EXHIBIT 10.9
CONFORMED COPY
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INTERCREDITOR AGREEMENT
AMONG
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION
AND
THE NOTEHOLDERS
Re: $10,000,000 6.82% Senior Secured Notes, Series A,
Due August 21, 1999,
$10,000,000 6.89% Senior Secured Notes, Series B,
Due August 21, 2000,
$10,000,000 7.04% Senior Secured Notes, Series C,
Due August 21, 2001,
and
$20,000,000 7.13% Senior Secured Notes, Series D,
Due August 21, 2002
of
U.S. RENTALS, INC.
Dated as of August 15, 1995
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TABLE OF CONTENTS
Section Heading Page
Parties............................................................. 1
Recitals............................................................ 1
Section 1. Defined Terms...................................... 2
Section 2. Appointment of Collateral Agent.................... 8
Section 3. Decisions Relating to Administration and
Exercise of Remedies Vested in the Majority
Benefited Parties.................................. 8
Section 4. Application of Proceeds............................ 10
Section 5. Preferential Payments and Special Trust Account.... 12
Section 6. Information........................................ 13
Section 7. Additional Parties................................. 14
Section 8. Disclaimers, Indemnity, Etc........................ 14
Section 9. Invalidated Payments............................... 18
Section 10. Miscellaneous...................................... 18
Signature Page...................................................... 21
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INTERCREDITOR AGREEMENT
This INTERCREDITOR AGREEMENT (as amended, restated or otherwise modified
from time to time in accordance with the terms hereof, this "Agreement") is
dated as of August 15, 1995 and entered into among the Noteholders (as
hereinafter defined), BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION
("Bank of America"), as a Lender (as hereinafter defined), and Bank of America
National Trust and Savings Association as the Collateral Agent (as hereinafter
defined). This Agreement is consented to by U.S. Rentals, Inc., a California
corporation ("USR"), by USR's execution of the acknowledgment hereto.
RECITALS
WHEREAS, USR and Bank of America (together with any Successor Lenders (as
hereinafter defined) party thereto from time to time, the "Lenders"), have
entered into the First Amended and Restated Credit Agreement dated as of August
11, 1995 (said agreement, as it may hereafter be amended, restated or otherwise
modified from time to time (the "Existing Credit Agreement") and together with
any Successor Credit Agreement, as hereinafter defined, the "Credit Agreement").
WHEREAS, USR has entered into the Note Agreements (as amended, restated or
otherwise modified from time to time, the "Note Agreement") dated as of the date
of this Agreement with the Noteholders, pursuant to which the Noteholders have
agreed to purchase USR's (i) $10,000,000 6.82% Senior Secured Notes, Series A,
Due August 21, 1999, (ii) $10,000,000 6.89% Senior Secured Notes, Series B,
Due August 21, 2000, (iii) $10,000,000 7.04% Senior Secured Notes, Series C,
Due August 21, 2001 and (iv) $20,000,000 7.13% Senior Secured Notes, Series D,
Due August 21, 2002 (collectively, the "Senior Notes").
WHEREAS, the Lenders have consented to the transactions contemplated hereby
and by the Note Agreement and Noteholders' Security Agreement (as hereinafter
defined).
WHEREAS, the loans made by Bank of America to USR are secured pursuant to a
Revised, Amended and Restated Security Agreement Receivables, Inventory,
Equipment and Documents dated as of September 30, 1990 (said agreement as it may
hereafter be amended, restated or otherwise modified from time to time being
herein referred to as the "Security Agreement"), between USR and Bank of
America, pursuant to which USR has granted a security interest to the Bank of
America in the collateral described in said Security Agreement to secure the
obligations of USR under the Credit Agreement;
WHEREAS, it is a condition precedent to the purchase of the Senior Notes by
the Noteholders under the Note Agreement and to the consent of Bank of America
to the issuance, sale and delivery of the Senior Notes by USR and the execution
and delivery of this Agreement by the Collateral Agent that USR enter into a
Second Amended and Restated Security Agreement Re: Receivables, Inventory,
Equipment and Documents dated as of the date of this Agreement (said agreement
as it may hereafter be amended, restated or otherwise modified from time to time
being herein referred to as the "Amended and
Restated Security Agreement") to secure the obligations of USR under the Credit
Agreement and to secure the obligations of USR under the Note Agreement and the
Senior Notes.
WHEREAS, the Lenders and the Noteholders (individually a "Party" and
collectively the "Parties") have agreed that the Credit Obligations (as
hereinafter defined) and the Senior Note Obligations (as hereinafter defined)
shall be secured pari passu pursuant to the Amended and Restated Security
Agreement; the Parties desire that Bank of America National Trust and Savings
Association shall be the collateral agent (the "Collateral Agent") to act on
behalf of all Parties regarding the Collateral, all as more fully provided
herein; and the Parties have entered into this Agreement to, among other things,
further define the rights, duties, authority and responsibilities of the
Collateral Agent and the relationship between the Parties regarding their pari
passu interests in the Collateral.
WHEREAS, it is contemplated that the Lenders or other financial
institutions (the "Successor Lenders") may enter into one or more agreements
with USR either extending the maturity of or refinancing all or any portion of
the Credit Obligations or making additional extensions of credit.
WHEREAS, it is contemplated that the Noteholders or other financial
institutions (the "Successor Noteholders") may enter into one or more agreements
with USR either extending the maturity of or refinancing all or any portion of
the Senior Note Obligations or making additional extensions of credit.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the sufficiency and receipt of which are hereby
acknowledged, the Parties hereto hereby agree as follows:
SECTION 1. DEFINED TERMS.
As used in this Agreement, and unless the context requires a different
meaning, capitalized terms not otherwise defined herein have the respective
meanings provided for such terms in the Note Agreement and the following terms
have the meanings indicated below, all such definitions to be equally applicable
to the singular and plural forms of the terms defined:
"Acceleration Premium Obligations" means all obligations of USR to pay a
"Make Whole Amount" (as defined in (S)8.1 of the Note Agreement) to the
Noteholders as a result of the acceleration of the Senior Note Obligations
payable under (S)6.3 of the Note Agreement or any successor provisions thereto.
"Affiliate," as applied to any Person, means any other Person directly or
indirectly controlling, controlled by, or under common control with, that
Person. For the purposes of this definition, "control" (including with
correlative meanings, the terms "controlling," "controlled by" and "under common
control with"), as applied to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the
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management and policies of that Person, whether through the ownership of voting
securities or by contract or otherwise.
"Agreement" has the meaning ascribed to that term in the introductory
paragraph hereto.
"Amended and Restated Security Agreement" has the meaning ascribed to that
term in the introductory paragraph hereto, and shall include any other
agreements or instruments relating to security given with respect to any
Benefitted Obligation which are executed and delivered after the date hereof.
"Bank Documents" means the Credit Agreement, the Credit Notes, the Amended
and Restated Security Agreement, the Letters of Credit, any documents delivered
pursuant to a Hedging Transaction with a Lender and any other collateral
document given to a Lender or the Collateral Agent.
"Bank of America" has the meaning ascribed to that term in the introductory
paragraph hereto.
"Bankruptcy Proceeding" means, with respect to any Person, a general
assignment by such Person for the benefit of its creditors, or the institution
by or against such Person of any proceeding seeking relief as debtor, or seeking
to adjudicate such Person as bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment or composition of such Person or its debts, under any
law relating to bankruptcy, insolvency, reorganization or relief of debtors, or
seeking appointment of a receiver, trustee, custodian or other similar official
for such Person or for any substantial part of its property.
"Benefited Obligations" means (a) all Credit Obligations, (b) all Senior
Note Obligations, (c) the outstanding Letter of Credit Usage, (d) all Hedging
Exposure and other obligations of USR under or arising in connection with any
Interest Rate Protection Agreement, and (e) all other amounts payable by any
Grantors under this Agreement and the Amended and Restated Security Agreement
(including, without limitation, the reasonable fees and expenses of the
Collateral Agent).
"Benefited Parties" means the holders, from time to time, of the Benefited
Obligations.
"Code" means the Uniform Commercial Code as the same may from time to time
be in effect in the State of California.
"Collateral" means all property and interests in property of the Grantors
in which a Lien has been created under the Amended and Restated Security
Agreement or the Security Agreement.
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"Collateral Agent" means Bank of America National Trust and Savings
Association in its capacity as collateral agent hereunder and any successor
collateral agent appointed pursuant to (S)8 hereof.
"Collateral Agent--Related Persons" means the directors, officers,
employees and agents of the Collateral Agent.
"Credit Agreement" has the meaning ascribed to that term in the
introductory paragraph hereto.
"Credit Notes" means the promissory notes, if any, issued by USR or any
other borrower under the Credit Agreement.
"Credit Obligations" means all outstanding and unpaid obligations of every
nature of USR from time to time to the Lenders or any of them under the Credit
Agreement, the Credit Notes and any other Bank Documents.
"Directing Party" means, with respect to any particular instruction given
to the Collateral Agent, each Party (and each Benefited Party represented by
such Party) that has given such instruction to the Collateral Agent.
"Enforcement" means the commencement of enforcement, collection (including
judicial or non-judicial foreclosure) or similar proceedings with respect to the
Collateral.
"Event of Default" means an "Event of Default" or "Default" as defined in
any Financing Agreement.
"Existing Credit Agreement" shall mean the First Amended and Restated
Credit Agreement dated as of August 11, 1995 between USR and the Lender.
"Existing Fees and Charges" means any fees, indemnities or other expenses
the payment of which is required by the Existing Credit Agreement or the
Existing Note Agreement.
"Existing Note Agreement" shall mean the Note Agreement dated as of
August 15, 1995 between USR and the Noteholders.
"Financing Agreements" means the Bank Documents, the Noteholder Documents,
any Interest Rate Protection Agreement, this Agreement, each other security
document securing the Benefited Obligations, and any other instruments,
documents or agreements entered into in connection with any Benefited Obligation
or Financing Agreement.
"Grantors" means USR and any other Person who grants any Collateral to the
Collateral Agent under the Amended and Restated Security Agreement or any other
security document securing the Benefited Obligations.
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"Hedging Exposure" means, on any date of determination for any Hedging
Transaction, the amount, as calculated in good faith and in a commercially
reasonable manner by the Lender that is USR's counterpart for such Hedging
Transaction, which such Lender would pay to a third party (such amount being
expressed as a negative number) or receive from a third party (such amount being
expressed as a positive number) in an arm's-length transaction as consideration
for the third party's entering into a new transaction with such Lender in which:
(a) such Lender holds the same position in the Hedging Transaction as it
currently holds; (b) the third party holds the same position as USR currently
holds; and (c) the new transaction has economic and other terms and conditions
identical in all respects to such Hedging Transaction except that (i) the date
of calculation shall be deemed to be the date of commencement of the new
transaction and (ii) all period end dates shall correspond to all period end
dates, if any, for such Hedging Transaction.
"Hedging Transaction" means each interest rate swap transaction, basis swap
transaction, forward rate transaction, commodity swap transaction, equity
transaction, equity index transaction, foreign exchange transaction, cap
transaction, floor transaction, collar transaction, currency swap transaction or
any other similar transaction (including any option with respect to any of these
transactions and any combination of any of the foregoing) entered into by USR
from time to time pursuant to an Interest Rate Protection Agreement; provided
that such transaction is entered into for purposes of protection from price,
interest rate, or currency fluctuations posed by debt, contract or purchase
order obligations and not for speculative purposes.
"Interest Rate Protection Agreement" means any interest rate swap, cap,
floor, collar, forward rate agreement, or other rate protection transaction, or
any combination of such transactions or agreements or any option with respect to
any such transactions or agreements now existing or hereafter entered into
between USR and any Lender.
"Lenders" has the meaning ascribed to that term in the recitals hereto.
"Letters of Credit" shall mean the standby letters of credit and the
commercial letters of credit issued pursuant to the Credit Agreement.
"Letters of Credit Usage" shall mean, as at any date of determination, the
sum of (i) the Maximum Available Amount plus (ii) the aggregate amount of all
drawings under the Letters of Credit honored by the Lenders and not theretofore
reimbursed by USR.
"Lien" means any lien, mortgage, pledge, security interest, charge or
encumbrance of any kind (including any conditional sale or other title retention
agreement, any lease in the nature thereof, and any agreement to give any
security interest).
"Majority Benefited Parties" means (a) the Required Lenders under the
Credit Agreement, and (b) Noteholders holding (or representing) at least 51% of
the outstanding principal amount of the Senior Notes, each voting as a class,
provided that if at any time the aggregate outstanding principal amount of the
indebtedness (including all Letters of Credit Usage) evidenced by the Credit
Notes or the aggregate outstanding principal amount of the
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Senior Notes represents less than 10% of the sum of the aggregate outstanding
principal amount of the indebtedness evidenced by the Senior Notes and the
Credit Notes, then "Majority Benefited Parties" shall mean Benefited Parties,
considered as a single class, holding more than 51% of the sum of (i) the
outstanding principal amount of the Senior Notes, plus (ii) the outstanding
principal amount of the Credit Notes.
"Maximum Available Amount" shall mean, as of any date of determination, the
amount that may be drawn under the Letters of Credit (whether or not the
beneficiary thereof shall have presented, or shall be entitled at such time to
present, the drafts or other documents required to draw under the Letters of
Credit).
"New Fees and Charges" means (i) any fees, indemnities or other expenses
the payment of which is not required by the Existing Credit Agreement or the
Existing Note Agreement or (ii) any increase in the amount of such fees,
indemnities or other expenses over the amount of Existing Fees and Charges.
"Non-Directing Party" means, with respect to any particular instruction
given to the Collateral Agent, each Party (and each Benefited Party represented
by such Party) that has not given or agreed with such instruction given to the
Collateral Agent.
"Note Agreement" has the meaning ascribed to that term in the recitals
hereto.
"Noteholder Documents" means (i) the Note Agreement; (ii) the Senior Notes;
and (iii) the Amended and Restated Security Agreement.
"Noteholders" means the Persons named in the Note Agreement and each other
Person which is, at the date of determination, a holder of a Senior Note.
"Opinion of Counsel" means a written opinion of an attorney or firm of
attorneys which in the case of any Person other than the Collateral Agent or
Bank of America may not be an employee of such Person but in the case of the
Collateral Agent or Bank of America may be an employee thereof, a copy of which
opinion is furnished to each Benefited Party.
"Party" has the meaning ascribed to that term in the recitals hereto.
"Person" means any individual, corporation, partnership, trust or other
entity.
"Preferential Payment" means any payments or Proceeds from USR or any other
source with respect to the Benefited Obligations (including from the exercise of
any set-off) which are:
(i) received by a Benefited Party within 90 days prior to the
commencement of a Bankruptcy Proceeding with respect to USR, or the
acceleration of the Senior Notes or the Credit Notes, and which payment
reduces the amount of the Benefited Obligations owed to such Benefited
Party below the amount owed to such Benefited Party as of the 90th day
prior to such occurrence, or
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(ii) received by a Benefited Party (A) within 90 days prior to the
occurrence of any Event of Default (other than an Event of Default arising
as a result of the commencement of a Bankruptcy Proceeding) which has not
been waived or cured within 45 days after the occurrence thereof and which
payment reduces the amount of the Benefited Obligations owed to such
Benefited Party below the amount owed to such Benefited Party as of the
90th day prior to the occurrence of such Event of Default or (B) within
45 days after the occurrence of such Event of Default, or
(iii) received by a Benefited Party after the occurrence of a
Special Event of Default except as provided in (S)5(b).
"Proceeds" has the meaning assigned to it under the Code and, in any event,
includes, but is not limited to, (a) any and all proceeds of any collection,
sale or other disposition of the Collateral, (b) any and all amounts from time
to time paid or payable under or in connection with any of the Collateral and
(c) amounts collected by the Collateral Agent or any Lender by way of set-off,
deduction or counterclaim.
"Required Lenders" means those Lenders having aggregate percentages of the
revolving loan commitments and term loan commitments under the Credit Agreement
entitled to act or refrain from acting under the Credit Agreement.
"Required Noteholders" means, with respect to any particular Event of
Default, the percentage of Noteholders required to accelerate the maturity of
the Notes as a result of such Event of Default under the provisions of the Note
Agreement.
"Security Agreement" has the meaning ascribed to that term in the recitals
hereto, and shall include any other agreements or instruments relating to
Collateral which are executed and delivered after the date hereof.
"Senior Debt" means debt for borrowed money, other than the Senior Notes
and the Credit Agreement, which is not subordinated in right of payment to any
other obligation of USR.
"Senior Note Obligations" means all outstanding and unpaid obligations of
every nature of USR from time to time to the Noteholders under the Noteholder
Documents, including, without limitation, the Acceleration Premium Obligations
and all fees, collection costs and other expenses otherwise accruing under the
Noteholder Documents.
"Senior Notes" has the meaning ascribed to that term in the recitals
hereto.
"Special Event of Default" shall mean (i) the commencement of a Bankruptcy
Proceeding with respect to USR, (ii) any other Event of Default which has not
been waived or cured within 45 days after the occurrence thereof, or (iii) the
acceleration of the Senior Notes or the Credit Notes.
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"Special Trust Account" shall mean that certain interest bearing trust
account maintained by or on behalf of the Collateral Agent for the purpose of
receiving and holding Preferential Payments.
"Successor Credit Agreement" shall mean any replacement, refinancing or
restructuring of the Existing Credit Agreement; provided that each Successor
Lender thereunder or an agent acting on behalf of all such Successor Lenders has
executed an acknowledgment to this Agreement in the form attached hereto as
Exhibit B-1.
"Successor Lenders" has the meaning ascribed to that term in the recitals
hereto.
"Successor Note Agreement" shall mean any replacement, refinancing or
restructuring of the Existing Note Agreement; provided that each Successor
Lender thereunder or an agent acting on behalf of all such Successor Lenders has
executed an acknowledgment to this Agreement in the form attached hereto as
Exhibit B-2.
"Successor Noteholders" has the meaning ascribed to that term in the
recitals hereto.
"USR" has the meaning ascribed to that term in the introductory paragraph
hereto.
SECTION 2. APPOINTMENT OF COLLATERAL AGENT.
Each of the Lenders and each Noteholder hereby irrevocably (subject to
(S)8(g)) appoints, designates and authorizes the Collateral Agent to take such
action on its behalf under the provisions of this Agreement and the Amended and
Restated Security Agreement and to exercise such powers and perform such duties
as are expressly delegated to it by the terms of this Agreement or the Amended
and Restated Security Agreement, together with such powers as are reasonably
incidental thereto. Notwithstanding any provision to the contrary contained
elsewhere in this Agreement or the Amended and Restated Security Agreement, the
Collateral Agent shall not have any duties or responsibilities except those
expressly set forth herein, nor shall the Collateral Agent have or be deemed to
have any fiduciary relationship with any Lender or any Noteholder, and no
implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or the Amended and Restated
Security Agreement or otherwise exist against the Collateral Agent.
SECTION 3. DECISIONS RELATING TO ADMINISTRATION AND EXERCISE OF REMEDIES VESTED
IN THE MAJORITY BENEFITED PARTIES.
(a) Except as set forth in (S)3(g), the Collateral Agent agrees that it
will not release Liens or Collateral or commence Enforcement without the
direction of the Majority Benefited Parties. The Collateral Agent agrees to
administer the Amended and Restated Security Agreement and the Collateral and to
make such demands and give such notices under the Amended and Restated Security
Agreement as the Majority Benefited Parties may request, and to take such action
to enforce the Amended and Restated Security Agreement
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and to realize upon, collect and dispose of the Collateral or any portion
thereof as may be directed by the majority benefited parties. The Collateral
Agent shall not be required to take any action that is in the Opinion of Counsel
contrary to law or to the terms of this Agreement or the Amended and Restated
Security Agreement, or that would in the Opinion of Counsel subject it or any of
its officers, employees, agents or directors to liability, and the Collateral
Agent shall not be required to take any action under this Agreement or the
Amended and Restated Security Agreement unless and until the Collateral Agent
shall be indemnified to its reasonable satisfaction by one or more of the
Benefited Parties against any and all loss, cost, expense or liability in
connection therewith.
(b) Each Party agrees that the Collateral Agent shall act as the Majority
Benefited Parties may request (regardless of whether any individual Party or
Benefited Party agrees, disagrees or abstains with respect to such request),
that the Collateral Agent shall have no liability for acting in accordance with
such request and that no Directing Party or Non-Directing Party shall have any
liability to any Non-Directing Party or Directing Party, respectively, for any
such request. The Collateral Agent shall give prompt notice to the Non-
Directing Parties of action taken pursuant to the instructions of the Majority
Benefited Parties to enforce the Amended and Restated Security Agreement;
provided, however, that the failure to give any such notice shall not impair the
right of the Collateral Agent to take any such action or the validity or
enforceability under this Agreement of the action so taken. Notwithstanding
anything herein to the contrary, the Majority Benefited Parties shall agree to
release the Collateral from the security interests granted for the benefit of
any Non-Directing Party only if the Collateral Agent is concurrently releasing
the security interest granted with respect to such Collateral for all Benefited
Parties having a security interest in such Collateral.
(c) Each Party agrees that the only right of a Non-Directing Party under
the Amended and Restated Security Agreement is for Benefited Obligations held by
such Non-Directing Party to be secured by the Collateral for the period and to
the extent provided therein and in this Agreement and to receive a share of the
proceeds of the Collateral, if any, to the extent and at the time provided in
the Amended and Restated Security Agreement and in this Agreement.
(d) The Collateral Agent may at any time request directions from the
Majority Benefited Parties as to any course of action or other matter relating
hereto or relating to the Amended and Restated Security Agreement. Except as
otherwise provided in this Agreement or the Amended and Restated Security
Agreement, directions given by the Majority Benefited Parties to the Collateral
Agent hereunder shall be binding on all Benefited Parties, including all Non-
Directing Parties, for all purposes.
(e) Nothing contained in this Agreement shall affect the rights of any
Party to give USR or any other Grantor notice of any default, accelerate or make
demand for payment of their respective Benefited Obligations under the Financing
Agreements or collect payment thereof other than through a realization on or in
respect of the Collateral or any part or portion thereof, nor shall anything
contained in this Agreement be deemed or construed to affect the rights of any
Party to administer, modify, waive or amend any term or provision
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of any Financing Agreement to which it and USR is a party, other than this
Agreement, the Amended and Restated Security Agreement or any other security
document securing the Benefited Obligations. If a Party (upon authorization of
the Majority Benefited Parties) instructs the Collateral Agent to take any
action, commence any proceedings or otherwise proceed against the Collateral or
enforce the Amended and Restated Security Agreement, and such action or
proceedings are or may be defective without the joinder of other Parties as
parties, then all other Parties shall join in such actions or proceedings. Each
Party agrees not to take any action to enforce any term or provision of the
Amended and Restated Security Agreement or to enforce any of its rights in
respect of the Collateral except through the Collateral Agent in accordance with
this Agreement.
(f) Any Benefited Party which has actual knowledge of an Event of
Default, or facts which indicate that an Event of Default has occurred, shall
deliver to the Collateral Agent a written statement describing such Event of
Default or facts. Failure to do so, however, does not constitute a waiver of
such Event of Default by the Benefited Parties.
(g) Unless an Event of Default has occurred and is continuing, the
Collateral Agent may, without the approval of the Benefited Parties as required
herein, release any Collateral under the Amended and Restated Security Agreement
which is permitted to be sold or disposed of by USR pursuant to the Credit
Agreement and the Note Agreement and execute and deliver such releases as may be
necessary to terminate of record the Benefited Parties' security interest in
such Collateral. In determining whether any such release is permitted, the
Collateral Agent may rely upon instructions from the Majority Benefited Parties.
SECTION 4. APPLICATION OF PROCEEDS.
(a) Any and all Proceeds received by the Collateral Agent in connection
with an Enforcement and any Preferential Payments required to be paid to all
Benefited Parties in accordance with the provisions of (S)5, shall be applied
promptly by the Collateral Agent, as follows:
First: To the payment of the reasonable costs and expenses of such
sale, collection or other realization, including, without duplication, fees
and expenses of counsel to the Collateral Agent evidenced by reasonable and
customary computer back-up detail, unpaid collateral agency fees, and all
reasonable expenses, liabilities and advances made or incurred by the
Collateral Agent in connection therewith;
Second: To the ratable payment of the Benefited Obligations to
Benefited Parties (other than Existing Fees and Charges and New Fees and
Charges), calculated in accordance with the provisions of (S)4(b) hereof;
Third: To the ratable payment of the Existing Fees and Charges to
Benefited Parties;
Fourth: To the ratable payment of the New Fees and Charges to
Benefited Parties; and
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Fifth: After payment in full of all Benefited Obligations, to the
payment to or upon the order of Grantors, or to whomsoever may be lawfully
entitled to receive the same or as a court of competent jurisdiction may
direct, of any surplus then remaining from such Proceeds.
Until such Proceeds are so applied, the Collateral Agent shall hold such
Proceeds in its custody in accordance with its regular procedures for handling
deposited funds.
(b) Any Proceeds received by the Collateral Agent in respect of the
Collateral (net of any amounts applied in accordance with (S)4(a) FIRST) shall
be applied in accordance with the priority set forth in (S)4(a) SECOND so that
each Benefited Party shall receive payment of its proportionate amount of all
such Proceeds, as the case may be. Payment shall be based upon the proportion
which the amount of such Benefited Obligations of such Benefited Party bears to
the total amount of all Benefited Obligations of all such Benefited Parties,
including, without limitation, hedging exposure to any lender. For purposes of
determining the proportionate amounts of all Benefited Obligations sharing in
any such distribution: (i) the amount of the outstanding Credit Obligations
shall be deemed to be the sum of the principal amount of the Credit Notes plus,
subject to (S)4(c), all Letters of Credit Usage and all accrued interest and
fees with respect thereto but excluding New Fees and Charges, (ii) the amount of
the outstanding Senior Note Obligations shall be deemed to be the principal
amount of the Senior Notes plus all accrued interest and fees with respect
thereto, including, without limitation, the Acceleration Premium Obligations,
but excluding New Fees and Charges, and (iii) the amount of the outstanding
Hedging Exposure shall be deemed to be the amount of USR's obligations then due
and payable (exclusive of expenses or similar liabilities, but including early
termination payments then due) in connection with any Hedging Transaction and
all accrued interest and fees with respect thereto, but excluding New Fees and
Charges.
(c) Notwithstanding anything herein to the contrary, any amounts
distributed for application to USR's liabilities with respect to any such
undrawn Letters of Credit shall be held by the Lenders as collateral security
for such liabilities until a drawing thereon, at which time such collateral
shall be applied to such liabilities. If Letters of Credit constituting part of
the Credit Obligations expire without having been drawn upon in full, the
undrawn portion shall be excluded from the Credit Obligations for purposes of
(S)(S)4(a) and (b) hereof, all as though such undrawn portion had never existed.
If distributions have previously been made under (S)(S)4(a) and (b) hereof with
respect to Letters of Credit constituting part of the Credit Obligations which
expire without having been drawn upon in full, the amounts due each Benefited
Party out of such distribution shall be redetermined by excluding the undrawn
amount of such expired Letters of Credit from the calculations under such
sections and if a redetermination reveals that there has been an overpayment to
any Benefited Party, each Benefited Party which received such an overpayment
shall pay to those other Benefited Parties who were underpaid in respect of such
distribution the amount of the underpayment and in return the remitted Benefited
Parties shall receive from each such underpaid Benefited Party a non-recourse
participation in the Benefited Obligations owing to such underpaid Benefited
Parties in the amount of the underpayment paid over to such Benefited Party.
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(d) Payments by the Collateral Agent in respect of (i) the Credit
Obligations shall be made to the Lenders in accordance with the Credit
Agreement; (ii) the Senior Note Obligations shall be made as directed in writing
by the Noteholder to whom such Senior Note Obligations are owed; and
(iii) Hedging Exposure shall be made as directed by the Lender to which such is
owed.
SECTION 5. PREFERENTIAL PAYMENTS AND SPECIAL TRUST ACCOUNT.
(a) The Collateral Agent shall give each Benefited Party a written notice
(a "Notice of Special Default") promptly after being notified in writing by a
Benefited Party that a Special Event of Default has occurred. After the receipt
of such Notice of Special Default, all Preferential Payments other than those
payments received pursuant to (S)5(b) shall be deposited into the Special Trust
Account. Each Benefited Party agrees that no event of default shall occur as a
result of payments so made on a timely basis to the Collateral Agent.
(b) If (i) such Special Event of Default is waived by the Required
Lenders or the Required Noteholders, or both, as the case may be, and if no
other Event of Default has occurred and is continuing, (ii) such Special Event
of Default is cured by USR or by any amendment of the Credit Agreement or the
Note Agreement, as the case may be, and if no other Event of Default has
occurred and is continuing or (iii) the Benefited Obligations have not been
accelerated and the Majority Benefited Parties have not instructed the
Collateral Agent to seek the appointment of a receiver, commence litigation
against USR, liquidate the Collateral, commence a Bankruptcy Proceeding against
USR, seize Collateral, or exercise other remedies of similar character prior to
the 90th day following such Special Event of Default, the Collateral Agent
thereupon shall return all amounts, together with their pro rata share of
interest earned thereon, held in the Special Trust Account representing payment
of any Benefited Obligations to the Benefited Party initially entitled thereto,
and no payments thereafter received by a Benefited Party shall constitute a
Preferential Payment by reason of such cured or waived Special Event of Default.
No payment returned to a Benefited Party for which such Benefited Party has been
obligated to make a deposit into the Special Trust Account shall thereafter ever
be characterized as a Preferential Payment. If the Special Event of Default is
an Event of Default under the terms of the Credit Agreement and the Note
Agreement, the Collateral Agent shall not return any payments to the Benefited
Parties pursuant to (i) above unless the Required Lenders and the Required
Noteholders have each waived such Special Event of Default.
(c) Each Benefited Party agrees that upon the occurrence of a Special
Event of Default it shall (i) promptly notify the Collateral Agent of the
receipt of any Preferential Payments, (ii) hold such amounts in trust for the
Benefited Parties and act as agent of the Benefited Parties during the time any
such amounts are held by it, and (iii) deliver to the Collateral Agent such
amounts for deposit into the Special Trust Account.
(d) If (i) an Event of Default has occurred and has not been waived or
cured within 90 days after the occurrence thereof, (ii) the Benefited
Obligations have been accelerated or (iii) the Majority Benefited Parties have
instructed the Collateral Agent to seek the appointment of a receiver, commence
litigation against USR, liquidate the Collateral,
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commence a Bankruptcy Proceeding against USR, seize Collateral, or exercise
other remedies of similar character, then all funds, together with interest
earned thereon, held in the Special Trust Account and all subsequent
Preferential Payments shall be applied in accordance with the provisions of
(S)4(a) above. Any Lender or any Noteholder which is aware of the same, shall
give the Collateral Agent written notice of any Event of Default which has
occurred and which has not been waived or cured within 90 days after the
occurrence thereof, provided that failure to give any such notice shall not
modify, amend or otherwise prejudice or affect the rights of any Lender or
Noteholder hereunder.
SECTION 6. INFORMATION.
If the Collateral Agent proceeds to enforce the Amended and Restated
Security Agreement or to collect, sell, otherwise dispose of or take any other
action with respect to any of such agreements or the Collateral or any portion
thereof or proposes to take any other action pursuant to or contemplated by this
Agreement, the Parties hereto agree as follows:
(a) Bank of America shall (i) promptly from time to time, upon the
written request of the Collateral Agent, notify the Collateral Agent of the
outstanding Credit Obligations as at such date as the Collateral Agent may
specify; and (ii) promptly from time to time thereafter notify the
Collateral Agent of any payment received by the Lenders to be applied to
satisfy Credit Obligations. The Lenders shall certify as to such amounts
and the Collateral Agent shall be entitled to rely conclusively upon such
certification.
(b) Each Noteholder shall (i) promptly from time to time, upon the
written request of the Collateral Agent, notify the Collateral Agent of the
outstanding Senior Note Obligations owed to such Noteholder as at such date
as the Collateral Agent may specify; (ii) promptly from time to time, upon
the written request of the Collateral Agent, notify the Collateral Agent of
the amount that would be payable as a "Make Whole Amount" under (S)6.3 of
the Note Agreement or any successor provision thereto if such "Make Whole
Amount" were payable as of such date as the Collateral Agent may specify
and (iii) promptly from time to time thereafter, notify the Collateral
Agent of any payment received thereafter by such Noteholder to be applied
to the principal of or interest or "Make Whole Amount" on the Senior Note
Obligations owing to such Noteholder. Each Noteholder shall certify as to
such amounts and the Collateral Agent shall be entitled to rely
conclusively upon such certification.
(c) Each Lender party to a Hedging Transaction shall (i) promptly
from time to time, upon the written request of the Collateral Agent, notify
the Collateral Agent of the notional amount under such Hedging Transaction
and the amount payable by USR upon early termination of such Hedging
Transaction at the date of termination as fixed by such Interest Rate
Protection Agreement and (ii) promptly from time to time thereafter notify
the Collateral Agent of any payment received by such Lender to be applied
to amounts due upon early termination of such Hedging Transaction. Such
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Lender shall certify as to such amounts and the Collateral Agent shall be
entitled to rely conclusively upon such certification.
(d) Each Lender party to any Letter of Credit shall (i) promptly
from time to time, upon the written request of the Collateral Agent, notify
the Collateral Agent of the Letter of Credit Usage applicable to such
Letter of Credit and (ii) promptly from time to time thereafter notify the
Collateral Agent of any payment received by such Lender to be applied to
amounts due under such Letter of Credit. Such Lender shall certify as to
such amounts and the Collateral Agent shall be entitled to rely
conclusively upon such certification.
SECTION 7. ADDITIONAL PARTIES.
Provided that it is permitted to do so by the terms of the Credit Agreement
and the Note Agreement, USR may enter into one or more Successor Credit
Agreements or Successor Note Agreements and, pursuant thereto, incur additional
Senior Debt. The Senior Debt outstanding under such Successor Credit Agreements
or Successor Note Agreements, as the case may be, shall be secured by the
Collateral as provided herein and in the Amended and Restated Security
Agreement; provided that, at the time USR enters into any such Successor Credit
Agreements or Successor Note Agreements, each Successor Lender party to such
Successor Credit Agreement, or the agent on behalf of all such Successor Lenders
to such Successor Credit Agreement, and each Successor Noteholder party to such
Successor Note Agreement, as the case may be, shall sign an acknowledgment in
the form of Exhibit B-1 or Exhibit B-2, respectively, attached to this
Agreement, by which each such Successor Lender or each such Successor
Noteholder, as the case may be, agrees to be bound by the terms of this
Agreement, and by delivering a signed acknowledgment hereof executed by USR and
each Grantor to the Collateral Agent; and provided further that on the date of
execution and delivery of such Successor Credit Agreement or Successor Note
Agreement, the incurrence by USR of $1.00 of additional Indebtedness would not
constitute an Event of Default under the Note Agreement.
SECTION 8. DISCLAIMERS, INDEMNITY, ETC.
(a) The Collateral Agent may execute any of its duties under this
Agreement or the Amended and Restated Security Agreement by or through agents,
employees or attorneys-in-fact and shall be entitled to advice of counsel
(including in-house counsel) concerning all matters pertaining to such duties.
The Collateral Agent shall not be responsible for the negligence or misconduct
of any agent or attorney-in-fact that it selects with reasonable care.
(b) Neither the Collateral Agent nor any of its employees shall (i) be
liable for any action taken or omitted to be taken by any of them under or in
connection with this Agreement or the Amended and Restated Security Agreement or
the transactions contemplated hereby (except for its own or their gross
negligence or willful misconduct), or (ii) be responsible in any manner to any
of the Lenders or Noteholders for any recital, statement, representation or
warranty made by USR, or any officer thereof, contained in this
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Agreement or the Amended and Restated Security Agreement or in any certificate,
report, statement or other document referred to or provided for in, or received
by the Collateral Agent under or in connection with, this Agreement or the
Amended and Restated Security Agreement or the validity, effectiveness,
genuineness, enforceability, sufficiency of this Agreement or the Amended and
Restated Security Agreement or for any failure of USR to perform its obligations
hereunder or thereunder. Neither the Collateral Agent nor any of its employees
shall be under any obligation to any Lender or any Noteholder to ascertain or to
inquire as to the observance or performance of any of the agreements contained
in, or conditions of, this Agreement or the Amended and Restated Security
Agreement, or to inspect the properties, books or records of USR.
(c) The Collateral Agent shall be entitled to rely, and shall be fully
protected in relying, upon any writing, resolution, notice, consent,
certificate, affidavit, letter, telegram, facsimile, telex, statement or other
document 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 (but not including counsel to USR), independent accountants and other
experts selected by the Collateral Agent. The Collateral Agent shall be fully
justified in failing or refusing to take any action under this Agreement or the
Amended and Restated Security Agreement unless it shall first receive such
advice or concurrence by the Majority Benefited Parties customarily and
reasonably acceptable to the Collateral Agent and, if it so requests, it shall
first be indemnified by the Benefited Parties ratably in accordance with the
amount of the Benefited Obligations held by such Benefited Parties against any
and all liability and expense which may be incurred by it by reason of taking or
continuing to take any such action to the extent not otherwise reimbursed
hereunder. Any such indemnity given by a Benefited Party which is a bank, trust
company, savings and loan association, pension fund, investment company,
insurance company, fraternal benefit society, broker or dealer or other similar
financial institution or entity, regardless of legal form, may be unsecured at
the option of such Benefited Party. The Collateral Agent shall in all cases be
fully protected in acting, or in refraining from acting, under this Agreement or
the Amended and Restated Security Agreement in accordance with a request or
consent of the Majority Benefited Parties and such request and any action taken
or failure to act pursuant thereto shall be binding upon all of the Benefited
Parties.
(d) The Collateral Agent shall not be deemed to have knowledge or notice
of the occurrence of any Event of Default or Special Event of Default, unless
the Collateral Agent shall have received written notice from a Lender, a
Noteholder or USR referring to this Agreement, describing such Event of Default
or Special Event of Default, and stating that such notice is a "notice of
default". The Collateral Agent shall take such action with respect to such
Event of Default or Special Event of Default as may be requested by the Majority
Benefited Parties in accordance with (S)3; provided, however, that unless and
until the Collateral Agent has received any such request, the Collateral Agent
may (but shall not be obligated to) take such action, or refrain from taking
such action, with respect to such Event of Default or Special Event of Default,
as it shall deem advisable or in the best interest of the Lenders and the
Noteholders.
-15-
(e) Each Lender and each Noteholder acknowledges that the Collateral
Agent-Related Persons has not made any representation or warranty to it, and
that no act by the Collateral Agent hereinafter taken, including any review of
the affairs of USR and its Subsidiaries, shall be deemed to constitute any
representation or warranty by the Collateral Agent to any Lender or Noteholder.
Each Lender and each Noteholder acknowledges that it has, independently and
without reliance upon the Collateral Agent and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, prospects, operations, property, financial and
other condition and creditworthiness of USR and its Subsidiaries, and made its
own decision to enter into this Agreement and to extend credit to USR hereunder.
Each Lender and Noteholder also represents that it will, independently and
without reliance upon the Collateral Agent-Related Persons and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit analysis, appraisals and decisions in taking or not taking
action under this Agreement or the Amended and Restated Security Agreement, and
to make such investigations as it deems necessary to inform itself as to the
business, prospects, operations, property, financial and other condition and
creditworthiness of USR. Except for notices, reports and other documents
expressly herein required to be furnished to the Lenders and the Noteholders by
the Collateral Agent, the Collateral Agent shall not have any duty or
responsibility to provide any Lender or Noteholder with any credit or other
information concerning the business, prospects, operations, property, financial
and other condition or creditworthiness of USR which may come into the
possession of any of the Collateral Agent-Related Persons.
(f) Each of the Benefited Parties severally agrees (i) to reimburse the
Collateral Agent in accordance with its pro rata share for any expenses incurred
by the Collateral Agent, including, without duplication of legal services
rendered, reasonable fees and disbursements of counsel to the Collateral Agent
evidenced by reasonable and customary computer back-up detail, arising out of or
as a result of the execution and delivery of this Agreement or the Amended and
Restated Security Agreement or the performance by the Collateral Agent pursuant
thereto of its obligations thereunder or in connection of the enforcement or
protection of the rights of the Collateral Agent and the Benefited Parties
hereunder or under the Amended and Restated Security Agreement, in each case to
the extent that the foregoing shall not have been reimbursed by USR or directly
by one or more of the Benefited Parties or paid from the proceeds of the
Collateral as provided herein and (ii) to the extent not reimbursed by USR or
directly by one or more of the Benefited Parties or paid from the proceeds of
the Collateral, to indemnify and hold harmless the Collateral Agent and the
Collateral Agent-Related Persons in accordance with its pro rata share, from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever which may be imposed on, incurred by or asserted against the
Collateral Agent in its capacity as the Collateral Agent in any way relating to
or arising out of this Agreement or the Amended and Restated Security Agreement
or any action taken or omitted by them under this Agreement or the Amended and
Restated Security Agreement including, without limitation, after the Collateral
Agent has given notice pursuant to the second to the last sentence of
Section 8(h)(i) hereof, provided that no Benefited Party shall be liable to the
Collateral Agent or any Collateral Agent-Related Person for any portion of such
liabilities,
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obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the gross negligence or willful
misconduct of the Collateral Agent or any Collateral Agent-Related Person.
(g) Bank of America and its affiliates may make loans to, issue letters
of credit for the account of, accept deposits from, acquire equity interests in
and generally engage in any kind of banking, trust, financial advisory,
underwriting or other business with USR and its Subsidiaries and Affiliates as
though Bank of America were not the Collateral Agent hereunder and without
notice to or consent of the Lenders or the Noteholders. The Lenders and
Noteholders acknowledge that, pursuant to such activities, Bank of America or
its subsidiaries may receive information regarding USR or its Subsidiaries
(including information that may be subject to confidentiality obligations in
favor of USR or such Subsidiary) and acknowledge that the Collateral Agent shall
be under no obligation to provide such information to them. With respect to its
loans to USR, Bank of America shall have the same rights and powers under this
Agreement as any other Lender and may exercise the same as though it were not
the Collateral Agent, and the terms "Lender" and "Lenders" include Bank of
America in its individual capacity.
(h) (i) The Collateral Agent may resign at any time by giving at least 30
days' notice thereof to the Parties (such resignation to take effect upon the
acceptance by a successor Collateral Agent of any appointment as the Collateral
Agent hereunder) and the Collateral Agent may be removed as the Collateral Agent
at any time by either (1) Benefited Parties holding (or representing) at least
60% of the outstanding principal amount under the Credit Notes (it being
understood that, if the Required Lenders agree on any instruction to be given
the Collateral Agent, the Required Lenders shall be entitled to vote on behalf
of all Lenders for purposes of this clause) or (2) Benefited Parties holding (or
representing) more than 51% of the outstanding principal amount under the Senior
Notes. In the event of any such resignation or removal of the Collateral Agent,
the Majority Benefited Parties shall thereupon have the right to appoint a
successor Collateral Agent which is not a Benefited Party. If no successor
Collateral Agent shall have been so appointed by the Majority Benefited Parties
and shall have accepted such appointment within 30 days after the notice of the
intent of the Collateral Agent to resign or the removal of the Collateral Agent,
then the retiring Collateral Agent may, on behalf of the other Parties, appoint
a successor Collateral Agent. Any successor Collateral Agent appointed pursuant
to this clause shall be a commercial bank or other financial institution
organized under the laws of the United States of America or any state thereof
having (1) a combined capital and surplus of at least $250,000,000 and (2) a
rating upon its long-term senior unsecured indebtedness of "A-2" or better by
Xxxxx'x Investors Service, Inc. or "A" or better by Standard & Poor's
Corporation. Notwithstanding the foregoing, in the event (y) the Collateral
Agent shall have received a court order requiring that it resign as Collateral
Agent or (z) the Collateral Agent shall have received a written opinion of
independent outside counsel reasonably acceptable to the Benefited Parties
holding (or representing) more than 51% of the outstanding principal amount of
the Senior Notes that the performance by the Collateral Agent of its duties as
Collateral Agent constitutes a conflict of interest, then in either such event,
the Collateral Agent shall give written notice of such event to the Parties and
the Collateral Agent may resign on the earlier of the 120th day following such
notice or the date
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on which a successor Collateral Agent has accepted appointment hereunder. With
regard to any such conflict of interest or perceived conflict of interest, the
Parties agree to act in a commercially reasonable manner in addressing any such
conflict of interest.
(ii) Upon the acceptance by a successor Collateral Agent of any
appointment as the Collateral Agent hereunder, such successor Collateral Agent
shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring or removed Collateral Agent. The retiring
or removed Collateral Agent shall be discharged from its duties and obligations
hereunder upon the appointment of the successor Collateral Agent. After any
retiring or removed Collateral Agent's resignation or removal hereunder as the
Collateral Agent, the provisions of this (S)8 shall continue in effect for its
benefit in respect of any actions taken or omitted to be taken by it while it
was acting as the Collateral Agent.
SECTION 9. INVALIDATED PAYMENTS.
If any amount distributed by the Collateral Agent to a Benefited Party in
accordance with the provisions of this Agreement is subsequently required to be
returned or repaid by the Collateral Agent or such Benefited Party to USR or any
Affiliate thereof or their respective representatives or successors in interest,
whether by court order, settlement or otherwise (a "Repayment Event"), the
Collateral Agent shall thereafter apply Proceeds received in a manner consistent
with the terms of this Agreement such that all Benefited Parties receive such
proportion of the Proceeds as would have been received had the original payment
which gave rise to such Repayment Event not occurred. If a Repayment Event
occurs which results in the Collateral Agent being required to return or repay
any amount distributed by it under this Agreement, the Benefited Party to which
such amount was distributed shall, promptly upon its receipt of a notice thereof
from the Collateral Agent, pay the Collateral Agent such amount; provided that,
if any Benefited Party shall fail to promptly pay such amount to the Collateral
Agent, the Collateral Agent may deduct such amount from any amounts payable
thereafter to such Benefited Party under this Agreement.
SECTION 10. MISCELLANEOUS.
(a) All notices and other communications provided for herein shall be in
writing and may be sent by overnight air courier, facsimile communication or
United States mail and shall be deemed to have been given when delivered by
overnight air courier, upon receipt of facsimile communication if concurrently
with transmission of such telecopy or telex, a copy thereof shall be sent by
overnight courier to the address specified for such notice or communication, or
four business days after deposit in the United States mail, registered or
certified, with postage prepaid and properly addressed. For the purposes
hereof, the addresses of the parties hereto (until notice of a change thereof is
delivered as provided in this (S)10(a)) shall be set forth under each party's
name on the signature pages (including acknowledgments) hereof.
(b) This Agreement may be amended, modified or waived only by an
instrument or instruments in writing signed by all of the holders of Benefited
Obligations and the
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Collateral Agent; provided, however, that (S)7 of this Agreement may not be
amended or modified without the written consent of USR.
(c) This Agreement shall be binding upon and inure to the benefit of the
Collateral Agent, each Party and their respective successors and assigns. In
the event that the holder of any Credit Note or Senior Note shall transfer such
Credit Note or Senior Note, USR shall promptly so advise the Collateral Agent.
Each transferee of any Credit Note or Senior Note shall take such Credit Note or
Senior Note subject to the provisions of this Agreement and to any request made,
waiver or consent given or other action taken or authorized hereunder, by each
previous holder of such Credit Note or Senior Note, prior to the receipt by the
Collateral Agent of written notice of such transfer; and, except as expressly
otherwise provided in such notice, the Collateral Agent shall be entitled to
assume conclusively that the transferee named in such notice shall thereafter be
vested with all rights and powers as a Party under this Agreement. The
Collateral Agent shall not be obligated to give any Party notice of any such
transfer.
(d) This Agreement shall continue to be effective among the Parties even
though a case or proceeding under any bankruptcy or insolvency law or any
proceeding in the nature of a receivership, whether or not under any insolvency
law, shall be instituted with respect to USR or any other Grantor, or any
portion of the property or assets of USR or any other Grantor, and all actions
taken by the Parties with regard to such proceeding shall be by the Majority
Benefited Parties; provided, however, that nothing herein shall be interpreted
to preclude any Party from filing a proof of claim with respect to its Benefited
Obligations or from casting its vote, or abstaining from voting, for or against
confirmation of a plan of reorganization in a case of bankruptcy, insolvency or
similar law in its sole discretion.
(e) Each Party hereto agrees to do such further acts and things and to
execute and deliver such additional agreements, powers and instruments as any
other Party hereto may reasonably request to carry into effect the terms,
provisions and purposes of this Agreement or to better assure and confirm unto
such other Party hereto its respective rights, powers and remedies hereunder.
(f) This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one and the same instrument, and any of
the parties hereto may execute this Agreement by signing any such counterpart.
A telecopy of the signature of any party on any counterpart shall be effective
as the signature of the party executing such counterpart for purposes of
effectiveness of this Agreement.
(g) This Agreement shall become effective immediately upon execution by
the Parties and shall continue in full force and effect until one year following
the date upon which all Benefited Obligations are irrevocably paid in full and
all commitments under the Credit Agreement have been terminated.
(h) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE INTERNAL LAWS OF THE STATE OF CALIFORNIA.
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(i) Headings of sections of this Agreement have been included herein for
convenience only and should not be considered in interpreting this Agreement.
(i) Nothing in this Agreement or the Amended and Restated Security
Agreement, expressed or implied, is intended or shall be construed to confer
upon or give to any Person other than the Benefited Parties, any right, remedy
or claim under or by reason of any such agreement or any covenant, condition or
stipulation herein or therein contained.
(j) In case any provision in or obligation under this Agreement shall be
invalid, illegal or unenforceable in any jurisdiction, the validity, legality
and enforceability of the remaining provisions or obligations, or of such
provision or obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby.
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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
duly executed as of the date and year first written above.
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as a Lender
By /s/ Xxxxxx Xxxxxxxx
-------------------------------
Xxxxxx Xxxxxxxx
Its Managing Director
Notice Address:
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
Credit Products
5618, 11th Floor
000 X. Xxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Attn: Xxxx XxXxxxxx
Telecopier No.: 000-000-0000
Tel.: 000-000-0000
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Collateral
Agent
By /s/ Xxxxxxx Xxxxxx
--------------------------------
Xxxxxxx Xxxxxx
Its Vice President
Notice Address:
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
Agency Management Services #5596
0000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx Xxxxxx
Telecopier No.: 000-000-0000
Tel: 000-000-0000
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MASSACHUSETTS MUTUAL LIFE INSURANCE
COMPANY, as a Noteholder
By /s/ Xxxx X. Xxxxx
---------------------------------
Its Vice President
Notice Address:
MASSACHUSETTS MUTUAL LIFE INSURANCE
COMPANY
0000 Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Securities Investment Division
JEFFERSON-PILOT LIFE INSURANCE
COMPANY, as a Noteholder
By /s/ Xxxxxx X. Xxxxxx XX
---------------------------------
Its Second Vice President
Notice Address:
JEFFERSON-PILOT LIFE INSURANCE
COMPANY
000 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Securities Administration 3630
PRINCIPAL MUTUAL LIFE INSURANCE
COMPANY, as a Noteholder
By /s/ Xxx X. Xxxxx
---------------------------------
Its Counsel
By /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------
Its Assistant Director
Securities Investment
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Notice Address:
PRINCIPAL MUTUAL LIFE INSURANCE
COMPANY
000 Xxxx Xxxxxx
Xxx Xxxxxx, Xxxx 00000-0000
Attention: Investment Department--
Securities Division
Regarding Bond Number 1-B-60511
Telefacsimile: (000) 000-0000
Confirmation: (000) 000-0000
PHOENIX HOME LIFE MUTUAL INSURANCE
COMPANY, as a Noteholder
By /s/ Xxxxxxxx X. Xxxxxxx
---------------------------------
Its Vice President
Notice Address:
PHOENIX HOME LIFE MUTUAL INSURANCE
COMPANY
Xxx Xxxxxxxx Xxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Private Placements Division
Telecopier Number: (000) 000-0000
PHOENIX AMERICAN LIFE INSURANCE
COMPANY, as a Noteholder
By /s/ Xxxxxxxx Xxxxxxx
---------------------------------
Its Vice President
Notice Address:
PHOENIX AMERICAN LIFE INSURANCE
COMPANY
c/o Phoenix Home Life Mutual Insurance
Company
Xxx Xxxxxxxx Xxx
Xxxxxxxx, XX 00000
Attn: Private Placements Division
-00-
XXXXXXXXX XXXXXXXX LIFE INSURANCE
COMPANY OF AMERICA, as a Noteholder
By /s/ Xxxxxxx Xxxx
---------------------------------
Its Vice President-Credit Management
Notice Address:
XXXXXXXXX XXXXXXXX LIFE INSURANCE
COMPANY OF AMERICA
00000 Xxxxxxxx Xxxxx
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxx, Department R-12A
-24-
U.S. Rentals, Inc. hereby acknowledges and agrees to the foregoing terms
and provisions contained in this Intercreditor Agreement. By executing this
Intercreditor Agreement, U.S. Rentals, Inc. agrees to be bound by the provisions
thereof as they relate to the relative rights of the Benefited Parties as among
such Benefited Parties; provided, however, that nothing in this Intercreditor
Agreement shall amend, modify, change or supersede the respective terms of the
Financing Agreements as between the Benefited Parties or any of them and U.S.
Rentals, Inc. In the event of any conflict or inconsistency between the terms
of this Intercreditor Agreement and the Financing Agreements, the Financing
Agreements shall govern as between the Benefited Parties thereto and U.S.
Rentals, Inc. U.S. Rentals, Inc. further agrees that the terms of this
Intercreditor Agreement shall not give U.S. Rentals, Inc. any substantive rights
vis a vis any Benefited Party or the Collateral Agent and that it shall not use
the violation of this Intercreditor Agreement by any of the Parties hereto as a
defense to the enforcement by any Benefited Party under any Financing Agreement,
nor assert such violation as a counterclaim or basis for set-off or recoupment
against any of them. U.S. Rentals, Inc. further acknowledges and agrees that
the scope of the agency granted by this Intercreditor Agreement to the
Collateral Agent hereunder is strictly limited by this Intercreditor Agreement
and the Amended and Restated Security Agreement. By its execution hereof, U.S.
Rentals, Inc. hereby represents to each of the Benefited Parties and the
Collateral Agent that the execution, delivery and performance by U.S. Rentals,
Inc. of the Note Agreement and the other Noteholder Documents does not
constitute a violation of any of the provisions of the Credit Agreement or the
Security Agreement.
Without limiting the foregoing, U.S. Rentals, Inc. agrees with the
Collateral Agent that in the event that any Senior Note is transferred and such
transfer is registered pursuant to (S)9.1 of the Note Agreement, it will
promptly and in any event within 30 days following the date of transfer of such
Senior Note notify the Collateral Agent of such fact and identify the transferee
of such Senior Note, provided that the agreement to give such notice by USR
shall not be a condition to such transfer nor shall the failure for any reason
whatsoever of USR to give such notice of any such transfer to the Collateral
Agent have any effect whatsoever on the validity and effectiveness of such
transfer.
U.S. RENTALS, INC.
By /s/ Xxxx X. XxXxxxxx
---------------------------------
Title: Vice President and Chief
Financial Officer
Date: 08/17/95
-25-
FORM OF AMENDED AND RESTATED SECURITY AGREEMENT
(ATTACHED)
[See Conformed Copy at Tab 2]
Exhibit A
(to Intercreditor Agreement)
FORM OF ACKNOWLEDGMENT TO
INTERCREDITOR AGREEMENT FOR SUCCESSOR LENDERS
UNDER A SUCCESSOR CREDIT AGREEMENT
Reference is hereby made to the Intercreditor Agreement dated as of
August 15, 1995 (the "Agreement"), among the Lenders party to the Credit
Agreement and the Collateral Agent, and the Noteholders party thereto and
certain other parties, if any, thereto. The undersigned Successor Lender or its
agent has entered into a Credit Agreement dated as of _______________ with U.S.
Rentals, Inc. and desires the Credit Obligations with respect thereto to be
secured by the Amended and Restated Security Agreement. The undersigned
acknowledges the terms of the Agreement and agrees to be bound thereby.
__________________________________,
as a Successor Lender
By_________________________________
Title____________________________
Date_____________________________
Notice Address:
___________________________________
___________________________________
___________________________________
Acknowledged and Agreed:
U.S. RENTALS, INC.
By_________________________________
Title____________________________
Date_____________________________
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Collateral
Agent
By_________________________________
Its________________________________
Exhibit B-1
(to Intercreditor Agreement)
___________________________________
(Other Grantors)
By_________________________________
Title____________________________
Date_____________________________
-2-
FORM OF ACKNOWLEDGMENT TO
INTERCREDITOR AGREEMENT FOR SUCCESSOR NOTEHOLDERS
UNDER A SUCCESSOR NOTE AGREEMENT
Reference is hereby made to the Intercreditor Agreement dated as of
August 15, 1995 (the "Agreement"), among the Lenders party to the Credit
Agreement and the Collateral Agent and the Noteholders party thereto and certain
other parties, if any, thereto. The undersigned Successor Noteholder has
entered into a Note Agreement dated as of _____________ with U.S. Rentals, Inc.
and desires the Senior Note Obligations with respect thereto to be secured by
the Amended and Restated Security Agreement. The undersigned acknowledges the
terms of the Agreement and agrees to be bound thereby.
___________________________________,
as a Successor Noteholder
By_________________________________
Title____________________________
Date_____________________________
Notice Address:
___________________________________
___________________________________
___________________________________
Acknowledged and Agreed:
U.S. RENTALS, INC.
By_________________________________
Title____________________________
Date_____________________________
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Collateral
Agent
By_________________________________
Its________________________________
Exhibit B-2
(to Intercreditor Agreement)
__________________________________
(Other Grantors)
By_________________________________
Title____________________________
Date_____________________________
-2-
