans, the same
term to maturity.
"Borrowing Base": the U.S. Borrowing Base, the Canadian Borrowing Base
and/or the Total Borrowing Base, as the context may require.
"Borrowing Base Certificate": as defined in subsection 7.2(f).
"Borrowing Date": any Business Day specified in a notice pursuant to
subsection 2.3, 2.7 or 3.2 as a date on which the Parent Borrower or any other
Borrower requests the Lenders to make Loans hereunder or an Issuing Lender to
issue Letters of Credit hereunder.
"Business Day": a day other than a Saturday, Sunday or other day on
which commercial banks in New York, New York (or, with respect only to Loans
made by a Canadian Lender and Letters of Credit issued by an Issuing Lender not
located in the City of New York, the location of such Canadian Lender or such
Issuing Lender) are authorized or required by law to close, except that, when
used in connection with a Eurocurrency Loan, "Business Day" shall mean, in the
case of any Eurocurrency Loan in Dollars, any Business Day on which dealings in
Dollars between banks may be carried on in London, England and New York, New
York.
"Canadian Administrative Agent": as defined in the Preamble and shall
include any successor to the Canadian Administrative Agent appointed pursuant to
subsection 10.10.
"Canadian Blocked Account": as defined in subsection 4.16(c).
8
"Canadian Borrower Unpaid Drawing": drawings on Canadian RCF Letters
of Credit that have not been reimbursed by the applicable Canadian Borrower.
"Canadian Borrowers": RSC Canada and any other entity that becomes a
Borrower pursuant to subsection 7.9(c) and which is incorporated or organized in
Canada or a province thereof, together with their respective successors and
assigns. For the avoidance of doubt, Canadian Xxxxx shall not be a Canadian
Borrower for the purposes of this Agreement.
"Canadian Borrowing Base": as of any date of determination, the result
of, in each case using the Dollar Equivalent of all amounts in Canadian Dollars:
(a) 85% of the amount of Eligible Canadian Accounts, plus
(b) 85% of the amount of Eligible Unbilled Accounts owned by the
Canadian Loan Parties (not to exceed 50% of the amount calculated under
clause (a) above), plus
(c) (i) 50% of the Value of Eligible Canadian Inventory, or (ii) if
the amount calculated pursuant to preceding clause (i) is greater than 5.0%
of the Canadian Borrowing Base, the lesser of (A) the amount calculated
pursuant to preceding clause (i), and (B) 85% of the Net Orderly
Liquidation Value of Eligible Canadian Inventory, plus
(d) the lesser of:
(i) 95% times the net book value of the Eligible Canadian Rental
Fleet, and
(ii) 85% times the Net Orderly Liquidation Value of the Eligible
Canadian Rental Fleet, minus
(e) the amount of all Availability Reserves related to the Canadian RC
Facility, minus
(f) the Canadian Borrowers' and the Qualified Canadian Subsidiary
Guarantors' aggregate exposure under Interest Rate Protection Agreements
and Permitted Hedging Arrangements, as reasonably determined by the U.S.
Administrative Agent (x) based on the xxxx-to-market value(s) for such
Interest Rate Protection Agreements and Permitted Hedging Agreements
(determined based upon one or more mid-market or other readily available
quotations provided by any recognized dealer in such Interest Rate
Protection Agreements and Permitted Hedging Agreements) or (y) at the U.S.
Administrative Agent's sole discretion, in another manner acceptable to the
Parent Borrower.
"Canadian Collateral Agent": as defined in the Preamble.
"Canadian Dollars": the lawful currency of Canada, as in effect from
time to time.
9
"Canadian Xxxxx": a special purpose company having unlimited liability
organized under the laws of Canada or a province thereof, 100% of the Capital
Stock of which is owned by RSC.
"Canadian Guarantee Agreement": collectively, the Canadian Guarantee
Agreements to be executed and delivered by each Canadian Loan Party to and in
favor of the Canadian Administrative Agent, the Canadian Collateral Agent and
the Lenders substantially in the form of Exhibit G-1, as the same may be
amended, supplemented, waived or otherwise modified from time to time.
"Canadian Lender": (i) each Canadian RCF Lender that is a Canadian
Resident listed on Schedule A or the Subsidiary or Affiliate of such Canadian
RCF Lender that is a Canadian Resident and that is a Lender listed on Schedule
A, and (ii) each additional Person that becomes a Canadian RCF Lender party
hereto in accordance with the provisions hereof that is a Canadian Resident. A
Canadian Lender shall cease to be a "Canadian Lender" when it has assigned all
of its Canadian RCF Commitment in accordance with subsection 11.6 (or its
related Canadian RCF Lender has assigned all of its Canadian RCF Commitment
pursuant to subsection 11.6). For purposes of this Agreement, the term "Lender"
includes each Canadian Lender unless the context otherwise requires.
"Canadian Loan Parties": the Canadian Borrowers and each Canadian
Subsidiary Guarantor.
"Canadian Prime Rate": the greater of (a) rate of interest publicly
announced from time to time by the Canadian Administrative Agent as its
reference rate of interest for loans made in Canadian Dollars to Canadian
customers and designed as its "prime" rate and (b) the average discount rate for
one-month Canadian Dollar bankers' acceptances (expressed for such purposes as a
yearly rate per annum) which is shown on the "CDOR Page" (or any substitute) at
10:00 A.M. (Toronto time) on such day (or if not a Business Day, the preceding
Business Day), plus 0.75% per annum. Any change in the Canadian Prime Rate due
to a change in the Canadian Administrative Agent's prime rate shall be effective
on the effective date of such change in the Canadian Administrative Agent's
prime rate.
"Canadian Priority Payables": at any time, with respect to the
Canadian Borrowers and Canadian Subsidiary Guarantors:
(a) the amount past due and owing by such Person, or the accrued
amount for which such Person has an obligation to remit to a Governmental
Authority or other Person pursuant to any applicable law, rule or
regulation, in respect of (i) pension fund obligations; (ii) unemployment
insurance; (iii) goods and services taxes, sales taxes, employee income
taxes and other taxes payable or to be remitted or withheld; (iv) workers'
compensation; (v) vacation pay; and (vi) other like charges and demands; in
each case, in respect of which any Governmental Authority or other Person
may claim a security interest, lien, trust or other claim ranking or
capable of ranking in priority to or pari passu with one or more of the
Liens granted in the Security Documents; and
10
(b) the aggregate amount of any other liabilities of such Person (i)
in respect of which a trust has been or may be imposed on any Collateral to
provide for payment or (ii) which are secured by a security interest,
pledge, lien, charge, right or claim on any Collateral, in each case,
pursuant to any applicable law, rule or regulation and which trust,
security interest, pledge, lien, charge, right or claim ranks or is capable
of ranking in priority to or pari passu with one or more of the Liens
granted in the Security Documents.
"Canadian RC Facility": the revolving credit facility available to the
Canadian Borrowers, the U.S. Borrowers and Canadian Xxxxx hereunder pursuant to
subsection 2.2(b).
"Canadian RCF Commitment": with respect to each Canadian RCF Lender,
the commitment of such Canadian RCF Lender hereunder to make Extensions of
Credit to the Borrowers in the amount set forth opposite its name on Schedule A
hereto or as may subsequently be set forth in the Register from time to time.
"Canadian RCF Commitment Percentage": of any Canadian RCF Lender at
any time shall be that percentage which is equal to a fraction (expressed as a
percentage) the numerator of which is the Canadian RCF Commitment of such
Canadian RCF Lender at such time and the denominator of which is the Total
Canadian RCF Commitment at such time, provided that if any such determination is
to be made after the Total Canadian RCF Commitment (and the related Canadian RCF
Commitments of the Lenders) has (or have) terminated, the determination of such
percentages shall be made immediately before giving effect to such termination.
"Canadian RCF Issuing Lender": as the context may require, (i) DBCB or
(ii) any Canadian RCF Lender (and/or any Affiliate of such Canadian RCF Lender
designated by it that is a Canadian RCF Lender) which, at the request of a
Canadian Borrower and with the consent of the Canadian Administrative Agent
(such consent not to be unreasonably withheld or delayed), agrees, in such
Canadian RCF Lender's (or Affiliate's) sole discretion, to also become a
Canadian RCF Issuing Lender for the purpose of issuing Canadian RCF Letters of
Credit.
"Canadian RCF L/C Obligations": at any time, an amount equal to the
sum of (a) the aggregate then undrawn and unexpired amount of the then
outstanding Canadian RCF Letters of Credit and (b) the aggregate amount of
drawings under Canadian RCF Letters of Credit which have not then been
reimbursed pursuant to subsection 3.5(a).
"Canadian RCF L/C Participants": the Canadian RCF Lenders (including
any Non-Canadian Affiliate, as applicable).
"Canadian RCF Lender": each Lender which has a Canadian RCF Commitment
(without giving effect to any termination of the Total Canadian RCF Commitment
if there are any outstanding Canadian RCF L/C Obligations) or which has (or has
any Non-Canadian Affiliate which has) any outstanding Canadian RCF Loans (or a
Canadian RCF Commitment Percentage in any then outstanding Canadian RCF L/C
Obligations). Unless the context otherwise requires, each reference in this
Agreement to a Canadian RCF Lender includes each Canadian RCF Lender and shall
include references to any Affiliate of any such Lender
11
(including any Non-Canadian Affiliate, as applicable) which is acting as a
Canadian RCF Lender.
"Canadian RCF Letters of Credit": Letters of Credit issued by the
Canadian RCF Issuing Lender to, or for the account of, the Borrowers, pursuant
to subsection 3.1.
"Canadian RCF Loan": as defined in subsection 2.2(b).
"Canadian Resident": (a) a person resident in Canada for purposes of
the Income Tax Act (Canada) as in effect on the date such Lender becomes a
Lender hereunder, (b) an authorized foreign bank which at all times holds all of
its interest in any obligations owed by the Canadian Borrowers or Canadian Xxxxx
hereunder in the course of its Canadian banking business for purposes of
subsection 212(13.3) of the Income Tax Act (Canada) as in effect on the date
such Lender becomes a Lender hereunder or (c) any Lender with respect to which
payments to such Lender of interest, fees, commission or any other amount
payable by any Canadian Borrower or Canadian Xxxxx under the Loan Documents are
not subject to any Non-Excluded Taxes imposed by Canada or any political
subdivision or taxing authority thereof or therein and that is able to establish
to the satisfaction of the Canadian Administrative Agent and the Canadian
Borrowers or Canadian Xxxxx that, based on applicable law in effect on the date
such Lender becomes a Lender, any such payments to or for the benefit of such
Lender are not subject to the withholding or deduction of any such Non-Excluded
Taxes.
"Canadian Secured Parties": the "Secured Parties" as defined in the
Canadian Security Agreement.
"Canadian Security Agreement": collectively, the Canadian security
agreements to be executed and delivered by each Canadian Loan Party to and in
favor of the Canadian Collateral Agent as of the date hereof, substantially in
the form of Exhibit G-3 in each case, as the same may be amended, supplemented,
waived or otherwise modified from time to time.
"Canadian Security Documents": the collective reference to the
Canadian Guarantee Agreement, the Canadian Security Agreement and all other
similar security documents hereafter delivered to the U.S. Collateral Agent or
the Canadian Collateral Agent granting or perfecting a Lien on any asset or
assets of any Person to secure the obligations and liabilities of the Canadian
Loan Parties hereunder and/or under any of the other Loan Documents or to secure
any guarantee of any such obligations and liabilities, including any security
documents executed and delivered or caused to be delivered to the U.S.
Collateral Agent or the Canadian Collateral Agent pursuant to subsection 7.9(a),
7.9(b) or 7.9(c), in each case, as amended, supplemented, waived or otherwise
modified from time to time.
"Canadian Subsidiary": each Subsidiary of Parent Borrower that is
incorporated or organized under the laws of Canada or any province thereof.
"Canadian Subsidiary Guarantor": each Canadian Subsidiary of any
Canadian Borrower which executes and delivers the Canadian Guarantee Agreement,
in each case, unless and until such time as the respective Canadian Subsidiary
Guarantor ceases to constitute a Canadian Subsidiary of the Parent Borrower or
is released from all of its obligations under the Canadian Guarantee Agreement
in accordance with the terms and provisions thereof.
12
"Capital Expenditures": with respect to any Person for any period, the
sum of (a) the aggregate of all expenditures by such Person and its consolidated
Subsidiaries during such period (exclusive of expenditures made (i) for
investments permitted by subsection 8.8 and (ii) for acquisitions permitted by
subsection 8.9) which, in accordance with GAAP, are or should be included in
"capital expenditures," including, any such expenditures made for purchases of
Rental Fleet, net of (b) proceeds received by the Parent Borrower or any of its
Subsidiaries from Dispositions of (x) property, plant and equipment and (y)
Rental Fleet during such period.
"Capital Stock": any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation, any
and all equivalent ownership interests in a Person (other than a corporation)
and any and all warrants or options to purchase any of the foregoing.
"Cash Equivalents": (a) securities issued or fully guaranteed or
insured by the United States government or Canadian government or any agency or
instrumentality thereof, (b) time deposits, certificates of deposit or bankers'
acceptances of (i) any Lender or Affiliate thereof or (ii) any commercial bank
having capital and surplus in excess of $500,000,000 and the commercial paper of
the holding company of which is rated at least A-2 or the equivalent thereof by
Standard & Poor's Ratings Group (a division of The McGraw Hill Companies Inc.)
or any successor rating agency ("S&P") or at least P-2 or the equivalent thereof
by Xxxxx'x Investors Service, Inc. or any successor rating agency ("Moody's")
(or if at such time neither is issuing ratings, then a comparable rating of such
other nationally recognized rating agency as shall be approved by the U.S.
Administrative Agent in its reasonable judgment), (c) commercial paper rated at
least A-2 or the equivalent thereof by S&P or at least P-2 or the equivalent
thereof by Moody's (or if at such time neither is issuing ratings, then a
comparable rating of such other nationally recognized rating agency as shall be
approved by the U.S. Administrative Agent in its reasonable judgment), (d)
investments in money market funds complying with the risk limiting conditions of
Rule 2a-7 or any successor rule of the Securities and Exchange Commission under
the Investment Company Act, and (e) investments similar to any of the foregoing
denominated in foreign currencies approved by the board of directors of the
Parent Borrower, in each case provided in clauses (a), (b), (c) and (e) above
only, maturing within twelve months after the date of acquisition.
"CERCLA": the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as the same may be amended from time to time, 42 U.S.C.A.
Section 9601 et seq.
"CGMI": Citigroup Global Markets, Inc., in its individual capacity,
and any successor corporation thereto by merger, consolidation or otherwise.
"Change in Law": as defined in subsection 4.11(a).
"Change of Control": the occurrence of any of the following events:
(a) at any time prior to the initial registered public offering of Holdings' or
any Parent Entity's Voting Stock the Permitted Holders shall in the aggregate be
the "beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the Exchange
Act) of (x) so long as Holdings is a Subsidiary of any Parent Entity, Voting
Stock having less than 51% of the total voting power of all outstanding
13
Capital Stock of such Parent Entity (other than a Parent Entity that is a
Subsidiary of another Parent Entity) and (y) if Holdings is not a Subsidiary of
any Parent Entity, Voting Stock having less than 51% of the total voting power
of all outstanding shares of Holdings; (b) on and after the date of the initial
registered public offering of Holdings' or any Parent Entity's Voting Stock, (i)
(x) the Permitted Holders shall in the aggregate be the "beneficial owner" (as
defined in Rules 13d-3 and 13d-5 under the Exchange Act) of (A) so long as
Holdings is a Subsidiary of any Parent Entity, Voting Stock having less than 35%
of the total voting power of all outstanding Capital Stock of such Parent Entity
(other than a Parent Entity that is a Subsidiary of another Parent Entity) and
(B) if Holdings is not a Subsidiary of any Parent Entity, Voting Stock having
less than 35% of the total voting power of all outstanding Capital Stock of
Holdings and (y) any "person" or "group" (as such terms are used in Sections
13(d) and 14(d) of the Exchange Act), other than one or more Permitted Holders,
shall be the "beneficial owner" of (A) so long as Holdings is a Subsidiary of
any Parent Entity, Voting Stock having more than 35% of the total voting power
of all outstanding Capital Stock of such Parent Entity (other than a Parent
Entity that is a Subsidiary of another Parent Entity) and (B) if Holdings is not
a Subsidiary of any Parent Entity, Voting Stock having more than 35% of the
total voting power of all outstanding Capital Stock of Holdings or (ii) the
Continuing Directors shall cease to constitute a majority of the members of the
board of directors of RSC; (c) Holdings shall cease to own, directly or
indirectly, 100% of the Capital Stock of the Parent Borrower; provided that the
Parent Borrower may, to the extent permitted by subsection 8.5, merge or
consolidate with or into another U.S. Borrower; (d) the Parent Borrower shall
cease to own, directly or indirectly, 100% of the Capital Stock of RSC; provided
that RSC may, to the extent permitted by subsection 8.5, merge or consolidate
with or into the Parent Borrower and the Parent Borrower may merge with or into
RSC; (e) RSC shall cease to own, directly or indirectly, 100% of the Capital
Stock of RSC Canada; provided that RSC Canada may, to the extent permitted by
subsection 8.5, merge or consolidate with or into another Canadian Borrower; or
(f) a "Change of Control" as defined in the Second-Lien Term Loan Documents and
the Senior Note Documents.
"Chief Executive Office": with respect to any Person, the location
from which such Person manages the main part of its business operations or other
affairs.
"Citigroup": CNAI, Citibank, N.A., Citicorp USA, Inc., Citicorp North
America, Inc. and any other Affiliates designated by any such Person.
"Closing Date": the date on which all the conditions precedent set
forth in subsection 6.1 shall be satisfied or waived and the Initial Extension
of Credit shall have occurred hereunder.
"CNAI": as defined in the Recitals hereto.
"Code": the Internal Revenue Code of 1986, as amended from time to
time.
"Collateral": all assets of the Loan Parties, now owned or hereafter
acquired, upon which a Lien is purported to be created by any Security Document.
"Collateral Agent": the U.S. Administrative Agent and/or the Canadian
Administrative Agent, as the context may require.
14
"Collection Bank": as defined in subsection 4.16(c).
"Commitment": as to any Lender, its U.S. RCF Commitment, its Canadian
RCF Commitment and its Term Loan Commitment. The original amount of the
aggregate Commitments of the RCF Lenders and Term Loan Lenders is
$1,700,000,000.
"Commitment Fee Rate": during the period from the Closing Date until
December 31, 2006, 0.250% per annum. Thereafter, the "Commitment Fee Rate" will
be as set forth on the Pricing Grid based upon the Average RCF Loan Utilization
calculated by the U.S. Administrative Agent for the respective three-month
period for each such period.
"Commitment Increase": as defined in subsection 2.7(a).
"Commitment Increase Date": as defined in subsection 2.7(c).
"Commitment Percentage": of any RCF Lender at any time shall be that
percentage which is equal to a fraction (expressed as a percentage) the
numerator of which is the aggregate RCF Commitment of such RCF Lender at such
time and the denominator of which is the aggregate RCF Commitments at such time,
provided that if any such determination is to be made after the RCF Commitments
have terminated, the determination of such percentages shall be made immediately
before giving effect to such termination.
"Commitment Period": the period from and including the Closing Date to
but not including the RCF Maturity Date, or such earlier date as the RCF
Commitments shall terminate as provided herein.
"Committed Lenders": DB, Citigroup and GE.
"Commonly Controlled Entity": an entity, whether or not incorporated,
which is under common control with Holdings or any of its Subsidiaries within
the meaning of Section 4001 of ERISA or is part of a group which includes
Holdings or any of its Subsidiaries and which is treated as a single employer
under Section 414(b) or (c) of the Code or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Sections 414(m) and (o) of the Code.
"Company Material Adverse Effect": any fact, circumstance, change,
occurrence or development that has a material adverse effect on the business,
assets, liabilities, results of operations or condition (financial or otherwise)
of the Recapitalized Business, taken as a whole, but shall exclude any fact,
circumstance, change, occurrence or development resulting from or relating to
(i) events affecting the North American, European, Asian or global economy or
capital or financial markets generally, (ii) changes in conditions in the
industries in which the Recapitalized Business operates, (iii) changes in laws,
regulations, or GAAP, or in the authoritative interpretations thereof or in
regulatory guidance related thereto, (iv) earthquakes or similar catastrophes,
or acts of war (whether declared or undeclared), sabotage, terrorism, military
action or any escalation or worsening thereof, or (v) other than for purposes of
Sections 4.2 and 5.2 of the Recapitalization Agreement, the announcement or
performance of the Recapitalization Agreement or the transactions contemplated
thereby, unless, in the case of
15
items (i)(iv) above, any such fact, circumstance, change, occurrence or
development disproportionately affects the Recapitalized Business, taken as a
whole.
"Conduit Lender": any special purpose corporation organized and
administered by any Lender for the purpose of making Loans otherwise required to
be made by such Lender and designated by such Lender in a written instrument
delivered to the U.S. Administrative Agent (a copy of which shall be provided by
the U.S. Administrative Agent to the Parent Borrower on request); provided that
the designation by any Lender of a Conduit Lender shall not relieve the
designating Lender of any of its obligations under this Agreement, including its
obligation to fund a Loan if, for any reason, its Conduit Lender fails to fund
any such Loan, and the designating Lender (and not the Conduit Lender) shall
have the sole right and responsibility to deliver all consents and waivers
required or requested under this Agreement with respect to its Conduit Lender,
and provided, further, that no Conduit Lender shall (a) be entitled to receive
any greater amount pursuant to any provision of this Agreement, including,
without limitation, subsection 4.10, 4.11, 4.12 or 11.5, than the designating
Lender would have been entitled to receive in respect of the extensions of
credit made by such Conduit Lender if such designating Lender had not designated
such Conduit Lender hereunder, (b) be deemed to have any Commitment or (c) be so
designated if such designation would otherwise increase the costs of any
Facility to any Borrower.
"Confidential Information Memorandum": that certain Confidential
Information Memorandum (Public Version) dated November 6, 2006 and furnished to
the Lenders.
"Consolidated Fixed Charge Coverage Ratio": as of the last day of any
period, the ratio of (a)(i) EBITDA for such period minus (ii) the sum of the
unfinanced portion of all Capital Expenditures (excluding any Capital
Expenditure made in an amount equal to all or part of the proceeds of (x) any
casualty insurance, condemnation or eminent domain or (y) any sale of assets
(other than Rental Fleet)) not in the ordinary course of business of Holdings
and its consolidated Subsidiaries during such period so long as such proceeds
were in fact applied within 12 months following the receipt thereof, to (b) the
sum, without duplication, of (i) Debt Service Charges payable in cash by the
Parent Borrower and its consolidated Subsidiaries during such period plus (ii)
federal, state and foreign income taxes paid in cash by the Parent Borrower and
its consolidated Subsidiaries (net of refunds received) for the period of four
full fiscal quarters ending on such date plus (iii) cash paid by the Parent
Borrower during the relevant period pursuant to any of clauses (f), (i) and (k)
of subsection 8.7; provided that upon the date on which any Liquidity Event
first occurs, the Consolidated Fixed Charge Coverage Ratio shall be calculated
as of end of the most recently completed fiscal quarter of the Parent Borrower
for which financial statements shall have been required to be delivered under
subsection 7.1(a) or (b).
"Consolidated Indebtedness": at the date of determination thereof, an
amount equal to all debt of the Parent Borrower and its consolidated
Subsidiaries as determined on a consolidated basis and as disclosed on the
Parent Borrower's consolidated balance sheet most recently delivered pursuant to
subsection 7.1.
"Consolidated Interest Expense": for any period, an amount equal to
(a) interest expense (accrued and paid or payable in cash for such period, and
in any event excluding any
16
amortization or write off of financing costs) on Indebtedness of the Parent
Borrower and its consolidated Subsidiaries for such period minus (b) interest
income (accrued and received or receivable in cash for such period) of the
Parent Borrower and its consolidated Subsidiaries for such period, in each case
determined on a consolidated basis in accordance with GAAP; provided that for
purposes of calculating the Consolidated Fixed Charge Coverage Ratio for any
period of four fiscal quarters ending prior to December 31, 2007, Consolidated
Interest Expense for such period of four fiscal quarters shall be deemed to be
(i) in the case of the period ending at the end of the fiscal quarter ending
March 31, 2007, Consolidated Interest Expense for such fiscal quarter multiplied
by 4, (ii) in the case of the period ending at the end of the fiscal quarter
ending June 30, 2007, Consolidated Interest Expense for the period of two fiscal
quarters ending at the end of such fiscal quarter multiplied by 2 and (iii) in
the case of the period ending at the end of the fiscal quarter ending September
30, 2007, Consolidated Interest Expense for the period of three fiscal quarters
ending at the end of such fiscal quarter multiplied by 4/3.
"Consolidated Leverage Ratio": as of the last day of any period, the
ratio of (a) Consolidated Indebtedness on such day to (b) EBITDA for such
period, or the period of four full fiscal quarters most recently ended prior to
such date for which financial statements of the Parent Borrower have been
required to be delivered under subsection 7.1(a) or (b), respectively; provided
that upon the date on which any Liquidity Event first occurs, the Consolidated
Leverage Ratio shall be calculated as of the end of the most recently completed
fiscal quarter of the Parent Borrower for which financial statements shall have
been required to be delivered under subsection 7.1(a) or (b).
"Consolidated Net Income": for any period, net income of the Parent
Borrower and its consolidated Subsidiaries for such period, determined on a
consolidated basis in accordance with GAAP.
"Continuing Directors": the directors of RSC on the Closing Date,
after giving effect to the Transaction and the other transactions contemplated
thereby, and each other director if, in each case, such other director's
nomination for election to the board of directors of RSC is recommended by at
least a majority of the then Continuing Directors or the election of such other
director is approved by one or more Permitted Holders.
"Contractual Obligation": as to any Person, any provision of any
material security issued by such Person or of any material agreement, instrument
or other undertaking to which such Person is a party or by which it or any of
its property is bound.
"Credit Agreement Party": Holdings and each Borrower.
"Credit Card Notification": as defined in subsection 4.16(c).
"DB": DBNY, DBCB, DBSI and any other Affiliates of DBSI designated by
DBSI.
"DBCB": Deutsche Bank AG, Canada Branch, in its individual capacity,
and any successor corporation thereto by merger, consolidation or otherwise.
"DBCB Account": as defined in subsection 4.16(d).
17
"DBNY": Deutsche Bank AG, New York Branch, in its individual capacity,
and any successor corporation thereto by merger, consolidation or otherwise.
"DBNY Account": as defined in subsection 4.16(d).
"DBSI": Deutsche Bank Securities Inc., in its individual capacity, and
any successor corporation thereto by merger, consolidation or otherwise.
"DDA Notification": as defined in subsection 4.16(c).
"DDAs": any checking or other demand deposit account maintained by the
Loan Parties (other than any such account if such account is, or all of the
funds and other assets owned by a Loan Party held in such account are, excluded
from the Collateral pursuant to any Security Document). All funds in such DDAs
shall be conclusively presumed to be Collateral and proceeds of Collateral and
the Agents and the Lenders shall have no duty to inquire as to the source of the
amounts on deposit in the DDAs, subject to the Security Documents and the
Intercreditor Agreement.
"Debt Financing": the debt financing transactions contemplated under
(a) the Loan Documents, (b) the Second-Lien Term Loan Documents and (c) the
Senior Note Documents, and, in each case, including any Interest Rate Protection
Agreements related thereto.
"Debt Service Charges": for any period, the sum of (a) Consolidated
Interest Expense, plus (b) principal payments made or required to be made (after
giving effect to any prepayments paid in cash that reduce the amount of such
required payments) on account of Indebtedness of the Parent Borrower and its
consolidated Subsidiaries, including the full amount of any non-recourse
Indebtedness (excluding the obligations hereunder, payments to reimburse any
drawings under any commercial letters of credit, and any payments on
Indebtedness required to be made on the final maturity date thereof, but
including any obligations in respect of Financing Leases), for such period, plus
(c) scheduled mandatory payments on account of Disqualified Capital Stock of the
Parent Borrower and its consolidated Subsidiaries (whether in the nature of
dividends, redemption, repurchase or otherwise) required to be made during such
period, in each case determined on a consolidated basis in accordance with GAAP.
"Default": any of the events specified in Section 9, whether or not
any requirement for the giving of notice (other than, in the case of subsection
9(e), a Default Notice), the lapse of time, or both, or any other condition
specified in Section 9, has been satisfied.
"Default Notice": as defined in subsection 9(e).
"Defaulting Lender": as defined in subsection 4.8(c).
"Deposit Account": any deposit account (as such term is defined in
Article 9 of the UCC or (to the extent governed thereby) any similar provision
of the PPSA).
"Discount Note": as defined in subsection 4.6(c)(xi).
18
"Disinterested Director": with respect to any Person and transaction,
a member of the board of directors of such Person who does not have any material
direct or indirect financial interest in or with respect to such transaction.
"Disposition": as defined in the definition of the term "Asset Sale"
in this subsection 1.1.
"Disqualified Capital Stock": any Capital Stock which, by its terms
(or by the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, (a) is mandatorily redeemable
in whole or in part prior to the Term Loan Maturity Date, pursuant to a sinking
fund obligation or otherwise, or is redeemable at the option of the holder
thereof, in whole or in part, (b) is convertible into or exchangeable (unless at
the sole option of the issuer thereof) for Indebtedness or any Capital Stock
referred to in (a) above prior to the Term Loan Maturity Date, or (c) contains
any mandatory repurchase obligation which comes into effect prior to the Term
Loan Maturity Date, provided that any Capital Stock that would not constitute
Disqualified Capital Stock but for provisions thereof giving holders thereof (or
the holders of any security into or for which such Capital Stock is convertible,
exchangeable or exercisable) the right to require the issuer thereof to redeem
such Capital Stock upon the occurrence of a change in control or an asset sale
shall not constitute Disqualified Capital Stock.
"Documentary L/C": as defined in subsection 3.1(a).
"Dollar Equivalent": with respect to the principal amount of any
Canadian RCF Loan denominated in Canadian Dollars or the amount of any Canadian
RCF Letters of Credit denominated in Canadian Dollars at any date of
determination thereof, an amount in Dollars equivalent to such principal amount
or such other amount calculated on the basis of the Spot Rate of Exchange.
"Dollars" and "$": dollars in lawful currency of the United States of
America.
"Domestic Subsidiary": any Subsidiary of the Parent Borrower which is
not a Foreign Subsidiary.
"Dominion Event": the determination by the U.S. Administrative Agent
that Available RCF Commitments on any day are less than $170,000,000; provided
that the U.S. Administrative Agent has notified the Parent Borrower thereof; and
provided, further, that if the occurrence of a Dominion Event shall be due
solely to a fluctuation in currency exchange rates occurring within the two
Business Day period immediately preceding such occurrence, and one or more of
the Borrowers, within two Business Days following receipt of such notice from
the U.S. Administrative Agent, repays Loans in an amount such that the Available
RCF Commitments following such payment exceeds $170,000,000, a Dominion Event
shall be deemed not to have occurred. The occurrence of a Dominion Event shall
be deemed continuing notwithstanding that Available RCF Commitments may
thereafter exceed the amount set forth in the preceding sentence unless and
until the Available RCF Commitments exceed $185,000,000 for 30 consecutive days,
in which event a Dominion Event shall no longer be deemed to be
19
continuing; provided that a Dominion Event may not be cured as contemplated by
this sentence more than two times in any four fiscal quarter period.
"Draft": at any time, either a depository xxxx within the meaning of
the Depository Bills and Notes Act (Canada) or a xxxx of exchange, within the
meaning of the Bills of Exchange Act (Canada), drawn by a Canadian Borrower on a
Canadian Lender and bearing such distinguishing letters and numbers as such
Canadian Lender may determine, but which at such time has not been completed or
accepted by such Canadian Lender.
"EBITDA": for any period, the sum of (a) Consolidated Net Income for
such period adjusted (i) to exclude the following items (without duplication) of
income or expense to the extent that such items are included in the calculation
of Consolidated Net Income: (A) Consolidated Interest Expense, (B) any non-cash
expenses and charges, (C) total income tax expense, (D) depreciation expense,
(E) the expense associated with amortization of intangible and other assets
(including amortization or other expense recognition of any costs associated
with asset write-ups in accordance with APB Nos. 16 and 17), (F) non-cash
provisions for reserves for discontinued operations, (G) any extraordinary,
unusual or non-recurring gains or losses or charges or credits, including but
not limited to any expenses relating to the Transaction and any non-recurring or
extraordinary items paid or accrued during such period relating to deferred
compensation owed to any Management Investor that was cancelled, waived or
exchanged in connection with the grant to such Management Investor of the right
to receive or acquire shares of common stock of Holdings or any other Parent
Entity, (H) any gain or loss associated with the sale or write-down of assets
(other than Rental Fleet) not in the ordinary course of business, (I) any income
or loss accounted for by the equity method of accounting (except in the case of
income to the extent of the amount of cash dividends or cash distributions
actually paid to the Parent Borrower or any of its Subsidiaries by the entity
accounted for by the equity method of accounting) and (J) fees paid to any
Sponsor or any Affiliate of any Sponsor for the rendering of management
consulting, monitoring or financial advisory services for compensation not to
exceed in the aggregate $6,000,000 in any Fiscal Year and (ii) by reducing
EBITDA (as otherwise determined above) by the amount of all dividends paid by
the Parent Borrower during the relevant period pursuant to any of clauses (c)
and (d) of subsection 8.7 (in each case, unless and to the extent (x) the amount
paid with such dividends by Holdings or any Parent Entity would not, if the
respective expense or other item had been incurred directly by the Parent
Borrower, have reduced EBITDA determined in accordance with the foregoing
provisions of this definition or (y) such dividend is paid by the Parent
Borrower in respect of an expense or other item that has resulted in, or will
result in, a reduction of EBITDA, as calculated pursuant to clause (a) above)
plus (b) only with respect to determining compliance with subsection 8.1 hereof,
any Specified Equity Contribution. For the purposes of calculating EBITDA for
any period of four consecutive fiscal quarters (each, a "Reference Period"), (i)
if at any time during such Reference Period (and after the Closing Date) the
Parent Borrower or any of its Subsidiaries shall have made any Material
Disposition, the EBITDA for such Reference Period shall be reduced by an amount
equal to the EBITDA (if positive) attributable to the property that is the
subject of such Material Disposition for such Reference Period or increased by
an amount equal to the EBITDA (if negative) attributable thereto for such
Reference Period and (ii) if during such Reference Period (and after the Closing
Date) the Parent Borrower or any of its Subsidiaries shall have made a Material
Acquisition, EBITDA for such Reference Period shall be calculated after giving
pro forma effect thereto in accordance with Regulation S-X or in such other
manner
20
acceptable to the U.S. Administrative Agent as if such Material Acquisition
occurred on the first day of such Reference Period. As used in this definition,
"Material Acquisition" means any acquisition of property or series of related
acquisitions of property that (x) constitutes assets comprising all or
substantially all of an operating unit of a business or constitutes all or
substantially all of the common stock of a Person and (y) involves the payment
of consideration by the Parent Borrower or any of its Subsidiaries in excess of
$5,000,000; and "Material Disposition" means any Disposition of property or
series of related Dispositions of property that (x) constitutes assets
comprising all or substantially all of an operating unit of a business or
constitutes all or substantially all of the common stock of a Person and (y)
yields gross proceeds to the Parent Borrower or any of its Subsidiaries in
excess of $5,000,000; provided that for any applicable periods prior to the
Closing Date EBITDA shall be determined in respect to the Recapitalized
Business.
"Eligible Accounts": those Accounts created by a Qualified Loan Party
in the ordinary course of its business, arising out of its sale, lease or rental
of goods or rendition of services, that comply in all material respects with
each of the representations and warranties respecting Eligible Accounts made in
the Loan Documents, and that are not excluded as ineligible by virtue of one or
more of the excluding criteria set forth below. In determining the amount to be
included, Eligible Accounts shall be calculated net of customer deposits and
unapplied cash. Eligible Accounts shall not include the following:
(a) Accounts that are unpaid on the date which is 120 days after the
date of the original invoice,
(b) Accounts owed by an Account Debtor (or its Affiliates) where 50%
or more of the total amount of all Accounts owed by that Account Debtor (or
its Affiliates) are deemed ineligible under clause (a) above,
(c) without duplication, the amount of any credit balances greater
than 120 days past their invoice date with respect to any Account,
(d) Accounts with respect to which the Account Debtor is (i) an
Affiliate of any Loan Party (other than a portfolio company of any of the
Equity Investors or their respective Affiliates) or (ii) an employee or
agent of any Loan Party or any Affiliate of such Loan Party (other than a
portfolio company of the Equity Investors or their respective Affiliates),
(e) Accounts arising in a transaction wherein goods are placed on
consignment or are sold pursuant to a guaranteed sale, a sale or return, a
sale on approval, a xxxx and hold, or any other terms by reason of which
the payment by the Account Debtor may be conditional (other than, for the
avoidance of doubt, a rental or lease basis),
(f) Accounts that are not payable in Dollars; provided that Eligible
Canadian Accounts may be payable in Canadian Dollars,
(g) Accounts with respect to which the Account Debtor is a Person
other than a Governmental Authority unless: (i) the Account Debtor (A) is a
natural person with a billing address in the United States or Canada, (B)
maintains its Chief Executive Office
21
in the United States or Canada, or (C) is organized under the laws of the
United States, Canada or any state, territory, province or subdivision
thereof; or (ii) (A) the Account is supported by an irrevocable letter of
credit satisfactory to the U.S. Administrative Agent, in its Permitted
Discretion (as to form, substance, and issuer or domestic confirming bank),
that has been delivered to the U.S. Administrative Agent and is directly
drawable by the U.S. Administrative Agent, or (B) the Account is covered by
credit insurance in form, substance, and amount, and by an insurer,
satisfactory to the U.S. Administrative Agent, in its Permitted Discretion,
(h) Accounts with respect to which the Account Debtor is the
government of any country or sovereign state other than the United States
and Canada, or of any state, province, municipality, or other political
subdivision thereof, or of any department, agency, public corporation, or
other instrumentality thereof, unless (i) the Account is supported by an
irrevocable letter of credit satisfactory to the U.S. Administrative Agent,
in its Permitted Discretion (as to form, substance, and issuer or domestic
confirming bank), that has been delivered to the U.S. Administrative Agent
and is directly drawable by the U.S. Administrative Agent, or (ii) the
Account is covered by credit insurance in form, substance, and amount, and
by an insurer, satisfactory to the U.S. Administrative Agent, in its
Permitted Discretion,
(i) Accounts with respect to which the Account Debtor is (i) the
federal government of Canada or any department, agency or instrumentality
of Canada or (ii) the federal government of the United States or any
department, agency or instrumentality of the United States (exclusive, in
the case of clause (ii), of Accounts with respect to which the applicable
Loan Party has complied, to the reasonable satisfaction of the U.S.
Administrative Agent, with the Assignment of Claims Act of 1940 (31 USC
Section 3727)),
(j) Accounts with respect to which the Account Debtor is any state
government of the United States or any department, agency, municipality or
political subdivision thereof (exclusive, however, of Accounts with respect
to which the applicable Loan Party has complied, to the reasonable
satisfaction of the U.S. Administrative Agent, with the state law (if any)
that is the substantial equivalent of the Assignment of Claims Act of 1940
(31 USC Section 3727)), unless (i) the Account is supported by an
irrevocable letter of credit satisfactory to the U.S. Administrative Agent,
in its Permitted Discretion (as to form, substance, and issuer or domestic
confirming bank), that has been delivered to the U.S. Administrative Agent
and is directly drawable by the U.S. Administrative Agent, or (ii) the
Account is covered by credit insurance in form, substance, and amount, and
by an insurer, satisfactory to the U.S. Administrative Agent, in its
Permitted Discretion,
(k) (i) Accounts with respect to which the Account Debtor is a
creditor of any Loan Party or any Subsidiary of a Loan Party, has or has
asserted a right of setoff, or has disputed its obligation to pay all or
any portion of the Account, to the extent of such claim, right of setoff,
or dispute, (ii) Accounts which are subject to a rebate that has been
earned but not taken or a chargeback, to the extent of such rebate or
chargeback, (iii) Accounts that comprise service charges or finance
charges, and (iv) Accounts less
22
than 120 days past the original invoice date related to invoices that have
been partially paid,
(l) Accounts with respect to an Account Debtor whose total obligations
owing to the Borrowers exceed 10% of all Eligible Accounts, to the extent
of the obligations owing by such Account Debtor in excess of such
percentage; provided, however, that, in each case, the amount of Eligible
Accounts that are excluded because they exceed the foregoing percentage
shall be determined by the U.S. Administrative Agent based on all of the
otherwise Eligible Accounts prior to giving effect to any eliminations
based upon the foregoing concentration limit,
(m) Accounts with respect to which the Account Debtor is not Solvent,
is subject to a proceeding related thereto, has gone out of business, or as
to which a Loan Party has received notice of an imminent proceeding related
to such Account Debtor not being or alleged not to be Solvent or which
proceeding is reasonably likely to result in a material impairment of the
financial condition of such Account Debtor,
(n) Accounts with respect to which the Account Debtor is located in a
state, province or jurisdiction (e.g., New Jersey, Minnesota, West Virginia
and Canadian provinces) that requires, as a condition to access to the
courts of such jurisdiction, that a creditor qualify to transact business,
file a business activities report or other report or form, or take one or
more other actions, unless the applicable Loan Party has so qualified,
filed such reports or forms, or taken such actions (and, in each case, paid
any required fees or other charges). The foregoing shall not apply to the
extent that the applicable Loan Party may qualify subsequently as a foreign
entity authorized to transact business in such state or jurisdiction and
gain access to such courts, without incurring any cost or penalty viewed by
the U.S. Administrative Agent, in its Permitted Discretion, to be material
in amount, and such later qualification cures any access to such courts to
enforce payment of such Account (including, for greater certainty, the
requirement for a creditor to extra-provincially register in a province or
territory of Canada for such purposes),
(o) Accounts, the collection of which the U.S. Administrative Agent,
in its Permitted Discretion, believes to be doubtful by reason of the
Account Debtor's financial condition, upon notice thereof to the Parent
Borrower,
(p) Accounts that are not subject to a valid and perfected first
priority Lien in favor of the U.S. Collateral Agent or the Canadian
Collateral Agent, as applicable, pursuant to a Security Document (as and to
the extent provided therein (it being agreed that in no event shall any
Excluded Assets be deemed to be Eligible Accounts hereunder)),
(q) Accounts with respect to which (i) the goods giving rise to such
Account have not been shipped and billed to the Account Debtor, or (ii) the
services giving rise to such Account have not been performed and billed to
the Account Debtor, or
23
(r) Accounts that represent the right to receive progress payments or
other advance xxxxxxxx that are due prior to the completion of performance
by the applicable Loan Party of the subject contract for goods or services.
"Eligible Canadian Accounts": the Eligible Accounts owned by the
Canadian Borrowers and the Qualified Canadian Subsidiary Guarantors.
"Eligible Canadian Inventory": the Eligible Inventory owned by the
Canadian Borrowers and the Qualified Canadian Subsidiary Guarantors.
"Eligible Canadian Rental Fleet": the Eligible Rental Fleet owned by
the Canadian Borrowers and the Qualified Canadian Subsidiary Guarantors.
"Eligible Inventory": the gross dollar value (valued at the lower of
cost or market value) of the Inventory of the Qualified Loan Parties located in
any jurisdiction of the United States or Canada which is readily marketable and
is then currently being held for resale in the ordinary course of business and
conforms in all material respects to the representations and warranties
contained in the Loan Documents, and that are not excluded by virtue of one or
more of the excluding criteria set forth below, Eligible Inventory shall not
include the following:
(a) any supplies (other than raw materials), spare parts, shipping
materials, goods returned or rejected (except to the extent that such
returned or rejected goods continue to conform in all material respects to
the representations and warranties contained in the Loan Documents) by
customers and goods to be returned to suppliers,
(b) any Inventory held on consignment,
(c) any Inventory which has been shipped to a customer, even if on a
consignment or "sale or return" basis,
(d) any Inventory to the extent that a Qualified Loan Party has taken
a reserve, but only to the extent of such reserve,
(e) any Inventory not subject to a valid and perfected first-priority
Lien in favor of the U.S. Collateral Agent or the Canadian Collateral
Agent, as applicable, pursuant to a Security Document (as and to the extent
provided therein (it being understood and agreed that in no event shall any
of the Excluded Assets be deemed to be Eligible Inventory hereunder)), (f)
any Inventory not produced in compliance with the applicable requirements
of the Fair Labor Standards Act,
(g) any fuel, or
(h) any Inventory classified as "dead and overstock inventory" not
already reserved for pursuant to clause (d) above.
"Eligible Rental Fleet": Rental Fleet of the Qualified Loan Parties
held for renting in the ordinary course of the Loan Parties' business, that
complies in all material respects
24
with each of the representations and warranties respecting Eligible Rental Fleet
made in the Loan Documents, and that is not excluded as ineligible by virtue of
one or more of the excluding criteria set forth below. In determining the amount
to be so included, Rental Fleet shall be valued at the lower of cost or market
on a basis consistent with the Loan Parties' historical accounting practices and
shall be net of any unrecorded rebates. An item of Rental Fleet shall not be
included in Eligible Rental Fleet if:
(a) a Loan Party does not have good and valid title thereto,
(b) it is not either (i) located at one of the locations in the United
States or Canada set forth on Schedule D, as the same may be modified from
time to time by notice to the U.S. Administrative Agent, or (ii) on lease
with a customer in the ordinary course of business and located in the
United States or Canada,
(c) it is not subject to a valid and perfected first priority Lien in
favor of the U.S. Collateral Agent or the Canadian Collateral Agent, as
applicable, pursuant to a Security Document; (as and to the extent provided
therein (it being agreed that in no event shall any Excluded Assets be
deemed to be Eligible Rental Fleet hereunder)); provided that this clause
(c) will not apply to Rental Fleet represented by a certificate of title
(such Rental Fleet being subject to clause (h) below); provided, further,
that, it shall not be necessary to identify the Vehicle Identification
Numbers with respect to Rental Fleet located in Canada in any PPSA filings
as a prerequisite for such Rental Fleet to constitute "Eligible Rental
Fleet" hereunder;
(d) it consists of goods rejected by a Loan Party's customers,
(e) it consists of goods that are obsolete, unmerchantable or slow
moving,
(f) it is damaged or defective and (i) is not repairable and (ii) is
classified as "outside" shop unless payables are reserved; provided that,
this clause (f) will not apply to Rental Fleet that is classified as inside
or outside the shop for less than 60 days,
(g) it is not available to rent to customers of a Loan Party in the
ordinary course of business, or
(h) it is U.S. Rental Fleet represented by a certificate of title
unless (i) during the 120-day period following the Closing Date, a Loan
Party has delivered the certificate of title for such Rental Fleet to the
U.S. Collateral Agent (or its agents) and (ii) to the extent necessary to
perfect a security interest in such Rental Fleet, for all periods
thereafter, a Loan Party has caused the certificate of title for such
Rental Fleet to be registered with the applicable Governmental Authority
showing "Deutsche Bank AG, New York Branch, as U.S. Collateral Agent" or
"Deutsche Bank AG, Canada Branch, as Canadian Collateral Agent", as
applicable, (or a trustee or agent reasonably acceptable to the U.S.
Collateral Agent or Canadian Collateral Agent, as applicable) as the sole
lienholder thereon, such that such Rental Fleet is subject to a valid and
perfected first priority Lien in favor of the U.S. Collateral Agent or the
Canadian Collateral Agent, as applicable (or such certificate of title or
the requisite application therefor has been
25
submitted to the applicable Governmental Authority for such registration or
for issuance of such certificate of title as so registered).
"Eligible Unbilled Accounts": Accounts (which are Eligible Accounts
except for their failure to comply with clause (q) of the definition of Eligible
Accounts) (a) which have not been billed but for which services have been
rendered, (b) which have not been billed solely because either (i) the services
were rendered pursuant to a customer agreement which provides for monthly
billing at a date other than month-end, or (ii) the services were rendered
pursuant to a customer agreement which provides for billing at the completion of
the rental term, and such rental term has not yet ended, and (c) which shall be
billed not more than 30 days after such Account is first included on the
Borrowing Base Certificate or otherwise reported to the U.S. Administrative
Agent as Collateral.
"Eligible U.S. Accounts": the Eligible Accounts owned by the U.S.
Borrowers and the Qualified U.S. Subsidiary Guarantors.
"Eligible U.S. Inventory": the Eligible Inventory owned by the U.S.
Borrowers and the Qualified U.S. Subsidiary Guarantors.
"Eligible U.S. Rental Fleet": the Eligible Rental Fleet owned by the
U.S. Borrowers and the Qualified U.S. Subsidiary Guarantors.
"Environmental Costs": any and all costs or expenses (including
attorney's and consultant's fees, investigation and laboratory fees, response
costs, court costs and litigation expenses, fines, penalties, damages,
settlement payments, judgments and awards), of whatever kind or nature, known or
unknown, contingent or otherwise, arising out of, or in any way relating to, any
actual or alleged violation of, noncompliance with or liability under any
Environmental Laws. Environmental Costs include any and all of the foregoing,
without regard to whether they arise out of or are related to any past, pending
or threatened proceeding of any kind.
"Environmental Laws": any and all U.S., Canadian or foreign federal,
state, provincial, territorial, foreign, local or municipal laws, rules, orders,
enforceable guidelines, orders-in-council, regulations, statutes, ordinances,
codes, decrees, and such requirements of any Governmental Authority properly
promulgated and having the force and effect of law or other Requirements of Law
(including common law) regulating, relating to or imposing liability or
standards of conduct concerning protection of human health (as it relates to
exposure to Materials of Environmental Concern) or the environment, as have
been, or now or at any relevant time hereafter are, in effect.
"Environmental Permits": any and all permits, licenses, approvals,
registrations, notifications, exemptions and any other authorization required
under any Environmental Law.
"Equipment": any equipment owned by or leased to the Parent Borrower
or any of its Subsidiaries that is revenue earning equipment, or is classified
as "revenue earning equipment" in the consolidated financial statements of the
Parent Borrower, including any such equipment consisting of (i) backhoes,
dozers, excavators, forklifts, loaders, scissors, tractors, trenchers, trucks
and trailers or other similar equipment, (ii) construction, industrial,
commercial
26
and office equipment, (iii) earthmoving, material handling, compaction, aerial
and electrical equipment, (iv) air compressors, pumps and small tools, and (v)
other personal property.
"Equity Financing": as defined in the Recitals hereto.
"Equity Investors": the Sponsors, the Sellers and each other person
that has made a direct or indirect equity investment in ACNA on the Closing Date
as contemplated in the Recitals hereto.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Eurocurrency Base Rate": with respect to each day during each
Interest Period pertaining to a Eurocurrency Loan, the rate per annum determined
by the U.S. Administrative Agent to be the arithmetic mean (rounded to the
nearest 1/100th of 1%) of the offered rates for deposits in Dollars with a term
comparable to such Interest Period that appears on the Telerate British Bankers
Assoc. Interest Settlement Rates Page (as defined below) at approximately 11:00
A.M., London time, on the second full Business Day preceding the first day of
such Interest Period; provided, however, that if there shall at any time no
longer exist a Telerate British Bankers Assoc. Interest Settlement Rates Page,
"Eurocurrency Base Rate" shall mean, with respect to each day during each
Interest Period pertaining to a Eurocurrency Loan, the rate per annum equal to
the rate at which the U.S. Administrative Agent is offered deposits in Dollars
at or about 10:00 A.M., New York City time, two Business Days prior to the
beginning of such Interest Period in the interbank eurocurrency market where the
eurocurrency and foreign currency and exchange operations in respect of Dollars
are then being conducted for delivery on the first day of such Interest Period
for the number of days of such Interest Period and in an amount comparable to
the amount of its Eurocurrency Loan to be outstanding during such Interest
Period. "Telerate British Bankers Assoc. Interest Settlement Rates Page" shall
mean the display designated as Page 3750 on the Telerate System (or such other
page as may replace such page on such service for the purpose of displaying the
rates at which Dollar deposits are offered by leading banks in the London
interbank deposit market).
"Eurocurrency Loans": Loans the rate of interest applicable to which
is based upon the Eurocurrency Rate.
"Eurocurrency Rate": with respect to each day during each Interest
Period pertaining to a Eurocurrency Loan, a rate per annum determined for such
day in accordance with the following formula (rounded upward to the nearest
1/100th of 1%):
Eurocurrency Base Rate
---------------------------------------
1.00 -Eurocurrency Reserve Requirements
"Eurocurrency Reserve Requirements": for any day as applied to a
Eurocurrency Loan, the aggregate (without duplication) of the rates (expressed
as a decimal fraction) of reserve requirements in effect on such day (including
basic, supplemental, marginal and emergency reserves under any regulations of
the Board or other Governmental Authority having jurisdiction with respect
thereto) dealing with reserve requirements prescribed for eurocurrency funding
27
(currently referred to as "Eurocurrency Liabilities" in Regulation D of the
Board) maintained by a member bank of the Federal Reserve System.
"Event of Default": any of the events specified in Section 9, provided
that any requirement for the giving of notice, the lapse of time, or both, or
any other condition specified in Section 9, has been satisfied.
"Exchange Act": the Securities Exchange Act of 1934, as amended from
time to time.
"Excluded Assets": as defined in the U.S. Guarantee and Collateral
Agreement and the Canadian Security Agreement.
"Extension of Credit": as to any Lender, the making of, or, in the
case of subsection 2.5(d)(ii), participation in, a Loan by such Lender or the
issuance of, or participation in, a Letter of Credit by such Lender.
"Facility": each of the Commitments and the Extensions of Credit made
thereunder.
"Federal Funds Effective Rate": as defined in the definition of the
term "ABR" in this subsection 1.1.
"Financing Lease": any lease of property, real or personal, the
obligations of the lessee in respect of which are required in accordance with
GAAP to be capitalized on a balance sheet of the lessee.
"FIRREA": the Financial Institutions Reform, Recovery and Enforcement
Act of 1989, as amended from time to time.
"first priority": means, with respect to any Lien purported to be
created in any Collateral pursuant to any Security Document, that such Lien is
the most senior Lien to which such Collateral is subject (subject to Permitted
Liens).
"Fiscal Period": means each fiscal month of Holdings and its
Subsidiaries as described on Schedule C.
"Fiscal Year": any period of twelve consecutive months ending on
December 31 of any calendar year.
"Foreign Pension Plan": a registered pension plan which is subject to
applicable pension legislation other than ERISA or the Code, which the Parent
Borrower or a Subsidiary sponsors or maintains, or to which it makes or is
obligated to make contributions.
"Foreign Plan": each Foreign Pension Plan, deferred compensation or
other retirement or superannuation plan, fund, program, agreement, commitment or
arrangement whether oral or written, funded or unfunded, sponsored, established,
maintained or contributed to, or required to be contributed to, or with respect
to which any liability is borne, outside the
00
Xxxxxx Xxxxxx xx Xxxxxxx, by the Parent Borrower or any of its Subsidiaries,
other than any such plan, fund, program, agreement or arrangement sponsored by a
Governmental Authority.
"Foreign Subsidiary": any Subsidiary of the Parent Borrower which is
organized and existing under the laws of any jurisdiction outside of the United
States of America or that is a Foreign Subsidiary Holdco. For the avoidance of
doubt, any Subsidiary of the Parent Borrower which is organized and existing
under the laws of Puerto Rico shall be a Foreign Subsidiary.
"Foreign Subsidiary Holdco": any Subsidiary of the Parent Borrower, so
long as such Subsidiary has no material assets other than securities of one or
more Foreign Subsidiaries and Indebtedness issued by such Foreign Subsidiaries
(or Subsidiaries thereof), and other assets relating to an ownership interest in
any such securities, Indebtedness or Subsidiaries.
"GAAP": with respect to subsection 4.4(c) and the covenants contained
in subsections 8.1 and 8.2 and all defined terms relating thereto and the
defined term "Company Material Adverse Effect", generally accepted accounting
principles in the United States of America in effect on the Closing Date, and,
for all other purposes under this Agreement, generally accepted accounting
principles in the United States of America in effect from time to time.
"GE": General Electric Capital Corporation.
"General Intangibles": "general intangibles" (as such term is defined
in Article 9 of the UCC or (to the extent governed thereby) any similar
provision of the PPSA), including payment intangibles, contract rights, rights
to payment, rights arising under common law, statutes, or regulations, choses or
things in action, goodwill, patents, trade names, trade secrets, trademarks,
servicemarks, copyrights, blueprints, drawings, purchase orders, customer lists,
monies due or recoverable from pension funds, route lists, rights to payment and
other rights under any royalty or licensing agreements, infringement claims,
computer programs, information contained on computer disks or tapes, software,
literature, reports, catalogs, insurance premium rebates, tax refunds, and tax
refund claims, and any and all supporting obligations in respect thereof, and
any other personal property other than Accounts, Deposit Accounts, goods,
Investment Property, and Negotiable Collateral.
"Goods": goods as such term is defined in Article 9 of the UCC or (to
the extent governed thereby) any similar provision of the PPSA.
"Governmental Authority": any nation or government, any state or other
political subdivision thereof and any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government,
including the European Union.
"Guarantee Obligation": as to any Person (the "guaranteeing person"),
any obligation of (a) the guaranteeing person or (b) another Person (including
any bank under any letter of credit) to induce the creation of which the
guaranteeing person has issued a reimbursement, counterindemnity or similar
obligation, in either case guaranteeing or in effect guaranteeing any
Indebtedness, leases, dividends or other obligations (the "primary obligations")
of any other third Person (the "primary obligor") in any manner, whether
directly or indirectly, including any such obligation of the guaranteeing
person, whether or not contingent, (i) to
29
purchase any such primary obligation or any property constituting direct or
indirect security therefor, (ii) to advance or supply funds (A) for the purchase
or payment of any such primary obligation or (B) to maintain working capital or
equity capital of the primary obligor or otherwise to maintain the net worth or
solvency of the primary obligor, (iii) to purchase property, securities or
services primarily for the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make payment of such primary
obligation or (iv) otherwise to assure or hold harmless the owner of any such
primary obligation against loss in respect thereof; provided, however, that the
term Guarantee Obligation shall not include endorsements of instruments for
deposit or collection in the ordinary course of business. The amount of any
Guarantee Obligation of any guaranteeing person shall be deemed to be the lower
of (a) an amount equal to the stated or determinable amount of the primary
obligation in respect of which such Guarantee Obligation is made and (b) the
maximum amount for which such guaranteeing person may be liable pursuant to the
terms of the instrument embodying such Guarantee Obligation, unless such primary
obligation and the maximum amount for which such guaranteeing person may be
liable are not stated or determinable, in which case the amount of such
Guarantee Obligation shall be such guaranteeing person's maximum reasonably
anticipated liability in respect thereof as determined by the Parent Borrower in
good faith.
"Guaranteed Creditors": each Administrative Agent, each Collateral
Agent, each Issuing Lender, the Lenders and each party (other than any Loan
Party) party to an Interest Rate Protection Agreement or Permitted Hedging
Agreement to the extent such party constitutes a Secured Party under the
Security Documents.
"Guarantor Obligations": as defined in the U.S. Guarantee and
Collateral Agreement as though Holdings were a Guarantor thereunder.
"Guarantors": the collective reference to Holdings, the U.S. Borrowers
(solely with respect to the obligations of the Canadian Borrowers hereunder and
under each other Loan Document) and each Subsidiary of the Parent Borrower
(other than (a) a Borrower, (b) any Foreign Subsidiary (excluding any Canadian
Subsidiary Guarantor) and (c) any Subsidiary of a Foreign Subsidiary (excluding
any Canadian Subsidiary Guarantor)), which is from time to time party to the
U.S. Guarantee and Collateral Agreement or the Canadian Guarantee Agreement, as
applicable; individually, a "Guarantor".
"Holdings": as defined in the Preamble hereto.
"Immaterial Subsidiary": any Subsidiary that (i) had less than
$5,000,000 of annual revenues and less than $5,000,000 of assets and (ii) has
been designated as such by the Parent Borrower in a written notice delivered to
the U.S. Administrative Agent (other than any such Subsidiary as to which the
Parent Borrower has revoked such designation by written notice to the U.S.
Administrative Agent); provided that at no time shall the Immaterial
Subsidiaries so designated by the Parent Borrower have annual revenues or assets
in excess of $10,000,000 in the aggregate.
"Incremental Commitment Agreement": as defined in subsection
2.7(b)(i).
"Incremental Term Loan": as defined in subsection 2.1(c).
30
"Incremental Term Loan Borrowing Date": for any Incremental Term Loan,
the date specified as such in the respective Incremental Commitment Agreement
pursuant to which such Incremental Term Loans are to be made.
"Incremental Term Loan Commitment": for each Incremental Term Loan
Lender, the commitment of such Incremental Term Loan Lender to make Incremental
Term Loans pursuant to subsection 2.7 on a given Incremental Term Loan Borrowing
Date, as such commitment (x) is set forth in the respective Incremental
Commitment Agreement delivered pursuant to subsection 2.7(b) or (y) may be
terminated pursuant to subsections 2.3 or Section 9.
"Incremental Term Loan Lender": each Lender with an Incremental Term
Loan Commitment or outstanding Incremental Term Loans.
"Incremental Term Loan Note": as defined in subsection 2.1(c).
"Indebtedness": of any Person at any date, (a) all indebtedness of
such Person for borrowed money or for the deferred purchase price of property or
services (other than trade liabilities incurred in the ordinary course of
business and payable in accordance with customary practices), (b) any other
indebtedness of such Person which is evidenced by a note, bond, debenture or
similar instrument, (c) all obligations of such Person under Financing Leases,
(d) all obligations of such Person in respect of letters of credit, bankers'
acceptances or bank guarantees issued or created for the account of such Person,
(e) for purposes of subsection 8.2 and subsection 9(e) only, all obligations of
such Person in respect of interest rate protection agreements, interest rate
futures, interest rate options, interest rate caps and any other interest rate
hedge arrangements, and (f) all indebtedness or obligations of the types
referred to in the preceding clauses (a) through (e) to the extent secured by
any Lien on any property owned by such Person even though such Person has not
assumed or otherwise become liable for the payment thereof.
"Individual Canadian RCF Lender Exposure": of any Canadian RCF Lender,
at any time, the sum of (a) the aggregate principal amount of all Canadian RCF
Loans made by such Canadian RCF Lender (using the Dollar Equivalent thereof in
the case of any such Canadian RCF Loans denominated in Canadian Dollars) and
then outstanding and (b) the sum of such Canadian RCF Lender's Canadian RCF
Commitment Percentage in each then outstanding Canadian RCF Letter of Credit
multiplied by the sum of the Stated Amount of the respective Canadian RCF
Letters of Credit and any Unpaid Drawings (in each case using the Dollar
Equivalent thereof in the case of Canadian RCF Letters of Credit denominated in
Canadian Dollars) at such time.
"Individual Lender Exposure": of any RCF Lender, at any time, the sum
of such Lender's (a) Individual U.S. RCF Lender Exposure and (b) Individual
Canadian RCF Lender Exposure.
"Individual U.S. RCF Lender Exposure": of any U.S. RCF Lender, at any
time, the sum of (a) the aggregate principal amount of all U.S. RCF Loans made
by such U.S. RCF Lender and then outstanding, (b) the sum of such U.S. RCF
Lender's U.S. RCF Commitment Percentage in each then outstanding U.S. RCF Letter
of Credit multiplied by the sum of the
31
Stated Amount of the then outstanding U.S. RCF Letters of Credit and any Unpaid
Drawings at such time and (c) such RCF Lender's U.S. RCF Commitment Percentage
of the Swing Line Loans then outstanding.
"Initial Term Loan": as defined in subsection 2.1(a).
"Initial Term Loan Commitment": with respect to each Term Loan Lender,
the commitment of such Term Loan Lender hereunder to make Initial Term Loans to
the Parent Borrower and RSC in the principal amount set forth opposite its name
on Schedule A hereto. The original aggregate amount of the Initial Term Loan
Commitments on the Closing Date is $250,000,000.
"Initial Term Loan Note": as defined in subsection 2.1(b).
"Insolvency": with respect to any Multiemployer Plan, the condition
that such Plan is insolvent within the meaning of Section 4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Intellectual Property": all United States and foreign patents, patent
applications, trademarks, trademark applications, trade names, copyrights,
technology, know-how and processes.
"Intercreditor Agreement": the Intercreditor Agreement dated as of the
date hereof among the U.S. Collateral Agent, the collateral agent under the
Second-Lien Term Loan Credit Agreement, and certain of the Loan Parties, as the
same may be amended, modified and/or supplemented from time to time in
accordance with the terms thereof.
"Interest Payment Date": (a) as to any ABR Loan, the last day of each
March, June, September and December to occur while such Loan is outstanding, and
the final maturity date of such Loan, (b) as to any Eurocurrency Loan having an
Interest Period of three months or less, the last day of such Interest Period,
and (c) as to any Eurocurrency Loan having an Interest Period longer than three
months, (i) each day which is three months, or a whole multiple thereof, after
the first day of such Interest Period and (ii) the last day of such Interest
Period.
"Interest Period": with respect to any Eurocurrency Loan:
(a) initially, the period commencing on the borrowing or conversion
date, as the case may be, with respect to such Eurocurrency Loan and ending
one, two, three or six months (or nine or twelve months, to the extent
agreed to by all Lenders of the respective Tranche of such Loan)
thereafter, as selected by the applicable Borrower in its notice of
borrowing or notice of conversion, as the case may be, given with respect
thereto; and
(b) thereafter, each period commencing on the last day of the next
preceding Interest Period applicable to such Eurocurrency Loan and ending
one, two, three or six months (or nine or twelve months, to the extent
agreed to by all Lenders of the respective Tranche of such Loan)
thereafter, as selected by the applicable Borrower by irrevocable
32
notice to the U.S. Administrative Agent or the Canadian Administrative
Agent, as applicable, not less than three Business Days prior to the last
day of the then current Interest Period with respect thereto;
provided that all of the foregoing provisions relating to Interest Periods
are subject to the following:
(i) if any Interest Period would otherwise end on a day that is
not a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless the result of such extension would be
to carry such Interest Period into another calendar month in which
event such Interest Period shall end on the immediately preceding
Business Day;
(ii) any Interest Period that would otherwise extend beyond the
respective Maturity Date for any Loans shall (for all purposes other
than subsection 4.12) end on the respective Maturity Date for such
Loans;
(iii) any Interest Period that begins on the last Business Day of
a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of a calendar month; and
(iv) the applicable Borrower shall select Interest Periods so as
not to require a scheduled payment of any Eurocurrency Loan during an
Interest Period for such Loan.
"Interest Rate Protection Agreement": any interest rate protection
agreement, interest rate future, interest rate option, interest rate cap or
collar or other interest rate hedge arrangement in form and substance, and for a
term, reasonably satisfactory to the U.S. Administrative Agent, to or under
which the Parent Borrower or any of its Subsidiaries is or becomes a party or a
beneficiary.
"Inventory": inventory as such term is defined in Article 9 of the UCC
or (to the extent governed thereby) any similar provision of the PPSA.
"Investment": as defined in subsection 8.8.
"Investment Company Act": the Investment Company Act of 1940, as
amended from time to time.
"Investment Property": "investment property" (as such term is defined
in Article 9 of the UCC) or (to the extent governed thereby) the PPSA, and any
and all supporting obligations in respect thereof.
"Issuing Lender": any Canadian RCF Issuing Lender and any U.S. RCF
Issuing Lender.
"Judgment Conversion Date": as defined in subsection 11.8.
33
"Judgment Currency": as defined in subsection 11.8.
"L/C Fee Payment Date": with respect to any Letter of Credit, the last
day of each March, June, September and December to occur after the date of
issuance thereof to and including the first such day to occur on or after the
date of expiry thereof; provided that if any L/C Fee Payment Date would
otherwise occur on a day that is not a Business Day, such L/C Fee Payment Date
shall be the immediately preceding Business Day.
"L/C Fees": as defined in subsection 3.3.
"L/C Obligations": the U.S. RCF L/C Obligations and the Canadian RCF
L/C Obligations.
"L/C Participants": the U.S. RCF L/C Participants and the Canadian RCF
L/C Participants.
"L/C Request": a letter of credit request in the form of Exhibit D
attached hereto or, in such other form as the respective Issuing Lender may
specify from time to time, requesting the Issuing Lender to issue a Letter of
Credit.
"Lead Arrangers": DBSI and CGMI, as Joint Lead Arrangers and Joint
Bookrunners.
"Lenders": the several banks and other financial institutions from
time to time parties to this Agreement together with, in each case, any
affiliate of any such bank or financial institution through which such bank or
financial institution elects, by notice to the U.S. Administrative Agent or the
Canadian Administrative Agent, as applicable, and the Borrowers, to make any
Term Loans, RCF Loans, Swing Line Loans or Letters of Credit available to any
Borrower, provided that for all purposes of voting or consenting with respect to
(a) any amendment, supplementation or modification of any Loan Document, (b) any
waiver of any of the requirements of any Loan Document or any Default or Event
of Default and its consequences or (c) any other matter as to which a Lender may
vote or consent pursuant to subsection 11.1 hereof, the bank or financial
institution making such election shall be deemed the "Lender" rather than such
affiliate, which shall not be entitled to so vote or consent.
"Letters of Credit" or "L/Cs": the U.S. RCF Letters of Credit and the
Canadian RCF Letters of Credit.
"Lien": any mortgage, pledge, hypothecation, assignment, security
deposit arrangement, encumbrance, lien (statutory or other), charge or other
security interest or any preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever (including, without
limitation, any conditional sale or other title retention agreement and any
Financing Lease having substantially the same economic effect as any of the
foregoing).
"Liquidity Event": the determination by the U.S. Administrative Agent
that Available RCF Commitments on any day are less than $170,000,000; provided
that the U.S. Administrative Agent has notified the Parent Borrower thereof; and
provided, further, that if the occurrence of a Liquidity Event shall be due
solely to a fluctuation in currency exchange rates
34
occurring within the two Business Day period immediately preceding such
occurrence, and one or more of the Borrowers, within two Business Days following
receipt of such notice from the U.S. Administrative Agent, repay Loans in an
amount such that the Available RCF Commitments following such payment exceeds
$170,000,000, a Liquidity Event shall be deemed not to have occurred. The
occurrence of a Liquidity Event shall be deemed continuing notwithstanding that
the Available RCF Commitments may thereafter exceed the amount set forth in the
preceding sentence unless and until the Available RCF Commitments exceed
$170,000,000 for 30 consecutive days, in which event a Liquidity Event shall no
longer be deemed to be continuing.
"Loan": a Term Loan, RCF Loan or a Swing Line Loan, as the context
shall require; collectively, the "Loans".
"Loan Documents": this Agreement, any Notes, any B/A Instruments, the
L/C Requests, the Intercreditor Agreement, the U.S. Guarantee and Collateral
Agreement, the Canadian Guarantee Agreement, the Canadian Security Agreement,
any other Security Documents, any Incremental Commitment Agreement and any
Borrower Joinder Agreement, each as amended, supplemented, waived or otherwise
modified from time to time.
"Loan Parties": Holdings, each Borrower and each other Subsidiary of
Holdings that is a party to a Loan Document; individually, a "Loan Party".
"Management Investors": the collective reference to the officers,
directors, employees and other members of the management of any Parent Entity,
the Parent Borrower or any of their Subsidiaries, or family members or relatives
thereof or trusts for the benefit of any of the foregoing, who at any particular
date shall beneficially own or have the right to acquire, directly or
indirectly, common stock of Holdings or any Parent Entity.
"Management Subscription Agreements": one or more stock subscription,
stock option, grant or other agreements which have been or may be entered into
between Holdings or any Parent Entity and one or more Management Investors (or
any of their heirs, successors, assigns, legal representatives or estates), with
respect to the issuance to and/or acquisition, ownership and/or disposition by
any of such parties of common stock of Holdings or any Parent Entity, or
options, warrants, units or other rights in respect of common stock of Holdings
or any Parent Entity, any agreements entered into from time to time by
transferees of any such stock, options, warrants or other rights in connection
with the sale, transfer or reissuance thereof, and any assumptions of any of the
foregoing by third parties, as amended, supplemented, waived or otherwise
modified from time to time.
"Mandatory RCF Loan Borrowing": as defined in subsection 2.5(c).
"Margin Regulations": as defined in subsection 6.1(f).
"Margin Stock": as defined in Regulation U.
"Material Adverse Effect": a material adverse effect on (a) the
business, operations, property or condition (financial or otherwise) of Holdings
and its Subsidiaries taken as a whole or (b) the validity or enforceability as
to any Loan Party party thereto of this
35
Agreement or any of the other Loan Documents or the rights or remedies of the
Administrative Agents, the Collateral Agents and the Lenders under the Loan
Documents or with respect to the Collateral comprising the Borrowing Base, in
each case taken as a whole.
"Material Subsidiaries": Subsidiaries of Holdings constituting,
individually or in the aggregate (as if such Subsidiaries constituted a single
Subsidiary), a "significant subsidiary" in accordance with Rule 1-02 under
Regulation S-X.
"Materials of Environmental Concern": any hazardous or toxic
substances or materials or wastes defined, listed, or regulated as such in or
under, or which may give rise to liability under, any applicable Environmental
Law, including gasoline, petroleum (including crude oil or any fraction
thereof), petroleum products or by-products, asbestos, polychlorinated biphenyls
and urea-formaldehyde insulation.
"Maturity Date": with respect to the relevant Tranche of Loans, the
Term Loan Maturity Date or the RCF Maturity Date, as the case may be.
"Xxxxx'x": as defined in the definition of "Cash Equivalents" in this
subsection 1.1.
"Mortgaged Properties": any real property owned in fee by Holdings or
any of its Subsidiaries which is encumbered (or required to be encumbered) by a
Mortgage pursuant to the terms hereof.
"Mortgages": each of the mortgages, deeds of trust, deeds to secure
debt and similar security instruments, if any, executed and delivered by any
Loan Party to either Administrative Agent, substantially in a form reasonably
satisfactory to the applicable Administrative Agent and the Parent Borrower, as
the same may be amended, supplemented, waived or otherwise modified from time to
time.
"Multiemployer Plan": a Plan which is a multiemployer plan as defined
in Section 4001(a)(3) of ERISA.
"Negotiable Collateral": letters of credit, letter of credit rights,
instruments, promissory notes, drafts, documents, and chattel paper (including
electronic chattel paper and tangible chattel paper), and any and all supporting
obligations in respect thereof.
"Net Cash Proceeds": with respect to any Asset Sale (including any
Sale and Leaseback Transaction), any Recovery Event, or the issuance of any debt
securities or any borrowings by Holdings or any of its Subsidiaries, an amount
equal to the gross proceeds in cash and Cash Equivalents of such Asset Sale,
Recovery Event, sale, issuance or borrowing, net of (a) reasonable attorneys'
fees, accountants' fees, brokerage, consultant and other customary fees,
underwriting commissions and other reasonable fees and expenses actually
incurred in connection with such Asset Sale, Recovery Event, sale, issuance or
borrowing, (b) taxes paid or reasonably estimated to be payable as a result
thereof, (c) appropriate amounts provided or to be provided by Holdings or any
of its Subsidiaries as a reserve, in accordance with GAAP, with respect to any
liabilities associated with such Asset Sale or Recovery Event and retained by
Holdings or any such Subsidiary after such Asset Sale or Recovery Event and
other appropriate
36
amounts to be used by Holdings or any of its Subsidiaries to discharge or pay on
a current basis any other liabilities associated with such Asset Sale or
Recovery Event, (d) in the case of an Asset Sale, Recovery Event or Sale and
Leaseback Transaction of or involving an asset subject to a Lien securing any
Indebtedness, payments made and installment payments required to be made to
repay such Indebtedness, including payments in respect of principal, interest
and prepayment premiums and penalties, (e) in the case of any Asset Sale,
Recovery Event or Sale and Leaseback Transaction of or involving an asset of any
Foreign Subsidiary that is not a Loan Party, any amount which may not be applied
as provided in subsection 4.4(b) pursuant to any applicable restrictions under
the terms of any Indebtedness of any Foreign Subsidiary that is not a Loan Party
and (f) in the case of any Asset Sale, any portion of the proceeds thereof
attributable to the Disposition of revenue earning equipment as part of such
Asset Sale.
"Net Orderly Liquidation Value": the orderly liquidation value (net of
costs and expenses estimated to be incurred in connection with such liquidation)
of the Loan Parties' Rental Fleet or Eligible Inventory, as the case may be,
that is estimated to be recoverable in an orderly liquidation of such Rental
Fleet or Eligible Inventory, as the case may be, with such value to be
calculated based upon a percentage of the net book value thereof, such
percentage to be as determined from time to time by reference to the most recent
appraisal completed by a qualified third-party appraisal company (approved by
the U.S. Administrative Agent in its Permitted Discretion in consultation with
the Parent Borrower) delivered to the U.S. Administrative Agent.
"New York Process Agent": as defined in subsection 11.13(b).
"Non BA Lender": a Lender that cannot or does not as a matter of
policy issue Bankers' Acceptances.
"Non-Canadian Affiliate": an Affiliate or office of a Canadian RCF
Lender or Canadian RCF Issuing Lender that is an entity (or office thereof) as
shall allow payments by any U.S. Borrower or Canadian Xxxxx made under this
Agreement and any Notes with respect to any Extensions of Credit made to such
Borrower by such entity or office to be made without withholding of any
Non-Excluded Taxes.
"Non-Consenting Lender": as defined in subsection 11.1(d).
"Non-Defaulting Lender": Any Lender other than a Defaulting Lender.
"Non-Excluded Taxes": as defined in subsection 4.11(a).
"Non-Guarantor Subsidiary": any Subsidiary of the Parent Borrower that
is neither a Borrower nor a Subsidiary Guarantor.
"Notes": the collective reference to the Initial Term Loan Notes, the
RCF Notes, the Swing Line Note and the Incremental Term Loan Notes (if any).
"Oak Hill": as defined in the Recitals hereto.
"Obligation Currency": as defined in subsection 11.8.
37
"Obligations": all obligations (including guaranty obligations) of
every nature of each Loan Party from time to time owed to the Agents (including
former Agents), the Lenders or any of them, under any Loan Document, whether for
principal, premium, interest (including interest accruing after the filing of a
petition in bankruptcy or a similar proceeding with respect to such Loan Party),
fees, expenses, indemnification (including, without limitation, pursuant to
subsection 11.5) or otherwise.
"Obligor": any purchaser of goods or services or other Person
obligated to make payment to the Parent Borrower or any of its Subsidiaries
(other than any Subsidiary that is not a Loan Party) in respect of a purchase of
such goods or services.
"Parent Borrower": as defined in the Preamble hereto.
"Parent Entity": Holdings and any other company that is a Subsidiary
of either of the Sponsors or their respective Sponsor Affiliates (or, if the
Sponsors' and their respective Sponsor Affiliates' equity interests were
aggregated, that would be a Subsidiary of such Persons acting together) of which
Holdings is a Subsidiary.
"Parent Entity Expenses": expenses, taxes and other amounts incurred
or payable by any Parent Entity in respect of which the Parent Borrower is
permitted to make dividends and other payments pursuant to subsection 8.7.
"Participant": as defined in subsection 11.6(c).
"Payment Conditions": at any time of determination, means that (a) no
Default or Event of Default then exists or would arise as a result of making the
subject Specified Payment, (b) Available RCF Commitments are no less than
$250,000,000 immediately after giving effect to the making of such Specified
Payment, (c) immediately after giving effect to the making of such Specified
Payment, the Parent Borrower is in compliance with the covenants set forth in
subsections 8.1(a) and 8.1(b) as of the end of the most recently ended four
fiscal quarter period after giving pro forma effect to such Specified Payment as
if such Specified Payment (if applicable to such calculation) had been made as
of the first day of such period, whether or not such covenants are otherwise
then applicable to the Parent Borrower under such subsections at such time and
(d) if the aggregate amount of Specified Payments is greater than $50,000,000
(after giving effect to the then proposed Specified Payment) in the 30-day
period preceding (and including) the date of the proposed payment, at least one
Business Day prior to making the proposed Specified Payment or any further
Specified Payments, the Borrowers shall have delivered projections to the U.S.
Administrative Agent reasonably satisfactory to the U.S. Administrative Agent
demonstrating that the projected average Available RCF Commitments on the last
day of each fiscal month during the six-month period immediately succeeding any
such Specified Payment (as determined in good faith by the Parent Borrower and
certified by a Responsible Officer) shall be no less than the amount specified
in clause (b) of this definition that is applicable to the type of Specified
Payment that is proposed to be made, provided that if the aggregate amount of
Specified Payments is greater than $50,000,000 (after giving effect to the then
proposed Specified Payment) in the 30-day period preceding (and including) the
date of the proposed payment, prior to making the proposed Specified Payment or
any further Specified Payments, the Parent Borrower shall have delivered to the
Administrative Agent one Business
38
Day prior to the proposed action a certificate executed by a Responsible Officer
certifying compliance with the requirements of this clauses (a), (b) and (c) of
this definition, and containing the calculations (in reasonable detail) required
by preceding clause (b) and (c) hereof.
"Payment Office": the office of the U.S. Administrative Agent located
at 00 Xxxx Xxxxxx, Xxx Xxxx, XX 00000 or such other office as the U.S.
Administrative Agent may hereafter designate in writing as such to the other
parties hereto; provided that in the case of all payments of principal and
interest and/or other amounts owing with respect to Canadian RCF Loans, Canadian
RCF Letters of Credit or any Incremental Term Loans made to the Canadian
Borrowers, "Payment Office" shall mean the office of the Canadian Administrative
Agent located at 000 Xxx Xxxxxx, Xxxxx 0000 Xxxxxxxx Xxxxx Xxxx, Xxx 000,
Xxxxxxx, Xxxxxxx, Xxxxxx X0X.
"PBGC": the Pension Benefit Guaranty Corporation established pursuant
to Subtitle A of Title IV of ERISA (or any successor thereto).
"Permitted Cure Securities": common equity securities of Holdings or
any Parent Entity, or other equity securities of Holdings or any Parent Entity
that do not constitute Disqualified Capital Stock.
"Permitted Discretion": the commercially reasonable judgment of the
U.S. Administrative Agent or the Canadian Administrative Agent, as applicable,
exercised in good faith in accordance with customary business practices for
comparable asset-based lending transactions, as to any factor which such Agent
reasonably determines: (a) will or reasonably could be expected to adversely
affect in any material respect the value of any Eligible Rental Fleet, Eligible
Accounts, Eligible Unbilled Accounts or Eligible Inventory, the enforceability
or priority of the applicable Agent's Liens thereon or the amount which any
Agent, the Lenders or any Issuing Lender would be likely to receive (after
giving consideration to delays in payment and costs of enforcement) in the
liquidation of such Eligible Rental Fleet, Eligible Accounts, Eligible Unbilled
Accounts or Eligible Inventory or (b) is evidence that any collateral report or
financial information delivered to such Agent by any Person on behalf of the
applicable Borrower is incomplete, inaccurate or misleading in any material
respect. In exercising such judgment, such Agent may consider, without
duplication, such factors already included in or tested by the definition of
Eligible Rental Fleet, Eligible Accounts, Eligible Unbilled Accounts or Eligible
Inventory, as well as any of the following: (i) changes after the Closing Date
in any material respect in demand for, pricing of, or product mix of Rental
Fleet; (ii) changes after the Closing Date in any material respect in any
concentration of risk with respect to Accounts; and (iii) any other factors
arising after the Closing Date that change in any material respect the credit
risk of lending to the Borrowers on the security of the Eligible Rental Fleet,
Eligible Accounts, Eligible Unbilled Accounts or Eligible Inventory.
"Permitted Hedging Arrangement": as defined in subsection 8.17.
"Permitted Holders": (a) any of Ripplewood, Oak Hill and any of their
respective Affiliates; (b) any investment fund or vehicle managed, sponsored or
advised by Ripplewood, Oak Hill or any Affiliate thereof, and any Affiliate of
or successor to any such investment fund or vehicle; (c) for purposes of the
definition of "Change of Control" only, any Equity Investor
39
(other than those described in clauses (a) and (b) above) and the Management
Investors; provided that any Voting Stock of Holdings or any other Parent
Entity, as applicable, held by such Equity Investors and Management Investors
(taken together) in excess of 15% of the total voting power of all outstanding
Voting Stock of Holdings or the applicable Parent Entity shall be deemed not to
be held by a Permitted Holder for the purposes of determining whether a Change
of Control has occurred; and (d) any Person while acting in the capacity of an
underwriter in connection with a public or private offering of Capital Stock of
Holdings or any other Parent Entity, in the case of preceding clauses (a) and
(b), other than any of either Sponsor's portfolio companies or any entity
controlled by any such portfolio company.
"Permitted Liens": as defined in subsection 8.3.
"Person": an individual, partnership, corporation, limited liability
company, business trust, joint stock company, trust, unincorporated association,
joint venture, Governmental Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan which is
covered by ERISA and in respect of which Holdings or a Commonly Controlled
Entity is an "employer" as defined in Section 3(5) of ERISA.
"PPSA": the Personal Property Security Act (Alberta) (or any successor
statute) or similar legislation of any other Canadian jurisdiction, including
the Civil Code of Quebec, the laws of which are required by such legislation to
be applied in connection with the issue, perfection, enforcement, opposability,
validity or effect of security interests.
"Pricing Grid": with respect to (a) RCF Loans and Swing Line Loans:
Applicable
Margin for RCF
Applicable Loans
Margin for RCF Applicable Maintained as
Loans Margin for RCF Eurocurrency
Maintained as Loans Loans and
ABR Rate ABR Maintained as Bankers' Applicable
Consolidated Loans and Swing Canadian Prime Acceptance Margin for BA
Leverage Ratio Line Loans Rate ABR Loans Loans Fees
-------------- --------------- -------------- -------------- ---------------
Greater than or 1.00% 1.00% 2.00% 2.00%
equal to 4.50:1.00
Greater than or 0.75% 0.75% 1.75% 1.75%
equal to 3.25:1.00
but less
than 4.50:1.00
Less than 3.25:1.00 0.50% 0.50% 1.50% 1.50%
40
Applicable
Margin for RCF
Applicable Loans
Margin for RCF Applicable Maintained as
Loans Margin for RCF Eurocurrency
Maintained as Loans Loans and
ABR Rate ABR Maintained as Bankers' Applicable
Consolidated Loans and Swing Canadian Prime Acceptance Margin for BA
Leverage Ratio Line Loans Rate ABR Loans Loans Fees
-------------- --------------- -------------- -------------- ---------------
Each determination of the Consolidated Leverage Ratio pursuant to the
Pricing Grid shall be made in a manner consistent with the determination thereof
pursuant to subsection 8.1; and
(b) RCF Commitments:
Average RCF Loan Applicable Commitment
Utilization Fee Rate
---------------- ---------------------
Equal to or Greater than 50% 0.250%
Less than 50% 0.375%
"Prime Rate": as defined in the definition of the term "ABR" in this
subsection 1.1.
"Qualified Canadian Subsidiary Guarantor": each Canadian Subsidiary
Guarantor that is a Wholly Owned Subsidiary of the Parent Borrower.
"Qualified Loan Parties": each U.S. Borrower, each Canadian Borrower
and each Qualified Subsidiary Guarantor, but in any event shall not include
Canadian Xxxxx.
"Qualified Subsidiary Guarantor": each Qualified U.S. Subsidiary
Guarantor and each Qualified Canadian Subsidiary Guarantor.
"Qualified U.S. Subsidiary Guarantor": each U.S. Subsidiary Guarantor
that is a Wholly Owned Subsidiary of the Parent Borrower.
"RCF Commitment Period": the period from the Closing Date until the
date the RCF Commitments terminate hereunder.
"RCF Commitments": as to any RCF Lender, its U.S. RCF Commitment and
its Canadian RCF Commitment. The original amount of the aggregate RCF
Commitments of the RCF Lenders is $1,450,000,000.
"RCF Lender": any Lender having an RCF Commitment hereunder and/or a
RCF Loan outstanding hereunder.
41
"RCF Loan": each U.S. RCF Loan and each Canadian RCF Loan.
"RCF Maturity Date": November 30, 2011.
"RCF Note": as defined in subsection 2.2(e).
"Recapitalization": as defined in the Recitals hereto.
"Recapitalization Agreement": as defined in the Recitals hereto.
"Recapitalization Documents": the Recapitalization Agreement and each
other document or agreement relating to the Recapitalization as the same may be
amended, modified and/or supplemented from time to time in accordance with the
terms hereof and thereof.
"Recapitalized Business": RSC and RSC Canada.
"Recovery Event": any settlement of or payment in respect of any
property or casualty insurance claim or any condemnation proceeding relating to
any asset of Holdings or any of its Subsidiaries giving rise to Net Cash
Proceeds to Holdings or such Subsidiary, as the case may be, in excess of
$10,000,000, to the extent that such settlement or payment does not constitute
reimbursement or compensation for amounts previously paid by Holdings or any of
its Subsidiaries in respect of such casualty or condemnation.
"Refinance": with respect to any then outstanding Indebtedness, the
issuance of Indebtedness issued or given in exchange for, or the proceeds of
which are used to, extend, refinance, renew, replace, substitute or refund such
theretofore outstanding Indebtedness.
"Refunded Swing Line Loans": as defined in subsection 2.5(c).
"Register": as defined in subsection 11.6(b)(iv).
"Regulation S-X": Regulation S-X promulgated by the Securities and
Exchange Commission, as in effect on the Closing Date.
"Regulation T": Regulation T of the Board as in effect from time to
time.
"Regulation U": Regulation U of the Board as in effect from time to
time.
"Regulation X": Regulation X of the Board as in effect from time to
time.
"Reimbursement Obligations": the obligation of the applicable Borrower
to reimburse the applicable Issuing Lender pursuant to subsection 3.5(a) for
amounts drawn under the applicable Letters of Credit.
"Reinvested Amount": with respect to any Asset Sale permitted by
subsection 8.6(h) or Recovery Event, that portion of the Net Cash Proceeds
thereof (which portion shall not exceed, with respect to any Asset Sale
occurring on or after the Closing Date (but not any Recovery Event),
$125,000,000 minus the aggregate Reinvested Amounts with respect to all such
Asset Sales on or after the Closing Date) as shall, according to a certificate
of
42
a Responsible Officer of the Parent Borrower delivered to the U.S.
Administrative Agent within 30 days of such Asset Sale or Recovery Event, be
reinvested in the business of the Parent Borrower and its Subsidiaries in a
manner consistent with the requirements of subsection 8.16 and the other
provisions hereof within 180 days of the receipt of such Net Cash Proceeds with
respect to any such Asset Sale or Recovery Event or, if such reinvestment is in
a project authorized by the board of directors of RSC or any Parent Entity that
will take longer than such 180 days to complete, the period of time necessary to
complete such project; provided that (a) if any such certificate of a
Responsible Officer is not delivered to the U.S. Administrative Agent on the
date of such Asset Sale or Recovery Event, subject to the terms of the
Intercreditor Agreement, any Net Cash Proceeds of such Asset Sale or Recovery
Event shall be immediately (i) deposited in a cash collateral account
established at the applicable Administrative Agent to be held as collateral in
favor of such Administrative Agent for the benefit of the applicable Lenders on
terms reasonably satisfactory to the U.S. Administrative Agent or the Canadian
Administrative Agent, as applicable, and shall remain on deposit in such cash
collateral account until such certificate of a Responsible Officer is delivered
to the U.S. Administrative Agent or (ii) used to make a prepayment of the RCF
Loans in accordance with subsection 4.4(a); provided that, notwithstanding
anything in this Agreement to the contrary, (a) no Borrower may request any
Extension of Credit under the U.S. RCF Commitments or Canadian RCF Commitments
that would reduce the aggregate amount of the Available U.S. RCF Commitments or
Available Canadian RCF Commitments, respectively, to an amount that is less than
the amount of any such prepayment until such certificate of a Responsible
Officer is delivered to the U.S. Administrative Agent and (b) any Net Cash
Proceeds not so reinvested by the date required pursuant to the terms of this
definition shall be utilized on such day to prepay the Loans pursuant to
subsection 4.4(b).
"Related Taxes": (x) any taxes, charges or assessments, including but
not limited to sales, use, transfer, rental, ad valorem, value-added, stamp,
property, consumption, franchise, license, capital, net worth, gross receipts,
excise, occupancy, intangibles or similar taxes, charges or assessments (other
than federal, state or local taxes measured by income and federal, state or
local withholding imposed by any government or other taxing authority on
payments made by Holdings or any Parent Entity other than to Holdings or another
Parent Entity), required to be paid by Holdings or any Parent Entity by virtue
of its being incorporated or having Capital Stock outstanding (but not by virtue
of owning stock or other equity interests of any corporation or other entity
other than the Parent Borrower, any of its Subsidiaries, Holdings or any Parent
Entity), or being a holding company parent of the Parent Borrower, any of its
Subsidiaries, Holdings or any Parent Entity or receiving dividends from or other
distributions in respect of the Capital Stock of the Parent Borrower, any of its
Subsidiaries, Holdings or any Parent Entity, or having guaranteed any
obligations of the Parent Borrower or any Subsidiary thereof, or having made any
payment in respect of any of the items for which the Parent Borrower or any of
its Subsidiaries is permitted to make payments to Holdings or any Parent Entity
pursuant to subsection 8.7, or acquiring, developing, maintaining, owning,
prosecuting, protecting or defending its Intellectual Property and associated
rights (including but not limited to receiving or paying royalties for the use
thereof) relating to the business or businesses of the Parent Borrower or any
Subsidiary thereof, (y) any taxes as to which ACNA has a right to
indemnification pursuant to the Recapitalization Agreement but fails to receive
payment of such indemnification owed after diligent efforts to collect such
amounts, and any taxes attributable to (i) ACNA's receipt of, entitlement to, or
obligation to make any payment required or contemplated by the Recapitalization
Agreement and the exhibits thereto (including the
43
Indemnification Agreement (as defined in the Recapitalization Agreement)) or
(ii) the issuance by ACNA of a Seller Note or (z) any other federal, state,
foreign, provincial or local taxes measured by income for which Holdings or any
Parent Entity is liable up to an amount not to exceed, with respect to federal
taxes, the amount of any such taxes that the Parent Borrower and its
Subsidiaries would have been required to pay on a separate company basis, or on
a consolidated basis as if the Parent Borrower had filed a consolidated return
on behalf of an affiliated group (as defined in Section 1504 of the Code or an
analogous provision of state, local or foreign law) of which it was the common
parent, or with respect to state and local taxes, the amount of any such taxes
that the Parent Borrower and its Subsidiaries would have been required to pay on
a separate company basis, or on a combined basis as if the Parent Borrower had
filed a combined return on behalf of an affiliated group consisting only of the
Parent Borrower and its Subsidiaries.
"Rental Fleet": all Equipment owned by or leased to the Parent
Borrower or a Subsidiary of a Parent Borrower.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of Section 4241
of ERISA.
"Reportable Event": any of the events set forth in Section 4043(c) of
ERISA, other than those events as to which the thirty day notice period is
waived under subsections .22, .23, .25, .27 or .28 of PBGC Reg. Section 4043 or
any successor regulation thereto.
"Required Initial Term Loan Lenders": for the Term Loan Lenders, the
sum of whose outstanding principal of Initial Term Loans as of any date of
determination represents greater than 50% of the sum of all outstanding
principal of Initial Term Loans.
"Required Lenders": Non-Defaulting Lenders, the sum of whose
outstanding principal amount of Term Loans (or, if prior to the occurrence of
the Closing Date, whose Initial Term Loan Commitments), RCF Commitments (or
after the termination thereof, outstanding Individual Lender Exposures) and
Incremental Term Loan Commitments as of any date of determination represent
greater than 50% of the sum of all outstanding principal of Term Loans (or if
prior to the occurrence of the Closing Date, the sum of all Term Loan
Commitments) of Non-Defaulting Lenders at such time, all RCF Commitments of all
Non-Defaulting Lenders at such time (or, after the termination thereof, the
total Individual Lender Exposures of all Non-Defaulting Lenders at such time)
and all Incremental Term Loan Commitments of all Non-Defaulting Lenders at such
time.
"Requirement of Law": as to any Person, the certificate of
incorporation and by-laws or other organizational or governing documents of such
Person, and any law, statute, ordinance, code, decree, treaty, rule or
regulation or determination of an arbitrator or a court or other Governmental
Authority, in each case applicable to or binding upon such Person or any of its
material property or to which such Person or any of its material property is
subject, including laws, ordinances and regulations pertaining to zoning,
occupancy and subdivision of real properties; provided that the foregoing shall
not apply to any non-binding recommendation of any Governmental Authority.
44
"Responsible Officer": as to any Person, any of the following officers
of such Person: (a) the chief executive officer or the president of such Person
or, with respect to financial matters, the chief financial officer, the
treasurer or the controller of such Person, (b) any vice president of such
Person or, with respect to financial matters, any assistant treasurer or
assistant controller of such Person, who has been designated in writing to the
U.S. Administrative Agent as a Responsible Officer by the chief executive
officer or president of such Person or, with respect to financial matters, such
chief financial officer of such Person, (c) with respect to subsection 7.7 and
without limiting the foregoing, the general counsel of such Person and (d)with
respect to ERISA matters, the senior vice president - human resources (or
substantial equivalent) of such Person.
"Ripplewood": as defined in the Recitals.
"RSC": as defined in the Preamble hereto.
"RSC Canada": as defined in the Preamble hereto.
"RSC LLC I": as defined in the Recitals.
"S&P": as defined in the definition of the term "Cash Equivalents" in
this subsection 1.1.
"Sale and Leaseback Real Properties": as defined in subsection 8.11.
"Sale and Leaseback Transaction": as defined in subsection 8.11.
"Schedule I Lender": a Lender which is a Canadian chartered bank
listed on Schedule I of the Bank Act (Canada).
"Second-Lien Obligations": all "Obligations" as defined in the
Second-Lien Term Loan Credit Agreement, as the same may be amended,
supplemented, waived or otherwise modified from time to time in accordance with
subsection 8.13, or replaced from time to time in accordance with subsection
8.13.
"Second-Lien Term Loan": as defined in the Recitals, and as the same
may be amended, supplemented, waived or otherwise modified from time to time in
accordance with subsection 8.13, or refinanced or replaced from time to time in
accordance with subsection 8.13.
"Second-Lien Term Loan Credit Agreement": the Second-Lien Term Loan
Agreement, dated as of the date hereof, among Holdings, the Parent Borrower,
RSC, the other borrowers party thereto, the several lenders from time to time
thereto, DBNY, as Administrative Agent and Collateral Agent, Citicorp North
America, Inc., as Syndication Agent, and GE, as Senior Managing Agent and
Documentation Agent, as the same may be amended, supplemented, waived or
otherwise modified from time to time in accordance with subsection 8.13.
"Second-Lien Term Loan Documents": the "Loan Documents" as defined in
the Second-Lien Term Loan Credit Agreement, as the same may be amended,
supplemented, waived
45
or otherwise modified from time to time in accordance with subsection 8.13, or
replaced from time to time in accordance with subsection 8.13.
"Secured Parties": the reference to the Canadian Secured Parties, the
U.S. Secured Parties, or the collective reference thereto, as applicable.
"Securities Act": the Securities Act of 1933, as amended from time to
time.
"Security Documents": the collective reference to the Canadian
Security Documents and the U.S. Security Documents.
"Seller": Atlas Copco AB, a company organized under the laws of Sweden
and Atlas Copco Finance S.a.r.l., a company organized under the laws of
Luxembourg.
"Seller Note": collectively, one or more promissory notes issued by
ACNA (or an Affiliate of ACNA other than a Loan Party or a Subsidiary of a Loan
Party) pursuant to the terms of the Recapitalization Agreement.
"Senior Note Documents": the Senior Note Indenture, the Senior Notes
and each other document or agreement relating to the issuance of the Senior
Notes, as the same may be amended, supplemented, waived or otherwise modified
from time to time in accordance with the terms thereof and subsection 8.13.
"Senior Note Indenture": the Indenture governing the Senior Notes,
dated November 27, 2006, among the Parent Borrower and RSC, as Co-Issuers, the
Subsidiary Guarantors from time to time party thereto and Xxxxx Fargo Bank,
National Association, as Trustee, as the same may be amended, supplemented,
waived or otherwise modified from time to time in accordance the terms thereof
and with subsection 8.13.
"Senior Notes": 9.5% Senior Notes due 2014 of the Parent Borrower and
RSC issued on the date hereof, as the same may be exchanged for substantially
similar unsecured senior notes, that have been registered under the Securities
Act, and as the same or such substantially similar notes may be amended,
supplemented, waived or otherwise modified from time to time in accordance with
the terms thereof and subsection 8.13.
"Set": the collective reference to Eurocurrency Loans or Bankers'
Acceptances, as the case may be, of a single Tranche, the then current Interest
Periods with respect to all of which begin on the same date and end on the same
later date (whether or not such Loans shall originally have been made on the
same day).
"Single Employer Plan": any Plan which is covered by Title IV of
ERISA, but which is not a Multiemployer Plan.
"Solvent" and "Solvency": with respect to any Person on a particular
date, the condition that, on such date, (a) the fair value of the property of
such Person is greater than the total amount of liabilities, including
contingent liabilities, of such Person, (b) the present fair salable value of
the assets of such Person is not less than the amount that will be required to
pay the probable liability of such Person on its debts as they become absolute
and matured, (c) such
46
Person does not intend to, and does not believe that it will, incur debts or
liabilities beyond such Person's ability to pay as such debts and liabilities
mature, and (d) such Person is not engaged in business or a transaction, and is
not about to engage in business or a transaction, for which such Person's
property would constitute an unreasonably small amount of capital.
"Specified Equity Contribution": any cash equity contribution made to
any Parent Entity in exchange for Permitted Cure Securities; provided (a)(i)
such cash equity contribution to any Parent Entity and (ii) the contribution of
any proceeds there from to the Parent Borrower, occur (x) after the Closing Date
and (y) on or prior to the date that is 10 days after the date on which
financial statements are required to be delivered for a fiscal quarter (or
year); (b) the Parent Borrower identifies such equity contribution as a
"Specified Equity Contribution"; (c) in each four fiscal quarter period, there
shall exist a period of at least two consecutive quarters in respect of which no
Specified Equity Contribution shall have been made; and (d) the amount of any
Specified Equity Contribution included in the calculation of EBITDA hereunder
shall be limited to the amount required to effect compliance with subsection 8.1
hereof.
"Specified Payment": (i) any consideration paid to any Person who is
not a Loan Party in connection with any merger, consolidation or amalgamation
permitted pursuant to subsection 8.5(a), (ii) the fair market value of any
assets subject to any sale, lease, transfer or other disposition of any or all
of the assets (upon voluntary liquidation or otherwise) of any Subsidiary of
Holdings permitted pursuant to subsection 8.5(b) (solely to the extent such
sale, lease transfer or other disposition is conducted with a Person who is not
a Loan Party or a Subsidiary thereof), (iii) any dividend payment pursuant to
subsection 8.7(i), (iv) any Investment pursuant to subsection 8.8(n), (v) any
acquisition pursuant to subsection 8.9(c) and (vi) any payment, repurchase or
redemption pursuant to subsection 8.13(a).
"Sponsor Affiliate": any Affiliate of any Sponsor other than any of
such Sponsor's portfolio companies or any entity controlled by any such
portfolio company.
"Sponsors": as defined in the Recitals hereto.
"Spot Rate of Exchange": (i) with respect to Canadian Dollars (except
as provided in clause (ii) below), at any date of determination thereof, the
spot rate of exchange in London that appears on the display page applicable to
Canadian Dollars on the Telerate System (or such other page as may replace such
page for the purpose of displaying the spot rate of exchange in London),
provided that if there shall at any time no longer exist such a page, the spot
rate of exchange shall be determined by reference to another similar rate
publishing service selected by the U.S. Administrative Agent and, if no such
similar rate publishing service is available, by reference to the published rate
of the U.S. Administrative Agent in effect at such date for similar commercial
transactions or (ii) with respect to any Letters of Credit denominated in
Canadian Dollars (x) for the purposes of determining the Dollar Equivalent of
L/C Obligations and for the calculation of L/C Fees and related commissions, the
spot rate of exchange quoted in the Wall Street Journal on the first Business
Day of each month (or, if same does not provide rates, by such other means
reasonably satisfactory to the U.S. Administrative Agent and the Parent
Borrower) and (y) for the purpose of determining the Dollar Equivalent of any
Letter of Credit with respect to (A) a demand for payment of any drawing under
such Letter of Credit (or any portion thereof) to any L/C Participants pursuant
to subsection 3.4(a) or (B) a notice from
47
any Issuing Lender for reimbursement of the Dollar Equivalent of any drawing (or
any portion thereof) under such Letter of Credit by the Parent Borrower pursuant
to subsection 3.5(a), the market spot rate of exchange quoted by the U.S.
Administrative Agent on the date of such drawing or notice, as applicable.
"Standby Letter of Credit": as defined in subsection 3.1 (a).
"Stated Amount": at any time, as to any Letter of Credit, the maximum
amount (using the Dollar Equivalent thereof in the case of a Letter of Credit
denominated in Canadian Dollars) available to be drawn thereunder (regardless
of whether any conditions for drawing could then be met).
"Subsidiary": as to any Person, a corporation, partnership, limited
liability company or other entity (a) of which shares of stock or other
ownership interests having ordinary voting power (other than such stock or such
other ownership interests having such power only by reason of the happening of a
contingency) to elect a majority of the board of directors or other managers of
such corporation, partnership, limited liability company or other entity are at
the time owned by such Person, or (b) the management of which is otherwise
controlled, directly or indirectly through one or more intermediaries, or both,
by such Person and, in the case of this clause (b), which is treated as a
consolidated subsidiary for accounting purposes. Unless otherwise qualified, all
references to a "Subsidiary" or to "Subsidiaries" in this Agreement shall refer
to a Subsidiary or Subsidiaries of the Parent Borrower.
"Subsidiary Guarantor": each U.S. Subsidiary Guarantor and each
Canadian Subsidiary Guarantor.
"Supermajority Lenders": Lenders the sum of whose outstanding
Commitments (or after the termination of such Commitments, outstanding
Individual Lender Exposures) and Term Loans representing at least 66 2/3% of the
sum of the aggregate amount of (i) the Total Commitment and (ii) all outstanding
Term Loans less the Commitments (or after the termination of such Commitments,
the sum of the Individual Lender Exposures) and outstanding Term Loans, in each
case of all Defaulting Lenders at such time.
"Swing Line Commitment": the Swing Line Lender's obligation to make
Swing Line Loans pursuant to subsection 2.5.
"Swing Line Lender": DBNY, in its capacity as provider of the Swing
Line Loans.
"Swing Line Loan Participation Certificate": a certificate in
substantially the form of Exhibit B.
"Swing Line Loans": as defined in subsection 2.5(a).
"Swing Line Note": as defined in subsection 2.5(b).
"Syndication Agent": as defined in the Preamble hereto.
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"Syndication Date": the date on which the U.S. Administrative Agent,
in its sole discretion, advises the Parent Borrower that the primary syndication
of the Commitments and Loans has been completed.
"Tax Sharing Agreement": that certain Tax Sharing Agreement, dated as
of the date hereof, among ACNA, RSC LLC I, Holdings, the Parent Borrower and
RSC, as the same may be amended, modified and/or supplemented from time to time
in accordance with the terms hereof and thereof.
"Taxes": as defined in subsection 4.11(a).
"Term Loan": as defined in subsection 2.1(c).
"Term Loan Commitment": as to any Lender, its Initial Term Loan
Commitment or its Incremental Term Loan Commitment, as the case may be.
"Term Loan Lender": each Lender which has a Term Loan Commitment or
which has any outstanding Term Loans. Unless the context otherwise requires,
each reference in this Agreement to a Term Loan Lender includes each Term Loan
Lender and shall include references to any Affiliate of any such Lender which is
acting as a Term Loan Lender.
"Term Loan Maturity Date": November 30, 2012.
"Term Loans": as defined in subsection 2.1(c).
"Total Borrowing Base": as the date of any determination, the sum of
the U.S. Borrowing Base and the Canadian Borrowing Base.
"Total Canadian RCF Commitment": at any time, the sum of the Canadian
RCF Commitments of all of the Canadian Lenders at such time. The original Total
Canadian RCF Commitment is $75,000,000.
"Total Commitment": at any time, the sum of the Commitments of each of
the Lenders at such time.
"Total U.S. RCF Commitment": at any time, the sum of the U.S. RCF
Commitments of all of the Lenders at such time. The original Total U.S. RCF
Commitment is $1,375,000,000.
"Tranche": the respective facility and commitments utilized in making
Loans hereunder, with there being three Tranches on the Closing Date; namely,
Initial Term Loans, RCF Loans and Swing Line Loans. In addition, any Incremental
Term Loans made after the Closing Date shall be made pursuant to the Tranche of
Initial Term Loans or, to the extent provided in subsection 2.7(e), an
additional Tranche which shall be designated pursuant to the respective
Incremental Commitment Agreements therefor in accordance with the relevant
requirements specified in Section 2.7.
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"Transaction": collectively, (i) the entering into of the Loan
Documents and the incurrence of Loans on the Closing Date, (ii) the consummation
of the Recapitalization, (iii) the issuance of the Senior Notes on the Closing
Date, (iv) the incurrence of the Second-Lien Term Loans on the Closing Date and
(v) the payment of all fees and expenses in connection with the foregoing.
"Transaction Documents": (i) the Loan Documents, (ii) the
Recapitalization Documents, (iii) the Senior Note Documents, and (iv) the
Second-Lien Term Loan Documents.
"Transferee": any Participant or Assignee.
"Type": the type of Loan determined based on the currency in which the
same is denominated, and the interest option applicable thereto, with there
being multiple Types of Loans hereunder, namely ABR Loans and Eurocurrency
Loans.
"UCC": the Uniform Commercial Code as in effect in the State of New
York from time to time.
"Underfunding": the excess of the present value of all accrued
benefits under a Plan (based on those assumptions used to fund such Plan),
determined as of the most recent annual valuation date, over the value of the
assets of such Plan allocable to such accrued benefits.
"Uniform Customs": the Uniform Customs and Practice for Documentary
Credits (1993 Revision), International Chamber of Commerce Publication No. 500,
or its replacement as issued by the International Chamber of Commerce.
"Unpaid Drawing": any Canadian Borrower Unpaid Drawing and any U.S.
Borrower Unpaid Drawing.
"Unpaid Supplier Reserve": at any time, with respect to the Canadian
Borrowers, the amount equal to the percentage applicable to inventory in the
calculation of the Canadian Borrowing Base multiplied by the aggregate value of
the Eligible Inventory which the Canadian Administrative Agent, acting
reasonably and in good faith, considers is or may be subject to a right of a
supplier to repossess goods pursuant to Section 81.1 of the Bankruptcy and
Insolvency Act (Canada) or any other laws of Canada or any other applicable
jurisdiction granting revendication or similar rights to unpaid suppliers, in
each case, where such supplier's right ranks or is capable of ranking in
priority to or pari passu with one or more of the Liens granted in the Security
Documents.
"Unutilized RCF Loan Commitment": with respect to any Lender at any
time, an amount equal to the remainder of (x) such Lender's RCF Commitment as in
effect at such time less (y) such Lender's Individual Lender Exposure at such
time (excluding any amounts attributable to Swingline Loans).
"U.S. Administrative Agent": as defined in the Preamble hereto and
shall include any successor to the U.S. Administrative Agent appointed pursuant
to subsection 10.10.
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"U.S. Blocked Account": as defined in subsection 4.16(c).
"U.S. Borrower Unpaid Drawing": drawings on U.S. RCF Letters of Credit
that have not been reimbursed by the applicable U.S. Borrower.
"U.S. Borrowers": the Parent Borrower, RSC and each other entity that
becomes a Borrower pursuant to subsection 7.9(b) and which is incorporated or
organized in the United States or any state or territory thereof or the District
of Columbia.
"U.S. Borrowing Base": as of any date of determination, the result of:
(a) 85% of the amount of Eligible U.S. Accounts, plus
(b) 85% of the amount of Eligible Unbilled Accounts owned by the U.S.
Loan Parties (not to exceed 50% of the amount calculated under clause (a)
above), plus
(c) (i) 50% of the amount of the Value of Eligible U.S. Inventory, or
(ii) if the amount calculated pursuant to preceding clause (i) is greater
than 5.0% of the U.S. Borrowing Base, the lesser of (A) the amount
calculated pursuant to preceding clause (i), and (B) 85% of the Net Orderly
Liquidation Value of Eligible U.S. Inventory, plus
(d) the lesser of
(i) 95% times the net book value of the Eligible U.S. Rental
Fleet, and
(ii) 85% times the Net Orderly Liquidation Value of Eligible U.S.
Rental Fleet, minus
(e) the amount of all Availability Reserves related to the U.S. RC
Facility, minus
(f) the U.S. Borrowers' and the Qualified U.S. Subsidiary Guarantors'
exposure under Interest Rate Protection Agreements and Permitted Hedging
Arrangements, as reasonably determined by the U.S. Administrative Agent,
(x) based on the xxxx-to-market value(s) for such Interest Rate Protection
Agreements and Permitted Hedging Agreements (determined based upon one or
more mid-market or other readily available quotations provided by any
recognized dealer in such Interest Rate Protection Agreements and Permitted
Hedging Agreements) or (y) at the U.S. Administrative Agent's sole
discretion, in another manner acceptable to the Parent Borrower, minus
(g) the aggregate principal amount of all outstanding Term Loans at
such time.
"U.S. Collateral Agent": as defined in the Recitals hereto.
"U.S. Extender of Credit": as defined in subsection 4.11 (b).
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"U.S. Guarantee and Collateral Agreement": the U.S. Guarantee and
Collateral Agreement delivered to the U.S. Collateral Agent as of the date
hereof, substantially in the form of Exhibit G-2, as the same may be amended,
supplemented, waived or otherwise modified from time to time.
"U.S. Loan Parties": the U.S. Borrowers and each U.S. Subsidiary
Guarantor
"U.S. Mortgaged Property": each Real Property located in the United
States or any State or territory thereof with respect to which a Mortgage is
required to be delivered pursuant to the terms of this Agreement.
"U.S. RC Facility": the revolving credit facility available to the
U.S. Borrowers hereunder pursuant to subsection 2.2(a).
"U.S. RCF Commitment": with respect to each U.S. RCF Lender, the
commitment of such U.S. RCF Lender hereunder to make Extensions of Credit to the
U.S. Borrowers in the amount set forth opposite its name on Schedule A hereto or
as may subsequently be set forth in the Register from time to time.
"U.S. RCF Commitment Percentage": of any U.S. RCF Lender at any time
shall be that percentage which is equal to a fraction (expressed as a
percentage) the numerator of which is the U.S. RCF Commitment of such U.S. RCF
Credit Lender at such time and the denominator of which is the Total U.S. RCF
Commitment at such time, provided that if any such determination is to be made
after the Total U.S. RCF Commitment (and the related U.S. RCF Commitments of the
Lenders) has (or have) terminated, the determination of such percentages shall
be made immediately before giving effect to such termination.
"U.S. RCF Issuing Lender": as the context may require, (i) DBNY or
(ii) any U.S. RCF Lender, which at the request of the Parent Borrower and with
the consent of the U.S. Administrative Agent (such consent not to be
unreasonably withheld or delayed), agrees, in such U.S. RCF Lender's sole
discretion, to also become a U.S. RCF Issuing Lender for the purpose of issuing
U.S. RCF Letters of Credit.
"U.S. RCF L/C Obligations": at any time, an amount equal to the sum of
(a) the aggregate then undrawn and unexpired amount of the then outstanding U.S.
RCF Letters of Credit and (b) the aggregate amount of drawings under U.S. RCF
Letters of Credit which have not then been reimbursed pursuant to subsection
3.5(a).
"U.S. RCF L/C Participants": the U.S. RCF Lenders.
"U.S. RCF Lender": each Lender which has a U.S. RCF Commitment
(without giving effect to any termination of the Total U.S. RCF Commitment if
there are any outstanding U.S. RCF L/C Obligations) or which has any outstanding
U.S. RCF Loans (or a U.S. RCF Commitment Percentage in any then outstanding U.S.
RCF L/C Obligations). Unless the context otherwise requires, each reference in
this Agreement to a U.S. RCF Lender includes each U.S. RCF Lender and shall
include references to any Affiliate of any such Lender which is acting as a U.S.
RCF Lender.
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"U.S. RCF Letters of Credit": Letters of Credit issued by the U.S. RCF
Issuing Lender to, or for the account of the U.S. Borrowers, pursuant to
subsection 3.1.
"U.S. RCF Loan": as defined in Subsection 2.2(a).
"U.S. Rental Fleet": the Rental Fleet located in the United States of
America or the District of Columbia.
"U.S. Secured Parties": the "Secured Parties" as defined in the U.S.
Guarantee and Collateral Agreement.
"U.S. Security Documents": the collective reference to each Mortgage
related to any U.S. Mortgaged Property, the U.S. Guarantee and Collateral
Agreement and all other similar security documents hereafter delivered to the
U.S. Collateral Agent granting or perfecting a Lien on any asset or assets of
any Person to secure the obligations and liabilities of the U.S. Loan Parties
hereunder and/or under any of the other Loan Documents or to secure any
guarantee of any such obligations and liabilities, including any security
documents executed and delivered or caused to be delivered to the U.S.
Collateral Agent pursuant to subsection 7.9(a), 7.9(b) or 7.9(c), in each case,
as amended, supplemented, waived or otherwise modified from time to time.
"U.S. Subsidiaries Guaranty": the guaranty of the obligations of the
Borrowers under the Loan Documents provided pursuant to the U.S. Guarantee and
Collateral Agreement.
"U.S. Subsidiary Guarantor": each Domestic Subsidiary of the Parent
Borrower which executes and delivers a U.S. Subsidiary Guaranty, in each case,
unless and until such time as the respective U.S. Subsidiary Guarantor ceases to
constitute a Domestic Subsidiary of the Parent Borrower or is released from all
of its obligations under the U.S. Subsidiaries Guaranty in accordance with terms
and provisions thereof.
"U.S. Tax Compliance Certificate": as defined in subsection
4.11(b)(Y)(iii).
"Value": with reference to the value of Inventory, value determined on
the basis of the lower of cost or market of such Inventory, with the cost
thereof calculated on a first-in, first-out basis, determined in accordance with
GAAP.
"Voting Stock": shares of Capital Stock entitled to vote generally in
the election of directors.
"Weighted Average Life to Maturity": when applied to any Indebtedness
at any date, the number of years obtained by dividing (i) the then outstanding
principal amount of such Indebtedness into (ii) the product obtained by
multiplying (x) the amount of each then remaining installment or other required
scheduled payments of principal, including payment at final maturity, in respect
thereof, by (y) the number of years (calculated to the nearest one-twelfth) that
will elapse between such date and the making of such payment.
"Wholly Owned Subsidiary": as to any Person, any Subsidiary of such
Person of which such Person owns, directly or indirectly through one or more
Wholly Owned Subsidiaries,
53
all of the Capital Stock of such Subsidiary other than directors qualifying
shares or shares held by nominees.
1.2 Other Definitional Provisions. (a) Unless otherwise specified
therein, all terms defined in this Agreement shall have the defined meanings
provided herein when used in any Notes, any other Loan Document or any
certificate or other document made or delivered pursuant hereto or thereto.
(b) As used herein and in any Notes and any other Loan Document, and
any certificate or other document made or delivered pursuant hereto or thereto,
accounting terms relating to Holdings and its Subsidiaries not defined in
subsection 1.1 and accounting terms partly defined in subsection 1.1, to the
extent not defined, shall have the respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement, and Section, subsection,
Schedule and Exhibit references are to this Agreement unless otherwise
specified. The words "include", "includes" and "including" shall be deemed to be
followed by the phrase "without limitation".
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
Section 2. Amount and Terms of Commitments.
2.1 Initial Term Loans. (a) Subject to the terms and conditions
hereof, (a) each Lender holding an Initial Term Loan Commitment severally agrees
to make, in a single draw on the Closing Date, one or more term loans to the
U.S. Borrowers, on a joint and several basis (each, an "Initial Term Loan" and,
collectively the "Initial Term Loans"), which Initial Term Loans:
(i) shall be denominated in Dollars;
(ii) shall, at the option of the Parent Borrower, be incurred and
maintained as, and/or converted into, ABR Loans or Eurocurrency Loans,
provided that except as otherwise specifically provided in subsection 4.9
and 4.10, all Initial Term Loans comprising the same Borrowing shall at all
times be of the same Type; and
(iii) shall be made by each such Lender in an aggregate principal
amount which does not exceed the Initial Term Loan Commitment of such
Lender.
Once repaid, Initial Term Loans incurred hereunder may not be reborrowed.
(b) The Parent Borrower agrees that, upon the request to the U.S.
Administrative Agent by any Lender made on or prior to the Closing Date or in
connection with any assignment pursuant to subsection 11.6(b), in order to
evidence such Lender's Initial Term Loan, the Parent Borrower will execute and
deliver to such Lender a promissory note substantially in the form of Exhibit
A-1 (each, as amended, supplemented, replaced or otherwise
54
modified from time to time, an "Initial Term Loan Note"), with appropriate
insertions therein as to payee, date and principal amount, payable to such
Lender and in a principal amount equal to the unpaid principal amount of the
applicable Initial Term Loans made (or acquired by assignment pursuant to
subsection 11.6(b)) by such Lender to the Parent Borrower. Each Initial Term
Loan Note shall be dated the Closing Date (or in the case of an Initial Term
Loan Note issued in connection with Initial Term Loans acquired by assignment
pursuant to such section 11.6(b), the date of such assignment). Each Initial
Term Loan Note shall be payable as provided in subsection 2.6 and provide for
the payment of interest in accordance with subsection 4.1.
(c) Subject to subsection 2.7 and the other terms and conditions
hereof, (a) each Lender holding an Incremental Term Loan Commitment severally
agrees to make to the U.S. Borrowers, pursuant to a single drawing on the
respective Incremental Term Loan Borrowing Date, one or more term loans (each,
an "Incremental Term Loan" and, collectively the "Incremental Term Loans", and,
together with the Initial Term Loans, the "Term Loans"), which Incremental Term
Loans:
(i) shall be denominated in Dollars;
(ii) shall, at the option of the Parent Borrower, be incurred and
maintained as, and/or converted into, ABR Loans or Eurocurrency Loans,
provided that except as otherwise specifically provided in subsection 4.9
and 4.10, all Incremental Term Loans comprising the same Borrowing shall at
all times be of the same Type;
(iii) shall be made by each such Lender in an aggregate principal
amount which does not exceed the Incremental Term Loan Commitment of such
Lender; and.
(iv) shall not be made (and shall not be required to be made) by any
Lender to the extent the incurrence thereof (after giving effect to the use
of the proceeds thereof on the date of the incurrence thereof to repay any
amounts theretofore outstanding pursuant to this Agreement and any
repayment of outstanding RCF Loans on such date) would require a mandatory
repayment pursuant to subsection 4.4(c)(i).
Once repaid, Incremental Term Loans incurred hereunder may not be reborrowed.
(d) Each Borrower agrees that, upon the request to the U.S.
Administrative Agent by any Lender made on or prior to the Incremental Term Loan
Borrowing Date or in connection with any assignment pursuant to subsection
11.6(b), in order to evidence such Lender's Incremental Term Loan to such
Borrower, such Borrower will execute and deliver to such Lender a promissory
note substantially in the form of Exhibit A-2 (each, as amended, supplemented,
replaced or otherwise modified from time to time, a "Incremental Term Loan
Note"), with appropriate insertions therein as to payee, date and principal
amount, payable to such Lender and in a principal amount equal to the unpaid
principal amount of the applicable Incremental Term Loans made (or acquired by
assignment pursuant to subsection 11.6(b)) by such Incremental Term Loan Lender
to such Borrower. Each Incremental Term Loan Note shall be dated the Incremental
Term Loan Borrowing Date (or in the case of a Term Loan Note issued in
connection with Incremental Term Loans acquired by assignment pursuant to such
section 11.6(b), the date of such assignment). Each Incremental Term Loan Note
shall be
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payable as provided in subsection 2.6 and provide for the payment of interest in
accordance with subsection 4.1.
(e) Except as otherwise provided in subsection 2.2(f), the aggregate
principal amount of Term Loans of all the Lenders shall be payable in
consecutive quarterly installments up to and including the Term Loan Maturity
Date therefor (subject to repayment as provided in subsection 4.4), on the dates
and in the principal amounts, subject to adjustment as set forth below, equal to
the respective amounts set forth below (together with all accrued interest
thereon) opposite the applicable installment dates (or, if less, the aggregate
amount of such Term Loans then outstanding):
DATE AMOUNT
---- ------
Each March 31, June 30, September 30 and (i) $625,000 plus (ii) for each installment date
December 31 following the Closing Date following an Incremental Term Loan Borrowing
ending prior to the Term Loan Maturity Date Date, an amount equal to .25% of the aggregate
principal amount of Incremental Term Loans (other
than such Incremental Term Loans which may have
different scheduled repayments as contemplated in
subsection 2.7(e)) borrowed on such Incremental
Term Loan Borrowing Date, subject in each case to
prepayment as provided in subsection 4.4
Term Loan Maturity Date all unpaid aggregate principal amounts of any
outstanding Term Loans
(f) In the case of Incremental Term Loans that have different
scheduled repayment dates (and amounts) as contemplated in subsection 2.7(e),
such Incremental Term Loans shall be payable on the dates and in the amounts set
forth in the respective Incremental Commitment Agreement or Agreements relating
to such Incremental Term Loans, provided that if any such Incremental Term Loans
are subsequently incurred, the amount of the then remaining scheduled
installments of such Incremental Term Loans shall be proportionally increased
(with the aggregate amount of increases to the then remaining scheduled
installments to equal the aggregate principal amount of such new Incremental
Term Loans then being incurred).
2.2 RCF Commitments. (a) Subject to and upon the terms and conditions
set forth herein, each Lender with a U.S. RCF Commitment severally agrees to
make, at any time
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during the RCF Commitment Period, a RCF Loan or RCF Loans to the U.S. Borrowers
(on a joint and several basis as between the U.S. Borrowers) (each a "U.S. RCF
Loan" and, collectively, the "U.S. RCF Loans"), which U.S. RCF Loans:
(i) shall be denominated in Dollars;
(ii) shall, at the option of the U.S. Borrowers, be incurred and
maintained as, and/or converted into, ABR Loans or Eurocurrency Loans,
provided that (A) except as otherwise specifically provided in subsection
4.9 and subsection 4.10, all U.S. RCF Loans comprising the same Borrowing
shall at all times be of the same Type, and (B) unless either the
Syndication Date has occurred or the U.S. Administrative Agent in its sole
discretion agrees otherwise (1) during the first four Business Days
following the Closing Date, all U.S. RCF Loans shall be incurred and
maintained as ABR Loans and (2) until the date that is 30 days following
the fifth Business Day following the Closing Date, all U.S. RCF Loans
incurred or maintained as, or converted into, Eurocurrency Loans shall have
an Interest Period of one month which commences and ends on the same day;
(iii) may be repaid and reborrowed in accordance with the provisions
hereof;
(iv) shall not be made (and shall not be required to be made) by any
U.S. RCF Lender to the extent the incurrence thereof (after giving effect
to the use of the proceeds thereof on the date of the incurrence thereof to
repay any amounts theretofore outstanding pursuant to this Agreement) would
cause the Individual U.S. RCF Lender Exposure of such U.S. RCF Lender to
exceed the amount of its U.S. RCF Commitment at such time;
(v) shall not be made (and shall not be required to be made) by any
U.S. RCF Lender to the extent the incurrence thereof (after giving effect
to the use of the proceeds thereof on the date of the incurrence thereof to
repay any amounts theretofore outstanding pursuant to this Agreement) would
cause the Aggregate U.S. RCF Lender Exposure to exceed the Total U.S. RCF
Commitment as then in effect;
(vi) shall not be made (and shall not be required to be made) by any
U.S. RCF Lender to the extent the incurrence thereof (after giving effect
to the use of the proceeds thereof on the date of the incurrence thereof to
repay any amounts theretofore outstanding pursuant to this Agreement) would
cause the Aggregate U.S. RCF Lender Exposure to exceed the difference of
(I) the U.S. Borrowing Base at such time (based on the Borrowing Base
Certificate last delivered) minus (II) the sum of (A) the aggregate unpaid
balance of Extensions of Credit to, or for the account of, the U.S.
Borrowers pursuant to the Canadian RC Facility plus (B) the excess of the
unpaid balance of Extensions of Credit to, or for the account of, the
Canadian Borrowers over the Canadian Borrowing Base plus (C) the aggregate
unpaid balance of Extensions of Credit to, or for the account of, Canadian
Xxxxx pursuant to the Canadian RC Facility; and
(vii) shall not be made (and shall not be required to be made) by any
U.S. RCF Lender to the extent any such U.S. RCF Loans to be made on any
date, individually or in the aggregate, exceed the then Available U.S. RCF
Commitments.
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(b) Subject to and upon the terms and conditions set forth herein,
each Canadian RCF Lender severally agrees to make (including through a
Non-Canadian Affiliate in the case of RCF Loans to the U.S. Borrowers or
Canadian Xxxxx), at any time and from time to time during the RCF Commitment
Period, a RCF Loan or RCF Loans to (i)the Canadian Borrowers (on a joint and
several basis as between the Canadian Borrowers with respect to such RCF Loans
made to the Canadian Borrowers), (ii) the U.S. Borrowers (on a joint and several
basis as between the U.S. Borrowers with respect to such RCF Loans made to the
U.S. Borrowers) and (iii) from and after the date Canadian Xxxxx executes a
Borrower Joinder Agreement, Canadian Xxxxx (each of the foregoing, a "Canadian
RCF Loan" and, collectively, the "Canadian RCF Loans"); which Canadian RCF
Loans:
(i) in the case of Loans made to the Canadian Borrowers, shall be
denominated in Canadian Dollars and in the case of Loans made to the U.S.
Borrowers or to Canadian Xxxxx, shall be denominated in U.S. Dollars;
(ii) shall, in the case of Loans made to the Canadian Borrowers, at
the option of the Canadian Borrowers, be incurred and maintained as, and/or
converted into, ABR Loans or Bankers' Acceptance Loans and, in the case of
Loans made to the U.S. Borrowers or to Canadian Xxxxx, at the option of the
U.S. Borrowers, be incurred and maintained as, and/or converted into, ABR
Loans or Eurocurrency Loans, provided in each case that (A) except as
otherwise specifically provided in subsection 4.9 and subsection 4.10, all
Canadian RCF Loans comprising the same Borrowing shall at all times be of
the same Type, and (B) unless either the Syndication Date has occurred or
the U.S. Administrative Agent in its sole discretion agrees otherwise (1)
during the first four Business Days following the Closing Date, all
Canadian RCF Loans shall be incurred and maintained as ABR Loans and (2)
until the date that is 30 days following the fifth Business Day following
the Closing Date, all Canadian RCF Loans incurred and maintained as, and/or
converted into Bankers' Acceptances Loans or Eurocurrency Loans, as
applicable, shall in the case of Eurocurrency Loans have an Interest Period
of one month which commences and ends on the same day and in the case of
Bankers' Acceptance Loans, have the same 30 day term to maturity;
(iii) may be repaid and reborrowed in accordance with the provisions
hereof;
(iv) shall not be made (and shall not be required to be made) by any
Canadian RCF Lender to the extent the incurrence thereof (after giving
effect to the use of the proceeds thereof on the date of the incurrence
thereof to repay any amounts theretofore outstanding pursuant to this
Agreement) would cause the Individual Canadian RCF Lender Exposure of such
Canadian RCF Lender to exceed the amount of its Canadian RCF Commitment at
such time;
(v) shall not be made (and shall not be required to be made) by any
Canadian RCF Lender to the extent the incurrence thereof (after giving
effect to the use of the proceeds thereof on the date of the incurrence
thereof to repay any amounts theretofore outstanding pursuant to this
Agreement) would cause the Aggregate Canadian RCF Lender Exposure to exceed
the lesser of (x) the Total Canadian RCF Commitments as then in effect and
(y) the sum of (A) the Canadian Borrowing Base at such time plus
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(B) the U.S. Borrowing Base (in each case, based on the Borrowing Base
Certificate last delivered);
(vi) shall not be made (and shall not be required to be made) by any
Canadian RCF Lender (including through any Non-Canadian Affiliate of any
Canadian RCF Lender) to the extent any such Canadian RCF Loans to be made
on any date, individually or in the aggregate, exceed the then Available
Canadian RCF Commitments;
(vii) shall not be made (and shall not be required to be made) to any
U.S. Borrower to the extent the incurrence thereof (after giving effect to
the use of the proceeds thereof on the date of the incurrence thereof to
repay any amounts theretofore outstanding pursuant to this Agreement) would
cause the aggregate unpaid balance of Extensions of Credit to, or for the
account of, any U.S. Borrower to exceed the difference of (x) the U.S.
Borrowing Base at such time (based on the Borrowing Base Certificate last
delivered) minus (y) the excess of the unpaid balance of Extensions of
Credit to, or for the account of, the Canadian Borrowers over the Canadian
Borrowing Base at such time (based on the Borrowing Base Certificate last
delivered) minus (z) the aggregate amount of unpaid Extensions of Credit
to, or for the account of, the Canadian Xxxxx; and
(viii) shall not be made (and shall not be required to be made) to
Canadian Xxxxx to the extent the incurrence thereof (after giving effect to
the use of the proceeds thereof on the date of the incurrence thereof to
repay any amounts theretofore outstanding pursuant to this Agreement) would
cause the aggregate unpaid balance of Extensions of Credit to, or for the
account of, Canadian Xxxxx to exceed the difference of (x) the U.S.
Borrowing Base at such time (based on the Borrowing Base Certificate last
delivered) minus (y) the excess of the unpaid balance of Extensions of
Credit to, or for the account of, the Canadian Borrowers over the Canadian
Borrowing Base at such time (based on the Borrowing Base Certificate last
delivered) minus (z) the aggregate amount of Extensions of Credit to, or
for the account of, the U.S. Borrowers.
(c) Notwithstanding anything to the contrary in subsections 2.2(a) or
(b) or elsewhere in this Agreement, the U.S. Administrative Agent and the
Canadian Administrative Agent, as applicable, shall have the right to establish
Availability Reserves in such amounts, and with respect to such matters, as the
U.S. Administrative Agent and the Canadian Administrative Agent, as applicable,
in their Permitted Discretion shall deem necessary or appropriate, against the
U.S. Borrowing Base and/or the Canadian Borrowing Base, as applicable, including
reserves with respect to (i) sums that the respective Borrowers are or will be
required to pay (such as taxes (including payroll and sales taxes), assessments,
insurance premiums, or, in the case of leased assets, rents or other amounts
payable under such leases) and have not yet paid (including an Unpaid Supplier
Reserve) and (ii) amounts owing by the respective Borrowers or, without
duplication, their respective Subsidiaries to any Person to the extent secured
by a Lien on, or trust over, any of the Collateral, which Lien or trust, in the
Permitted Discretion of the U.S. Administrative Agent or the Canadian
Administrative Agent is capable of ranking senior in priority to or pari passu
with one or more of the Liens granted in the Security Documents (such as
Canadian Priority Payables, Liens or trusts in favor of landlords, warehousemen,
carriers, mechanics, materialmen, laborers, or suppliers (including in respect
of an Unpaid Supplier Reserve), or Liens or trusts for ad valorem, excise,
sales, or other taxes where given priority
59
under applicable law) in and to such item of the Collateral; provided that the
such applicable Agent shall have provided the applicable Borrower at least ten
Business Days' prior written notice of any such establishment; and provided,
further, except in respect of taxes, Unpaid Supplier Reserves and Canadian
Priority Payables, that such Agent may only establish an Availability Reserve
after the date hereof based on an event, condition or other circumstance arising
after the Closing Date or based on facts not known to such Agent as of the
Closing Date. The amount of any Availability Reserve established by such Agent
shall have a reasonable relationship to the event, condition or other matter
that is the basis for the Availability Reserve. Upon delivery of such notice,
such Agent shall be available to discuss the proposed Availability Reserve, and
the applicable Borrower may take such action as may be required so that the
event, condition or matter that is the basis for such Availability Reserve or
increase no longer exists, in a manner and to the extent reasonably satisfactory
to the applicable Agent in the exercise of its Permitted Discretion. In no event
shall such notice and opportunity limit the right of the applicable Agent to
establish such Availability Reserve, unless such Agent shall have determined in
its Permitted Discretion that the event, condition or other matter that is the
basis for such new Availability Reserve no longer exists or has otherwise been
adequately addressed by the applicable Borrower. Notwithstanding anything herein
to the contrary, Availability Reserves shall not duplicate eligibility criteria
contained in the definition of "Eligible Accounts", "Eligible Rental Fleet",
"Eligible Inventory" or "Eligible Unbilled Accounts" and vice versa, or reserves
or criteria deducted in computing the net book value of Eligible Rental Fleet or
Eligible Inventory or the Net Orderly Liquidation Value of Eligible Rental Fleet
or Eligible Inventory and vice versa. In addition to the foregoing, the U.S.
Administrative Agent and the Canadian Administrative Agent shall have the right,
subject to subsection 7.6, to have the Loan Parties' Rental Fleet and/or
Eligible Inventory reappraised by Xxxxx Asset Services or another qualified
appraisal company selected by the U.S. Administrative Agent or the Canadian
Administrative Agent (in consultation with the Parent Borrower) from time to
time after the Closing Date for the purpose of re-determining the Net Orderly
Liquidation Value of the Eligible Rental Fleet and/or Eligible Inventory, as the
case may be, and, as a result, re-determining the U.S. Borrowing Base and/or the
Canadian Borrowing Base, as the case may be.
(d) In the event the U.S. Borrowers are, or the Canadian Borrowers
are, as applicable, unable to comply with (i) the Borrowing Base limitations set
forth in subsections 2.2(a) and/or (b), as the case may be, or (ii) the
conditions precedent to the making of RCF Loans or the issuance of Letters of
Credit set forth in subsection 6.2, (x) the U.S. RCF Lenders hereby authorize
the U.S. Administrative Agent, for the account of the U.S. RCF Lenders, to make
U.S. RCF Loans to the U.S. Borrowers and (y) the Canadian RCF Lenders authorize
the Canadian Administrative Agent, for the account of the Canadian RCF Lenders,
to make Canadian RCF Loans to the Borrowers (other than Canadian Xxxxx), which,
in each case, may only be made as ABR Loans (each, an "Agent Advance") for a
period commencing on the date the U.S. Administrative Agent first receives a
notice of Borrowing requesting an Agent Advance until the earliest of (i) the
30th Business Day after such date, (ii) the date the respective Borrowers or
Borrower are again able to comply with the Borrowing Base limitations and the
conditions precedent to the making of RCF Loans and issuance of Letters of
Credit, or obtains an amendment or waiver with respect thereto and (iii) the
date the Required Lenders instruct the U.S. Administrative Agent and the
Canadian Administrative Agent to cease making Agent Advances (in each case, the
"Agent Advance Period"). Neither the U.S. Administrative Agent nor the Canadian
Administrative Agent shall make any Agent Advance to the extent that at such
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time the amount of such Agent Advance (A) in the case of Agent Advances made to
the Canadian Borrowers, (I) when added to the aggregate outstanding amount of
all other Agent Advances made to the Canadian Borrowers at such time, would
exceed the lesser of (i) 5% of the Total Canadian RCF Commitments as then in
effect and (ii) the difference of (1) the sum of (a) the Canadian Borrowing Base
at such time plus (b) the U.S. Borrowing Base at such time (in each case, based
on the Borrowing Base Certificate last delivered) minus (2) the sum of (a) the
aggregate unpaid balance of Extensions of Credit to, or for the account of, the
Canadian Borrowers, (b) the aggregate unpaid balance of Extensions of Credit to,
or for the account of, the U.S. Borrowers and (c) the aggregate unpaid balance
of Extensions of Credit to, or for the account of, Canadian Xxxxx or (II) when
added to the Aggregate Canadian RCF Lender Exposure as then in effect
(immediately prior to the incurrence of such Agent Advance), would exceed the
Total Canadian RCF Loan Commitment at such time, or (B) in the case of Agent
Advances made to the U.S. Borrowers, (I) when added to the aggregate outstanding
amount of all other Agent Advances made to the U.S. Borrowers at such time,
would exceed 5% of the U.S. Borrowing Base at such time (based on the Borrowing
Base Certificate last delivered) or (II) when added to the Aggregate U.S. RCF
Lender Exposure as then in effect (immediately prior to the incurrence of such
Agent Advance), (1) would exceed the Total U.S. RCF Commitment at such time or
(2) when added to the Aggregate Canadian RCF Lender Exposure as then in effect
(immediately prior to such Agent Advance) would exceed the sum of (a) the
Canadian Borrowing Base at such time plus (b) the U.S. Borrowing Base at such
time (in each case, based on the Borrowing Base Certificate last delivered). It
is understood and agreed that, subject to the requirements set forth above,
Agent Advances may be made by the U.S. Administrative Agent or the Canadian
Administrative Agent in their respective discretion to the extent the U.S.
Administrative Agent or the Canadian Administrative Agent deems such Agent
Advances necessary or desirable (x) to preserve and protect the applicable
Collateral, or any portion thereof, (y) to enhance the likelihood of, or
maximize the amount of, repayment of the Loans and other obligations of the Loan
Parties hereunder and under the other Loan Documents or (z) to pay any other
amount chargeable to or required to be paid by the Borrowers pursuant to the
terms of this Agreement, including payments of reimbursable expenses and other
sums payable under the Loan Documents, and that the Borrowers shall have no
right to require that any Agent Advances be made.
(e) Each Borrower agrees that, upon the request to the U.S.
Administrative Agent by any RCF Lender made on or prior to the Closing Date or
in connection with any assignment pursuant to subsection 11.6(b), in order to
evidence such Lender's RCF Loans to such Borrower, such Borrower will execute
and deliver to such Lender a promissory note substantially in the form of
Exhibit A-3, with appropriate insertions as to payee, date and principal amount
(each, as amended, supplemented, replaced or otherwise modified from time to
time, a "RCF Note"), payable to such Lender and in a principal amount equal to
the aggregate unpaid principal amount of all RCF Loans made by such RCF Lender
to such Borrower. Each RCF Note shall (i) be dated the Closing Date (or in the
case of an RCF Note issued in connection with RCF Commitments (and related RCF
Loans) acquired by assignment pursuant to such subsection 11.6(b), the date of
such assignment), (ii) be stated to mature on the RCF Maturity Date and (iii)
provide for the payment of interest in accordance with subsection 4.1.
(f) Notwithstanding anything to the contrary contained herein, the
parties acknowledge and agree that (i) the Canadian Borrowers shall not be
jointly or jointly and
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severally liable with (A) the U.S. Borrowers or (B) Canadian Xxxxx for any
liabilities or obligations of (A) the U.S. Borrowers or (B) Canadian Xxxxx
hereunder and (ii) the U.S. Borrowers shall not be jointly or jointly and
severally liable with the Canadian Borrowers for any liabilities or obligations
of the Canadian Borrowers hereunder (although it is acknowledged and agreed by
the parties hereto that the U.S. Borrowers shall provide a guarantee in respect
of the obligations of the Canadian Borrowers pursuant to the U.S. Guaranty and
Collateral Agreement).
2.3 Procedure for Borrowings. Whenever the Borrowers borrow Loans
under this Agreement, the applicable Borrower shall give the U.S. Administrative
Agent or the Canadian Administrative Agent, as applicable, irrevocable notice
(which notice must be received by the U.S. Administrative Agent prior to (a)
12:30 P.M., New York City time, at least three Business Days prior to the
requested Borrowing Date, if all or any part of the requested Loans are to be
initially Eurocurrency Loans or Bankers' Acceptance Loans or (b) 11:00 a.m., New
York City time (1) at least one Business Day prior to the requested Borrowing
Date for Term Loans maintained as ABR Loans and (2) on the requested Borrowing
Date, for any other ABR Loans) specifying (i) the identity of the Borrower or
Borrowers, (ii) the amount to be borrowed, (iii) the requested Borrowing Date,
(iv) whether the borrowing is to be of Eurocurrency Loans or Bankers' Acceptance
Loans, ABR Loans or a combination thereof, (v) if the borrowing is to be
entirely or partly of Eurocurrency Loans or Bankers' Acceptance Loans, the
respective amounts of each such Type of Loan and the respective lengths of the
initial Interest Periods therefor and (vi) if the borrowing is to be entirely or
partly Bankers' Acceptance Loans, the length of the term thereof in accordance
with subsection 4.6(c). Each borrowing shall be in an amount equal to (x) in the
case of ABR Loans, except any ABR Loan to be used solely to pay a like amount of
outstanding Reimbursement Obligations or Swing Line Loans, an integral multiple
of $1,000,000 (or, if the Commitments then available (as calculated in
accordance with subsections 2.1(a) and (b)) are less than $1,000,000, such
lesser amount) and (y) in the case of Eurocurrency Loans, the principal amount
thereof (or in the case of Bankers' Acceptance Loans, the Dollar Equivalent of
the principal amount thereof) equal to $5,000,000 (or, in the case of Loans made
to the Canadian Borrowers, Cdn$5,000,000) or a whole multiple of $1,000,000 (or,
in the case of Loans made to the Canadian Borrowers, Cdn$ 1,000,000) in excess
thereof. Upon receipt of any such notice from a Borrower, the U.S.
Administrative Agent or the Canadian Administrative Agent, as applicable, shall
promptly notify each applicable Lender thereof. Subject to the satisfaction of
the applicable conditions precedent specified in Section 6 (and subject to
compliance with Section 4.6(c) in the case of Bankers' Acceptance Loans), each
applicable Lender will make the amount of its pro rata share of each borrowing
of Loans available to the U.S. Administrative Agent or the Canadian
Administrative Agent, as applicable, for the account of the Borrower or
Borrowers identified in such notice at the office of the U.S. Administrative
Agent or the Canadian Administrative Agent, as applicable, specified in
subsection 11.2 prior to 12:30 P.M. (or 11:00 A.M., in the case of the initial
borrowing hereunder), New York City time, or at such other office of the U.S.
Administrative Agent or the Canadian Administrative Agent, as applicable, or at
such other time as to which the U.S. Administrative Agent or the Canadian
Administrative Agent, as applicable, shall notify such Borrower or Borrowers
reasonably in advance of the Borrowing Date with respect thereto, on the
Borrowing Date requested by such Borrower or Borrowers in Dollars or Canadian
Dollars and in funds immediately available to the U.S. Administrative Agent or
the Canadian Administrative Agent, as applicable. In relation to Banker's
Acceptance Loans, the Canadian Administrative Agent shall credit to the
applicable
62
Canadian Borrower's account on the applicable Borrowing Date the BA Proceeds
less the applicable BA Fee with respect to each B/A Instrument purchased by a
Lender on that Borrowing Date. Such borrowing will then be made available to the
Borrower or Borrowers identified in such notice by the U.S. Administrative Agent
or the Canadian Administrative Agent, as applicable, crediting the account of
such Borrower or Borrowers on the books of such office with the aggregate of the
amounts made available to the U.S. Administrative Agent or the Canadian
Administrative Agent, as applicable, by the applicable Lenders and in like funds
as received by the U.S. Administrative Agent or the Canadian Administrative
Agent, as applicable.
2.4 Termination or Reduction of Commitments. The Parent Borrower (on
behalf of itself and each other Borrower) shall have the right, upon not less
than three Business Days' notice to the U.S. Administrative Agent (which will
promptly notify the Lenders thereof), to terminate (x) the U.S. RCF Commitments,
Canadian RCF Commitments or, from time to time, to reduce the amount of the U.S.
RCF Commitments or Canadian RCF Commitments; provided that any such notice of
termination delivered by the Parent Borrower in connection with a repayment of
all outstanding Obligations may state that such notice is conditioned upon the
occurrence or non-occurrence of any event specified therein (including the
effectiveness of other credit facilities), in which case such notice may be
revoked by the Parent Borrower (by written notice to the U.S. Administrative
Agent on or prior to the specified effective date) if such condition is not
satisfied; provided further that no such termination or reduction shall be
permitted if, after giving effect thereto and to any prepayments of the RCF
Loans and Swing Line Loans made on the effective date thereof, the aggregate
principal amount of the RCF Loans and Swing Line Loans then outstanding
(including in the case of RCF Loans then outstanding in any Canadian Dollars,
the Dollar Equivalent of the aggregate principal amount thereof), when added to
the sum of the then outstanding L/C Obligations, would exceed the RCF
Commitments then in effect and/or (y) any Incremental Term Loan Commitments. Any
such reduction shall be in an amount equal to $5,000,000 or a whole multiple of
$1,000,000 in excess thereof and shall reduce permanently the applicable
Commitments then in effect.
2.5 Swing Line Commitments. (a) Subject to the terms and conditions
hereof, the Swing Line Lender agrees to make swing line loans (individually, a
"Swing Line Loan"; collectively, the "Swing Line Loans") to any of the U.S.
Borrowers from time to time during the Commitment Period in an aggregate
principal amount at any one time outstanding not to exceed $25,000,000, provided
that at no time may the sum of the then outstanding Swing Line Loans, U.S. RCF
Loans and L/C Obligations exceed the lesser of (1) the U.S. RCF Commitments then
in effect and (2) the difference of (I) the U.S. Borrowing Base then in effect
(based on the most recently delivered Borrowing Base Certificate) minus (II) the
sum of (A) the excess of the unpaid balance of Extensions of Credit made to or
for the account of, the Canadian Borrowers over the Canadian Borrowing Base
(based on the most recently delivered Borrowing Base Certificate), (B) the
aggregate unpaid balance of Extensions of Credit to, or for the account of, the
U.S. Borrowers pursuant to the Canadian RC Facility (it being understood and
agreed that the U.S. Administrative Agent shall calculate the Dollar Equivalent
of the then outstanding Canadian RCF Loans denominated in Canadian Dollars on
the date the notice of borrowing of Swing Line Loans is given for purposes of
determining compliance with this subsection) and (C) the aggregate unpaid
balance of Extensions of Credit to, or for the benefit of, Canadian Xxxxx.
Amounts borrowed by any U.S. Borrower under this subsection 2.5 may be repaid
and, to but excluding the RCF Maturity Date, reborrowed. All Swing Line Loans
made to any U.S.
63
Borrower shall be made in Dollars as ABR Loans and shall not be entitled to be
converted into Eurocurrency Loans. The Parent Borrower (on behalf of itself or
any other Borrower as the case may be) shall give the Swing Line Lender
irrevocable notice (which notice must be received by the Swing Line Lender prior
to 12:00 Noon, New York City time, on the requested Borrowing Date specifying
(1) the identity of the Borrower and (2) the amount of the requested Swing Line
Loan. The proceeds of the Swing Line Loans will be made available by the Swing
Line Lender to the Borrower identified in such notice at an office of the Swing
Line Lender by crediting the account of such Borrower at such office with such
proceeds in Dollars.
(b) Each Borrower agrees that, upon the request to the U.S.
Administrative Agent by the Swing Line Lender made on or prior to the Closing
Date or in connection with any assignment pursuant to subsection 11.6(b), in
order to evidence the Swing Line Loans to such Borrower, such Borrower will
execute and deliver to the Swing Line Lender a promissory note substantially in
the form of Exhibit A-4, with appropriate insertions (as the same may be
amended, supplemented, replaced or otherwise modified from time to time, the
"Swing Line Note"), payable to the Swing Line Lender and representing the
obligation of such Borrower to pay the amount of the Swing Line Commitment or,
if less, the unpaid principal amount of the Swing Line Loans made to such
Borrower, with interest thereon as prescribed in subsection 4.1. The Swing Line
Note shall (i) be dated the Closing Date, (ii) be stated to mature on the RCF
Maturity Date and (iii) provide for the payment of interest in accordance with
subsection 4.1.
(c) The Swing Line Lender, at any time in its sole and absolute
discretion may, and, at any time as there shall be a Swing Line Loan outstanding
for more than seven Business Days or when an Event of Default under subsection
9(f) has occurred, the Swing Line Lender shall, on behalf of the U.S. Borrower
to which the Swing Line Loan has been made (which hereby irrevocably directs and
authorizes such Swing Line Lender to act on its behalf), request (provided that
such request shall be deemed to have been automatically made upon the occurrence
of an Event of Default under subsection 9(f)) each U.S. RCF Lender, including
the Swing Line Lender to make a U.S. RCF Loan as an ABR Loan in an amount equal
to such U.S. RCF Lender's U.S. RCF Commitment Percentage of the principal amount
of all Swing Line Loans made in Dollars (each, a "Mandatory RCF Loan Borrowing")
in an amount equal to such U.S. RCF Lender's U.S. RCF Commitment Percentage of
the principal amount of all of the Swing Line Loans (collectively, the "Refunded
Swing Line Loans") outstanding on the date such notice is given; provided that
the provisions of this subsection shall not affect the obligations of any U.S.
Borrower to prepay Swing Line Loans in accordance with the provisions of
subsection 4.4(d). Unless the U.S. RCF Commitments shall have expired or
terminated (in which event the procedures of paragraph (d) of this subsection
2.4 shall apply), each U.S. RCF Lender hereby agrees to make the proceeds of its
U.S. RCF Loan (including any Eurocurrency Loan) available to the U.S.
Administrative Agent for the account of the Swing Line Lender at the office of
the U.S. Administrative Agent prior to 12:00 Noon, New York City time, in funds
immediately available on the Business Day next succeeding the date such notice
is given notwithstanding (i) that the amount of the Mandatory RCF Loan Borrowing
may not comply with the minimum amount for RCF Loans otherwise required
hereunder, (ii) whether any conditions specified in subsection 6.2 are then
satisfied, (iii) whether a Default or an Event of Default then exists, (iv) the
date of such Mandatory RCF Loan Borrowing and (v) the amount of the U.S. RCF
Commitment of such, or any other, U.S. RCF Lender at such time. The proceeds of
such U.S. RCF Loans shall be immediately applied to repay the Refunded Swing
Line Loans.
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(d) If the U.S. RCF Commitments shall expire or terminate at any time
while Swing Line Loans are outstanding, each U.S. RCF Lender shall, at the
option of the Swing Line Lender, exercised reasonably, either (i)
notwithstanding the expiration or termination of the U.S. RCF Commitments, make
a U.S. RCF Loan as an ABR Loan (which U.S. RCF Loan shall be deemed a "U.S. RCF
Loan" for all purposes of this Agreement and the other Loan Documents) or (ii)
purchase an undivided participating interest in such Swing Line Loans, in either
case in an amount equal to such U.S. RCF Lender's U.S. RCF Commitment Percentage
(determined on the date of, and immediately prior to, expiration or termination
of the U.S. RCF Commitments) of the aggregate principal amount of such Swing
Line Loans; provided, that in the event that any Mandatory RCF Loan Borrowing
cannot for any reason be made on the date otherwise required above (including as
a result of the commencement of a proceeding under any domestic or foreign
bankruptcy, reorganization, dissolution, insolvency, receivership,
administration or liquidation or similar law with respect to any Borrower), then
each U.S. RCF Lender hereby agrees that it shall forthwith purchase (as of the
date the Mandatory RCF Loan Borrowing would otherwise have occurred, but
adjusted for any payments received from such Borrower on or after such date and
prior to such purchase) from the Swing Line Lender such participations in such
outstanding Swing Line Loans as shall be necessary to cause such U.S. RCF
Lenders to share in such Swing Line Loans ratably based upon their respective
U.S. RCF Commitment Percentages, provided, further, that (x) all interest
payable on the Swing Line Loans shall be for the account of the Swing Line
Lender until the date as of which the respective participation is required to be
purchased and, to the extent attributable to the purchased participation, shall
be payable to the participant from and after such date and (y) at the time any
purchase of participations pursuant to this sentence is actually made, the
purchasing U.S. RCF Lender shall be required to pay the Swing Line Lender
interest on the principal amount of the participation purchased for each day
from and including the day upon which the Mandatory RCF Loan Borrowing would
otherwise have occurred to but excluding the date of payment for such
participation, at the rate otherwise applicable to U.S. RCF Loans made as ABR
Loans. Each U.S. RCF Lender will make the proceeds of any U.S. RCF Loan made
pursuant to the immediately preceding sentence available to the U.S.
Administrative Agent for the account of the Swing Line Lender at the office of
the U.S. Administrative Agent prior to 12:00 Noon, New York City time, in funds
immediately available on the Business Day next succeeding the date on which the
U.S. RCF Commitments expire or terminate, in Dollars. The proceeds of such U.S.
RCF Loans shall be immediately applied to repay the Swing Line Loans outstanding
on the date of termination or expiration of the U.S. RCF Commitments. In the
event that the U.S. RCF Lenders purchase undivided participating interests
pursuant to the first sentence of this paragraph (d), each U.S. RCF Lender shall
immediately transfer to the Swing Line Lender, in immediately available funds
and in the currency in which such Swing Line Loans were made, the amount of its
participation and upon receipt thereof the Swing Line Lender will deliver to
such U.S. RCF Lender a Swing Line Loan Participation Certificate dated the date
of receipt of such funds and in such amount.
(e) Whenever, at any time after the Swing Line Lender has received
from any U.S. RCF Lender such U.S. RCF Lender's participating interest in a
Swing Line Loan, the Swing Line Lender receives any payment on account thereof
(whether directly from the Parent Borrower or any other Borrower in respect of
such Swing Line Loan or otherwise, including proceeds of Collateral applied
thereto by the Swing Line Lender), or any payment of interest on account
thereof, the Swing Line Lender will, if such payment is received prior to 1:00
P.M., New York City time, on a Business Day, distribute to such U.S. RCF Lender
its pro rata share thereof
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prior to the end of such Business Day and otherwise, the Swing Line Lender will
distribute such payment on the next succeeding Business Day (appropriately
adjusted, in the case of interest payments, to reflect the period of time during
which such U.S. RCF Lender's participating interest was outstanding and funded);
provided, however, that in the event that such payment received by the Swing
Line Lender is required to be returned, such U.S. RCF Lender will return to the
Swing Line Lender any portion thereof previously distributed by the Swing Line
Lender to it.
(f) Each U.S. RCF Lender's obligation to make the U.S. RCF Loans and
to purchase participating interests with respect to Swing Line Loans in
accordance with subsections 2.5(c) and 2.5(d) shall be absolute and
unconditional and shall not be affected by any circumstance, including without
limitation (i) any set-off, counterclaim, recoupment, defense or other right
that such U.S. RCF Lender or any of the Borrowers may have against the Swing
Line Lender, any of the Borrowers or any other Person for any reason whatsoever;
(ii) the occurrence or continuance of a Default or an Event of Default; (iii)
any adverse change in condition (financial or otherwise) of any of the
Borrowers; (iv) any breach of this Agreement or any other Loan Document by any
of the Borrowers, any other Loan Party or any other U.S. RCF Lender; (v) any
inability of any of the Borrowers to satisfy the conditions precedent to
borrowing set forth in this Agreement on the date upon which such U.S. RCF Loan
is to be made or participating interest is to be purchased or (vi) any other
circumstance, happening or event whatsoever, whether or not similar to any of
the foregoing.
2.6 Repayment of Loans. (a) (1) Each U.S. Borrower hereby
unconditionally promises to pay to the U.S. Administrative Agent (in the
currency in which such Loan is denominated) for the account of: (i) each Term
Loan Lender the then unpaid principal amount of each Term Loan of such Lender
made to such Borrower, on the Term Loan Maturity Date (or such earlier date on
which the Term Loans become due and payable pursuant to Section 9); (ii) each
U.S. RCF Lender or each Canadian RCF Lender, as applicable, the then unpaid
principal amount of each RCF Loan of such Lender made to such U.S. Borrower, on
the RCF Maturity Date (or such earlier date on which the RCF Loans become due
and payable pursuant to Section 9); and (iii) the Swing Line Lender, the then
unpaid principal amount of the Swing Line Loans made to such U.S. Borrower, on
the RCF Maturity Date (or such earlier date on which the Swing Line Loans become
due and payable pursuant to Section 9). Each U.S. Borrower hereby further agrees
to pay interest (which payments shall be in the same currency in which the
respective Loan referred to above is denominated) on the unpaid principal amount
of such Loans from time to time outstanding from the date hereof until payment
in full thereof at the rates per annum, and on the dates, set forth in
subsection 4.1.
(2) For the avoidance of doubt it is acknowledged and agreed by the
parties hereto, that RSC, as co-obligor of any Loan made to another U.S.
Borrower, hereby unconditionally promises to pay to the U.S. Administrative
Agent (in the currency in which such Loan is denominated) any amount required to
be paid by such U.S. Borrower pursuant to Section 2.6(a)(1) or any other
provision to this Agreement. Any reference to a Loan being made to a U.S.
Borrower shall be treated as also having been made to RSC as co-obligor.
(b) Each Canadian Borrower hereby unconditionally promises to pay to
the Canadian Administrative Agent (in Canadian Dollars) for the account of each
Canadian RCF
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Lender, the then unpaid principal or face amount, as the case may be, of each
Canadian RCF Loan of such Lender made to such Borrower, on the RCF Maturity Date
(or such earlier date on which the Canadian RCF Loans become due and payable
pursuant to Section 9). Each Canadian Borrower hereby further agrees to pay
interest (which payments shall be in the same currency in which the respective
Loan referred to above is denominated) on the unpaid principal amount of such
Loans from time to time outstanding from the date hereof until payment in full
thereof at the rates per annum, and on the dates, set forth in subsection 4.1.
(c) From and after the date Canadian Xxxxx executes a Borrower Joinder
Agreement, Canadian Xxxxx unconditionally promises to pay to the Canadian
Administrative Agent (in Dollars), for the account of each Lender, the then
unpaid principal amount of each Loan of such Lender made to Canadian Xxxxx, on
the respective Maturity Date (or such earlier date on which the Loans become due
and payable pursuant to Section 9). From and after the date Canadian Xxxxx
executes a Borrower Joinder Agreement, Canadian Xxxxx further agrees to pay
interest (in Dollars) on the unpaid principal amount of such Loans from time to
time outstanding from the date hereof until payment in full thereof at the rates
per annum, and on the dates, set forth in subsection 4.1.
(d) Each Lender (including the Swing Line Lender) shall maintain in
accordance with its usual practice an account or accounts evidencing
indebtedness of each of the Borrowers to such Lender resulting from each Loan of
such Lender from time to time, including the amounts of principal and interest
payable and paid to such Lender from time to time under this Agreement.
(e) The U.S. Administrative Agent shall maintain the Register pursuant
to subsection 11.6(b), and a subaccount therein for each Lender, in which shall
be recorded (i) the amount of each Loan made hereunder, the Type thereof, the
Borrowers to which such Loan is made, each Interest Period, if any, applicable
thereto and whether such Loans are Term Loans, U.S. RCF Loans, Canadian RCF
Loans or Swing Line Loans, (ii) the amount of any principal or interest due and
payable or to become due and payable from each of the Borrowers to each
applicable Lender hereunder and (iii) both the amount of any sum received by the
U.S. Administrative Agent and the Canadian Administrative Agent hereunder from
each of the Borrowers and each applicable Lender's share thereof.
(f) The entries made in the Register and the accounts of each Lender
maintained pursuant to subsection 2.6(e) shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the
obligations of each of the Borrowers therein recorded; provided, however, that
the failure of any Lender or the U.S. Administrative Agent to maintain the
Register or any such account, or any error therein, shall not in any manner
affect the obligation of any Borrower to repay (with applicable interest) the
Loans made to such Borrower by such Lender in accordance with the terms of this
Agreement.
2.7 Incremental Commitments. (a) So long as the Syndication Date has
occurred and no Default or Event of Default exists or would arise therefrom, (i)
the Canadian Borrowers shall have the right, at any time and from time to time
after the Closing Date, to request an increase of the aggregate of the then
outstanding Canadian RCF Commitments by an amount not to exceed in the aggregate
(A) $200,000,000 minus (B) the amount of any increases
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in the RCF Commitments and any Incremental Term Loan Commitments provided to the
U.S. Borrowers and/or Canadian Xxxxx pursuant to this subsection 2.7 after the
Closing Date, (ii) the U.S. Borrowers shall have the right, at any time and from
time to time after the Closing Date, to request (x) an increase of the aggregate
of the then outstanding U.S. RCF Commitments by an amount not to exceed in the
aggregate (A) $200,000,000 minus (B) the amount of any increases in the RCF
Commitments and any Incremental Term Loan Commitments provided to the U.S.
Borrowers and/or Canadian Xxxxx made pursuant to this subsection 2.7 after the
Closing Date and (y) the Lenders to provide Incremental Term Loan Commitments to
the U.S. Borrowers in an amount not to exceed in the aggregate (A) $200,000,000
minus (B) the amount of any increases in the RCF Commitments and any Incremental
Term Loan Commitment provided pursuant to this subsection 2.7 after the Closing
Date and (iii) Canadian Xxxxx shall have the right, at any time and from time to
time after the date on which Canadian Xxxxx executes and delivers a Borrower
Joinder Agreement, to request the Lenders to provide Incremental Term Loan
Commitments to Canadian Xxxxx in an amount not to exceed in the aggregate the
lesser of (I) $75,000,000 and (II) (A) $200,000,000 minus (B) the amount of any
increases in the RCF Commitments and any Incremental Term Loan Commitment
provided to the U.S. Borrowers and/or Canadian Xxxxx pursuant to this subsection
2.7 after the Closing Date. For the avoidance of doubt, the aggregate increase
of all RCF Commitments and all Incremental Term Loan Commitments obtained by the
Borrowers under this subsection 2.7 shall not exceed $200,000,000. Any such
requested increase shall be first made to all applicable existing Lenders on a
pro rata basis. To the extent that such existing Lenders decline to increase
their Commitments or to provide Incremental Term Loan Commitments, or decline to
increase their Commitments or to provide Incremental Term Loan Commitments to
the amount requested by the respective Borrower or Borrowers, the U.S.
Administrative Agent, in consultation with the Parent Borrower, will use
commercially reasonable efforts to arrange for other Persons to become Canadian
RCF Lenders or U.S. RCF Lenders, or to provide Incremental Term Loan
Commitments, as applicable, hereunder and to issue commitments in an amount
equal to the amount of the increase in the Total Canadian RCF Commitment
requested by the Canadian Borrowers or the Total U.S. RCF Commitment or the
Incremental Term Loan Commitments requested by the U.S. Borrowers or Canadian
Xxxxx, as the case may be, and not accepted by the existing Lenders (each such
increase by either means, a "Commitment Increase," and each Person issuing, or
Lender increasing, its Commitment, an "Additional Commitment Lender"), provided,
however, that (i) no Lender shall be obligated to provide a Commitment Increase
as a result of any such request by any Borrower and (ii) any Additional
Commitment Lender which is not an existing Lender shall be subject to the
approval of, (X) in the case of the U.S. RC Facility, the U.S. Administrative
Agent, the U.S. RCF Issuing Lender and the U.S. Borrowers, (Y) in the case of
the Canadian RC Facility, the Canadian Administrative Agent, the Canadian RCF
Issuing Lender and the Canadian Borrowers (each such approval not to be
unreasonably withheld) and (Z) in the case of any such Additional Commitment
Lender providing an Incremental Term Loan Commitment, the U.S. Administrative
Agent and the Parent Borrower and (iii) each Additional Commitment Lender which
is a Canadian RCF Lender shall be in compliance with the provisions of
subsection 4.15. Each Commitment Increase shall be in a minimum aggregate amount
of at least $25,000,000 and in integral multiples of $25,000,000 in excess
thereof.
(b) No Commitment Increase shall become effective unless and until
each of the following conditions have been satisfied:
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(i) the applicable Borrowers, the U.S. Administrative Agent, and any
Additional Commitment Lender shall have executed and delivered an
incremental commitment agreement in substantially the form of Exhibit C
hereto ("Incremental Commitment Agreement") pursuant to which the
respective additional Commitments or Incremental Term Loan Commitments
shall be provided;
(ii) the applicable Borrowers shall have paid such fees and other
compensation to the Additional Commitment Lenders and to the U.S.
Administrative Agent or the Canadian Administrative Agent, as applicable,
as the applicable Borrowers and such Additional Commitment Lenders shall
agree;
(iii) the applicable Borrowers, if requested by the respective
Administrative Agent, shall deliver to the U.S. Administrative Agent or the
Canadian Administrative Agent, as applicable, and the Lenders an opinion or
opinions, in form and substance reasonably satisfactory to the U.S.
Administrative Agent or the Canadian Administrative Agent, as applicable,
from counsel to the applicable Borrowers reasonably satisfactory to the
U.S. Administrative Agent or the Canadian Administrative Agent, as
applicable, and dated such date;
(iv) an RCF Note or Incremental Term Loan Note, as applicable (to the
extent requested), will be issued at the applicable Borrowers' expense, to
each such Additional Commitment Lender, to be in conformity with
requirements of subsection 2.1(d) or 2.2(e), as the case may be (with
appropriate modification), to the extent necessary to reflect the new
Commitment of each Additional Commitment Lender; and
(v) the applicable Borrowers and Additional Commitment Lender shall
have delivered such other instruments, documents and agreements as the U.S.
Administrative Agent or the Canadian Administrative Agent, as applicable,
may reasonably have requested in order to effectuate the documentation of
the foregoing.
(c) The U.S. Administrative Agent shall promptly notify each Lender as
to the effectiveness of each Commitment Increase (with each date of such
effectiveness being referred to herein as a "Commitment Increase Date"), and at
such time (i) the Commitments under, and for all purposes of, this Agreement
shall be increased by the aggregate amount of such Commitment Increases, (ii)
Schedule A shall be deemed modified, without further action, to reflect the
revised U.S. RCF Commitments and U.S. RCF Commitment Percentages of the U.S. RCF
Lenders or Canadian RCF Commitments and Canadian RCF Commitment Percentages of
the Canadian RCF Lenders and (iii) this Agreement shall be deemed amended,
without further action, to the extent necessary to reflect such increased
Commitments.
(d) All Incremental Term Loans incurred by the U.S. Borrowers shall
constitute part of, and be added to, the Tranche of Initial Term Loans and
shall:
(i) have the same Maturity Date and the same Weighted Average Life to
Maturity as the Tranche of Initial Term Loans, and shall bear interest at
the same rates (i.e., have the same Applicable Margins) applicable to the
Initial Term Loans, and
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(ii) have the same scheduled repayment dates as then remain with
respect to the Initial Term Loans (with the amount of each scheduled
repayment applicable to such new Incremental Term Loans to be the same (on
a proportionate basis) as is theretofore applicable to the Initial Term
Loans, thereby increasing the amount of each then remaining scheduled
repayment.
(e) All Incremental Term Loans incurred by Canadian Xxxxx shall
constitute a new Tranche of Term Loans, provided that all such Incremental Term
Loans shall:
(i) except as may be agreed to by the respective Incremental Term Loan
Lenders providing such Incremental Term Loans and the Administrative Agent
(acting reasonably), have the same Maturity Date and the same Weighted
Average Life to Maturity as the Tranche of Initial Term Loans, shall bear
interest at the same rates (i.e., have the same Applicable Margins)
applicable to the Initial Term Loans, and shall have the same scheduled
repayment dates as then remain with respect to the Initial Term Loans, and
(ii) shall not be subject to the mandatory prepayment provisions
contained in subsection 4.4(b).
(f) In connection with each incurrence of Incremental Term Loans
pursuant to subsection 2.1(c) that will be added to (and from a part of) the
Initial Term Loans, the Lenders and the Borrowers hereby agree that,
notwithstanding anything to the contrary contained in this Agreement, the
Borrowers and the Administrative Agent may take all such actions as may be
necessary to ensure that all Lenders with outstanding Initial Term Loans
continue to participate in each Borrowing of outstanding Initial Term Loans
(after giving effect to the incurrence of Incremental Term Loans pursuant to
subsection 2.1(c)) on a pro rata basis, including by adding the Incremental Term
Loans to be so incurred to the then outstanding Borrowings of Initial Term Loans
on pro rata basis even though as a result thereof such new Incremental Term Loan
(to the extent required to be maintained as Eurocurrency Loans), may effectively
have a shorter Interest Period than the outstanding Borrowings of Initial Term
Loans and it is hereby agreed that (x) to the extent any the outstanding
Borrowings of Initial Term Loans that are maintained as Eurocurrency Loans are
affected as a result thereof, any costs of the type described in subsection 4.12
incurred by such Lenders in connection therewith shall be for the account of the
applicable Borrowers or (y) to the extent the Incremental Term Loans to be so
incurred are added to the then outstanding Borrowings of Initial Term Loans
which are maintained as Eurocurrency Loans, the Lenders that have made such
additional Incremental Term Loans shall be entitled to receive an effective
interest rate on such additional Incremental Term Loans as is equal to the
Eurocurrency Rate as in effect two Business Days prior to the incurrence of such
additional Incremental Term Loans plus the then Applicable Margin for Initial
Term Loans until the end of the respective Interest Period or Interest Periods
with respect thereto.
(g) In connection with the Commitment Increases hereunder, the Lenders
and the Borrowers agree that, notwithstanding anything to the contrary in this
Agreement, (i) the applicable Borrowers shall, in coordination with the U.S.
Administrative Agent, (x) repay applicable outstanding RCF Loans of certain
Lenders, and obtain applicable RCF Loans from certain other Lenders (including
the Additional Commitment Lenders), or (y) take such other
70
actions as reasonably may be required by the U.S. Administrative Agent, in each
case to the extent necessary so that the Lenders effectively participate in each
of the outstanding U.S. RCF or Canadian RCF Loans, as applicable, pro rata on
the basis of their U.S. RCF Commitment Percentages or Canadian RCF Commitment
Percentages, as applicable (determined after giving effect to any increase in
the RCF Commitments pursuant to this subsection 2.7), and (ii) the applicable
Borrowers shall pay to the Lenders any costs of the type referred to in
subsection 4.12 in connection with any repayment and/or RCF Loans required
pursuant to preceding clause (i). Without limiting the obligations of the
Borrowers provided for in this subsection 2.7, the U.S. Administrative Agent and
the Lenders agree that they will use their best efforts to attempt to minimize
the costs of the type referred to in subsection 4.12 which the Borrowers would
otherwise occur in connection with the implementation of an increase in the U.S.
RCF Commitments or the Canadian RCF Commitments.
(h) Each Lender hereby covenants and agrees to enter into any
technical amendments necessary in connection with the provision of Commitment
Increases hereunder in accordance with the provisions of this subsection 2.7 and
the respective Incremental Commitment Agreement, provided that such amendment
shall be strictly limited to the provisions necessary to incorporate the
appropriate provisions for such Commitment Increase.
Section 3. Letters of Credit.
3.1 L/C Commitment. (a) Subject to the terms and conditions hereof,
each Issuing Lender, in reliance on the agreements of the other RCF Lenders set
forth in subsection 3.4(a), agrees to issue Letters of Credit for the account of
the applicable Borrower (other than Canadian Xxxxx) on any Business Day during
the Commitment Period but in no event later than the 30th day prior to the RCF
Maturity Date in such form as may be approved from time to time by the
respective Issuing Lender; provided that no Letter of Credit shall be issued if,
after giving effect to such issuance, (i) (A) aggregate Canadian RCF L/C
Obligations shall exceed $15,000,000 or (B) the aggregate Extensions of Credit
to the U.S. Borrowers, the Canadian Borrowers or any Borrower would exceed the
applicable limitations set forth in subsection 2.2 or 2.5 (it being understood
and agreed that the U.S. Administrative Agent or the Canadian Administrative
Agent shall calculate the Dollar Equivalent of the then outstanding RCF Loans in
Canadian Dollars on the date on which the applicable Borrower has requested that
the applicable Issuing Lender issue a Letter of Credit for purposes of
determining compliance with this clause (i)), (ii) the L/C Obligations in
respect of Letters of Credit would exceed $400,000,000 or (iii) the Aggregate
Outstanding RCF Credit of all the RCF Lenders would exceed the RCF Commitments
of all the RCF Lenders then in effect. Each Letter of Credit shall (i) be
denominated in Dollars or Canadian Dollars, as requested by the applicable
Borrower, and shall be either (A) a standby letter of credit issued to support
obligations of the Parent Borrower or any of its Subsidiaries (other than
Canadian Xxxxx), contingent or otherwise, which finance or otherwise arise in
connection with the working capital and business needs of the Parent Borrower
and its Subsidiaries incurred in the ordinary course of business (a "Standby
Letter of Credit"), or (B) a commercial letter of credit in respect of the
purchase of goods or services by the Parent Borrower or any of its Subsidiaries
(other than Canadian Xxxxx) in the ordinary course of business (a "Documentary
L/C"), and (ii) unless otherwise agreed by the U.S. Administrative Agent or the
Canadian Administrative Agent, as applicable, expire no later than the earlier
of (I) (A) one year after its date of issuance and (B) the 10th day prior to the
RCF Maturity Date, in the
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case of Standby Letters of Credit (subject, if requested by the applicable
Borrower and agreed to by the Issuing Lender, to auto-renewals for successive
periods not exceeding one year and ending prior to the 10th day prior to the RCF
Maturity Date), or (II) (A) 180 days after its date of issuance and (B) the 30th
day prior to the RCF Maturity Date, in the case of Documentary L/Cs. Each Letter
of Credit issued by the U.S. RCF Issuing Lender shall be deemed to constitute a
utilization of the U.S. RCF Commitments and each Letter of Credit issued by the
Canadian RCF Issuing Lender shall be deemed to constitute a utilization of the
Canadian RCF Commitments, and shall be participated in (as more fully described
in following subsection 3.4) by the U.S. RCF Lenders or the Canadian RCF
Lenders, as applicable, in accordance with their respective U.S. RCF Commitment
Percentages or Canadian RCF Commitment Percentages, as applicable. All Letters
of Credit issued under the U.S. RC Facility shall be denominated in Dollars and
shall be issued for the account of the applicable U.S. Borrower. All Letters of
Credit issued under the Canadian RC Facility shall be denominated in Canadian
Dollars requested by the applicable Borrower and shall be issued for the account
of the applicable Borrower.
(b) Unless otherwise agreed by the applicable Issuing Lender and the
Parent Borrower, each Letter of Credit shall be subject to the Uniform Customs,
and, to the extent not inconsistent therewith, the laws of the State of New
York. All Letters of Credit shall be issued payable on a sight basis only.
(c) No Issuing Lender shall at any time issue any Letter of Credit
hereunder if such issuance would conflict with, or cause such Issuing Lender or
any L/C Participant to exceed any limits imposed by, any applicable Requirement
of Law.
(d) Notwithstanding anything contained in Section 3, no Issuing Lender
shall at any time issue any Letter of Credit for the account of Canadian Xxxxx.
3.2 Procedure for Issuance of Letters of Credit. (a) The applicable
U.S. Borrower or Canadian Borrower may from time to time request during the
Commitment Period but in no event later than the 30th day prior to the RCF
Maturity Date that an Issuing Lender issue a Letter of Credit by delivering to
such Issuing Lender and the U.S. Administrative Agent or the Canadian
Administrative Agent, as applicable, at their respective addresses for notices
specified herein, an L/C Request therefor substantially in the form Exhibit D
hereto (completed to the reasonable satisfaction of such Issuing Lender), and
such other certificates, documents and other papers and information as such
Issuing Lender may reasonably request. Each L/C Request shall specify that the
requested Letter of Credit is to be denominated in Dollars or, in the case of
Letters of Credit issued for the account of the Canadian Borrowers, Canadian
Dollars. Upon receipt of any L/C Request, such Issuing Lender will process such
L/C Request and the certificates, documents and other papers and information
delivered to it in connection therewith in accordance with its customary
procedures and shall promptly issue the Letter of Credit requested thereby (but
in no event shall an Issuing Lender be required, unless otherwise agreed to by
such Issuing Lender, to issue any Letter of Credit earlier than three Business
Days after its receipt of the L/C Request therefor and all such other
certificates, documents and other papers and information relating thereto) by
issuing the original of such Letter of Credit to the beneficiary thereof or as
otherwise may be agreed by such Issuing Lender and the applicable U.S. Borrower
or Canadian Borrower. The applicable Issuing Lender shall furnish a copy of such
Letter of Credit to the applicable U.S. Borrower or Canadian Borrower promptly
following
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the issuance thereof. Promptly after the issuance or amendment of any Standby
Letter of Credit, the applicable Issuing Lender shall notify the applicable U.S.
Borrower or Canadian Borrower and the U.S. Administrative Agent or the Canadian
Administrative Agent, as applicable, in writing, of such issuance or amendment
and such notice shall be accompanied by a copy of such issuance or amendment.
Upon receipt of such notice, the U.S. Administrative Agent or the Canadian
Administrative Agent, as applicable, shall promptly notify the applicable
Lenders, in writing, of such issuance or amendment, and if so requested by a
Lender, the U.S. Administrative Agent or the Canadian Administrative Agent, as
applicable, shall provide to such Lender copies of such issuance or amendment.
With regards to Documentary L/Cs, the Issuing Lender shall on the first Business
Day of each week provide the U.S. Administrative Agent or the Canadian
Administrative Agent, as applicable, by facsimile, with a report detailing the
aggregate daily outstanding Documentary L/Cs during the previous week.
(b) The making of each request for a Letter of Credit by any U.S.
Borrower or Canadian Borrower shall be deemed to be a representation and
warranty by such Borrower that such Letter of Credit may be issued in accordance
with, and will not violate the requirements of, subsection 3.1. Unless the
respective Issuing Lender has received notice from the Required Lenders before
it issues a Letter of Credit that one or more of the applicable conditions
specified in Section 6.2 are not then satisfied, or that the issuance of such
Letter of Credit would violate subsection 3.1, then such Issuing Lender may
issue the requested Letter of Credit for the account of the applicable Borrower
in accordance with such Issuing Lender's usual and customary practices.
3.3 Fees, Commissions and Other Charges. (a) Each U.S. Borrower and
Canadian Borrower agrees to pay to the U.S. Administrative Agent or the Canadian
Administrative Agent, as applicable, a letter of credit commission with respect
to each Letter of Credit issued by such Issuing Lender on its behalf, computed
for the period from and including the date of issuance of such Letter of Credit
through to the expiration date of such Letter of Credit at a rate per annum
equal to the Applicable Margin then in effect for Eurocurrency Loans that are
RCF Loans calculated on the basis of a 360 day year of the aggregate amount
available to be drawn under such Letter of Credit during such period, payable
quarterly in arrears on each L/C Fee Payment Date with respect to such Letter of
Credit and on the RCF Maturity Date or such earlier date as the RCF Commitments
shall terminate as provided herein. Such commission shall be payable to the U.S.
Administrative Agent or the Canadian Administrative Agent, as applicable, for
the account of the applicable RCF Lenders to be shared ratably among them in
accordance with their respective U.S. RCF Commitment Percentages or Canadian RCF
Commitment Percentages. Each U.S. Borrower and Canadian Borrower shall pay to
the relevant Issuing Lender a fee equal to 1/4 of 1% per annum (but in no event
less than $500 per annum for each Letter of Credit issued on its behalf) of the
aggregate amount available to be drawn under such Letter of Credit, payable
quarterly in arrears on each L/C Fee Payment Date with respect to such Letter of
Credit and on the RCF Maturity Date or such other date as the RCF Commitments
shall terminate. Such commissions and fees shall be nonrefundable. Such fees and
commissions shall be payable in Dollars (or, in the case of Letters of Credit
issued for the account of the Canadian Borrowers, Canadian Dollars).
(b) In addition to the foregoing commissions and fees, each U.S.
Borrower and Canadian Borrower agrees to pay or reimburse the applicable Issuing
Lender for such
73
normal and customary costs and expenses as are incurred or charged by such
Issuing Lender in issuing, effecting payment under, amending or otherwise
administering any Letter of Credit issued by such Issuing Lender on its behalf.
(c) The U.S. Administrative Agent and the Canadian Administrative
Agent shall, promptly following any receipt thereof, distribute to the
applicable Issuing Lender and the applicable L/C Participants all commissions
and fees received by such Agent for their respective accounts pursuant to this
subsection 3.3.
3.4 L/C Participations. (a) Each Issuing Lender irrevocably agrees to
grant and hereby grants to each U.S. RCF L/C Participant or Canadian RCF L/C
Participant, as applicable, and, to induce the Issuing Lender to issue Letters
of Credit hereunder, each L/C Participant irrevocably agrees to accept and
purchase and hereby accepts and purchases from the applicable Issuing Lender,
without recourse or warranty, on the terms and conditions hereinafter stated,
for such L/C Participant's own account and risk an undivided interest equal to
such L/C Participant's U.S. RCF Commitment Percentage or Canadian RCF Commitment
Percentage, as applicable, (determined on the date of issuance of the relevant
Letter of Credit) in such Issuing Lender's obligations and rights under each
Letter of Credit issued or continued hereunder, the amount of each draft paid by
such Issuing Lender thereunder and the obligations of the applicable Borrowers
under this Agreement with respect thereto (although L/C Fees and related
commissions shall be payable directly to the U.S. Administrative Agent or the
Canadian Administrative Agent, as applicable, for the account of the applicable
Issuing Lender and L/C Participants, as provided in subsection 3.3 and the L/C
Participants shall have no right to receive any portion of any facing fees with
respect to any such Letters of Credit) and any security therefor or guaranty
pertaining thereto. Each L/C Participant unconditionally and irrevocably agrees
with such Issuing Lender that, if a draft is paid under any Letter of Credit for
which such Issuing Lender is not reimbursed in full by the applicable Borrower
in respect of such Letter of Credit in accordance with subsection 3.5(a), such
L/C Participant shall pay to such Issuing Lender upon demand at such Issuing
Lender's address for notices specified herein an amount equal to such L/C
Participant's U.S. RCF Commitment Percentage or Canadian RCF Commitment
Percentage, as applicable, of the amount of such draft, or any part thereof,
which is not so reimbursed; provided that nothing in this paragraph shall
relieve such Issuing Lender of any liability resulting from the gross negligence
or willful misconduct (as determined in a final non-appealable decision issued
by a court of competent jurisdiction) of such Issuing Lender, or otherwise
affect any defense or other right that any L/C Participant may have as a result
of such gross negligence or willful misconduct (as so determined). All
calculations of an L/C Participant's U.S. RCF Commitment Percentage and Canadian
RCF Commitment Percentage shall be made from time to time by the U.S.
Administrative Agent and the Canadian Administrative Agent, respectively, which
calculations shall be conclusive absent manifest error.
(b) If any amount required to be paid by any L/C Participant to an
Issuing Lender on demand by such Issuing Lender pursuant to subsection 3.4(a) in
respect of any unreimbursed portion of any payment made by such Issuing Lender
under any Letter of Credit is paid to such Issuing Lender within three Business
Days after the date such demand is made, such L/C Participant shall pay to such
Issuing Lender on demand an amount equal to the product of such amount, times
the daily average Federal Funds Effective Rate (or, in the case of a Canadian
RCF Lender, the interbank rate customarily charged by the Canadian
Administrative Agent)
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during the period from and including the date such payment is required to the
date on which such payment is immediately available to such Issuing Lender,
times a fraction the numerator of which is the number of days that elapse during
such period and the denominator of which is 360. If any such amount required to
be paid by any L/C Participant pursuant to subsection 3.4(a) is not in fact made
available to such Issuing Lender by such L/C Participant within three Business
Days after the date such payment is due, such Issuing Lender shall be entitled
to recover from such L/C Participant, on demand, such amount with interest
thereon (with interest based on the Dollar Equivalent of any amounts denominated
in Canadian Dollars) calculated from such due date at the rate per annum
applicable to RCF Loans maintained as ABR Loans accruing interest at the ABR
hereunder. A certificate of an Issuing Lender submitted to any L/C Participant
with respect to any amounts owing under this subsection (which shall include
calculations of any such amounts in reasonable detail) shall be conclusive in
the absence of manifest error.
(c) Whenever, at any time after an Issuing Lender has made payment
under any Letter of Credit and has received from any L/C Participant its pro
rata share of such payment in accordance with subsection 3.4(a), such Issuing
Lender receives any payment related to such Letter of Credit (whether directly
from a Borrower in respect of such Letter of Credit or otherwise, including
proceeds of Collateral applied thereto by such Issuing Lender), or any payment
of interest on account thereof, such Issuing Lender will, if such payment is
received prior to 1:00 P.M., New York City time, on a Business Day, distribute
to such L/C Participant its pro rata share thereof prior to the end of such
Business Day and otherwise such Issuing Lender will distribute such payment on
the next succeeding Business Day; provided, however, that in the event that any
such payment received by an Issuing Lender shall be required to be returned by
such Issuing Lender, such L/C Participant shall return to such Issuing Lender
the portion thereof previously distributed by such Issuing Lender to it.
3.5 Reimbursement Obligation of the Borrowers. (a) Each U.S. Borrower
and Canadian Borrower hereby agrees to reimburse each Issuing Lender, upon
receipt by such Borrower of notice from the applicable Issuing Lender of the
date and amount of a draft presented under any Letter of Credit issued on its
behalf and paid by such Issuing Lender, for the amount of such draft so paid and
any taxes, fees, charges or other costs or expenses reasonably incurred by such
Issuing Lender in connection with such payment. Each such payment shall be made
to the applicable Issuing Lender, at its address for notices specified herein in
the currency in which such Letter of Credit is denominated and in immediately
available funds, on the date on which such Borrower receives such notice, if
received prior to 11:00 A.M., New York City time, on a Business Day and
otherwise on the next succeeding Business Day.
(b) Interest shall be payable under this subsection 3.5(b) on any and
all amounts owing pursuant to subsection 3.5(a) remaining unpaid (taking the
Dollar Equivalent of any amounts denominated in Canadian Dollars, as determined
by the Canadian Administrative Agent, as applicable) by the U.S. Borrowers or
the Canadian Borrowers, as applicable (i) from the date the draft presented
under the affected Letter of Credit is paid to the date on which such applicable
Borrower is required to reimburse such amounts pursuant to paragraph (a) above,
at the rate which would then be payable on any outstanding ABR Loans that are
RCF Loans and (ii) thereafter until payment in full of such amounts, at the rate
which would be payable on any outstanding ABR Loans that are RCF Loans which
were then overdue.
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3.6 Obligations Absolute. (a) Each of the U.S. Borrowers' and the
Canadian Borrowers' obligations under this Section 3 shall be absolute and
unconditional under any and all circumstances and irrespective of any set-off,
counterclaim or defense to payment which any such Borrower may have or have had
against an Issuing Lender, any L/C Participant or any beneficiary of a Letter of
Credit, provided that this paragraph shall not relieve any Issuing Lender or L/C
Participant of any liability resulting from the gross negligence or willful
misconduct of such Issuing Lender or L/C Participant (as determined in a final
non-appealable decision issued by a court of competent jurisdiction), or
otherwise affect any defense or other right that any such Borrower may have as a
result of any such gross negligence or willful misconduct (as so determined).
(b) Each U.S. Borrower and Canadian Borrower and each Lender also
agree with each Issuing Lender that such Issuing Lender and the L/C Participants
shall not be responsible for, and such Borrower's Reimbursement Obligations
under subsection 3.5(a) shall not be affected by, among other things, the
validity or genuineness of documents or of any endorsements thereon, even though
such documents shall in fact prove to be invalid, fraudulent or forged, or any
dispute between or among any Borrower and any beneficiary of any Letter of
Credit or any other party to which such Letter of Credit may be transferred or
any claims whatsoever of any Borrower against any beneficiary of such Letter of
Credit or any such transferee, provided that this paragraph shall not relieve
any Issuing Lender or L/C Participant of any liability resulting from the gross
negligence or willful misconduct of such Issuing Lender or L/C Participant (as
determined in a final non-appealable decision issued by a court of competent
jurisdiction), or otherwise affect any defense or other right that any Borrower
may have as a result of any such gross negligence or willful misconduct (as so
determined).
(c) Neither any Issuing Lender nor any L/C Participant shall be liable
for any error, omission, interruption or delay in transmission, dispatch or
delivery of any message or advice, however transmitted, in connection with any
Letter of Credit, except for errors or omissions caused by such Person's gross
negligence or willful misconduct (as determined in a final non-appealable
decision issued by a court of competent jurisdiction).
(d) Each U.S. Borrower and Canadian Borrower agrees that any action
taken or omitted by the Issuing Lender under or in connection with any Letter of
Credit or the related drafts or documents, if done in the absence of gross
negligence or willful misconduct (as determined in a final non-appealable
decision issued by a court of competent jurisdiction) and in accordance with the
standards of care specified in the Uniform Commercial Code of the State of New
York, shall be binding on each such Borrower and shall not result in any
liability of any Issuing Lender or L/C Participant to any Borrower.
3.7 L/C Payments. If any drafts or document(s) shall be presented for
payment under any Letter of Credit, the applicable Issuing Lender shall promptly
notify the applicable U.S. Borrower or Canadian Borrower of the date and amount
thereof. The responsibility of an Issuing Lender to such Borrower in respect of
any Letter of Credit in connection with any drafts or document(s) presented for
payment under such Letter of Credit shall, in addition to any payment obligation
expressly provided for in such Letter of Credit, be limited to determining that
the documents (including each draft) delivered under such Letter of Credit in
connection with such presentment are in conformity with such Letter of Credit,
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provided that this paragraph shall not relieve such Issuing Lender of any
liability resulting from the gross negligence or willful misconduct of such
Issuing Lender, or otherwise affect any defense or other right that any Borrower
may have as a result of any such gross negligence or willful misconduct (in each
case, as determined in a final non-appealable decision issued by a court of
competent jurisdiction).
3.8 L/C Request. To the extent that any provision of any L/C Request
related to any Letter of Credit is inconsistent with the provisions of this
Section 3, the provisions of this Section 3 shall control.
3.9 Additional Issuing Lenders. Any U.S. Borrower or Canadian Borrower
may, at any time and from time to time with the consent of the U.S.
Administrative Agent or the Canadian Administrative Agent, as applicable (which
consent shall not be unreasonably withheld or delayed), and such Lender,
designate one or more additional Canadian Lenders or U.S. RCF Lenders, as
applicable, to act as an issuing lender under the terms of this Agreement. Any
Lender designated as an issuing lender pursuant to this subsection 3.9 shall be
deemed to be an "Issuing Lender" (in addition to being a Lender) in respect of
Letters of Credit issued or to be issued by such Lender, and, with respect to
such Letters of Credit, such term shall thereafter apply to the other Issuing
Lender or Issuing Lenders and such Lender.
Section 4. General Provisions Applicable to Loans and Letters of
Credit.
4.1 Interest Rates and Payment Dates. (a) Each Eurocurrency Loan shall
bear interest for each day during each Interest Period with respect thereto at a
rate per annum equal to the Eurocurrency Rate determined for such day plus the
Applicable Margin in effect for such day. BA Fees payable in respect of each B/A
Instrument shall be paid by the Canadian Borrowers at the time of the incurrence
(by way of acceptance, purchase or otherwise) of each Bankers' Acceptance Loan.
(b) Each ABR Loan (other than a Canadian RCF Loan made to a Canadian
Borrower) shall bear interest for each day that it is outstanding at a rate per
annum equal to the ABR for such day plus the Applicable Margin in effect for
such day and each ABR Loan that is a Canadian RCF Loan made to a Canadian
Borrower shall bear interest for each day that it is outstanding at a rate per
annum equal to the Canadian Prime Rate in effect for such day plus the
Applicable Margin in effect for such day.
(c) If all or a portion of (i) the principal amount of any Loan, (ii)
any interest payable thereon or (iii) any commitment fee, letter of credit
commission, letter of credit fee or other amount payable hereunder shall not be
paid when due (whether at the stated maturity, by acceleration or otherwise),
such overdue amount shall bear interest at a rate per annum which is (x) in the
case of overdue principal, the rate that would otherwise be applicable thereto
pursuant to the relevant foregoing provisions of subsections 4.1(a) and (b)
plus 2.00%, (y) in the case of overdue interest, the rate that would be
otherwise applicable to principal of the related Loan pursuant to the relevant
foregoing provisions of subsections 4.1(a) and (b) plus 2.00% and (z) in the
case of fees, commissions or other amounts, the rate described in paragraph (b)
of this subsection for ABR Loans that are U.S. RCF Loans (or, in the case of any
such fees, commissions or other amounts owing by the Canadian Borrowers, the
rate described in
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paragraph (b) of this subsection for ABR Loans that are Canadian RCF Loans) plus
2.00%, in each case from the date of such non-payment until such amount is paid
in full (after as well as before judgment).
(d) Interest shall be payable in arrears on each Interest Payment
Date, provided that interest accruing pursuant to paragraph (c) of this
subsection shall be payable from time to time on demand.
(e) It is the intention of the parties hereto to comply strictly with
applicable usury laws; accordingly, it is stipulated and agreed that the
aggregate of all amounts which constitute interest under applicable usury laws,
whether contracted for, charged, taken, reserved, or received, in connection
with the indebtedness evidenced by this Agreement or any Notes, or any other
document relating or referring hereto or thereto, now or hereafter existing,
shall never exceed under any circumstance whatsoever the maximum amount of
interest allowed by applicable usury laws.
(f) Notwithstanding anything to the contrary contained in this
Agreement or in any other Loan Document, solely to the extent that a court of
competent jurisdiction finally determines that the calculation or determination
of interest or any fee payable by the Canadian Borrowers in respect of their
obligations pursuant to this Agreement and the other Loan Documents shall be
governed by the laws of any province of Canada or the federal laws of Canada:
(i) if any provision of this Agreement or of any of the other Loan
Documents would obligate the Canadian Borrowers to make any payment of
interest or other amount payable to any of the U.S. Administrative Agent,
the Canadian Administrative Agent or any Lender under this Agreement or any
other Loan Document in an amount or calculated at a rate which would be
prohibited by law or would result in a receipt by any of the U.S.
Administrative Agent, the Canadian Administrative Agent or any Lender of
interest at a criminal rate (as such terms are construed under the Criminal
Code (Canada)) then, notwithstanding such provisions, such amount or rate
shall be deemed to have been adjusted with retroactive effect to the
maximum amount or rate of interest, as the case may be, as would not be so
prohibited by law or so result in a receipt by the U.S. Administrative
Agent, the Canadian Administrative Agent or any Lender of interest at a
criminal rate, such adjustment to be effected, to the extent necessary, as
follows: (1) firstly, by reducing the amount or rate of interest required
to be paid to the U.S. Administrative Agent, the Canadian Administrative
Agent or any Lender under this subsection 4.1, and (2) thereafter, by
reducing any fees, commissions, premiums and other amounts required to be
paid to the U.S. Administrative Agent, the Canadian Administrative Agent or
any Lender which would constitute "interest" for purposes of Section 347 of
the Criminal Code (Canada). Notwithstanding the foregoing, and after giving
effect to all adjustments contemplated thereby, if the U.S. Administrative
Agent, the Canadian Administrative Agent or any Lender shall have received
an amount in excess of the maximum permitted by that Section of the
Criminal Code (Canada), the Canadian Borrowers shall be entitled, by notice
in writing to the applicable U.S. Administrative Agent, Canadian
Administrative Agent or Lender, to obtain reimbursement from such party in
an amount equal to such excess and, pending such
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reimbursement, such amount shall be deemed to be an amount payable by the
applicable U.S. Administrative Agent, Canadian Administrative Agent or
Lender to the Canadian Borrowers. Any amount or rate of interest referred
to in this subsection 4.1(f)(i) shall be determined in accordance with
generally accepted actuarial practices and principles as an effective
annual rate of interest over the term that the applicable loan remains
outstanding on the assumption that any charges, fees or expenses that fall
within the meaning of "interest" (as defined in the Criminal Code (Canada))
and, in the event of a dispute, a certificate of a Fellow of the Canadian
Institute of Actuaries appointed by the Canadian Administrative Agent shall
be conclusive for the purposes of such determination; and
(ii) For purposes of the Interest Act (Canada) and with respect to
Canadian Loan Parties only:
(A) whenever any interest or fee payable by the Canadian Borrowers is
calculated using a rate based on a year of 360 days or 365 days, as the
case may be, the rate determined pursuant to such calculation, when
expressed as an annual rate, is equivalent to (x) the applicable rate based
on a year of 360 days or 365 days, as the case may be, (y) multiplied by
the actual number of days in the applicable calendar year in which such
rate is to be ascertained and (z) divided by 360 or 365, as the case may
be; and
(B) all calculations of interest payable by the Canadian Borrowers
under this Agreement or any other Loan Document are to be made on the basis
of the nominal interest rate described herein and therein and not on the
basis of effective yearly rates or on any other basis which gives effect to
the principle of deemed reinvestment of interest which principle does not
apply to any interest calculated under this Agreement or any Loan Document.
The parties hereto acknowledge that there is a material difference between
the stated nominal interest rates and the effective yearly rates of
interest and that they are capable of making the calculations required to
determine such effective yearly rates of interest.
4.2 Conversion and Continuation Options. (a) Subject to subsection
4.2(c), the applicable Borrowers may elect from time to time to convert
outstanding (i) Term Loans from Eurocurrency Loans to ABR Loans, (ii) RCF Loans
made or outstanding in Dollars from Eurocurrency Loans to ABR Loans and (iii)
RCF Loans made or outstanding in Canadian Dollars from Bankers' Acceptance Loans
to ABR Loans, in each case by giving the U.S. Administrative Agent or the
Canadian Administrative Agent, as applicable, at least two Business Days' prior
irrevocable notice of such election, provided that any such conversion of
Eurocurrency Loans may only be made on the last day of an Interest Period with
respect thereto and any conversion of Bankers' Acceptance Loans may only be made
on the maturity date thereof and otherwise in accordance with subsection 4.6(c).
The Borrowers may elect from time to time to convert outstanding (i) Term Loans
from ABR Loans to Eurocurrency Loans and (ii) RCF Loans made or outstanding in
Dollars from ABR Loans to Eurocurrency Loans outstanding in Dollars and, in each
case by giving the U.S. Administrative Agent or the Canadian Administrative
Agent, as applicable, at least three Business Days' prior irrevocable notice of
such election. Any such notice of conversion to Eurocurrency Loans outstanding
in Dollars shall specify the length of the initial Interest Period or Interest
Periods therefor. Upon receipt of any
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such notice the U.S. Administrative Agent or the Canadian Administrative Agent,
as applicable, shall promptly notify each affected Lender thereof. All or any
part of outstanding Eurocurrency Loans made or outstanding in Dollars and ABR
Loans may be converted as provided herein, provided that (i) (unless the
Required Lenders otherwise consent) no Loan may be converted into a Eurocurrency
Loan or Bankers' Acceptance Loan when any Default or Event of Default has
occurred and is continuing and, in the case of any Default, the U.S.
Administrative Agent has given notice to the applicable Borrower that no such
conversions may be made and (ii) no Loan may be converted into a Eurocurrency
Loan or Bankers' Acceptance Loan after the date that is one month prior to the
RCF Maturity Date.
(b) Any Eurocurrency Loan may be continued as such upon the expiration
of the then current Interest Period with respect thereto by the applicable
Borrowers giving notice to the U.S. Administrative Agent or the Canadian
Administrative Agent, as applicable, at least three Business Days prior to the
expiration of the then current Interest Period, of the length of the next
Interest Period to be applicable to such Loan, determined in accordance with the
applicable provisions of the term "Interest Period" set forth in subsection 1.1,
provided that no Eurocurrency Loan may be continued as such (i) (unless the
Required Lenders otherwise consent) when any Default or Event of Default has
occurred and is continuing and, in the case of any Default, the U.S.
Administrative Agent has given notice to the applicable Borrower that no such
continuations may be made or (ii) after the date that is one month prior to the
Maturity Date therefor and provided, further, that if the applicable Borrower
shall fail to give any required notice as described above in this paragraph or
if such continuation is not permitted pursuant to the preceding proviso, such
Eurocurrency Loans shall be automatically converted to ABR Loans on the last day
of such then expiring Interest Period. Upon receipt of any such notice of
continuation pursuant to this subsection 4.2(b), the U.S. Administrative Agent
or the Canadian Administrative Agent, as applicable, shall promptly notify each
affected Lender thereof.
(c) Mandatory and voluntary conversions of Bankers' Acceptance Loans
into ABR Loans, or rollovers of Bankers' Acceptance Loans shall be made in the
circumstances, and to the extent, provided in subsection 4.6(c).
4.3 Minimum Amounts of Sets. All borrowings, conversions and
continuations of Loans hereunder and all selections of Interest Periods and
terms to maturity hereunder shall be in such amounts and be made pursuant to
such elections so that, after giving effect thereto, the aggregate principal
amount of (i) Eurocurrency Loans comprising a Set shall be equal to $5,000,000
or a whole multiple of $1,000,000 in excess thereof and (ii) Bankers' Acceptance
Loans comprising a Set shall be equal to $5,000,000 or a whole multiple of
$1,000,000 in excess thereof and so that there shall not be more than 15 Sets at
any one time outstanding (other than sets comprised of new Term Loans, if any).
4.4 Optional and Mandatory Prepayments. (a) Each of the Borrowers may
at any time and from time to time prepay the Loans made to it (other than
Bankers' Acceptance Loans which may not be prepaid prior to the maturity date of
the underlying B/A Instrument) and the Reimbursement Obligations in respect of
Letters of Credit issued for its account, in whole or in part, subject to
subsection 4.12, without premium or penalty, upon at least three Business Days'
irrevocable notice by the applicable Borrower to the U.S. Administrative Agent
or the Canadian Administrative Agent, as applicable (in the case of Eurocurrency
Loans outstanding in
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Dollars), at least one Business Day's irrevocable notice by the applicable
Borrower to the U.S. Administrative Agent or the Canadian Administrative Agent,
as applicable (in the case of (x) ABR Loans other than Swing Line Loans and (y)
Reimbursement Obligations) or same-day irrevocable notice by the applicable
Borrower to the U.S. Administrative Agent or the Canadian Administrative Agent,
as applicable (in the case of Swing Line Loans); provided that, if a notice of
prepayment in connection with a repayment of all outstanding Obligations is
given in connection with a conditional notice of termination of Commitments as
contemplated by subsection 2.4, then such notice of prepayment may be revoked if
such notice of termination is revoked in accordance with subsection 2.4. Such
notice shall specify (A) in the case of any prepayment of Loans, the identity of
the prepaying Borrower, the date and amount of prepayment and whether the
prepayment is (i) of Term Loans, RCF Loans or Swing Line Loans, or a combination
thereof, and (ii) of Eurocurrency Loans, ABR Loans or a combination thereof,
and, in each case if a combination thereof, the principal amount allocable to
each and (B) in the case of any prepayment of Reimbursement Obligations, the
date and amount of prepayment, the identity of the applicable Letter of Credit
or Letters of Credit and the amount allocable to each of such Reimbursement
Obligations. Upon the receipt of any such notice the U.S. Administrative Agent
or the Canadian Administrative Agent, as applicable, shall promptly notify each
affected Lender thereof. If any such notice is given, the amount specified in
such notice shall (subject to the proviso contained in the third preceding
sentence) be due and payable on the date specified therein, together with (if a
Eurocurrency Loan is prepaid other than at the end of the Interest Period
applicable thereto) any amounts payable pursuant to subsection 4.12 and accrued
interest to such date on the amount prepaid. Partial prepayments of the Term
Loans pursuant to this subsection shall be applied ratably to each Tranche of
Term Loans to reduce the required amortization of such Term Loans pursuant to
subsection 2.1(e) as directed by the Parent Borrower. Prepayments of RCF Loans
and the Reimbursement Obligations pursuant to this subsection shall (unless the
Parent Borrower otherwise directs) be applied, first, to payment of the Swing
Line Loans then outstanding, second, to payment of the RCF Loans then
outstanding, third, to payment of any Reimbursement Obligations then outstanding
and, last, to cash collateralize any outstanding Bankers' Acceptance Loans or
L/C Obligations on terms reasonably satisfactory to the U.S. Administrative
Agent; provided, further, that any pro rata calculations required to be made
pursuant to this subsection 4.4(a) in respect to any Loan denominated in
Canadian Dollars shall be made on a Dollar Equivalent basis. Partial prepayments
pursuant to this subsection 4.4(a) shall be in multiples of $1,000,000 (or, in
the case of partial prepayments made by the Canadian Borrowers, Cdn$1,000,000),
provided that, notwithstanding the foregoing, any Loan may be prepaid in its
entirety.
(b) If on or after the Closing Date (i) the Parent Borrower or any of
its Subsidiaries shall incur Indebtedness for borrowed money (other than
Indebtedness permitted pursuant to subsection 8.2, except as otherwise specified
in subsection 8.2) pursuant to a public offering or private placement or
otherwise, (ii) the Parent Borrower or any of its Subsidiaries shall consummate
an Asset Sale, (iii) a Recovery Event occurs or (iv) the Parent Borrower or any
of its Subsidiaries shall enter into a Sale and Leaseback Transaction, then, in
each case, to the extent that and for so long as Available RCF Commitments are
less than $250,000,000 immediately after giving effect to such incurrence of
Indebtedness, Asset Sale, Recovery Event or Sale and Leaseback Transaction, the
relevant Borrowers shall prepay, in accordance with subsection 4.4(e), the Loans
(other than Bankers' Acceptance Loans which may not be prepaid prior to the
maturity date of the underlying B/A Instrument or Incremental Term Loans made to
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Canadian Xxxxx) and cash collateralize the Bankers' Acceptance Loans and the L/C
Obligations in an amount equal to the lesser of: (A) (x) in the case of the
incurrence of any such Indebtedness, 100% of the Net Cash Proceeds thereof; (y)
in the case of any such Asset Sale or Recovery Event, 100% of the Net Cash
Proceeds thereof minus any Reinvested Amounts; and (z) in the case of any such
Sale and Leaseback Transaction, 100% of the Net Cash Proceeds thereof and (B)
the amount of such prepayments required in order for Available RCF Commitments
to be $250,000,000 or more, in each case with such prepayment to be made on the
Business Day following the date of receipt of any such Net Cash Proceeds except
that, in the case of clause (y), if any such Net Cash Proceeds are eligible to
be reinvested in accordance with the definition of the term "Reinvested Amount"
in subsection 1.1 and the Parent Borrower has not elected to reinvest such
proceeds (or portion thereof, as the case may be), such prepayment to be made on
the earlier of (1) the date on which the certificate of a Responsible Officer of
the Parent Borrower to such effect is delivered to the U.S. Administrative Agent
in accordance with such definition and (2) the last day of the period within
which a certificate setting forth such election is required to be delivered in
accordance with such definition). Nothing in this paragraph (b) shall limit the
rights of the Agents and the Lenders set forth in Section 9.
(c) (i) On any day (other than during an Agent Advance Period) on
which the Aggregate U.S. RCF Lender Exposure or the unpaid balance of Extensions
of Credit to, or for the account of, the U.S. Borrowers exceeds the difference
of (A) the U.S. Borrowing Base at such time (based on the Borrowing Base
Certificate last delivered) minus (B) the sum of the excess of (x) (1) the
Aggregate Canadian RCF Lender Exposure (with respect to the Canadian Borrowers)
over (2) the Canadian Borrowing Base at such time (based on the Borrowing Base
Certificate last delivered) and (y) the unpaid balance of Extensions of Credit
to, or for the account of, Canadian Xxxxx, the U.S. Borrowers shall prepay on
such day the principal of outstanding Canadian RCF Loans made to the U.S.
Borrowers and, if required, U.S. RCF Loans in an amount equal to such excess.
If, after giving effect to the prepayment of all outstanding Canadian RCF Loans
made to the U.S. Borrowers and U.S. RCF Loans, the aggregate amount of the U.S.
RCF L/C Obligations and the Canadian RCF L/C Obligations with respect to the
U.S. Borrowers exceeds the difference of (A) the U.S. Borrowing Base at such
time (based on the Borrowing Base Certificate last delivered) minus (B) the
excess of (1) the Aggregate Canadian RCF Lender Exposure (with respect to the
Canadian Borrowers) over (2) the Canadian Borrowing Base at such time (based on
the Borrowing Base Certificate last delivered), the U.S. Borrowers shall pay to
the U.S. Administrative Agent or the Canadian Administrative Agent, as
applicable, at the Payment Office on such day an amount of cash and/or Cash
Equivalents equal to the amount of such excess (up to a maximum amount equal to
such L/C Obligations at such time), such cash and/or Cash Equivalents to be held
as security for all obligations of the U.S. Borrowers to the Issuing Lenders and
the U.S. RCF Lenders hereunder in a cash collateral account to be established
by, and under the sole dominion and control of, the U.S. Administrative Agent.
(ii) Without duplication of any mandatory prepayment required under
subsection 4.4(c)(i) above, on any day (other than during an Agent Advance
Period) on which the Aggregate Canadian RCF Lender Exposure with respect to the
Canadian Borrowers exceeds the sum of (A) the Canadian Borrowing Base at such
time (based on the Borrowing Base Certificate last delivered) plus (B) the
excess of (1) the U.S. Borrowing Base (based on the Borrowing Base Certificate
last delivered) over (2) the unpaid balance of Extensions of Credit to,
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or for the account of, the U.S. Borrowers and Canadian Xxxxx, the Canadian
Borrowers shall prepay on such day the principal of Canadian RCF Loans made to
them (other than Bankers' Acceptance Loans where the underlying B/A Instruments
have not matured) in an amount equal to such excess. If, after giving effect to
the prepayment of all outstanding Canadian RCF Loans (other than Bankers'
Acceptance Loans where the underlying B/A Instruments have not matured), the
aggregate amount of outstanding Bankers' Acceptance Loans and the Canadian RCF
L/C Obligations with respect to the Canadian Borrowers exceeds the sum of (A)
the Canadian Borrowing Base at such time (based on the Borrowing Base
Certificate last delivered) plus (B) the excess of (1) the U.S. Borrowing Base
(based on the Borrowing Base Certificate last delivered) over (2) the unpaid
balance of Extensions of Credit to, or for the account of, the U.S. Borrowers
and Canadian Xxxxx, the Canadian Borrowers shall pay to the Canadian
Administrative Agent at the Payment Office on such day an amount of cash and/or
Cash Equivalents equal to the amount of such excess (up to a maximum amount
equal to the sum of the aggregate face amount of the outstanding Bankers'
Acceptance Loans and the amount of the Canadian RCF L/C Obligations at such
time), such cash and/or Cash Equivalents to be held as security for all
obligations of the Canadian Borrowers to the applicable Issuing Lenders and the
Canadian RCF Lenders hereunder in a cash collateral account to be established
by, and under the sole dominion and control of, the Canadian Administrative
Agent.
(iii) On any day on which the Aggregate U.S. RCF Lender Exposure
exceeds the Total U.S. RCF Commitment at such time, the U.S. Borrowers shall
prepay on such day the principal of U.S. RCF Loans in an amount equal to such
excess. If, after giving effect to the prepayment of all outstanding U.S. RCF
Loans, the aggregate amount of the U.S. RCF L/C Obligations exceeds the Total
U.S. RCF Commitment at such time, the U.S. Borrowers shall pay to the U.S.
Administrative Agent at the Payment Office on such day an amount of cash and/or
Cash Equivalents equal to the amount of such excess (up to a maximum amount
equal to the U.S. RCF L/C Obligations at such time), such cash and/or Cash
Equivalents to be held as security for all obligations of the U.S. Borrowers to
the applicable Issuing Lenders and the U.S. RCF Lenders hereunder in a cash
collateral account to be established by, and under the sole dominion and control
of, the U.S. Administrative Agent.
(iv) On any day on which the Aggregate Canadian RCF Lender Exposure
exceeds the Total Canadian RCF Commitment at such time, the Canadian Borrowers
and, if applicable, the U.S. Borrowers shall prepay on such day the principal of
Canadian RCF Loans (other than Bankers' Acceptance Loans where the underlying
B/A Instruments have not matured), in an amount equal to such excess. If, after
giving effect to the prepayment of all outstanding Canadian RCF Loans (other
than Bankers' Acceptance Loans where the underlying B/A Instruments have not
matured), the Dollar Equivalent of the aggregate amount of the Canadian RCF L/C
Obligations and the aggregate face amount of the outstanding Bankers' Acceptance
Loans exceeds the Total Canadian RCF Commitment at such time, the Canadian
Borrowers and, if applicable, the U.S. Borrowers shall pay to the Canadian
Administrative Agent at the Payment Office on such day an amount of cash and/or
Cash Equivalents equal to the amount of such excess (up to a maximum amount
equal to the sum of the aggregate face amount of the outstanding Bankers'
Acceptance Loans and the aggregate amount of the Canadian RCF L/C Obligations at
such time), such cash and/or Cash Equivalents to be held as security for all
obligations of the Canadian Borrowers or the U.S. Borrowers, as applicable, to
the applicable
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Issuing Lenders and the Canadian RCF Lenders hereunder in a cash collateral
account to be established by, and under the sole dominion and control of, the
Canadian Administrative Agent.
(v) On any day (other than during an Agent Advance Period) on which
the unpaid balance of Extensions of Credit to, or for the account of, Canadian
Xxxxx exceeds the difference of (A) the U.S. Borrowing Base at such time (based
on the Borrowing Base Certificate last delivered) minus (B) the excess of the
sum of (x) (1) the Aggregate Canadian RCF Lender Exposure (with respect to the
Canadian Borrowers) over (2) the Canadian Borrowing Base at such time (based on
the Borrowing Base Certificate last delivered) and (y) the unpaid balance of
Extensions of Credit to, or for the account of, the U.S. Borrowers, Canadian
Xxxxx shall prepay on such day the principal of outstanding Canadian RCF Loans
made to Canadian Xxxxx in an amount equal to such excess.
(d) The U.S. Borrowers shall prepay all Swing Line Loans then
outstanding simultaneously with each borrowing by them of RCF Loans.
(e) Prepayments pursuant to subsection 4.4(b) shall be applied as
follows:
(i) first, to make any mandatory repayments required pursuant to
subsection 4.4(c); provided that, any proceeds received by
the Canadian Borrowers or any of their respective
Subsidiaries and required to be used for a mandatory
prepayment pursuant to Section 4.4(b) shall be applied
solely to Canadian RCF Loans outstanding and/or to cash
collateralize Bankers' Acceptance Loans and Canadian RCF L/C
Obligations;
(ii) second, at any time the Available RCF Commitments are less
than $250,000,000, to prepay outstanding RCF Loans in an
aggregate principal amount necessary to increase the
Available RCF Commitments to $250,000,000; provided that,
any proceeds received by the Canadian Borrowers or any of
their respective Subsidiaries and required to be used for a
mandatory prepayment pursuant to Section 4.4(b) shall be
applied solely to Canadian RCF Loans outstanding and/or to
cash collateralize Bankers' Acceptance Loans and Canadian
RCF L/C Obligations;
(iii) third, to prepay Term Loans (other than any Incremental
Term Loans made to Canadian Xxxxx) then outstanding unless
the Required Initial Term Loan Lenders reject the
application of such prepayment to outstanding Term Loans;
(iv) fourth, subject to the provisions of the provisos contained
in the last sentence of each of subsection 4.4(c)(i), (ii),
(iii) and (iv), to prepay all Term Loans (other than any
Incremental Term Loans made to Canadian Xxxxx) and RCF Loans
on a pro rata basis; and
(v) fifth, to repay all remaining obligations payable pursuant
to this Agreement.
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Notwithstanding anything to the contrary contained in this clause (e), in no
event shall prepayments made by the Canadian Borrowers pursuant to subsection
4.4(b) be applied to repay Loans made to the U.S. Borrowers or Canadian Xxxxx.
(f) For avoidance of doubt, the RCF Commitments shall not be
correspondingly reduced by the amount of any prepayments of RCF Loans, payments
of Reimbursement Obligations and cash collateralizations of L/C Obligations, in
each case, made under subsection 4.4(b) or 4.4(c).
(g) Notwithstanding the foregoing provisions of this subsection 4.4,
if at any time any prepayment of the Loans pursuant to subsection 4.4(a), 4.4(b)
or 4.4(c) would result, after giving effect to the procedures set forth in this
Agreement, in any Borrower incurring breakage costs under subsection 4.12 as a
result of Eurocurrency Loans being prepaid other than on the last day of an
Interest Period with respect thereto, then, the relevant Borrower may, so long
as no Default or Event of Default shall have occurred and be continuing, in its
sole discretion, initially (i) deposit a portion (up to 100%) of the amounts
that otherwise would have been paid in respect of such Eurocurrency Loans with
the U.S. Administrative Agent (which deposit must be equal in amount to the
amount of such Eurocurrency Loans not immediately prepaid), to be held as
security for the obligations of such Borrowers to make such prepayment pursuant
to a cash collateral agreement to be entered into on terms reasonably
satisfactory to the U.S. Administrative Agent with such cash collateral to be
directly applied upon the first occurrence thereafter of the last day of an
Interest Period with respect to such Eurocurrency Loans (or such earlier date or
dates as shall be requested by such Borrower) or (ii) make a prepayment of the
RCF Loans in accordance with subsection 4.4(a) with an amount equal to a portion
(up to 100%) of the amounts that otherwise would have been paid in respect of
such Eurocurrency Loans (which prepayment, together with any deposits pursuant
to clause (i) above, must be equal in amount to the amount of such Eurocurrency
Loans not immediately prepaid); provided that, notwithstanding anything in this
Agreement to the contrary, none of the Borrowers may request any Extension of
Credit under the Commitments that would reduce the aggregate amount of the
Available RCF Commitments to an amount that is less than the amount of such
prepayment until the related portion of such Eurocurrency Loans has been prepaid
upon the first occurrence thereafter of the last day of an Interest Period with
respect to such Eurocurrency Loans; provided that, in the case of either clause
(i) or (ii), such unpaid Eurocurrency Loans shall continue to bear interest in
accordance with subsection 4.1 until such unpaid Eurocurrency Loans or the
related portion of such Eurocurrency Loans have or has been prepaid.
4.5 Commitment Fees; U.S. Administrative Agent's Fee; Other Fees. (a)
Each U.S. Borrower agrees to pay to the U.S. Administrative Agent, for the
account of each U.S. RCF Lender, and each Canadian Borrower agrees to pay to the
Canadian Administrative Agent, for the account of each Canadian RCF Lender, a
commitment fee during the RCF Commitment Period, computed at the applicable
Commitment Fee Rate on the average daily amount of the Unutilized RCF Loan
Commitment of such RCF Lender during the period for which payment is made,
payable quarterly in arrears on the last day of each March, June, September and
December and on the RCF Maturity Date or such earlier date as the RCF Loan
Commitments shall terminate as provided herein, commencing on December 31, 2006.
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(b) The U.S. Borrowers and the Canadian Borrowers agree to pay to the
U.S. Administrative Agent or the Canadian Administrative Agent, as applicable,
and the Lead Arrangers any fees in the amounts and on the dates previously
agreed to in writing by Holdings, any Affiliate of Holdings, the Lead Arrangers
and the U.S. Administrative Agent in connection with this Agreement.
4.6 Computation of Interest and Fees. (a) Interest (other than
interest based on the Prime Rate, Canadian Prime Rate or BA Rate) and commitment
fees shall be calculated on the basis of a 360 day year for the actual days
elapsed; and interest based on the Prime Rate or Canadian Prime Rate shall be
calculated on the basis of a 365-day year (or 366-day year, as the case may be)
day year for the actual days elapsed. BA Fees shall be calculated on the basis
of 365-day year for the actual days elapsed. The U.S. Administrative Agent or
the Canadian Administrative Agent, as applicable, shall as soon as practicable
notify the Parent Borrower and the affected Lenders of each determination of a
Eurocurrency Rate. Any change in the interest rate on a Loan resulting from a
change in the ABR, the Canadian Prime Rate or the Eurocurrency Reserve
Requirements shall become effective as of the opening of business on the day on
which such change becomes effective. The U.S. Administrative Agent or the
Canadian Administrative Agent, as applicable, shall as soon as practicable
notify the Parent Borrower and the affected Lenders of the effective date and
the amount of each such change in interest rate.
(b) Each determination of an interest rate by the U.S. Administrative
Agent or the Canadian Administrative Agent, as applicable, pursuant to any
provision of this Agreement shall be conclusive and binding on each of the
Borrowers and the Lenders in the absence of manifest error. The U.S.
Administrative Agent or the Canadian Administrative Agent, as applicable, shall,
at the request of the Parent Borrower or any Lender, deliver to the Parent
Borrower or such Lender a statement showing in reasonable detail the
calculations used by the U.S. Administrative Agent or the Canadian
Administrative Agent, as applicable, in determining any interest rate pursuant
to subsection 4.1, excluding any Eurocurrency Base Rate which is based upon the
Telerate British Bankers Assoc. Interest Settlement Rates Page and any ABR Loan
which is based upon the Prime Rate or the Canadian Prime Rate.
(c) Bankers' Acceptances.
(i) Acceptances and Drafts. Each Canadian Lender severally agrees, on
the terms and conditions of this Agreement and from time to time on any Business
Day prior to the date which is 30 days prior to the RCF Maturity Date (A) in the
case of any Canadian Lender which is not a Non BA Lender, to create Bankers'
Acceptances by accepting Drafts and to purchase such Bankers' Acceptances in
accordance with subsection 4.6(c)(iv), and (B) in the case of a Non BA Lender,
to purchase completed Drafts (which have not and will not be accepted by such
Lender or any other Canadian Lender) in accordance with subsection 4.6(c)(iv).
(ii) Term. Each Draft presented by a Canadian Borrower shall (A) be in
a minimum Face Amount of Cdn $1,000,000 and in an integral multiple of Cdn
$100,000, (B) be dated the date of the making of such Bankers' Acceptance Loan,
and (C) mature and be payable by the Canadian Borrower (in common with all other
Drafts presented in connection with such Bankers' Acceptance Loan) on a Business
Day which occurs approximately 30, 60, 90 or
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180 days (or such longer or shorter period as the Canadian Administrative Agent
may agree) at the election of the Canadian Borrower after the Borrowing Date and
on or prior to the date which is 30 days prior to the RCF Maturity Date.
(iii) BA Rate. On each Borrowing Date or other date on which Bankers'
Acceptances are to be accepted, the U.S. Administrative Agent or the Canadian
Administrative Agent shall advise the applicable Canadian Borrowers as to such
Agent's determination of the applicable BA Rate for the Bankers' Acceptance
Loans.
(iv) Purchase. Not later than 12:30 P.M. (New York City time) on an
applicable Borrowing Date (or at such other time as to which the Canadian
Administrative Agent shall notify the relevant Canadian Borrower reasonably in
advance of the Borrowing Date with respect thereto), each Canadian Lender shall
complete one or more Drafts in accordance with the notice of Borrowing given in
accordance with subsection 2.3(b) and either (x) accept the Drafts and purchase
the Bankers' Acceptances so created for an amount equal to the BA Proceeds less
the BA Fee payable with respect to such Drafts, or (y) purchase the Drafts for
an amount equal to the BA Proceeds less the BA Fee payable with respect to such
Drafts. In each case, upon receipt of the amount equal to the BA Proceeds less
the BA Fee payable with respect to such Drafts and upon fulfillment of the
conditions set forth in Section 6, as applicable, the Canadian Administrative
Agent shall apply such amount as follows: (i) remit to the Canadian Borrower (in
the case of the making of a Canadian RCF Loan), (ii) prepay ABR Loans under the
Canadian RC Facility (which shall constitute a conversion of the Canadian RCF
Loans from ABR Loans to Bankers' Acceptance Loans) or (iii) pay Bankers'
Acceptance Loans maturing on such date (which shall constitute a continuation of
Bankers' Acceptance Loans to new Bankers' Acceptance Loans), provided that in
the case of any such conversion or continuation of Loans, the Canadian Borrower
shall pay to the Canadian Administrative Agent for account of the Canadian
Lenders such additional amounts, if any, as shall be necessary to effect the
prepayment in full of the respective ABR Loans being prepaid, or the Bankers'
Acceptance Loans maturing, as the case may be, on such date and provided,
further, that no Bankers' Acceptance Loan will be available, upon creation,
purchase, conversion or continuation or rollover or otherwise, (i) (unless the
Required Lenders otherwise consent) when any Default or Event of Default has
occurred and is continuing, and, in the case of any Default, the Canadian
Administrative Agent has given notice to the Canadian Borrowers that no such
continuations, conversions or rollovers may be made or (ii) after the date which
is 30 days prior to the RCF Maturity Date.
(v) Sale. Each Canadian Lender may from time to time hold, sell,
rediscount or otherwise dispose of any or all Bankers' Acceptances accepted and
purchased by it.
(vi) Power of Attorney for the Execution of Bankers' Acceptances. To
facilitate the availment of the Canadian RC Facility by Bankers' Acceptance
Loans, each Canadian Borrower hereby appoints each Canadian Lender as its
attorney to sign and endorse on its behalf, in handwriting or by facsimile or
mechanical signature as and when deemed necessary by such Canadian Lender, blank
forms of Drafts. In this respect, it is each Canadian Lender's responsibility to
maintain an adequate supply of blank forms of Drafts for acceptance under this
Agreement. Each Canadian Borrower recognizes and agrees that all Drafts signed
and/or endorsed on its behalf by a Canadian Lender shall bind the applicable
Canadian Borrower as fully and effectually as if signed in the handwriting of
and duly issued by the proper signing
87
officers of such Canadian Borrower. Each Canadian Lender is hereby authorized to
issue such Drafts endorsed in blank in such face amounts as may be determined by
such Canadian Lender; provided that the aggregate amount thereof is equal to the
aggregate amount of Drafts required to be accepted and purchased by such
Canadian Lender. No Canadian Lender shall be liable for any damage, loss or
other claim arising by reason of any loss or improper use of any such instrument
except the gross negligence or willful misconduct of the Canadian Lender or its
officers, employees, agents or representatives (as determined in a final
non-appealable decision issued by a court of competent jurisdiction). Each
Canadian Lender shall maintain a record with respect to Drafts held by it in
blank hereunder, voided by it for any reason, purchased by it hereunder, and
cancelled at their respective maturities. Each Canadian Lender agrees to provide
such records to any Canadian Borrower at such Canadian Borrower's expense upon
request.
(vii) Execution. Drafts drawn by any Canadian Borrower to be accepted
and/or purchased as Bankers' Acceptance Loans shall be signed by a duly
authorized officer or officers of the applicable Canadian Borrower or by its
attorneys. Notwithstanding that any Person whose signature appears on any Draft
may no longer be an authorized signatory for the Canadian Borrower at the time
of issuance of a B/A Instrument, that signature shall nevertheless be valid and
sufficient for all purposes as if the authority had remained in force at the
time of issuance and any B/A Instrument so signed shall be binding on such
Canadian Borrower.
(viii) Issuance. The Canadian Administrative Agent promptly following
receipt of a notice of a Borrowing, conversion or continuation by way of
Bankers' Acceptance Loans, shall advise the Canadian Lenders of the notice and
shall advise each Canadian Lender of the face amount of B/A Instruments to be
accepted and/or purchased by it and the applicable term (which shall be
identical for all Canadian Lenders). The aggregate face amount of B/A
Instruments to be accepted/and or purchased by a Canadian Lender shall be
determined by the Canadian Administrative Agent by reference to that Canadian
Lender's Canadian RCF Commitment Percentage of the issue of Bankers' Acceptance
Loans, except that, if the face amount of a B/A Instrument which would otherwise
be accepted by a Canadian Lender would not be Cdn$ 100,000, or a whole multiple
thereof, the face amount shall be increased or reduced by the U.S.
Administrative Agent or the Canadian Administrative Agent in its sole discretion
to Cdn$ 1,000, or the nearest whole multiple of that amount, as appropriate;
provided that after such issuance, no Canadian Lender shall have aggregate
outstanding Canadian RCF Loans in excess of its Canadian RCF Commitment.
(ix) Rollover. At or before 11:00 A.M. (New York City time) two (2)
Business Days before the maturity date of any B/A Instrument, the applicable
Canadian Borrower shall give to the Canadian Administrative Agent irrevocable
written notice which notice shall specify either (x) that the applicable
Canadian Borrower intends to repay the maturing B/A Instrument on the maturity
date or (y) that the applicable Canadian Borrower intends to issue B/A
Instruments on the maturity date to provide for the payment of the aggregate
face amount of the maturing B/A Instrument or (z) that the Canadian Borrower
intends to issue new B/A Instruments and pay any additional amounts as may be
necessary to effect payment in full of the aggregate face amount of the maturing
B/A Instruments. If the applicable Canadian Borrower fails to provide such
notice to the Canadian Administrative Agent or fails to repay the maturing B/A
Instrument, or if a Default or an Event of Default has occurred and is
continuing on such maturity date, the applicable Canadian Borrower's obligations
in respect of the maturing
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B/A Instrument shall be deemed to have been converted on the maturity date
thereof into an ABR Loan under the Canadian RC Facility in an amount equal to
the aggregate face amount of the maturing B/A Instrument which shall bear
interest calculated and payable as provided in Section 4. Otherwise, the
applicable Canadian Borrower shall provide payment to the Canadian
Administrative Agent on behalf of the Canadian Lenders of an amount equal to the
aggregate face amount of the B/A Instruments issued by the applicable Canadian
Lenders on their maturity date.
(x) Waiver of Presentment and Other Conditions. Each Canadian Borrower
waives presentment for payment and any other defense to payment of any amounts
due to a Canadian Lender in respect of a Bankers' Acceptance or other B/A
Instrument purchased by it pursuant to this Agreement which might exist solely
by reason of the Bankers' Acceptance or other B/A Instrument being held, at the
maturity thereof, by the Canadian Lender in its own right and each Canadian
Borrower agrees not to claim any days of grace if the Canadian Lender as holder
sues such Canadian Borrower on the Bankers' Acceptance or other B/A Instrument
for payment of the amount payable by the Canadian Borrower thereunder. Except
for the requirement to pay immediately upon acceleration of the Canadian RCF
Loans pursuant to Section 9, the applicable Canadian Borrower shall pay to the
Canadian Lender that has purchased such B/A Instrument the full face amount of
such B/A Instrument on the specified maturity date of a B/A Instrument, and
after such payment, the applicable Canadian Borrower shall have no further
liability in respect of such B/A and the Canadian Lender shall be entitled to
all benefits of, and be responsible for all payments due to third parties under,
such B/A Instrument.
(xi) Discount Notes by Non BA Lenders. Whenever a Canadian Borrower
requests a Bankers' Acceptance Loan, each Canadian Lender which is a Non BA
Lender shall, in lieu of accepting a Bankers' Acceptance, purchase the completed
Drafts for an amount equal to the BA Proceeds less the BA Fee payable with
respect to such Drafts. The Canadian Borrowers shall, at the request of such Non
BA Lender, issue one or more non-interest bearing promissory notes (each a
"Discount Note") denominated in Canadian Dollars payable on the date of maturity
of the unaccepted Draft referred to below, in such form as the Canadian Lender
may specify and in a principal amount equal to the face amount of, and in
exchange for, any unaccepted Drafts which the Non BA Lender has purchased in
accordance with subsection 4.6(c)(iv).
(xii) Terms Applicable to Discount Notes. All terms of this Agreement
applicable to Bankers' Acceptances shall apply equally to Discount Notes with
such changes as may in the context be necessary. For greater certainty:
(A) the term of a Discount Note shall be the same as the term for
Bankers' Acceptances accepted and purchased on the same Borrowing Date in
respect of the same Canadian RCF Loan;
(B) an acceptance fee will be payable in respect of a Discount Note
and shall be calculated at the same rate and in the same manner as the BA
Fee in respect of a Bankers' Acceptance;
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(C) the BA Rate applicable to a Discount Note shall be the BA Rate
applicable to Bankers' Acceptances accepted by a Lender other than Schedule
I Lender on the same Borrowing Date or other date, as the case may be, in
respect of the same RCF Loan; and
(D) the term "face amount" when used in the context of a Discount Note
shall mean and refer to the principal amount of such Discount Note.
(xiii) Depository Bills and Notes Act (Canada). At the option of any
Canadian Lender, Bankers' Acceptances under this Agreement to be accepted by
that Canadian Lender may be issued in the form of depository bills for deposit
with The Canadian Depository for Securities Limited pursuant to the Depository
Bills and Notes Act (Canada). All depository bills so issued shall be governed
by the provisions of this subsection 4.6. Upon the request of any Canadian
Lender, the Canadian Borrowers shall provide to such Canadian Lender a power of
attorney to complete, sign, endorse and issue B/A Instruments on behalf of the
Canadian Borrowers in form and substance reasonably satisfactory to such
Canadian Lender.
(xiv) Payment, Conversion or Renewal of B/A Instruments. On any date
on which a Bankers' Acceptance Loan is created, purchased, converted or
continued, the Canadian Administrative Agent shall be entitled to net all
amounts payable on such date by the Canadian Administrative Agent to a Canadian
Lender against all amounts payable on such date by such Canadian Lender to the
Canadian Administrative Agent. Similarly, on any such date each Canadian
Borrower hereby authorizes each Canadian Lender to net all amounts payable on
such date by such Canadian Lender to the Canadian Administrative Agent for the
account of such Canadian Borrower, against all amounts payable on such date by
such Canadian Borrower to such Canadian Lender in accordance with the Canadian
Administrative Agent's calculations.
(xv) Circumstances Making Bankers' Acceptances Unavailable. If, by
reason of circumstances affecting the money market generally, as determined in
good faith by the Canadian Administrative Agent acting reasonably and in respect
of which the Canadian Administrative Agent shall have given notice to the
Canadian Borrowers of the occurrence and particulars thereof, there is no market
for Bankers' Acceptances or Canadian Lenders cannot readily sell bankers'
acceptances or perform their obligations under this Agreement with respect to
bankers' acceptances (i) the right of the Canadian Borrowers to request a
Bankers' Acceptance Loan shall be suspended until the circumstances causing a
suspension no longer exist, (ii) any applicable notice of Borrowing which is
outstanding shall either: (x) be cancelled and the requested Bankers' Acceptance
Loan shall not be made or (y) the Canadian Administrative Agent may, acting
reasonably and taking into account any circumstances then affecting the Canadian
Lenders and the availability of Loans, at the direction of the Canadian
Borrowers, deem the aforementioned notice of Borrowing, a notice of Borrowing
for ABR Loans under the Canadian RC Facility.
The Canadian Administrative Agent shall promptly notify the Canadian
Borrower of the suspension of the Canadian Borrower's right to request a
Bankers' Acceptance Loan and of the termination of any suspension.
4.7 Inability to Determine Interest Rate. If prior to the first day of
any Interest Period, the U.S. Administrative Agent shall have determined (which
determination shall be
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conclusive and binding upon each of the Borrowers) that, by reason of
circumstances affecting the relevant market, adequate and reasonable means do
not exist for ascertaining the Eurocurrency Rate with respect to any
Eurocurrency Loan (the "Affected Rate") for such Interest Period, the U.S.
Administrative Agent shall give telecopy or telephonic notice thereof to the
Parent Borrower and the Lenders as soon as practicable thereafter. If such
notice is given (a) any Eurocurrency Loans the rate of interest applicable to
which is based on the Affected Rate requested to be made on the first day of
such Interest Period shall be made as ABR Loans, (b) any Loans that were to have
been converted on the first day of such Interest Period to or continued as
Eurocurrency Loans the rate of interest applicable to which is based upon the
Affected Eurocurrency Rate or Affected Rate shall be converted to or continued
as ABR Loans and (c) any outstanding Eurocurrency Loans that were to have been
converted on the first day of such Interest Period to or continued as
Eurocurrency Loans the rate of interest applicable to which is based upon the
Affected Rate and that are not otherwise permitted to be converted to or
continued as ABR Loans by subsection 4.2 shall, upon demand by the applicable
Lenders the Commitment Percentage of which aggregate greater than 50% of such
Loans, be immediately repaid by the applicable Borrower on the last day of the
then current Interest Period with respect thereto together with accrued interest
thereon or otherwise, at the option of the Parent Borrower, shall remain
outstanding and bear interest at a rate which reflects, as to each of the RCF
Lenders, such RCF Lender's cost of funding such Eurocurrency Loans as reasonably
determined by such Lender, plus the Applicable Margin hereunder. If any such
repayment occurs on a day which is not the last day of the then current Interest
Period with respect to such Affected Eurocurrency Loan, the applicable Borrower
shall pay to each of the applicable Lenders such amounts, if any, as may be
required pursuant to subsection 4.12. Until such notice has been withdrawn by
the U.S. Administrative Agent, no further Eurocurrency Loans the rate of
interest applicable to which is based upon the Affected Rate shall be made or
continued as such, nor shall any of the Borrowers have the right to convert ABR
Loans to Eurocurrency Loans the rate of interest applicable to which is based
upon the Affected Rate.
4.8 Pro Rata Treatment and Payments. (a) Each borrowing of Loans
(other than Swing Line Loans) by any of the applicable Borrowers from the
Lenders hereunder shall be made, each payment by any of the Borrowers on account
of any commitment fee in respect of any RCF Commitments, as applicable,
hereunder shall be allocated by the U.S. Administrative Agent or the Canadian
Administrative Agent, as applicable, and any reduction of any RCF Commitments of
the Lenders shall be allocated by the U.S. Administrative Agent or the Canadian
Administrative Agent, as applicable, pro rata according to the U.S. RCF
Commitment Percentage or Canadian RCF Commitment Percentage, as applicable, of
the applicable Lenders. Each payment (including each prepayment) by any of the
applicable Borrowers on account of principal of (or the face amount of) and
interest on any Term Loan, U.S. RCF Loans or Canadian RCF Loans, as applicable,
shall be allocated by the U.S. Administrative Agent or the Canadian
Administrative Agent, as applicable, pro rata according to the respective
outstanding principal (or face) amounts of such Term Loans, U.S. RCF Loans or
Canadian RCF Loans, as applicable, then held by the relevant Lenders; provided
that in no event shall payments made by the Canadian Borrowers be applied to
repay Loans made to the U.S. Borrowers or Canadian Xxxxx. All payments
(including prepayments) to be made by any of the Borrowers hereunder, whether on
account of principal, interest, fees, Reimbursement Obligations or otherwise,
shall be made without set-off or counterclaim and shall be made prior to 1:00
P.M., New York City time, on the due date thereof to the U.S. Administrative
Agent or the Canadian Administrative Agent, as
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applicable, for the account of the Lenders holding the relevant Loans or the L/C
Participants, as the case may be, at the U.S. Administrative Agent's or the
Canadian Administrative Agent's, as applicable, office specified in subsection
11.2, in Dollars, or, in the case of payments in respect of Canadian RCF Loans
and Canadian RCF Letters of Credit denominated in Canadian Dollars, in Canadian
Dollars and (whether in Dollars or Canadian Dollars) in immediately available
funds. Payments received by the U.S. Administrative Agent or Canadian
Administrative Agent, as applicable, after such time shall be deemed to have
been received on the next Business Day. The U.S. Administrative Agent or the
Canadian Administrative Agent, as applicable, shall distribute such payments to
such Lenders, if any such payment is received prior to 1:00 P.M., New York City
time, on a Business Day, in like funds as received prior to the end of such
Business Day and otherwise the U.S. Administrative Agent or the Canadian
Administrative Agent, as applicable, shall distribute such payment to such
Lenders on the next succeeding Business Day. If any payment hereunder (other
than payments on the Eurocurrency Loans) becomes due and payable on a day other
than a Business Day, the maturity of such payment shall be extended to the next
succeeding Business Day, and, with respect to payments of principal, interest
thereon shall be payable at the then applicable rate during such extension. If
any payment on a Eurocurrency Loan becomes due and payable on a day other than a
Business Day, the maturity of such payment shall be extended to the next
succeeding Business Day (and, with respect to payments of principal, interest
thereon shall be payable at the then applicable rate during such extension)
unless the result of such extension would be to extend such payment into another
calendar month, in which event such payment shall be made on the immediately
preceding Business Day.
(b) Unless the U.S. Administrative Agent or the Canadian
Administrative Agent, as the case may be, shall have been notified in writing by
any Lender prior to a borrowing that such Lender will not make the amount that
would constitute its share of such borrowing available to such Agent, such Agent
may assume that such Lender is making such amount available to such Agent, and
such Agent may, in reliance upon such assumption, make available to the
applicable Borrowers in respect of such borrowing a corresponding amount. If
such amount is not made available to the U.S. Administrative Agent or the
Canadian Administrative Agent, as the case may be, by the required time on the
Borrowing Date therefor, such Lender shall pay to the U.S. Administrative Agent
or the Canadian Administrative Agent, as the case may be, on demand, such amount
with interest thereon at a rate equal to the daily average Federal Funds
Effective Rate or the rate customary for settlement of Canadian Dollar interbank
obligations, as applicable, and as quoted by the U.S. Administrative Agent or
the Canadian Administrative Agent, as the case may be, in each case for the
period until such Lender makes such amount immediately available to the U.S.
Administrative Agent or the Canadian Administrative Agent, as the case may be. A
certificate of the U.S. Administrative Agent or the Canadian Administrative
Agent, as the case may be, submitted to any Lender with respect to any amounts
owing under this subsection shall be conclusive in the absence of manifest
error. If such Lender's share of such borrowing is not made available to the
applicable Agent by such Lender within three Business Days of such Borrowing
Date, (x) the applicable Agent shall notify the Parent Borrower of the failure
of such Lender to make such amount available to the U.S. Administrative Agent or
the Canadian Administrative Agent, as the case may be, and such Agent shall also
be entitled to recover such amount with interest thereon at the rate per annum
applicable to ABR Loans hereunder on demand from such Borrower and (y) then such
Borrower may, without waiving or limiting any rights or remedies it may have
against such Lender
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hereunder or under applicable law or otherwise, (i) borrow a like amount on an
unsecured basis from any commercial bank for a period ending on the date upon
which such Lender does in fact make such borrowing available, provided that at
the time such borrowing is made and at all times while such amount is
outstanding such Borrower would be permitted to borrow such amount pursuant to
subsection 2.1 and/or (ii) take any action permitted by the following subsection
4.8(c).
(c) Notwithstanding anything to the contrary contained in this
Agreement:
(i) If at any time a Lender shall not make a Loan required to be made
by it hereunder (any such Lender, a "Defaulting Lender"), the Parent
Borrower shall have the right to seek one or more Persons reasonably
satisfactory to the U.S. Administrative Agent and the Parent Borrower to
each become a substitute Lender and assume all or part of the outstanding
Loans and/or Commitments of such Defaulting Lender. In such event, the
Parent Borrower, the U.S. Administrative Agent and any such substitute
Lender shall execute and deliver, and such Defaulting Lender shall
thereupon be deemed to have executed and delivered, an appropriately
completed Assignment and Acceptance to effect such substitution.
(ii) In determining the Required Lenders or Supermajority Lenders, any
Lender that at the time is a Defaulting Lender (and the Loans and/or
Commitment of such Defaulting Lender) shall be excluded and disregarded. No
commitment fee shall accrue for the account of a Defaulting Lender so long
as such Lender shall be a Defaulting Lender.
(iii) If at any time any Borrower shall be required to make any
payment under any Loan Document to or for the account of a Defaulting
Lender, then such Borrower, so long as it is then permitted to borrow RCF
Loans hereunder, may set off and otherwise apply its obligation to make
such payment against the obligation of such Defaulting Lender to make such
Loan. In such event, the amount so set off and otherwise applied shall be
deemed to constitute a RCF Loan by such Defaulting Lender made on the date
of such set-off and included within any borrowing of RCF Loans as the U.S.
Administrative Agent may reasonably determine.
(iv) If, with respect to any Defaulting Lender, which for the purposes
of this subsection 4.8(c)(iv) shall include any Lender that has taken any
action or become the subject of any action or proceeding of a type
described in subsection 9(f), any Borrower shall be required to pay any
amount under any Loan Document to or for the account of such Defaulting
Lender, then such Borrower, so long as it is then permitted to borrow RCF
Loans hereunder, may satisfy such payment obligation by paying such amount
to the U.S. Administrative Agent, or the Canadian Administrative Agent, as
applicable, to be (to the extent permitted by applicable law and to the
extent not utilized by the U.S. Administrative Agent or the Canadian
Administrative Agent, as applicable, to satisfy obligations of the
Defaulting Lender owing to it) held by the U.S. Administrative Agent or the
Canadian Administrative Agent, as applicable, in escrow pursuant to its
standard terms (including as to the earning of interest), and applied
(together with any accrued
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interest) by it from time to time to make any RCF Loans or other payments
as and when required to be made by such Defaulting Lender hereunder.
4.9 Illegality. Notwithstanding any other provision herein, if the
adoption of or any change in any Requirement of Law or in the interpretation or
application thereof occurring after the Closing Date shall make it unlawful for
any Lender to make or maintain any Eurocurrency Loans or Bankers' Acceptance
Loans as contemplated by this Agreement ("Affected Loans"), (a) such Lender
shall promptly give written notice of such circumstances to the Parent Borrower
and the U.S. Administrative Agent and the Canadian Administrative Agent (in the
case of Bankers' Acceptance Loans) (which notice shall be withdrawn whenever
such circumstances no longer exist), (b) the commitment of such Lender hereunder
to make Affected Loans, continue Affected Loans as such and convert an ABR Loan
to an Affected Loan shall forthwith be cancelled and, until such time as it
shall no longer be unlawful for such Lender to make or maintain such Affected
Loans, such Lender shall then have a commitment only to make an ABR Loan (or a
Swing Line Loan) when an Affected Loan is requested (to the extent otherwise
permitted by subsection 4.2), (c) such Lender's Loans then outstanding as
Affected Loans, if any, shall be converted automatically to ABR Loans on the
respective last days of the then current Interest Periods or, in the case of
Bankers' Acceptance Loans, the maturity dates with respect to such Loans or
within such earlier period as required by law (to the extent otherwise permitted
by subsection 4.2) and (d) such Lender's Eurocurrency Loans then outstanding as
Affected Loans, if any, not otherwise permitted to be converted to ABR Loans by
subsection 4.2 shall, upon notice to the Parent Borrower, be prepaid with
accrued interest thereon on the last day of the then current Interest Period
with respect thereto (or such earlier date as may be required by any such
Requirement of Law). If any such conversion or prepayment of an Affected Loan
occurs on a day which is not the last day of the then current Interest Period
with respect thereto, the applicable Borrower shall pay to such Lender such
amounts, if any, as may be required pursuant to subsection 4.12.
4.10 Requirements of Law. (a) If the adoption of or any change in any
Requirement of Law or in the interpretation or application thereof applicable to
any Lender, or compliance by any Lender with any request or directive (whether
or not having the force of law) from any central bank or other Governmental
Authority, in each case made subsequent to the Closing Date (or, if later, the
date on which such Lender becomes a Lender):
(i) shall subject such Lender to any tax of any kind whatsoever with
respect to any Letter of Credit, any L/C Request, or any Eurocurrency
Loans, Bankers' Acceptance Loans made or maintained by it or its obligation
to make or maintain Eurocurrency Loans or Bankers' Acceptance Loans, or
change the basis of taxation of payments to such Lender in respect thereof,
in each case, except for Non-Excluded Taxes and taxes measured by or
imposed upon the overall net income, branch profit taxes or franchise
taxes, or taxes measured by or imposed upon overall capital or net worth
(in the case of such capital or net worth taxes imposed in lieu of net
income taxes), of such Lender or its applicable lending office, branch, or
any affiliate thereof;
(ii) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by,
deposits or other liabilities in or for the account of, advances, loans or
other extensions of credit by, or any other
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acquisition of funds by, any office of such Lender which is not otherwise
included in the determination of the Eurocurrency Rate or BA Rate, as the
case may be, hereunder; or
(iii) shall impose on such Lender any other condition (excluding any
tax of any kind whatsoever);
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting into,
continuing or maintaining Eurocurrency Loans or Bankers' Acceptance Loans or
issuing or participating in Letters of Credit or to reduce any amount receivable
hereunder in respect thereof, then, in any such case, upon notice to the Parent
Borrower from such Lender, through the U.S. Administrative Agent, in accordance
herewith, the applicable Borrower shall promptly pay such Lender, upon its
demand, any additional amounts necessary to compensate such Lender for such
increased cost or reduced amount receivable with respect to such Eurocurrency
Loans or Bankers' Acceptance Loans, or Letters of Credit, provided that, in any
such case, such Borrower may elect to convert the Eurocurrency Loans or Bankers'
Acceptance Loans made by such Lender hereunder to ABR Loans by giving the U.S.
Administrative Agent at least one Business Day's notice of such election, in
which case such Borrower shall promptly pay to such Lender, upon demand, without
duplication, amounts theretofore required to be paid to such Lender pursuant to
this subsection 4.10(a) and such amounts, if any, as may be required pursuant to
subsection 4.12. If any Lender becomes entitled to claim any additional amounts
pursuant to this subsection, it shall provide prompt notice thereof to the
Parent Borrower, through the U.S. Administrative Agent, certifying (x) that one
of the events described in this paragraph (a) has occurred and describing in
reasonable detail the nature of such event, (y) as to the increased cost or
reduced amount resulting from such event and (z) as to the additional amount
demanded by such Lender and a reasonably detailed explanation of the calculation
thereof. Such a certificate as to any additional amounts payable pursuant to
this subsection submitted by such Lender, through the U.S. Administrative Agent,
to the Parent Borrower shall be conclusive in the absence of manifest error.
This covenant shall survive the termination of this Agreement and the payment of
the Loans and all other amounts payable hereunder.
(b) If any Lender shall have determined that the adoption of or any
change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority, in each case, made subsequent to the Closing Date, does or shall have
the effect of reducing the rate of return on such Lender's or such corporation's
capital as a consequence of such Lender's obligations hereunder or under or in
respect of any Letter of Credit to a level below that which such Lender or such
corporation could have achieved but for such change or compliance (taking into
consideration such Lender's or such corporation's policies with respect to
capital adequacy) by an amount deemed by such Lender to be material, then from
time to time, within ten Business Days after submission by such Lender to the
Parent Borrower (with a copy to the U.S. Administrative Agent) of a written
request therefor certifying (x) that one of the events described in this
paragraph (b) has occurred and describing in reasonable detail the nature of
such event, (y) as to the reduction of the rate of return on capital resulting
from such event and (z) as to the additional amount or amounts demanded by such
Lender or corporation and a reasonably detailed explanation of the calculation
thereof, the
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applicable Borrower shall pay to such Lender such additional amount or amounts
as will compensate such Lender or corporation for such reduction. Such a
certificate as to any additional amounts payable pursuant to this subsection
submitted by such Lender, through the U.S. Administrative Agent, to the Parent
Borrower shall be conclusive in the absence of manifest error. This covenant
shall survive the termination of this Agreement and the payment of the Loans and
all other amounts payable hereunder.
(c) Notwithstanding anything to the contrary in this subsection 4.10,
no Borrower shall be required to pay any amount with respect to any additional
cost or reduction specified in paragraph (a) or paragraph (b) above, to the
extent such additional cost or reduction is attributable, directly or
indirectly, to the application of, compliance with or implementation of specific
capital adequacy requirements or new methods of calculating capital adequacy,
including any part or "pillar" (including Pillar 2 ("Supervisory Review
Process")), of the International Convergence of Capital Measurement Standards: a
Revised Framework, published by the Basel Committee on Banking Supervision in
June 2004, or any implementation, adoption (whether voluntary or compulsory)
thereof, whether by an EC Directive or the FSA Integrated Prudential Sourcebook
or any other law or regulation, or otherwise.
4.11 Taxes. (a) Except as provided below in this subsection or as
required by law, all payments made by each of the Borrowers and the Agents under
this Agreement and any Notes shall be made free and clear of, and without
deduction or withholding for or on account of, any present or future income,
stamp or other taxes, levies, imposts, duties, charges, fees, deductions or
withholdings, now or hereafter imposed, levied, collected, withheld or assessed
by any Governmental Authority ("Taxes"), excluding Taxes measured by or imposed
upon the overall net income of any Agent or Lender or its applicable lending
office, or any branch or affiliate thereof, and all franchise Taxes, branch
Taxes, Taxes on doing business or Taxes measured by or imposed upon the overall
capital or net worth of any such Agent or Lender or its applicable lending
office, or any branch or affiliate thereof, in each case imposed: (i) by the
jurisdiction under the laws of which such Agent or Lender, applicable lending
office, branch or affiliate is organized or is located, or in which its
principal executive office is located, or any nation within which such
jurisdiction is located or any political subdivision thereof; or (ii) by reason
of any connection between the jurisdiction imposing such Tax and such Agent or
Lender, applicable lending office, branch or affiliate other than a connection
arising solely from such Agent or Lender having executed, delivered or performed
its obligations under, or received payment under or enforced, this Agreement or
any Notes. If any such non-excluded Taxes ("Non-Excluded Taxes") are required to
be withheld from any amounts payable by any Borrower or any Agent to the U.S.
Administrative Agent, the Canadian Administrative Agent or any Lender hereunder
or under any Notes, the amounts payable by such Borrower shall be increased to
the extent necessary to yield to the U.S. Administrative Agent, the Canadian
Administrative Agent or such Lender (after payment of all Non-Excluded Taxes)
interest or any such other amounts payable hereunder at the rates or in the
amounts specified in this Agreement; provided, however, that each of the
Borrowers shall be entitled to deduct and withhold, and the Borrowers shall not
be required to indemnify for, any Non-Excluded Taxes, and any such amounts
payable by any Borrower or any Agent to, or for the account of, any such Agent
or Lender shall not be increased (x) if such Agent or Lender fails to comply
with the requirements of paragraphs (b) or (c) of this subsection or subsection
4.15 hereof (provided that while such failure shall limit the indemnity
obligation of the Borrowers pursuant to this subsection 4.11, such failure shall
not be
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treated as a breach of this Agreement for any other purpose) or (y) with respect
to any Non-Excluded Taxes imposed in connection with the payment of any fees
paid under this Agreement unless such Non-Excluded Taxes are imposed as a result
of a change in treaty, law or regulation that occurred after such Agent becomes
an Agent hereunder or such Lender becomes a Lender hereunder (or, if such Agent
or Lender is a non-U.S. intermediary or flow-through entity for U.S. federal
income tax purposes, after the relevant beneficiary or member of such Agent or
Lender became such a beneficiary or member, if later) (such change, at such
time, a "Change in Law") or (z) with respect to any Non-Excluded Taxes imposed
by the United States or any state or political subdivision thereof, unless such
Non-Excluded Taxes are imposed as a result of a Change in Law. Whenever any
Non-Excluded Taxes are payable by any of the Borrowers, as promptly as possible
thereafter the applicable Borrower shall send to the U.S. Administrative Agent
or the Canadian Administrative Agent, as applicable, for its own account or for
the account of such Lender, as the case may be, a certified copy of an original
official receipt received by such Borrower showing payment thereof. If any U.S.
Borrower or any Canadian Borrower fails to pay any Non-Excluded Taxes when due
to the appropriate taxing authority or fails to remit to the U.S. Administrative
Agent or the Canadian Administrative Agent, as applicable, the required receipts
or other required documentary evidence, the U.S. Borrowers (in the case of any
failure by a U.S. Borrower), on a joint and several basis, and the Canadian
Borrowers (in the case of any failure by a Canadian Borrower), on a joint and
several basis, shall indemnify the U.S. Administrative Agent, the Canadian
Administrative Agent and the Lenders for any incremental taxes, interest or
penalties that may become payable by the U.S. Administrative Agent, the Canadian
Administrative Agent or any Lender as a result of any such failure. The
agreements in this subsection 4.11 shall survive the termination of this
Agreement and the payment of the Loans and all other amounts payable hereunder.
(b) Each Agent (other than the Canadian Administrative Agent and the
Canadian Collateral Agent), and each Lender that stands ready to make, makes or
holds any Extension of Credit to any U.S. Borrower (which shall include for the
purposes of this clause (b), Canadian Xxxxx) (a "U.S. Extender of Credit"), in
each case that is not incorporated under the laws of the United States of
America or a state thereof shall:
(X) (i) on or before the date of any payment by any of the U.S.
Borrowers under this Agreement or any Notes to, or for the account of, such
Agent or Lender, deliver to the U.S. Borrowers and the U.S. Administrative
Agent (A) two duly completed copies of United States Internal Revenue
Service Form W-8BEN (certifying that it is a resident of the applicable
country within the meaning of the income tax treaty between the United
States and that country) or Form W-8ECI, or successor applicable form, as
the case may be, in each case certifying that it is entitled to receive all
payments under this Agreement and any Notes without deduction or
withholding of any United States federal income taxes, (B) in the case of
DBNY, also deliver two duly completed copies of Internal Revenue Service
Form W-8IMY certifying that it is a "U.S. branch" and that the payments it
receives for the account of others are not effectively connected with the
conduct of its trade or business in the United States and that it is using
such form as evidence of its agreement with the U.S. Borrowers to be
treated as a U.S. person with respect to such payments (and the U.S.
Borrowers and DBNY agree to so treat DBNY as a U.S. person with respect to
such payments), with the effect that the U.S. Borrowers can make payments
to DBNY without deduction or withholding of any Taxes imposed by the
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United States and (C) such other forms, documentation or certifications, as
the case may be, certifying that it is entitled to an exemption from United
States backup withholding tax with respect to payments under this Agreement
and any Notes;
(ii) deliver to the U.S. Borrowers and the U.S. Administrative
Agent two further copies of any such form or certification on or
before the date that any such form or certification expires or becomes
obsolete and after the occurrence of any event requiring a change in
the most recent form or certificate previously delivered by it to the
U.S. Borrowers; and
(iii) obtain such extensions of time for filing and completing
such forms or certifications as may reasonably be requested by any
U.S. Borrower or the U.S. Administrative Agent; or
(Y) in the case of any such Lender that is not a "bank" within the
meaning of Section 881(c)(3)(A) of the Code and is claiming the so-called
"portfolio interest exemption",
(i) represent to the U.S. Borrowers and the U.S. Administrative Agent
that it is not a bank within the meaning of Section 881(c)(3)(A) of the
Code;
(ii) deliver to the U.S. Borrowers on or before the date of any
payment by any of the U.S. Borrowers, with a copy to the U.S.
Administrative Agent, (A) two certificates substantially in the form of
Exhibit E (any such certificate a "U.S. Tax Compliance Certificate") and
(B) two accurate and complete original signed copies of Internal Revenue
Service Form W-8BEN, or successor applicable form, certifying to such
Lender's legal entitlement at the date of such form to an exemption from
U.S. withholding tax under the provisions of Section 871(h) or Section
881(c) of the Code with respect to payments to be made under this Agreement
and any Notes (and shall also deliver to the U.S. Borrowers and the U.S.
Administrative Agent two further copies of such form or certificate on or
before the date it expires or becomes obsolete and after the occurrence of
any event requiring a change in the most recently provided form or
certificate and, if necessary, obtain any extensions of time reasonably
requested by any U.S. Borrower or the U.S. Administrative Agent for filing
and completing such forms or certificates); and
(iii) deliver, to the extent legally entitled to do so, upon
reasonable request by any U.S. Borrower, to the U.S. Borrowers and the U.S.
Administrative Agent such other forms as may be reasonably required in
order to establish the legal entitlement of such Lender to an exemption
from withholding with respect to payments under this Agreement and any
Notes, provided that in determining the reasonableness of a request under
this clause (ii) such Lender shall be entitled to consider the cost (to the
extent unreimbursed by any of the Borrowers) which would be imposed on such
Lender of complying with such request; or
(Z) in the case of any such Lender that is a non-U.S. intermediary or
flow-through entity for U.S. federal income tax purposes,
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(i) on or before the date of any payment by any of the U.S. Borrowers
under this Agreement or any Notes to, or for the account of, such Lender,
deliver to the U.S. Borrowers and the U.S. Administrative Agent two
accurate and complete original signed copies of Internal Revenue Service
Form W-8IMY and, if any beneficiary or member of such Lender is claiming
the so-called "portfolio interest exemption", (I) represent to the U.S.
Borrowers and the U.S. Administrative Agent that such Lender is not a bank
within the meaning of Section 881(c)(3)(A) of the Code, and (II) also
deliver to the U.S. Borrowers and the U.S. Administrative Agent two U.S.
Tax Compliance Certificates certifying to such Lender's legal entitlement
at the date of such certificate to an exemption from U.S. withholding tax
under the provisions of Section 881(c) of the Code with respect to payments
to be made under this Agreement and any Notes; and
(A) with respect to each beneficiary or member of such Lender that is
not claiming the so-called "portfolio interest exemption", also deliver to
the U.S. Borrower and the U.S. Administrative Agent (I) two duly completed
copies of United States Internal Revenue Service Form W-8BEN (certifying
that such beneficiary or member is a resident of the applicable country
within the meaning of the income tax treaty between the United States and
that country), Form W-8ECI or Form W-9, or successor applicable form, as
the case may be, in each case so that each such beneficiary or member is
entitled to receive all payments under this Agreement and any Notes without
deduction or withholding of any United States federal income taxes and (II)
such other forms, documentation or certifications, as the case may be,
certifying that each such beneficiary or member is entitled to an exemption
from United States backup withholding tax with respect to all payments
under this Agreement and any Notes; and
(B) with respect to each beneficiary or member of such Lender that is
claiming the so-called "portfolio interest exemption", (I) represent to the
U.S. Borrowers and the U.S. Administrative Agent that such beneficiary or
member is not a bank within the meaning of Section 881(c)(3)(A) of the
Code, and (II) also deliver to the U.S. Borrowers and the U.S.
Administrative Agent two U.S. Tax Compliance Certificates from each
beneficiary or member and two accurate and complete original signed copies
of Internal Revenue Service Form W-8BEN, or successor applicable form,
certifying to such beneficiary's or member's legal entitlement at the date
of such certificate to an exemption from U.S. withholding tax under the
provisions of Section 871(h) or Section 881(c) of the Code with respect to
payments to be made under this Agreement and any Notes;
(ii) deliver to the U.S. Borrowers and the U.S. Administrative Agent
two further copies of any such forms, certificates or certifications
referred to above on or before the date any such form, certificate or
certification expires or becomes obsolete, or any beneficiary or member
changes, and after the occurrence of any event requiring a change in the
most recently provided form, certificate or certification and obtain such
extensions of time reasonably requested by any U.S. Borrower or the U.S.
Administrative Agent for filing and completing such forms, certificates or
certifications; and
(iii) deliver, to the extent legally entitled to do so, upon
reasonable request by any U.S. Borrower, to the U.S. Borrowers and the U.S.
Administrative Agent such other forms as may be reasonably required in
order to establish the legal entitlement of such
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Lender (or beneficiary or member) to an exemption from withholding with
respect to payments under this Agreement and any Notes, provided that in
determining the reasonableness of a request under this clause (iii) such
Lender shall be entitled to consider the cost (to the extent unreimbursed
by any of the Borrowers) which would be imposed on such Lender (or
beneficiary or member) of complying with such request;
unless in any such case any change in treaty, law or regulation has
occurred after the date such Person becomes a Lender hereunder (or a
beneficiary or member in the circumstances described in clause (Z) above,
if later) which renders all such forms inapplicable or which would prevent
such Lender (or such beneficiary or member) from duly completing and
delivering any such form with respect to it and such Lender so advises the
Parent Borrower and the U.S. Administrative Agent.
(c) Each Agent and each U.S. Extender of Credit, in each case that is
organized under the laws of the United States of America or a state thereof,
shall on or before the date of any payment by any of the U.S. Borrowers under
this Agreement or any Notes to, or for the account of, such Agent or U.S.
Extender of Credit, deliver to the U.S. Borrowers (which shall include for the
purposes of this clause (c), Canadian Xxxxx) and the U.S. Administrative Agent
two duly completed copies of Internal Revenue Service Form W-9, or successor
form, certifying that such Agent or U.S. Extender of Credit is a United States
Person (within the meaning of Section 7701(a)(30) of the Internal Revenue Code)
and that such Agent or U.S. Extender of Credit is entitled to a complete
exemption from United States backup withholding tax.
4.12 Indemnity. Each U.S. Borrower jointly and severally agrees to
indemnify each Lender in respect of Extensions of Credit made, or requested to
be made, to the U.S. Borrowers, each Canadian Borrower jointly and severally
agrees to indemnify each Canadian RCF Lender in respect of Extensions of Credit
made, or requested to be made, to the Canadian Borrowers and Canadian Xxxxx
agrees to indemnify each Lender in respect of Extensions of Credit made to it,
and, in each case, to hold each such Lender harmless from any loss or expense
which such Lender may sustain or incur (other than through such Lender's gross
negligence or willful misconduct (as determined in a final non-appealable
decision issued by a court of competent jurisdiction)) as a consequence of (a)
default by such Borrower in making a borrowing of, conversion into or
continuation of Eurocurrency Loans or Bankers' Acceptance Loans after the Parent
Borrower has given a notice requesting the same in accordance with the
provisions of this Agreement, (b) default by such Borrower in making any
prepayment or conversion of Eurocurrency Loans or Bankers' Acceptance Loans
after the respective Borrower has given a notice thereof in accordance with the
provisions of this Agreement or (c) the making of a payment or prepayment (or
the purchase pursuant to subsection 4.13(d)(i)) of Eurocurrency Loans or
Bankers' Acceptance Loans or the conversion of Eurocurrency Loans or Bankers'
Acceptance Loans on a day which is not the last day of an Interest Period or
maturity date, as applicable, with respect thereto. Such indemnification may
include an amount equal to the excess, if any, of (i) the amount of interest (or
in the case of Bankers' Acceptance Loans, yield) which would have accrued on the
amount so prepaid, or converted, or not so borrowed, converted or continued, for
the period from the date of such prepayment or conversion or of such failure to
borrow, convert or continue to the last day of the applicable Interest Period or
maturity date, as applicable (or, in the case of a failure to borrow, convert or
continue, the Interest Period or the term of the B/A Instrument, as the case may
be, that would have commenced on the date
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of such failure), in each case at the applicable rate of interest or BA Rate,
as applicable, for such Eurocurrency Loans or Bankers' Acceptance Loans, as
applicable, provided for herein (excluding, however, the Applicable Margin
included therein, if any) over (ii) the amount of interest or, in the case of
Bankers' Acceptance Loans, yield (as reasonably determined by such Lender) which
would have accrued to such Lender on such amount by placing such amount on
deposit for a comparable period with leading banks in the interbank eurocurrency
market or by issuing bankers' acceptances for a comparable period, as the case
may be. If any Lender becomes entitled to claim any amounts under the indemnity
contained in this subsection 4.12, it shall provide prompt notice thereof to the
Parent Borrower, through the U.S. Administrative Agent, certifying (x) that one
of the events described in clause (a), (b) or (c) has occurred and describing in
reasonable detail the nature of such event, (y) as to the loss or expense
sustained or incurred by such Lender as a consequence thereof and (z) as to the
amount for which such Lender seeks indemnification hereunder and a reasonably
detailed explanation of the calculation thereof. Such a certificate as to any
indemnification pursuant to this subsection submitted by such Lender, through
the U.S. Administrative Agent, to the Parent Borrower shall be conclusive in the
absence of manifest error. This covenant shall survive the termination of this
Agreement and the payment of the Loans and all other amounts payable hereunder.
4.13 Certain Rules Relating to the Payment of Additional Amounts. (a)
Upon the request, and at the expense of the applicable Borrower, each Lender to
which any of the Borrowers is required to pay any additional amount pursuant to
subsection 4.10 or 4.11, and any Participant in respect of whose participation
such payment is required, shall reasonably afford such Borrower the opportunity
to contest, and reasonably cooperate with such Borrower in contesting, the
imposition of any Tax giving rise to such payment; provided that (i) such Lender
shall not be required to afford such Borrower the opportunity to so contest
unless such Borrower shall have confirmed in writing to such Lender its
obligation to pay such amounts pursuant to this Agreement and (ii) such Borrower
shall reimburse such Lender for its reasonable attorneys' and accountants' fees
and disbursements incurred in so cooperating with such Borrower in contesting
the imposition of such Tax; provided, however, that notwithstanding the
foregoing no Lender shall be required to afford any Borrower the opportunity to
contest, or cooperate with such Borrower in contesting, the imposition of any
Taxes, if such Lender in its sole discretion in good faith determines that to do
so would have an adverse effect on it.
(b) If a Lender changes its applicable lending office (other than (i)
pursuant to paragraph (c) below or (ii) after an Event of Default under
subsection 9(a) or (f) has occurred and is continuing) and the effect of such
change, as of the date of such change, would be to cause any of the Borrowers to
become obligated to pay any additional amount under subsection 4.10 or 4.11,
such Borrower shall not be obligated to pay such additional amount.
(c) If a condition or an event occurs which would, or would upon the
passage of time or giving of notice, result in the payment of any additional
amount to any Lender by any of the Borrowers pursuant to subsection 4.10 or
4.11, such Lender shall promptly notify the applicable Borrower and the U.S.
Administrative Agent and shall take such steps as may reasonably be available to
it to mitigate the effects of such condition or event (which shall include
efforts to rebook the Loans held by such Lender at another lending office, or
through another branch or an affiliate, of such Lender); provided that such
Lender shall not be required to take any step that, in its reasonable judgment,
would be materially disadvantageous to its
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business or operations or would require it to incur additional costs (unless the
Parent Borrower agrees to reimburse such Lender for the reasonable incremental
out-of-pocket costs thereof).
(d) If any of the Borrowers shall become obligated to pay additional
amounts pursuant to subsection 4.10 or 4.11 and any affected Lender shall not
have promptly taken steps necessary to avoid the need for payments under
subsection 4.10 or 4.11, the applicable Borrower shall have the right, for so
long as such obligation remains, (i) with the assistance of the U.S.
Administrative Agent, to seek one or more substitute Lenders reasonably
satisfactory to the U.S. Administrative Agent and such Borrower to purchase the
affected Loan, in whole or in part, at an aggregate price no less than such
Loan's (other than a Bankers' Acceptance Loan) principal amount plus accrued
interest, in the case of any Bankers' Acceptance Loan, to provide cash
collateral in an amount equal to the face amount of each affected Bankers'
Acceptance Loan pursuant to arrangements satisfactory to the affected Lender,
and, in each case, assume the affected obligations under this Agreement, or (ii)
so long as no Default or Event of Default then exists or will exist immediately
after giving effect to the respective prepayment, upon at least four Business
Days' irrevocable notice to the U.S. Administrative Agent (and, if applicable,
the Canadian Administrative Agent), to prepay the affected Loan (other than a
Bankers' Acceptance Loan), in whole or in part, without premium or penalty,
except as otherwise provided in subsections 4.6(a) and 4.12 in the case of any
Bankers' Acceptance Loan, to provide cash collateral in an amount equal to the
face amount of each affected Bankers' Acceptance Loan pursuant to arrangements
satisfactory to the affected Lender. In the case of the substitution of a
Lender, the Parent Borrower (and any other applicable Borrower), the U.S.
Administrative Agent, the affected Lender, and any substitute Lender shall
execute and deliver an appropriately completed Assignment and Acceptance
pursuant to subsection 11.6(b) to effect the assignment of rights to, and the
assumption of obligations by, the substitute Lender; provided that any fees
required to be paid by subsection 11.6(b) in connection with such assignment
shall be paid by such Borrower or the substitute Lender. In the case of a
prepayment of an affected Loan, the amount specified in the notice shall be due
and payable on the date specified therein, together with any accrued interest to
such date on the amount prepaid. In the case of each of the substitution of a
Lender and of the prepayment of an affected Loan, the applicable Borrower shall
first pay the affected Lender any additional amounts owing under subsections
4.10 and 4.11 (as well as any commitment fees and other amounts then due and
owing to such Lender, including any amounts under this subsection 4.13) prior to
such substitution or prepayment.
(e) If any Agent or any Lender receives a refund directly attributable
to taxes for which any of the Borrowers has made additional payments pursuant to
subsection 4.10(a) or 4.11(a), such Agent or such Lender, as the case may be,
shall promptly pay such refund (together with any interest with respect thereto
received from the relevant taxing authority, but net of any reasonable cost
incurred in connection therewith) to such Borrower; provided, however, that such
Borrower agrees promptly to return such refund (together with any interest with
respect thereto due to the relevant taxing authority) (free of all Non-Excluded
Taxes) to such Agent or the applicable Lender, as the case may be, upon receipt
of a notice that such refund is required to be repaid to the relevant taxing
authority.
(f) The obligations of any Agent, Lender or Participant under this
subsection 4.13 shall survive the termination of this Agreement and the payment
of the Loans and all amounts payable hereunder.
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4.14 Controls on Prepayment if Aggregate Outstanding RCF Credit
Exceeds Aggregate RCF Commitments. (a) In addition to the provisions set forth
in subsection 4.4(c), the Parent Borrower will implement and maintain internal
controls to monitor the borrowings and repayments of Loans by the Borrowers and
the issuance of and drawings under Letters of Credit, with the object of (A)
preventing any request for an Extension of Credit that would result in (i) the
Aggregate Outstanding RCF Credit with respect to all of the RCF Lenders
(including the Swing Line Lender) being in excess of the aggregate RCF
Commitments then in effect or (ii) any other circumstance under which an
Extension of Credit would not be permitted pursuant to subsection 2.2(a) and (b)
and of (B) promptly identifying any circumstance where, by reason of changes in
exchange rates, the Aggregate Outstanding RCF Credit with respect to all of the
RCF Lenders (including the Swing Line Lender) exceeds the aggregate RCF
Commitments then in effect.
(b) The (i) U.S. Administrative Agent will calculate the Aggregate
Outstanding RCF Credit with respect to all of (A) the RCF Lenders and (B) the
U.S. RCF Lenders (in each case, including the Swing Line Lender) and (ii)
Canadian Administrative Agent will calculate the Aggregate Outstanding RCF
Credit with respect to the Canadian RCF Lenders, in each case, from time to
time, and in any event not less frequently than once during each calendar week.
In making such calculations, the U.S. Administrative Agent will rely on the
information most recently received by it from the Swing Line Lender in respect
of outstanding Swing Line Loans, from the Issuing Lenders in respect of
outstanding L/C Obligations and from the Canadian Administrative Agent in
respect of the Aggregate Outstanding RCF Credit with respect to the Canadian RCF
Lenders.
4.15 Canadian RCF Lenders. (a) The Canadian Administrative Agent, the
Canadian Collateral Agent and any Lender that holds any commitment or makes or
holds any Extension of Credit to any Canadian Borrower (such Lender, a "Canadian
Extender of Credit") will at all times be a Canadian Resident. Each Lender
making an Extension of Credit to Canadian Xxxxx (other than an Extension of
Credit with respect to which Canadian Xxxxx represents that interest payments
made pursuant to such a Loan shall be exempt from Canadian withholding taxation
without regard to the residence of the Lender) will at all times, be a Canadian
Resident that complies with subsection 4.11(b) or (c) with respect to such
Extension of Credit to Canadian Xxxxx.
(b) A Canadian RCF Lender may change its Affiliate acting as Canadian
Lender hereunder but only pursuant to an assignment in form and substance
reasonably satisfactory to the U.S. Administrative Agent and the Canadian
Administrative Agent (with the consent of the U.S. Administrative Agent and the
Canadian Administrative Agent and each Canadian Issuing Lender and the Parent
Borrower or the Canadian Borrowers), where the respective assignee represents
and warrants that it is an Affiliate of the respective Canadian RCF Lender and
represents and warrants that it is a Canadian Resident and will act directly as
a Canadian Lender with respect to the Canadian RCF Commitment of the respective
Canadian RCF Lender.
(c) Each Non-Canadian Affiliate will at all times comply with the
provisions of subsection 4.11(b) or 4.11(c), as applicable.
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4.16 Cash Receipts. (a) Annexed hereto as Schedule 4.16(a), as the
same may be modified from time to time by notice to the U.S. Administrative
Agent, is a schedule of all DDAs that are maintained by the Loan Parties, which
schedule includes, with respect to each depository (i) the name and address of
such depository; (ii) the account number(s) maintained with such depository; and
(iii) a contact person at such depository.
(b) Annexed hereto as Schedule 4.16(b), as the same may be modified
from time to time by notice to the U.S. Administrative Agent, is a list
describing all arrangements to which any Loan Party is a party with respect to
the payment to such Loan Party of the proceeds of all credit card charges for
sales of goods or services by such Loan Party.
(c) Each Loan Party shall (i) deliver to the U.S. Administrative Agent
or, if such Loan Party is a Canadian Loan Party, the Canadian Administrative
Agent, notifications in form reasonably satisfactory to the U.S. Administrative
Agent or the Canadian Administrative Agent, as the case may be, which have been
executed on behalf of such Loan Party and addressed to such Loan Party's credit
card clearinghouses and processors, in form reasonably satisfactory to the U.S.
Administrative Agent or the Canadian Administrative Agent, as the case may be
(each, a "Credit Card Notification"), (ii) deliver to the U.S. Administrative
Agent or, if such Loan Party is a Canadian Loan Party, the Canadian
Administrative Agent, notifications executed on behalf of the Borrowers to each
depository institution with which any DDA is maintained, in form reasonably
satisfactory to the U.S. Administrative Agent or the Canadian Administrative
Agent, as the case may be, of the U.S. Administrative Agent's (or, in the case
of any Loan Party that is a Canadian Loan Party, the Canadian Administrative
Agent's) interest in such DDA (each, a "DDA Notification"), (iii) instruct each
depository institution for a DDA to cause all amounts on deposit and available
at the close of each Business Day in such DDA to be swept to one of the Loan
Parties' concentration accounts no less frequently than on a daily basis, such
instructions to be irrevocable unless otherwise agreed to in writing by the U.S.
Administrative Agent or the Canadian Administrative Agent, as the case may be,
(iv) enter into a blocked account agreement (each, a "Blocked Account
Agreement"), in form reasonably satisfactory to the U.S. Administrative Agent or
the Canadian Administrative Agent, as the case may be, with the U.S.
Administrative Agent or the Canadian Administrative Agent, as the case may be,
and any bank with which such Loan Party maintains a concentration account into
which the DDAs (other than proceeds excluded from the Collateral pursuant to any
Security Document) are swept (each such account of a Loan Party other than a
Canadian Loan Party, a "U.S. Blocked Account", each such account of a Canadian
Loan Party, a "Canadian Blocked Account" and all such accounts, collectively,
the "Blocked Accounts"), covering each such concentration account maintained
with such bank, which concentration accounts as of the Closing Date are listed
on Schedule 4.16(c) annexed hereto and (v) instruct all Account Debtors of such
Loan Party that remit payments of Accounts of such Account Debtor regularly by
check pursuant to arrangements with such Loan Party to remit all such payments
(other than Accounts or payment thereof excluded from the Collateral pursuant to
any Security Document) to the applicable "P.O. Boxes" or "Lockbox Addresses"
with respect to the applicable DDA or concentration account, which remittances
shall be collected by the applicable bank (each, a "Collection Bank") and
deposited in the applicable DDA or concentration account. All amounts received
by the Parent Borrower, any of its Domestic or Canadian Subsidiaries that is a
Loan Party and any Collection Bank in respect of any Account, in addition to all
other cash received from any other source, shall upon receipt of such amount or
cash (other than any such amount or cash excluded from the
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Collateral pursuant to any Security Document) be deposited into a DDA or
concentration account. Each Loan Party agrees that it will not cause proceeds of
such DDAs to be otherwise redirected.
(d) Each Credit Card Notification and Blocked Account Agreement shall
require, after the occurrence and during the continuance of an Event or Default
or a Dominion Event, automatic clearing house or wire transfer no less
frequently than once per Business Day (unless the Commitments have been
terminated and the obligations hereunder and under the other Loan Documents have
been paid in full), of all available cash balances and cash receipts, including
the then contents or then entire ledger balance of each U.S. Blocked Account net
of such minimum balance (not to exceed $10,000 per account), if any, required by
the bank at which such U.S. Blocked Account is maintained to an account
maintained by the U.S. Administrative Agent at DBNY (the "DBNY Account") and of
each Canadian Blocked Account net of such minimum balance (not to exceed $10,000
per account), if any, required by the bank at which such Canadian Blocked
Account is maintained to an account maintained by the Canadian Administrative
Agent at DBCB (the "DBCB Account"). Each Loan Party agrees that it will not
cause any credit card proceeds or proceeds of any Blocked Account to be
otherwise redirected.
(e) (i) All collected amounts received in the DBNY Account shall be
distributed and applied on a daily basis in the following order (in each case,
to the extent the U.S. Administrative Agent has actual knowledge of the amounts
owing or outstanding as described below and any applications otherwise described
in following clauses (x) and (y), and after giving effect to the application of
any such amounts (x) otherwise required to be applied pursuant to subsections
4.4(b) or (y) constituting proceeds from any Collateral otherwise required to be
applied pursuant to the terms of the respective Security Document): (1) first,
to the payment (on a ratable basis) of any outstanding expenses actually due and
payable to the U.S. Administrative Agent, the U.S. Collateral Agent, and, to the
extent allocable to Canadian RCF Loans made to the U.S. Borrowers, the Canadian
Administrative Agent and/or the Canadian Collateral Agent under any of the Loan
Documents and to repay or prepay outstanding U.S. RCF Loans advanced by the U.S.
Administrative Agent and Canadian RCF Loans made to the U.S. Borrowers by the
Canadian Administrative Agent on behalf of the applicable Lenders hereunder; (2)
second, to the extent all amounts referred to in preceding clause (1) have been
paid in full, to pay (on a ratable basis) all outstanding expenses actually due
and payable to each Term Loan Lender under any of the Loan Documents, (3) third,
to the extent all amounts referred to in preceding clauses (1) and (2) have been
paid in full, to pay (on a ratable basis) all outstanding expenses actually due
and payable to each U.S. Issuing Lender under any of the Loan Documents and to
repay all outstanding U.S. Borrower Unpaid Drawings and all interest thereon;
(4) fourth, to the extent all amounts referred to in preceding clauses (1)
through (3), inclusive, have been paid in full, to pay (on a ratable basis) all
accrued and unpaid interest actually due and payable on the U.S. RCF Loans made
to the U.S. Borrowers and Canadian RCF Loans made to the U.S. Borrowers and
Canadian Xxxxx and all accrued and unpaid Fees actually due and payable to the
U.S. Administrative Agent and the Canadian Administrative Agent, the U.S.
Issuing Lenders and the RCF Lenders under any of the Loan Documents; (5) fifth,
to the extent all amounts referred to in preceding clauses (1) through (4),
inclusive, have been paid in full, to repay (on a ratable basis) the outstanding
principal of U.S. RCF Loans made to the U.S. Borrowers and Canadian RCF Loans
made to the U.S. Borrowers (whether or not then due and payable), (6) sixth, to
the extent all amounts referred to in preceding clauses (1) through (5),
inclusive, have been paid in full, to
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pay (on a ratable basis) all outstanding obligations of the U.S. Borrowers then
due and payable to the U.S. Administrative Agent, the U.S. Collateral Agent, the
Canadian Administrative Agent, the Canadian Collateral Agent and the RCF Lenders
under this Agreement and (6) seventh, to the extent all amounts referred to in
preceding clauses (1) through (6), inclusive, have been paid in full, to pay (on
a ratable basis) all other outstanding obligations of the U.S. Borrowers then
due and payable to the U.S. Administrative Agent, the U.S. Collateral Agent, the
Canadian Administrative Agent, the Canadian Collateral Agent and the RCF Lenders
under any of the Loan Documents.
(ii) All collected amounts held in the DBCB Account shall be
distributed and applied on a daily basis in the following order (in each case,
to the extent the Canadian Administrative Agent has actual knowledge of the
amounts owing or outstanding as described below and any applications otherwise
described in following clauses (x) and (y), and after giving effect to the
application of any such amounts (x) otherwise required to be applied pursuant to
subsection 4.4(b) or (y) constituting proceeds from any Collateral otherwise
required to be applied pursuant to the terms of the respective Security
Document): (1) first, to the payment (on a ratable basis) of any outstanding
expenses actually due and payable by the Canadian Borrowers to the Canadian
Administrative Agent and/or the Canadian Collateral Agent under any of the Loan
Documents and to repay or prepay outstanding Canadian RCF Loans made to the
Canadian Borrowers by the Canadian Administrative Agent on behalf of the Lenders
hereunder; (2) second, to the extent all amounts referred to in preceding clause
(1) have been paid in full, to pay (on a ratable basis) all outstanding expenses
actually due and payable by the Canadian Borrower to each Canadian Issuing
Lender under any of the Loan Documents and to repay all outstanding Canadian
Borrower Unpaid Drawings and interest thereon; (3) third, to the extent all
amounts referred to in preceding clauses (1) and (2) have been paid in full, to
pay (on a ratable basis) all accrued and unpaid interest actually due and
payable on the Canadian RCF Loans made to the Canadian Borrowers and all accrued
and unpaid Fees actually due and payable by the Canadian Borrowers to the
Canadian Administrative Agent, the Canadian Issuing Lenders and the Canadian
Lenders under any of the Loan Documents; (4) fourth, to the extent all amounts
referred to in preceding clauses (1) through (3), inclusive, have been paid in
full, to repay (on a ratable basis) the outstanding principal of Canadian RCF
Loans (other than Bankers' Acceptance Loans where the underlying B/A Instruments
have not matured) made to the Canadian Borrowers (whether or not then due and
payable); (5) fifth, to the extent all amounts referred to in preceding clauses
(1) through (4), inclusive, have been paid in full, to provide cash collateral
in an amount equal to the aggregate face amounts of all outstanding Bankers'
Acceptance Loans on terms reasonably satisfactory to the Canadian Administrative
Agent; (6) sixth, to the extent all amounts referred to in preceding clauses (1)
through (5), inclusive, have been paid in full, to pay (on a ratable basis) all
other outstanding obligations of the Canadian Borrowers then due and payable to
the Canadian Administrative Agent, the Canadian Collateral Agent and the
Canadian Lenders under this Agreement; and (7) seventh, to the extent all
amounts referred to in preceding clauses (1) through (6), inclusive, have been
paid in full, to pay (on a ratable basis) all other outstanding obligations of
the Canadian Borrowers then due and payable to the Canadian Administrative
Agent, the Canadian Collateral Agent and the Canadian Lenders under any of the
other Loan Documents.
(f) If, at any time after the occurrence and during the continuance of
an Event of Default or a Dominion Event as to which the U.S. Administrative
Agent has notified the
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Borrower, any cash or Cash Equivalents owned by any Loan Party (other than (i)
de minimis cash or Cash Equivalents from time to time inadvertently misapplied
by any Loan Party, and (ii) cash or Cash Equivalents that are (or are in any
account that is) excluded from the Collateral pursuant to any Security Document)
deposited to any account, or held or invested in any manner, otherwise than in a
Blocked Account subject to a Blocked Account Agreement (or a DDA which is swept
daily to such Blocked Account), the U.S. Administrative Agent or the Canadian
Administrative Agent, as the case may be, shall be entitled to require the
applicable Loan Party to close such account and have all funds therein
transferred to a Blocked Account, and to caused all future deposits to be made
to a Blocked Account.
(g) The Loan Parties may close DDAs or Blocked Accounts and/or open
new DDAs or Blocked Accounts, subject to the contemporaneous execution and
delivery to the U.S. Administrative Agent or the Canadian Administrative Agent,
as the case may be, of a DDA Notification or Blocked Account Agreement
consistent with the provisions of paragraphs (c) and (d) of this subsection 4.16
and otherwise reasonably satisfactory to the U.S. Administrative Agent or the
Canadian Administrative Agent, as the case may be. Unless consented to in
writing by the U.S. Administrative Agent or the Canadian Administrative Agent,
as the case may be, the Loan Parties shall not enter into any agreements with
credit card processors other than the ones listed on Schedule 4.16(b) unless
contemporaneously therewith a Credit Card Notification is executed and a copy
thereof is delivered to the U.S. Administrative Agent or the Canadian
Administrative Agent, as the case may be.
(h) (i) The DBNY Account shall at all times be under the sole dominion
and control of the U.S. Administrative Agent. Each Loan Party hereby
acknowledges and agrees that, except to the extent otherwise provided in the
U.S. Guarantee and Collateral Agreement (x) such Loan Party has no right of
withdrawal from the DBNY Account, (y) the funds on deposit in the DBNY Account
shall at all times continue to be collateral security for all of the obligations
of the Loan Parties (other than the Canadian Loan Parties) hereunder and under
the other Loan Documents, and (z) the funds on deposit in the DBNY Account shall
be applied as provided in this Agreement and the Intercreditor Agreement. In the
event that, notwithstanding the provisions of this subsection 4.16, any Loan
Party receives or otherwise has dominion and control of any proceeds or
collections required to be transferred to the DBNY Account pursuant to
subsection 4.16(d), such proceeds and collections shall be held in trust by such
Loan Party for the U.S. Administrative Agent, shall not be commingled with any
of such Loan Party's other funds or deposited in any account of such Loan Party
and shall promptly be deposited into the DBNY Account or dealt with in such
other fashion as such Loan Party may be instructed by the U.S. Administrative
Agent.
(ii) The DBCB Account shall at all times be under the sole dominion
and control of the Canadian Administrative Agent. Each Loan Party hereby
acknowledges and agrees that, except to the extent otherwise provided in the
Canadian Security Agreement (x) such Loan Party has no right of withdrawal from
the DBCB Account, (y) the funds on deposit in the DBCB Account shall at all
times continue to be collateral security for all of the obligations of the
Canadian Loan Parties hereunder and under the other Loan Documents, and (z) the
funds on deposit in the DBCB Account shall be applied as provided in this
Agreement. In the event that, notwithstanding the provisions of this subsection
4.16, any Loan Party receives or otherwise has dominion and control of any
proceeds or collections required to be transferred to the DBCB
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Account pursuant to subsection 4.16(d), such proceeds and collections shall be
held in trust by such Loan Party for the Canadian Administrative Agent, shall
not be commingled with any of such Loan Party's other funds or deposited in any
account of such Loan Party and shall promptly be deposited into the DBCB Account
or dealt with in such other fashion as such Loan Party may be instructed by the
Canadian Administrative Agent.
(i) So long as (i) no Event of Default has occurred and is continuing,
and (ii) no Dominion Event has occurred and is continuing, the Loan Parties may
direct, and shall have sole control over, the manner of disposition of funds in
the Blocked Accounts.
(j) Any amounts held or received in the DBNY Account or the DBCB
Account (including all interest and other earnings with respect hereto, if any)
at any time (x) when all of the obligations hereunder and under the other Loan
Documents have been satisfied or (y) all Events of Default and Dominion Events
have been cured, shall (subject in the case of clause (x) to the provisions of
the Intercreditor Agreement), be remitted to the operating account of the
applicable Borrower.
(k) Notwithstanding anything herein to the contrary, the Loan Parties
shall be deemed to be in compliance with the requirements set forth in this
subsection 4.16 during the initial forty-five (45) day period commencing on the
Closing Date to the extent that the arrangements described above are established
and effective not later than the date that is forty-five (45) days following the
Closing Date or such later date as the U.S. Administrative Agent, in its sole
discretion, may agree.
Section 5. Representations and Warranties. To induce each
Administrative Agent and each Lender to make the Extensions of Credit requested
to be made by it on the Closing Date and on each Borrowing Date thereafter, each
Credit Agreement Party, with respect to itself and its Subsidiaries, hereby
represents and warrants, on the Closing Date, in each case after giving effect
to the Transaction, and on every Borrowing Date thereafter to the U.S.
Administrative Agent and each Lender that:
5.1 Financial Condition. (a) The audited consolidated balance sheets
of the Recapitalized Business (it being understood that the reporting entity is
RSC) as of December 31, 2004 and December 31, 2005 and the consolidated
statements of income, shareholders' equity and cash flows of the Recapitalized
Business (it being understood that the reporting entity is RSC) for the fiscal
years ended as of December 31, 2003, December 31, 2004 and December 31, 2005,
reported on by and accompanied by unqualified reports from KPMG LLP, present
fairly, in all material respects, the consolidated financial condition as at
such date, and the consolidated results of operations and consolidated cash
flows for the respective fiscal years then ended, of the Recapitalized Business.
All such financial statements, including the related schedules and notes
thereto, have been prepared in accordance with GAAP consistently applied
throughout the periods covered thereby (except as approved by a Responsible
Officer and disclosed in any such schedules and notes). During the period from
December 31, 2005 to and including the Closing Date, except as provided in the
Recapitalization Agreement and in connection with the consummation of the
Transaction, there has been no sale, transfer or other disposition by the
Recapitalized Business of any material part of the business or property of the
Recapitalized Business, and no purchase or other acquisition by it of any
business or property (including any
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Capital Stock of any other Person) material in relation to the consolidated
financial condition of the Recapitalized Business which is not reflected in the
foregoing financial statements or in the notes thereto and has not otherwise
been disclosed in writing to the Lenders on or prior to the Closing Date.
(b) The pro forma balance sheet and statements of operations of the
Recapitalized Business and its consolidated Subsidiaries, copies of which have
heretofore been furnished to each Lender, are the balance sheet and statements
of operations of the Recapitalized Business and its consolidated Subsidiaries as
of December 31, 2005, adjusted to give effect (as if such events had occurred on
such date for the purposes of the balance sheet and on January 1, 2005 for the
purposes of the statement of operations) to the consummation of the Transaction.
5.2 No Change; Solvent. Since December 31, 2005, except as and to the
extent disclosed on Schedule 5.2, (a) there has been no development or event
relating to or affecting Holdings or any of its Subsidiaries which has had or
could be reasonably expected to have a Material Adverse Effect (after giving
effect to the consummation of the Transaction) and (b) except in connection with
the Transaction or as otherwise permitted under this Agreement and each other
Loan Document, no dividends or other distributions have been declared, paid or
made upon the Capital Stock of Holdings, nor has any of the Capital Stock of
Holdings been redeemed, retired, purchased or otherwise acquired for value by
Holdings or any of its Subsidiaries. As of the Closing Date, after giving effect
to the consummation of the Transaction, each Loan Party is Solvent.
5.3 Corporate Existence. Each of the Loan Parties (a) is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation or formation, (b) has the corporate, limited
liability company or partnership power and authority, as the case may be, and
the legal right, to own and operate its property, to lease the property it
operates as lessee and to conduct the business in which it is currently engaged,
except to the extent that the failure to have such legal right could not be
reasonably expected to have a Material Adverse Effect and (c) is duly qualified
as a foreign corporation, limited liability company or partnership and in good
standing under the laws of each jurisdiction where its ownership, lease or
operation of property or the conduct of its business requires such
qualification, other than in such jurisdictions where the failure to be so
qualified and in good standing could not be reasonably expected to have a
Material Adverse Effect.
5.4 Corporate Power; Authorization; Consents; Enforceable Obligations.
Each Loan Party has the corporate, limited liability company or partnership
power and authority, as the case may be, and the legal right, to make, deliver
and perform the Loan Documents to which it is a party and, in the case of each
of the Borrowers, to obtain Extensions of Credit hereunder, and each such Loan
Party has taken all necessary corporate, limited liability company or
partnership action, as the case may be, to authorize the execution, delivery and
performance of the Loan Documents to which it is a party and, in the case of
each of the Borrowers, to authorize the Extensions of Credit to it, if any, on
the terms and conditions of this Agreement, any Notes and the L/C Requests. No
consent or authorization of, filing with, notice to or other similar act by or
in respect of, any Governmental Authority or any other Person is required to be
obtained or made by or on behalf of any Loan Party in connection with the
execution, delivery, performance, validity or enforceability of the Loan
Documents to which it is a party or, in the case of each of
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the Borrowers, with the Extensions of Credit to it, if any, hereunder, except
for (a) consents, authorizations, notices and filings described in Schedule 5.4,
all of which have been obtained or made prior to the Closing Date, (b) filings
to perfect the Liens created by the Security Documents, (c) filings pursuant to
the Assignment of Claims Act of 1940, as amended (31 U.S.C. Section 3727 et
seq.), in respect of accounts of Holdings and its Subsidiaries the Obligor in
respect of which is the United States of America or any department, agency or
instrumentality thereof, (d) filings pursuant to the Financial Administration
Act (Canada) in respect of Accounts of the Parent Borrower and its Subsidiaries
the Obligor in respect of which is Her Majesty the Queen in the right of Canada
or any department, agency or instrumentality thereof and (e) consents,
authorizations, notices and filings which the failure to obtain or make could
not reasonably be expected to have a Material Adverse Effect. This Agreement has
been duly executed and delivered by each Credit Agreement Party, and each other
Loan Document to which any Loan Party is a party will be duly executed and
delivered on behalf of such Loan Party. This Agreement constitutes a legal,
valid and binding obligation of each Credit Agreement Party and each other Loan
Document to which any Loan Party is a party when executed and delivered will
constitute a legal, valid and binding obligation of such Loan Party, in each
case enforceable against such Credit Agreement Party or such other Loan Party,
as the case may be, in accordance with its terms, except as enforceability may
be limited by applicable domestic or foreign bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
5.5 No Legal Bar. The execution, delivery and performance of the Loan
Documents by any of the Loan Parties, the Extensions of Credit hereunder and the
use of the proceeds thereof (a) will not violate any Requirement of Law or
Contractual Obligation of such Loan Party in any respect that could reasonably
be expected to have a Material Adverse Effect and (b) will not result in, or
require, the creation or imposition of any Lien (other than the Liens permitted
by subsection 8.3) on any of its properties or revenues pursuant to any such
Requirement of Law or Contractual Obligation.
5.6 No Material Litigation. No litigation, investigation or proceeding
of or before any arbitrator or Governmental Authority is pending or, to the
knowledge of the Parent Borrower, threatened by or against Holdings or any of
its Subsidiaries or against any of their respective properties or revenues, (a)
which is so pending or threatened at any time on or prior to the Closing Date
and relates to any of the Loan Documents or any of the transactions contemplated
hereby or thereby or (b) which could be reasonably expected to have a Material
Adverse Effect.
5.7 No Default. Neither Holdings nor any of its Subsidiaries is in
default under or with respect to any of its Contractual Obligations in any
respect which could be reasonably expected to have a Material Adverse Effect. No
Default or Event of Default has occurred and is continuing.
5.8 Ownership of Property; Liens. Each of Holdings and its
Subsidiaries has good title in fee simple to, or a valid leasehold interest in,
all its material real property, and good title to, or a valid leasehold interest
in, all its other material property, and none of such property
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is subject to any Lien, except for Liens permitted by subsection 8.3. Schedule
5.8 sets forth all material real properties owned in fee or leased by the Loan
Parties as of the Closing Date.
5.9 Intellectual Property. The Parent Borrower and each of its
Subsidiaries owns, or has the legal right to use, all Intellectual Property
necessary for each of them to conduct its business as currently conducted except
for those the failure to own or have such legal right to use could not be
reasonably expected to have a Material Adverse Effect. Except as provided on
Schedule 5.9, no claim has been asserted and is pending by any Person
challenging or questioning the use of any such Intellectual Property or the
validity or effectiveness of any such Intellectual Property, nor does the Parent
Borrower know of any such claim, and, to the knowledge of the Parent Borrower,
the use of such Intellectual Property by the Parent Borrower and its
Subsidiaries does not infringe on the rights of any Person, except for such
claims and infringements which in the aggregate, could not be reasonably
expected to have a Material Adverse Effect.
5.10 Compliance With Requirements of Law and Contractual Obligations.
Neither Holdings nor any of its Subsidiaries is in violation of any Requirement
of Law or Contractual Obligation of or applicable to Holdings or any of its
Subsidiaries, which violation could be reasonably expected to have a Material
Adverse Effect.
5.11 Taxes. Holdings and its Subsidiaries have filed or caused to be
filed all United States federal income tax returns and all other material tax
returns which are required to be filed and has paid (a) all taxes shown to be
due and payable on such returns and (b) all taxes shown to be due and payable on
any assessments of which it has received notice made against it or any of its
property (including the Mortgaged Properties) and all other taxes, fees or other
charges imposed on it or any of its property by any Governmental Authority
(other than any (i) taxes, fees or other charges with respect to which the
failure to pay, in the aggregate, could not have a Material Adverse Effect or
(ii) taxes, fees or other charges the amount or validity of which are currently
being contested in good faith by appropriate proceedings diligently conducted
and with respect to which reserves in conformity with GAAP have been provided on
the books of Holdings or its Subsidiaries, as the case may be); and no tax Lien
has been filed, and no claim is being asserted, with respect to any such tax,
fee or other charge.
5.12 Federal Regulations. No part of the proceeds of any Extensions of
Credit will be used for any purpose which violates the provisions of the
Regulations of the Board, including, without limitation, Regulation T,
Regulation U or Regulation X of the Board. If requested by any Lender or the
U.S. Administrative Agent, the Parent Borrower will furnish to the U.S.
Administrative Agent and each Lender a statement to the foregoing effect in
conformity with the requirements of FR Form G-3 or FR Form U-1, referred to in
said Regulation U.
5.13 ERISA. (a) During the five year period prior to each date as of
which this representation is made, or deemed made, with respect to any Plan (or,
with respect to (f) or (h) below, as of the date such representation is made or
deemed made), none of the following events or conditions, either individually or
in the aggregate, has resulted or is reasonably likely to result in a Material
Adverse Effect: (a) a Reportable Event; (b) an "accumulated funding deficiency"
(within the meaning of Section 412 of the Code or Section 302 of ERISA); (c) any
noncompliance with the applicable provisions of ERISA or the Code; (d) a
termination of a
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Single Employer Plan (other than a standard termination pursuant to Section
4041(b) of ERISA); (e) a Lien on the property of Holdings, its Subsidiaries or
any Commonly Controlled Entity in favor of the PBGC or a Plan; (f) any
Underfunding with respect to any Single Employer Plan; (g) a complete or partial
withdrawal from any Multiemployer Plan by Holdings or any Commonly Controlled
Entity; (h) any liability of Holdings or any Commonly Controlled Entity under
ERISA if Holdings or any such Commonly Controlled Entity were to withdraw
completely from all Multiemployer Plans as of the annual valuation date most
closely preceding the date on which this representation is made or deemed made;
(i) the Reorganization or Insolvency of any Multiemployer Plan; or (j) any
transactions that resulted or could reasonably be expected to result in any
liability to Holdings or any Commonly Controlled Entity under Section 4069 of
ERISA or Section 4212(c) of ERISA.
(b) With respect to any Foreign Plan, none of the following events or
conditions exists and is continuing that, either individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect: (a)
substantial non-compliance with its terms and with the requirements of any and
all applicable laws, statutes, rules, regulations and orders; (b) failure to be
maintained, where required, in good standing with applicable regulatory
authorities; (c) any obligation of Holdings or its Subsidiaries in connection
with the termination or partial termination of, or withdrawal from, any Foreign
Plan; (d) any Lien on the property of the Parent Borrower or its Subsidiaries in
favor of a Governmental Authority as a result of any action or inaction
regarding a Foreign Plan; (e) for each Foreign Plan which is a funded or insured
plan, failure to be funded or insured on an ongoing basis to the extent required
by applicable non-U.S. law (using actuarial methods and assumptions which are
consistent with the valuations last filed with the applicable Governmental
Authorities); (f) any facts that, to the best knowledge of the Parent Borrower
or any of its Subsidiaries, exist that would reasonably be expected to give rise
to a dispute and any pending or threatened disputes that, to the best knowledge
of the Parent Borrower or any of its Subsidiaries, would reasonably be expected
to result in a material liability to the Parent Borrower or any of its
Subsidiaries concerning the assets of any Foreign Plan (other than individual
claims for the payment of benefits); and (g) failure to make all contributions
in a timely manner to the extent required by applicable non-U.S. law.
5.14 Collateral. (a) Upon execution and delivery thereof by the
parties thereto, the U.S. Guarantee and Collateral Agreement and the Mortgages
will be effective to create (to the extent described therein) in favor of the
U.S. Collateral Agent for the ratable benefit of the U.S. Secured Parties, a
legal, valid and enforceable security interest in the Collateral described
therein, except as may be limited by applicable domestic or foreign bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing. When (a) the actions specified
in Schedule 3 to the U.S. Guarantee and Collateral Agreement have been duly
taken, (b) all applicable Instruments, Chattel Paper and Documents (each as
described therein) a security interest in which is perfected by possession have
been delivered to, and/or are in the continued possession of, the U.S.
Collateral Agent, (c) all Deposit Accounts and Electronic Chattel Paper (each as
defined in the U.S. Guarantee and Collateral Agreement) a security interest in
which is required to be or is perfected by "control" (as described in the
Uniform Commercial Code as in effect in the State of New York from time to time)
are under the
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"control" of the U.S. Collateral Agent or the U.S. Administrative Agent, as
agent for the U.S. Collateral Agent and as directed by the U.S. Collateral
Agent, and (d) the Mortgages have been duly recorded, the security interests
granted pursuant thereto shall constitute (to the extent described therein) a
perfected security interest in, all right, title and interest of each pledgor or
mortgagor (as applicable) party thereto in the Collateral described therein
(excluding Commercial Tort Claims, as defined in the U.S. Guarantee and
Collateral Agreement, other than such Commercial Tort Claims set forth on
Schedule 7 thereto (if any)) with respect to such pledgor or mortgagor (as
applicable). Notwithstanding any other provision of this Agreement, capitalized
terms which are used in this subsection 5.14 and not defined in this Agreement
are so used as defined in the applicable Security Document.
(b) Upon execution and delivery thereof by the parties thereto, the
Canadian Security Agreement will be effective to create (to the extent described
therein) in favor of the Canadian Collateral Agent, for the ratable benefit of
the Canadian Secured Parties, a legal, valid and enforceable security interest
in the Collateral described therein, except as may be limited by applicable
domestic or foreign bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether considered in
a proceeding in equity or at law) and an implied covenant of good faith and fair
dealing. When the actions specified in Schedule 3 to the Canadian Security
Agreement have been duly taken the security interests granted pursuant thereto
shall constitute (to the extent described therein) a perfected security interest
in, all right, title and interest of each pledgor party thereto in the
Collateral described therein with respect to such pledgor.
5.15 Investment Company Act; Other Regulations. No Credit Agreement
Party is an "investment company", or a company "controlled" by an "investment
company", within the meaning of the Investment Company Act. No Credit Agreement
Party is subject to regulation under any Federal or State statute or regulation
(other than Regulation X of the Board) which limits its ability to incur
Indebtedness as contemplated hereby.
5.16 Subsidiaries. Schedule 5.16 sets forth all the Subsidiaries of
Holdings at the Closing Date (after giving effect to the Transaction), the
jurisdiction of their incorporation and the direct or indirect ownership
interest of Holdings therein.
5.17 Purpose of Loans. The proceeds of the Initial Term Loans and RCF
Loans incurred on the Closing Date will be used by the Parent Borrower to
finance, in part, payments required in connection with the Recapitalization and
to pay the fees and expenses incurred in connection with the Transaction. The
proceeds of RCF Loans and Swing Line Loans incurred after the Closing Date shall
be used by the Borrowers to finance the working capital and business
requirements of, and for general corporate purposes of, the Parent Borrower and
its Subsidiaries.
5.18 Environmental Matters. Other than as disclosed on Schedule 5.18
or exceptions to any of the following that could not, individually or in the
aggregate, reasonably be expected to give rise to a Material Adverse Effect:
(a) The Parent Borrower and its Subsidiaries: (i) are, and within the
period of all applicable statutes of limitation have been, in compliance
with all applicable
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Environmental Laws; (ii) hold all Environmental Permits (each of which is
in full force and effect) required for any of their current operations or
for any property owned, leased, or otherwise operated by any of them and
reasonably expect to timely obtain without material expense all such
Environmental Permits required for planned operations; (iii) are, and
within the period of all applicable statutes of limitation have been, in
compliance with all of their Environmental Permits; and (iv) believe they
will be able to maintain compliance with Environmental Laws, including any
reasonably foreseeable future requirements thereto.
(b) Materials of Environmental Concern have not been transported,
disposed of, emitted, discharged, or otherwise released or threatened to be
released, to or at any real property presently or formerly owned, leased or
operated by the Parent Borrower or any of its Subsidiaries or at any other
location, which would reasonably be expected to (i) give rise to liability
or other Environmental Costs of the Parent Borrower or any of its
Subsidiaries under any applicable Environmental Law, or (ii) interfere with
the Parent Borrower's planned or continued operations of the Parent
Borrower or any of its Subsidiaries, or (iii) impair the fair saleable
value of any real property owned by the Parent Borrower or any of its
Subsidiaries that is part of the Collateral.
(c) There is no judicial, administrative, or arbitral proceeding
(including any notice of violation or alleged violation) under any
Environmental Law to which the Parent Borrower or any of its Subsidiaries
is, or to the knowledge of the Parent Borrower or any of its Subsidiaries
is reasonably likely to be, named as a party that is pending or, to the
knowledge of the Parent Borrower or any of its Subsidiaries, threatened.
(d) Neither the Parent Borrower nor any of its Subsidiaries has
received any written request for information, or been notified that it is a
potentially responsible party, under CERCLA or any similar Environmental
Law, or received any other written request for information from any
Governmental Authority with respect to any Materials of Environmental
Concern.
(e) Neither the Parent Borrower nor any of its Subsidiaries has
entered into or agreed to any consent decree, order, or settlement or other
agreement, nor is subject to any judgment, decree, or order or other
agreement, in any judicial, administrative, arbitral, or other forum,
relating to compliance with or liability under any Environmental Law.
5.19 True and Correct Disclosure. The written information (including
the Confidential Information Memorandum, reports, financial statements, exhibits
and schedules but excluding information of a general economic or industry
nature) furnished by or on behalf of any Credit Agreement Party to any
Administrative Agent, any Collateral Agent, the Lead Arrangers and the Lenders
for purposes of or in connection with this Agreement, the other Loan Documents
or any transaction contemplated herein or therein is, and all other such written
information (taken as a whole) hereafter furnished by or on behalf of any Credit
Agreement Party in writing to any Administrative Agent, any Collateral Agent or
any Lender will be, true and accurate in all material respects on the date as of
which such information is dated or certified and does not and will not omit to
state any fact necessary to make such information (taken as a whole) not
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materially misleading in their presentation of Holdings and its Subsidiaries
(taken as a whole) at such time in light of the circumstances under which such
information was provided. It is understood that (a) no representation or
warranty is made concerning the forecasts, estimates, pro forma information,
projections and statements as to anticipated future performance or conditions,
and the assumptions on which they were based, contained in any such information,
reports, financial statements, exhibits or schedules, except that as of the date
such forecasts, estimates, pro forma information, projections and statements
were generated, (i) such forecasts, estimates, pro forma information,
projections and statements were based on the good faith assumptions of the
management of Holdings and its Subsidiaries and (ii) such assumptions were
believed by such management to be reasonable and (b) such forecasts, estimates,
pro forma information and statements, and the assumptions on which they were
based, may or may not prove to be correct.
5.20 Delivery of the Recapitalization Agreement. The Parent Borrower
has delivered to the U.S. Administrative Agent a complete photocopy of the
Recapitalization Agreement (including all exhibits, schedules, disclosure
letters referred to therein or delivered pursuant thereto, if any) and all
amendments thereto, waivers relating thereto and other side letters or
agreements affecting the terms thereof in any material respect.
5.21 Certain Representations and Warranties Contained in the
Recapitalization Agreement. Each of the Transaction Documents to be entered into
by any Loan Party on or prior to the Closing Date will have been duly executed
and delivered by each of the Loan Parties which is a party thereto on or prior
to the Closing Date and, to the knowledge of the Credit Agreement Parties, all
other parties thereto on or prior to the Closing Date, and is in full force and
effect on the Closing Date, in each case to the extent required pursuant to the
terms of the relevant Transaction Documents. As of the Closing Date, the
representations and warranties of the Recapitalized Business and, to the
knowledge of Holdings, any of the other parties thereto contained in the
Recapitalization Agreement (after giving effect to any amendments, supplements,
waivers or other modifications of the Recapitalization Agreement prior to the
Closing Date in accordance with this Agreement), to the extent a breach of such
representation or warranty would result in either Sponsor or any of its
Affiliates having a right to terminate its obligations thereunder (without
giving effect to any notice required thereunder), are true and correct in all
material respects except as otherwise disclosed to the U.S. Administrative Agent
in writing prior to the Closing Date.
5.22 Labor Matters. There are no strikes pending or, to the knowledge
of Holdings, reasonably expected to be commenced against Holdings or any of its
Subsidiaries which, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect. The hours worked and payments made
to employees of Holdings and each of its Subsidiaries have not been in violation
of any applicable laws, rules or regulations, except where such violations could
not reasonably be expected to have a Material Adverse Effect.
5.23 Special Purpose Corporation. Holdings was formed to effect the
Transaction. Prior to the consummation of the Transaction, Holdings did not have
any significant assets or liabilities (except pursuant to the Transaction
Documents or otherwise relating to the Transaction).
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5.24 Insurance. Schedule 5.24 sets forth a complete and correct
listing of all insurance that is maintained by the Loan Parties that is material
to the business and operations of Holdings and its Subsidiaries taken as a
whole, in each case as of the Closing Date, with the amounts insured (and any
deductibles) set forth therein.
5.25 Eligible Accounts and Eligible Unbilled Accounts. As of the date
of any Borrowing Base Certificate, all Accounts included in the calculation of
Eligible Accounts and Eligible Unbilled Accounts on such Borrowing Base
Certificate satisfy all requirements of an "Eligible Account" and "Eligible
Unbilled Accounts", respectively, hereunder.
5.26 Eligible Rental Fleet. As of the date of any Borrowing Base
Certificate, all Rental Fleet included in the calculation of Eligible Rental
Fleet on such Borrowing Base Certificate satisfy all requirements of an
"Eligible Rental Fleet" hereunder.
5.27 Eligible Inventory. As of the date of any Borrowing Base
Certificate, all Inventory included in the calculation of Eligible Inventory on
such Borrowing Base Certificate satisfy all requirements of an "Eligible
Inventory" hereunder.
5.28 Anti-Terrorism. As of the Closing Date, Holdings and its
Subsidiaries are in compliance with the Uniting and Strengthening of America by
Providing the Appropriate Tools Required to Intercept and Obstruct Terrorism Act
of 2001, except as could not reasonably be expected to have a Material Adverse
Effect.
5.29 Capitalization. (a) On the Closing Date, RSC LLC I owns 100% of
the membership interests in Holdings. All such membership interests have been
duly and validly issued.
(b) On the Closing Date, Holdings owns 100% of the membership
interests in the Parent Borrower. All such membership interests have been duly
and validly issued.
(c) On the Closing Date, the authorized capital stock of RSC consists
of (x) 1,000 shares of common stock, without par value, that is outstanding and
(y) 100 shares of preferred stock, $10 par value, that is not outstanding. All
outstanding shares of Capital Stock of RSC have been duly and validly issued and
are fully paid and non-assessable (other than any assessment on the shareholders
of RSC that may be imposed as a matter of law) and are owned by the Parent
Borrower. RSC does not have outstanding any Capital Stock, or other securities,
in each case, convertible into or exchangeable for its Capital Stock or any
rights to subscribe for or to purchase, or any options for the purchase of, or
any agreement providing for the issuance (contingent or otherwise) of, or any
calls, commitments or claims of any character relating to, its Capital Stock.
(d) On the Closing Date, the authorized Capital Stock of RSC Canada
consists of an unlimited number of common shares without par value, with 1,100
such common shares outstanding. All outstanding Capital Stock in RSC Canada has
been duly and validly issued and is fully paid and non-assessable (other than
any assessment on the shareholders of RSC Canada that may be imposed as a matter
of law) and is owned by RSC. RSC Canada does not have outstanding any Capital
Stock, or other securities convertible, in each case, into or exchangeable for
its Capital Stock or any rights to subscribe for or to purchase, or any options
for the purchase
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of, or any agreement providing for the issuance (contingent or otherwise) of, or
any calls, commitments or claims of any character relating to, its Capital
Stock.
5.30 Rental Fleet; Business of the Credit Parties. (a) Each U.S. Loan
Party that owns Inventory holds such Inventory for sale or lease and is in the
business of selling goods of that kind.
(b) Each Canadian Loan Party that owns Inventory (i) holds such
Inventory for sale or lease and is in the business of selling goods of that
kind.
Section 6. Conditions Precedent.
6.1 Conditions to Initial Extension of Credit. This Agreement,
including the agreement of each Lender to make the initial Extension of Credit
requested to be made by it, shall become effective on the date on which the
following conditions precedent shall have been satisfied:
(a) Loan Documents. The U.S. Administrative Agent shall have received
the following Loan Documents, executed and delivered as required below,
with, in the case of clause (i), a copy for each Lender:
(i) this Agreement, executed and delivered by a duly authorized
officer of each Credit Agreement Party;
(ii) the U.S. Guarantee and Collateral Agreement, executed and
delivered by a duly authorized officer of each Credit Agreement Party
thereto;
(iii) each Canadian Security Document, executed and delivered by a
duly authorized officer of each Canadian Borrower and each other Canadian
Loan Party; and
(iv) the Intercreditor Agreement, executed and delivered by a duly
authorized officer of each Loan Party party thereto.
(b) Recapitalization Agreement. The Recapitalization shall have been
consummated, or substantially concurrently with the initial Extensions of
Credit hereunder and the borrowings under the Second-Lien Credit Agreement
shall be consummated, substantially in accordance with the Recapitalization
Agreement and all material conditions precedent to the consummation of the
Recapitalization set forth in such Recapitalization Agreement shall have
been satisfied or waived with the consent of the Lead Arrangers (such
consent not to be unreasonably withheld or delayed). The Recapitalization
Agreement, the structure and terms of the Recapitalization (including the
Seller Note) and the documentation for each component of the
Recapitalization shall be reasonably satisfactory in all material respects
in form and substance to the Lead Arrangers, and such documentation shall
not have been amended, supplemented or otherwise changed in a manner
materially adverse to the Lenders without the consent of the Lead Arrangers
(such consent not to be unreasonably withheld or delayed). It is expressly
acknowledged by the Lead Arrangers that (i) the terms and conditions of the
Recapitalization Agreement (and all exhibits, annexes and schedules
thereto), dated as of
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October 6, 2006 and (ii) the structure and terms of the Recapitalization
specified therein, are so satisfactory.
(c) Debt Financing. (i) The U.S. Administrative Agent shall receive,
substantially concurrently with the satisfaction of the other conditions
precedent set forth in this subsection 6.1, evidence, in form and substance
reasonably satisfactory to it, that the Parent Borrower and RSC shall have
received gross cash proceeds (calculated before underwriting fees) of
$620,000,000 from the issuance of a like principal amount of Senior Notes
in accordance with the terms and conditions of the Senior Note Indenture
and all applicable laws.
(ii) The U.S. Administrative Agent shall receive, substantially
concurrently with the satisfaction of the other conditions precedent set forth
in this subsection 6.1, evidence, in form and substance reasonably satisfactory
to it, that Holdings, the Parent Borrower and RSC shall have (i) executed and
delivered the Second-Lien Term Loan Credit Agreement and (ii) the Parent
Borrower and RSC shall have received gross cash proceeds in an aggregate
principal amount equal to $1,130,000,000 from the incurrence of Second-Lien Term
Loans pursuant to the Second-Lien Term Loan Credit Agreement.
(iii) On the Closing Date, the U.S. Administrative Agent shall have
received true and correct copies of the Senior Note Documents, certified as such
by an appropriate officer of the Parent Borrower.
(d) Outstanding Indebtedness and Preferred Equity; No Defaults. After
giving effect to the consummation of the Transaction, Holdings and its
Subsidiaries shall have no outstanding preferred equity or Indebtedness held by
third parties (other than Holdings or any of its Subsidiaries), except for
indebtedness incurred pursuant to the Debt Financing and any Assumed
Indebtedness, and all Capital Stock of the Parent Borrower shall be directly or
indirectly owned by Holdings free and clear of Liens (other than those securing
the obligations arising under the Loan Documents and the Second-Lien Term Loan
Documents). Any other existing Indebtedness shall have been repaid, defeased or
otherwise discharged substantially concurrently with or prior to the
satisfaction of the other conditions precedent set forth in this subsection 6.1.
(e) Financial Information. The Lead Arrangers and the Lenders shall
have received (i) audited consolidated financial statements of the Recapitalized
Business (with RSC as the reporting entity) for the three Fiscal Years (two
Fiscal Years, in the case of balance sheets) of the Recapitalized Business ended
prior to the Closing Date, (ii) unaudited consolidated financial statements of
ACNA for the quarterly periods ended March 31, 2006 and June 30, 2006, and
unaudited consolidated financial statements of the Recapitalized Business (with
RSC as the reporting entity) for the quarterly period ended September 30, 2006,
(iii) a pro forma consolidated balance sheet of the Recapitalized Business as of
the date of the most recent consolidated balance sheet delivered pursuant to
preceding clause (ii) and a pro forma statement of operations for the most
recent Fiscal Year, interim period and 12-month period ending on the last day of
such interim period, in each case adjusted to give effect to the Transaction,
and any other transactions that would be required to be given pro forma effect
by Regulation S-X for a Form S-1 Registration Statement under the Securities
Act, and such other adjustments as may be
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reasonably agreed between the Parent Borrower and the Lead Arrangers, which pro
forma financial statements shall demonstrate, in reasonable detail, that the
total consolidated indebtedness of the Recapitalized Business and its
subsidiaries consisting of indebtedness for borrowed money (including purchase
money indebtedness) and capital leases (determined on a pro forma basis after
giving effect to the Transaction) does not exceed 4.40 multiplied by EBITDA of
the Recapitalized Business (calculated subject to the Closing Date adjustments
set forth on Schedule 6.1(e) hereto) for the twelve-month period ending on the
last day of the fiscal quarter ending no more than 45 days prior to the Closing
Date, (iv) interim financial statements of the Recapitalized Business (with RSC
as the reporting entity) for each month ended after the date of the last
available quarterly financial statements and at least 30 days prior to the
Closing Date and (v) detailed projected consolidated financial statements of the
Recapitalized Business for the five Fiscal Years ending after the Closing Date,
which projections shall (x) reflect the forecasted consolidated financial
condition of the Parent Borrower and its Subsidiaries after giving effect to the
Transaction and the related financing thereof, and (y) be prepared and approved
by the Parent Borrower.
(f) Governmental Approvals and/or Consents. The applicable waiting
periods specified under Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as
amended, with respect to the transactions contemplated by the Recapitalization
Agreement shall have lapsed or been terminated and all other consents or
approvals under the Competition Act (Canada) from the Canadian Bureau of
Competition, any of the antitrust or competition governmental authorities of any
other jurisdiction in which the Recapitalized Business, Holdings or any of its
Subsidiaries owns a material amount of assets, and all other consents and
approvals from any other Governmental Authority required to consummate the
transactions contemplated by the Recapitalization Agreement, the failure of
which to obtain could have a material adverse effect on the business, condition
(financial or otherwise) or results of operations of Holdings and its
Subsidiaries, taken as a whole, shall have been obtained. On the Closing Date,
there shall be no injunction, restraining order or decree of any nature of any
Governmental Authority that is in effect that restrains or prohibits the
consummation of the transactions contemplated by the Recapitalization Agreement.
All Loans to the Borrowers (and all guarantees thereof and security therefor),
as well as the Recapitalization and the consummation thereof, shall be in
substantial compliance in all material respects with all applicable requirements
of law, including Regulations T, U and X of the Board (the "Margin
Regulations"). The U.S. Administrative Agent shall have received a certificate
of a Responsible Officer of the Parent Borrower stating that all other consents,
authorizations, notices and filings referred to in Schedule 5.4 are in full
force and effect or have the status described therein, and the U.S.
Administrative Agent shall have received evidence thereof reasonably
satisfactory to it.
(g) Lien Searches. The U.S. Administrative Agent shall have received
the results of a recent search by a Person reasonably satisfactory to the U.S.
Administrative Agent, of the UCC, PPSA, judgment and tax lien filings which have
been filed with respect to personal property of the Recapitalized Business,
Holdings, the Parent Borrower and their respective Subsidiaries in any of the
jurisdictions set forth in Schedule 6.1(g), and the results of such search shall
not reveal any Liens other than Liens permitted by subsection 8.3.
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(h) Legal Opinions. The U.S. Administrative Agent shall have received
the following executed legal opinions:
(i) the executed legal opinion of Debevoise & Xxxxxxxx LLP, special
New York counsel to each Credit Agreement Party and the other Loan Parties,
in form and substance reasonably satisfactory to the U.S. Administrative
Agent;
(ii) the executed legal opinion of Xxxxx & Xxxxxx LLP, special Arizona
counsel to RSC, in form and substance reasonably satisfactory to the U.S.
Administrative Agent;
(iii) the executed legal opinion of Xxxxxxxx, Xxxxxx & Finger, P.A.,
special Delaware counsel to Holdings and the Parent Borrower, in form and
substance reasonably satisfactory to the U.S. Administrative Agent; and
(iv) the executed legal opinion of Torys LLP, counsel to the Canadian
Borrowers, in form and substance reasonably satisfactory to the U.S.
Administrative Agent.
(i) Closing Certificate. The U.S. Administrative Agent shall have
received a certificate from each Loan Party, dated the Closing Date,
substantially in the form of Exhibit H, with appropriate insertions and
attachments.
(j) Perfected Liens. (i) The U.S. Collateral Agent shall have obtained
a valid first priority security interest in the Collateral covered by the U.S.
Guarantee and Collateral Agreement (to the extent provided therein); and all
documents, instruments, filings, recordations and searches reasonably necessary
in connection with the perfection and, in the case of the filings with the U.S.
Patent and Trademark Office and the U.S. Copyright Office, protection of such
security interests shall have been executed and delivered (in the case of UCC
filings, written authorization to make such UCC filings shall have been
delivered to the U.S. Collateral Agent) and none of such Collateral shall be
subject to any other pledges, security interests or mortgages except for
Permitted Liens; provided that with respect to any such Collateral the security
interest in which may not be perfected by filing of a UCC financing statement or
by making a filing with the U.S. Patent and Trademark Office or the U.S.
Copyright Office, if perfection of the U.S. Collateral Agent's security interest
in such Collateral may not be accomplished on or before the Closing Date without
undue burden or expense after the Parent Borrower's use of commercially
reasonable efforts to do so, then delivery of documents and instruments for
perfection of such security interest shall not constitute a condition precedent
to the initial borrowings hereunder, but instead shall be required to be
satisfied on or prior to the 60th day following the Closing Date or, with
respect to (i) the requirements set forth in subsection 4.16, the 45th day
following the Closing Date and (ii) Rental Equipment represented by a
certificate of title, the 120th day following the Closing Date.
(ii) The Canadian Collateral Agent shall have obtained a valid
security interest in the Collateral covered by each Canadian Security Agreement
(with the priority contemplated therein); and all documents, instruments,
filings, recordations and searches reasonably necessary in connection with the
perfection and, in the case of the filings with the Canadian Intellectual
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Property Office, protection of such security interests shall have been executed
and delivered or, in the case of PPSA filings, written authorization to make
such PPSA filings shall have been delivered to the Canadian Collateral Agent,
and none of such Collateral shall be subject to any other pledges, security
interests or mortgages except for Permitted Liens; provided that with respect to
any such collateral the security interest in which may not be perfected by
filing of a PPSA financing statement or by making a filing with the Canadian
Intellectual Property Office, if perfection of the Canadian Collateral Agent's
security interest in such collateral may not be accomplished on or before the
Closing Date without undue burden or expense after the Parent Borrower's use of
commercially reasonable efforts to do so, then delivery of documents and
instruments for perfection of such security interest shall not constitute a
condition precedent to the initial borrowings hereunder but shall be required to
be satisfied on or prior to the 60th day following the Closing Date or, with
respect to the requirements set forth in subsection 4.16, the 45th date
following the Closing Date.
(k) Pledged Stock; Stock Powers; Pledged Notes; Endorsements. The
Collateral Agent shall have received (subject, in each case, to the provisos at
the end of subsections 6.1(j)(i) and (ii) above):
(i) the certificates, if any, representing the Pledged Stock under
(and as defined in) the U.S. Guarantee and Collateral Agreement or any
Canadian Security Document, together with an undated stock power for each
such certificate executed in blank by a duly authorized officer of the
pledgor thereof; and
(ii) the promissory notes representing each of the Pledged Notes under
(and as defined in) the U.S. Guarantee and Collateral Agreement or any
Canadian Security Document, duly endorsed as required by the U.S. Guarantee
and Collateral Agreement or such Canadian Security Documents, as the case
may be.
(l) Fees. The Agents and the Lenders shall have received all fees and
expenses required to be paid or delivered by the Borrowers to them in respect of
the Transaction on or prior to the Closing Date, including the fees referred to
in subsection 4.5.
(m) Borrowing Certificate. The U.S. Administrative Agent shall have
received a certificate from the Parent Borrower, dated the Closing Date,
substantially in the form of Exhibit I, with appropriate insertions and
attachments, reasonably satisfactory in form and substance to the U.S.
Administrative Agent, executed by a Responsible Officer and the Secretary or any
Assistant Secretary of the Parent Borrower.
(n) Corporate Proceedings of the Loan Parties. The U.S. Administrative
Agent shall have received a copy of the board resolutions or member consents, in
form and substance reasonably satisfactory to the U.S. Administrative Agent, of
each Loan Party authorizing, as applicable, (i) the execution, delivery and
performance of this Agreement, any Notes and the other Loan Documents to which
it is or will be a party as of the Closing Date, (ii) the Extensions of Credit
to such Loan Party (if any) contemplated hereunder and (iii) the granting by it
of the Liens to be created pursuant to the Security Documents to which it will
be a party as of the Closing Date, certified by the Secretary or an Assistant
Secretary of such Loan Party as of the Closing Date, which certificate shall be
in form and substance reasonably
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satisfactory to the U.S. Administrative Agent and shall state that the board
resolutions or member consents thereby certified have not been amended, modified
(except as any later such board resolutions or member consents may modify any
earlier such board resolutions or member consents), revoked or rescinded and are
in full force and effect.
(o) Incumbency Certificates of the Loan Parties. The U.S.
Administrative Agent shall have received a certificate of each Loan Party, dated
the Closing Date, as to the incumbency and signature of the officers of such
Loan Party executing any Loan Document, reasonably satisfactory in form and
substance to the U.S. Administrative Agent executed by a Responsible Officer and
the Secretary or any Assistant Secretary of such Loan Party.
(p) Governing Documents. The U.S. Administrative Agent shall have
received copies of the certificate or articles of incorporation and by-laws (or
other similar governing documents serving the same purpose) of each Loan Party,
certified as of the Closing Date as complete and correct copies thereof by the
Secretary or an Assistant Secretary of such Loan Party, together with any
required director or shareholder consents or resolutions required in connection
with the pledge of shares of the Canadian Loan Parties to the Canadian
Administrative Agent.
(q) Insurance. The U.S. Administrative Agent shall have received
evidence in form and substance reasonably satisfactory to it that all of the
requirements of subsection 7.5 of this Agreement and subsection 5.2.2 of the
Guarantee and Collateral Agreement and any similar section of any Canadian
Security Documents shall have been satisfied. Holdings shall have caused the
U.S. Administrative Agent and/or the Canadian Administrative Agent, as
applicable, to have been named as additional insureds with respect to liability
policies and the U.S. Collateral Agent and/or the Canadian Collateral Agent, as
applicable, to have been named as loss payee with respect to the casualty
insurance maintained by each Credit Agreement Party and the Subsidiary
Guarantors.
(r) No Material Company Adverse Effect. No fact, event, change or
circumstances shall have occurred since December 31, 2005 that has had or could
be reasonably likely to have a Company Material Adverse Effect.
(s) Solvency. The U.S. Administrative Agent shall have received a
certificate of the chief financial officer or, if none, the treasurer,
controller, vice president (finance) or other responsible financial officer
reasonably satisfactory to the U.S. Administrative Agent of each of the
Borrowers certifying the solvency of such Borrower in customary form (as per the
applicable jurisdiction of such Borrower) reasonably satisfactory to the Lead
Arrangers.
(t) Excess Availability. The U.S. Administrative Agent shall have
received a Borrowing Base Certificate which shall demonstrate, inter alia, that
after giving effect to the Borrowings hereunder on the Closing Date, the
Available RCF Commitments shall be at least $350,000,000.
(u) Cash Management. The Lead Arrangers shall be reasonably satisfied
with the arrangements made by the Parent Borrower to comply with the provisions
set forth in subsection 4.16 hereof.
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(v) Appraisal. The U.S. Administrative Agent shall have received (i)
appraisal valuations (dated on or after September 30, 2006 but prior to the
Closing Date) of the Collateral of Borrowers prepared by appraisers reasonably
satisfactory to the Lead Arrangers, in form and substance reasonably
satisfactory to the Lead Arrangers and prepared by appraisers reasonably
satisfactory to the Lead Arrangers and (ii) the results of a completed field
examination with respect to the Collateral to be included in calculating the
U.S. Borrowing Base and Canadian Borrowing Base and of the relevant accounting
systems, policies and procedures of Holdings and its Subsidiaries.
(w) Equity Financing. ACNA shall have received the Equity Financing in
an amount of not less than $500,000,000 in exchange for common stock of ACNA
that will, after giving effect to the transactions contemplated by the
Recapitalization Agreement, represent approximately 85.47% of the total
outstanding shares of ACNA stock. In addition, after giving effect to such
transactions, the Sellers shall own approximately 14.53% of the total
outstanding shares of ACNA stock.
The making of the initial Extensions of Credit by the Lenders
hereunder shall conclusively be deemed to constitute an acknowledgment by the
U.S. Administrative Agent and each Lender that each of the conditions precedent
set forth in this subsection 6.1 shall have been satisfied in accordance with
its respective terms or shall have been irrevocably waived by such Person.
6.2 Conditions to Each Extension of Credit. The agreement of each
Lender to make any Extension of Credit requested to be made by it on any date
(including the initial Extension of Credit and each Swing Line Loan) is subject
to the satisfaction or waiver of the following conditions precedent:
(a) Representations and Warranties. Each of the representations and
warranties made by any Loan Party pursuant to this Agreement or any other
Loan Document (or in any amendment, modification or supplement hereto or
thereto) to which it is a party (other than, in the case of the initial
Extension of Credit hereunder only, the representation and warranty set
forth in clause (a) of subsection 5.2), and each of the representations and
warranties contained in any certificate furnished at any time by or on
behalf of any Loan Party pursuant to this Agreement or any other Loan
Document shall, except to the extent that they relate to a particular date,
be true and correct in all material respects on and as of such date as if
made on and as of such date.
(b) No Default. No Default or Event of Default shall have occurred and
be continuing on such date or after giving effect to the Extensions of
Credit requested to be made on such date; provided that, with respect to
the initial Extension of Credit hereunder, no Default or Event of Default
resulting from the failure to provide any collateral of the type described
in the proviso at the end of subsections 6.1(j)(i) or (ii) above shall
constitute a Default or an Event of Default for the purposes of this clause
(b).
(c) Borrowing Notice or L/C Request. With respect to any Borrowing,
the U.S. Administrative Agent or Canadian Administrative Agent, as
applicable, shall have
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received a notice of such Borrowing as required by subsection 2.3. With
respect to the issuance of any Letter of Credit, the Issuing Lender shall
have received a L/C Request, completed to its satisfaction, and such other
certificates, documents and other papers and information as the Issuing
Lender may reasonably request.
Each borrowing of Loans by and each Letter of Credit issued on behalf
of any of the Borrowers hereunder shall constitute a representation and warranty
by the Parent Borrower as of the date of such borrowing or such issuance that
the conditions contained in this subsection 6.2 have been satisfied (including,
to the extent provided herein, with respect to the initial Extension of Credit
hereunder).
Section 7. Affirmative Covenants. Each Credit Agreement Party hereby
agrees that, from and after the Closing Date and so long as the Commitments
remain in effect, and thereafter until payment in full of the Loans, all
Reimbursement Obligations and any other amount then due and owing to any Lender
or any Agent hereunder and under any Note and termination or expiration of all
Letters of Credit (or the cash collateralization of or other provision for such
Letters of Credit, in each case, in a manner reasonably satisfactory to the
relevant Issuing Lender), it shall and shall cause its Subsidiaries to (it being
understood that with respect to the delivery of financial information, reports
and notices, delivery by one Credit Party of any such financial information,
report or notice shall constitute delivery by each Credit Party and its
Subsidiaries of the same such financial information, report or notice):
7.1 Financial Statements. Furnish to the U.S. Administrative Agent for
prompt delivery to each Lender (and the U.S. Administrative Agent agrees to make
and so deliver such copies or otherwise make available such information):
(a) as soon as available, but in any event not later than the fifth
Business Day after the 90th day following the end of each Fiscal Year of
the Parent Borrower ending on or after December 31, 2006, a copy of the
audited consolidated balance sheet of the Parent Borrower and its
consolidated Subsidiaries as at the end of such year and the related
audited consolidated statements of operations, changes in common
stockholders' equity and cash flows for such year, setting forth in each
case, in comparative form the figures for and as of the end of the previous
year, certified without a "going concern" or like qualification or
exception, or qualification arising out of the scope of the audit, by KPMG
LLP or other independent certified public accountants of nationally
recognized standing reasonably acceptable to the U.S. Administrative Agent
in its reasonable judgment (it being agreed that the furnishing of the
Parent Borrower's or RSC's, as applicable, annual report on Form 10-K for
such year, as filed with the Securities and Exchange Commission within the
period provided above for delivery of financial statements, will satisfy
the Parent Borrower's obligation under this subsection 7.1(a) with respect
to such year except with respect to the requirement that such financial
statements be reported on without a "going concern" or like qualification
or exception, or qualification arising out of the scope of the audit);
(b) as soon as available, but in any event not later than the fifth
Business Day after the 45th day following the end of each of the first
three quarterly periods of each Fiscal Year of the Parent Borrower, the
unaudited consolidated balance sheet of the
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Parent Borrower and its consolidated Subsidiaries as at the end of such
quarter and the related unaudited consolidated statements of operations and
cash flows of the Parent Borrower and its consolidated Subsidiaries for
such quarter and the portion of the Fiscal Year through the end of such
quarter, setting forth in each case, in comparative form the figures for
and as of the corresponding periods of the previous year, certified by a
Responsible Officer of the Parent Borrower as being fairly stated in all
material respects (subject to normal year-end audit and other adjustments)
(it being agreed that the furnishing of the Parent Borrower's or RSC's, as
applicable, quarterly report on Form 10-Q for such quarter, as filed with
the Securities and Exchange Commission within the period provided above for
delivery of financial statements, will satisfy the Parent Borrower's
obligations under this subsection 7.1(b) with respect to such quarter);
(c) as soon as available, but in any event not later than the fifth
Business Day after the 30th day following the end of each month, the
unaudited consolidated balance sheet of the Parent Borrower and its
consolidated Subsidiaries as at the end of such month (other than any month
that is the last month of a fiscal quarter) and the related unaudited
income statement of the Parent Borrower and its consolidated Subsidiaries
for such month, setting forth in each case, in comparative form the figures
for and as of the end of the corresponding month during the previous year;
and
(d) all such financial statements delivered pursuant to subsection
7.1(a) or (b) to be (and, in the case of any financial statements delivered
pursuant to subsection 7.1(b) shall be certified by a Responsible Officer
of the Parent Borrower as being) complete and correct in all material
respects in conformity with GAAP and to be (and, in the case of any
financial statements delivered pursuant to subsection 7.1(b) shall be
certified by a Responsible Officer of the Parent Borrower as being)
prepared in reasonable detail in accordance with GAAP applied consistently
throughout the periods reflected therein and with prior periods that began
on or after the Closing Date (except as approved by such accountants or
officer, as the case may be, and disclosed therein, and except, in the case
of any financial statements delivered pursuant to subsection 7.1(b), for
the absence of certain notes).
7.2 Certificates; Other Information. Furnish to the U.S.
Administrative Agent for delivery to each Lender (and the U.S. Administrative
Agent agrees to make and so deliver such copies or otherwise make available such
information):
(a) concurrently with the delivery of the financial statements
referred to in subsection 7.1(a), a certificate of the independent
certified public accountants reporting on such financial statements stating
that in making the audit necessary therefor no knowledge was obtained of
any Default or Event of Default arising from a non-compliance with the
provisions of subsection 8.1, except as specified in such certificate
(which certificate may be limited to the extent required by accounting
rules or guidelines);
(b) concurrently with the delivery of the financial statements and
reports referred to in subsections 7.1(a) and (b), a certificate signed by
a Responsible Officer of each Credit Agreement Party (i) stating that, to
the best of such Responsible Officer's
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knowledge, each Credit Agreement Party and their respective Subsidiaries
during such period has observed or performed all of its covenants and other
agreements, and satisfied every condition, contained in this Agreement or
the other Loan Documents to which it is a party to be observed, performed
or satisfied by it, and that such Responsible Officer has obtained no
knowledge of any Default or Event of Default, except, in each case, as
specified in such certificate, and (ii) setting forth the calculations
required to determine compliance with all covenants set forth in subsection
8.1 (or if such compliance with such covenants is not at the time required,
setting forth the calculations required to determine the Consolidated
Leverage Ratio for the purposes of determining the Applicable Margin for
RCF Loans);
(c) as soon as available, but in any event not later than the fifth
Business Day following the 90th day after the beginning of each Fiscal Year
of the Parent Borrower thereafter, a copy of the annual business plan by
the Parent Borrower of the projected operating budget (including
consolidated balance sheets, income statements and statements of cash flows
of the Parent Borrower and its Subsidiaries on an annual and, for the first
year covered in such budget, quarterly basis) of the Parent Borrower, such
practices subject to such adjustments as are reasonable in the good faith
determination of the Parent Borrower, each such business plan to be
accompanied by a certificate of a Responsible Officer of the Parent
Borrower to the effect that such Responsible Officer believes such
projections to have been prepared on the basis of reasonable assumptions at
the time of preparation and delivery thereof;
(d) within five Business Days after the same are sent, copies of all
financial statements and reports which any Credit Agreement Party sends to
its public security holders, and within five Business Days after the same
are filed, copies of all financial statements and periodic reports which
any Credit Agreement Party may file with the Securities and Exchange
Commission or any successor or analogous Governmental Authority;
(e) within five Business Days after the same are filed, copies of all
registration statements and any amendments and exhibits thereto, which
Credit Agreement Party may file with the Securities and Exchange Commission
or any successor or analogous Governmental Authority, and such other
documents or instruments as may be reasonably requested by the U.S.
Administrative Agent in connection therewith;
(f) not later than 5:00 P.M. (New York time) on or before the tenth
Business Day of each Fiscal Period of the Parent Borrower and its
Subsidiaries (or (i) more frequently as the Parent Borrower may elect, (ii)
upon the occurrence and continuance of an Event of Default, not later than
Wednesday of each week (or, if Wednesday is not a Business Day, on the next
succeeding Business Day) or (iii) at any time the Available RCF Commitments
are less than $100,000,000, on a bi-weekly basis), a borrowing base
certificate setting forth the U.S. Borrowing Base, the Canadian Borrowing
Base and the Total Borrowing Base (in each case with supporting
calculations) substantially in the form of Exhibit J (each, a "Borrowing
Base Certificate"), which shall be prepared as of the last Business Day of
the immediately preceding Fiscal Period of the Parent Borrower
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and its Subsidiaries (or (x) such other applicable date in the case of
clause (i) and (iii) above or (y) the previous Friday in the case of clause
(ii) above) in the case of each subsequent Borrowing Base Certificate. Each
such Borrowing Base Certificate shall include such supporting information
as may be reasonably requested from time to time by the U.S. Administrative
Agent;
(g) at any time when the Parent Borrower has designated a Subsidiary
an Immaterial Subsidiary, promptly following any request made by the U.S.
Administrative Agent, but in any event (i) not later than the fifth
Business Day following any such request, any such financial information as
the U.S. Administrative Agent may reasonably request to assure itself that
any such Immaterial Subsidiary complies with the requirements set forth in
the defined term "Immaterial Subsidiaries" in subsection 1.1 hereof, which
financial information shall be certified by a Responsible Officer of the
Parent Borrower as being complete and correct in all material respects; and
(h) promptly, such additional financial and other information as any
Agent or Lender may from time to time reasonably request.
7.3 Payment of Obligations. Pay, discharge or otherwise satisfy at or
before maturity or before they become delinquent, as the case may be, all its
obligations of whatever nature, including taxes, except (x) where the amount or
validity thereof is currently being contested in good faith by appropriate
proceedings diligently conducted and reserves in conformity with GAAP with
respect thereto have been provided on the books of Holdings or any of its
Subsidiaries, as the case may be and (y) to the extent such failure to pay,
discharge or otherwise satisfy the same could not reasonably be expected to have
a Material Adverse Effect.
7.4 Conduct of Business and Maintenance of Existence. Continue to
engage in business of the same general type as conducted by Holdings and its
Subsidiaries on the Closing Date, taken as a whole, and preserve, renew and keep
in full force and effect its corporate, limited liability company or partnership
(as the case may be) existence and take all reasonable action to maintain all
rights, privileges and franchises necessary or desirable in the normal conduct
of the business of Holdings and its Subsidiaries, taken as a whole, except as
otherwise expressly permitted pursuant to subsection 8.5, provided that Holdings
and its Subsidiaries shall not be required to maintain any such rights,
privileges or franchises, if the failure to do so could not reasonably be
expected to have a Material Adverse Effect; and comply with all Contractual
Obligations and Requirements of Law except to the extent that failure to comply
therewith, in the aggregate, could not reasonably be expected to have a Material
Adverse Effect.
7.5 Maintenance of Property; Insurance. (a) Keep all property useful
and necessary in the business of Holdings and its Subsidiaries, taken as a
whole, in good working order and condition; maintain with financially sound and
reputable insurance companies insurance on all property material to the business
of Holdings and its Subsidiaries, taken as a whole, in at least such amounts and
against at least such risks (but including in any event public liability,
product liability and business interruption) as are usually insured against in
the same general area by companies of similar size engaged in the same or a
similar business; furnish to the U.S. Administrative Agent, upon written
request, information in reasonable detail as to the
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insurance carried; and ensure that at all times the U.S. Administrative Agent
and/or the Canadian Administrative Agent, as applicable, shall be named as
additional insureds with respect to liability policies and the U.S. Collateral
Agent and/or the Canadian U.S. Collateral Agent, as applicable, shall be named
as loss payee with respect to the casualty insurance maintained by each Borrower
and Subsidiary Guarantor; provided that, unless an Event of Default or a
Dominion Event shall have occurred and be continuing, (i) each Collateral Agent
shall turn over to the Parent Borrower any amounts received by it as loss payee
under any casualty insurance maintained by Holdings or its Subsidiaries, the
disposition of such amounts to be subject to the provisions of subsection
4.4(b), and (ii) the Parent Borrower and/or the applicable Subsidiary Guarantor
shall have the sole right to adjust or settle any claims under such insurance.
(b) With respect to each property of the Parent Borrower and its
Subsidiaries subject to a Mortgage:
(i) If any portion of any such property is located in an area
identified as a special flood hazard area by the Federal Emergency
Management Agency or other applicable agency, the Parent Borrower shall
maintain or cause to be maintained, flood insurance to the extent required
by law.
(ii) The Parent Borrower and each of its applicable Subsidiaries
promptly shall comply with and conform to (i) all provisions of each
insurance policy relating to each such property, and (ii) all requirements
of the insurers applicable to such party or to such property or to the use,
manner of use, occupancy, possession, operation, maintenance, alteration or
repair of such property, except for such non-compliance or non-conformity
as could not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect. The Parent Borrower shall not use or permit
the use of such property in any manner which would reasonably be expected
to result in the cancellation of any insurance policy relating to such
property or would reasonably be expected to void coverage required to be
maintained with respect to such property pursuant to clause (a) of this
subsection 7.5.
(iii) If the Parent Borrower is in default of its obligations to
insure or deliver any such prepaid policy or policies, the result of which
could reasonably be expected to have a Material Adverse Effect, then the
U.S. Administrative Agent, at its option upon 10 days' written notice to
the Parent Borrower, may effect such insurance from year to year at rates
substantially similar to the rate at which the Parent Borrower or any
Subsidiary had insured such property, and pay the premium or premiums
therefore, and the Parent Borrower shall pay to the U.S. Administrative
Agent on demand such premium or premiums so paid by the U.S. Administrative
Agent with interest from the time of payment at a rate per annum equal to
2.00%.
(iv) If such property, or any part thereof, shall be destroyed or
damaged and the reasonably estimated cost thereof would exceed $2,000,000,
the Parent Borrower shall give prompt notice thereof to the U.S.
Administrative Agent. All insurance proceeds paid or payable in connection
with any damage or casualty to any property shall be applied in the manner
specified in subsection 7.5(a).
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7.6 Inspection of Property; Books and Records; Discussions. (a) Keep
proper books of records and account in which full, complete and correct entries
in conformity with GAAP and all material Requirements of Law shall be made of
all dealings and transactions in relation to its business and activities; and
permit representatives of the U.S. Administrative Agent to visit and inspect any
of its properties and examine and, to the extent reasonable, make abstracts from
any of its books and records and to discuss the business, operations, properties
and financial and other condition of such entity and its Subsidiaries with
officers and employees of such entity and its Subsidiaries and with its
independent certified public accountants, in each case at any reasonable time,
upon reasonable notice, and as often as may reasonably be desired by the
Administrative Agent. Each Borrower shall keep records of its Rental Fleet that
are accurate and complete in all material respects and shall furnish the Agents
with inventory reports respecting such Rental Fleet in form and detail
reasonably satisfactory to the Agents and Lenders at such times as the Agents
may reasonably request. Each Borrower shall, at such Borrowers' expense, conduct
a physical inventory of its serialized Rental Fleet no less frequently than
annually or shall have in place a cycle counting (or perpetual verification)
program designed to verify the physical existence of Rental Fleet in a manner
that results in the verification of substantially the entire amount of the
Rental Fleet over the course of a year and shall provide to the Agents a report
based on each such physical inventory or program promptly after such physical
inventory or after the applicable program year, as applicable, together with
such supporting information as the U.S. Administrative Agent shall reasonably
request. The U.S. Collateral Agent and the Canadian Collateral Agent may
participate in and observe any such physical inventory or cycle counting, which
participation shall be at the Borrowers' expense regardless of whether an Event
of Default then exists.
(b) At reasonable times during normal business hours and upon
reasonable prior notice that the U.S. Administrative Agent requests,
independently of or in connection with the visits and inspections provided for
in clause (a) above, the Parent Borrower and its Subsidiaries will grant access
to the U.S. Administrative Agent (including employees of the U.S. Administrative
Agent or any consultants, accountants, lawyers and appraisers retained by the
U.S. Administrative Agent) to such Person's premises, books, records, accounts
and Rental Fleet so that (i) the U.S. Administrative Agent or an appraiser
retained by the U.S. Administrative Agent may (A) conduct a Rental Fleet
appraisal and (B) at any time when Eligible Inventory constitutes more than 5.0%
of the Total Borrowing Base, an Inventory appraisal (provided that, unless an
Event of Default exists and is continuing, only one such Inventory appraisal may
be conducted at the Loan Parties' expense in any calendar year) and (ii) the
U.S. Administrative Agent may conduct (or engage third parties to conduct) such
field examinations, verifications and evaluations (including environmental
assessments) as the U.S. Administrative Agent may deem necessary or appropriate.
Unless an Event of Default or Liquidity Event exists, or if previously approved
by the Parent Borrower or one of its Subsidiaries, no environmental assessment
by the U.S. Administrative Agent may include any sampling or testing of the
soil, surface water or groundwater. All such Rental Fleet appraisals, field
examinations and other verifications and evaluations shall be at the sole
expense of the Loan Parties; provided that (i) the Administrative Agent may
conduct at the expense of the Loan Parties no more than (w) three (3) such
Rental Fleet appraisals during the period beginning on the Closing Date and
ending on December 31, 2007, (x) following December 31, 2007, two (2) such
Rental Fleet appraisals in any calendar year to the extent that the average
Available RCF Commitments for the twelve (12) month period immediately prior to
the commencement of any subsequent appraisal in such
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calendar year exceed $300,000,000, (y) three (3) such Rental Fleet appraisals in
any calendar year to the extent that the average Available RCF Commitments for
the twelve (12) month period immediately prior to the commencement of any
subsequent appraisal in such calendar year are less than $300,000,000 and (z)
four (4) such Rental Fleet appraisals in any calendar year to the extent that
the average Available RCF Commitments for the twelve (12) month period
immediately prior to the commencement of any subsequent appraisal in such
calendar year are less than $200,000,000, (ii) the U.S. Administrative Agent may
conduct at the expense of the Loan Parties no more than two (2) such field
examinations in any calendar year and (iii) notwithstanding the limitations set
forth in preceding clauses (i) and (ii), all such Rental Fleet appraisals,
inventory appraisals and field examinations commenced at any time when an Event
of Default or Liquidity Event exists shall be at the sole expense of the Loan
Parties. All amounts chargeable to the applicable Borrowers under this
subsection 7.6(b) shall constitute obligations that are secured by all of the
applicable Collateral and shall be payable to the Agents hereunder.
7.7 Notices. Promptly give notice to the U.S. Administrative Agent and
each Lender of:
(a) as soon as possible after a Responsible Officer of any Credit
Agreement Party knows or reasonably should know thereof, the occurrence of
any Default or Event of Default;
(b) as soon as possible after a Responsible Officer of any Credit
Agreement Party knows or reasonably should know thereof, any (i) default or
event of default under any Contractual Obligation of any Credit Agreement
Party or any of its Subsidiaries, other than as previously disclosed in
writing to the Lenders, or (ii) litigation, investigation or proceeding
which may exist at any time between any Credit Agreement Party or any of
its Subsidiaries and any Governmental Authority, which in either case,
could reasonably be expected to have a Material Adverse Effect;
(c) as soon as possible after a Responsible Officer of any Credit
Agreement Party knows or reasonably should know thereof, the occurrence of
any default or event of default under any of the Second-Lien Loan Documents
or the Senior Note Documents;
(d) as soon as possible after a Responsible Officer of any Credit
Agreement Party knows or reasonably should know thereof, any litigation or
proceeding affecting the Parent Borrower or any of its Subsidiaries that
could reasonably be expected to have a Material Adverse Effect;
(e) the following events, as soon as possible and in any event within
30 days after a Responsible Officer of any Credit Agreement Party or any of
its Subsidiaries knows or reasonably should know thereof: (i) the
occurrence or expected occurrence of any Reportable Event (or similar
event) with respect to any Single Employer Plan (or Foreign Plan), a
failure to make any required contribution to a Single Employer Plan,
Multiemployer Plan or Foreign Plan, the creation of any Lien on the
property of Holdings, its Subsidiaries or any Commonly Controlled Entity in
favor of the PBGC, a Plan or a Foreign Plan or any withdrawal from, or the
full or partial termination,
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Reorganization or Insolvency of, any Multiemployer Plan or Foreign Plan;
(ii) the institution of proceedings or the taking of any other formal
action by the PBGC, Holdings or any of its Subsidiaries or any Commonly
Controlled Entity or any Multiemployer Plan which could reasonably be
expected to result in the withdrawal from, or the termination,
Reorganization or Insolvency of, any Single Employer Plan, Multiemployer
Plan or Foreign Plan; provided, however, that no such notice will be
required under clause (i) or (ii) above unless the event giving rise to
such notice, when aggregated with all other such events under clause (i) or
(ii) above, could be reasonably expected to result in a Material Adverse
Effect; or (iii) the first occurrence of an Underfunding under a Single
Employer Plan or Foreign Plan that exceeds 10% of the value of the assets
of such Single Employer Plan or Foreign Plan, in each case, determined as
of the most recent annual valuation date of such Single Employer Plan or
Foreign Plan on the basis of the actuarial assumptions used to determine
the funding requirements of such Single Employer Plan or Foreign Plan as of
such date;
(f) as soon as possible after a Responsible Officer of any Credit
Agreement Party knows or reasonably should know thereof, (i) any release or
discharge by the Parent Borrower or any of its Subsidiaries of any
Materials of Environmental Concern required to be reported under applicable
Environmental Laws to any Governmental Authority, unless the Parent
Borrower reasonably determines that the total Environmental Costs arising
out of such release or discharge could not reasonably be expected to have a
Material Adverse Effect; (ii) any condition, circumstance, occurrence or
event not previously disclosed in writing to the U.S. Administrative Agent
that would reasonably be expected to result in liability or expense under
applicable Environmental Laws, unless the Parent Borrower reasonably
determines that the total Environmental Costs arising out of such
condition, circumstance, occurrence or event could not reasonably be
expected to have a Material Adverse Effect or could not reasonably be
expected to result in the imposition of any Lien or other material
restriction on the title, ownership or transferability of any facilities
and properties owned, leased or operated by the Parent Borrower or any of
its Subsidiaries that could reasonably be expected to result in a Material
Adverse Effect; and (iii) any proposed action to be taken by the Parent
Borrower or any of its Subsidiaries that could reasonably be expected to
subject the Parent Borrower or any of its Subsidiaries to any material
additional or different requirements or liabilities under Environmental
Laws, unless the Parent Borrower reasonably determines that the total
Environmental Costs arising out of such proposed action could not
reasonably be expected to have a Material Adverse Effect;
(g) any loss, damage, or destruction to the Collateral in the amount
of $50,000,000 or more, whether or not covered by insurance; and
(h) any and all default notices received under or with respect to any
leased location or public warehouse where Collateral, either individually
or in the aggregate, in excess of $50,000,000 is located.
Each notice pursuant to this subsection shall be accompanied by a
statement of a Responsible Officer of the Parent Borrower (and, if applicable,
the relevant Commonly Controlled Entity or Subsidiary) setting forth details of
the occurrence referred to therein and
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stating what action the Parent Borrower (or, if applicable, the relevant
Commonly Controlled Entity or Subsidiary) proposes to take with respect thereto.
7.8 Environmental Laws. (a) (i) Comply substantially with, and require
substantial compliance by all tenants, subtenants, contractors, and invitees
with, all applicable Environmental Laws; (ii) obtain, comply substantially with
and maintain any and all Environmental Permits necessary for its operations as
conducted and as planned; and (iii) require that all tenants, subtenants,
contractors, and invitees obtain, comply substantially with and maintain any and
all Environmental Permits necessary for their operations as conducted and as
planned, with respect to any property leased or subleased from, or operated by
the Parent Borrower or its Subsidiaries. For purposes of this subsection 7.8(a),
noncompliance shall not constitute a breach of this covenant, provided that,
upon learning of any actual or suspected noncompliance, the Parent Borrower and
any such affected Subsidiary shall promptly undertake and diligently pursue
reasonable efforts, if any, to achieve compliance, and provided, further, that
in any case such noncompliance could not reasonably be expected to have a
Material Adverse Effect.
(b) Promptly comply, in all material respects, with all orders and
directives of all Governmental Authorities regarding Environmental Laws, other
than such orders or directives (i) as to which the failure to comply could not
reasonably be expected to result in a Material Adverse Effect or (ii) as to
which: (x) appropriate reserves have been established in accordance with GAAP;
(y) an appeal or other appropriate contest is or has been timely and properly
taken and is being diligently pursued in good faith; and (z) if the
effectiveness of such order or directive has not been stayed, the failure to
comply with such order or directive during the pendency of such appeal or
contest could not reasonably be expected to give rise to a Material Adverse
Effect.
(c) Maintain, update as appropriate, and implement in all material
respects an ongoing program reasonably designed to ensure that all the
properties and operations of the Parent Borrower and its Subsidiaries are
periodically reasonably reviewed by competent personnel to identify and promote
compliance with and to reasonably and prudently manage any material
Environmental Costs that would reasonably be expected to affect the Parent
Borrower or any of its Subsidiaries, including compliance and liabilities
relating to: discharges to air and water; acquisition, transportation, storage
and use of Materials of Environmental Concern; waste disposal; species
protection; and recordkeeping required under Environmental Laws. For the
purposes of this subsection 7.8(c), the failure to maintain an environmental
program shall not constitute an Event of Default (i) unless it could reasonably
be expected to result in a Material Adverse Effect or (ii) if within 90 days of
receipt of a reasonable request from the U.S. Administrative Agent, Holdings and
its Subsidiaries have taken reasonable and diligent steps to implement and
maintain such a program in compliance with this subsection.
7.9 New Subsidiaries; Additional Security; Further Assurances. (a)
With respect to any owned real property or fixtures thereon, in each case with a
purchase price or a fair market value at the time of acquisition of at least
$2,000,000 (for this purpose treating any Sale and Leaseback Property that is
owned by any Loan Party on the first anniversary of the Closing Date as a
property acquired after the Closing Date and calculating the value thereof as of
such first anniversary), in which any Loan Party acquires ownership rights at
any time after the
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Closing Date, promptly following any request by the U.S. Collateral Agent or the
Canadian Collateral Agent, as the case may be, grant to the U.S. Collateral
Agent or the Canadian Collateral Agent, as applicable, for the benefit of the
applicable Lenders, a Lien of record on all such owned real property and
fixtures, upon terms reasonably satisfactory in form and substance to the U.S.
Collateral Agent or the Canadian Collateral Agent, as applicable, and in
accordance with any applicable requirements of any Governmental Authority
(including any required appraisals of such property under FIRREA); provided that
(i) nothing in this subsection 7.9 shall defer or impair the attachment or
perfection of any security interest in any Collateral covered by any of the
Security Documents which would attach or be perfected pursuant to the terms
thereof without action by Holdings, any of its Subsidiaries or any other Person,
(ii) no such Lien shall be required to be granted as contemplated by this
subsection 7.9 on any owned real property or fixtures the acquisition of which
is financed, or is to be financed within any time period permitted by subsection
8.2(f) or (g), in whole or in part through the incurrence of Indebtedness
permitted by subsection 8.2(f) or (g), until such Indebtedness is repaid in full
(and not refinanced as permitted by subsection 8.2(f) or (g)) or, as the case
may be, the Parent Borrower determines not to proceed with such financing or
refinancing and (iii) any such mortgage by a Foreign Subsidiary shall not secure
any U.S. Borrower's or Canadian Xxxxx'x obligations. In connection with any such
grant to the U.S. Collateral Agent or the Canadian Collateral Agent, as
applicable, for the benefit of the Lenders, of a Lien of record on any such real
property in accordance with this subsection, the Parent Borrower or such
Subsidiary shall deliver or cause to be delivered to the U.S. Collateral Agent
any surveys, title insurance policies, environmental reports and other documents
in connection with such grant of such Lien obtained by it in connection with the
acquisition of such ownership rights in such real property or as the U.S.
Collateral Agent or the Canadian Collateral Agent, as applicable, shall
reasonably request (in light of the value of such real property and the cost and
availability of such surveys, title insurance policies, environmental reports
and other documents and whether the delivery of such surveys, title insurance
policies, environmental reports and other documents would be customary in
connection with such grant of such Lien in similar circumstances).
(b) With respect to any Domestic Subsidiary (other than an Immaterial
Subsidiary or a Subsidiary of a Foreign Subsidiary) created or acquired
(including by reason of any Immaterial Subsidiary or Foreign Subsidiary Holdco
ceasing to constitute the same) subsequent to the Closing Date by Holdings or
any of its Domestic Subsidiaries (other than any Subsidiary of a Foreign
Subsidiary), promptly notify the U.S. Administrative Agent of such occurrence
and promptly (i) execute and deliver to the U.S. Collateral Agent for the
benefit of the Lenders such amendments to the U.S. Guarantee and Collateral
Agreement as the U.S. Collateral Agent shall reasonably deem necessary or
reasonably advisable to grant to the U.S. Collateral Agent, for the benefit of
the Lenders, a perfected first priority security interest (as and to the extent
provided in the U.S. Guarantee and Collateral Agreement) in the Capital Stock of
such new Domestic Subsidiary, (ii) deliver to the U.S. Collateral Agent the
certificates (if any) representing such Capital Stock, together with undated
stock powers, executed and delivered in blank by a duly authorized officer of
the parent corporation (or other applicable entity) of such new Domestic
Subsidiary, (iii) cause such new Domestic Subsidiary (A) to become a party to
the U.S. Guarantee and Collateral Agreement and (B) to take all actions
reasonably deemed by the U.S. Collateral Agent to be necessary or advisable to
cause the Lien created by the U.S. Guarantee and Collateral Agreement in such
new Domestic Subsidiary's Collateral to be duly perfected in accordance with all
applicable Requirements of Law (to the extent provided in the
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U.S. Guarantee and Collateral Agreement), including the filing of financing
statements in such jurisdictions as may be reasonably requested by the U.S.
Collateral Agent and (iv) to the extent requested by the U.S. Administrative
Agent or, so long as such Domestic Subsidiary is a Wholly-Owned Subsidiary, the
Parent Borrower, cause such Domestic Subsidiary to execute and deliver to the
U.S. Administrative Agent a Borrower Joinder Agreement (and thereby become a
U.S. Borrower hereunder).
(c) With respect to (x) any Foreign Subsidiary created or acquired
subsequent to the Closing Date by the Parent Borrower or any of its Domestic
Subsidiaries (other than Canadian Xxxxx, an Immaterial Subsidiary or any
Subsidiary of a Foreign Subsidiary), the Capital Stock of which is owned
directly by the Parent Borrower or a Domestic Subsidiary (other than a
Subsidiary of a Foreign Subsidiary), promptly notify the U.S. Administrative
Agent of such occurrence and if the U.S. Administrative Agent or the Required
Lenders so request (it being understood that if the U.S. Administrative Agent
does not so request with respect to any such Foreign Subsidiary that it believes
is or is likely to become material to the Parent Borrower and its Subsidiaries
taken as a whole, it will provide notice to the Lenders thereof), promptly (i)
execute and deliver to the U.S. Collateral Agent a new pledge agreement or such
amendments to the U.S. Guarantee and Collateral Agreement as the U.S. Collateral
Agent shall reasonably deem necessary or reasonably advisable to grant to the
U.S. Collateral Agent, for the benefit of the Lenders, a perfected first
priority security interest (as and to the extent provided in the U.S. Guarantee
and Collateral Agreement) in the Capital Stock of such new Foreign Subsidiary
that is owned by the Parent Borrower or any of its Domestic Subsidiaries (other
than any Subsidiary of a Foreign Subsidiary) (provided that in no event shall
more than 65% of the Capital Stock (including for these purposes any investment
deemed to be Capital Stock for U.S. tax purposes) of any such new Foreign
Subsidiary be required to be so pledged to secure the direct obligations of any
U.S. Borrower or Canadian Xxxxx and, provided, further, that no such pledge or
security shall be required with respect to any non-wholly owned Foreign
Subsidiary to the extent that the grant of such pledge or security interest
would violate the terms of any agreements under which the Investment by the
Parent Borrower or any of its Subsidiaries was made therein) and (ii) to the
extent reasonably deemed advisable by the U.S. Collateral Agent, deliver to the
U.S. Collateral Agent the certificates, if any, representing such Capital Stock,
together with undated stock powers, executed and delivered in blank by a duly
authorized officer of the relevant parent corporation (or other applicable
entity) of such new Foreign Subsidiary and take such other action as may be
reasonably deemed by the U.S. Collateral Agent to be necessary or desirable to
perfect the U.S. Collateral Agent's security interest therein; and (y) any
Foreign Subsidiary (other than Canadian Xxxxx or an Immaterial Subsidiary)
created or acquired subsequent to the Closing Date by any Borrower or any
Subsidiary Guarantor (i) if such Foreign Subsidiary is a Canadian Subsidiary, to
the extent requested by the U.S. Administrative Agent or, so long as such
Canadian Subsidiary is a Wholly-Owned Subsidiary, the Parent Borrower, cause
such Canadian Subsidiary to execute and deliver to the U.S. Administrative Agent
a Borrower Joinder Agreement (and thereby become a Canadian Borrower hereunder)
and (ii) cause such new Canadian Subsidiary (x) to execute and deliver a
Canadian Guarantee Agreement and Canadian Security Agreement with such
amendments thereto as the Canadian Collateral Agent shall reasonably deem
necessary or reasonably advisable to grant to the Canadian Collateral Agent, for
the benefit of the Lenders, a perfected security interest (as and to the extent
provided in the Canadian Security Agreement) in Collateral of such new Canadian
Subsidiary and (y) to take all actions reasonably deemed by the Canadian
Collateral Agent to be necessary or advisable to
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cause the Lien created by the Canadian Security Agreement in such new Canadian
Subsidiary's Collateral to be duly perfected (to the extent provided in the
Canadian Security Agreement) in accordance with all applicable Requirements of
Law, including, without limitation, the filing of financing statements in such
jurisdictions as may be reasonably requested by the Canadian Collateral Agent.
(d) At its own expense, execute, acknowledge and deliver, or cause the
execution, acknowledgement and delivery of, and thereafter register, file or
record in an appropriate governmental office, any document or instrument
reasonably deemed by the U.S. Collateral Agent or the Canadian Collateral Agent,
as applicable, to be necessary or desirable for the creation, perfection and
priority and the continuation of the validity, perfection and priority of the
foregoing Liens or any other Liens created pursuant to the Security Documents.
(e) Notwithstanding anything to contrary in this Agreement, nothing in
this subsection 7.9 shall require that any Loan Party xxxxx x Xxxx with respect
to any owned real property or fixtures in which such Subsidiary acquires
ownership rights to the extent that the U.S. Administrative Agent, in its
reasonable judgment, determines that the granting of such a Lien is
impracticable.
7.10 Maintenance of New York Process Agent. In the case of any
Canadian Borrower, maintain in New York, New York or at such other location in
the United States of America as may be reasonably satisfactory to the U.S.
Administrative Agent a Person acting as agent to receive on its behalf and on
behalf of its property service of process and capable of discharging the
functions of the New York Process Agent set forth in subsection 11.13(b).
Section 8. Negative Covenants. Each of the Parent Borrower and its
Subsidiaries hereby agrees (and with respect to subsection 8.16(c) Holdings
hereby agrees) that, from and after the Closing Date and so long as the
Commitments remain in effect, and thereafter until payment in full of the Loans,
all Reimbursement Obligations and any other amount then due and owing to any
Lender or any Agent hereunder and under any Note and termination or expiration
of all Letters of Credit (or the cash collateralization or other provision for
such Letters of Credit, in each case, in a manner reasonably satisfactory to the
relevant Issuing Lender), the Parent Borrower and each such Subsidiary (and with
respect to subsection 8.16(c), Holdings) shall not and shall not permit any of
its Subsidiaries to, directly or indirectly:
8.1 Financial Condition Covenants.
(a) Consolidated Leverage Ratio. Upon the occurrence and during the
continuance of a Liquidity Event, permit the Consolidated Leverage Ratio as at
the last day of any period of four consecutive fiscal quarters of the Parent
Borrower ending during any period set forth below to exceed the ratio set forth
below opposite such period below:
Consolidated
Fiscal Quarter Ending Leverage Ratio
------------------------- --------------
December 31, 2006 5.00:1.00
March 31, 2007 5.00:1.00
June 30, 2007 5.00:1.00
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Consolidated
Fiscal Quarter Ending Leverage Ratio
------------------------- --------------
September 30, 2007 5.00:1.00
December 31, 2007 5.00:1.00
March 31, 2008 4.75:1.00
June 30, 2008 4.75:1.00
September 30, 2008 4.75:1.00
December 31, 2008 4.75:1.00
March 31, 2009 4.50:1.00
June 30, 2009 4.50:1.00
September 30, 2009 4.50:1.00
December 31, 2009 4.50:1.00
March 31, 2010 and at all
times thereafter 4.25:1.00
(b) Consolidated Fixed Charge Ratio. Upon the occurrence and during
the continuance of a Liquidity Event, permit, for any period of four consecutive
fiscal quarters of the Parent Borrower, the Consolidated Fixed Charge Coverage
Ratio as at the last day of such period of four consecutive fiscal quarters to
be less than 1.00 to 1.00.
8.2 Limitation on Indebtedness. Create, incur, assume or suffer to
exist any Indebtedness (including any Indebtedness of any of its Subsidiaries),
except:
(a) Indebtedness of the Parent Borrower and its Subsidiaries incurred
pursuant to this Agreement and the other Loan Documents;
(b) Indebtedness evidenced by the Senior Notes; provided that the
aggregate principal amount of Indebtedness evidenced by Senior Notes at any
time outstanding pursuant to this clause (b) shall not exceed $620,000,000
less any repayments of principal of Indebtedness theretofore outstanding
pursuant to this clause (b);
(c) Assumed Indebtedness;
(d) Indebtedness incurred pursuant to the Second-Lien Term Loans
Documents; provided that the aggregate principal amount of Indebtedness at
any time outstanding pursuant to this clause (d) shall not exceed
$1,430,000,000, provided that such Indebtedness shall not be extended,
renewed, replaced, refinanced or otherwise amended, except as permitted by
subsection 8.13;
(e) Indebtedness of (i) any Borrower (other than Canadian Xxxxx) owing
to any other Borrower or Holdings, (ii) any Borrower (other than Canadian
Xxxxx) owing to any Subsidiary, (iii) any Qualified Subsidiary Guarantor
owing to Holdings or any Borrower (other than Canadian Xxxxx) or any other
Qualified Subsidiary Guarantor, (iv) any Non-Guarantor Subsidiary owing to
any Borrower (other than Canadian Xxxxx) or
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any Subsidiary Guarantor if permitted pursuant to subsection 8.8 and (v)
any Non-Guarantor Subsidiary owing to any other Non-Guarantor Subsidiary,
so long as any such Indebtedness of any Loan Party owing to any Subsidiary
that is not a Loan Party shall be subject to subordination provisions
substantially in the form of Exhibit L;
(f) Indebtedness of the Parent Borrower and any of its Subsidiaries
incurred to finance or refinance the acquisition, leasing, construction or
improvement of fixed or capital assets (whether pursuant to a loan, a
Financing Lease or otherwise) otherwise permitted pursuant to this
Agreement, and any other Financing Leases, in an aggregate principal amount
not, when added to the aggregate principal amount of outstanding Assumed
Indebtedness of the type described in this paragraph (f), exceeding
$175,000,000 at any one time outstanding, provided that such amount shall
be increased by an amount equal to $25,000,000 on (x) each anniversary of
the Closing Date, so long as no Default or Event of Default shall have
occurred and be continuing on any date on which such amount is to be
increased or (y) such later date on which such Default or Event of Default
shall have been cured;
(g) (x) unsecured Indebtedness of the Parent Borrower and any of its
Subsidiaries incurred to finance or refinance the purchase price of, or (y)
Indebtedness of the Parent Borrower and any of its Subsidiaries assumed in
connection with, any acquisition permitted by subsection 8.9; provided that
(i) in the case of clause (x), such Indebtedness is incurred prior to,
substantially simultaneously with or within six months after such
acquisition or in connection with a refinancing thereof, (ii) if such
Indebtedness is owed to a Person other than the Person from whom such
acquisition is made or any Affiliate thereof, such Indebtedness shall have
terms and conditions reasonably satisfactory to the U.S. Administrative
Agent and shall not exceed 70% of the purchase price of such acquisition
(including any Indebtedness assumed in connection with such acquisition)
(or such greater percentage as shall be reasonably satisfactory to the U.S.
Administrative Agent or, if any such purchase price shall be greater than
$75,000,000, such greater percentage as shall be reasonably satisfactory to
the Required Lenders), (iii) if such Indebtedness is being assumed under
this paragraph (g), such Indebtedness shall not have been incurred by any
party in contemplation of the acquisition permitted by subsection 8.9 and
(iv) immediately after giving effect to such acquisition no Default or
Event of Default shall have occurred and be continuing;
(h) to the extent that any Indebtedness may be incurred or arise
thereunder, Indebtedness of the Parent Borrower and its Subsidiaries under
Interest Rate Protection Agreements (other than those entered into for
speculative purposes) and under Permitted Hedging Arrangements;
(i) to the extent that any Guarantee Obligation or other obligation
permitted under subsection 8.4 constitutes Indebtedness, such Indebtedness;
(j) Indebtedness in respect of performance bonds, bid bonds, appeal
bonds, surety bonds and similar obligations and trade-related letters of
credit, in each case provided in the ordinary course of business;
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(k) Indebtedness of the Parent Borrower or any of its Subsidiaries in
respect of Sale and Leaseback Transactions permitted under subsection 8.11;
(l) Indebtedness of the Parent Borrower or any of its Subsidiaries
incurred to finance insurance premiums in the ordinary course of business;
(m) Indebtedness arising from the honoring of a check, draft or
similar instrument against insufficient funds; provided that such
Indebtedness is extinguished within two Business Days of its incurrence;
(n) Indebtedness in respect of Financing Leases which have been funded
solely by Investments of the Parent Borrower and its Subsidiaries permitted
by subsection 8.8(l);
(o) Indebtedness which represents an extension, refinancing,
refunding, replacement or renewal of any of the Indebtedness described in
paragraphs (b), (c), (d) and (g) of this subsection 8.2 hereof; provided
that (i) the principal amount (or accreted value, if applicable) thereof
does not exceed the principal amount (or accreted value, if applicable) of
the Indebtedness so extended, refinanced, refunded, replaced or renewed,
except by an amount equal to unpaid accrued interest and premium (including
applicable prepayment penalties) thereon plus fees and expenses reasonably
incurred in connection therewith, (ii) any Liens securing such Indebtedness
are limited to all or part of the same property (including, if required by
the documentation evidencing such Indebtedness being extended, refinanced,
refunded, replaced or renewed, after-acquired property of the same type)
that secured the Indebtedness being refinanced; provided that the total
value of the collateral securing such Indebtedness incurred under this
subsection 8.2(o) immediately following such incurrence shall not be
materially greater than the value of the collateral securing the
Indebtedness being extended, refinanced, refunded, replaced or renewed
immediately prior to such extension, refinancing, refunding, replacement or
renewal, (iii) no Loan Party that is not originally obligated with respect
to repayment of such Indebtedness is required to become obligated with
respect thereto, (iv) such extension, refinancing, refunding, replacement
or renewal does not result in a shortening of the Weighted Average Life to
Maturity of the Indebtedness so extended, refinanced, refunded, replaced or
renewed and (v) if the Indebtedness that is extended, refinanced, refunded,
replaced or renewed was subordinated in right of payment to the obligations
of any Loan Party hereunder and under the other Loan Documents, then the
terms and conditions of the extension, refinancing, refunding, replacement
or renewal Indebtedness must include subordination terms and conditions
that are at least as favorable to the Lenders as those that were applicable
to the extended, refinanced, refunded, replaced or renewed Indebtedness;
(p) cash management obligations and other Indebtedness in respect of
netting services, overdraft protections and similar arrangements in each
case arising under standard business terms of any bank at which the Parent
Borrower or Subsidiary maintains an overdraft, cash pooling or other
similar facility or arrangement;
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(q) Indebtedness of Foreign Subsidiaries of the Parent Borrower not
exceeding in aggregate principal amount at any time outstanding an amount
equal to $50,000,000; and
(r) Indebtedness not otherwise permitted by the preceding paragraphs
of this subsection 8.2 not exceeding $250,000,000 in aggregate principal
amount at any one time outstanding.
For purposes of determining compliance with this subsection 8.2, the amount of
any Indebtedness denominated in any currency other than Dollars shall be
calculated based on customary currency exchange rates in effect, in the case of
such Indebtedness incurred (in respect of term Indebtedness) or committed (in
respect of revolving Indebtedness) on or prior to the Closing Date, on the
Closing Date and, in the case of such Indebtedness incurred (in respect of term
Indebtedness) or committed (in respect of revolving Indebtedness) after the
Closing Date, on the date that such Indebtedness was incurred (in respect of
term Indebtedness) or committed (in respect of revolving Indebtedness); provided
that if such Indebtedness is incurred to refinance other Indebtedness
denominated in a currency other than Dollars (or in a different currency from
the Indebtedness being refinanced), and such refinancing would cause the
applicable Dollar-denominated restriction to be exceeded if calculated at the
relevant currency exchange rate in effect on the date of such refinancing, such
Dollar-denominated restriction shall be deemed not to have been exceeded so long
as the principal amount of such refinancing Indebtedness does not exceed (i) the
outstanding or committed principal amount, as applicable, of such Indebtedness
being refinanced plus (ii) the aggregate amount of fees, underwriting discounts,
premiums and other costs and expenses incurred in connection with such
refinancing.
8.3 Limitation on Liens. Create, incur, assume or suffer to exist any
Lien upon any of its property, assets or revenues, whether now owned or
hereafter acquired, except for the following (Liens described below are herein
referred to as "Permitted Liens"; provided, however, that no reference to a
Permitted Lien herein, including any statement or provision as to the
acceptability of any Permitted Lien, shall in any way constitute or be construed
so as to postpone or subordinate any Liens or other rights of the Agents, the
Lenders or any of them hereunder or arising under any other Loan Document in
favor of such Permitted Lien):
(a) Liens for taxes, assessments and similar charges not yet
delinquent or the nonpayment of which in the aggregate could not reasonably
be expected to have a Material Adverse Effect, or which are being contested
in good faith by appropriate proceedings diligently conducted and adequate
reserves with respect thereto are maintained on the books of the Parent
Borrower or its Subsidiaries, as the case may be, in conformity with GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's
or other like Liens arising in the ordinary course of business and relating
to obligations which are not overdue for a period of more than 60 days or
which are being contested in good faith by appropriate proceedings
diligently conducted;
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(c) Liens of landlords or of mortgagees of landlords arising by
operation of law or pursuant to the terms of real property leases, provided
that the rental payments secured thereby are not yet due and payable;
(d) pledges, deposits or other Liens in connection with workers'
compensation, unemployment insurance, other social security benefits or
other insurance related obligations (including pledges or deposits securing
liability to insurance carriers under insurance or self-insurance
arrangements);
(e) Liens arising by reason of any judgment, decree or order of any
court or other Governmental Authority, if appropriate legal proceedings
which may have been duly initiated for the review of such judgment, decree
or order, are being diligently prosecuted and shall not have been finally
terminated or the period within which such proceedings may be initiated
shall not have expired;
(f) Liens to secure the performance of bids, trade contracts (other
than for borrowed money), obligations for utilities, leases, statutory
obligations, surety and appeal bonds, performance bonds, judgment and like
bonds, replevin and similar bonds and other obligations of a like nature
incurred in the ordinary course of business;
(g) zoning restrictions, easements, rights-of-way, restrictions on the
use of property, other similar encumbrances incurred in the ordinary course
of business and minor irregularities of title, which do not materially
interfere with the ordinary conduct of the business of the Parent Borrower
and its Subsidiaries taken as a whole;
(h) Liens securing or consisting of (i) Indebtedness of the Parent
Borrower and its Subsidiaries permitted by subsection 8.2(f) incurred to
finance or refinance the acquisition, leasing, construction or improvement
of fixed or capital assets or (ii) Indebtedness of the Parent Borrower and
its Subsidiaries permitted by subsection 8.2(g) assumed in connection with
any acquisition permitted by subsection 8.9, provided that (i) such Liens
shall not be created in contemplation of the acquisition permitted by
subsection 8.9 and shall be created no later than the later of the date of
such acquisition or the date of the assumption of such Indebtedness, and
(ii) such Liens do not at any time encumber any property other than the
property financed or refinanced by such Indebtedness and, in the case of
Indebtedness assumed in connection with any such acquisition, the total
value of the collateral constituting such Liens immediately following such
acquisition shall not be materially greater than the value of the
collateral constituting such Liens immediately prior to such acquisition;
(i) Liens existing on assets or properties at the time of the
acquisition thereof by the Parent Borrower or any of its Subsidiaries which
do not materially interfere with the use, occupancy, operation and
maintenance of structures existing on the property subject thereto or
extend to or cover any assets or properties of the Parent Borrower or such
Subsidiary other than the assets or property being acquired;
(j) Liens in existence on the Closing Date and listed on Schedule
8.3(j) and other Liens securing Assumed Indebtedness;
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(k) Liens securing Guarantee Obligations permitted under subsection
8.4(e);
(l) Liens created pursuant to the Security Documents;
(m) any encumbrance or restriction (including put and call agreements)
with respect to the Capital Stock of any joint venture or similar
arrangement pursuant to the joint venture or similar agreement with respect
to such joint venture or similar arrangement, provided that no such
encumbrance or restriction affects in any way the ability of the Parent
Borrower or any of its Subsidiaries to comply with subsection 7.9(b) or
(c);
(n) Liens on property subject to Sale and Leaseback Transactions
permitted under subsection 8.11 and general intangibles related thereto;
(o) Liens on Intellectual Property; provided that such Liens result
from the granting of licenses in the ordinary course of business to or from
any Person to use such Intellectual Property;
(p) Liens on property (i) of any Subsidiary that is not a Loan Party
and (ii) that does not constitute Collateral, which Liens secure
Indebtedness of the applicable Subsidiary permitted under subsection 8.2,
Guarantee Obligations of the applicable Subsidiary permitted under
subsection 8.4 or other liabilities or obligations of the applicable
Subsidiary not prohibited by this Agreement;
(q) Liens securing or consisting of Indebtedness of the Parent
Borrower and its Subsidiaries permitted by subsection 8.2(d) and any
refinancings, extensions and replacements thereof otherwise permitted under
this Agreement; provided that (i) such Liens do not apply to any asset
other than Collateral that is subject to a Lien granted under a U.S.
Security Document to secure the "Secured Obligations" as defined in the
U.S. Guarantee and Collateral Agreement and (ii) all such Liens shall be
subject to the Intercreditor Agreement or another intercreditor agreement
that is no less favorable to the Secured Parties than the Intercreditor
Agreement;
(r) Liens on property of any Foreign Subsidiary of the Parent Borrower
securing Indebtedness of such Subsidiary permitted by subsection 8.2(q);
(s) Liens (i) that are contractual rights of set-off, (ii) relating to
purchase orders and other agreements entered into with customers or
suppliers of the Parent Borrower or any Subsidiary in the ordinary course
of business or (iii) in favor of financial institutions encumbering
deposits or other amounts (including the right of set-off) which are within
the general parameters customary in the banking industry;
(t) Liens in favor of customs and revenue authorities arising as a
matter of law to secure the payment of customs duties in connection with
the importation of goods; and
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(u) Liens not otherwise permitted hereunder, all of which Liens
permitted pursuant to this subsection 8.3(u) secure obligations not
exceeding $50,000,000 in aggregate amount at any time outstanding.
8.4 Limitation on Guarantee Obligations. Create, incur, assume or
suffer to exist any Guarantee Obligation except:
(a) Guarantee Obligations in existence on the Closing Date and listed
in Schedule 8.4(a), and any refinancings, refundings, extensions or
renewals thereof, provided that the amount of such Guarantee Obligation
shall not be increased at the time of such refinancing, refunding,
extension or renewal except to the extent that the amount of Indebtedness
in respect of such Guarantee Obligations is permitted to be increased by
subsection 8.2(o);
(b) Guarantee Obligations for performance, bid, appeal, judgment,
replevin and similar bonds and suretyship arrangements, all in the ordinary
course of business;
(c) Guarantee Obligations in respect of indemnification and
contribution agreements expressly permitted by subsection 8.10(iv) or
similar agreements by the Parent Borrower;
(d) Reimbursement Obligations in respect of the Letters of Credit or
reimbursement obligations in respect of any other letters of credit
permitted under subsection 8.2;
(e) Guarantee Obligations in respect of third-party loans and advances
to officers or employees of Holdings or any of its Subsidiaries (i) for
travel and entertainment expenses incurred in the ordinary course of
business, (ii) for relocation expenses incurred in the ordinary course of
business, or (iii) for other purposes in an aggregate amount so long as all
Guarantee Obligations incurred under this paragraph (e), together with the
aggregate amount of all Investments permitted under subsection 8.8(e)
(other than clause (iv) thereof), does not exceed $5,000,000 outstanding at
any time;
(f) obligations to insurers required in connection with worker's
compensation and other insurance coverage incurred in the ordinary course
of business;
(g) obligations of the Parent Borrower and its Subsidiaries under any
Interest Rate Protection Agreements (other than those entered into for
speculative purposes) or under Permitted Hedging Arrangements;
(h) Guarantee Obligations incurred in connection with acquisitions
permitted under subsection 8.9, provided that if any such Guarantee
Obligation inures to the benefit of any Person other than the Person from
whom such acquisition is made or any Affiliate thereof, such Guarantee
Obligation shall not exceed, with respect to any such acquisition, 70% of
the purchase price of such acquisition (including any Indebtedness assumed
in connection with any such acquisition) (or such greater percentage as
shall be reasonably satisfactory to the U.S. Administrative Agent or, if
any such purchase price shall be
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greater than $75,000,000, such greater percentage shall be reasonably
satisfactory to the Required Lenders);
(i) guarantees made by the Parent Borrower or any of its Subsidiaries
of obligations of the Parent Borrower or any of its Subsidiaries (other
than any Indebtedness outstanding pursuant to subsections 8.2(b), (c), (d),
(j), (k) and (q)) which obligations are otherwise permitted under this
Agreement;
(j) Guarantee Obligations in connection with sales or other
dispositions permitted under subsection 8.6, including indemnification
obligations with respect to leases, and guarantees of collectability in
respect of accounts receivable or notes receivable for up to face value;
(k) Guarantee Obligations incurred pursuant to the U.S. Guarantee and
Collateral Agreement or any Canadian Security Document or otherwise in
respect of Indebtedness permitted by subsection 8.2(a);
(l) Guarantee Obligations in respect of Indebtedness permitted
pursuant to subsections 8.2(b), (c) and (d), provided that (x) if any such
Indebtedness is subordinated in right of payment to the obligations of any
Loan Party hereunder and under the other Loan Documents, then any
corresponding Guarantee Obligations are subordinated to Indebtedness
outstanding pursuant to this Agreement and other Loan Documents to
substantially the same extent, (y) Guarantee Obligations in respect of
Indebtedness permitted pursuant to subsections 8.2(b) and 8.2(d) shall be
permitted only so long as such Guarantee Obligations are incurred only by
Guarantors or Borrowers and (z) Guarantee Obligations in respect of Assumed
Indebtedness permitted pursuant to subsection 8.2(c) shall be permitted to
the extent no additional guarantors of such Indebtedness are added
following the Closing Date;
(m) accommodation guarantees for the benefit of trade creditors of the
Parent Borrower or any of its Subsidiaries in the ordinary course of
business;
(n) Guarantee Obligations in respect of Indebtedness or other
obligations of a Person in connection with a joint venture or similar
arrangement in respect of which no other co-investor or other Person has a
greater legal or beneficial ownership interest than the Parent Borrower or
any of its Subsidiaries, and as to all of such Persons does not at any time
exceed $20,000,000 in aggregate principal amount; provided that such amount
shall be reduced by the aggregate amount of Investments permitted by
subsection 8.8(k); and
(o) Guarantee Obligations of the Parent Borrower and its Subsidiaries
in respect of Indebtedness of Foreign Subsidiaries incurred pursuant to
subsection 8.2(q); provided that the aggregate amount of such Guarantee
Obligations outstanding pursuant to this clause (o), when aggregated with
(i) all dividends made pursuant to paragraph 8.7(k), (ii) all Investments
(determined as the amount originally advanced, loaned or otherwise
invested, less any returns on the respective Investment) outstanding
pursuant to paragraphs 8.8(k) and (o), (iii) all cash consideration paid in
respect of acquisitions
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pursuant to paragraph 8.9(b)(iii) and (iv) all optional prepayments made
pursuant to subsection 8.13(f) do not at any time exceed $100,000,000.
8.5 Limitation on Fundamental Changes. Enter into any merger,
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or convey, sell, lease, assign, transfer
or otherwise dispose of, all or substantially all of its property, business or
assets, except:
(a) any Subsidiary of the Parent Borrower may be merged, consolidated
or amalgamated with or into the Parent Borrower (provided that the Parent
Borrower shall be the continuing or surviving corporation) or with or into
any one or more Wholly Owned Subsidiaries of the Parent Borrower (provided
that the Wholly Owned Subsidiary or Subsidiaries of the Parent Borrower
shall be the continuing or surviving entity); provided that if such merger
or consolidation constitutes a transfer of all or substantially all of the
assets of any Loan Party, (1) the continuing or surviving entity shall be a
Loan Party, or (2) at the time of such merger, consolidation or
amalgamation, the Payment Conditions are satisfied;
(b) any Subsidiary of the Parent Borrower may sell, lease, transfer or
otherwise dispose of any or all of its assets (upon voluntary liquidation
or otherwise) to the Parent Borrower or any Wholly Owned Subsidiary of the
Parent Borrower (and, in the case of a non-Wholly Owned Subsidiary, may be
liquidated to the extent the Parent Borrower or any Wholly Owned Subsidiary
which is a direct parent of such non-Wholly Owned Subsidiary receives a pro
rata distribution of the assets thereof); provided that if any Borrower so
disposes of all or substantially all of its assets, either (A) such
Borrower shall, simultaneously with such disposition, (1) repay in full all
outstanding Loans made (x) to it and (y) against assets contributed by it
to the Borrowing Base to any other Borrower and (2) terminate its right to
borrow hereunder or (B) the transferee of such assets shall be a Borrower;
provided, further, that (x) if the Subsidiary that disposes of any or all
of its assets is a Loan Party, (1) the transferee of such assets shall be a
Loan Party, or (2) at the time of such disposition, the Payment Conditions
are satisfied; and
(c) as expressly permitted by subsection 8.6.
8.6 Limitation on Sale of Assets. Convey, sell, lease, assign,
transfer, license, abandon or otherwise dispose of any of its property, business
or assets (including receivables and leasehold interests) (other than leases or
rentals of revenue earning equipment in the ordinary course of business),
whether now owned or hereafter acquired, or, in the case of any Subsidiary of
Holdings, issue or sell any shares of such Subsidiary's Capital Stock, to any
Person other than, subject to any applicable limitations set forth in subsection
8.5, Holdings or any Wholly Owned Subsidiary of Holdings, except:
(a) the sale or other Disposition of obsolete, worn out or surplus
property, whether now owned or hereafter acquired, in the ordinary course
of business;
(b) the sale or other Disposition of any Inventory or Rental Fleet in
the ordinary course of business;
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(c) the sale or discount without recourse of accounts receivable or
notes receivable arising in the ordinary course of business, or the
conversion or exchange of accounts receivable into or for notes receivable,
in each case in connection with the compromise or collection thereof;
provided that, in the case of any Foreign Subsidiary of the Parent
Borrower, any such sale or discount may be with recourse if such sale or
discount is consistent with customary practice in such Foreign Subsidiary's
country of business;
(d) as permitted by subsection 8.5(b) or 8.5(c) and pursuant to Sale
and Leaseback Transactions permitted by subsection 8.11;
(e) subject to any applicable limitations set forth in subsection 8.5,
Dispositions of any assets or property among (i) the Qualified Loan Parties
and (ii) the Non-Guarantor Subsidiaries;
(f) (i) the abandonment or other Disposition of patents, trademarks or
other Intellectual Property that are, in the reasonable judgment of the
Parent Borrower, no longer economically practicable to maintain or useful
in the conduct of the business of the Parent Borrower and its Subsidiaries
taken as a whole and (ii) licensing of Intellectual Property in the
ordinary course of business;
(g) any Disposition by the Parent Borrower or any of its Subsidiaries,
provided that (i) the Net Cash Proceeds of each such Disposition do not
exceed $10,000,000 and (ii) the aggregate Net Cash Proceeds of all
Dispositions in any Fiscal Year made pursuant to this paragraph (g) do not
exceed $20,000,000;
(h) any other Asset Sales by the Parent Borrower or any of its
Subsidiaries the Net Cash Proceeds of which other Asset Sales do not exceed
$100,000,000 in the aggregate after the Closing Date, provided that in the
case of any such Asset Sale, an amount equal to 100% of the Net Cash
Proceeds of such Dispositions less the Reinvested Amount is applied in
accordance with subsection 4.4(b);
(i) any involuntary Disposition due to casualty or condemnation; and
(j) any Disposition set forth on Schedule 8.6(j).
8.7 Limitation on Dividends. Declare or pay any dividend (other than
dividends payable solely in common stock of the Parent Borrower or options,
warrants or other rights to purchase common stock of the Parent Borrower) on, or
make any payment on account of, or set apart assets for a sinking or other
analogous fund for, the purchase, redemption, defeasance, retirement or other
acquisition of, any shares of any class of Capital Stock of the Parent Borrower
or any of its Subsidiaries or any warrants or options to purchase any such
Capital Stock, whether now or hereafter outstanding, or make any other
distribution (other than distributions payable solely in common stock of the
Parent Borrower or options, warrants or other rights to purchase common stock of
the Parent Borrower) in respect thereof, either directly or indirectly, whether
in cash or property or in obligations of the Parent Borrower or any of its
Subsidiaries, except that:
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(a) any Subsidiary of the Parent Borrower may pay dividends or return
capital or make distributions and other similar payments with regard to its
Capital Stock to the Parent Borrower or to a Wholly-Owned Subsidiary of the
Parent Borrower which owns equity therein;
(b) any non-Wholly-Owned Subsidiary of the Parent Borrower may pay
dividends or return capital or make distributions and other similar
payments to its shareholders generally so long as the Parent Borrower or
its respective Subsidiary which owns the Capital Stock in the Subsidiary
paying such dividends or returning such capital or making such
distributions and other similar payments receives at least its
proportionate share thereof (based upon its relative holding of the Capital
Stock in the Subsidiary paying such dividends or returning such capital or
making such distributions and other similar payments and taking into
account the relative preferences, if any, of the various classes of Capital
Stock of such Subsidiary);
(c) the Parent Borrower and any of its Subsidiaries may pay cash
dividends in an amount sufficient to allow any Parent Entity to pay
expenses (other than taxes) incurred in the ordinary course of business,
provided that, if any Parent Entity shall own any material assets other
than the Capital Stock of Holdings or another Parent Entity or other assets
relating to the ownership interest of such Parent Entity in another Parent
Entity, the Parent Borrower or Subsidiaries of the Parent Borrower, such
cash dividends with respect to such Parent Entity shall be limited to the
reasonable and proportional share, as determined by the Parent Borrower in
its reasonable discretion, of such expenses incurred by such Parent Entity
relating or allocable to its ownership interest in the Parent Borrower or
another Parent Entity and such other related assets;
(d) the Parent Borrower and any of its Subsidiaries may pay cash
dividends in an amount sufficient to cover reasonable and necessary
expenses (including professional fees and expenses) (other than taxes)
incurred by any Parent Entity in connection with (i) registration, public
offerings and exchange listing of equity or debt securities and maintenance
of the same, (ii) compliance with reporting obligations under, or in
connection with compliance with, federal or state laws or under this
Agreement or any of the other Loan Documents and (iii) indemnification and
reimbursement of directors, officers and employees in respect of
liabilities relating to their serving in any such capacity, or obligations
in respect of director and officer insurance (including premiums therefor),
provided that, in the case of sub-clause (i) above, if any Parent Entity
shall own any material assets other than the Capital Stock of Holdings or
another Parent Entity or other assets relating to the ownership interest of
such Parent Entity in another Parent Entity, Holdings or its Subsidiaries,
with respect to such Parent Entity such cash dividends shall be limited to
the reasonable and proportional share, as determined by the Parent Borrower
in its reasonable discretion, of such expenses incurred by such Parent
Entity relating or allocable to its ownership interest in another Parent
Entity, Holdings and such other assets;
(e) the Parent Borrower and any of its Subsidiaries may pay, without
duplication, cash dividends (i) pursuant to the Tax Sharing Agreement, and
(ii) to pay or permit any Parent Entity to pay any Related Taxes;
146
(f) the Parent Borrower and any of its Subsidiaries may pay cash
dividends in an amount sufficient to allow any Parent Entity to repurchase
shares of its Capital Stock or rights, options or units in respect thereof
from any Management Investors or former Management Investors (or any of
their respective heirs, successors, assigns, legal representatives or
estates), or as otherwise contemplated by any Management Subscription
Agreements, for an aggregate purchase price not to exceed $10,000,000;
provided that such amount shall be increased by (i) an amount equal to
$2,500,000 on each anniversary of the Closing Date, commencing on the first
anniversary of the Closing Date, and (ii) an amount equal to the proceeds
to the Parent Borrower (whether received by it directly or from a Parent
Entity or applied to pay Parent Entity Expenses) of any resales or new
issuances of shares and options to any Management Investors, at any time
after the initial issuances to any Management Investors, together with the
aggregate amount of deferred compensation owed by the Parent Borrower or
any of its Subsidiaries to any Management Investor that shall thereafter
have been cancelled, waived or exchanged at any time after the initial
issuances to any thereof in connection with the grant to such Management
Investor of the right to receive or acquire shares of Holdings' or any
Parent Entity's Capital Stock;
(g) the Parent Borrower and any of its Subsidiaries may pay cash
dividends in an amount sufficient to allow any Parent Entity to pay all
fees and expenses incurred in connection with the Transaction and the other
transactions expressly contemplated by this Agreement and the other Loan
Documents, and to allow Holdings to perform its obligations under or in
connection with the Loan Documents to which it is a party;
(h) the Parent Borrower and any of its Subsidiaries may pay a cash
dividend to Holdings (and Holdings may use the cash proceeds thereof to pay
a cash dividend directly or indirectly to any Parent Entity), in each case
on the Closing Date to give effect to the Recapitalization;
(i) in addition to the foregoing dividends, the Parent Borrower and
any of its Subsidiaries may pay additional dividends, payments and
distributions not otherwise permitted pursuant to this subsection 8.7;
provided that, at the time such dividend, payment or distribution is made
the Payment Conditions are satisfied;
(j) the Parent Borrower and any of its Subsidiaries may pay dividends
in an amount sufficient to allow any Parent Entity to pay all fees,
expenses, purchase price adjustments and other obligations (other than any
obligation (other than Related Taxes) related to the Seller Notes) incurred
pursuant to the Recapitalization Agreement as in effect on the date hereof
or the Indemnification Agreement (as defined in the Recapitalization
Agreement) as in effect on the date hereof; and
(k) so long as no Default or Event of Default has occurred and is
continuing or would result therefrom, the Parent Borrower and any of its
Subsidiaries may pay cash dividends; provided that the aggregate amount of
such dividends pursuant to this clause (k), when aggregated with (i) all
Guarantee Obligations outstanding pursuant to subsection 8.4(o), (ii) all
Investments (determined as the amount originally advanced, loaned or
otherwise invested, less any returns on the respective Investment not to
exceed
147
the original amount invested) outstanding pursuant to paragraphs 8.8(k) and
(o), (iii) all cash consideration paid in respect of acquisitions pursuant
to paragraph 8.9(b)(iii) and (iv) all optional prepayments made pursuant to
subsection 8.13(f), do not at any time exceed $100,000,000.
8.8 Limitation on Investments, Loans and Advances. Make any advance,
loan, extension of credit or capital contribution to, or purchase any stock,
bonds, notes, debentures or other securities of or any assets constituting a
business unit of, or make any other investment, in cash or by transfer of assets
or property, in (each an "Investment"), any Person, except:
(a) extensions of trade credit in the ordinary course of business;
(b) Investments in cash and Cash Equivalents;
(c) Investments existing on the Closing Date and described in Schedule
8.8(c), setting forth the respective amounts of such Investments as of a
recent date;
(d) Investments in notes receivable and other instruments and
securities obtained in connection with transactions permitted by subsection
8.6(c);
(e) loans and advances to officers, directors or employees of Holdings
or any of its Subsidiaries (i) in the ordinary course of business for
travel and entertainment expenses, (ii) for relocation expenses in the
ordinary course of business or (iii) made for other purposes in an
aggregate amount so long as all such Investments (determined as the amount
originally advanced, loaned or otherwise invested, less any returns on the
respective Investment not to exceed the original amount invested) pursuant
to this paragraph (e) (other than clause (iv) hereof), together with the
aggregate amount of all Guarantee Obligations permitted pursuant to
subsection 8.4(e), does not exceed $5,000,000 outstanding at any time and
(iv) relating to indemnification or reimbursement of any officers,
directors or employees in respect of liabilities relating to their serving
in any such capacity or as otherwise specified in subsection 8.10;
(f) (i) Investments by any Qualified Loan Party in any other Qualified
Loan Party, (ii) Investments by any Non-Guarantor Subsidiary in any other
Non-Guarantor Subsidiary, (iii) Investments by Canadian Xxxxx in RSC Canada
consisting of intercompany loans made by Canadian Xxxxx to RSC Canada and
(iv) Investments in Holdings in amounts and for purposes for which
dividends are permitted under subsection 8.7;
(g) acquisitions expressly permitted by subsection 8.9;
(h) Investments of the Parent Borrower and its Subsidiaries under
Interest Rate Protection Agreements (other than those entered into for
speculative purposes) or under Permitted Hedging Arrangements;
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(i) Investments in the nature of pledges or deposits with respect to
leases or utilities provided to third parties in the ordinary course of
business or otherwise described in subsection 8.3(c), (d) or (f);
(j) Investments representing non-cash consideration received by the
Parent Borrower or any of its Subsidiaries in connection with any Asset
Sale, provided that in the case of any Asset Sale permitted under
subsection 8.6(g) or (h), such non-cash consideration constitutes not more
than 25% of the aggregate consideration received in connection with such
Asset Sale and any such non-cash consideration received by the Parent
Borrower or any other Loan Party is pledged to the U.S. Collateral Agent,
for the benefit of the Lenders, pursuant to the Security Documents;
(k) Investments by the Parent Borrower or any of its Subsidiaries in a
Person in connection with a joint venture or similar arrangement in respect
of which no other co-investor or other Person has a greater legal or
beneficial ownership interest than the Parent Borrower or such Subsidiary;
provided that (i) the aggregate amount of such Investments (determined as
the amount originally advanced, loaned or otherwise invested, less any
returns on the respective Investment) outstanding pursuant to this
paragraph (k), when aggregated with (A) all Guarantee Obligations
outstanding pursuant to subsection 8.4(o), (ii), (B) all cash dividends
paid pursuant to paragraph 8.7(k), (C) all Investments (determined as the
amount originally advanced, loaned or otherwise invested, less any returns
on the respective Investment not to exceed the original amount invested)
outstanding pursuant to paragraph (o) of this subsection 8.8, (D) all cash
consideration paid in respect of acquisitions pursuant to paragraph
8.9(b)(iii) and (E) all optional prepayments made pursuant to subsection
8.13(f), do not exceed $100,000,000 in the aggregate, (ii) the aggregate
amount of Investments (determined as the amount originally advanced, loans
or otherwise invested, less any returns on the respective Investment not to
exceed the original amount invested) in Persons pursuant to this paragraph
(k), when aggregated with all Investments (determined as the amount
originally advanced, loaned or otherwise invested, less any returns on the
respective Investment not to exceed the original amount invested) in
Persons that are organized outside of the United States and Canada pursuant
to paragraph (o) of this subsection 8.8 and all acquisitions pursuant to
clause (b)(iii) of subsection 8.9 in Persons that are organized (or assets
that are located) outside of the United States and Canada shall not exceed
$35,000,000 and (iii) the Parent Borrower or such Subsidiary complies with
the provisions of subsections 7.9(b) and (c) hereof, if applicable, with
respect to such ownership interest;
(l) Investments in industrial development or revenue bonds or similar
obligations secured by assets leased to and operated by the Parent Borrower
or any of its Subsidiaries that were issued in connection with the
financing of such assets, so long as the Parent Borrower or any such
Subsidiary may obtain title to such assets at any time by optionally
canceling such bonds or obligations, paying a nominal fee and terminating
such financing transaction;
(m) Investments representing evidences of Indebtedness, securities or
other property received from another Person by the Parent Borrower or any
of its Subsidiaries
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in connection with any bankruptcy proceeding or other reorganization of
such other Person or as a result of foreclosure, perfection or enforcement
of any Lien or exchange for evidences of Indebtedness, securities or other
property of such other Person held by the Parent Borrower or any of its
Subsidiaries; provided that any such securities or other property received
by the Parent Borrower or any other Loan Party is pledged to the Collateral
Agents, for the benefit of the Lenders, pursuant to the Security Documents;
(n) Investments not otherwise permitted by the other clauses of this
subsection 8.8; provided that at the time such Investments are made the
Payment Conditions are satisfied; and
(o) other Investments; provided that (i) the aggregate amount of such
Investments (determined as the amount originally advanced, loaned or
otherwise invested, less any returns on the respective Investment not to
exceed the original amount invested) outstanding pursuant to this paragraph
(o), when aggregated with (A) all Guarantee Obligations outstanding
pursuant to subsection 8.4(o), (ii), (B) all cash dividends paid pursuant
to paragraph 8.7(k), (C) all Investments (determined as the amount
originally advanced, loaned or otherwise invested, less any returns on the
respective Investment not to exceed the original amount invested) pursuant
to paragraph (k) of this subsection 8.8, (D) all cash consideration paid in
respect of acquisitions pursuant to paragraph 8.9(b)(iii) and (E) all
optional prepayments made pursuant to subsection 8.13(f), do not at any
time exceed $100,000,000 in the aggregate and (ii) the aggregate amount of
Investments (determined as the amount originally advanced, loaned or
otherwise invested, less any returns on the respective Investment not to
exceed the original amount invested) in Persons that are organized outside
of the United States and Canada pursuant to this paragraph (o), when
aggregated with all Investments (determined as the amount originally
advanced, loaned or otherwise invested, less any returns on the respective
Investment not to exceed the original amount invested) pursuant to
paragraph (k) of this subsection 8.8 and all acquisitions pursuant to
paragraph (b)(iii) of subsection 8.9 in Persons that are organized (or
assets that are located) outside of the United States and Canada, shall not
exceed $35,000,000.
8.9 Limitations on Certain Acquisitions. Acquire by purchase or
otherwise all the business or assets of, or stock or other evidences of
beneficial ownership of, any Person, except that the Parent Borrower and its
Subsidiaries shall be allowed to make any such acquisitions so long as:
(a) such acquisition is expressly permitted by subsection 8.5, or
(b) the aggregate consideration paid by the Parent Borrower and its
Subsidiaries for such acquisition (including cash and indebtedness incurred
or assumed in connection with such acquisition) consists solely of any
combination of:
(i) Capital Stock of any Parent Entity or Holdings; and/or
(ii) cash in an amount equal to the Net Cash Proceeds of the sale
or issuance of Capital Stock of any Parent Entity or Holdings which
amount is
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contributed to the Parent Borrower within 90 days prior to the date of
the relevant acquisition (and is not a Specified Equity Contribution);
and/or
(iii) so long as no Default or Event of Default has occurred and
is continuing or would result therefrom, cash and other property
(excluding cash and other property covered in clauses (i) and (ii) of
this subsection 8.9(b)) and Indebtedness (whether incurred or assumed,
in an aggregate amount); provided that (i) the aggregate amount of
such cash consideration (net of any increase in the Available RCF
Commitment attributable to the purchase of revenue earning equipment
in connection with such acquisition) paid pursuant to this clause
(b)(iii), when aggregated with (A) all Guarantee Obligations
outstanding pursuant to subsection 8.4(o), (ii), (B) all cash
dividends paid pursuant to paragraph 8.7(k), (C) all Investments
(determined as the amount originally advanced, loaned or otherwise
invested, less any returns on the respective Investment not to exceed
the original amount invested) pursuant to paragraphs 8.8(k) and (o)
and (D) all optional prepayments made pursuant to subsection 8.13(f),
does not exceed $100,000,000 in the aggregate and (ii) the aggregate
consideration paid in respect of acquisitions of Persons that are
organized (or assets that are located) outside of the United States
and Canada pursuant to this paragraph (b)(iii), when aggregated with
all Investments (determined as the amount originally advanced, loaned
or otherwise invested, less any returns on the respective Investment
not to exceed the original amount invested) pursuant to paragraphs (k)
and (o) of subsection 8.8, shall not exceed $35,000,000; or
(c) the Payment Conditions shall have been satisfied;
provided, further, that in the case of each such acquisition pursuant to
paragraphs (a), (b) and (c) of this subsection 8.9, after giving effect thereto,
no Default or Event of Default shall occur as a result of such acquisition.
8.10 Limitation on Transactions with Affiliates. Enter into any
transaction, including any purchase, sale, lease or exchange of property or the
rendering of any service, with any Affiliate unless such transaction is (a)
otherwise permitted under this Agreement, and (b) upon terms no less favorable
to Holdings or such Subsidiary, as the case may be, than it would obtain in a
comparable arm's length transaction with a Person which is not an Affiliate;
provided that nothing contained in this subsection 8.10 shall be deemed to
prohibit:
(i) Holdings or any of its Subsidiaries from entering into or
performing any consulting, management or employment agreements or other
compensation arrangements with a director, officer or employee of Holdings
or any of its Subsidiaries that provides for annual aggregate base
compensation not in excess of $1,500,000 for each such director, officer or
employee;
(ii) Holdings or any of its Subsidiaries from entering into or
performing an agreement with any Sponsor or any Affiliate of any Sponsor
for the rendering of management consulting, monitoring or financial
advisory services for compensation
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not to exceed in the aggregate $6,000,000 per year plus reasonable
out-of-pocket expenses;
(iii) the payment of transaction expenses in connection with this
Agreement;
(iv) Holdings or any of its Subsidiaries from entering into, making
payments pursuant to and otherwise performing an indemnification and
contribution agreement in favor of any Permitted Holder and each person who
is or becomes a director, officer, agent or employee of Holdings or any of
its Subsidiaries, in respect of liabilities (A) arising under the
Securities Act, the Exchange Act and any other applicable securities laws
or otherwise, in connection with any offering of securities by any Parent
Entity (provided that, if such Parent Entity shall own any material assets
other than the Capital Stock of Holdings or another Parent Entity, or other
assets relating to the ownership interest of such Parent Entity in Holdings
or another Parent Entity, such liabilities shall be limited to the
reasonable and proportional share, as determined by the Parent Borrower in
its reasonable discretion, of such liabilities relating or allocable to the
ownership interest of such Parent Entity in Holdings or another Parent
Entity and such other related assets) or Holdings or any of its
Subsidiaries, (B) incurred to third parties for any action or failure to
act of Holdings or any of its Subsidiaries, predecessors or successors, (C)
arising out of the performance by any Affiliate of any Sponsor of
management consulting, monitoring or financial advisory services provided
to Holdings or any of its Subsidiaries, (D) arising out of the fact that
any indemnitee was or is a director, officer, agent or employee of Holdings
or any of its Subsidiaries, or is or was serving at the request of any such
corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or enterprise or (E) to the
fullest extent permitted by Delaware or other applicable state law, arising
out of any breach or alleged breach by such indemnitee of his or her
fiduciary duty as a director or officer of Holdings or any of its
Subsidiaries;
(v) Holdings or any of its Subsidiaries from performing any agreements
or commitments with or to any Affiliate existing on the Closing Date and
described on Schedule 8.10(v);
(vi) any transaction permitted under subsection 8.4(c), 8.4(e), 8.5,
8.7, 8.8(e) or 8.8(f) and any transaction between Holdings, any Borrower
and any of the Qualified Loan Parties;
(vii) Holdings and its Subsidiaries from paying the Sponsors and/or
their respective Affiliates a transaction fee pursuant to the Transaction
Agreement, dated as of the date hereof, among the Sponsors, ACNA and RSC,
and the out-of-pocket expenses of the Sponsors and/or their respective
Affiliates incurred in connection with the Recapitalization Agreement and
the transactions contemplated thereby (including the Financing Transactions
(as defined in the Recapitalization Agreement), on the Closing Date in
accordance with the terms thereof;
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(viii) the Transaction, and all transactions relating thereto; and
(ix) Holdings or any of its Subsidiaries from performing its
obligations under the Tax Sharing Agreement.
For purposes of this subsection 8.10, any transaction with any Affiliate shall
be deemed to have satisfied the standard set forth in clause (b) of the first
sentence hereof if (i) such transaction is approved by a majority of the
Disinterested Directors of the board of directors of any Parent Entity,
Holdings, the Parent Borrower or such Subsidiary, or (ii) in the event that at
the time of any such transaction, there are no Disinterested Directors serving
on the board of directors of any Parent Entity, Holdings, the Parent Borrower or
such Subsidiary, such transaction shall be approved by a nationally recognized
expert with expertise in appraising the terms and conditions of the type of
transaction for which approval is required.
8.11 Limitation on Sale and Leaseback Transactions. Enter into any
arrangement with any Person providing for the leasing by the Parent Borrower or
any of its Subsidiaries that is a Loan Party of real or personal property which
has been or is to be sold or transferred by the Parent Borrower or any such
Subsidiary to such Person or to any other Person that has advanced or that shall
advance funds to the Parent Borrower or such Subsidiary on the security of such
property or rental obligations of the Parent Borrower or such Subsidiary (any of
such arrangements, a "Sale and Leaseback Transaction"), unless (a) such sale or
transfer occurs within 90 days after the acquisition of such property by the
Parent Borrower or any such Subsidiary, (b) such Sale and Leaseback Transaction
is in respect of any of the real properties listed on Schedule 8.11(b) (the
"Sale and Leaseback Real Properties"), or (c) the Payment Conditions have been
satisfied.
8.12 Limitation on Dispositions of Collateral. Convey, sell, transfer,
lease, or otherwise dispose of any of the Collateral, or attempt, offer or
contract to do so (unless such attempt, offer or contract is conditioned upon
obtaining any requisite consent of the Lenders hereunder), except for (a)
mergers, amalgamations, consolidations, sales, leases, transfers or other
Dispositions expressly permitted under subsection 8.5 and (b) sales or other
Dispositions expressly permitted under subsection 8.6, including sales of Rental
Fleet in the ordinary course of business; and the Administrative Agents and the
Collateral Agent shall, and the Lenders hereby authorize the Administrative
Agents and the Collateral Agents to, execute such releases of Liens and take
such other actions as the Parent Borrower may reasonably request in connection
with the foregoing.
8.13 Limitation on Optional Payments and Modifications of Debt
Instruments and Other Documents. (a) Make any optional payment or prepayment on
or optional repurchase or redemption of any of the Second-Lien Term Loans or the
Senior Notes or any other Indebtedness (other than Indebtedness incurred
pursuant to subsections 8.2(a), (c), (e), (m), (p) or (q) (but in the case of
subsection 8.2(q), only to the extent such payment, prepayment, repurchase or
redemption is not paid with cash of or financing obtained by Holdings or any of
its Domestic Subsidiaries)) including any payments on account of, or for a
sinking or other analogous fund for, the repurchase, redemption, defeasance or
other acquisition thereof, unless, in each case, the Payment Conditions shall
have been satisfied.
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(b) In the event of the occurrence of a Change of Control, repurchase
or repay any Indebtedness then outstanding pursuant to any of the Senior Notes
or any portion thereof, unless the Borrowers shall have (i) made payment in full
of the Loans, all Reimbursement Obligations and any other amounts then due and
owing to any Lender or the U.S. Administrative Agent hereunder and under any
Note and cash collateralized the Bankers' Acceptances and the L/C Obligations on
terms reasonably satisfactory to the U.S. Administrative Agent or (ii) made an
offer to pay the Loans, all Reimbursement Obligations and any amounts then due
and owing to each Lender and the U.S. Administrative Agent hereunder and under
any Note and to cash collateralize the Bankers' Acceptances and the L/C
Obligations in respect of each Lender and shall have made payment in full
thereof to each such Lender or the U.S. Administrative Agent which has accepted
such offer and cash collateralized the Bankers' Acceptances and the L/C
Obligations in respect of each such Lender which has accepted such offer.
(c) Amend, supplement, waive or otherwise modify any of the provisions
of any Senior Note Document (including pursuant to an extension, renewal,
replacement or refinancing thereof):
(i) which shortens the fixed maturity or increases the principal
amount of, or increases the rate or shortens the time of payment of
interest on, or increases the amount or shortens the time of payment
of any principal or premium payable whether at maturity, at a date
fixed for prepayment or by acceleration or otherwise of the
Indebtedness evidenced by the Senior Notes, or increases the amount
of, or accelerates the time of payment of, any fees or other amounts
payable in connection therewith;
(ii) which relates to any material affirmative or negative
covenants or any events of default or remedies thereunder and the
effect of which is to subject Holdings or any of its Subsidiaries to
any more onerous or more restrictive provisions; or
(iii) which otherwise adversely affects the interests of the
Lenders as senior secured creditors with respect to the Senior Notes
or the interests of the Lenders under this Agreement or any other Loan
Document in any material respect.
(d) Amend, supplement, waive or otherwise modify any of the provisions
of any Second-Lien Term Loan Document (including pursuant to an extension,
renewal, replacement or refinancing thereof), except as permitted by the
Intercreditor Agreement.
(e) (i) Amend, supplement or otherwise modify (pursuant to a waiver or
otherwise) the terms and conditions of the Tax Sharing Agreement in any manner
that would increase the amounts payable by Holdings or any of its Subsidiaries
thereunder, other than amendments reasonably reflecting changes in law or
regulations after the date hereof, or (ii) otherwise amend, supplement or
otherwise modify the terms and conditions of the Tax Sharing Agreement except to
the extent that any such amendment, supplement or modification could not
reasonably be expected to have a Material Adverse Effect.
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(f) Notwithstanding the foregoing, so long as no Default or Event of
Default has occurred and is continuing or would result therefrom, the Parent
Borrower shall be permitted to make optional payments in respect of the
Second-Lien Term Loans or the Senior Notes and Indebtedness of Foreign
Subsidiaries incurred pursuant to subsection 8.2(q); provided that the aggregate
amount of optional payments made pursuant to this paragraph (f), when aggregated
with (i) all Guarantee Obligations outstanding pursuant to subsection 8.4(o),
(ii) all cash dividends paid pursuant to paragraph 8.7(k), (iii) all Investments
(determined as the amount originally advanced, loaned or otherwise invested,
less any returns on the respective Investment not to exceed the original amount
invested) pursuant to paragraphs 8.8(k) and (o) and (iv) all cash consideration
paid in respect of acquisitions pursuant to paragraph 8.9(b)(iii), do not at any
time exceed $100,000,000 in the aggregate.
(g) Notwithstanding the foregoing, the Parent Borrower shall be
permitted to redeem outstanding Senior Notes with the proceeds received
(directly or indirectly) by the Parent Borrower from equity issuances by any
Parent Entity of its Capital Stock in connection with the exercise by the Parent
Borrower and RSC of their right to redeem Senior Notes with proceeds of such
equity issuances pursuant to the Senior Note Indenture.
8.14 Limitation on Changes in Fiscal Year. Permit the Fiscal Year of
Holdings, the Parent Borrower or RSC to end on a day other than December 31.
8.15 Limitation on Negative Pledge Clauses. Enter into with any Person
any agreement which prohibits or limits the ability of Holdings or any of its
Subsidiaries (other than any Foreign Subsidiaries or Subsidiaries thereof) to
create, incur, assume or suffer to exist any Lien in favor of the Lenders in
respect of obligations and liabilities under this Agreement or any other Loan
Documents upon any of its property, assets or revenues, whether now owned or
hereafter acquired, other than (a) this Agreement, the other Loan Documents and
any related documents, the Senior Note Documents, or the Second-Lien Term Loan
Documents, (b) any industrial revenue or development bonds, purchase money
mortgages, acquisition agreements or Financing Leases permitted by this
Agreement (in which cases, any prohibition or limitation shall only be effective
against the assets financed or acquired thereby), or (c) operating leases of
real property entered into in the ordinary course of business.
8.16 Limitation on Lines of Business. (a) Enter into any business,
either directly or through any Subsidiary or otherwise, except for those
businesses of the same general type as those in which the Parent Borrower and
its Subsidiaries are engaged on the Closing Date or which are reasonably related
thereto.
(b) In the case of any Foreign Subsidiary Holdco, (x) own any material
assets other than securities or Indebtedness of one or more Foreign Subsidiaries
and other assets relating to an ownership interest in any such securities,
Indebtedness or Subsidiaries or (y) incur or become liable for any Indebtedness
for borrowed money to any Person other than the Parent Borrower or a Subsidiary
of the Parent Borrower, any other material Indebtedness to any Person other than
the Parent Borrower or a Subsidiary of the Parent Borrower or any Guarantee
Obligations of any Indebtedness (other than of any Foreign Subsidiary or any
Subsidiary of any Foreign Subsidiary), in each case except pursuant to
subsections 8.2(a) and 8.4(k).
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(c) Holdings will not (i) engage at any time in any business or
business activity, other than (A) its ownership of all outstanding Capital Stock
issued by the Parent Borrower, (B) actions incidental to the consummation of the
Transaction, (C) actions required by law to maintain its existence or to engage
in the business or business activities described in clause (A) above, (D) the
payment of dividends and taxes and (E) activities incidental to its maintenance
and continuance and to the foregoing activities; (ii) own any material assets
other than those relating to the business and business activities described in
clause (i) above; and (iii) incur any Indebtedness other than Indebtedness
arising from Investments made pursuant to subsection 8.8(f)(iii) and any
Indebtedness incurred pursuant to this Agreement, the other Loan Documents and
the Second-Lien Term Loan Documents, (iv) merge or consolidated with or into any
other Person or (v) incur or assume any Lien on its property, assets or
revenues, except Liens created pursuant to the Security Documents or the
Second-Lien Term Loan Documents.
(d) From and after the creation thereof, Canadian Xxxxx will not (i)
engage at any time in any business activity, other than (A) its ownership of or
disposition to RSC of, outstanding capital stock issued by RSC Canada and any
debt securities or note payables, in each case issued by RSC Canada, (B) actions
required by law to maintain its existence or to engage in the business or
business activities described in clause (A) above, (C) the payment of dividends
and taxes and (D) activities incidental to its maintenance and continuance and
to the foregoing activities (including, without limitation, paying guarantee
fees to Holdings or any Subsidiary Guarantor and entering into foreign currency
swaps); (ii) own any material assets other than those relating to the business
and business activities described in clause (i) above; and (iii) incur any
Indebtedness other than Indebtedness incurred pursuant to, or permitted by, this
Agreement, (iv) merge or consolidate with or into any other Person, other than
mergers or consolidations with U.S. Borrowers to the extent permitted by
subsection 8.5 or (v) incur or assume any Lien on its property, assets or
revenues.
8.17 Limitations on Currency, Commodity and Other Hedging
Transactions. Enter into, purchase or otherwise acquire agreements or
arrangements relating to currency, commodity or other hedging except, to the
extent and only to the extent that, such agreements or arrangements are entered
into, purchased or otherwise acquired in the ordinary course of business of the
Parent Borrower or any of its Subsidiaries with reputable financial institutions
or vendors and not for purposes of speculation (any such agreement or
arrangement permitted by this subsection, a "Permitted Hedging Arrangement").
Section 9. Events of Default. If any of the following events shall
occur and be continuing:
(a) any Borrower shall fail to pay any principal of any Loan (or face
amount of any Bankers' Acceptance Loan) or any Reimbursement Obligation
when due in accordance with the terms hereof (whether at stated maturity,
by mandatory prepayment or otherwise); or any Borrower shall fail to pay
any interest or BA Fee on any Loan, or any other amount payable hereunder,
within five days after any such interest or BA Fee or other amount becomes
due in accordance with the terms hereof; or
(b) any representation or warranty made or deemed made by any Loan
Party herein or in any other Loan Document (or in any amendment,
modification or supplement
156
hereto or thereto) or which is contained in any certificate furnished at
any time by or on behalf of any Loan Party pursuant to this Agreement or
any such other Loan Document shall prove to have been incorrect in any
material respect on or as of the date made or deemed made; or
(c) any Loan Party shall default in the observance or performance of
any agreement contained in subsections 4.16, 7.2(f) (after one Business Day
grace period), 7.4 (with respect to maintenance of existence) 7.5, 7.6,
7.7(a) or Section 8 of this Agreement, Section 5.2.2 of the U.S. Guarantee
and Collateral Agreement or Section 5.2.2 of the Canadian Guarantee and
Collateral Agreement; provided that, in the case of a default in the
observance or performance of its obligations under subsection 7.7(a)
hereof, such default shall have continued unremedied for a period of two
days after a Responsible Officer of the Parent Borrower shall have
discovered or should have discovered such default; and provided, further,
that if (x) any such failure with respect to subsections 4.16, 7.4, 7.5 or
7.6 is of a type that can be cured within five Business Days and (y) such
Default could not materially adversely impact the Lenders' Liens on the
Collateral, such failure shall not constitute an Event of Default for five
Business Days after the occurrence thereof so long as the Loan Parties are
diligently pursuing the cure of such failure; or
(d) any Loan Party shall default in the observance or performance of
any other agreement contained in this Agreement or any other Loan Document
(other than as provided in paragraphs (a) through (c) of this Section 9),
and such default shall continue unremedied for a period ending on the
earlier of (i) the date 32 days after a Responsible Officer of Holdings
shall have discovered or should have discovered such default and (ii) the
date 15 days after written notice has been given to any Credit Agreement
Party by the U.S. Administrative Agent or the Required Lenders; or
(e) Holdings or any of its Subsidiaries shall (i) default in (x) any
payment of principal of or interest on any Indebtedness (excluding the
Loans and the Reimbursement Obligations) in excess of $50,000,000 or (y) in
the payment of any Guarantee Obligation in excess of $50,000,000, beyond
the period of grace (not to exceed 30 days), if any, provided in the
instrument or agreement under which such Indebtedness or Guarantee
Obligation was created; or (ii) default in the observance or performance of
any other agreement or condition relating to any Indebtedness (excluding
the Loans and the Reimbursement Obligations) or Guarantee Obligation
referred to in clause (i) above or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event shall occur or
condition exist, the effect of which default or other event or condition is
to cause, or to permit the holder or holders of such Indebtedness or
beneficiary or beneficiaries of such Guarantee Obligation (or a trustee or
agent on behalf of such holder or holders or beneficiary or beneficiaries)
to cause, with the giving of notice or lapse of time if required, such
Indebtedness to become due prior to its stated maturity or such Guarantee
Obligation to become payable (an "Acceleration"), and such time shall have
lapsed and, if any notice (a "Default Notice") shall be required to
commence a grace period or declare the occurrence of an event of default
before notice of Acceleration may be delivered, such Default Notice shall
have been given; or
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(f) if (i) any Loan Party or any Material Subsidiaries shall commence
any case, proceeding or other action (A) under any existing or future law
of any jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, seeking to have an order
for relief entered with respect to it, or seeking to adjudicate it a
bankrupt or insolvent, or seeking reorganization, arrangement, adjustment,
winding-up, liquidation, dissolution, composition or other relief with
respect to it or its debts, or (B) seeking appointment of a receiver,
interim receiver, receivers, receiver and manager, trustee, custodian,
monitor, conservator or other similar official for it or for all or any
substantial part of its assets, or any Loan Party or any Material
Subsidiaries shall make a general assignment for the benefit of its
creditors; or (ii) there shall be commenced against any Loan Party or any
Material Subsidiaries any case, proceeding or other action of a nature
referred to in clause (i) above which (A) results in the entry of an order
for relief or any such adjudication or appointment or (B) remains
undismissed, undischarged, unstayed or unbonded for a period of 60 days; or
(iii) there shall be commenced against any Loan Party or any Material
Subsidiaries any case, proceeding or other action seeking issuance of a
warrant of attachment, execution, distraint or similar process against all
or any substantial part of its assets which results in the entry of an
order for any such relief which shall not have been vacated, discharged,
stayed or bonded pending appeal within 60 days from the entry thereof; or
(iv) any Loan Party or any Material Subsidiaries shall take any corporate
action in furtherance of, or indicating its consent to, approval of, or
acquiescence in, any of the acts set forth in clause (i), (ii), or (iii)
above; or (v) any Loan Party or any Material Subsidiaries shall be
generally unable to, or shall admit in writing its general inability to,
pay its debts as they become due; or
(g) any Person shall engage in any "prohibited transaction" (as
defined in Section 406 of ERISA or Section 4975 of the Code) involving any
Plan, (ii) any "accumulated funding deficiency" (as defined in Section 302
of ERISA), whether or not waived, shall exist with respect to any Plan or
any Lien in favor of the PBGC, a Plan or Foreign Plan shall arise on the
assets of Holdings or its Subsidiaries any Commonly Controlled Entity,
(iii) a Reportable Event shall occur with respect to, or proceedings shall
commence to have a trustee appointed, or a trustee shall be appointed, to
administer or to terminate, any Single Employer Plan, which Reportable
Event or commencement of proceedings or appointment of a trustee is in the
reasonable opinion of the U.S. Administrative Agent likely to result in the
termination of such Plan for purposes of Title IV of ERISA, (iv) any Single
Employer Plan shall terminate for purposes of Title IV of ERISA other than
a standard termination pursuant to Section 4041(b) of ERISA, (v) Holdings
or its Subsidiaries or any Commonly Controlled Entity shall, or in the
reasonable opinion of the U.S. Administrative Agent is reasonably likely
to, incur any liability in connection with a withdrawal from, or the
Insolvency or Reorganization of, any Multiemployer Plan or Foreign Plan, or
(vi) any other event or condition shall occur or exist with respect to a
Plan; and in each case in clauses (i) through (vi) above, such event or
condition, together with all other such events or conditions, if any, could
be reasonably expected to result in a Material Adverse Effect; or
(h) one or more judgments or decrees shall be entered against Holdings
or any of its Subsidiaries involving in the aggregate at any time a
liability (net of any insurance or indemnity payments actually received in
respect thereof prior to or within 60 days
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from the entry thereof, or to be received in respect thereof in the event
any appeal thereof shall be unsuccessful) of $50,000,000 or more, and all
such judgments or decrees shall not have been vacated, discharged, stayed
or bonded pending appeal within 60 days from the entry thereof; or
(i) the Lien created by any of the Security Documents shall cease to
be perfected and enforceable in accordance with its terms or of the same
effect as to perfection and priority purported to be created thereby with
respect to any significant portion of the Collateral (other than in
connection with any termination of such Lien in respect of any Collateral
as permitted hereby or by any Security Document), and such failure of such
Lien to be perfected and enforceable with such priority shall have
continued unremedied for a period of 20 days; or
(j) any Loan Document shall cease for any reason to be in full force
and effect (other than pursuant to the terms hereof or thereof) or any Loan
Party shall so assert in writing; or
(k) a Change of Control shall have occurred;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) above with respect to any Borrower,
automatically the Commitments, if any, shall immediately terminate and the Loans
hereunder (with accrued interest thereon) and all other amounts owing under this
Agreement (including the aggregate face amounts of Bankers' Acceptance Loans and
all amounts of L/C Obligations, whether or not the beneficiaries of the then
outstanding Letters of Credit shall have presented the documents required
thereunder and whether or not the Bankers' Acceptance Loans have matured) shall
immediately become due and payable, and (B) if such event is any other Event of
Default (or in the case of clause (iii) below, any Event of Default), any of the
following actions may be taken: (i) with the consent of the Required Lenders,
the U.S. Administrative Agent may, or upon the request of the Required Lenders
the U.S. Administrative Agent shall, by notice to the Parent Borrower, declare
the Commitments to be terminated forthwith, whereupon the Commitments, if any,
shall immediately terminate; (ii) with the consent of the Required Lenders, the
U.S. Administrative Agent may, or upon the request of the Required Lenders, the
U.S. Administrative Agent shall, by notice to the Parent Borrower, declare the
Loans hereunder (with accrued interest thereon) and all other amounts owing
under this Agreement (including the aggregate face amount of all Bankers'
Acceptance Loans and all amounts of L/C Obligations, whether or not the
beneficiaries of the then outstanding Letters of Credit shall have presented the
documents required thereunder and whether or not the Bankers' Acceptance Loans
have matured) to be due and payable forthwith, whereupon the same shall
immediately become due and payable and (iii) the Collateral Agents may enforce
all of the Liens and security interests created by the respective Security
Documents.
In the case of all U.S. RCF Letters of Credit with respect to which
presentment for honor shall not have occurred at the time of an acceleration
pursuant to this paragraph, the applicable U.S. Borrower shall at such time
deposit in a cash collateral account opened by the U.S. Administrative Agent an
amount in immediately available funds equal to the aggregate then undrawn and
unexpired amount of such U.S. RCF Letters of Credit (and each U.S. Borrower
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hereby grants to the U.S. Collateral Agent, for the ratable benefit of the
applicable Secured Parties, a continuing security interest in all amounts at any
time on deposit in such cash collateral account to secure the undrawn and
unexpired amount of such U.S. RCF Letters of Credit and all other obligations
under the Loan Documents of the US Borrowers). In the case of all Canadian RCF
Letters of Credit with respect to which presentment for honor shall not have
occurred at the time of an acceleration pursuant to this paragraph, the
applicable Canadian Borrower shall at such time deposit in a cash collateral
account opened by the applicable Agent an amount in immediately available funds
equal to the aggregate then undrawn and unexpired amount of such Canadian RCF
Letters of Credit (and the Canadian Borrowers hereby grant to the Canadian
Collateral Agent, for the ratable benefit of the applicable Secured Parties, a
continuing security interest in all amounts at any time on deposit in such cash
collateral account to secure the undrawn and unexpired amount of such Canadian
RCF Letters of Credit and all other obligations of such Canadian Borrowers under
the Loan Documents). If at any time the U.S. Administrative Agent or the
Canadian Administrative Agent, as applicable, determines that any funds held in
any such cash collateral account are subject to any right or claim of any Person
other than the U.S. Collateral Agent or the Canadian Collateral Agent, as
applicable, and the applicable Secured Parties, or that the total amount of such
funds is less than the aggregate undrawn and unexpired amount of outstanding
U.S. RCF Letters of Credit or Canadian RCF Letters of Credit, as applicable, the
applicable Borrowers, shall, forthwith upon demand by the U.S. Administrative
Agent or the Canadian Administrative Agent, as applicable, pay to the U.S.
Administrative Agent or the Canadian Administrative Agent, as applicable, as
additional funds to be deposited and held in such cash collateral account, an
amount equal to the excess of (a) such aggregate undrawn and unexpired amount
over (b) the total amount of funds, if any, then held in such cash collateral
account that the U.S. Administrative Agent or the Canadian Administrative Agent,
as applicable, determines to be free and clear of any such right and claim.
Amounts held in any such cash collateral account with respect to U.S. RCF
Letters of Credit shall be applied by the U.S. Administrative Agent to the
payment of drafts drawn under such U.S. RCF Letters of Credit, and the unused
portion thereof after all such U.S. RCF Letters of Credit shall have expired or
been fully drawn upon, if any, shall be applied to repay other obligations of
the Loan Parties hereunder and under the other Loan Documents. Amounts held in
any such cash collateral account with respect to Canadian RCF Letters of Credit
shall be applied by the applicable Agent to the payment of drafts drawn under
such Canadian RCF Letters of Credit, and the unused portion thereof after all
such Canadian RCF Letters of Credit shall have expired or been fully drawn upon,
if any, shall be applied to repay other obligations of the Loan Parties
hereunder and under the other Loan Documents. After all such Letters of Credit
shall have expired or been fully drawn upon, all Reimbursement Obligations shall
have been satisfied and all other obligations of the Loan Parties hereunder and
under the other Loan Documents shall have been paid in full, the balance, if
any, in such cash collateral account shall be returned to the applicable
Borrower (or such other Person as may be lawfully entitled thereto).
Notwithstanding anything to the contrary in this Agreement or any other Loan
Document, no Lender in its capacity as a Secured Party or as beneficiary of any
security granted pursuant to the Security Documents shall have any right to
exercise remedies in respect of such security without the prior written consent
of the Required Lenders.
Except as expressly provided above in this Section 9.1, presentment,
demand, protest and all other notices of any kind are hereby expressly waived.
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Section 10. The Agents And The Lead Arrangers.
10.1 Appointment. (a) Each Lender hereby irrevocably designates and
appoints the Agents as the agents of such Lender under this Agreement and the
other Loan Documents, and each such Lender irrevocably authorizes each agent, in
such capacity, to take such action on its behalf under the provisions of this
Agreement and the other Loan Documents and to exercise such powers and perform
such duties as are expressly delegated to or required of such Agent by the terms
of this Agreement and the other Loan Documents, together with such other powers
as are reasonably incidental thereto. Notwithstanding any provision to the
contrary elsewhere in this Agreement, the Agents and the Lead Arrangers shall
not have any duties or responsibilities, except, in the case of each
Administrative Agent, each Collateral Agent and the Issuing Lender, those
expressly set forth herein, or any fiduciary relationship with any Lender, and
no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist against any Agent or the Lead Arrangers. Each of the Agents may
perform any of their respective duties under this Agreement, the other Loan
Documents and any other instruments and agreements referred to herein or therein
by or through its respective officers, directors, agents, employees or
affiliates (it being understood and agreed, for avoidance of doubt and without
limiting the generality of the foregoing, that the U.S. Administrative Agent,
the U.S. Collateral Agent, the Canadian Administrative Agent and the Canadian
Collateral Agent may perform any of their respective duties under the Security
Documents by or through one or more of their respective affiliates).
(b) For greater certainty, and without limiting the powers of the
Agents or any other Person acting as an agent, attorney-in-fact or mandatory for
the Agents under this Agreement or under any of the Loan Documents, each Lender
(for itself and for all other Secured Parties that are Affiliates of such
Lender) and each Agent hereby (i) irrevocably appoints and constitutes (to the
extent necessary) and confirms the constitution of (to the extent necessary),
the Canadian Collateral Agent as the holder of an irrevocable power of attorney
(in such capacity, the "fonde de pouvoir") within the meaning of Article 2692 of
the Civil Code of Quebec for the purposes of entering and holding on their
behalf, and for their benefit, any Liens, including hypothecs ("Hypothecs"),
granted or to be granted by any Loan Party on movable or immovable property
pursuant to the laws of the Province of Quebec to secure obligations of any Loan
Party under any bond issued by any Loan Party and exercising such powers and
duties which are conferred upon the Canadian Collateral Agent in its capacity as
fonde de pouvoir under any of the Hypothecs; and (ii) appoints (and confirms the
appointment of) and agrees that the Canadian Administrative Agent, acting as
agent for the applicable Secured Parties, may act as the custodian, registered
holder and mandatory (in such capacity, the "Custodian") with respect to any
bond that may be issued and pledged from time to time for the benefit of the
applicable Secured Parties. Each applicable Secured Party shall be entitled to
the benefits of any charged property covered by any of the Hypothecs and will
participate in the proceeds of realization of any such charged property, the
whole in accordance with the terms thereof.
(c) The said constitution of the Canadian Collateral Agent as fonde de
pouvoir (within the meaning of Article 2692 of the Civil Code of Quebec) and of
the Canadian Administrative Agent as Custodian with respect to any bond that may
be issued and pledged by any Loan Party from time to time for the benefit of the
applicable Secured Parties shall be
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deemed to have been ratified and confirmed by any Assignee by the execution of
an Assignment and Acceptance.
(d) Notwithstanding the provisions of Section 32 of An Act Respecting
the Special Powers of Legal Persons (Quebec), each Administrative Agent and each
Collateral Agent may purchase, acquire and be the holder of any bond issued by
any Loan Party. Each of the Loan Parties hereby acknowledges that any such bond
shall constitute a title of indebtedness, as such term is used in Article 2692
of the Civil Code of Quebec.
(e) The Canadian Collateral Agent herein appointed as fonde de pouvoir
and Custodian shall have the same rights, powers and immunities as the Agents as
stipulated in this Section 10 of the Credit Agreement, which shall apply mutatis
mutandis. Without limiting the effect of the preceding provisions of this clause
(e), the provisions of subsection 9.9 shall apply mutatis mutandis to the
resignation and appointment of a successor to the Canadian Collateral Agent
acting as fonde de pouvoir and Custodian.
10.2 Delegation of Duties. In performing its functions and duties
under this Agreement, each Agent shall act solely as agent for the Lenders and,
as applicable, the other Secured Parties, and no Agent assumes any (and shall
not be deemed to have assumed any) obligation or relationship of agency or trust
with or for Holdings or any of its Subsidiaries. Each Agent may execute any of
its duties under this Agreement and the other Loan Documents by or through
agents or attorneys-in-fact (including, without limitation, the Canadian
Administrative Agent in the case of the U.S. Administrative Agent and the U.S.
Administrative Agent in the case of the Canadian Administrative Agent, the
Canadian Collateral Agent in the case of the U.S. Collateral Agent, the U.S.
Collateral Agent in the case of the Canadian Collateral Agent, the U.S.
Collateral Agent in the case of the U.S. Administrative Agent and the Canadian
Collateral Agent in the case of the Canadian Administrative Agent), and shall be
entitled to advice of counsel concerning all matters pertaining to such duties.
No Agent shall be responsible for the negligence or misconduct of any agents or
attorneys-in-fact or counsel selected by it with reasonable care.
10.3 Exculpatory Provisions. No Agent, Lead Arranger or any of their
respective officers, directors, employees, agents, attorneys-in-fact or
Affiliates shall be (a) liable for any action taken or omitted to be taken by
such Person under or in connection with this Agreement or any other Loan
Document (except for the gross negligence or willful misconduct of such Person
or any of its officers, directors, employees, agents, attorneys-in-fact or
Affiliates (as determined in a final non-appealable decision issued by a court
of competent jurisdiction)) or (b) responsible in any manner to any of the
Lenders for (i) any recitals, statements, representations or warranties made by
any Credit Agreement Party or any other Loan Party or any officer thereof
contained in this Agreement or any other Loan Document or in any certificate,
report, statement or other document referred to or provided for in, or received
by the Agents or any Lead Arranger under or in connection with, this Agreement
or any other Loan Document, (ii) for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any Notes or any
other Loan Document, (iii) for any failure of any Credit Agreement Party or any
other Loan Party to perform its obligations hereunder or under any other Loan
Document, (iv) the performance or observance of any of the terms, provisions or
conditions of this Agreement or any other Loan Document, (v) the satisfaction of
any of the conditions
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precedent set forth in Section 6, or (vi) the existence or possible existence of
any Default or Event of Default. Neither the Agents nor any Lead Arranger shall
be under any obligation to any Lender to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or conditions
of, this Agreement or any other Loan Document, or to inspect the properties,
books or records of any Credit Agreement Party or any other Loan Party. Each
Lender agrees that, except for notices, reports and other documents expressly
required to be furnished to the Lenders by either Administrative Agent hereunder
or given to the Agents for the account of or with copies for the Lenders, the
Agents and the Lead Arrangers shall not have any duty or responsibility to
provide any Lender with any credit or other information concerning the business,
operations, property, condition (financial or otherwise), prospects or
creditworthiness of Holdings, any Borrower or any other Loan Party which may
come into the possession of the Agents and the Lead Arrangers or any of their
respective officers, directors, employees, agents, attorneys-in-fact or
Affiliates.
10.4 Reliance by Agents. Each Agent shall be entitled to rely, and
shall be fully protected (and shall have no liability to any Person) in relying,
upon any writing, resolution, notice, consent, certificate, affidavit, letter,
telecopy, telex or teletype message, statement, order or other document or
conversation believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons and upon advice and statements of
legal counsel (including counsel to any Credit Agreement Party), independent
accountants and other experts selected by each Agent. The Agents may deem and
treat the payee of any Note as the owner thereof for all purposes unless such
Note shall have been transferred in accordance with subsection 11.6 and all
actions required by such Section in connection with such transfer shall have
been taken. Any request, authority or consent of any Person or entity who, at
the time of making such request or giving such authority or consent, is the
holder of any Note shall be conclusive and binding on any subsequent holder,
transferee, assignee or endorsee, as the case may be, of such Note or of any
Note or Notes issued in exchange therefor. Each Agent shall be fully justified
as between itself and the Lenders in failing or refusing to take any action
under this Agreement or any other Loan Document unless it shall first receive
such advice or concurrence of the Required Lenders and/or such other requisite
percentage of the Lenders as is required pursuant to subsection 11.1(a) as it
deems appropriate or it shall first be indemnified to its satisfaction by the
Lenders against any and all liability and expense which may be incurred by it by
reason of taking or continuing to take any such action. Each Agent shall in all
cases be fully protected in acting, or in refraining from acting, under this
Agreement and any Notes and the other Loan Documents in accordance with a
request of the Required Lenders and/or such other requisite percentage of the
Lenders as is required pursuant to subsection 11.1(a), and such request and any
action taken or failure to act pursuant thereto shall be binding upon all the
Lenders and all future holders of the Loans.
10.5 Notice of Default. No Agent shall be deemed to have knowledge or
notice of the occurrence of any Default or Event of Default hereunder unless the
U.S. Administrative Agent has received notice from a Lender or any Credit
Agreement Party referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default". In the event that
the U.S. Administrative Agent receives such a notice, the U.S. Administrative
Agent shall give prompt notice thereof to the Lenders. The Agents shall take
such action reasonably promptly with respect to such Default or Event of Default
as shall be directed by the Required Lenders and/or such other requisite
percentage of the Lenders as is
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required pursuant to subsection 11.1 (a); provided that unless and until the
Agents shall have received such directions, the Agents may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default or Event of Default as it shall deem advisable in the best
interests of the Lenders.
10.6 Acknowledgements and Representations by Lenders. Each Lender
expressly acknowledges that none of the Agents or the Lead Arrangers nor any of
their officers, directors, employees, agents, attorneys-in-fact or Affiliates
has made any representations or warranties to it and that no act by any Agent or
any Lead Arranger hereafter taken, including any review of the affairs of any
Credit Agreement Party or any other Loan Party, shall be deemed to constitute
any representation or warranty by such Agent or such Lead Arranger to any
Lender. Each Lender represents to the Agents, the Lead Arrangers and each of the
Loan Parties that, independently and without reliance upon the any Agent, the
Lead Arrangers or any other Lender, and based on such documents and information
as it has deemed appropriate, it has made and will make, its own appraisal of
and investigation into the business, operations, property, financial and other
condition and creditworthiness of Holdings and its Subsidiaries, it has made its
own decision to make its Loans hereunder and enter into this Agreement and it
will make its own decisions in taking or not taking any action under this
Agreement and the other Loan Documents and, except as expressly provided in this
Agreement, neither the Agents nor any Lead Arranger shall have any duty or
responsibility, either initially or on a continuing basis, to provide any Lender
or the holder of any Note with any credit or other information with respect
thereto, whether coming into its possession before the making of the Loans or at
any time or times thereafter. Each Lender represents to each other party hereto
that it is a bank, savings and loan association or other similar savings
institution, insurance company, investment fund or company or other financial
institution which makes or acquires commercial loans in the ordinary course of
its business, that it is participating hereunder as a Lender for such commercial
purposes, and that it has the knowledge and experience to be and is capable of
evaluating the merits and risks of being a Lender hereunder. Each Lender
acknowledges and agrees to comply with the provisions of subsection 11.6
applicable to the Lenders hereunder.
10.7 Indemnification. (a) The Lenders agree to indemnify each Agent
(or any Affiliate thereof) (to the extent not reimbursed by any Borrower or any
other Loan Party and without limiting the joint and several obligations of the
U.S. Borrower or the Canadian Borrowers, as the case may be, to do so), ratably
according to their respective "percentage" as used in determining the Required
Lenders (determined as if there were no Defaulting Lenders) in effect on the
date on which indemnification is sought under this subsection, from and against
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind whatsoever which
may at any time (including at any time following the payment of the Loans and/or
all other amounts payable hereunder) be imposed on, incurred by or asserted
against such Agent (or any Affiliate thereof) in any way relating to or arising
out of this Agreement, any of the other Loan Documents or the transactions
contemplated hereby or thereby or any action taken or omitted by any Agent (or
any Affiliate thereof) under or in connection with any of the foregoing;
provided that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements to the extent arising from such Agent's gross
negligence or willful misconduct (as determined in a final non-appealable
decision issued by a court of competent jurisdiction). The obligations to
indemnify the Issuing Lender and Swing Line
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Lender shall be ratable among the RCF Lenders in accordance with their
respective RCF Commitments (or, if the RCF Commitments have been terminated, the
outstanding principal amount of their respective RCF Loans and L/C Obligations
and their respective participating interests in the outstanding Letters of
Credit and shall be payable only by the RCF Lenders). The agreements in this
subsection shall survive the payment of the Loans and all other amounts payable
hereunder.
(b) Any Agent shall be fully justified in failing or refusing to take
any action hereunder and under any other Loan Document (except actions expressly
required to be taken by it hereunder or under the Loan Documents) unless it
shall first be indemnified to its satisfaction by the Lenders pro rata against
any and all liability, cost and expense that it may incur by reason of taking or
continuing to take any such action.
(c) The agreements in this subsection 10.7 shall survive the payment
of all Borrower Obligations (as defined in the U.S. Guarantee and Collateral
Agreement) and Guarantor Obligations.
10.8 Agents and Lead Arrangers in Their Individual Capacity. Each
Agent, the Lead Arrangers and their Affiliates may make loans to, accept
deposits from and generally engage in any kind of business with any Credit
Agreement Party or any other Loan Party as though such Agent and the Lead
Arrangers were not an Agent or an Lead Arranger hereunder and under the other
Loan Documents. With respect to Loans made or renewed by them and any Note
issued to them and with respect to any Letter of Credit issued or participated
in by them, each Agent and the Lead Arrangers shall have the same rights and
powers under this Agreement and the other Loan Documents as any Lender and may
exercise the same as though they were not an Agent or an Lead Arranger, and the
terms "Lender" and "Lenders" shall include the Agents and the Lead Arrangers in
their individual capacities.
10.9 Collateral Matters. (a) Each Lender authorizes and directs the
U.S. Collateral Agent to enter into the Security Documents and the Intercreditor
Agreement for the benefit of the Lenders and the other Secured Parties. Each
Lender hereby agrees, and each holder of any Note or participant in Letters of
Credit by the acceptance thereof will be deemed to agree, that, except as
otherwise set forth herein, any action taken by the U.S. Collateral Agent or the
Required Lenders in accordance with the provisions of this Agreement, the
Security Documents or the Intercreditor Agreement, and the exercise by the
Agents or the Required Lenders of the powers set forth herein or therein,
together with such other powers as are reasonably incidental thereto, shall be
authorized and binding upon all of the Lenders. The U.S. Collateral Agent is
hereby authorized on behalf of all of the Lenders, without the necessity of any
notice to or further consent from any Lender, from time to time, to take any
action with respect to any Collateral or Security Documents which may be
necessary to perfect and maintain perfected the security interest in and liens
upon the Collateral granted pursuant to the Security Documents.
(b) The Lenders hereby authorize the applicable Administrative Agent
and Collateral Agent, in each case at its option and in its discretion, to
release any Lien granted to or held by such Agent upon any Collateral (i) upon
termination of the Commitments and payment and satisfaction of all of the
obligations under the Loan Documents at any time arising under or
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in respect of this Agreement or the Loan Documents or the transactions
contemplated hereby or thereby, (ii) constituting property being sold or
otherwise disposed of (to Persons other than a Loan Party) upon the sale or
other disposition thereof in compliance with subsection 8.6, (iii) if approved,
authorized or ratified in writing by the Required Lenders (or such greater
amount, to the extent required by subsection 11.1) or (iv) as otherwise may be
expressly provided in the relevant Security Documents. Upon request by the U.S.
Administrative Agent, the U.S. Collateral Agent, the Canadian Administrative
Agent or the Canadian Collateral Agent, at any time, the Lenders will confirm in
writing such Agent's authority to release particular types or items of
Collateral pursuant to this subsection 10.9.
(c) No Agent shall have any obligation whatsoever to the Lenders to
assure that the Collateral exists or is owned by Holdings or any of its
Subsidiaries or is cared for, protected or insured or that the Liens granted to
any Agent herein or pursuant hereto have been properly or sufficiently or
lawfully created, perfected, protected or enforced or are entitled to any
particular priority, or to exercise or to continue exercising at all or in any
manner or under any duty of care, disclosure or fidelity any of the rights,
authorities and powers granted or available to the Agents in this subsection
10.9 or in any of the Security Documents, it being understood and agreed that in
respect of the Collateral, or any act, omission or event related thereto, each
Agent may act in any manner it may deem appropriate, in its sole discretion,
given such Agent's own interest in the Collateral as Lender and that no Agent
shall have any duty or liability whatsoever to the Lenders, except for its gross
negligence or willful misconduct (as determined in a final non-appealable
decision issued by a court of competent jurisdiction).
(d) The U.S. Collateral Agent may, and hereby does, appoint the U.S.
Administrative Agent as its agent for the purposes of holding any Collateral
and/or perfecting the U.S. Collateral Agent's security interest therein and for
the purpose of taking such other action with respect to the collateral as such
Agents may from time to time agree. The Canadian Collateral Agent may, and
hereby does, appoint the Canadian Administrative Agent as its agent for the
purposes of holding any Collateral and/or perfecting the Canadian Collateral
Agent's security interest therein and for the purpose of taking such other
action with respect to the collateral as such Agents may from time to time
agree.
10.10 Successor Agent. (a) Each Administrative Agent may resign from
the performance of all its respective functions and duties hereunder and/or
under the other Loan Documents at any time by giving 30 days' prior written
notice to the Lenders and the Parent Borrower. Any such resignation by an
Administrative Agent hereunder shall also constitute its resignation as
Collateral Agent, if applicable. Such resignation shall take effect upon the
appointment of a successor Administrative Agent and Collateral Agent, if
applicable, pursuant to clauses (b) and (c) below or as otherwise provided
below.
(b) Upon any such notice of resignation by an Administrative Agent,
the Required Lenders shall appoint a successor Administrative Agent and
Collateral Agent, if applicable, hereunder or thereunder who shall be a
commercial bank or trust company reasonably acceptable to the Borrowers, which
acceptance shall not be unreasonably withheld or delayed (provided that the
Borrowers' approval shall not be required if an Event of Default then exists).
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(c) If a successor Administrative Agent and Collateral Agent, if
applicable, shall not have been so appointed within such 30 day period, such
Administrative Agent, with the consent of the Borrowers (which consent shall not
be unreasonably withheld or delayed, provided that the Borrowers' consent shall
not be required if an Event of Default then exists), shall then appoint a
successor Administrative Agent and Collateral Agent, if applicable, who shall
serve as the U.S. Administrative Agent or Canadian Administrative Agent, as the
case may be, and U.S. Collateral Agent or Canadian Collateral Agent, if
applicable, hereunder or thereunder until such time, if any, as the Required
Lenders appoint a successor U.S. Administrative Agent or Canadian Administrative
Agent, as the case may be, and U.S. Collateral Agent or Canadian Collateral
Agent, if applicable, as provided above.
(d) If no successor Administrative Agent has been appointed pursuant
to clause (b) or (c) above by the 15th day after the date such notice of
resignation was given by any Administrative Agent, such Administrative Agent's
resignation shall become effective and the Required Lenders shall thereafter
perform all the duties of the U.S. Administrative Agent or Canadian
Administrative Agent, as the case may be, hereunder and/or under any other Loan
Document until such time, if any, as the Required Lenders appoint a successor
U.S. Administrative Agent or Canadian Administrative Agent, as the case may be,
as provided above.
(e) Upon a resignation of any Administrative Agent pursuant to this
subsection 10.10, such Administrative Agent shall remain indemnified to the
extent provided in this Agreement and the other Loan Documents and the
provisions of this Section 10 (and the analogous provisions of the other Loan
Documents) shall continue in effect for the benefit of such Administrative Agent
for all of its actions and inactions while serving as such Administrative Agent.
10.11 Lead Arrangers and Syndication Agent. Neither the Syndication
Agent, nor any of the entities identified as joint bookrunners and joint lead
arrangers pursuant to the definition of Lead Arranger contained herein, shall
have any duties or responsibilities hereunder or under any other Loan Document
in its capacity as such.
10.12 Swing Line Lender. The provisions of this Section 10 shall apply
to the Swing Line Lender in its capacity as such to the same extent that such
provisions apply to the U.S. Administrative Agent.
10.13 Withholding Tax. To the extent required by any applicable law,
each Agent may withhold from any payment to any Lender an amount equivalent to
any applicable withholding tax, and in no event shall such Agent be required to
be responsible for or pay any additional amount with respect to any such
withholding. If the Internal Revenue Service or any other Governmental Authority
asserts a claim that any Agent did not properly withhold tax from amounts paid
to or for the account of any Lender because the appropriate form was not
delivered or was not properly executed or because such Lender failed to notify
such Agent of a change in circumstances which rendered the exemption from or
reduction of withholding tax ineffective or for any other reason, such Lender
shall indemnify such Agent fully for all amounts paid, directly or indirectly,
by such Agent as tax or otherwise, including any penalties or interest and
together with any expenses incurred.
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Section 11. Miscellaneous.
11.1 Amendments and Waivers. (a) Neither this Agreement nor any other
Loan Document, nor any terms hereof or thereof, may be amended, supplemented,
modified or waived except in accordance with the provisions of this subsection
11.1. The Required Lenders may, or, with the written consent of the Required
Lenders, the applicable Administrative Agent and the Collateral Agent may, from
time to time, (x) enter into with the respective Loan Parties hereto or thereto,
as the case may be, written amendments, supplements or modifications hereto and
to the other Loan Documents for the purpose of adding any provisions to this
Agreement or to the other Loan Documents or changing, in any manner the rights
or obligations of the Lenders or the Loan Parties hereunder or thereunder or (y)
waive at any Loan Party's request, on such terms and conditions as the Required
Lenders or the applicable Administrative Agent or the Collateral Agent, as the
case may be, may specify in such instrument, any of the requirements of this
Agreement or the other Loan Documents or any Default or Event of Default and its
consequences; provided, however, that no such waiver and no such amendment,
supplement or modification shall:
(i) reduce or forgive the amount or extend the scheduled date of
maturity of any Loan or any Reimbursement Obligation or of any scheduled
installment thereof or reduce the stated rate of any interest, commission
or fee payable hereunder (other than as a result of (i) any waiver of the
applicability of any post-default increase in interest rates or (ii) an
amendment or modification to the financial definitions in this Agreement)
or extend the scheduled date of any payment thereof or increase the amount
or extend the expiration date of any Lender's Commitment or change the
currency in which any Loan or Reimbursement Obligation is payable, in each
case without the consent of each Lender directly affected thereby (it being
understood that waivers or modifications of conditions precedent,
covenants, Defaults or Events of Default or of a mandatory reduction in the
aggregate Commitment of all Lenders shall not constitute an increase of the
Commitment of any Lender, and that an increase in the available portion of
any Commitment of any Lender shall not constitute an increase in the
Commitment of such Lender);
(ii) amend, modify or waive any provision of this subsection 11.1(a)
or reduce the percentage specified in the definition of Required Lenders or
Supermajority Lenders, or consent to the assignment or transfer by any
Credit Agreement Party of any of its rights and obligations under this
Agreement or any of the other Loan Documents (other than pursuant to
subsection 8.5 or 11.6(a)), in each case without the written consent of all
the Lenders;
(iii) release any Guarantor under any Security Document, or, in the
aggregate (in a single transaction or a series of related transactions),
all or substantially all of the Collateral without the consent of all of
the Lenders, except as expressly permitted hereby or by any Security
Document (as such documents are in effect on the date hereof or, if later,
the date of execution and delivery thereof in accordance with the terms
hereof);
(iv) require any Lender to make Loans having an Interest Period of
longer than six months without the consent of such Lender;
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(v) amend, modify or waive any provision of Section 10 without the
written consent of the then Agents and of any Lead Arranger affected
thereby;
(vi) amend, modify or waive any provision of the Swing Line Note (if
any) or subsection 2.5 without the written consent of the Swing Line Lender
and each other Lender, if any, which holds, or is required to purchase, a
participation in any Swing Line Loan pursuant to subsection 2.5(d);
(vii) amend, modify or waive (x) any provision of Section 3 without
the consent of each Issuing Lender or (y) the provisions of any Letter of
Credit or any L/C Obligation without the written consent of the Issuing
Lender with respect thereto and each affected L/C Participant;
(viii) increase the advance rates set forth in the definition of
Canadian Borrowing Base or U.S. Borrowing Base, or make any change to the
definition of "Borrowing Base" (by adding additional categories or
components thereof), "Eligible Accounts", "Eligible Rental Fleet",
"Eligible Inventory", "Eligible Unbilled Accounts" or "Net Orderly
Liquidation Value" that would have the effect of increasing the amount of
the Canadian Borrowing Base or the U.S. Borrowing Base, reduce the Dollar
amount set forth in the definition of "Dominion Event" or "Liquidity
Event", or increase the maximum amount of permitted Agent Advances under
subsection 2.2(d) (which, when aggregated with all other Extensions of
Credit made hereunder, shall under no circumstance exceed the aggregate RCF
Commitments) in each case, without the written consent of the Supermajority
Lenders;
(ix) amend, modify or waive the order of application of payments set
forth in the last sentence of subsection 4.4(a), 4.4(e), 4.8(a) or 4.16(e)
hereof, in each case without the consent of the Supermajority Lenders; or
(x) amend, modify or waive the order of application of payments set
forth in Section 4 of the Intercreditor Agreement without the consent of
each Lender;
provided, further, that, notwithstanding and in addition to the foregoing, each
Collateral Agent may, in its discretion, release the Lien on Collateral valued
in the aggregate not in excess of $10,000,000 in any fiscal year without the
consent of any Lender.
(b) Any waiver and any amendment, supplement or modification pursuant
to this subsection 11.1 shall apply to each of the Lenders and shall be binding
upon the Loan Parties, the Lenders, the Agents and all future holders of the
Loans. In the case of any waiver, each of the Loan Parties, the Lenders and the
Agents shall be restored to their former position and rights hereunder and under
the other Loan Documents, and any Default or Event of Default waived shall be
deemed to be cured and not continuing; but no such waiver shall extend to any
subsequent or other Default or Event of Default, or impair any right consequent
thereon.
(c) Notwithstanding any provision herein to the contrary, this
Agreement may be amended (or amended and restated) with the written consent of
the Required Lenders, the U.S. Administrative Agent and the Credit Agreement
Parties (x) to add one or more additional credit facilities to this Agreement
and to permit the extensions of credit from time to time
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outstanding thereunder and the accrued interest and fees in respect thereof to
share ratably in the benefits of this Agreement and the other Loan Documents
with the existing Facilities and the accrued interest and fees in respect
thereof; provided that any Indebtedness owing pursuant to each such additional
facility shall be included in the Availability Reserves against the U.S.
Borrowing Base and/or the Canadian Borrowing Base, as applicable, (y) to
include, as appropriate, the Lenders holding such credit facilities in any
required vote or action of the Required Lenders or of the Lenders of each
Facility hereunder and (z) to provide class protection for any additional credit
facilities in a manner consistent with those provided the original Facilities
pursuant to the provisions of subsection 11.1(a) as originally in effect.
(d) If, in connection with any proposed change, waiver, discharge or
termination of or to any of the provisions of this Agreement and/or any other
Loan Document as contemplated by subsection 11.1(a), the consent of each Lender
or each affected Lender, as applicable, is required and the consent of the
Required Lenders at such time is obtained but the consent of one or more of such
other Lenders whose consent is required is not obtained (each such other Lender,
a "Non-Consenting Lender") then the Parent Borrower may, on ten Business Days'
prior written notice to the Administrative and the Non-Consenting Lender,
replace such Non-Consenting Lender by causing such Lender to (and such Lender
shall be obligated to) assign pursuant to Section 11.6 (with the assignment fee
and any other costs and expenses to be paid by the Parent Borrower in such
instance) all of its rights and obligations under this Agreement to one or more
assignees; provided that neither the U.S. Administrative Agent nor any Lender
shall have any obligation to the Parent Borrower to find a replacement Lender;
provided, further, that the applicable assignee shall have agreed to the
applicable change, waiver, discharge or termination of this Agreement and/or the
other Loan Documents; and provided, further, that all obligations of the
Borrowers owing to the Non-Consenting Lender relating to the Loans and
participations so assigned shall be paid in full by the assignee Lender to such
Non-Consenting Lender concurrently with such Assignment and Acceptance. In
connection with any such replacement under this subsection 11.1(d), if the
Non-Consenting Lender does not execute and deliver to the U.S. Administrative
Agent a duly completed Assignment and Acceptance and/or any other documentation
necessary to reflect such replacement within a period of time deemed reasonable
by the U.S. Administrative Agent after the later of (a) the date on which the
replacement Lender executes and delivers such Assignment and Acceptance and/or
such other documentation and (b) the date as of which all obligations of the
Borrowers owing to the Non-Consenting Lender relating to the Loans and
participations so assigned shall be paid in full by the assignee Lender to such
Non-Consenting Lender, then such Non-Consenting Lender shall be deemed to have
executed and delivered such Assignment and Acceptance and/or such other
documentation as of such date and the Parent Borrower shall be entitled (but not
obligated) to execute and deliver such Assignment and Acceptance and/or such
other documentation on behalf of such Non-Consenting Lender.
11.2 Notices. (a) All notices, requests, and demands to or upon the
respective parties hereto to be effective shall be in writing (including
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered by hand, or three days after being
deposited in the mail, postage prepaid, or, in the case of telecopy notice, when
received, or, in the case of delivery by a nationally recognized overnight
courier, when received, addressed as follows in the case of any Credit Agreement
Party, the U.S. Administrative Agent, the Canadian Administrative Agent, the
U.S. Collateral Agent and the
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Canadian Collateral Agent, and as set forth in Schedule A in the case of the
other parties hereto, or to such other address as may be hereafter notified by
the respective parties hereto and any future holders of the Loans:
The Credit Agreement RSC Equipment Rental
Parties/Canadian Xxxxx: 0000 Xxxx Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxxxx, Vice President and Treasurer
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
with copies to: Ripplewood Holdings, L.L.C.
0 Xxxxxxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxxxx X. Xxxxxxxxx, Esq.
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Oak Hill Capital Management, L.L.C.
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Debevoise & Xxxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxxxx, Esq.
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
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The U.S. Administrative Agent/ Deutsche Bank AG, New York Branch
the U.S. Collateral Agent: 00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxxx Xxxxxx
Facsimile: (000) 000-0000
Telephone: (000)000-0000
The Canadian Administrative Agent/ Deutsche Bank AG, Canada Branch
Canadian Collateral Agent: 000 Xxx Xxxxxx, Xxxxx 0000
Xxxxxxxx Xxxxx Xxxx, Xxx 000
Xxxxxxx, Xxxxxxx X0X 0X0
Attention: Xxxxxxxxx Xxxxx
Assistant Vice President
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
provided that any notice, request or demand to or upon the U.S. Administrative
Agent or the Lenders pursuant to subsection 2.3, 3.2, 4.2, 4.4 or 4.8 shall not
be effective until received.
(b) Without in any way limiting the obligation of any Loan Party and
its Subsidiaries to confirm in writing any telephonic notice permitted to be
given hereunder, the U.S. Administrative Agent, the Swing Line Lender (in the
case of a Borrowing of Swing Line Loans) or any Issuing Lender (in the case of
the issuance of a Letter of Credit), as the case may be, may prior to receipt of
written confirmation act without liability upon the basis of such telephonic
notice, believed by the U.S. Administrative Agent, the Swing Line Lender or such
Issuing Lender in good faith to be from a Responsible Officer.
11.3 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of any Agent, any Lender or any Loan Party, any
right, remedy, power or privilege hereunder or under the other Loan Documents
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges herein provided are cumulative and
not exclusive of any rights, remedies, powers and privileges provided by law.
11.4 Survival of Representations and Warranties. All representations
and warranties made hereunder and in the other Loan Documents (or in any
amendment, modification or supplement hereto or thereto) and in any certificate
delivered pursuant hereto or such other Loan Documents shall survive the
execution and delivery of this Agreement and the making of the Loans hereunder.
11.5 Payment of Expenses and Taxes. Each Credit Agreement Party agrees
(a) to pay or reimburse the Agents and the Lead Arrangers for (1) all their
reasonable out-of-pocket costs and expenses incurred in connection with (i) the
syndication of the Facilities and the development, preparation, execution and
delivery of, and any amendment, supplement or modification to, this Agreement
and the other Loan Documents and any other documents prepared in connection
herewith or therewith, (ii) the consummation and administration of the
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transactions (including the syndication of the Term Loans and Commitments)
contemplated hereby and thereby and (iii) efforts to monitor the Loans and
verify, protect, evaluate, assess, appraise, collect, sell, liquidate or
otherwise dispose of any of the Collateral, and (2) (i) the reasonable fees and
disbursements of White & Case LLP and Stikeman Elliott LLP and such other
special or local counsel, consultants, advisors, appraisers and auditors whose
retention (other than during the continuance of an Event of Default) is approved
by the Parent Borrower, (b) to pay or reimburse each Lender, the Lead Arrangers
and the Agents for all their reasonable costs and expenses incurred in
connection with the enforcement or preservation of any rights under this
Agreement, the other Loan Documents and any other documents prepared in
connection herewith or therewith, including the fees and disbursements of
counsel to the Agents and the Lenders, (c) to pay, indemnify, or reimburse each
Lender, the Lead Arrangers and the Agents for, and hold each Lender, the Lead
Arrangers and the Agents harmless from, any and all recording and filing fees
and any and all liabilities with respect to, or resulting from any delay in
paying, stamp, excise and other similar taxes, if any, which may be payable or
determined to be payable in connection with the execution and delivery of, or
consummation or administration of any of the transactions contemplated by, or
any amendment, supplement or modification of, or any waiver or consent under or
in respect of, this Agreement, the other Loan Documents and any such other
documents, and (d) to pay, indemnify or reimburse each Lender, the Lead
Arrangers, each Agent, their respective affiliates, and their respective
officers, directors, trustees, employees, shareholders, members, attorneys and
other advisors, agents and controlling persons (each, an "Indemnitee") for, and
hold each Indemnitee harmless from and against, any and all other liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever with respect to the
execution, delivery, enforcement, performance and administration of this
Agreement, the other Loan Documents and any such other documents, including any
of the foregoing relating to the use of proceeds of the Loans or the violation
of, noncompliance with or liability under, any Environmental Law applicable to
the operations of Holdings or any of its Subsidiaries or any of the property of
Holdings or any of its Subsidiaries, including the presence of Materials of
Environmental Concern on, at, in or under such property or the migration of
Materials of Environmental Concern onto, through or from any such property (all
the foregoing in this clause (d), collectively, the "Indemnified Liabilities"),
provided that no Loan Party shall have any obligation hereunder to the U.S.
Administrative Agent, any other Agent or any Lender with respect to indemnified
liabilities arising from (i) the gross negligence or willful misconduct of the
U.S. Administrative Agent, any other Agent or any such Lender (or any of their
respective directors, trustees, officers, employees, agents, successors and
assigns) (in each case, as determined in a final non-appealable decision issued
by a court of competent jurisdiction) or (ii) claims made or legal proceedings
commenced against the U.S. Administrative Agent, any other Agent or any such
Lender by any security holder or creditor thereof arising out of and based upon
rights afforded any such security holder or creditor solely in its capacity as
such. No Indemnitee shall be liable for any consequential or punitive damages in
connection with the Facilities. All amounts due under this subsection shall be
payable not later than 30 days after written demand therefor. Statements
reflecting amounts payable by the Loan Parties pursuant to this subsection shall
be submitted to the address of the Parent Borrower set forth in subsection 11.2,
or to such other Person or address as may be hereafter designated by the Parent
Borrower in a notice to the U.S. Administrative Agent. Notwithstanding the
foregoing, except as provided in clauses (b) and (c) above, no Loan Party shall
have any obligation under this subsection 11.5
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to any Indemnitee with respect to any tax, levy, impost, duty, charge, fee,
deduction or withholding imposed, levied, collected, withheld or assessed by any
Governmental Authority. The agreements in this subsection 11.5 shall survive
repayment of the Loans and all other amounts payable hereunder.
11.6 Successors and Assigns; Participations and Assignments. (a) The
provisions of this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns permitted hereby
(including any Affiliate of the applicable Issuing Lender that issues any Letter
of Credit), except that (i) other than in accordance with subsection 8.5, none
of the Loan Parties may assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of each Lender (and any
attempted assignment or transfer by any Loan Party without such consent shall be
null and void) and (ii) no Lender may assign or otherwise transfer its rights or
obligations hereunder except in accordance with this subsection 11.6.
(b) (i) Subject to the conditions set forth in paragraph (b)(ii)
below, any Lender other than a Conduit Lender may assign to one or more
assignees (each, an "Assignee") all or a portion of its rights and obligations
under this Agreement (including its Commitment and/or Loans, pursuant to an
Assignment and Acceptance) with the prior written consent (such consent not to
be unreasonably withheld or delayed) of:
(A) the Parent Borrower, provided that no consent of the Parent
Borrower shall be required for an assignment to a Lender, an Affiliate of a
Lender, an Approved Fund or, if an Event of Default under subsection 9(a)
or (f) has occurred and is continuing, any other Person; provided, further,
that, unless an Event of Default under subsection 9(a) or (f) has occurred
and is continuing, if any Lender assigns all or a portion of its rights and
obligations under this Agreement to one of its affiliates in connection
with or in contemplation of the sale or other disposition of its interest
in such affiliate, the Parent Borrower's prior written consent shall be
required for such assignment; and
(B) the U.S. Administrative Agent, provided that no consent of the
U.S. Administrative Agent shall be required for an assignment to a Lender,
an affiliate of a Lender an Approved Fund.
(ii) Assignments shall be subject to the following additional
conditions:
(A) except in the case of an assignment to a Lender, an affiliate of a
Lender or an Approved Fund or an assignment of the entire remaining amount
of the assigning Lender's Commitments or Loans under any Facility, the
amount of the Commitments or Loans of the assigning Lender subject to each
such assignment (determined as of the date the Assignment and Acceptance
with respect to such assignment is delivered to the U.S. Administrative
Agent) shall not be less than (i) in the case of RCF Loans, $5,000,000 or
(ii) in the case of Term Loans, $1,000,000, unless the Parent Borrower and
the U.S. Administrative Agent otherwise consent, provided that (1) no such
consent of the Parent Borrower shall be required if an Event of Default
under subsection 9(a) or (f) has
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occurred and is continuing and (2) such amounts shall be aggregated in
respect of assignments by a Lender and its affiliates or Approved Funds, if
any;
(B) the parties to each assignment shall execute and deliver to the
U.S. Administrative Agent an Assignment and Acceptance, together with a
processing and recordation fee of $3,500; provided that for concurrent
assignments to two or more Approved Funds such assignment fee shall only be
required to be paid once in respect of and at the time of such assignments;
(C) the Assignee, if it shall not be a Lender, shall deliver to the
U.S. Administrative Agent an administrative questionnaire;
(D) no assignments may be made to any entities identified by the
Sponsors to the U.S. Administrative Agent in a separate writing prior to
the date hereof; and
(E) except at any time when (i) an Event of Default exists under
subsection 9(a) or (f) or (ii) the outstanding Obligations have been
accelerated in accordance with Section 9, any assignment made by a Canadian
RCF Lender of its Canadian RCF Commitment shall only be made to an assignee
with a Non-Canadian Affiliate.
(iii) Subject to acceptance and recording thereof pursuant to
paragraph (b)(iv) below, from and after the effective date specified in each
Assignment and Acceptance the Assignee thereunder shall be a party hereto and,
to the extent of the interest assigned by such Assignment and Acceptance, have
the rights and obligations of a Lender under this Agreement, and the assigning
Lender thereunder shall, to the extent of the interest assigned by such
Assignment and Acceptance, be released from its obligations under this Agreement
(and, in the case of an Assignment and Acceptance covering all of the assigning
Lender's rights and obligations under this Agreement, such Lender shall cease to
be a party hereto but shall continue to be entitled to the benefits of (and
bound by any related obligations under) subsections 4.10, 4.11, 4.12, 4.13, 4.15
and 11.5). Any assignment or transfer by a Lender of rights or obligations under
this Agreement that does not comply with this subsection 11.6 shall be treated
for purposes of this Agreement as a sale by such Lender of a participation in
such rights and obligations in accordance with paragraph (c) of this subsection.
(iv) The Borrowers hereby designate the U.S. Administrative Agent, and
the U.S. Administrative Agent agrees, to serve as the Borrowers' agent, solely
for purposes of this subsection 11.6, to maintain at one of its offices in New
York, New York a copy of each Assignment and Acceptance delivered to it and a
register for the recordation of the names and addresses of the Lenders, and the
Commitments of, and interest and principal amount of the Loans and L/C
Obligations owing to, each Lender pursuant to the terms hereof from time to time
(the "Register"). The entries in the Register shall be conclusive absent
manifest error, and the Borrowers, the U.S. Administrative Agent, the Issuing
Lender and the Lenders shall treat each Person whose name is recorded in the
Register pursuant to the terms hereof as a Lender hereunder for all purposes of
this Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Parent Borrower and any Lender, at any
reasonable time and from time to time upon reasonable prior notice.
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(v) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an Assignee, the Assignee's completed
administrative questionnaire (unless the Assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph
(b)(ii)(B) of this subsection and any written consent to such assignment
required by paragraph (b)(i) of this subsection, the U.S. Administrative Agent
shall accept such Assignment and Acceptance, record the information contained
therein in the Register and give prompt notice of such assignment and
recordation to the Parent Borrower. No assignment shall be effective for
purposes of this Agreement unless it has been recorded in the Register as
provided in this paragraph.
(vi) On or prior to the effective date of any assignment pursuant to
this subsection 11.6(b), the assigning Lender shall surrender any outstanding
Notes held by it all or a portion of which are being assigned. Any Notes
surrendered by the assigning Lender shall be returned by the U.S. Administrative
Agent to the Parent Borrower marked "cancelled".
Notwithstanding the foregoing, no Assignee, which as of the date of
any assignment to it pursuant to this subsection 11.6(b) would be entitled to
receive any greater payment under subsection 4.10, 4.11 or 11.5 than the
assigning Lender would have been entitled to receive as of such date under such
subsections with respect to the rights assigned, shall be entitled to receive
such greater payments unless the assignment was made after an Event of Default
under subsection 9(a) or (f) has occurred and is continuing or the Parent
Borrower has expressly consented in writing to waive the benefit of this
provision at the time of such assignment.
(c) (i) Any Lender other than a Conduit Lender may, in the ordinary
course of its business and in accordance with applicable law, without the
consent of the Parent Borrower or the U.S. Administrative Agent, sell
participations to one or more banks or other entities (a "Participant") in all
or a portion of such Lender's rights and obligations under this Agreement
(including all or a portion of its Commitments and the Loans owing to it);
provided that (A) such Lender's obligations under this Agreement shall remain
unchanged, (B) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations, (C) such Lender shall remain the
holder of any such Loan for all purposes under this Agreement and the other Loan
Documents, and (D) the Credit Agreement Parties, each Agent, the Issuing Lender
and the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement. Any agreement pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision
of this Agreement; provided that such agreement may provide that such Lender
will not, without the consent of the Participant, agree to any amendment,
modification or waiver that (1) requires the consent of each Lender directly
affected thereby pursuant to the proviso to the second sentence of subsection
11.1(a) and (2) directly affects such Participant. Subject to paragraph (c)(ii)
of this subsection, each Borrower agrees that each Participant shall be entitled
to the benefits of (and shall have the related obligations under) subsections
4.10, 4.11, 4.12, 4.13, 4.15 and 11.5 to the same extent as if it were a Lender
and had acquired its interest by assignment pursuant to paragraph (b) of this
subsection. To the extent permitted by law, each Participant also shall be
entitled to the benefits of subsection 11.7(b) as though it were a Lender,
provided that such Participant shall be subject to subsection 11.7(a) as though
it were a Lender.
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(ii) No Loan Party shall be obligated to make any greater payment
under subsection 4.10, 4.11 or 11.5 than it would have been obligated to make in
the absence of any participation, unless the sale of such participation is made
with the prior written consent of the Parent Borrower and the Parent Borrower
expressly waives the benefit of this provision at the time of such
participation. Any Participant that is not incorporated under the laws of the
United States of America or a state thereof shall not be entitled to the
benefits of subsection 4.11 unless such Participant complies with subsection
4.11(b) and provides the forms and certificates referenced therein to the Lender
that granted such participation.
(d) Any Lender, without the consent of the Parent Borrower or the U.S.
Administrative Agent, may at any time pledge or assign a security interest in
all or any portion of its rights under this Agreement to secure obligations of
such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank, and this subsection shall not apply to any such pledge or
assignment of a security interest; provided that no such pledge or assignment of
a security interest shall release a Lender from any of its obligations hereunder
or substitute (by foreclosure or otherwise) any such pledgee or assignee for
such Lender as a party hereto.
(e) No assignment or participation made or purported to be made to any
Assignee or Participant shall be effective without the prior written consent of
the Parent Borrower if it would require the Parent Borrower to make any filing
with any Governmental Authority or qualify any Loan or Note under the laws of
any jurisdiction, and the Parent Borrower shall be entitled to request and
receive such information and assurances as it may reasonably request from any
Lender or any Assignee or Participant to determine whether any such filing or
qualification is required or whether any assignment or participation is
otherwise in accordance with applicable law.
(f) Notwithstanding the foregoing, any Conduit Lender may assign any
or all of the Loans it may have funded hereunder to its designating Lender
without the consent of the Parent Borrower or the U.S. Administrative Agent and
without regard to the limitations set forth in subsection 11.6(b). Each
Borrower, each Lender and the U.S. Administrative Agent hereby confirms that it
will not institute against a Conduit Lender or join any other Person in
instituting against a Conduit Lender any domestic or foreign bankruptcy,
reorganization, arrangement, insolvency or liquidation proceeding under any
state, federal or provincial bankruptcy or similar law, for one year and one day
after the payment in full of the latest maturing commercial paper note issued by
such Conduit Lender; provided, however, that each Lender designating any Conduit
Lender hereby agrees to indemnify, save and hold harmless each other party
hereto for any loss, cost, damage or expense arising out of its inability to
institute such a proceeding against such Conduit Lender during such period of
forbearance. Each such indemnifying Lender shall pay in full any claim received
from the Parent Borrower pursuant to this subsection 11.6(f) within 30 Business
Days of receipt of a certificate from a Responsible Officer of the Parent
Borrower specifying in reasonable detail the cause and amount of the loss, cost,
damage or expense in respect of which the claim is being asserted, which
certificate shall be conclusive absent manifest error. Without limiting the
indemnification obligations of any indemnifying Lender pursuant to this
subsection 11.6(f), in the event that the indemnifying Lender fails timely to
compensate the Parent Borrower for such claim, any Loans held by the relevant
Conduit
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Lender shall, if requested by the Parent Borrower, be assigned promptly to the
Lender that administers the Conduit Lender and the designation of such Conduit
Lender shall be void.
(g) If the Parent Borrower wishes to replace the Loans or Commitments
under any Facility with ones having different terms, it shall have the option,
with the consent of the U.S. Administrative Agent and subject to at least three
Business Days' advance notice to the Lenders under such Facility, instead of
prepaying the Loans or reducing or terminating the Commitments to be replaced,
to (i) require the Lenders under such Facility to assign such Loans or
Commitments to the U.S. Administrative Agent or its designees and (ii) amend the
terms thereof in accordance with subsection 11.1. Pursuant to any such
assignment, all Loans and Commitments to be replaced shall be purchased at par
(allocated among the Lenders under such Facility in the same manner as would be
required if such Loans were being optionally prepaid or such Commitments were
being optionally reduced or terminated by the Borrowers), accompanied by payment
of any accrued interest and fees thereon and any amounts owing pursuant to
subsection 4.12. By receiving such purchase price, the Lenders under such
Facility shall automatically be deemed to have assigned the Loans or Commitments
under such Facility pursuant to the terms of the form of Assignment and
Acceptance, and accordingly no other action by such Lenders shall be required in
connection therewith. The provisions of this paragraph are intended to
facilitate the maintenance of the perfection and priority of existing security
interests in the Collateral during any such replacement.
11.7 Adjustments; Set-off; Calculations; Computations. (a) If any
Lender (a "Benefited Lender") shall at any time receive any payment of all or
part of its Loans or the Reimbursement Obligations owing to it, or interest
thereon, or receive any collateral in respect thereof (whether voluntarily or
involuntarily, by set-off, pursuant to events or proceedings of the nature
referred to in subsection 9(f), or otherwise (except pursuant to subsection 4.4,
4.13(d) or 11.6)), in a greater proportion than any such payment to or
collateral received by any other Lender, if any, in respect of such other
Lender's Loans or the Reimbursement Obligations, as the case may be, owing to
it, or interest thereon, such Benefited Lender shall purchase for cash from the
other Lenders an interest (by participation, assignment or otherwise) in such
portion of each such other Lender's Loans or the Reimbursement Obligations, as
the case may be, owing to it, or shall provide such other Lenders with the
benefits of any such collateral, or the proceeds thereof, as shall be necessary
to cause such Benefited Lender to share the excess payment or benefits of such
collateral or proceeds ratably with each of the other Lenders; provided,
however, that if all or any portion of such excess payment or benefits is
thereafter recovered from such Benefited Lender, such purchase shall be
rescinded, and the purchase price and benefits returned, to the extent of such
recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders provided by
law, each Lender shall have the right, without prior notice to any Borrower, any
such notice being expressly waived by each Borrower to the extent permitted by
applicable law, upon the occurrence of an Event of Default under subsection 9(a)
to set-off and appropriate and apply against any amount then due and payable
under subsection 9(a) by such Borrower any and all deposits (general or special,
time or demand, provisional or final), in any currency, and any other credits,
indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured, at any time held or
owing by such Lender or any Affiliate, branch or agency thereof to or for the
credit or the account of such Borrower. Each Lender
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agrees promptly to notify the Parent Borrower and the U.S. Administrative Agent
after any such set-off and application made by such Lender, provided that the
failure to give such notice shall not affect the validity of such set-off and
application.
11.8 Judgment Currency. (a) If, for the purpose of obtaining or
enforcing judgment against any Loan Party in any court in any jurisdiction, it
becomes necessary to convert into any other currency (such other currency being
hereinafter in this subsection 11.8 referred to as the "Judgment Currency") an
amount due under any Loan Document in any currency (the "Obligation Currency")
other than the Judgment Currency, the conversion shall be made at the rate of
exchange prevailing on the Business Day immediately preceding the date of actual
payment of the amount due, in the case of any proceeding in the courts of the
Province of Ontario or in the courts of any other jurisdiction that will give
effect to such conversion being made on such date, or the date on which the
judgment is given, in the case of any proceeding in the courts of any other
jurisdiction (the applicable date as of which such conversion is made pursuant
to this subsection 11.8 being hereinafter in this subsection 11.8 referred to as
the "Judgment Conversion Date").
(b) If, in the case of any proceeding in the court of any jurisdiction
referred to in subsection 11.8(a), there is a change in the rate of exchange
prevailing between the Judgment Conversion Date and the date of actual receipt
for value of the amount due, the applicable Loan Party shall pay such additional
amount (if any, but in any event not a lesser amount) as may be necessary to
ensure that the amount actually received in the Judgment Currency, when
converted at the rate of exchange prevailing on the date of payment, will
produce the amount of the Obligation Currency which could have been purchased
with the amount of the Judgment Currency stipulated in the judgment or judicial
order at the rate of exchange prevailing on the Judgment Conversion Date. Any
amount due from any Loan Party under this subsection 11.8(b) shall be due as a
separate debt and shall not be affected by judgment being obtained for any other
amounts due under or in respect of any of the Loan Documents.
(c) The term "rate of exchange" in this subsection 11.8 means the rate
of exchange at which the U.S. Administrative Agent, on the relevant date at or
about 12:00 noon (New York time), would be prepared to sell, in accordance with
its normal course foreign currency exchange practices, the Obligation Currency
against the Judgment Currency.
11.9 Counterparts. This Agreement may be executed by one or more of
the parties to this Agreement on any number of separate counterparts (including
by telecopy or other electronic transmission (i.e., pdf), and all of such
counterparts taken together shall be deemed to constitute one and the same
instrument. A set of the copies of this Agreement signed by all the parties
shall be delivered to the Parent Borrower and each Administrative Agent.
11.10 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
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11.11 Integration. This Agreement and the other Loan Documents
represent the entire agreement of each of the Loan Parties party hereto, the
Agents and the Lenders with respect to the subject matter hereof, and there are
no promises, undertakings, representations or warranties by any of the Loan
Parties party hereto, any Agent or any Lender relative to the subject matter
hereof not expressly set forth or referred to herein or in the other Loan
Documents.
11.12 GOVERNING LAW. THIS AGREEMENT AND ANY NOTES AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT AND ANY NOTES SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
NEW YORK.
11.13 Submission To Jurisdiction; Waivers. (a) Each party hereto
hereby irrevocably and unconditionally:
(i) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to which
it is a party, or for recognition and enforcement of any judgment in
respect thereof, to the non-exclusive general jurisdiction of the courts of
the State of New York, the courts of the United States of America located
in the county of New York, and appellate courts from any thereof;
(ii) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have to
the venue of any such action or proceeding in any such court or that such
action or proceeding was brought in an inconvenient forum and agrees not to
plead or claim the same;
(iii) agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail
(or any substantially similar form of mail), postage prepaid, to the
applicable Credit Agreement Party (or, in the case of any Canadian
Borrower, as specified in paragraph (b)), the applicable Lender or the U.S.
Administrative Agent, as the case may be, at the address specified in
subsection 11.2 or at such other address of which the U.S. Administrative
Agent, any such Lender or any such Borrower, as the case may be, shall have
been notified pursuant thereto;
(iv) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the
right to xxx in any other jurisdiction; and
(v) waives, to the maximum extent not prohibited by law, any right it
may have to claim or recover in any legal action or proceeding referred to
in this subsection any consequential or punitive damages.
(b) Each Canadian Borrower and Canadian Xxxxx hereby agree to
irrevocably and unconditionally appoint an agent for service of process located
in The City of New York (the "New York Process Agent"), reasonably satisfactory
to the U.S. Administrative Agent, as its agent to receive on behalf of such
Borrower and its property service of copies of the summons and complaint and any
other process which may be served in any action or proceeding in any
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such New York State or Federal court described in paragraph (a) of this
subsection and agrees promptly to appoint a successor New York Process Agent in
The City of New York (which successor New York Process Agent shall accept such
appointment in a writing reasonably satisfactory to the U.S. Administrative
Agent) prior to the termination for any reason of the appointment of the initial
New York Process Agent. CT Corporation System, a woltersKluwer Company, located
at 000 Xxxxxx Xxxxxx, 00xx Xxxxx; Xxx Xxxx, XX 00000; telephone: 000-000-0000;
facsimile: 000-000-0000, has been appointed as the initial New York Process
Agent. In any action or proceeding in New York State or Federal court, service
may be made on a Canadian Borrower or Canadian Xxxxx by delivering a copy of
such process to such Borrower in care of the New York Process Agent at the New
York Process Agent's address and by depositing a copy of such process in the
mails by certified or registered air mail, addressed to such Borrower at its
address specified in subsection 11.2 with (if applicable) a copy to the Parent
Borrower (such service to be effective upon such receipt by the New York Process
Agent and the depositing of such process in the mails as aforesaid). Each of the
Canadian Borrowers and Canadian Xxxxx hereby irrevocably and unconditionally
authorizes and directs the New York Process Agent to accept such service on its
behalf. As an alternate method of service, each of the Canadian Borrowers and
Canadian Xxxxx irrevocably and unconditionally consents to the service of any
and all process in any such action or proceeding in such New York State or
Federal court by mailing of copies of such process to such Borrower by certified
or registered air mail at its address specified in subsection 11.2. Each of the
Canadian Borrowers and Canadian Xxxxx agrees that, to the fullest extent
permitted by applicable law, a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law.
(c) To the extent that any Canadian Borrower or Canadian Xxxxx has or
hereafter may acquire any immunity (sovereign or otherwise) from any legal
action, suit or proceeding, from jurisdiction of any court or from set-off or
any legal process (whether service or notice, attachment prior to judgment,
attachment in aid of execution of judgment, execution of judgment or otherwise)
with respect to itself or any of its property, such Canadian Borrower or
Canadian Xxxxx, as the case may be, hereby irrevocably waives and agrees not to
plead or claim such immunity in respect of its obligations under this Agreement
and any Note.
11.14 Acknowledgments. Each Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Loan Documents;
(b) no Agent nor any Lead Arranger or any Lender has any fiduciary
relationship with or duty to any Loan Party arising out of or in connection
with this Agreement or any of the other Loan Documents, and the
relationship between the U.S. Administrative Agent and Lenders, on the one
hand, and the Loan Parties, on the other hand, in connection herewith or
therewith is solely that of creditor and debtor; and
(c) no joint venture is created hereby or by the other Loan Documents
or otherwise exists by virtue of the transactions contemplated hereby and
thereby among the Lenders or among any of the Loan Parties and the Lenders.
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11.15 WAIVER OF JURY TRIAL. EACH CREDIT AGREEMENT PARTY, AGENT AND
LENDER HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL
ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY NOTES OR ANY OTHER LOAN
DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
11.16 Confidentiality. Each Agent and each Lender agrees to keep
confidential any information (a) provided to it by or on behalf of Holdings, the
Parent Borrower, or any of their respective Subsidiaries pursuant to or in
connection with the Loan Documents or (b) obtained by such Lender based on a
review of the books and records of Holdings, the Parent Borrower or any of their
respective Subsidiaries; provided that nothing herein shall prevent any Lender
from disclosing any such information (i) to any Agent, any Lead Arranger or any
other Lender, (ii) to any Transferee, or prospective Transferee or any creditor
or any actual or prospective counterparty (or its advisors) to any swap or
derivative transaction relating to any Borrower and its obligations which agrees
to comply with the provisions of this subsection pursuant to a written
instrument (or electronically recorded customary agreement from any Person
listed above in this clause (ii), in respect to any electronic information
(whether posted or otherwise distributed on Intralinks or any other electronic
distribution system)) for the benefit of the Parent Borrower (it being
understood that each relevant Lender shall be solely responsible for obtaining
such instrument (or such electronically recorded agreement)), (iii) to its
affiliates and the employees, officers, directors, trustees, agents, attorneys,
accountants and other professional advisors of it and its affiliates, provided
that such Lender shall inform each such Person of the agreement under this
subsection 11.16 and take reasonable actions to cause compliance by any such
Person referred to in this clause (iii) with this agreement (including, where
appropriate, to cause any such Person to acknowledge its agreement to be bound
by the agreement under this subsection 11.16), (iv) upon the request or demand
of any Governmental Authority having jurisdiction over such Lender or its
affiliates or to the extent required in response to any order of any court or
other Governmental Authority or as shall otherwise be required pursuant to any
Requirement of Law, provided that unless (i) such disclosure is pursuant to an
examination or review of the type described in clause (vii) below or (ii) the
respective Lender is prohibited by any Requirement of Law, such Lender shall
notify the Parent Borrower of any disclosure pursuant to this clause (iv) as far
in advance as is reasonably practicable under such circumstances, (v) which has
been publicly disclosed other than in breach of this Agreement by the respective
Agent or Lender, (vi) in connection with the exercise of any remedy hereunder,
under any Loan Document or under any Interest Rate Protection Agreement, (vii)
in connection with regulatory examinations and reviews conducted by the National
Association of Insurance Commissioners or any Governmental Authority having
jurisdiction over such Lender or its affiliates (to the extent applicable),
(viii) in connection with any litigation to which such Lender (or, with respect
to any Interest Rate Protection Agreement, any affiliate of any Lender party
thereto) may be a party, subject to the proviso in clause (iv), and (ix) if,
prior to such information having been so provided or obtained, such information
was already in an Agent's or a Lender's possession on a non-confidential basis
without a duty of confidentiality to any Borrower being violated.
11.17 USA Patriot Act Notice. Each Lender hereby notifies each
Borrower that pursuant to the requirements of the USA Patriot Act (Title III of
Pub.: 107-56 (signed into law October 26, 2001)) (the "Patriot Act"), it is
required to obtain, verify, and record information that
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identifies such Borrower, which information includes the name of such Borrower
and other information that will allow such Lender to identify such Borrower in
accordance with the Patriot Act, and such Borrower agrees to provide such
information from time to time to any Lender.
11.18 INTERCREDITOR AGREEMENT. EACH LENDER PARTY HERETO UNDERSTANDS,
ACKNOWLEDGES AND AGREES THAT IT IS THE INTENTION OF THE PARTIES HERETO THAT THE
OBLIGATIONS ARE INTENDED TO CONSTITUTE A DISTINCT AND SEPARATE CLASS FROM THE
SECOND-LIEN OBLIGATIONS. EACH LENDER FURTHER UNDERSTANDS, ACKNOWLEDGES AND
AGREES THAT THE PROVISIONS SETTING FORTH THE PRIORITIES AS BETWEEN THE HOLDERS
OF SECOND-LIEN OBLIGATIONS ON THE ONE HAND, AND THE HOLDERS OF OBLIGATIONS
HEREUNDER, ON THE OTHER HAND, ARE SET FORTH IN THE INTERCREDITOR AGREEMENT.
(a) EACH LENDER AUTHORIZES AND INSTRUCTS THE COLLATERAL AGENTS AND THE
ADMINISTRATIVE AGENTS TO ENTER INTO THE SECURITY DOCUMENTS AND THE INTERCREDITOR
AGREEMENT) ON BEHALF OF THE LENDERS, AND TO TAKE ALL ACTIONS (AND EXECUTE ALL
DOCUMENTS) REQUIRED (OR DEEMED ADVISABLE) BY IT IN ACCORDANCE WITH THE TERMS OF
THE SECURITY DOCUMENTS AND THE INTERCREDITOR AGREEMENT.
(b) THE PROVISIONS OF THIS SUBSECTION 11.18 ARE NOT INTENDED TO
SUMMARIZE ALL RELEVANT PROVISIONS OF THE INTERCREDITOR AGREEMENT. REFERENCE MUST
BE MADE TO THE INTERCREDITOR AGREEMENT ITSELF TO UNDERSTAND ALL TERMS AND
CONDITIONS THEREOF. EACH LENDER IS RESPONSIBLE FOR MAKING ITS OWN ANALYSIS AND
REVIEW OF THE INTERCREDITOR AGREEMENT AND THE TERMS AND PROVISIONS THEREOF, AND
NEITHER THE ADMINISTRATIVE AGENT NOR THE COLLATERAL AGENT OR ANY OF ITS
RESPECTIVE AFFILIATES MAKES ANY REPRESENTATION TO ANY LENDER AS TO THE
SUFFICIENCY OR ADVISABILITY OF THE PROVISIONS CONTAINED IN THE INTERCREDITOR
AGREEMENT. EACH LENDER IS FURTHER AWARE THAT THE U.S. ADMINISTRATIVE AGENT AND
THE U.S. COLLATERAL AGENT ARE ALSO ACTING IN AN AGENCY CAPACITY PURSUANT TO THE
SECOND-LIEN TERM LOAN CREDIT AGREEMENT, AND EACH LENDER HEREBY IRREVOCABLY
WAIVES ANY OBJECTION THERETO OR CAUSE OF ACTION ARISING THEREFROM.
11.19 Special Provisions Regarding Pledges of Capital Stock in, and
Promissory Notes Owed by, Persons Not Organized in the U.S. or Canada. (a) To
the extent any Security Document requires or provides for the pledge of
promissory notes issued by, or Capital Stock in, any Person organized under the
laws of a jurisdiction outside the United States or Canada, it is acknowledged
that, as of the Closing Date, no actions have been required to be taken to
perfect, under local law of the jurisdiction of the Person who issued the
respective promissory notes or whose Capital Stock is pledged, under the
Security Documents.
(b) The Parent Borrower hereby agrees that, following any request by
the U.S. Administrative Agent or Required Lenders to do so, the Parent Borrower
shall, and shall cause its Subsidiaries to, take (to the extent they may
lawfully do so) such actions (including the
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making of any filings and the delivery of appropriate legal opinions) under the
local law of any jurisdiction with respect to which such actions have not
already been taken as are reasonably determined by the U.S. Administrative Agent
or Required Lenders to be necessary or reasonably desirable in order to fully
perfect, preserve or protect the security interests granted pursuant to the
various Security Documents under the laws of such jurisdictions.
11.20 Joint and Several Liability; Postponement of Subrogation. (a)
The obligations of the U.S. Borrowers hereunder and under the other Loan
Documents shall be joint and several and, as such, each U.S. Borrower shall be
liable for all of the such obligations of each other U.S. Borrower under this
Agreement and the other Loan Documents. The obligations of each of the Canadian
Borrowers hereunder and under the other Loan Documents shall be joint and
several and, as such, each Canadian Borrower shall be liable for all of such
obligations of each other Canadian Borrower under this Agreement and the other
Loan Documents. To the fullest extent permitted by law the liability of each
Borrower for the obligations under this Agreement and the other Loan Documents
of the other applicable Borrowers with whom it has joint and several liability
shall be absolute, unconditional and irrevocable, without regard to (i) the
validity or enforceability of this Agreement or any other Loan Document, any of
the obligations hereunder or thereunder or any other collateral security
therefor or guarantee or right of offset with respect thereto at any time or
from time to time held by any applicable Secured Party, (ii) any defense,
set-off or counterclaim (other than a defense of payment or performance
hereunder; provided that no Borrower hereby waives any suit for breach of a
contractual provision of any of the Loan Documents) which may at any time be
available to or be asserted by such other applicable Borrower or any other
Person against any Secured Party or (iii) any other circumstance whatsoever
(with or without notice to or knowledge of such other applicable Borrower or
such Borrower) which constitutes, or might be construed to constitute, an
equitable or legal discharge of such other applicable Borrower for the
obligations hereunder or under any other Loan Document, or of such Borrower
under this Section, in bankruptcy or in any other instance.
(b) Each Borrower agrees that it will not exercise any rights which it
may acquire by way of rights of subrogation under this Agreement, by any
payments made hereunder or otherwise, until the prior payment in full in cash of
all of the obligations hereunder and under any other Loan Document, the
termination or expiration of all Letters of Credit and the permanent termination
of all Commitments. Any amount paid to any Borrower on account of any such
subrogation rights prior to the payment in full in cash of all of the
obligations hereunder and under any other Loan Document, the termination or
expiration of all Letters of Credit and the permanent termination of all
Commitments shall be held in trust for the benefit of the applicable Secured
Parties and shall immediately be paid to the U.S. Administrative Agent or the
Canadian Administrative Agent, as applicable, for the benefit of the applicable
Secured Parties and credited and applied against the obligations of the
applicable Borrowers, whether matured or unmatured, in such order as the U.S.
Administrative Agent or the Canadian Administrative Agent, as applicable, shall
elect. In furtherance of the foregoing, for so long as any obligations of the
Borrowers hereunder, any Letters of Credit or any Commitments remain
outstanding, each Borrower shall refrain from taking any action or commencing
any proceeding against any other Borrower (or any of its successors or assigns,
whether in connection with a bankruptcy proceeding or otherwise) to recover any
amounts in respect of payments made in respect of the obligations hereunder or
under any other Loan Document of such other Borrower to any Secured
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Party. Notwithstanding any other provision contained in this Agreement or any
other Loan Document, if a "secured creditor" (as that term is defined under the
Bankruptcy and Insolvency Act (Canada)) is determined by a court of competent
jurisdiction not to include a Person to whom obligations are owed on a joint or
joint and several basis, then the Borrowers' Obligations (and the obligations of
their Subsidiaries), to the extent such obligations are secured, only shall be
several obligations and not joint or joint and several obligations.
(c) The obligations of each U.S. Borrower with respect to the
Obligations are independent of the obligations of each other Borrower or any
Guarantor under its guaranty of such Obligations, and a separate action or
actions may be brought and prosecuted against each Borrower, whether or not any
other U.S. Borrower or any such Guarantor is joined in any such action or
actions. Each U.S. Borrower waives, to the fullest extent permitted by law, the
benefit of any statute of limitations affecting its liability hereunder or the
enforcement thereof. Any payment by any U.S. Borrower or other circumstance
which operates to toll any statute of limitations as to any Borrower shall, to
the fullest extent permitted by law, operate to toll the statute of limitations
as to each U.S. Borrower.
(d) Each of the U.S. Borrowers authorizes the U.S. Administrative
Agent and the Lenders without notice or demand (except as shall be required by
applicable statute and cannot be waived), and without affecting or impairing its
liability hereunder, from time to time to:
(i) exercise or refrain from exercising any rights against any other
U.S. Borrower or any Guarantor or others or otherwise act or refrain from
acting;
(ii) release or substitute any other U.S Borrower, endorsers,
Guarantors or other obligors;
(iii) settle or compromise any of the Obligations of any other U.S.
Borrower or any other Loan Party, any security therefor or any liability
(including any of those hereunder) incurred directly or indirectly in
respect thereof or hereof, and may subordinate the payment of all or any
part thereof to the payment of any liability (whether due or not) of any
Borrower to its creditors other than the Lenders;
(iv) apply any sums paid by any other U.S. Borrower or any other
Person, howsoever realized or otherwise received to or for the account of
such U.S. Borrower to any liability or liabilities of such other U.S.
Borrower or other Person regardless of what liability or liabilities of
such other U.S. Borrower or other Person remain unpaid; and/or
(v) consent to or waive any breach of, or act, omission or default
under, this Agreement or any of the instruments or agreements referred to
herein, or otherwise, by any other U.S. Borrower or any other Person.
(e) It is not necessary for the U.S. Administrative Agent or any other
Lender to inquire into the capacity or powers of any U.S. Borrower or any of its
Subsidiaries or the officers, directors, members, partners or agents acting or
purporting to act on its behalf, and any Obligations made or created in reliance
upon the professed exercise of such powers shall constitute the joint and
several obligations of the U.S. Borrowers hereunder.
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(f) Each U.S. Borrower waives, to the fullest extent permitted by law,
any right to require the U.S. Administrative Agent or the other Lenders to (i)
proceed against any other U.S. Borrower, any Guarantor or any other party, (ii)
proceed against or exhaust any security held from any U.S. Borrower, any
Guarantor or any other party or (iii) pursue any other remedy in the U.S.
Administrative Agent's or the Lenders' power whatsoever. Each U.S. Borrower
waives, to the fullest extent permitted by law, any defense based on or arising
out of suretyship or any impairment of security held from any U.S. Borrower, any
Guarantor or any other party or on or arising out of any defense of any other
U.S. Borrower, any Guarantor or any other party other than payment in full in
cash of the Obligations, including, without limitation, any defense based on or
arising out of the disability of any other U.S. Borrower, any Guarantor or any
other party, or the unenforceability of the Obligations or any part thereof from
any cause, or the cessation from any cause of the liability of any other U.S.
Borrower, in each case other than as a result of the payment in full in cash of
the Obligations.
11.21 Reinstatement. This Agreement shall remain in full force and
effect and continue to be effective should any petition or other proceeding be
filed by or against any Loan Party for liquidation or reorganization, should any
Loan Party become insolvent or make an assignment for the benefit of any
creditor or creditors or should an interim receiver, receiver, receiver and
manager or trustee be appointed for all or any significant part of any Loan
Party's assets, and shall continue to be effective or to be reinstated, as the
case may be, if at any time payment and performance of the obligations of the
Borrowers under the Loan Documents, or any part thereof, is, pursuant to
applicable law, rescinded or reduced in amount, or must otherwise be restored or
returned by any obligee of the obligations, whether as a fraudulent preference,
reviewable transaction or otherwise, all as though such payment or performance
had not been made. In the event that any payment, or any part thereof, is
rescinded, reduced, restored or returned, the obligations of the Borrowers
hereunder shall be reinstated and deemed reduced only by such amount paid and
not so rescinded, reduced, restored or returned.
11.22 Language. The parties hereto confirm that it is their wish that
this Agreement, as well as any other documents relating to this Agreement,
including notices, schedules and authorizations, have been and shall be drawn up
in the English language only. Les signataires conferment leur volonte que la
presente convention, de meme que tous les documents s'y rattachant, y compris
tout avis, annexe et autorisation, soient rediges en anglais seulement.
Section 12. Holdings Guaranty.
12.1 Guaranty.
(a) In order to induce the Administrative Agents, the Collateral
Agents, the Issuing Lenders and the Lenders to enter into this Agreement and to
extend credit hereunder, and to induce the other Guarantee Creditors to enter
into Interest Rate Protection Agreements and Permitted Hedging Arrangements and
in recognition of the direct benefits to be received by Holdings from the
proceeds of the Loans, the issuance of the Letters of Credit and the entering
into of such Interest Rate Protection Agreements and Permitted Hedging
Arrangements, Holdings hereby agrees with the Guarantee Creditors as follows:
Holdings hereby unconditionally and irrevocably guarantees as primary obligor
and not merely as surety the full and prompt payment when due, whether upon
maturity, acceleration or otherwise, of any and all of the
186
Guarantor Obligations of the Borrowers to the Guaranteed Creditors. If any or
all of the Guarantor Obligations of the Borrowers to the Guaranteed Creditors
becomes due and payable hereunder, Holdings, unconditionally and irrevocably,
promises to pay such indebtedness to the applicable Administrative Agent and/or
the other applicable Guaranteed Creditors, on demand, together with any and all
expenses which may be incurred by the Administrative Agents and the other
Guaranteed Creditors in collecting any of the Guarantor Obligations. If claim is
ever made upon any Guaranteed Creditor for repayment or recovery of any amount
or amounts received in payment or on account of any of the Guarantor Obligations
and any of the aforesaid payees repays all or part of said amount by reason of
(i) any judgment, decree or order of any court or administrative body having
jurisdiction over such payee or any of its property or (ii) any settlement or
compromise of any such claim effected by such payee with any such claimant
(including any Borrower), then and in such event Holdings agrees that any such
judgment, decree, order, settlement or compromise shall, to the fullest extent
permitted by law, be binding upon Holdings, notwithstanding any revocation of
the guarantee contained in this Section 12 or other instrument evidencing any
liability of any Borrower, and Holdings shall, to the fullest extent permitted
by law, be and remain liable to the aforesaid payees hereunder for the amount so
repaid or recovered to the same extent as if such amount had never originally
been received by any such payee.
(b) The guarantee contained in this Section 12 shall remain in full
force and effect until the first date on which all the Loans (including the face
amount of all Bankers' Acceptance Loans), any Reimbursement Obligations and the
obligations of Holdings under the guarantee contained in this Section 12 then
due and owing, in each case, shall have been satisfied by payment in full in
cash, no Letter of Credit shall be outstanding (except for Letters of Credit
that have been cash collateralized or otherwise provided for in a manner
reasonably satisfactory to the applicable Issuing Lender) and the Commitment
shall be terminated, notwithstanding that from time to time during the term of
this Agreement any of the Borrowers may be free from any obligations under the
Loan Documents.
12.2 Bankruptcy. Additionally, Holdings unconditionally and
irrevocably guarantees the payment of any and all of the Guarantor Obligations
to the Guaranteed Creditors whether or not due or payable by any Borrower upon
the occurrence of any of the events specified in subsection 9(f), and
irrevocably and unconditionally promises to pay such indebtedness to the
Guaranteed Creditors, on demand, in lawful money of the United States, or
Canada, as applicable.
12.3 Nature of Liability. The liability of Holdings hereunder is
primary, absolute and unconditional, exclusive and independent of any security
for or other guaranty of the Guarantor Obligations, whether executed by any
other guarantor or by any other party, and the liability of Holdings hereunder
shall not, to the fullest extent permitted by law, be affected or impaired by
(a) any direction as to application of payment by any Borrower or by any other
party (other than a direction that results in the payment in full of the
Guarantor Obligations), or (b) any other continuing or other guaranty,
undertaking or maximum liability of a guarantor or of any other party as to the
Guarantor Obligations, or (c) any payment on or in reduction of any such other
guaranty or undertaking (other than payment of the Guarantor Obligations to the
extent of such payment), or (d) any dissolution, termination or increase,
decrease or change in personnel by any Borrower, or (e) any payment made to any
Guaranteed Creditor on the Guarantor
187
Obligations which any such Guaranteed Creditor repays to any Borrower pursuant
to court order in any bankruptcy, reorganization, arrangement, moratorium or
other debtor relief proceeding, and Holdings waives, to the fullest extent
permitted by law, any right to the deferral or modification of its obligations
hereunder by reason of any such proceeding, or (f) any action or inaction by the
Guaranteed Creditors as contemplated in subsection 12.05, or (g) any invalidity,
irregularity or enforceability of all or any part of the Guarantor Obligations
or of any security therefor.
12.4 Independent Obligation. The obligations of Holdings hereunder are
independent of the obligations of any other guarantor, any other party or any
Borrower, and a separate action or actions may be brought and prosecuted against
Holdings whether or not action is brought against any other guarantor, any other
party or any Borrower and whether or not any other guarantor, any other party or
any Borrower be joined in any such action or actions. Holdings waives, to the
fullest extent permitted by law, the benefit of any statute of limitations
affecting its liability hereunder or the enforcement thereof. Any payment by any
Borrower or other circumstance which operates to toll any statute of limitations
as to such Borrower shall operate to toll the statute of limitations as to
Holdings.
12.5 Amendments, etc. with respect to the Obligations. To the maximum
extent permitted by law, Holdings shall remain obligated hereunder
notwithstanding that, without any reservation of rights against Holdings and
without notice to or further assent by Holdings, any demand for payment of any
of the Guarantor Obligations made by the applicable Administrative Agent or any
other Guaranteed Creditor may be rescinded by the such Administrative Agent or
such other Guaranteed Creditor and any of the Guarantor Obligations continued,
and the Guarantor Obligations, or the liability of any other Person upon or for
any part thereof, or any collateral security or guarantee therefor or right of
offset with respect thereto, may, from time to time, in whole or in part, be
renewed, extended, amended, waived, modified, accelerated, compromised,
subordinated, waived, surrendered or released by the applicable Administrative
Agent or any other Guaranteed Creditor, and this Agreement and the other Loan
Documents and any other documents executed and delivered in connection therewith
may be amended, waived, modified, supplemented or terminated, in whole or in
part, as the applicable Administrative Agent (or the Required Lenders or the
applicable Lender(s), as the case may be) may deem advisable from time to time,
and any collateral security, guarantee or right of offset at any time held by
the applicable Collateral Agent, Administrative Agent or any other Guaranteed
Creditor for the payment of any of the Guarantor Obligations may be sold,
exchanged, waived, surrendered or released. None of the applicable Collateral
Agent, Administrative Agent and each other Guaranteed Creditor shall have any
obligation to protect, secure, perfect or insure any Lien at any time held by it
as security for any of the Guarantor Obligations or for the guarantee contained
in this Section 12 or any property subject thereto, except to the extent
required by applicable law.
12.6 Reliance. It is not necessary for any Guaranteed Creditor to
inquire into the capacity or powers of Holdings or any of its Subsidiaries or
the officers, directors, partners or agents acting or purporting to act on their
behalf, and any Guarantor Obligations made or created in reliance upon the
professed exercise of such powers shall be guaranteed hereunder.
188
12.7 No Subrogation. Notwithstanding any payment made by Holdings
hereunder or any set-off or application of funds of Holdings by either
Administrative Agent or any other Guaranteed Creditor, Holdings shall not be
entitled to be subrogated to any of the rights of the Administrative Agents or
any other Guaranteed Creditor against any Borrower or any other Guarantor or any
collateral security or guarantee or right of offset held by the Administrative
Agents or any other Guaranteed Creditor for the payment of the Guarantor
Obligations, nor shall Holdings seek or be entitled to seek any contribution or
reimbursement from any Borrower or any other Guarantor in respect of payments
made by Holdings hereunder, until all amounts owing to either Administrative
Agent and the other Guaranteed Creditors by the Borrowers on account of the
Guarantor Obligations are paid in full in cash, no Letter of Credit shall be
outstanding (except for Letters of Credit that have been cash collateralized or
otherwise provided for in a manner reasonably satisfactory to the applicable
Issuing Lender) and the Commitments are terminated. If any amount shall be paid
to Holdings on account of such subrogation rights at any time when all of the
Guarantor Obligations shall not have been paid in full in cash or any Letter of
Credit shall remain outstanding (except for Letters of Credit that have provided
for in a manner reasonably satisfactory to the applicable Issuing Lender) or any
of the Commitments shall remain in effect, such amount shall be held by Holdings
in trust for the applicable Administrative Agent and the other Guaranteed
Creditor, segregated from other funds of Holdings, and shall, forthwith upon
receipt by Holdings, be turned over to the applicable Administrative Agent in
the exact form received by Holdings (duly indorsed by Holdings to the applicable
Administrative Agent if required), to be held as collateral security for all of
the Guarantor Obligations (whether matured or unmatured) guaranteed by Holdings
and/or then or at any time thereafter may be applied against any Guarantor
Obligations, whether matured or unmatured, in such order as the applicable
Administrative Agent may determine.
12.8 Waiver. (a) Holdings waives, to the fullest extent permitted by
law, any right to require any Guaranteed Creditor to (i) proceed against any
Borrower, any other guarantor or any other party, (ii) proceed against or
exhaust any security held from any Borrower, any other guarantor or any other
party or (iii) pursue any other remedy in any Guaranteed Creditor's power
whatsoever. Holdings waives, to the fullest extent permitted by law, any defense
based on or arising out of any defense of any Borrower, any other guarantor or
any other party, other than payment of the Guarantor Obligations to the extent
of such payment, based on or arising out of the disability of any Borrower,
Holdings, any other guarantor or any other party, or the validity, legality or
unenforceability of the Guarantor Obligations or any part thereof from any
cause, or the cessation from any cause of the liability of any Borrower other
than payment of the Guarantor Obligations to the extent of such payment. Subject
to the other terms of this Agreement and the Loan Documents, the Guaranteed
Creditors may, at their election, foreclose on any security held by the
Administrative Agents, the Collateral Agent or any other Guaranteed Creditor by
one or more judicial or nonjudicial sales, whether or not every aspect of any
such sale is commercially reasonable (to the extent such sale is permitted by
applicable law), or exercise any other right or remedy the Guaranteed Creditors
may have against any Borrower or any other party, or any security, without
affecting or impairing in any way the liability of Holdings hereunder except to
the extent the Guarantor Obligations have been paid. Holdings waives any defense
arising out of any such election by the Guaranteed Creditors, even though such
election operates to impair or extinguish any right of reimbursement or
subrogation or other right or remedy of Holdings against any Borrower or any
other party or any security.
189
(b) Holdings waives, to the fullest extent permitted by law, all
presentments, demands for performance, protests and notices, including without
limitation notices of nonperformance, notices of protest, notices of dishonor,
notices of acceptance of the guarantee contained in this Section 12, and notices
of the existence, creation or incurring of new or additional Guarantor
Obligations. Holdings assumes all responsibility for being and keeping itself
informed of the Borrowers' financial condition and assets, and of all other
circumstances bearing upon the risk of nonpayment of the Guarantor Obligations
and the nature, scope and extent of the risks which Holdings assumes and incurs
hereunder, and agrees that neither the applicable Administrative Agent nor any
of the other Guaranteed Creditors shall have any duty to advise Holdings of
information known to them regarding such circumstances or risks.
12.9 Payments. All payments made by Holdings pursuant to this Section
12 shall be made in Dollars and will be made without setoff, counterclaim or
other defense, and shall be subject to the provisions of subsections 4.8 and
4.11.
12.10 Maximum Liability. It is the desire and intent of Holdings and
the Guaranteed Creditors that the guarantee contained in this Section 12 shall
be enforced against Holdings to the fullest extent permissible under the laws
and public policies applied in each jurisdiction in which enforcement is sought.
If, however, and to the extent that, the obligations of Holdings under the
guarantee contained in this Section 12 shall be adjudicated to be invalid or
unenforceable for any reason (including, without limitation, because of any
applicable state or federal law relating to fraudulent conveyances or
transfers), then the amount of Holdings' obligations under the guarantee
contained in this Section 12 shall be deemed to be reduced and Holdings shall
pay the maximum amount of the Guarantor Obligations which would be permissible
under applicable law.
[SIGNATURE PAGES TO BE PROVIDED SEPARATELY]
190
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
RSC HOLDINGS II, LLC
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President and
Chief Financial Officer
RSC HOLDINGS III, LLC
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President and
Chief Financial Officer
RENTAL SERVICE CORPORATION
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President and
Chief Financial Officer
RENTAL SERVICE CORPORATION OF CANADA
LTD.
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
Title: President, Vice Chairman and
Chief Operating Officer
[ABL Credit Agreement - Signature Page]
DEUTSCHE BANK SECURITIES INC.,
as a Joint Lead Arranger
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Tltle: Director
By: /s/ Xxxxxxxxx Xxxxx
------------------------------------
Name: Xxxxxxxxx Xxxxx
Title: Director
[Signature Page to ABL Credit Agreement]
DEUTSCHE BANK AG, NEW YORK BRANCH,
Individually and as U.S.
Administrative Agent and U.S.
Collateral Agent
By: /s/ Xxxxxxxxxx Xxxxxx
------------------------------------
Name: XXXXXXXXXX XXXXXX
Title: DIRECTOR
By: /s/ Xxxxxx Xxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Vice President
[Signature Page to ABL Credit Agreement]
DEUTSCHE BANK AG, CANADA BRANCH,
Individually and as Canadian
Administrative Agent and Canadian
Collateral Agent
By: /s/ Illegible
------------------------------------
Name: Illegible
Title: Illegible
By: /s/ Xxxxxxxxx Xxxxx
------------------------------------
Name: XXXXXXXXX XXXXX
Title: Assistant Vice President
[Signature Page to ABL Credit Agreement]
SIGNATURE PAGE TO THE CREDIT AGREEMENT
DATED AS OF NOVEMBER 27, 2006, AMONG RSC
HOLDINGS II, LLC, RSC HOLDINGS III, LLC,
RENTAL SERVICE CORPORATION, RENTAL
SERVICE CORPORATION OF CANADA LTD., EACH
OTHER BORROWER PARTY HERETO, THE LENDERS
FROM TIME TO TIME PARTY HERETO, DEUTSCHE
BANK AG, NEW YORK BRANCH, AS U.S.
ADMINISTRATIVE AGENT AND U.S. COLLATERAL
AGENT, DEUTSCHE BANK AG, CANADA BRANCH,
AS CANADIAN ADMINISTRATIVE AGENT AND
CANADIAN COLLATERAL AGENT, CITICORP
NORTH AMERICA, INC., AS SYNDICATION
AGENT, AND DEUTSCHE BANK SECURITIES INC.
AND CITIGROUP GLOBAL MARKETS INC., AS
JOINT LEAD ARRANGERS AND JOINT BOOK
MANAGERS
NAME OF INSTITUTION:
Citicorp North America, Inc.
By: /s/ Xxxxxxx Xxxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Director and Vice President
[Signature Page to ABL Credit Agreement]
SIGNATURE PAGE TO THE CREDIT AGREEMENT
DATED AS OF NOVEMBER 27, 2006, AMONG RSC
HOLDINGS II, LLC, RSC HOLDINGS III, LLC,
RENTAL SERVICE CORPORATION, RENTAL
SERVICE CORPORATION OF CANADA LTD., EACH
OTHER BORROWER PARTY HERETO, THE LENDERS
FROM TIME TO TIME PARTY HERETO, DEUTSCHE
BANK AG, NEW YORK BRANCH, AS U.S.
ADMINISTRATIVE AGENT AND U.S. COLLATERAL
AGENT, DEUTSCHE BANK AG, CANADA BRANCH,
AS CANADIAN ADMINISTRATIVE AGENT AND
CANADIAN COLLATERAL AGENT, CITICORP
NORTH AMERICA, INC., AS SYNDICATION
AGENT, AND DEUTSCHE BANK SECURITIES INC.
AND CITIGROUP GLOBAL MARKETS INC., AS
JOINT LEAD ARRANGERS AND JOINT BOOK
MANAGERS
NAME OF INSTITUTION:
Citibank, N.A., Canadian
branch
By: /s/ Niyousha Zarinpour
------------------------------------
Name: Niyousha Zarinpour
Title: Authorized Signer
[Signature Page to ABL Credit Agreement)
SIGNATURE PAGE TO THE CREDIT AGREEMENT
DATED AS OF NOVEMBER 27, 2006, AMONG RSC
HOLDINGS II, LLC, RSC HOLDINGS III, LLC,
RENTAL SERVICE CORPORATION, RENTAL
SERVICE CORPORATION OF CANADA LTD., EACH
OTHER BORROWER PARTY HERETO, THE LENDERS
FROM TIME TO TIME PARTY HERETO, DEUTSCHE
BANK AG, NEW YORK BRANCH, AS U.S.
ADMINISTRATIVE AGENT AND U.S. COLLATERAL
AGENT, DEUTSCHE BANK AG, CANADA BRANCH,
AS CANADIAN ADMINISTRATIVE AGENT AND
CANADIAN COLLATERAL AGENT, CITICORP
NORTH AMERICA, INC., AS SYNDICATION
AGENT, AND DEUTSCHE BANK SECURITIES INC.
AND CITIGROUP GLOBAL MARKETS INC., AS
JOINT LEAD ARRANGERS AND JOINT BOOK
MANAGERS
NAME OF INSTITUTION:
BANK OF AMERICA, N.A.
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President
[Signature Page to ABL Credit Agreement]
SIGNATURE PAGE TO THE CREDIT AGREEMENT
DATED AS OF NOVEMBER 27, 2006, AMONG RSC
HOLDINGS II, LLC RSC HOLDINGS III, LLC,
RENTAL SERVICE CORPORATION, RENTAL
SERVICE CORPORATION OF CANADA LTD., EACH
OTHER BORROWER PARTY HERETO, THE LENDERS
FROM TIME TO TIME PARTY HERETO, DEUTSCHE
BANK AG, NEW YORK BRANCH, AS U.S.
ADMINISTRATIVE AGENT AND U.S. COLLATERAL
AGENT, DEUTSCHE BANK AG, CANADA BRANCH,
AS CANADIAN ADMINISTRATIVE AGENT AND
CANADIAN COLLATERAL AGENT, CITICORP
NORTH AMERICA, INC., AS SYNDICATION
AGENT, AND DEUTSCHE BANK SECURITIES INC.
AND CITIGROUP GLOBAL MARKETS INC., AS
JOINT LEAD ARRANGERS AND JOINT BOOK
MANAGERS
NAME OF INSTITUTION:
Bank of America, N.A. (Acting through
its Canada Branch)
By: /s/ X.X. Junior Del Xxxxxx
------------------------------------
Name: X.X. Junior Del Xxxxxx
Title: Senior Vice President
[Signature Page to ABL Credit Agreement]
SIGNATURE PAGE TO THE CREDIT AGREEMENT
DATED AS OF NOVEMBER 27, 2006, AMONG RSC
HOLDINGS II, LLC, RSC HOLDINGS III, LLC,
RENTAL SERVICE CORPORATION, RENTAL
SERVICE CORPORATION OF CANADA LTD., EACH
OTHER BORROWER PARTY HERETO, THE LENDERS
FROM TIME TO TIME PARTY HERETO, DEUTSCHE
BANK AG, NEW YORK BRANCH, AS U.S.
ADMINISTRATIVE AGENT AND U.S. COLLATERAL
AGENT, DEUTSCHE BANK AG, CANADA BRANCH,
AS CANADIAN ADMINISTRATIVE AGENT AND
CANADIAN COLLATERAL AGENT, CITICORP
NORTH AMERICA, INC., AS SYNDICATION
AGENT, AND DEUTSCHE BANK SECURITIES INC.
AND CITIGROUP GLOBAL MARKETS INC., AS
JOINT LEAD ARRANGERS AND JOINT BOOK
MANAGERS
NAME OF INSTITUTION:
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Illegible
------------------------------------
Name: Illegible
Title: Duly Authorized Signatory
[Signature Page to ABL Credit Agreement]
SIGNATURE PAGE TO THE CREDIT AGREEMENT
DATED AS OF NOVEMBER 27, 2006, AMONG RSC
HOLDINGS II, LLC, RSC HOLDINGS III, LLC,
RENTAL SERVICE CORPORATION, RENTAL
SERVICE CORPORATION OF CANADA LTD., EACH
OTHER BORROWER PARTY HERETO, THE LENDERS
FROM TIME TO TIME PARTY HERETO, DEUTSCHE
BANK AG, NEW YORK BRANCH, AS U.S.
ADMINISTRATIVE AGENT AND U.S. COLLATERAL
AGENT, DEUTSCHE BANK AG, CANADA BRANCH,
AS CANADIAN ADMINISTRATIVE AGENT AND
CANADIAN COLLATERAL AGENT, CITICORP
NORTH AMERICA, INC., AS SYNDICATION
AGENT, AND DEUTSCHE BANK SECURITIES INC.
AND CITIGROUP GLOBAL MARKETS INC., AS
JOINT LEAD ARRANGERS AND JOINT BOOK
MANAGERS
NAME OF INSTITUTION:
GE Canada Finance Holding Company
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Name: Xxxx F, Xxxxxxx
Title: Senior Vice President
[Signature Page to ABL Credit Agreement]
SIGNATURE PAGE TO THE CREDIT AGREEMENT
DATED AS OF NOVEMBER 27, 2006, AMONG RSC
HOLDINGS II, LLC, RSC HOLDINGS III, LLC,
RENTAL SERVICE CORPORATION, RENTAL
SERVICE CORPORATION OF CANADA LTD., EACH
OTHER BORROWER PARTY HERETO, THE LENDERS
FROM TIME TO TIME PARTY HERETO, DEUTSCHE
BANK AG, NEW YORK BRANCH, AS U.S.
ADMINISTRATIVE AGENT AND U.S. COLLATERAL
AGENT, DEUTSCHE BANK AG, CANADA BRANCH,
AS CANADIAN ADMINISTRATIVE AGENT AND
CANADIAN COLLATERAL AGENT, CITICORP
NORTH AMERICA, INC., AS SYNDICATION
AGENT, AND DEUTSCHE BANK SECURITIES INC.
AND CITIGROUP GLOBAL MARKETS INC., AS
JOINT LEAD ARRANGERS AND JOINT BOOK
MANAGERS
NAME OF INSTITUTION:
LASALLE BUSINESS CREDIT, LLC
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: First Vice President
[Signature Page to ABL Credit Agreement]
SIGNATURE PAGE TO THE CREDIT AGREEMENT
DATED AS OF NOVEMBER 27, 2006, AMONG RSC
HOLDINGS II, LLC, RSC HOLDINGS III, LLC,
RENTAL SERVICE CORPORATION, RENTAL
SERVICE CORPORATION OF CANADA LTD., EACH
OTHER BORROWER PARTY HERETO, THE LENDERS
FROM TIME TO TIME PARTY HERETO, DEUTSCHE
BANK AG, NEW YORK BRANCH AS U.S.
ADMINISTRATIVE AGENT AND U.S. COLLATERAL
AGENT, DEUTSCHE BANK A.G, CANADA BRANCH
AGENT BANK AG, CANADA BRANCH, AS
CANADIAN ADMINISTRATIVE AGENT AND
CANADIAN COLLATERAL AGENT, CITICORP
NORTH AMERICA, INC., AS SYNDICATION
AGENT, AND DEUTSCHE BANK SECURITIES INC.
AND CITIGROUP GLOBAL MARKETS INC., AS
JOINT LEAD ARRANGERS AND JOINT BOOK
MANAGERS
NAME OF INSTITUTION:
LaSalle Business Credit, a division of
ABN AMRO Bank N.V., Canada Branch
BY: /s/ Xxxxx Xxxx
------------------------------------
Name: Xxxxx Xxxx
Title: First Vice President
By: /s/ Xxxxx Xxxxxx
------------------------------------
Name: Xxxxx Xxxxxx
Title: Senior Vice President
[Signature Page to ABL Credit Agreement]
SIGNATURE PAGE TO THE CREDIT AGREEMENT
DATED AS OF NOVEMBER 27, 2006, AMONG RSC
HOLDINGS II, LLC, RSC HOLDINGS III, LLC,
RENTAL SERVICE CORPORATION, RENTAL
SERVICE CORPORATION OF CANADA LTD., EACH
OTHER BORROWER PARTY HERETO, THE LENDERS
FROM TIME TO TIME PARTY HERETO, DEUTSCHE
BANK AG, NEW YORK BRANCH, AS U.S.
ADMINISTRATIVE AGENT AND U.S. COLLATERAL
AGENT, DEUTSCHE BANK AG, CANADA BRANCH,
AS CANADIAN ADMINISTRATIVE AGENT AND
CANADIAN COLLATERAL AGENT, CITICORP
NORTH AMERICA, INC, AS SYNDICATION
AGENT, AND DEUTSCHE BANK SECURITIES INC
AND CITIGROUP GLOBAL MARKETS INC., AS
JOINT LEAD ARRANGERS AND JOINT BOOK
MANAGERS
NAME OF INSTITUTION:
Wachovia Capital Finance Corporation
(Western)
By: /s/ Xxxx X. Xxxx
------------------------------------
Name: Xxxx X. Xxxx
Title: Managing Director
[Signature Page to ABL Credit Agreement]
SIGNATURE PAGE TO THE CREDIT AGREEMENT
DATED AS OF NOVEMBER 27, 2006, AMONG RSC
HOLDINGS II, LLC, RSC HOLDINGS III, LLC,
RENTAL SERVICE CORPORATION, RENTAL
SERVICE CORPORATION OF CANADA LTD., EACH
OTHER BORROWER PARTY HERETO, THE LENDERS
FROM TIME TO TIME PARTY HERETO, DEUTSCHE
BANK AG, NEW YORK BRANCH, AS U.S.
ADMINISTRATIVE AGENT AND U.S. COLLATERAL
AGENT, DEUTSCHE BANK AG, CANADA BRANCH,
AS CANADIAN ADMINISTRATIVE AGENT AND
CANADIAN COLLATERAL AGENT, CITICORP
NORTH AMERICA, INC., AS SYNDICATION
AGENT, AND DEUTSCHE BANK SECURITIES INC.
AND CITIGROUP GLOBAL MARKETS INC., AS
JOINT LEAD ARRANGERS AND JOINT BOOK
MANAGERS
NAME OF INSTITUTION:
WACHOVIA CAPITAL FINANCE CORPORATION
(CANADA)
By: /s/ Xxxxx Xxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Senior Vice President
Wachovia Capital Finance
Corporation
(Canada)
[Signature Page to ABL Credit Agreement]
SIGNATURE PAGE TO THE CREDIT AGREEMENT
DATED AS OF NOVEMBER 27, 2006, AMONG RSC
HOLDINGS II, LLC, RSC HOLDINGS III, LLC,
RENTAL SERVICE CORPORATION, RENTAL
SERVICE CORPORATION OF CANADA LTD., EACH
OTHER BORROWER PARTY HERETO, THE LENDERS
FROM TIME TO TIME PARTY HERETO, DEUTSCHE
BANK AG, NEW YORK BRANCH, AS U.S.
ADMINISTRATIVE AGENT AND U.S. COLLATERAL
AGENT, DEUTSCHE BANK AG, CANADA BRANCH,
AS CANADIAN ADMINISTRATIVE AGENT AND
CANADIAN COLLATERAL AGENT, CITICORP
NORTH AMERICA, INC., AS SYNDICATION
AGENT, AND DEUTSCHE BANK SECURITIES INC.
AND CITIGROUP GLOBAL MARKETS INC., AS
JOINT LEAD ARRANGERS AND JOINT BOOK
MANAGERS
NAME OF INSTITUTION:
XXXXX FARGO BANK, N.A.
By: /s/ Xxxx X. Xxxxx
------------------------------------
Name: Xxxx X. Xxxxx
Title: Sr. Vice President
[Signature Page to ABL Credit Agreement)
SIGNATURE PAGE TO THE CREDIT AGREEMENT
DATED AS OF NOVEMBER 27, 2006, AMONG RSC
HOLDINGS II, LLC, RSC HOLDINGS III, LLC,
RENTAL SERVICE CORPORATION, RENTAL
SERVICE CORPORATION OF CANADA LTD., EACH
OTHER BORROWER PARTY HERETO, THE LENDERS
FROM TIME TO TIME PARTY HERETO, DEUTSCHE
BANK AG, NEW YORK BRANCH, AS U.S.
ADMINISTRATIVE AGENT AND U.S. COLLATERAL
AGENT, DEUTSCHE BANK AG, CANADA BRANCH,
AS CANADIAN ADMINISTRATIVE AGENT AND
CANADIAN COLLATERAL AGENT, CITICORP
NORTH AMERICA, INC., AS SYNDICATION
AGENT, AND DEUTSCHE BANK SECURITIES INC.
AND CITIGROUP GLOBAL MARKETS INC., AS
JOINT LEAD ARRANGERS AND JOINT BOOK
MANAGERS
NAME OF INSTITUTION:
Fortis Capital Corp.
By: /s/ Xxxx X. Xxxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Managing Director
By: /s/ Michiel V.M. Van Der Voort
------------------------------------
Name: MICHIEL V.M. VAN DER VOORT
Title: Managing Director
[Signature Page to ABL Credit Agreement]
SIGNATURE PAGE TO THE CREDIT AGREEMENT
DATED AS OF NOVEMBER 27, 2006, AMONG RSC
HOLDINGS II, LLC, RSC HOLDINGS III, LLC,
RENTAL SERVICE CORPORATION, RENTAL
SERVICE CORPORATION OF CANADA LTD., EACH
OTHER BORROWER PARTY HERETO, THE LENDERS
FROM TIME TO TIME PARTY HERETO, DEUTSCHE
BANK AG, NEW YORK BRANCH, AS U.S.
ADMINISTRATIVE AGENT AND U.S. COLLATERAL
AGENT, DEUTSCHE BANK AG, CANADA BRANCH,
AS CANADIAN ADMINISTRATIVE AGENT AND
CANADIAN COLLATERAL AGENT, CITICORP
NORTH AMERICA, INC., AS SYNDICATION
AGENT, AND DEUTSCHE BANK SECURITIES INC.
AND CITIGROUP GLOBAL MARKETS INC., AS
JOINT LEAD ARRANGERS AND JOINT BOOK
MANAGERS
NAME OF INSTITUTION:
Fortis Capital (Canada) Ltd
By: /s/ Xxx X. Xxxxxxxx
------------------------------------
Name: Xxx X. Xxxxxxxx
Title: General Counsel
By: /s/ Xxxx Riogan
------------------------------------
Name: Xxxx Riogan
Title: CFO
SIGNATURE PAGE TO THE CREDIT AGREEMENT
DATED AS OF NOVEMBER 27, 2006, AMONG RSC
HOLDINGS II, LLC, RSC HOLDINGS III, LLC,
RENTAL SERVICE CORPORATION, RENTAL
SERVICE CORPORATION OF CANADA LTD., EACH
OTHER BORROWER PARTY HERETO, THE LENDERS
FROM TIME TO TIME PARTY HERETO, DEUTSCHE
BANK AG, NEW YORK BRANCH, AS U.S.
ADMINISTRATIVE AGENT AND U.S. COLLATERAL
AGENT, DEUTSCHE BANK AG, CANADA BRANCH,
AS CANADIAN ADMINISTRATIVE AGENT AND
CANADIAN COLLATERAL AGENT, CITICORP
NORTH AMERICA, INC., AS SYNDICATION
AGENT, AND DEUTSCHE BANK SECURITIES INC.
AND CITIGROUP GLOBAL MARKETS INC., AS
JOINT LEAD ARRANGERS AND JOINT BOOK
MANAGERS
NAME OF INSTITUTION:
JPMORGAN CHASE BANK, N.A.,
By: /s/ Xxxx X. Xxxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President
[Signature Page to ABL Credit Agreement]
SIGNATURE PAGE TO THE CREDIT AGREEMENT
DATED AS OF NOVEMBER 27, 2006, AMONG RSC
HOLDINGS II, LLC, RSC HOLDINGS III, LLC,
RENTAL SERVICE CORPORATION, RENTAL
SERVICE CORPORATION OF CANADA LTD., EACH
OTHER BORROWER PARTY HERETO, THE LENDERS
FROM TIME TO TIME PARTY HERETO, DEUTSCHE
BANK AG, NEW YORK BRANCH, AS U.S.
ADMINISTRATIVE AGENT AND U.S. COLLATERAL
AGENT, DEUTSCHE BANK AG, CANADA BRANCH,
AS CANADIAN ADMINISTRATIVE AGENT AND
CANADIAN COLLATERAL AGENT, CITICORP
NORTH AMERICA, INC., AS SYNDICATION
AGENT, AND DEUTSCHE BANK SECURITIES INC.
AND CITIGROUP GLOBAL MARKETS INC., AS
JOINT LEAD ARRANGERS AND JOINT BOOK
MANAGERS
NAME OF INSTITUTION
JPMORGAN CHASE BANK, N.A., TORONTO
BRANCH
By: /s/ Xxxxxxx X. Xxx
------------------------------------
Name: Xxxxxxx X. Xxx
Title: SVP
[Signature Page to ABL Credit Agreement]
SIGNATURE PAGE TO THE CREDIT AGREEMENT
DATED AS OF NOVEMBER 27, 2006, AMONG RSC
HOLDINGS II, LLC, RSC HOLDINGS III, LLC,
RENTAL SERVICE CORPORATION, RENTAL
SERVICE CORPORATION OF CANADA LTD., EACH
OTHER BORROWER PARTY HERETO, THE LENDERS
FROM TIME TO TIME PARTY HERETO, DEUTSCHE
BANK AG, NEW YORK BRANCH, AS U.S.
ADMINISTRATIVE AGENT AND U.S. COLLATERAL
AGENT, DEUTSCHE BANK AG, CANADA BRANCH,
AS CANADIAN ADMINISTRATIVE AGENT AND
CANADIAN COLLATERAL AGENT, CITICORP
NORTH AMERICA, INC., AS SYNDICATION
AGENT, AND DEUTSCHE BANK SECURITIES INC.
AND CITIGROUP GLOBAL MARKETS INC., AS
JOINT LEAD ARRANGERS AND JOINT BOOK
MANAGERS
NAME OF INSTITUTION:
The CIT Group/Business Credit Inc.
By: /s/ Xxxxxx Xxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Assistant Vice President
[Signature Page to ABL Credit Agreement]
SIGNATURE PAGE TO THE CREDIT AGREEMENT
DATED AS OF NOVEMBER 27, 2006, AMONG RSC
HOLDINGS II, LLC, RSC HOLDINGS III, LLC,
RENTAL SERVICE CORPORATION, RENTAL
SERVICE CORPORATION OF CANADA LTD., EACH
OTHER BORROWER PARTY HERETO, THE LENDERS
FROM TIME TO TIME PARTY HERETO, DEUTSCHE
BANK AG, NEW YORK BRANCH, AS U.S.
ADMINISTRATIVE AGENT AND U.S. COLLATERAL
AGENT, DEUTSCHE BANK AG, CANADA BRANCH,
AS CANADIAN ADMINISTRATIVE AGENT AND
CANADIAN COLLATERAL AGENT, CITICORP
NORTH AMERICA, INC., AS SYNDICATION
AGENT, AND DEUTSCHE BANK SECURITIES INC.
AND CITIGROUP GLOBAL MARKETS INC., AS
JOINT LEAD ARRANGERS AND JOINT BOOK
MANAGERS
NAME OF INSTITUTION:
CIT Financial LTD.
By: /s/ Xxxxx Xxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Senior Vice President
[Signature Page to ABL Credit Agreement]
SIGNATURE PAGE TO THE CREDIT AGREEMENT
DATED AS OF NOVEMBER 27, 2006, AMONG RSC
HOLDINGS II, LLC, RSC HOLDINGS III, LLC,
RENTAL SERVICE CORPORATION, RENTAL
XXXXXXX CORPORATION OF CANADA LTD., EACH
OTHER BORROWER PARTY HERETO, THE LENDERS
FROM TIME TO TIME PARTY HERETO, DEUTSCHE
BANK AG, NEW YORK BRANCH, AS U.S.
ADMINISTRATIVE AGENT AND U.S. COLLATERAL
AGENT, DEUTSCHE BANK AG, CANADA BRANCH,
AS CANADIAN ADMINISTRATIVE AGENT AND
CANADIAN COLLATERAL, AGENT, CITICORP
NORTH AMERICA, INC., AS SYNDICATION
AGENT, AND DEUTSCHE BANK SECURITIES INC.
AND CITIGROUP GLOBAL MARKETS INC., AS
JOINT LEAD ARRANGERS AND JOINT BOOK
MANAGERS
NAME OF INSTITUTION:
GMAC Commercial Finance LLC
By: /s/ Xxxxxxx X. Xxxxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Director
[Signature Page to ABL Credit Agreement]
SIGNATURE PAGE TO THE CREDIT AGREEMENT
DATED AS OF NOVEMBER 27, 2006, AMONG RSC
HOLDINGS II, LLC, RSC HOLDINGS III, LLC,
RENTAL SERVICE CORPORATION, RENTAL
SERVICE CORPORATION OF CANADA LTD., EACH
OTHER BORROWER PARTY HERETO, THE LENDERS
FROM TIME TO TIME PARTY HERETO, DEUTSCHE
BANK AG, NEW YORK BRANCH, AS U.S.
ADMINISTRATIVE AGENT AND U.S. COLLATERAL
AGENT, DEUTSCHE BANK AG, CANADA BRANCH,
AS CANADIAN ADMINISTRATIVE AGENT AND
CANADIAN COLLATERAL AGENT, CITICORP
NORTH AMERICA, INC., AS SYNDICATION
AGENT, AND DEUTSCHE BANK SECURITIES INC.
AND CITIGROUP GLOBAL MARKETS INC., AS
JOINT LEAD ARRANGERS AND JOINT BOOK
MANAGERS
NAME OF INSTITUTION:
GMAC Commercial Finance Corporation -
Canada
By: /s/ Xxxxxx Majale
------------------------------------
Name: XXXXXX MAJALE
Title: Authorized Signatory
(Signature Page to ABL Credit Agreement]
SIGNATURE PAGE TO THE CREDIT AGREEMENT
DATED AS OF NOVEMBER 27, 2006, AMONG RSC
HOLDINGS II, LLC, RSC HOLDINGS III, LLC,
RENTAL SERVICE CORPORATION, RENTAL
SERVICE CORPORATION OF CANADA LTD., EACH
OTHER BORROWER PARTY HERETO, THE LENDERS
FROM TIME TO TIME PARTY HERETO, DEUTSCHE
BANK AG, NEW YORK BRANCH, AS U.S.
ADMINISTRATIVE AGENT AND U.S. COLLATERAL
AGENT, DEUTSCHE BANK AG, CANADA BRANCH,
AS CANADIAN ADMINISTRATIVE AGENT AND
CANADIAN COLLATERAL AGENT, CITICORP
NORTH AMERICA, INC., AS SYNDICATION
AGENT, AND DEUTSCHE BANK SECURITIES INC.
AND CITIGROUP GLOBAL MARKETS INC., AS
JOINT LEAD ARRANGERS AND JOINT BOOK
MANAGERS
NAME OF INSTITUTION:
Xxxxxxx Xxxxx Capital, a Division of
Xxxxxxx Xxxxx Business Financial
Services Inc.
By: /s/ Xxx Xxxxxxxx
------------------------------------
Name: Xxx Xxxxxxxx
Title: Director
[Signature Page to ABL Credit Agreement]
SIGNATURE PAGE TO THE CREDIT AGREEMENT
DATED AS OF NOVEMBER 27, 2006, AMONG RSC
HOLDINGS II, LLC, RSC HOLDINGS III, LLC,
RENTAL SERVICE CORPORATION, RENTAL
SERVICE CORPORATION OF CANADA LTD., EACH
OTHER BORROWER PARTY HERETO, THE LENDERS
FROM TIME TO TIME PARTY HERETO, DEUTSCHE
BANK AG, NEW YORK BRANCH, AS U.S.
ADMINISTRATIVE AGENT AND U.S. COLLATERAL
AGENT, DEUTSCHE BANK AG, CANADA BRANCH,
AS CANADIAN ADMINISTRATIVE AGENT AND
CANADIAN COLLATERAL AGENT, CITICORP
NORTH AMERICA, INC., AS SYNDICATION
AGENT, AND DEUTSCHE BANK SECURITIES INC.
AND CITIGROUP GLOBAL MARKETS INC., AS
JOINT LEAD ARRANGERS AND JOINT BOOK
MANAGERS
NAME OF INSTITUTION: XXXXXXX XXXXX
CAPITAL CANADA INC.
/s/ Illegible
-----------------------------------
By: /s/ Xxxxxxx Xxxxxxxxx
------------------------------------
Name: XXXXXXX XXXXXXXXX
Title: AUTHORIZED SIGNATORY
[Signature Page to ABL Credit Agreement]
SIGNATURE PAGE TO THE CREDIT AGREEMENT
DATED AS OF NOVEMBER 27, 2006, AMONG RSC
HOLDINGS II, LLC, RSC HOLDINGS III, LLC,
RENTAL SERVICE CORPORATION, RENTAL
SERVICE CORPORATION OF CANADA LTD., EACH
OTHER BORROWER PARTY THERETO, THE
LENDERS PARTY THERETO FROM TIME TO TIME,
DEUTSCHE BANK AG, NEW YORK BRANCH, AS
U.S. ADMINISTRATIVE AGENT AND U.S.
COLLATERAL AGENT, DEUTSCHE BANK AG,
CANADA BRANCH, AS CANADIAN
ADMINISTRATIVE AGENT AND CANADIAN
COLLATERAL AGENT, CITIGROUP GLOBAL
MARKETS INC., AS SYNDICATION AGENT, AND
DEUTSCHE BANK SECURITIES INC. AND
CITIGROUP GLOBAL MARKETS INC., AS JOINT
LEAD ARRANGERS AND JOINT BOOK MANAGERS
NAME OF INSTITUTION:
BMO CAPITAL MARKETS FINANCING, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Managing Director
-191-
SIGNATURE PAGE TO THE CREDIT AGREEMENT
DATED AS OF NOVEMBER 27, 2006, AMONG RSC
HOLDINGS II, LLC, RSC HOLDINGS III,
LLC, RENTAL SERVICE CORPORATION, RENTAL
SERVICE CORPORATION OF CANADA LTD., EACH
OTHER BORROWER PARTY HERETO, THE LENDERS
FROM TIME TO TIME PARTY HERETO, DEUTSCHE
BANK AG, NEW YORK BRANCH, AS U.S.
ADMINISTRATIVE AGENT AND U.S. COLLATERAL
AGENT, DEUTSCHE BANK AG, CANADA BRANCH,
AS CANADIAN ADMINISTRATIVE AGENT AND
CANADIAN COLLATERAL AGENT, CITICORP
NORTH AMERICA, INC., AS SYNDICATION
AGENT, AND DEUTSCHE BANK SECURITIES INC.
AND CITIGROUP GLOBAL MARKETS INC., AS
JOINT LEAD ARRANGERS AND JOINT BOOK
MANAGERS
NAME OF INSTITUTION:
LLOYDS THE COMMERCIAL FINANCE LTD.
By: /s/ Xxxxxx Harruon
------------------------------------
Name: Xxxxxx Harruon
Title: VP - ABL.
[Signature Page to ABL Credit Agreement]
SIGNATURE PAGE TO THE CREDIT AGREEMENT
DATED AS OF NOVEMBER 27, 2006, AMONG RSC
HOLDINGS II, LLC, RSC HOLDINGS III, LLC,
RENTAL SERVICE CORPORATION, RENTAL
SERVICE CORPORATION OF CANADA LTD., EACH
OTHER BORROWER PARTY HERETO, THE LENDERS
FROM TIME TO TIME PARTY HERETO, DEUTSCHE
BANK AG, NEW YORK BRANCH, AS U.S.
ADMINISTRATIVE AGENT AND U.S. COLLATERAL
AGENT, DEUTSCHE BANK AG, CANADA BRANCH,
AS CANADIAN ADMINISTRATIVE AGENT AND
CANADIAN COLLATERAL AGENT, CITICORP
NORTH AMERICA, INC., AS SYNDICATION
AGENT AND DEUTSCHE BANK SECURITIES INC.
AND CITIGROUP GLOBAL MARKETS INC., AS
JOINT LEAD ARRANGERS AND JOINT BOOK
MANAGERS
NAME OF INSTITUTION:
SUNTRUST BANK
By: /s/ Xxxx Xxxxxxxxx
------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Vice President
[Signature Page to ABL Credit Agreement]
SIGNATURE PAGE TO THE CREDIT AGREEMENT
DATED AS OF NOVEMBER 27, 2006, AMONG RSC
HOLDINGS II, LLC, RSC HOLDINGS III, LLC,
RENTAL SERVICE CORPORATION, RENTAL
SERVICE CORPORATION OF CANADA LTD., EACH
OTHER BORROWER PARTY HERETO, THE LENDERS
FROM TIME TO TIME PARTY HERETO, DEUTSCHE
BANK AG, NEW YORK BRANCH, AS U.S.
ADMINISTRATIVE AGENT AND U.S. COLLATERAL
AGENT, DEUTSCHE BANK AG, CANADA BRANCH,
AS CANADIAN ADMINISTRATIVE AGENT AND
CANADIAN COLLATERAL AGENT, CITICORP
NORTH AMERICA, INC., AS SYNDICATION
AGENT, AND DEUTSCHE BANK SECURITIES INC.
AND CITIGROUP GLOBAL MARKETS INC., AS
JOINT LEAD ARRANGERS AND JOINT BOOK
MANAGERS
NAME OF INSTITUTION:
BURDALE FINANCIAL LIMITED
By: /s/ Xxxxx Xxxx
------------------------------------
Name: Xxxxx Xxxx
Title: Director
By: /s/ Xxxxxx Xxxxx
------------------------------------
Name: Xxxxxx Xxxxx
Title: Director
[Signature Page to ABL Credit Agreement]
SIGNATURE PAGE TO THE CREDIT AGREEMENT
DATED AS OF NOVEMBER 27, 2006, AMONG RSC
HOLDINGS II, LLC, RSC HOLDINGS III, LLC,
RENTAL SERVICE CORPORATION, RENTAL
SERVICE CORPORATION OF CANADA LTD., EACH
OTHER BORROWER PARTY HERETO, THE LENDERS
FROM TIME TO TIME PARTY HERETO, DEUTSCHE
BANK AG, NEW YORK BRANCH, AS U.S.
ADMINISTRATIVE AGENT AND U.S. COLLATERAL
AGENT, DEUTSCHE BANK AG, CANADA BRANCH,
AS CANADIAN ADMINISTRATIVE AGENT AND
CANADIAN COLLATERAL AGENT, CITICORP
NORTH AMERICA, INC., AS SYNDICATION
AGENT, AND DEUTSCHE BANK SECURITIES INC.
AND CITIGROUP GLOBAL MARKETS INC., AS
JOINT LEAD ARRANGERS AND JOINT BOOK
MANAGERS
NAME OF INSTITUTION:
CITIZENS BUSINESS CAPITAL, A DIVISION OF
CITIZENS LEASING CORPORATION
By: /s/ Xxxxx Xxxxx
------------------------------------
Name: Xxxxx Xxxxx
Title: Assistant Vice President
[Signature Page to ABL Credit Agreement]
SIGNATURE PAGE TO THE CREDIT AGREEMENT
DATED AS OF NOVEMBER 27, 2006, AMONG RSC
HOLDINGS II, LLC, RSC HOLDINGS III, LLC,
RENTAL SERVICE CORPORATION, RENTAL
SERVICE CORPORATION OF CANADA LTD, EACH
OTHER BORROWER PARTY HERETO, THE LENDERS
FROM TIME TO TIME PARTY HERETO, DEUTSCHE
BANK AG, NEW YORK BRANCH, AS U.S.
ADMINISTRATIVE AGENT AND U.S. COLLATERAL
AGENT, DEUTSCHE BANK AG, CANADA BRANCH,
AS CANADIAN ADMINISTRATIVE AGENT, AND
CANADIAN COLLATERAL AGENT, CITICORP
NORTH AMERICA, INC., AS SYNDICATION
AGENT, AND DEUTSCHE BANK SECURITIES INC.
AND CITIGROUP GLOBAL MARKETS INC., AS
JOINT LEAD ARRANGERS AND JOINT BOOK
MANAGERS
NAME OF INSTITUTION:
Union Bank of California, N.A.
By: /s/ Xxxxx Xxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
[Signature Page to ABL Credit Agreement]
SIGNATURE PAGE TO THE CREDIT AGREEMENT
DATED AS OF NOVEMBER 27, 2006, AMONG RSC
HOLDINGS II, LLC, RSC HOLDINGS III, LLC,
RENTAL SERVICE CORPORATION, RENTAL
SERVICE CORPORATION OF CANADA LTD., EACH
OTHER BORROWER PARTY HERETO, THE LENDERS
FROM TIME TO TIME PARTY HERETO, DEUTSCHE
BANK AG, NEW YORK BRANCH, AS U.S.
ADMINISTRATIVE AGENT AND U.S. COLLATERAL
AGENT, DEUTSCHE BANK AG, CANADA BRANCH,
AS CANADIAN ADMINISTRATIVE AGENT AND
CANADIAN COLLATERAL AGENT, CITICORP
NORTH AMERICA, INC., AS SYNDICATION
AGENT, AND DEUTSCHE BANK SECURITIES INC.
AND CITIGROUP GLOBAL MARKETS INC., AS
JOINT LEAD ARRANGERS AND JOINT BOOK
MANAGERS
NAME OF INSTITUTION:
HSBC Business Credit (USA) Inc.
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
[Signature Page to ABL Credit Agreement]
SIGNATURE PAGE TO THE CREDIT AGREEMENT
DATED AS OF NOVEMBER 27, 2006, AMONG RSC
HOLDINGS II, LLC, RSC HOLDINGS III, LLC,
RENTAL SERVICE CORPORATION, RENTAL
SERVICE CORPORATION OF CANADA LTD., EACH
OTHER BORROWER PARTY HERETO, THE LENDERS
FROM TIME TO TIME PARTY HERETO, DEUTSCHE
BANK AG, NEW YORK BRANCH, AS U.S.
ADMINISTRATIVE AGENT AND U.S. COLLATERAL
AGENT, DEUTSCHE BANK AG, CANADA BRANCH,
AS CANADIAN ADMINISTRATIVE AGENT AND
CANADIAN COLLATERAL AGENT, CITICORP
NORTH AMERICA, INC., AS SYNDICATION
AGENT, AND DEUTSCHE BANK SECURITIES INC.
AND CITIGROUP GLOBAL MARKETS INC., AS
JOINT LEAD ARRANGERS AND JOINT BOOK
MANAGERS
NAME OF INSTITUTION:
Mizuho Corporate Bank, Ltd.
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxx
Title: Deputy General Manager
[Signature Page to ABL Credit Agreement]
SIGNATURE PAGE TO THE CREDIT AGREEMENT
DATED AS OF NOVEMBER 27, 2006, AMONG RSC
HOLDINGS II, LLC, RSC HOLDINGS III, LLC,
RENTAL SERVICE CORPORATION, RENTAL
SERVICE CORPORATION OF CANADA LTD., EACH
OTHER BORROWER PARTY HERETO, THE LENDERS
FROM TIME TO TIME PARTY HERETO, DEUTSCHE
BANK AG, NEW YORK BRANCH, AS U.S.
ADMINISTRATIVE AGENT AND U.S. COLLATERAL
AGENT, DEUTSCHE BANK AG, CANADA BRANCH,
AS CANADIAN ADMINISTRATIVE AGENT AND
CANADIAN COLLATERAL AGENT, CITICORP
NORTH AMERICA, INC., AS SYNDICATION
AGENT, AND DEUTSCHE BANK SECURITIES INC.
AND CITIGROUP GLOBAL MARKETS INC., AS
JOINT LEAD ARRANGERS AND JOINT BOOK
MANAGERS
NAME OF INSTITUTION:
NATIONAL CITY BANK
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
[Signature Page to ABL Credit Agreement]
SIGNATURE PAGE TO THE CREDIT AGREEMENT
DATED AS OF NOVEMBER 27, 2006, AMONG RSC
HOLDINGS II, LLC, RSC HOLDINGS III, LLC,
RENTAL SERVICE CORPORATION, RENTAL
SERVICE CORPORATION OF CANADA LTD., EACH
OTHER BORROWER PARTY HERETO, THE LENDERS
FROM TIME TO TIME PARTY HERETO, DEUTSCHE
BANK AG, NEW YORK BRANCH, AS U.S.
ADMINISTRATIVE AGENT AND U.S. COLLATERAL
AGENT, DEUTSCHE BANK AG, CANADA BRANCH,
AS CANADIAN ADMINISTRATIVE AGENT AND
CANADIAN COLLATERAL AGENT, CITICORP
NORTH AMERICA, INC., AS SYNDICATION
AGENT, AND DEUTSCHE BANK SECURITIES INC.
AND CITIGROUP GLOBAL MARKETS INC., AS
JOINT LEAD ARRANGERS AND JOINT BOOK
MANAGERS
NAME OF INSTITUTION:
United Overseas Bank Limited, New York
Agency
By: /s/ Xxxxxx Xxx
------------------------------------
Name: Xxxxxx Xxx
Title: FVP & General Manager
By: /s/ Xxxxx Xxxxx
------------------------------------
Name: Xxxxx Xxxxx
Title: AVP
[Signature Page to ABL Credit Agreement]
SIGNATURE PAGE TO THE CREDIT AGREEMENT
DATED AS OF NOVEMBER 27, 2006, AMONG RSC
HOLDINGS II, LLC, RSC HOLDINGS III, LLC,
RENTAL SERVICE CORPORATION, RENTAL
SERVICE CORPORATION OF CANADA LTD., EACH
OTHER BORROWER PARTY HERETO, THE LENDERS
FROM TIME TO TIME PARTY HERETO, DEUTSCHE
BANK AG, NEW YORK BRANCH, AS U.S.
ADMINISTRATIVE AGENT AND U.S. COLLATERAL
AGENT, DEUTSCHE BANK AG, CANADA BRANCH,
AS CANADIAN ADMINISTRATIVE AGENT AND
CANADIAN COLLATERAL AGENT, CITICORP
NORTH AMERICA, INC., AS SYNDICATION
AGENT, AND DEUTSCHE BANK SECURITIES INC.
AND CITIGROUP GLOBAL MARKETS INC., AS
JOINT LEAD ARRANGERS AND JOINT BOOK
MANAGERS
NAME OF INSTITUTION:
Allied Irish Banks, p.l.c.
By: /s/ Xxxxxx XxXxxxxx
------------------------------------
Name: Xxxxxx XxXxxxxx
Title: Assistant Vice President
By: /s/ Eanna P. Mulkere
------------------------------------
Name: Eanna P. Mulkere
Title: Assistant Vice President
[Signature Page to ABL Credit Agreement]
SIGNATURE PAGE TO THE CREDIT AGREEMENT
DATED AS OF NOVEMBER 27, 2006, AMONG RSC
HOLDINGS II, LLC, RSC HOLDINGS III, LLC,
RENTAL SERVICE CORPORATION, RENTAL
SERVICE CORPORATION OF CANADA LTD., EACH
OTHER BORROWER PARTY HERETO, THE LENDERS
FROM TIME TO TIME PARTY HERETO, DEUTSCHE
BANK AG, NEW YORK BRANCH, AS U.S.
ADMINISTRATIVE AGENT AND U.S. COLLATERAL
AGENT, DEUTSCHE BANK AG, CANADA BRANCH,
AS CANADIAN ADMINISTRATIVE AGENT AND
CANADIAN COLLATERAL AGENT, CITICORP
NORTH AMERICA, INC., AS SYNDICATION
AGENT, AND DEUTSCHE BANK SECURITIES INC.
AND CITIGROUP GLOBAL MARKETS INC., AS
JOINT LEAD ARRANGERS AND JOINT BOOK
MANAGERS
NAME OF INSTITUTION:
E*TRADE BANK
By: /s/ Xxx Xxxx
------------------------------------
Name: Xxx Xxxx
Title: Senior Manager
[Signature Page to ABL Credit Agreement]
SIGNATURE PAGE TO THE CREDIT AGREEMENT
DATED AS OF NOVEMBER 27, 2006, AMONG RSC
HOLDINGS II, LLC, RSC HOLDINGS III, LLC,
RENTAL SERVICE CORPORATION, RENTAL
SERVICE CORPORATION OF CANADA LTD., EACH
OTHER BORROWER PARTY HERETO, THE LENDERS
FROM TIME TO TIME PARTY HERETO, DEUTSCHE
BANK AG, NEW YORK BRANCH, AS U.S.
ADMINISTRATIVE AGENT AND U.S. COLLATERAL
AGENT, DEUTSCHE BANK AG, CANADA BRANCH,
AS CANADIAN ADMINISTRATIVE AGENT AND
CANADIAN COLLATERAL AGENT, CITICORP
NORTH AMERICA, INC., AS SYNDICATION
AGENT, AND DEUTSCHE BANK SECURITIES INC.
AND CITIGROUP GLOBAL MARKETS INC., AS
JOINT LEAD ARRANGERS AND JOINT BOOK
MANAGERS
NAME OF INSTITUTION:
The Bank of Nova Scotia - New York
Agency
By: /s/ Xxxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Managing Director
[Signature Page to ABL Credit Agreement]
SIGNATURE PAGE TO THE CREDIT AGREEMENT
DATED AS OF NOVEMBER 27, 2006, AMONG RSC
HOLDINGS II, LLC, RSC HOLDINGS III, LLC,
RENTAL SERVICE CORPORATION, RENTAL
SERVICE CORPORATION OF CANADA LTD., EACH
OTHER BORROWER PARTY HERETO, THE LENDERS
FROM TIME TO TIME PARTY HERETO, DEUTSCHE
BANK AG, NEW YORK BRANCH, AS U.S.
ADMINISTRATIVE AGENT AND U.S. COLLATERAL
AGENT, DEUTSCHE BANK AG, CANADA BRANCH,
AS CANADIAN ADMINISTRATIVE AGENT AND
CANADIAN COLLATERAL AGENT, CITICORP
NORTH AMERICA, INC., AS SYNDICATION
AGENT, AND DEUTSCHE BANK SECURITIES INC.
AND CITIGROUP GLOBAL MARKETS INC., AS
JOINT LEAD ARRANGERS AND JOINT BOOK
MANAGERS
NAME OF INSTITUTION:
Regions Bank
----------------------------------------
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Attorney-in-fact
[Signature Page to ABL Credit Agreement]
SIGNATURE PAGE TO THE CREDIT AGREEMENT
DATED AS OF NOVEMBER 27, 2006, AMONG RSC
HOLDINGS II, LLC, RSC HOLDINGS III, LLC,
RENTAL SERVICE CORPORATION, RENTAL
SERVICE CORPORATION OF CANADA LTD., EACH
OTHER BORROWER PARTY HERETO, THE
LENDERS FROM TIME TO TIME PARTY HERETO,
DEUTSCHE BANK AG, NEW YORK BRANCH, AS
U.S. ADMINISTRATIVE AGENT AND U.S.
COLLATERAL AGENT, DEUTSCHE BANK AG,
CANADA BRANCH, AS CANADIAN
ADMINISTRATIVE AGENT AND CANADIAN
COLLATERAL AGENT, CITICORP NORTH
AMERICA, INC., AS SYNDICATION AGENT, AND
DEUTSCHE BANK SECURITIES INC. AND
CITIGROUP GLOBAL MARKETS INC., AS JOINT
LEAD ARRANGERS AND JOINT BOOK MANAGERS
NAME OF INSTITUTION:
UPS Capital Corporation
By: /s/ Xxxx X. Xxxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Director of Portfolio Management
[Signature Page to ABL Credit Agreement]
SIGNATURE PAGE TO THE CREDIT AGREEMENT
DATED AS OF NOVEMBER 27, 2006, AMONG RSC
HOLDINGS II, LLC, RSC HOLDINGS III, LLC,
RENTAL SERVICE CORPORATION, RENTAL
SERVICE CORPORATION OF CANADA LTD., EACH
OTHER BORROWER PARTY HERETO, THE LENDERS
FROM TIME TO TIME PARTY HERETO, DEUTSCHE
BANK AG, NEW YORK BRANCH, AS U.S.
ADMINISTRATIVE AGENT AND U.S. COLLATERAL
AGENT, DEUTSCHE BANK AG, CANADA BRANCH,
AS CANADIAN ADMINISTRATIVE AGENT AND
CANADIAN COLLATERAL AGENT, CITICORP
NORTH AMERICA, INC., AS SYNDICATION
AGENT, AND DEUTSCHE BANK SECURITIES INC.
AND CITIGROUP GLOBAL MARKETS INC., AS
JOINT LEAD ARRANGERS AND JOINT BOOK
MANAGERS
NAME OF INSTITUTION:
BAYERISCHE LANDESBANK
acting through its New York Branch
By: /s/ Xxxxxx Xxxxxxxx
------------------------------------
Xxxxxx Xxxxxxxx
Senior Vice President
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Xxxxxx X. Xxxxxx
Vice President
[Signature Page to ABL Credit Agreement]
SIGNATURE PAGE TO THE CREDIT AGREEMENT
DATED AS OF NOVEMBER 27, 2006, AMONG RSC
HOLDINGS II, LLC, RSC HOLDINGS III, LLC,
RENTAL SERVICE CORPORATION, RENTAL
SERVICE CORPORATION OF CANADA LTD., EACH
OTHER BORROWER PARTY HERETO, THE LENDERS
FROM TIME TO TIME PARTY HERETO, DEUTSCHE
BANK AG, NEW YORK BRANCH, AS U.S.
ADMINISTRATIVE AGENT AND U.S. COLLATERAL
AGENT, DEUTSCHE BANK AG, CANADA BRANCH,
AS CANADIAN ADMINISTRATIVE AGENT AND
CANADIAN COLLATERAL AGENT, CITICORP
NORTH AMERICA, INC., AS SYNDICATION
AGENT, AND DEUTSCHE BANK SECURITIES INC.
AND CITIGROUP GLOBAL MARKETS INC., AS
JOINT LEAD ARRANGERS AND JOINT BOOK
MANAGERS
Commerzbank AG, New York and Grand
Cayman Branches
By: /s/ Xxxxx X. Spark
------------------------------------
Name: Xxxxx X. Spark
Title: Assistant Vice President
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Assistant Treasurer
[Signature Page to ABL Credit Agreement]
SIGNATURE PAGE TO THE CREDIT AGREEMENT
DATED AS OF NOVEMBER 27, 2006, AMONG RSC
HOLDINGS II, LLC, RSC HOLDINGS III, LLC,
RENTAL SERVICE CORPORATION, RENTAL
SERVICE CORPORATION OF CANADA LTD., EACH
OTHER BORROWER PARTY HERETO, THE LENDERS
FROM TIME TO TIME PARTY HERETO, DEUTSCHE
BANK AG, NEW YORK BRANCH, AS U.S.
ADMINISTRATIVE AGENT AND U.S. COLLATERAL
AGENT, DEUTSCHE BANK AG, CANADA BRANCH,
AS CANADIAN ADMINISTRATIVE AGENT AND
CANADIAN COLLATERAL AGENT, CITICORP
NORTH AMERICA, INC., AS SYNDICATION
AGENT AND DEUTSCHE BANK SECURITIES INC.
AND CITIGROUP GLOBAL MARKETS INC., AS
JOINT LEAD ARRANGERS AND JOINT BOOK
MANAGERS
NAME OF INSTITUTION:
North Fork Business Capital Corporation
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President
[Signature Page to ABL Credit Agreement]
SIGNATURE PAGE TO THE CREDIT AGREEMENT
DATED AS OF NOVEMBER 27, 2006, AMONG RSC
HOLDINGS II, LLC, RSC HOLDINGS III, LLC,
RENTAL SERVICE CORPORATION, RENTAL
SERVICE CORPORATION OF CANADA LTD., EACH
OTHER BORROWER PARTY HERETO, THE LENDERS
FROM TIME TO TIME PARTY HERETO, DEUTSCHE
BANK AG, NEW YORK BRANCH, AS U.S.
ADMINISTRATIVE AGENT AND U.S. COLLATERAL
AGENT, DEUTSCHE BANK AG, CANADA BRANCH,
AS CANADIAN ADMINISTRATIVE AGENT AND
CANADIAN COLLATERAL AGENT, CITICORP
NORTH AMERICA, INC., AS SYNDICATION
AGENT, AND DEUTSCHE BANK SECURITIES INC.
AND CITIGROUP GLOBAL MARKETS INC., AS
JOINT LEAD ARRANGERS AND JOINT BOOK
MANAGERS
NAME OF INSTITUTION:
DNC Bank National Association
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
[Signature Page to ABL Credit Agreement]
SIGNATURE PAGE TO THE CREDIT AGREEMENT
DATED AS OF NOVEMBER 27, 2006, AMONG RSC
HOLDINGS II, LLC, RSC HOLDINGS III, LLC,
RENTAL SERVICE CORPORATION, RENTAL
SERVICE CORPORATION OF CANADA LTD., EACH
OTHER BORROWER PARTY HERETO, THE LENDERS
FROM TIME TO TIME PARTY HERETO, DEUTSCHE
BANK AG, NEW YORK BRANCH, AS U.S.
ADMINISTRATIVE AGENT AND U.S. COLLATERAL
AGENT, DEUTSCHE BANK AG, CANADA BRANCH,
AS CANADIAN ADMINISTRATIVE AGENT AND
CANADIAN COLLATERAL AGENT, CITICORP
NORTH AMERICA, INC., AS SYNDICATION
AGENT, AND DEUTSCHE BANK SECURITIES INC.
AND CITIGROUP GLOBAL MARKETS INC., AS
JOINT LEAD ARRANGERS AND JOINT BOOK
MANAGERS
DZ BANK AG
DEUTSCHE ZENTRAL-
GENOSSENSCHAFTSBANK AG
FRANKFURT AM MAIN
----------------------------------------
By: /s/ Xxxx Xxxxxxxxxxx
------------------------------------
Name: Xxxx Xxxxxxxxxxx
Title: VP
By: /s/ Xxxxx Xxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxx
Title: VP
[Signature Page to ABL Credit Agreement]
SIGNATURE PAGE TO THE CREDIT AGREEMENT
DATED AS OF NOVEMBER 27, 2006, AMONG RSC
HOLDINGS II, LLC, RSC HOLDINGS III, LLC,
RENTAL SERVICE CORPORATION, RENTAL
SERVICE CORPORATION OF CANADA LTD., EACH
OTHER BORROWER PARTY HERETO, THE LENDERS
FROM TIME TO TIME PARTY HERETO, DEUTSCHE
BANK AG, NEW YORK BRANCH, AS U.S.
ADMINISTRATIVE AGENT AND U.S. COLLATERAL
AGENT, DEUTSCHE BANK AG, CANADA BRANCH,
AS CANADIAN ADMINISTRATIVE AGENT AND
CANADIAN COLLATERAL AGENT, CITICORP
NORTH AMERICA, INC., AS SYNDICATION
AGENT, AND DEUTSCHE BANK SECURITIES INC.
AND CITIGROUP GLOBAL MARKETS INC., AS
JOINT LEAD ARRANGERS AND JOINT BOOK
MANAGERS
NAME OF INSTITUTION:
Bank of the West
By: /s/ Xxxxxx Xxxxxx
------------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
[Signature Page to ABL Credit Agreement]
SCHEDULE A
COMMITMENTS
Initial Term Loan U.S. RCF Canadian RCF
Commitment Commitment Commitment
----------------- -------------- ------------
Deutsche Bank AG, New York Branch $250,000,000 $ 77,500,000
Deutsche Bank AG, Canadian Branch $ 7,500,000
Citicorp North America, Inc. $ 77,500,000
Citibank, N.A., Canadian Branch $ 7,500,000
Bank of America, N.A. $ 74,000,000
Bank of America, N.A., Acting
through its Canada Branch $ 6,000,000
General Electric Capital
Corporation $ 74,000,000
GE Canada Finance Holding Company $ 6,000,000
LaSalle Business Credit, LLC $ 74,000,000
LaSalle Business Credit, a division
of ABN AMRO Bank N.V., Canada Branch $ 6,000,000
Wachovia Capital Finance Corp.
(Western) $ 74,000,000
Wachovia Capital Finance Corp.
(Canada) $ 6,000.000
Xxxxx Fargo Bank, N.A. $ 74,000,000 $ 6,000,000
Fortis Capital Corp. $ 67,500,000
Fortis Capital (Canada) Ltd. $ 7,500,000
JPMorgan Chase Bank, N.A. $ 67,500,000
Initial Term Loan U.S. RCF Canadian RCF
Commitment Commitment Commitment
----------------- -------------- ------------
JPMorgan Chase Bank, N.A.,
Toronto Branch $ 7,500,000
The CIT Group / Business Credit,
Inc. $ 60,000,000
CIT Financial LTD. $ 5,000,000
GMAC Commercial Finance LLC $ 60,000,000
GMAC Commercial Finance
Corporation Canada $ 5,000,000
Xxxxxxx Xxxxx Capital, a division
of Xxxxxxx Xxxxx Business
Financial Services Inc. $ 45,000,000
Xxxxxxx Xxxxx Capital Canada Inc. $ 5,000,000
BMO Capital Markets Financing, Inc. $ 40,000,000
Lloyds TSB Commercial Finance Ltd $ 40,000,000
SunTrust Bank $ 40,000,000
Burdale Financial Ltd $ 35,000,000
Citizens Business Capital, A
division of Citizens Leasing
Corporation $ 32,000,000
Union Bank of California, N.A. $ 32,000,000
HSBC Business Credit (USA) Inc. $ 28,000,000
Mizuho Corporate Bank, Ltd. $ 28,000,000
National City Bank $ 28,000,000
United Overseas Bank Limited,
New York Agency $ 28,000,000
Allied Irish Banks, p.l.c. $ 25,000,000
Initial Term Loan U.S. RCF Canadian RCF
Commitment Commitment Commitment
----------------- -------------- ------------
E*Trade Bank $ 25,000,000
The Bank of Nova Scotia - New
York Agency $ 25,000,000
Regions Bank $ 25,000,000
UPS Capital Corporation $ 25,000,000
Bayerische Landesbank $ 20,000,000
Commerzbank AG New York and
Grand Cayman Branches $ 20,000,000
North Fork Business Capital
Corporation $ 20,000,000
PNC Bank National Association $ 20,000,000
DZ Bank AG $ 9,000,000
Bank of West $ 5,000,000
------------ -------------- -----------
TOTAL: $250,000,000 $1,375,000,000 $75,000,000
============ ============== ===========
LENDER ADDRESSES
Lender Address
------ -------
Deutsche Bank AG, New York Branch 00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxxxx Xxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Deutsche Bank AG, Canada Branch Deutsche Bank AG, Canada Branch
000 Xxx Xxxxxx, Xxxxx 0000
Commerce Court West, Box 263
Toronto, Ontario
X0X 0X0 Xxxxxx
Attention: Xxxxxxxxx Xxxxx
Assistant Vice President
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Citicorp North America, Inc. 000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Citibank, N.A., Canadian Branch 000 Xxxxx Xxxxxx Xxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx Xxxxxx
M5J 2M3
Attention: Xxxxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Bank of America, N.A. 000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX
Attention: Xxxxxx X. Xxxxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Lender Address
------ -------
Bank of America, N.A., Acting through its 000 Xxxxx Xxxxxx Xxxx, Xxxxx 0000
Xxxxxx Branch Xxxxxxx, Xxxxxxx
X0X 0X0 Xxxxxx
Attention: Xxxxxx Xxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
General Electric Capital Corporation 201 Xxxxxx 7, X.X. Xxx 0000
Xxxxxxx, XX 00000-0000
Attention: Xxxx XxXxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
GE Canada Finance Holding Company 000 Xxxxxx 0, X.X. Xxx 0000
Xxxxxxx, XX 00000-0000
Attention: Xxxx XxXxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
LaSalle Business Credit, LLC 000 X. Xxxxxxx Xxxxxx, Xxxxx 000
(as an U.S. RCF Lender) Chicago, IL 60603
Attention: Xxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
LaSalle Business Credit, a division 00 Xxxxxxxxxx Xxxxxx West
of ABN AMRO Bank N.V., Canada Branch Suite 1500
Toronto, Ontario
M5K 1GB Canada
Attention: Xxxxx Early
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Wachovia Capital Finance Corp. (Western) 000 Xxxxx Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Wachovia Capital Finance Corp. (Canada) 000 Xxxxxxxx Xxxxxx Xxxx, Xxxxxxx
X0X0X-0000 Xxxxxx
Attention: Niali Xxxxxxxx
Telephone: (000) 000-0000
5
Lender Address
------ -------
Xxxxx Fargo Bank, N.A. 0000 Xxxx Xxxxxx, Xxxxx 0000
X0000-000
Xxxxxx, XX 00000
Attention: Xxxx X. Xxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Fortis Capital Corp. 000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Henk Detailleur
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Fortis Capital (Canada) Corp. 000 0xx Xxxxxx XX
Xxxxx 0000
Xxxxxxx, Xxxxxxx
X0X XX0 Xxxxxx
Attention: Xxxxx Xxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
JPMorgan Chase Bank, N.A. 0000 Xxxx Xxxxxx, 0xx Xxxxx
(Mail Code: TX1-2921)
Xxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
XXXxxxxx Xxxxx Xxxx, X.X., Xxxxxxx Branch 000 Xxx Xxxxxx, Xxxxx Bank Plaza
South Tower, Suite 1800
Xxxxxxx, Xxxxxxx
X0X 0X0 Xxxxxx
Attention: Xxxxxxx Xxxxxxx
Telephone: (000) 000-0000/9144/9235
Telecopier: (000) 000-0000
The CIT Group / Business Credit, Inc. 00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxxx Xxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
6
Lender Address
------ -------
CIT Financial LTD. 00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxxx Xxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
GMAC Commercial Finance LLC 0000 X.X. Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: Xxxxx Shia
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
GMAC Commercial Finance Corporation 0000 X.X. Xxxxxx Xxxxx, Xxxxx 000
Xxxxxx Xxxxxxxxx, XX 00000
Attention: Xxxxx Shia
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Xxxxxxx Xxxxx Capital, a division of Merrill 000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxx Business Financial Services Inc. Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Xxxxxxx Xxxxx Capital Canada Inc. 000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
BMO Capital Markets Financing, Inc. 000 Xxxx Xxxxxx Xxxxxx, 0X
Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Lloyds TSB Commercial Finance Ltd 0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
7
Lender Address
------ -------
SunTrust Bank 000 Xxxxxxxxx Xxxxxx
XX-0000 - 2nd Floor
Xxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Burdale Financial Ltd 000 Xxxxx Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Citizens Business Capital, A division of 00 Xxxxx Xxxxxx
Citizens Leasing Corporation Xxxxxx, XX 00000
Attention: Xxxxx Xxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Union Bank of California, N.A. 000 Xxxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxx Xxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
HSBC Business Credit (USA) Inc. 000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Mizuho Corporate Bank, Ltd. 0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
National City Bank 0000 X. Xxxxx Xxxxxx, Xxxxxxx 00-0000
Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
8
Lender Address
------ -------
United Overseas Bank Limited, New York 000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxx
Telephone: (212) 382-0088 ext. 12
Telecopier: (000) 000-0000
Allied Irish Banks, p.l.c. 000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxx XxXxxxxx/Xxxxxxxx Xxxxxxxx
Telephone: (000) 000-0000/(000) 000-0000
Telecopier: (000) 000-0000
E*Trade Bank 000 Xxxxx Xxxxx Xxxx, 00xx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxx Xxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
The Bank of Nova Scotia - New York Agency Xxx Xxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Regions Bank c/o Regions Business Capital
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
UPS Capital Corporation 00 Xxxxxxxx Xxxxxxx, XX
Xxxxxxx, XX 00000
Attention: Xxxx Xxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Bayerische Landesbank 000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
9
Lender Address
------ -------
Commerzbank AG New York and Grand 2 World Financial Center
Xxxxxx Xxxxxxxx Xxx Xxxx, XX 00000
Attention: Xxxxxxxx Xxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
North Fork Business Capital Corporation 000 Xxxxxxxxxxx Xxxx
XX Xxx 0000
Xxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
PNC Bank National Association Xxx Xxxxx Xxxxxx Xxxxxxxxx, 00xx Xxxxx
Xxxx Xxxxxxxxx, XX 00000
Attention: Xxxxxxx XxXxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
DZ Bank AG 000 Xxxxx Xxxxxx (0xx Xxxxx)
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Bank of West 0000 XxxXxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
Attention: Xxxxxx Xxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
10
Schedule B
to Credit Agreement
Schedule B: Assumed Indebtedness
I. CAPITAL LEASES
1. Motor Vehicle Open Ended Operating Lease No. 0988 dated as of April
24, 2000 between XX Xxxxxxxx Trust and RSC ($122,600,000.00
approximate aggegate principal amount as of November 24, 2006).
II. MORTGAGES
1. Mortgage and Promissory Note, dated September 21, 1993, from RSC (as
successor-in-interest to Acme Acquisition Corp.) in favor of Xxxx
Xxxxx and Xxxx Xxxxx ($35,549.18 approximate aggregate principal
amount as of November 24, 2006).
2. Mortgage and Promissory Note, dated September 21, 1993, from RSC (as
successor-in-interest to Acme Acquisition Corp.) in favor of Xxxxxx
Xxxxxxxx and Xxxxxxx X. Xxxxxxxx ($35,549.18 approximate aggregate
principal amount as of November 24, 2006).
2
Schedule C
to Credit Agreement
Schedule C: Fiscal Periods
For Holdings and each of its Subsidiaries:
- Annual Fiscal Periods begin on January 1 and end on December 31 of each
year;
- Quarterly Fiscal Periods end on March 31, June 30, September 30 and
December 31 of each year; and
- Monthly Fiscal Periods end on the last day of the applicable calendar
month.
3
Schedule D
to Credit Agreement
Schedule D: Rental Fleet Locations
I. RENTAL SERVICE CORPORATION
ADDRESS CITY STATE ZIP CODE
------- ----------------- ----- --------
000 Xxxxxxx 000 Xxxxxxxxx Xxxx XX 00000
000 Xxxxxxxxxx Xxxxx Xxxxxxx XX 00000
0000 Xxxxxxxxx Xxxx Xxxxxx XX 00000
0000 Xxxxx Xxxx Xxxxxx Xxxxxx XX 00000
0000 Xxxxxx Xxxxxx Xxxxxxx Xxxxxxxxxx XX 00000
0000 Xxxxxxx 00 Xxxx Xxxxxxx AL 00000
Xxxxxx Xxxxxx Xxxx Xxxxxxx XX 00000
0000 Xxxxxxxxx Xxxx Xxxxxxxxx XX 00000
0000 Xxxxxx Xxxxx Xxxx Xxxxxx XX 00000
00000 Xxxxxx Xxxx 00 Xxxxx XX 00000
0000 Xxxxxx Xxxxx Xxxx Xxxxxxxxxx XX 00000
0000 Xxxxx Xxxx Xxxx Xxxxxx XX 00000
0000 Xxxxx Xxxx Xxxx Xxxxxx XX 00000
000 Xxxxxxxxxx Xxxxx Xxxxxxxxxx XX 00000
0000 X 0xx Xxxxxx Xxxxxx Xxxxxx XX 00000
0000 Xxxxxxx Xxxxx Xxxx Xxxxxx XX 00000
0000 XxXxxx Xxxxxxx Xxxxxx XX 00000
0000 Xxxxx Xxxxxxxx Xxxxx Xxxxxxxxxx XX 00000
00000 X.X. Xxxxxxx 00 Xxxxxxxxx XX 00000
0000 Xxxxxxxx Xxxxxx Xxxxxxxxxx XX 00000
0000 Xxxxxxxxx Xxxxx Xxxxxxxxxx XX 00000
000 X. Xxxxxxxx Xxxxxx Xxxxxxxxxxx XX 00000
0000 Xxxxx Xxxxxx Xxxx 000 Xxxxxxxxxxx XX 00000
000 Xxxxxx Xxxxxxx Xx Xxxxxx XX 00000
0000 Xxxxxx Xxxxxx Xxxx Xxxxx XX 00000
0000 Xxxxxx Xxxxx Xxxx Xxx Xxxxxxx XX 00000
0000 X. Xxxx Xxxxxxxxxxxx XX 00000
0000 Xxxxxx Xxxx Xxxxxxxxx XX 00000
0000 Xxxxxxx Xxxx Xxxxxx Xxxx XX 00000
0000 Xxxxxxx Xxxx Xxxxxx Xxxx XX 00000
00000 Xxxxx Xxxxx Xxxxx Xxxxxxxxx XX 00000
0000 X. Xxxxxxxx Xxxxxx Xxxx Xxxxx XX 00000
0000 X. 0xx Xxxxxx Xxxxxx XX 00000
0000 X. 00xx Xxxxxx Xxxxxx XX 00000
0000 X. Xxxxxxxx Xxxxxxxxxxxx XX 00000
0000 Xxxxx Xxxxxxxxxx Xxxx Xxxxxx Xxxxxxxx XX 00000
0000 Xxxxxxx #00 Xxxxxxxx Xxxx XX 00000
Xxxxxxxxxxx Xxxx Xxxxxxxx Xxxx XX 00000
0000 Xxxxx Xxxxx Xxxxxx Xxxx Xxxxxx XX 00000
0000 Xxxx Xxxx Xxxxx Xxxx Xxxx Xxxxx XX 00000
0000 X. Xxxxxxxx Xxxxxx Xxxxxxxxx XX 00000
Xxxxxxxxxx Xxxxx Xxxxxxxxx XX 00000
0000 X. Xxxxxxxxxx Xxxxx Xxxxxxxxx XX 00000
4
Schedule D
to Credit Agreement
ADDRESS CITY STATE ZIP CODE
------- ----------------- ----- --------
000 X. Xxxxxxxx Xxxx Xxxxxxx XX 00000
000 X. Xxxxxxxx Xxxx Xxxxxxx XX 00000
0000 XX Xxxxxxx 00 Xxxxx XX 00000
0000 Xxxxx Xxxxxxxxx Xxxx Xxxxxx Xxxx XX 00000
0000 XX Xxxxx Xxxxxx Xxxxxxx XX 00000
00000 Xxxxx 00xx Xxxxxx Xxxxxxx XX 00000
00000 X. Xxxx Xxxxx Xxxx Xxxxxxx XX 00000
0000 X. 0xx Xxxxxx Xxxxxxxx Xxxxxx XX 00000
0000 X. Xxxxxxx 00 Xxxxxxx XX 00000
0000 X. Xxxxxxxx XXX 000 Xxxxxxxxxx XX 00000
0000 Xxxx Xxxxx xx Xxxxx Xxxx Xxx XX 00000
000 Xxxx Xxx Xxxxxxxxx Xxxxxx Xxxxx XX 00000
000 X. Xxxxx Xxxx Xxxxx XX 00000
0000 X. Xxxxxx Xxxx Xxxxxx XX 00000
0000 X 00xx Xxxxxx (Xxx 00) Xxxx XX 00000
0000 Xxxxxxxx Xxxxxxx Xxxxxxxxxxx XX 00000
000 X. Xxxx Xxxxx Xxxxxxxxx XX 00000
0000 Xxxxxx Xxxxx, #000 Xxxxxxxx XX 00000
000 Xxxxx Xxxxxxx Xxxxxx Xx Xxxxx XX 00000
0000 Xxxxx Xxxxx Xxxxxx Xxxxxx XX 00000
Cabazon Xxxxxx Xxxxx XX 00000
0000 X. Xxxxxx Xxxxxx Xxxx Xxxxx XX 00000
0000 Xxxxxxx Xxxxxxxxx Xxxxxxxx XX 00000
00000 Xxx #00 XxXxxxxxxx XX 00000
0000 Xxxxxxx Xxxxxx Xxxxxxx XX 00000
000 X. XxXxxxxx Xxxxx Xxxxxxxxx XX 00000
0000 Xxxxx Xxx Xxxx Xxxxxxxxxx XX 00000
0000 Xxxxxxx Xxxxxx Xxx Xxxxxxxxx XX 00000
0000 X'Xxxxx Xxxxxx Xxx Xxxx XX 00000
0000 X. Xxxxx Xxxxxx Xxxxx Xxx XX 00000
0000 Xxxxx Xxxxxxx 00 Xxxxxxxx XX 00000
0000 Xxxxxx Xxxxxx Xxx Xxxxxx XX 00000
00000 Xxxxx Xxxxxx Xxxxxx Xxxxxxxx XX 00000
Xxxxxxx Xxxxxxxxx & 00xx Xxxxxx Xxxxxx XX 00000
0000 Xxxxxx Xxxxxx Xxxx #000 Xxxxxxxxxxxx XX 00000
0000 Xxxxxxx Xxxx 000 Xxxxxxxxxxxx XX 00000
000 00xx Xxxx Xxxxxxx XX 00000
0000 Xxxxx Xxxxx Xxxxxxxx Xxxxxxx XX 00000
000 Xxxxxx Xxxxxx Xxxxxxxx Xxxxxxx XX 00000
00000 Xxxx 00xx Xxxxxx Xxxxxx XX 00000
0000 Xxxx Xxxxxx Xxxxxx XX 00000
0000 Xxxxxxxx Xxx. Xxx X-00 Xxxxx XX 00000
0000 X. Xxxxxxxx Xxxx Xxxxxxx XX 00000
000 0xx Xxxxxx Xxxxxxx XX 00000
000 X. 00xx Xxxxxx Xxxxxxxx XX 00000
00000 X. Xxxxxxx 00 Xxxxxxxxx XX 00000
000 X. Xxxxxx Xxxx Xxxxxxxx XX 00000
0000 X. Xxxx Xxxxxx Xxxxxxxx XX 00000
5
Schedule D
to Credit Agreement
ADDRESS CITY STATE ZIP CODE
------- ----------------- ----- --------
00000 Xxxxx Xxx Xxxxxx XX 00000
000 X Xxxxx Xx Xxxxxx Xxxxxx XX 00000
000 Xxxxx Xxxxxx Xxxxxxxxxxxx XX 00000
0000 Xxxxxxxx Xxxxx Xxxxxxxxx Xxxxxxx XX 00000
000 Xxxx 00xx Xxxxxx Xxxxxxxx XX 00000
00000 Xxxxxx Xxxxxxx Xxxxxx XX 00000
000 Xxxxx Xxxx Xxx Xxxxxx XX 00000
00 X Xxxxxxx Xxxxxxxxx, Xxxxx 000 Xxx Xxxxxx XX 00000
0000 X. Xxxxx Xxxx 000 Xxxxx XX 00000
0000 Xxxxx Xxxxxx Xxxxxxx Xxxxx XX 00000
000 Xxxxxx Xxxxxx Xxxx Xxxxxx Xxxxx XX 00000
0000 Xxxxxx Xxxxxx Xx. Xxxxx XX 00000
0000 X. XX Xxxxxxx 0 Xx. Xxxxxx XX 00000
0000 X. Xxxxxx Xxxxxx Xxxxxxxxxxxx XX 00000
0000 Xxxxxxx Xxxxxxx Xxxxxxxxxxxx XX 00000
0000 Xxxxx Xxxxxx Xxxxxxxxx XX 00000
(c/o BVCC) 0000 Xxxxxx Xxxx Xxxxx Xxxxx, XX 00000
000 X.X. Xxxxxxxxx Xxxxxxx Xxxx Xxxx XX 00000
0000 Xxxxxx Xxxx Xxxx Xxxxxxxx XX 00000
0000 Xxx. 00 X. Xxxxxxxx XX 00000
00000 00xx Xxxxxx X. Xxxxx XX 00000
000 Xxxxx Xxx & Xxx 00 Xxxxxxxx XX 00000
000 Xxxx Xxxxx Xxxxxx Xxxxxxxx XX 00000
4201 X.X. XxXxxx Xxxxxxx XX 00000
000 Xxxxxx Xxxx - Xxxxxxx Xxxxxxxx Xxxxxxx XX 00000
0000 Xxxx 00xx Xxxxxx Xxxxxx Xxxx XX 00000
0000 X. Xxxxxxxxx Xxxxxxxxx Xxxxxxxxx XX 00000
000 X.X. 00xx Xxxxxx Xxxxxxx Xxxxx XX 00000
0000 XX Xxxxxxx 00 Xxxx Xxxxxx XX 00000
00000 X.X. 00 Xxxxx Xxxx Xxxxxx XX 00000
0000 Xxxxxxx Xxxxx Xxxxxxx XX 00000
0000 X. Xxxxxxxxxx Xxxx Xxxxxxxx XX 00000
000 X.X. Xxxxxxxx Xxxx Xxxxxx XX 00000
000 X.X. Xxxxxxxx Xxxx Xxxxxx XX 00000
000 Xxxx Xxxxxx Xxxxxx Xxxxxxxxxxx XX 00000
0000 X. Xxxxxx Xxxxxx Xxxxxxxxxxx XX 00000
0000 Xxxxxxx Xxxxxx XX Xxxxxxxxxxx XX 00000
0000 X. Xxxxx Xxxxx Xxxxx XX 00000
0000 Xxxxxxxx Xxxxx Xxxxx XX 00000
0000 Xxxxxxxx Xxxxxxxxx Xxxx Xxxx Xxxxx XX 00000
000 0xx Xxxxxx XX Xxxxxx Xxxxx XX 00000
000 X. Xxxxxxxx Xxxxxxxxx Xxxxxx XX 00000
0000 Xxx Xxxxxxxx Xxxx. Xxxxxxx XX 00000
00 Xxxxx Xxxxxx Xxxxxx XX 00000
0000 Xxxxxxxxxx Xx Xxxxxxxxx XX 00000
000 Xxxxxxxxx Xxxx Xxxxx XX 00000
0000 Xxxxxxxxxx Xxxx Xxxxxxxx XX 00000
0000 Xxxx Xxxxxxx Xxxx. Xxxxxxxx XX 00000
6
Schedule D
to Credit Agreement
ADDRESS CITY STATE ZIP CODE
------- ----------------- ----- --------
0000 Xxxx Xxxxxxx Xxxx Xxxxxxxx XX 00000
Lot 000 Xxxxxxx 0 Xxxxxxx XX 00000
000 Xxxx Xxxxxx Xxxxxx Xxxxxx XX 00000
0000 Xxxxxx Xxxxx Xxxxxxx XX 00000
0000 Xxxxxxxx Xxxxxxx Xxxxxxxxxxxx XX 00000
000 Xxxxx Xxxxxxxxxx Xxxxxxx XX 00000
0000 Xxxxxxxx Xxxx Xx Xxxxxx XX 00000
000 Xxxxxxxxx Xxxxxx Xxxx Xxxxxxxxxxxxx XX 00000
0000 Xxxxxx Xxxx Xxxxxxxx XX 00000
00 Xxxxxxx Xxxx Xxxxxx XX 00000
000 Xxx 000 X.X. Xxxxxxxxx XX 00000
0000 Xxxxxx Xxxxx Xxxxxxx Xxxx XX 00000
0000 Xxxxxxx Xxxxxxx Xxxxx Xxxxxxxx XX 00000
00000 X.X. Xxxxxxx 00 Xxxx Xxxxxxxxxx XX 00000
00000 Xxxxxxx 00 Xxxx Xxxxxxxxxxx XX 00000
0000 Xxxxx Xxxxxxxxx Xxxx Xxxxxxxx XX 00000
000 Xxxxx Xxxxxxx Xxxx Xxxx Xxxxxx Xxxxxx XX 00000
0000 XX 0xx Xxxxxx Xxxx XX 000000
0000 0xx Xxxxxx XX Xxxxx Xxxxxx XX 00000
0000 X. 00xx Xxxxxx Xxxxxxx XX 00000
0000 XX Xxxxxxxx Xxx Xxxxxx XX 00000
000 X. 00xx Xxxxxx Xxxxxxx XX 00000
0000 Xxxxxxxxxx Xxxxxx Xxxxxxxxx XX 00000
0000 Xxxxxxx Xxxxxxxxx Xxxxxxx XX 00000
0000 Xxxxxxxxx Xxxxxx Xxxxxxxx XX 00000
0000 X. Xxxxx Xxxxxxxx Xxxx Xxxxxxxxxx XX 00000
0000 Xxxxx Xxxx Xxxxxx Xxxxxxxxxxx XX 00000
00000 Xxxxx Xxxxxxxx Xxxx Xxxx Xxxxxxxxx XX 00000
0000 Xxx Xxxxxxx Xxxxx Xxxxxxxxxxxx XX 00000
4419 & 0000 Xxxx Xxxxxx Xxxx Xxxxxxx XX 00000
0000 Xxxx Xxxxxxx Xxxxxxx XxXxxx XX 00000
0000 X. Xxxx Xxxxxx Xxxx Xxxxxx XX 00000
0000 Xxxx Xxxxxxx Xxxx XxX Xxxxx Xxxxxxx XX 00000
0000 00xx Xxxxxx Xxxxxx XX 00000
0000 X. Xxxxxx Xxxx XX 00000
0000 Xxxxx Xxxxxx Xxxxxx XX 00000
0000 00xx Xxxxxx Xxxxxxxx XX 00000
x/x Xxxxx Xxx-Xxxxxxxxxx Xxxxxxxxx, Xx. 000 Xxxxxx XX 00000
0000 X. Xxxxxxx Xxxxxxx Xxxxxxxxxxx XX 00000
0000 Xxxxxxx Xxxxx Xxxxxx XX 00000
000 X. Xxxxxxx Xxxxxx X. Xxxxxxx XX 00000
000 X. Xxxxxxx Xxxxxx X. Xxxxxxx XX 00000
0000 Xxxxxxxxxxxxx Xxxxxx Xxxxxxxxxx XX 00000
0000 X. Xxxxxxx Xxxxxx Xxxxxxxxxxxx XX 00000
0000 Xxxxx Xxxxxxxxx Xxxx Xxxxx Xxxx XX 00000
0000 Xxxx 00xx Xxxxxx Xxxxx XX 00000
000 Xxxxx 00xx Xxxxxx Xxxxx Xxxx XX 00000
0000 Xxxx Xxxxxx Xxxx XX 00000
7
Schedule D
to Credit Agreement
ADDRESS CITY STATE ZIP CODE
------- ----------------- ----- --------
00xx Xx & Xxxxxxx Xxxxxx Xxxxxxxx XX 00000
000 X. Xxxxxx Xxxxxx Xxxxxxx XX 00000
000 Xxxxx Xxxx Xxxxxxxxx XX 00000
00000 X. Xxxxxx Xxxx Xxxxxx XX 00000
0000 X. Xxxxxxxx Xxxxxx XX 00000
0000 X. Xxxx Xxxxxxx XX 00000
0000 Xxxx Xxxxxxx Xxxxx Xxxxxxx XX 00000
000 Xxxxxx Xxxx Xxxxxxx Xxxxx XX 00000
000 X Xxxxxxxxxx Xxx Xxxxxxx Xxxxxx XX 00000
000 Xxxxx 0xx Xxxxxx Xxxxxxxx XX 00000
000 X. 0xx Xxxxxx Xxxxxxxx XX 00000
0000 X. Xxxxx Xxxxxxx Xxxxxxxxxxxxx XX 00000
00 Xxxxxxx Xxxxxxx Xxxx Xxxxxxx XX 00000
0000 Xxxxxx Xxx Xxx Xxxxxxxxx XX 00000
0000 Xxxxx X. Xxxxxx Xxxxxx Xxxxxxxxxx XX 00000
0000 Xxxx Xxxxxx / X.X. Xxxxxxx 00 Xxxxxxx XX 00000
0000 Xxxxxx Xxxxx Xxxxxxxx XX 00000
0000 Xxxxxxxx Xxxxxxxxx Xxxxxxxxxx XX 00000
6952 & 0000 Xxxxxxx Xxxxxxx Xxxxx Xxxxx XX 00000
000 Xxxxxxxx Xxxxxx Xxxxx Xxxxx XX 00000
0000 Xxxxxxx 00 Xxxx Xxxxxxxxx XX 00000
0000 Xxxxx Xxxx-Xxxx #0 Xxxxxxxxx XX 00000
0000 Xxxxxxx 00 Xxxxxxxxxxxxxx XX 00000
0000 Xxxxx Xxxx Xxxxxxx XX 00000
00000 Xxxxxxx 00 Xxxxxxxx XX 00000
00000 X. Xxxx Xxxxxx Xxxxx XX 00000
0000 X. Xxxxxxx Xxxxxxx XxXxxxx XX 00000
00000 Xxxx Xxxxxxx Xxxxxxx Xxxxxxxxx XX 00000
00000 Xxxxxxx 00 Xxxxxxxxxx XX 00000
00000 Xxxx Xxxxxxx Xxxxxxx Xxx Xxxxxxx XX 00000
Xxx. 00 - Xxxx 00 Xxxxx XX 00000
000 Xxxxxxxx Xxxxxx Xxxxxxxxx XX 00000
00000 Xxxxxxxxxx Xxxxxxxxx Xxxxxxxxxx XX 00000
000 Xxxxxxxx Xxxxxxxxx Xxxxxxxxxx XX 00000
000 Xxx. 000 Xxxxxxx XX 00000
0000 Xxxxxx Xxxxxxx Xxxxxxx Xxxxxxxx XX 00000
0000 Xxx Xxxxxxx Xxxxx Xxxxxxxx XX 00000
Ppg- 0000 Xxx Xxxxx Xxxxxxxx XX 00000
0000 X. Xxxx Xxxxxxxxxx Xxxxxxxx XX 00000
0000 X. Xxxx Xxxxxxxxxx Xxxxxxxx XX 00000
0000 Xxxxxxxx Xxxxx Xxxxxxxx XX 00000
0000 Xxxxxxxxxx Xxxxxxxxx Xxxxxxxxx XX 00000
0000 Xxxxxx Xxx Xxxxxxxxxxx XX 00000
0000 Xxxxxxxxx Xxxxxxxxx Xxxxxxxxx XX 00000
0000 Xxxxx Xxxxx Xxxxxxxxxx XX 00000
0000 X. Xxxxxxxx Xxxxxx Xxxxx Xxxxxx XX 00000
0000 00xx Xxxxxx XX Xxxxx Xxxxxx XX 00000
0000 Xxxxxxxx Xxxx XX Xxxxxx XX 00000
8
Schedule D
to Credit Agreement
ADDRESS CITY STATE ZIP CODE
------- ----------------- ----- --------
0000 Xxxxxxx 00 Xxxx Xxxxxxxxxx XX 00000
0000 Xxxx Xxxxx Xxxxxx Xxxxxx XX 00000
0000 X. 00xx Xxxxxx & 0000 00xx Xxxxxx X. Xxxxxxx XX 00000
0000 Xxxxxx Xxxxxxxxx Xxxxxxx XX 00000
0000 Xxxxxx Xxxxxxxxx Xxxxxxx XX 00000
0000 Xxxxxxxxx Xxxx Xxxxxxxx XX 00000
0000 Xxxxxx Xxxx Xxxxxxxx XX 00000
0000 Xxxxxxx 00 Xxxxx Xxxxxxxxx XX 00000
0000 Xxxxxxxx Xxxxx Xx. Xxxxx XX 00000
0000 Xxxxxxxxxx Xxx. Xxxxxxxxx Xxxxxxxxx XX 00000
0000 Xxxxxxxx Xxxxxxxxxx Xxxx Xxxxxxxxx XX 00000
0000 Xxxxxxxx Xxxxx Xxxxxxxx XX 00000
000 Xx. Xxxxxxxxx Xxxxxxxxxx XX 00000
#00 Xxxxxxxxxx Xxxx Xxxxx Xxxxxxxxx XX 00000
0000 Xxxxxx Xxxx Xxxxxx XX 00000
0000 Xxxxxxxxxx Xxxxxx Xxxx XX 00000
0000 X. Xxxxxx Xxxxxx Xxxxxxxxxx XX 00000
0000 Xxxxxxxxx Xxxxxx Xxxxxxxxxx XX 00000
951 SE. Xxxxxx Xxxxxxx Xxxx Xxxxxx XX 00000
0000 Xxxxxxx 00 Xxxxx Xxxxx XX 00000
0000 X. Xxxxxx Xxxxxx Xxxxx XX 00000
0000 X. Xxxxxxx Xxxxxxxxxxx XX 00000
0000 Xxxx Xxxx Xx. Xxxxxxx XX 00000
0000 Xxxxx Xxxxxxx Xxxx Xx. Xxxxxx XX 00000
000 X. Xxxxx Xxxxxxxxxxx XX 00000
000 Xxxxxx Xxxxx Xxxxxxxxxxx XX 00000
000 Xxxxxxx Xxxxxx Xxxxxxxx XX 00000
00 Xxxxx Xxxx Xxxxxxx XX 00000
00000 Xxxxx Xxxxx Xxxxx Xxxxxxxx XX 00000
0000 Xxxxxxx 00 Xxxxx Xxxxxxxxxxx XX 00000
0000 Xxxxxxx 00 Xxxx Xxxxxxx XX 00000
0000 X. Xxxxxxxx Xxxx Xxxxxxxx XX 00000
On-Site facility at Chevron Products Xxxxxxxxxx XX 00000
0000 Xxxxxxx Xxxx Xxxxxxxxx XX 00000
000 Xxxxxxxxxx Xxxx Xxxx Xxxxxxxxxx XX 00000
Xxxxxxx 00 Xxxxxx @ Xxxx Road Xxxxxxxxxx XX 00000
0000 Xxxxx Xxxxxx Xxxxxxxxx Xxxxxx XX 00000
000 Xxxxxxx 00 Xxxxx Xxxxxxxxx XX 00000
0000 Xxxxxxx Xxxxx Xxxx Xxxxx XX 00000
000 Xxxxxxx Xxxxx Xxxx Xxxxxxxxx XX 00000
0000 Xxxxxxxx Xxxxxx Xxxxxxxxx XX 00000
00000 Xxxxxxxxx Xxxxxxx Xxxxxxxxx XX 00000
000-X Xxxxxxx Xx Xxxxxxxxx XX 00000
000 Xxx. 00 Xxxxx Xxxxxxx XX 00000
000 X. XxXxxxx Xxxxxx Xxxxxx XX 00000
0000 Xxxxxxxx Xxxxxxxxx Xxxxxxxxx Xxxx XX 00000
0000 Xxxxxxxxx Xxxx Xxxxxxxxxxxx XX 00000
0000 Xxxxxxxxx Xxxx Xxxxxxxxxxxx XX 00000
9
Schedule D
to Credit Agreement
ADDRESS CITY STATE ZIP CODE
------- ----------------- ----- --------
000 Xxxxx Xxxx Xxxxxxxxxx XX 00000
000 Xxxxxx Xxxxxx Xxxxxxxxxxxx XX 00000
0000 Xxxxxxx 00 Xxxx Xxxxxx XX 00000
342 & 000 Xxxxx Xxxxx, Xxx 000 Xxxxxxxxxxx XX 00000
000 Xxxx Xxxxx Xxxxx Xxxxxxxxxxx XX 00000
0000 Xxxxxx Xxxx Xxxx Xxxxxxx XX 00000
0000 Xxx Xxxx Xxxxxx Xxxxxxx XX 00000
0000 X. Xxxxx Xxxxxx Xxxxxxxxxx XX 00000
NC. 0000 X. Xxxxxxxxx Xxxxxx Xxxxxxx-Xxxxx XX 00000
0000 0xx Xxxxxx XX Xxxxx XX 00000
0000 Xxxxxxx Xxxx Xxxxx Xxxxx XX 00000
000 Xxxxxxxxxx Xxxx Xxxxx XX 00000
0000 Xxxx Xxxxxx Xxxxx Xxxxxx XX 00000
0000 X. 000xx Xxxxxx XxXxxxx XX 00000
0000 Xxxxxxxxxx Xxxxxxx Xxxxxxx XX 00000
1830 Xxxxxxx Xxxxxxx XX 00000
0000 X. 0xx Xxxxxx Xxxxx Xxxxxx XX 00000
000000 Xxxxxxxx Xxxx Xxxxxxxxxxx XX 00000
1090 & 0000 Xxxxxx Xxxx, Xx 00 Xxxxxxx XX 00000
0000 Xxx 00 Xxxx Xxxxxxxxxx XX 00000
000 Xxxx Xxxx XX Xxxxxxxxxxx XX 00000
0000 Xxxxx XX Xxxxxxxxxxx XX 00000
0000 Xxxxxx XX Xxxxxxxxxxx XX 00000
0000 Xxxxx Xxxxxx Xxxxxx XX 00000
000 X. Xxxxxxxx Xxxxxxx Xxxxxxxxxx XX 00000
0000 Xxxx Xxx. 00 Xxxxxx XX 00000
Lots C-5 & X0 Xxx Xxxxxx Xxxx Xxxxx Xx XX 00000
2707 Cerrillos Santa Fe NM 87507
3380 St. Rose Parkway Henderson NV 89052
575 E. Exchange Street Akron OH 44036
3660 Interchange Road Columbus OH 43204
4300 Muhlhauser Road Fairfield OH 45014
1049 S. McCord Road Holland OH 43528
7094 Truck World Boulevard Hubbard OH 44425
5773 Executive Boulevard Huber Heights OH 45424
1291 Medina Road Medina OH 44256
2200 Falcon Road Altus OK 73521
3003 East Broadway Street Altus OK 73521
3212 Prairie Valley Road Ardmore OK 73401
3801 SE Nowata Road Bartlesville OK 74006
3801 SE Nowata Road Bartlesville OK 74006
708 W. Elgin Street Broken Arrow OK 74012
2420 Lee Boulevard Lawton OK 73505
2900 North Interstate Drive Norman OK 73072
8104 Northwest Expressway Oklahoma City OK 73162
324 W. Memorial Road Oklahoma City OK 73114
3101 South Prospect Oklahoma City OK 73129
1000 South Pine Ponca City OK 74602
10
Schedule D
to Credit Agreement
ADDRESS CITY STATE ZIP CODE
------- ----------------- ----- --------
3520 N. Perkins Road Stillwater OK 74075
9222 East 21st Street Tulsa OK 74129
10601 S. Memorial Drive Tulsa OK 74133
3301 North Garnett Road Tulsa OK 74116
61530 S. Highway 97 Bend OR 97702
1385 SE Amber Road Clackamus OR 97015
1819 Highway 101 South Coos Bay OR 97420
2100 Hwy 99N Eugene OR 97402
915 E. Elm Avenue Hermiston OR 97838
3344 Washburn Way Klamath Falls OR 97603
2333 S. Hwy 97 Redmond OR 97756
2661 N.W. Stephens Street Roseburg OR 97470
3092 Silverton Road Salem OR 97301
100 Liberty Lane Chalfont PA 18914
947 Route 22 East Duncansville PA 16635
932 S. 13th Street Harrisburg PA 17104
1209 Marshall Avenue Lancaster PA 17601
6778 Lincoln Highway West Thomasville PA 17364
944 Manifold Rd Washington PA 15301
610 Pine Log Road Aiken SC 29803
8008 Dorchester Road Charleston SC 29418
2841 Azalea Drive Charleston SC 29405
1400 Bluff Road Columbia SC 29201
Lot 2 Sally Hill Farm Business Park Florence SC 29501
1000 Woodruff Road Greenville SC 29607
2402 Highway 72/221 E. Brickyard Road Greenwood SC 29648
132 Matthews Drive Hilton Head SC 29926
709 Seaboard Street Myrtle Beach SC 29577
910 Riverview Road Rock Hill SC 29732
3620 North Lewis Avenue Sioux Falls SD 57104
Highway 70/Kirby-Whitten Road Bartlett TN 38133
5121 Maryland Way Brentwood TN 37027
4293 Highway 58 Chattanooga TN 37416
147 Jack Miller Boulevard Clarksville TN 37042
1500 Fritz Street SE Cleveland TN 37323
1830 Foreman Drive Cookeville TN 38501
608 West Avenue Crossville TN 38555
109 Century Court Franklin TN 37064
174 Kenworth Boulevard Jackson TN 38305
800 Boone Station Road Johnson City TN 37615
10639 Dutchtown Road Knoxville TN 37932
1255 Bridgestone Parkway LaVergne TN 37086
5188 Eastgate Boulevard Lebanon TN 37122
2039 Fletcher Creek Road Memphis TN 38133
6688 W. A. Johnson Highway Morristown TN 37877
1425 S. Church Street Murfreesboro TN 37130
301 Crutcher Street Nashville TN 37213
1766 S. Treadaway Abilene TX 79602
11
Schedule D
to Credit Agreement
ADDRESS CITY STATE ZIP CODE
------- ----------------- ----- --------
3900 Interstate 40 East Amarillo TX 79103
10300 I.H. 35 North Austin TX 78753
East Ben 481 1a /k/Chapman Lane a 3536 White Austin TX 78744
201 Avenue F North Bay City TX 77410
8500 W. Bay Road Baytown TX 77520
4225 College Street Beaumont TX 77707
Bufford St. Gate Beaumont TX 77720
29880 W IH-10 Boerne TX 78006
2700 W. Highway 290 Brenham TX 77833
U.S. Highway 79 South OR 766 Highway 79 West Buffalo TX 75831
8280 Sheldon Road Channelview TX 77530
2301 S. Texas Avenue College Station TX 77840
585 S. Padre Island Corpus Christi TX 78405
585 S. Padre Island Corpus Christi TX 78410
2728 Westmoreland Dallas TX 75212
Highway 225 - Gate 19 Deer Park TX 77536
P.O. Box 651 Deer Park TX 77536
6914 Gateway East El Paso TX 79915
2011 Highway 288 Freeport TX 77541
2011 Highway 288 Freeport TX 77541
602 Copper Road Freeport TX 77541
12997 North Freeway Ft Worth TX 76177
4900 E. Loop 820 South Ft. Worth TX 76119
6311 Harborside Drive Galveston TX 77554
2809 West Kinglsey Road Garland TX 75041
911 South Loop West Houston TX 77054
8424 Hansen Road Houston TX 77075
11003 Bissonnet Houston TX 77099
12245 Veterans Memorial Pkwy Houston TX 77067
15210 FM 529 at Highway 6 Houston TX 77095
8200 East Freeway Houston TX 77029
16225 Park Ten Place - 200 Houston TX 77084
16225 Park Ten Place -110 Houston TX 77084
3595 FM 1960 West Humble TX 77338
820 Bus Highway 30 E Huntsville TX 77320
20202 Park Row Katy TX 77449
1300 W. Central TX Expressway Killeen TX 76542
458 Plantation Drive Lake Jackson TX 77566
8807 & 8787 Highway 225 LaPorte TX 77571
737 East Main Lewisville TX 75057
1419 FM 1845 Longview TX 75603
317 Southeast Loop 289 Lubbock TX 79404
3500 Ellen Trout Drive Lufkin TX 75904
1533 N. McDonald McKinney TX 75071
320 North Highway 67 Midlothian TX 76065
1635 Industrial PK Drive Nederland TX 77627
12
Schedule D
to Credit Agreement
ADDRESS CITY STATE ZIP CODE
------- ----------------- ----- --------
Fm 524 & Hwy 35 South Gate 54 Old Ocean TX 77463
5194 FM 1006 Orange TX 77630
3925 N. Cage Boulevard Pharr TX 78577
32000 SH #249 Pinehurst TX 77362
2727 Avenue K Plano TX 75074
824 S. Hwy 35 Bypass Port Lavaca TX 77979
2735 FM 2218 Rosenberg TX 77471
3301 Interstate Highway 35 North Round Rock TX 78664
2225 Austin Street San Angelo TX 76903
5120 Wurzbach Road San Antonio TX 78238
5333 E. Houston San Antonio TX 78220
5333 E. Houston San Antonio TX 78220
1200 West Business 77 San Benito TX 78586
4542 IH 35 San Marcos TX 78666
2510 S. Main Street Stafford TX 77472
5210 S. General Bruce Temple TX 76502
2022 Texas Boulevard Texarkana TX 75501
4002 Texas Avenue Texas City TX 77590
6931 Woodway Drive Waco TX 76712
2201 Tin Top Road, #400 Weatherford TX 76086
17700 Highway 3 Webster TX 77598
6230 Southwest Parkway Wichita Falls TX 76310
1113 Sheppard Access Road Wichita Falls TX 76304
I-45 North Willis TX 77318
2781 W. 2100 South West Valley City UT 84119
315 West Main Street Charlottesville VA 22903
Meade Street Charlottesville VA 22902
3501 Business Center Drive Chesapeake VA 23323
1570 Radford Road Christiansburg VA 24073
2787 Simmons Drive Cloverdale VA 24077
4616 Lassen Lane Fredericksburg VA 22408
8405 Brook Road Glen Allen VA 23060
8401 Brook Road Glen Allen VA 23060
602 Copeland Drive Hampton VA 23661
161 Charles Street Harrisonburg VA 22802
700 South 15th Avenue Hopewell VA 23860
3560 Young Place Lynchburg VA 24501
11104 Industrial Road Manassas VA 20109
9801 Nokesville Road Manassas VA 20110
13710 Booker T. Washington Highway Moneta VA 24121
6710-6720 Everglades Drive Richmond VA 23225
6725 Atmore Drive Richmond VA 23225
1201 Electric Road Salem VA 24153
43461 Old Ox Road Sterling VA 20164
2413 London Bridge Road Virginia Beach VA 23456
1344 Taylor Farm Road Virginia Beach VA 23456
249 E. Shirley Avenue Warrenton VA 20186
1961 S. Loudoun Street Winchester VA 22601
13
Schedule D
to Credit Agreement
ADDRESS CITY STATE ZIP CODE
------- ----------------- ----- --------
1308 Horner Road Woodbridge VA 22191
501 South Main Ellensburg WA 98926
2810 Highland Avenue Everett WA 98201
W. Clearwater Avenue Kennewick WA 99336
1210 W. Broadway Moses Lake WA 98837
1301 East College Way Mt Vernon WA 98273
9045 Willows Road Redmond WA 98052
5421 1st Avenue South Seattle WA 98108
S. Dawson St. Seattle WA 98108
2302 East "Q" Street Tacoma WA 98421
7920 N.E. St. Johns Rd. Vancouver WA 98665
7920 NE St. Johns Rd Vancouver WA 98665
421 S. Wenatchee Blvd. Wenatchee WA 98801
1610 W. Wisconsin Avenue Appleton WI 54914
3161 Market Street Green Bay WI 54304
2809 Larson Street LaCrosse WI 54603
26 Marsh Court Madison WI 53718
5814 Green Valley Road Oshkosh WI 54904
5809 Highway 8 West Rhinelander WI 54501
5605 Mesker Street Schofield WI 54476
21600 Doral Road Waukesha WI 53186
21650 Doral Road Waukesha WI 53186
309 North Eisenhower Drive Beckley WV 25801
309 North Eisenhower Drive Beckley WV 25801
307 N Eisenhower Drive Beckley WV 25801
181 Oak Carriage Drive Lewisburg WV 24901
319 Oakvale Road Princeton WV 24740
3233 Cy Avenue Casper WY 82604
709 West Lincolnway Cheyenne WY 82001
1450 Coffeen Avenue Sheridan WY 82801
14
Schedule D
to Credit Agreement
II. RENTAL SERVICE CORPORATION OF CANADA LTD.
ADDRESS CITY STATE ZIP CODE
------- ----------------- ----- --------
4915 101st Avenue Edmonton AB T6A-0L6
5518 50th Avenue Bonnyville AB T9N-2K8
15730 118th Avenue Edmonton AB T5V-1C4
275 MacAlpine Crescent Fort McMurray AB T9H 4Y4
265 MacAlpine Crescent Fort McMurray AB T9H 4Y4
244, 2181 Premier Way Sherwood Park AB T8H 2V1
3639 8th Street SE Calgary AB T2G 3A5
6734 - 65th Avenue Red Deer AB T4P 1A5
3915 38th Street Whitecourt AB T7S-1P1
2230-9th Avenue Medicine Hat AB T1A 8E9
1405 33 Street N. Lethbridge AB TAH 5H2
5114 62nd Street Lloydminster AB T9V 2E4
6205 51st Avenue Lloydminster AB T9V 2E4
275 Macalpine Crescent Ft. McMurray AB T9H 4Y4
705 Laval Crescent Kamloops BC V2C 5P2
1375 Vernon Drive Vancouver BC V6A 3C4
1905 Merivale Road Nepean ON K2G 1E7
47 Cardico Drive, Unit 2 Gormley ON L0H 1G0
396 McGregor Road, Unit A Sarnia ON N7T 7H5
5888 Shawson Drive Mississauga ON L4W 3W5
2921 Millar Avenue Saskatoon SK S7K-6P6
235 McDonald St. North Regina SK S4N-5W2
59 17th Street West Prince Albert SK S6V-3X2
850 High Street Moose Jaw SK S6H 1T9
15
Schedule 4.16(a)
to Credit Agreement
Schedule 4.16(a): DDAs
ACCOUNT BANK CONTACT NAME AND
GRANTOR NUMBER NAME OF BANK ADDRESS PHONE NUMBER
------- ------------- ---------------- ----------------------------------- ----------------------
Rental Service Corporation 4426237631 Bank of America, 2136 W. Beaver Street Pat Sheridan (203)
N.A. Jacksonville, FL 32209 973-1982
Rental Service Corporation 4426237644 Bank of America, 8618 Phillips Highway Pat Sheridan (203)
N.A. Jacksonville, FL 32256 973-1982
Rental Service Corporation 4426232267 Bank of America, 3301 Cities Service Highway Pat Sheridan (203)
N.A. Westlake, LA 70669 973-1982
Rental Service Corporation 4426237657 Bank of America, 911 S. Loop West Houston, TX Pat Sheridan (203)
N.A. 77054 973-1982
Rental Service Corporation 4426232270 Bank of America, 38385 Highway 30 Gonzales, Pat Sheridan (203)
N.A. LA 70737 973-1982
Rental Service Corporation 4426230968 Bank of America, U.S.Highway 79 South Buffalo, TX Pat Sheridan (203)
N.A. 75831 973-1982
Rental Service Corporation 4426237660 Bank of America, 8424 Hansen Road Houston, Pat Sheridan (203)
N.A. TX 77075 973-1982
Rental Service Corporation 4426237673 Bank of America, 3500 Ellen Trout Drive Lufkin, Pat Sheridan (203)
N.A. TX 75904 973-1982
Rental Service Corporation 4426230971 Bank of America, 1419 Fm 1845 Longview, TX Pat Sheridan (203)
N.A. 75603 973-1982
Rental Service Corporation 4426237686 Bank of America, 2301 South Texas Avenue College Pat Sheridan (203)
N.A. Station, TX 77840 973-1982
Rental Service Corporation 4426237699 Bank of America, 820 Highway 30 East Pat Sheridan (203)
N.A. Huntsville, TX 77320 973-1982
Rental Service Corporation 4426230984 Bank of America, 2700 West Highway 290 Brenham, TX Pat Sheridan (203)
N.A. 77833 973-1982
Rental Service Corporation 4426237709 Bank of America, 5210 So. General Bruce Temple, TX Pat Sheridan (203)
N.A. 76502 973-1982
Rental Service Corporation 4426237712 Bank of America, 3301 Interstate Highway 35 North Pat Sheridan (203)
N.A. Round Rock, TX 78664 973-1982
Rental Service Corporation 4426232283 Bank of America, 750 Hwy 61 North Vicksburg, MS Pat Sheridan (203)
N.A. 39180 973-1982
Rental Service Corporation 4426237725 Bank of America, 585 South Padre Island Drive Corpus Pat Sheridan (203)
N.A. Christi, TX 78405 973-1982
Rental Service Corporation 4426232296 Bank of America, 4330 Highway 80 West Jackson, MS Pat Sheridan (203)
N.A. 39209 973-1982
Rental Service Corporation 4426232306 Bank of America, 5595 Highway 49 South Hattiesburg, Pat Sheridan (203)
N.A. MS 39401 973-1982
Rental Service Corporation 4426231213 Bank of America, 19862 County Road 20 Foley, AL Pat Sheridan (203)
N.A. 36535 973-1982
16
Schedule 4.16(a)
to Credit Agreement
ACCOUNT BANK CONTACT NAME AND
GRANTOR NUMBER NAME OF BANK ADDRESS PHONE NUMBER
------- ------------- ---------------- ----------------------------------- ----------------------
Rental Service Corporation 4426232319 Bank of America, 227 Shelton Street Columbus, MS Pat Sheridan (203)
N.A. 39702 973-1982
Rental Service Corporation 4426237738 Bank of America, 14144 66th Street North Largo, FL Pat Sheridan (203)
N.A. 33771 973-1982
Rental Service Corporation 4426237835 Bank of America, 6717 U.S.Highway 19 New Port Pat Sheridan (203)
N.A. Richey, FL 34652 973-1982
Rental Service Corporation 4426237741 Bank of America, 3019 S. U.S.Highway 1 Fort Pat Sheridan (203)
N.A. Pierce, FL 34982 973-1982
Rental Service Corporation 4426237848 Bank of America, 3051 Hanson Street Ft Pat Sheridan (203)
N.A. Myers, FL 33916 973-1982
Rental Service Corporation 4426232678 Bank of America, 3180 Hwy 20 West Decatur, Pat Sheridan (203)
N.A. AL 35601 973-1982
Rental Service Corporation 4426231226 Bank of America, 3235 Veterans Circle Birmingham, Pat Sheridan (203)
N.A. AL 35235 973-1982
Rental Service Corporation 4426237754 Bank of America, 2123 Hamilton Road Lagrange, Pat Sheridan (203)
N.A. GA 30240 973-1982
Rental Service Corporation 4426231239 Bank of America, 2400 Whittlesey Road Columbus, Pat Sheridan (203)
N.A. GA 31909 973-1982
Rental Service Corporation 4426231242 Bank of America, 1747 Warm Springs Road Columbus, GA Pat Sheridan (203)
N.A. 31904 973-1982
Rental Service Corporation 4426231255 Bank of America, 2379 Bent Creek Road Auburn, AL Pat Sheridan (203)
N.A. 36830 973-1982
Rental Service Corporation 4426237851 Bank of America, 35 Herring Road Newnan, GA Pat Sheridan (203)
N.A. 30265 973-1982
Rental Service Corporation 4426237767 Bank of America, 6535 Bankhead Highway Douglasville, Pat Sheridan (203)
N.A. GA 30135 973-1982
Rental Service Corporation 4426237864 Bank of America, 616 Highway 138 SW Riverdale, Pat Sheridan (203)
N.A. GA 30274 973-1982
Rental Service Corporation 4426232416 Bank of America, 1214 Jefferson Road Demopolis, Pat Sheridan (203)
N.A. AL 36732 973-1982
Rental Service Corporation 4426231268 Bank of America, 2750 Southside Drive Pat Sheridan (203)
N.A. Tuscaloosa, AL 35401 973-1982
Rental Service Corporation 4426237770 Bank of America, 729 S. Westover Boulevard Albany, Pat Sheridan (203)
N.A. GA 31721 973-1982
Rental Service Corporation 4426237877 Bank of America, 3521 Mike Padgett Highway Augusta, Pat Sheridan (203)
N.A. GA 30906 973-1982
Rental Service Corporation 4426237783 Bank of America, 4293 Highway 58 Chattanooga, TN Pat Sheridan (203)
N.A. 37416 973-1982
Rental Service Corporation 4426237796 Bank of America, 1351 Atlanta Highway Cumming, Pat Sheridan (203)
N.A. GA 30040 973-1982
Rental Service Corporation 4426237806 Bank of America, 50 Trade Street Bogart, GA Pat Sheridan (203)
N.A. 30622 973-1982
17
Schedule 4.16(a)
to Credit Agreement
ACCOUNT BANK CONTACT NAME AND
GRANTOR NUMBER NAME OF BANK ADDRESS PHONE NUMBER
------- ------------- ---------------- ----------------------------------- ----------------------
Rental Service Corporation 4426231365 Bank of America, 3297 Martha Berry Highway Rome, GA Pat Sheridan (203)
N.A. 30165 973-1982
Rental Service Corporation 4426237819 Bank of America, 6575 Southern Boulevard West Palm Pat Sheridan (203)
N.A. Beach, FL 33413 973-1982
Rental Service Corporation 4426237822 Bank of America, 1830 Mason Avenue Daytona Beach, FL Pat Sheridan (203)
N.A. 32117 973-1982
Rental Service Corporation 4426232584 Bank of America, 43388 Us Highway 72 Stevenson, Pat Sheridan (203)
N.A. AL 35772 973-1982
Rental Service Corporation 4426232681 Bank of America, 3180 Leeman Ferry Road Huntsville, Pat Sheridan (203)
N.A. AL 35801 973-1982
Rental Service Corporation 4426232597 Bank of America, 1002 E 2nd Street Muscle Shoals, AL Pat Sheridan (203)
N.A. 35661 973-1982
Rental Service Corporation 4426216403 Bank of America, 11832 Lake Charles Highway Pat Sheridan (203)
N.A. Leesville, LA 71446 973-1982
Rental Service Corporation 4426232322 Bank of America, 3612 Coliseum Boulevard Alexandria, Pat Sheridan (203)
N.A. LA 71303 973-1982
Rental Service Corporation 4426232429 Bank of America, 330 Griffith Street Pat Sheridan (203)
N.A. Pineville, LA 71360 973-1982
Rental Service Corporation 4426237880 Bank of America, 6230 Southwest Parkway Wichita Pat Sheridan (203)
N.A. Falls, TX 76310 973-1982
Rental Service Corporation 3752128486 Bank of America, 2200 Falcon Road Altus, OK Pat Sheridan (203)
N.A. 73521 973-1982
Rental Service Corporation 4426232335 Bank of America, 108 Thruway Park Road Broussard, Pat Sheridan (203)
N.A. LA 70518 973-1982
Rental Service Corporation 4426232432 Bank of America, 10606 E. Main Street Houma, Pat Sheridan (203)
N.A. LA 70363 973-1982
Rental Service Corporation 4426232348 Bank of America, 68674 Highway 59 Mandeville, LA Pat Sheridan (203)
N.A. 70448 973-1982
Rental Service Corporation 4426216335 Bank of America, 5194 Fm 1006 Orange, TX Pat Sheridan (203)
N.A. 77630 973-1982
Rental Service Corporation 4426232445 Bank of America, 201 Avenue F North Bay City, Pat Sheridan (203)
N.A. TX 77414 973-1982
Rental Service Corporation 4426237893 Bank of America, 4542 S. Interstate Highway 35 S. Pat Sheridan (203)
N.A. San Marcos, TX 78666 973-1982
Rental Service Corporation 4426230997 Bank of America, 1300 W Central Texas Pat Sheridan (203)
N.A. Expressway Killeen, TX 76542 973-1982
Rental Service Corporation 4426282770 Bank of America, 29880I-10 West Boerne, TX Pat Sheridan (203)
N.A. 78006 973-1982
Rental Service Corporation 4426237903 Bank of America, 2225 Austin Street San Angelo, Pat Sheridan (203)
N.A. TX 76903 973-1982
18
Schedule 4.16(a)
to Credit Agreement
ACCOUNT BANK CONTACT NAME AND
GRANTOR NUMBER NAME OF BANK ADDRESS PHONE NUMBER
------- ------------- ---------------- ----------------------------------- ----------------------
Rental Service Corporation 4426232351 Bank of America, 80 Grady Road Grenada, MS Pat Sheridan (203)
N.A. 38901 973-1982
Rental Service Corporation 4426237916 Bank of America, 6014 Forbing Road Little Rock, Pat Sheridan (203)
N.A. AR 72209 973-1982
Rental Service Corporation 4426237932 Bank of America, 2600 West Main Jacksonville, AR Pat Sheridan (203)
N.A. 72076 973-1982
Rental Service Corporation 4426231666 Bank of America, 7217 Airways Road Southaven, MS Pat Sheridan (203)
N.A. 38671 973-1982
Rental Service Corporation 4426232458 Bank of America, 3035 South Frontage Road Meridian, Pat Sheridan (203)
N.A. MS 39301 973-1982
Rental Service Corporation 4426237945 Bank of America, 2039 Fletcher Creek Drive Memphis, Pat Sheridan (203)
N.A. TN 38133 973-1982
Rental Service Corporation 4426237958 Bank of America, 119 Doodle Avenue Ft Walton Beach, Pat Sheridan (203)
N.A. FL 32547 973-1982
Rental Service Corporation 4426237961 Bank of America, 3333 SW 3rd Avenue Fort Lauderdale, Pat Sheridan (203)
N.A. FL 33315 973-1982
Rental Service Corporation 4426237974 Bank of America, 2471 Smith Street Kissimmee, FL Pat Sheridan (203)
N.A. 34744 973-1982
Rental Service Corporation 4426237987 Bank of America, 10427 Highway 84 East Pat Sheridan (203)
N.A. Thomasville, GA 31792 973-1982
Rental Service Corporation 4426231271 Bank of America, 700 Enterprise Court Montgomery, Pat Sheridan (203)
N.A. AL 36117 973-1982
Rental Service Corporation 4426231378 Bank of America, 1214 Hamric Drive West Oxford, AL Pat Sheridan (203)
N.A. 36203 973-1982
Rental Service Corporation 4426231284 Bank of America, 364 Highway 280 Alexander City, AL Pat Sheridan (203)
N.A. 35010 973-1982
Rental Service Corporation 4426231381 Bank of America, 3425 Napier Field Road Dothan, Pat Sheridan (203)
N.A. AL 36303 973-1982
Rental Service Corporation 4426231297 Bank of America, 1503 W. 15th Street Panama City, Pat Sheridan (203)
N.A. FL 32401 973-1982
Rental Service Corporation 4426231394 Bank of America, 140 Industrial Drive Pat Sheridan (203)
N.A. Attalla, AL 35954 973-1982
Rental Service Corporation 4426231307 Bank of America, 1369 McCain Parkway Pelham,AL Pat Sheridan (203)
N.A. 35124 973-1982
Rental Service Corporation 4426238083 Bank of America, 135 Peachtree Road Byron, Pat Sheridan (203)
N.A. GA 31008 973-1982
Rental Service Corporation 4426237990 Bank of America, 921 E Morris Street Dalton, Pat Sheridan (203)
N.A. GA 30721 973-1982
Rental Service Corporation 4426238096 Bank of America, 323 South Houston Lake Road Warner Pat Sheridan (203)
N.A. Robins, GA 31088 973-1982
19
Schedule 4.16(a)
to Credit Agreement
ACCOUNT BANK CONTACT NAME AND
GRANTOR NUMBER NAME OF BANK ADDRESS PHONE NUMBER
------- ------------- ---------------- ----------------------------------- ----------------------
Rental Service Corporation 4426238009 Bank of America, 8155 East Gate Boulevard Mount Pat Sheridan (203)
N.A. Juliet, TN 37122 973-1982
Rental Service Corporation 4426232694 Bank of America, 1500 Fritz Street Southwest Pat Sheridan (203)
N.A. Cleveland, TN 37323 973-1982
Rental Service Corporation 4426238106 Bank of America, 10639 Dutchtown Road Knoxville, Pat Sheridan (203)
N.A. TN 37932 973-1982
Rental Service Corporation 4426232607 Bank of America, 6688 W Andrew Johnson Highway Pat Sheridan (203)
N.A. Talbott, TN 37877 973-1982
Rental Service Corporation 4426232704 Bank of America, 608 West Avenue Crossville, TN Pat Sheridan (203)
N.A. 38555 973-1982
Rental Service Corporation 4426238012 Bank of America, 147 Jack Miller Boulevard Pat Sheridan (203)
N.A. Clarksville, TN 37042 973-1982
Rental Service Corporation 4426238119 Bank of America, 301 Crutcher Street Pat Sheridan (203)
N.A. Nashville, TN 37213 973-1982
Rental Service Corporation 4426238025 Bank of America, 1425 South Church Street Pat Sheridan (203)
N.A. Murfreesboro, TN 37130 973-1982
Rental Service Corporation 4426238122 Bank of America, 109 Century Court Franklin, Pat Sheridan (203)
N.A. TN 37064 973-1982
Rental Service Corporation 4426238038 Bank of America, 709 Seaboard Street Myrtle Beach, Pat Sheridan (203)
N.A. SC 29577 973-1982
Rental Service Corporation 4426238041 Bank of America, 132 Matthews Drive Hilton Head Pat Sheridan (203)
N.A. Island, SC 29926 973-1982
Rental Service Corporation 4426238054 Bank of America, 4017 Highway 74 West Monroe, NC Pat Sheridan (203)
N.A. 28110 973-1982
Rental Service Corporation 4426238067 Bank of America, 700 S. 15th Avenue Hopewell, Pat Sheridan (203)
N.A. VA 23860 973-1982
Rental Service Corporation 4426238070 Bank of America, 3925 Washington Boulevard Pat Sheridan (203)
N.A. Baltimore, MD 21227 973-1982
Rental Service Corporation 4426231446 Bank of America, 9430 Earley Drive Hagerstown, MD Pat Sheridan (203)
N.A. 21740 973-1982
Rental Service Corporation 4426231459 Bank of America, 6778 Lincoln Highway West Pat Sheridan (203)
N.A. Thomasville, PA 17364 973-1982
Rental Service Corporation 4426238135 Bank of America, 610 E Pine Log Road Aiken, SC Pat Sheridan (203)
N.A. 29803 973-1982
Rental Service Corporation 4426238148 Bank of America, 1201 Electric Road Salem, Pat Sheridan (203)
N.A. VA 24153 973-1982
Rental Service Corporation 4426238151 Bank of America, 1570 Radford Road Christiansburg, Pat Sheridan (203)
N.A. VA 24073 973-1982
Rental Service Corporation 4426238164 Bank of America, 8008 Dorchester Road Pat Sheridan (203)
N.A. Charleston, SC 29418 973-1982
20
Schedule 4.16(a)
to Credit Agreement
ACCOUNT BANK CONTACT NAME AND
GRANTOR NUMBER NAME OF BANK ADDRESS PHONE NUMBER
------- ------------- ---------------- ----------------------------------- ----------------------
Rental Service Corporation 4426238177 Bank of America, 1303 Governor Court Abingdon, Pat Sheridan (203)
N.A. MD 21009 973-1982
Rental Service Corporation 4426238180 Bank of America, 4622 Wedgewood Boulevard Frederick, Pat Sheridan (203)
N.A. MD 21703 973-1982
Rental Service Corporation 4426232610 Bank of America, 3913 24th Street Moline, Pat Sheridan (203)
N.A. IL 61265 973-1982
Rental Service Corporation 4426231679 Bank of America, 2021 NE Broadway Des Moines, IA Pat Sheridan (203)
N.A. 50313 973-1982
Rental Service Corporation 4426231682 Bank of America, 5735 4th Street SW Cedar Rapids, Pat Sheridan (203)
N.A. IA 52404 973-1982
Rental Service Corporation 4426232623 Bank of America, 4419 Reas Bridge Road Decatur, IL Pat Sheridan (203)
N.A. 62521 973-1982
Rental Service Corporation 4426232636 Bank of America, 1414 E. Triumph Drive Urbana, IL Pat Sheridan (203)
N.A. 61802 973-1982
Rental Service Corporation 4426231695 Bank of America, 2325 SE 5th Street Ames, Pat Sheridan (203)
N.A. IA 50010 973-1982
Rental Service Corporation 4426232649 Bank of America, 300 W Chicago Avenue East Pat Sheridan (203)
N.A. Chicago, IN 46312 973-1982
Rental Service Corporation 4426238193 Bank of America, 3140 E Kearney Springfield, MO Pat Sheridan (203)
N.A. 65803 973-1982
Rental Service Corporation 4426232652 Bank of America, 21600 Doral Road Waukesha,WI Pat Sheridan (203)
N.A. 53186 973-1982
Rental Service Corporation 4426232717 Bank of America, 3736 11Th Street Rockford, Pat Sheridan (203)
N.A. IL 61109 973-1982
Rental Service Corporation 4426232720 Bank of America, 2201 E. Higgins Road Elk Grove Pat Sheridan (203)
N.A. Village, IL 60007 973-1982
Rental Service Corporation 4426238203 Bank of America, 215 East Baseline Road Gilbert, Pat Sheridan (203)
N.A. AZ 85233 973-1982
Rental Service Corporation 4426238216 Bank of America, 1012 Poplar Pine Bluff, AR Pat Sheridan (203)
N.A. 71601 973-1982
Rental Service Corporation 4426231006 Bank of America, 2022 Texas Boulevard Texarkana, Pat Sheridan (203)
N.A. TX 75501 973-1982
Rental Service Corporation 4426238229 Bank of America, 2505 N.24th. Street Rogers, Pat Sheridan (203)
N.A. AR 72756 973-1982
Rental Service Corporation 4426238232 Bank of America, 2927 Browns Lane Jonesboro, AR Pat Sheridan (203)
N.A. 72401 973-1982
Rental Service Corporation 4426216377 Bank of America, 931 So. Division Street Pat Sheridan (203)
N.A. Blytheville, AR 72315 973-1982
Rental Service Corporation 4426238339 Bank of America, 3004 S. Arkansas Russellville, Pat Sheridan (203)
N.A. AR 72802 973-1982
Rental Service Corporation 4426231705 Bank of America, 3616 Towson Avenue Fort Smith, Pat Sheridan (203)
N.A. AR 72901 973-1982
21
Schedule 4.16(a)
to Credit Agreement
ACCOUNT BANK CONTACT NAME AND
GRANTOR NUMBER NAME OF BANK ADDRESS PHONE NUMBER
------- ------------- ---------------- ----------------------------------- ----------------------
Rental Service Corporation 4426238245 Bank of America, 1800 Higdon Ferry Road Hot Pat Sheridan (203)
N.A. Springs, AR 71913 973-1982
Rental Service Corporation 4426238342 Bank of America, 709 West Gaines Street Pat Sheridan (203)
N.A. Tallahassee, FL 32304 973-1982
Rental Service Corporation 4426238258 Bank of America, 3655 No. Monroe Street Pat Sheridan (203)
N.A. Tallahassee, FL 32303 973-1982
Rental Service Corporation 4426238355 Bank of America, 2445 Capital Circle N.E. Pat Sheridan (203)
N.A. Tallahassee, FL 32308 973-1982
Rental Service Corporation 4426238261 Bank of America, 539 S.W. Arrow Head Terrace Pat Sheridan (203)
N.A. Lake City, FL 32024 973-1982
Rental Service Corporation 4426238368 Bank of America, 4383 Inner Perimeter Road Valdosta, Pat Sheridan (203)
N.A. GA 31602 973-1982
Rental Service Corporation 4426232733 Bank of America, 1610 W. Wisconsin Avenue Appleton, Pat Sheridan (203)
N.A. WI54914 973-1982
Rental Service Corporation 4426232746 Bank of America, 5814 Green Valley Road Oshkosh, WI Pat Sheridan (203)
N.A. 54904 973-1982
Rental Service Corporation 4426238274 Bank of America, 3801 SENowata Road Pat Sheridan (203)
N.A. Bartlesville, OK 74006 973-1982
Rental Service Corporation 4426231718 Bank of America, 2025 Westfield Avenue Waterloo, Pat Sheridan (203)
N.A. IA 50701 973-1982
Rental Service Corporation 4426231721 Bank of America, 2809 Larson Street La Crosse, Pat Sheridan (203)
N.A. WI 54603 973-1982
Rental Service Corporation 4426238371 Bank of America, 1100 Vine Street Hays, Pat Sheridan (203)
N.A. KS 67601 973-1982
Rental Service Corporation 4426231462 Bank of America, 7094 Truck World Boulevard Hubbard, Pat Sheridan (203)
N.A. OH 44425 973-1982
Rental Service Corporation 4426238290 Bank of America, 449 St. Ferdinand Street Pat Sheridan (203)
N.A. Florissant, MO 63031 973-1982
Rental Service Corporation 4426238300 Bank of America, 1717 Ford Lane Saint Charles, MO Pat Sheridan (203)
N.A. 63303 973-1982
Rental Service Corporation 4426232377 Bank of America, 900 Highway 108 Sulphur, LA Pat Sheridan (203)
N.A. 70664-0216 973-1982
Rental Service Corporation 4426232759 Bank of America, 6001 Atwood Drive Richmond, KY Pat Sheridan (203)
N.A. 40475 973-1982
Rental Service Corporation 4426232762 Bank of America, 912 E. Cumberland Parkway Corbin, Pat Sheridan (203)
N.A. KY 40701 973-1982
Rental Service Corporation 4426231019 Bank of America, 3212 Prairie Valley Road Ardmore, Pat Sheridan (203)
N.A. OK 73401 973-1982
Rental Service Corporation 4426231734 Bank of America, 1401 W. Potter Avenue Pat Sheridan (203)
N.A. Kirksville, MO 63501 973-1982
22
Schedule 4.16(a)
to Credit Agreement
ACCOUNT BANK CONTACT NAME AND
GRANTOR NUMBER NAME OF BANK ADDRESS PHONE NUMBER
------- ------------- ---------------- ----------------------------------- ----------------------
Rental Service Corporation 4426231747 Bank of America, 5635 Highway 54 Osage Beach, MO Pat Sheridan (203)
N.A. 65065 973-1982
Rental Service Corporation 4426231750 Bank of America, 1226 E. 16Th Avenue Hibbing, Pat Sheridan (203)
N.A. MN 55746 973-1982
Rental Service Corporation 4426238313 Bank of America, 325 South Kansas Avenue Liberal, KS Pat Sheridan (203)
N.A. 67901 973-1982
Rental Service Corporation 4426231983 Bank of America, 230394 Highland Road Pat Sheridan (203)
N.A. Scottsbluff, NE 69361 973-1982
Rental Service Corporation 4426231475 Bank of America, 932 S. 13th Street Harrisburg, Pat Sheridan (203)
N.A. PA 17104 973-1982
Rental Service Corporation 4426231996 Bank of America, 11250 East 40th Avenue Denver, CO Pat Sheridan (203)
N.A. 80239 973-1982
Rental Service Corporation 4426232005 Bank of America, 1250 Zuni Street Denver, Pat Sheridan (203)
N.A. CO 80204 973-1982
Rental Service Corporation 4426238326 Bank of America, 3900I-40 East Amarillo, TX Pat Sheridan (203)
N.A. 79103 973-1982
Rental Service Corporation 4426231116 Bank of America, 317 Southeast Loop 289 Lubbock, Pat Sheridan (203)
N.A. TX 79404 973-1982
Rental Service Corporation 4426232018 Bank of America, 201 Juan Tabo NE Albuquerque, NM Pat Sheridan (203)
N.A. 87123 973-1982
Rental Service Corporation 4426232021 Bank of America, 9170CoorsNW Albuquerque, NM 87120 Pat Sheridan (203)
N.A. 973-1982
Rental Service Corporation 4426232034 Bank of America, 2401 Menaul NE Albuquerque, Pat Sheridan (203)
N.A. NM 87107 973-1982
Rental Service Corporation 4426305893 Bank of America, 3708 Arch Avenue Grand Island, NE Pat Sheridan (203)
N.A. 68803 973-1982
Rental Service Corporation 4426238384 Bank of America, 11615 South Rogers Road Olathe, KS Pat Sheridan (203)
N.A. 66062 973-1982
Rental Service Corporation 4426238397 Bank of America, 1004 Burlington North Kansas Pat Sheridan (203)
N.A. City, MO 64116 973-1982
Rental Service Corporation 4426232047 Bank of America, 1429 Mulberry Fort Collins, CO Pat Sheridan (203)
N.A. 80524 973-1982
Rental Service Corporation 4426232050 Bank of America, 481 West 84th Avenue Thornton, CO Pat Sheridan (203)
N.A. 80260-0481 973-1982
Rental Service Corporation 4426232063 Bank of America, 13109 Highway 85 Littleton, Pat Sheridan (203)
N.A. CO 80125 973-1982
Rental Service Corporation 4426232160 Bank of America, 2401 Steel Drive Colorado Springs, Pat Sheridan (203)
N.A. CO 80907 973-1982
Rental Service Corporation 4426238410 Bank of America, 5101 East 63rd Street Derby, Pat Sheridan (203)
N.A. KS 67037 973-1982
23
Schedule 4.16(a)
to Credit Agreement
ACCOUNT BANK CONTACT NAME AND
GRANTOR NUMBER NAME OF BANK ADDRESS PHONE NUMBER
------- ------------- ---------------- ----------------------------------- ----------------------
Rental Service Corporation 4426231488 Bank of America, 575 E. Exchange Street Akron, OH Pat Sheridan (203)
N.A. 44306 973-1982
Rental Service Corporation 4426238423 Bank of America, 9707 E. Orme Wichita, KS Pat Sheridan (203)
N.A. 67207 973-1982
Rental Service Corporation 4426238436 Bank of America, 9127 W Kellogg Drive Wichitam KS Pat Sheridan (203)
N.A. 67209 973-1982
Rental Service Corporation 4426238449 Bank of America, 951 Southeast Oldham Parkway Lees Pat Sheridan (203)
N.A. Summit, MO 64081 973-1982
Rental Service Corporation 4426231763 Bank of America, 754 E. Young Warrensburg, MO 64093 Pat Sheridan (203)
N.A. 973-1982
Rental Service Corporation 4426238452 Bank of America, 1606 Commerce Court Columbia, Pat Sheridan (203)
N.A. MO 65202 973-1982
Rental Service Corporation 4426238465 Bank of America, 2805 E. Newman Joplin, MO Pat Sheridan (203)
N.A. 64801 973-1982
Rental Service Corporation 4426238478 Bank of America, 2900 No. Interstate Drive Norman, Pat Sheridan (203)
N.A. OK 73072 973-1982
Rental Service Corporation 4426216319 Bank of America, 3818 S.Leonard Road Saint Joseph, Pat Sheridan (203)
N.A. MO 64503 973-1982
Rental Service Corporation 4426231860 Bank of America, 2340 Fernbrook Lane North Plymouth, Pat Sheridan (203)
N.A. MN 55447 973-1982
Rental Service Corporation 4426231776 Bank of America, 6740 Hudson Boulevard Oakdale,MN Pat Sheridan (203)
N.A. 55128 973-1982
Rental Service Corporation 4426231873 Bank of America, 3750 Highway 13 West Burnsville, Pat Sheridan (203)
N.A. MN 55337 973-1982
Rental Service Corporation 4426231789 Bank of America, 4201 W. First Street Duluth, Pat Sheridan (203)
N.A. MN 55807 973-1982
Rental Service Corporation 4426231886 Bank of America, 8616 S. 135th Street Omaha, Pat Sheridan (203)
N.A. NE 68138 973-1982
Rental Service Corporation 4426231792 Bank of America, 1821 Cornhusker Highway Lincoln, NE Pat Sheridan (203)
N.A. 68521 973-1982
Rental Service Corporation 4426232775 Bank of America, 4117 Mt Pleasant Street West Pat Sheridan (203)
N.A. Burlington, IA 52655 973-1982
Rental Service Corporation 4426232788 Bank of America, 2700 South 17th. Street Clinton, Pat Sheridan (203)
N.A. IA 52732 973-1982
Rental Service Corporation 4426231899 Bank of America, 3020 Highway 63 North Rochester, Pat Sheridan (203)
N.A. MN 55906 973-1982
Rental Service Corporation 4426231802 Bank of America, 810 Strong Highway El Dorado, Pat Sheridan (203)
N.A. AR 71730 973-1982
Rental Service Corporation 4426238481 Bank of America, 8104 NW Expressway Oklahoma City, Pat Sheridan (203)
N.A. OK 73162 973-1982
24
Schedule 4.16(a)
to Credit Agreement
ACCOUNT BANK CONTACT NAME AND
GRANTOR NUMBER NAME OF BANK ADDRESS PHONE NUMBER
------- ------------- ---------------- ----------------------------------- ----------------------
Rental Service Corporation 4426238588 Bank of America, 708 W. Elgin Street Broken Arrow, Pat Sheridan (203)
N.A. OK 74012 973-1982
Rental Service Corporation 4426238494 Bank of America, 324 W. Memorial Road Oklahoma City, Pat Sheridan (203)
N.A. OK 73114 973-1982
Rental Service Corporation 4426238591 Bank of America, 9222 E. 21st Street Tulsa, Pat Sheridan (203)
N.A. OK 74129 973-1982
Rental Service Corporation 4426238504 Bank of America, 10601 S. Memorial Drive Tulsa, OK Pat Sheridan (203)
N.A. 74133 973-1982
Rental Service Corporation 4426238601 Bank of America, 4609 Crossroads Ind Drive Pat Sheridan (203)
N.A. Bridgeton, MO 63044 973-1982
Rental Service Corporation 4426232791 Bank of America, 2701 S. Main Street Bloomington, Pat Sheridan (203)
N.A. IL 61704 973-1982
Rental Service Corporation 4426238517 Bank of America, 2050 Southern Expressway Cape Pat Sheridan (203)
N.A. Girardeau, MO 63703 973-1982
Rental Service Corporation 4426238614 Bank of America, 3639 Main Quincy, IL Pat Sheridan (203)
N.A. 62305 973-1982
Rental Service Corporation 4426232801 Bank of America, 3161 Market Street Green Bay, Pat Sheridan (203)
N.A. WI54304 973-1982
Rental Service Corporation 4426232814 Bank of America, 26 Marsh Court Madison, WI Pat Sheridan (203)
N.A. 53718 973-1982
Rental Service Corporation 4426232911 Bank of America, 5605 Mesker Street Schofield, Pat Sheridan (203)
N.A. WI 54476 973-1982
Rental Service Corporation 4426216364 Bank of America, 2901 N. Peoria Street Peru, IL Pat Sheridan (203)
N.A. 61354 973-1982
Rental Service Corporation 4426232827 Bank of America, 1845 E. Lincoln Highway Dekalb, IL Pat Sheridan (203)
N.A. 60115 973-1982
Rental Service Corporation 4426315605 Bank of America, 3407 N. Main Street East Pat Sheridan (203)
N.A. Peoria, IL 61611 973-1982
Rental Service Corporation 4426232924 Bank of America, 1303 Washington Street Muscatine, Pat Sheridan (203)
N.A. IA 52761 973-1982
Rental Service Corporation 4426231491 Bank of America, 1291 Medina Road Medina, Pat Sheridan (203)
N.A. OH 44256 973-1982
Rental Service Corporation 4426238520 Bank of America, 307 No. 14th Dodge City, KS Pat Sheridan (203)
N.A. 67801 973-1982
Rental Service Corporation 4426232380 Bank of America, 1948 Cliff Gookin Boulevard Tupelo, Pat Sheridan (203)
N.A. MS 38801 973-1982
Rental Service Corporation 4426232830 Bank of America, 22634 So. Frontage Road West Pat Sheridan (203)
N.A. Channahon, IL 60410 973-1982
Rental Service Corporation 4426231909 Bank of America, 3352 Southway Drive St Cloud, Pat Sheridan (203)
N.A. MN 56301 973-1982
25
Schedule 4.16(a)
to Credit Agreement
ACCOUNT BANK CONTACT NAME AND
GRANTOR NUMBER NAME OF BANK ADDRESS PHONE NUMBER
------- ------------- ---------------- ----------------------------------- ----------------------
Rental Service Corporation 4426232937 Bank of America, 1600 South Dirksen Parkway Pat Sheridan (203)
N.A. Springfield, IL 62703 973-1982
Rental Service Corporation 4426231815 Bank of America, 390 E. 12th Street Dubuque, Pat Sheridan (203)
N.A. IA 52001 973-1982
Rental Service Corporation 4426238627 Bank of America, 1200 Beltline Road Collinsville, IL Pat Sheridan (203)
N.A. 62234-0435 973-1982
Rental Service Corporation 4426238533 Bank of America, 4258 3rd Ave. N.W. Fargo, ND Pat Sheridan (203)
N.A. 58102 973-1982
Rental Service Corporation 4426231828 Bank of America, 3620 North Lewis Avenue Sioux Pat Sheridan (203)
N.A. Falls, SD 57104 973-1982
Rental Service Corporation 4426238546 Bank of America, 48 Industrial Park Drive Pat Sheridan (203)
N.A. Hollister, MO 65672 973-1982
Rental Service Corporation 4426231831 Bank of America, 174 Kenworth Boulevard Jackson, TN Pat Sheridan (203)
N.A. 38305 973-1982
Rental Service Corporation 4426238559 Bank of America, 3100Haskell Lawrence, KS 66046 Pat Sheridan (203)
N.A. 973-1982
Rental Service Corporation 4426231501 Bank of America, 900 West Basin Road New Castle, Pat Sheridan (203)
N.A. DE 19720 973-1982
Rental Service Corporation 4426231514 Bank of America, 1209 Marshall Avenue Lancaster, Pat Sheridan (203)
N.A. PA 17601 973-1982
Rental Service Corporation 4426231611 Bank of America, 28587 Sussex Highway Laurel, DE Pat Sheridan (203)
N.A. 19956 973-1982
Rental Service Corporation 4426238562 Bank of America, 8200 Cryden Way Forestville, MD Pat Sheridan (203)
N.A. 20747 973-1982
Rental Service Corporation 4426238575 Bank of America, 392 North Expressway Griffin, Pat Sheridan 203-
N.A. GA 30223 973-1982
Rental Service Corporation 4426231404 Bank of America, 16300 Highway 80 West Statesboro, Pat Sheridan (203)
N.A. GA 30458 973-1982
Rental Service Corporation 4426232843 Bank of America, 530 S. 4th Street Danville, Pat Sheridan (203)
N.A. KY 40422 973-1982
Rental Service Corporation 4426216351 Bank of America, 6270 N. Dixie Highway Pat Sheridan (203)
N.A. Elizabethtown, KY 42701 973-1982
Rental Service Corporation 4426232940 Bank of America, 65 Sulphur Springs Road Lebanon, KY Pat Sheridan (203)
N.A. 40033 973-1982
Rental Service Corporation 4426231527 Bank of America, 947 Route 22 East Duncansville, PA Pat Sheridan (203)
N.A. 16635 973-1982
Rental Service Corporation 4426238630 Bank of America, 3883 Sweeten Creek Road Arden, NC Pat Sheridan (203)
N.A. 28704 973-1982
Rental Service Corporation 4426232856 Bank of America, 970 Lovers Lane Bowling Green, KY Pat Sheridan (203)
N.A. 42104 973-1982
Rental Service Corporation 4426238643 Bank of America, 215 East Baseline Road Gilbert, Pat Sheridan (203)
N.A. AZ 85233 973-1982
26
Schedule 4.16(a)
to Credit Agreement
ACCOUNT BANK CONTACT NAME AND
GRANTOR NUMBER NAME OF BANK ADDRESS PHONE NUMBER
------- ------------- ---------------- ----------------------------------- ----------------------
Rental Service Corporation 4426238656 Bank of America, 1770 West Prince Road Tucson, AZ Pat Sheridan (203)
N.A. 85705 973-1982
Rental Service Corporation 4426238669 Bank of America, 3461 East Deuce Of Clubs Show Low, Pat Sheridan (203)
N.A. AZ 85901 973-1982
Rental Service Corporation 4426238672 Bank of America, 2224 Nw Grand Avenue Phoenix, AZ Pat Sheridan (203)
N.A. 85009 973-1982
Rental Service Corporation 4426238685 Bank of America, 648 East Fry Boulevard Sierra Pat Sheridan (203)
N.A. Vista, AZ 85635 973-1982
Rental Service Corporation 4426238698 Bank of America, 1060 East Highway 70 Safford, Pat Sheridan (203)
N.A. AZ 85546 973-1982
Rental Service Corporation 4426238708 Bank of America, 2020 Highway 60 Globe, AZ Pat Sheridan (203)
N.A. 85501 973-1982
Rental Service Corporation 4426232076 Bank of America, 2323 West Highway 66 Gallup, NM Pat Sheridan (203)
N.A. 87301 973-1982
Rental Service Corporation 4426238711 Bank of America, 171 South Browning Parkway Pat Sheridan (203)
N.A. Farmington, NM 87401 973-1982
Rental Service Corporation 4426238724 Bank of America, 21445 No. 27th Avenue Phoenix, AZ Pat Sheridan (203)
N.A. 85027 973-1982
Rental Service Corporation 4426232173 Bank of America, 814 N. Santa Fe Avenue Pueblo, CO Pat Sheridan (203)
N.A. 81003 973-1982
Rental Service Corporation 4426232089 Bank of America, 2251 Downhill Drive Steamboat Pat Sheridan (203)
N.A. Springs, CO 80477 973-1982
Rental Service Corporation 4426238737 Bank of America, 6921 East Cave Creek Road Cave Pat Sheridan (203)
N.A. Creek, AZ 85331 973-1982
Rental Service Corporation 4426232186 Bank of America, 2707 Cerrillos Santa Fe, NM Pat Sheridan (203)
N.A. 87507 973-1982
Rental Service Corporation 4426232092 Bank of America, 125 8Th Ave Greeley, CO Pat Sheridan (203)
N.A. 80631 973-1982
Rental Service Corporation 4426232199 Bank of America, 1437 US Highway 70 West Alamogordo, Pat Sheridan (203)
N.A. NM 88310 973-1982
Rental Service Corporation 4426232102 Bank of America, 18810 Longs Way Parker, Pat Sheridan (203)
N.A. CO 80134 973-1982
Rental Service Corporation 4426232209 Bank of America, 1045 Chambers Avenue Eagle, CO Pat Sheridan (203)
N.A. 81631 973-1982
Rental Service Corporation 4426232115 Bank of America, 1215 West Lincoln way Cheyenne, Pat Sheridan (203)
N.A. WY 82001 973-1982
Rental Service Corporation 4426238834 Bank of America, 11039 No. Cave Creek Road Phoenix, Pat Sheridan (203)
N.A. AZ 85020 973-1982
Rental Service Corporation 4426238740 Bank of America, 6363 E. Second Street Prescott Pat Sheridan (203)
N.A. Valley, AZ 86314 973-1982
27
Schedule 4.16(a)
to Credit Agreement
ACCOUNT BANK CONTACT NAME AND
GRANTOR NUMBER NAME OF BANK ADDRESS PHONE NUMBER
------- ------------- ---------------- ----------------------------------- ----------------------
Rental Service Corporation 4426238847 Bank of America, 1429 North Pinal Avenue Casa Pat Sheridan (203)
N.A. Grande, AZ 85222 973-1982
Rental Service Corporation 4426232128 Bank of America, 2372 E. Main Street Montrose, Pat Sheridan (203)
N.A. CO 81401 973-1982
Rental Service Corporation 4426232131 Bank of America, 0116 County Road 450 Breckenridge, Pat Sheridan (203)
N.A. CO 80424 973-1982
Rental Service Corporation 4426232144 Bank of America, 249 Adams Avenue Silverthorne, CO Pat Sheridan (203)
N.A. 80498 973-1982
Rental Service Corporation 4426232157 Bank of America, 955 Valley Street Colorado Springs, Pat Sheridan (203)
N.A. CO 80915 973-1982
Rental Service Corporation 4426232212 Bank of America, 1600 Kansas Avenue Longmont, Pat Sheridan (203)
N.A. CO 80501 973-1982
Rental Service Corporation 4426232225 Bank of America, 650 S. 11th Street Gunnison, Pat Sheridan (203)
N.A. CO 81230 973-1982
Rental Service Corporation 4426231624 Bank of America, 1000 Halstead Boulevard Elizabeth Pat Sheridan (203)
N.A. City, NC 27909 973-1982
Rental Service Corporation 4426231844 Bank of America, 2120 East 4th North Platte, NE Pat Sheridan (203)
N.A. 69101 973-1982
Rental Service Corporation 4426216322 Bank of America, 915 Enoch Lane Manhattan, KS Pat Sheridan (203)
N.A. 66502 973-1982
Rental Service Corporation 4426231857 Bank of America, 3525 Park Avenue Paducah,KY Pat Sheridan (203)
N.A. 42001 973-1982
Rental Service Corporation 4426238753 Bank of America, 725 Se Monterey Road Stuart, FL Pat Sheridan (203)
N.A. 34994 973-1982
Rental Service Corporation 4426231530 Bank of America, 1090 Mantua Pike, Route 45 Wenonah, Pat Sheridan (203)
N.A. NJ 08090 973-1982
Rental Service Corporation 4426216393 Bank of America, 5809 Hwy 8 West Rhinelander, WI Pat Sheridan (203)
N.A. 54501 973-1982
Rental Service Corporation 4426238850 Bank of America, 2402 Highway 72 - 221 East Pat Sheridan (203)
N.A. Greenwood, SC 29648 973-1982
Rental Service Corporation 4426238766 Bank of America, 880 Boone Station Rd Johnson Pat Sheridan (203)
N.A. City, TN 37615 973-1982
Rental Service Corporation 4426238863 Bank of America, 3380 St Rose Parkway Henderson, Pat Sheridan (203)
N.A. NV 89052 973-1982
Rental Service Corporation 4426238779 Bank of America, 3685 So. Winchester Road Apache Pat Sheridan (203)
N.A. Junction, AZ 85219 973-1982
Rental Service Corporation 4426232393 Bank of America, 307 Industrial Park Road Pat Sheridan (203)
N.A. Starkville, MS 39759 973-1982
Rental Service Corporation 4426232238 Bank of America, 3233 Cy Avenue Casper, WY Pat Sheridan (203)
N.A. 82604 973-1982
Rental Service Corporation 4426238876 Bank of America, 9801 Nokesville Road Manassas, Pat Sheridan (203)
N.A. VA 20110 973-1982
28
Schedule 4.16(a)
to Credit Agreement
ACCOUNT BANK CONTACT NAME AND
GRANTOR NUMBER NAME OF BANK ADDRESS PHONE NUMBER
------- ------------- ---------------- ----------------------------------- ----------------------
Rental Service Corporation 4426238782 Bank of America, 4616 Lassen Lane Fredericksburg, VA Pat Sheridan (203)
N.A. 22408 973-1982
Rental Service Corporation 4426231637 Bank of America, 1961 S. Loudoun Street Pat Sheridan (203)
N.A. Winchester, VA 22601 973-1982
Rental Service Corporation 4426238795 Bank of America, 1308 Horner Road Woodbridge, VA Pat Sheridan (203)
N.A. 22191 973-1982
Rental Service Corporation 4426238805 Bank of America, 2413 London Bridge Road Virginia Pat Sheridan (203)
N.A. Beach, VA 23456 973-1982
Rental Service Corporation 4426231543 Bank of America, 249 E. Shirley Avenue Warrenton, Pat Sheridan (203)
N.A. VA 20186 973-1982
Rental Service Corporation 4426231310 Bank of America, 1026 S. Memorial Drive Pat Sheridan 203-
N.A. Prattville, AL 36066 973-1982
Rental Service Corporation 4426238818 Bank of America, 210 North Wood Road Camarillo, Pat Sheridan (203)
N.A. CA 93010 973-1982
Rental Service Corporation 4426238821 Bank of America, 1400 Bluff Road Columbia, SC Pat Sheridan (203)
N.A. 29201 973-1982
Rental Service Corporation 4426231640 Bank of America, 173 Oak Carriage Drive Pat Sheridan (203)
N.A. Lewisburg, WV 24901 973-1982
Rental Service Corporation 4426231556 Bank of America, 319 Oakvale Road Princeton, Pat Sheridan (203)
N.A. WV 24740 973-1982
Rental Service Corporation 4426231653 Bank of America, 307 No Eisenhower Drive Beckley, WV Pat Sheridan (203)
N.A. 25801 973-1982
Rental Service Corporation 4426238889 Bank of America, 301 West Main Street Pat Sheridan (203)
N.A. Charlottesville, VA 22903 973-1982
Rental Service Corporation 4426238892 Bank of America, 137 Simmons Road Cloverdale, Pat Sheridan (203)
N.A. VA 24077 973-1982
Rental Service Corporation 4426238902 Bank of America, 6710 Everglades Drive Richmond, Pat Sheridan (203)
N.A. VA 23225 973-1982
Rental Service Corporation 4426238915 Bank of America, 8405 Brook Road Glen Allen, VA Pat Sheridan (203)
N.A. 23060 973-1982
Rental Service Corporation 4426238928 Bank of America, 3022 Griffith Street Pat Sheridan (203)
N.A. Charlotte, NC 28203 973-1982
Rental Service Corporation 4426238931 Bank of America, 105 South Swing Road Pat Sheridan (203)
N.A. Greensboro, NC 27409 973-1982
Rental Service Corporation 4426238944 Bank of America, 5600 Chapel Hill Road Raleigh, Pat Sheridan (203)
N.A. NC 27607 973-1982
Rental Service Corporation 4426232953 Bank of America, 4311 N. Mayflower Road South Bend, Pat Sheridan (203)
N.A. IN 46628 973-1982
Rental Service Corporation 4426238957 Bank of America, 1000 Woodruff Road Pat Sheridan (203)
N.A. Greenville, SC 29607 973-1982
Rental Service Corporation 4426238960 Bank of America, 2841 Azalea Drive Charleston, Pat Sheridan (203)
N.A. SC 29405 973-1982
29
Schedule 4.16(a)
to Credit Agreement
ACCOUNT BANK CONTACT NAME AND
GRANTOR NUMBER NAME OF BANK ADDRESS PHONE NUMBER
------- ------------- ---------------- ----------------------------------- ----------------------
Rental Service Corporation 4426238973 Bank of America, 925 Riverview Road Rock Hill, Pat Sheridan (203)
N.A. SC 29732 973-1982
Rental Service Corporation 4426238986 Bank of America, 1020 North Front Street Pat Sheridan (203)
N.A. Wilmington, NC 28401 973-1982
Rental Service Corporation 4426239082 Bank of America, 141 Sweeten Creek Road Asheville, Pat Sheridan (203)
N.A. NC 28803 973-1982
Rental Service Corporation 4426238999 Bank of America, 3800 N. Patterson Avenue Pat Sheridan (203)
N.A. Winston-Salem, NC 27105 973-1982
Rental Service Corporation 4426239095 Bank of America, 1000 Chatham Pkwy. North Garden Pat Sheridan (203)
N.A. City, GA 31408 973-1982
Rental Service Corporation 4426232869 Bank of America, 1830 Foreman Drive Cookeville, Pat Sheridan (203)
N.A. TN 38501 973-1982
Rental Service Corporation 4426239008 Bank of America, 229 Hurricane Shoals Road Pat Sheridan (203)
N.A. Lawrenceville, GA 30045 973-1982
Rental Service Corporation 4426239105 Bank of America, 1950 Guffin Lane Marietta, Pat Sheridan (203)
N.A. GA 30066 973-1982
Rental Service Corporation 4426239011 Bank of America, 7920 NE St. Johns Road Vancouver, Pat Sheridan (203)
N.A. WA 98665 973-1982
Rental Service Corporation 4426239118 Bank of America, 4016 Highway Boulevard Spencer, IA Pat Sheridan (203)
N.A. 51301 973-1982
Rental Service Corporation 4426232872 Bank of America, 1006 So Division Avenue Grand Pat Sheridan (203)
N.A. Rapids, MI 49507 973-1982
Rental Service Corporation 4426239024 Bank of America, 229 Center Street Jacksonville, Pat Sheridan (203)
N.A. NC 28546 973-1982
Rental Service Corporation 4426239121 Bank of America, 1008 Commercial Drive Brunswick, Pat Sheridan (203)
N.A. GA 31520 973-1982
Rental Service Corporation 4426239037 Bank of America, 1500 So. Broadway Salina, Pat Sheridan (203)
N.A. KS 67401 973-1982
Rental Service Corporation 4426232241 Bank of America, 1450 Coffeen Avenue Sheridan, Pat Sheridan (203)
N.A. WY 82801 973-1982
Rental Service Corporation 4426239040 Bank of America, 8787 Highway 225 La Porte, Pat Sheridan (203)
N.A. TX 77571 973-1982
Rental Service Corporation 4426239053 Bank of America, 520 E. La Cadena Drive Riverside, Pat Sheridan (203)
N.A. CA 92501 973-1982
Rental Service Corporation 4426239066 Bank of America, 4117 Rosedale Highway Bakersfield, Pat Sheridan (203)
N.A. CA 93308 973-1982
Rental Service Corporation 4426239079 Bank of America, 2900 E. Spring Street Long Beach, Pat Sheridan (203)
N.A. CA 90806 973-1982
Rental Service Corporation 4426239134 Bank of America, 28377 Felix Valdez Avenue Temecula, Pat Sheridan (203)
N.A. CA 92590 973-1982
Rental Service Corporation 4426239147 Bank of America, 220 N.Johnson El Cajon, CA Pat Sheridan (203)
N.A. 92020 973-1982
30
Schedule 4.16(a)
to Credit Agreement
ACCOUNT BANK CONTACT NAME AND
GRANTOR NUMBER NAME OF BANK ADDRESS PHONE NUMBER
------- ------------- ---------------- ----------------------------------- ----------------------
Rental Service Corporation 4426239150 Bank of America, 1000 S. Grand Santa Ana, CA Pat Sheridan 203-
N.A. 92705 973-1982
Rental Service Corporation 4426239176 Bank of America, 5300 E. Railhead Avenue Flagstaff, Pat Sheridan (203)
N.A. AZ 86004 973-1982
Rental Service Corporation 4426239189 Bank of America, 2900 Highway 95 Bullhead City, AZ Pat Sheridan (203)
N.A. 86442 973-1982
Rental Service Corporation 4426239192 Bank of America, 1968 West Acoma, Suite 103 Lake Pat Sheridan (203)
N.A. Havasu City, AZ 86403 973-1982
Rental Service Corporation 4426239202 Bank of America, 2720 E. 16th St (Highway 95) Yuma, Pat Sheridan (203)
N.A. AZ 85365 973-1982
Rental Service Corporation 4426232254 Bank of America, 2781 West 2100 South West Valley Pat Sheridan (203)
N.A. City, UT 84119 973-1982
Rental Service Corporation 4426239215 Bank of America, 2177 Jerrold Avenue San Francisco, Pat Sheridan (203)
N.A. CA 94124 973-1982
Rental Service Corporation 4426239228 Bank of America, 2150 O'toole Avenue San Jose, Pat Sheridan (203)
N.A. CA 95131 973-1982
Rental Service Corporation 4426239231 Bank of America, 4635 Power Inn Road Sacramento, Pat Sheridan (203)
N.A. CA 95826 973-1982
Rental Service Corporation 4426239338 Bank of America, 3333 S.Hwy 99 Frontage Road Pat Sheridan (203)
N.A. Stockton, CA 95215 973-1982
Rental Service Corporation 4426239244 Bank of America, 4030 Pacheco Boulevard Martinez, CA Pat Sheridan (203)
N.A. 94553 973-1982
Rental Service Corporation 4426239341 Bank of America, 8001 Oakport Street Pat Sheridan (203)
N.A. Oakland, CA 94621 973-1982
Rental Service Corporation 4426230913 Bank of America, 501 S Main Street Ellensburg, WA Pat Sheridan (203)
N.A. 98926 973-1982
Rental Service Corporation 4426239257 Bank of America, 1210 West Broadway Moses Lake, WA Pat Sheridan (203)
N.A. 98837 973-1982
Rental Service Corporation 4426239354 Bank of America, 2302 East "Q" Street Tacoma, Pat Sheridan (203)
N.A. WA 98421 973-1982
Rental Service Corporation 4426239260 Bank of America, 2810 Highland Avenue Everett, WA Pat Sheridan (203)
N.A. 98201 973-1982
Rental Service Corporation 4426239367 Bank of America, 9045 Willows Road Redmond, WA Pat Sheridan (203)
N.A. 98052 973-1982
Rental Service Corporation 4426239273 Bank of America, 5421 1St Avenue South Seattle, WA Pat Sheridan (203)
N.A. 98108 973-1982
Rental Service Corporation 4426239370 Bank of America, 1301 East College Way Mount Vernon, Pat Sheridan (203)
N.A. WA 98273 973-1982
Rental Service Corporation 4426239286 Bank of America, 13850 SE Ambler Road Clackamas, Pat Sheridan (203)
N.A. OR 97015 973-1982
31
Schedule 4.16(a)
to Credit Agreement
ACCOUNT BANK CONTACT NAME AND
GRANTOR NUMBER NAME OF BANK ADDRESS PHONE NUMBER
------- ------------- ---------------- ----------------------------------- ----------------------
Rental Service Corporation 4426239299 Bank of America, 61530 S. Highway 97 Bend, OR Pat Sheridan (203)
N.A. 97702 973-1982
Rental Service Corporation 4426239309 Bank of America, 2333 S. Highway 97 Redmond, OR Pat Sheridan (203)
N.A. 97756 973-1982
Rental Service Corporation 4426239312 Bank of America, 2661 NE Stephens Street Roseburg, Pat Sheridan (203)
N.A. OR 97470 973-1982
Rental Service Corporation 4426239325 Bank of America, 915 E. Elm Avenue Hermiston, OR Pat Sheridan (203)
N.A. 97838 973-1982
Rental Service Corporation 4426239383 Bank of America, 625301 Highway 101 South Coos Bay, Pat Sheridan (203)
N.A. OR 97420 973-1982
Rental Service Corporation 4426239396 Bank of America, 3344 Washburn Way Klamath Falls, Pat Sheridan (203)
N.A. OR 97603 973-1982
Rental Service Corporation 4426239406 Bank of America, 2100 Highway 99N Eugene, OR Pat Sheridan (203)
N.A. 97402 973-1982
Rental Service Corporation 4426239419 Bank of America, 3092 Silverton Road Salem, Pat Sheridan (203)
N.A. OR 97303 973-1982
Rental Service Corporation 4426239422 Bank of America, 3110 Winter Lake Road Lakeland, Pat Sheridan (203)
N.A. FL 33803 973-1982
Rental Service Corporation 4426239435 Bank of America, 3635 US Highway 98 N. Lakeland, Pat Sheridan (203)
N.A. FL 33809 973-1982
Rental Service Corporation 4426239448 Bank of America, 5907 E. Adamo Tampa, FL Pat Sheridan (203)
N.A. 33619 973-1982
Rental Service Corporation 4426239451 Bank of America, 1835 N. Washington Boulevard Pat Sheridan (203)
N.A. Sarasota, FL 34234 973-1982
Rental Service Corporation 4426239464 Bank of America, 907 E. Canal Street Mulberry, Pat Sheridan (203)
N.A. FL 33860 973-1982
Rental Service Corporation 4426239477 Bank of America, 200 S.LaSalle Street Durham, Pat Sheridan (203)
N.A. NC 27705 973-1982
Rental Service Corporation 4426239480 Bank of America, 4201 L B Mc Leod Road Orlando, FL Pat Sheridan (203)
N.A. 32811 973-1982
Rental Service Corporation 4426231323 Bank of America, 10230 Logan Cline Drive Gulfport, Pat Sheridan (203)
N.A. MS 39503 973-1982
Rental Service Corporation 4426239587 Bank of America, 723 Concord Parkway N. Concord, NC Pat Sheridan (203)
N.A. 28027 973-1982
Rental Service Corporation 4426239493 Bank of America, 602 Copeland Drive Hampton, Pat Sheridan (203)
N.A. VA 23661 973-1982
Rental Service Corporation 4426239590 Bank of America, 2613 S. Orlando Dr, Highway 17/92 Pat Sheridan (203)
N.A. Sanford, FL 32773 973-1982
Rental Service Corporation 4426239503 Bank of America, 6133 Murchison Road Pat Sheridan (203)
N.A. Fayetteville, NC 28311 973-1982
32
Schedule 4.16(a)
to Credit Agreement
ACCOUNT BANK CONTACT NAME AND
GRANTOR NUMBER NAME OF BANK ADDRESS PHONE NUMBER
------- ------------- ---------------- ----------------------------------- ----------------------
Rental Service Corporation 4426239600 Bank of America, 344 E. Plaza Drive Mooresville, Pat Sheridan (203)
N.A. NC 28115 973-1982
Rental Service Corporation 4426239516 Bank of America, 100 Weber Avenue Leesburg, Pat Sheridan (203)
N.A. FL 34748 973-1982
Rental Service Corporation 4426239613 Bank of America, 2850 W State Rd 520 Cocoa, FL Pat Sheridan (203)
N.A. 32926 973-1982
Rental Service Corporation 4426239529 Bank of America, 355 5th Street S.W. Winter Haven, Pat Sheridan (203)
N.A. FL 33880 973-1982
Rental Service Corporation 4426239626 Bank of America, 12997 North Freeway Fort Pat Sheridan (203)
N.A. Worth, TX 76177 973-1982
Rental Service Corporation 4426231129 Bank of America, 300 Lynbrook Boulevard Shreveport, Pat Sheridan (203)
N.A. LA 71106 973-1982
Rental Service Corporation 4426239532 Bank of America, 737 E. Main Lewisville, TX Pat Sheridan (203)
N.A. 75057 973-1982
Rental Service Corporation 4426270371 Bank of America, 2728 Westmoreland Dallas, TX Pat Sheridan (203)
N.A. 75212 973-1982
Rental Service Corporation 4426239545 Bank of America, 6935 Woodway Drive Waco, TX Pat Sheridan (203)
N.A. 76712 973-1982
Rental Service Corporation 4426216380 Bank of America, 58020 Industrial Boulevard Pat Sheridan (203)
N.A. Plaquemine, LA 70764 973-1982
Rental Service Corporation 4426216348 Bank of America, Po Box 665; 2235 Highway 70 Pat Sheridan (203)
N.A. Donaldsonville, LA 70346 973-1982
Rental Service Corporation 4426239558 Bank of America, 1766S.Treadaway Abilene, Pat Sheridan (203)
N.A. TX 79602 973-1982
Rental Service Corporation 4426239561 Bank of America, 2807 N. Garnett Road Tulsa, OK Pat Sheridan (203)
N.A. 74116 973-1982
Rental Service Corporation 4426231035 Bank of America, 2420 Lee Boulevard Lawton, Pat Sheridan (203)
N.A. OK 73505 973-1982
Rental Service Corporation 4426239574 Bank of America, 3595 Fm 1960 W. Humble, TX Pat Sheridan (203)
N.A. 77338 973-1982
Rental Service Corporation 4426232474 Bank of America, 6952 Airline Highway Baton Rouge, Pat Sheridan (203)
N.A. LA 70805 973-1982
Rental Service Corporation 4426232487 Bank of America, 1444 W. Bank Expressway Westwego, Pat Sheridan (203)
N.A. LA 70094 973-1982
Rental Service Corporation 4426239639 Bank of America, 2809 W. Kingsley Road Garland, TX Pat Sheridan (203)
N.A. 75041 973-1982
Rental Service Corporation 4426239642 Bank of America, 6914 Gateway East El Paso, Pat Sheridan (203)
N.A. TX 79915 973-1982
Rental Service Corporation 4426232490 Bank of America, 11580 Chef Menteur Highway New Pat Sheridan (203)
N.A. Orleans, LA 70128 973-1982
33
Schedule 4.16(a)
to Credit Agreement
ACCOUNT BANK CONTACT NAME AND
GRANTOR NUMBER NAME OF BANK ADDRESS PHONE NUMBER
------- ------------- ---------------- ----------------------------------- ----------------------
Rental Service Corporation 4426240974 Bank of America, 320 Highway 67 Midlothian, TX Pat Sheridan (203)
N.A. 76065 973-1982
Rental Service Corporation 4426240987 Bank of America, 3101 South I-35 Service Road Pat Sheridan (203)
N.A. Oklahoma City, OK 73129 973-1982
Rental Service Corporation 4426240990 Bank of America, 10300 Ih-35 North Austin, Pat Sheridan (203)
N.A. TX 78753 973-1982
Rental Service Corporation 4426231132 Bank of America, 3506 Chapman Lane Austin, TX Pat Sheridan (203)
N.A. 78744 973-1982
Rental Service Corporation 4426231569 Bank of America, 3560 Young Place Lynchburg, VA Pat Sheridan (203)
N.A. 24501 973-1982
Rental Service Corporation 4426231572 Bank of America, 944 Manifold Road Washington, PA Pat Sheridan (203)
N.A. 15301 973-1982
Rental Service Corporation 4426230939 Bank of America, 421 So. Wenatchee Avenue Wenatchee, Pat Sheridan (203)
N.A. WA 98801 973-1982
Rental Service Corporation 4426230942 Bank of America, 5414 S. Peach Avenue Fresno, CA Pat Sheridan (203)
N.A. 93725 973-1982
Rental Service Corporation 4426287681 Bank of America, 1533 North McDonald McKinney, Pat Sheridan (203)
N.A. TX 75069 973-1982
Rental Service Corporation 4426231048 Bank of America, 5120 Wurzbach Road San Antonio, Pat Sheridan (203)
N.A. TX 78238 973-1982
Rental Service Corporation 4426231145 Bank of America, 5333 East Houston San Antonio, TX Pat Sheridan (203)
N.A. 78220 973-1982
Rental Service Corporation 4426231336 Bank of America, 4226 Halls Mill Road Mobile, Pat Sheridan (203)
N.A. AL 36693 973-1982
Rental Service Corporation 4426231349 Bank of America, 5580 N. Pensacola Boulevard Pat Sheridan (203)
N.A. Pensacola, FL 32505 973-1982
Rental Service Corporation 4426231352 Bank of America, 7907 Baseline Court Tampa, FL Pat Sheridan (203)
N.A. 33637 973-1982
Rental Service Corporation 4426231420 Bank of America, 4111 Pinson Valley Park Pat Sheridan (203)
N.A. Birmingham, AL 35215 973-1982
Rental Service Corporation 4426232885 Bank of America, 4300 Muhlhauser Road Fairfield, Pat Sheridan (203)
N.A. OH 45014 973-1982
Rental Service Corporation 4426231051 Bank of America, 2201 Tin Top RD Suite 400 Pat Sheridan (203)
N.A. Weatherford, TX 76087 973-1982
Rental Service Corporation 4426230955 Bank of America, 8450 Haddon Avenue Sun Valley, Pat Sheridan (203)
N.A. CA 91352 973-1982
Rental Service Corporation 4426231967 Bank of America, 1790 Radisson Road N.E. Blaine, MN Pat Sheridan (203)
N.A. 55449 973-1982
Rental Service Corporation 4426232500 Bank of America, 913 Chippewa Street Baton Rouge, Pat Sheridan (203)
N.A. LA 70805 973-1982
Rental Service Corporation 4426231158 Bank of America, 11003 Bissonnet Houston, TX Pat Sheridan (203)
N.A. 77099 973-1982
34
Schedule 4.16(a)
to Credit Agreement
ACCOUNT BANK CONTACT NAME AND
GRANTOR NUMBER NAME OF BANK ADDRESS PHONE NUMBER
------- ------------- ---------------- ----------------------------------- ----------------------
Rental Service Corporation 4426231064 Bank of America, 2510 South Main Pat Sheridan (203)
N.A. Stafford, TX 77477 973-1982
Rental Service Corporation 4426231077 Bank of America, 12245 Veterans Memorial Parkway Pat Sheridan (203)
N.A. Houston, TX 77067 973-1982
Rental Service Corporation 4426232898 Bank of America, 3485 Roger E. Schupp Pat Sheridan (203)
N.A. Louisville, KY 40205 973-1982
Rental Service Corporation 4426232908 Bank of America, 4828 Constellation Avenue Pat Sheridan (203)
N.A. Evansville, IN 47715 973-1982
Rental Service Corporation 4426232966 Bank of America, 3660 Interchange Road Pat Sheridan (203)
N.A. Columbus, OH 43204 973-1982
Rental Service Corporation 4426232979 Bank of America, 5773 Executive Boulevard Pat Sheridan (203)
N.A. Dayton, OH 45424 973-1982
Rental Service Corporation 4426232982 Bank of America, 3805 S. Harding Street Pat Sheridan (203)
N.A. Indianapolis, IN 46217 973-1982
Rental Service Corporation 4426231585 Bank of America, 10840 Metromont Parkway Pat Sheridan (203)
N.A. Charlotte, NC 28269 973-1982
Rental Service Corporation 4426231598 Bank of America, 4320 New Bern Avenue Pat Sheridan (203)
N.A. Raleigh, NC 27610 973-1982
Rental Service Corporation 4426231608 Bank of America, 3501 Business Center Drive Pat Sheridan (203)
N.A. Chesapeake, VA 23323 973-1982
Rental Service Corporation 4426231970 Bank of America, 1326 S Bishop Avenue Pat Sheridan (203)
N.A. Rolla, MO 65401 973-1982
Rental Service Corporation 4426231080 Bank of America, 3925 N. Cage Boulevard Pat Sheridan (203)
N.A. Pharr, TX 78577 973-1982
Rental Service Corporation 4426231093 Bank of America, 1200 West Business 77 Pat Sheridan (203)
N.A. San Benito, TX 78586 973-1982
Rental Service Corporation 4426231103 Bank of America, 15210 Fm 529 @ Highway 6 Pat Sheridan (203)
N.A. Houston, TX 77095 973-1982
Rental Service Corporation 4426232513 Bank of America, 4225 College Pat Sheridan (203)
N.A. Beaumont, TX 77707 973-1982
Rental Service Corporation 4426231161 Bank of America, 17700 Highway 3 Pat Sheridan (203)
N.A. Webster, TX 77598 973-1982
Rental Service Corporation 4426231174 Bank of America, 4900 E. Loop 820 South Pat Sheridan (203)
N.A. Fort Worth, TX 76119 973-1982
Rental Service Corporation 4426231187 Bank of America, 2727 Avenue K Pat Sheridan (203)
N.A. Plano, TX 75074 973-1982
Rental Service Corporation 4426231190 Bank of America, 20202 Park Row Pat Sheridan (203)
N.A. Katy, TX 77449 973-1982
Rental Service Corporation 4426232526 Bank of America, 824 S Highway 35 Bypass Pat Sheridan (203)
N.A. Port Lavaca,TX 77979 973-1982
35
Schedule 4.16(a)
to Credit Agreement
ACCOUNT BANK CONTACT NAME AND
GRANTOR NUMBER NAME OF BANK ADDRESS PHONE NUMBER
------- ------------- ---------------- ----------------------------------- ----------------------
Rental Service Corporation 4426231200 Bank of America, 8200 East Freeway Pat Sheridan (203)
N.A. Houston, TX 77029 973-1982
Rental Service Corporation 4426232539 Bank of America, 2500 W. Airline Highway Pat Sheridan (203)
N.A. Laplace, LA 70068 973-1982
Rental Service Corporation 4426232542 Bank of America, 2011 Highway 288 Pat Sheridan (203)
N.A. Freeport, TX 77541 973-1982
Rental Service Corporation 4426232555 Bank of America, 1635 Industrial Park Drive Pat Sheridan (203)
N.A. Nederland, TX 77627 973-1982
Rental Service Corporation 4426232568 Bank of America, 4002 Texas Avenue Pat Sheridan (203)
N.A. Texas City, TX 77590 973-1982
Rental Service Corporation 4426232665 Bank of America, 8807 Highway 225 Pat Sheridan (203)
N.A. La Porte, TX 77571 973-1982
Rental Service Corporation 4426231433 Bank of America, 3650 Bonnet Creek Road Pat Sheridan (203)
N.A. Lake Buena Vista, FL 32830 973-1982
Rental Service Corporation 4426232995 Bank of America, 16225 Park Ten Place Pat Sheridan (203)
N.A. Houston, TX 77084 973-1982
Rental Service Corporation 4426216416 Bank of America, 3417 Trade Park Court Pat Sheridan (203)
N.A. Charlotte, NC 28236 973-1982
Rental Service Corporation 4426216429 Bank of America, 3200 N Harbor Lane Pat Sheridan (203)
N.A. Plymouth, MN 55447 973-1982
Rental Service Corporation 3752128473 Bank of America, 215 E. Baseline Pat Sheridan (203)
N.A. Gilbert, AZ 85233 973-1982
Rental Service Corporation 3752128460 Bank of America, 6929 E. Greenway Pat Sheridan (203)
N.A. Scottsdale, AZ 85254 973-1982
Rental Service Corporation 03749-1000447 Royal Bank of 1 Place Ville Marie, 8th Floor, Francine Fillion (514)
of Canada Ltd. Canada West Wing Montreal, QC H3C 3A9 874-3041
Canada
36
Schedule 4.16(b)
to Credit Agreement
Schedule 4.16(b): Credit Card Arrangements
USA Payment Services, Inc.--Rental Service Corporation
1. Merchant Application and Agreement, dated as of February 28, 2003,
among USA Payment Services, Inc. and Rental Service Corporation (the
"Company").
American Express--Rental Service Corporation
1. American Express Card Acceptance Agreement, among American Express and
the Company.
Moneris Solutions Inc.--Rental Service Corporation of Canada Ltd.
1. Agreement, dated as of April 1998, among Moneris Solutions Inc. and
Rental Service Corporation of Canada Ltd.
37
Schedule 4.16(c)
to Credit Agreement
Schedule 4.16(c): Blocked Accounts
ACCOUNT NUMBER/ BANK CONTACT NAME AND
GRANTOR TYPE OF ACCOUNT NAME OF BANK ADDRESS PHONE NUMBER
-------------------------- --------------------- --------------------- ----------------------- ---------------------
Rental Service 8188513183/ CDA USCG Illinois North Pat Sheridan
Corporation Concentration/Lockbox Bank of America, N.A. #8188, 231 La Salle (203) 973-1982
Chicago, IL 60697
Rental Service 7145923001/ Nordea Bank Finland 437 Madison Avenue Christine Schrempp
Corporation Concentration/Loan PLC New York, NY 10022 (212) 318-9565
Rental Service 03749-1006873 Royal Bank of Canada 1 Place Ville Marie, Francine Fillion
Corporation of Canada Ltd. 8th Floor, West Wing (514) 874-3041
Montreal, QC H3C 3A9
38
Schedule 5.2
to Credit Agreement
Schedule 5.2: Material Adverse Effect Disclosure
None.
39
Schedule 5.4
to Credit Agreement
Schedule 5.4: Consents Required
1. Industrial Lease Agreement between Partnership 221 (Landlord), a New Mexico
limited liability company, and Zuni Rental Enterprises, L.L.C. (Tenant), a
Colorado limited liability company, as assigned to The Air & Pump Company
on December 20, 1999 and renewed by RSC pursuant to the lease renewal
notice dated June 28, 2001 (Property ID Number 292-01).
2. Lease Agreement between Mary Louise Veatch, R. Kendal Veatch, Marilyn M.
Veatch, Melvin T. Veatch, Jr. and Kathleen O. Veatch (Lessor) and Danville
Rental and Services, Inc. (Lessee) dated May 1, 1988, as assigned to Rental
Service Corporation USA, Inc. on May 3, 2000 and renewed by RSC on February
13, 2003 and January 20, 2005 (Property ID Number 378-02).
3. Commercial Lease Agreement between Peter E. and Kathryn R. Melsted (Lessor)
and JDW Enterprises, Inc. (Lessee) dated November 1, 1995, as amended on
March 14, 2005 (Property ID Number 392-01).
4. Sublease Agreement between JDW Enterprises, Inc. dba Valley Rentals
(Sublessor), an Arizona corporation, and Peter E. and Kathryn R. Melsted
(Lessor) and RSC Center, Inc. (Sublessee), a Texas corporation, dated
February 2, 1998, as amended on July 10, 2000, October 24, 2002 and March
13, 2003 (Property ID Number 397-01).
5. Lease Agreement between Century 21 Cox Realty (Lessor) and Prime Service
(Lessee) dated December 1, 1994 (Property ID Number 527-01).
6. Lease Agreement between Clementina LTD (Lessor) and Prime Service, Inc., a
Delaware corporation (Lessee), as amended on October 4, 2002 (Property ID
Number 550-01).
7. Lease Agreement between Simas Floor Company, Inc., Money Purchase Pension
Plan & Trust (Lessor) and RSC (Lessee) dated September 25, 2001, as amended
on January 24, 2006 (Property ID Number 554-01).
8. Lease Agreement between Clementina Refinery Services and Anne Cleary Kerns,
L.L.C. dated November 20, 1997, as assigned to Prime Service, Inc. pursuant
to Assignment of Lease dated November 21, 1997 and modified pursuant to
Modification Agreement entered into between Anne Cleary Kerns, L.L.C. and
RSC, successor to Clementina Refinery Services, dated September 5, 2003
(Property ID Number 556-01).
9. Lease Agreement between Tulloch Construction, Inc., a California
corporation (Lessor), and Prime Service, Inc., a Delaware corporation
(Lessee), dated June 9, 1998, as amended on September 16, 2005 (Property ID
Number 557-01).
40
Schedule 5.4
to Credit Agreement
10. Lease Agreement between Four Square Development Company, a Washington
partnership (Lessor), and Alpine Equipment Rentals & Supply Company Inc., a
Washington corporation (Lessee), dated November 1, 1991, as amended on July
29, 1996, renewed by RSC, successor to Alpine Equipment Rentals & Supply
Company, Inc., on April 5, 2002, and amended on May 17, 2002 and March 21,
2006 (Property ID Number 561-01).
11. Lease Agreement between B&B Properties (Landlord), a Washington
partnership, and Prime Service, Inc. (Tenant), a Delaware corporation,
dated November 4, 1998, as renewed by RSC, successor to Prime Service,
Inc., on August 10, 2001, and amended on April 7, 2002 (Property ID Number
563-01).
12. Lease Agreement between Harold E. Stack (Lessor) and Alpine Equipment
Rentals and Supply Company, Inc. (Lessee) dated April 22, 1990, as renewed
on November 30, 1995, assigned to Primeco, Inc. pursuant to Lessor's
Consent dated July 25, 1996, amended on July 5, 2000, July 29, 2002 and
January 14, 2004 and renewed on June 30, 2005 (Property ID Number 565-01).
13. Commercial Lease Agreement between John V. and Claudette S. Gubrud (Lessor)
and Alpine Equipment Rentals and Supply Company, Inc. (Lessee) dated May
15, 1995, as assigned to Primeco Inc. pursuant to Lessor's Consent dated
July 25, 1996, amended and extended on July 16, 1999 and renewed by RSC on
January 28, 2005 (Property ID Number 566-01).
14. Commercial Building Lease Agreement between Louisville Regional Airport
Authority and RSC dated May 21, 2004 (Property ID Number 730-01).
15. Lease Agreement between The Prudential Insurance Company of America, a New
Jersey corporation (Lessor), and Primeco, Inc., dated August 7, 1992, as
amended on August 6, 1996, September 26, 1996, January 27, 1998 and
November 3, 2000 (Property ID Number 981-04).
16. Master Lease Agreement No 00228 dated July 16, 2003 between the Company and
Bay4 Capital LLC.
17. Lease Agreement between Mosak Properties LLC (Assignee/Landlord), a
Delaware limited liability company and Rental Service Corporation (Tenant),
dated November 4, 2004 (Property ID Number 354-02).
18. Lease Agreement between Amtel, Inc. (Landlord), a South Carolina
corporation, and Prime Service, Inc (Tenant), a Delaware corporation, dated
March 23, 1998 (Property ID 478-02).
19. Industrial Lease Agreement between Partnership 221 (Landlord), a New Mexico
limited liability company, and Zuni Rental Enterprises, L.L.C. (Tenant), a
Colorado limited liability company, as assigned to The Air & Pump Company
on December 2, 1997 and
41
Schedule 5.4
to Credit Agreement
renewed by RSC pursuant to the lease renewal notice dated June 28, 2001 and
August 18, 2006 (Property ID Number 293-01).
20. Applicable requirements under the Hart-Scott-Rodino Antitrust Improvements
Act of 1976, as amended.
42
Schedule 5.8
to Credit Agreement
Schedule 5.8: Real Property
I(a) Owned Real Property
STATE CITY ADDRESS ZIP CODE
-------------- ------------- ------------------------------- --------
1. Florida Ft. Pierce 3019 S. US Highway 1 34982
2. Florida Pensacola 5580 N. Pensacola Boulevard 32505
3. Iowa Muscatine 1303 Washington Street 52761
4. North Carolina Winston-Salem 3800 N. Patterson Avenue 27105
5. Texas Wichita Falls 1113 Sheppard Access Road Coded 76306
I(b) Leased Real Property
STORE REGION
# # PROPERTY ID# ADDRESS CITY STATE
----- ------ ------------ ------------------------------------------------------- ----------------- -----
1 9 R-001-01 4915 101st Avenue Edmonton AB
2 9 R-002-01 5518 50th Avenue Bonnyville AB
4 9 R-004-01 15730 118th Ave. Edmonton AB
6 9 R-006-02 275 MacAlpine Crescent Fort McMurray AB
6 9 R-006-03 265 MacAlpine - (lot lease) Fort McMurray AB
7 9 R-007-02 2181 Premier Way, #244 Sherwood Park AB
8 9 R-008-04 2921 Millar Avenue Saskatoon SK
9 9 R-009-01 235 McDonald St. North Regina SK
10 9 R-010-02 3639 8th Street SE Calgary AB
11 9 R-011-02 6734 65th Avenue Red Deer AB
12 9 R-012-01 3915 38th Street Whitecourt AB
13 9 R-013-01 59 17th Street West Prince Albert SK
14 3 R-014-01 2136 W. Beaver Street Jacksonville FL
15 3 R-015-01 8618 Philips Highway Jacksonville FL
16 7 R-016-01 3301 Cities Service Hwy. Westlake LA
18 2 R-018-01 911 South Loop West Houston TX
21 7 R-021-01 38385 Highway 30 Gonzales LA
22 2 R-022-02 U.S. Highway 79 South OR 766 Highway 79 West Buffalo TX
26 7 R-026-03 8424 Hansen Rd Houston TX
27 2 R-027-02 3500 Ellen Trout Drive Lufkin TX
28 2 R-028-01 1419 FM 1845 Longview TX
31 2 R-031-01 2301 S. Texas Avenue College Station TX
32 2 R-032-02 820 Bus Hwy 30 E Huntsville TX
33 2 R-033-01 2700 W. Highway 290 Brenham TX
43
Schedule 5.8
to Credit Agreement
STORE REGION
# # PROPERTY ID# ADDRESS CITY STATE
----- ------ ------------ ------------------------------------------------------- ----------------- -----
34 2 R-034-01 5210 S. General Bruce Temple TX
36 2 R-036-01 3301 Interstate Hwy. 35 North Round Rock TX
38 3 R-038-01 On-Site facility at Chevron Products Pascagoula MS
39 7 R-039-01 750 Highway 61 North Vicksburg MS
40 7 R-040-01 585 S. Padre Island Corpus Christi TX
41 7 R-041-01 4330 Highway 80 West Jackson MS
42 7 R-042-01 5595 Highway 49 South Hattiesburg MS
43 9 R-043-03 19862 County Road 20 Foley AL
44 7 R-044-02 227 Shelton Street Columbus MS
45 3 R-045-01 14144 66th Street N. Largo FL
46 3 R-046-01 6717 US Highway 19 Port Richey FL
46 3 R-046-02 11507 U.S. 19 North Port Richey FL
48 3 R-048-01 3051 Hanson Street Ft. Myers FL
51 8 R-051-01 3180 Highway 20 West Decatur AL
52 3 R-052-02 3235 Veterans Circle Trussville AL
54 3 R-054-01 2123 Hamilton Rd. La Grange GA
55 3 R-055-01 2400 Whittlesey Road Columbus GA
56 3 R-056-01 1747 Warm Springs Rd. Columbus GA
57 3 R-057-01 2379 Bentcreek Road Auburn AL
57 3 R-052-02 1845 East Glen Avenue Auburn AL
58 3 R-058-01 35 Herring Road Newnan GA
59 3 R-059-01 6535 Bankhead Hwy. Douglasville GA
60 3 R-060-01 616 Hwy 138 S.W. - Combined location with RSC District
Office #163 - Same Lease Riverdale GA
61 7 R-061-01 1214 Jefferson Road Demopolis AL
66 3 R-066-01 2750 Southside Drive Tuscaloosa AL
67 3 R-067-01 729 S. Westover Blvd. Albany GA
68 4 R-068-01 3521 Old Savannah Road. Augusta GA
69 8 R-069-01 4293 Highway 58 Chattanooga TN
71 3 R-071-01 Lot 302 Highway 9 Cumming GA
72 3 R-072-01 50 Trade Street Bogart GA
73 3 R-073-01 3297 Martha Berry Hwy. Rome GA
75 3 R-075-02 6575 Southern Boulevard West Palm Beach FL
77 3 R-077-01 1830 Mason Ave. Daytona Beach FL
80 8 R-080-02 43388 U.S. Highway 72 Stevenson AL
81 8 R-081-01 3180 Leeman Ferry Rd. Huntsville AL
82 8 R-082-02 1512 E 2nd Street Muscle Shoals AL
99 6 R-099-01 6929 E. Greenway STE 200 Scottsdale AZ
44
Schedule 5.8
to Credit Agreement
STORE REGION
# # PROPERTY ID# ADDRESS CITY STATE
----- ------ ------------ ------------------------------------------------------- ----------------- -----
99 6 R-884-01 10822 E Fanfol Lane Scottsdale AZ
99 6 R-884-02 6633 E. Greenway Parkway, #2060 Scottsdale AZ
100 6 R-100-01 407 S. Price Road Tempe AZ
107 7 R-107-01 11832 Lake Charles Highway Leesville LA
110 7 R-110-01 3612 Coliseum Blvd. Alexandria LA
111 7 R-111-01 333 Griffith Street Pineville LA
112 2 R-112-01 6230 Southwest Pkwy. Wichita Falls TX
113 2 R-113-02 2200 Falcon Rd Altus OK
113 2 R-113-03 3003 East Broadway Street Altus OK
115 7 R-115-02 4911 Highway 90 East Broussard LA
116 7 R-116-01 10606 E. Main St. Houma LA
118 7 R-118-01 68674 Hwy. 59 Mandeville LA
119 7 R-119-01 5194 FM 1006 Orange TX
120 7 R-120-01 201 Avenue F North Bay City TX
121 2 R-121-01 4542 IH 35 San Marcos TX
122 2 R-122-01 1300 W. Central TX Expy. Killeen TX
126 2 R-126-02 29880 W IH-10 Boerne TX
127 2 R-127-01 2225 Austin St San Angelo TX
130 7 R-130-01 80 Grady Road Grenada MS
131 5 R-131-01 6014 Forbing Road Little Rock AR
131 5 R-131-02 11618 Otter Creek South Mabelvale AR
132 5 R-132-01 6101 Forbing Road Little Rock AR
135 5 R-135-01 2600 W. Main Jacksonville AR
136 5 R-136-01 7217 Airways Road Southaven MS
138 7 R-138-01 3035 S. Frontage Road Meridian MS
139 5 R-139-01 2039 Fletcher Creek Road Memphis TN
139 5 R-139-03 Highway 70/Kirby-Whitten Road Bartlett TN
141 3 R-141-01 119 Doodle Avenue Fort Walton Beach FL
142 3 R-142-04 691 N.W. 31st Avenue Pompano Beach FL
143 3 R-143-03 2471 Smith Street Kissimmee FL
145 3 R-145-02 10247 Highway 84 East Thomasville GA
151 3 R-151-02 700 Enterprise Court Montgomery AL
152 3 R-152-02 1214 Hamrick Drive West Oxford AL
153 3 R-153-01 364 Highway 280 Alexander City AL
154 3 R-154-02 3425 Napier Field Rd Dothan AL
156 3 R-156-01 1503 West 15th Street Panama City FL
157 3 R-157-01 140 Industrial Drive Attalla AL
159 3 R-159-01 1369 McCain Pkwy Pelham AL
45
Schedule 5.8
to Credit Agreement
STORE REGION
# # PROPERTY ID# ADDRESS CITY STATE
----- ------ ------------ ------------------------------------------------------- ----------------- -----
160 3 R-160-01 135 Peachtree Road Byron GA
163 3 R-163-01 616 Hwy 138 S.W.: Combined location with RSC Store Riverdale GA
#060 - Same Lease
165 3 R-165-01 1747 Warm Springs Rd. (same lease as store #56) Columbus GA
166 3 R-166-01 921 East Morris Street Dalton GA
167 3 R-167-02 323 South Houston Lake Road Warner Robins GA
169 8 R-169-03 5188 EastgateBlvd Lebanon TN
170 8 R-170-01 1500 Fritz Street SE Cleveland TN
171 8 R-171-02 10639 Dutchtown Road Knoxville TN
173 8 R-173-01 6688 W. A. Johnson Hwy. Morristown TN
174 8 R-174-01 608 West Avenue Crossville TN
175 8 R-175-02 147 Jack Miller Boulevard Clarksville TN
176 8 R-176-03 301 Crutcher Street Nashville TN
177 8 R-177-01 1425 S. Church Street Murfreesboro TN
178 8 R-178-01 109 Century Court Franklin TN
180 4 R-180-01 709 Seaboard Street Myrtle Beach SC
184 3 R-184-01 132 Matthews Drive Hilton Head SC
188 4 R-188-01 4013 Highway 74 West Monroe NC
190 4 R-190-01 700 South 15th Avenue Hopewell VA
191 4 R-191-01 3925 Washington Blvd. Baltimore MD
193 4 R-193-01 11104 Industrial Road Manassas VA
195 4 R-195-01 9430 Early Drive Hagerstown MD
196 4 R-196-01 6778 Lincoln Hwy. West Thomasville PA
201 4 R-201-01 610 Pine Log Road Aiken SC
202 4 R-202-01 1201 Electric Road Salem VA
203 4 R-203-02 1570 Radford Road Christiansburg VA
204 4 R-204-01 8008 Dorchester Road Charleston SC
206 4 R-206-01 1303 Governor Court Abingdon MD
207 4 R-207-02 4620 Wedgewood Boulevard Frederick MD
210 8 R-210-01 3913 24th Street Moline IL
212 5 R-212-01 2021 NE Broadway Des Moines IA
213 5 R-213-01 5735 4th Street SW Cedar Rapids IA
214 8 R-214-01 4419 & 4375 Reas Bridge Road Decatur IL
216 8 R-216-01 1414 Triumph Drive Urbana IL
218 5 R-218-01 2325 SE 5th Street Ames IA
219 8 R-219-01 300 W. Chicago Ave. E. Chicago IN
221 5 R-221-01 3140 E. Kearney Springfield MO
223 2 R-223-03 3520 N. Perkins Road Stillwater OK
46
Schedule 5.8
to Credit Agreement
STORE REGION
# # PROPERTY ID# ADDRESS CITY STATE
----- ------ ------------ ------------------------------------------------------- ----------------- -----
224 8 R-224-01 21600 Doral Road Waukesha WI
224 8 R-224-02 21650 Doral Road Waukesha WI
225 8 R-225-01 3736 11th Street Rockford IL
226 8 R-226-01 2201 East Higgins Road ElK Grove Village IL
230 5 R-230-02 6520 W. Barraque Street Pine Bluff AR
231 2 R-231-01 2022 Texas Blvd. Texarkana TX
232 5 R-232-01 1810 S. 8th Street Rogers AR
232 5 R-232-02 2505 N. 24th Street Rogers AR
233 5 R-233-01 2927 Browns Lane Jonesboro AR
235 5 R-235-01 931 S. Division Street Blytheville AR
235 5 R-235-02 4855 North County Road 773 Blytheville AR
237 5 R-237-01 3004 S. Arkansas Russellville AR
238 5 R-238-01 3616 Towson Avenue Fort Smith AR
239 5 R-239-01 1800 Higdon Ferry Rd. Hot Springs AR
240 3 R-240-01 709 West Gaines St. Tallahassee FL
241 3 R-241-01 3655 N. Monroe St. Tallahassee FL
243 3 R-243-01 2445 Capital Circle NE Tallahassee FL
244 3 R-244-02 539 S.W. Arrowhead Terrace Lake City FL
245 3 R-245-02 4383 Inner Perimeter Road Valdosta GA
247 8 R-247-01 1610 W. Wisconsin Avenue Appleton WI
248 8 R-248-01 5814 Green Valley Road Oshkosh WI
249 2 R-249-01 3801 SE Nowata Road Bartlesville OK
249 2 R-249-02 Lot Next Door Bartlesville OK
250 5 R-250-01 2025 Westfield Avenue Waterloo IA
251 5 R-251-01 2809 Larson Street LaCrosse WI
252 5 R-252-03 1100 Vine Street Hays KS
254 4 R-254-02 7094 Truck World Blvd Hubbard OH
256 5 R-256-01 449 St. Ferdinand Florissant MO
257 5 R-257-01 1717 Ford Lane St. Charles MO
260 7 R-260-01 8500 W. Bay Road - On-site facility at Bayer Baytown TX
262 7 R-262-01 8280 Sheldon Road - On-site facility at Citgo Channelview TX
263 7 R-263-01 458 Plantation Drive, PMB 302 - On-site facility at Dow Lake Jackson TX
265 7 R-265-01 1790 Paris Road-Gate #3 - On-site facility at Mobile Chalmette LA
266 7 R-266-01 585 S. Padre Island - On-site facility at Koch Corpus Christi TX
267 7 R-267-01 3301 Cities Service Highway - On-site Westlake LA
47
Schedule 5.8
to Credit Agreement
STORE REGION
# # PROPERTY ID# ADDRESS CITY STATE
----- ------ ------------ ------------------------------------------------------- ----------------- -----
facility at Petro
268 8 R-268-01 300 W. Chicago Ave. - On-site facility at Amoco E. Chicago IN
271 8 R-271-01 Finley Island Road - On-site facility at Amoco Chemical Decatur AL
272 5 R-272-01 650 Industrial Road - Onsite facility at Cargill Plant Blair NE
274 8 R-274-03 6001 Atwood Drive Richmond KY
276 8 R-276-02 912 W Cumberland Gap Parkway Corbin KY
279 2 R-279-01 3212 Prairie Valley Road Ardmore OK
280 5 R-280-01 1401 W. Potter Ave Kirksville MO
280 5 R-280-02 3008 Baltimore Street Kirksville MO
281 5 R-281-02 5635 Highway 54 Osage Beach MO
282 5 R-282-01 1226 E. 16th Avenue & 1508 13th Street E. Hibbing MN
283 5 R-283-01 325 S. Kansas Avenue Liberal KS
285 6 R-285-01 230394 Highland Road Scottsbluff NE
288 4 R-288-03 932 S. 13th Street Harrisburg PA
290 6 R-290-02 Airport Boulevard & 22nd Avenue Aurora CO
290 6 R-290-01 11250 East 40th Ave. Denver CO
291 6 R-291-01 1250 Zuni Street Denver CO
292 2 R-292-01 3900 Interstate 40 East Amarillo TX
293 2 R-293-01 317 Southeast Loop 289 Lubbock TX
294 6 R-294-01 201 Juan Tabo NE Albuquerque NM
295 6 R-295-01 9170 Coors NW Albuquerque NM
296 6 R-296-01 2401 Menaul NE Albuquerque NM
297 5 R-297-02 3708 Arch Avenue Grand Island NE
298 5 R-298-01 11615 S. Rogers Road Olathe KS
299 5 R-299-02 1040 Burlington Kansas City MO
300 6 R-300-01 1429 E. Mulberry Fort Collins CO
301 6 R-301-01 481 West 84th Avenue Thornton CO
302 6 R-302-01 13109 N. Highway 85 Littleton CO
303 6 R-303-01 2401 Steel Drive Colorado Springs CO
306 5 R-306-01 5101 East 63rd Street Derby KS
308 4 R-308-01 575 E. Exchange Street Akron OH
311 5 R-311-01 9707 E. Orme Wichita KS
312 5 R-312-02 9127 West Kellogg Drive Wichita KS
314 5 R-314-01 951 SE. Oldham Parkway Lees Summit MO
315 5 R-315-01 754 E. Young Warrensburg MO
315 5 R-315-02 611 Creach Drive (lot lease) Warrensburg MO
48
Schedule 5.8
to Credit Agreement
STORE REGION
# # PROPERTY ID# ADDRESS CITY STATE
----- ------ ------------ ------------------------------------------------------- ----------------- -----
316 5 R-316-02 1606 Commerce Court Columbia MO
317 5 R-317-01 2805 Newman Road Joplin MO
318 2 R-318-01 2900 North Interstate Dr. Norman OK
319 5 R-319-02 3818 South Leonard Road St. Joseph MO
320 5 R-320-01 2340 Fernbrook Lane Plymouth MN
322 5 R-322-01 6740 Hudson Blvd. Oakdale MN
322 5 R-322-02 Hudson Blvd (lot lease) Oakdale MN
323 5 R-323-01 3750 Highway 13 West Burnsville MN
324 5 R-324-01 4201 West First Street Duluth MN
325 5 R-325-02 8616 S. 135th Street LaVista NE
326 5 R-326-01 1821 Cornhusker Hwy. Lincoln NE
326 5 R-326-02 1830 Yolande (lot lease) Lincoln NE
327 8 R-327-01 4117 W. Mount Pleasant West Burlington IA
328 8 R-328-01 2700 S. 17th Street Clinton IA
330 5 R-330-01 3020 Highway 63 North Rochester MN
331 2 R-331-01 810 Strong Highway El Dorado AR
332 2 R-332-01 8104 Northwest Expy. Oklahoma City OK
333 2 R-333-01 708 W. Elgin Street Broken Arrow OK
334 2 R-334-01 324 W. Memorial Rd. Oklahoma City OK
337 2 R-337-01 9222 East 21st Street Tulsa OK
338 2 R-338-01 10601 S. Memorial Dr. Tulsa OK
339 5 R-339-01 4609 Crossroads Ind. Blvd. Bridgeton MO
340 8 R-340-01 2701 South Main Street Bloomington IL
341 5 R-341-01 2050 Southern Expressway Cape Girardeau MO
342 5 R-342-02 3801 Maine Street Quincy IL
343 8 R-343-01 3161 Market Street Green Bay WI
344 8 R-344-01 26 Marsh Court Madison WI
345 8 R-345-01 5605 Mesker Street Schofield WI
346 8 R-346-01 2901 N. Peoria Peru IL
347 8 R-347-01 1845 East Lincoln Hwy. DeKalb IL
348 8 R-348-02 3407 N. Main Street East Peoria IL
350 4 R-350-01 1291 Medina Road Medina OH
352 5 R-352-01 307 North 14th Avenue Dodge City KS
353 7 R-353-01 1948 Cliff Gookin Blvd. Tupelo MS
354 8 R-354-02 22634 South Frontage Road West Channahon IL
355 5 R-355-01 3352 Southway Drive St. Cloud MN
357 8 R-357-02 1600 S. Dirksen Parkway Springfield IL
358 5 R-358-01 390 E. 12th Street Dubuque IA
49
Schedule 5.8
to Credit Agreement
STORE REGION
# # PROPERTY ID# ADDRESS CITY STATE
----- ------ ------------ ------------------------------------------------------- ----------------- -----
359 5 R-359-02 5076 Mid America Court Collinsville IL
361 5 R-361-02 4258 3rd Avenue NW Fargo ND
361 5 R-361-03 3004 Thunder Road South Fargo ND
362 5 R-362-01 3620 North Lewis Avenue Sioux Falls SD
366 5 R-366-03 #48 Industrial Park Drive Hollister MO
367 5 R-367-02 174 Kenworth boulevard Jackson TN
369 5 R-369-02 31st St & Haskell Ave Lawrence KS
370 4 R-370-02 900 Basin Rd New Castle DE
371 4 R-371-02 1209 Marshall Avenue Lancaster PA
372 4 R-372-01 28587 Sussex Highway Laurel DE
374 4 R-374-01 8200 Cryden Way Forestville MD
376 3 R-376-02 392 North Expressway Griffin GA
377 3 R-377-01 16300 U.S. Highway 80 West Statesboro GA
378 8 R-378-01 530 South 4th Street Danville KY
378 8 R-378-02 528 S. 4th Street Danville KY
380 8 R-380-01 6270 N. Dixie Highway Elizabethtown KY
381 8 R-381-01 65 Sulphur Springs Rd. Lebanon KY
382 4 R-382-02 947 Route 22 East Duncansville PA
383 4 R-383-01 3883 Sweeten Creek Road Arden NC
388 8 R-388-02 970 Lovers Lane Bowling Green KY
390 6 R-390-02 115 E. Baseline Road (lot lease) Gilbert AZ
390 6 R-390-01 215 E. Baseline Road Gilbert AZ
391 6 R-391-01 1770 W. Prince Road Tucson AZ
392 6 R-392-01 3461 East Deuce of Clubs Show Low AZ
393 6 R-393-01 2224 NW Grand Avenue Phoenix AZ
394 6 R-394-01 648 East Fry Blvd. Sierra Vista AZ
395 6 R-395-02 1060 E. Highway 70 Safford AZ
396 6 R-396-02 2020 US Highway 60 Globe AZ
397 6 R-397-01 2323 West Hwy. 66 Gallup NM
398 6 R-398-02 181 S. Browning Parkway Farmington NM
399 6 R-399-01 21445 North 27th Ave. Phoenix AZ
400 6 R-400-01 814 N Santa Fe Ave. Pueblo CO
401 6 R-401-01 2251 Downhill Drive Steamboat Springs CO
402 6 R-402-02 6921 East Cave Creek Road Cave Creek AZ
403 6 R-403-02 Lots C-5 & C6 Del Camino Rd. Santa Fe NM
403 6 R-403-01 2707 Cerrillos Santa Fe NM
404 6 R-404-01 125 8th Ave. Greeley CO
405 6 R-405-02 1437 Hwy 70 West Alamogordo NM
50
Schedule 5.8
to Credit Agreement
STORE REGION
# # PROPERTY ID# ADDRESS CITY STATE
----- ------ ------------ ------------------------------------------------------- ----------------- -----
408 6 R-408-01 18810 Longs Way Parker CO
409 6 R-409-01 1045 Chambers Ave. Lot C-11 Eagle CO
410 6 R-410-01 709 West Lincolnway Cheyenne WY
411 6 R-411-01 11039 N. Cave Creek Road Phoenix AZ
412 6 R-412-02 6363 E. 2nd Street Prescott Valley AZ
413 6 R-413-01 1429 North Pinal Avenue Casa Grande AZ
414 6 R-414-01 2372 E. Main Street Montrose CO
415 6 R-415-02 0112 Summit County Road #450 Breckenridge CO
415 6 R-415-01 116 Country Road 450 (lot lease) Breckenridge CO
416 6 R-416-01 249 Adams Avenue Silverthorne CO
418 6 R-418-02 955 Valley St Colorado Springs CO
419 6 R-419-01 900 S. Sunset Road Longmont CO
420 6 R-420-01 650 S. 11th Street Gunnison CO
421 4 R-421-01 1000 Halstead Boulevard Elizabeth City NC
422 5 R-422-01 2120 E. 4th Street North Platte NE
423 5 R-423-01 915 Enoch Lane Manhattan KS
424 5 R-424-02 U.S. Highway 60 / 3525 Park Avenue Peducah KY
426 3 R-426-01 725 S.E. Monterey Road Stuart FL
426 3 R-426-02 705 S.E. Monterey Road Stuart FL
427 4 R-427-01 1090 & 1094 Mantua Pike, Rt 45 Wenonah NJ
429 8 R-429-01 5809 Highway 8 West Rhinelander WI
431 4 R-431-01 2402 Highway 72/221 E. Brickyard Rd. Greenwood SC
432 8 R-432-02 800 Boone Station Rd Johnson City TN
434 8 I S G Indiana Harbor Inc - On-site facility at
LTV Steel East Chicago IN
435 6 R-435-02 3380 St. Rose Parkway Henderson NV
437 6 R-437-01 3685 South Winchester Road Apache Junction AZ
438 7 R-438-01 307 Industrial Park Rd. Starkville MS
438 7 R-438-02 Highway 25 Bypass at Reed Road Starkville MS
439 6 R-439-01 3233 Cy Avenue Casper WY
442 4 R-442-01 9801 Nokesville Road (Showroom) Manassas VA
443 4 R-443-02 4616 Lassen Lane Fredericksburg VA
444 4 R-444-01 1961 S. Loudoun Street Winchester VA
446 4 R-446-01 1308 Horner Road Woodbridge VA
447 4 R-447-01 2413 London Bridge Road Virginia Beach VA
447 4 R-447-02 Lot 28 @ Squadron Court & Taylor Farm Road Virginia Beach VA
448 7 2200 Old Spanish Trail - On-site facility
located at Conoco Westlake LA
51
Schedule 5.8
to Credit Agreement
STORE REGION
# # PROPERTY ID# ADDRESS CITY STATE
----- ------ ------------ ------------------------------------------------------- ----------------- -----
449 4 R-449-01 249 E. Shirley Avenue Warrenton VA
451 3 R-451-02 1026 South Memorial Drive Prattville AL
452 7 Ppg - 1300 Ppg Drive - On-site facility located at PPF Westlake LA
454 4 R-454-03 161 Charles Street Harrisonburg VA
456 1 R-456-01 210 N. Wood Drive Camarillo CA
457 4 R-457-01 1400 Bluff Road Columbia SC
458 4 R-458-02 13710 Booker T. Washington Highway Moneta VA
459 4 R-459-02 181 Oak Carriage Dr. Lewisburg WV
460 4 R-460-01 319 Oakvale Road Princeton WV
462 4 R-462-03 309 North Eisenhower Drive Beckley WV
462 4 R-462-01 309 North Eisenhower Drive Beckley WV
462 4 R-462-02 307 N Eisenhower Dr (Lots 2 & 3) Beckley WV
463 4 R-463-02 315 West Main Street Charlottesville VA
463 4 R-463-03 Meade Street - lease out for signing Charlottesville VA
464 4 R-464-03 2787 Simmons Drive Cloverdale VA
465 4 R-465-01 6710-6720 Everglades Drive Richmond VA
465 4 R-465-02 6725 Atmore Drive - Adjacent lot Richmond VA
466 4 R-466-01 8405 Brook Road Glen Allen VA
466 4 R-466-02 8401 Brook Road Glen Allen VA
472 4 R-472-05 3022 Griffith St Charlotte NC
473 4 R-473-01 105 Swing Road Greensboro NC
474 4 R-474-01 5600 Chapel Hill Road Raleigh NC
475 8 R-475-02 4311 North Mayflower Road South Bend IN
476 4 R-476-01 1000 Woodruff Road Greenville SC
477 4 R-477-01 2841 Azalea Drive Charleston SC
478 4 R-478-02 910 Riverview Road Rock Hill SC
479 4 R-479-01 1020 N. Front Street Wilmington NC
480 4 R-480-02 141 Sweeten Creek Road Asheville NC
482 3 R-482-02 1000 Chatham Parkway North Savannah GA
485 8 R-485-01 1830 Foreman Drive Cookeville TN
486 3 R-486-01 229 Hurricane Shoals Road Lawrenceville GA
487 3 R-487-02 1950 Guffin Lane Marietta GA
489 1 R-489-01 7920 N.E. St. Johns Rd. Vancouver WA
489 1 R-489-02 7920 NE St. Johns Rd - (Lot Lease) Vancouver WA
490 5 R-490-02 4016 Highway Boulevard Spencer IA
493 8 R-493-01 1006 S. Division Avenue Grand Rapids MI
493 8 R-493-02 5135 68th Street SE Grand Rapids MI
494 4 R-494-01 229 Center Street Jacksonville NC
52
Schedule 5.8
to Credit Agreement
STORE REGION
# # PROPERTY ID# ADDRESS CITY STATE
----- ------ ------------ ------------------------------------------------------- ----------------- -----
495 2 R-495-02 32000 SH #249 Pinehurst TX
497 3 R-497-01 1008 Commercial St Brunswick GA
500 1 R-500-01 5800 Armada Drive, #210 Carlsbad CA
501 5 R-501-01 1500 S. Broadway Salina KS
502 6 R-502-01 1450 Coffeen Avenue Sheridan WY
505 1 R-505-02 520 E. LaCadena Drive Riverside CA
506 1 R-506-01 4117 Rosedale Highway Bakersfield CA
508 1 R-508-01 2900 E. Spring Street Long Beach CA
511 1 R-511-02 28377 Felix Valdez Avenue Temecula CA
512 1 R-512-01 220 North Johnson Avenue El Cajon CA
513 1 R-513-01 1000 S. Grand Avenue Santa Ana CA
521 6 R-521-01 5300 E. Railhead Avenue Flagstaff AZ
521 6 R-521-02 Huntington Drive Flagstaff AZ
523 6 R-523-01 2900 Highway #95 Bullhead City AZ
523 6 R-523-02 Silvercreek Road Bullhead City AZ
524 6 R-524-02 1968 Acoma Boulevard Lake Havasu City AZ
527 6 R-527-01 2720 E 16th Street (Hwy 95) Yuma AZ
528 6 R-528-01 2781 W. 2100 South West Valley City UT
550 1 R-550-01 2177 Jerrold Avenue San Francisco CA
552 1 R-552-01 2150 O'Toole Avenue San Jose CA
554 1 R-554-01 4635 Power Inn Road Sacramento CA
555 1 R-555-02 3333 South Highway 99 Stockton CA
556 1 R-556-02 4030 Pacheco Boulevard Martinez CA
557 1 R-557-01 8001 Oakport Street Oakland CA
558 4 R-558-01 1049 S. McCord Road Holland OH
559 1 R-559-01 501 South Main Ellensburg WA
560 1 R-560-01 1210 W. Broadway Moses Lake WA
561 1 R-561-01 2302 East "Q" Street Tacoma WA
562 1 R-562-02 2810 Highland Avenue Everett WA
563 1 R-563-01 9045 Willows Road Redmond WA
565 1 R-565-01 5421 1st Avenue South Seattle WA
565 1 R-565-03 S. Dawson St. (lot lease) Seattle WA
566 1 R-566-01 1301 East College Way Mt Vernon WA
569 1 R-569-02 1385 SE Amber Road Clackamus OR
570 1 R-570-01 61530 S. Highway 97 Bend OR
572 1 R-572-01 2333 S. Hwy 97 Redmond OR
573 1 R-573-01 2661 N.W. Stephens Street Roseburg OR
575 1 R-575-01 915 E. Elm Avenue Hermiston OR
53
Schedule 5.8
to Credit Agreement
STORE REGION
# # PROPERTY ID# ADDRESS CITY STATE
----- ------ ------------ ------------------------------------------------------- ----------------- -----
578 1 R-578-01 1819 Highway 101 South Coos Bay OR
579 1 R-579-01 3344 Washburn Way Klamath Falls OR
581 1 R-581-01 2100 Hwy 99N Eugene OR
583 1 R-583-01 3092 Silverton Road Salem OR
601 9 R-601-03 705 Laval Crescent Kamloops BC
602 9 R-602-01 2230-9th Avenue Medicine Hat AB
604 9 R-604-01 1405 33 Street N. Lethbridge AB
605 9 R-605-01 5114 62nd Street Lloydminster AB
605 9 R-605-02 6205 51st Avenue (lot lease) Lloydminster AB
608 9 R-608-01 1905 Merivale Rd. Nepean ON
609 9 R-609-02 47 Cardico Drive, Unit 2 Gormley ON
613 3 R-613-01 3110 Winter Lake Road Lakeland FL
614 3 R-614-01 3635 Hwy. 98 N. Lakeland FL
616 3 R-616-01 5907 E. Adamo Drive Tampa FL
617 3 R-617-01 1835 N. Washington Blvd.(Hwy301) Sarasota FL
618 3 R-618-02 907 East Canal Street Mulberry FL
620 4 R-620-02 200 S. LaSalle Street Durham NC
622 3 R-622-02 4201 L.B. McLeod Orlando FL
623 3 R-623-02 10230 Logan Cline Drive Gulfport MS
624 9 R-624-01 850 High St Moose Jaw SK
627 4 R-627-01 723 Hwy. 29 North Concord NC
629 4 R-629-01 602 Copeland Drive Hampton VA
630 3 R-630-01 2613 Orlando Drive Sanford FL
631 4 R-631-01 6133 Murchison Road Fayetteville NC
631 4 R-631-02 4301 Murchison Road Fayetteville NC
633 4 R-633-01 342 & 344 Plaza Drive, Hwy 150 Mooresville NC
633 4 R-633-02 505 East Plaza Drive Mooresville NC
635 9 R-635-01 1375 Vernon Drive Vancouver BC
641 3 R-641-02 100 Weber Ave & Hwy 44 Leesburg FL
642 3 R-642-02 2850 W. State Road 520 Cocoa FL
644 3 R-644-01 355 5th Street SW Winter Haven FL
650 2 R-650-01 12997 North Freeway Ft Worth TX
651 2 R-651-01 300 Lynbrook Boulevard Shreveport LA
653 2 R-653-01 737 East Main Lewisville TX
654 2 R-654-03 2728 Westmoreland Dallas TX
655 2 R-655-01 6931 Woodway Drive - bldg #3 Waco TX
656 7 R-656-02 58020 Industrial Boulevard Plaquemine LA
657 7 R-657-02 2235 Highway 70 Donaldsonville LA
54
Schedule 5.8
to Credit Agreement
STORE REGION
# # PROPERTY ID# ADDRESS CITY STATE
----- ------ ------------ ------------------------------------------------------- ----------------- -----
659 2 R-659-01 1766 S. Treadaway Abilene TX
660 2 R-660-03 3301 North Garnett Road Tulsa OK
662 2 R-662-02 2420 Lee Boulevard Lawton OK
664 2 R-664-02 3595 FM 1960 West Humble TX
666 7 R-666-03 6952 & 6958 Airline Highway Baton Rouge LA
668 7 R-668-01 1444 W. Bank Expressway Westwego LA
668 7 R-668-02 1446 W. Bank Expressway Westwego LA
669 2 R-669-02 2809 West Kinglsey Road Garland TX
670 6 R-670-01 6914 Gateway East El Paso TX
672 7 R-672-01 11580 Chef Menteur Highway New Orleans LA
673 2 R-673-01 320 North Highway 67 Midlothian TX
676 2 R-676-01 3101 South Prospect Oklahoma City OK
677 2 R-677-01 10300 I.H. 35 North Austin TX
681 2 R-681-02 East Ben 4811a /k/Chapman Lane a 3536 White Austin TX
682 4 R-682-01 3560 Young Place Lynchburg VA
683 4 R-683-01 944 Manifold Rd Washington PA
684 1 R-684-01 19091 Hwy #33 - On-Site Trailer at AERA Energy McKittrick CA
686 1 R-686-01 421 S. Wenatchee Blvd. Wenatchee WA
687 1 R-687-02 5414 South Peach Avenue Fresno CA
688 5 R-688-01 c/o Shell Oil-Purchasing Warehouse, Rt. 111 - On-site Roxana IL
facility at Shell Oil
689 2 R-689-02 1533 N. McDonald McKinney TX
691 2 R-691-01 5120 Wurzbach Road San Antonio TX
692 2 R-692-03 5333 E. Houston San Antonio TX
692 2 R-692-02 5333 E. Houston (lot lease) San Antonio TX
694 3 R-694-03 4226 Halls Mill Road Mobile AL
694 3 R-694-02 4226 Halls Mill Road - Small yard and shed adjacent
to store Mobile AL
697 7 1008 E. Ashley Wilson Road - On-site facility at Sweeny Sweeny TX
703 3 R-703-02 7907 Baseline Court Tampa FL
704 3 R-704-02 327 Thorpe Road Orlando FL
706 3 R-706-02 5260 Truman Drive Decatur GA
707 3 R-707-01 4111 Pinson Valley Parkway Birmingham AL
708 8 R-708-01 4300 Muhlhauser Road Fairfield OH
709 2 R-709-03 2201 Tin Top Road, #400 Weatherford TX
710 8 3210 Watling Street - On-site facility - East Chicago IN
712 1 R-712-02 8450 Haddon Avenue Sun Valley CA
55
Schedule 5.8
to Credit Agreement
STORE REGION
# # PROPERTY ID# ADDRESS CITY STATE
----- ------ ------------ ------------------------------------------------------- ----------------- -----
713 5 R-713-01 1790 Radisson Road NE Blaine MN
714 2 1000 South Pine - On-site facility at Conoco Ponca City OK
716 7 R-716-03 913 Chippewa Street Baton Rouge LA
717 9 R-717-01 396 McGregor Road, Unit A Sarnia ON
721 2 R-721-02 11003 Bissonnet Houston TX
721 2 R-721-03 2735 FM 2218 Rosenberg TX
724 9 275 Macalpine Crescent - On-site facility. Ft. McMurray AB
726 2 R-726-02 2510 S. Main Street Stafford TX
727 2 R-727-02 12245 Veterans Memorial Pkwy Houston TX
727 2 R-727-03 Sprayberry Lane Conroe TX
730 8 R-730-01 3485 Roger E. Schupp Street Louisville KY
731 8 R-731-02 4828 Constellation Avenue Evansville IN
733 8 R-733-04 3660 Interchange Road Columbus OH
734 8 R-734-02 1677 Jaggie Fox Way Lexington KY
735 8 R-735-02 5773 Executive Boulevard Huber Heights OH
736 8 R-736-02 3805 S. Harding Street Indianapolis IN
739 8 R-739-02 1255 Bridgestone Parkway LaVergne TN
740 4 R-740-01 10840 Metromont Parkway Charlotte NC
741 4 R-741-01 4320 New Bern Avenue Raleigh NC
744 4 R-744-01 3501 Business Center Drive Chesapeake VA
747 5 R-747-01 1326 S. Bishop Avenue Rolla MO
749 2 R-749-01 3925 N. Cage Boulevard Pharr TX
750 2 R-750-01 1200 West Business 77 San Benito TX
751 2 R-751-02 15210 FM 529 at Highway 6 Houston TX
752 7 R-752-02 4225 College Street Beaumont TX
754 2 R-754-02 17700 Highway 3 Webster TX
755 2 R-755-02 4900 E. Loop 820 South Ft. Worth TX
756 2 R-756-03 2727 Avenue K Plano TX
757 2 R-757-02 20202 Park Row Katy TX
759 7 R-759-01 824 S. Hwy 35 Bypass Port Lavaca TX
770 2 R-770-02 8200 East Freeway Houston TX
800 7 R-800-01 2500 W. Airline Highway LaPlace LA
804 7 R-991-02 8122 E. Paradise - Storage facility for Scottsdale
corporate Scottsdale AZ
804 7 R-804-02 2011 Highway 288 Freeport TX
804 7 R-804-03 2011 Highway 288 Freeport TX
808 7 R-808-02 1635 Industrial PK Drive Nederland TX
815 7 R-815-02 4002 Texas Avenue Texas City TX
56
Schedule 5.8
to Credit Agreement
STORE REGION
# # PROPERTY ID# ADDRESS CITY STATE
----- ------ ------------ ------------------------------------------------------- ----------------- -----
822 8 R-822-01 5121 Maryland Way Brentwood TN
824 7 R-824-01 Highway 225 - Gate 19 - On-site facility at Shell Deer Park TX
825 7 R-825-03 8807 & 8787 Highway 225 LaPorte TX
828 7 R-828-01 Hwy. 61 - Gate 44 - On-site facility at Shell Norco LA
829 7 R-829-01 602 Copper Road - On-site facility at BASF Freeport TX
832 7 R-832-01 Bufford St. Gate - On-site facility at Mobile Beaumont TX
834 7 R-834-01 P.O. Box 651 - On-site facility at Rohm & Haas Deer Park TX
836 7 R-836-01 8404 River Road - On-site - No Lease Agreement Geismar LA
973 4 R-973-00 500-C Clanton Rd Charlotte NC
976 5 R-976-01 3200 Harvor Lane Plymouth MN
981 2 R-981-04 16225 Park Ten Place - 200 Houston TX
981 2 R-981-10 16225 Park Ten Place-110 Houston TX
983 2 R-983-02 20150 Park Row, Unit #186 - Storage facility for
corporate office Katy TX
TBD 1 TBD W. Clearwater Avenue Kennewick WA
TBD 4 TBD 43461 Old Ox Road Sterling VA
TBD 1 TBD Cabazon Avenue Indio CA
386 4 TBD 100 Liberty Lane Chalfont PA
TBD 9 TBD 5888 Shawson Drive - lease out for signature Mississauga ON
TBD 7 TBD 6311 Harborside Drive - lease out for signature Galveston TX
57
Schedule 5.9
to Credit Agreement
Schedule 5.9: Intellectual Property Claims
A. Certain agreements with third parties require the consent of the other
party to a change of ownership. In addition, unless RSC obtains a waiver,
its development license agreement with Wynne Systems, Inc. to implement
proprietary changes to our enterprise resource management software system
can be terminated on six month's notice as a result of the change in
ownership. If RSC fails to obtain any required consent or waiver, the
applicable third parties, including Wynne Systems, Inc. could seek to
terminate their agreements with RSC, and, as a result, RSC's ability to
conduct its business could be impaired until RSC is able to enter into
replacement agreements, which could result in a Material Adverse Effect on
RSC's results of operations or financial condition; provided, for the
avoidance of doubt, that as of the Closing Date RSC believes no claim
arising from failure to obtain such a consent or waiver from Wynn Systems,
Inc. (i) has been filed or (ii) would result in a Material Adverse Effect.
58
Schedule 5.16
to Credit Agreement
Schedule 5.16: Subsidiaries
SUBSIDIARY'S #OF TOTAL
JURISDICTION DIRECT EQUITY SHARES SHARES OWNERSHIP PLEDGED
SUBSIDIARY OF FORMATION HOLDER OWNED OUTSTANDING INTEREST (Y/N)
---------- ------------ --------------------- ------ ----------- --------- -------
RSC Holdings III, LLC Delaware RSC Holdings II, LLC N/A N/A 100% Y
Rental Service Corporation Arizona RSC Holdings III, LLC 1000 1000 100% Y
Rental Service Alberta, Rental Service 1100 1100 100% Y.
Corporation of Canada Canada Corporation
Ltd.
59
Schedule 5.18
to Credit Agreement
Schedule 5.18: Environmental Matters
1. Long Beach, California: possible release from underground storage tank.
2. Los Angeles, California: possible release from underground storage tank.
3. 1113 Sheppard Access Road, Wichita Falls, Texas:
Hydrocarbon impact resulted from an underground storage tank and previous
petroleum refining activities on site. The site has extensive near surface
tar contamination from former refining activities. There is also evidence
of a petroleum release from the tanks but the petroleum products have
commingled.
The RSC property in Wichita Falls, Texas became affected from historical
oil refinery releases from possibly as early as 1921. The RSC property is a
small parcel of a former refinery property that operated from 1921 until
1928. The property contains two formerly separate tracks of property. Track
1 contains the western portion of the property and is 2.79 acres, and Track
2 contains the eastern portion of the property and is 1.33 acres. Other
oilfield service operations were listed as owners of tracts of the property
up until 1961. The release was first observed by on-site personnel in 1989.
Various assessments of the property have been conducted at the site from
1989 to present, indicating impacts to surface soil, subsurface soil and
groundwater. Surface soil, subsurface soil, and groundwater may be affected
beyond the subject property boundary. The COCs suspected to be present on
the adjacent properties did not result from activity at RSC property;
rather they appear to be present due to the historic refinery operations
and subsequent operations on the adjacent properties. Groundwater is
present under confined conditions at a depth of approximately 10-15 feet
below ground surface. Other than manual recovery of Light Non-Aqueous Phase
Liquid (LNAPL) present in monitor xxxxx, no response action has taken place
to date.
Concentrations of metals, volatile organic compounds (VOCs), polycyclic
aromatic hydrocarbons (PAHs), and total petroleum hydrocarbons (TPH) are
present in surface soil and subsurface soil above Protective Concentrations
Levels (PCLs) established by the Texas Risk Reduction Program (TRRP).
Concentrations of metals, VOCs, and PAHs are present in groundwater above
PCLs. The PCL Exceedance zones for each media generally cover the entire
site. A remedy is required for surface soil and groundwater. Black vitreous
material and/or black staining is present in surface soil generally from 0
to 2 feet bgs across the site. PAH concentrations are above direct contact
(TotSoilComb) PCLs in surface soils. LNAPL is present in pore spaces in
subsurface soil. All monitor xxxxx at the site contain COCs above PCLs
60
Schedule 5.18
to Credit Agreement
To address the surface soil impact, the detailed estimate includes removal
of PAH-affected soil. RSC is also examining a capping or paving alternative
to isolate these impacted soils from direct contact. The site is being
addressed under the Texas Commission on Environmental Quality's (TCEQ's)
Corrective Action Section. RSC negotiated appropriate investigation and
response actions with TCEQ. This included a series of groundwater xxxxx
located on the edge of the property, a well down gradient and a well up
gradient. The groundwater xxxxx were installed indicating no up gradient
source of groundwater contamination and no migration of the plume down
gradient as well. In response to TCEQ, RSC is currently seeking further
access to additional offsite locations to complete the site investigation.
RSC is also investigating alternative solutions for addressing the
potential contamination including:
a. Seeking reclassification the property under U.S. EPA Xxxxxxxxxx
Program;
b. Requesting deed restrictions from TECQ to limit possible future
use to non-residential light industrial/industrial only
classification;
c. Identifying other PRP's that may be enjoined to assist in any
required remediation.
61
Schedule 5.24
to Credit Agreement
Schedule 5.24: Insurance
LINE OF COVERAGE POLICY NUMBER CARRIER EFFECTIVE DATE LIMITS DEDUCTIBLE
---------------- --------------------- -------------- ----------------- ------------------------ -------------------------
Boiler and Machinery BM-21-7615A059-TIL-06 Travelers 6/1/2006-6/1/2007 $50,000,000 pd/bi BHMT $ 5,000
Property & Drilling Solutions
$25,000,000 pd/bi RSC
$100,000,000 pd-all
others,
$100,000 bi - all others
Workers Compensation WC7-631-004250-036 Liberty Mutual 5/1/2006-5/1/2007 Statutory & $1,000,000/ $ 500,000
& Employers Liability $1,000,000/$1,000,000
Workers Compensation ELl-631-004250-266 Liberty Mutual 5/1/2006-5/1/2007 Statutory & $1,000,000/ $ 500,000
& Employers Liability $1,000,000/ $1,000,000
Workers Compensation XX0-00X-000000-000 Xxxxxxx Mutual 5/1/2006-5/1/2007 Statutory & $1,000,000/ $ 500,000
& Employers Liability $1,000,000/$1,000,000
Automobile Liability AS2-631-004250-026 Liberty Mutual 5/1/2006-5/1/2007 $2,000,000 $1,500,000 (per accident)
Workers Compensation XX0-00X-000000-000 Xxxxxxx Mutual 5/1/2006-5/1/2007 Statutory & $1,000,000/ $ 500,000
& Employers Liability RSC is the Insured $1,000,000/ $1,000,000
Automobile Liability AS2-631-004250-166 Liberty Mutual 5/1/2006-5/1/2007 $2,000,000 $1,500,000 (per accident)
RSC is the Insured
Workers Compensation WC7-631-004250-196 Liberty Mutual 5/1/2006-5/1/2007 Statutory & $1,000,000/ $ 500,000
& Employers Liability $1,000,000/ $1,000,000
Property YU2-631-004250-115 Liberty Mutual 6/1/2005-6/1/2006 $125,000,000 $ 13,705
Boiler & Machinery BM-21-7615A059-TIL-05 Travelers 6/1/2005-6/1/2006 $50,000,000 pd/bi BHMT $ 5,000
& Drilling Solutions
$25,000,000 pd/bi
RSC $100,000,000
pd-all others,
$100,000 bi - all others
Automobile Liability AS2-631-004250-025 Liberty Mutual 5/1/2005-5/1/2006 $2,000,000 $1,500,000
Workers Compensation WC7-631-004250-195 Liberty Mutual 5/1/2005-5/1/2006 Statutory & $1,000,000/ $ 500,000
& Employers Liability $1,000,000/$1,000,000
Workers Compensation WA7-63D-004250-185 Liberty Mutual 5/1/2005-5/1/2006 Statutory & $1,000,000/ $ 500,000
& Employers Liability $1,000,000/ $1,000,000
Workers Compensation XX0-00X-000000-000 Xxxxxxx Mutual 5/1/2005-5/1/2006 Statutory & $1,000,000/ $ 500,000
& Employers Liability $1,000,000/ $1,000,000
62
Schedule 5.24
to Credit Agreement
LINE OF COVERAGE POLICY NUMBER CARRIER EFFECTIVE DATE LIMITS DEDUCTIBLE
---------------- --------------------- -------------- ----------------- ------------------------ -------------------------
Workers Compensation WC7-631-004250-035 Liberty Mutual 5/1/2005-5/1/2006 Statutory & $1,000,000/ $ 500,000
& Employers Liability $1,000,000/ $1,000,000
Automobile Liability AS2-631-004250-165 Liberty Mutual 5/1/2005-5/1/2006 $2,000,000 $1,500,000
Property MCC-631-004250-114 Employers Ins. 5/1/2004-5/1/2005 $125,000,000 $ 13,705
Co. of Wausau
Boiler & Machinery BM-21-7615A059-TIL-04 Travelers 5/1/2004-5/1/2005 $100,000,000 pd/bi METCO $ 10,000
$25,000,000 pd/bi RSC
$50,000,000 pd/bi BHMT &
DS $100,000,000 pd - all
others,
$100,000 bi - all others
Automobile Liability AS2-631-004250-164 Liberty Mutual 5/1/2004-5/1/2005 $5,000,000 $1,500,000
Workers Compensation XX0-00X-000000-000 Xxxxxxx Mutual 5/1/2004-5/1/2005 Statutory & $1,000,000/ $ 500,000
& Employers Liability $1,000,000/$1,000,000
Workers Compensation WA7-63D-004250-184 Liberty Mutual 5/1/2004-5/1/2005 Statutory & $1,000,000/ $ 500,000
& Employers Liability $1,000,000/ $1,000,000
Automobile Liability AS2-631-004250-024 Liberty Mutual 5/1/2004-5/1/2005 $2,000,000 $1,500,000
Mexican Automobile THA14145 Seguros 5/1/2004-5/1/2005 $25,000/$10,000/ $10,000 Coll. 2% or min $200;
Comercial comp -4% or min $400
America
Boiler & Machinery BM-21-7615A053-TIL-03 The Travelers 6/1/2003-6/1/2004 $100,000,000 pd/bi METCO $ 10,000
Indemnity $25,000,000 pd/bi CoofIL
RSC
$50,000,000 pd/bi BHMT
& DS
$100,000,000 pd-all
others,
Property MCC-631-004250-113 Employers Ins. 6/1/2003-6/1/2004 $125,000,000 $ 12,500
Co. of Wausau
General Liability EB1-631-004250-213 Liberty Mutual 5/1/2003-5/1/2004 $1,000,000 per occ. $1,000,000
$2,000,000 agg
$1,000,000 SIR
Workers Compensation WC2-631-004250-163 Liberty Mutual 5/1/2003-5/1/2004 Statutory & $1,000,000/ $ 500,000
& Employer's $1,000,000/ $1,000,000
Liability
Automobile Liability AS2-631-004250-163 Liberty Mutual 5/1/2003-5/1/2004 $5,000,000 $2,000,000
Excess Liability QI09000657 St. Xxxx 5/1/2003-5/1/2004 $25,000,000 per occ. Excess of $75 million
$25,000,000 agg
Automobile Liability AS2-631-00250-173 Liberty Mutual 5/1/2003-5/1/2004 $5,000,000 $2,000,000
63
Schedule 5.24
to Credit Agreement
LINE OF COVERAGE POLICY NUMBER CARRIER EFFECTIVE DATE LIMITS DEDUCTIBLE
---------------- --------------------- -------------- ----------------- ------------------------ -------------------------
Excess Liability XCP G21741838 ACE American 5/1/2003-5/1/2004 $25,000,000 per occ. Excess of $50 million
$25,000,000 agg
Excess Liability AEC 9373737 00 American 5/1/2003-5/1/2004 $25,000,000 per occ. Excess of $25 milion
Guarantee & $25,000,000 agg
Liability
Automobile Liability AS2-631-004250-093 Liberty Mutual 5/1/2003-5/1/2004 $2,000,000 $2,000,000
Workers Compensation XX0-00X-000000-000 Xxxxxxx Mutual 5/1/2003-5/1/2004 Statutory & $1,000,000/ $ 500,000
& Employer's $1,000,000/ $1,000,000
Liability
Workers Compensation WC2-631-004250-033 Liberty Mutual 5/1/2003-5/1/2004 Statutory & $1,000,000/ $ 500,000
& Employer's $1,000,000/ $1,000,000
Liability
Automobile Liability AS2-631-004250-023 Liberty Mutual 5/1/2003-5/1/2004 $2,000,000 $2,000,000
Workers Compensation XX0-00X-000000-000 Xxxxxxx Mutual 5/1/2003-5/1/2004 Statutory & $1,000,000/ $ 500,000
& Employer's $1,000,000/ $1,000,000
Liability
Mexican Auto THA06494 Seguros 5/1/2003-5/1/2004 $25,000/$80,000/ $10,000 Coll. 2% or min $200;
Comercial comp-4% or min $400
America
Commercial Umbrella BE2860190 National Union 5/1/2003-5/1/2004 $25,000,000 per occ. $ 10,000
Fire Ins. Co $25,000,000 agg
Workers Compensation XX0-00X-000000-000 Xxxxxxx Mutual 5/1/2002-5/1/2003 Statutory & $1,000,000/ $ 50,000
& Employer's $1,000,000/ $1,000,000
Liability
Workers Compensation WC2-631-004250-032 Liberty Mutual 5/1/2002-5/1/2003 Statutory & $1,000,000/ $ 50,000
& Employer's $1,000,000/ $1,000,000
Liability
Automobile Liability AS2-631-004250-092 Liberty Mutual 5/1/2002-5/1/2003 $1,000,000 $ 150,000
Automobile Liability AS2-631-004250-022 Liberty Mutual 5/1/2002-5/1/2003 $1,000,000 $ 150,000
Workers Compensation WC2-631-004250-032 Liberty 5/1/2001-5/1/2002 Statutory & $1,000,000/ $ 50,000
& Employer's $1,000,000/ $1,000,000
Liability
Workers Compensation WC2-631-004250-031 Liberty Mutual 5/1/2001-5/1/2002 Statutory & $1,000,000/ $ 50,000
& Employer's $1,000,000/ $1,000,000
Liability
Automobile Liability AS2-631-004250-091 Liberty Mutual 5/1/2001-5/1/2002 $1,000,000 $ 150,000
Automobile Liability AS2-631-004250-021 Liberty Mutual 5/1/2001-5/1/2002 $1,000,000 $ 150,000
64
Schedule 5.24
to Credit Agreement
1ST NAMED INSURANCE
POLICY # INSURED EXPIRATION PROGRAM CARRIER LIMITS DEDUCTIBLE
-------- --------------------- ---------- --------- ------------------------------- -------------- ----------
GL5908357RA Acme Holdings Inc. 7/1/1996 RSC NATIONAL UNION FIRE INS CO OF $2Mxs $50K XXX X/X
XXXXXXXXXX
XXX00000000 (XX) Rental Services Corp. 10/5/1993 RSC VALIANT INSURANCE COMPANY N/A N/A
602NB1278 (NP) Rental Services Corp. 10/5/1993 RSC ST. XXXX FIRE & MARINE INS CO N/A N/A
502XA2633 (NP) Rental Services Corp. 10/5/1993 RSC ST. XXXX FIRE & MARINE INS CO N/A N/A
CK05502119 (NP) Rental Services Corp. 12/2/1993 RSC ST. XXXX FIRE & MARINE INS CO N/A N/A
CK05502301 (NP) Rental Services Corp. 2/1/1994 RSC ST. XXXX FIRE & MARINE INS CO N/A N/A
CK05502787 (NP) Rental Services Corp. 10/5/1994 RSC ST. XXXX FIRE & MARINE INS CO N/A N/A
CK05503020 (NP) Rental Services Corp. 6/1/1994 RSC ST. XXXX INSURANCE COMPANY, THE N/A N/A
CK05503706 (NP) Rental Services Corp. 6/1/1995 RSC ST. XXXX INSURANCE COMPANY, THE N/A N/A
86XN25150909 (NP) Rental Services Corp. 7/1/1997 RSC TRAVELERS INSURANCE CO N/A N/A
BE932-46-12 (NP) Rental Services Corp. 7/1/1997 RSC NATIONAL UNION FIRE INS CO OF N/A N/A
PITTSBURGH
GL590-83-85 (NP) Rental Services Corp. 7/1/1997 RSC NATIONAL UNION FIRE INS CO OF N/A N/A
PITTSBURGH
BE932-82-33 (NP) Rental Services Corp. 1/31/1998 RSC NATIONAL UNION FIRE INS CO OF N/A N/A
XXXXXXXXXX
0XXXXX000X000 (NP) Rental Services Corp. 11/31/1998 RSC TRAVELERS INSURANCE CO N/A N/A
7976-41-68 (NP) Rental Services Corp. 1/31/1998 RSC CHUBB GROUP X/X X/X
XX0000000XX Rental Services Corp. 11/31/1998 RSC NATIONAL UNION FIRE INS CO OF $2Mxs $50K SIR N/A
XXXXXXXXXX
00
Schedule 5.24
to Credit Agreement
1ST NAMED INSURANCE
POLICY # INSURED EXPIRATION PROGRAM CARRIER LIMITS DEDUCTIBLE
-------- --------------------- ---------- --------- ------------------------------- -------------- ----------
BE3572687 Rental Services Corp. 2/11/999 RSC NATIONAL UNION FIRE INS CO OF $25M xs $2Mxs N/A
PITTSBURGH $50K SIR
XX0000000 Rental Services Corp. 2/1/1999 RSC GULF INSURANCE CO $25M xs $25M N/A
xs primary
79719400CAS Rental Services Corp. 2/1/1999 RSC CHUBB GROUP $50M xs $50M N/A
xs primary
GL1466048RA Rental Services Corp. 2/1/1999 RSC NATIONAL UNION FIRE INS CO OF $2Mxs $50K SIR N/A
XXXXXXXXXX
XXXXX 0000000 (XX) Rental Services Corp. 2/1/1999 RSC NATIONAL UNION FIRE INS CO OF N/A N/A
XXXXXXXXXX
XXXXX0000000 (XX) Rental Services Corp. 2/1/2000 RSC AMERICAN HOME ASSURANCE CO N/A N/A
BE3577613 Rental Services Corp, 2/1/2000 RSC NATIONAL UNION FIRE INS CO OF $50M xs $2Mxs N/A
PITTSBURGH $150K SIR
79719400 (NP) Rental Services Corp. 2/1/2000 RSC CHUBB GROUP N/A N/A
990501-0030 (NP) Rental Services Corp. 5/1/2000 RSC Industria Insurance Company N/A N/A
Ltd.
990501-0030 (NP) Rental Services Corp. 5/1/2001 RSC Industria Insurance Company N/A N/A
Ltd.
PLS2671978 (NP) Rental Services Corp. 8/1/2001 RSC AMERICAN INTERNATIONAL N/A N/A
SPECIALTY LINES INS CO
990501-0030 (NP) Rental Services Corp. 5/1/2002 RSC Industria Insurance Company N/A N/A
Ltd.
PLS267178 (NP) Rental Services Corp. 12/1/2001 RSC AMERICAN INTERNATIONAL N/A N/A
SPECIALTY LINES INS CO
990501-0031 (NP) Rental Services Corp. 5/1/2003 RSC Industria Insurance Company N/A N/A
Ltd.
KE1631004250223 (NP) Rental Services Corp. 5/1/2004 RSC LIBERTY MUTUAL INSURANCE CO N/A N/A
EBI-631-004250-213 Rental Services Corp. 5/1/2004 RSC LIBERTY MUTUAL INSURANCE CO N/A N/A
(NP)
66
Schedule 5.24
to Credit Agreement
1ST NAMED INSURANCE
POLICY # INSURED EXPIRATION PROGRAM CARRIER LIMITS DEDUCTIBLE
-------- --------------------- ---------- --------- ------------------------------- -------------- ----------
BE2860190 (NP) Rental Services Corp. 5/1/2004 RSC NATIONAL UNION FIRE INS CO OF N/A N/A
XXXXXXXXXX
XXXX0000000-00 (XX) Rental Services Corp. 5/1/2004 RSC ZURICH AMERICAN INS. CO. N/A N/A
5376693 (NP) Rental Services Corp. 5/1/2004 RSC STARR EXCESS LIABILITY INS N/A N/A
INTERNATIONAL LTD
01090000657 (NP) Rental Services Corp. 5/1/2004 RSC ST. XXXX INSURANCE COMPANY, THE N/A N/A
XCPG21741838 (NP) Rental Services Corp. 5/1/2004 RSC ACE AMERICAN INSURANCE CO. N/A N/A
01744ACE (NP) Rental Services Corp. 5/1/2004 RSC ACE BERMUDA INSURANCE LTD N/A N/A
STPBPD145SEU03 (NP) Rental Services Corp, 5/1/2004 RSC ST. XXXX (BERMUDA) LTD N/A N/A
HIP0200228 (NP) Rental Services Corp. 5/1/2004 RSC Hanseatic Insurance Company N/A N/A
RG2-631-004250-203 Rental Services Corp. 5/1/2004 RSC LIBERTY MUTUAL XXXXXXXXX XX X/X X/X
(XX)
XXXX0000000-00 (XX) Rental Services Corp. 5/1/2005 RSC ZURICH AMERICAN INS. CO. N/A N/A
XCPG21741838 (NP) Rental Services Corp. 5/1/2005 RSC ACE EUROPEAN MARKETS INS LTD X/X X/X
XX0000000XX Rental Services Corp. 2/1/2000 RSC NATIONAL UNION FIRE INS CO OF $2Mxs $150K N/A
XXXXXXXXXX XXX
XXX00000000 (XX) Xxxxxx Xxxxx Equipme 811711992 RSC VALIANT INSURANCE COMPANY $2 mm aggl$lmm N/A
"each event
(per
occurrence)
limit"
Assumed
CK05501992 Xxxxxx Xxxxx Equipme 10/5/1993 RSC ST. XXXX FIRE & MARINE INS CO $2mm aggl$1mm N/A
"each event
(per
occurrence)
limit"
67
Schedule 6.1(e)
to Credit Agreement
Schedule 6.1(e): Closing Date Adjustments to EBITDA
None.
68
Schedule 6.1(g)
to Credit Agreement
Schedule 6.1(g): Lien Searches
I. List of all UCC and other filed security interests in the assets of Rental
Service Corporation:
REPORT/ INDEX DATE UCC DATE FILED/
DEBTOR LOCATION UCC - SECURED PARTY FILE NUMBER UCC COLLATERAL
------ ------------------ ------------------------ --------------- -----------------------------------------------------
Rental Service 10/23/2006 - AZ Fleet Leasing 11/20/2000 - Specified equipment. (Lease number 14-1597102-000)
Corporation Secretary of State Corporation 01146941
Rental Service 10/23/2006 - AZ Citicorp Del Lease, Inc. 11/20/2000 - All of Debtor's/Seller's right, title and
Corporation Secretary of State 01147412 interest in, to and under each Retail Agreement
sold from time to time to Secured Party/Buyer
CONTINUATION: and all income and proceeds thereof and all
06/02/2006 - property of whatever kind or nature which
01147412 secures such Retail Agreement and all interests
of Debtor/Seller therein.
Rental Service 10/23/2006 - AZ Fleet Capital Leasing 01/19/2001 - Specified equipment. (Lease number 14 - 1594059-000)
Corporation Secretary of State - Technology Finance 01157170
Rental Service 10/23/2006 - AZ Fleet Capital Leasing 01/19/2001 - Specified equipment. (Lease number 14 - 1594059-000)
Corporation Secretary of State - Technology Finance 01157171
Rental Service 10/23/2006 - AZ Textron Financial 02/16/2001 - Specified equipment, all rental proceeds,
Corporation Secretary of State Corporation 01160126 therefrom and all attachments, accessories and
replacements thereto, and all proceeds of the
foregoing.
69
Schedule 6.1(g)
to Credit Agreement
REPORT/ INDEX DATE UCC DATE FILED/
DEBTOR LOCATION UCC - SECURED PARTY FILE NUMBER UCC COLLATERAL
------ ------------------ ------------------------ --------------- -----------------------------------------------------
This Statement is filed in connection with a lease
and is filed for precautionary purposes only.
Rental Service 10/23/2006 - AZ Textron Financial 02/16/2001 - Specified equipment, all rental proceeds,
Corporation Secretary of State Corporation 01160127 therefrom and all attachments, accessories and
replacements thereto, and all proceeds of the
foregoing.
This Statement is filed in connection with a lease
and is filed for precautionary purposes only.
Rental Service 10/23/2006 - AZ Textron Financial 02/16/2001 - Specified equipment, all rental proceeds,
Corporation Secretary of State Corporation 01160128 therefrom and all attachments, accessories and
replacements thereto, and all proceeds of the
foregoing.
This Statement is filed in connection with a lease
and is filed for precautionary purposes only.
Rental Service 10/23/2006 - AZ IBM Credit 03/01/2001 - All computer, information processing, and other
Corporation Secretary of State Corporation 01162516 peripheral equipment and goods wherever located
(including additions, accessions, upgrades, and
TERMINATED: replacements)
70
Schedule 6.1(g)
to Credit Agreement
REPORT/ INDEX DATE UCC DATE FILED/
DEBTOR LOCATION UCC - SECURED PARTY FILE NUMBER UCC COLLATERAL
------ ------------------ ------------------------ --------------- -----------------------------------------------------
10/10/2006 - referenced on IBM Supplement #907540 dated
01162516 12/18/2000.
Rental Service 10/23/2006 - AZ Textron Financial 03/05/2001 - Specified equipment, all rental proceeds,
Corporation Secretary of State Corporation 01163624 therefrom and all attachments, accessories and
replacements thereto, and all proceeds of the
foregoing.
This Statement is filed in connection with a lease
and is filed for precautionary purposes only.
Rental Service 10/23/2006 - AZ Textron Financial 03/05/2001 - Specified equipment, all rental proceeds,
Corporation Secretary of State Corporation 01163625 therefrom and all attachments, accessories and
replacements thereto, and all proceeds of the
foregoing.
This Statement is filed in connection with a lease
and is filed for precautionary purposes only.
Rental Service 10/23/2006 - AZ Textron Financial 03/05/2001 - Specified equipment, all rental proceeds,
Corporation Secretary of State Corporation 01163626 therefrom and all attachments, accessories and
replacements thereto, and all proceeds of the
foregoing.
This Statement is filed in connection with a lease
and is filed for precautionary purposes only.
71
Schedule 6.1(g)
to Credit Agreement
REPORT/ INDEX DATE UCC DATE FILED/
DEBTOR LOCATION UCC - SECURED PARTY FILE NUMBER UCC COLLATERAL
------ ------------------ ------------------------ --------------- -----------------------------------------------------
Rental Service 10/23/2006 - AZ Textron Financial 03/05/2001 - Specified equipment, all rental proceeds,
Corporation Secretary of State Corporation 01163627 therefrom and all attachments, accessories and
replacements thereto, and all proceeds of the
foregoing.
This Statement is filed in connection with a lease
and is filed for precautionary purposes only.
Rental Service 10/23/2006 - AZ Textron Financial 03/06/2001 - Specified equipment, all rental proceeds,
Corporation Secretary of State Corporation 01163881 therefrom and all attachments, accessories and
replacements thereto, and all proceeds of the
foregoing.
This Statement is filed in connection with a lease
and is filed for precautionary purposes only.
Rental Service 10/23/2006 - AZ Textron Financial 03/06/2001 - Specified equipment, all rental proceeds,
Corporation Secretary of State Corporation 01163882 therefrom and all attachments, accessories and
replacements thereto, and all proceeds of the
foregoing.
This Statement is filed in connection with a lease
and is filed for precautionary purposes only.
72
Schedule 6.1(g)
to Credit Agreement
REPORT/ INDEX DATE UCC DATE FILED/
DEBTOR LOCATION UCC - SECURED PARTY FILE NUMBER UCC COLLATERAL
------ ------------------ ------------------------ --------------- -----------------------------------------------------
Rental Service 10/23/2006 - AZ Xxxx Deere 07/13/2001 - As AMENDED (04/03/2006):
Corporation Secretary of State Construction 200111825399 All of debtor's present and future goods, including
Equipment Co. or equipment and inventory, financed or leased by
Deere Credit, Inc. CONTINUATION: secured party, together with (1) all attachments,
04/03/2006 - accessories, components, repairs and improvements,
As AMENDED 200111825399 (2) all accounts, general intangibles, contract
(04/04/2006): rights and chattel paper relating thereto, and (3)
Deere & Company, AMENDMENT: all proceeds, including, without limitation,
Deere Credit, Inc. 04/03/2006 - insurance, sale, lease and rental proceeds, and
and/or Xxxx Deere 200111825399 proceeds of proceeds.
Construction &
Forestry Company AMENDMENT:
04/04/2006 -
200111825399
Rental Service 10/23/2006 - AZ JCB Inc. 10/04/2001 - All inventory consisting of new and used equipment,
Corporation Secretary of State 200111914933 machines, products, attachments and parts
manufactured or sold by JCB or carrying the JCB name
CONTINUATION: or identification xxxx now or hereafter acquired by
04/12/2006 - the Debtor from JCB and with respect to which the
200111914933 purchase price, finance charges or any related sums
shall not have been paid in cash (including all
accessions, replacements, additions and substitutions
thereto); all leases, other
73
Schedule 6.1(g)
to Credit Agreement
REPORT/ INDEX DATE UCC DATE FILED/
DEBTOR LOCATION UCC - SECURED PARTY FILE NUMBER UCC COLLATERAL
------ ------------------ ------------------------ --------------- -----------------------------------------------------
chattel paper, accounts, contract rights, general
intangibles, rentals, and other income related
thereto and arising therefrom.
Rental Service 10/23/2006 - AZ Dell Financial 10/24/2001 - All computer equipment and peripherals (collectively
Corporation Secretary of State Services, L.P. 200111941856 "Equipment") wherever located heretofore or hereafter
leased to Lessee by Lessor.
CONTINUATION:
09/29/2006 -
200111941856
Rental Service 10/23/2006 - AZ Young Electric Sign 01/15/2002 - Manufactured signs and accompanying equipment.
Corporation Secretary of State Company 200212021415
TERMINATION:
02/07/2003 -
200212021415
Rental Service 10/23/2006 - AZ Allmand Bros., Inc. 01/25/2002 - All unpaid inventory and equipment manufactured by
Corporation Secretary of State 200212040656 secured party and/or bearing any trademark or trade
name of Allmand Bros., Inc. and financed by secured
party and which remains unpaid, and all accounts,
contract rights, chattel paper, documents, general
intangibles and instruments arising from such
inventories and equipment; whether now or after
acquired.
74
Schedule 6.1(g)
to Credit Agreement
REPORT/ INDEX DATE UCC DATE FILED/
DEBTOR LOCATION UCC - SECURED PARTY FILE NUMBER UCC COLLATERAL
------ ------------------ ------------------------ --------------- -----------------------------------------------------
Rental Service 10/23/2006 - AZ Citicorp Del Lease, 01/30/2002 - Specified equipment.
Corporation Secretary of State Inc. 200212043626
Rental Service 10/23/2006 - AZ Citicorp Del Lease, 01/30/2002 - Specified equipment.
Corporation Secretary of State Inc. 200212043739
Rental Service 10/23/2006 - AZ Deere Credit, Inc. 03/01/2002 - Inventory of Debtor financed or leased by Secured
Corporation Secretary of State 200212076465 Party and its assigns now owned or existing, or
hereafter arising or acquired by Debtor.
TERMINATION
(FILED TWICE):
06/23/2006 -
200212076465
06/26/2006 -
200212076465
Rental Service 10/23/2006 - AZ Xxxx Deere 03/01/2002 - Inventory of Debtor financed or leased by Secured
Corporation Secretary of State Construction and 200212076501 Party and its assigns now owned or existing, or
Forestry Company hereafter arising or acquired by Debtor.
Rental Service 10/23/2006 - AZ E-Z- O Division of 11/25/2002- All personal property including equipment and
Corporation Secretary of State Textron 200212423400 inventory, wherever located, now or hereafter
acquired, manufactured or
75
Schedule 6.1(g)
to Credit Agreement
REPORT/ INDEX DATE UCC DATE FILED/
DEBTOR LOCATION UCC - SECURED PARTY FILE NUMBER UCC COLLATERAL
------ ------------------ ------------------------ --------------- -----------------------------------------------------
AS AMENDED AMENDMENT: distributed by Textron Golf, Turf & Specialty
(3/17/2003): 03/17/2003 - Products, a division of Textron, Inc., all present
Textron Financial 200212423400 and future attachments accessories, replacements,
Corporation substitutes and all changes thereto and the proceeds
of the foregoing.
Rental Service 10/23/2006 - AZ Xxxxxx Tractor & 01/09/2003 - Specified equipment.
Corporation Secretary of State Equipment Co. 200312463886
TERMINATION:
02/03/2003 -
200312463886
Rental Service 10/23/2006 - AZ Information Leasing 02/06/2003 - Specified equipment (pursuant to Lease
Corporation Secretary of State Corporation 200312499173 No.: 395140002).
Rental Service 10/23/2006 - AZ Inter- Tel Leasing 03/11/2003 - Specified equipment.
Corporation Secretary of State Inc. 200312535612
This filing is not a security transaction and is only
intended to make the Rental a matter of public
record.
Rental Service 10/23/2006 - AZ Xxx Xxxxxxx 06/11/2003 - Specified equipment.
Corporation Secretary of State Refrigeration Inc. 200312653739
Rental Service 10/23/2006 - AZ Bay4 Capital, LLC 10/17/2003 - Specified equipment.
Corporation
76
Schedule 6.1(g)
to Credit Agreement
REPORT/ INDEX DATE UCC DATE FILED/
DEBTOR LOCATION UCC - SECURED PARTY FILE NUMBER UCC COLLATERAL
------ ------------------ ------------------------ --------------- -----------------------------------------------------
Secretary of State ASSIGNED TO 200312836525 Filing is for informational purposes only, pursuant
(01/13/2004): to a Master Lease Agreement.
Skandinaviska ASSIGNMENT:
Enskilda Banken 01/13/2004 -
200312836525
Rental Service 10/23/2006 - AZ Skandinaviska Enskilda 10/17/2003 - Specified equipment.
Corporation Secretary of State Banken 200312836536
Filing is for informational purposes only, pursuant
Assignor Secured Party: to a Master Lease Agreement.
Bay4 Capital, LLC
Rental Service 10/23/2006 - AZ Bay4 Capital, LLC 11/13/2003 - Specified equipment.
Corporation Secretary of State 200312851728
ASSIGNED TO Filing is for informational purposes only, pursuant
(01/13/2004): ASSIGNMENT: to a Master Lease Agreement.
Skandinaviska 01/13/2004 -
Enskilda Banken 200312851728
Rental Service 10/23/2006 - AZ Bay4 Capital, LLC 01/21/2004 - Specified equipment.
Corporation Secretary of State 200412955496
ASSIGNED TO Filing is for informational purposes only, pursuant
(07/06/2004): ASSIGNMENT: to a Master Lease Agreement.
Skandinaviska 07/06/2004 -
Enskilda Banken 200412955496
77
Schedule 6.1(g)
to Credit Agreement
REPORT/ INDEX DATE UCC DATE FILED/
DEBTOR LOCATION UCC - SECURED PARTY FILE NUMBER UCC COLLATERAL
------ ------------------ ------------------------ --------------- -----------------------------------------------------
Rental Service 10/23/2006 - AZ Skandinaviska Enskilda 01/29/2004 - Specified equipment.
Corporation Secretary of State Banken 200412973501
Filing is for informational purposes only, pursuant
Assignor Secured Party: to a Master Lease Agreement.
Bay4 Capital, LLC
Rental Service 10/23/2006 - AZ Skandinaviska Enskilda 03/15/2004 - Specified equipment.
Corporation Secretary of State Banken 200413051859
Filing is for informational purposes only, pursuant
Assignor Secured Party: to a Master Lease Agreement.
Bay4 Capital, LLC
Rental Service 10/23/2006 - AZ Xxxxxxxx Tractor Co., 03/29/2004 - Specified equipment and proceeds thereof.
Corporation Secretary of State Inc. 200413054852
Rental Service 10/23/2006 - AZ Xxxxxxx & Co., Inc. 03/19/2004 - All inventory and the proceeds therefrom,
Corporation Secretary of State 200413151236 manufactured by Xxxxx, Broilmaster, Interlube,
Additional Secured Western Mfg., Handy Industries, Ground - Hog,
Party: A.M.E.D. Ransomes, Xxxxxxx, Xxxx, Velke, Trucut, Trenchmaster,
GrassGobbler, Hoffco, Maxim, Encore, and any/all
Xxxxxxxx Products, or other products, now owned or
hereafter acquired from Xxxxxxx & Co., d/b/a A.M.E.D.
78
Schedule 6.1(g)
to Credit Agreement
REPORT/ INDEX DATE UCC DATE FILED/
DEBTOR LOCATION UCC - SECURED PARTY FILE NUMBER UCC COLLATERAL
------ ------------------ ------------------------ --------------- -----------------------------------------------------
Rental Service 10/23/2006 - AZ Bay4 Capital, LLC 06/23/2004 - All present and future Goods, wherever located,
Corporation Secretary of State 200413205913 leased by Bay4 Capital to Atlas Copco North America
Inc. and any Additonal Customers pursuant to the
PARTIALLY ASSIGNED TO PARTIAL Master Lease Agreement No. 00228 dated July 16, 2003.
(08/20/2004): ASSIGNMENT:
Skandinaviska 08/20/2004 - Filing is for informational purposes only.
Enskilda Banken 200413205913
AS DESCRIBED IN THE PARTIAL ASSIGNMENT (08/20/2004):
Partial Assignment with regard to all of the
equipment and personal property under Lease Schedule
No. 10 to the Master Lease Agreement No. 00228.
Rental Service 10/23/2006 - AZ FNF Capital, Inc. 01/18/2005 - Any and all equipment now or hereafter the subject
Corporation Secretary of State 200513503494 of any lease agreement or lease schedule by and
between the parties.
Filing is only intended to make the true lease a
matter of public record.
Rental Service 10/23/2006 - AZ XXX Xxxxxx Warehouse 03/01/2005 - All present and future products and goods and
Corporation Secretary of State Center, Inc. 200513563509 proceeds thereof, purchased by Debtor from Secured
Party or any of its affiliated companies.
79
Schedule 6.1(g)
to Credit Agreement
REPORT/ INDEX DATE UCC DATE FILED/
DEBTOR LOCATION UCC - SECURED PARTY FILE NUMBER UCC COLLATERAL
------ ------------------ ------------------------ --------------- -----------------------------------------------------
Rental Service 10/23/2006 - AZ FNF Capital, Inc. 03/29/2005 - Equipment pursuant to Lease Agreement No. XXX000000,
Corporation Secretary of State 200513581589 Lease Schedule No. 003.
Rental Service 10/23/2006 - AZ FNF Capital, Inc. 03/29/2005 - Equipment pursuant to Lease Agreement No. XXX000000,
Corporation Secretary of State 200513581590 Lease Schedule No. 002.
Rental Service 10/23/2006 - AZ Vermeer Sales & 04/26/2005 - Specified machinery and equipment.
Corporation Secretary of State Service 200513626107
TERMINATION:
05/13/2005 -
200513626107
Rental Service 10/23/2006 - AZ National City 05/27/2005 - Specified equipment.
Corporation Secretary of State Commercial Capital 200513666832
Corporation Equipment is owned by the Secured Party and leased to
the debtor under Lease No: 395140002R.
Rental Service 10/23/2006 - AZ Skandinaviska 09/23/2005 - Specified equipment.
Corporation Secretary of State Enskilda Banken 200513813182
Filing is for informational purposes only, pursuant
Assignor Secured to a Master Lease Agreement.
Party: Bay4 Capital,
LLC
Rental Service 10/23/2006 - AZ Skandinaviska 03/17/2006 - Specified equipment.
Corporation
80
Schedule 6.1(g)
to Credit Agreement
REPORT/ INDEX DATE UCC DATE FILED/
DEBTOR LOCATION UCC - SECURED PARTY FILE NUMBER UCC COLLATERAL
------ ------------------ ------------------------ --------------- -----------------------------------------------------
Secretary of State Enskilda Banken 200614098930 Filing is for informational purposes only, pursuant
to a Master Lease Agreement.
Assignor Secured
Party: Bay4 Capital,
LLC
Rental Service 10/23/2006 - AZ Skandinaviska 03/17/2006 - Specified equipment.
Corporation Secretary of State Enskilda Banken 200614098941
Filing is for informational purposes only, pursuant
Assignor Secured to a Master Lease Agreement.
Party: Bay4 Capital,
LLC
Rental Service 10/23/2006 - AZ US Bank N.A. 05/31/2006 - Specified equipment pursuant to a Master Lease
Corporation Secretary of State 200614249659 Agreement.
Assignor Secured
Party: Kinetic Filing is intended to comply with the requirements of
Leasing, Inc. the UCC in the event that it is determined that the
Lease constitutes a security agreement thereunder.
Rental Service 10/23/2006 - AZ Bay4 Capital, LLC 06/28/2006 - Specified equipment.
Corporation Secretary of State 200614284367
Assignor Secured Filing is for informational purposes only, pursuant
Party: to a Master Lease Agreement.
Skandinaviska
Enskilda Banken
81
Schedule 6.1(g)
to Credit Agreement
REPORT/ INDEX DATE UCC DATE FILED/
DEBTOR LOCATION UCC - SECURED PARTY FILE NUMBER UCC COLLATERAL
------ ------------------ ------------------------ --------------- -----------------------------------------------------
Rental Service 10/23/2006 - AZ AT&T Capital 08/17/2006 - Equipment provided to Lessee under Schedule No.
Corporation Secretary of State Services, Inc. 200614390117 001 - 4056000 - 001.
Goods described as collateral are subject to a true
lease; filing is a precaution pursuant to UCC section
9 - 505.
Rental Service 10/23/2006 - AZ Xxxxxxxxx - Xxxx 08/28/2006 - A continuing, purchase money inventory security
Corporation Secretary of State Company 200614410349 interest in and to all equipment purchased by RSC
from Xxxxxxxxx- Xxxx Company and any of its divisions
or subsidiaries to the extent such items of equipment
have not been paid for, whether in the possession of
RSC or rented or leased or otherwise in the hands of
third parties.
Rental Service 10/23/2006 - AZ Chesapeake 10/06/2006 - Specified equipment leased pursuant to the Lease
Corporation Secretary of State Funding LLC 200614459006 Agreement dated 04/24/2000.
AMENDMENT: Filing is precautionary in connection with a lease.
10/25/2006 -
200614459006 AS AMENDED:
Includes additional specified equipment pursuant to
lease.
82
Schedule 6.1(g)
to Credit Agreement
II. List of all Tax and Federal Judgment Liens of Rental Service Corporation:
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
Alabama* Clear (10 years through Clear (10 years through n/a
10/27/06) 10/27/06)
Alabama (Southern n/a n/a n/a Clear (10 years through 10/25/06)
District)
Alabama (Middle n/a n/a n/a Clear (10 years through 10/25/06)
District)
Alabama (Autauga Clear (10 years through Clear (10 years through Clear (10 years through n/a
County) 10/27/06) 10/27/06) 10/27/06)
Alabama (Xxxxxxx Clear (10 years through Clear (10 years through Clear (10 years through n/a
County) 10/17/06) 10/17/06) 10/17/06)
Alabama (Xxxxxxx Clear (10 years through Clear (10 years through Clear (10 years through n/a
County) 10/31/06) 10/31/06) 10/31/06)
Alabama (Colbert Clear (10 years through Clear (10 years through Clear (10 years through n/a
County) 11/1/06) 11/1/06) 11/1/06)
Alabama (Xxxx Clear (10 years through Clear (10 years through Clear (10 years through n/a
County) 10/31/06) 10/31/06) 10/31/06)
Alabama (Xxxxxx Clear (10 years through Clear (10 years through Clear (10 years through n/a
County) 10/31/06) 10/31/06) 10/31/06)
Alabama (Etowah Clear (10 years through Clear (10 years through Clear (10 years through n/a
83
Schedule 6.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
County) 10/27/06) 10/27/06) 10/27/06)
Alabama (Houston Clear (10 years through Clear (10 years through Clear (10 years through n/a
County) 10/31/06) 10/31/06) 10/31/06)
(Xxxxxxx Clear (10 years thro
County) 11/1/06) 11/1/06) 11/1/06)
Alabama Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Jefferson 10/24/06) 10/24/06) 10/24/06)
County - Bessemer
Div.)
Alabama Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Jefferson County 10/24/06) 10/24/06) 10/24/06)
Birmingham Div.)*
Alabama (Xxx Clear (10 years through Clear (10 years through Clear (10 years through n/a
County) 10/30/06 10/30/06 10/30/06
Alabama Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Limestone 11/1/06) 11/1/06) 11/1/06)
County)
Alabama (Madison Clear (10 years through Clear (10 years through Clear (10 years through n/a
County) 11/1/06) 11/1/06) 11/1/06)
Alabama (Marengo Clear (10 years through Clear (10 years through 1 Judgment Lien - n/a
County) 11/2/06) 11/2/06)
04/20/98 File No. Book
2-Mech Page 147
84
Schedule 6.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
Verified lien filed by
Auto Beauty Shop of
Alabama, Inc. against a
1998 Ford F Series
owned by Rental Service
Corporation to secure
indebtedness in the
amount of $2,679.31 for
work performed and
materials furnished to
RSC.
(10 years through
11/2/06)
Alabama (Mobile Clear (10 years through Clear (10 years through Clear (10 years through n/a
County) 10/27/06) 10/27/06) 10/27/06)
Alabama Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Montgomery 10/23/06) 10/23/06) 10/23/06)
County)
Alabama Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Xxxxxx County) 11/3/06) 11/3/06) 11/3/06)
Alabama (Shelby Clear (10 years through Clear (10 years through Clear (10 years through n/a
County) 10/17/06) 10/17/06) 10/17/06)
Alabama Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Talladega 10/31/06) 10/31/06) 10/31/06)
County)
Alabama Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Tallapoosa 11/1/06) 11/1/06) 11/1/06)
85
Schedule 6.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
County)
Alabama Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Tuscaloosa 10/30/06) 10/30/06) 10/30/06)
county)
Arizona* Clear (10 years through Clear (10 years through Clear (10 years through 10/25/06)
10/27/06) 10/27/06)
Arizona Clear (10 years through Clear (10 years through Clear (5 years through n/a
(Cochise County) 10/16/06) 10/16/06) 10/16/06)
Arizona (Coconino Clear (10 years through Clear (10 years through Clear (5 years through n/a
County) 10/30/06) 10/30/06) 10/30/06)
Arizona (Gila Clear (10 years through Clear (10 years through Clear (5 years through n/a
County) 10/24/06) 10/24/06) 10/24/06)
Arizona (Xxxxxx Clear (10 years through Clear (10 years through Clear (5 years through n/a
County) 10/19/06) 10/19/06) 10/19/06)
Arizona (Maricopa Clear (10 years through Clear (10 years through Clear (5 years through n/a
County) 10/25/06) 10/25/06) 10/25/06)
Arizona (Mohave Clear (10 years through Clear (10 years through Clear (5 years through n/a
County) 11/1/06) 11/1/06) 11/1/06)
Arizona (Navajo Clear (10 years through Clear (10 years through Clear (5 years through n/a
County) 10/19/06) 10/19/06) 10/19/06)
Arizona (Pima Clear (10 years through Clear (10 years through Clear (5 years through n/a
86
Schedule 6.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
County) 10/23/06) 10/23/06) 10/23/06)
Arizona (Yavapai Clear (10 years through Clear (10 years through Clear (5 years through n/a
County) 10/23/06) 10/23/06) 10/23/06)
Arizona (Yuma Clear (10 years through Clear (10 years through Clear (5 years through n/a
County) 10/16/06) 10/16/06) 10/16/06)
Arkansas* Clear (10 years through n/a
11/1/06)
Arkansas (Western n/a n/a n/a Clear (10 years through 10/25/06)
District)
Arkansas (Eastern n/a n/a n/a Clear (10 years through 10/25/06)
District)
Arkansas (Benton Clear (10 years through Clear (10 years through Clear (10 years through n/a
County) 11/2/06) 11/2/06) 11/2/06)
Arkansas Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Xxxxxxxxx 11/1/06) 11/1/06) 11/1/06)
(Eastern
District))
Arkansas Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Xxxxxxxxx 11/1/06) 11/1/06) 11/1/06)
(Western
District))
Arkansas Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Garland County) 11/1/06) 11/1/06) 11/1/06)
Arkansas Clear (10 years through Clear (10 years through Clear (10 years through n/a
87
Schedule 6.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
(Jefferson 11/1/06) 11/1/06) 11/1/06)
County)
Arkansas Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Mississippi 11/1/06) 11/1/06) 11/1/06)
- Chickasawba
Dist.
Arkansas Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Mississippi 11/1/06) 11/1/06) 11/1/06)
- Osceola District
Arkansas Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Xxxx County) 11/1/06) 11/1/06) 11/1/06)
Arkansas (Pulaski n/a
County)*
Arkansas Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Sebastian - Fort 10/30/06) 10/30/06) 10/30/06)
Xxxxx District)
Arkansas Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Sebastian 10/30/06) 10/30/06) 10/30/06)
- Southern
District)
Arkansas Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Union County) 10/27/06) 10/27/06) 10/27/06)
California Clear (10 years through Clear (10 years through Clear (5 years through n/a
10/26/06) 10/26/06) 10/26/06)
California n/a n/a n/a Clear (10 years through
88
Schedule 6.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
(Southern 10/25/06)
District)
California n/a n/a n/a Clear (10 years through 10/25/06)
(Central
District)
California n/a n/a n/a Clear (10 years through 10/25/06)
(Eastern
District)
California n/a n/a n/a Clear (10 years through 10/25/06)
(Northern
District)
California Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Alameda County) 10/27/06) 10/27/06) 10/27/06)
California Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Contra 10/27/06) 10/27/06) 10/27/06)
Costa County)
California Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Fresno County) 10/27/06) 10/27/06) 10/27/06)
California Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Xxxx County) 10/26/06) 10/26/06) 10/26/06)
California Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Los Angeles 10/25/06) 10/25/06) 10/25/06)
County)
California Clear (10 years through Clear (10 years through Clear (10 years through n/a
10/28/06) 10/28/06) 10/28/06)
89
Schedule 6.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
(Orange County)
California Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Riverside 10/30/06) 10/30/06) 10/30/06)
County)
California Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Sacramento 10/30/06) 10/30/06) 10/30/06)
County)
California (San Clear (10 years through Clear (10 years through Clear (10 years through n/a
Diego County) 10/26/06) 10/26/06) 10/26/06)
California (San Clear (10 years through Clear (10 years through Clear (10 years through n/a
Francisco County) 10/17/06) 10/17/06) 10/17/06)
California (San Clear (10 years through Clear (10 years through Clear (10 years through n/a
Xxxxxxx County) 10/31/06) 10/31/06) 10/31/06)
California (Santa Clear (10 years through Clear (10 years through Clear (10 years through n/a
Xxxxx County) 10/27/06) 10/27/06) 10/27/06)
California Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Ventura County) 11/1/06) 11/1/06) 11/1/06)
Colorado* Clear (10 years through Clear (10 years through 10/25/06)
10/19/06)
Colorado (Xxxxx Clear (10 years through Clear (10 years through Clear (6 years through n/a
County) 10/30/06) 10/30/06) 10/30/06)
Colorado Clear (10 years through Clear (10 years through Clear (6 years through n/a
90
Schedule 6.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
(Arapahoe County) 10/19/06) 10/19/06) 10/19/06)
Colorado (Boulder Clear (10 years through Clear (10 years through Clear (6 years through n/a
County) 10/21/06) 10/21/06) 10/21/06)
Colorado (Denver Clear (10 years through Clear (10 years through Clear (6 years through n/a
County) 10/20/06) 10/20/06) 10/20/06)
Colorado (Xxxxxxx Clear (10 years through Clear (10 years through Clear (6 years through n/a
County) 10/26/06) 10/26/06) 10/26/06)
Colorado (Eagle Clear (10 years through Clear (10 years through Clear (6 years through n/a
County) 10/24/06) 10/24/06) 10/24/06)
Colorado (El Paso Clear (10 years through Clear (10 years through Clear (6 years through n/a
County) 10/31/06) 10/31/06) 10/31/06)
Colorado Clear (10 years through Clear (10 years through Clear (6 years through n/a
(Gunnison County) 10/13/06) 10/13/06) 10/13/06)
Colorado (Larimer Clear (10 years through Clear (10 years through Clear (6 years through n/a
County) 10/30/06) 10/30/06) 10/30/06)
Colorado (Mesa Clear (10 years through Clear (10 years through Clear (6 years through n/a
County) 11/2/06) 11/2/06) 11/2/06)
Colorado Clear (10 years through Clear (10 years through Clear (6 years through n/a
(Montrose County) 10/24/06) 10/24/06) 10/24/06)
91
Schedule 6.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
Colorado (Pueblo Clear (10 years through Clear (10 years through Clear (6 years through n/a
County) 10/25/06) 10/25/06) 10/25/06)
Colorado (Routt Clear (10 years through Clear (10 years through Clear (6 years through n/a
County) 10/25/06) 10/25/06) 10/25/06)
Colorado (Summit Clear (10 years through Clear (10 years through Clear (6 years through n/a
County) 10/31/06) 10/31/06) 10/31/06)
Colorado (Weld Clear (10 years through Clear (10 years through Clear (6 years through n/a
County) 10/8/06) 10/8/06) 10/8/06)
Delaware* Clear (10 years through Clear (10 years through 10/25/06)
10/17/06)
Delaware (New Clear (10 years through Clear (10 years through Clear (10 years through n/a
Castle County) 10/26/06) 10/26/06) 10/26/06)
Delaware (Sussex Clear (10 years through Clear (10 years through Clear (10 years through n/a
County) 10/26/06) 10/26/06) 10/26/06)
Florida* Clear (10 years through Clear (10/1/01 - n/a
10/06/06) 10/26/06)
Florida (Southern n/a n/a n/a Clear (10 years through 10/25/06)
District)
Florida (Middle n/a n/a n/a Clear (10 years through 10/25/06)
District)
Florida (Northern n/a n/a n/a Clear (10 years through 10/25/06)
District)
Florida (Bay Clear (20 years through Clear (10 years through Clear (10 years through n/a
92
Schedule 6.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
County) 11/3/06) 11/3/06) 11/3/06)
Florida (Brevard Clear (20 years through Clear (10 years through Clear (10 years through n/a
County) 10/26/06) 10/26/06) 10/26/06)
Florida (Broward Clear (20 years through Clear (10 years through Clear (10 years through n/a
County) 10/10/06) 10/10/06) 10/10/06)
Florida (Columbia Clear (20 years through Clear (10 years through Clear (10 years through n/a
County) 10/20/06) 10/20/06) 10/20/06)
Florida (Xxxxx Clear (20 years through Clear (10 years through Clear (10 years through n/a
County) 10/12/06) 10/12/06) 10/12/06)
Florida (Escambia Clear (20 years through Clear (10 years through Clear (10 years through n/a
County) 11/1/06) 11/1/06) 11/1/06)
Florida Clear (20 years through Clear (10 years through Clear (10 years through n/a
(Hillsborough 10/16/06) 10/16/06) 10/16/06)
County)
Florida (Lake Clear (20 years through Clear (10 years through Clear (10 years through n/a
County) 11/1/06) 11/1/06) 11/1/06)
Florida (Xxx Clear (20 years through Clear (10 years through Clear (10 years through n/a
County) 10/17/06) 10/17/06) 10/17/06)
Florida (Xxxx Clear (20 years through Clear (10 years through Clear (10 years through n/a
County) 11/1/06) 11/1/06) 11/1/06)
93
Schedule 6.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
Florida (Xxxxxx Clear (20 years through Clear (10 years through Clear (10 years through n/a
County) 10/31/06) 10/31/06) 10/31/06)
Florida (Okaloosa Clear (20 years through Clear (10 years through Clear (10 years through n/a
County) 10/27/06) 10/27/06) 10/27/06)
Florida (Orange Clear (20 years through Clear (10 years through Clear (10 years through n/a
County) 10/26/06) 10/26/06) 10/26/06)
Florida (Osceola Clear (20 years through Clear (10 years through Clear (10 years through n/a
County) 10/27/06) 10/27/06) 10/27/06)
Florida (Palm Clear (20 years through Clear (10 years through Clear (10 years through n/a
Beach County) 10/20/06) 10/20/06) 10/20/06)
Florida (Pasco Clear (20 years through Clear (10 years through Clear (10 years through n/a
County) 11/1/06) 11/1/06) 11/1/06)
Florida (Pinellas Clear (20 years through Clear (10 years through Clear (10 years through n/a
County) 11/1/06) 11/1/06) 11/1/06)
Florida (Polk Clear (20 years through Clear (10 years through Clear (10 years through n/a
County) 10/30/06) 10/30/06) 10/30/06)
Florida (Saint Clear (20 years through Clear (10 years through 1 Judgment Lien - n/a
Lucie County) 10/25/06) 10/25/06) File No. 2122175 Clear (10 years through
Small Claims Court, 10/25/06)
00xx Xxxxxxx xx Xx.
Xxxxx, Xxxxxxx (02- SC-
002203 - Default Final
Judgment
94
Schedule 6.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
entered against RSC in
favor of Freightliner
Trucks of S Florida Inc
in the amount of
$3,677.61 plus court
costs.
(10 years through
10/25/06)
Florida (Sarasota Clear (20 years through Clear (10 years through Clear (10 years through n/a
County) 10/31/06) 10/31/06) 10/31/06)
Florida (Seminole Clear (20 years through Clear (10 years through Clear (10 years through n/a
County) 10/30/06) 10/30/06) 10/30/06)
Florida (Volusia Clear (20 years through Clear (10 years through Clear (10 years through n/a
County) 10/30/06) 10/30/06) 10/30/06)
Georgia n/a n/a n/a Clear (10 years through 10/25/06)
(Southern
District)
Georgia n/a n/a n/a Clear (10 years through 10/25/06)
(Northern
District)
Georgia (Middle n/a n/a n/a Adversary Proceedings filed
District) 3/29/00 (terminated 05/24/00)
- Xxxxx Xxxxxxx Xxxxxxx et al.
v. Rental Service Corp. et al.
Complaint NOS 426
Dischargeability 523
95
Schedule 6.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
Ordered and adjudged that the
obligations of the plaintiffs to
the defendant is determined
dischargeable in bankruptcy, that
any judgment entered in favor of
the defendant and against the
plaintiffs is deteremined to have
been in violation of the
automatic stay in bankruptcy
Georgia (Xxxxxxx Clear (7 years through Clear (10 years through Clear (10 years through n/a
County) 10/30/06) 10/30/06) 10/30/06)
Georgia (Chatham Clear (7 years through Clear (10 years through Clear (10 years through n/a
County 10/24/06) 10/24/06) 10/24/06)
Georgia (Xxxxxx Clear (7 years through Clear (10 years through Clear (10 years through n/a
County) 10/26/06) 10/26/06) 10/26/06)
Georgia (Xxxxxxx Clear (7 years through Clear (10 years through Clear (10 years through n/a
County) 10/17/06) 10/17/06) 10/17/06)
Georgia (Xxxx Clear (7 years through Clear (10 years through Clear (10 years through n/a
County) 10/26/06) 10/26/06) 10/26/06)
Georgia (Coweta Clear (7 years through Clear (10 years through Clear (10 years through n/a
County) 10/15/06) 10/15/06) 10/15/06)
Georgia (Dekalb Clear (7 years through Clear (10 years through Clear (10 years through n/a
County) 10/30/06) 10/30/06) 10/30/06)
96
Schedule 6.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
Georgia Clear (7 years through Clear (10 years through Clear (10 years through n/a
(Xxxxxxxxx 10/30/06) 10/30/06) 10/30/06)
County)
Georgia (Xxxxxxx Clear (7 years through Clear (10 years through Clear (10 years through n/a
County) 10/20/06) 10/20/06) 10/20/06)
Georgia (Xxxxx Clear (7 years through Clear (10 years through Clear (10 years through n/a
County) 11/1/06) 11/1/06) 11/1/06)
Georgia (Forsyth Clear (7 years through Clear (10 years through Clear (10 years through n/a
County) 10/31/06) 10/31/06) 10/31/06)
Georgia (Xxxxx Clear (7 years through Clear (10 years through Clear (10 years through n/a
County) 10/27/06) 10/27/06) 10/27/06)
Georgia (Gwinnett Clear (7 years through Clear (10 years through Clear (10 years through n/a
County) 10/19/06) 10/19/06) 10/19/06)
Georgia (Houston Clear (7 years through Clear (10 years through Clear (10 years through n/a
County) 10/26/06) 10/26/06) 10/26/06)
Georgia (Lowndes Clear (7 years through Clear (10 years through Clear (10 years through n/a
County) 10/31/06) 10/31/06) 10/31/06)
Georgia (Muscogee Clear (7 years through Clear (10 years through Clear (10 years through n/a
County) 11/1/06) 11/1/06) 11/1/06)
Georgia (Oconee Clear (7 years through Clear (10 years through Clear (10 years through n/a
97
Schedule 6.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
County) 10/23/06) 10/23/06) 10/23/06)
Georgia (Peach Clear (7 years through Clear (10 years through Clear (10 years through n/a
County) 10/30/06) 10/30/06) 10/30/06)
Georgia (Richmond Clear (7 years through Clear (10 years through Clear (10 years through n/a
County) 10/24/06) 10/24/06) 10/24/06)
Georgia Clear (7 years through Clear (10 years through Clear (10 years through n/a
(Spalding County) 10/31/06) 10/31/06) 10/31/06)
Georgia (Xxxxxx Clear (7 years through Clear (10 years through Clear (10 years through n/a
County) 10/31/06) 10/31/06) 10/31/06)
Georgia (Xxxxx Clear (7 years through Clear (10 years through Clear (10 years through n/a
County) 10/20/06) 10/20/06) 10/20/06)
Georgia Clear (7 years through Clear (10 years through Clear (10 years through n/a
(Xxxxxxxxx 10/30/06) 10/30/06) 10/30/06)
County)
Iowa* Clear (10 years through
10/19/06)
Iowa (Southern n/a n/a n/a Clear (10 years through 10/25/06)
District)
Iowa (Northern n/a n/a n/a Clear (10 years through 10/25/06)
District)
Iowa (Black Clear (10 years through Clear (10 years through Clear (10 years through n/a
98
Schedule 6.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
Hawk County) 10/27/06) 10/27/06) 10/27/06)
Iowa (Clay Clear (10 years through Clear (10 years through Clear (10 years through n/a
County) 11/2/06) 11/2/06) 11/2/06)
Iowa (Clinton Clear (10 years through Clear (10 years through Clear (10 years through n/a
County) 10/31/06) 10/31/06) 10/31/06)
Iowa (Des Moines Clear (10 years through Clear (10 years through Clear (10 years through n/a
County) 10/25/06) 10/25/06) 10/25/06)
Iowa (Dubuque Clear (10 years through Clear (10 years through Clear (10 years through n/a
County Iowa) 10/27/06) 10/27/06) 10/27/06)
Iowa (Linn Clear (10 years through Clear (10 years through Clear (10 years through n/a
County) 10/31/06) 10/31/06) 10/31/06)
Iowa (Muscatine Clear (10 years through Clear (10 years through Clear (10 years through n/a
County) 11/2/06) 11/2/06) 11/2/06)
Iowa (Polk Clear (10 years through Clear (10 years through Clear (10 years through n/a
County) 11/1/06) 11/1/06) 11/1/06)
Iowa (Story Clear (10 years through Clear (10 years through Clear (10 years through n/a
County) 11/2/06) 11/2/06) 11/2/06)
Illinois* Clear (10 years through n/a
11/1/06)
Illinois n/a n/a n/a Clear (10 years through 10/25/06)
(Southern
District)
Illinois n/a n/a n/a Clear (10 years through
(Northern
99
Schedule 6.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
District) 10/25/06)
Illinois n/a n/a n/a Adversary Proceedings filed
(Central 8/13/01 (terminated 10/04/01) -
District) Jumers Castle Lodge Incorporated
v. Rental Service Corporation.
Complaint NOS 454 Recover
Money/Property Filing Fee.
Defendant did not answer or plead
to the complaint filed by
plaintiff. Judgment is entered as
follows against defendant: 1) the
sum of $4,607.30; 2) post
judgment interest is to accrue on
said award at the rate of 3.44%
per annum.
Illinois (Xxxxx Clear (20 years through Clear (10 years through Clear (7 years through n/a
County) 10/27/06) 10/27/06) 10/27/06)
Illinois Clear (20 years through Clear (10 years through Clear (7 years through n/a
(Champaign 10/26/06) 10/26/06) 10/26/06)
County)
Illinois (Xxxx Clear (20 years through Clear (10 years through Clear (7 years through n/a
County) 10/23/06) 10/23/06) 10/23/06)
Illinois (De Xxxx Clear (20 years through Clear (10 years through Clear (7 years through n/a
County) 11/2/06) 11/2/06) 11/2/06)
100
Schedule 6.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
Illinois (Du Page Clear (20 years through Clear (10 years through Clear (7 years through n/a
County) 10/30/06) 10/30/06) 10/30/06)
Illinois (Grundy Clear (20 years through Clear (10 years through Clear (7 years through n/a
County) 10/30/06) 10/30/06) 10/30/06)
Illinois (La Clear (20 years through Clear (10 years through Clear (7 years through n/a
Salle County) 10/26/06) 10/26/06) 10/26/06)
Illinois (Macon Clear (20 years through Clear (10 years through Clear (7 years through n/a
County) 10/31/06) 10/31/06) 10/31/06)
Illinois (Madison Clear (20 years through Clear (10 years through Clear (7 years through n/a
County) 10/31/06) 10/31/06) 10/31/06)
Illinois (Xxxxxx Clear (20 years through Clear (10 years through Clear (7 years through n/a
County) 10/30/06) 10/30/06) 10/30/06)
Illinois (Rock Clear (20 years through Clear (10 years through Clear (7 years through n/a
Island County) 11/3/06) 11/3/06) 11/3/06)
Illinois (Saint Clear (20 years through Clear (10 years through Clear (7 years through n/a
Clair County) 10/26/06) 10/26/06) 10/26/06)
Illinois Clear (20 years through Clear (10 years through Clear (7 years through n/a
(Sangamon County) 10/27/06) 10/27/06) 10/27/06)
Illinois Clear (20 years through Clear (10 years through Clear (7 years through n/a
(Tazewell County) 11/1/06) 11/1/06) 11/1/06)
Illinois (Will Clear (20 years through Clear (10 years through Clear (7 years through n/a
101
Schedule 6.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
County) 10/24/06) 10/24/06) 10/24/06)
Illinois Clear (20 years through Clear (10 years through Clear (7 years through n/a
(Winnebago 9/19/06) 9/19/06) 9/19/06)
County)
Indiana (Southern n/a n/a n/a Clear (10 years through 10/25/06)
District)
Indiana (Northern n/a n/a n/a Clear (10 years through 10/25/06)
District)
Indiana (Lake Clear (10 years through Clear (10 years through Clear (10 years through n/a
County) 8/31/06) 8/31/06) 8/31/06)
Indiana (Xxxxxx Clear (10 years through Clear (10 years through Clear (10 years through n/a
County) 10/18/06) 10/18/06) 10/18/06)
Indiana Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Vanderburgh 10/31/06) 10/31/06) 10/31/06)
County)
Indiana (St. Clear (10 years through Clear (10 years through Clear (10 years through n/a
Xxxxxx County) 10/30/06) 10/30/06) 10/30/06)
Kansas* Clear (10 years through Clear (10 years through 10/25/06)
10/30/06)
Kansas (Xxxxxxx n/a
County)*
Kansas (Xxxxx Clear (7 years through Clear (10 years through Clear (7 years through n/a
11/1/06) 11/1/06) 11/1/06)
102
Schedule 6.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
County)
Kansas (Ford Clear (7 years through Clear (10 years through Clear (7 years through n/a
County) 10/30/06) 10/30/06) 10/30/06)
Kansas (Xxxxxxx Clear (7 years through Clear (10 years through Clear (7 years through n/a
County) 10/29/06) 10/29/06) 10/29/06)
Kansas Clear (7 years through Clear (10 years through Clear (7 years through n/a
(Pottawatomie 10/30/06) 10/30/06) 10/30/06)
County)
Kansas (Xxxxx Clear (7 years through Clear (10 years through Clear (7 years through n/a
County) 11/02/06) 11/02/06) 11/02/06)
Kansas (Saline Clear (7 years through Clear (10 years through Clear (7 years through n/a
County) 10/27/06) 10/27/06) 10/27/06)
Kansas (Sedgwick Clear (7 years through Clear (10 years through Clear (7 years through n/a
County) 10/24/06) 10/24/06) 10/24/06)
Kansas (Xxxxxx Clear (7 years through Clear (10 years through Clear (7 years through n/a
County) 11/06/06) 11/06/06) 11/06/06)
Kentucky (Western n/a n/a n/a Clear (10 years through 10/25/06)
District)
Kentucky (Eastern n/a n/a n/a Clear (10 years through 10/25/06)
District)
Kentucky (Xxxxx Clear (10 years through Clear (10 years through Clear (15 years through n/a
103
Schedule 6.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
County) 10/31/06) 10/31/06) 10/31/06)
Kentucky (Fayette Clear (10 years through Clear (10 years through Clear (15 years through n/a
County) 10/28/06) 10/28/06) 10/28/06)
Kentucky (Xxxxxx Clear (10 years through Clear (10 years through Clear (15 years through n/a
County) 10/30/06) 10/30/06) 10/30/06)
Kentucky Clear (10 years through Clear (10 years through Clear (15 years through n/a
(Jefferson 10/31/06) 10/31/06) 10/31/06)
County)
Kentucky (Xxxx Clear (10 years through Clear (10 years through Clear (15 years through n/a
County) 11/6/06) 11/6/06) 11/6/06)
Kentucky Clear (10 years through Clear (10 years through Clear (15 years through n/a
(Madison County) 10/28/06) 10/28/06) 10/28/06)
Kentucky (Xxxxxx Clear (10 years through Clear (10 years through Clear (15 years through n/a
County) 10/29/06) 10/29/06) 10/29/06)
Kentucky Clear (10 years through Clear (10 years through Clear (15 years through n/a
(Xxxxxxxxx 11/1/06) 11/1/06) 11/1/06)
County)
Kentucky (Xxxxxx Clear (10 years through Clear (10 years through Clear (15 years through n/a
County) 11/1/06) 11/1/06) 11/1/06)
Kentucky (Xxxxxxx Clear (10 years through Clear (10 years through Clear (15 years through n/a
County) 11/6/06) 11/6/06) 11/6/06)
104
Schedule 6.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
Louisiana n/a n/a n/a Clear (10 years through 10/25/06)
(Western
District)
Louisiana n/a n/a n/a Clear (10 years through 10/25/06)
(Middle District)
Louisiana n/a n/a n/a Clear (10 years through 10/25/06)
(Eastern
District)
Louisiana Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Ascension 10/30/06) 10/30/06) 10/30/06)
Parish)
Louisiana Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Caddo Parish) 10/30/06) 10/30/06) 10/30/06)
Louisiana 1 State Tax Lien - Clear (10 years through 1 Judgment Lien - n/a
(Calcasieu 10/20/06)
Parish) File No. 2558377 File No. 2778375
Tax Assessment and Lien Judgment against RSC
for RSC USA, Inc. in (one of many
the amount of $2,497.10 defendants) in favor of
including interest and individual plaintiff
penalties computed as (Xxxxxx Xxxxxxx) in the
of 9/28/02. amount of $5,325.80.
excluding interest,
(10 years through cost, and fees. Another
10/20/06) judgment in same matter
does not apply to RSC.
(10 years through
105
Schedule 6.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
10/20/06)
Louisiana (East Clear (10 years through Clear (10 years through Clear (10 years through n/a
Baton Rouge 10/31/06) 10/31/06) 10/31/06)
Parish)
Louisiana Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Iberville 11/02/06) 11/02/06) 11/02/06)
Parish)
Louisiana Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Jefferson 10/26/06) 10/26/06) 10/26/06)
Parish)
Louisiana Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Lafayette 10/27/06) 10/27/06) 10/27/06)
Parish)
Louisiana Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Orleans Parish) 7/25/06) 7/25/06) 7/25/06)
Louisiana Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Rapides Parish) 10/30/06) 10/30/06) 10/30/06)
Louisiana (Saint Clear (10 years through Clear (10 years through Clear (10 years through n/a
Xxxxxxx Xxxxxx) 9/16/06) 9/16/06) 9/16/06)
Louisiana (Saint Clear (10 years through Clear (10 years through Clear (10 years through n/a
Xxxxxxx Xxxxxx) 10/26/06) 10/26/06) 10/26/06)
Louisiana (Saint Clear (10 years through Clear (10 years through Clear (10 years through n/a
Tammany Parish) 09/19/06) 09/19/06) 09/19/06)
Louisiana (St. Clear (10 years through Clear (10 years through Clear (10 years through n/a
Xxxx The Baptist 10/27/06) 10/27/06) 10/27/06)
106
Schedule 6.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
Parish)
Louisiana Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Terrebonne 10/27/06) 10/27/06) 10/27/06)
Parish)
Louisiana Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Xxxxxx Xxxxxx) 10/27/06) 10/27/06) 10/27/06)
Maryland n/a n/a n/a Clear (10 years through 10/25/06)
Maryland Clear (12 years through Clear (10 years through Clear (12 years through n/a
(Baltimore City) 10/16/06) 10/16/06) 10/16/06)
Maryland Clear (12 years through Clear (10 years through Clear (12 years through n/a
(Baltimore 10/30/06) 10/30/06) 10/30/06)
County)
Maryland Clear (12 years through Clear (10 years through Clear (12 years through n/a
(Xxxxxxxxx 11/1/06) 11/1/06) 11/1/06)
County)
Maryland Clear (12 years through Clear (10 years through Clear (12 years through n/a
(Harford County) 10/31/06) 10/31/06) 10/31/06)
Maryland (Prince Clear (12 years through Clear (10 years through Clear (12 years through n/a
Georges County) 11/3/06) 11/3/06) 11/3/06)
Maryland Clear (12 years through Clear (10 years through Clear (12 years through n/a
(Washington 11/01/06) 11/01/06) 11/01/06)
County)
107
Schedule 6.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
Michigan Clear (7 years through Clear (10 years through n/a
10/29/06) 10/29/06)
Michigan (Western n/a n/a n/a Clear (10 years through 10/25/06)
District)
Michigan (Kent Clear (7 years through Clear (10 years through Clear (10 years through n/a
County) 10/25/06) 10/25/06) 10/25/06)
Minnesota Clear (10 years through Clear (10 years through Clear (10 years through 10/25/06)
10/26/06) 10/26/06)
Minnesota (Anoka Clear (10 years through Clear (10 years through Clear (10 years through n/a
County) 9/27/06) 9/27/06) 9/27/06)
Minnesota (Xxxxxx Clear (10 years through Clear (10 years through Clear (10 years through n/a
County) 10/30/06) 10/30/06) 10/30/06)
Minnesota (Dakota Clear (10 years through Clear (10 years through Clear (10 years through n/a
County) 10/25/06) 10/25/06) 10/25/06)
Minnesota Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Hennepin County) 10/10/06) 10/10/06) 10/10/06)
Minnesota Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Olmsted County) 10/30/06) 10/30/06) 10/30/06)
Minnesota Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Xxxxxx County) 8/20/06) 8/20/06) 10/27/06)
Minnesota (Saint Clear (10 years through Clear (10 years through Clear (10 years through n/a
Louis County) 10/26/06) 10/26/06) 10/26/06)
108
Schedule 6.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
Minnesota Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Xxxxxxxxx 10/31/06) 10/31/06) 10/31/06)
County)
Minnesota Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Xxxxxxx County) 10/11/06) 10/11/06) 10/11/06)
Minnesota Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Washington 10/25/06) 10/25/06) 10/25/06)
County)
Mississippi* Clear (10 years through n/a
10/24/06)
Mississippi n/a n/a n/a Clear (10 years through 10/25/06)
(Southern
District)
Mississippi n/a n/a n/a Clear (10 years through 10/25/06)
(Northern
District)
Mississippi (De Clear (7 years through Clear (10 years through Clear (7 years through n/a
Xxxx County) 10/25/06) 10/25/06) 10/25/06)
Mississippi Clear (7 years through Clear (10 years through Clear (7 years through n/a
(Xxxxxxx County) 10/30/06) 10/30/06) 10/30/06)
Mississippi Clear (7 years through Clear (10 years through Clear (7 years through n/a
(Grenada County) 10/30/06) 10/30/06) 10/30/06)
Mississippi Clear (7 years through Clear (10 years through Clear (7 years through n/a
(Xxxxxxxx 1st 10/26/06) 10/26/06) 10/26/06)
109
Schedule 6.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
District)
Mississippi Clear (7 years through Clear (10 years through Clear (7 years through n/a
(Xxxxxxxx 2nd 10/26/06) 10/26/06) 10/26/06)
District)
Mississippi Clear (7 years through Clear (10 years through Clear (7 years through n/a
(Xxxxx 10/30/06) 10/30/06) 10/30/06)
(1st District))
Mississippi Clear (7 years through Clear (10 years through Clear (7 years through n/a
(Xxxxx (2nd 10/30/06) 10/30/06) 10/30/06)
District))
Mississippi Clear (7 years through Clear (10 years through Clear (7 years through n/a
(Xxxxxxx County) 10/26/06) 10/26/06) 10/26/06)
Mississippi Clear (7 years through Clear (10 years through Clear (7 years through n/a
(Xxxxx County) 10/26/06) 10/26/06) 10/26/06)
Mississippi Clear (7 years through Clear (10 years through Clear (7 years through n/a
(Lauderdale 10/31/06) 10/31/06) 10/31/06)
County)
Mississippi Clear (7 years through Clear (10 years through Clear (7 years through n/a
(Xxx County) 10/30/06) 10/30/06) 10/30/06)
Mississippi Clear (7 years through Clear (10 years through Clear (7 years through n/a
(Lowndes County) 10/30/06) 10/30/06) 10/30/06)
Mississippi Clear (7 years through Clear (10 years through Clear (7 years through n/a
110
Schedule 6.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
(Madison County) 10/31/06) 10/31/06) 10/31/06)
Mississippi Clear (7 years through Clear (10 years through Clear (7 years through n/a
(Oktibbeha 10/27/06) 10/27/06) 10/27/06)
County)
Mississippi Clear (7 years through Clear (10 years through Clear (7 years through n/a
(Xxxxxx County) 10/31/06) 10/31/06) 10/31/06)
Mississippi Clear (7 years through Clear (10 years through Clear (7 years through n/a
(Xxxxxx County) 10/27/06) 10/27/06) 10/27/06)
Missouri n/a n/a n/a Clear (10 years through 10/25/06)
(Western
District)
Missouri n/a n/a n/a Clear (10 years through 10/25/06)
(Eastern
District)
Missouri (Xxxxx Clear (10 years through Clear (10 years through Clear (10 years through n/a
County) 10/30/06) 10/30/06) 10/30/06)
Missouri (Xxxxx Clear (10 years through Clear (10 years through Clear (10 years through n/a
County) 10/31/06) 10/31/06) 10/31/06)
Missouri Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Xxxxxxxx County) 10/30/06) 10/30/06) 10/30/06)
Missouri (Camden Clear (10 years through Clear (10 years through Clear (10 years through n/a
County) 10/25/06) 10/25/06) 10/25/06)
111
Schedule 6.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
Missouri (Cape Clear (10 years through Clear (10 years through Clear (10 years through n/a
Girardeau County) 11/1/06) 11/1/06) 11/1/06)
Missouri Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Cass County) 10/30/06) 10/30/06) 10/30/06)
Missouri Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Clay County) 11/1/06) 11/1/06) 11/1/06)
Missouri Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Christian 10/28/06) 10/28/06) 10/28/06)
County)
Missouri Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Xxxxxx County) 10/28/06) 10/28/06) 10/28/06)
Missouri Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Xxxxxxx County) 10/31/06) 10/31/06) 10/31/06)
Missouri n/a
(Jasper County)*
Missouri Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Xxxxxxx County) 10/30/06) 10/30/06) 10/30/06)
Missouri Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Xxxxxx County) 11/1/06) 11/1/06) 11/1/06)
Missouri Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Xxxxxx County) 10/25/06) 10/25/06) 10/25/06)
112
Schedule 6.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
Missouri (Xxxxxx Clear (10 years through Clear (10 years through Clear (10 years through n/a
County) 10/26/06) 10/26/06) 10/26/06)
Missouri (Platte Clear (10 years through Clear (10 years through 1 Judgment Lien - n/a
County)* 11/1/06) 11/1/06)
File No. 02CV82491
Judgment entered
against RSC on 7/19/02
in favor of
Williamsburg Plaza
Partners in the amount
of $3,157.20. Date of
satisfaction of said
judgment is not on
file.
10 years through
11/01/06
Missouri (Saint Clear (10 years through Clear (10 years through Clear (10 years through n/a
Xxxxxxx County) 10/27/06) 10/27/06) 10/27/06)
Missouri (Saint Clear (10 years through Clear (10 years through Clear (10 years through n/a
Louis County) 10/20/06) 10/20/06) 10/20/06)
Missouri (Xxxxx Clear (10 years through Clear (10 years through Clear (10 years through n/a
County) 11/1/06) 11/1/06) 11/1/06)
Missouri (Taney Clear (10 years through Clear (10 years through Clear (10 years through n/a
County) 10/28/06) 10/28/06) 10/28/06)
Nebraska* Clear (10 years through Clear (10 years through Clear (10 years through 10/25/06)
10/26/06) 10/26/06)
Nebraska (Hall Clear (10 years through Clear (10 years through Clear (5 years through n/a
10/30/06) 10/30/06) 10/30/06)
113
Schedule 6.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
County)
Nebraska Clear (10 years through Clear (10 years through Clear (5 years through n/a
(Lancaster 10/30/06) 10/30/06) 10/30/06)
County)
Nebraska Clear (10 years through Clear (10 years through Clear (5 years through n/a
(Lincoln County) 11/2/06) 11/2/06) 11/2/06)
Nebraska (Sarpy Clear (10 years through Clear (10 years through Clear (5 years through n/a
County) 11/2/06) 11/2/06) 11/2/06)
Nebraska (Scotts Clear (10 years through Clear (10 years through Clear (5 years through n/a
Bluff County) 11/3/06) 11/3/06) 11/3/06)
Nebraska Clear (10 years through Clear (10 years through Clear (5 years through n/a
(Washington 11/1/06) 11/1/06) 11/1/06)
County)
Nevada* Clear (10 years through Clear (10 years through 10/25/06)
10/25/06)
Nevada (Xxxxx Clear (5 years through Clear (10 years through Clear (5 years through n/a
County) 10/24/06) 10/24/06) 10/24/06)
New Jersey* Clear (10 years through 10/25/06)
New Jersey Clear (20 years through Clear (10 years through Clear (20 years through n/a
(Gloucester 10/24/06) 10/24/06) 10/24/06)
County)
New Mexico* Clear (10 years through 10/25/06)
114
Schedule 6.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
New Mexico Clear (10 years through Clear (10 years through Clear (14 years through n/a
(Bernalillo 11/1/06) 11/1/06) 11/1/06)
County)
New Mexico (Lea Clear (10 years through Clear (10 years through Clear (14 years through n/a
County) 10/27/06) 10/27/06) 10/27/06)
New Mexico Clear (10 years through Clear (10 years through Clear (14 years through n/a
(Xxxxxxxx 10/26/06) 10/26/06) 10/26/06)
County)
New Mexico Clear (10 years through Clear (10 years through Clear (14 years through n/a
(Xxxxx County) 10/30/06) 10/30/06) 10/30/06)
New Mexico (San Clear (10 years through Clear (10 years through Clear (14 years through n/a
Xxxx County) 10/27/06) 10/27/06) 10/27/06)
New Mexico Clear (10 years through Clear (10 years through Clear (14 years through n/a
(Santa Fe 11/1/06) 11/1/06) 11/1/06)
County)
North Carolina* Clear (10 years through
10/30/06)
Xxxxx Xxxxxxxx 0 Xxxxxxxxxx
(Xxxxxxx
Xxxxxxxx)* 03/27/06 File Xx. 00- 00000-
0-XXX
XXX Joined as a necessary
party in case In re: Xxxxx-
Xxxxxxx, Inc. (debtor), where
RSC was added as a defendant
115
Schedule 6.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
in action by Xxxxx- Xxxxxxx, Inc.
(debtor- plaintiff). No dollar
amount of claim is stated. Case
is still pending.
08/29/06 File No. 06- 00206-8-JRL
Complaint filed against RSC in
case In re: Partitions Plus of
Wilmington Inc. (debtor), where
RSC is defendant in action by
Xxxxx X. Xxxxxx (Chapter 7
trustee). Two Count Complaint
alleging avoidance and recovery
of preferential transfer and
avoidance and recovery of
fraudulent transfer in the amount
of at least $8,882.50.
(10 years through 10/25/06)
North Carolina 1 Bankruptcy
(Middle
District)* 08/04/06 File No. 06- 02059
Judgment entered against RSC in
case In re: DAC of High Point,
Inc., where RSC was defendant in
action by Xxxxxxx X. Xxxxxx
(trustee in bankruptcy). Judgment
116
Schedule 6.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
entered for $1,810.39.
(10 years through 10/25/06)
Xxxxx Xxxxxxxx 0 Xxxxxxxxxx
(Xxxxxxx
Xxxxxxxx)* 08/26/03 File No. 03-03119
Default Judgment entered against
RSC in case In re: Piedmont
Engineering Corporation (debtor)
where RSC was defendant in action
by Xxxxxxx X. Xxxxxxxx (trustee
in bankruptcy). Default judgment
entered against RSC for
$2,592.48.
07/21/04 File No. 04- 03169
Default Judgment entered against
RSC in case In re: RFS Ecusta,
Inc. (debtor) where RSC was
defendant in action by Xxxxxxx X.
Xxxxxx (trustee). Default
judgment entered against RSC for
$5,555.14.
09/30/05 File No. 05- 03476
Complaint filed against RSC in
case In re: X.X. Xxxxx, Inc.,
117
Schedule 6.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
et al.. (debtors) where RSC is
defendant in action by The
Liquidation Committee. Three
Count Complaint pending, alleging
Avoiding of Preferential
Transfer, Avoiding of Fraudulent
Transfer, and Recovery of Avoided
Transfer(s), in a total amount of
not less than $29,199.49.
07/14/06 File No. 06- 03203
Complaint filed against RSC in
case In re: F.T. Xxxxxxxx
Company, Inc. (debtors) where RSC
is defendant in action by R.
Xxxxx Xxxxxxx (trustee for
bankruptcy estate of debtor).
Three Count Complaint pending,
alleging Avoiding of Preferential
Transfer, Avoiding of Fraudulent
Transfer, and Recovery of Avoided
Transfer(s), in a total amount of
not less than $4,500.00.
(10 years through 10/25/06)
118
Schedule 6.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
North Carolina n/a
(Buncombe
Xxxxxx)*
Xxxxx Xxxxxxxx x/x
(Xxxxxxxx
Xxxxxx)*
Xxxxx Xxxxxxxx Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Camden County) 10/19/06) 10/19/06) 10/19/06)
North Carolina Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Cumberland 10/19/06) 10/19/06) 10/19/06)
County)
North Carolina Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Durham County) 10/19/06) 10/19/06) 10/19/06)
North Carolina Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Forsyth County) 10/19/06) 10/19/06) 10/19/06)
North Carolina Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Guilford County) 10/19/06) 10/19/06) 10/19/06)
North Carolina Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Iredell County) 10/19/06) 10/19/06) 10/19/06)
North Carolina Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Mecklenburg 10/19/06) 10/19/06) 10/19/06)
County)
119
Schedule 6.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
North Carolina Clear (10 years through Clear (10 years through Clear (10 years through n/a
(New Hanover 10/19/06) 10/19/06) 10/19/06)
County)
North Carolina Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Onslow County) 10/19/06) 10/19/06) 10/19/06)
North Carolina Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Orange County) 10/19/06) 10/19/06) 10/19/06)
North Carolina 2 State Tax Liens - Clear (10 years through Clear (10 years through n/a
(Pasquotank 10/23/06) 10/23/06)
County) 02/15/01 File No. 01-M-
32
Certification of
Unemployment Insurance
Tax Deficiency against
RSC in the amount of
$356.36.
03/30/01 File No. 01-M-
77
Certification of
Unemployment Insurance
Tax Deficiency against
RSC in the amount of
$789.57.
(10 years through
10/23/06)
North Carolina Clear (10 years through Clear (10 years through Clear (10 years through n/a
120
Schedule 6.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
(Xxxxx County) 10/19/06) 10/19/06) 10/19/06)
North Carolina Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Union County) 10/19/06) 10/19/06) 10/19/06)
North Carolina Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Wake County) 10/25/06) 10/25/06) 10/25/06)
North Dakota Clear (10 years through Clear (10 years through Clear (10 years through Clear (10 years through 10/25/06)
10/31/06) 10/31/06) 10/31/06)
North Dakota Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Cass County) 11/1/06) 11/1/06) 11/1/06)
Ohio (Southern n/a n/a n/a Clear (10 years through 10/25/06)
District)*
Ohio (Northern n/a n/a n/a Clear (10 years through 10/25/06)
District)*
Ohio (Xxxxxx Clear (10 years through Clear (10 years through Clear (10 years through n/a
County) 11/1/06) 11/1/06) 11/1/06)
Ohio (Franklin Clear (10 years through Clear (10 years through Clear (10 years through n/a
County) 10/26/06) 10/26/06) 10/26/06)
Ohio (Xxxxxxxx Clear (10 years through Clear (10 years through Clear (10 years through n/a
County) 11/1/06) 11/1/06) 11/1/06)
Ohio (Xxxxx Clear (10 years through Clear (10 years through Clear (10 years through n/a
County) 11/2/06) 11/2/06) 11/2/06)
Ohio (Medina Clear (10 years through Clear (10 years through Clear (10 years through n/a
121
Schedule 6.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
County) 10/30/06) 10/30/06) 10/30/06)
Ohio (Miami Clear (10 years through Clear (10 years through Clear (10 years through n/a
County) 10/27/06) 10/27/06) 10/27/06)
Ohio (Xxxxxxxxxx Clear (10 years through Clear (10 years through Clear (10 years through n/a
County) 10/31/06) 10/31/06) 10/31/06)
Ohio (Summit Clear (10 years through Clear (10 years through Clear (10 years through n/a
County) 10/26/06) 10/26/06) 10/26/06)
Ohio (Trumbull Clear (10 years through Clear (10 years through Clear (10 years through n/a
County) 11/2/06) 11/2/06) 11/2/06)
Oklahoma* Clear (10 years through n/a
10/26/06)
Oklahoma (Western n/a n/a n/a Clear (10 years through 10/25/06)
District)
Oklahoma (Eastern n/a n/a n/a Clear (10 years through 10/25/06)
District)
Oklahoma n/a n/a n/a Clear (10 years through 10/25/06)
(Northern
District)
Oklahoma (Xxxxxx Clear (10 years through Clear (10 years through Clear (5 years through n/a
County) 10/27/06) 10/27/06) 10/27/06)
Oklahoma Clear (10 years through Clear (10 years through Clear (5 years through n/a
(Cleveland 10/27/06) 10/27/06) 10/27/06)
122
Schedule 6.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
County)
Oklahoma Clear (10 years through Clear (10 years through Clear (5 years through n/a
(Comanche County) 10/27/06) 10/27/06) 10/27/06)
Oklahoma (Xxxxxxx Clear (10 years through Clear (10 years through Clear (5 years through n/a
County) 10/27/06) 10/27/06) 10/27/06)
Oklahoma (Xxx Clear (10 years through Clear (10 years through Clear (10 years through n/a
County) 10/30/06) 10/30/06) 10/30/06)
Oklahoma Clear (10 years through Clear (10 years through Clear (5 years through n/a
(Oklahoma County) 10/27/06) 10/27/06) 10/27/06)
Oklahoma (Xxxxx Clear (10 years through Clear (10 years through Clear (5 years through n/a
County) 10/30/06) 10/30/06) 10/30/06)
Oklahoma (Tulsa Clear (10 years through Clear (10 years through Clear (5 years through n/a
County) 10/27/06) 10/27/06) 10/27/06)
Oklahoma Clear (10 years through Clear (10 years through Clear (5 years through n/a
(Washington 10/27/06) 10/27/06) 10/27/06)
County)
Oregon* Clear (10 years through Clear (10 years through Clear (10 years through 10/25/06)
10/24/06) 10/24/06)
Oregon Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Clackamas 10/11/06) 10/11/06) 10/11/06)
County)
123
Schedule 6.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
Oregon (Coos Clear (10 years through Clear (10 years through Clear (10 years through n/a
County) 11/3/06) 11/3/06) 11/3/06)
Oregon (Deschutes Clear (10 years through Clear (10 years through Clear (10 years through n/a
County) 11/1/06) 11/1/06) 11/1/06)
Oregon (Xxxxxxx Clear (10 years through Clear (10 years through Clear (10 years through n/a
County) 11/1/06) 11/1/06) 11/1/06)
Oregon (Klamath n/a
County)*
Oregon (Lane Clear (10 years through Clear (10 years through Clear (10 years through n/a
County) 11/1/06) 11/1/06) 11/1/06)
Oregon (Xxxxxx Clear (10 years through Clear (10 years through Clear (10 years through n/a
County) 10/30/06) 10/30/06) 10/30/06)
Oregon (Umatilla Clear (10 years through Clear (10 years through 2 Judgment Liens - n/a
County) 10/26/06) 10/26/06)
11/01/01 File No.
2001-3990679
Sheriff's Certificate
of Levy against RSC
(one of multiple
defendants) in favor of
Skycrest Enterprises
Inc. for real property
located at #39 Elk
Ridge Subdivision in
Nov. 2001.
124
Schedule 6.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
08/22/02 File No.
2002-4180805
Sheriff's Certificate
of Levy against RSC
(one of multiple
defendants) in favor of
Skycrest Enterprises
Inc. for real property
located at #39 Elk
Ridge Subdivision in
Aug. 2002.
(10 years through
10/26/06)
Pennsylvania n/a n/a n/a Clear (10 years through 10/25/06)
(Western
District)
Pennsylvania n/a n/a n/a Clear (10 years through 10/25/06)
(Middle District)
Pennsylvania n/a n/a n/a Clear (10 years through 10/25/06)
(Eastern District)
Pennsylvania Clear (5 years through Clear (10 years through Clear (5 years through n/a
(Xxxxx County) 10/26/06) 10/26/06) 10/26/06)
Pennsylvania Clear (5 years through Clear (10 years through Clear (5 years through n/a
(Bucks County) 10/30/06) 10/30/06) 10/30/06)
Pennsylvania Clear (5 years through Clear (10 years through Clear (5 years through n/a
(Dauphin 10/26/06) 10/26/06) 10/26/06)
125
Schedule 6.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
County)
Pennsylvania Clear (5 years through Clear (10 years through Clear (5 years through n/a
(Lancaster 10/26/06) 10/26/06) 10/26/06)
County)
Pennsylvania Clear (5 years through Clear (10 years through Clear (5 years through n/a
(Washington 10/20/06) 10/20/06) 10/20/06)
County)
Pennsylvania Clear (5 years through Clear (10 years through Clear (5 years through n/a
(York County) 10/26/06) 10/26/06) 10/26/06)
South Carolina* 2 Bankruptcy
04/14/03 File No. 03- 80176-wb
Settlement of Claim in case In re:
Bargain Equipment Sales, et al.
(debtors), where RSC was defendant
in action by R. Xxxxxxxx Xxxx
(Trustee) for $156,300.00 in
preferential payments to RSC. RSC
reached settlement to pay trustee
$50,000.00 in full settlement of
claim.
05/02/05 File No. 05- 80123- jw
126
Schedule 6.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
Default Judgment entered against
RSC in case In re: Georgetown
Steel Company, LLC (debtor) where
RSC was defendant in action
brought by Xxxxx X. Xxxxxxx
(trustee for debtor's liquidating
trust). Default judgment against
RSC for $32,543.80. Lien ordered
avoided and Sale Proceeds
allocated to RSC, which were held
in trust, were recovered by the
trustee.
(10 years through 10/25/06)
South Carolina Clear (10 years through Clear (10 years through 1 Judgment Lien - n/a
(Horry County) 10/20/06) 10/20/06)
5/03/2004 File No:
2004-CP- 26- 2571
Judgment and Deficiency
Judgment against RSC
(f/k/a Prime Service
Inc. (one of multiple
defendants) on 5/3/04
in favor of Business
Carolina Inc. in the
amount of
$1,682,634.23.
(10 years through
10/20/06)
South Carolina Clear (10 years through Clear (10 years through Clear (10 years through n/a
127
Schedule 6.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
(Aiken County) 10/20/06) 10/20/06) 10/20/06)
South Carolina Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Beaufort County) 10/20/06) 10/20/06) 10/20/06)
South Carolina 4 State Tax Liens: Clear (10 years through Clear (10 years through n/a
(Charleston 10/20/06) 10/20/06)
County)
08/27/02 File No.
2002-11864-State of
SC Dept. of Revenue Tax
Lien in the total
amount of $8,038.38.
8/27/02 File No.
2002-11865-State of
SC Dept. of Revenue Tax
Lien in the total
amount of $2,031.40.
10/23/02 File No.
2002-14150 State of
SC Dept. of Revenue Tax
Lien in the total
amount of $10,832.10.
10/23/02 File No.
2002-14151 State of
SC Dept. of Revenue Tax
Lien in the total
amount of $2,590.42.
Clear (10 years through
10/20/06)
South Carolina Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Xxxxxxxx 10/23/06) 10/23/06) 10/23/06)
128
Schedule 6.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
County)
South Carolina n/a
(Greenville
County)*
South Carolina Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Greenwood 10/18/06) 10/18/06) 10/18/06)
County)
South Carolina 7 State Tax Liens: Clear (10 years through Clear (10 years through n/a
(Richland County) 10/20/06) 10/20/06)
08/08/01 File No.
2001263049 SC Dept. of
Revenue Tax Lien for
total of $1,953.50.
05/17/02 File No.
2002040401 SC Dept. of
Revenue Tax Lien for
total of $12,558.13.
07/11/02 File No.
2002056389 SC Dept. of
Revenue Tax Lien for
total of $6,660.32.
10/30/02 File No.
2002088586 SC Dept. of
Revenue Tax Lien for
total of $6,603.14.
129
Schedule 6.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
11/13/02 File No.
2002092820 SC Dept. of
Revenue Tax Lien for
total of $705.69.
12/12/02 File No.
2002101953 SC Dept. of
Revenue Tax Lien for
total of $5,710.51.
02/10/03 File No.
2003013961 SC Dept. of
Revenue Tax Lien for
total of $5,106.86.
(10 years through
10/18/06)
South Carolina Clear (10 years through Clear (10 years through Clear (10 years through n/a
(York County) 10/24/06) 10/24/06) 10/24/06)
South Dakota* Clear (10 years through 1 Bankruptcy
10/26/06)
07/14/03 File No. 03-01032
Default Judgment entered against
RSC on or around 09/04/03 in case
In re: Tri-State Ethanol Company
LLC (debtor) where RSC was
defendant in action brought by
North Central Construction
130
Schedule 6.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
Inc. No dollar amount stated
in default judgment.
(10 years through 10/25/06)
South Dakota Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Minnehaha 10/30/06) 10/30/06) 10/30/06)
County)
Tennessee n/a n/a n/a Clear (10 years through 10/25/06)
(Western
District)
Tennessee n/a n/a n/a Clear (10 years through 10/25/06)
(Eastern
District)
Tennessee n/a
(Xxxxxxx County)*
Tennessee Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Cumberland 11/1/06) 11/1/06) 11/1/06)
County)
Tennessee Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Davidson County) 10/30/06) 10/30/06) 10/30/06)
Tennessee Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Xxxxxxx County) 10/31/06) 10/31/06) 10/31/06)
Tennessee Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Xxxxxxxx 11/1/06) 11/1/06) 11/1/06)
131
Schedule 6.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
County)
Tennessee (Xxxx Clear (10 years through Clear (10 years through Clear (10 years through n/a
County) 10/31/06) 10/31/06) 10/31/06)
Tennessee Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Madison County) 11/1/06) 11/1/06) 11/1/06)
Tennessee Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Xxxxxxxxxx 11/3/06) 11/3/06) 11/3/06)
County)
Tennessee (Xxxxxx Clear (10 years through Clear (10 years through Clear (10 years through n/a
County) 11/3/06) 11/3/06) 11/3/06)
Tennessee Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Xxxxxxxxxx 11/3/06) 11/3/06) 11/3/06)
County)
Tennessee (Shelby Clear (10 years through Clear (10 years through Clear (10 years through n/a
County) 11/1/06) 11/1/06) 11/1/06)
Tennessee Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Washington 11/1/06) 11/1/06) 11/1/06)
County)
Tennessee Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Xxxxxxxxxx 11/2/06) 11/2/06) 11/2/06)
County)
Tennessee Clear (10 years through Clear (10 years through Clear (10 years through n/a
132
Schedule 6.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
(Xxxxxx County) 11/3/06) 11/3/06) 11/3/06)
Texas* Clear (10 years through
10/30/06)
Texas (Western n/a n/a n/a Clear (10 years through 10/25/06)
District)
Texas (Southern n/a n/a n/a Clear (10 years through 10/25/06)
District)
Texas (Eastern n/a n/a n/a Clear (10 years through 10/25/06)
District)
Texas (Northern n/a n/a n/a Clear (10 years through 10/25/06)
District)
Texas (Angelina Clear (10 years through Clear (10 years through Clear (10 years through n/a
County) 10/31/06) 10/31/06) 10/31/06)
Texas (Xxxx Clear (10 years through Clear (10 years through Clear (10 years through n/a
County) 10/30/06) 10/30/06) 10/30/06)
Texas (Bexar Clear (10 years through Clear (10 years through Clear (10 years through n/a
County) 10/25/06) 10/25/06) 10/25/06)
Texas (Bowie Clear (10 years through Clear (10 years through 2 Judgment Liens - n/a
County) 10/31/06) 10/31/06)
12/10/03 File No. 20305
Privileged Lien on RSC
real property for the
City of Texarkana for
services
133
Schedule 6.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
on RSC lots for the
cutting and cleaning of
weeds in the amount of
$108.40.
07/01/04 File No. 10486
Privileged Lien on RSC
real property for the
City of Texarkana for
services on RSC lots
for the cutting and
cleaning of weeds in
the amount of $54.20.
(10 years through
10/31/06)
Texas (Brazoria Clear (10 years through Clear (10 years through Clear (10 years through n/a
County) 10/30/06) 10/30/06) 10/30/06)
Texas (Brazos Clear (10 years through Clear (10 years through Clear (10 years through n/a
County) 10/30/06) 10/30/06) 10/30/06)
Texas (Xxxxxxx Clear (10 years through Clear (10 years through Clear (10 years through n/a
County) 10/20/06) 10/20/06) 10/20/06)
Texas (Xxxxxxx Xxxxx (10 years through Clear (10 years through Clear (10 years through n/a
County) 10/30/06) 10/30/06) 10/30/06)
Texas (Xxxxxxxx Clear (10 years through Clear (10 years through Clear (10 years through n/a
County) 10/31/06) 10/31/06) 10/31/06)
Texas (Collin Clear (10 years through Clear (10 years through Clear (10 years through n/a
10/30/06) 10/30/06) 10/30/06)
134
Schedule 6.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
County)
Texas (Dallas Clear (10 years through Clear (10 years through Clear (10 years through n/a
County) 10/26/06) 10/26/06) 10/26/06)
Texas (Denton Clear (10 years through Clear (10 years through Clear (10 years through n/a
County) 10/30/06) 10/30/06) 10/30/06)
Texas (Xxxxx Clear (10 years through Clear (10 years through Clear (10 years through n/a
County) 11/2/06) 11/2/06) 11/2/06)
Texas (El Paso Clear (10 years through Clear (10 years through Clear (10 years through n/a
County) 10/30/06) 10/30/06) 10/30/06)
Texas (Fort Bend Clear (10 years through Clear (10 years through Clear (10 years through n/a
County) 10/30/06) 10/30/06) 10/30/06)
Texas (Galveston Clear (10 years through Clear (10 years through Clear (10 years through n/a
County) 10/9/06) 10/9/06) 10/9/06)
Texas(Xxxxx Clear (10 years through Clear (10 years through Clear (10 years through n/a
County) 10/20/06) 10/20/06) 10/20/06)
Texas (Xxxxxx Clear (10 years through Clear (10 years through Clear (10 years through n/a
County) 10/27/06) 10/27/06) 10/27/06)
Texas (Xxxx Clear (10 years through Clear (10 years through Clear (10 years through n/a
County) 11/1/06) 11/1/06) 11/1/06)
Texas (Hidalgo Clear (10 years through Clear (10 years through Clear (10 years through n/a
County) 10/26/06) 10/26/06) 10/26/06)
135
Schedule 6.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
Texas (Jefferson Clear (10 years through Clear (10 years through Clear (10 years through n/a
County) 10/30/06) 10/30/06) 10/30/06)
Texas (Xxxxxxx Clear (10 years through Clear (10 years through Clear (10 years through n/a
County) 10/30/06) 10/30/06) 10/30/06)
Texas (Xxxx Clear (10 years through Clear (10 years through Clear (10 years through n/a
County) 11/2/06) 11/2/06) 11/2/06)
Texas (Lubbock Clear (10 years through Clear (10 years through Clear (10 years through n/a
County) 10/24/06) 10/24/06) 10/24/06)
Texas (Matagorda Clear (10 years through Clear (10 years through Clear (10 years through n/a
County) 10/31/06) 10/31/06) 10/31/06)
Texas (Mclennan Clear (10 years through Clear (10 years through Clear (10 years through n/a
County) 11/2/06) 11/2/06) 11/2/06)
Texas (Xxxxxxxxxx Clear (10 years through Clear (10 years through Clear (10 years through n/a
County) 10/20/06) 10/20/06) 10/20/06)
Texas (Nueces Clear (10 years through Clear (10 years through Clear (10 years through n/a
County) 10/30/06) 10/30/06) 10/30/06)
Texas(Orange Clear (10 years through Clear (10 years through Clear (10 years through n/a
County) 11/1/06) 11/1/06) 11/1/06)
Texas (Xxxxxx Clear (10 years through Clear (10 years through Clear (10 years through n/a
County) 10/30/06) 10/30/06) 10/30/06)
136
Schedule 6.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
Texas (Potter Clear (10 years through Clear (10 years through Clear (10 years through n/a
County) 10/30/06) 10/30/06) 10/30/06)
Texas (Tarrant Clear (10 years through Clear (10 years through Clear (10 years through n/a
County) 10/20/06) 10/20/06) 10/20/06)
Texas (Xxxxxx Clear (10 years through Clear (10 years through Clear (10 years through n/a
County) 11/1/06) 11/1/06) 11/1/06)
Texas (Xxx Xxxxx Clear (10 years through Clear (10 years through Clear (10 years through n/a
County) 11/1/06) 11/1/06) 11/1/06)
Texas(Xxxxxx Clear (10 years through Clear (10 years through Clear (10 years through n/a
County) 10/30/06) 10/30/06) 10/30/06)
Texas (Xxxxxx Clear (10 years through Clear (10 years through Clear (10 years through n/a
County) 10/20/06) 10/20/06) 10/20/06)
Texas (Washington Clear (10 years through Clear (10 years through Clear (10 years through n/a
County) 11/1/06) 11/1/06) 11/1/06)
Texas (Wichita Clear (10 years through Clear (10 years through Clear (10 years through n/a
County) 10/24/06) 10/24/06) 10/24/06)
Texas (Xxxxxxxxxx Clear (10 years through Clear (10 years through Clear (10 years through n/a
County) 10/30/06) 10/30/06) 10/30/06)
Utah* Clear (10 years through 10/25/06)
Utah (Salt Lake Clear (10 years through Clear (10 years through Clear (8 years through n/a
137
Schedule 6.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
County) 10/13/06) 10/13/06) 10/13/06)
Virginia* Clear (10 years through
10/27/06)
Virginia (Western n/a n/a n/a Clear (10 years through 10/25/06)
District)
Virginia (Eastern n/a n/a n/a Clear (10 years through 10/25/06)
District
Virginia Clear (20 years through Clear (10 years through Clear (20 years through n/a
(Charlottesville 11/1/06) 11/1/06) 11/1/06)
City)
Virginia (Bedford Clear (20 years through Clear (10 years through Clear (20 years through n/a
County) 10/27/06) 10/27/06) 10/27/06)
Virginia Clear (20 years through Clear (10 years through Clear (20 years through n/a
(Botetourt 10/27/06) 10/27/06) 10/27/06)
County)
Virginia Clear (20 years through Clear (10 years through Clear (20 years through n/a
(Chesapeake City) 9/29/06) 9/29/06) 9/29/06)
Virginia Clear (20 years through Clear (10 years through Clear (20 years through n/a
(Fauquier County) 11/5/06) 11/5/06) 11/5/06)
Virginia Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Franklin County) 10/20/06) 10/20/06) 10/20/06)
138
Schedule 6.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
Virginia Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Fredericksburg 10/24/06) 10/24/06) 10/24/06)
City)
Virginia (Henrico Clear (20 years through Clear (10 years through 1 Judgment Lien - n/a
County) 10/30/06) 10/30/06)
07/07/05 File No. 130
Pg 0987
Judgment against RSC in
favor of Media Gen
Operation Inc. d/b/a
Richmond Times Dispatch
in the amount of
$376.24 on 5/25/05
20 years through
10/30/06
Virginia Clear (20 years through Clear (10 years through Clear (20 years through n/a
(Hopewell 10/27/06) 10/27/06) 10/27/06)
City)
Virginia Clear (20 years through Clear (10 years through Clear (20 years through n/a
(Montgomery 10/30/06) 10/30/06) 10/30/06)
County)
Virginia (Loudoun Clear (20 years through Clear (10 years through Clear (20 years through n/a
County) 10/30/06) 10/30/06) 10/30/06)
Virginia Clear (20 years through Clear (10 years through Clear (20 years through n/a
(Lynchburg 11/2/06) 11/2/06) 11/2/06)
City)
Virginia Clear (20 years through Clear (10 years through Clear (20 years through n/a
139
Schedule 6.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
(Hampton City) 10/30/06) 10/30/06) 10/30/06)
Virginia (Prince Clear (20 years through Clear (10 years through Clear (20 years through n/a
William 10/30/06) 10/30/06) 10/30/06)
County)
Virginia Clear (20 years through Clear (10 years through Clear (20 years through n/a
(Richmond 10/30/06) 10/30/06) 10/30/06)
City)
Virginia Clear (20 years through Clear (10 years through Clear (20 years through n/a
(Rockingham 11/1/06) 11/1/06) 11/1/06)
County)
Virginia (Salem Clear (20 years through Clear (10 years through Clear (20 years through n/a
City) 10/25/06) 10/25/06) 10/25/06)
Virginia Clear (20 years through Clear (10 years through Clear (20 years through n/a
(Virginia Beach 10/30/06) 10/30/06) 10/30/06)
City)
Virginia Clear (20 years through Clear (10 years through Clear (20 years through n/a
(Winchester 10/28/06) 10/28/06) 10/28/06)
City)
Washington* Clear (10 years through
10/25/06)
Washington n/a n/a n/a Clear (10 years through 10/25/06)
(Western
District)
Washington n/a n/a n/a Clear (10 years through 10/25/06)
(Eastern
District)
Washington Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Benton County) 10/30/06) 10/30/06) 10/30/06)
140
Schedule 6.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
Washington Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Chelan 10/30/06) 10/30/06) 10/30/06)
County)
Washington (Clark Clear (10 years through Clear (10 years through Clear (10 years through n/a
County) 10/30/06) 10/30/06) 10/30/06)
Washington (Grant Clear (10 years through Clear (10 years through Clear (10 years through n/a
County) 11/1/06) 11/1/06) 11/1/06)
Washington (King Clear (10 years through Clear (10 years through Clear (10 years through n/a
County) 10/8/06) 10/8/06) 10/8/06)
Washington Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Kittitas County) 10/16/06) 10/16/06) 10/16/06)
Washington Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Pierce County) 10/9/06) 10/9/06) 10/9/06)
Washington Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Skagit County) 10/19/06) 10/19/06) 10/19/06)
Washington Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Snohomish 10/25/06) 10/25/06) 10/25/06)
County)
West Virginia n/a n/a n/a Clear (10 years through 10/25/06)
(Southern
District)
West Virginia Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Greenbrier 11/1/06) 11/1/06) 11/1/06)
141
Schedule 6.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
County)
West Virginia Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Mercer 11/1/06) 11/1/06) 11/1/06)
County)
West Virginia Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Raleigh 11/1/06) 11/1/06) 11/1/06)
County)
Wisconsin* Clear (10 years through
10/30/06)
Wisconsin n/a n/a n/a Clear (10 years through 10/25/06)
(Western
District)
Wisconsin n/a n/a n/a Clear (10 years through 10/25/06)
(Eastern
District)
Wisconsin (Brown Clear (10 years through Clear (10 years through Clear (10 years through n/a
County) 10/25/06) 10/25/06) 10/25/06)
Wisconsin (Dane Clear (10 years through Clear (10 years through Clear (10 years through n/a
County) 10/27/06) 10/27/06) 10/27/06)
Wisconsin (La Clear (10 years through Clear (10 years through Clear (10 years through n/a
Crosse County) 11/1/06) 11/1/06) 11/1/06)
Wisconsin Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Marathon County) 10/30/06) 10/30/06) 10/30/06)
Wisconsin n/a
(Oneida)*
142
Schedule 6.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
Wisconsin Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Outagamie 10/30/06) 10/30/06) 10/30/06)
County)
Wisconsin Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Waukesha 10/30/06) 10/30/06) 10/30/06)
County)
Wisconsin Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Winnebago 11/2/06) 11/2/06) 11/2/06)
County)
Wyoming* Clear (10 years through Clear (10 years through 10/25/06)
10/24/06)
Wyoming (Laramie Clear (10 years through Clear (10 years through Clear (10 years through n/a
County) 10/30/06) 10/30/06) 10/30/06)
Wyoming (Natrona Clear (10 years through Clear (10 years through Clear (10 years through n/a
County) 10/30/06) 10/30/06) 10/30/06)
Wyoming Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Sheridan County) 11/2/06) 11/2/06) 11/2/06)
143
Schedule 6.1(g)
to Credit Agreement
III. List of all UCC and other filed security interests in the assets of the
Canadian Subsidiary:
REPORT/ INDEX DATE UCC DATE FILED/
DEBTOR LOCATION UCC - SECURED PARTY FILE NUMBER UCC COLLATERAL
-------------- ------------------ ------------------------ --------------- -----------------------------------------------------
Rental Service 10/24/2006/ Ikon Office Solutions, 06/09/2004 - Canon digital copier.
Corporation of Edmonton, Inc. 04060935246
Canada Ltd. Alberta, Canada
Rental Service 10/24/2006/ Ikon Office Solutions, 06/09/2004 - Canon digital copier.
Corporation of Edmonton, Inc. 04060935261
Canada Ltd. Alberta, Canada
Rental Service 10/24/2006/ Bobcat of Edmonton 06/28/2006 - Bobcat 863G (Motor Vehicle) for $19,051.06.
Corporation of Edmonton, 06062822454
Canada Ltd. Alberta, Canada
Rental Service 10/24/2006/ Bobcat of Edmonton 06/28/2006 - Bobcat 863G (Motor Vehicle) for $25,707.52.
Corporation of Edmonton, 06062828949
Canada Ltd. Alberta, Canada
Rental Service 10/24/2006/ De Lage Landen Financial 07/18/2006 - Commission - Residualized; Telecom.
Corporation of Edmonton, Services Canada (CAD) 06071810532
Canada Ltd. Alberta, Canada
Rental Service 10/24/2006/ Bobcat of Edmonton 09/22/2006 - Bobcat 863 (Motor Vehicle) for $7,371.06.
Corporation of Edmonton, 06092231197
Canada Ltd. Alberta, Canada
144
Schedule 6.1(g)
to Credit Agreement
REPORT/ INDEX DATE UCC DATE FILED/
DEBTOR LOCATION UCC - SECURED PARTY FILE NUMBER UCC COLLATERAL
-------------- ------------------ ------------------------ --------------- -----------------------------------------------------
Rental Service 10/24/2006/ Bobcat of Edmonton 09/22/2006 - Bobcat 863 (Motor Vehicle) for $21,277.07.
Corporation of Edmonton, 06092231221
Canada Ltd. Alberta, Canada
Rental Service 10/24/2006/ IOS Financial Services 10/19/2006 - All goods which are duplication devices, including
Corporation of Edmonton, 06101900998 all parts, accessories, attachments, and all proceeds
Canada Ltd. Alberta, Canada which are accounts, goods, chattel paper, securities,
documents of title, instruments, money, intangibles,
crops or insurance proceeds.
145
Schedule 8.3(j)
to Credit Agreement
Schedule 8.3(j): Permitted Liens
Capital Lease Liens
A. Liens related to the Motor Vehicle Open Ended Operating Lease No. 0988
dated as of April 24, 2000 between DL Peterson Trust and RSC
($122,600,00 aggregate principal amount as of November 24, 2006).
Purchase Money Obligation Liens
A. Liens related to purchase money obligations in favor of Ingersoll Rand
($10,832,727.10 aggregate principal amount as of November 24, 2006).
B. Liens related to purchase money obligations in favor of Textron
($55,465.15 aggregate principal amount as of November 24, 2006).
C. Liens related to purchase money obligations in favor of John Deere
($6,464,857.02 aggregate principal amount as of November 24, 2006).
D. Liens related to purchase money obligations in favor of JCB Inc.
($980,321.79 aggregate principal amount as of November 24, 2006).
E. Liens related to purchase money obligations in favor of Allmand
Brothers, Inc. ($530,156.62 aggregate principal amount as of November
24, 2006).
F. Liens related to purchase money obligations in favor of Thompson
Tractor ($2,196.40 aggregate principal amount as of November 24,
2006).
G. Liens related to purchase money obligations in favor of Ground Hog -
Stoval Co. ($846.76 aggregate principal amount as of November 24,
2006).
Judgment Liens
A. Liens arising from judgments of less than $50,000 on an individual
basis in respect of claims arising in the ordinary course of the
business of Holdings and its Subsidiaries.
146
Schedule 8.4(a)
to Credit Agreement
Schedule 8.4(a): Permitted Guarantee Obligations
Capital Lease Obligations
A. Guarantee Obligations in respect of the Motor Vehicle Open Ended
Operating Lease No. 0988 dated as of April 24, 2000 between DL
Peterson Trust and RSC ($122,600,000 aggregate principal amount as of
November 24, 2006).
147
Schedule 8.6(j)
to Credit Agreement
Schedule 8.6(j): Permitted Asset Sales
Real Property Dispositions
STATE CITY ADDRESS ZIP CODE
-------------- ------------- ------------------------------- --------
1. Florida Ft. Pierce 3019 S. US Highway 1 34982
2. Florida Pensacola 5580 N. Pensacola Boulevard 32505
3. Iowa Muscatine 1303 Washington Street 52761
4. North Carolina Winston-Salem 3800 N. Patterson Avenue 27105
5. Texas Wichita Falls 1113 Sheppard Access Road Coded 76306
148
Schedule 8.8(c)
to Credit Agreement
Schedule 8.8(c): Permitted Investments
None.
149
Schedule 8.10(v)
to Credit Agreement
Schedule 8.10(v): Permitted Transactions with Affiliates
(i)
RSC TRADE PAYABLES TO ATLAS COPCO COMPANIES
RSC:
Vendor Accounts
VENDOR # VENDOR NAME TOTAL (IN USD)
-------- ------------------------------------------ --------------
725116 ACF/AC Compressors Inc (v# 506575) $16,653,171.58
380440 ACF/AC Construction Tools Inc. (v# 527066) $ 1,588,522.84
527006 AC Construction Tools $ 38,804.00
2052 AC Tools & Assembly $ 1,340.52
Banker's Acceptances
1. $139,664,552.47 in Banker's Acceptances outstanding as of October 31,
2006 and through April 16,2007.
(ii)
RSC CANADA:
Vendor Accounts
VENDOR # VENDOR NAME TOTAL (IN USD)
-------- ------------------------------------------ --------------
6312 ACF/AC Compressors Inc (v# 6221) $ 848,176.40
Various supporting functions, such as tax preparation and planning, in house
legal, general consulting, corporate record keeping, some insurance lines (e.g.
officers and directors E&O), audit, banking, and general support in the
development of business strategy, have been provided to various business
operations of the sellers including the Recapitalized Business on a shared
basis, and the internal charges imposed on the Recapitalized Business from time
to time may, or may not, have been consistent in all cases, or in any case, with
typical market costs for the same or similar functions.
NOTE:
ACF = Atlas Copco Customer Finance
150
Schedule 8.11(b)
to Credit Agreement
Schedule 8.11(b): Sale and Leaseback Real Properties
STATE CITY ADDRESS ZIP CODE
-------------- ------------- ------------------------------- --------
1. Florida Ft. Pierce 3019 S. US Highway 1 34982
2 Florida Pensacola 5580 N. Pensacola Boulevard 32505
3. Iowa Muscatine 1303 Washington Street 52761
4. North Carolina Winston-Salem 3800 N. Patterson Avenue 27105
5. Texas Wichita Falls 1113 Sheppard Access Road Coded 76306
151
