Exhibit 4.3
EXECUTION VERSION
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SECOND-LIEN TERM LOAN
CREDIT AGREEMENT
among
RSC HOLDINGS II, LLC,
RSC HOLDINGS III, LLC,
RENTAL SERVICE CORPORATION,
EACH OTHER BORROWER PARTY HERETO,
VARIOUS LENDERS,
DEUTSCHE BANK AG, NEW YORK BRANCH,
as Administrative Agent and Collateral Agent,
CITICORP NORTH AMERICA, INC.,
as Syndication Agent,
and
GE CAPITAL MARKETS, INC.,
as Senior Managing Agent
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
and
GENERAL ELECTRIC CAPITAL CORPORATION,
As Documentation Agent
Table of Contents
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Section 1. Definitions .................................................. 2
1.1 Defined Terms .................................................. 2
1.2 Other Definitional Provisions .................................. 26
Section 2. Amount and Terms of Term Loan Commitments .................... 26
2.1 Initial Term Loans ............................................. 26
2.2 Term Loan Notes ................................................ 27
2.3 Procedure for Term Loan Borrowing .............................. 28
2.4 Record of Term Loans ........................................... 28
2.5 Incremental Term Loan Commitments .............................. 29
Section 3. General Provisions Applicable to Term Loans .................. 32
3.1 Interest Rates and Payment Dates ............................... 32
3.2 Conversion and Continuation Options ............................ 33
3.3 Minimum Amounts of Sets ........................................ 33
3.4 Optional and Mandatory Prepayments; Commitment Reductions ...... 33
3.5 Fees ........................................................... 36
3.6 Computation of Interest and Fees ............................... 37
3.7 Inability to Determine Interest Rate ........................... 37
3.8 Pro Rata Treatment and Payments ................................ 37
3.9 Illegality ..................................................... 39
3.10 Requirements of Law ............................................ 39
3.11 Taxes .......................................................... 41
3.12 Indemnity ...................................................... 45
3.13 Certain Rules Relating to the Payment of Additional Amounts .... 46
Section 4. Representations and Warranties ............................... 47
4.1 Financial Condition ............................................ 47
4.2 No Change; Solvent ............................................. 48
4.3 Corporate Existence ............................................ 48
4.4 Corporate Power; Authorization; Consents; Enforceable
Obligations ................................................. 48
4.5 No Legal Bar ................................................... 49
4.6 No Material Litigation ......................................... 49
4.7 No Default ..................................................... 49
4.8 Ownership of Property; Liens ................................... 49
4.9 Intellectual Property .......................................... 50
4.10 Compliance With Requirements of Law and Contractual
Obligations ................................................. 50
4.11 Taxes .......................................................... 50
4.12 Federal Regulations ............................................ 50
4.13 ERISA .......................................................... 50
(i)
Table of Contents
(continued)
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4.14 Collateral ..................................................... 51
4.15 Investment Company Act; Other Regulations ...................... 52
4.16 Subsidiaries ................................................... 52
4.17 Purpose of Term Loans .......................................... 52
4.18 Environmental Matters .......................................... 52
4.19 True and Correct Disclosure .................................... 53
4.20 Delivery of the Recapitalization Agreement ..................... 53
4.21 Certain Representations and Warranties Contained in the
Recapitalization Agreement .................................. 54
4.22 Labor Matters .................................................. 54
4.23 Special Purpose Corporation .................................... 54
4.24 Insurance ...................................................... 54
4.25 Anti-Terrorism ................................................. 54
4.26 Capitalization ................................................. 54
4.27 Rental Fleet; Business of the Credit Parties ................... 55
Section 5. Conditions Precedent ......................................... 55
5.1 Conditions to Initial Term Loans ............................... 55
5.2 Conditions to Each Other Extension of Credit ................... 60
Section 6. Affirmative Covenants ........................................ 61
6.1 Financial Statements ........................................... 61
6.2 Certificates; Other Information ................................ 62
6.3 Payment of Obligations ......................................... 63
6.4 Conduct of Business and Maintenance of Existence ............... 63
6.5 Maintenance of Property; Insurance ............................. 64
6.6 Inspection of Property; Books and Records; Discussions ......... 65
6.7 Notices ........................................................ 65
6.8 Environmental Laws ............................................. 67
6.9 New Subsidiaries; Additional Security; Further Assurances ...... 67
Section 7. Negative Covenants ........................................... 69
7.1 Limitation on Indebtedness ..................................... 70
7.2 Limitation on Liens ............................................ 72
7.3 Limitation on Guarantee Obligations ............................ 75
7.4 Limitation on Fundamental Changes .............................. 76
7.5 Limitation on Sale of Assets ................................... 77
7.6 Limitation on Dividends ........................................ 78
7.7 Limitation on Investments, Loans and Advances .................. 80
7.8 Limitations on Certain Acquisitions ............................ 83
(ii)
Table of Contents
(continued)
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7.9 Limitation on Transactions with Affiliates ..................... 83
7.10 Limitation on Sale and Leaseback Transactions .................. 85
7.11 Limitation on Dispositions of Collateral ....................... 85
7.12 Limitation on Optional Payments and Modifications of Debt
Instruments and Other Documents ............................. 86
7.13 Limitation on Changes in Fiscal Year ........................... 87
7.14 Limitation on Negative Pledge Clauses .......................... 87
7.15 Limitation on Lines of Business ................................ 87
7.16 Limitations on Currency, Commodity and Other Hedging
Transactions ................................................ 88
Section 8. Events of Default ............................................ 88
Section 9. The Agents and the Lead Arrangers ............................ 91
9.1 Appointment .................................................... 91
9.2 Delegation of Duties ........................................... 91
9.3 Exculpatory Provisions ......................................... 92
9.4 Reliance by the Agents ......................................... 92
9.5 Notice of Default .............................................. 93
9.6 Acknowledgements and Representations by Lenders ................ 93
9.7 Indemnification ................................................ 94
9.8 The Administrative Agent and Lead Arrangers in their Individual
Capacities .................................................. 94
9.9 Collateral Matters ............................................. 94
9.10 Successor Agent ................................................ 95
9.11 Syndication Agent and Lead Arrangers ........................... 96
9.12 Withholding Tax ................................................ 96
Section 10. Miscellaneous ............................................... 97
10.1 Amendments and Waivers ......................................... 97
10.2 Notices ........................................................ 99
10.3 No Waiver; Cumulative Remedies ................................. 100
10.4 Survival of Representations and Warranties ..................... 100
10.5 Payment of Expenses and Taxes .................................. 101
10.6 Successors and Assigns; Participations and Assignments ......... 102
10.7 Adjustments; Set-off; Calculations; Computations ............... 106
10.8 Counterparts ................................................... 107
10.9 Severability ................................................... 107
10.10 Integration .................................................... 107
10.11 GOVERNING LAW .................................................. 107
10.12 Submission to Jurisdiction; Waivers ............................ 107
10.13 Acknowledgements ............................................... 108
(iii)
Table of Contents
(continued)
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10.14 WAIVER OF JURY TRIAL ........................................... 108
10.15 Confidentiality ................................................ 108
10.16 USA Patriot Act Notice ......................................... 109
10.17 INTERCREDITOR AGREEMENT ........................................ 109
10.18 The Parent Borrower as Agent for the Borrowers ................. 110
10.19 Waiver ......................................................... 110
10.20 Nature of Obligations .......................................... 111
Section 11. Holdings Guaranty ........................................... 112
11.1 Guaranty ....................................................... 112
11.2 Bankruptcy ..................................................... 112
11.3 Nature of Liability ............................................ 113
11.4 Independent Obligation ......................................... 113
11.5 Amendments, etc. with respect to the Obligations ............... 113
11.6 Reliance ....................................................... 114
11.7 No Subrogation ................................................. 114
11.8 Waiver ......................................................... 114
11.9 Payments ....................................................... 115
11.10 Maximum Liability .............................................. 115
SCHEDULES
A -- Initial Term Loan Commitments and Addresses
B -- Assumed Indebtedness
4.2 -- Material Adverse Effect Disclosure
4.4 -- Consents Required
4.8 -- Real Property
4.9 -- Intellectual Property Claims
4.16 -- Subsidiaries
4.25 -- Insurance
5.1(e) -- Closing Date Adjustments to EBITDA
5.1(g) -- Lien Searches
7.2(j) -- Permitted Liens
7.3(a) -- Permitted Guarantee Obligations
7.5(j) -- Permitted Asset Sales
7.7(c) -- Permitted Investments
7.9(e) -- Permitted Transactions with Affiliates
7.10(b) -- Sale and Leaseback Real Properties
(iv)
Table of Contents
(continued)
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EXHIBITS
A-1 -- Form of Initial Term Loan Note
A-2 -- Form of Incremental Term Loan Note
B -- Form of Incremental Term Loan Commitment Agreement
C -- Form of U.S. Tax Compliance Certificate
D -- Form of Intercreditor Agreement
E -- Form of Guarantee and Collateral Agreement
F -- Form of Closing Certificate
G -- Form of Intercompany Subordination Provisions
H -- Form of Assignment and Acceptance
I -- Form of Borrower Joinder Agreement
(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", and, together with the
Parent Borrower and each entity that becomes a Borrower pursuant to subsection
6.9, the "Borrowers" and each, a "Borrower"), the several banks and other
financial institutions from time to time parties to this Agreement, DEUTSCHE
BANK AG, NEW YORK BRANCH, as administrative agent and collateral agent for the
Lenders hereunder (in such capacities, respectively, the "Administrative Agent"
and the "Collateral Agent"), CITICORP NORTH AMERICA, INC. ("CNAI"), as
syndication agent (in such capacity, the "Syndication Agent"), GE CAPITAL
MARKETS, INC., as Senior Managing Agent, DEUTSCHE BANK SECURITIES INC. and
CITIGROUP GLOBAL MARKETS INC., as Joint Lead Arrangers and Joint Book Managers
and GENERAL ELECTRIC CAPITAL CORPORATION, as Documentation Agent. 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 an asset-based loan
facility in an aggregate principal amount of $1,700,000,000;
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 and (ii)
pay certain fees and expenses related to the Transaction, the Borrowers have
requested that the Lenders make the Initial Term Loans 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:
"ABL Credit Agreement": the Credit Agreement, dated as of November 27,
2006, among Holdings, the Parent Borrower, RSC, RSC Canada, the various Lender
and/or financial institutions party thereto, DBNY, as U.S. Administrative Agent
and U.S. Collateral Agent and Deutsche Bank AG, Canada Branch as Canadian
Administrative Agent and Canadian Collateral Agent, as the same may be amended,
supplemented, waived, otherwise modified, extended, renewed, Refinanced or
replaced from time to time.
"ABL Loan Documents": the ABL Credit Agreement and each "Loan
Document" under, and as defined in the ABL Credit Agreement, as the same may be
amended, supplemented, waived, otherwise modified, extended, renewed, Refinanced
or replaced from time to time.
"ABL Obligations": Obligations under and as defined in the ABL Credit
Agreement.
"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 Administrative Agent (or
another bank of recognized standing reasonably selected by the 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 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
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Day, the average of the quotations for the day of such transactions received by
the 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.
"ABR Loans": Term Loans the rate of interest applicable to which is
based upon the ABR.
"ACNA": as defined in the Recitals hereto.
"Administrative Agent": DBNY, in its capacity as administrative agent
for the Lenders hereunder, and shall include any successor to the Administrative
Agent appointed pursuant to subsection 9.10.
"Affected Loans": as defined in subsection 3.9.
"Affected Rate": as defined in subsection 3.7.
"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.
"Agents": the collective reference to the Administrative Agent and the
Collateral Agent.
"Agreement": this Credit Agreement, as amended, supplemented, waived
or otherwise modified, from time to time.
"Applicable Margin": for (a) Initial Term Loans (i) maintained as ABR
Loans, 2.50% per annum and (ii) maintained as Eurocurrency Loans, 3.50% per
annum; provided that, if the Applicable Margin for any Tranche of Incremental
Term Loans issued hereunder is more than 0.50% higher than the Applicable Margin
for the Initial Term Loans, then the Applicable Margin for the Initial Term
Loans shall be increased to 0.50% below the Applicable Margin for such Tranche
of Incremental Term Loans and (b) any Tranche of Incremental Term Loans, the
respective percentages per annum relating to the respective Type of such Tranche
of Incremental Term Loan as set forth in the applicable Incremental Term Loan
Commitment Agreement (or, in the case of any Tranche of Incremental Term Loans
extended pursuant to more than one Incremental Term Loan Commitment Agreement,
as may be provided in the first Incremental Term Loan Commitment Agreement
executed and delivered with respect to such Tranche.
"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.
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"Asset Sale": any sale, issuance, conveyance, transfer, lease or other
disposition (including through a Sale and Leaseback Transaction) (each, a
"Disposition") by the Parent Borrower 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 10.6(b).
"Assignment and Acceptance": an Assignment and Acceptance,
substantially in the form of Exhibit H.
"Assumed Indebtedness": existing Indebtedness of the Recapitalized
Business identified on Schedule B, which will not be repaid in connection with
the Transaction.
"Benefited Lender": as defined in subsection 10.7(a).
"Board": the Board of Governors of the Federal Reserve System.
"Borrower Joinder Agreement": a joinder agreement in the form of
Exhibit I.
"Borrowers": as defined in the Preamble hereto. Unless the context
otherwise requires, each reference in this Agreement to "each Borrower" or "the
respective Borrower" shall be deemed to be a reference to each Borrower on a
joint and several basis.
"Borrowing": Term Loans of the same Type made, converted or continued
on the same date, and in the case of Eurocurrency Loans, as to which a single
Interest Period is in effect.
"Borrowing Date": (i) in respect of the incurrence of Initial Term
Loans, the Closing Date and (ii) in respect of the incurrence of Incremental
Term Loans, the respective Incremental Term Loan Borrowing Date relating to such
Incremental Term Loans.
"Business Day": a day other than a Saturday, Sunday or other day on
which commercial banks in New York, New York are authorized or required by law
to close, except that, when used in connection with a Eurocurrency Loan,
"Business Day" shall mean any Business Day on which dealings in Dollars between
banks may be carried on in London, England and New York, New York.
"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.
"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.
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"Cash Equivalents": (a) securities issued or fully guaranteed or
insured by the United States 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
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 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.
"Change in Law": as defined in subsection 3.11(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 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, shares of 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
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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 7.4. 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 7.4, merge or consolidate with or into the Parent
Borrower and the Parent Borrower may merge with or into RSC; or (e) any "Change
of Control" as defined in any ABL Loan Document or Senior Note Document shall
have occurred.
"Closing Date": the date on which all the conditions precedent set
forth in subsection 6.1 shall be satisfied or waived and the Initial Term Loans
have been incurred 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": DBNY, in its capacity as collateral agent for the
Lenders hereunder, and shall include any successor to the Collateral Agent
appointed pursuant to subsection 9.10.
"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 items (i)-(iv) above, any such fact,
circumstance, change, occurrence or development disproportionately affects the
Recapitalized Business, taken as a whole.
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"Conduit Lender": any special purpose corporation organized and
administered by any Lender for the purpose of making Term Loans otherwise
required to be made by such Lender and designated by such Lender in a written
instrument delivered to the Administrative Agent (a copy of which shall be
provided by the 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 Term Loan if, for any reason, its Conduit
Lender fails to fund any such Term 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 3.10, 3.11, 3.12 or 10.5,
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 Term
Loan Commitment or (c) be so designated if such designation would otherwise
increase the costs of any Tranche to any Borrower.
"Confidential Information Memorandum": that certain Confidential
Information Memorandum (Public Version) dated November 6, 2006 and furnished to
the Lenders.
"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 6.1.
"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 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 Interest Expense 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 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.
"Consolidated Secured Indebtedness": all Consolidated Indebtedness
that is secured by a Lien on any property owned by the Parent Borrower or any of
its Subsidiaries.
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"Consolidated Secured Leverage Ratio": the ratio of Consolidated
Secured Indebtedness at such time to EBITDA for the period of four consecutive
fiscal quarters then most recently ended.
"Consolidated Total 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 6.1(a) or (b), respectively.
"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.
"DBNY": Deutsche Bank AG, New York Branch, in its individual capacity,
and any successor corporation thereto by merger, consolidation or otherwise.
"DBSI": Deutsche Bank Securities Inc., in its individual capacity, and
any successor corporation thereto by merger, consolidation or otherwise.
"Debt Financing": the debt financing transactions contemplated under
(a) the Loan Documents, (b) the ABL Loan Documents and (c) the Senior Note
Documents, in each case, including any Interest Rate Protection Agreements
related thereto.
"Default": any of the events specified in Section 8, whether or not
any requirement for the giving of notice, the lapse of time, or both, or any
other condition specified in Section 8, has been satisfied.
"Defaulting Lender": as defined in subsection 3.8(c).
"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.
"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.
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"EBITDA": for any period, the sum of 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 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 (a)
and (b) of subsection 7.6 (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 above). 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 acceptable to the 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
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of $5,000,000; provided that for any applicable periods prior to the Closing
Date EBITDA shall be determined in respect to the Parent Borrower and its
predecessors.
"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 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 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
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each day during each Interest Period pertaining to a Eurocurrency Loan, the rate
per annum equal to the rate at which the 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": Term 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
(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 8, provided
that any requirement for the giving of notice, the lapse of time, or both, or
any other condition specified in Section 8, has been satisfied.
"Exchange Act": the Securities Exchange Act of 1934, as amended from
time to time.
"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.
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"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 United States of America, 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 the covenants contained in subsection 7.1, 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.
"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 and Collateral Agreement": the Guarantee and Collateral
Agreement delivered to the Collateral Agent as of the date hereof, substantially
in the form of Exhibit E, as the same may be amended, supplemented, waived or
otherwise modified from time to time.
"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 purchase any such primary obligation
or any property constituting direct or indirect security
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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": the Administrative Agent, the Collateral
Agent, 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 Guarantee and Collateral
Agreement as though Holdings were a Guarantor thereunder.
"Guarantors": the collective reference to Holdings, the Borrowers and
each Subsidiary of the Parent Borrower (other than (a) a Borrower, (b) any
Foreign Subsidiary and (c) any Subsidiary of a Foreign Subsidiary) which is from
time to time party to the Guarantee and Collateral Agreement; 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 Lender": as defined in subsection 2.5(b).
"Incremental Term Loan": as defined in subsection 2.1(b).
"Incremental Term Loan Borrowing Date": for any Incremental Term Loan,
the date specified as such in the respective Incremental Term Loan Commitment
Agreement pursuant to which such Incremental Term Loans are to be made.
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"Incremental Term Loan Commitment": for each Incremental Lender, the
commitment of such Incremental Lender to make Incremental Term Loans pursuant to
subsection 2.1(b) on a given Incremental Term Loan Borrowing Date, as such
commitment (x) is set forth in the respective Incremental Term Loan Commitment
Agreement delivered pursuant to subsection 2.5(b) or (y) may be terminated
pursuant to subsection 3.4(g) or (h) or Section 8.
"Incremental Term Loan Commitment Agreement": each Incremental Term
Loan Commitment Agreement in substantially the form of Exhibit B (appropriately
completed) executed and delivered in accordance with subsection 2.5(b).
"Incremental Term Loan Maturity Date": for any New Tranche, the
maturity date set forth for such New Tranche of Incremental Term Loans in the
respective Incremental Term Loan Commitment Agreement relating thereto, provided
that the maturity date for all Incremental Term Loans of a given Tranche shall
be the same date.
"Incremental Term Loan Note": as defined in subsection 2.2(b).
"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 7.1 and subsection 8(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.
"Initial Term Loan": as defined in subsection 2.1(a).
"Initial Term Loan Commitment": with respect to each Lender, the
commitment of such Lender hereunder to make Initial Term Loans to the Borrowers
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 $1,130,000,000.
"Initial Term Loan Maturity Date": November 30, 2013.
"Initial Term Loan Note": as defined in subsection 2.2(a).
"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.
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"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 Collateral Agent, the U.S. collateral agent under the
ABL 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 Term Loan is
outstanding, and the final maturity date of such Term 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 Term 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 Term Loan)
thereafter, as selected by the applicable Borrower by irrevocable notice to
the 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:
(A) 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;
(B) any Interest Period that would otherwise extend beyond the
respective Maturity Date for any Term Loans shall (for all purposes other
than subsection 3.12) end on the respective Maturity Date for such Term
Loans;
(C) 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
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the end of such Interest Period) shall end on the last Business Day of a
calendar month; and
(D) 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 Eurocurrency 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 Administrative Agent, to or under which the
Parent Borrower or any of its Subsidiaries is or becomes a party or a
beneficiary.
"Investment Company Act": the Investment Company Act of 1940, as
amended from time to time.
"Investments": as defined in subsection 7.7.
"Lead Arrangers": DBSI and Citigroup Global Markets Inc., 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 Administrative Agent and the
Parent Borrower, to make any Term Loans, 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
10.1 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.
"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).
"Loan Documents": this Agreement, any Notes, the Intercreditor
Agreement, the Guarantee and Collateral Agreement, any other Security Documents,
any Incremental Term Loan 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
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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.
"Margin Regulations": as defined in subsection 5.1(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 the
Parent Borrower and its Subsidiaries taken as a whole or (b) the validity or
enforceability as to any Loan Party thereto of this Agreement or any of the
other Loan Documents or the rights or remedies of the Administrative Agent, the
Collateral Agent and the Lenders under the Loan Documents, 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 any Tranche, the final maturity date
under such Tranche (i.e., the Initial Term Maturity Date and each Incremental
Term Loan Maturity Date, as the case may be).
"Moody's": 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.
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"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 the Administrative Agent, substantially in a form reasonably
satisfactory to the 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.
"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 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.
"New Tranche": each Tranche of Incremental Term Loans other than the
Initial Term Loans.
"Non-Consenting Lender": as defined in subsection 10.1(d).
"Non-Defaulting Lender": any Lender other than a Defaulting Lender.
"Non-Excluded Taxes": as defined in subsection 3.11(a).
"Non-Guarantor Subsidiary": any Subsidiary of the Parent Borrower that
is neither a Borrower nor a Subsidiary Guarantor.
"Notes": the Initial Term Notes and the Incremental Term Loan Notes.
"Oak Hill": as defined in the Recitals hereto.
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"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 10.5) or otherwise.
"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 or other payments pursuant to subsection 7.6.
"Participant": as defined in subsection 10.6(c)(i).
"PBGC": the Pension Benefit Guaranty Corporation established pursuant
to Subtitle A of Title IV of ERISA (or any successor thereto).
"Permitted Hedging Arrangement": as defined in subsection 7.16.
"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 (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 7.2.
"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.
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"Prime Rate": as defined in the definition of the term "ABR" in this
subsection 1.1.
"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.
"Register": as defined in subsection 10.6(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.
"Reinvested Amount": with respect to any Asset Sale permitted by
subsection 7.5(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 a Responsible Officer of the Parent Borrower delivered to the 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 7.16 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 if any such certificate of a Responsible Officer is not
delivered to the Administrative Agent on the date
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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 deposited in a cash collateral account established at the
Administrative Agent to be held as collateral in favor of the Administrative
Agent for the benefit of the Lenders on terms reasonably satisfactory to the
Administrative Agent, and shall remain on deposit in such cash collateral
account until such certificate of a Responsible Officer is delivered to the
Administrative Agent.
"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 7.6, 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 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.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of Section 4241
of ERISA.
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"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 Lenders": Non-Defaulting Lenders, the sum of whose
outstanding principal amount of Term Loans plus outstanding Incremental Term
Loan Commitments represents at least a majority of the sum of the aggregate
principal amount of all outstanding Term Loans plus the aggregate amount of all
outstanding Incremental Term Loan Commitments.
"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.
"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
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 6.7 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": Rental Service Corporation of Canada Ltd., a corporation
incorporated and existing under the laws of the Province of Alberta.
"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 7.10.
"Sale and Leaseback Transaction": as defined in subsection 7.10.
"Secured Parties": as defined in the Guarantee and Collateral
Agreement.
"Securities Act": the Securities Act of 1933, as amended from time to
time.
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"Security Documents": the collective reference to each Mortgage, the
Guarantee and Collateral Agreement and all other similar security documents
hereafter delivered to the Collateral Agent granting a Lien on any asset or
assets of any Person to secure the obligations and liabilities of the 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 Collateral
Agent pursuant to subsection 6.9(b) or 6.9(c), in each case, as amended,
supplemented, waived or otherwise modified from time to time.
"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 the
Loan Parties) 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 7.12.
"Senior Note Indenture": the Indenture governing the Senior Notes,
dated November 27, 2006, among the Parent Borrower and RSC, as Co-Issuers, the
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 with the terms thereof and
subsection 7.12.
"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 subsection 7.12.
"Set": the collective reference to Eurocurrency Loans 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 Term 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 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
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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.
"Sponsor": as defined in the Recitals hereto.
"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 Guaranty": the guaranty of the Obligations of the
Borrowers under the Loan Documents provided pursuant to the Guarantee and
Collateral Agreement.
"Subsidiary Guarantor": each Domestic Subsidiary of the Parent
Borrower which executes and delivers a Subsidiary Guaranty, in each case, unless
and until such time as the respective Subsidiary Guarantor ceases to constitute
a Domestic Subsidiary of the Parent Borrower or is released from all of its
obligations under the Subsidiary Guaranty in accordance with the provisions
thereof.
"Supermajority Lenders": Lenders the sum of whose outstanding Term
Loans and outstanding Term Loan Commitments representing at least 66 2/3% of the
sum of the aggregate outstanding principal amount of Term Loans and the Total
Term Loan Commitment less the Commitments of all Defaulting Lenders at such
time.
"Syndication Agent": as defined in the Preamble hereto.
"Syndication Date": the date on which the Administrative Agent, in its
sole discretion, advises the Parent Borrower that the primary syndication of the
Initial Term 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 3.11(a).
"Term Loan": as defined in subsection 2.5(b).
"Term Loan Commitment": as to any Lender, its Initial Term Loan
Commitment or its Incremental Term Loan Commitment, as the case may be.
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"Term Loan Note": each Initial Term Loan Note and each Incremental
Term Loan Note.
"Total Term Loan Commitment": at any time, the sum of the Term Loan
Commitments of all of the Lenders at such time.
"Tranche": the respective facility and commitments utilized in making
Term Loans hereunder, with there being one Tranche on the Closing Date
(consisting of the Initial Term Loan Commitments and the extensions of credit
(i.e., Initial Term Loans) pursuant thereto. In addition, any Incremental Term
Loans extended after the Closing Date shall be made pursuant to the Tranche of
Initial Term Loans or one or more additional Tranches which shall be designated
pursuant to the respective Incremental Term Loan Commitment Agreements in
accordance with the relevant requirements specified in Section 2.5.
"Transaction": collectively, (i) the entering into of the Loan
Documents and the incurrence of Term Loans on the Closing Date, (ii) the
consummation of the Recapitalization, (iii) the issuance of the Senior Notes,
(iv) the incurrence of loans under the ABL Credit Agreement 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 ABL Loan Documents and (iv) the Senior
Note Documents.
"Transferee": any Participant or Assignee.
"Type": the type of Term Loan determined based on the currency in
which the same is denominated, and the interest option applicable thereto, with
there being multiple Types of Term 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.
"U.S. Tax Compliance Certificate": as defined in subsection 3.11(b).
"Voting Stock": shares of Capital Stock entitled to vote generally in
the election of directors.
"Waivable Prepayment": as defined in subsection 3.4(e)
"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
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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, 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 Term Loan 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
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 3.9
and 3.10, 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.
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(b) Subject to subsection 2.5 and the other terms and conditions
hereof, (a) each Lender holding an Incremental Term Loan Commitment severally
agrees to make, 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 3.9
and 3.10, all Incremental 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 Incremental Term Loan Commitment of such
Lender.
Once repaid, Incremental Term Loans incurred hereunder may not be reborrowed.
2.2 Term Loan Notes. (a) The Parent Borrower agrees that, upon the
request to the Administrative Agent by any Lender made on or prior to the
Closing Date or in connection with any assignment pursuant to subsection
10.6(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 modified from time to time, a "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 10.6(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 subsection 10.6(b), the date of such assignment). Each Initial Term
Loan Note shall be payable as provided in subsection 2.2(c) and (z) provide for
the payment of interest in accordance with subsection 3.1.
(b) Each Borrower agrees that, upon the request to the 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 10.6(b), in order to
evidence such Lender's Incremental Term Loan, 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, an "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 10.6(b)) by such
Lender to the Parent Borrower. Each Incremental Term Loan Note shall be dated
the applicable Incremental Term Loan Borrowing Date (or in the case of an
Incremental Term Loan Note issued in connection with Incremental Term Loans
acquired by assignment pursuant to such subsection 10.6(b), the date of such
assignment). Each Incremental Term Loan Note shall be payable as provided in
subsection 2.2(c) and (z) provide for the payment of interest in accordance with
subsection 3.1.
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(c) All outstanding aggregate Term Loans of each of the Lenders shall
be due and payable on the applicable Maturity Date therefor.
(d) 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 Borrower,
hereby unconditionally promises to pay to the Administrative Agent any amount
required to be paid by such Borrower pursuant to subsection 2.2(c) or any other
provision to this Agreement. Any reference to a Loan being made hereunder shall
be treated as also having been made to RSC as co-obligor.
2.3 Procedure for Term Loan Borrowing. The Parent Borrower shall give
the Administrative Agent irrevocable notice (which notice must be received by
the Administrative Agent prior to 11:00 A.M., New York City time), (i) in the
case of Initial Term Loans, at least one Business Day prior to the Closing Date,
and (ii) in the case of Incremental Term Loans, at least three Business Days
prior to the date of Borrowing, in each case specifying the amount to be
borrowed and the applicable Borrower; provided that, such Borrowings shall be
made in minimum increments of $25,000,000. Upon receipt of such notice the
Administrative Agent shall promptly notify each applicable Lender thereof. Each
applicable Lender will make the amount of its pro rata share of the applicable
Borrowing available to the Administrative Agent for the account of the
applicable Borrower at the office of the Administrative Agent specified in
subsection 10.2 prior to 12:00 P.M., New York City time, on the Closing Date or
such other date of Borrowing, as applicable, in Dollars and in funds immediately
available to the Administrative Agent. The Administrative Agent shall on such
date credit the account of the applicable Borrower on the books of the
Administrative Agent with the aggregate of the amounts made available to the
Administrative Agent by the Lenders and in like funds as received by the
Administrative Agent.
2.4 Record of Term Loans. (a) Each 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 Term 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.
(b) The Administrative Agent shall maintain the Register pursuant to
subsection 10.6(b), and a subaccount therein for each Lender, in which shall be
recorded (i) the amount of each Term Loan made hereunder, the Type thereof, the
Borrowers to which such Loan is made and each Interest Period, if any,
applicable thereto, (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
Administrative Agent hereunder from each of the Borrowers and each applicable
Lender's share thereof.
(c) The entries made in the Register and the accounts of each Lender
maintained pursuant to subsection 2.4(b) 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 Administrative Agent to maintain the Register
or any such account, or any error therein, shall not in any manner affect the
obligation of the Borrowers to repay (with applicable interest) the Term Loans
made to the Borrowers by such Lender in accordance with the terms of this
Agreement.
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2.5 Incremental Term Loan Commitments. (a) So long as the Syndication
Date has occurred and no Default or Event of Default then exists or would result
therefrom, the Parent Borrower have the right to request on one or more
occasions on and after the Closing Date that one or more Lenders (and/or one or
more other Persons which will become Lenders as provided below) provide
Incremental Term Loan Commitments under any existing Tranche or one or more
additional Tranches and, subject to the terms and conditions contained in this
Agreement, make Incremental Term Loans pursuant thereto, it being understood and
agreed, however, that:
(i) no Lender shall be obligated to provide an Incremental Term Loan
Commitment as a result of any such request by the Parent Borrower, and
until such time, if any, as such Lender has agreed in its sole discretion
to provide an Incremental Term Loan Commitment and executed and delivered
to the Administrative Agent and Parent Borrower an Incremental Term Loan
Commitment Agreement as provided in clause (b) of this subsection 2.5, such
Lender shall not be obligated to fund any Incremental Term Loans,
(ii) any Lender (or, in the circumstances contemplated by clause (vii)
below, any other Person) may so provide an Incremental Term Loan Commitment
without the consent of any other Lender,
(iii) each provision of Incremental Term Loan Commitments pursuant to
this subsection 2.5 on a given date shall be in a minimum aggregate amount
(for all Lenders (including in the circumstances contemplated by clause
(vii) below, any other Person who will become Lenders)) of at least
$25,000,000,
(iv) the aggregate amount of all Incremental Term Loan Commitments
permitted to be provided pursuant to this subsection 2.5 shall not exceed
$300,000,000,
(v) the relevant Incremental Term Loan Commitment Agreement shall
specifically set forth the Tranche of the Incremental Term Loan Commitments
being provided thereunder,
(vi) each Lender agreeing to provide an Incremental Term Loan
Commitment under a Tranche, shall make Incremental Term Loans under the
Tranche specified in the relevant Incremental Term Loan Commitment
Agreement pursuant to subsection 2.1(b) and such Incremental Term Loans
shall thereafter be deemed to be Term Loans under the relevant Tranche for
all purposes of this Agreement and the other Loan Documents,
(vii) if, within 5 Business Days after the Parent Borrower has
requested the then existing Lenders to provide Incremental Term Loan
Commitments pursuant to this subsection 2.5 the Parent Borrower has not
received Incremental Term Loan Commitments in an aggregate amount equal to
that amount of Incremental Term Loan Commitments which the Parent Borrower
desires to obtain pursuant to such request (as set forth in the notice
provided by the Parent Borrower as provided below the Administrative Agent,
in consultation with the Parent Borrower, will use its reasonable best
efforts to arrange for other Persons to become Lenders or to provide
Incremental
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Term Loan Commitments, as applicable, hereunder and to issue commitments in
an amount equal to the amount of the increase in the Incremental Term Loan
Commitments requested by the Parent Borrower, as the case may be, and not
accepted by the existing Lenders (each Person issuing, or Lender
increasing, its Commitment, an "Additional Commitment Lender"), provided,
however, any Additional Commitment Lender which is not an existing Lender
shall be subject to the approval of the Administrative Agent and the Parent
Borrower,
(viii) no Incremental Term Loan may be incurred unless on a pro forma
basis after giving effect to the incurrence of such Incremental Term Loan
and the application of the proceeds thereof the consolidated Total Leverage
Ratio for the then most recently ended period of four consecutive fiscal
quarters is not greater than 4.00:1.00 and the Consolidated Secured
Leverage Ratio for the then most recently ended period of four consecutive
fiscal quarters is not greater than 3.00:1.00,
(ix) if Incremental Term Loans incurred pursuant to an Incremental
Term Loan Commitment are under a New Tranche, the Applicable Margin for
such New Tranche of Incremental Term Loans, the Incremental Term Loan
Maturity Date for such New Tranche and the scheduled repayments for such
New Tranche and the other terms of such New Tranche shall be set forth in
the related Incremental Term Loan Commitment Agreement and shall be
reasonably satisfactory in all respects to the Administrative Agent,
(x) all actions taken by the Parent Borrower pursuant to this
subsection 2.5 shall be done in consultation with the Administrative Agent,
and
(xi) no Tranche of Incremental Term Loans shall have a Maturity Date
prior to the Initial Term Loan Maturity Date.
(b) At the time of any provision of Incremental Term Loan Commitments
pursuant to this subsection 2.5,
(i) the Parent Borrower, the Administrative Agent and each such Lender
or other Person (each an "Incremental Lender") which agrees to provide an
Incremental Term Loan Commitment shall execute and deliver to the
Administrative Agent and the Parent Borrower an Incremental Term Loan
Commitment Agreement substantially in the form of Exhibit B hereto
(appropriately completed) pursuant to which the respective Incremental Term
Loan Commitments shall be provided, with the effectiveness of such
Incremental Lender's Incremental Commitment to occur on the date set forth
in such Incremental Term Loan Commitment Agreement and the payment of any
fees required in connection therewith,
(ii) the Administrative Agent shall have received evidence reasonably
satisfactory to it that the additional obligations to be incurred pursuant
to the Incremental Term Loans are permitted by the terms of the outstanding
Indebtedness of Holdings and its Subsidiaries including, without
limitation, the ABL Loan Documents and the Senior Note Documents,
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(iii) to the extent requested by the Administrative Agent, the Parent
Borrower, shall deliver to the Administrative Agent an opinion or opinions,
in form and substance reasonably satisfactory to the Administrative Agent,
from counsel to the Parent Borrower reasonably satisfactory to the
Administrative Agent and dated such date,
(iv) an Incremental Term Loan Note (to the extent requested) will be
issued at the Borrowers' expense, to each such Incremental Lender, to be in
conformity with requirements of subsection 2.2(b) (with appropriate
modification) to the extent necessary to reflect Incremental Term Loans of
such Incremental Lender, and
(v) the applicable Borrowers and Incremental Lender shall have
delivered such other instruments, documents and agreements as the
Administrative Agent may reasonably have requested in order to effectuate
the documentation of the foregoing.
The Administrative Agent shall promptly notify each Lender as to the
effectiveness of each Incremental Term Loan Commitment Agreement.
(c) In connection with each incurrence of Incremental Term Loans
pursuant to subsection 2.1(b) that have been specified pursuant to the
respective Incremental Term Loan Commitment Agreement as being part of an
existing Tranche of Term Loans, the Lenders and the Borrowers hereby agree that,
notwithstanding anything to the contrary contained in this Agreement:
(i) the Borrowers and the Administrative Agent may take all such
actions as may be necessary to ensure that all Lenders with outstanding
Term Loans under the relevant Tranche continue to participate in each
Borrowing of outstanding Term Loans under such Tranche (after giving effect
to the incurrence of Incremental Term Loans pursuant to subsection 2.1(b)
on a pro rata basis, including by adding the Incremental Term Loans to be
so incurred to the then outstanding Borrowings of Term Loans on a 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 then outstanding
Borrowings of Term Loans under such Tranche and it is hereby agreed that
(x) to the extent any then outstanding Borrowings of Term Loans that are
maintained as Eurocurrency Loans are affected as a result thereof, any
costs of the type described in subsection 3.12 incurred by such Lenders in
connection therewith shall be for the account of the Borrowers or (y) to
the extent the Incremental Term Loans to be so incurred are added to the
then outstanding Borrowings of 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 such Tranche of
Term Loans until the end of the respective Interest Period or Interest
Periods with respect thereto,
(ii) the Incremental Term Loans to be made pursuant to such
Incremental Term Loan Commitment Agreement shall have the same Maturity
Date and the same Weighted Average Life to Maturity as the Tranche of Term
Loans to which the new
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Incremental Term Loans are being added, and shall bear interest at the same
rates (i.e., have the same Applicable Margins) applicable to such Tranche,
and
(iii) the new Incremental Term Loans shall have the same amortization
dates (if any) as then remain with respect to the Tranche to which such new
Incremental Term Loans are being added (with the amount of principal to be
repaid on each such amortization date applicable to such new Incremental
Term Loans to be the same (on a proportionate basis) as is theretofore
applicable to the Tranche to which such new Incremental Term Loans are
being added, thereby increasing the amount to be repaid on each then
remaining amortization date of the respective Tranche proportionately.
(d) Each Lender hereby covenants and agrees to enter into any
technical amendments necessary in connection with the provision of Incremental
Term Loans hereunder in accordance with the provisions of this subsection 2.5
and the respective Incremental Term Loan Commitment Agreement, provided that
such amendment shall be strictly limited to the provisions necessary to
incorporate the appropriate provisions for such Incremental Term Loans.
Section 3. General Provisions Applicable to Term Loans.
3.1 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.
(b) Each ABR Loan 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.
(c) If all or a portion of (i) the principal amount of any Term Loan,
(ii) any interest payable thereon or (iii) any commitment 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 3.1(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 Term Loan
pursuant to the relevant foregoing provisions of subsections 3.1(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 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
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exceed under any circumstance whatsoever the maximum amount of interest allowed
by applicable usury laws.
3.2 Conversion and Continuation Options. (a) The Parent Borrower may
elect from time to time to convert outstanding Term Loans from Eurocurrency
Loans to ABR Loans by giving the Administrative Agent 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. The Parent Borrower may elect from time to time to
convert outstanding Term Loans from ABR Loans to Eurocurrency Loans by giving
the Administrative Agent at least three Business Days' prior irrevocable notice
of such election. Any such notice of conversion to Eurocurrency Loans shall
specify the length of the initial Interest Period or Interest Periods therefor.
Upon receipt of any such notice the Administrative Agent shall promptly notify
each affected Lender thereof. All or any part of outstanding Eurocurrency Loans
and ABR Loans may be converted as provided herein, provided that (i) (unless the
Required Lenders otherwise consent) no Term Loan may be converted into a
Eurocurrency Loan when any Default or Event of Default has occurred and is
continuing and, in the case of any Default, the Administrative Agent has given
notice to the Parent Borrower that no such conversions may be made and (ii) no
Term Loan may be converted into a Eurocurrency Loan after the date that is one
month prior to the Maturity Date therefor.
(b) Any Eurocurrency Loan may be continued as such upon the expiration
of the then current Interest Period with respect thereto by the Parent Borrower
giving notice to the Administrative Agent of the length of the next Interest
Period to be applicable to such Term 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 Administrative
Agent has given notice to the Parent 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 3.2(b), the Administrative Agent shall
promptly notify each affected Lender thereof.
3.3 Minimum Amounts of Sets. All borrowings, conversions and
continuations of Term Loans hereunder and all selections of Interest Periods
hereunder shall be in such amounts and be made pursuant to such elections so
that, after giving effect thereto, the aggregate principal amount of the
Eurocurrency Loans comprising each 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).
3.4 Optional and Mandatory Prepayments; Commitment Reductions. (a)
Each of the Borrowers may at any time and from time to time prepay the Term
Loans made to it, in whole or in part, subject to subsection 3.12 and paragraph
(e) of this subsection. 3.4, upon at least three Business Days' irrevocable
notice by the applicable Borrower to the Administrative
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Agent, in the case of Eurocurrency Loans outstanding and at least one Business
Day's irrevocable notice by the applicable Borrower to the Administrative Agent,
in the case of ABR Loans; provided that any such notice of prepayment delivered
by any such Borrower in connection with a prepayment 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
Borrowers (by written notice to the Administrative Agent on or prior to the
specified effective date) if such condition is not satisfied. Such notice shall
specify the identity of the prepaying Borrower, the date and amount of
prepayment and whether the prepayment is of Eurocurrency Loans, ABR Loans or a
combination thereof. Upon the receipt of any such notice the Administrative
Agent 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 3.12 and accrued interest to such date on the amount
prepaid. Partial prepayments of the Incremental Term Loans pursuant to this
subsection shall be applied as set forth and as agreed to in any Incremental
Term Loan Commitment Agreements to the respective installments of principal
thereof (if any). Partial prepayments pursuant to this subsection 3.4(a) shall
be in multiples of $1,000,000; provided that, notwithstanding the foregoing, any
Term 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 7.1, except as otherwise specified
in subsection 7.1) 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, if and to the extent the applicable Net Cash Proceeds are not
required to be applied to the payment of obligations of the Borrowers or any of
their respective Affiliates that are borrowers under the ABL Credit Agreement,
the relevant Borrower shall prepay, in accordance with subsection 3.4(c), the
Term Loans in an amount equal to: (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, 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
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 8.
(c) Prepayments of Term Loans pursuant to subsections 3.4(b) shall be
applied pro rata to each Tranche of Term Loans (based on the relative aggregate
outstanding
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principal amount of each Tranche of Term Loans) and applied as provided in the
respective Incremental Term Loan Commitment Agreement for such Term Loans to the
respective installments of principal (if any) under each such Tranche.
(d) Notwithstanding the foregoing provisions of this subsection 3.4,
if at any time any prepayment of the Term Loans pursuant to subsection 3.4(a) or
3.4(b) would result, after giving effect to the procedures set forth in this
Agreement, in any Borrower incurring breakage costs under subsection 3.12 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 deposit a portion (up to 100%) of the amounts that
otherwise would have been paid in respect of such Eurocurrency Loans with the
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 the Borrowers to make such prepayment pursuant to a cash
collateral agreement to be entered into on terms reasonably satisfactory to the
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 the Parent Borrower); provided that, such unpaid Eurocurrency Loans shall
continue to bear interest in accordance with subsection 3.1 until such unpaid
Eurocurrency Loans or the related portion of such Eurocurrency Loans have or has
been prepaid.
(e) Notwithstanding anything to the contrary contained in this
subsection 3.4, or elsewhere in this Agreement, the Lenders shall have the
option to waive a mandatory prepayment of such Term Loans made pursuant to
paragraph (b) of this subsection 3.4 (each such prepayment, a "Waivable
Prepayment") upon the terms and provisions set forth in this paragraph (e). If a
Lender elects to exercise the option referred to in the preceding sentence, such
Lender shall so advise the Administrative Agent no later than the close of
business two Business Days after the date such Lender receives notice of the
respective prepayment from the Administrative Agent pursuant to subsection
3.4(b) and shall notify the Administrative Agent of the amount, if any, of such
prepayment such Lender desires to receive in respect of such prepayment. If any
Lender does not reply to the Administrative Agent within the aforementioned two
Business Day period, such Lender will be deemed not to have waived any part of
such prepayment. If any Lender does not specify an amount such Lender wishes to
receive, it will be deemed to have waived 100% of the amount of its share of
such payment. In the event that any such Lender waives all or part of such right
to receive any such Waivable Prepayment, the amount so waived shall be retained
by the Borrowers.
(f) Each prepayment of Initial Term Loans pursuant to subsection
3.4(a) made prior to November 27, 2008 shall be subject to the payment of the
fees described in subsection 3.5.
(g) In addition to any other mandatory commitment reductions pursuant
to this subsection 3.4, the Initial Term Loan Commitment of each Lender shall
terminate in its entirety on the Closing Date (after giving effect to the
incurrence of Initial Term Loans on such date).
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(h) In addition to any other mandatory commitment reductions pursuant
to this subsection 3.4, (i) the Incremental Term Loan Commitment of each Lender
provided pursuant to a particular Incremental Term Loan Commitment Agreement
shall be permanently reduced on each Incremental Term Loan Borrowing Date on
which Incremental Term Loans are incurred pursuant to such Incremental Term Loan
Commitment Agreement in an amount equal to the aggregate principal amount of
Incremental Term Loans made by such Lender pursuant to such Incremental Term
Loan Commitment Agreement on such date, (ii) the Incremental Term Loan
Commitment of each Lender provided pursuant to a particular Incremental Term
Loan Commitment Agreement shall terminate at 5:00 P.M. (New York City time) on
the earlier of (i) the date specified in such Incremental Term Loan Commitment
Agreement and (ii) the Initial Term Loan Maturity Date (whether or not any
Incremental Term Loans are incurred on either such date).
(i) Upon at least three Business Days' prior written notice to the
Administrative Agent (which notice the Administrative Agent shall promptly
transmit to each of the Lenders), the Parent Borrower (on behalf of itself and
each other Borrower) shall have the right, at any time or from time to time,
without premium or penalty to terminate any Incremental Term Loan Commitments in
whole, or reduce such commitments in part, in an integral multiple of
$10,000,000 in the case of partial reductions to unused Incremental Term Loan
Commitments.
(j) Each reduction to, or termination of, Incremental Term Loan
Commitments pursuant to this paragraphs (g) and (h) of this subsection 3.4 shall
be applied to proportionately reduce or terminate, as the case may be, the
Incremental Term Loan Commitment of each Lender with an Incremental Term Loan
Commitment.
3.5 Fees. (a) The Borrowers jointly and severally agree to pay to the
Administrative Agent (for the ratable distribution to each Lender holding
Initial Term Loans) upon any prepayment of principal of Initial Term Loans
pursuant to subsection 3.4(a), a fee in an amount equal to (i) in the case of
any such prepayment occurring on or prior to November 27, 2007, the product of
(x) the principal amount of Initial Term Loans being prepaid and (y) 2.0% and
(ii) in the case of any such prepayment occurring after November 27, 2007 and on
or prior to November 27, 2008, the product of (x) the principal amount of
Initial Term Loans being prepaid and (y) 1.0%.
(b) The Borrowers jointly and severally agree to pay to the
Administrative Agent for distribution to each Non-Defaulting Lender with an
Incremental Term Loan Commitment such facility fees, commitment commission and
other amounts, if any, as are specified in the Incremental Term Loan Commitment
Agreement pursuant to which such Incremental Term Loan Commitment has been
provided, with such facility fees, commitment commission and other amounts, if
any, to be payable at the times set forth in such Incremental Term Loan
Commitment Agreement.
(c) The Borrowers jointly and severally agree to pay to the
Administrative Agent 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 Administrative Agent in connection with this
Agreement.
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3.6 Computation of Interest and Fees. (a) Interest (other than
interest based on the Prime Rate) and any 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 shall be calculated on the basis of a 365- (or 366-day year, as
the case may be) day year for the actual days elapsed. The Administrative Agent
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 Term Loan resulting from a change in the ABR or the Eurocurrency Reserve
Requirements shall become effective as of the opening of business on the day on
which such change becomes effective. The Administrative Agent 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 Administrative Agent
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
Administrative Agent 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 Administrative Agent in determining any
interest rate pursuant to subsection 3.1, 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.
3.7 Inability to Determine Interest Rate. If prior to the first day of
any Interest Period, the Administrative Agent shall have determined (which
determination shall be 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 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 and (b) any Term 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 shall be converted to or continued as ABR Loans.
3.8 Pro Rata Treatment and Payments. (a) Each payment (including each
prepayment) by the Borrowers on account of principal of and interest on any Term
Loans shall be allocated by the Administrative Agent pro rata according to the
respective outstanding principal amounts of the Term Loans then held by the
respective Lenders. All payments (including prepayments) to be made by any of
the Borrowers hereunder, whether on account of principal, interest, fees, 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 Administrative
Agent for the account of the Lenders holding the relevant Loans at the
Administrative Agent's office specified in subsection 10.2, in Dollars and in
immediately available funds. Payments received by the Administrative Agent after
such time shall be deemed to have been received on the next Business Day. The
Administrative Agent 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 Administrative Agent shall distribute such payment to such Lenders on the
next succeeding
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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 Administrative Agent 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 the
Administrative Agent, the Administrative Agent may assume that such Lender is
making such amount available to the Administrative Agent, and the Administrative
Agent may, in reliance upon such assumption, make available to the Borrowers a
corresponding amount. If such amount is not made available to the Administrative
Agent by the required time on the Borrowing Date therefor, such Lender shall pay
to the Administrative Agent on demand, such amount with interest thereon at a
rate equal to the daily average Federal Funds Effective Rate as quoted by the
Administrative Agent for the period until such Lender makes such amount
immediately available to the Administrative Agent. A certificate of the
Administrative Agent 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
Administrative Agent by such Lender within three Business Days of such Borrowing
Date, (x) the Administrative Agent shall notify the Parent Borrower of the
failure of such Lender to make such amount available to the Administrative Agent
and the Administrative 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 the Borrowers and (y) then the Borrowers may, without waiving or
limiting any rights or remedies any of them may have against such Lender
hereunder or under applicable law or otherwise, 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 the Borrowers would be permitted to borrow such amount pursuant to
subsection 2.1.
(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 Administrative Agent and the Parent Borrower to each
become a substitute Lender and assume all or part of the outstanding Loans
and/or Term Loan Commitments of such Defaulting Lender. In such event, the
Parent Borrower, the 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.
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(ii) In determining the Required Lenders or Supermajority Lenders, any
Lender that at the time is a Defaulting Lender (and the Loans and/or Term
Loan 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 Term
Loans hereunder, may set off and otherwise apply its obligation to make
such payment against the obligation of such Defaulting Lender (if any) to
make such Term Loan. In such event, the amount so set off and otherwise
applied shall be deemed to constitute a Term Loan by such Defaulting Lender
made on the date of such set-off and included within any borrowing of Term
Loans as the Administrative Agent may reasonably determine.
3.9 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 as contemplated by this
Agreement ("Affected Loans"), (a) such Lender shall promptly give written notice
of such circumstances to the Parent Borrower and the Administrative Agent (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 when an Affected Loan is requested and (c)
such Lender's Term 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 with respect to such Term Loans or within such earlier
period as required by law. If any such conversion of an Affected Loan occurs on
a day which is not the last day of the then current Interest Period with respect
thereto, the Borrowers shall pay to such Lender such amounts, if any, as may be
required pursuant to subsection 3.12.
3.10 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 Eurocurrency Loans made or maintained by it or its
obligation to make or maintain Eurocurrency 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;
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(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 acquisition of funds by, any
office of such Lender which is not otherwise included in the determination
of the Eurocurrency Rate 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 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 Administrative Agent, in accordance
herewith, the Borrowers 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, provided
that, in any such case, the Parent Borrower may elect to convert the
Eurocurrency Loans made by such Lender hereunder to ABR Loans by giving the
Administrative Agent at least one Business Day's notice of such election, in
which case the Borrowers shall promptly pay to such Lender, upon demand, without
duplication, amounts theretofore required to be paid to such Lender pursuant to
this subsection 3.10(a) and such amounts, if any, as may be required pursuant to
subsection 3.12. 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 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 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
Term 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 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
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
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explanation of the calculation thereof, the Borrowers 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 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 Term Loans and all other amounts payable hereunder.
(c) Notwithstanding anything to the contrary in this subsection 3.10,
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.
3.11 Taxes. (a) Except as provided below in this subsection or as
required by law, all payments made by each of the Borrowers and the
Administrative Agent 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 the Administrative 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 Administrative 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 the
Administrative 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 the Administrative Agent or Lender,
applicable lending office, branch or affiliate other than a connection arising
solely from the Administrative 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 to the
Administrative Agent or any Lender hereunder or under any Notes, the amounts so
payable by such Borrower shall be increased to the extent necessary to yield to
the 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 to, or for the account of, any Administrative Agent or
Lender, shall not be increased (x) if the Administrative Agent or Lender fails
to comply with the requirements of paragraphs (b) or (c) of this subsection 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
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imposed as a result of a change in treaty, law or regulation that occurred after
such Lender becomes a Lender hereunder (or, if such 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 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 the
Borrowers, as promptly as possible thereafter the Parent Borrower shall send to
the Administrative Agent 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
the Borrowers showing payment thereof. If any Borrower fails to pay any
Non-Excluded Taxes when due to the appropriate taxing authority or fails to
remit to the Administrative Agent the required receipts or other required
documentary evidence, the Borrowers shall jointly and severally indemnify the
Administrative Agent and the Lenders for any incremental taxes, interest or
penalties that may become payable by the Administrative Agent or any Lender as a
result of any such failure. The agreements in this subsection 3.11 shall survive
the termination of this Agreement and the payment of the Term Loans and all
other amounts payable hereunder.
(b) Each Lender 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 Borrowers
under this Agreement or any Notes to, or for the account of, such Lender,
deliver to the Parent Borrower and the 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 Borrowers to be treated as a U.S. person with
respect to such payments (and the Borrowers and DBNY agree to so treat DBNY
as a U.S. person with respect to such payments), with the effect that the
Borrowers can make payments to DBNY without deduction or withholding of any
Taxes imposed by the 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 Parent Borrower and the 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 Parent Borrower; and
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(iii) obtain such extensions of time for filing and completing such
forms or certifications as may reasonably be requested by the Parent
Borrower or the 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 Borrowers that it is not a bank within the
meaning of Section 881(c)(3)(A) of the Code;
(ii) deliver to the Parent Borrower on or before the date of any
payment by any of the Borrowers, with a copy to the Administrative Agent,
(A) two certificates substantially in the form of Exhibit C (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 Parent Borrower and the 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 the Parent Borrower or the
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 the Parent Borrower, to the Parent Borrower and the
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,
(i) on or before the date of any payment by any of the Borrowers under
this Agreement or any Notes to, or for the account of, such Lender, deliver
to the Parent Borrower and the 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 Borrowers and the
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 Parent
Borrower and the Administrative Agent two U.S. Tax Compliance Certificates
certifying to such Lender's legal entitlement at the date of such
certificate to an
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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 Parent Borrower and the 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 Borrowers 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 Parent Borrower and the 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 Parent Borrower and the 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 the Parent Borrower or the 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 the Parent Borrower, to the Parent Borrower and the
Administrative Agent such other forms as may be reasonably required in
order to establish the legal entitlement of such 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;
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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
Administrative Agent.
(c) Each Lender 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 Borrowers under this Agreement or any Notes to such Lender, deliver to
the Parent Borrower and the Administrative Agent two duly completed copies of
Internal Revenue Service Form W-9, or successor form, certifying that such
Lender is a United States Person (within the meaning of Section 7701(a)(30) of
the Internal Revenue Code) and that such Lender is entitled to a complete
exemption from United States backup withholding tax.
3.12 Indemnity. The Borrowers jointly and severally agree to indemnify
each Lender and 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)
any default by any of the Borrowers in making a borrowing of, conversion into or
continuation of Eurocurrency Loans after the Parent Borrower has given a notice
requesting the same in accordance with the provisions of this Agreement, (b) any
default by any of the Borrowers in making any prepayment or conversion of
Eurocurrency Loans after the Parent 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 3.13(d)(i)) of
Eurocurrency Loans or the conversion of Eurocurrency Loans on a day which is not
the last day of an Interest Period with respect thereto. Such indemnification
may include an amount equal to the excess, if any, of (i) the amount of interest
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, in the case of a failure to
borrow, convert or continue, the Interest Period that would have commenced on
the date of such failure) in each case at the applicable rate of interest for
such Eurocurrency Loans, as applicable, provided for herein (excluding, however,
the Applicable Margin included therein, if any) over (ii) the amount of interest
(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. If any Lender becomes
entitled to claim any amounts under the indemnity contained in this subsection
3.12, it shall provide prompt notice thereof to the Parent Borrower, through the
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 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
Term Loans and all other amounts payable hereunder.
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3.13 Certain Rules Relating to the Payment of Additional Amounts. (a)
Upon the request, and at the expense of the Borrowers, each Lender to which the
Borrowers are required to pay any additional amount pursuant to subsection 3.10
or 3.11, and any Participant in respect of whose participation such payment is
required, shall reasonably afford the Parent Borrower the opportunity to
contest, and reasonably cooperate with the Parent Borrower in contesting, the
imposition of any Tax giving rise to such payment; provided that (i) such Lender
shall not be required to afford the Parent Borrower the opportunity to so
contest unless the Borrowers shall have confirmed in writing to such Lender
their joint and several obligation to pay such amounts pursuant to this
Agreement and (ii) the Borrowers shall reimburse such Lender for its reasonable
attorneys' and accountants' fees and disbursements incurred in so cooperating
with the Parent Borrower in contesting the imposition of such Tax; provided,
however, that notwithstanding the foregoing no Lender shall be required to
afford the Parent Borrower the opportunity to contest, or cooperate with the
Parent 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
pursuant to paragraph (c) below) and the effect of such change, as of the date
of such change, would be to cause the Borrowers to become obligated to pay any
additional amount under subsection 3.10 or 3.11, the Borrowers 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 the Borrowers pursuant to subsection 3.10 or 3.11, such
Lender shall promptly notify the Parent Borrower and the 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
Term 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 business or operations or would require it to incur
additional costs (unless the Borrowers agree to reimburse such Lender for the
reasonable incremental out-of-pocket costs thereof).
(d) If the Borrowers shall become obligated to pay additional amounts
pursuant to subsection 3.10 or 3.11 and any affected Lender shall not have
promptly taken steps necessary to avoid the need for payments under subsection
3.10 or 3.11, the Parent Borrower shall have the right, for so long as such
obligation remains, (i) with the assistance of the Administrative Agent, to seek
one or more substitute Lenders reasonably satisfactory to the Administrative
Agent and the Parent Borrower to purchase the affected Term Loan, in whole or in
part, at an aggregate price no less than such Term Loan's principal amount plus
accrued interest, and 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 Administrative Agent, to prepay the
affected Term Loan, in whole or in part, without premium or penalty, except as
otherwise provided in subsections 3.6(a) and 3.12. In the case of the
substitution of a Lender, the Parent Borrower, the Administrative Agent, the
affected Lender, and any substitute Lender shall execute and deliver an
appropriately completed Assignment and Acceptance pursuant to subsection 10.6(b)
to effect the assignment of rights to, and the assumption of obligations by, the
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substitute Lender; provided that any fees required to be paid by subsection
10.6(b) in connection with such assignment shall be paid by such Borrowers or
the substitute Lender. In the case of a prepayment of an affected Term 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 Term Loan, the Parent Borrower shall first pay the affected Lender any
additional amounts owing under subsections 3.10 and 3.11 (as well as any
commitment fees and other amounts then due and owing to such Lender, including
any amounts under this subsection 3.13) 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 Parent Borrowers have made additional payments
pursuant to subsection 3.10(a) or 3.11(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 each 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 3.13 shall survive the termination of this Agreement and the payment
of the Term Loans and all amounts payable hereunder.
Section 4. Representations and Warranties. To induce the
Administrative Agent and each Lender to make the Term Loans 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 Administrative Agent
and each Lender that:
4.1 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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Xxxxxxx Xxxxx 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.
4.2 No Change; Solvent. Since December 31, 2005, except as and to the
extent disclosed on Schedule 4.2, (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.
4.3 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.
4.4 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 incur Term Loans 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 incurrence of Term Loans by it, on the terms and conditions of
this Agreement and any Notes. 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 the
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Borrowers, with the incurrence of Term Loans by it, if any, hereunder, except
for (a) consents, authorizations, notices and filings described in Schedule 4.4,
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 and (d) 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).
4.5 No Legal Bar. The execution, delivery and performance of the Loan
Documents by any of the Loan Parties, the incurrence of Term Loans 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 7.2) on any of its properties or revenues pursuant to any such
Requirement of Law or Contractual Obligation.
4.6 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.
4.7 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.
4.8 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 is subject to any
Lien, except for Liens permitted by subsection 7.2. Schedule 4.8 sets forth all
material real properties owned in fee or leased by the Loan Parties as of the
Closing Date.
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4.9 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 4.9, 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.
4.10 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.
4.11 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.
4.12 Federal Regulations. No part of the proceeds of any Term Loans
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 Administrative
Agent, the Parent Borrower will furnish to the 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.
4.13 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 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)
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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.
4.14 Collateral. Upon execution and delivery thereof by the parties
thereto, the Guarantee and Collateral Agreement and the Mortgages will be
effective to create (to the extent described therein) in favor of the Collateral
Agent for the ratable benefit of the 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
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 collateral agent under the ABL Credit
Agreement, on behalf of the Collateral Agent in accordance with the
Intercreditor Agreement, (c) all Deposit Accounts and Electronic Chattel Paper
(each as defined in the 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 "control" of the Collateral Agent or the Administrative Agent, as
agent for the Collateral Agent and as directed by the Collateral Agent or the
collateral agent or administrative agent under the ABL Credit Agreement
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in accordance with the Intercreditor Agreement, 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 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 4.14 and not
defined in this Agreement are so used as defined in the applicable Security
Document.
4.15 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.
4.16 Subsidiaries. Schedule 4.16 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.
4.17 Purpose of Term Loans. The proceeds of the Initial Term 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
Incremental Term 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.
4.18 Environmental Matters. Other than as disclosed on Schedule 4.18
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 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
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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.
4.19 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 the
Administrative Agent, 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 the Administrative Agent, 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
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.
4.20 Delivery of the Recapitalization Agreement. The Parent Borrower
has delivered to the Administrative Agent a complete photocopy of the
Recapitalization Agreement (including all exhibits, schedules, disclosure
letters referred to therein or delivered pursuant
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thereto, if any) and all amendments thereto, waivers relating thereto and other
side letters or agreements affecting the terms thereof in any material respect.
4.21 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 Administrative Agent in
writing prior to the Closing Date.
4.22 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.
4.23 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).
4.24 Insurance. Schedule 4.24 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.
4.25 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.
4.26 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.
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(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.
4.27 Rental Fleet; Business of the Credit Parties. Each Loan Party
that owns Inventory holds such Inventory for sale or lease and is in the
business of selling goods of that kind.
Section 5. Conditions Precedent.
5.1 Conditions to Initial Term Loans. This Agreement, including the
agreement of each Lender to make the Initial Term Loans 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 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 Guarantee and Collateral Agreement, executed and
delivered by a duly authorized officer of each Credit Agreement Party
thereto; and
(iii) 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 making of the Initial
Term Loans hereunder and the borrowings under the ABL 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
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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 October 6, 2006 and (ii) the structure and
terms of the Recapitalization specified therein, are so satisfactory.
(c) Debt Financing. (i) The Administrative Agent shall receive,
substantially concurrently with the satisfaction of the other conditions
precedent set forth in this subsection 5.1, 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 Administrative Agent shall receive, substantially
concurrently with the satisfaction of the other conditions precedent set
forth in this subsection 5.1, evidence, in form and substance reasonably
satisfactory to it, that the Credit Agreement Parties and RSC Canada shall
have (i) executed and delivered the ABL Credit Agreement and (ii) the
Closing Date under, and as defined in, the ABL Credit Agreement has
occurred.
(iii) On the Closing Date, the 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 ABL 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 5.1.
(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 for the Recapitalized Business (with RSC as the reporting
entity) for the quarterly period ended September 30, 2006 and for each
fiscal quarter ended at least 45 days prior to the Closing Date, (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,
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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 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 5.1(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 and its Subsidiaries 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 Term 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 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 4.4 are in full force and effect or have the status
described therein, and the Administrative Agent shall have received
evidence thereof reasonably satisfactory to it.
(g) Lien Searches. The Administrative Agent shall have received the
results of a recent search by a Person reasonably satisfactory to the
Administrative Agent, of the UCC, judgment and tax lien filings which have
been filed with respect to personal
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property of the Recapitalized Business, Holdings, the Parent Borrower and
their respective Subsidiaries in any of the jurisdictions set forth in
Schedule 5.1(g), and the results of such search shall not reveal any Liens
other than Liens permitted by subsection 7.3.
(h) Legal Opinions. The 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, in form and
substance reasonably satisfactory to the Administrative Agent;
(ii) the executed legal opinion of Xxxxx & Xxxxxx LLP, special
Arizona counsel to RSC, in form and substance reasonably satisfactory
to the Administrative Agent; and
(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 Administrative
Agent.
(i) Closing Certificate. The Administrative Agent shall have received
a certificate from each Loan Party, dated the Closing Date, substantially
in the form of Exhibit F, with appropriate insertions and attachments.
(j) Perfected Liens. The Collateral Agent shall have obtained a valid
second priority security interest in the Collateral covered by the
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 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 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 Rental
Equipment represented by a certificate of title, the 120th day following
the Closing Date.
(k) Pledged Stock; Stock Powers; Pledged Notes; Endorsements. The
collateral agent under the ABL Credit Agreement on behalf of Collateral
Agent in
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accordance with the Intercreditor Agreement shall have received (subject,
in each case, to the proviso at the end of subsection 5.1(j) above):
(i) the certificates, if any, representing the Pledged Stock
under (and as defined in) the Guarantee and Collateral Agreement,
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 Guarantee and Collateral Agreement, duly
endorsed as required by the Guarantee and Collateral Agreement, 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 3.5.
(m) Corporate Proceedings of the Loan Parties. The Administrative
Agent shall have received a copy of the board resolutions or member
consents, in form and substance reasonably satisfactory to the
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) in the case of each Borrower, the incurrence of Term
Loans by such Borrower 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 satisfactory to the 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.
(n) Incumbency Certificates of the Loan Parties. The 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 Administrative Agent executed by a Responsible Officer and
the Secretary or any Assistant Secretary of such Loan Party.
(o) Governing Documents. The 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.
(p) Insurance. The Administrative Agent shall have received evidence
in form and substance reasonably satisfactory to it that all of the
requirements of
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subsection 6.5 of this Agreement and subsection 5.2.2 of the Guarantee and
Collateral Agreement. Holdings shall have caused, subject to the
Intercreditor Agreement, the Administrative Agent to have been named as an
additional insured with respect to liability policies and the Collateral
Agent to have been named as loss payee with respect to the casualty
insurance maintained by each Credit Agreement Party and the Subsidiary
Guarantors.
(q) No Material Company Adverse Effect. No fact, event, change or
circumstances shall have occurred since December 31, 2005 that has had or
would be reasonably likely to have a Company Material Adverse Effect.
(r) Solvency. The 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 Administrative Agent of each Borrower
certifying the solvency of such Borrower in customary form reasonably
satisfactory to the Lead Arrangers.
(s) 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 Term Loans by the Lenders hereunder shall conclusively
be deemed to constitute an acknowledgment by the Administrative Agent and each
Lender that each of the conditions precedent set forth in this subsection 5.1
shall have been satisfied in accordance with its respective terms or shall have
been irrevocably waived by such Person.
5.2 Conditions to Each Other Extension of Credit. The agreement of
each Lender to make any Term Loans requested to be made by it on any date 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 incurrence of the Initial
Term Loans hereunder only, the representation and warranty set forth in clause
(a) of subsection 4.2), 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 Term Loans requested to
be made on such date; provided that, with respect to the Initial Term Loans
incurred hereunder, no Default or Event of Default resulting from the failure to
provide any collateral of the type described in the
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proviso at the end of subsection 5.1(j) above shall constitute a Default or an
Event of Default for the purposes of this clause (b).
(c) Borrowing Notice. With respect to any Borrowing, the
Administrative Agent shall have received a notice of such Borrowing as required
by subsection 2.3.
Each borrowing of Term Loans by the Borrowers hereunder shall
constitute a representation and warranty by each Credit Agreement Party as
of the date of such borrowing that the conditions contained in this
subsection 5.2 have been satisfied.
Section 6. Affirmative Covenants. Each Credit Agreement Party hereby
agrees that, from and after the Closing Date and so long as the Term Loan
Commitments remain in effect, and thereafter until payment in full of the Term
Loans and any other amount then due and owing to any Lender or the
Administrative Agent hereunder and under any Note, 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 Loan Party of any
such financial information, report or notice shall constitute delivery by each
Loan Party and its Subsidiaries of the same such financial information, report
or notice):
6.1 Financial Statements. Furnish to the Administrative Agent for
prompt delivery to each Lender (and the 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 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 6.1(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 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
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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 6.1(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
6.1(a) or (b) to be (and, in the case of any financial statements delivered
pursuant to subsection 6.1(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 6.1(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 6.1(b), for
the absence of certain notes).
6.2 Certificates; Other Information. Furnish to the Administrative
Agent for delivery to each Lender (and the 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 and
reports referred to in subsections 6.1(a) and (b), a certificate signed by a
Responsible Officer of each Credit Agreement Party stating that, to the best of
such Responsible Officer's 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;
(b) 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,
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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;
(c) 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;
(d) 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 Administrative Agent in
connection therewith;
(e) at any time when the Parent Borrower has designated a Subsidiary
an Immaterial Subsidiary, promptly following any request made by the
Administrative Agent, but in any event (i) not later than the fifth Business Day
following any such request, any such financial information as the 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
(f) promptly, such additional financial and other information as the
Administrative Agent or Lender may from time to time reasonably request.
6.3 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.
6.4 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 7.4, 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
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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.
6.5 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 Administrative Agent, upon written request,
information in reasonable detail as to the insurance carried; and ensure that at
all times the Collateral Agent, subject to the Intercreditor Agreement, shall be
named as an additional insured with respect to liability policies and the
Collateral Agent, subject to the Intercreditor Agreement, 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 shall have
occurred and be continuing, and subject to the provisions of the Intercreditor
Agreement, (i) the Collateral Agent shall turn over to the Parent Borrower any
amounts received by the Collateral Agent 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 3.4(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 6.5.
(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
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
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pay the premium or premiums therefore, and the Borrowers shall pay to the
Administrative Agent on demand such premium or premiums so paid by the
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 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 6.5(a).
6.6 Inspection of Property; Books and Records; Discussions. 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 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.
6.7 Notices. Promptly give notice to the 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 ABL 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
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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, 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 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
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Subsidiary) setting forth details of the occurrence referred to therein and
stating what action the Parent Borrower (or, if applicable, the relevant
Commonly Controlled Entity or Subsidiary) proposes to take with respect thereto.
6.8 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 6.8(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 6.8(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 Administrative Agent, Holdings and its
Subsidiaries have taken reasonable and diligent steps to implement and maintain
such a program in compliance with this subsection.
6.9 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
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such first anniversary), in which any Loan Party acquires ownership rights at
any time after the Closing Date, promptly following any request by the
Collateral Agent grant to the Collateral Agent 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 Collateral Agent 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 6.9 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
and (ii) no such Lien shall be required to be granted as contemplated by this
subsection 6.9 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
7.1(f) or (g), in whole or in part through the incurrence of Indebtedness
permitted by subsection 7.1(f) or (g), until such Indebtedness is repaid in full
(and not refinanced as permitted by subsection 7.1(f) or (g)) or, as the case
may be, the Parent Borrower determines not to proceed with such financing or
refinancing. In connection with any such grant to the Collateral Agent, 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 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 Collateral Agent 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 Administrative Agent of such occurrence and
promptly deliver to the collateral agent under the ABL Credit Agreement, on
behalf of the Collateral Agent in accordance with the terms of the Intercreditor
Agreement, 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, (ii) cause such new Domestic Subsidiary (A) to become a
party to the Guarantee and Collateral Agreement and (B) to take all actions
reasonably deemed by the Collateral Agent to be necessary or advisable to cause
the Lien created by the 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 Guarantee and Collateral
Agreement), including the filing of financing statements in such jurisdictions
as may be reasonably requested by the Collateral Agent and (iii) to the extent
requested by the 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 Administrative Agent a Borrower Joinder Agreement
(and thereby become a Borrower hereunder).
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(c) With respect to any Foreign Subsidiary created or acquired
subsequent to the Closing Date by the Parent Borrower or any of its Domestic
Subsidiaries (other than 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 Administrative Agent of such occurrence and promptly (i)
execute and deliver to the Collateral Agent a new pledge agreement or such
amendments to the Guarantee and Collateral Agreement as the Collateral Agent
shall reasonably deem necessary or reasonably advisable to grant to the
Collateral Agent, for the benefit of the Lenders, a perfected second priority
security interest (as and to the extent provided in the 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 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 Collateral Agent, deliver to the
collateral agent under the ABL Credit Agreement, on behalf of the Collateral
Agent in accordance with the term of the Intercreditor Agreement, 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
Collateral Agent to be necessary or desirable to perfect the Collateral Agent's
security interest therein.
(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 Collateral Agent 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 6.9 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 Administrative Agent, in its reasonable
judgment, determines that the granting of such a Lien is impracticable.
Section 7. Negative Covenants. Each of Parent Borrower and its
Subsidiaries hereby agrees (and with respect to subsection 7.15(c) Holdings
hereby agrees) that, from and after the Closing Date and so long as any Term
Loan Commitments remain in effect, and thereafter until payment in full of the
Term Loans and any other amount then due and owing to any Lender or any Agent
hereunder and under any Note, such the Parent Borrower and each such Subsidiary
(and with respect to subsection 7.15(c), Holdings) shall not and shall not
permit any of its Subsidiaries to, directly or indirectly:
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7.1 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 ABL Loan Documents; provided
that the aggregate principal amount of Indebtedness at any time outstanding
pursuant to this clause (d) shall not exceed $1,900,000,000;
(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 Subsidiary Guarantor owing to Holdings or any
Borrower (other than Canadian Xxxxx) or any other Subsidiary Guarantor, (iv) any
Non-Guarantor Subsidiary owing to any Borrower (other than Canadian Xxxxx) or
any Subsidiary Guarantor if permitted pursuant to subsection 7.7 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 G;
(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 $200,000,000 at any one time
outstanding, provided that such amount shall be increased by an amount equal to
$30,000,000 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 7.8; 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
Administrative Agent and shall not exceed 70% of the purchase price of such
acquisition (including any Indebtedness assumed in
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connection with such acquisition) (or such greater percentage as shall be
reasonably satisfactory to the Administrative Agent or, if any such purchase
price shall be greater than $100,000,000, 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 7.8 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 7.3 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;
(k) Indebtedness of the Parent Borrower or any of its Subsidiaries in
respect of Sale and Leaseback Transactions permitted under subsection 7.10;
(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 7.7(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 7.1 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 7.1(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
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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;
(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 7.1 not exceeding $275,000,000 in aggregate principal amount
at any one time outstanding.
For purposes of determining compliance with this subsection 7.1, 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.
7.2 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):
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(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;
(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 7.1(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 7.1(g) assumed in connection with any acquisition
permitted by subsection 7.8, provided that (i) such Liens shall not be created
in contemplation of the acquisition permitted by subsection 7.8 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
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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
7.2(j) and other Liens securing Assumed Indebtedness;
(k) Liens securing Guarantee Obligations permitted under subsection
7.3(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 6.9(b) or (c);
(n) Liens on property subject to Sale and Leaseback Transactions
permitted under subsection 7.10 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 7.1, Guarantee Obligations
of the applicable Subsidiary permitted under subsection 7.1 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 7.1(d) and any
refinancings, extensions and replacements thereof otherwise permitted under this
Agreement;
(r) Liens on property of any Foreign Subsidiary of the Parent Borrower
securing Indebtedness of such Subsidiary permitted by subsection 7.2(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;
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(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
(u) Liens not otherwise permitted hereunder, all of which Liens
permitted pursuant to this subsection 7.2(u) secure obligations not exceeding
$60,000,000 in aggregate amount at any time outstanding.
7.3 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 7.3(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 7.1(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 7.9(d) or similar
agreements by the Parent Borrower;
(d) reimbursement obligations in respect of any banker's acceptance or
letters of credit permitted under subsection 7.1;
(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 7.7(e) (other than clause (iv) thereof),
does not exceed $7,500,000 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 7.8, 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 Administrative
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Agent or, if any such purchase price shall be greater than $100,000,000, 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 7.1(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 7.6, 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 Guarantee and
Collateral Agreement or any Canadian Security Document or otherwise in respect
of Indebtedness permitted by subsection 7.1(a);
(l) Guarantee Obligations in respect of Indebtedness permitted
pursuant to subsections 7.1(b), (c) and (d), provided that (x) Guarantee
Obligations in respect of Indebtedness permitted pursuant to subsections 7.1(b)
and 7.1(d) shall be permitted only so long as such Guarantee Obligations are
incurred only by Guarantors or Borrowers and (y) Guarantee Obligations in
respect of Assumed Indebtedness permitted pursuant to subsection 7.1(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
$25,000,000 in aggregate principal amount; and
(o) Guarantee Obligations of the Parent Borrower and its Subsidiaries
in respect of Indebtedness of Foreign Subsidiaries incurred pursuant to
subsection 7.1(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 subsection 7.6(j), (ii) 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 subsection 7.7(m) and (n), (iii) all cash
consideration paid in respect of acquisitions pursuant to subsection 7.8(b)(iii)
and (iv) all optional prepayments made pursuant to subsection 7.12(f) do not at
any time exceed $150,000,000.
7.4 Limitation on Fundamental Changes. Enter into any merger,
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation
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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 the continuing or surviving entity shall be a Loan Party;
(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 the Subsidiary that
disposes of any or all of its assets is a Loan Party, the transferee of such
assets shall be a Loan Party; and
(c) as expressly permitted by subsection 7.5.
7.5 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
7.4, 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 Equipment in the
ordinary course of business;
(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 7.4(b) and pursuant to Sale and
Leaseback Transactions permitted by subsection 7.10;
(e) subject to any applicable limitations set forth in subsection 7.4,
Dispositions of any assets or property among (i) the Borrowers and the
Subsidiary Guarantors and (ii) the Non-Guarantor Subsidiaries;
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(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
$15,000,000 and (ii) the aggregate Net Cash Proceeds of all Dispositions in any
Fiscal Year made pursuant to this paragraph (g) do not exceed $25,000,000;
(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
$110,000,000 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
3.4(b);
(i) any involuntary Disposition due to casualty or condemnation; and
(j) any Disposition set forth on Schedule 7.5(j).
7.6 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:
(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);
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(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;
(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 $15,000,000; provided that such amount
shall be increased by (i) an amount equal to $3,000,000 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 the Holdings' or any Parent Entity's
Capital Stock;
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(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) 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
(j) 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 (j), when aggregated with (i) all Guarantee
Obligations outstanding pursuant to subsection 7.3(o), (ii) 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 paragraphs 7.7(m) and (n), (iii) all cash
consideration paid in respect of acquisitions pursuant to paragraph 7.8(b)(iii)
and (iv) all optional prepayments made pursuant to subsection 7.12(f), do not at
any time exceed $150,000,000; provided further that the aggregate amount of such
dividends paid pursuant to this paragraph (j) shall not exceed (x) $50,000,000
during any fiscal year of the Parent Borrower or (y) $75,000,000 in any two
consecutive fiscal years of the Parent Borrower.
7.7 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
7.7(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
7.5(c);
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(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 7.3(e), does not exceed $10,000,000 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 7.9;
(f) (i) Investments by any Borrower or any other Subsidiary Guarantor
in any Borrower or any Subsidiary Guarantor, (ii) Investments by any
Non-Guarantor Subsidiary in any other Non-Guarantor Subsidiary, (iii)
Investments by Canadian Xxxxx to RSC Canada consisting of intercompany loans
made by Canadian Xxxxx in RSC Canada and (iv) Investments in Holdings in amounts
and for purposes for which dividends are permitted under subsection 7.7;
(g) acquisitions expressly permitted by subsection 7.8;
(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;
(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 7.2(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 7.5(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 Collateral Agent, for the benefit of the Lenders, pursuant to the
Security Documents;
(k) 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;
(l) Investments representing evidences of Indebtedness, securities or
other property received from another Person by the Parent Borrower or any of its
Subsidiaries 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
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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 Agent, for the benefit of the Lenders, pursuant to the Security
Documents;
(m) 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 not to exceed the original amount invested) outstanding
pursuant to this paragraph (m), when aggregated with (A) all Guarantee
Obligations outstanding pursuant to subsection 7.3(o), (B) dividends paid
pursuant to subsection 7.6(j), (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 (n) of this subsection 7.7, (D) all cash consideration
paid in respect of acquisitions pursuant to subsection 7.8(b)(iii) and (E) all
optional prepayments made pursuant to subsection 7.12(f), do not at any time
exceed $150,000,000, (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 (m), 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 (m) and all acquisitions pursuant to paragraph (b)(iii) of
subsection 7.7 in Persons that are organized (or assets that are located)
outside of the United States and Canada shall not exceed $45,000,000 and (iii)
the Parent Borrower or such Subsidiary complies with the provisions of
subsection 6.9(b) and (c) hereof, if applicable, with respect to such ownership
interest;
(n) 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 (n), when
aggregated with (A) all Guarantee Obligations outstanding pursuant to subsection
7.3(o), (B) all dividends paid pursuant to subsection 7.6(j), (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 (m) of this subsection 7.7, (D)
all cash consideration paid in respect of acquisitions pursuant to subsection
7.8(b)(iii) and (E) all optional prepayments made pursuant to subsection
7.12(f), do not at any time exceed $150,000,000 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) pursuant to this paragraph (n) in Persons that are
organized outside of the United States and Canada, 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 (m) of this subsection 7.7 and
all acquisitions pursuant to paragraph (b)(iii) of subsection 7.8 in Persons
that are organized (or assets that are located) outside of the United States and
Canada, shall not exceed $45,000,000.
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7.8 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 7.4, 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 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 7.8(b)) and Indebtedness (whether incurred or assumed,
in an aggregate amount); provided that (i) the aggregate amount of
such cash consideration paid pursuant to this clause (b)(iii), when
aggregated with ((A) all Guarantee Obligations outstanding pursuant to
subsection 7.3(o), (B)) all dividends paid pursuant to subsection
7.6(j), (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 subsections 7.7(m) and (n) and (D) all optional
prepayments made pursuant to subsection 7.12(f), does not exceed
$150,000,000 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 clause (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 (m) and
(n) of subsection 7.7, shall not exceed $45,000,000.
provided, further, that in the case of each such acquisition pursuant to
paragraphs (a), and (b) of this subsection 7.8, after giving effect thereto, no
Default or Event of Default shall occur as a result of such acquisition.
7.9 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 7.9 shall be deemed to
prohibit:
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(a) 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 $2,000,000 for each such director, officer or
employee;
(b) 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 not to exceed in the aggregate
$6,000,000 per year plus reasonable out-of-pocket expenses;
(c) the payment of transaction expenses in connection with this
Agreement;
(d) 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;
(e) 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 7.9(e);
(f) any transaction permitted under subsection 7.3(c), 7.3(e), 7.4,
7.6, 7.7(e) and 7.7(f), and any transaction between Holdings, any Borrower
and any of the Subsidiary Guarantors;
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(g) 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;
(h) the Transaction, and all transactions relating thereto; and
(i) Holdings or any of its Subsidiaries from performing its
obligations under the Tax Sharing Agreement.
For purposes of this subsection 7.9, 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.
7.10 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 7.10(b) (the
"Sale and Leaseback Real Properties") or (c) for Sale and Leaseback Transactions
not otherwise permitted hereunder, the aggregate amount of all of such Sale and
Leaseback not exceeding $5,000,000 at any time.
7.11 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 7.4 and (b) sales or other
Dispositions expressly permitted under subsection 7.5, including sales of
Equipment in the ordinary course of business; and the Administrative Agent and
the Collateral Agent shall, and the Lenders hereby authorize the Administrative
Agent and the Collateral Agent to, execute such releases of Liens and take such
other actions as the Parent Borrower may reasonably request in connection with
the foregoing.
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7.12 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 Senior Notes or any other
Indebtedness (other than Indebtedness incurred pursuant to subsections 7.1(a),
(c), (d), (e), (m), (p) or (q) (but in the case of subsection 7.1(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.
(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 Term Loans and any other amounts then due and owing to any Lender or the
Administrative Agent hereunder and under any Note or (ii) made an offer to pay
the Term Loans and any amounts then due and owing to each Lender and the
Administrative Agent hereunder and under any Note.
(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 ABL Loan Documents (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 Senior
Notes and Indebtedness of Foreign Subsidiaries incurred pursuant to subsection
7.1(q); provided that the aggregate amount of optional payments made pursuant to
this paragraph (f), when aggregated with (A) all Guarantee Obligations
outstanding pursuant to subsection 7.3(o), (B) all dividends paid pursuant to
subsection 7.6(j), (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 subsections
7.7(m) and (n) and (D) all cash consideration paid in respect of acquisitions
pursuant to subsection 7.8(b)(iii), do not at any time exceed $150,000,000.
(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.
7.13 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.
7.14 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 ABL 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.
7.15 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 7.1(a) and 7.3(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 7.7(f)(iii) and any
Indebtedness incurred pursuant to this Agreement, the other Loan Documents and
the ABL Loan Documents, (iv) merge or consolidated with or into any other Person
or (v) incur or assume to any Lien on its property, assets or revenues, except
Liens created pursuant to the Security Documents or the ABL 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 the Borrowers to the extent permitted by
subsection 7.4; or (v) incur or assume any Lien on its property, assets or
revenues.
7.16 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 8. 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 Term Loan 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 on any Term Loan, or any other amount payable hereunder, within
five days after any such interest 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 hereto or thereto) or which is contained in any
certificate furnished at any time by or on
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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 6.4 (with respect to maintenance of
existence) 6.5, 6.6, 6.7(a) or Section 7 of this Agreement, Section 5.2.2
of the Guarantee and Collateral Agreement; provided that, in the case of a
default in the observance or performance of its obligations under
subsection 6.7(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 6.4, 6.5
or 6.6 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 8),
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 Administrative Agent or the Required Lenders; or
(e) Indebtedness of Holdings or any Subsidiary is not paid within any
applicable grace period after final maturity or is accelerated by the
holders thereof because of a default or event of default thereunder and the
total amount of such Indebtedness unpaid or accelerated exceeds
$60,000,000; or
(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
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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 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 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 from the entry thereof, or to be
received in respect thereof in the event any appeal thereof shall be
unsuccessful) of $60,000,000 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
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(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 the Parent
Borrower, automatically the Term Loan Commitments, if any, shall immediately
terminate and the Term Loans hereunder (with accrued interest thereon) and all
other amounts owing under this Agreement shall immediately become due and
payable, and (B) if such event is any other Event of Default, either or both of
the following actions may be taken: (i) with the consent of the Required
Lenders, the Administrative Agent may, or upon the request of the Required
Lenders the Administrative Agent shall, by notice to the Parent Borrower,
declare the Term Loan Commitments, if any, to be terminated forthwith, whereupon
the Term Loan Commitments, if any, shall immediately terminate; and (ii) with
the consent of the Required Lenders, the Administrative Agent may, or upon the
request of the Required Lenders, the Administrative Agent shall, by notice to
the Parent Borrower, declare the Term Loans hereunder (with accrued interest
thereon) and all other amounts owing under this Agreement to be due and payable
forthwith, whereupon the same shall immediately become due and payable.
Except as expressly provided above in this Section 8, presentment,
demand, protest and all other notices of any kind are hereby expressly waived.
Section 9. The Agents and the Lead Arrangers.
9.1 Appointment. Each Lender hereby irrevocably designates and
appoints DBNY as the Administrative Agent and Collateral Agent for such Lender
under this Agreement and the other Loan Documents, and each such Lender
irrevocably authorizes DBNY, as Administrative Agent and Collateral Agent for
such Lender, 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 the Administrative
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
the Administrative Agent and the Collateral Agent, 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 the
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 Administrative Agent and Collateral Agent
may perform any of their respective duties under the Security Documents by or
through one or more of their respective affiliates).
9.2 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
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Agent may execute any of its duties under this Agreement and the other Loan
Documents by or through agents or attorneys-in-fact, 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.
9.3 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 precedent set forth in Section 5, 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 the Administrative Agent
hereunder or given to the Agents for the account of or with copies for the
Lenders, the Administrative Agent 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, the Lead Arrangers
or any of their respective officers, directors, employees, agents,
attorneys-in-fact or Affiliates.
9.4 Reliance by the 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 the 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 10.6 and all
actions required by such subsection 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
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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 10.1(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 10.1(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 Term Loans.
9.5 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
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
Administrative Agent receives such a notice, the Administrative Agent shall give
prompt notice thereof to the Lenders. The Administrative Agent 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 required pursuant to subsection 10.1(a); provided that
unless and until the Administrative Agent shall have received such directions,
the Administrative Agent 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.
9.6 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 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 Term 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 Term 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
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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 10.6
applicable to the Lenders hereunder.
9.7 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
Borrowers 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 Term 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 agreements in this subsection shall survive the payment of
the Term 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 9.7 shall survive the payment of
all Borrower Obligations (as defined in the Guarantee and Collateral Agreement)
and Guarantor Obligations.
9.8 The Administrative Agent and Lead Arrangers in their Individual
Capacities. 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 the Lead Arrangers hereunder and under the other
Loan Documents. With respect to Term Loans made or renewed by them and any Note
issued to 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 a Lead Arranger, and the
terms "Lender" and "Lenders" shall include the Agents and the Lead Arrangers in
their individual capacities.
9.9 Collateral Matters. (a) Each Lender authorizes and directs the
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
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by the acceptance thereof will be deemed to agree, that, except as otherwise set
forth herein, any action taken by the 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 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 Administrative Agent and the
Collateral Agent, as applicable, 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 Term Loan Commitments and payment and
satisfaction of all of the obligations under the Loan Documents at any time
arising under or 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 7.5, (iii) if
approved, authorized or ratified in writing by the Required Lenders (or such
greater amount, to the extent required by subsection 10.1(a)) or (iv) as
otherwise may be expressly provided in the relevant Security Documents. Upon
request by the Administrative Agent or the 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 9.9.
(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 9.9
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 Collateral Agent may, and hereby does, appoint the
Administrative Agent as its agent for the purposes of holding any Collateral
and/or perfecting the 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.
9.10 Successor Agent. The 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
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appointment of a successor Administrative Agent and Collateral Agent, if
applicable, pursuant to clauses (b) and (c) below or as otherwise provided
below.
(a) Upon any such notice of resignation by the 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 Parent Borrower,
which acceptance shall not be unreasonably withheld or delayed (provided that
the Parent Borrower's approval shall not be required if an Event of Default then
exists).
(b) If a successor Administrative Agent and Collateral Agent, if
applicable, shall not have been so appointed within such 30 day period, the
Administrative Agent, with the consent of the Parent Borrower (which consent
shall not be unreasonably withheld or delayed, provided that the Parent
Borrower's 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 Administrative Agent and Collateral Agent, if
applicable, hereunder or thereunder until such time, if any, as the Required
Lenders appoint a successor Administrative Agent and Collateral Agent, if
applicable, as provided above.
(c) 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 the Administrative Agent, the Administrative Agent's
resignation shall become effective and the Required Lenders shall thereafter
perform all the duties of the Administrative Agent hereunder and/or under any
other Loan Document until such time, if any, as the Required Lenders appoint a
successor Administrative Agent as provided above.
(d) Upon a resignation of the Administrative Agent pursuant to this
subsection 9.10, the Administrative Agent shall remain indemnified to the extent
provided in this Agreement and the other Loan Documents and the provisions of
this Section 9 (and the analogous provisions of the other Loan Documents) shall
continue in effect for the benefit of the Administrative Agent for all of its
actions and inactions while serving as the Administrative Agent.
9.11 Syndication Agent and Lead Arrangers. 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.
9.12 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
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or indirectly, by such Agent as tax or otherwise, including any penalties or
interest and together with any expenses incurred.
Section 10. Miscellaneous.
10.1 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
10.1. The Required Lenders may, or, with the written consent of the Required
Lenders, the 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, the 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 Term Loan 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 Term Loan Commitment or change the currency in which any Term
Loan 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 Term Loan Commitment of all Lenders
shall not constitute an increase of the Term Loan Commitment of any Lender,
and that an increase in the available portion of any Term Loan Commitment
of any Lender shall not constitute an increase in the Term Loan Commitment
of such Lender);
(ii) amend, modify or waive any provision of this subsection 10.1(a)
or reduce the percentage specified in the definition of Required 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 7.4 or 10.6(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);
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(iv) require any Lender to make Term Loans having an Interest Period
of longer than six months without the consent of such Lender;
(v) amend, modify or waive any provision of Section 9 without the
written consent of the then Administrative Agent and of any Lead Arranger
affected thereby; or
(vi) amend, modify or waive the order of application of payments set
forth in subsections 3.4(d) or 3.8(a) hereof, or Section 4 of the
Intercreditor Agreement in each case without the consent of the
Supermajority Lenders;
provided, further, that, notwithstanding and in addition to the foregoing, the
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 10.1 shall apply to each of the Lenders and shall be binding
upon the Loan Parties, the Lenders, the Agent and all future holders of the Term
Loans. In the case of any waiver, each of the Loan Parties, the Lenders and the
Agent 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 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 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, (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 Tranche 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 10.1(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 10.1(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 10.6 (with the assignment fee
and any other costs and expenses to be paid by the Borrowers in such instance)
all of its rights and obligations under this Agreement to one or more assignees;
provided that neither the 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
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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 Term 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
10.1(d), if the Non-Consenting Lender does not execute and deliver to the
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 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
Term 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.
10.2 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 Administrative Agent and the 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 Term Loans:
The Parent Borrower: RSC Equipment Rental
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
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Xxxxxxxxx & Xxxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxxxx, Esq.
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
The Administrative Agent: Deutsche Bank AG, New York Branch
the Administrative Agent
00 Xxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxxx Xxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
The Collateral Agent: Deutsche Bank AG, New York Branch
the Collateral Agent
00 Xxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxxx Xxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
provided that any notice, request or demand to or upon the Administrative Agent
or the Lenders pursuant to subsection 2.3, 3.2, 3.4 or 3.8 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 Administrative Agent, 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 Administrative Agent or such Issuing Lender
in good faith to be from a Responsible Officer.
10.3 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.
10.4 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 Term Loans
hereunder.
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10.5 Payment of Expenses and Taxes. The Borrowers jointly and
severally agree (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 transactions (including the syndication of the Term Loan Commitments)
contemplated hereby and thereby and (iii) efforts to monitor the Term 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 Term 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 Administrative Agent, any other Agent or any Lender with respect to
indemnified liabilities arising from (i) the gross negligence or willful
misconduct of the 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 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
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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 10.2, or to such other Person or address as may
be hereafter designated by the Parent Borrower in a notice to the Administrative
Agent. Notwithstanding the foregoing, except as provided in clauses (b) and (c)
above, no Loan Party shall have any obligation under this subsection 10.5 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 shall survive
repayment of the Term Loans and all other amounts payable hereunder.
10.6 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,
except that (i) other than in accordance with subsection 7.4, 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.
(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 Term Loan Commitment and/or Term 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 8(a)
or (f) has occurred and is continuing, any other Person; provided, further,
that, unless an Event of Default under subsection 8(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 Administrative Agent, provided that no consent of the
Administrative Agent shall be required for an assignment to a Lender, an
affiliate of a Lender or 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 Term Loan Commitments or
Term Loans under any Tranche, the amount of the Term Loan Commitments
or Term 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
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Administrative Agent) shall not be less than $1,000,000 unless the
Parent Borrower and the Administrative Agent otherwise consent,
provided that (1) no such consent of the Parent Borrower shall be
required if an Event of Default under subsection 8(a) or (f) has
occurred and is continuing and (2) such amounts shall be aggregated in
respect of assignments by each Lender and its affiliates or Approved
Funds, if any;
(B) the parties to each assignment shall execute and deliver to
the 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) no assignments may be made to any entities identified by the
Sponsors to the Administrative Agent in a separate writing prior to
the date hereof; and
(D) the Assignee, if it shall not be a Lender, shall deliver to
the Administrative Agent an administrative questionnaire.
(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 3.10, 3.11, 3.12, 3.13 and 10.5). Any
assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this subsection 10.6 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 Administrative Agent, and the
Administrative Agent agrees, to serve as the Borrowers' agent, solely for
purposes of this subsection 10.6, 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 Term Loan Commitments of, and interest and principal amount of the
Term Loans 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 each Borrower, the Administrative Agent 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
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Borrower and any Lender, at any reasonable time and from time to time upon
reasonable prior notice.
(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 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 10.6(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
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 10.6(b) would be entitled to
receive any greater payment under subsection 3.10, 3.11 or 10.5 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 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 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 Term Loan Commitments and the Term 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 Term Loan for all purposes under this Agreement and the other Loan
Documents, and (D) the Parent Borrower, the Administrative Agent 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 10.1(a) and (2)
directly affects such Participant. Subject to paragraph (c)(ii) of this
subsection, the Borrowers jointly and severally agree that each Participant
shall be entitled to the benefits of (and shall have the related obligations
under) subsections 3.10, 3.11, 3.12, 3.13 and 10.5 to the same extent as if it
were a
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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 10.7(b) as though it were a Lender,
provided that such Participant shall be subject to subsection 10.7(a) as though
it were a Lender.
(i) No Loan Party shall be obligated to make any greater payment under
subsection 3.10, 3.11 or 10.5 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 3.11 unless such Participant complies with subsection
3.11(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
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 Term 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 Term Loans it may have funded hereunder to its designating Lender
without the consent of the Parent Borrower or the Administrative Agent and
without regard to the limitations set forth in subsection 10.6(b). Each
Borrower, each Lender and the 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 10.6(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
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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 10.6(f), in
the event that the indemnifying Lender fails timely to compensate the Parent
Borrower for such claim, any Term Loans held by the relevant Conduit 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 Term Loans or Term
Loan Commitments under any Tranche with ones having different terms, it shall
have the option, with the consent of the Administrative Agent and subject to at
least three Business Days' advance notice to the Lenders under such Tranche,
instead of prepaying the Term Loans or reducing or terminating the Term Loan
Commitments to be replaced, to (i) require the Lenders under such Tranche to
assign such Term Loans or Term Loan Commitments to the Administrative Agent or
its designees and (ii) amend the terms thereof in accordance with subsection
10.1. Pursuant to any such assignment, all Term Loans and Term Loan Commitments
to be replaced shall be purchased at par (allocated among the Lenders under such
Tranche in the same manner as would be required if such Term Loans were being
optionally prepaid or such Term Loan Commitments were being optionally reduced
or terminated by the Parent Borrower), accompanied by payment of any accrued
interest and fees thereon and any amounts owing pursuant to subsection 3.12. By
receiving such purchase price, the Lenders under such Tranche shall
automatically be deemed to have assigned the Term Loans or Term Loan Commitments
under such Tranche 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.
10.7 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 Term Loans 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 8(f),
or otherwise (except pursuant to subsection 3.4, 3.13(d) or 10.6)), 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 Term Loans 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 Term Loans 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 8(a)
to set-off and appropriate and apply against any amount then due and payable
under subsection 8(a) by any Borrower any and all
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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
agrees promptly to notify the Parent Borrower and the 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.
10.8 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 the Administrative Agent.
10.9 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.
10.10 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.
10.11 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.
10.12 Submission to Jurisdiction; Waivers. Each party hereto hereby
irrevocably and unconditionally:
(a) 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;
(b) 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;
(c) 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
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similar form of mail), postage prepaid, to the Parent Borrower, the
applicable Lender or the Administrative Agent, as the case may be, at the
address specified in subsection 10.2 or at such other address of which the
Administrative Agent, any such Lender or the Parent Borrower, as the case
may be, shall have been notified pursuant thereto;
(d) 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
(e) 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.
10.13 Acknowledgements. 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 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.
10.14 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.
10.15 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
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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 10.16 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 10.16), (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.
10.16 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 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.
10.17 INTERCREDITOR AGREEMENT. EACH LENDER PARTY HERETO UNDERSTANDS,
ACKNOWLEDGES AND AGREES THAT (X) IT IS THE INTENTION OF THE PARTIES HERETO THAT
THE OBLIGATIONS ARE INTENDED TO CONSTITUTE A DISTINCT AND SEPARATE CLASS FROM
THE ABL OBLIGATIONS, (Y) AS BETWEEN THE SECURED PARTIES, IT IS THE INTENTION OF
THE PARTIES HERETO THAT THE ABL OBLIGATIONS (INCLUDING ALL POST-PETITION
INTEREST WITH RESPECT THERETO) (1) HAVE A FIRST PRIORITY SECURITY INTEREST, AND
THAT THE OBLIGATIONS HAVE A SECOND PRIORITY SECURITY INTEREST, IN ALL
COLLATERAL. EACH LENDER FURTHER UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT THE
PROVISIONS SETTING FORTH THE PRIORITIES AS BETWEEN THE HOLDERS OF ABL
OBLIGATIONS ON THE ONE HAND, AND THE HOLDERS OF OBLIGATIONS, ON THE OTHER HAND,
ARE SET FORTH IN THE INTERCREDITOR AGREEMENT.
(a) EACH LENDER AUTHORIZES AND INSTRUCTS THE COLLATERAL AGENT AND THE
ADMINISTRATIVE AGENT TO ENTER INTO THE
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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 10.17 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 ADMINISTRATIVE AGENT AND THE
COLLATERAL AGENT ARE ALSO ACTING IN AN AGENCY CAPACITY PURSUANT TO THE ABL
CREDIT AGREEMENT, AND EACH LENDER HEREBY IRREVOCABLY WAIVES ANY OBJECTION
THERETO OR CAUSE OF ACTION ARISING THEREFROM.
10.18 The Parent Borrower as Agent for the Borrowers. Each Borrower
hereby irrevocably appoints the Parent Borrower as its agent and
attorney-in-fact for all purposes under this Agreement and each other Loan
Document, which appointment shall remain in full force and effect unless and
until the Administrative Agent shall have received prior written notice signed
by the respective appointing Borrower that such appointment has been revoked.
Each Borrower hereby irrevocably appoints and authorizes the Parent Borrower (i)
to provide the Administrative Agent with all notices with respect to Term Loans
and all other notices and instructions under this Agreement or any other Loan
Document and (ii) to take such action as the Parent Borrower deems appropriate
on its behalf to obtain Term Loans and to exercise such other powers as are
reasonably incidental thereto to carry out the purposes of this Agreement and
the other Loan Documents.
10.19 Waiver. Each Borrower waives, to the fullest extent permitted by
law, any right to require the Administrative Agent or the other Lenders to (i)
proceed against any other Borrower, any Guarantor or any other party, (ii)
proceed against or exhaust any security held from any Borrower, any Guarantor or
any other party or (iii) pursue any other remedy in the Administrative Agent's
or the Lenders' power whatsoever. Each 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 Borrower, any Guarantor or any other party
or on or arising out of any defense of any other 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 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 Borrower, in each case other than as a result of
the payment in full in cash of the Obligations.
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10.20 Nature of Obligations. Notwithstanding anything to the contrary
contained elsewhere in this Agreement, it is understood and agreed by the
various parties to this Agreement that all Obligations to repay principal of,
interest on, and all other amounts with respect to Term Loans and each Note, and
all other Obligations arising hereunder and under the other Loan Documents to
which the Borrowers are a party (including all fees, indemnities, taxes and
other Obligations in connection therewith) shall constitute the joint and
several obligations of each of the Borrowers. In addition to the direct (and
joint and several) obligations of the Borrowers with respect to Obligations as
described above, all such Obligations shall be guaranteed pursuant to, and in
accordance with the terms of, the Guarantee and Collateral Agreement.
(a) The obligations of each 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 Borrower
or any such Guarantor is joined in any such action or actions. Each 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 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 Borrower.
(b) Each of the Borrowers authorizes the 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
Borrower or any Guarantor or others or otherwise act or refrain from
acting;
(ii) release or substitute any other Borrower, endorsers, Guarantors
or other obligors;
(iii) settle or compromise any of the Obligations of any other
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 Borrower or any other Person,
howsoever realized or otherwise received to or for the account of such
Borrower to any liability or liabilities of such other Borrower or other
Person regardless of what liability or liabilities of such other 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 Borrower or any other Person.
(c) It is not necessary for the Administrative Agent or any other
Lender to inquire into the capacity or powers of any Borrower or any of its
Subsidiaries or the officers,
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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 Borrowers hereunder.
(d) No Borrower shall have any rights of contribution or subrogation
with respect to any other Borrower as a result of payments made by it hereunder,
in each case unless and until the Total Term Loan Commitment has been terminated
and all Obligations have been paid in full.
Section 11. Holdings Guaranty.
11.1 Guaranty. (a) In order to induce the Administrative Agent, the
Collateral Agent and the Lenders to enter into this Agreement and to extend
credit hereunder, and to induce the other Guaranteed 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 Term Loans, and the entering into of such Interest Rate Protection
Agreements and Permitted Hedging Arrangements, Holdings hereby agrees with the
Guaranteed 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 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 Administrative Agent
and/or the other Guaranteed Creditors on demand, together with any and all
expenses which may be incurred by the Administrative Agent 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 11 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 11 shall remain in full
force and effect until the first date on which all the Term Loans, the
obligations of Holdings under the guarantee contained in this Section 11 then
due and owing shall have been satisfied by payment in full in cash and any Term
Loan Commitment shall have been 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.
11.2 Bankruptcy. Additionally, Holdings unconditionally and
irrevocably guarantees the payment of any and all of the Guarantor Obligations
to the Guaranteed Creditors
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whether or not due or payable by any Borrower upon the occurrence of any of the
events specified in subsection 8.1(f), and irrevocably and unconditionally
promises to pay such indebtedness to the Guaranteed Creditors on demand, in
lawful money of the United States.
11.3 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 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 11.5, or (g) any invalidity, irregularity or
enforceability of all or any part of the Guarantor Obligations or of any
security therefor.
11.4 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.
11.5 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 Administrative Agent or any other
Guaranteed Creditor may be rescinded by the 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 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
Administrative Agent (or the Required Lenders or the applicable Lender(s), as
the case may be) may deem advisable from time to time,
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and any collateral security, guarantee or right of offset at any time held by
the 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 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 11 or any
property subject thereto, except to the extent required by applicable law.
11.6 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.
11.7 No Subrogation. Notwithstanding any payment made by Holdings
hereunder or any set-off or application of funds of Holdings by the
Administrative Agent or any other Guaranteed Creditor, Holdings shall not be
entitled to be subrogated to any of the rights of the Administrative Agent 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
Agent 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 the Administrative Agent
and the other Guaranteed Creditors by the Borrowers on account of the Guarantor
Obligations are paid in full in cash and all Term Loan Commitments have been
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 of the Term Loan Commitments shall remain
in effect, such amount shall be held by Holdings in trust for the 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
Administrative Agent in the exact form received by Holdings (duly indorsed by
Holdings to the Administrative Agent if required), to be held as collateral
security for all of the Guarantor Obligations (whether matured or unmatured)
guaranteed by Holdings and may be applied against any Guarantor Obligations,
whether matured or unmatured, in such order as the Administrative Agent may
determine.
11.8 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 Agent, the Collateral Agent or any other Guaranteed
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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.
(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 11, 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 each 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 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.
11.9 Payments. All payments made by Holdings pursuant to this sub
Section 11 shall be made in Dollars and will be made without setoff,
counterclaim or other defense, and shall be subject to the provisions of
subsections 3.8 and 3.11.
11.10 Maximum Liability. It is the desire and intent of Holdings and
the Guaranteed Creditors that the guarantee contained in this Section 11 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 11 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 11 shall be deemed to be reduced and Holdings shall
pay the maximum amount of the Guarantor Obligations which would be permissible
under applicable law.
-115-
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.
[SIGNATURE PAGES TO BE PROVIDED SEPARATELY]
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
[Second-Lien Credit Agreement-Signature Page]
DEUTSCHE BANK SECURITIES INC.,
as a Joint Lead Arranger
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Director
By: /s/ Xxxxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxxxx X. Xxxxx
Title: Director
[Signature Page to Second-Lien Term Loan Credit Agreement]
DEUTSCHE BANK AG, NEW YORK BRANCH,
Individually and as Administrative
Agent and Collateral Agent
By: /s/ XXXXXXXXXX XXXXXX
------------------------------------
Name: XXXXXXXXXX XXXXXX
Title: DIRECTOR
By: /s/ Xxxxxx Xxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Vice President
[Signature Page to Second-Lien Term Loan Credit Agreement]
CITICORP NORTH AMERICA, INC.,
as Syndication Agent
By: /s/ Xxxxx Xxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxx
Title: Vice President
[Signature Page to Second-Lien Term Loan credit Agreement]
SCHEDULE A
COMMITMENTS
Initial Term Loan Commitment
----------------------------
Deutsche Bank AG, New York Branch $1,130,000,000
TOTAL: $1,130,000,000
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
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 4.2
to Credit Agreement
Schedule 4.2: Material Adverse Effect Disclosure
None.
3
Schedule 4.4
to Credit Agreement
Schedule 4.4: 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 Xxxx Xxxxxx Xxxxxx, R. Xxxxxx Xxxxxx, Xxxxxxx X.
Xxxxxx, Xxxxxx X. Xxxxxx, Xx. and Xxxxxxxx X. Xxxxxx (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 Xxxxx X. and Xxxxxxx X. Xxxxxxx (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 Xxxxx X. and Xxxxxxx X. Xxxxxxx
(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 Xxxxxxxxxx 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 Xxxxx 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 Xxxxxxxxxx Refinery Services and Xxxx Xxxxxx Xxxxx,
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 Xxxx Xxxxxx Xxxxx, L.L.C. and
RSC, successor to Xxxxxxxxxx Refinery Services, dated September 5, 2003
(Property ID Number 556-01).
9. Lease Agreement between Xxxxxxx 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).
4
Schedule 4.4
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 Xxxxxx X. Xxxxx (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 Xxxx X. and Xxxxxxxxx X. Xxxxxx (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 Xxxxxxxxx Xx 00000 dated July 16, 2003 between the Company and
Bay4 Capital LLC.
17. Lease Agreement between Xxxxx 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
5
Schedule 4.4
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 Xxxx-Xxxxx-Xxxxxx Antitrust Improvements
Act of 1976, as amended.
6
Schedule 4.8
to Credit Agreement
Schedule 4.8: Real Property
I(a) Owned Real Property
STATE CITY ADDRESS ZIP CODE
-------------- ------------- ------------------------------- --------
1. Florida Ft. Xxxxxx 3019 S. US Highway 1 34982
2. Florida Pensacola 0000 X. Xxxxxxxxx Xxxxxxxxx 00000
3. Iowa Muscatine 0000 Xxxxxxxxxx Xxxxxx 00000
0. Xxxxx Xxxxxxxx Winston-Salem 0000 X. Xxxxxxxxx Xxxxxx 00000
5. Texas Wichita Falls 0000 Xxxxxxxx Xxxxxx Xxxx Coded 76306
I(b) Leased Real Property
XXXXX XXXXXX
# # XXXXXXXX XX# XXXXXXX XXXX XXXXX
----- ------ ------------ ------------------------------------------------------- ----------------- -----
1 9 R-001-01 0000 000xx Xxxxxx Xxxxxxxx XX
2 9 R-002-01 0000 00xx Xxxxxx Xxxxxxxxxx XX
4 9 R-004-01 00000 000xx Xxx. Xxxxxxxx XX
6 9 R-006-02 000 XxxXxxxxx Xxxxxxxx Xxxx XxXxxxxx XX
6 9 R-006-03 000 XxxXxxxxx - (xxx xxxxx) Xxxx XxXxxxxx XX
7 9 R-007-02 0000 Xxxxxxx Xxx, #000 Xxxxxxxx Xxxx XX
8 9 R-008-04 0000 Xxxxxx Xxxxxx Xxxxxxxxx XX
9 9 R-009-01 000 XxXxxxxx Xx. Xxxxx Xxxxxx XX
10 9 R-010-02 0000 0xx Xxxxxx XX Xxxxxxx XX
11 9 R-011-02 0000 00xx Xxxxxx Xxx Xxxx XX
12 9 R-012-01 0000 00xx Xxxxxx Xxxxxxxxxx XX
13 9 R-013-01 00 00xx Xxxxxx Xxxx Xxxxxx Xxxxxx XX
14 3 R-014-01 0000 X. Xxxxxx Xxxxxx Xxxxxxxxxxxx XX
15 3 R-015-01 0000 Xxxxxxx Xxxxxxx Xxxxxxxxxxxx XX
16 7 R-016-01 0000 Xxxxxx Xxxxxxx Xxx. Xxxxxxxx XX
18 2 R-018-01 000 Xxxxx Xxxx Xxxx Xxxxxxx XX
21 7 R-021-01 00000 Xxxxxxx 00 Xxxxxxxx XX
22 2 X-000-00 X.X. Xxxxxxx 00 Xxxxx XX 000 Xxxxxxx 00 Xxxx Xxxxxxx XX
26 7 R-026-03 0000 Xxxxxx Xx Xxxxxxx XX
27 2 R-027-02 0000 Xxxxx Xxxxx Xxxxx Xxxxxx XX
28 2 R-028-01 0000 XX 0000 Xxxxxxxx XX
31 2 R-031-01 0000 X. Xxxxx Xxxxxx Xxxxxxx Xxxxxxx XX
32 2 R-032-02 000 Xxx Xxx 00 X Xxxxxxxxxx XX
33 2 R-033-01 0000 X. Xxxxxxx 000 Xxxxxxx XX
7
Schedule 4.8
to Credit Agreement
XXXXX XXXXXX
# # XXXXXXXX XX# XXXXXXX XXXX XXXXX
----- ------ ------------ ------------------------------------------------------- ----------------- -----
34 2 R-034-01 0000 X. Xxxxxxx Xxxxx Xxxxxx XX
36 2 R-036-01 0000 Xxxxxxxxxx Xxx. 00 Xxxxx Xxxxx Xxxx XX
38 3 R-038-01 On-Site facility at Chevron Products Pascagoula MS
39 7 R-039-01 000 Xxxxxxx 00 Xxxxx Xxxxxxxxx XX
40 7 R-040-01 000 X. Xxxxx Xxxxxx Xxxxxx Xxxxxxx XX
41 7 R-041-01 0000 Xxxxxxx 00 Xxxx Xxxxxxx XX
42 7 R-042-01 0000 Xxxxxxx 00 Xxxxx Xxxxxxxxxxx XX
43 9 R-043-03 00000 Xxxxxx Xxxx 00 Xxxxx XX
44 7 R-044-02 000 Xxxxxxx Xxxxxx Xxxxxxxx XX
45 3 R-045-01 00000 00xx Xxxxxx X. Xxxxx XX
46 3 R-046-01 0000 XX Xxxxxxx 00 Xxxx Xxxxxx XX
46 3 R-046-02 00000 X.X. 00 Xxxxx Xxxx Xxxxxx XX
48 3 R-048-01 0000 Xxxxxx Xxxxxx Xx. Xxxxx XX
51 8 R-051-01 0000 Xxxxxxx 00 Xxxx Xxxxxxx XX
52 3 R-052-02 0000 Xxxxxxxx Xxxxxx Xxxxxxxxxx XX
54 3 R-054-01 0000 Xxxxxxxx Xx. Xx Xxxxxx XX
55 3 R-055-01 0000 Xxxxxxxxxx Xxxx Xxxxxxxx XX
56 3 R-056-01 0000 Xxxx Xxxxxxx Xx. Xxxxxxxx XX
57 3 R-057-01 0000 Xxxxxxxxx Xxxx Xxxxxx XX
57 3 R-052-02 0000 Xxxx Xxxx Xxxxxx Xxxxxx XX
58 3 R-058-01 00 Xxxxxxx Xxxx Xxxxxx XX
59 3 R-059-01 0000 Xxxxxxxx Xxx. Xxxxxxxxxxxx XX
60 3 R-060-01 000 Xxx 000 X.X. - Combined location with RSC District
Office #163 - Same Lease Riverdale GA
61 7 R-061-01 0000 Xxxxxxxxx Xxxx Xxxxxxxxx XX
66 3 R-066-01 0000 Xxxxxxxxx Xxxxx Xxxxxxxxxx XX
67 3 R-067-01 000 X. Xxxxxxxx Xxxx. Xxxxxx XX
68 4 R-068-01 0000 Xxx Xxxxxxxx Xxxx. Xxxxxxx XX
69 8 R-069-01 0000 Xxxxxxx 00 Xxxxxxxxxxx XX
71 3 R-071-01 Lot 000 Xxxxxxx 0 Xxxxxxx XX
72 3 R-072-01 00 Xxxxx Xxxxxx Xxxxxx XX
73 3 R-073-01 0000 Xxxxxx Xxxxx Xxx. Xxxx XX
75 3 R-075-02 0000 Xxxxxxxx Xxxxxxxxx Xxxx Xxxx Xxxxx XX
77 3 R-077-01 0000 Xxxxx Xxx. Xxxxxxx Xxxxx XX
80 8 R-080-02 00000 X.X. Xxxxxxx 00 Xxxxxxxxx XX
81 8 R-081-01 0000 Xxxxxx Xxxxx Xx. Xxxxxxxxxx XX
82 8 R-082-02 0000 X 0xx Xxxxxx Xxxxxx Xxxxxx XX
99 6 R-099-01 0000 X. Xxxxxxxx XXX 000 Xxxxxxxxxx XX
8
Schedule 4.8
to Credit Agreement
XXXXX XXXXXX
# # XXXXXXXX XX# XXXXXXX XXXX XXXXX
----- ------ ------------ ------------------------------------------------------- ----------------- -----
99 6 R-884-01 00000 X Xxxxxx Xxxx Xxxxxxxxxx XX
99 6 R-884-02 0000 X. Xxxxxxxx Xxxxxxx, #0000 Xxxxxxxxxx XX
100 6 R-100-01 000 X. Xxxxx Xxxx Xxxxx XX
107 7 R-107-01 00000 Xxxx Xxxxxxx Xxxxxxx Xxxxxxxxx XX
110 7 R-110-01 0000 Xxxxxxxx Xxxx. Xxxxxxxxxx XX
111 7 R-111-01 000 Xxxxxxxx Xxxxxx Xxxxxxxxx XX
112 2 R-112-01 0000 Xxxxxxxxx Xxxx. Xxxxxxx Xxxxx XX
113 2 R-113-02 0000 Xxxxxx Xx Xxxxx XX
113 2 R-113-03 0000 Xxxx Xxxxxxxx Xxxxxx Xxxxx XX
115 7 R-115-02 0000 Xxxxxxx 00 Xxxx Xxxxxxxxx XX
116 7 R-116-01 00000 X. Xxxx Xx. Xxxxx XX
118 7 R-118-01 00000 Xxx. 00 Xxxxxxxxxx XX
119 7 R-119-01 0000 XX 0000 Xxxxxx XX
120 7 R-120-01 000 Xxxxxx X Xxxxx Xxx Xxxx XX
121 2 R-121-01 0000 XX 00 Xxx Xxxxxx XX
122 2 R-122-01 0000 X. Xxxxxxx XX Expy. Killeen TX
126 2 R-126-02 00000 X XX-00 Xxxxxx XX
127 2 R-127-01 0000 Xxxxxx Xx Xxx Xxxxxx XX
130 7 R-130-01 00 Xxxxx Xxxx Xxxxxxx XX
131 5 R-131-01 0000 Xxxxxxx Xxxx Xxxxxx Xxxx XX
131 5 R-131-02 00000 Xxxxx Xxxxx Xxxxx Xxxxxxxxx XX
132 5 R-132-01 0000 Xxxxxxx Xxxx Xxxxxx Xxxx XX
135 5 R-135-01 0000 X. Xxxx Xxxxxxxxxxxx XX
136 5 R-136-01 0000 Xxxxxxx Xxxx Xxxxxxxxx XX
138 7 R-138-01 0000 X. Xxxxxxxx Xxxx Xxxxxxxx XX
139 5 R-139-01 0000 Xxxxxxxx Xxxxx Xxxx Xxxxxxx XX
139 5 X-000-00 Xxxxxxx 00/Xxxxx-Xxxxxxx Xxxx Xxxxxxxx XX
141 3 R-141-01 000 Xxxxxx Xxxxxx Xxxx Xxxxxx Xxxxx XX
142 3 R-142-04 000 X.X. 00xx Xxxxxx Xxxxxxx Xxxxx XX
143 3 R-143-03 0000 Xxxxx Xxxxxx Xxxxxxxxx XX
145 3 R-145-02 00000 Xxxxxxx 00 Xxxx Xxxxxxxxxxx XX
151 3 R-151-02 000 Xxxxxxxxxx Xxxxx Xxxxxxxxxx XX
152 3 R-152-02 0000 Xxxxxxx Xxxxx Xxxx Xxxxxx XX
153 3 R-153-01 000 Xxxxxxx 000 Xxxxxxxxx Xxxx XX
154 3 R-154-02 0000 Xxxxxx Xxxxx Xx Xxxxxx XX
156 3 R-156-01 0000 Xxxx 00xx Xxxxxx Xxxxxx Xxxx XX
157 3 R-157-01 000 Xxxxxxxxxx Xxxxx Xxxxxxx XX
159 3 R-159-01 0000 XxXxxx Xxxx Xxxxxx XX
9
Schedule 4.8
to Credit Agreement
XXXXX XXXXXX
# # XXXXXXXX XX# XXXXXXX XXXX XXXXX
----- ------ ------------ ------------------------------------------------------- ----------------- -----
160 3 R-160-01 000 Xxxxxxxxx Xxxx Xxxxx XX
163 3 R-163-01 000 Xxx 000 X.X.: Combined location with RSC Store Xxxxxxxxx XX
#000 - Same Lease
165 3 R-165-01 0000 Xxxx Xxxxxxx Xx. (same lease as store #56) Columbus GA
166 3 R-166-01 000 Xxxx Xxxxxx Xxxxxx Xxxxxx XX
167 3 R-167-02 000 Xxxxx Xxxxxxx Xxxx Xxxx Xxxxxx Xxxxxx XX
169 8 R-169-03 0000 Xxxxxxxx Xxxx Xxxxxxx XX
170 8 R-170-01 0000 Xxxxx Xxxxxx XX Xxxxxxxxx XX
171 8 R-171-02 00000 Xxxxxxxxx Xxxx Xxxxxxxxx XX
173 8 R-173-01 0000 X. X. Xxxxxxx Xxx. Xxxxxxxxxx XX
174 8 R-174-01 000 Xxxx Xxxxxx Xxxxxxxxxx XX
175 8 R-175-02 000 Xxxx Xxxxxx Xxxxxxxxx Xxxxxxxxxxx XX
176 8 R-176-03 000 Xxxxxxxx Xxxxxx Xxxxxxxxx XX
177 8 R-177-01 0000 X. Xxxxxx Xxxxxx Xxxxxxxxxxxx XX
178 8 R-178-01 000 Xxxxxxx Xxxxx Xxxxxxxx XX
180 4 R-180-01 000 Xxxxxxxx Xxxxxx Xxxxxx Xxxxx XX
184 3 R-184-01 000 Xxxxxxxx Xxxxx Xxxxxx Xxxx XX
188 4 R-188-01 0000 Xxxxxxx 00 Xxxx Xxxxxx XX
190 4 R-190-01 000 Xxxxx 00xx Xxxxxx Xxxxxxxx XX
191 4 R-191-01 0000 Xxxxxxxxxx Xxxx. Xxxxxxxxx XX
193 4 R-193-01 00000 Xxxxxxxxxx Xxxx Xxxxxxxx XX
195 4 R-195-01 0000 Xxxxx Xxxxx Xxxxxxxxxx XX
196 4 R-196-01 0000 Xxxxxxx Xxx. Xxxx Xxxxxxxxxxx XX
201 4 R-201-01 000 Xxxx Xxx Xxxx Xxxxx XX
202 4 R-202-01 0000 Xxxxxxxx Xxxx Xxxxx XX
203 4 R-203-02 0000 Xxxxxxx Xxxx Xxxxxxxxxxxxxx XX
204 4 R-204-01 0000 Xxxxxxxxxx Xxxx Xxxxxxxxxx XX
206 4 R-206-01 0000 Xxxxxxxx Xxxxx Xxxxxxxx XX
207 4 R-207-02 0000 Xxxxxxxxx Xxxxxxxxx Xxxxxxxxx XX
210 8 R-210-01 0000 00xx Xxxxxx Xxxxxx XX
212 5 R-212-01 0000 XX Xxxxxxxx Xxx Xxxxxx XX
213 5 R-213-01 0000 0xx Xxxxxx XX Xxxxx Xxxxxx XX
214 8 R-214-01 4419 & 0000 Xxxx Xxxxxx Xxxx Xxxxxxx XX
216 8 R-216-01 0000 Xxxxxxx Xxxxx Xxxxxx XX
218 5 R-218-01 0000 XX 0xx Xxxxxx Xxxx XX
219 8 R-219-01 000 X. Xxxxxxx Xxx. X. Xxxxxxx XX
221 5 R-221-01 0000 X. Xxxxxxx Xxxxxxxxxxx XX
223 2 R-223-03 0000 X. Xxxxxxx Xxxx Xxxxxxxxxx XX
10
Schedule 4.8
to Credit Agreement
XXXXX XXXXXX
# # XXXXXXXX XX# XXXXXXX XXXX XXXXX
----- ------ ------------ ------------------------------------------------------- ----------------- -----
224 8 R-224-01 00000 Xxxxx Xxxx Xxxxxxxx XX
224 8 R-224-02 00000 Xxxxx Xxxx Xxxxxxxx XX
225 8 R-225-01 0000 00xx Xxxxxx Xxxxxxxx XX
226 8 R-226-01 0000 Xxxx Xxxxxxx Xxxx XxX Xxxxx Xxxxxxx XX
230 5 R-230-02 0000 X. Xxxxxxxx Xxxxxx Xxxx Xxxxx XX
231 2 R-231-01 0000 Xxxxx Xxxx. Xxxxxxxxx XX
232 5 R-232-01 0000 X. 0xx Xxxxxx Xxxxxx XX
232 5 R-232-02 0000 X. 00xx Xxxxxx Xxxxxx XX
233 5 R-233-01 0000 Xxxxxx Xxxx Xxxxxxxxx XX
235 5 R-235-01 000 X. Xxxxxxxx Xxxxxx Xxxxxxxxxxx XX
235 5 R-235-02 0000 Xxxxx Xxxxxx Xxxx 000 Xxxxxxxxxxx XX
237 5 R-237-01 0000 X. Xxxxxxxx Xxxxxxxxxxxx XX
238 5 R-238-01 0000 Xxxxxx Xxxxxx Xxxx Xxxxx XX
239 5 R-239-01 0000 Xxxxxx Xxxxx Xx. Xxx Xxxxxxx XX
240 3 R-240-01 000 Xxxx Xxxxxx Xx. Xxxxxxxxxxx XX
241 3 R-241-01 0000 X. Xxxxxx Xx. Xxxxxxxxxxx XX
243 3 R-243-01 0000 Xxxxxxx Xxxxxx XX Xxxxxxxxxxx XX
244 3 R-244-02 000 X.X. Xxxxxxxxx Xxxxxxx Xxxx Xxxx XX
245 3 R-245-02 0000 Xxxxx Xxxxxxxxx Xxxx Xxxxxxxx XX
247 8 R-247-01 0000 X. Xxxxxxxxx Xxxxxx Xxxxxxxx XX
248 8 R-248-01 0000 Xxxxx Xxxxxx Xxxx Xxxxxxx XX
249 2 R-249-01 0000 XX Xxxxxx Xxxx Xxxxxxxxxxxx XX
249 2 R-249-02 Lot Next Door Bartlesville OK
250 5 R-250-01 0000 Xxxxxxxxx Xxxxxx Xxxxxxxx XX
251 5 R-251-01 0000 Xxxxxx Xxxxxx XxXxxxxx XX
252 5 R-252-03 0000 Xxxx Xxxxxx Xxxx XX
254 4 R-254-02 0000 Xxxxx Xxxxx Xxxx Xxxxxxx XX
256 5 R-256-01 000 Xx. Xxxxxxxxx Xxxxxxxxxx XX
257 5 R-257-01 0000 Xxxx Xxxx Xx. Xxxxxxx XX
260 7 R-260-01 0000 X. Xxx Xxxx - On-site facility at Bayer Baytown TX
262 7 R-262-01 0000 Xxxxxxx Xxxx - On-site facility at Citgo Channelview TX
263 7 R-263-01 000 Xxxxxxxxxx Xxxxx, XXX 000 - On-site facility at Dow Lake Jackson TX
265 7 R-265-01 0000 Xxxxx Xxxx-Xxxx #0 - On-site facility at Mobile Chalmette LA
266 7 R-266-01 585 S. Padre Island - On-site facility at Xxxx Corpus Christi TX
267 7 R-267-01 3301 Cities Service Highway - On-site Westlake LA
11
Schedule 4.8
to Credit Agreement
XXXXX XXXXXX
# # XXXXXXXX XX# XXXXXXX XXXX XXXXX
----- ------ ------------ ------------------------------------------------------- ----------------- -----
facility at Petro
268 8 R-268-01 000 X. Xxxxxxx Xxx. - On-site facility at Amoco E. Chicago IN
271 8 R-271-01 Xxxxxx Island Road - On-site facility at Amoco Chemical Decatur AL
272 5 R-272-01 000 Xxxxxxxxxx Xxxx - Xxxxxx facility at Cargill Plant Xxxxx NE
274 8 R-274-03 0000 Xxxxxx Xxxxx Xxxxxxxx XX
276 8 R-276-02 000 X Xxxxxxxxxx Xxx Xxxxxxx Xxxxxx XX
279 2 R-279-01 0000 Xxxxxxx Xxxxxx Xxxx Xxxxxxx XX
280 5 R-280-01 0000 X. Xxxxxx Xxx Xxxxxxxxxx XX
280 5 R-280-02 0000 Xxxxxxxxx Xxxxxx Xxxxxxxxxx XX
281 5 R-281-02 0000 Xxxxxxx 00 Xxxxx Xxxxx XX
282 5 R-282-01 0000 X. 00xx Xxxxxx & 0000 00xx Xxxxxx X. Xxxxxxx XX
283 5 R-283-01 000 X. Xxxxxx Xxxxxx Xxxxxxx XX
285 6 R-285-01 000000 Xxxxxxxx Xxxx Xxxxxxxxxxx XX
288 4 R-288-03 000 X. 00xx Xxxxxx Xxxxxxxxxx XX
290 6 X-000-00 Xxxxxxx Xxxxxxxxx & 00xx Xxxxxx Xxxxxx XX
290 6 R-290-01 00000 Xxxx 00xx Xxx. Xxxxxx XX
291 6 R-291-01 0000 Xxxx Xxxxxx Xxxxxx XX
292 2 R-292-01 0000 Xxxxxxxxxx 00 Xxxx Xxxxxxxx XX
293 2 R-293-01 000 Xxxxxxxxx Xxxx 000 Xxxxxxx XX
294 6 R-294-01 000 Xxxx Xxxx XX Xxxxxxxxxxx XX
295 6 R-295-01 0000 Xxxxx XX Xxxxxxxxxxx XX
296 6 R-296-01 0000 Xxxxxx XX Xxxxxxxxxxx XX
297 5 R-297-02 0000 Xxxx Xxxxxx Xxxxx Xxxxxx XX
298 5 R-298-01 00000 X. Xxxxxx Xxxx Xxxxxx XX
299 5 R-299-02 0000 Xxxxxxxxxx Xxxxxx Xxxx XX
300 6 R-300-01 0000 X. Xxxxxxxx Xxxx Xxxxxxx XX
301 6 R-301-01 000 Xxxx 00xx Xxxxxx Xxxxxxxx XX
302 6 R-302-01 00000 X. Xxxxxxx 00 Xxxxxxxxx XX
303 6 R-303-01 0000 Xxxxx Xxxxx Xxxxxxxx Xxxxxxx XX
306 5 R-306-01 0000 Xxxx 00xx Xxxxxx Xxxxx XX
308 4 R-308-01 000 X. Xxxxxxxx Xxxxxx Xxxxx XX
311 5 R-311-01 0000 X. Xxxx Xxxxxxx XX
312 5 R-312-02 0000 Xxxx Xxxxxxx Xxxxx Xxxxxxx XX
314 5 R-314-01 000 XX. Xxxxxx Xxxxxxx Xxxx Xxxxxx XX
315 5 R-315-01 000 X. Xxxxx Xxxxxxxxxxx XX
315 5 R-315-02 000 Xxxxxx Xxxxx (lot lease) Warrensburg MO
12
Schedule 4.8
to Credit Agreement
XXXXX XXXXXX
# # XXXXXXXX XX# XXXXXXX XXXX XXXXX
----- ------ ------------ ------------------------------------------------------- ----------------- -----
316 5 R-316-02 0000 Xxxxxxxx Xxxxx Xxxxxxxx XX
317 5 R-317-01 0000 Xxxxxx Xxxx Xxxxxx XX
318 2 R-318-01 0000 Xxxxx Xxxxxxxxxx Xx. Xxxxxx XX
319 5 R-319-02 0000 Xxxxx Xxxxxxx Xxxx Xx. Xxxxxx XX
320 5 R-320-01 0000 Xxxxxxxxx Xxxx Xxxxxxxx XX
322 5 R-322-01 0000 Xxxxxx Xxxx. Xxxxxxx XX
322 5 R-322-02 Xxxxxx Blvd (lot lease) Oakdale MN
323 5 R-323-01 0000 Xxxxxxx 00 Xxxx Xxxxxxxxxx XX
324 5 R-324-01 0000 Xxxx Xxxxx Xxxxxx Xxxxxx XX
325 5 R-325-02 0000 X. 000xx Xxxxxx XxXxxxx XX
326 5 R-326-01 0000 Xxxxxxxxxx Xxx. Xxxxxxx XX
326 5 R-326-02 1830 Xxxxxxx (lot lease) Lincoln NE
327 8 R-327-01 0000 X. Xxxxx Xxxxxxxx Xxxx Xxxxxxxxxx XX
328 8 R-328-01 0000 X. 00xx Xxxxxx Xxxxxxx XX
330 5 R-330-01 0000 Xxxxxxx 00 Xxxxx Xxxxxxxxx XX
331 2 R-331-01 000 Xxxxxx Xxxxxxx Xx Xxxxxx XX
332 2 R-332-01 0000 Xxxxxxxxx Xxxx. Xxxxxxxx Xxxx XX
333 2 R-333-01 000 X. Xxxxx Xxxxxx Xxxxxx Xxxxx XX
334 2 R-334-01 000 X. Xxxxxxxx Xx. Xxxxxxxx Xxxx XX
337 2 R-337-01 0000 Xxxx 00xx Xxxxxx Xxxxx XX
338 2 R-338-01 00000 X. Xxxxxxxx Xx. Xxxxx XX
339 5 R-339-01 0000 Xxxxxxxxxx Xxx. Xxxx. Xxxxxxxxx XX
340 8 R-340-01 0000 Xxxxx Xxxx Xxxxxx Xxxxxxxxxxx XX
341 5 R-341-01 0000 Xxxxxxxx Xxxxxxxxxx Xxxx Xxxxxxxxx XX
342 5 R-342-02 0000 Xxxxx Xxxxxx Xxxxxx XX
343 8 R-343-01 0000 Xxxxxx Xxxxxx Xxxxx Xxx XX
344 8 R-344-01 00 Xxxxx Xxxxx Xxxxxxx XX
345 8 R-345-01 0000 Xxxxxx Xxxxxx Xxxxxxxxx XX
346 8 R-346-01 0000 X. Xxxxxx Xxxx XX
347 8 R-347-01 0000 Xxxx Xxxxxxx Xxx. XxXxxx XX
348 8 R-348-02 0000 X. Xxxx Xxxxxx Xxxx Xxxxxx XX
350 4 R-350-01 0000 Xxxxxx Xxxx Xxxxxx XX
352 5 R-352-01 000 Xxxxx 00xx Xxxxxx Xxxxx Xxxx XX
353 7 R-353-01 0000 Xxxxx Xxxxxx Xxxx. Xxxxxx XX
354 8 R-354-02 00000 Xxxxx Xxxxxxxx Xxxx Xxxx Xxxxxxxxx XX
355 5 R-355-01 0000 Xxxxxxxx Xxxxx Xx. Xxxxx XX
357 8 R-357-02 0000 X. Xxxxxxx Xxxxxxx Xxxxxxxxxxx XX
358 5 R-358-01 000 X. 00xx Xxxxxx Xxxxxxx XX
13
Schedule 4.8
to Credit Agreement
XXXXX XXXXXX
# # XXXXXXXX XX# XXXXXXX XXXX XXXXX
----- ------ ------------ ------------------------------------------------------- ----------------- -----
359 5 R-359-02 0000 Xxx Xxxxxxx Xxxxx Xxxxxxxxxxxx XX
361 5 R-361-02 0000 0xx Xxxxxx XX Xxxxx XX
361 5 R-361-03 0000 Xxxxxxx Xxxx Xxxxx Xxxxx XX
362 5 R-362-01 0000 Xxxxx Xxxxx Xxxxxx Xxxxx Xxxxx XX
366 5 R-366-03 #00 Xxxxxxxxxx Xxxx Xxxxx Xxxxxxxxx XX
367 5 R-367-02 000 Xxxxxxxx xxxxxxxxx Xxxxxxx XX
369 5 R-369-02 00xx Xx & Xxxxxxx Xxx Xxxxxxxx XX
370 4 R-370-02 000 Xxxxx Xx Xxx Xxxxxx XX
371 4 R-371-02 0000 Xxxxxxxx Xxxxxx Xxxxxxxxx XX
372 4 R-372-01 00000 Xxxxxx Xxxxxxx Xxxxxx XX
374 4 R-374-01 0000 Xxxxxx Xxx Xxxxxxxxxxx XX
376 3 R-376-02 000 Xxxxx Xxxxxxxxxx Xxxxxxx XX
377 3 R-377-01 00000 X.X. Xxxxxxx 00 Xxxx Xxxxxxxxxx XX
378 8 R-378-01 000 Xxxxx 0xx Xxxxxx Xxxxxxxx XX
378 8 R-378-02 000 X. 0xx Xxxxxx Xxxxxxxx XX
380 8 R-380-01 0000 X. Xxxxx Xxxxxxx Xxxxxxxxxxxxx XX
381 8 R-381-01 00 Xxxxxxx Xxxxxxx Xx. Xxxxxxx XX
382 4 R-382-02 000 Xxxxx 00 Xxxx Xxxxxxxxxxxx XX
383 4 R-383-01 0000 Xxxxxxx Xxxxx Xxxx Xxxxx XX
388 8 R-388-02 000 Xxxxxx Xxxx Xxxxxxx Xxxxx XX
390 6 R-390-02 000 X. Xxxxxxxx Xxxx (xxx xxxxx) Xxxxxxx XX
390 6 R-390-01 000 X. Xxxxxxxx Xxxx Xxxxxxx XX
391 6 R-391-01 0000 X. Xxxxxx Xxxx Xxxxxx XX
392 6 R-392-01 0000 Xxxx Xxxxx xx Xxxxx Xxxx Xxx XX
393 6 R-393-01 0000 XX Xxxxx Xxxxxx Xxxxxxx XX
394 6 R-394-01 000 Xxxx Xxx Xxxx. Xxxxxx Xxxxx XX
395 6 R-395-02 0000 X. Xxxxxxx 00 Xxxxxxx XX
396 6 R-396-02 0000 XX Xxxxxxx 00 Xxxxx XX
397 6 R-397-01 0000 Xxxx Xxx. 00 Xxxxxx XX
398 6 R-398-02 000 X. Xxxxxxxx Xxxxxxx Xxxxxxxxxx XX
399 6 R-399-01 00000 Xxxxx 00xx Xxx. Xxxxxxx XX
400 6 R-400-01 000 X Xxxxx Xx Xxx. Xxxxxx XX
401 6 R-401-01 0000 Xxxxxxxx Xxxxx Xxxxxxxxx Xxxxxxx XX
402 6 R-402-02 0000 Xxxx Xxxx Xxxxx Xxxx Xxxx Xxxxx XX
403 6 R-403-02 Xxxx X-0 & X0 Xxx Xxxxxx Xx. Xxxxx Xx XX
403 6 R-403-01 0000 Xxxxxxxxx Xxxxx Xx XX
404 6 R-404-01 000 0xx Xxx. Xxxxxxx XX
405 6 R-405-02 0000 Xxx 00 Xxxx Xxxxxxxxxx XX
14
Schedule 4.8
to Credit Agreement
XXXXX XXXXXX
# # XXXXXXXX XX# XXXXXXX XXXX XXXXX
----- ------ ------------ ------------------------------------------------------- ----------------- -----
408 6 R-408-01 00000 Xxxxx Xxx Xxxxxx XX
409 6 R-409-01 0000 Xxxxxxxx Xxx. Xxx X-00 Xxxxx XX
410 6 R-410-01 000 Xxxx Xxxxxxxxxx Xxxxxxxx XX
411 6 R-411-01 00000 X. Xxxx Xxxxx Xxxx Xxxxxxx XX
412 6 R-412-02 0000 X. 0xx Xxxxxx Xxxxxxxx Xxxxxx XX
413 6 R-413-01 0000 Xxxxx Xxxxx Xxxxxx Xxxx Xxxxxx XX
414 6 R-414-01 0000 X. Xxxx Xxxxxx Xxxxxxxx XX
415 6 R-415-02 0000 Xxxxxx Xxxxxx Xxxx #000 Xxxxxxxxxxxx XX
415 6 R-415-01 000 Xxxxxxx Xxxx 450 (lot lease) Breckenridge CO
416 6 R-416-01 000 Xxxxx Xxxxxx Xxxxxxxxxxxx XX
418 6 R-418-02 000 Xxxxxx Xx Xxxxxxxx Xxxxxxx XX
419 6 R-419-01 000 X. Xxxxxx Xxxx Xxxxxxxx XX
420 6 R-420-01 000 X. 00xx Xxxxxx Xxxxxxxx XX
421 4 R-421-01 0000 Xxxxxxxx Xxxxxxxxx Xxxxxxxxx Xxxx XX
422 5 R-422-01 0000 X. 0xx Xxxxxx Xxxxx Xxxxxx XX
423 5 R-423-01 000 Xxxxx Xxxx Xxxxxxxxx XX
424 5 R-424-02 U.S. Highway 60 / 0000 Xxxx Xxxxxx Xxxxxxx XX
426 3 R-426-01 000 X.X. Xxxxxxxx Xxxx Xxxxxx XX
426 3 R-426-02 000 X.X. Xxxxxxxx Xxxx Xxxxxx XX
427 4 R-427-01 1090 & 0000 Xxxxxx Xxxx, Xx 00 Xxxxxxx XX
429 8 R-429-01 0000 Xxxxxxx 0 Xxxx Xxxxxxxxxxx XX
431 4 R-431-01 0000 Xxxxxxx 00/000 X. Xxxxxxxxx Xx. Xxxxxxxxx XX
432 8 R-432-02 000 Xxxxx Xxxxxxx Xx Xxxxxxx Xxxx XX
434 8 I S G Indiana Harbor Inc - On-site facility at
LTV Steel East Chicago IN
435 6 R-435-02 0000 Xx. Xxxx Xxxxxxx Xxxxxxxxx XX
437 6 R-437-01 0000 Xxxxx Xxxxxxxxxx Xxxx Xxxxxx Xxxxxxxx XX
438 7 R-438-01 000 Xxxxxxxxxx Xxxx Xx. Xxxxxxxxxx XX
438 7 R-438-02 Xxxxxxx 00 Xxxxxx at Xxxx Road Starkville MS
439 6 R-439-01 0000 Xx Xxxxxx Xxxxxx XX
000 4 R-442-01 0000 Xxxxxxxxxx Xxxx (Showroom) Manassas VA
443 4 R-443-02 0000 Xxxxxx Xxxx Xxxxxxxxxxxxxx XX
444 4 R-444-01 0000 X. Xxxxxxx Xxxxxx Xxxxxxxxxx XX
446 4 R-446-01 0000 Xxxxxx Xxxx Xxxxxxxxxx XX
447 4 R-447-01 0000 Xxxxxx Xxxxxx Xxxx Xxxxxxxx Xxxxx XX
447 4 R-447-02 Xxx 00 @ Xxxxxxxx Xxxxx & Xxxxxx Xxxx Xxxx Xxxxxxxx Xxxxx XX
448 7 2200 Old Spanish Trail - On-site facility
located at Conoco Westlake LA
15
Schedule 4.8
to Credit Agreement
XXXXX XXXXXX
# # XXXXXXXX XX# XXXXXXX XXXX XXXXX
----- ------ ------------ ------------------------------------------------------- ----------------- -----
449 4 R-449-01 000 X. Xxxxxxx Xxxxxx Xxxxxxxxx XX
451 3 R-451-02 0000 Xxxxx Xxxxxxxx Xxxxx Xxxxxxxxxx XX
452 7 Ppg - 0000 Xxx Xxxxx - On-site facility located at PPF Xxxxxxxx XX
000 4 R-454-03 000 Xxxxxxx Xxxxxx Xxxxxxxxxxxx XX
456 1 R-456-01 000 X. Xxxx Xxxxx Xxxxxxxxx XX
457 4 R-457-01 0000 Xxxxx Xxxx Xxxxxxxx XX
458 4 R-458-02 00000 Xxxxxx X. Xxxxxxxxxx Xxxxxxx Xxxxxx XX
459 4 R-459-02 000 Xxx Xxxxxxxx Xx. Xxxxxxxxx XX
460 4 R-460-01 000 Xxxxxxx Xxxx Xxxxxxxxx XX
462 4 R-462-03 000 Xxxxx Xxxxxxxxxx Xxxxx Xxxxxxx XX
462 4 R-462-01 000 Xxxxx Xxxxxxxxxx Xxxxx Xxxxxxx XX
462 4 R-462-02 000 X Xxxxxxxxxx Xx (Lots 2 & 3) Beckley WV
463 4 R-463-02 000 Xxxx Xxxx Xxxxxx Xxxxxxxxxxxxxxx XX
463 4 R-463-03 Xxxxx Street - lease out for signing Charlottesville VA
464 4 R-464-03 0000 Xxxxxxx Xxxxx Xxxxxxxxxx XX
465 4 R-465-01 0000-0000 Xxxxxxxxxx Xxxxx Xxxxxxxx XX
465 4 R-465-02 0000 Xxxxxx Xxxxx - Xxxxxxxx xxx Xxxxxxxx XX
466 4 R-466-01 0000 Xxxxx Xxxx Xxxx Xxxxx XX
466 4 R-466-02 0000 Xxxxx Xxxx Xxxx Xxxxx XX
472 4 R-472-05 0000 Xxxxxxxx Xx Xxxxxxxxx XX
473 4 R-473-01 000 Xxxxx Xxxx Xxxxxxxxxx XX
474 4 R-474-01 0000 Xxxxxx Xxxx Xxxx Xxxxxxx XX
475 8 R-475-02 0000 Xxxxx Xxxxxxxxx Xxxx Xxxxx Xxxx XX
476 4 R-476-01 0000 Xxxxxxxx Xxxx Xxxxxxxxxx XX
477 4 R-477-01 0000 Xxxxxx Xxxxx Xxxxxxxxxx XX
478 4 R-478-02 000 Xxxxxxxxx Xxxx Xxxx Xxxx XX
479 4 R-479-01 0000 X. Xxxxx Xxxxxx Xxxxxxxxxx XX
480 4 R-480-02 000 Xxxxxxx Xxxxx Xxxx Xxxxxxxxx XX
482 3 R-482-02 0000 Xxxxxxx Xxxxxxx Xxxxx Xxxxxxxx XX
485 8 R-485-01 0000 Xxxxxxx Xxxxx Xxxxxxxxxx XX
486 3 R-486-01 000 Xxxxxxxxx Xxxxxx Xxxx Xxxxxxxxxxxxx XX
487 3 R-487-02 0000 Xxxxxx Xxxx Xxxxxxxx XX
489 1 R-489-01 0000 X.X. Xx. Xxxxx Xx. Xxxxxxxxx XX
489 1 R-489-02 0000 XX Xx. Xxxxx Xx - (Xxx Xxxxx) Xxxxxxxxx XX
490 5 R-490-02 0000 Xxxxxxx Xxxxxxxxx Xxxxxxx XX
493 8 R-493-01 0000 X. Xxxxxxxx Xxxxxx Xxxxx Xxxxxx XX
493 8 R-493-02 0000 00xx Xxxxxx XX Xxxxx Xxxxxx XX
494 4 R-494-01 000 Xxxxxx Xxxxxx Xxxxxxxxxxxx XX
16
Schedule 4.8
to Credit Agreement
XXXXX XXXXXX
# # XXXXXXXX XX# XXXXXXX XXXX XXXXX
----- ------ ------------ ------------------------------------------------------- ----------------- -----
495 2 R-495-02 00000 XX #000 Xxxxxxxxx XX
497 3 R-497-01 0000 Xxxxxxxxxx Xx Xxxxxxxxx XX
500 1 R-500-01 0000 Xxxxxx Xxxxx, #000 Xxxxxxxx XX
501 5 R-501-01 0000 X. Xxxxxxxx Xxxxxx XX
502 6 R-502-01 0000 Xxxxxxx Xxxxxx Xxxxxxxx XX
505 1 R-505-02 000 X. XxXxxxxx Xxxxx Xxxxxxxxx XX
506 1 R-506-01 0000 Xxxxxxxx Xxxxxxx Xxxxxxxxxxx XX
508 1 R-508-01 0000 X. Xxxxxx Xxxxxx Xxxx Xxxxx XX
511 1 R-511-02 00000 Xxxxx Xxxxxx Xxxxxx Xxxxxxxx XX
512 1 R-512-01 000 Xxxxx Xxxxxxx Xxxxxx Xx Xxxxx XX
513 1 R-513-01 0000 X. Xxxxx Xxxxxx Xxxxx Xxx XX
521 6 R-521-01 0000 X. Xxxxxxxx Xxxxxx Xxxxxxxxx XX
521 6 X-000-00 Xxxxxxxxxx Xxxxx Xxxxxxxxx XX
523 6 R-523-01 0000 Xxxxxxx #00 Xxxxxxxx Xxxx XX
523 6 X-000-00 Xxxxxxxxxxx Xxxx Xxxxxxxx Xxxx XX
524 6 R-524-02 0000 Xxxxx Xxxxxxxxx Xxxx Xxxxxx Xxxx XX
527 6 R-527-01 0000 X 00xx Xxxxxx (Xxx 00) Xxxx XX
528 6 R-528-01 0000 X. 0000 Xxxxx Xxxx Xxxxxx Xxxx XX
550 1 R-550-01 0000 Xxxxxxx Xxxxxx Xxx Xxxxxxxxx XX
552 1 R-552-01 0000 X'Xxxxx Xxxxxx Xxx Xxxx XX
554 1 R-554-01 0000 Xxxxx Xxx Xxxx Xxxxxxxxxx XX
555 1 R-555-02 0000 Xxxxx Xxxxxxx 00 Xxxxxxxx XX
556 1 R-556-02 0000 Xxxxxxx Xxxxxxxxx Xxxxxxxx XX
557 1 R-557-01 0000 Xxxxxxx Xxxxxx Xxxxxxx XX
558 4 R-558-01 0000 X. XxXxxx Xxxx Xxxxxxx XX
559 1 R-559-01 000 Xxxxx Xxxx Xxxxxxxxxx XX
560 1 R-560-01 0000 X. Xxxxxxxx Xxxxx Xxxx XX
561 1 R-561-01 0000 Xxxx "X" Xxxxxx Xxxxxx XX
562 1 R-562-02 0000 Xxxxxxxx Xxxxxx Xxxxxxx XX
563 1 R-563-01 0000 Xxxxxxx Xxxx Xxxxxxx XX
565 1 R-565-01 0000 0xx Xxxxxx Xxxxx Xxxxxxx XX
565 1 R-565-03 X. Xxxxxx St. (lot lease) Xxxxxxx XX
000 1 R-566-01 0000 Xxxx Xxxxxxx Xxx Xx Xxxxxx XX
569 1 R-569-02 0000 XX Xxxxx Xxxx Xxxxxxxxx XX
570 1 R-570-01 00000 X. Xxxxxxx 00 Xxxx XX
572 1 R-572-01 0000 X. Xxx 00 Xxxxxxx XX
573 1 R-573-01 0000 X.X. Xxxxxxxx Xxxxxx Xxxxxxxx XX
575 1 R-575-01 000 X. Xxx Xxxxxx Xxxxxxxxx XX
17
Schedule 4.8
to Credit Agreement
XXXXX XXXXXX
# # XXXXXXXX XX# XXXXXXX XXXX XXXXX
----- ------ ------------ ------------------------------------------------------- ----------------- -----
578 1 R-578-01 0000 Xxxxxxx 000 Xxxxx Xxxx Xxx XX
579 1 R-579-01 0000 Xxxxxxxx Xxx Xxxxxxx Xxxxx XX
581 1 R-581-01 0000 Xxx 00X Xxxxxx XX
583 1 R-583-01 0000 Xxxxxxxxx Xxxx Xxxxx XX
601 9 R-601-03 000 Xxxxx Xxxxxxxx Xxxxxxxx XX
602 9 R-602-01 0000-0xx Xxxxxx Xxxxxxxx Xxx XX
604 9 R-604-01 0000 00 Xxxxxx X. Xxxxxxxxxx XX
605 9 R-605-01 0000 00xx Xxxxxx Xxxxxxxxxxxx XX
605 9 R-605-02 0000 00xx Xxxxxx (xxx xxxxx) Xxxxxxxxxxxx XX
608 9 R-608-01 0000 Xxxxxxxx Xx. Nepean ON
609 9 R-609-02 00 Xxxxxxx Xxxxx, Xxxx 0 Xxxxxxx XX
613 3 R-613-01 0000 Xxxxxx Xxxx Xxxx Xxxxxxxx XX
614 3 R-614-01 0000 Xxx. 00 X. Xxxxxxxx XX
616 3 R-616-01 0000 X. Xxxxx Xxxxx Xxxxx XX
617 3 R-617-01 0000 X. Xxxxxxxxxx Xxxx.(Xxx000) Xxxxxxxx XX
618 3 R-618-02 000 Xxxx Xxxxx Xxxxxx Xxxxxxxx XX
620 4 R-620-02 000 X. XxXxxxx Xxxxxx Xxxxxx XX
622 3 R-622-02 0000 X.X. XxXxxx Xxxxxxx XX
623 3 R-623-02 00000 Xxxxx Xxxxx Xxxxx Xxxxxxxx XX
624 9 R-624-01 000 Xxxx Xx Xxxxx Xxx XX
627 4 R-627-01 000 Xxx. 00 Xxxxx Xxxxxxx XX
629 4 R-629-01 000 Xxxxxxxx Xxxxx Xxxxxxx XX
630 3 R-630-01 0000 Xxxxxxx Xxxxx Xxxxxxx XX
631 4 R-631-01 0000 Xxxxxxxxx Xxxx Xxxxxxxxxxxx XX
631 4 R-631-02 0000 Xxxxxxxxx Xxxx Xxxxxxxxxxxx XX
633 4 R-633-01 342 & 000 Xxxxx Xxxxx, Xxx 000 Xxxxxxxxxxx XX
633 4 R-633-02 000 Xxxx Xxxxx Xxxxx Xxxxxxxxxxx XX
635 9 R-635-01 0000 Xxxxxx Xxxxx Xxxxxxxxx XX
641 3 R-641-02 000 Xxxxx Xxx & Xxx 00 Xxxxxxxx XX
642 3 R-642-02 0000 X. Xxxxx Xxxx 000 Xxxxx XX
644 3 R-644-01 000 0xx Xxxxxx XX Xxxxxx Xxxxx XX
650 2 R-650-01 00000 Xxxxx Xxxxxxx Xx Xxxxx XX
651 2 R-651-01 000 Xxxxxxxx Xxxxxxxxx Xxxxxxxxxx XX
653 2 R-653-01 000 Xxxx Xxxx Xxxxxxxxxx XX
654 2 R-654-03 0000 Xxxxxxxxxxxx Xxxxxx XX
655 2 R-655-01 0000 Xxxxxxx Xxxxx - xxxx #0 Xxxx XX
656 7 R-656-02 00000 Xxxxxxxxxx Xxxxxxxxx Xxxxxxxxxx XX
657 7 R-657-02 0000 Xxxxxxx 00 Xxxxxxxxxxxxxx XX
18
Schedule 4.8
to Credit Agreement
XXXXX XXXXXX
# # XXXXXXXX XX# XXXXXXX XXXX XXXXX
----- ------ ------------ ------------------------------------------------------- ----------------- -----
659 2 R-659-01 0000 X. Xxxxxxxxx Xxxxxxx XX
660 2 R-660-03 0000 Xxxxx Xxxxxxx Xxxx Xxxxx XX
662 2 R-662-02 0000 Xxx Xxxxxxxxx Xxxxxx XX
664 2 R-664-02 0000 XX 0000 Xxxx Xxxxxx XX
666 7 R-666-03 6952 & 0000 Xxxxxxx Xxxxxxx Xxxxx Xxxxx XX
668 7 R-668-01 0000 X. Xxxx Xxxxxxxxxx Xxxxxxxx XX
668 7 R-668-02 0000 X. Xxxx Xxxxxxxxxx Xxxxxxxx XX
669 2 R-669-02 0000 Xxxx Xxxxxxxx Xxxx Xxxxxxx XX
670 6 R-670-01 0000 Xxxxxxx Xxxx Xx Xxxx XX
672 7 R-672-01 00000 Xxxx Xxxxxxx Xxxxxxx Xxx Xxxxxxx XX
673 2 R-673-01 000 Xxxxx Xxxxxxx 00 Xxxxxxxxxx XX
676 2 R-676-01 0000 Xxxxx Xxxxxxxx Xxxxxxxx Xxxx XX
677 2 R-677-01 10300 I.H. 00 Xxxxx Xxxxxx XX
681 2 R-681-02 East Ben 4811a/k/Xxxxxxx Xxxx a 0000 Xxxxx Xxxxxx XX
682 4 R-682-01 0000 Xxxxx Xxxxx Xxxxxxxxx XX
683 4 R-683-01 000 Xxxxxxxx Xx Xxxxxxxxxx XX
684 1 R-684-01 00000 Xxx #00 - On-Site Trailer at AERA Energy McKittrick CA
686 1 R-686-01 000 X. Xxxxxxxxx Xxxx. Xxxxxxxxx XX
000 1 R-687-02 0000 Xxxxx Xxxxx Xxxxxx Xxxxxx XX
688 5 R-688-01 x/x Xxxxx Xxx-Xxxxxxxxxx Xxxxxxxxx, Xx. 000 - On-site Roxana IL
facility at Shell Oil
689 2 R-689-02 0000 X. XxXxxxxx XxXxxxxx XX
691 2 R-691-01 0000 Xxxxxxxx Xxxx Xxx Xxxxxxx XX
692 2 R-692-03 0000 X. Xxxxxxx Xxx Xxxxxxx XX
692 2 R-692-02 0000 X. Xxxxxxx (xxx xxxxx) Xxx Xxxxxxx XX
694 3 R-694-03 0000 Xxxxx Xxxx Xxxx Xxxxxx XX
694 3 R-694-02 0000 Xxxxx Xxxx Xxxx - Small yard and shed adjacent
to store Mobile AL
697 7 1008 E. Xxxxxx Xxxxxx Road - On-site facility at Sweeny Sweeny TX
703 3 R-703-02 0000 Xxxxxxxx Xxxxx Xxxxx XX
704 3 R-704-02 000 Xxxxxx Xxxx Xxxxxxx XX
706 3 R-706-02 0000 Xxxxxx Xxxxx Xxxxxxx XX
707 3 R-707-01 0000 Xxxxxx Xxxxxx Xxxxxxx Xxxxxxxxxx XX
708 8 R-708-01 0000 Xxxxxxxxxx Xxxx Xxxxxxxxx XX
709 2 R-709-03 0000 Xxx Xxx Xxxx, #000 Xxxxxxxxxxx XX
710 8 0000 Xxxxxxx Xxxxxx - On-site facility - East Chicago IN
712 1 R-712-02 0000 Xxxxxx Xxxxxx Xxx Xxxxxx XX
19
Schedule 4.8
to Credit Agreement
XXXXX XXXXXX
# # XXXXXXXX XX# XXXXXXX XXXX XXXXX
----- ------ ------------ ------------------------------------------------------- ----------------- -----
713 5 R-713-01 0000 Xxxxxxxx Xxxx XX Xxxxxx XX
714 2 1000 South Pine - On-site facility at Conoco Ponca City OK
716 7 R-716-03 000 Xxxxxxxx Xxxxxx Xxxxx Xxxxx XX
717 9 R-717-01 000 XxXxxxxx Xxxx, Xxxx X Xxxxxx XX
721 2 R-721-02 00000 Xxxxxxxxx Xxxxxxx XX
721 2 R-721-03 0000 XX 0000 Xxxxxxxxx XX
724 9 000 Xxxxxxxxx Xxxxxxxx - On-site facility. Ft. XxXxxxxx XX
726 2 R-726-02 0000 X. Xxxx Xxxxxx Xxxxxxxx XX
727 2 R-727-02 00000 Xxxxxxxx Xxxxxxxx Xxxx Xxxxxxx XX
727 2 R-727-03 Xxxxxxxxxx Xxxx Conroe TX
730 8 R-730-01 0000 Xxxxx X. Xxxxxx Xxxxxx Xxxxxxxxxx XX
731 8 R-731-02 0000 Xxxxxxxxxxxxx Xxxxxx Xxxxxxxxxx XX
733 8 R-733-04 0000 Xxxxxxxxxxx Xxxx Xxxxxxxx XX
734 8 R-734-02 0000 Xxxxxx Xxx Xxx Xxxxxxxxx XX
735 8 R-735-02 0000 Xxxxxxxxx Xxxxxxxxx Xxxxx Xxxxxxx XX
736 8 R-736-02 0000 X. Xxxxxxx Xxxxxx Xxxxxxxxxxxx XX
739 8 R-739-02 0000 Xxxxxxxxxxx Xxxxxxx XxXxxxxx XX
740 4 R-740-01 00000 Xxxxxxxxx Xxxxxxx Xxxxxxxxx XX
741 4 R-741-01 0000 Xxx Xxxx Xxxxxx Xxxxxxx XX
744 4 R-744-01 0000 Xxxxxxxx Xxxxxx Xxxxx Xxxxxxxxxx XX
747 5 R-747-01 0000 X. Xxxxxx Xxxxxx Xxxxx XX
749 2 R-749-01 0000 X. Xxxx Xxxxxxxxx Xxxxx XX
750 2 R-750-01 0000 Xxxx Xxxxxxxx 00 Xxx Xxxxxx XX
751 2 R-751-02 00000 XX 000 xx Xxxxxxx 0 Xxxxxxx XX
752 7 R-752-02 0000 Xxxxxxx Xxxxxx Xxxxxxxx XX
754 2 R-754-02 00000 Xxxxxxx 0 Xxxxxxx XX
755 2 R-755-02 0000 X. Xxxx 000 Xxxxx Xx. Xxxxx XX
756 2 R-756-03 0000 Xxxxxx X Xxxxx XX
757 2 R-757-02 00000 Xxxx Xxx Xxxx XX
759 7 R-759-01 000 X. Xxx 00 Xxxxxx Xxxx Xxxxxx XX
770 2 R-770-02 0000 Xxxx Xxxxxxx Xxxxxxx XX
800 7 R-800-01 0000 X. Xxxxxxx Xxxxxxx XxXxxxx XX
804 7 R-991-02 0000 X. Xxxxxxxx - Storage facility for Scottsdale
corporate Scottsdale AZ
804 7 R-804-02 0000 Xxxxxxx 000 Xxxxxxxx XX
804 7 R-804-03 0000 Xxxxxxx 000 Xxxxxxxx XX
808 7 R-808-02 0000 Xxxxxxxxxx XX Xxxxx Xxxxxxxxx XX
815 7 R-815-02 0000 Xxxxx Xxxxxx Xxxxx Xxxx XX
20
Schedule 4.8
to Credit Agreement
XXXXX XXXXXX
# # XXXXXXXX XX# XXXXXXX XXXX XXXXX
----- ------ ------------ ------------------------------------------------------- ----------------- -----
822 8 R-822-01 0000 Xxxxxxxx Xxx Xxxxxxxxx XX
824 7 X-000-00 Xxxxxxx 000 - Xxxx 19 - On-site facility at Shell Deer Park TX
825 7 R-825-03 8807 & 0000 Xxxxxxx 000 XxXxxxx XX
828 7 X-000-00 Xxx. 00 - Xxxx 44 - On-site facility at Shell Norco LA
829 7 R-829-01 000 Xxxxxx Xxxx - On-site facility at BASF Freeport TX
832 7 R-832-01 Xxxxxxx St. Gate - On-site facility at Mobile Beaumont TX
834 7 R-834-01 X.X. Xxx 000 - On-site facility at Rohm & Xxxx Deer Park TX
836 7 R-836-01 0000 Xxxxx Xxxx - On-site - No Lease Agreement Geismar LA
973 4 R-973-00 000-X Xxxxxxx Xx Xxxxxxxxx XX
976 5 R-976-01 0000 Xxxxxx Xxxx Xxxxxxxx XX
981 2 R-981-04 00000 Xxxx Xxx Xxxxx - 000 Xxxxxxx XX
981 2 R-981-10 00000 Xxxx Xxx Xxxxx-000 Xxxxxxx XX
983 2 R-983-02 00000 Xxxx Xxx, Xxxx #000 - Storage facility for
corporate office Katy TX
TBD 1 XXX X. Xxxxxxxxxx Xxxxxx Xxxxxxxxx XX
TBD 4 TBD 43461 Old Ox Road Sterling VA
TBD 1 XXX Xxxxxxx Xxxxxx Xxxxx XX
386 4 TBD 000 Xxxxxxx Xxxx Xxxxxxxx XX
TBD 9 TBD 0000 Xxxxxxx Xxxxx - lease out for signature Mississauga ON
TBD 7 TBD 0000 Xxxxxxxxxx Xxxxx - lease out for signature Galveston TX
21
Schedule 4.9
to Credit Agreement
Schedule 4.9: Intellectual Property Claims
1. 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 Xxxxx 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 Xxxxx 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 Xxxx Systems,
Inc. (i) has been filed or (ii) would result in a Material Adverse Effect.
22
Schedule 4.16
to Credit Agreement
Schedule 4.16: 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.
23
Schedule 4.24
to Credit Agreement
Schedule 4.24: 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 WA7-63D-004250-016 Liberty 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 WA7-63D-004250-015 Liberty Mutual 5/1/2005-5/1/2006 Statutory & $1,000,000/ $ 500,000
& Employers Liability $1,000,000/$1,000,000
24
Schedule 4.24
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
Co of IL 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
25
Schedule 4.24
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
26
Schedule 4.24
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 $2M xs $50K N/A
PITTSBURGH SIR
EAP14207766 (NP) 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 4.24
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 $2M xs $50K N/A
XXXXXXXXXX XXX
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)
28
Schedule 4.24
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 $2M xs $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"
29
Schedule 5.1(e)
to Credit Agreement
Schedule 5.1(e): Closing Date Adjustments to EBITDA
None.
30
Schedule 5.1(g)
to Credit Agreement
Schedule 5.1(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.
31
Schedule 5.1(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)
32
Schedule 5.1(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.
33
Schedule 5.1(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.
34
Schedule 5.1(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
35
Schedule 5.1(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.
36
Schedule 5.1(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
37
Schedule 5.1(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
38
Schedule 5.1(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
39
Schedule 5.1(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.
40
Schedule 5.1(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.
41
Schedule 5.1(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
42
Schedule 5.1(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
43
Schedule 5.1(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.
44
Schedule 5.1(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
45
Schedule 5.1(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)
Alabama Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Xxxxxxx 11/1/06) 11/1/06) 11/1/06)
County)
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
46
Schedule 5.1(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)
47
Schedule 5.1(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
48
Schedule 5.1(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
49
Schedule 5.1(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
50
Schedule 5.1(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)
51
Schedule 5.1(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
52
Schedule 5.1(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)
53
Schedule 5.1(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
54
Schedule 5.1(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)
55
Schedule 5.1(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
10/25/06)
Small Claims Court,
19th Circuit of St.
Lucie, Florida (02- SC-
002203 - Default Final
Judgment
56
Schedule 5.1(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
57
Schedule 5.1(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)
58
Schedule 5.1(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
59
Schedule 5.1(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
60
Schedule 5.1(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
61
Schedule 5.1(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 complained 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)
62
Schedule 5.1(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)
63
Schedule 5.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
Illinois (Will Clear (20 years through Clear (10 years through Clear (7 years through n/a
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)*
64
Schedule 5.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
Kansas (Xxxxx Clear (7 years through Clear (10 years through Clear (7 years through n/a
County) 11/1/06) 11/1/06) 11/1/06)
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)
65
Schedule 5.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
Kentucky (Xxxxx Clear (10 years through Clear (10 years through Clear (15 years through n/a
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)
66
Schedule 5.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
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)
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
67
Schedule 5.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
RSC.
(10 years through
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)
68
Schedule 5.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
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)
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)
69
Schedule 5.1(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
70
Schedule 5.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
Louis County) 10/26/06) 10/26/06) 10/26/06)
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)
71
Schedule 5.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
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)
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)
72
Schedule 5.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
Mississippi Clear (7 years through Clear (10 years through Clear (7 years through n/a
(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)
73
Schedule 5.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
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)
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)
74
Schedule 5.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
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)
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)
75
Schedule 5.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
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
County) 10/30/06) 10/30/06) 10/30/06)
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)
76
Schedule 5.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
New Mexico* Clear (10 years through 10/25/06)
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 No. 06- 00057-
8-RDD
77
Schedule 5.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
RSC Joined as a necessary
party in case In re: Xxxxx-
Xxxxxxx, Inc. (debtor), where
RSC was added as a defendant
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
78
Schedule 5.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
Point, Inc., where RSC was
defendant in action by Xxxxxxx X.
Xxxxxx (trustee in bankruptcy).
Judgment 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.
79
Schedule 5.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
09/30/05 File No. 05- 03476
Complaint filed against RSC in
case In re: X.X. Xxxxx, Inc.,
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
80
Schedule 5.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
of not less than $4,500.00.
(10 years through 10/25/06)
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)
81
Schedule 5.1(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
(Mecklenburg 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
(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.
82
Schedule 5.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
(10 years through
10/23/06)
North Carolina Clear (10 years through Clear (10 years through Clear (10 years through n/a
(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)
83
Schedule 5.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
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
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)
84
Schedule 5.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
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)
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)
85
Schedule 5.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
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)
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
86
Schedule 5.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
Enterprises Inc. for
real property located at
#39 Elk Ridge Subdivision
in Nov. 2001.
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)
87
Schedule 5.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
Pennsylvania Clear (5 years through Clear (10 years through Clear (5 years through n/a
(Dauphin 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
(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.
88
Schedule 5.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
05/02/05 File No. 05- 80123- jw
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.
89
Schedule 5.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
(10 years through
10/20/06)
South Carolina Clear (10 years through Clear (10 years through Clear (10 years through n/a
(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.
90
Schedule 5.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
Clear (10 years through
10/20/06)
South Carolina Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Florence 10/23/06) 10/23/06) 10/23/06)
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.
91
Schedule 5.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
10/30/02 File No.
2002088586 SC Dept. of
Revenue Tax Lien for
total of $6,603.14.
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
92
Schedule 5.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
Ethanol Company LLC (debtor)
where RSC was defendant in action
brought by North Central
Construction 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)
93
Schedule 5.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
Tennessee Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Xxxxxxxx County) 11/1/06) 11/1/06) 11/1/06)
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)
94
Schedule 5.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
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
(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
95
Schedule 5.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
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 $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)
96
Schedule 5.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
Texas (Collin 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 (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)
97
Schedule 5.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
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)
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)
98
Schedule 5.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
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 (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)
99
Schedule 5.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
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
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)
100
Schedule 5.1(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
(Franklin County) 10/20/06) 10/20/06) 10/20/06)
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 Xx. 000
Xx 0000
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
(Xxxxxxxxxx 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)
101
Schedule 5.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
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
(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
Xxxxxxx 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)
102
Schedule 5.1(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
(Xxxxxx County) 10/30/06) 10/30/06) 10/30/06)
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 (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)
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
(Xxxxxx 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)
103
Schedule 5.1(g)
to Credit Agreement
JURISDICTION STATE TAX LIEN FEDERAL TAX LIEN JUDGMENT LIEN BANKRUPTCY
----------------- ----------------------- ----------------------- ----------------------- ---------------------------------
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)
County)
West Virginia Clear (10 years through Clear (10 years through Clear (10 years through n/a
(Xxxxxx 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 (Xxxxx 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)*
104
Schedule 5.1(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)
105
Schedule 5.1(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
106
Schedule 5.1(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.
107
Schedule 7.2(j)
to Credit Agreement
Schedule 7.2(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.
108
Schedule 7.3(a)
to Credit Agreement
Schedule 7.3(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).
109
Schedule 7.5(j)
to Credit Agreement
Schedule 7.5(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
110
Schedule 7.7(c)
to Credit Agreement
Schedule 7.7(c): Permitted Investments
None.
111
Schedule 7.9(e)
to Credit Agreement
Schedule 7.9(e): 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
112
Schedule 7.10(b)
to Credit Agreement
Schedule 7.10(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
113
