FIRST AMENDMENT TO INTERCREDITOR AGREEMENT
Exhibit 4.2
EXECUTION COPY
FIRST AMENDMENT TO INTERCREDITOR AGREEMENT
FIRST AMENDMENT TO INTERCREDITOR AGREEMENT (this “First Amendment”), dated as of July
1, 2009, by and among RSC HOLDINGS II, LLC, a Delaware limited liability company, RSC HOLDINGS III,
LLC, a Delaware limited liability company (the “Parent Borrower”), RSC EQUIPMENT RENTAL,
INC., an Arizona corporation (“RSC”), each other Grantor (as defined below) from time to
time party hereto and DEUTSCHE BANK AG, NEW YORK BRANCH (“DBNY”), in its capacity as U.S.
collateral agent under the First-Lien Loan Documents (together with its successors and assigns in
such capacity from time to time, the “U.S. First-Lien Collateral Agent”). Unless otherwise
indicated, all capitalized terms used herein and not otherwise defined shall have the respective
meanings provided such terms in the Intercreditor Agreement referred to below.
WITNESSETH:
WHEREAS, Holdings, the Parent Borrower, RSC, DBNY, in its capacity as U.S. First-Lien
Collateral Agent, Deutsche Bank AG, Canada Branch (“DBCA”), in its capacity as Canadian
collateral agent under the First-Lien Loan Documents, DBNY, as Second-Lien Collateral Agent, and
each other Grantor from time to time party thereto are parties to an Intercreditor Agreement, dated
as of November 27, 2006 (as amended, restated, modified and/or supplemented to, but not including,
the date hereof, the “Intercreditor Agreement”);
WHEREAS, Holdings, the Parent Borrower, RSC, RSC Equipment Rental of Canada Ltd. (“RSC
Canada”), each other entity that becomes a borrower under the First-Lien Credit Agreement (as
defined below) pursuant to Section 7.9 thereof (together with the Parent Borrower, RSC and RSC
Canada, the “First-Lien Borrowers”), the several banks and other financial institutions
from time to time party thereto (the “Lenders”), DBNY, as U.S. administrative agent, and
DBCA, as Canadian administrative agent, are parties to that certain Credit Agreement, dated as of
November 27, 2006 (the “First-Lien Credit Agreement”);
WHEREAS, Section 8.3 of the Intercreditor Agreement provides that the U.S. First-Lien
Collateral Agent (at the direction of the Required First-Lien Creditors) may, without the written
consent of any other Creditor, agree to modifications of the Intercreditor Agreement for the
purpose of securing additional extensions of credit (including pursuant to any Refinancing or
extension of the First-Lien Credit Agreement) and adding new creditors as First-Lien Creditors and
Creditors thereunder, so long as such extensions (and resulting additions) do not otherwise give
rise to a violation of the express terms of the First-Lien Credit Agreement or the Second-Lien
Credit Agreement;
WHEREAS, the First-Lien Borrowers, the Required First-Lien Creditors, DBNY as U.S.
administrative agent, and DBCA as Canadian administrative agent, have entered into the First
Amendment to Credit Agreement, dated as of June 24, 2009 (the “First-Lien Credit Agreement
Amendment”), which amended and modified certain provisions of the First-Lien Credit Agreement
to permit the issuance of First-Lien Last Out Notes (as defined below) by the Parent Borrower and
RSC in an aggregate principal amount of up to $700,000,000, the Net Cash
Proceeds of which will be applied to refinance outstanding Indebtedness under the First-Lien
Credit Agreement; and
WHEREAS, the parties hereto wish to enter into this First Amendment to modify the
Intercreditor Agreement as provided herein for the purpose of securing the additional extensions of
credit made through any such issuance of First-Lien Last Out Notes and adding holders of First-Lien
Last Out Notes and related obligations, and any agent of or trustee for any such holders, as
First-Lien Creditors and as Creditors; and pursuant to the First-Lien Credit Agreement Amendment,
the Required First-Lien Creditors have consented to and directed the execution and delivery of this
First Amendment on their behalf by the U.S. First-Lien Collateral Agent.
NOW, THEREFORE, it is agreed:
I. Amendments to Intercreditor Agreement.
1. Section 1.1 of the Intercreditor Agreement is hereby amended by inserting the following new
definitions in the appropriate alphabetical order:
“Discharge of Hedging Obligations” means, except to the extent otherwise
provided in Section 5.6 hereof, (a) payment in full in cash of all Hedging Obligations that
are due and payable or otherwise accrued and owing at such time and (b) termination
(without any prior demand for payment thereunder having been made or, if made, with such
demand having been fully reimbursed in cash) or cash collateralization (in an amount and
manner, and on terms, satisfactory to each First-Lien Collateral Agent) of all Hedging
Obligations.
“Discharge of First-Lien Last Out Note Obligations” means, except to the extent
otherwise provided in Section 5.6 hereof, payment in full in cash of all First-Lien Last Out
Note Obligations that are due and payable or otherwise accrued and owing at such time.
“Discharge of First-Lien Lender Obligations” means, except to the extent
otherwise provided in Section 5.6 hereof (and subject to Section 6.5 hereof), (a) payment in
full in cash of the principal of and interest (including interest accruing on or after the
commencement of any Insolvency or Liquidation Proceeding at the rate provided for in the
respective First-Lien Loan Documents (other than the First-Lien Last Out Note Documents),
whether or not such interest would be allowed in such Insolvency or Liquidation Proceeding)
and premium, if any, on all Indebtedness outstanding under the First-Lien Loan Documents
(other than the First-Lien Last Out Note Documents) and owing to the First-Lien Lenders, (b)
payment in full in cash of all other First-Lien Obligations (other than Hedging Obligations
and the First-Lien Last Out Note Obligations) to the First-Lien Lenders that are due and
payable or otherwise accrued and owing at or prior to the time such principal, interest and
premium are paid, (c) termination (without any prior demand for payment thereunder having
been made or, if made, with such demand having been fully reimbursed in cash) or cash
collateralization (in an amount and manner, and on terms, satisfactory to each First-Lien
Collateral Agent)
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of all letters of credit issued by any First-Lien Lender under the First-Lien Credit
Agreement and (d) termination of all other commitments of the First-Lien Lenders under the
First-Lien Credit Agreement.
“First-Lien Last Out Note Indenture” means each indenture governing the
First-Lien Last Out Notes, among the Parent Borrower and RSC, as co-issuers, the guarantors
from time to time party thereto and the trustee thereunder, as the same may be amended,
supplemented, waived or otherwise modified from time to time in accordance with the terms
thereof and (prior to the Discharge of First-Lien Lender Obligations) subsection 8.13 of the
First-Lien Credit Agreement.
“First-Lien Last Out Note Documents” means each First-Lien Last Out Note
Indenture, the First-Lien Last Out Notes, the First-Lien Last Out Security Documents and
each other document or agreement relating to the issuance of the First-Lien Last Out Notes,
as the same may be amended, supplemented, waived or otherwise modified from time to time in
accordance with the terms thereof and (prior to the Discharge of First-Lien Lender
Obligations) subsection 8.13 of the First-Lien Credit Agreement.
“First-Lien Last Out Notes” means any senior secured notes of the Parent
Borrower and RSC issued pursuant to any First-Lien Last Out Indenture, as the same may be
exchanged for substantially similar senior secured notes that have been registered under the
Securities Act or that otherwise do not contain a restrictive legend, 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 (prior to the Discharge of
First-Lien Lender Obligations) subsection 8.13 of the First-Lien Credit Agreement.
“First-Lien Last Out Noteholders” means the “Holders” under, and as defined in,
each First-Lien Last Out Note Indenture.
“First-Lien Last Out Note Obligations” means all Obligations outstanding under
the First-Lien Last Out Note Documents.
“First-Lien Last Out Security Documents” means the collective reference to each
agreement, document, mortgage or instrument pursuant to which a Lien is granted (or
purported to be granted) securing any First-Lien Last Out Note Obligations or under which
rights or remedies with respect to such Liens are governed, as the same may be amended,
supplemented, restated or otherwise modified from time to time in accordance with the terms
hereof and thereof, provided that the term “First-Lien Last Out Security
Documents” shall not include the Canadian Security Documents (as such term is defined in
the First-Lien Credit Agreement).
2. The definition of “First-Lien Creditors” appearing in Section 1.1 of the
Intercreditor Agreement is hereby is amended and restated in its entirety as follows:
“First-Lien Creditors” means, at any relevant time, the holders of First-Lien
Obligations at such time, including, without limitation, the First-Lien Lenders, the Hedging
Creditors, each First-Lien Collateral Agent, each First-Lien Administrative
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Agent, the other agents and arrangers under the First-Lien Credit Agreement, the
First-Lien Last Out Noteholders, each collateral agent under the First-Lien Last Out Note
Documents (including the U.S. First-Lien Collateral Agent in such capacity), each trustee
under each First-Lien Last Out Note Indenture, and any other holders of, or obligees in
respect of, any First-Lien Last Out Note Obligations outstanding at any time.
3. The definition of “First-Lien Loan Documents” appearing in Section 1.1 of the
Intercreditor Agreement is hereby amended and restated in its entirety as follows:
“First-Lien Loan Documents” means the First-Lien Credit Agreement, the other
Loan Documents (as defined in the First-Lien Credit Agreement), the First-Lien Last Out Note
Documents and each of the other agreements, documents and instruments providing for or
evidencing any other First-Lien Obligation and any other document or instrument executed or
delivered at any time in connection with any First-Lien Obligation (including any
intercreditor or joinder agreement among holders of First-Lien Obligations but excluding
Hedging Agreements), to the extent such are effective at the relevant time, as each may be
amended, modified, restated, supplemented, replaced and/or Refinanced from time to time.
4. The definition of “First-Lien Security Documents” appearing in Section 1.1 of the
Intercreditor Agreement is hereby amended and restated in its entirety as follows:
“First-Lien Security Documents” means the Security Documents (as defined in the
First-Lien Credit Agreement) and any other agreement, document or instrument pursuant to
which a Lien is granted (or purported to be granted) securing any First-Lien Obligations or
under which rights or remedies with respect to such Liens are governed (including the
First-Lien Last Out Security Documents), as the same may be amended, supplemented, restated,
modified and/or Refinanced from time to time, provided that the term “First-Lien
Security Documents” shall not include the Canadian Security Documents (as such term is
defined in the First-Lien Credit Agreement).
5. The definition of “Required First-Lien Creditors” appearing in Section 1.1 of the
Intercreditor Agreement is hereby is hereby amended and restated in its entirety as follows:
“Required First-Lien Creditors” means (i) at all times prior to the occurrence
of the Discharge of First-Lien Lender Obligations, the First-Lien Required Lenders (or, to
the extent required by the First-Lien Credit Agreement (other than any First-Lien Last Out
Note Document), each of the First-Lien Lenders), (ii) at all times after the occurrence of
the Discharge of First-Lien Lender Obligations but prior to the occurrence of the Discharge
of Hedging Obligations, the holders of at least the majority of the then outstanding Hedging
Obligations (determined by the U.S. First-Lien Collateral Agent in such reasonable manner as
is acceptable to it) and (iii) at all times after the occurrence of both the Discharge of
First-Lien Lender Obligations and the Discharge of Hedging Obligations but prior to the
occurrence of the Discharge of First-Lien Last Out Note Obligations, the holders of at least
the majority of the then outstanding First-Lien Last Out Notes (determined by the U.S.
First-Lien Collateral Agent or any other collateral
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agent for the First-Lien Last Out Noteholders in such reasonable manner as is
acceptable to it).”
II. Miscellaneous Provisions.
1. This First Amendment is limited as specified and shall not constitute a modification,
acceptance or waiver of any other provision of the Intercreditor Agreement.
2. This First Amendment may be executed in any number of counterparts and by the different
parties hereto on separate counterparts, each of which counterparts when executed and delivered
shall be an original, but all of which shall together constitute one and the same instrument.
3. THIS FIRST AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK, WITHOUT REGARD TO
CONFLICTS OF LAW PRINCIPLES THAT WOULD REQUIRE THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.
4. The First Amendment shall become effective on the date (the “First Amendment Effective
Date”) when each Holdings, the Parent Borrower, RSC and the U.S. First-Lien Collateral Agent
shall have signed a counterpart hereof (whether the same or different counterparts) and shall have
delivered (including by way of pdf, facsimile or other electronic transmission) the same to White &
Case LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX 00000, Attention: May Yip (facsimile number:
000-000-0000 / email address: xxxx@xxxxxxxxx.xxx).
5. From and after the First Amendment Effective Date, all references in the Intercreditor
Agreement to the Intercreditor Agreement shall be deemed to be references to the Intercreditor
Agreement, as modified hereby on the First Amendment Effective Date.
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IN WITNESS WHEREOF, the parties hereto have caused their duly authorized officers to execute
and deliver this First Amendment as of the date first above written.
| First-Lien Collateral Agent DEUTSCHE BANK AG, NEW YORK BRANCH, in its capacity as U.S. First-Lien Collateral Agent |
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| By: | /s/ Xxxxxxx Xxxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxxx | |||
| Title: | Vice President | |||
| By: | /s/ Xxxx Xxxxxxxxx | |||
| Name: | Xxxx Xxxxxxxxx | |||
| Title: | Vice President | |||
Signature page to RSC Amendment to Intercreditor Agreement
| RSC HOLDINGS II, LLC |
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| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Senior Vice President, General Counsel and Corporate Secretary | |||
| RSC HOLDINGS III, LLC |
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| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Senior Vice President, General Counsel and Corporate Secretary | |||
| RSC EQUIPMENT RENTAL, INC. |
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| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Senior Vice President, General Counsel and Corporate Secretary | |||
Signature page to RSC Amendment to Intercreditor Agreement
