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UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM 8-K

 

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

 

Date of Report (Date of earliest event reported): June 30, 2021

 

UNITED RENTALS, INC.

UNITED RENTALS (NORTH AMERICA), INC.

(Exact name of registrant as specified in its charter)

 

Delaware   001-14387   06-1522496
Delaware   001-13663   86-0933835
(State or other Jurisdiction of
Incorporation)
  (Commission File Number)   (IRS Employer Identification No.)

 

100 First Stamford Place, Suite 700    
Stamford, Connecticut   06902
(Address of Principal Executive Offices)   (Zip Code)

 

Registrant’s telephone number, including area code: (203) 618-7255

 

(Former name or former address if changed since last report.)

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

 

Securities registered pursuant to Section 12(b) of the Act:

 

Title of each class   Trading Symbol(s)   Name of each exchange on which registered
Common Stock, $.01 par value, of United Rentals, Inc.   URI   New York Stock Exchange

 

Emerging growth company ¨

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨

 

 
Co-Registrant CIK 0001047166
Co-Registrant Amendment Flag false
Co-Registrant Form Type 8-K
Co-Registrant DocumentPeriodEndDate 2021-06-30
Co-Registrant Written Communications false
Co-Registrant Solicitating Materials false
Co-Registrant PreCommencement Tender Offer false
Co-Registrant PreCommencement Issuer Tender Offer false
Emerging growth company false

 

 

 

 

Item 1.01Entry into a Material Definitive Agreement.

 

Amendment No.1 to Third Amended and Restated Credit Agreement

 

On June 30, 2021, United Rentals, Inc. (“Holdings”), United Rentals (North America) Inc. (“URNA”), the subsidiaries of URNA party thereto as Guarantors, the subsidiaries of URNA party thereto as Borrowers, Bank of America, N.A., as the agent and certain other lenders under the Credit Agreement (as defined below) entered into an amendment (the “ABL Amendment”) to the Third Amended and Restated Credit Agreement, dated as of February 15, 2019 (as amended to the date hereof, including by the ABL Amendment, the “Credit Agreement”), among Holdings, URNA, the subsidiaries of URNA party thereto as guarantors, the subsidiaries of URNA party thereto as Borrowers, Bank of America, N.A., as the agent, and the other financial institutions party thereto from time to time.

 

The ABL Amendment was executed primarily to provide for a separate tranche of revolving commitments in an aggregate principal amount equal to US$175,000,000 (the “ANZ Tranche”) to be available to United Rentals Australia Pty Limited and United Rentals New Zealand (each a subsidiary of URNA and, together, the “ANZ Borrowers”), which URNA recently acquired. The aggregate amount committed under the Credit Agreement of $3,750,000,000 remained unchanged, and the amount of the facility available to be drawn by other Borrowers was reduced to reflect the addition of the ANZ Tranche. Borrowings under the ANZ Tranche will be subject to the borrowing base that applies to all borrowings under the ABL Facility. The ANZ Tranche will mature on the same date as the ABL Facility.

 

The obligations of the ANZ Borrowers under the ANZ Tranche will benefit from the same guarantees and security as apply to other loans of non-U.S. Borrowers under the Credit Agreement, and the ANZ Borrowers will be jointly liable for any borrowings under the ANZ Tranche.

 

The terms of the ABL Facility allow for increases to the ANZ Tranche, subject to agent and/or lender consent. Amounts drawn under the ANZ Tranche bear annual interest at (i) the LIBOR rate (or the Bank Bill Rate) plus a margin of 1.25% to 1.75%, (ii) a base rate (equal to the highest of Bank of America, N.A.’s prime rate, the federal funds rate plus 0.5% and 30-day LIBOR plus 1.0%) plus a margin of 1.25% to 1.75% or (iii) a foreign base rate applicable to swingline loans under the ANZ Tranche equal to (a) with respect to swingline loans denominated in Australian dollars, the per annum rate of interest (rounded upward to the next 1/100th of 1%) equal to the Reserve Bank of Australia’s “cash rate” plus a margin of 1.25% to 1.75% and (b) with respect to swingline loans denominated in New Zealand Dollars, the per annum rate of interest (rounded upward to the nearest 1/100th of 1%) equal to the rate announced from time to time by the Reserve Bank of New Zealand as the “official cash rate” plus a margin of 1.25% to 1.75%. The interest rate margins are subject to adjustments based on utilization of the facility and, under certain circumstances, URNA’s total indebtedness leverage ratio on a consolidated basis.

 

The ANZ Tranche is subject to the same covenants, events of default and other terms under the Credit Agreement that apply to other borrowings under the ABL Facility.

 

The foregoing description of the ABL Amendment does not purport to be complete and is subject to, and qualified in its entirety by, the full text of the ABL Amendment, which is filed as Exhibit 10.1 to this Form 8-K and incorporated herein by reference.

 

Item 9.01.           Financial Statements and Exhibits.

 

10.1First Amendment to the Third Amended and Restated Credit Agreement, dated as of June 30, 2021, to the Third Amended and Restated Credit Agreement, dated as of February 15, 2019, among United Rentals (North America), Inc., United Rentals Inc., the other Borrowers party thereto, the other Guarantors party thereto, the Lenders party thereto, and Bank of America, N.A., as Agent.

 

 

 

EXHIBIT INDEX

 

Exhibits    
     
Exhibit 10.1       First Amendment to the Third Amended and Restated Credit Agreement, dated as of June 30, 2021, to the Third Amended and Restated Credit Agreement, dated as of February 15, 2019, among United Rentals (North America), Inc., United Rentals Inc., the other Borrowers party thereto, the other Guarantors party thereto, the Lenders party thereto, and Bank of America, N.A., as Agent.
     
104   Cover Page Interactive Data File (embedded within the Inline XBRL document)

 

 

 

SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

Date: July 1, 2021

 

  UNITED RENTALS, INC.
   
  By: /s/ Joli L. Gross
  Name: Joli L. Gross
 

Title:

Senior Vice President, General Counsel and Corporate Secretary

 

  UNITED RENTALS (NORTH AMERICA), INC.
   
  By: /s/ Joli L. Gross
  Name: Joli L. Gross
 

Title:

Senior Vice President, General Counsel and Corporate Secretary

 

 

Exhibit 10.1

 

EXECUTION VERSION

 

FIRST AMENDMENT dated as of June 30, 2021 (this “Amendment”), to the Third Amended and Restated Credit Agreement dated as of February 15, 2019 (as heretofore amended, supplemented or otherwise modified, the “Existing Credit Agreement”), among United Rentals, Inc., a Delaware corporation (“Holdings”), United Rentals (North America), Inc., a Delaware corporation (the “Company”), the other Borrowers party thereto, the other Guarantors party thereto, the Lenders party thereto (the “Lenders”) and Bank of America, N.A., as Agent.

 

Pursuant to the Existing Credit Agreement, the Lenders have provided Revolving Credit Commitments (the Revolving Credit Commitment provided by each Lender immediately prior to the First Amendment Effective Date (as defined below), its “Existing Revolving Credit Commitment”) and have extended Revolving Loans to the Borrowers on the terms and subject to the conditions set forth therein.

 

The Borrowers’ Agent has requested, pursuant to Section 1.9 of the Existing Credit Agreement, that each of United Rentals Australia Pty Limited (the “Australian Borrower”) and United Rentals New Zealand (the “New Zealand Borrower” and, together with the Australian Borrower, collectively, the “ANZ Borrowers” and each, an “ANZ Borrower”) be added to the Credit Agreement (as defined below) as an Additional Borrower.

 

The Borrowers’ Agent has requested, pursuant to Section 2.7 of the Existing Credit Agreement, the establishment of a new class of revolving commitments under the Credit Agreement and, in connection therewith, that the Persons set forth on Schedule 1.1 hereto under the heading “ANZ Revolving Credit Commitments” (the “ANZ Revolving Credit Lenders”) provide Refinancing Revolving Commitments to the ANZ Borrowers in an aggregate amount equal to $175,000,000 (the “ANZ Revolving Credit Commitments”, and the amount set forth opposite each ANZ Revolving Credit Lender’s name on such Schedule, its “ANZ Revolving Credit Commitment”), which shall reduce on a dollar-for-dollar basis such Lender’s Existing Revolving Credit Commitment as in effect immediately prior to this Amendment, and the ANZ Revolving Credit Lenders are willing to provide the ANZ Revolving Credit Commitments on the terms and subject to the conditions set forth herein and in the Credit Agreement.

 

The Borrowers’ Agent has requested that Bank of America, N.A. (acting through its Australia branch) (the “ANZ Swingline Lender”) provide a commitment to make swing line loans to the ANZ Borrowers in an amount equal to $20,000,000 (its “ANZ Swingline Commitment”), and the ANZ Swingline Lender is willing to provide its ANZ Swingline Commitment on the terms and subject to the conditions set forth herein and in the Credit Agreement.

 

The Borrowers’ Agent has requested that the Existing Credit Agreement and certain other Loan Documents be amended as provided for herein, and the Lenders party hereto, constituting at least the Required Lenders under the Existing Credit Agreement, are willing to so amend the Existing Credit Agreement and such other Loan Documents on the terms and subject to the conditions set forth herein and in the Credit Agreement.

 

 

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Capitalized terms used and not otherwise defined herein have the meanings assigned to them in the Existing Credit Agreement or the Credit Agreement, as the context may require.

 

Accordingly, in consideration of the mutual agreements herein contained and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the parties hereto hereby agree as follows:

 

Section 1. Revolving Credit Facility. (a)  ANZ Revolving Credit Commitments and ANZ Revolving Loans.

 

(i) On the terms set forth herein and in the Credit Agreement and subject to the conditions set forth herein, on and as of the First Amendment Effective Date, each ANZ Revolving Credit Lender agrees, severally and not jointly, to provide its ANZ Revolving Credit Commitment to the ANZ Borrowers. The ANZ Revolving Credit Commitments, and any Revolving Loans made pursuant thereto, shall have the terms set forth in the Credit Agreement for “ANZ Revolving Credit Commitments” (and “Revolving Credit Commitments” and “Commitments”) and “ANZ Revolving Loans” (and “Revolving Loans” and “Loans”), respectively. From and after the First Amendment Effective Date, references in the Credit Agreement to the “Revolving Credit Lenders” (and “Lenders”), the “Revolving Credit Commitments” (and “Commitments”) and the “Revolving Loans” (and “Loans”) shall include the ANZ Revolving Credit Lenders, the ANZ Revolving Credit Commitments and the ANZ Revolving Loans, respectively.

 

(ii) On the terms set forth herein and in the Credit Agreement and subject to the conditions set forth herein, on and as of the First Amendment Effective Date, the Existing Revolving Credit Commitment of each Lender (or, if applicable, an Affiliate of such Lender) providing an ANZ Revolving Credit Commitment pursuant to this Amendment shall automatically be reduced by an amount equal to such Lender’s ANZ Revolving Credit Commitment, in each case as set forth on Schedule 1.1 hereto.

 

(b)  Pro Rata Revolving Credit Commitments and Pro Rata Revolving Loans. On the terms set forth herein and in the Credit Agreement and subject to the conditions set forth herein, on and as of the First Amendment Effective Date, the entire amount of the Existing Revolving Credit Commitments of each Lender, after giving effect to any reduction of such Lender’s Existing Revolving Credit Commitment pursuant to Section 1(a)(ii) above, shall be redesignated as, and shall continue in effect under the Credit Agreement as, the “Pro Rata Revolving Credit Commitment” of such Lender, and such Pro Rata Revolving Credit Commitments shall have the terms set forth in the Credit Agreement.

 

(c)  On and after the First Amendment Effective Date:

 

(i)  each Lender providing a Pro Rata Revolving Credit Commitment shall be referred to as a “Pro Rata Revolving Credit Lender” (and shall continue to be a “Revolving Credit Lender” and a “Lender”) under the Credit Agreement and the other Loan Documents; and

 

 

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(ii)  notwithstanding anything to the contrary in the Credit Agreement, (A) the applicable Borrowers shall, in coordination with the Agent, (x) repay a portion of the U.S. Revolving Loans, ROW Revolving Loans and/or Canadian Revolving Loans outstanding under the Existing Credit Agreement immediately prior to the First Amendment Effective Date of the ANZ Revolving Credit Lenders, or (y) take such other actions as reasonably may be required by the Agent, in each case, to the extent necessary so that the Pro Rata Revolving Credit Lenders participate in each of the outstanding Pro Rata Revolving Loans pro rata on the basis of their respective Pro Rata Revolving Credit Commitments (determined after giving effect to this Amendment and the transactions contemplated hereby) and (B) there shall be an automatic adjustment to the participations under the Credit Agreement in the Letters of Credit and Swingline Loans held by each applicable Lender pursuant to the Pro Rata Revolving Credit Commitments, so that each Pro Rata Revolving Credit Lender shares ratably in such participations in accordance with its Pro Rata Share of the Pro Rata Revolving Credit Commitments. The ANZ Revolving Credit Lenders hereby waive any right to claim breakage costs under Section 5.4 of the Existing Credit Agreement as a result of any prepayment contemplated by this Section 1(c).

 

(d)  Consents. To the extent its consent is required under the Credit Agreement, the Agent hereby consents to the identity of each ANZ Revolving Credit Lender.

 

Section 2. ANZ Swingline Commitment. On the terms set forth herein and in the Credit Agreement and subject to the conditions set forth herein, on and as of the First Amendment Effective Date, the ANZ Swingline Lender agrees to provide its ANZ Swingline Commitment to the ANZ Borrowers, to be the “ANZ Swingline Lender” (and a “Swingline Lender”) under the Credit Agreement and, subject to the terms and conditions set forth in the Credit Agreement, to make ANZ Swingline Loans to the ANZ Borrowers under the Credit Agreement.

 

Section 3. Joinder of ANZ Borrowers. (a)  On the First Amendment Effective Date, in accordance with Section 1.9 of the Credit Agreement, each ANZ Borrower hereby joins the Credit Agreement as a party thereto and shall have all the rights and obligations of an “ANZ Borrower”, a “Borrower” and an “Obligor” thereunder and, as applicable, under the other Loan Documents. Each ANZ Borrower hereby acknowledges, agrees and confirms that, by its execution of this Amendment, on the First Amendment Effective Date, such ANZ Borrower will be deemed to be a party to the Credit Agreement, including as an “ANZ Borrower”, an “Additional Borrower” and a “Borrower”. Each ANZ Borrower hereby ratifies, as of the date hereof, and agrees to be bound by, all of the terms, provisions and conditions contained in the Loan Documents, including as an “ANZ Borrower”, an “Additional Borrower” and a “Borrower”, including, without limitation, (i) all of the representations and warranties of the Obligors set forth in Article VI of the Credit Agreement and (ii) all of the affirmative and negative covenants set forth in Articles VII and VIII of the Credit Agreement. Each ANZ Borrower acknowledges and confirms that it has received a copy of the Credit Agreement and the schedules and exhibits thereto, in each case as amended hereby.

 

(b)  The parties hereto confirm and agree that immediately upon the ANZ Borrowers becoming Borrowers under the Credit Agreement, the term “Obligations”, as used in the Credit Agreement, shall include all obligations of each ANZ Borrower under the Credit Agreement and the other Loan Documents.

 

 

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(c)  Each ANZ Borrower hereby acknowledges and agrees that, pursuant to Section 4.10 of the Credit Agreement and by its execution of this Amendment, it has irrevocably appointed the Borrowers’ Agent, and the Borrowers’ Agent shall act under the Credit Agreement, as the agent, attorney-in-fact and legal representative of such ANZ Borrower for all purposes, including the requesting of Loans and the receipt of account statements and other notices and communications from the Agent, any Letter of Credit Issuer or any Lender.

 

Section 4. Amendment of Existing Credit Agreement and other Loan Documents. (a)  On the First Amendment Effective Date:

 

(a)  The Existing Credit Agreement (excluding, except as set forth below, all Schedules and Exhibits thereto, each of which shall remain as in effect immediately prior to the First Amendment Effective Date) is hereby amended by inserting the language indicated in underlined text (indicated textually in the same manner as the following example: underlined text or underlined text) in Exhibit A hereto and by deleting the language indicated by strikethrough text (indicated textually in the same manner as the following example: stricken text or stricken text) in Exhibit A hereto (the Existing Credit Agreement, as so amended, being referred to as the “Credit Agreement”).

 

(b)  Schedule 1.1 to the Existing Credit Agreement is hereby amended and restated in its entirety to be in the form of Schedule 1.1 hereto.

 

(c)  Section 1 of the Canadian Guarantee Agreement is hereby amended by inserting “, ANZ Obligations” immediately after “French Obligations” in paragraph (a) thereof.

 

Section 5. Representations and Warranties. Each of Holdings, each Borrower (including the ANZ Borrowers) and each other Guarantor represents and warrants to the Lenders that:

 

(a)  each Obligor (including the ANZ Borrowers) (i) has the power and authority to execute, deliver and perform this Amendment and the other Loan Documents to which it is a party, to incur the Obligations and, if applicable, to grant the Agent’s Liens and (ii) has taken all necessary corporate, limited liability company or partnership, as applicable, action (including obtaining approval of its stockholders if necessary) to authorize its execution, delivery and performance of this Amendment and the other Loan Documents to which it is a party;

 

(b)  this Amendment and the other Loan Documents to which it is a party have been duly executed and delivered by each Obligor (including the ANZ Borrowers), and constitute the legal, valid and binding obligations of each such Obligor, enforceable against it in accordance with their respective terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, winding up, moratorium and other similar laws relating to or affecting creditors’ rights generally and general equitable principles (whether considered in a proceeding in equity or at law);

 

 

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(c)  the representations and warranties contained in the Credit Agreement and the other Loan Documents are true and correct in all material respects (and any representation and warranty that is qualified as to materiality or Material Adverse Effect is true and correct in all respects) on and as of the First Amendment Effective Date as though made on and as of the First Amendment Effective Date, other than any such representation or warranty which relates to a specified prior date (except that it is understood and agreed that the reference in Section 6.7 of the Credit Agreement to “prior to and after giving effect to any Borrowings and the issuance of any Letters of Credit” shall be deemed to refer instead to “as of the First Amendment Effective Date, immediately after giving effect to this Amendment and the transactions contemplated hereby, including any Borrowings and the issuance of any Letter of Credit”); and

 

(d)  as of the First Amendment Effective Date, no Default or Event of Default has occurred and is continuing, or would result from the effectiveness of the Amendment and the transactions contemplated hereby.

 

Section 6. Effectiveness. The effectiveness of this Amendment, the commitments of the ANZ Revolving Credit Lenders to provide the ANZ Revolving Credit Commitments, the commitment of the ANZ Swingline Lender to provide its ANZ Swingline Commitment, the joinder of the ANZ Borrowers to the Credit Agreement and the amendments to the Existing Credit Agreement and the other applicable Loan Documents in accordance with Section 4 hereof are subject to the satisfaction or waiver (acting reasonably) by the ANZ Revolving Credit Lenders, the ANZ Swingline Lender and the Required Lenders of the following conditions precedent (the date on which all such conditions are so satisfied or waived, the “First Amendment Effective Date”):

 

(a)  The Agent (or its counsel) shall have received from (i) Holdings, (ii) each Borrower (including the ANZ Borrowers), (iii) each other Guarantor, (iv) each ANZ Revolving Credit Lender, (v) the ANZ Swingline Lender and (vi) the Required Lenders either (A) counterparts of this Amendment signed on behalf of each such party or (B) written evidence reasonably satisfactory to the Agent (which may include a fax or electronic transmission of a signed signature page of this Amendment) that each such party has signed a counterpart of this Amendment.

 

(b)  The Agent shall have received (i) customary opinions of counsel for the ANZ Borrowers or for the Agent, as applicable in New York, New Zealand, and Australia, reasonably satisfactory to the Agent; (ii) a copy of the certificate or articles of incorporation (or similar Charter Documents, including all amendments thereto to the extent such amendments are in full force and effect) of each ANZ Borrower, certified as of a recent date by the applicable Governmental Authority (to the extent applicable); (iii)in the case of the Australian Borrower, a certificate of a director, Secretary or Assistant Secretary or other officer of the Australian Borrower dated the First Amendment Effective Date and certifying (A) that attached thereto is a true and complete copy of the constitution (or similar Charter Documents) of the Australian Borrower as in effect on the First Amendment Effective Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or the equivalent governing body) of the Australian Borrower authorizing the execution, delivery and performance of the Loan Documents to which the Australian Borrower is a party and the borrowings under the Credit Agreement, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation (or similar Charter Documents) of the Australian Borrower have not been amended since the date of the last amendment thereto provided to the Agent and (D) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of the Australian Borrower; (iv) in the case of the New Zealand Borrower, a customary certificate of a director of the New Zealand Borrower dated the First Amendment Effective Date, with the customary certifications therein and attachments thereto; and (v) a certificate of another officer as to the incumbency and specimen signature of the director, Secretary or other officer executing the certificate pursuant to clause (iii) or (iv) above.

 

 

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(c)  At the time of and immediately after giving effect to this Amendment, the establishment of the ANZ Revolving Credit Commitments and the other transactions contemplated hereby, the representations and warranties set forth in Section 5 hereof shall be true and correct and the Agent shall have received a certificate, signed by a Responsible Officer of the Company and dated the First Amendment Effective Date, certifying as to the foregoing.

 

(d)  (i) Upon the reasonable request of any Lender made at least 10 days prior to the First Amendment Effective Date, the ANZ Borrowers shall have provided to such Lender the documentation and other information so requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Act, in each case at least three days prior to the First Amendment Effective Date, and (ii) at least three days prior to the First Amendment Effective Date, any ANZ Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver, to each Lender that so requests in writing, at least 10 days prior to the First Amendment Effective Date, a Beneficial Ownership Certification in relation to such ANZ Borrower.

 

(e)  The Borrowers shall have paid all fees and other amounts due and payable by the Obligors on or prior to the First Amendment Effective Date, including all reasonable and documented out-of-pocket expenses of the Agent and the Attorney Costs incurred in connection with this Amendment to the extent invoiced at least three Business Days prior to the First Amendment Effective Date.

 

The Agent shall notify the Borrowers’ Agent and the Lenders of the First Amendment Effective Date, and such notice shall be conclusive and binding.

 

Section 7. Reaffirmation. Each of Holdings, each Borrower and each other Guarantor (collectively, the “Reaffirming Loan Parties”) hereby acknowledges that it expects to receive substantial direct and indirect benefits as a result of this Amendment and the transactions contemplated hereby. Each Reaffirming Loan Party hereby confirms its respective guarantees, pledges and grants of security interests, as applicable, under each of the Loan Documents to which it is party, and agrees that, notwithstanding the effectiveness of this Amendment and the transactions contemplated hereby, such guarantees, pledges and grants of security interests, as applicable, shall continue to be in full force and effect and shall, to the extent provided in the Loan Documents, accrue to the benefit of the Secured Parties (including the ANZ Revolving Credit Lenders and the ANZ Swingline Lender) in respect of, and to secure, the applicable Obligations (including, if applicable, the ANZ Revolving Credit Commitments, the ANZ Swingline Commitment and any ANZ Obligations and ANZ Revolving Loans). Each Reaffirming Loan Party hereby reaffirms its obligations under each provision of each Loan Document to which it is party.

 

 

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Section 8. Effect of Amendment; No Novation. (a)  Except as expressly set forth herein, this Amendment shall not (i) by implication or otherwise limit, impair, constitute a waiver of or otherwise affect the rights and remedies of the Agent, the Letter of Credit Issuers or the Lenders under any Loan Document, and shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations (including, for the avoidance of doubt, any guarantee obligations and indemnity obligations of the Guarantors and any grants of security interests by the Guarantors), covenants or agreements contained in any Loan Document, all of which are ratified and affirmed in all respects and shall continue in full force and effect or (ii) be construed as a substitution or novation of the Obligations outstanding under the Existing Credit Agreement or instruments guaranteeing or securing the same, which shall remain in full force and effect, except to the extent modified hereby. Nothing herein shall be deemed to entitle any Obligor to a consent to, or a waiver, amendment, modification or other change of, any of the terms, conditions, obligations, covenants or agreements contained in any Loan Document in similar or different circumstances.

 

(b)  From and after the First Amendment Effective Date, the terms “Agreement”, “this Agreement”, “herein”, “hereto”, “hereof” and words of similar import, as used in the Credit Agreement, shall refer to the Existing Credit Agreement as amended hereby, and the term “Credit Agreement”, as used in any Loan Document, shall mean the Credit Agreement. From and after the First Amendment Effective Date, the terms “Agreement”, “this Agreement”, “herein”, “hereto”, “hereof” and words of similar import, as used in the Canadian Guarantee Agreement, shall refer to the Canadian Guarantee Agreement as amended hereby and as heretofore amended, supplemented or otherwise modified, and the term “Canadian Guarantee Agreement”, as used in any Loan Document, shall mean the Canadian Guarantee Agreement. This Amendment shall constitute a “Loan Document” and a “Refinancing Amendment” for all purposes of the Credit Agreement and the other Loan Documents.

 

Section 9. GOVERNING LAW; JURISDICTION; SERVICE OF PROCESS. THIS AMENDMENT SHALL BE INTERPRETED AND THE RIGHTS AND LIABILITIES OF THE PARTIES HERETO DETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK EXCEPT THAT SECTION 4(C) SHALL BE INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE PROVINCE OF ONTARIO AND THE FEDERAL LAWS OF CANADA APPLICABLE THEREIN. The choice of forum, service of process, venue and waiver of jury trial provisions set forth in Sections 14.3 and 14.4 of the Credit Agreement are hereby incorporated by reference herein, mutatis mutandis.

 

 

8 

 

Section 10. Counterparts. This Amendment may be executed in any number of counterparts, each of which shall be an original, but all of which shall together constitute one and the same agreement. The words “execute”, “execution”, “signed”, “signature” and words of like import in or related to any document to be signed in connection with this Amendment shall be deemed to include electronic signatures, the electronic matching of assignment terms and contract formations on electronic platforms approved by the Agent, or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act; provided that notwithstanding anything contained herein to the contrary the Agent is under no obligation to agree to accept electronic signatures in any form or in any format unless expressly agreed to by the Agent pursuant to procedures approved by it.

 

Section 11. Headings. The headings of this Amendment are for convenience of reference only and shall not affect the interpretation of this Amendment.

 

[Signature pages follow]

 

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their respective authorized officers as of the date first above written.

 

 HOLDINGS

 

 UNITED RENTALS, INC., as a Guarantor

 

By:/s/ Irene Moshouris
Name:Irene Moshouris
 Title:Senior Vice President, Treasurer

 

 

 BORROWERS

 

 UNITED RENTALS (NORTH AMERICA), INC., and as a Guarantor

 

By:/s/ Irene Moshouris
Name:Irene Moshouris
 Title:Senior Vice President, Treasurer

 

 

  UNITED RENTALS OF CANADA, INC., and as a Guarantor

 

By:/s/ Irene Moshouris
Name:Irene Moshouris
 Title: Vice President, Treasurer

 

 

 UNITED RENTALS INTERNATIONAL B.V.

 

By:/s/ Jessica Graziano
Name:Jessica Graziano
 Title:Director

 

 

 UNITED RENTALS UK LIMITED

 

By:/s/ Jessica Graziano
Name:Jessica Graziano
 Title:Director

 

[Signature Page to First Amendment]

 

 

 

 

 UNITED RENTALS S.A.S.

 

By:/s/ Jessica Graziano
Name:Jessica Graziano
 Title:Chief Financial Officer

 

 

 UNITED RENTALS B.V.

 

By:/s/ Jessica Graziano
Name:Jessica Graziano
 Title:Director

 

 

 UNITED RENTALS GMBH

 

By:/s/ Jessica Graziano
Name:Jessica Graziano
 Title:Managing Director

 

 

 UNITED RENTALS PR, INC.

 

By:/s/ Irene Moshouris
Name:Irene Moshouris
 Title:Senior Vice President, Treasurer

 

 

 UNITED RENTALS (BELGIUM) BV

 

By:/s/ Jessica Graziano
Name:Jessica Graziano
 Title:Director

 

[Signature Page to First Amendment]

 

 

 

 

 ANZ BORROWERS

 

Executed by United Rentals Australia Pty Limited ACN 069 244 417  in accordance with section 127 of the Corporations Act 2001:    
/s/ Joli L. Gross   /s/ Jessica Graziano
Director/company secretary   Director
     
Joli Lyn Gross   Jessica Graziano
Name of director/company secretary
(BLOCK LETTERS)
  Name of director
(BLOCK LETTERS)

 

 UNITED RENTALS NEW ZEALAND

 

By:/s/ Joli L. Gross
Name:Joli L. Gross
 Title:Director

 

By:/s/ Jessica Graziano
Name:Jessica Graziano
 Title:Director

 

 GUARANTORS

 

 UNITED RENTALS HIGHWAY TECHNOLOGIES GULF, LLC

 

By:/s/ Irene Moshouris
Name:Irene Moshouris
 Title:Vice President, Treasurer

 

 

 UNITED RENTALS (DELAWARE), INC.

 

By:/s/ Irene Moshouris
Name:Irene Moshouris
 Title:Vice President, Treasurer

 

 

 UNITED RENTALS REALTY, LLC

 

By:/s/ Irene Moshouris
Name:Irene Moshouris
 Title:Vice President, Treasurer

 

[Signature Page to First Amendment]

 

 

 

 

 

 

 

SIGNATURE PAGE TO

FIRST AMENDMENT RELATING TO

UNITED RENTALS, INC. CREDIT AGREEMENT

 

 BANK OF AMERICA, N.A., as Agent and Lender

 

by:/s/ Cynthia G. Stannard
Name:Cynthia G. Stannard
 Title:Senior Vice President

 

 

 BANK OF AMERICA, N.A. (acting through its Australia branch), as ANZ Swingline Lender

 

by:/s/ Cynthia G. Stannard
Name:Cynthia G. Stannard
 Title:Senior Vice President

 

 

 BANK OF AMERICA, N.A. (acting through its Australia branch), as ANZ Revolving Credit Lender

 

 

by:/s/ Cynthia G. Stannard
Name:Cynthia G. Stannard
 Title:Senior Vice President

 

 Address: 185 Asylum St., Hartford, CT 06103
 Attn: Cynthia G. Stannard
 Telecopy No.: 860-952-6830

 

 

 

 

SIGNATURE PAGE TO

FIRST AMENDMENT RELATING TO

UNITED RENTALS, INC. CREDIT AGREEMENT

 

 WELLS FARGO BANK NATIONAL ASSOCIATION (LONDON BRANCH)

 

By:
  /s/ Alison Powell
 Name: Alison Powell
 Title: Authorised Signatory

 

For any Lender requiring a second signature line:

 

By: 
  
 Name:
 Title:

 

 WELLS FARGO BANK, NATIONAL ASSOCIATION

 

By: 
  /s/ Marc J. Breier
 Name: Marc J. Breier
 Title: Authorized Signatory

 

For any ANZ Revolving Credit Lender requiring a second signature line:

 

By: 
   
 Name:
 Title:

 

 ANZ Revolving Credit Lender notice address:
  
 Address: 8th Floor, 33 King William Street | London, EC4R 9AT
 Attn Portfolio Manager - United Rentals, Inc.
 Telecopy No.: +44 (0) 203 942 9372

 

 

 

 

 

 

SIGNATURE PAGE TO

FIRST AMENDMENT RELATING TO

UNITED RENTALS, INC. CREDIT AGREEMENT

 

Name of Lender (with any Lender that is an ANZ Revolving Credit Lender also signing in such capacity):  

 

Morgan Stanley Bank, N.A.  

 

  By: /s/ Jack Kuhns
    Name: Jack Kuhns
    Title: Authorized Signatory

 

Name of Lender (with any Lender that is an ANZ Revolving Credit Lender also signing in such capacity):

 

Morgan Stanley Senior Funding, Inc.

 

  By: /s/ Jack Kuhns
    Name: Jack Kuhns
    Title: Vice President

 

 

 

 

SIGNATURE PAGE TO

FIRST AMENDMENT RELATING TO

UNITED RENTALS, INC. CREDIT AGREEMENT

 

THE BANK OF NOVA SCOTIA, as a Lender and an ANZ Revolving Credit Lender

 

  By: /s/ Kevin McCarthy
    Name: Kevin McCarthy
    Title: Director

 

 

 

 

SIGNATURE PAGE TO

FIRST AMENDMENT RELATING TO

UNITED RENTALS, INC. CREDIT AGREEMENT

 

Name of Lender (with any Lender that is an ANZ Revolving Credit Lender also signing in such capacity):

 

  By: MUFG Union Bank, N.A.
       
       
  By: /s/ Thomas Kainamura
    Name: Thomas Kainamura
    Title: Director

 

For any Lender requiring a second signature line:

 

  By:  
    Name:  
    Title:  

 

[Name of ANZ Revolving Credit Lender:

 

  By:  
    Name:  
    Title:  

 

For any ANZ Revolving Credit Lender requiring a second signature line:

 

  By:  
    Name:  
    Title:  

 

  ANZ Revolving Credit Lender notice address:
   
  Address:
  Attn:

 

 

 

 

SIGNATURE PAGE TO

FIRST AMENDMENT RELATING TO

UNITED RENTALS, INC. CREDIT AGREEMENT

 

Name of Lender (with any Lender that is an ANZ Revolving Credit Lender also signing in such capacity): BARCLAYS BANK PLC

 

  By: /s/ Craig Malloy
    Name: Craig Malloy
    Title: Director

 

 

 

 

SIGNATURE PAGE TO

FIRST AMENDMENT RELATING TO

UNITED RENTALS, INC. CREDIT AGREEMENT

 

JPMorgan Chase Bank, N.A.

 

  By: /s/ Alicia Schreibstein
    Name: Alicia Schreibstein
    Title: Executive Director

 

For any Lender requiring a second signature line:

 

  By:  
    Name:  
    Title:  

 

 

 

 

SIGNATURE PAGE TO

FIRST AMENDMENT RELATING TO

UNITED RENTALS, INC. CREDIT AGREEMENT

 

JPMORGAN CHASE BANK, N.A., TORONTO BRANCH

 

  By: /s/ Auggie Marchetti
    Name: Auggie Marchetti
    Title: Authorized Officer

 

For any Lender requiring a second signature line:

 

  By:  
    Name:  
    Title:  

 

 

 

 

SIGNATURE PAGE TO

FIRST AMENDMENT RELATING TO

UNITED RENTALS, INC. CREDIT AGREEMENT

 

Truist Bank, as successor by merger to SunTrustBank, as a Lender

 

  By: /s/ Brian O’Fallon
    Name: Brian O’Fallon
    Title: Director

 

Truist Bank, as successor by merger to SunTrust Bank, as a Lender:

 

  By: /s/ Brian O’Fallon
    Name: Brian O’Fallon
    Title: Director

 

  ANZ Revolving Credit Lender notice address:
   
  Address:  3333 Peachtree Rd, N.E. 4th Floor, Atlanta, GA 30326
  Attn:    ABL Portfolio Manager (Roger Dober)
  Telecopy No.: 704.362.8563

 

 

 

 

SIGNATURE PAGE TO

FIRST AMENDMENT RELATING TO

UNITED RENTALS, INC. CREDIT AGREEMENT

 

Bank of Montreal (with any Lender that is an AZN Revolving Credit Lender also signing in such capacity):

 

  By: /s/ Terrence McKenna
    Name: Terrence McKenna, Chicago Branch
    Title: Director

 

  By: /s/ Kyle Kuchma
    Name: Kyle Kuchma, Toronto Branch
    Title: Head, Credit Structuring

 

  ANZ Revolving Credit Lender notice address:
   
  Address:  115 S LaSalle St, 20W, Chicago, IL 60603
  Attn:    Nathan Mika
  Telecopy No.: (312) 882-4745

 

 

 

 

SIGNATURE PAGE TO

FIRST AMENDMENT RELATING TO

UNITED RENTALS, INC. CREDIT AGREEMENT

 

PNC Bank, National Association (with any Lender that is an ANZ Revolving Credit Lender also signing in such capacity):

 

  By: /s/ Robert Fernandez
    Name: Robert Fernandez
    Title: Vice President

 

For any Lender requiring a second signature line:

 

  By:  
    Name:  
    Title:  

 

[Name of ANZ Revolving Credit Lender:

 

  By:  
    Name:  
    Title:  

 

For any ANZ Revolving Credit Lender requiring a second signature line:

 

  By:  
    Name:  
    Title:  

 

  ANZ Revolving Credit Lender notice address:
   
  Address:
  Attn:  
  Telecopy No.:

 

 

 

 

SIGNATURE PAGE TO

FIRST AMENDMENT RELATING TO

UNITED RENTALS, INC. CREDIT AGREEMENT

 

Name of Lender (with any Lender that is an ANZ Revolving Credit Lender also signing in such capacity): TD Bank, N.A.

 

  By: /s/ Frank Nicoletta
    Name: Frank Nicoletta
    Title: Vice President

 

 

 

 

SIGNATURE PAGE TO

FIRST AMENDMENT RELATING TO

UNITED RENTALS, INC. CREDIT AGREEMENT

 

Name of Lender:

 

  By: NYCB Specialty Finance Company, LLC, a wholly owned subsidiary of New York Community Bank
     
    /s/ Willard D. Dickerson, Jr.
    Name: Willard D. Dickerson, Jr.
    Title: Senior Vice President

 

For any Lender requiring a second signature line:

 

  By:  
    Name:  
    Title:  

 

 

 

 

EXHIBIT A

 

Credit Agreement

 

[See attached]

 

 

 

 

 

EXECUTION VERSIONEXHIBIT A

 

THIRD AMENDED AND RESTATED CREDIT AGREEMENT1

 

Dated as of February 15, 2019 among

 

THE FINANCIAL INSTITUTIONS NAMED HEREIN

as the Lenders

 

and

 

BANK OF AMERICA, N.A.

as Agent, U.S. Swingline Lender and Letter of Credit Issuer

 

BANK OF AMERICA, N.A. (acting through its London branch)
as ROW Swingline Lender

 

BANK OF AMERICA, N.A. (acting through its Canada branch)
as Canadian Swingline Lender

 

BANK OF AMERICA MERRILL LYNCH INTERNATIONAL, DESIGNATED ACTIVITY COMPANY

as French Swingline Lender

 

and

 

WELLS FARGO BANK, NATIONAL ASSOCIATION, CITIBANK, N.A. and

MORGAN STANLEY SENIOR FUNDING, INC.

as Co-Syndication Agents

 

and

 

BARCLAYS BANK PLC, DEUTSCHE BANK AG NEW YORK BRANCH,

JPMORGAN CHASE BANK, N.A., MUFG UNION BANK, N.A., THE BANK OF NOVA SCOTIA,

SUNTRUST BANK, BMO HARRIS BANK, N.A., PNC BANK, NATIONAL ASSOCIATION and TD BANK, N.A.

as Co-Documentation Agents
and

 

UNITED RENTALS (NORTH AMERICA), INC.

as a U.S. Borrower

 

UNITED RENTALS, INC.
and certain of its Subsidiaries
as the Guarantors

 

UNITED RENTALS OF CANADA, INC.

as a Canadian Borrower

 

UNITED RENTALS INTERNATIONAL, B.V.

and certain other Subsidiaries of United Rentals, Inc.

as ROW Borrowers

 

UNITED RENTALS S.A.S.

as a French Borrower

 

THE OTHER BORROWERS PARTY HERETO and

 

MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,

WELLS FARGO BANK, NATIONAL ASSOCIATION, CITIBANK, N.A. and

MORGAN STANLEY SENIOR FUNDING, INC.

as the Joint Lead Arrangers

 

and

 

MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,
WELLS FARGO BANK, NATIONAL ASSOCIATION, CITIBANK, N.A. and

 

1As amended by the Credit Agreement Joinder and Amendment dated as of March 25, 2021 and the First Amendment dated as of June 30, 2021.

 

 

 

 

MORGAN STANLEY SENIOR FUNDING, INC.

as the Joint Book Runners

 

ii

 

 

TABLE OF CONTENTS

 

Page

 

ARTICLE I  

DEFINITIONS  

 

1.1 Defined Terms 2
1.2 Accounting Terms 5662
1.3 Interpretive Provisions 5663
1.4 Classification of Loans and Borrowings 6067
1.5 Effectuation of Transactions 6067
1.6 Currency 6067
1.7 Additional Alternative Currencies 6168
1.8 Pro Forma Calculations 6269
1.9 Additional Borrowers 6370
1.10 No Novation; Acknowledgement and Adjustment of Loans, Payment of Accrued Interest and Fees 6572 
1.11 Syndicated Facility Agreement 73
     
  ARTICLE II  
  LOANS AND LETTERS OF CREDIT  
     
2.1 Revolving Loans 6673
2.2 Revolving Loan Administration 6774
2.3 Swingline Loans 6876
2.4 Letters of Credit 7078
2.5 Incremental Facility 7381
2.6 Extension Amendments 7584
2.7 Refinancing Amendments 7886
2.8 [Intentionally Omitted] 8290
2.9 Reserves 8290
2.10 Canadian Revolving Loans and ROW Revolving Loans; Intra-Lender Issues 8291
     
  ARTICLE III  
  INTEREST AND FEES  
     
3.1 Interest 8694
3.2 Continuation and Conversion Elections 8896
3.3 Maximum Interest Rate 8998
3.4 Closing Fees 9098
3.5 Unused Line Fee 9098
3.6 Letter of Credit Fees 9099
     
  ARTICLE IV  
  PAYMENTS AND PREPAYMENTS  
     
4.1 Payments and Prepayments 9099
4.2 Out-of-Formula Condition 91100
4.3 Termination or Reductions of Facilities; Reallocation 91100
4.4 LIBOR Loan and, BA Equivalent LoansLoan and Bank Bill Rate Loan Prepayments 92101
4.5 Payments by the Borrowers 92102
4.6 Apportionment, Application and Reversal of Payments 93102
4.7 Indemnity for Returned Payments 94103
4.8 [Intentionally Omitted]Payments by Borrower; Presumptions by Agent 94103
4.9 Agent’s and Lenders’ Books and Records; Monthly Statements 94104
4.10 Borrowers’ Agent 94104
4.11 [Intentionally Omitted] 94104

 

iii

 

 

4.12 Excess Resulting from Exchange Rate Change 95104
4.13 Several Liability 95105
4.14 Joint and Several Liability 96106
     
  ARTICLE V  
  TAXES, YIELD PROTECTION AND ILLEGALITY  
     
5.1 Taxes 96107
5.2 Illegality 101113
5.3 Increased Costs and Reduction of Return 101113
5.4 Funding Losses 102114
5.5 Inability to Determine Applicable Interest Rate 103114
5.6 Certificates of Agent 103115
5.7 Successor LIBOR Rate Benchmark Replacement 104116
5.8 Survival 105117
5.9 Assignment of Commitments Under Certain Circumstances 105118
     
  ARTICLE VI  
  GENERAL WARRANTIES AND REPRESENTATIONS  
     
6.1 Authorization, Validity, and Enforceability of this Agreement and the Loan Documents 106118
6.2 Validity and Priority of Security Interest 106119
6.3 Organization and Qualification 106119
6.4 Subsidiaries 106119
6.5 Financial Statements and Borrowing Base Certificate 106119
6.6 Capitalization 107119
6.7 Solvency 107119
6.8 Proprietary Rights 107120
6.9 Litigation 107120
6.10 Labor Disputes 107120
6.11 Environmental Laws 107120
6.12 No Violation of Law 108120
6.13 No Default 108121
6.14 ERISA Compliance 108121
6.15 Taxes 108121
6.16 Regulated Entities 109121
6.17 Use of Proceeds; Margin Regulations 109122
6.18 No Material Adverse Effect 109122
6.19 No Material Misstatements 109122
6.20 Government Authorization 109122
6.21 Sanctions 110122
6.22 EU Bail-In 110122
6.23 Beneficial Ownership Certification 110122
6.24 Belgian SME Financing Act 110122
6.25 Related Parties 123
     
  ARTICLE VII  
  AFFIRMATIVE COVENANTS  
     
7.1 Books and Records 110123
7.2 Financial Information 110123
7.3 Certificates; Other Information 111124
7.4 Collateral Reporting 112124
7.5 Filing of Tax Returns; Payment of Taxes 112125
7.6 Legal Existence and Good Standing 112125
7.7 Compliance with Law 112125
7.8 Maintenance of Property 113125
7.9 Inspection 113126

 

iv

 

 

7.10 Insurance 114126
7.11 Insurance and Condemnation Proceeds 114127
7.12 Use of Proceeds 114127
7.13 Environmental Laws 114127
7.14 Compliance with ERISA 115127
7.15 Further Assurances 115128
7.16 Additional Obligors 115128
7.17 Bank and Securities Accounts; Cash Dominion 118130
7.18 Sanctions 118131
7.19 Anti-Money Laundering Laws 119131
7.20 Securitization Transactions 119132
     
  ARTICLE VIII  
  NEGATIVE COVENANTS  
     
8.1 Indebtedness 119132
8.2 Liens 123135
8.3 [Intentionally omitted]. 126139
8.4 Distributions; Restricted Investments 126139
8.5 Mergers, Consolidations or Sales 126139
8.6 Prepayments of Indebtedness 127140
8.7 Transactions with Affiliates 128141
8.8 Restrictive Agreements 129142
8.9 Fixed Charge Coverage Ratio 130143
     
  ARTICLE IX  
  CONDITIONS OF LENDING  
     
9.1 Conditions Precedent to Effectiveness of Agreement and Making of Loans on the Closing Date 130143
9.2 Conditions Precedent to Each Loan 130145
     
  ARTICLE X  
  DEFAULT; REMEDIES  
     
10.1 Events of Default 133146
10.2 Remedies 135148
     
  ARTICLE XI  
  TERM AND TERMINATION  
     
11.1 Term and Termination 136149
     
  ARTICLE XII  
  AMENDMENTS; WAIVERS; PARTICIPATIONS; ASSIGNMENTS; SUCCESSORS  
     
12.1 Amendments and Waivers 136149
12.2 Assignments; Participations 138151
     
  ARTICLE XIII  
  THE AGENT  
     
13.1 Appointment and Authorization 140153
13.2 Delegation of Duties 140153
13.3 Liability of Agent 141154
13.4 Reliance by Agent 141154
13.5 Notice of Default 141154
13.6 Credit Decision 141154
13.7 Indemnification 142155

 

v

 

 

13.8 Agent in Individual Capacity 142155
13.9 Successor Agent 142155
13.10 Withholding Tax 142155
13.11 Collateral Matters 143156
13.12 Restrictions on Actions by Lenders; Sharing of Payments 144157
13.13 Agency for Perfection 145158
13.14 Payments by Agent to Lenders 145158
13.15 Settlement; Defaulting Lenders 145158
13.16 Letters of Credit; Intra-Lender Issues 149162
13.17 Concerning the Collateral and the Related Loan Documents 151164
13.18 Field Audit and Examination Reports; Disclaimer by Lenders 151165
13.19 Relation Among Lenders 152165
13.20 Arrangers; Agent 152165
13.21 The Register 152165
13.22 Québec Collateral 153166
13.23 Certain ERISA Matters. 154167
13.24 Recovery of Erroneous Payments 168
     
  ARTICLE XIV  
  MISCELLANEOUS  
     
14.1 No Waivers; Cumulative Remedies 155169
14.2 Severability 155169
14.3 Governing Law; Choice of Forum; Service of Process 155169
14.4 WAIVER OF JURY TRIAL 156170
14.5 Survival of Representations and Warranties 156170
14.6 Other Security and Guarantees 156170
14.7 Fees and Expenses 157170
14.8 Notices 157171
14.9 Binding Effect 159172
14.10 Indemnity of the Agent and the Lenders 159172
14.11 Limitation of Liability 159173
14.12 Final Agreement 159173
14.13 Counterparts; Facsimile Signatures; Electronic Execution 159173
14.14 Captions 160174
14.15 Right of Setoff 160174
14.16 Confidentiality 160174
14.17 Conflicts with Other Loan Documents 161175
14.18 Collateral Matters 161175
14.19 No Fiduciary Relationship 161175
14.20 Judgment Currency 161175
14.21 Incremental Indebtedness; Extended Commitments; Extended Loans; Refinancing Commitments and Refinancing Loans; Additional First Lien Debt 161175
14.22 Lenders 162176
14.23 USA PATRIOT Act 162176
14.24 Amendment and Restatement 162176
14.25 Waiver of Notices 162176
14.26 Acknowledgement and Consent to Bail-In of EEAAffected Financial Institutions 163176
14.27 Canadian Anti-Money Laundering Legislation 163177
14.28 Acknowledgement Regarding Any Supported QFCs 177
14.29 Australian Banking Code of Practice 178

 

vi

 

 

EXHIBITS AND SCHEDULES

 

EXHIBIT A FORM OF BORROWING BASE CERTIFICATE
EXHIBIT B FORM OF NOTICE OF BORROWING
EXHIBIT C FORM OF NOTICE OF CONTINUATION/CONVERSION
EXHIBIT D FORM OF COMPLIANCE CERTIFICATE
EXHIBIT E FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT
EXHIBIT F PERFECTION CERTIFICATE
EXHIBIT G FORM OF SOLVENCY CERTIFICATE
EXHIBIT H [INTENTIONALLY OMITTED]
EXHIBIT I FORM OF LENDER JOINDER AGREEMENT
EXHIBIT J FORMS OF U.S. TAX COMPLIANCE CERTIFICATES
SCHEDULE 1.1 LENDERS’ COMMITMENTS
SCHEDULE 1.1A EXISTING LETTERS OF CREDIT
SCHEDULE 1.2 ROW BORROWERS
SCHEDULE 1.2A GUARANTORS
SCHEDULE 1.3 IMMATERIAL SUBSIDIARIES
SCHEDULE 1.4 UNRESTRICTED SUBSIDIARIES
SCHEDULE 2.10A PARTICIPATING CANADIAN LENDERS
SCHEDULE 2.10B   PARTICIPATING ROW LENDERS
SCHEDULE 6.4 SUBSIDIARIES
SCHEDULE 6.6 CAPITALIZATION
SCHEDULE 6.9 LITIGATION
SCHEDULE 6.11 ENVIRONMENTAL LAW
SCHEDULE 6.14 ERISA AND PENSION PLAN COMPLIANCE
SCHEDULE 6.15 TAXES
SCHEDULE 8.1 DEBT
SCHEDULE 8.2 LIENS
SCHEDULE 8.4 INVESTMENTS

 

vii

 

 

THIRD AMENDED AND RESTATED CREDIT AGREEMENT

 

This Third Amended and Restated Credit Agreement, dated as of February 15, 2019, among the financial institutions from time to time parties hereto (such financial institutions, together with their respective successors and assigns, are referred to hereinafter each individually as a “Lender” and collectively as the “Lenders”), Bank of America, N.A., with an office at One Bryant Park, New York, New York 10036, as Agent, U.S. Swingline Lender and Letter of Credit Issuer, Bank of America, N.A. (acting through its London branch), with an office at 26 Elmfield Road, Bromley, Kent BR1 1LR, as ROW Swingline Lender, Bank of America, N.A. (acting through its Canada branch), with an office at 181 Bay Street, Toronto Ontario, M5J2V8, as Canadian Swingline Lender, Bank of America Merrill Lynch International, Designated Activity Company, with an office at 26 Elmfield Road, Bromley, Kent BR1 1LR, as French Swingline Lender, Wells Fargo Bank, National Association, Citibank, N.A. and Morgan Stanley Senior Funding, Inc., as co-syndication agents (each, in its capacity as a co-syndication agent, a “Co-Syndication Agent”), Barclays Bank PLC, Deutsche Bank AG New York Branch, JPMorgan Chase Bank, N.A., MUFG Union Bank, N.A., The Bank Of Nova Scotia, SunTrust Bank, BMO Harris Bank, N.A., PNC Bank, National Association and TD Bank, N.A., as the co-documentation agents (each, in its capacity as a co-documentation agent, a “Co-Documentation Agent”), United Rentals, Inc., a Delaware corporation, with offices at 100 First Stamford Place, Suite 700, Stamford, CT 06902 (“Holdings”), United Rentals (North America), Inc., a Delaware corporation, with offices at 100 First Stamford Place, Suite 700, Stamford, CT 06902 (the “Company” and, together with each Additional Borrower organized under the Laws of the United States, any state thereof or the District of Columbia made a party hereto from time to time in accordance with Section 1.9(a), the “U.S. Borrowers”), United Rentals of Canada, Inc., a corporation amalgamated under the laws of the Province of Ontario (“UR Canada” and, together with each Additional Borrower organized under the Laws of Canada or any territory or province thereof made a party hereto from time to time in accordance with Section 1.9(a), the “Canadian Borrowers”), United Rentals International B.V., a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) organized under the Laws of the Netherlands (together with each other Subsidiary listed on Schedule 1.2 and/or any Additional Borrower made a party hereto from time to time as a ROW Borrower in accordance with Section 1.9(a), the “ROW Borrowers”), United Rentals S.A.S., a private company with limited liability (société par actions simplifiée) organized under the laws of France, with a registered office at 23, rue du Roule, 75001 Paris, France and registered with the Paris Trade Companies Register under number 499 925 857 (together with each Additional Borrower organized under the laws of France made a party hereto from time to time as a French Borrower in accordance with Section 1.9(a), the “French Borrowers”), and the Guarantors (as defined below) party hereto.

 

W I T N E S S E T H:

 

WHEREAS, Holdings, the Company, UR Canada, the Guarantors, the Agent, certain of the Lenders party hereto and certain other parties thereto are party to a certain Second Amended and Restated Credit Agreement, dated as of March 31, 2015, as amended to, but excluding, the date hereof (as so amended, the “Existing Loan Agreement”);

 

WHEREAS, the parties hereto desire to amend and restate the Existing Loan Agreement in its entirety, but not as a novation, on the terms and subject to the conditions hereinafter set forth;

 

WHEREAS, the Borrowers have requested that the Lenders continue to make available a revolving credit facility, which may be used from time to time by the U.S. Borrowers and portions of which may be used from time to time by the Canadian Borrowers, the ROW Borrowers and the French Borrowers, in each case on the terms and conditions specified herein;

 

WHEREAS, all Obligations incurred pursuant to the Existing Loan Agreement or pursuant hereto are and shall continue to be secured by, among other things, the Security Documents and the other Loan Documents, in each case as and to the extent set forth herein and therein; and

 

WHEREAS, each of the U.S. Guarantors has agreed to continue to guarantee the Obligations of each of the Borrowers, and each of the Canadian Guarantors has agreed to continue to guarantee the Obligations of the Canadian Borrowers and to guarantee the Obligations of the ROW Borrowers and the French Borrowers.

 

1

 

 

NOW, THEREFORE, in consideration of the mutual conditions and agreements set forth in this Agreement, and for good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto hereby agree that the Existing Loan Agreement shall be, and hereby is, amended and restated in its entirety as follows:

 

ARTICLE I

 

DEFINITIONS

 

1.1       Defined Terms. As used in this Agreement, the following terms shall have the meanings specified

 

below:

 

1L/2L Intercreditor Agreement” means that certain intercreditor agreement, dated as of March 9, 2012, among Bank of America, as Agent hereunder, Bank of America, as Agent under the TLB Credit Agreement, Wells Fargo Bank, National Association, as Notes Trustee, Second Lien Collateral Agent and Second Lien Agent (as defined therein), and the other parties thereto from time to time.

 

4⅝% Senior Note Indenture” means that certain Indenture dated as of September 22, 2017 among the Company, Holdings, certain subsidiaries of the Company and Wells Fargo Bank, National Association, as Trustee.

 

4⅝% Senior Notes” means the 4⅝% Senior Notes due 2025 issued by the Company pursuant to the 4⅝% Senior Note Indenture.

 

4⅝% Senior Secured Note Indenture” means that certain Indenture dated as of March 26, 2015 among the Company, Holdings, certain subsidiaries of the Company and Wells Fargo Bank, National Association, as Trustee and Notes Collateral Agent.

 

4⅝% Senior Secured Notes” means the 4⅝% Senior Secured Notes due 2023 issued by the Company pursuant to the 4⅝% Senior Secured Note Indenture.

 

5¾% Senior Note Indenture” means that certain Indenture dated as of March 26, 2014 among the Company, Holdings, certain subsidiaries of the Company and Wells Fargo Bank, National Association, as Trustee.

 

5¾% Senior Notes” means the 5¾% Senior Notes due 2024 issued by the Company pursuant to the 5¾% Senior Note Indenture.

 

5⅞% Senior Note Indenture” means that certain Indenture dated as of May 13, 2016 among the Company, Holdings, certain subsidiaries of the Company and Wells Fargo Bank, National Association, as Trustee.

 

5⅞% Senior Notes” means the 5⅞% Senior Notes due 2026 issued by the Company pursuant to the 5⅞% Senior Note Indenture.

 

6½% Senior Note Indenture” means that certain Indenture dated as of October 30, 2018 among the Company, Holdings, certain subsidiaries of the Company and Wells Fargo Bank, National Association, as Trustee.

 

6½% Senior Notes” means the 6½% Senior Notes due 2026 issued by the Company pursuant to the 6½% Senior Note Indenture.

 

Acceleration” has the meaning specified in Section 10.1(d).

 

Acceptable Intercreditor Agreement” means (a) the 1L/2L Intercreditor Agreement, (b) the Pari Passu Intercreditor Agreement and (c) any other intercreditor agreement containing customary terms and conditions for comparable transactions that is in form and substance reasonably acceptable to the Agent; provided that (i) any intercreditor agreement between the Agent and one or more representatives of Persons (other than Holdings or any of its Subsidiaries) benefitting from a Lien on any Collateral of a U.S. Obligor that is intended to be junior to the Agent’s Lien thereon having terms that are substantially consistent with, or not materially less favorable, taken as a whole, to the Secured Parties than, the terms of the 1L/2L Intercreditor Agreement, shall be deemed to be reasonably acceptable to the Agent and (ii) any intercreditor agreement between the Agent and one or more representatives of Persons (other than Holdings or any of its Subsidiaries) benefitting from a Lien on any Collateral of a U.S. Obligor that is intended to be pari passu to the Agent’s Lien having terms that are substantially consistent with, or not materially less favorable, taken as a whole, to the Secured Parties than, the terms of the Pari Passu Intercreditor Agreement, shall be deemed to be reasonably acceptable to the Agent.

 

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Account Debtor” means each Person obligated in any way on or in connection with an Account, Chattel Paper or General Intangible (including a payment intangible).

 

Accounts” means, with respect to each Obligor and its Subsidiaries, all of such Obligor’s or such Subsidiary’s now owned or hereafter acquired or arising accounts, as defined in the UCC or the PPSA, as applicable, and Leases, including any rights to payment for the sale or lease of goods or rendition of services, whether or not they have been earned by performance, all Progress Billings, and all rentals, lease payments and other monies due and to become due under any Lease.

 

ACPR” means the French Autorité de Contrôle Prudentiel et de Résolution.

 

Acquired Business” has the meaning specified in the definition of “Permitted Acquisition”.

 

Act” has the meaning specified in Section 14.23.

 

Additional Borrower” has the meaning specified in Section 1.9(a).

 

Additional Lender” means any Person that has agreed to provide Incremental Facilities pursuant to Section 2.5 or Refinancing Commitments pursuant to Section 2.7, whether or not such Person was a Lender hereunder immediately prior to such time.

 

Adjustment Date” means initially, the first day of the first calendar quarter beginning after the date that is the six-month anniversary of the Closing Date and, thereafter, the first day of each calendar quarter (or, if earlier, the Termination Date).

 

“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any U.K. Financial Institution.

 

Affiliate” means, as to any Person, any other Person which, directly or indirectly, is in control of, is controlled by, or is under common control with, such Person or which owns, directly or indirectly, 25% or more of the outstanding equity interests of such Person. A Person shall be deemed to control another Person if the controlling Person possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of the other Person, whether through the ownership of voting securities, by contract, or otherwise. Without limiting the generality of the foregoing, when used with respect to the Agent or any Lender, the term “Affiliate” shall include any “authorized foreign bank” for purposes of the Income Tax Act (Canada) of such Person.

 

Agent” means the Bank, as the agent for the Lenders under this Agreement, or any successor agent.

 

Agent Advance Period” has the meaning specified in Section 2.2(b).

 

Agent Advances” has the meaning specified in Section 2.2(b).

 

Agent’s Liens” means the Liens on the Collateral granted to the Agent, for the benefit of the Secured Parties, pursuant to this Agreement and the other Loan Documents.

 

Agent-Related Persons” means the Agent, together with its Affiliates and branches, and the respective officers, directors, employees, counsel, representatives, agents and attorneys-in-fact of the Agent and such Affiliates and branches.

 

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“Aggregate ANZ Revolver Outstandings” means, at any date of determination and without duplication, the Equivalent Amount in Dollars of the aggregate unpaid principal balance of ANZ Revolving Loans.

 

Aggregate Canadian Revolver Outstandings” means, at any date of determination and without duplication, the Equivalent Amount in Dollars of the aggregate unpaid principal balance of Canadian Revolving Loans.

 

Aggregate Canadian Revolver Outstandings Funded On U.S. Borrowing Base” means, at any date of determination and without duplication, the Equivalent Amount in Dollars of the difference (if positive) of (a) the Aggregate Canadian Revolver Outstandings, minus (b) the lesser of (i) the Maximum Canadian Revolver Amount and (ii) the Canadian Borrowing Base.

 

Aggregate French Swingline Outstandings” means, at any date of determination, the Equivalent Amount in Dollars of the aggregate unpaid principal balance of French Swingline Loans.

 

Aggregate Pro Rata Revolver Outstandings” means, at any date of determination and without duplication, the Equivalent Amount in Dollars of the sum of (a) the Aggregate U.S. Revolver Outstandings, (b) the Aggregate ROW Revolver Outstandings, (c) the Aggregate Canadian Revolver Outstandings and (d) the Aggregate French Swingline Outstandings.

 

“Aggregate Revolver Outstandings” means, at any date of determination and without duplication, the Equivalent Amount in Dollars of the sum of (a) Aggregate Pro Rata Revolver Outstandings and (b) the Aggregate ANZ Revolver Outstandings.

 

Aggregate ROW Revolver Outstandings” means, at any date of determination and without duplication, the Equivalent Amount in Dollars of the aggregate unpaid principal balance of ROW Revolving Loans.

 

Aggregate U.S. Revolver Outstandings” means, at any date of determination and without duplication, the Equivalent Amount in Dollars of the sum of (a) the unpaid principal balance of U.S. Revolving Loans, (b) 100% of the aggregate maximum amount available to be drawn under all outstanding Letters of Credit, and (c) the aggregate amount of any unpaid reimbursement obligations in respect of Letters of Credit.

 

Agreement” means this Third Amended and Restated Credit Agreement.

 

“Agreement Currency” means Dollars, Canadian Dollars and each Alternative Currency.

 

Agreement Date” means the date of this Agreement.

 

Alternative Currency” means Euro, Sterling, Australian Dollars, New Zealand Dollars and any other currency (other than Dollars or Canadian Dollars) that is approved in accordance with Section 1.7.

 

“Alternative Currency Benchmark Replacement” has the meaning specified in Section 5.7(d).

 

AML Legislation” has the meaning specified in Section 14.27.

 

“ANZ Borrowers” means United Rentals Australia Pty Limited and United Rentals New Zealand, together with each Additional Borrower incorporated under the laws of Australia or New Zealand made a party hereto from time to time as an ANZ Borrower in accordance with Section 1.9(a).

 

“ANZ Credit Facilities” means the revolving credit and swingline facilities provided for by this Agreement extended to the ANZ Borrowers.

 

“ANZ Obligations” means, with respect to the Indebtedness of the ANZ Borrowers under the Loan Documents, any principal, premium (if any), interest (including interest accruing on or after the filing of any petition in bankruptcy or for reorganization relating to any ANZ Borrower whether or not a claim for post-filing interest is allowed in such proceedings), fees, charges, expenses, reimbursement obligations, Guarantees of such Indebtedness (or of Obligations in respect thereof), other monetary obligations of any ANZ Borrower of any nature and all other amounts payable by any ANZ Borrower under the Loan Documents or in respect thereof; provided that, “ANZ Obligations” shall in any event include Designated Bank Products Obligations of any ANZ Borrower; provided, further, that “ANZ Obligations” shall not include any Canadian Obligations, French Obligations, U.S. Obligations or ROW Obligations.

 

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“ANZ Revolving Credit Commitment” means, at any date for any Lender, the obligation of such Lender to make ANZ Revolving Loans and to purchase participations in ANZ Swingline Loans pursuant to the terms and conditions of this Agreement, which shall not exceed the aggregate principal amount set forth on Schedule 1.1 under the heading “ANZ Revolving Credit Commitment” or on the signature page of the Assignment and Acceptance by which it became a Lender, as modified from time to time pursuant to the terms of this Agreement or to give effect to any applicable Assignment and Acceptance; and “ANZ Revolving Credit Commitments” means the aggregate principal amount of the ANZ Revolving Credit Commitments of all Lenders, the maximum amount of which shall be the Maximum ANZ Revolver Amount.

 

“ANZ Revolving Credit Lender” means a Lender with an ANZ Revolving Credit Commitment or an outstanding ANZ Revolving Loan.

 

“ANZ Revolving Loans” means the revolving loans made to the ANZ Borrowers pursuant to Section 2.1(b) or any amendment to this Agreement entered into pursuant to Section 2.5, 2.6 or 2.7 and each ANZ Swingline Loan.

 

“ANZ Swingline Commitment” means the commitment of the ANZ Swingline Lender to make loans pursuant to Section 2.3(e).

 

“ANZ Swingline Lender” means Bank of America, N.A. (acting through its Australia branch) or any successor entity thereto, or any other successor financial institution agreed to by the Borrowers’ Agent and the Agent, in its capacity as provider of ANZ Swingline Loans.

 

“ANZ Swingline Loan” and “ANZ Swingline Loans” have the meanings specified in Section 2.3(e).

 

“ANZ Swingline Loan Minimum” means (a) in the case of an ANZ Swingline Loan denominated in Dollars, $ 100,000, (b) in the case of an ANZ Swingline Loan denominated in Australian Dollars, A$100,000 and (c) in the case of an ANZ Swingline Loan denominated in New Zealand Dollars, NZ$100,000.

 

“ANZ Swingline Loan Multiple” means (a) in the case of an ANZ Swingline Loan denominated in Dollars, $50,000, (b) in the case of an ANZ Swingline Loan denominated in Australian Dollars, A$50,000 and

(c) in the case of an ANZ Swingline Loan denominated in New Zealand Dollars, NZ$50,000.

 

“ANZ Swingline Sublimit” has the meaning specified in Section 2.3(e).

 

“ANZ Unused Line Fee” has the meaning specified in Section 3.5.

 

Applicable Entities” has the meaning specified in Section 14.19.

 

Applicable Margin” means, during the period from the Closing Date until the initial Adjustment Date, at the option of the applicable Borrower, (a) in the case of Dollar denominated loans (other than ROW Swingline Loans, French Swingline Loans or Canadian Revolving Loans), the LIBOR Rate or the Base Rate, (b) in the case of Alternative Currency denominated ROW Revolving Loans, the LIBOR Rate, (c) in the case of ROW Swingline Loans, the Foreign Base Rate, (d) in the case of French Swingline Loans, the LIBOR Rate or the Foreign Base Rate, (e) in the case of Dollar denominated Canadian Revolving Loans, the LIBOR Rate or the Canadian Base Rate, and (f)        in the case of Canadian Dollar denominated loans, the Canadian Prime Rate or the BA Rate, in for each case plusType of Loan, the interest margin applicable thereto at Level II set forth in the pricing grid below. From and after the initial Adjustment Date and on each subsequent Adjustment Date, the foregoing interest margins for each Type of Loan will be subject to a pricing grid based on average daily Combined Availability as a percentage of the average daily Maximum Revolver Amount for the previous calendar quarter (or portion thereof), as set forth in the pricing grid below:

 

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    Applicable Margin Applicable Margin for U.S.    
    for U.S. Revolving Revolving Loans and    
  Average daily Loans, ROW Canadian Revolving Loans    
  Revolving Loans that are LIBOR Loans and,     
  Combined (other than ROW ROW Revolving Loans and    
  Availability Swingline Loans) French Swingline Loans Applicable Applicable
  as a denominated in that are LIBOR Loans Margin for Margin for
  percentage of Dollars and Canadian SONIA Rate Loans or Canadian Canadian
  the average Revolving Loans Foreign Base Rate Loans Revolving Revolving
  daily denominated in and ANZ Revolving Loans that are Loans that
  Maximum Dollars, in each case Loans that are LIBOR Canadian are BA
  Revolver that are Base Rate Loans, Bank Bill Rate Prime Rate Equivalent
Level Amount Loans Loans or Base Rate Loans Loans Loans
I > 66 2/3% 0.25% 1.25% 0.25% 1.25%
II ≤ 66 2/3% but
≥ 33 1/3%
0.50% 1.50% 0.50% 1.50%
III < 33 1/3% 0.75% 1.75% 0.75% 1.75%

 

provided that, with respect to Level III above, for each Fiscal Quarter commencing with the first Fiscal Quarter ending on or after March 31, 2019, if the Total Indebtedness Leverage Ratio is less than 4.00 to 1.00 at the end of such Fiscal Quarter (a “Reference Quarter”), then, from and after the first Business Day immediately following the date on which a Compliance Certificate is delivered pursuant to Section 7.2(d) for such Reference Quarter, the Applicable Margin shall be the rate otherwise noted above minus 0.25% until the date on which a Compliance Certificate is delivered, or was required to be delivered, pursuant to Section 7.2(d) with respect to the following Fiscal Quarter. Each change in the Applicable Margin resulting from a change in the average daily Combined Availability as a percentage of the average daily Maximum Revolver Amount for the most recent calendar quarter ended immediately preceding the first day of a calendar quarter shall be effective with respect to all Loans and Letters of Credit outstanding on and after such first day of such calendar quarter. Notwithstanding anything to the contrary contained above in this definition, Level III pricing shall apply for all Loans at all times once the Commitments have terminated or the Termination Date has occurred.

 

Notwithstanding the foregoing, in the event that any Financial Statement delivered pursuant to Section 7.2(a) or 7.2(b) or Compliance Certificate delivered pursuant to Section 7.2(d) is shown to be inaccurate and such inaccuracy, if corrected, would have led to the application of a higher Applicable Margin for any period (an “Applicable Period”) than the Applicable Margin applied for such Applicable Period, then (i) Holdings shall promptly deliver to the Agent a corrected Compliance Certificate for such Applicable Period, (ii) the Applicable Margin for such Applicable Period shall be determined as if the Total Indebtedness Leverage Ratio in the corrected Compliance Certificate were applicable for such Applicable Period, and (iii) promptly following the delivery of such corrected Compliance Certificate, the applicable Borrowers shall pay to the Agent an amount equal to the excess of the amount of interest that should have been paid for such Applicable Period over the amount of interest actually paid for such Applicable Period, which payment shall be promptly applied by the Agent in accordance with Section 13.14. Nothing in this paragraph shall limit the rights of the Agent and Lenders with respect to Sections 3.1 and 10.2 nor any of their other rights under this Agreement or any other Loan Document.

 

Appraisal” means an appraisal, prepared on a basis reasonably satisfactory to the Agent, setting forth the Net Orderly Liquidation Value of all Rental Equipment of the applicable Secured Obligors, which appraisal shall be prepared in accordance with Section 7.9(b).

 

Approved Fund” means any Person (other than a natural person or Disqualified Lender) that is engaged in making, holding or investing in bank loans and similar extensions of credit in its ordinary course of business and is administered or managed by (a) a Lender, (b) an entity or an Affiliate of an entity that administers or manages a Lender, or (c) an Affiliate or branch of a Lender.

 

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“Approved Issuer Levy” has the meaning given to it in section 86F of the Stamp and Cheque Duties Act 1971.

 

Arrangers” means Merrill Lynch, Pierce, Fenner & Smith Incorporated, Wells Fargo Bank, National Association, Citibank, N.A. and Morgan Stanley Senior Funding, Inc.

 

Asset Disposition” means any sale, issuance, conveyance, transfer, lease or other disposition (including a disposition to a Delaware Divided LLC pursuant to a Delaware LLC Division) by an Obligor or any Restricted Subsidiary to any Person other than an Obligor or a Restricted Subsidiary of:

 

(a)       any Capital Stock of any Restricted Subsidiary (other than directors qualifying shares or to the extent required by applicable law);

 

(b)       all or substantially all of the assets of any division or line of business of an Obligor or any Restricted Subsidiary; or

 

(c)       any other assets of an Obligor or any Restricted Subsidiary;

 

other than, in the case of clause (a), (b) or (c) above,

 

(i)      sales, conveyances, transfers, leases or other dispositions of assets, including sales of equipment to equipment manufacturers and similar transactions, in each case in the ordinary course of business;

 

(ii)      sales, conveyances, transfers, leases or other dispositions of obsolete, surplus or worn-out property or property that is no longer necessary in the business of the Borrowers and their Subsidiaries;

 

(iii)      sales, conveyances, transfers, leases or other dispositions of assets in one or a series of related transactions for aggregate consideration of less than (A) the greater of (x) $280,000,000 and (y) 3% of Consolidated Net Tangible Assets, or (B) if after giving effect to such sale, conveyance, transfer, lease or other disposition on a pro forma basis Specified Availability is at least $1,000,000,000, the greater of (x) $470,000,000 and (y) 5% of Consolidated Net Tangible Assets;

 

(iv)      the lease, assignment, license, sublicense or sublease of any real or personal property in the ordinary course of business;

 

(v)      (x) a disposition that constitutes a Permitted Distribution or a Permitted Investment, (y) a disposition governed by Section 8.5 (other than the clauses thereof specifically referring to Asset Dispositions) and (z) any sale, issuance, conveyance, transfer, lease or other disposition of properties or assets in connection with a Securitization Transaction;

 

(vi)      Like-Kind Exchanges in the ordinary course of business;

 

(vii)      any disposition arising from foreclosure, condemnation or similar action with respect to any property or other assets, or exercise of termination rights under any lease, license, concession or agreement, or necessary or advisable (as determined by the Company in good faith) in order to consummate any acquisition of any Person, business or assets, or pursuant to buy/sell arrangements under any joint venture or similar agreement or arrangement;

 

(viii)      dispositions of cash and Cash Equivalents pursuant to any transaction permitted under the Loan Documents;

 

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(ix)      any disposition of Capital Stock, Indebtedness or other securities of an Unrestricted Subsidiary;

 

(x)      the unwinding of any Hedge Agreement;

 

(xi)       the sale, discount or forgiveness (with or without recourse, and on customary or commercially reasonable terms) of Accounts arising in the ordinary course of business, or the conversion or exchange of accounts receivable for notes receivable;

 

(xii)      a disposition of Capital Stock of a Restricted Subsidiary pursuant to an agreement or other obligation with or to a person (other than an Obligor or a Restricted Subsidiary) from which such Restricted Subsidiary was acquired, or from whom such Restricted Subsidiary acquires its business and assets (having been newly formed in connection with such acquisition), entered into in connection with such acquisition;

 

(xiii)      the abandonment or other disposition of trademarks, copyrights, patents or other intellectual property that are, in the good faith determination of the Company, no longer economically practicable to maintain or useful in the conduct of the business of Holdings and its Restricted Subsidiaries taken as a whole; and

 

(xiv)      non-exclusive licenses, sublicenses, cross-licenses or other grant of rights to intellectual property or other general intangibles which do not materially interfere with the business of Holdings or any of its Restricted Subsidiaries.

 

Assignee” has the meaning specified in Section 12.2(a).

 

Assignment and Acceptance” means an assignment and acceptance agreement entered into by one or more Lenders and Eligible Assignees (with the consent of any party whose consent is required by Section 12.2(a)), and accepted by the Agent, in substantially the form of Exhibit E or any other form approved by the Agent.

 

“Associate” means an “associate” as defined in section 128F(9) of the Australian Tax Act.

 

Attorney Costs” means and includes all reasonable and documented fees, expenses and disbursements of any law firm or other external counsel engaged by the Agent (limited to one primary counsel and not more than one local counsel for each relevant jurisdiction (including relevant foreign jurisdictions)).

 

August 2017 4⅞% Senior Note Indenture” means that certain Indenture dated as of August 11, 2017 among the Company, Holdings, certain subsidiaries of the Company and Wells Fargo Bank, National Association, as Trustee.

 

August 2017 4⅞% Senior Notes” means the 4⅞% Senior Notes due 2028 issued by the Company pursuant to the August 2017 4⅞% Senior Note Indenture.

 

“Australia” means the Commonwealth of Australia.

 

“Australian Borrower” means any Borrower that is incorporated under the laws of any constituent part of Australia.

 

“Australian Dollars” or “A$” means the lawful currency of Australia.

 

“Australian Tax Act” means the Income Tax Assessment Act 1936 (Cth) (Australia) or the Income Tax Assessment Act 1997 (Cth) (Australia), as applicable.

 

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“Australian Withholding Tax” means any Tax imposed on or required to be withheld or deducted from any interest or other payment under Division 11A of Part III of the Australian Tax Act or Subdivision 12-F of Schedule 1 to the Taxation Administration Act 1953 (Cth) (Australia).

 

Availability” means U.S. Availability or Canadian Availability, as the context requires.

 

Availability Reserves” means, without duplication of any other reserves or items that are otherwise addressed or excluded through eligibility criteria, subject to Section 2.9, such reserves as the Agent, in its Reasonable Credit Judgment, determines as being appropriate to reflect any impediments to the realization upon any Collateral consisting of Eligible Merchandise and Consumables Inventory or Eligible Rental Equipment included in the U.S. Borrowing Base or Canadian Borrowing Base (including any claims that the Agent determines may need to be satisfied in connection with the realization upon such Collateral).

 

Available Incremental Amount” means, on any date, without duplication, an amount equal to the difference between (a) the greater of (i) $ 1,500,000,000 and (ii) an amount equal to 80% of the Net Orderly Liquidation Value (without giving effect to any discount applied for the purpose of calculating the Borrowing Base) of Eligible Merchandise and Consumables Inventory and Eligible Rental Equipment that is included in Suppressed Availability and (b) the sum of the aggregate principal amount of all Incremental ABL Term Loans made plus all Incremental Revolving Commitments established, in each case, prior to such date pursuant to Section 2.5 and that shall be outstanding as of such date (it being understood that any Incremental ABL Term Loans that shall be repaid, and any Incremental Revolving Commitment that shall be terminated, in connection with any proposed Incremental ABL Term Loans or Incremental Revolving Commitments shall not be deemed outstanding for purposes of this definition).

 

“Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark for any Agreement Currency, as applicable, (x) if the then-current Benchmark is a term rate, any tenor for such Benchmark that is or may be used for determining the length of an Interest Period (or, if applicable, the BA Equivalent Interest Period) or (y) otherwise, any payment period for interest calculated with reference to such Benchmark, as applicable, pursuant to this Agreement as of such date.

 

BA Equivalent Interest Payment Date” means, with respect to a BA Equivalent Loan, (a) the last day of each BA Equivalent Interest Period applicable to such BA Equivalent Loan, (b) if such BA Equivalent Interest Period is longer than three months, each three month anniversary of the commencement of such BA Equivalent Interest Period and (c) the Termination Date.

 

BA Equivalent Interest Period” means, with respect to each BA Equivalent Loan, the period commencing on the Funding Date of such Loan or on the Continuation/Conversion Date on which the Loan is converted into or continued as a BA Equivalent Loan, and ending on (i) the date one, two, or three or six months thereafter, or (ii) any other date agreed to by all the Lenders making or holding such Loan, in each case, as selected by the applicable Canadian Borrower in its Notice of Borrowing or Notice of Continuation/Conversion, provided that:

 

(a) the initial BA Equivalent Interest Period for any Borrowing of a BA Equivalent Loans shall commence on the date of such Borrowing (including the date of any conversion from a Borrowing of Canadian Prime Rate Loans, as applicable) and each BA Equivalent Interest Period occurring thereafter in respect of such Borrowing shall commence on the day on which the next preceding BA Equivalent Interest Period expires;

 

(b) if any BA Equivalent Interest Period of one month or longer relating to a Borrowing of a BA Equivalent Loan begins on the last Business Day of a calendar month or begins on a day for which there is no numerically corresponding day in the calendar month at the end of such BA Equivalent Interest Period, such BA Equivalent Interest Period shall end on the last Business Day of the calendar month at the end of such BA Equivalent Interest Period;

 

(c) if any BA Equivalent Interest Period would otherwise expire on a day that is not a Business Day, such BA Equivalent Interest Period shall expire on the next succeeding Business Day, provided that if any BA Equivalent Interest Period of one month or longer in respect of a BA Equivalent Loan would otherwise expire on a day that is not a Business Day but is a day of the month after which no further Business Day occurs in such month, such BA Equivalent Interest Period shall expire on the next preceding Business Day; and

 

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(d) none of the Canadian Borrowers nor the Borrowers’ Agent shall be entitled to elect any BA Equivalent Interest Period in respect of any BA Equivalent Loan if such BA Equivalent Interest Period would extend beyond the Maturity Date.

 

BA Equivalent Loan” means a Canadian Revolving Loan that bears interest based on the BA Rate.

 

BA Rate” means, for the BA Equivalent Interest Period of each BA Equivalent Loan, the rate of interest per annum equal to a per annum rate of interest equal to the Canadian Dollar bankers’ acceptance rate having such specified term (or a term as closely as possible comparable for such specified term), or comparable or successor rate approved by the Agent, determined by it, acting reasonably and in consultation with the Borrowers’ Agent, at or about 10:00 a.m. (Toronto time) on the applicable day (or the preceding Business Day, if the applicable day is not a Business Day), as published on the CDOR or other applicable Reuters screen page (or other commercially available source designated by the Agent, acting reasonably, from time to time); provided that in no event shall the BA Rate be less than zero.

 

Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEAAffected Financial Institution.

 

Bail-In Legislation” means, (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).

 

BakerCorp Acquisition” means the acquisition of BakerCorp International Holdings, Inc. as contemplated by the Agreement and Plan of Merger, dated as of June 30, 2018, by and among Holdings, UR Merger Sub IV Corporation and BakerCorp International Holdings, Inc.

 

“BakerCorp Transactions” means (a) the BakerCorp Acquisition and (b) any other transactions contemplated in connection with the BakerCorp Acquisition and any other financing transactions in connection with the BakerCorp Acquisition.

 

Bank” means, as the context requires, (a) the U.S. Bank, (b) the Canadian Bank, (c) the London Bank or, (d) the French Swingline Lender or (e) the ANZ Swingline Lender. Any general reference to the “Bank” shall refer to the U.S. Bank with respect to the U.S. Credit Facilities and/or the Canadian Credit Facilities and/or the ROW Credit Facilities and/or the Canadian Bank with respect to Canadian Swingline Loans and/or the London Bank with respect to ROW Swingline Loans and/or the French Swingline Lender with respect to French Swingline Loans and/or the ANZ Swingline Lender with respect to the ANZ Swingline Loans, as applicable.

 

“Bank Bill Rate” means, in relation to an Interest Period for any Loan denominated in Australian Dollars or New Zealand Dollars, the rate determined by the Agent to be the average bid rate displayed at or about 10:30 a.m. (for Australian Dollars) or 10:45 a.m. (for New Zealand Dollars) (local time) on the first day of such Interest Period on the Reuters screen BBSY page (for Australian Dollars) or BKBM page (for New Zealand Dollars) (or, in each case, another commercially available source designated by the Agent from time to time) for bank-accepted bills of exchange having a term equivalent to such Interest Period; provided that in no event shall the Bank Bill Rate be less than zero.

 

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“Bank Bill Rate Interest Payment Date” means, with respect to a Bank Bill Rate Loan, the Termination Date and the last day of each Interest Period applicable to such Loan and, with respect to each Interest Period of more than three months, each three-month anniversary of the commencement of such Interest Period for such Bank Bill Rate Loan.

 

“Bank Bill Rate Loan” means a Loan during any period in which it bears interest based on the Bank Bill Rate.

 

Bank of America” means Bank of America, N.A. and its successors.

 

Bank Product Reserves” means (i) all reserves which the Agent from time to time establishes in its Reasonable Credit Judgment for the Designated Bank Products Obligations then outstanding and (ii) without duplication of clause (i), all Waterfall Priority Hedge Agreement Reserves.

 

Bank Products” means (a) Hedge Agreements, (b) products and services under Cash Management Documents and (c) to the extent not otherwise included in the foregoing, other similar banking products or services (other than Loans and Letters of Credit) as, in the case of each of clauses (a), (b) and (c), may be requested by any Borrower (on behalf of itself or any other Obligor) and extended to any Obligor by the Agent or any Person that was a Lender or an Affiliate of the Agent or any Lender at the time it entered into the same.

 

Bankruptcy Code” means Title 11 of the United States Code entitled “Bankruptcy”.

 

Base Rate” means for any day a fluctuating rate per annum equal to the highest of (a) the Federal Funds Rate plus ½ of 1%, (b) the rate of interest in effect for such day as publicly announced from time to time by Bank of America as its “prime rate” and (c) LIBOR for a 30-day interest period as determined on such day, plus 1%; provided that in no event shall the Base Rate be less than zero. The “prime rate” is a rate set by Bank of America based upon various factors including Bank of America’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate. Any change in such rate announced by Bank of America shall take effect at the opening of business on the day specified in the public announcement of such change. If the Base Rate is being used as an alternate rate of interest pursuant to Section 5.5 or 5.7 hereof, then the Base Rate shall be the greater of clauses (a) and (b) above and shall be determined without reference to clause (c) above.

 

Base Rate Loan” means (a) any U.S. Revolving Loan or any ROW Revolving Loan denominated in Dollars, in each case during any period for which it bears interest based on the Base Rate, (b) any French Swingline Loan during any period for which it bears interest based on the Foreign Base Rate, (c) any Canadian Revolving Loan denominated in Dollars during any period for which it bears interest based on the Canadian Base Rate, (d) all Agent Advances made to a U.S. Borrower or a ROW Borrower and (e) all U.S. Swingline Loans, ROW Swingline Loans and ROWANZ Swingline Loans.

 

Basel III” means:

 

(a)     the agreements on capital requirements, a leverage ratio and liquidity standards contained in “Basel III: A global regulatory framework for more resilient banks and banking systems”, “Basel III: International framework for liquidity risk measurement, standards and monitoring” and “Guidance for national authorities operating the countercyclical capital buffer” published by the Basel Committee on Banking Supervision in December 2010;

 

(b)     the rules for global systemically important banks contained in “Global systemically important banks: assessment methodology and the additional loss absorbency requirement – Rules text” published by the Basel Committee on Banking Supervision in November 2011; and

 

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(c)     any further guidance or standards published by the Basel Committee on Banking Supervision relating to “Basel III”.

 

“Benchmark” means, initially, (a) with respect to any Loans denominated in Dollars, USD LIBOR, (b) with respect to any Loans denominated in Cdn. Dollars, the BA Rate, (c) with respect to any Loans denominated in Euros, EURIBOR, (d) with respect to any Loans denominated in Sterling, Daily Simple SONIA and (e) with respect to any Loans denominated in Australian Dollars or New Zealand Dollars, the applicable Bank Bill Rate; provided that, in each case, if a replacement of the applicable Benchmark has occurred pursuant to Section 5.7 with respect to the then-current Benchmark for such Agreement Currency, then “Benchmark” means the applicable Benchmark Replacement for such Agreement Currency to the extent that such Benchmark Replacement has replaced such prior benchmark rate. Any reference to “Benchmark” shall include, as applicable, the published component used in the calculation thereof.

 

“Benchmark Replacement” means, with respect to the Dollar Benchmark:

 

(1)For purposes of Section 5.7(a), the first alternative set forth below that can be determined by the Agent:

 

(a)the sum of: (i) Term SOFR and (ii) 0.11448% (11.448 basis points) for an Available Tenor of one-month’s duration, 0.26161% (26.161 basis points) for an Available Tenor of three-months’ duration, 0.42826% (42.826 basis points) for an Available Tenor of six-months’ duration, and 0.71513% (71.513 basis points) for an Available Tenor of twelve-months’ duration, or

 

(b)the sum of: (i) Daily Simple SOFR and (ii) 0.26161% (26.161 basis points);

 

provided that, if initially USD LIBOR is replaced with the rate contained in clause (b) above and subsequent to such replacement, the Agent determines that Term SOFR has become available and is administratively feasible for the Agent in its sole discretion, and the Agent notifies the Borrowers’ Agent and each Lender of such availability, then from and after the beginning of the Interest Period, relevant interest payment date or payment period for interest calculated, in each case, commencing no less than 30 days after the date of such notice, the Benchmark Replacement shall be as set forth in clause (a) above; and

 

(2)       For purposes of Section 5.7(b), the sum of (a) the alternate benchmark rate and (b) an adjustment (which may be a positive or negative value or zero), in each case, that has been selected by the Agent and the Borrowers’ Agent as the applicable replacement Benchmark giving due consideration to any evolving or then-prevailing market convention, including any applicable recommendations made by a Relevant Governmental Body, for Dollar denominated syndicated credit facilities at such time;

 

provided that, if the Benchmark Replacement as determined pursuant to clause (1) or (2) above would be less than zero, the Benchmark Replacement will be deemed to be zero for the purposes of this Agreement and the other Loan Documents.

 

Any Benchmark Replacement shall be applied in a manner consistent with market practice; provided that to the extent such market practice is not administratively feasible for the Agent, such Benchmark Replacement shall be applied in a manner as otherwise reasonably determined by the Agent.

 

“Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement or Alternative Currency Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Base Rate”, the definition of “Business Day”, the definition of “Interest Period” or “BA Equivalent Interest Period” , timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, the applicability and length of lookback periods, the applicability of breakage provisions and other technical, administrative or operational matters) that the Agent decides may be appropriate to reflect the adoption and implementation of such Benchmark Replacement or Alternative Currency Benchmark Replacement, as applicable, and to permit the administration thereof by the Agent in a manner substantially consistent with market practice (or, if the Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Agent determines that no market practice for the administration of such Benchmark Replacement or Alternative Currency Benchmark Replacement, as the case may be, exists, in such other manner of administration as the Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).

 

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“Benchmark Transition Event” means, with respect to any then-current Benchmark other than USD LIBOR, the occurrence of a public statement or publication of information by or on behalf of the administrator of such then-current Benchmark or a Governmental Authority with jurisdiction over such administrator announcing or stating that all Available Tenors are or will no longer be representative, or made available, or used for determining the interest rate of loans, or shall or will otherwise cease, provided that, at the time of such statement or publication, there is no successor administrator that is satisfactory to the Agent, that will continue to provide any representative tenors of such Benchmark after such specific date.

 

Beneficial Ownership Certification” means a certification regarding beneficial ownership required by the Beneficial Ownership Regulation, which certification shall be substantially similar in form and substance to the form of “Certification Regarding Beneficial Owners of Legal Entity Customers” published jointly, in May 2018, by the Loan Syndications and Trading Association and Securities Industry and Financial Markets Association (or any successor or replacement form).

 

Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.

 

“BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.

 

BIA” means the Bankruptcy and Insolvency Act (Canada) and the regulations promulgated thereunder.

 

BlueLine Acquisition” means the acquisition of Vander Holding Corporation contemplated by the Agreement and Plan of Merger, dated as of September 10, 2018, by and among Holdings, UR Merger Sub V Corporation and Vander Holding Corporation.

 

BlueLine Transactions” means (a) the BlueLine Acquisition, (b) the issuance of debt securities in connection with the BlueLine Acquisition and (c) any other transactions contemplated in connection with the BlueLine Acquisition and any other financing transactions in connection with the BlueLine Acquisition.

 

Borrower DTTP Filing” means an HM Revenue & Customs’ Form DTTP2, duly completed and filed by the relevant Borrower, which contains the scheme reference number and jurisdiction of tax residence provided by the applicable Lender to the relevant U.K. Borrower and the Agent.

 

Borrowers” means the U.S. Borrowers, the ROW Borrowers, the Canadian Borrowers, the French Borrowers and the FrenchANZ Borrowers.

 

Borrowers’ Agent” means the Company, in its capacity as agent for itself and the other Borrowers pursuant to Section 4.10.

 

Borrowing” means (i) a borrowing hereunder consisting of Loans of one Type made on the same day by Lenders to any Borrower (or (a) by the U.S. Bank in the case of a Borrowing funded by U.S. Swingline Loans or by the Agent in the case of a Borrowing consisting of an Agent Advance made to a U.S. Borrower or a ROW Borrower, (b) by the London Bank in the case of a Borrowing funded by ROW Swingline Loans, (c) by the Canadian Bank in the case of a Borrowing funded by Canadian Swingline Loans or by the Agent in the case of a Borrowing consisting of an Agent Advance made to a Canadian Borrower or, (d) by the French Swingline Lender in the case of a Borrowing funded by French Swingline Loans or (e) by the ANZ Swingline Lender in the case of a Borrowing funded by ANZ Swingline Loans) or (ii) the issuance by a Letter of Credit Issuer of a Letter of Credit hereunder.

 

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Borrowing Base” means the U.S. Borrowing Base or the Canadian Borrowing Base, as the context requires.

  

Borrowing Base Certificate” means a certificate by a Responsible Officer of the Borrowers’ Agent, substantially in the form of Exhibit A (or another form reasonably acceptable to the Agent) setting forth the calculation of the U.S. Borrowing Base and the Canadian Borrowing Base, including a calculation of each component thereof, all in such detail as shall be reasonably satisfactory to the Agent, as adjusted pursuant to Section 2.9 of this Agreement and the definitions of Pari Passu Debt Reserves and Waterfall Priority Hedge Agreement Reserves. All calculations of the U.S. Borrowing Base and the Canadian Borrowing Base in connection with the preparation of any Borrowing Base Certificate shall be made by the U.S. Borrowers and the Canadian Borrowers and certified to the Agent; provided that the Agent shall have the right to review and adjust, in the exercise of its Reasonable Credit Judgment (or, with respect to Pari Passu Debt Reserves and Waterfall Priority Hedge Agreement Reserves, as otherwise set forth in the definitions thereof) and in consultation with the Company, any such calculation to the extent that such calculation is not in accordance with this Agreement, provided, further, that the Agent shall provide the applicable Borrower or Borrowers prior written notice of any such adjustment.

 

Borrowing Minimum” means (a) with respect to Base Rate Loans or Canadian Prime Rate Loans, (i) in the case of a Borrowing denominated in Dollars, $1,000,000, (ii) in the case of a Borrowing denominated in Canadian Dollars, Cdn $1,000,000, (iii) in the case of a Borrowing denominated in Euro, €500,000 and (iv) in the case of a Borrowing denominated in Sterling, £500,000 (or, in each case, if the applicable Commitment then available is less than the applicable amount specified in the foregoing, such lesser amount), and (b) with respect to LIBOR Loans or, BA Equivalent Loans, SONIA Rate Loans or Bank Bill Rate Loans, (i) in the case of a Borrowing denominated in Dollars, $ 5,000,000, (ii) in the case of a Borrowing denominated in Canadian Dollars, Cdn $5,000,000, (iii) in the case of a Borrowing denominated in Euro, €500,000, (iv) in the case of a Borrowing denominated in Sterling, £500,000, (v) in the case of a Borrowing denominated in Australian Dollars, A$500,000, (vi) in the case of a Borrowing denominated in New Zealand Dollars, NZ$500,000 and (vvii) in the case of a Borrowing denominated in any other Alternative Currency, such amount as may be agreed by the Agent and the Borrowers’ Agent.

 

Borrowing Multiple” means (a) in the case of a Borrowing denominated in Dollars, $1,000,000, (b) in the case of a Borrowing denominated in Canadian Dollars, Cdn $1,000,000, (c) in the case of a Borrowing denominated in Euro, €500,000, (d) in the case of a Borrowing denominated in Sterling, £500,000, (e) in the case of a Borrowing denominated in Australian Dollars, A$500,000, (f) in the case of a Borrowing denominated in New Zealand Dollars, NZ$ 500,000 and (eg) in the case of a Borrowing denominated in any other Alternative Currency, such amount as may be agreed by the Agent and the Borrowers’ Agent.

 

Business Day” means (a) any day that is not a Saturday, Sunday, or a day on which banks in New York, New York are required or permitted to be closed, and (b) with respect to all notices, determinations, fundings and payments in connection with the LIBOR Rate or LIBOR Loans, any day that is a Business Day pursuant to clause (a) above and that is also a day on which trading in Dollars is carried on by and between banks in the London interbank market; provided, however, when used in connection with (i) a Canadian Revolving Loan, such day shall be a day on which banks are open for business in Toronto, Canada and New York, New York but excluding Saturday, Sunday and any other day which is a legal holiday in Toronto, Canada or New York, New York or, (ii) a French Swingline Loan, the term “Business Day” shall also exclude any day which is a legal holiday in Paris, France or is a day on which banking institutions located in Paris, France are authorized or required by law or other governmental action to close, (iii) a SONIA Rate Loan, the term “Business Day” shall also exclude any day which is a legal holiday in London or is a day on which banking institutions located in London are authorized or required by law or other governmental action to close, (iv) a Loan denominated in Euro, the term “Business Day” shall also exclude any day that is not a TARGET Day and (v) determining any date on which any amount is to be paid or made available in an Alternative Currency (other than Euro or Sterling), the term “Business Day” shall also exclude any day on which commercial banks and foreign exchange markets are not open for business in the principal financial center in the country of such Alternative Currency.

 

Canadian Availability” means, at any time (a) the lesser of (i) the Maximum Canadian Revolver Amount and (ii) the sum of the Canadian Borrowing Base and the U.S. Availability, minus (b) the Aggregate Canadian Revolver Outstandings.

 

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Canadian Bank” means Bank of America, N.A. (acting through its Canada branch), or any successor entity thereto.

 

Canadian Base Rate” means for any day a fluctuating rate per annum equal to the highest of (a) the per annum rate of interest designated by the Canadian Bank from time to time as its base rate for commercial loans made by it in Dollars, which rate is based on various factors, including its costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above or below such rate, (b) the Federal Funds Rate plus ½ of 1% and (c) LIBOR for a 30-day interest period as determined on such day, plus 1%; provided that in no event shall the Canadian Base Rate be less than zero. Any change in such rate shall take effect at the opening of business on the applicable Business Day. If the Canadian Base Rate is being used as an alternate rate of interest pursuant to Section 5.5 or 5.7 hereof, then the Canadian Base Rate shall be the greater of clauses (a) and (b) above and shall be determined without reference to clause (c) above.

 

Canadian Borrowers” has the meaning specified in the introductory paragraph to this Agreement.

 

Canadian Borrowing Base” means, at any time, an amount in Dollars equal to:

 

(a)        the lesser of (i) 100% of the Net Book Value of Eligible Rental Equipment of the Canadian Obligors and (ii) 85% of the Net Orderly Liquidation Value of the Eligible Rental Equipment of the Canadian Obligors; minus

 

(b)        the sum of (i) the amount of Pari Passu Debt Reserves with respect to Indebtedness of the Canadian Obligors (without duplication for any Pari Passu Debt Reserves imposed with respect to the U.S. Borrowing Base) plus (ii) the amount of all other Reserves related to the Canadian Credit Facilities from time to time established by the Agent in accordance with Section 2.9 of this Agreement or in accordance with the definition of “Waterfall Priority Hedge Agreement Reserve”.

 

Canadian Collateral” means all of the Canadian Obligors’ personal property from time to time subject to the Agent’s Liens securing payment or performance of any Canadian Obligations pursuant to the Canadian Security Documents, other than Excluded Assets (as defined in the Canadian Security Agreement); provided that the term “Canadian Collateral” shall not include U.S. Collateral.

 

Canadian Credit Facilities” means the revolving credit and swingline facilities provided for by this Agreement extended to the Canadian Borrowers.

 

Canadian DB Pension Plan” means any Canadian Pension Plan that contains a “defined benefit provision” as defined in the Income Tax Act (Canada).

 

Canadian Deed of Hypothec Confirmation” means that certain Confirmation Agreement, dated as of the Agreement Date, entered into by UR Canada with respect to a certain deed of hypothec and related documents executed by UR Canada under or pursuant to the Original Loan Agreement and/or the Existing Loan Agreement.

 

Canadian Dollars” or “Cdn $” or “Cdn. Dollars” means the lawful currency of Canada.

 

Canadian Guarantee Agreement” means the Third Amended and Restated Canadian Guarantee Agreement dated as of the Agreement Date from the Canadian Obligors party thereto in favor of the Agent for the benefit of the Canadian Secured Parties.

 

Canadian Guarantors” means (a) any Subsidiary of Holdings that is organized under the Laws of Canada or any province or territory thereof, whether now existing or hereafter created or acquired, and (b) each other Person (other than a U.S. Guarantor), who guarantees payment or performance in whole or in part of the Canadian Obligations; provided that “Canadian Guarantors” shall not include any Subsidiary that is an Excluded Subsidiary. The Canadian Guarantors as of the Agreement Date are set forth on Schedule 1.2A under the heading “Canadian Guarantors”.

 

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Canadian Obligations” means, with respect to the Indebtedness of the Canadian Obligors under the Loan Documents, any principal, premium (if any), interest (including interest accruing on or after the filing of any petition in bankruptcy or for reorganization relating to any Canadian Obligor whether or not a claim for post-filing interest is allowed in such proceedings), fees, charges, expenses, reimbursement obligations, Guarantees of such Indebtedness (or of Obligations in respect thereof), other monetary obligations of any Canadian Obligor of any nature and all other amounts payable by any Canadian Obligor under the Loan Documents or in respect thereof, excluding in each case Excluded Swap Obligations; provided that “Canadian Obligations” shall in any event include Designated Bank Products Obligations of any Canadian Obligor, any ROW Obligations guaranteed by the Canadian Obligors, any French Obligations guaranteed by the Canadian Obligors and any FrenchANZ Obligations guaranteed by the Canadian Obligors (in each case, to the extent such Obligations are not Excluded Swap Obligations); provided, further, that “Canadian Obligations” shall not include any U.S. Obligations.

 

Canadian Obligors” means the Canadian Borrowers and the Canadian Guarantors.

 

Canadian Pension Plan” means any Pension Plan applicable solely to employees or former employees of any of the Canadian Obligors but shall not include any Pension Plan maintained by the Government of Canada, the government of the Province of Québec or the government of the Province of Ontario.

 

Canadian Prime Rate” means, on any day, the greater of (a) the rate of interest publicly announced from time to time by the Canadian Bank as its reference rate of interest for loans made in Canadian Dollars and designated as its “prime” rate being a rate set by the Canadian Bank based upon various factors, including the Canadian Bank’s costs and desired return, general economic conditions and other factors and is used as a reference point for pricing some loans, and (b) the BA Rate for a one month BA Equivalent Interest Period as determined on such day, plus 1%; provided, that in no event shall the Canadian Prime Rate be less than zero. Any change in the prime rate for loans made in Canadian Dollars announced by the Canadian Bank shall take effect at the opening of business on the day specified in the public announcement of such change. Each interest rate based on such prime rate hereunder shall be adjusted simultaneously with any change in such prime rate.

 

Canadian Prime Rate Loan” means any Canadian Revolving Loan during any period for which it bears interest by reference to the Canadian Prime Rate and all Canadian Swingline Loans and Agent Advances made to a Canadian Borrower.

 

Canadian Revolving Loans” means the revolving loans made to the Canadian Borrowers pursuant to Section 2.1(ba)(ii) or any amendment to this Agreement entered into pursuant to Section 2.5, 2.6 or 2.7, each Agent Advance made to a Canadian Borrower and each Canadian Swingline Loan.

 

Canadian Secured Parties” means, collectively, the Agent, the Lenders, the Canadian Bank, any Letter of Credit Issuer, the Indemnified Persons and each of the Agent, any Lender or any Affiliate or branch of the Agent or such Lender to which is owed any Designated Bank Products Obligations, in each case in its capacity as an obligee of Canadian Obligations.

 

Canadian Security Agreement” means the Third Amended and Restated Canadian Security Agreement, dated as of the Agreement Date, from the Obligors party thereto in favor of the Agent, for the benefit of the Canadian Secured Parties.

 

Canadian Security Documents” means, collectively, (a) the Canadian Security Agreement, (b) the Deed of Hypothec Amendment, (c) the general security agreements and deeds of hypothec, dated as of the Original Agreement Date, from the Obligors party thereto in favor of the Agent, for the benefit of the Canadian Secured Parties, and any security agreement and/or deed of hypothec executed and delivered after the Original Agreement Date by a Person that became a Canadian Guarantor under the Original Loan Agreement or the Existing Loan Agreement, in each such case, as ratified, reaffirmed and amended by the Canadian Deed of Hypothec Confirmation, (d) any security agreements and/or deeds of hypothec executed and delivered prior or concurrently to the Agreement Date by one or more of the Obligors party thereto in favor of the Agent, in its capacity as agent hereunder or as fondé de pouvoir for all purposes of Article 2692 of the Civil Code of Québec, (e) any security agreement and/or deed of hypothec executed and delivered after the Agreement Date by a Person that is or becomes a Canadian Obligor hereunder in accordance with Section 7.16, and (f) any Control Agreement or other agreements, instruments and documents heretofore, now or hereafter securing any of the Canadian Obligations.

 

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Canadian Swingline Commitment” means the commitment of the Canadian Bank to make loans pursuant to Section 2.3(c).

 

Canadian Swingline Lender” means the Canadian Bank or any successor financial institution agreed to by the Agent, in its capacity as provider of Canadian Swingline Loans.

 

Canadian Swingline Loan” and “Canadian Swingline Loans” have the meanings specified in Section 2.3(c).

 

Canadian Swingline Sublimit” has the meaning specified in Section 2.3(c).

 

Capital Adequacy Regulation” means any guideline, request or directive of any central bank or other Governmental Authority, or any other law, rule or regulation, whether or not having the force of law, in each case, regarding capital adequacy or liquidity requirements of any bank or of any corporation controlling a bank.

 

Capital Expenditures” means, with respect to any Person for any period, the sum of (a) the aggregate of all expenditures incurred by such Person and its consolidated Subsidiaries during such period for purchases of property, plant and equipment as “capital expenditures” (exclusive of expenditures for Investments not prohibited hereby or for Permitted Acquisitions) or similar items which, in accordance with GAAP, are or should be included in the statement of cash flows of such Person and its consolidated Subsidiaries during such period, net of (b) proceeds received by Holdings or its Subsidiaries from dispositions of property, plant and equipment or similar items reflected in the statement of cash flows of such Person and its consolidated Subsidiaries during such period.

 

Capital Lease” means any lease of property by an Obligor or any of its Subsidiaries which, in accordance with GAAP, should be reflected as a capital lease on the balance sheet of the Consolidated Parties; provided that, notwithstanding the foregoing, in no event will any lease that would have been categorized as an operating lease as determined in accordance with GAAP prior to giving effect to the Accounting Standards Codification Topic 842, Leases, or any other changes in GAAP subsequent to the Closing Date, be considered a capital lease for purposes of this Agreement.

 

Capital Lease Obligation” means, with respect to any Capital Lease of any Person, the amount of the obligation of the lessee thereunder that, in accordance with GAAP, would appear on a balance sheet of such lessee in respect of such Capital Lease.

 

Capital Stock” means, with respect to any Person, any and all shares, interests, participations, rights in or other equivalents (however designated) of such Person’s capital stock or equity participations, and any rights (other than debt securities convertible into capital stock), warrants or options exchangeable for or convertible into such capital stock and, including, with respect to partnerships, limited liability companies or business trusts, ownership interests (whether general or limited) and any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, such partnerships, limited liability companies or business trusts.

 

Cash Dominion Period” means (a) any period commencing on the date on which Specified Availability shall have been less than 10% of the Maximum Revolver Amount for five consecutive Business Days and the Agent has notified the Borrowers’ Agent that a Cash Dominion Period is in effect, and ending on the earliest of the date on which (i) Specified Availability shall have been at least 10% of the Maximum Revolver Amount for 20 consecutive calendar days or (ii) Specified Availability shall have been at least 15% of the Maximum Revolver Amount for five consecutive calendar days or (b) any period during which a Specified Default shall have occurred and be continuing.

 

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Cash Equivalents” means:

 

(a)       direct obligations of the United States of America or Canada, or any agency thereof, or obligations guaranteed or insured by the United States of America or Canada, or any agency thereof, provided that such obligations mature within one year from the date of acquisition thereof;

 

(b)       (i)       certificates of deposit, guaranteed investment certificates or time deposits maturing within one year from the date of acquisition, bankers’ acceptances, Eurodollar bank deposits, or overnight bank deposits, in each case issued by, created by, or with (x) any Lender or an Affiliate thereof or (y) any other bank or trust company organized under the laws of the United States of America or any state thereof or Canada or any province or territory thereof, in each such case, having, at the time of acquisition thereof, capital and surplus aggregating at least $ 500,000,000 (or the Equivalent Amount in Canadian Dollars, as applicable) and the commercial paper of the holding company of which is rated at least “A2” by S&P or “P2” by Moody’s, and (ii) repurchase obligations for underlying securities of the types described in clause (i) above entered into with any financial institution meeting the qualifications specified in clause (i) above;

 

(c)       commercial paper maturing not more than one year from the date of creation thereof or corporate demand notes, in each case given a rating of “A2” or better by S&P or “P2” or better by Moody’s;

 

(d)       (i)       marketable direct obligations issued by any state of the United States of America or the District of Columbia or any political subdivision of any such state or any public instrumentality thereof, in each case maturing within one year after such date and having, at the time of the acquisition thereof, a rating of at least “A1” from S&P or at least “P1” from Moody’s or (ii) investments in short-term asset management accounts that are primarily invested in investments of the type specified in clause (i); and

 

(e)       any investment in (i) funds investing primarily in investments of the types specified in clauses (a) through (d) above or (ii) money market funds complying with the risk limiting conditions of Rule 2a-7 or any successor rule of the SEC under the Investment Company Act of 1940.

 

provided, that, in the case of any Investment by any Foreign Subsidiary of Holdings, “Cash Equivalents” shall also include: (A) direct obligations of the sovereign nation (or any agency thereof) in which such Foreign Subsidiary is organized and is conducting business or in obligations fully and unconditionally guaranteed by such sovereign nation (or any agency thereof) (or, in the case of a Foreign Subsidiary organized under the Laws of a member state of the European Union, any other sovereign nation (or agency thereof) in the European Union), in each case maturing within a year after such date and having, at the time of the acquisition thereof, a rating equivalent to at least “A2” from S&P and at least “P2” from Moody’s, (B) investments of the type and maturity described in clauses (a) through (e) above of non-U.S. obligors, which investments or obligors (or the parents of such obligors) have ratings described in such clauses or equivalent ratings from comparable non-U.S. rating agencies and (C) shares of money market mutual or similar funds substantially all of the assets of which are invested in assets otherwise satisfying the requirements of this definition (including this paragraph).

 

Cash Management Document” means any certificate, agreement or other document executed by any Obligor in respect of the Cash Management Obligations of any such Person.

 

Cash Management Obligation” means any obligation of an Obligor or Restricted Subsidiary in connection with, or in respect of, cash management services (including treasury, depository, return item, overdraft, controlled disbursement, credit, merchant store value or debit card, purchase card, e-payables services, electronic funds transfer, interstate depository network, automatic clearing house transfer and other cash management arrangements) provided after the Original Agreement Date (regardless of whether these or similar services were provided prior to the Original Agreement Date by the Agent, any Lender or any Affiliate of any of them) by the Agent or any Person that was a Lender or the Agent or an Affiliate of the Agent or any Lender at the time the applicable Cash Management Documents were entered into.

 

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CCAA” means the Companies’ Creditors Arrangement Act (Canada) and the regulations promulgated thereunder.

 

Change of Control” means, at any time and for any reason whatsoever, (a) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act) is or becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of more than 50% of the total Voting Stock of Holdings on a fully diluted basis, (b) Holdings shall cease to own, directly or indirectly, 100% on a fully diluted basis of the total Voting Stock of the Company (or any successor to the Company permitted pursuant to Section 8.5(b)) or (c) the occurrence of a “Change of Control” as defined in (i) any indenture, loan agreement or similar instrument under which Existing Public Debt was issued, (ii) the TLB Credit Agreement or (iii) any other indenture, loan agreement or similar instrument in each case evidencing or governing Indebtedness in an outstanding principal amount in excess of $200,000,000 entered into or assumed by Holdings or the Company after the Agreement Date.

 

Charter Documents” means, with respect to any Person, the certificate or articles of incorporation or organization, memoranda of association, constitution, by-laws or operating agreement, and other organizational or governing documents of such Person.

 

Chattel Paper” means all of each Borrower’s, each Guarantor’s and each of their Subsidiary’s now owned or hereafter acquired chattel paper, as defined in the UCC or, with respect to any chattel paper of any Canadian Obligor, the PPSA, including electronic chattel paper.

 

Closing Date” means the later of the Agreement Date and the first date on which all of the applicable conditions set forth in Section 9.1 have been fulfilled (or waived in writing by the Agent and the Arrangers).

 

Co-Documentation Agent” has the meaning specified in the preamble to this Agreement.

 

Co-Syndication Agent” has the meaning specified in the preamble to this Agreement.

 

Code” means the Internal Revenue Code of 1986 and the rules and regulations promulgated thereunder.

 

Collateral” means the U.S. Collateral and/or the Canadian Collateral, collectively or individually, as the context requires.

 

Collateral Access Agreements” means any landlord waiver, mortgagee waiver, bailee letter, or any similar acknowledgment or agreement of any warehouseman or processor that owns or is in possession of property where Rental Equipment or Merchandise and Consumables Inventory is stored or located, in each case in a form comparable to any acknowledgement or agreement that is in effect as of the Closing Date in respect of the Existing Loan Agreement or otherwise reasonably satisfactory to the Agent.

 

Combined Availability” means, at any time (a) the lesser of (i) the Maximum Revolver Amount and (ii) the Combined Borrowing Base, minus (b) in each case, the Aggregate Revolver Outstandings.

 

Combined Borrowing Base” means, at any time, the sum of (a) the U.S. Borrowing Base at such time and (b) the lesser of (i) the Canadian Borrowing Base at such time and (ii) the Maximum Canadian Revolver Amount at such time.

 

Commitment” means aan ANZ Revolving Credit Commitment or a Pro Rata Revolving Credit Commitment (and including any Incremental Revolving Commitment and Extended Commitment to make Revolving Loans), a U.S. Swingline Commitment, a ROW Swingline Commitment, a Canadian Swingline Commitment or, a French Swingline Commitment or an ANZ Swingline Commitment, or any Refinancing Revolving Commitment under this Agreement as the context requires.

 

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Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.) and any successor statute.

 

Company” has the meaning specified in the introductory paragraph to this Agreement.

 

Compliance Certificate” means a certificate substantially in the form of Exhibit D.

 

Consolidated Current Liabilities” means, as of the date of determination, the aggregate amount of liabilities of the Consolidated Parties which may properly be classified as current liabilities (including taxes accrued as estimated), on a consolidated basis, after eliminating:

 

(a)       all intercompany items between any Consolidated Parties; and

 

(b)       all current maturities of long-term Indebtedness, all as determined in accordance with GAAP consistently applied.

 

“Consolidated EBITDA” means, for any period:

 

(a)       the sum of, without duplication, the amounts for such period, taken as a single accounting period, of:

 

(i)Consolidated Net Income;

 

(ii)Consolidated Non-cash Charges;

 

(iii)Consolidated Interest Expense;

 

(iv)Consolidated Income Tax Expense;

 

(v)        any fees, expenses or charges related to the Transactions, the RSC Merger Transactions, the National Pump Transactions, the NES Transactions, the Neff Transactions, the BakerCorp Transactions, the BlueLine Transactions, or any issuance of Capital Stock, Investment, merger, acquisition, disposition, consolidation, amalgamation, recapitalization or the incurrence or repayment of Indebtedness (including any refinancing or amendment of any of the foregoing) (whether or not consummated or incurred);

 

(vi)        the amount of any restructuring charges or reserves (which shall include retention, severance, systems establishment cost, excess pension charges, contract termination costs, including future lease commitments, costs related to start up, closure, relocation or consolidation of facilities, costs to relocate employees, consulting fees, one time information technology costs, one time branding costs and losses on the sale of excess fleet from closures); provided, however, that the aggregate amount of such charges or reserves added to Consolidated EBITDA for any period pursuant to this clause (vi) (when taken together with any amounts added pursuant to clause (vii) below) shall not exceed 20% of Consolidated EBITDA for such period; and

 

(vii)        the amount of net cost savings and synergies projected by the Company in good faith to be realized (which shall be calculated on a pro forma basis as though such cost savings or synergies had been realized on the first day of such period), net of the amount of actual benefits realized during such period from such actions; provided that (A) such cost savings or synergies are reasonably identifiable and supportable, (B) such actions have been taken or are to be taken within 24 months after the date of determination to take such action and (C) the aggregate amount of any cost savings and synergies added pursuant to this clause (vii) (when taken together with any amounts added pursuant to clause (vi) above) shall not exceed 20% of Consolidated EBITDA for such period, less

 

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(b)       (i) non-cash items increasing Consolidated Net Income and (ii) all cash payments during such period relating to non-cash charges that were added back in determining Consolidated EBITDA for the most recent period of four consecutive Fiscal Quarters.

 

“Consolidated Income Tax Expense” means, for any period, the provision for federal, state, local and foreign taxes (whether or not paid, estimated or accrued) based on income, profits or capitalization of the Consolidated Parties for such period as determined on a consolidated basis in accordance with GAAP.

 

Consolidated Interest Expense” means, for any period, without duplication, the sum of:

 

(a)        the interest expense, net of any interest income, of the Consolidated Parties for such period as determined on a consolidated basis in accordance with GAAP, including:

 

(i)any amortization of debt discount;

 

(ii)the net payments made or received under interest rate Hedge Agreements (including any amortization of discounts);

 

(iii)the interest portion of any deferred payment obligation;

 

(iv)          all commissions, discounts and other fees and charges owed with respect to letters of credit, bankers’ acceptance financing or similar facilities; and

  

(v)all accrued interest; plus

 

(b)        the interest component of Capital Lease Obligations paid, accrued and/or scheduled to be paid or accrued by the Consolidated Parties during such period as determined on a consolidated basis in accordance with GAAP, less

 

(c)        to the extent otherwise included in such interest expense referred to in clause (a) above, the amortization or write-off of financing costs, commissions, fees and expenses.

 

Consolidated Net Income” means, for any period, the consolidated net income (or loss) of the Consolidated Parties determined on a consolidated basis in accordance with GAAP; provided that there shall be excluded from such net income (to the extent otherwise included therein), without duplication:

 

(a)        any extraordinary, unusual or non-recurring gain, loss, expense or charge (including fees, expenses and charges associated with the RSC Merger Transactions, the National Pump Transactions, the NES Transactions, the Neff Transactions, the BakerCorp Transactions, the BlueLine Transactions or any merger, acquisition, disposition or consolidation after the Agreement Date);

 

(b)        (i) the portion of net income of the Consolidated Parties allocable to minority interests in unconsolidated Persons or to Investments in Unrestricted Subsidiaries to the extent that cash dividends or distributions have not actually been received by the Consolidated Parties and (ii) the portion of net loss of the Consolidated Parties allocable to minority interests in unconsolidated Persons or to Investments in Unrestricted Subsidiaries shall be included to the extent of the aggregate investment of the Consolidated Parties in such Person;

 

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(c)        gains or losses in respect of any sales or other dispositions of assets outside the ordinary course of business by any Consolidated Party (net of fees and expenses relating to the transaction giving rise thereto), on an after-tax basis;

 

(d)        the net income of any Consolidated Party to the extent that the declaration of dividends or similar distributions by that Consolidated Party of that income is not at the time permitted, directly or indirectly, by operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulations applicable to that Consolidated Party or its stockholders (other than (i) restrictions that have been waived or otherwise released, (ii) restrictions pursuant to this Agreement and (iii) restrictions in effect on the Agreement Date with respect to a Consolidated Party and other restrictions with respect to such Consolidated Party that taken as a whole are not materially less favorable to the Lenders than such restrictions in effect on the Agreement Date);

 

(e)       any gain or loss realized as a result of the cumulative effect of a change in accounting principles;

 

(f)        the write-off of any issuance costs incurred by the Company in connection with the refinancing or repayment of any Indebtedness;

 

(g)        any net after-tax gain (or loss) attributable to the early repurchase, extinguishment or conversion of Indebtedness, obligations under Hedge Agreements or other derivative instruments (including any premiums paid);

 

(h)        any non-cash income (or loss) related to the recording of the fair market value of any obligations under Hedge Agreements;

 

(i)        any unrealized gains or losses in respect of any foreign exchange contract, currency swap agreement or other similar agreement with respect to currency values;

 

(j)        (i) any non-cash compensation deduction as a result of any grant of stock or stock related instruments to employees, officers, directors or members of management and (ii) any cash charges associated with the rollover, acceleration or payout on stock or stock-related instruments by management of Holdings, the Company or any of their Subsidiaries in connection with the RSC Merger Transactions, the National Pump Transactions, the NES Transactions, the Neff Transactions, the BakerCorp Transactions, the BlueLine Transactions or any other merger, acquisition, disposition or consolidation;

 

(k)        any income (or loss) from discontinued operations;

 

(l)        any unrealized foreign currency translation or transaction gains or losses in respect of Indebtedness or other obligations of any Person denominated in a currency other than the functional currency of such Person;

 

(m)        to the extent covered by insurance and actually reimbursed, or, so long as the Company has made a determination that there exists reasonable evidence that such amount will in fact be reimbursed by the insurer and only to the extent that such amount is (i) not denied by the applicable carrier in writing within 180 days and (ii) in fact reimbursed within 365 days of the date of such evidence (with a deduction for any amount so added back to the extent not so reimbursed within 365 days), expenses with respect to liability or casualty events or business interruption; provided that, to the extent included in Consolidated Net Income in a future period, reimbursements with respect to expenses excluded from the calculation of Consolidated Net Income pursuant to this clause (m) shall be excluded from Consolidated Net Income in such period up to the amount of such excluded expenses;

 

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(n)        any non-cash charge, expense or other impact attributable to application of the purchase method of accounting (including the total amount of depreciation and amortization, cost of sales or other non-cash expense resulting from the write-up of assets to the extent resulting from such purchase accounting adjustments);

 

(o)        any goodwill or other intangible asset impairment charge;

 

(p)        effects of fair value adjustments in the merchandise inventory, property and equipment, goodwill, intangible assets, deferred revenue, deferred rent and debt line items in such Person’s consolidated financial statements pursuant to GAAP resulting from the application of acquisition accounting in relation to the RSC Merger Transactions, the National Pump Transactions, the NES Transactions, the Neff Transactions, the BakerCorp Transactions, the BlueLine Transactions or any consummated acquisition and the amortization or write-off or removal of revenue otherwise recognizable of any amounts thereof, net of taxes, shall be excluded or added back in the case of lost revenue;

 

(q)       the amount of loss on sale of assets to a Subsidiary in connection with a Securitization Transaction; and

 

(r)        accruals and reserves established within 12 months after (i) the consummation of the RSC Merger Transactions that were established as a result of the RSC Merger Transactions, (ii) the consummation of the National Pump Transactions that were established as a result of the National Pump Transactions, (iii) the consummation of the NES Transactions that were established as a result of the NES Transactions, (iv) the consummation of the Neff Transactions that were established as a result of the Neff Transactions, (v) the consummation of the BakerCorp Transactions that were established as a result of the BakerCorp Transactions, (vi) the consummation of the BlueLine Transactions that were established as a result of the BlueLine Transactions and (vii) the closing of any acquisition or investment required to be established as a result of such acquisition or investment in accordance with GAAP, or changes as a result of adoption or modification of accounting policies.

 

Consolidated Net Tangible Assets” means, as of any date of determination, the total amount of assets (less the sum of goodwill and other intangibles, net) which would appear on a consolidated balance sheet of the Consolidated Parties, determined on a consolidated basis in accordance with GAAP, on a pro forma basis, and after deducting therefrom Consolidated Current Liabilities and, to the extent otherwise included, the amounts of:

 

(a)       minority interests in consolidated Subsidiaries held by Persons other than a Consolidated Party;

 

(b)treasury stock;

 

(c)cash set apart and held in a sinking or other analogous fund established for the purpose of

 

redemption or other retirement of Capital Stock to the extent such obligation is not reflected in Consolidated Current Liabilities; and

 

(d)       Investments in and assets of Unrestricted Subsidiaries.

 

Consolidated Non-cash Charges” means, for any period, the aggregate depreciation, amortization (including amortization of goodwill and other intangibles) and other non-cash expenses of the Consolidated Parties reducing Consolidated Net Income for such period, determined on a consolidated basis in accordance with GAAP (excluding any such charges constituting an extraordinary item or loss).

 

Consolidated Parties” means Holdings and each of its Restricted Subsidiaries whose financial statements are consolidated with Holdings’ financial statements in accordance with GAAP.

 

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Contaminant” means any waste, pollutant, hazardous substance, toxic substance, hazardous waste, special waste, petroleum or petroleum-derived substance or waste, asbestos in any form or condition, polychlorinated biphenyls, or any constituent of any such substance or waste, or any other substance or material regulated under Environmental Law.

 

Continuation/Conversion Date” means the date on which a Loan is converted into or continued as a LIBOR Loan or, a BA Equivalent Loan or a Bank Bill Rate Loan, as applicable.

 

Control Agreement” has the meaning specified in Section 7.17(a).

 

“Corporations Act” means the Corporations Act 2001 (Cwlth) of Australia.

 

Covenant Trigger” has the meaning specified in Section 8.9.

 

Covenant Trigger Date” has the meaning specified in Section 8.9.

 

Covenant Trigger Period” has the meaning specified in Section 8.9.

 

“Covered Entity” means any of the following:

 

(i)        a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);

 

(ii)        a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or

  

(iii)        a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).

 

“Covered Party” has the meaning specified in Section 14.28.

 

CRA” means the Canada Revenue Agency.

 

Credit Facilities” means the revolving credit, swingline and letter of credit facilities provided for by this Agreement (which are the Canadian Credit Facilities, the French Credit Facility, the ROW Credit Facilities and, the U.S. Credit Facilities and the ANZ Credit Facilities).

 

“Credit Party” has the meaning specified in Section 13.24.

 

“Daily Simple SOFR” means, for any day, the secured overnight financing rate (“SOFR”) published on such day by the Federal Reserve Bank of New York, as the administrator of the benchmark (or a successor administrator) on the Federal Reserve Bank of New York’s website (or any successor source).

 

“Daily Simple SONIA” means, for any day, an interest rate per annum equal to SONIA for (a) if such day is a Business Day, such day or (b) if such day is not a Business Day, the Business Day immediately preceding such day, in each case plus 0.05%; provided that if such rate as determined above is less than zero, such rate shall be deemed to be zero. Any change in Daily Simple SONIA due to a change in SONIA shall be effective from and including the effective date of such change in SONIA without notice to the Borrowers.

 

Deed of Hypothec Amendment” means the Amendment to the Deed of Hypothec to secure Payment of Bonds, dated as of the Agreement Date, by UR Canada in favor of the Agent, for the benefit of the Secured Parties.

 

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Default” means any event or circumstance which, with the giving of notice, the lapse of time, or both, would (if not cured, waived, or otherwise remedied during such time) constitute an Event of Default.

 

Default Notice” has the meaning specified in Section 10.1(d).

 

Default Rate” means a fluctuating per annum interest rate at all times equal to the sum of (a) the otherwise applicable Interest Rate plus (b) 2% per annum. Each Default Rate shall be adjusted simultaneously with any change in the applicable Interest Rate.

 

“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.

 

Defaulting Lender” means any Lender that (a) has failed to perform any of its funding obligations hereunder, including in respect of its Loans or its participations in respect of Letters of Credit or Swingline Loans, within one Business Day of the date required to be funded by it hereunder, unless, with respect to the funding of any Loan, such Lender notifies the Agent and the Borrowers’ Agent in writing that such failure is the result of such Lender’s good faith determination that one or more conditions precedent to funding of such Loan has not been satisfied (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing), (b) has notified any Borrower or the Agent that it does not intend to comply with its funding obligations or has made a public statement to that effect with respect to its funding obligations hereunder or under other agreements in which it commits to extend credit, (c) has failed, within three Business Days after request by the Agent or the Borrowers’ Agent, to confirm in a manner satisfactory to the Agent or the Borrowers’ Agent, as the case may be, that it will comply with its funding obligations (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such confirmation in writing by the Agent and the Borrowers’ Agent), or (d) has, or has a direct or indirect parent company that (i) has become the subject of a proceeding under any of the federal Bankruptcy Code, the BIA, the CCAA, the Winding-up and Restructuring Act (Canada), the Canada Deposit Insurance Corporation Act (Canada), the French Insolvency Laws or under any other state, provincial, territorial, federal or other applicable jurisdictional bankruptcy or insolvency act or law, now or hereafter existing, (ii) has had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or a custodian appointed for it, (iii) has taken any action in furtherance of, or indicated its consent to, approval of or acquiescence in any such proceeding or appointment, (iv) is being subject to a forced liquidation or any Person that directly or indirectly controls such Lender is being subject to a forced liquidation, (v) is making a general assignment for the benefit of creditors or otherwise being adjudicated as, or determined by any Governmental Authority having regulatory authority over such Lender or its assets to be, insolvent or bankrupt or subject to a resolution regime or (vi) has become the subject of a Bail-In Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority.

 

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Delaware Divided LLC” means any Delaware LLC which has been formed upon the consummation of a Delaware LLC Division.

 

Delaware LLC” means any limited liability company organized or formed under the laws of the State of Delaware.

 

Delaware LLC Division” means the statutory division of any Delaware LLC into two or more Delaware LLCs pursuant to Section 18-217 of the Delaware Limited Liability Company Act.

 

Designated Bank Products Obligations” means all obligations and liabilities of any Borrower or other Obligor in respect of Bank Products, except for any Bank Product for which the provider of such Bank Product and the applicable Obligor have agreed in a writing delivered to the Agent that the obligations and liabilities of the applicable Obligor under such Bank Product shall not be deemed “Designated Bank Products Obligations” for purposes of this Agreement.

 

Designated Non-cash Consideration” means the Fair Market Value of non-cash consideration received by Holdings or one of its Restricted Subsidiaries in connection with an Asset Disposition as determined in good faith by the Company.

 

Designated Obligations” means all Obligations of the Borrowers with respect to (a) principal of and interest on the Loans, (b) unreimbursed drawings under Letters of Credit, and (c) Unused Line Fees and Letter of Credit Fees.

 

Designation Date” has the meaning specified in Section 2.6(f).

 

Disqualified Lender” means (a) any competitor of Holdings or any of its Subsidiaries, identified in writing by the Borrowers’ Agent to the Agent from time to time, (b) such other Persons identified in writing by the Borrowers’ Agent to the Agent on or prior to the Agreement Date and (c) in the case of any Person under clauses (a) and (b), any of its Affiliates (other than any bona fide debt funds) that are either (i) readily identifiable or (ii) identified in writing to the Agent by the Borrowers’ Agent from time to time. The Agent shall provide a current list of Disqualified Lenders under clauses (a) and (b) and, to the extent identified in writing to the Agent by the Borrowers’ Agent, clause (c) to any Lender (other than a Disqualified Lender) upon written request for such list from such Lender.

 

Disqualified Stock” means that portion of any Capital Stock which, by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable at the option of the holder thereof), or upon the happening of any event (other than an event which would constitute a Change of Control or as a result of a sale of assets), matures (excluding any maturity as the result of an optional redemption by the issuer thereof) or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable at the sole option of the holder thereof (except, in each case, upon the occurrence of a Change of Control or as a result of a sale of assets) on or prior to the six-month anniversary of the latest maturity date with respect to any of the Obligations then applicable hereunder at the date of issuance of such Disqualified Stock.

 

Distribution” means (a) the payment or making of any dividend or other distribution of property in respect of capital stock or other equity interests (or any options or warrants for, or other rights with respect to, such stock or other equity interests) of any Person, other than distributions in capital stock or other equity interests (or any options or warrants for such stock or other equity interests) of any class other than Disqualified Stock, or (b) the direct or indirect redemption or other acquisition by any Person of any capital stock or other equity interests (or any options or warrants for such stock or other equity interests) of such Person or any direct or indirect shareholder or other equity holder of such Person.

 

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Documents” means all “documents” as such term is defined in the UCC and, with respect to any document of a Canadian Obligor, all “documents of title” as such term is defined in the PPSA, including bills of lading, warehouse receipts or other documents of title, now owned or hereafter acquired by any Borrower, any Guarantor or any of their respective Subsidiaries.

 

Dollar” and “$” means dollars in the lawful currency of the United States. Unless otherwise specified, all payments under this Agreement shall be made in Dollars.

 

Domestic Subsidiary” means any Subsidiary of Holdings other than a Foreign Subsidiary.

 

DTTP Information” has the meaning specified in Section 5.1(h)(ii).

 

“Early Opt-in Effective Date” means, with respect to any Early Opt-in Election, the sixth Business Day after the date notice of such Early Opt-in Election is provided to the Lenders, so long as the Agent has not received, by 5:00 p.m., New York City time, on the fifth Business Day after the date notice of such Early Opt-in Election is provided to the Lenders, written notice of objection to such Early Opt-in Election from Lenders comprising the Required Lenders.

 

“Early Opt-in Election” means, if the then-current Dollar Benchmark is USD LIBOR, the occurrence of:

 

(1)        a determination by the Agent, or a notification by the Borrowers’ Agent to the Agent that the Borrowers’ Agent has made a determination, that Dollar denominated syndicated credit facilities currently being executed, or that include language similar to that contained in Section 5.7, are being executed or amended (as applicable) to incorporate or adopt a new benchmark interest rate to replace USD LIBOR, and

 

(2)        the joint election by the Agent and the Borrowers’ Agent to replace USD LIBOR with a Benchmark Replacement and the provision by the Agent of written notice of such election to the Lenders.

 

EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clause (a) or (b) of this definition and is subject to consolidated supervision with its parent.

 

EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.

 

EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.

 

Eligible Assignee” means (a) a commercial bank, commercial finance company or other asset-based lender, having total assets in excess of $2,000,000,000, that extends credit or buys commercial loans in the ordinary course of business; (b) any Lender listed on the signature page of this Agreement; (c) any Affiliate or branch of any Lender; (d) any Approved Fund; and (e) any other Person reasonably acceptable to the Agent; provided that, in any event, “Eligible Assignee” shall not include (i) any natural Person, (ii) with respect to any Commitments or Loans (other than Incremental ABL Term Loans), Holdings or any Borrower or any Affiliate thereof, (iii) any Disqualified Lender (other than any Disqualified Lender otherwise agreed to by the Borrowers’ Agent in a writing delivered to the Agent), (iv) any Defaulting Lender or (v) any Person that is not a PMP Lender.

 

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Eligible Merchandise and Consumables Inventory” means Merchandise and Consumables Inventory of the Secured Obligors which the Agent in the exercise of its Reasonable Credit Judgment determines to be Eligible Merchandise and Consumables Inventory; provided that such Merchandise and Consumables Inventory:

 

(a)       is owned by a Secured Obligor which has good, valid and marketable title thereto;

 

(b)       is not damaged or defective, in each case, in any material respect;

 

(c)       is not obsolete, unmerchantable or slow moving;

 

(d)       conforms in all material respects to the warranties and representations set forth in this Agreement and the other Loan Documents pertaining to Merchandise and Consumables Inventory and Collateral or Inventory in general;

 

(e)       is at all times subject to the Agent’s duly perfected first priority (other than with respect to any Permitted Priority Borrowing Base Liens) security interest and subject to no other Lien except a Permitted Lien; and

 

(f)        is not outside, with respect to the U.S. Borrowing Base only, the continental United States or, with respect to the Canadian Borrowing Base only, Canada or (if such Merchandise and Consumables Inventory is not Titled Goods) the continental United States, and is not consigned to any Person;

 

and provided, further, that “Eligible Merchandise and Consumables Inventory” shall in no event include (a) fuel or (b) extraneous and unboxed Inventory held by a Secured Obligor.

 

If any Merchandise and Consumables Inventory ceases to be Eligible Merchandise and Consumables Inventory, then such Merchandise and Consumables Inventory shall promptly be excluded from the calculation of Eligible Merchandise and Consumables Inventory. Notwithstanding the foregoing, the Agent may, from time to time, in the exercise of its Reasonable Credit Judgment, on not less than 10 Business Days’ prior notice to the Borrowers’ Agent, change the criteria for Eligible Merchandise and Consumables Inventory as reflected on the Borrowing Base Certificate based on either (i) an event, condition or other circumstance arising after the Closing Date or (ii) an event, condition or other circumstance existing on the Closing Date to the extent the Agent had no knowledge thereof on or prior to the Closing Date, in either case under clause (i) or (ii), which adversely affects, or would reasonably be expected to adversely affect, Eligible Merchandise and Consumables Inventory in any material respect as determined by the Agent in the exercise of its Reasonable Credit Judgment. Any such change in criteria shall have a reasonable relationship to the event, condition or other circumstance that is the basis for such change. Upon delivery of the notice of such change pursuant to the foregoing sentence, the Agent shall be available to discuss the proposed change, and the applicable Secured Obligor may take such action as may be required so that the event, condition or circumstance that is the basis for such change no longer exists, in a manner and to the extent reasonably satisfactory to the Agent in the exercise of its Reasonable Credit Judgment.

 

Eligible Rental Equipment” means the Rental Equipment of the Secured Obligors that (x) is held for sale or rent by a Secured Obligor in the ordinary course of its business, (y) is being rented by a Secured Obligor as lessor in the ordinary course of its business or (z) is Titled Goods consisting of motor vehicles used by a Secured Obligor in its business, other than any Rental Equipment of a Secured Obligor:

 

(a)      that is not classified as “rental equipment” on such Secured Obligor’s balance sheet (other than (i) new Rental Equipment held for sale that is classified as “inventory” on Holdings’ balance sheet and (ii) Titled Goods consisting of motor vehicles used by a Secured Obligor in its business);

 

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(b)      that is not owned by such Secured Obligor free and clear of all Liens and rights of any other Person (including the rights of a purchaser that has made progress payments and the rights of a surety that has issued a bond to assure performance by such Secured Obligor with respect to that Equipment), except the Liens in favor of the Agent, on behalf of itself and the other Secured Parties (and other than (i) Permitted Priority Liens and (ii) Permitted Liens permitted under Section 8.2(c) or Section 8.2(ii));

 

(c)       that (i) is not located in (A) if such Secured Obligor is a U.S. Obligor, a state of the United States of America or the District of Columbia or (B) if such Secured Obligor is a Canadian Obligor, a province or territory of Canada or (in the case such Rental Equipment is not Titled Goods) a state of the United States of America or the District of Columbia; or (ii) is stored by a Secured Obligor at a location that is leased by such Secured Obligor from a third party, unless (A) the Agent has given its consent thereto, (B) a reasonably satisfactory landlord waiver has been delivered to the Agent or (C) a Rent Reserve has been established with respect thereto;

 

(d)      that is covered by a negotiable document of title, unless such document has been delivered to the Agent with all necessary endorsements, free and clear of all Liens except those in favor of the Agent and the applicable Secured Parties (and other than any bailee, warehouseman, landlord or similar non-consensual Liens having priority by operation of law);

 

(e)       that is excess, obsolete, unsaleable, unrentable, damaged in any material respect or unfit for sale or rent;

 

(f)     that is not held for sale, rental or use in the ordinary course of business of such Secured Obligor;

 

(g)      that is not subject to a first priority Lien in favor of the Agent on behalf of itself and the applicable Secured Parties (other than with respect to any Permitted Priority Borrowing Base Liens); provided that it shall not be necessary to identify the vehicle numbers with respect to Rental Equipment located in Canada in any PPSA filings as a prerequisite for such Rental Equipment to constitute “Eligible Rental Equipment” hereunder;

 

(h)       as to which there are any breaches of any of the representations or warranties pertaining to Rental Equipment set forth in any of the Loan Documents in any material respect; or

 

(i)        that does not meet in all material respects the applicable standards pertaining to Rental Equipment imposed by any Governmental Authority having regulatory authority over such Rental Equipment.

 

If any Rental Equipment at any time ceases to be Eligible Rental Equipment, such Rental Equipment shall promptly be excluded from the calculation of Eligible Rental Equipment. Notwithstanding the foregoing, the Agent may, from time to time, in the exercise of its Reasonable Credit Judgment, on not less than 10 Business Days’ prior notice to the Borrowers’ Agent, change the criteria for Eligible Rental Equipment as reflected on the Borrowing Base Certificate based on either (i) an event, condition or other circumstance arising after the Closing Date or (ii) an event, condition or other circumstance existing on the Closing Date to the extent the Agent had no knowledge thereof on or prior to the Closing Date, in either case under clause (i) or (ii), which adversely affects, or would reasonably be expected to adversely affect, Eligible Rental Equipment in any material respect as determined by the Agent in the exercise of its Reasonable Credit Judgment. Any such change in criteria shall have a reasonable relationship to the event, condition or other circumstance that is the basis for such change. Upon delivery of the notice of such change pursuant to the foregoing sentence, the Agent shall be available to discuss the proposed change, and the applicable Secured Obligor may take such action as may be required so that the event, condition or circumstance that is the basis for such change no longer exists, in a manner and to the extent reasonably satisfactory to the Agent in the exercise of its Reasonable Credit Judgment.

 

Environmental Laws” means all applicable federal, state, provincial or local or foreign laws, statutes, common law duties, rules, regulations, ordinances and codes, together with all administrative orders, enforceable requirements, judgments, injunctions, licenses, authorizations, consents, registrations, approvals, permits of, and agreements with, any Governmental Authority, in each case in connection with (i) environmental matters (including Releases of Contaminants) or (ii) to the extent relating to exposure to Contaminants, health matters.

 

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Equipment” means all of each Obligor’s and each of its Subsidiary’s now owned or hereafter acquired machinery, equipment, furniture, furnishings, fixtures, and other tangible personal property (except Inventory), including embedded software, service and delivery vehicles with respect to which a certificate of title has been issued, aircraft, dies, tools, jigs, molds and office equipment, as well as all of such types of property leased by any Obligor or any of its Subsidiaries, and all of each Obligor’s and each of its Subsidiary’s rights and interests with respect thereto under such leases (including options to purchase); together with all present and future additions and accessions thereto, replacements therefor, component and auxiliary parts and supplies used or to be used in connection therewith, and all substitutes for any of the foregoing, and all manuals, drawings, instructions, warranties and rights with respect thereto; wherever any of the foregoing is located.

 

Equipment Securitization Transaction” means any sale, assignment, pledge or other transfer (a) by the Company or any Subsidiary of the Company of rental fleet equipment, (b) by any ES Special Purpose Vehicle of leases or rental agreements between the Company and/or any Subsidiary of the Company, as lessee, on the one hand, and such ES Special Purpose Vehicle, as lessor, on the other hand, relating to such rental fleet equipment and lease receivables arising under such leases and rental agreements and (c) by the Company or any Subsidiary of the Company of any interest in any of the foregoing, together in each case with (i) any and all proceeds thereof (including all collections relating thereto, all payments and other rights under insurance policies or warranties relating thereto, all disposition proceeds received upon a sale thereof, and all rights under manufacturers’ repurchase programs or guaranteed depreciation programs relating thereto), (ii) any collection or deposit account relating thereto and (iii) any collateral, guarantees, credit enhancement or other property or claims supporting or securing payment on, or otherwise relating to, any such leases, rental agreements or lease receivables.

 

Equivalent Amount” means, on any date, the amount of Dollars into which an amount of Euros, Sterling, Cdn. Dollars, Australian Dollars, New Zealand Dollars or any other Alternative Currency, as applicable, may be converted or the amount of Euros, Sterling, Cdn. Dollars, Australian Dollars, New Zealand Dollars or any other Alternative Currency, as applicable, into which an amount of Dollars may be converted, in any case, (a) at the exchange rate reported by Bloomberg (or other commercially available source designated by the Agent from time to time) as of approximately 12:00 noon, New York City time, or (b) if such report is unavailable for any reason, the spot rate for the purchase of the first currency with the second currency as in effect during the preceding business day in the Agent’s principal foreign exchange trading office for the first currency, on such date, in each case rounded to the nearest unit of the applicable currency, with 0.5 of a unit being rounded upward.

 

ERISA” means the Employee Retirement Income Security Act of 1974, as the same may be amended from time to time and any final regulations promulgated and the rulings issued thereunder.

 

ERISA Affiliate” means any trade or business (whether or not incorporated) under common control with any Borrower within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).

 

ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) any failure by a Pension Plan to satisfy the minimum funding standard (within the meaning of Section 412 of the Code or Section 302 of ERISA) applicable to such Pension Plan, in each case whether or not waived; (c) the filing pursuant to Section 412(c) of the Code or Section 302(c) of ERISA, of an application for a waiver of the minimum funding standard with respect to a Pension Plan; (d) a determination that a Pension Plan is in “at-risk” status (as defined in Section 303(i)(4) of ERISA or Section 430(i)(4) of the Code); (e) a withdrawal by any Borrower or ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations which is treated as such a withdrawal under Section 4062(e) of ERISA; (f) a complete or partial withdrawal by any Borrower or ERISA Affiliate from a Multi-employer Plan; (g) the filing of a notice of intent to terminate, the treatment of a Plan amendment as a termination under Section 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multi-employer Plan; (h) the occurrence of an event or condition which might reasonably be expected to constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multi-employer Plan; (i) the Borrowers or any of their Subsidiaries engaging in a non-exempt “prohibited transaction” with respect to which any Borrower or any of its Subsidiaries is a “disqualified person” (within the meaning of Section 4975 of the Code), or with respect to which such Borrower or any such Subsidiary could otherwise be liable; or (j) the imposition of any material liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon any Borrower or ERISA Affiliate.

 

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ES Special Purpose Vehicle” means a trust, bankruptcy remote entity or other special purpose entity which is a Subsidiary of the Company or Holdings (or, if not a Subsidiary of the Company or Holdings, the common equity of which is wholly owned, directly or indirectly, by the Company or Holdings) and which is formed for the purpose of, and engages in no material business other than, acting as a lessor, issuer or depositor in an Equipment Securitization Transaction (and, in connection therewith, owning the rental fleet equipment, leases, rental agreements, lease receivables, rights to payment and other interests, rights and assets described in the definition of “Equipment Securitization Transaction”, and pledging or transferring any of the foregoing or interests therein).

 

EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.

 

EU Insolvency Regulation” means the Council of the European Union Regulation 2015/848 on insolvency proceedings.

 

“EURIBOR” has the meaning specified in the definition of “LIBOR Rate”.

 

Euro” or “” means the single lawful currency of the European Union as constituted by the treaty establishing the European Community being the Treaty of Rome, as referred to in the EMU Legislation.

 

Event of Default” has the meaning specified in Section 10.1.

 

Exchange Act” means the Securities Exchange Act of 1934 and regulations promulgated thereunder.

 

Excluded Subsidiary” means any (a) Subsidiary of a Foreign Subsidiary other than any Canadian or U.S. Subsidiary of a Canadian Subsidiary, (b) Unrestricted Subsidiary, (c) Immaterial Subsidiary, (d) Domestic Subsidiary or Canadian Subsidiary that, at the time such Subsidiary becomes a Restricted Subsidiary (and for so long as such restriction or any replacement or renewal thereof is in effect), is prohibited by any applicable contractual obligation or Requirement of Law from guaranteeing or granting Liens to secure the Obligations hereunder or if guaranteeing or granting Liens to secure the Obligations hereunder would require governmental (including regulatory) consent, approval, license or authorization unless such consent, approval, license or authorization has been received, (e) joint venture or Subsidiary that is not a Wholly Owned Subsidiary (it being agreed that it shall be a condition for any such Subsidiary that was a Wholly Owned Subsidiary to become an Excluded Subsidiary that either (i) at the time it became a non-Wholly Owned Subsidiary none of its assets comprised part of the Borrowing Base or (ii) at the time it becomes (after giving effect to it becoming) an Excluded Subsidiary no Out-of-Formula Condition would exist), (f) Subsidiary formed solely for the purpose of merging or amalgamating with another Person in connection with a Permitted Acquisition or other Permitted Investment by the Company or another Obligor, or (g) Domestic Subsidiary or Canadian Subsidiary with respect to which, in the reasonable judgment of the Agent (or, in the case of adverse tax consequences, the Borrowers’ Agent) (confirmed in writing by notice to the Borrowers’ Agent or the Agent, as applicable), the cost or other consequences (including any adverse tax consequences) of providing a Guarantee of the Obligations hereunder shall be excessive in view of the benefits to be obtained by the Lenders therefrom; provided that any Subsidiary that fails to meet the requirement in clause (c) as of the last day of the most recent four consecutive Fiscal Quarters for which consolidated financial statements of the Consolidated Parties are available shall continue to be deemed an Excluded Subsidiary hereunder until the date that is 60 days following the date on which such financial statements were required to be delivered pursuant to Section 7.2 with respect to such period; provided, further, that in no event shall the Company be an Excluded Subsidiary.

 

Excluded Swap Obligation” means, with respect to any Guarantor (in its capacity as a guarantor), any Swap Obligation if, and to the extent that, all or a portion of the Guarantee of such Guarantor of, or the grant by such Guarantor of a security interest to secure, such Swap Obligation (or any Guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder (determined after giving effect to any keepwell, support or other agreement for the benefit of such Guarantor) at the time the Guarantee of such Guarantor or the grant of such security interest becomes effective with respect to such Swap Obligation. If a Swap Obligation arises under an agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such Guarantee or security interest is or becomes illegal.

 

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Excluded Taxes” means, in the case of each Lender and the Agent and each other recipient of any payment to be made on account of the Obligations, (a) Taxes (including income Taxes, capital or franchise Taxes or other Taxes on net income) as are imposed on or measured by the Agent’s, such Lender’s or such recipient’s overall net income or capital in the jurisdiction (whether federal, state or local and including any political subdivision thereof) under the laws of which the Agent or such Lender or such recipient, as the case may be, is organized or maintains a lending office from which the Loans are made or does business, (b) any branch profits Taxes imposed by the United States of America or any similar Tax imposed by any other jurisdiction in respect of which the applicable recipient, as the case may be, is subject to income or franchise Taxes imposed on (or measured by) its net income, (c) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes that are Other Connection Taxes, (d) any U.S. federal withholding Tax, withholding Taxes pursuant to the laws of the Netherlands, the United Kingdom, France, Germany or Puerto Rico or withholding Tax payable under Part XIII of the Income Tax Act (Canada) that is imposed on amounts payable to or for the account of a Lender, in each case, with respect to an applicable interest in an Obligation pursuant to a law in effect on the date on which (i) such Lender becomes a party hereto (other than pursuant to any assignment request by the Borrowers under Section 5.9 or Section 12.1(b)) or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 5.1, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office (and in each case assuming the completion of any necessary procedural formalities), (e) any withholding Tax that arises (i) in the United Kingdom in respect of an advance to a U.K. Borrower and is attributable to a Lender’s failure to comply with Section 5.1(h) or (ii) is attributable to a Lender’s failure to comply with Section 5.1(f), (f) any withholding Tax payable under Part XIII of the Income Tax Act (Canada) that is imposed on amounts payable to or for the account of a Lender as a consequence of the Lender not dealing at arm’s length (within the meaning of the Income Tax Act (Canada)) with the payer at the time of such payment, (g) any withholding Tax payable under Part XIII of the Income Tax Act (Canada) that is imposed on amounts payable to or for the account of a Lender as a consequence of the Lender being, at any time, a “specified non-resident shareholder” (within the meaning of subsection 18(5) of the Income Tax Act (Canada)) of any Canadian Borrower, or, at any time, not dealing at arm’s length (within the meaning of the Income Tax Act (Canada)) with a “specified shareholder” (within the meaning of subsection 18(5) of the Income Tax Act (Canada)) of any Canadian Borrower, (h) any withholding Taxes imposed under FATCA, (i) any Taxes imposed by France on amount payable to a French Swingline Lender (or the Agent) if such Taxes are imposed solely because this payment is made to (A) an account opened in the name of or for the benefit of that French Swingline Lender (or the Agent) in a financial institution situated in a Non-Cooperative Jurisdiction or (B) a French Swingline Lender (or the Agent) incorporated, domiciled, established or acting through a lending office (or the office of the Agent) situated in a Non-Cooperative Jurisdiction and, (j) VAT and (k) any Australian Withholding Tax imposed as a result of a Lender being an Offshore Associate of any Australian Borrower in relation to the receipt of a payment.

 

Existing Commitment” has the meaning specified in Section 2.6(a).

 

Existing Letters of Credit” has the meaning specified in Section 1.10(b).

 

Existing Loan Agreement” has the meaning specified in the recitals to this Agreement.

 

Existing Loans” has the meaning specified in Section 2.6(a).

 

Existing Public Debt” means the 4⅝% Senior Secured Notes, the 4⅝% Senior Notes, the August 2017 4⅞% Senior Notes, the September 2017 4⅞% Senior Notes, the March 2015 5½% Senior Notes, the November 2016 5½% Senior Notes, the 5¾% Senior Notes, the 5⅞% Senior Notes and the 6½% Senior Notes.

 

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Existing Securitization Facility” means the receivables facility established pursuant to the Third Amended and Restated Receivables Purchase Agreement, dated as of September 24, 2012, among United Rentals Receivables LLC II, as seller, Holdings, as collection agent, Liberty Street Funding LLC, as a purchaser, Gotham Funding Corporation, as a purchaser, Fairway Finance Company, LLC, as a purchaser, PNC Bank, National Association, as purchaser agent for itself and as a bank, MUFG Bank, Ltd. (formerly known as The Bank of Tokyo-Mitsubishi UFJ, Ltd.), as a purchaser agent and as a bank, SunTrust Bank, as a purchaser agent for itself and as a bank, Bank of Montreal, as a purchaser agent and as a bank, The Toronto-Dominion Bank, as a purchaser agent for itself and as a bank, and The Bank of Nova Scotia, as administrative agent, as a bank and as a purchaser agent, and the other Transaction Documents under and as defined therein.

 

Existing Tranche” has the meaning specified in Section 2.6(a).

 

Exiting Lender” has the meaning specified in Section 1.10(c).

 

Exiting Lender Assignment” has the meaning specified in Section 1.10(c).

 

Extended Commitments” has the meaning specified in Section 2.6(a).

 

Extended Loans” has the meaning specified in Section 2.6(a).

 

Extending Lender” has the meaning specified in Section 2.6(b).

 

Extension Amendment” has the meaning specified in Section 2.6(c).

 

Extension Date” has the meaning specified in Section 2.6(d).

 

Extension Election” has the meaning specified in Section 2.6(b).

 

Extension Request” has the meaning specified in Section 2.6(a).

 

Fair Market Value” means, with respect to any asset, the fair market value of such asset as determined by the board of directors (or the equivalent governing body) of the Company in good faith, whose determination shall be conclusive and, in the case of assets with a Fair Market Value in excess of $500,000,000, evidenced by a resolution of the board of directors of the Company.

 

FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version if substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and implementing such Sections of the Code.

 

FCPA” means the Foreign Corrupt Practices Act of 1977.

 

Federal Funds Rate” means, for any day, the rate per annum equal to (a) the weighted average of interest rates on overnight federal funds transactions with members of the Federal Reserve System on such day (or on the preceding Business Day, if such day is not a Business Day), as published by the Federal Reserve Bank of New York on the next Business Day; or (b) if no such rate is published on the next Business Day, the average rate (rounded upward to the next 1/100th of 1%) charged to the U.S. Bank on such day on such transactions, as determined by the Agent.

 

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Federal Reserve Board” means the Board of Governors of the Federal Reserve System or any successor thereto.

 

Fee Letter” means one or more fee or engagement letters among Bank of America, N.A. and/or an Arranger, Holdings and/or any Borrower, with respect to the payment of certain fees in connection with this Agreement.

 

“Financial Statements” means, according to the context in which it is used, the financial statements referred to in Sections 6.5 and 7.2.

 

“First Amendment” means the First Amendment dated as of June 30, 2021, among Holdings, the Borrowers party thereto, the other Guarantors party thereto, the Lenders party thereto and the Agent.

 

“First Amendment Effective Date” means June 30, 2021.

 

Fiscal Quarter” means the period commencing on January 1 in any Fiscal Year and ending on the next succeeding March 31, the period commencing on April 1 in any Fiscal Year and ending on the next succeeding June 30, the period commencing on July 1 in any Fiscal Year and ending on the next succeeding September 30, or the period commencing on October 1 in any Fiscal Year and ending on the next succeeding December 31, as the context may require.

 

Fiscal Year” means Holdings’, the Borrowers’, the Guarantors’ and their Subsidiaries’ fiscal year for financial accounting purposes. As of the Agreement Date, the current Fiscal Year of Holdings, the Obligors and their Subsidiaries will end on December 31, 2019.

 

Fixed Charge Coverage Ratio” means the ratio of:

 

(a) (i) Consolidated EBITDA for the most recent period of four consecutive Fiscal Quarters for which financial information in respect thereof is available, minus, (ii) without duplication, the sum of the unfinanced portion of all Capital Expenditures of Holdings and its Subsidiaries for such period (excluding any Capital Expenditures made in an amount equal to (x) all or part of the proceeds of any casualty insurance, condemnation or eminent domain or any amount otherwise reimbursed by third parties or (y) all or part of the proceeds of any sale of assets of Holdings and its Subsidiaries (other than any Special Purpose Vehicle) during such period); to

 

 

(b) the sum, without duplication, of (i) Consolidated Interest Expense for such period paid or payable in cash (other than (w) fees and expenses associated with the amendment and restatement of the Existing Loan Agreement and any agency fees, (x) costs associated with obtaining, or breakage costs in respect of, Hedge Agreements, (y) fees and expenses associated with any Permitted Acquisitions, Permitted Investments, mergers, consolidations or amalgamations, the issuance of Capital Stock or the incurrence of Indebtedness, in each case permitted under this Agreement (in each case, whether or not the applicable Permitted Acquisition, Permitted Investment, merger, consolidation, amalgamation, issuance of Capital Stock or incurrence of Indebtedness is consummated) and (z) amortization of deferred financing costs), net of interest income, plus (ii) the aggregate amount of Federal, state, local and foreign income, capital or profits taxes, including foreign withholding taxes, expensed during such period to the extent paid in cash, in each case, of or by Holdings and its Subsidiaries for such period (including any Distribution made to Holdings to permit Holdings to pay such taxes) plus (iii) the aggregate principal amount of all regularly scheduled principal or amortization payments on Indebtedness for borrowed money of Holdings and its Subsidiaries for such period paid or payable in cash (other than prepaid amounts, any payments in respect of Capital Lease Obligations, payments due at maturity, payment in respect of intercompany debt or any payments with respect thereto paid in cash from the proceeds of any refinancing thereof) plus (iv) the aggregate amount of cash Distributions made by Holdings during such period other than one cash Distribution made by Holdings during any four consecutive Fiscal Quarter period.

 

Foreign Base Rate” means, (a) with respect to any ROW Swingline Loans or any French Swingline Loans, in each case that are funded outside the United States, the LIBOR Rate for a one-month interest period as in effect on the first day of the current calendar month, (b) with respect to any ANZ Swingline Loans denominated in Australian Dollars, for any day, the per annum rate of interest (rounded upward to the next 1/100th of 1%) equal to the Reserve Bank of Australia’s “cash rate” (or a comparable or successor rate approved by the Agent (acting reasonably)), determined by the Agent at or about 10:30 a.m. (Sydney time) on such day, as published on the applicable Reuters screen page (or other commercially available source designated by the Agent from time to time (acting reasonably)), and (c) with respect to any ANZ Swingline Loans denominated in New Zealand Dollars, for any day, the per annum rate of interest (rounded upward to the nearest 1/100th of 1%) equal to the rate announced from time to time by the Reserve Bank of New Zealand as the “official cash rate” (or a comparable or successor rate approved by the Agent (acting reasonbly)), determined by the Agent on such day; provided that, (x) in no event shall the Foreign Base Rate be less than zero and (y) any change in such rate shall take effect at the opening of business on the applicable Business Day.

 

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Foreign Borrowing Participation” has the meaning specified in Section 2.10(a).

 

Foreign Borrowing Participation Fee” has the meaning specified in Section 2.10(f).

 

“Foreign Borrowing Participation Settlement” has the meaning specified in Section 2.10(b)(i).

 

Foreign Borrowing Participation Settlement Amount” has the meaning specified in Section 2.10(b)(ii).

 

Foreign Borrowing Participation Settlement Date” has the meaning specified in Section 2.10(b)(i).

 

Foreign Borrowing Participation Settlement Period” has the meaning specified in Section 2.10(b)(i).

 

Foreign Lender” means (a) if the Borrower is a U.S. Person, a Lender that is not a U.S. Person, and (b) if the Borrower is not a U.S. Person, a Lender that is resident or organized under the laws of a jurisdiction other than that in which the Borrower is resident for tax purposes.

 

Foreign Subsidiary” means any Subsidiary of Holdings that is formed under the laws of a jurisdiction other than a State of the United States or the District of Columbia. For the avoidance of doubt, any Subsidiary of Holdings which is organized and existing under the Laws of Puerto Rico or any other territory of the United States of America shall be a Foreign Subsidiary.

 

Foreign Subsidiary Holding Company” means any Domestic Subsidiary the primary assets of which consist of Capital Stock in (a) one or more Foreign Subsidiaries or (b) one or more Foreign Subsidiary Holding Companies.

 

French Borrowers” has the meaning specified in the introductory paragraph to this Agreement.

 

French Credit Facility” means the swingline facility provided for by this Agreement extended to the French Borrowers.

 

French Insolvency Laws” means the EU Insolvency Regulation, the provisions of the Livre VI and other relevant provisions related thereto of the French Code de commerce or similar debtor relief laws of France from time to time in effect.

 

French Obligations” means, with respect to the Indebtedness of the French Borrowers under the Loan Documents, any principal, premium (if any), interest (including interest accruing on or after the filing of any petition in bankruptcy or for reorganization relating to any French Borrower whether or not a claim for post-filing interest is allowed in such proceedings), fees, charges, expenses, reimbursement obligations, other monetary obligations of any French Borrower of any nature and all other amounts payable by any French Borrower under the Loan Documents or in respect thereof; provided that, “French Obligations” shall in any event include Designated Bank Products Obligations of any French Borrower; provided, further, that “French Obligations” shall not include any Canadian Obligations, ROW Obligations or, U.S. Obligations or ANZ Obligations.

 

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French Swingline Bank” means Bank of America Merrill Lynch International, Designated Activity Company, a financial institution authorized to make loans in France (a) under European Union passport rules or (b) directly by the ACPR.

 

French Swingline Commitment” means the commitment of the French Swingline Lender to make loans pursuant to Section 2.3(d).

 

French Swingline Lender” means the French Swingline Bank or a branch or Affiliate of the French Swingline Bank or any successor financial institution agreed to by the Borrowers’ Agent and the Agent, in its capacity as provider of French Swingline Loans; provided that (a) it is a French licensed credit institution (établissement de credit) or a financial institution authorized to make loans in France (i) under European Union passport rules or (ii) directly by the ACPR and (b) it has opened an account or accounts, each of which is located outside France, for the purpose of making or receipt of any advance, Loan or payment under the French Credit Facility to, from or for the benefit of any French Borrower.

 

French Swingline Loan” and “French Swingline Loans” have the meanings specified in Section 2.3(d).

 

French Swingline Loan Minimum” means (a) in the case of a French Swingline Loan denominated in Dollars, $100,000, (b) in the case of a French Swingline Loan denominated in Euro, €100,000 and (c) in the case of a French Swingline Loan denominated in Sterling, £100,000.

 

French Swingline Loan Multiple” means (a) in the case of a French Swingline Loan denominated in Dollars, $50,000, (b) in the case of a French Swingline Loan denominated in Euro, €50,000 and (c) in the case of a French Swingline Loan denominated in Sterling, £50,000.

 

French Swingline Sublimit” has the meaning specified in Section 2.3(d).

 

FSCO” means the Financial Services Commission of Ontario and any Person succeeding to the functions thereof and includes the Superintendent under such statute and any other Governmental Authority (succeeding to the functions thereof) and established or appointed by the Financial Services Commission of Ontario Act, 1997.

 

Full Payment” or “Full Payment of the Obligations” means (a) the payment in full in cash or immediately available funds (except for (i) contingent indemnities and cost and reimbursement obligations, in each case, to the extent no claim has been made, (ii) Obligations under Hedge Agreements that have been novated or collateralized, to the extent required by the terms thereof or as otherwise reasonably acceptable to the applicable counterparty and the Agent and (iii) Cash Management Obligations and Designated Bank Products Obligations, to the extent such Cash Management Obligations or Designated Bank Products Obligations, as the case may be, are not then due) of all Obligations then outstanding, if any, (b) with respect to Letters of Credit outstanding, delivery of cash collateral or backstop letters of credit in respect thereof in the manner and as otherwise required under Section 2.4(g) and (c) the termination or expiration of all Commitments and any Refinancing Term Commitments.

 

Funded Foreign Borrowing Participation” means, with respect to any Participating Canadian Lender or Participating ROW Lender, in respect of any Canadian Revolving Loans or ROW Revolving Loans, respectively, funded by Bank of America and subject to Section 2.10, (a) the aggregate amount paid by such Participating Canadian Lender or Participating ROW Lender, as applicable, to Bank of America pursuant to Section 2.10(b) in respect of such Participating Canadian Lender’s or Participating ROW Lender’s participation in the principal amount of such Canadian Revolving Loans or ROW Revolving Loans, respectively, funded by Bank of America minus (b) the aggregate amount paid to such Participating Canadian Lender or Participating ROW Lender, as applicable, by Bank of America pursuant to Section 2.10(b) in respect of such Participating Canadian Lender’s or Participating ROW Lender’s participation in the principal amount of such Canadian Revolving Loans or ROW Revolving Loans, respectively, funded by Bank of America, excluding in each case any payments made in respect of interest accrued on such Canadian Revolving Loans or ROW Revolving Loans funded by Bank of America. Bank of America’s Funded Foreign Borrowing Participation in any Canadian Revolving Loans or ROW Revolving Loans funded by Bank of America shall be equal to the outstanding principal amount of such Canadian Revolving Loans or ROW Revolving Loans minus the total Funded Foreign Borrowing Participation of all other Lenders therein.

 

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Funding Date” means the date on which a Borrowing occurs.

 

GAAP” means generally accepted accounting principles in the United States of America as in effect from time to time, including those set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board (or, if applicable in the case of the Canadian Subsidiaries, such generally accepted accounting principles and practices set forth from time to time in Canada by Chartered Professional Accountants of Canada) or in such other statements by such other entity as approved by a significant segment of the accounting profession, subject to Section 1.2(b).

 

General Intangibles” means all of each Obligor’s now owned or hereafter acquired “general intangibles” as defined in the UCC or, with respect to any General Intangible of a Canadian Obligor, an “intangible” as defined in the PPSA, choses in action and causes of action and all other intangible personal property of each Obligor of every kind and nature (other than Accounts), including all contract rights, payment intangibles, Proprietary Rights, corporate or other business records, inventions, designs, blueprints, plans, specifications, computer software, customer lists, registrations, licenses, franchises, Tax refund claims, any funds which may become due to any Obligor in connection with the termination of any Plan or other employee benefit plan or any rights thereto and any other amounts payable to any Obligor from any Plan or other employee benefit plan, rights and claims against carriers and shippers, rights to indemnification, business interruption insurance and proceeds thereof, property, casualty or any similar type of insurance and any proceeds thereof, proceeds of insurance covering the lives of key employees on which any Obligor is beneficiary, rights to receive dividends, distributions, cash, Instruments and other property in respect of or in exchange for pledged equity interests or Investment Property and any letter of credit, guarantee, claim, security interest or other security held by or granted to any Obligor.

 

Goods” means all “goods” as defined in the UCC or, with respect to any goods of a Canadian Obligor, the PPSA, now owned or hereafter acquired by any Obligor, wherever located, including embedded software to the extent included in “goods” as defined in the UCC, and manufactured homes.

 

Governmental Authority” means any nation or government, any state, provincial, territorial or other political subdivision thereof, any central bank (or similar monetary or regulatory authority) thereof and any governmental entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government.

 

Guarantee” means any obligation, contingent or otherwise, of any Person directly or indirectly guaranteeing any Indebtedness of any other Person; provided that the term “Guarantee” shall not include endorsements for collection or deposit in the ordinary course of business.

 

Guarantee Agreements” mean the U.S. Guarantee Agreement and the Canadian Guarantee Agreement.

 

Guarantors” means (a) the U.S. Guarantors, (b) the Canadian Guarantors, and (c) each other Person, who, in a writing accepted by the Agent, guarantees payment or performance in whole or in part of any of the Obligations.

 

Hedge Agreement” means any and all transactions, agreements or documents now existing or hereafter entered into, which provides for an interest rate, credit, commodity or equity swap, cap, floor, collar, forward foreign exchange transaction, currency swap, cross currency rate swap, currency option, or any combination of, or option with respect to, these or similar transactions, for the purpose of hedging any Obligor’s exposure to fluctuations in interest or exchange rates, loan, credit exchange, security or currency valuations or commodity prices.

 

Holdings” has the meaning specified in the introductory paragraph to this Agreement.

 

Immaterial Subsidiary” means any Subsidiary of Holdings that, as of the last day of the Fiscal Quarter of Holdings most recently ended for which financial information in respect thereof is available, (a) did not have assets with a value in excess of 2.5% of the total assets of Holdings and its Subsidiaries as at such date and (b) did not have total revenues in excess of 2.5% of the total revenues of Holdings and its Subsidiaries for the four consecutive Fiscal Quarter period then ended. Any determination of whether a Subsidiary shall cease to qualify as an Immaterial Subsidiary shall be made on the date of the delivery of the Compliance Certificate pursuant to Section 7.2(d). To the extent a Subsidiary ceases to be an Immaterial Subsidiary in connection with such determination, Holdings shall have 60 days (or such longer period to which the Agent may reasonably agree) from the date of delivery of such Compliance Certificate to cause such Subsidiary to comply with the requirements of Section 7.16 to the extent applicable. Each Immaterial Subsidiary as of the Closing Date shall be set forth in Schedule 1.3.

 

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Increased Amount” of any Indebtedness means any increase in the amount of such Indebtedness in connection with any accrual of interest, the accretion of accreted value, the amortization of original issue discount, the payment of interest in the form of additional Indebtedness with the same terms or in the form of common stock of any Borrower or Holdings and the accretion of original issue discount or liquidation preference.

 

Incremental ABL Term Loans” has the meaning specified in Section 2.5(a).

 

Incremental Commitment Amendment” has the meaning specified in Section 2.5(e)(ii).

 

Incremental Facility” and “Incremental Facilities” have the meanings specified in Section 2.5(a).

 

Incremental Facility Increase” has the meaning specified in Section 2.5(a).

 

Incremental Indebtedness” means any Indebtedness incurred by any Borrower pursuant to and in accordance with Section 2.5.

 

Incremental Revolving Commitment Effective Date” has the meaning specified in Section 2.5(e)(i).

 

Incremental Revolving Commitments” has the meaning specified in Section 2.5(a).

 

Indebtedness” means, without duplication, (a) all indebtedness for borrowed money or the deferred purchase price of property, excluding trade payables and the endorsement of checks and other similar instruments in the ordinary course of business; (i) all obligations and liabilities of any other Person secured by any Lien on an Obligor’s or any of its Subsidiaries’ property, even if such Obligor or Subsidiary shall not have assumed or become liable for the payment thereof (the amount of such obligation being deemed to be the lesser of the value of such property (as determined in good faith by the Company) or the amount of the obligation so secured); (ii) all obligations or liabilities created or arising under any Capital Lease; (iii) all indebtedness created or arising under any conditional sale or other title retention agreement with respect to property acquired by such Person (even if the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such property), but excluding trade accounts payable arising in the ordinary course of business; (iv) all obligations of such Person for the reimbursement of any obligor on any letter of credit, banker’s acceptance or similar credit transaction; (v) all net obligations of such Person in respect of Hedge Agreements; and (vi) all obligations and liabilities under Guarantees in respect of obligations of the type described in any of clauses (a) through (f) above.

 

Indemnified Liabilities” has the meaning specified in Section 14.10.

 

Indemnified Person” has the meaning specified in Section 14.10.

 

Indemnified Taxes” means (a) all Taxes other than Excluded Taxes and (b) to the extent not otherwise described in (a), Other Taxes.

 

Instruments” means all instruments as such term is defined in Article 9 of the UCC or as is defined in the PPSA, as applicable, now owned or hereafter acquired by any Borrower, any Guarantor or any of their Subsidiaries.

 

Intercreditor Agreement Supplement” has the meaning specified in Section 13.17(b)

 

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Interest Period” means, as to any LIBOR Loan or Bank Bill Rate Loan, the period commencing on the Funding Date of such Loan or on the Continuation/Conversion Date on which the Loan is converted into or continued as a LIBOR Loan or Bank Bill Rate Loan, as applicable, and ending on (i) the date (x) in the case of LIBOR Loans only, seven days orthereafter or (y) in the case of any LIBOR Loan or Bank Bill Rate Loan, one, two, three or six months thereafter, or (ii) any other date agreed to by all the Lenders making or holding such Loan, in each case, as selected by the applicable Borrower in its Notice of Borrowing or Notice of Continuation/Conversion, provided that:

 

(a)        if any Interest Period would otherwise end on a day that is not a Business Day, that Interest Period shall be extended to the following Business Day unless, in the case of any Interest Period of one month or longer, 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 preceding Business Day;

 

(b)       any Interest Period of one month or longer pertaining to a LIBOR Loan or a Bank Bill Rate Loan that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest Period; and

 

(c)       no Interest Period shall extend beyond the Maturity Date.

 

Interest Rate” means each or any of the interest rates, including the Default Rate, set forth in Section 3.1.

 

Inventory” means all of each Obligor’s and each of its Subsidiaries’ now owned or hereafter acquired Rental Equipment, Merchandise and Consumables Inventory and other inventory, goods and merchandise, wherever located, to be furnished under any contract of service or held for sale or lease, all returned goods, raw materials, work-in-process, finished goods (including embedded software), other materials and supplies of any kind, nature or description which are used or consumed in such Obligor’s or any of its Subsidiaries’ business or used in connection with the packing, shipping, advertising, selling or finishing of such goods, merchandise, and all documents of title or other Documents representing them.

 

Investment” means, with respect to any Person, (a) any loan or other extension of credit (including a guarantee) or capital contribution to any other Person (by means of any transfer of cash or other property or any payment for property or services for consideration of Indebtedness or Capital Stock of any other Person), other than in connection with leases of Equipment or leases or sales of Inventory on credit in the ordinary course of business or (b) any purchase or acquisition by such Person of Capital Stock, bonds, notes, debentures or other securities or evidences of indebtedness issued by any other Person, excluding the acquisition of inventory, supplies, equipment and other assets used or consumed in the ordinary course of business of such Person and Capital Expenditures. The amount of any Investment outstanding at any time shall be the original cost of such Investment, reduced (at the Company’s option) by any dividend, distribution, interest payment, return of capital, repayment or other amount or value received in respect of such Investment.

 

Investment Property” means all of each Obligor’s now owned or hereafter acquired “investment property” as defined in the UCC or the PPSA, as applicable, and includes all right title and interest of each Obligor in and to any and all: (a) securities whether certificated or uncertificated; (b) securities entitlements; (c) securities accounts; (d) commodity contracts; or (e) commodity accounts.

 

IRS” means the Internal Revenue Service and any Governmental Authority succeeding to any of its principal functions under the Code.

 

Laws” means, collectively, all international, foreign, federal, state, provincial, territorial and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law.

 

LCA Election” has the meaning specified in Section 1.3(m)(ii).

 

LCA Test Date” has the meaning specified in Section 1.3(m)(ii).

 

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Leases” means the written agreements between an Obligor and an Account Debtor entered into in the ordinary course of business of such Obligor for rental or lease of Rental Equipment by such Obligor to such Account Debtor, including all schedules and supplements thereto.

 

Lender” and “Lenders” have the meanings specified in the introductory paragraph to this Agreement and shall include the Agent to the extent of any Agent Advance outstanding and the Banks to the extent of any Swingline Loan outstanding.

 

Lender Joinder Agreement” has the meaning specified in Section 2.5(d)(i).

 

Letter of Credit” and “Letters of Credit” have the meanings specified in Section 2.4(a)(i).

 

Letter of Credit Fee” has the meaning specified in Section 3.6.

 

Letter of Credit Issuer” means the U.S. Bank, any Affiliate or branch of the U.S. Bank (including the Canadian Bank, in respect of Letters of Credit denominated in Canadian Dollars) or any other Lender or Affiliate or branch of a Lender that issues any Letter of Credit pursuant to this Agreement and agrees to provide reporting with respect to Letters of Credit reasonably required by the Agent.

 

Letter of Credit Subfacility” means $300,000,000.

 

LIBOR Interest Payment Date” means, with respect to a LIBOR Loan, the Termination Date and the last day of each Interest Period applicable to such Loan and, with respect to each Interest Period of more than three months, each three-month anniversary of the commencement of such Interest Period for such LIBOR Loan.

 

LIBOR Loan” means a Loan during any period in which it bears interest based on the LIBOR Rate.

 

LIBOR Rate” means, for any Interest Period, with respect to LIBOR Loans denominated in any currency, the rate of interest per annum (rounded upward to the next 1/100th of 1%) determined pursuant to the following formula:

 

LIBOR Rate =  Offshore Base Rate
  1.00 - Eurodollar Reserve Percentage

 

Where,

 

Offshore Base Rate” means, (a) with respect to any LIBOR Loans denominated in any currency other than Euro, the per annum rate of interest (rounded upward to the next 1/100th of 1% and in no event less than zero) determined by the Agent at or about 11:00 a.m. (London time) two Business Days prior to such Interest Period (or (a) with respect to LIBOR Loans denominated in Sterling, 11:00 a .m. (London time) on the first day of such Interest Period or (b) with respect to LIBOR Loans denominated in any other Alternative Currency other than Euro, 11:00 a.m. (London time) on such other day as shall be determined by the Agent, acting reasonably, in accordance with the market practice in the London interbank market for such Alternative Currency), for a term equivalent to such period, equal to the London Interbank Offered Rate for deposits in such currency, or comparable or successor rate approved by the Agent, (such rate for Dollars, “USD LIBOR”) as published on the applicable Reuters screen page (or other commercially available source designated by the Agent from time to time); provided that any comparable or successor rate shall be applied by the Agent, if administratively feasible, in a manner consistent with market practice and (b) with respect to any LIBOR Loans denominated in Euro, the per annum rate of interest (in no event less than zero) determined by the Agent at or about 11:00 a.m. (Brussels time) two TARGET Days prior to such Interest Period, for a term equivalent to such period, equal to the Euro interbank offered rate as administered by the European Money Markets Institute (or any other Person that takes over the administration of such rate) for a deposit in Euro (such rate, “EURIBOR”) as published on the Reuters screen page that displays such rate (or other commercially available source designated by the Agent from time to time).

 

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Eurodollar Reserve Percentage” means, for any day during any Interest Period, the reserve percentage (expressed as a decimal, rounded upward to the next 1/100th of 1%) in effect on such day applicable to member banks with deposits exceeding $ 1,000,000,000 under regulations issued from time to time by the Federal Reserve Board for determining the maximum reserve requirement (including any emergency, supplemental or other marginal reserve requirement) with respect to Eurocurrency funding (currently referred to as “Eurocurrency liabilities”). The LIBOR Rate for each outstanding LIBOR Loan shall be adjusted automatically as of the effective date of any change in the Eurodollar Reserve Percentage.

 

LIBOR Screen Rate” means the London Interbank Offered Rate quote on the applicable screen page the Agent (in its reasonable discretion) designates to determine London Interbank Offered Rate (or such other commercially available source providing such quotations as may be designated by the Agent from time to time in its reasonable discretion).

 

LIBOR Successor Rate” has the meaning specified in Section 5.7.

 

LIBOR Successor Rate Conforming Changes” means, with respect to any proposed LIBOR Successor Rate, any conforming changes to the definitions of Base Rate, Canadian Base Rate, Foreign Base Rate, Interest Period, timing and frequency of determining rates and making payments of interest and other administrative matters as may be appropriate, in the discretion of the Agent, to reflect the adoption of such LIBOR Successor Rate and to permit the administration thereof by the Agent in a manner substantially consistent with market practice (or, if the Agent determines that adoption of any portion of such market practice is not administratively feasible or that no market practice for the administration of such LIBOR Successor Rate exists, in such other manner of administration as the Agent determines in consultation with the Borrowers’ Agent).

 

Lien” means any mortgage, charge, pledge, lien (statutory or other), security interest, hypothecation, assignment for security, claim, or preference or priority or other encumbrance upon or with respect to any property of any kind. A Person shall be deemed to own subject to a Lien any property which such Person has acquired or holds subject to the interest of a vendor or lessor under any conditional sale agreement, capital lease or other title retention agreement.

 

Like-Kind Exchange” means a substantially contemporaneous exchange or swap, including transactions covered by Section 1031 of the Code, of property or assets (“Relinquished Property”) for property or assets with comparable or greater Fair Market Value or usefulness to the business of the U.S. Borrowers and their Domestic Subsidiaries (“Replacement Property”); provided that (a) the disposition of the Relinquished Property is permitted under the terms of this Agreement, (b) the transaction is entered into in the normal course of business, (c) the applicable “exchange agreement” reflects arm’s-length terms with a Qualified Intermediary who is not an Affiliate of Holdings and otherwise contains customary terms and (d) all net proceeds thereof are deposited in one or more Like-Kind Exchange Accounts.

 

Like-Kind Exchange Account” means any account established jointly with a Qualified Intermediary pursuant to and solely for the purposes of facilitating any Like-Kind Exchange, the amounts on deposit in which shall be limited to proceeds realized from the disposition of Relinquished Property in connection with a Like-Kind Exchange.

 

Limited Condition Acquisition” means any acquisition of any assets, business or Person permitted by this Agreement, the consummation of which is not conditioned on the availability of, or on obtaining, third-party financing.

 

Loan Documents” means this Agreement, the Guarantee Agreements, each Guaranty Supplement referred to in any Guarantee Agreement, the Security Documents, the Fee Letters, any TEG Letter, any Acceptable Intercreditor Agreement or any other intercreditor agreement entered into by the Agent at any time in connection with this Agreement or any Security Document, any promissory note evidencing any Obligations, any other “Loan Document” (as defined in the Existing Loan Agreement) in effect on the Closing Date (to the extent such document has not been amended and restated, replaced or superseded), the First Amendment and any other agreements, instruments, and documents to which one or more Obligors is a party that, for any such other agreement, instrument or document entered into after the Closing Date, expressly states that it is to be treated as a “Loan Document” hereunder.

  

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Loans” means, collectively, all loans and advances provided for in Article II.

 

London Bank” means Bank of America, N.A. (acting through its London branch), or any successor entity thereto.

 

March 2015 5½% Senior Note Indenture” means that certain Indenture dated as of March 26, 2015 among the Company, Holdings, certain subsidiaries of the Company and Wells Fargo Bank, National Association, as Trustee.

 

March 2015 5½% Senior Notes” means the 5½% Senior Notes due 2025 issued by the Company pursuant to the March 2015 5½% Senior Note Indenture.

 

Market Disruption Event” has the meaning specified in Section 5.5(b).

 

Material Account” means any bank account, securities account or commodities account of any Obligor, including in any case any account into which proceeds from any Securitization Transaction (including, but not limited to, the Existing Securitization Facility) are deposited, but excluding (a) any “Controlled Account” under and as defined in the documents evidencing the Existing Securitization Facility as in effect as of the Agreement Date and any similar account under any Securitization Transaction, (b) any Like-Kind Exchange Account, (c) any account which is exclusively used for disbursement purposes (including payroll accounts) and (d) other accounts to the extent the aggregate amount of funds on deposit therein does not exceed $25,000,000.

 

Material Adverse Effect” means a material adverse effect on (a) the business or financial condition of Holdings and its Restricted Subsidiaries, taken as a whole, (b) the ability of Holdings, the Borrowers and the other Obligors (taken as a whole) to perform their payment obligations under this Agreement or any other Loan Document or (c) the rights and remedies of the Agent and the Lenders under this Agreement or any other Loan Document.

 

Maturity Date” means the date that is the fifth anniversary of the Closing Date.

 

“Maximum ANZ Revolver Amount” means, at any time, the aggregate ANZ Revolving Credit Commitments at such time, as the same may be increased from time to time in accordance with Section 2.5 or 4.3 or reduced from time to time in accordance with Section 4.3. As of the First Amendment Effective Date, the Maximum ANZ Revolver Amount is $ 175,000,000. Anything contained herein to the contrary notwithstanding, upon termination of the ANZ Revolving Credit Commitments, the Maximum ANZ Revolver Amount shall automatically be reduced to zero.

 

Maximum Canadian Revolver Amount” means $250,000,000 as of the Agreement Date, as the same may be increased or decreased from time to time in accordance with Section 2.2(d). Anything contained herein to the contrary notwithstanding, (a) upon termination of the Pro Rata Revolving Credit Commitments, the Maximum Canadian Revolver Amount shall automatically be reduced to zero and (b) in no event shall the sum of the Maximum Canadian Revolver Amount and the Maximum ROW Revolver Amount at any time be greater than the Pro Rata Revolving Credit Commitments at such time.

 

“Maximum Pro Rata Revolver Amount” means, at any time, the aggregate Pro Rata Revolving Credit Commitments at such time, as the same may be increased from time to time in accordance with Section 2.5 or 4.3 or reduced from time to time in accordance with Section 4.3. As of the First Amendment Effective Date, the Maximum Pro Rata Revolver Amount is $ 3,575,000,000. Anything contained herein to the contrary notwithstanding, upon termination of the Pro Rata Revolving Credit Commitments, the Maximum Pro Rata Revolver Amount shall automatically be reduced to zero.

 

Maximum Rate” has the meaning specified in Section 3.3.

 

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Maximum Revolver Amount” means, at any time, the aggregate Revolving Credit Commitmentssum of the Maximum ANZ Revolver Amount at such time, as and the same may be increased from time to time in accordance with Section 2. 5 or reduced from time to time in accordance with Section 4.3Maximum Pro Rata Revolver Amount at such time. As of the AgreementFirst Amendment Effective Date, the Maximum Revolver Amount is $3,750,000,000. Anything contained herein to the contrary notwithstanding, upon termination of the Commitments, the Maximum Revolver Amount shall automatically be reduced to zero.

 

Maximum ROW Revolver Amount” means $125,000,000 as of the Agreement Date, as the same may be increased or decreased from time to time in accordance with Section 2.2(d). Anything contained herein to the contrary notwithstanding, (a) upon termination of the Pro Rata Revolving Credit Commitments, the Maximum ROW Revolver Amount shall automatically be reduced to zero and (b) in no event shall the sum of the Maximum ROW Revolver Amount and the Maximum Canadian Revolver Amount at any time be greater than the Pro Rata Revolving Credit Commitments at such time.

 

Merchandise and Consumables Inventory” means Inventory owned by a Borrower, a Guarantor or any of their Subsidiaries, other than Rental Equipment held for sale or rental, including parts for Rental Equipment, parts to be sold, parts to be installed on Rental Equipment (which parts are not then incorporated or installed in or on, or affixed or appurtenant to, any such Rental Equipment), and Inventory for the contractors supply business of the Obligors.

 

Merchandise and Consumables Inventory Formula Amount” means, on any date of determination thereof, an amount equal to 55% of the Value of Eligible Merchandise and Consumables Inventory on such date.

 

Minimum Extension Condition” has the meaning specified in Section 2.6(g).

 

Moody’s” means Moody’s Investors Service, Inc., or any successor thereto.

 

Multi-employer Plan” means a “multi-employer plan” as defined in Section 4001(a)(3) of ERISA which is or was at any time during the current year or the immediately preceding six years contributed to by any of the Borrowers or any ERISA Affiliate.

 

National Pump Acquisition” means the acquisition of assets contemplated by the Asset Purchase Agreement, effective as of March 7, 2014, by and among the Company, UR Canada, LD Services, LLC, National Pump & Compressor Ltd., Canadian Pump & Compressor, Ltd., Gulfco Industrial Equipment, L.P. and the Owners named therein.

 

National Pump Transactions” means (a) the National Pump Acquisition, (b) the issuance of debt securities in connection with the National Pump Acquisition and (c) any other transactions contemplated in connection with the National Pump Acquisition and any other financing transactions in connection with the National Pump Acquisition.

 

Neff Acquisition” means the acquisition by the Company of Neff Corporation contemplated by the Agreement and Plan of Merger, dated as of August 16, 2017, by and among the Borrower, UR Merger Sub III Corporation and Neff Corporation.

 

Neff Transactions” means (a) the Neff Acquisition, (b) the issuance of debt securities in connection with the Neff Acquisition and (c) any other transactions contemplated in connection with the Neff Acquisition and any other financing transactions in connection with the Neff Acquisition.

 

NES Acquisition” means the acquisition of assets contemplated by the Agreement and Plan of Merger, dated as of January 25, 2017, by and among NES Rentals Holdings II, Inc., the Borrower, UR Merger Sub II Corporation and Diamond Castle Holdings, LLC, as the Stockholder Representative named therein.

 

NES Transactions” means (a) the NES Acquisition, (b) the issuance of debt securities in connection with the NES Acquisition and (c) any other transactions contemplated in connection with the NES Acquisition and any other financing transactions in connection with the NES Acquisition.

 

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Net Book Value” means, with respect to any Rental Equipment, cost minus accumulated depreciation for such Rental Equipment calculated in accordance with GAAP.

 

Net Orderly Liquidation Value” means the orderly liquidation value (net of costs and expenses estimated to be incurred in connection with such liquidation) that is estimated to be recoverable in an orderly liquidation of Rental Equipment or other Inventory, as applicable, as determined in accordance with the most recent Appraisal received by the Agent in accordance with Section 7.9(b).

 

“New Zealand Dollars” or “NZ$” means the lawful currency of New Zealand.

 

Non-Consenting Lender” has the meaning specified in Section 12.1(b).

 

Non-Cooperative Jurisdictionshall meanmeans a “non-cooperative state or territory” (Etat ou territoire non coopératif) as set out in the list referred to in Article 238-0 A of the French tax code (Code Général des Impôts), as such list may be amended from time to time.

 

Non-Core Business” means any business which is not an essential part of the rental business.

 

Non-Extended Commitments” has the meaning specified in Section 2.6(a).

 

Non-Extended Loans” has the meaning specified in Section 2.6(a).

 

Non-Extending Lender” has the meaning specified in Section 2.6(e).

 

Non-Extension Notice Date” has the meaning specified in Section 2.4(b).

 

Non-Recourse Indebtedness” means Indebtedness of a Person (a) as to which no Obligor provides any Guarantee or credit support of any kind or is directly or indirectly liable (as a guarantor or otherwise) and (b) which does not provide any recourse against any of the assets of any Obligor, in each case other than Standard Securitization Undertakings.

 

Notice of Borrowing” has the meaning specified in Section 2.2(a).

 

Notice of Continuation/Conversion” has the meaning specified in Section 3.2(b).

 

November 2016 5½% Senior Note Indenture” means that certain Indenture dated as of November 7, 2016 among the Company, Holdings, certain subsidiaries of the Company and Wells Fargo Bank, National Association, as Trustee.

 

November 2016 5½% Senior Notes” means the 5½% Senior Notes due 2027 issued by the Company pursuant to the November 2016 5½% Senior Note Indenture.

 

“NZ Lender” means a Lender that (a) is resident in New Zealand for New Zealand income tax purposes or (b) carries on business in New Zealand through a fixed establishment and either (i) is a registered bank and is not associated with any ANZ Borrower or (ii) is party to or performs this Agreement for the purposes of the business it carries on in New Zealand through such fixed establishment, provided that for the purposes of this definition, the terms “associated”, “fixed establishment” and “registered bank” shall have the meanings given in the Income Tax Act 2007.

 

Obligations” means the U.S. Obligations, the ROW Obligations, the Canadian Obligations, the French Obligations and the FrenchANZ Obligations.

 

Obligors” means, collectively, each Borrower, each Guarantor, and any other Person that now or hereafter is primarily or secondarily liable for any of the Obligations and/or grants the Agent a Lien on any collateral as security for any of the Obligations.

 

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“Offshore Associate” means an Associate (a) that is a non-resident of Australia and would not become a Lender, or does not receive a payment, in carrying on a business in Australia at or through a permanent establishment of such Associate in Australia or (b) that is a resident of Australia and would become a Lender, or does receive a payment, in carrying on a business in a country outside Australia at or through a permanent establishment of such Associate in that country, and which, in either case, would not become a Lender in the capacity of a clearing house, custodian, funds manager or responsible entity of a registered scheme, or does not receive such payment in the capacity of a clearing house, paying agent, custodian, funds manager or responsible entity of a registered scheme.

 

Original Agreement Date” means June 9, 2008.

 

Original Currency” has the meaning specified in Section 14.20.

 

Original Loan Agreement” means that certain Credit Agreement, dated as of June 9, 2008, by and among Holdings, the Company, UR Canada, the Guarantors, the Agent, the lenders party thereto and certain other parties thereto.

 

Originating Lender” has the meaning specified in Section 12.2(e).

 

Other Connection Taxes” means, with respect to any Agent, Lender or other such recipient, Taxes imposed as a result of a present or former connection between such recipient and the jurisdiction imposing such Tax (other than connections arising from such recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).

 

“Other Rate Early Opt-in” means the Agent and the Borrowers’ Agent have elected to replace USD LIBOR with a Benchmark Replacement other than a SOFR-based rate pursuant to (1) an Early Opt-in Election and (2) Section 5.7(b) and paragraph (2) of the definition of “Benchmark Replacement”.

 

Other Taxes” means any present or future stamp or documentary Taxes or any other excise or property Taxes, charges or similar levies which arise from any payment made hereunder or from the execution, delivery or registration of, or otherwise with respect to, this Agreement or any other Loan Documents, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than Other Connection Taxes imposed on an assignor as a result of any assignment request by the Borrowers under Sections 5.9 or 12.1(b)).

 

Out-of-Formula Condition” has the meaning specified in Section 4.2.

 

Pari Passu Debt Reserves” means all reserves with respect to (a) any outstanding Indebtedness incurred pursuant to Section 8.1(c) or otherwise secured pursuant to Section 8.2(c) or 8.2(ii) (other than the Obligations), (b)any Incremental Indebtedness (other than increases to the Revolving Credit Commitments) or (c) any Refinancing Term Loans or Refinancing Revolving Loans, in each case, that is secured by Liens on Collateral on a basis pari passu in priority with the Agent’s Liens thereon securing extensions of credit under any of the Revolving Credit Commitments, which reserve for any such outstanding Indebtedness shall be imposed automatically without any further action or notice by the Agent upon the incurrence of such Indebtedness and shall be in an amount equal to the unpaid principal amount of such Indebtedness from time to time. For the avoidance of doubt, no Pari Passu Debt Reserves shall be established with respect to any Indebtedness incurred pursuant to Section 8.1(c) or otherwise secured pursuant to Section 8.2(c) or 8.2(ii) or any Incremental Indebtedness or any Refinancing Term Loans or Refinancing Revolving Loans, in each case that is secured by Liens on Collateral solely in the event that all such Liens on the Collateral are junior in priority to the Agent’s Liens thereon.

 

Pari Passu Intercreditor Agreement” means that certain intercreditor agreement, dated as of October 31, 2018, by and among Bank of America, as Agent under this Agreement, Bank of America, as TLB Agent, and the other parties thereto from time to time.

 

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Participant” means any Person who shall have been granted the right by any Lender to participate in the financing provided by such Lender under this Agreement, and who shall have entered into a participation agreement in form and substance satisfactory to such Lender.

 

Participant Register” has the meaning specified in Section 13.21(b).

 

Participating Canadian Lender” means each Lender identified on Schedule 2.10A, solely as to the amount of the Revolving Credit Commitment of such Lender set forth opposite such Lender’s name on Schedule 2.10A (as such Revolving Credit Commitment may be reduced (but not increased, unless otherwise agreed in writing by Bank of America) from time to time pursuant to the terms of this Agreement or any applicable Assignment and Acceptance), as such schedule may be amended, in the sole discretion of the Agent and Bank of America, by written agreement of the Borrowers’ Agent, the Agent, Bank of America and any applicable Participating Canadian Lender.

 

Participating ROW Lender” means each Lender identified on Schedule 2.10B, solely as to the amount of the Revolving Credit Commitment of such Lender set forth opposite such Lender’s name on Schedule 2.10B (as such Revolving Credit Commitment may be reduced (but not increased, unless otherwise agreed in writing by Bank of America) from time to time pursuant to the terms of this Agreement or any applicable Assignment and Acceptance), as such schedule may be amended, in the sole discretion of the Agent and Bank of America, by written agreement of the Borrowers’ Agent, the Agent, Bank of America and any applicable Participating ROW Lender.

 

Payment Account” means each bank account to which the proceeds of Collateral are deposited or credited, and which is maintained in the name of the Agent, on terms reasonably acceptable to the Agent.

 

Payment Conditions” means, at any time of determination with respect to any payment, event or transaction described herein as being specifically subject to satisfaction of the Payment Conditions, that (a) both before and immediately after such payment, event or transaction (including any Loans made in connection therewith), no Specified Default has occurred and is continuing, (b) immediately after such payment, event or transaction (including the making of any Loans in connection therewith), Specified Availability shall be greater than 10% of the Maximum Revolver Amount and (c) if Specified Availability is not greater than 15% of the Maximum Revolver Amount after giving effect to such payment, event or transaction (including the making of any Loans in connection therewith), Holdings and the other Obligors shall be in pro forma compliance with the covenant set forth in Section 8.9 (regardless of whether a Covenant Trigger is in effect or such covenant is otherwise effective, and measured as of the last day of the most recently ended Fiscal Quarter for which financial statements were required to be delivered in accordance with Section 7.2).

 

PBA” means the Pension Benefits Act (Ontario) or similar legislation of any other Canadian federal or provincial jurisdiction, and the regulations promulgated thereunder applicable to a Pension Plan.

 

PBGC” means the Pension Benefit Guaranty Corporation, or any Governmental Authority succeeding to the functions thereof or any Governmental Authority of another jurisdiction exercising similar functions in respect of any Plans of an Obligor.

 

Pension Event” means solely with respect to Canadian Pension Plans (a) the whole or partial withdrawal of a Canadian Obligor or any of its Subsidiaries from a Canadian Pension Plan during a plan year; or (b) the filing of a notice of proposal to terminate in whole or in part a Canadian DB Pension Plan; or (c) the issuance of a notice of proposal by any Governmental Authority to terminate in whole or in part or have an administrator or like body appointed to administer a Canadian DB Pension Plan; or (d) any other event or condition which might constitute grounds for the termination of, winding up or partial termination or winding up or the appointment of a trustee to administer, any Plan.

 

Pension Plan” means a pension plan or an employee benefit plan (a) (as defined in Section 3(2) of ERISA) subject to Title IV of ERISA, other than a Multi-employer Plan, or _ which is a “registered pension plan” under the Income Tax Act (Canada) or which is subject to the PBA or any other applicable Laws, which in either case of clause (a) or (b) an Obligor sponsors, maintains, or to which it makes, is making, or is obligated to make contributions, or has made contributions at any time during the immediately preceding five plan years.

 

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Perfection Certificate” means the Perfection Certificate substantially in the form of Exhibit F.

 

Permitted Acquisition” means the acquisition by an Obligor or a Restricted Subsidiary of all or a substantial portion of the assets or businesses of a Person or of assets constituting a business unit, line of business or division of such Person (the “Acquired Business”) or the acquisition by an Obligor or a Restricted Subsidiary of all of the Capital Stock of the Acquired Business (other than directors’ qualifying shares or nominee or other similar shares required pursuant to applicable law) or the merger, amalgamation or consolidation of the Acquired Business with and into an Obligor or a Restricted Subsidiary (with such Obligor or Restricted Subsidiary, as the case may be, as the surviving Person) or an Obligor or a Restricted Subsidiary with and into the Acquired Business (to the extent permitted under Section 8.5), so long as:

 

(a)          the assets acquired shall be used or useful in or otherwise relate to, the business or lines of business of the Borrowers and their Subsidiaries as of the Closing Date;

 

(b)         all transactions in connection with such acquisition shall be consummated in all material respects in accordance with all applicable laws and governmental authorizations;

 

(c)         after giving effect to such transaction and any related refinancing of Indebtedness, none of the acquired assets are subject to any Lien other than Permitted Liens; and

 

(d)         (i) the Payment Conditions are satisfied at the time of such Permitted Acquisition (or, at the option of the Borrowers’ Agent if such Permitted Acquisition is a Limited Condition Acquisition, as of the date definitive agreements for such Limited Condition Acquisition are entered into) or (ii) the consideration for such transaction consists solely of any combination of (A) Capital Stock of Holdings (other than Disqualified Stock), (B) cash and property in an amount equal to the net proceeds from a substantially concurrent sale or issuance of Capital Stock of Holdings (other than Disqualified Stock), (C) additional cash and property (excluding cash and property covered in clause (B) above) in an amount, together with all cash and property under this clause (C) for all other Permitted Acquisitions consummated in the same Fiscal Year, not to exceed $750,000,000, and (D) Indebtedness (whether incurred or assumed) permitted hereunder.

 

Permitted Distributions” means:

 

(a)         Distributions by any Subsidiary of an Obligor to such Obligor (other than Holdings) and Distributions by any Subsidiary to the holders (other than Holdings) of its Capital Stock on a pro rata basis;

 

(b)         (i) Distributions by Holdings to repurchase equity securities issued by Holdings from employees, officers or directors of Holdings, the Company or any Subsidiary, or the authorized representatives of any of the foregoing, upon the death, disability or termination of employment of any such employee, officer or director in an amount not to exceed $15,000,000 in the aggregate in any Fiscal Year and (ii) so long as no Default or Event of Default has occurred and is continuing, Distributions to purchase Capital Stock of Holdings from employees, officers or directors of Holdings, the Company or any Subsidiary in an amount not to exceed the sum of (x) $20,000,000 plus (y) $15,000,000 multiplied by the number of calendar years that have commenced since March 9, 2012;

 

(c)         any purchase or redemption of any Capital Stock of Holdings required pursuant to the terms thereof as a result of a Change of Control or an asset disposition, so long as at such time no Default or Event of Default shall have occurred and be continuing (or would result therefrom);

 

(d)        payments to Holdings in an amount sufficient to enable Holdings to pay (i) its or the Consolidated Parties’ taxes, or its legal, accounting, payroll, benefits, incentive compensation, insurance and corporate overhead expenses (including commission, stock exchange and transfer agency fees and expenses); (ii) trade, lease, payroll, benefits, incentive compensation and other obligations in respect of goods to be delivered to, services (including management and consulting services) performed for and properties used by, the Company and the Restricted Subsidiaries; (iii) the purchase price for Investments in other Persons; (iv) reasonable and customary incidental expenses as determined in good faith by the board of directors of Holdings; (v) costs and expenses incurred in relation to the issuance of Indebtedness or Capital Stock by Holdings; and (vi) costs and expenses incurred by Holdings in relation to the Transactions, the National Pump Transactions, the NES Transactions, the Neff Transactions, the BakerCorp Transactions and the BlueLine Transactions and any other acquisitions permitted hereunder;

 

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(e)         payments to Holdings in an amount sufficient to permit it to repay Indebtedness the proceeds of which were either contributed to the Company or used to acquire assets that were contributed to the Company;

 

(f)          cash payments in lieu of the issuance of fractional shares in connection with the exercise of any warrants, options or other securities convertible into or exchangeable for capital stock of Holdings;

 

(g)         the deemed repurchase of Capital Stock of Holdings on the cashless exercise of stock options;

 

(h)        other Distributions by Holdings and any of its Subsidiaries not to exceed $300,000,000 in the aggregate during the term of this Agreement; provided, however, that at the time of any such Distribution, no Default or Event of Default shall have occurred and be continuing (or would result therefrom);

 

(i)          any Distributions, so long as the Payment Conditions are satisfied either at the time the Distribution is made or at the time the Distribution is declared (so long as such Distribution is made within 60 days of declaration);

 

(j)          payments in respect of any dividend or distribution on the Capital Stock of Holdings and payments to purchase Capital Stock of Holdings, in each case, not to exceed 5% of the market capitalization of Holdings at the time of such payment;

 

(k)         the making of any Distribution in exchange for, or out of the net cash proceeds of, a substantially concurrent sale (other than to a Subsidiary of the Company) of Capital Stock of the Company or Holdings (other than Disqualified Stock) or from a substantially concurrent cash capital contribution to the Company or Holdings;

 

(l)          any Investment made in a Special Purpose Vehicle in connection with a Securitization Transaction, which Investment consists of the assets described in the definition of “Equipment Securitization Transaction” or “Receivables Securitization Transaction”; and

 

(m)        Investments constituting Distributions made as a result of the receipt of non-cash consideration from any Asset Disposition or other sale of assets or property made pursuant to and in compliance with this Agreement.

 

For purposes of determining compliance with this definition, in the event that any Distribution meets the criteria of more than one of the types of Permitted Distributions described in the above clauses, the Borrowers’ Agent, in its sole discretion, may from time to time classify and reclassify such Distribution and only be required to include the amount and type of such Distribution in one of such clauses.

 

Permitted Indebtedness” has the meaning specified in Section 8.1.

 

Permitted Investments” means:

 

(a)         Investments in Cash Equivalents;

 

(b)         Investments existing on the Agreement Date and identified in Schedule 8.4 to this Agreement;

 

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(c)         Investments by any Obligor or Restricted Subsidiary in any other Obligor or Restricted Subsidiary;

 

(d)         Investments by any Subsidiary which is not a Secured Obligor in any other Subsidiary;

 

(e)         Investments (i)(A) by any Subsidiary which is not an Obligor in another Subsidiary which is not an Obligor, (B) by any Subsidiary which is not a Secured Obligor in another Subsidiary which is not a Secured Obligor or (C) by any Obligor in any Subsidiary which is not a Secured Obligor, in each case by way of contributions to capital (including by way of organizing a Subsidiary after the Agreement Date pursuant to Section 7.16) or (ii)(A) in less than all the business or assets of, or stock or other evidences of beneficial ownership of, any Person, or (B) in any joint venture or similar arrangement; provided that the aggregate amount of Investments made under this clause (e)(i)(C) and clause (e)(ii) (as reduced by any return of capital in respect of any such Investment), taken together with the aggregate amount of Indebtedness incurred pursuant to Section 8.1(h)(ii) and the aggregate amount of Investments made pursuant to clause (l)(ii) of this definition, shall not exceed the greater of (x) $705,000,000 and (y) 7.5% of Consolidated Net Tangible Assets at any time;

 

(f)          Investments by any Obligor in any Special Purpose Vehicle pursuant to a Securitization Transaction;

 

(g)         Investments in the nature of pledges or deposits with respect to leases or utilities provided to third parties in the ordinary course of business;

 

(h)         deposit accounts maintained in the ordinary course of business;

 

(i)          Investments constituting Hedge Agreements entered into in the ordinary course of business;

 

(j)          Investments in securities or other Investments received in settlement of debts created in the ordinary course of business and owing to, or of other claims asserted by, the Company or any Restricted Subsidiary, or as a result of foreclosure, perfection or enforcement of any Lien, or in satisfaction of judgments, including in connection with any bankruptcy proceeding or other reorganization of another Person;

 

(k)         loans and advances to officers, directors or employees (i)(A) in the ordinary course of business, (B) existing on the Closing Date and described in Schedule 8.4, (C) made after the Closing Date for relocation expenses in the ordinary course of business, and (D) for any other purpose satisfactory to Holdings or its Subsidiaries; provided that the aggregate outstanding principal amount of all such Investments under this clause (k)(i) shall not exceed $25,000,000 at any time; and (ii) relating to indemnification of any officers, directors or employees in respect of liabilities relating to their serving in any such capacity, and any reimbursement of any such officer, director or employee of expenses relating to the claims giving rise to such indemnification;

 

(l)          (i) Permitted Acquisitions and (ii) Investments in (x) less than all business or assets of, or stock or other evidences of beneficial ownership of, any Person, or (y) any joint venture or similar arrangement, in any such case in the same business or lines of business (or lines of business substantially similar, or ancillary, complementary or related thereto) in which Holdings and its Subsidiaries are engaged as of the Agreement Date; provided that for clause (l)(ii), (A) the aggregate amount of Investments made under such clause, taken together with the aggregate amount of Indebtedness incurred pursuant to Section 8.1(h)(ii) and the aggregate amount of Investments made pursuant to clause (e)(i)(C) and clause (e)(ii) of this definition, shall not exceed the greater of (I) $705,000,000 and (II) 7.5% of Consolidated Net Tangible Assets at any time and (B) at the time of such Investment, no Default or Event of Default shall have occurred and be continuing (or would result therefrom);

 

(m)         any Investment to the extent that the consideration therefor is Capital Stock (other than Disqualified Stock) of Holdings;

 

(n)         guarantees of Permitted Indebtedness (provided that no Canadian Obligor, ROW Borrower, French Borrower, ANZ Borrower or Excluded Subsidiary may Guarantee any Indebtedness of a U.S. Obligor under this clause (n) unless such Person Guarantees the U.S. Obligations pursuant to a Guarantee agreement reasonably acceptable to the Agent);

 

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(o)         Investments acquired by an Obligor or a Restricted Subsidiary in the ordinary course of business received in settlement of claims against any other Person or a reorganization or similar arrangement of any debtor of such Obligor or Restricted Subsidiary, including upon the bankruptcy or insolvency of such debtor, or as a result of foreclosure, perfection or enforcement of any Lien;

 

(p)         Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices;

 

(q)         advances of payroll payments to employees in the ordinary course of business;

 

(r)         Investments acquired by Holdings or any Subsidiary in connection with an Asset Disposition permitted under Section 8.5(d) to the extent such Investments are non-cash proceeds as permitted under Section 8.5(d);

 

(s)         Investments not to exceed the greater of (i) $940,000,000 and (ii) 10% of Consolidated Net Tangible Assets in the aggregate;

 

(t)         any Investments, so long as the Payment Conditions shall have been satisfied;

 

(u)         Investments in receivables owing to the Company or any Restricted Subsidiary created or acquired in the ordinary course of business; and

 

(v)         any transaction to the extent that it constitutes an Investment that is permitted by and made in accordance with Section 8.4.

 

For purposes of determining compliance with this definition, in the event that any Investment meets the criteria of more than one of the types of Permitted Investments described in the above clauses, the Borrowers’ Agent, in its sole discretion, may from time to time classify and reclassify such Investment and only be required to include the amount and type of such Investment in one of such clauses.

 

“Permitted Liens” has the meaning specified in Section 8.2.

 

“Permitted Priority Borrowing Base Liens” means Permitted Liens described in clauses (f), (g), (j) and (z) of Section 8.2.

 

“Permitted Priority Liens” means Permitted Liens described in clauses (b), (f), (g), (h), (j), (n), (o), (p) (to the extent the Liens that secured the Refinanced Indebtedness were Permitted Priority Liens), (q), (t), (u), (v), (w), (x), (y), (z), (aa), (bb), (dd), (ff) and (jj) of Section 8.2.

 

“Person” means any individual, sole proprietorship, partnership, limited liability company, unlimited liability company, joint venture, trust, unincorporated organization, association, corporation, Governmental Authority, or any other entity.

 

“Plan” means any of (a) an “employee benefit plan” (including such plans as defined in Section 3(3) of ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in Section 4975 of the Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”; in each case which an Obligor sponsors or maintains or to which an Obligor or a Subsidiary of an Obligor makes, is making, or is obligated to make contributions and includes any Pension Plan.

 

“PMP Lender” means: (a) until the competent authority publishes its interpretation of the term “public” (as referred to in article 4.1(1) of the Capital Requirements Regulation (No. 575/2013)), an entity that is a professional market party (any person advancing an amount of at least €100,000 (or acquiring receivables in an aggregate amount of €100,000) is deemed to be a professional market party); or (b) following publication by the competent authority of its interpretation of the term public (as referred to in article 4.1(1) of the Capital Requirements Regulation (No. 575/2013)), such person which does not qualify as forming part of the “public”.

 

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PPSA” means the Personal Property Security Act (Ontario) and the regulations promulgated thereunder, provided, however, if validity, perfection and effect of perfection and non-perfection of the Agent’s security interest in any Collateral of any Canadian Obligor are governed by the personal property security laws of any Canadian jurisdiction other than Ontario, PPSA means those personal property security laws (including the Civil Code of Québec) in such other jurisdiction for the purposes of the provisions hereof relating to such validity, perfection, and effect of perfection and non-perfection and for the definitions related to such provisions, as from time to time in effect.

 

“Previously Absent Financial Maintenance Covenant” means, at any time, any financial maintenance covenant that is not included in the Loan Documents at such time.

 

“Priority Payable Reserves” means reserves established in the Reasonable Credit Judgment of the Agent for amounts secured by any Liens, choate or inchoate or any deemed trusts arising under Laws, which rank or are capable of ranking in priority to the Agent’s Liens.

 

“Pro Rata Revolving Credit Commitment” means, at any date for any Lender, the obligation of such Lender to make Pro Rata Revolving Loans and to purchase participations in Letters of Credit and Swingline Loans (other than French Swingline Loans) pursuant to the terms and conditions of this Agreement, which shall not exceed the aggregate principal amount set forth on Schedule 1.1 under the heading “Pro Rata Revolving Credit Commitment” or on the signature page of the Assignment and Acceptance by which it became a Lender, as modified from time to time pursuant to the terms of this Agreement or to give effect to any applicable Assignment and Acceptance; and “Pro Rata Revolving Credit Commitments” means the aggregate principal amount of the Pro Rata Revolving Credit Commitments of all Lenders.

 

“Pro Rata Revolving Credit Lender” means a Lender with a Pro Rata Revolving Credit Commitment or an outstanding Pro Rata Revolving Loan.

 

“Pro Rata Revolving Loans” means the U .S. Revolving Loans, the ROW Revolving Loans, the Canadian Revolving Loans and the French Swingline Loans, as the context requires.

 

“Pro Rata Share” means (a) except as set forth in clauses (b) and (c) below, with respect to a Lender, a fraction (expressed as a percentage), the numerator of which is the amount of such Lender’s Revolving Credit CommitmentCommitments and the denominator of which is the sum of the amounts of all of the Lenders’ Revolving Credit Commitments, or if no Revolving Credit Commitments are outstanding, a fraction (expressed as a percentage), (ai) the numerator of which is the Equivalent Amount in Dollars of the sum (without duplication) of the aggregate amount of the Revolving Loans owed to such Lender plus such Lender’s participation in the aggregate maximum amount available to be drawn under all outstanding Letters of Credit, plus such Lender’s participation in the aggregate amount of any unpaid reimbursement obligations in respect of Letters of Credit and (bii) the denominator of which is the Equivalent Amount in Dollars of the sum (without duplication) of the aggregate amount of the Revolving Loans owed to the Lenders, plus the aggregate maximum amount available to be drawn under all outstanding Letters of Credit, plus the aggregate amount of any unpaid reimbursement obligations in respect of Letters of Credit, in each case giving effect to a Lender’s participation in Swingline Loans and Agent Advances.

 

(b)         solely in the context of the Pro Rata Revolving Credit Commitments, with respect to a Lender, a fraction (expressed as a percentage), the numerator of which is the amount of such Lender’s Pro Rata Revolving Credit Commitment and the denominator of which is the sum of the amounts of all of the Lenders’ Pro Rata Revolving Credit Commitments, or if no Pro Rata Revolving Credit Commitments are outstanding, a fraction (expressed as a percentage), (i) the numerator of which is the Equivalent Amount in Dollars of the sum (without duplication) of the aggregate amount of the Pro Rata Revolving Loans owed to such Lender plus such Lender’s participation in the aggregate maximum amount available to be drawn under all outstanding Letters of Credit, plus such Lender’s participation in the aggregate amount of any unpaid reimbursement obligations in respect of Letters of Credit and (ii) the denominator of which is the Equivalent Amount in Dollars of the sum (without duplication) of the aggregate amount of the Pro Rata Revolving Loans owed to the Lenders, plus the aggregate maximum amount available to be drawn under all outstanding Letters of Credit, plus the aggregate amount of any unpaid reimbursement obligations in respect of Letters of Credit, in each case giving effect to a Lender’s participation in Swingline Loans and Agent Advances; and

 

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(c)         solely in the context of the ANZ Revolving Credit Commitments, with respect to a Lender, a fraction (expressed as a percentage), the numerator of which is the amount of such Lender’s ANZ Revolving Credit Commitment and the denominator of which is the sum of the amounts of all of the Lenders’ ANZ Revolving Credit Commitments, or if no ANZ Revolving Credit Commitments are outstanding, a fraction (expressed as a percentage), (i) the numerator of which is the Equivalent Amount in Dollars of the sum (without duplication) of the amount of the ANZ Revolving Loans owed to such Lender and (ii) the denominator of which is the Equivalent Amount in Dollars of the sum (without duplication) of the aggregate amount of the ANZ Revolving Loans owed to the Lenders, in each case giving effect to a Lender’s participation in Swingline Loans.

 

“Pro Rata Unused Line Fee” has the meaning specified in Section 3.5.

 

Progress Billing” means any invoice for goods sold or services rendered under a contract or agreement pursuant to which the Account Debtor’s obligation to pay such invoice is conditioned upon any Obligor’s or any Subsidiary of an Obligor’s completion of any further performance under the contract or agreement; provided that in no event will any invoice for rent under a Lease be considered a Progress Billing.

 

Proposed Change” has the meaning specified in Section 12.1(b).

 

Proprietary Rights” means all of each Obligor’s and each of its Subsidiary’s now owned or hereafter arising or acquired patents, patent rights, industrial designs, copyrights, works which are the subject matter of copyrights, trademarks, service marks, trade names, trade dress, designs, and patent, trademark and service mark applications, and all licenses and rights related to any of the foregoing, and all other rights under any of the foregoing, all extensions, renewals, reissues, divisions, continuations, and continuations-in-part of any of the foregoing, and all rights to sue for past, present and future infringement of any of the foregoing.

 

PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.

 

Purchase Money Obligations” means any Indebtedness incurred to finance or refinance the acquisition, leasing, construction or improvement of property (real or personal) or assets (including Capital Stock), and whether acquired through the direct acquisition of such property or assets or the acquisition of the Capital Stock of any Person owning such property or assets, or otherwise; provided that such Indebtedness is incurred within 180 days after such acquisition.

 

“QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).

 

“QFC Credit Support” has the meaning specified in Section 14.28.

 

Qualified Intermediary” means any Person acting in its capacity as a qualified intermediary to facilitate any Like-Kind Exchange or operate and/or own a Like-Kind Exchange Account.

 

Ratio Debt” has the meaning specified in Section 8.1(j).

 

Real Estate” means all of each Obligor’s and each of its Subsidiaries now or hereafter owned or leased estates in real property, including all fees, leaseholds and future interests, together with all of each Obligor’s and each of its Subsidiaries’ now or hereafter owned or leased interests in the improvements thereon, the fixtures attached thereto and the easements appurtenant thereto.

 

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“Reallocation” has the meaning specified in Section 4.3(c).

 

Reasonable Credit Judgment” means, as applicable, the Agent’s reasonable (from the perspective of a secured asset-based lender) judgment, exercised in good faith in accordance with customary business practices of the Agent for comparable asset-based lending transactions, as to any reserve or eligibility criteria which the Agent, as applicable, reasonably determines as being appropriate to reflect: (a) items that could reasonably be expected to adversely affect the Agent’s ability to realize upon the Collateral, (b) costs, expenses and other amounts that the Agent reasonably determines will need to be satisfied in connection with the realization upon the Collateral or (c) criteria, events, conditions, contingencies or risks that differ materially from facts or events occurring and known to the Agent on the Agreement Date and which directly and adversely affect any component of the applicable Borrowing Base.

 

Receivables Entity” means a trust, bankruptcy remote entity or other special purpose entity which is a Subsidiary of the Company or Holdings (or, if not a Subsidiary of the Company or Holdings, the common equity of which is wholly owned, directly or indirectly, by the Company or Holdings) and which is formed for the purpose of, and engages in no material business other than, acting as an issuer or a depositor in a Receivables Securitization Transaction (and, in connection therewith, owning accounts receivable, lease receivables, other rights to payment, leases and related assets and pledging or transferring any of the foregoing or interests therein).

 

Receivables Securitization Transaction” means any sale, discount, assignment, conveyance, participation, contribution to capital, grant of security interest in, pledge or other transfer by the Company or any Subsidiary of the Company of accounts receivable, lease receivables or other payment obligations owing to the Company or such Subsidiary of the Company or any interest in any of the foregoing, together in each case with any collections and other proceeds thereof, any collection or deposit account related thereto, and any collateral, guarantees or other property (other than Inventory or Equipment) or claims supporting or securing payment by the obligor thereon of, or otherwise related to, or subject to leases giving rise to, any such receivables.

 

Refinance” has the meaning specified in the definition of “Refinancing Indebtedness”.

 

Refinanced Debt” has the meaning specified in Section 2.7(a).

 

Refinancing Amendment” has the meaning specified in Section 2.7(f).

 

Refinancing Closing Date” has the meaning specified in Section 2.7(d).

 

Refinancing Commitments” has the meaning specified in Section 2.7(a).

 

Refinancing Indebtedness” means with respect to any Indebtedness (the “Refinanced Indebtedness”), any other Indebtedness which extends, refinances, refunds, replaces or renews (collectively, “Refinance”) such Indebtedness; provided that (a) the principal amount (or accreted value, if applicable) of such Refinancing Indebtedness does not exceed the principal amount (or accreted value, if applicable) of the Refinanced Indebtedness except by an amount equal to unpaid accrued interest and premium (including applicable prepayment or redemption penalties) thereof plus fees and expenses incurred in connection therewith plus an amount equal to any existing commitment unutilized and letters of credit undrawn thereunder, (b) any Liens securing such Refinancing Indebtedness do not attach to any property of any Obligor that did not secure the Refinanced Indebtedness, (c) if the Refinanced Indebtedness is Subordinated Indebtedness, such extension, refinancing, refunding, replacement or renewal does not result in the Refinancing Indebtedness having a shorter maturity than the Refinanced Indebtedness (or if shorter, the Loans), and (d) if the Refinanced Indebtedness is Subordinated Indebtedness, then the terms and conditions of the Refinancing Indebtedness shall include subordination terms and conditions that are no less favorable to the Lenders in all material respects as those that were applicable to the Refinanced Indebtedness.

 

Refinancing Lenders” has the meaning specified in Section 2.7(c).

 

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Refinancing Loan” has the meaning specified in Section 2.7(b).

 

Refinancing Loan Request” has the meaning specified in Section 2.7(a).

 

Refinancing Revolving Commitments” has the meaning specified in Section 2.7(a).

 

Refinancing Revolving Lender” has the meaning specified in Section 2.7(c).

 

Refinancing Revolving Loan” has the meaning specified in Section 2.7(b).

 

Refinancing Term Commitments” has the meaning specified in Section 2.7(a).

 

Refinancing Term Lender” has the meaning specified in Section 2.7(c).

 

Refinancing Term Loan” has the meaning specified in Section 2.7(b).

 

Register” has the meaning specified in Section 13.21.

 

Related Parties” means with respect to any Person, such Person’s Affiliates and the partners, officers, directors, trustees, employees, shareholders, members, attorneys and other advisors, agents and controlling persons of such Person and of such Person’s Affiliates and “Related Party” shall mean any of them.

 

Release” means a release, spill, emission, leaking, pumping, injection, deposit, disposal, discharge, dispersal, leaching or migration of a Contaminant into the indoor or outdoor environment or into or out of any Real Estate or other property, including the movement of Contaminants through or in the air, soil, surface water, groundwater or Real Estate or other property.

 

“Relevant Governmental Body” means (a) with respect to a Benchmark Replacement in respect of Loans denominated in Dollars, the Federal Reserve Board or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board or the Federal Reserve Bank of New York, or any successor thereto, (b) with respect to an Alternative Currency Benchmark Replacement in respect of Loans denominated in Sterling, the Bank of England, or a committee officially endorsed or convened by the Bank of England or, in each case, any successor thereto, (c) with respect to an Alternative Currency Benchmark Replacement in respect of Loans denominated in Euros, the European Central Bank, or a committee officially endorsed or convened by the European Central Bank or, in each case, any successor thereto and (d) with respect to an Alternative Currency Benchmark Replacement in respect of Loans denominated in any other currency, (i) the central bank for the currency in which such Alternative Currency Benchmark Replacement is denominated or any central bank or other supervisor which is responsible for supervising either (A) such Alternative Currency Benchmark Replacement or (B) the administrator of such Alternative Currency Benchmark Replacement or (ii) any working group or committee officially endorsed or convened by (A) the central bank for the currency in which such Alternative Currency Benchmark Replacement is denominated, (B) any central bank or other supervisor that is responsible for supervising either (x) such Alternative Currency Benchmark Replacement or (y) the administrator of such Alternative Currency Benchmark Replacement, (C) a group of those central banks or other supervisors or (D) the Financial Stability Board or any part thereof.

 

Relinquished Property” has the meaning specified in the definition of “Like-Kind Exchange”.

 

Rent Reserves” means such reserves as may be established from time to time by the Agent in its Reasonable Credit Judgment with respect to leased locations or bailees of the Obligors where Eligible Rental Equipment or Eligible Merchandise and Consumables Inventory is located to the extent the Agent has not received a Collateral Access Agreement from the lessor or bailee at any such location, provided that such reserves for any location shall not exceed two months’ rent at such location.

 

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Rental Equipment” means tangible personal property which is offered for sale or rent (or offered for sale as used equipment) by an Obligor in the ordinary course of its business or used in the business of the Obligors and their Subsidiaries and included in fixed assets in the consolidated accounts of Holdings, including Inventory that Holdings currently describes as “rental equipment” in such consolidated accounts, but excluding any Merchandise and Consumables Inventory.

 

Replacement Property” has the meaning specified in the definition of “Like-Kind Exchange”.

 

Report” and “Reports” each has the meaning specified in Section 13.18(a).

 

Reportable Event” means any of the events set forth in Section 4043(c) of ERISA or the regulations thereunder, other than any such event for which the 30-day notice requirement under ERISA has been waived in regulations issued by the PBGC.

 

Required Lenders” means, at any time, Lenders having Revolving Credit Commitments representing at least 50.1% of the aggregate Revolving Credit Commitments at such time (excluding the Revolving Credit Commitment of any Lender that is a Defaulting Lender); provided, however, that if the Revolving Credit Commitments have been terminated, the term “Required Lenders” means Lenders holding Revolving Loans (including Swingline Loans) representing at least 50.1% of the aggregate principal amount of Revolving Loans (including Swingline Loans) outstanding at such time (excluding Revolving Loans of any Lender that is a Defaulting Lender).

 

Requirement of Law” means, as to any Person, any law (statutory or common), treaty, rule or regulation or determination of an arbitrator or of a Governmental Authority, in each case applicable to or binding upon the Person or any of its property or to which the Person or any of its property is subject.

 

“Rescindable Amount” has the meaning specified in Section 4.8.

 

Reserves” means reserves that limit the availability of credit hereunder, consisting of reserves against Availability, Eligible Merchandise and Consumables Inventory and Eligible Rental Equipment, including (a) Bank Product Reserves, (b) Rent Reserves, (c) warehousemen’s and bailees’ charges, (d) Priority Payable Reserves and (e) Availability Reserves, established, in the case of reserves other than Pari Passu Debt Reserves and Waterfall Priority Hedge Agreement Reserves, by the Agent from time to time in the Agent’s Reasonable Credit Judgment in accordance with Section 2.9 of this Agreement and, in the case of Pari Passu Debt Reserves and Waterfall Priority Hedge Agreement Reserves, in accordance with such definitions.

 

“Resolution Authority” means an EEA Resolution Authority or, with respect to any U.K. Financial Institution, a U.K. Resolution Authority.

 

Responsible Officer” means the President, any Vice President, Chief Executive Officer, Chief Financial Officer, Secretary, Assistant Secretary, Treasurer, Assistant Treasurer, legal counsel, or any other executive or financial officer of Holdings or any other Obligor, or any other officer having substantially the same authority and responsibility; or, with respect to compliance with financial covenants and the preparation of the Borrowing Base Certificate, the president, chief financial officer or treasurer of Holdings, or any other officer having substantially the same authority and responsibility.

 

Restricted Subsidiary” means any Subsidiary of Holdings that is not an Unrestricted Subsidiary.

 

Revolving Credit Commitments” means, at any date for any Lender, the obligation of such Lender to make Revolving Loans and to purchase participations in Letters of Credit and Swingline Loans (other than French Swingline Loans) pursuant to the terms and conditions of this Agreement, which shall not exceed the aggregate principal amount set forth on Schedule 1.1 under the heading “Revolving Credit Commitment” or on the signature page of the Assignment and Acceptance by which it became a Lender, as modified from time to time pursuant to the terms of this Agreement or to give effect to any applicable Assignment and Acceptance; and “ the Pro Rata Revolving Credit Commitments” means the aggregate principal amount of the and the ANZ Revolving Credit Commitments of all Lenders, as the context requires.

 

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Revolving Credit Lender” means a Lender with a Revolving Credit Commitment or an outstanding Revolving Loan.

 

Revolving Loans” means the U.S. Revolving Loans, the ROW Revolving Loans, the Canadian Revolving Loans and, the French Swingline Loans and the ANZ Revolving Loans, as the context requires.

 

ROW Borrowers” has the meaning specified in the introductory paragraph to this Agreement.

 

ROW Credit Facilities” means the revolving credit and swingline facilities provided for by this Agreement extended to the ROW Borrowers.

 

ROW Obligations” means, with respect to the Indebtedness of the ROW Borrowers under the Loan Documents, any principal, premium (if any), interest (including interest accruing on or after the filing of any petition in bankruptcy or for reorganization relating to any ROW Borrower whether or not a claim for post-filing interest is allowed in such proceedings), fees, charges, expenses, reimbursement obligations, Guarantees of such Indebtedness (or of Obligations in respect thereof), other monetary obligations of any ROW Borrower of any nature and all other amounts payable by any ROW Borrower under the Loan Documents or in respect thereof; provided that, “ROW Obligations” shall in any event include Designated Bank Products Obligations of any ROW Borrower; provided, further, that “ROW Obligations” shall not include any Canadian Obligations, French Obligations or, U.S. Obligations or ANZ Obligations.

 

ROW Revolving Loans” means the revolving loans made to the ROW Borrowers pursuant to Section 2.1(ca)(iii) or any amendment to this Agreement entered into pursuant to Section 2.5, 2.6 or 2.7, each Agent Advance made to a ROW Borrower and each ROW Swingline Loan.

 

ROW Swingline Commitment” means the commitment of the ROW Swingline Lender to make loans pursuant to Section 2.3(b).

 

ROW Swingline Lender” means the London Bank or any successor financial institution agreed to by the Borrowers’ Agent and the Agent, in its capacity as provider of ROW Swingline Loans.

 

ROW Swingline Loan” and “ROW Swingline Loans” have the meanings specified in Section 2.3(b).

 

ROW Swingline Loan Minimum” means (a) in the case of a ROW Swingline Loan denominated in Dollars, $100,000, (b) in the case of a ROW Swingline Loan denominated in Euro, €100,000 and (c) in the case of a ROW Swingline Loan denominated in Sterling, £100,000.

 

ROW Swingline Loan Multiple” means (a) in the case of a ROW Swingline Loan denominated in Dollars, $50,000, (b) in the case of a ROW Swingline Loan denominated in Euro, €50,000 and (c) in the case of a ROW Swingline Loan denominated in Sterling, £50,000.

 

ROW Swingline Sublimit” has the meaning specified in Section 2.3(b).

 

RSC Merger” means the merger of RSC Holdings Inc. with and into Holdings, as effected on and subsequent to April 30, 2012.

 

RSC Merger Transactions” means the transactions necessary to effect the RSC Merger, including (a) the RSC Merger, (b) the merger of all of the U.S. Subsidiaries of RSC Holdings Inc. and their successors in interest into one or more Subsidiaries of Holdings, (c) the mergers of one or more U.S. Subsidiaries of Holdings into one or more other U.S. Subsidiaries of Holdings, (d) the merger, amalgamation, consolidation and/or liquidation of RSC Holdings Inc.’s Foreign Subsidiaries into one or more Foreign Subsidiaries of the Company, (e) the issuance of debt securities and borrowings under the Existing Loan Agreement in connection with the RSC Merger and (f) any other transactions contemplated in connection with the RSC Merger and any other financing transactions in connection with the RSC Merger.

    

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“RWT-Exempt Status” means “RWT-exempt status” as defined in section YA1 of the Income Tax Act 2007.

 

S&P” means S&P Global Ratings, or any successor thereto.

 

Sanctioned Country” means a country or territory that is, or whose government is, the subject of economic sanctions administered or enforced by the U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC), the U.S. Department of State, other relevant sanctions authority of the United States or Canada, the United Nations Security Council, the European Union or any member state thereof in which an Obligor is organized or Her Majesty’s Treasury of the United Kingdom under any Sanctions Law.

 

Sanctioned Person” means a Person that is the target of any sanctions under any Sanctions Laws.

 

“Sanctions Laws” means any law relating to economic sanctions or anti-terrorism, including any law administered or enforced by the U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC), U.S. Department of State, other relevant sanctions authority of the United States or Canada, the United Nations Security Council, the European Union or any member state thereof in which an Obligor is organized or Her Majesty’s Treasury of the United Kingdom.

 

Scheduled Unavailability Date” has the meaning specified in Section 5.7(b).

 

SEC” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.

 

Second Currency” has the meaning specified in Section 14.20.

 

Section 2.6 Additional Amendment” has the meaning specified in Section 2.6(c).

 

Secured Obligors” means, collectively, the U.S. Borrowers, the Canadian Borrowers, the U.S. Guarantors and the Canadian Guarantors.

 

Secured Parties” means, collectively, the Agent, each Lender, each affiliate or branch of any Lender that makes Loans pursuant to Section 2.2(c), each Bank, each Letter of Credit Issuer, the Indemnified Persons and each of the Agent, any Lender or Affiliate or branch of the Agent or such Lender to which is owed Designated Bank Products Obligations.

 

Securitization Transaction” means any Equipment Securitization Transaction or Receivables Securitization Transaction.

 

Security Documents” means the U.S. Security Documents and the Canadian Security Documents.

 

September 2017 4⅞% Senior Note Indenture” means that certain Indenture dated as of September 22, 2017 among the Company, Holdings, certain subsidiaries of the Company and Wells Fargo Bank, National Association, as Trustee.

 

September 2017 4⅞% Senior Notes” means the 4⅞% Senior Notes due 2028 issued by the Company pursuant to the September 2017 4⅞% Senior Note Indenture.

 

Settlement” and “Settlement Date” have the meanings specified in Section 13.15(a)(i).

     

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Significant Subsidiary” means any Restricted Subsidiary that would be a significant subsidiary of Holdings as determined in accordance with the definition in Rule 1-02(w) of Article 1 of Regulation S-X promulgated by the SEC and as in effect on the Agreement Date.

 

“SOFR” has the meaning specified in the definition of “Daily Simple SOFR”.

 

“SOFR Early Opt-in” means the Agent and the Borrowers’ Agent have elected to replace USD LIBOR pursuant to (1) an Early Opt-in Election and (2) Section 5.7(a) and paragraph (1) of the definition of “Benchmark Replacement”.

 

Solidary Claim” has the meaning specified in Section 13.22.

 

Solvent” or “Solvency” means, when used with respect to any Person, that at the time of determination:

 

(a)        the assets of such Person, at a fair valuation, are in excess of the total amount of its debts (including contingent liabilities);

 

(b)        the present fair saleable value of its assets is greater than its probable liability on its existing debts as such debts become absolute and matured;

 

(c)        it is then able and expects to be able to pay its debts (including contingent debts and other commitments) as they mature; and

 

(d)       it has capital sufficient to carry on its business as conducted and as proposed to be conducted.

 

For purposes of determining whether a Person is Solvent, the amount of any contingent liability shall be computed as the amount that, in light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.

 

“SONIA” means, with respect to any Business Day, a rate per annum equal to the Sterling Overnight Index Average for such Business Day published by the SONIA Administrator on the SONIA Administrator’s Website on the immediately succeeding Business Day.

 

“SONIA Administrator” means the Bank of England (or any successor administrator of the Sterling Overnight Index Average).

 

“SONIA Administrator’s Website” means the Bank of England’s website, currently at http://www.bankofengland.co.uk, or any successor source for the Sterling Overnight Index Average identified as such by the SONIA Administrator from time to time.

 

“SONIA Rate” when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to Daily Simple SONIA.

 

“SONIA Rate Loan” means a Loan during any period in which it bears interest based on Daily Simple SONIA.

 

Special Purpose Vehicle” means any ES Special Purpose Vehicle or Receivables Entity.

 

Specified Availability” means, as of any date of determination and without duplication, the sum of (a) Combined Availability, (b) Suppressed Availability (if positive) and (c) Unrestricted Cash of Holdings, any Borrower and any Restricted Subsidiary (i) held in any bank account or securities account in the United States or Canada subject to a Control Agreement or (ii) held in an account with the Agent (other than an account referred to in clause (a), (b) or (c) of the definition of “Material Account”); provided that for the purpose of calculating Specified Availability, not more than 50% of any threshold or test based on Specified Availability may be satisfied with Suppressed Availability. The Company shall use its commercially reasonable efforts to afford the Agent access to electronically monitor on a current basis any accounts referred to in clause (c); provided that, so long as the Company uses its commercially reasonable efforts to provide such access, such access shall not be a condition to whether amounts in such accounts are considered part of Specified Availability.

    

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Specified Default” means any Event of Default pursuant to paragraphs (a), (e), (f) or (h) of Section 10.1, any material misrepresentation of the Borrowing Base in a Borrowing Base Certificate, the failure to deliver a Borrowing Base Certificate in a timely manner in accordance with Section 7.4(a) or any Event of Default arising from a material breach of Section 7.17.

 

Specified Existing Commitment” has the meaning specified in Section 2.6(a).

 

Specified Transaction” means any (a) Investment, (b) sale or other disposition of assets (including any disposal, abandonment or discontinuance of operations) other than in the ordinary course of business, (c) incurrence, repayment or refinancing of Indebtedness, (d) Permitted Distribution, (e) designation or redesignation of an Unrestricted Subsidiary or Restricted Subsidiary, (f) provision of Incremental Revolving Commitment increases or (g) other event or transaction, in each case that by the terms of the Loan Documents requires pro forma compliance with a test or covenant hereunder or requires such test or covenant to be calculated on a “pro forma basis.”

 

Standard Securitization Undertakings” means representations, warranties, covenants and indemnities entered into by Holdings or any of its Restricted Subsidiaries that are reasonably customary in a Securitization Transaction.

 

Sterling” or “£” means the lawful currency of the United Kingdom of Great Britain and Northern Ireland.

 

Subordinated Indebtedness” means any Indebtedness expressly subordinated in writing to, or required under the Loan Documents to be subordinated to, any Indebtedness under the Loan Documents, except any Indebtedness that is subject to Lien subordination but not payment subordination.

 

Subsidiary” of a Person means any corporation, association, partnership, limited liability company, unlimited liability company, joint venture or other business entity of which more than 50% of the voting stock or other equity interests (in the case of Persons other than corporations), is owned or controlled directly or indirectly by the Person, or one or more of the Subsidiaries of the Person, or a combination thereof. Unless the context otherwise clearly requires, references herein to a “Subsidiary” refer to a Subsidiary of Holdings.

 

Supermajority Lenders” means, at any time, Lenders having Revolving Credit Commitments representing at least 66% of the aggregate Revolving Credit Commitments at such time (excluding the Revolving Credit Commitment of any Lender that is a Defaulting Lender); provided, however, that if the Revolving Credit Commitments have been terminated, the term “Supermajority Lenders” means Lenders holding Revolving Loans (including Swingline Loans) representing at least 66% of the aggregate principal amount of Revolving Loans (including Swingline Loans) outstanding at such time (excluding Revolving Loans of any Lender that is a Defaulting Lender).

 

“Supported QFC” has the meaning specified in Section 14.28.

 

Supporting Letter of Credit” has the meaning specified in Section 2.4(g).

 

Suppressed Availability” means (a) the amount of the Combined Borrowing Base minus (b) the Maximum Revolver Amount.

 

Swap Obligation” means, with respect to any Guarantor, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act.

      

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Swingline Lender” means the U.S. Swingline Lender, the ROW Swingline Lender, the Canadian Swingline Lender, the French Swingline Lender or the FrenchANZ Swingline Lender, as the context requires.

 

Swingline Loan” and “Swingline Loans” means the collective reference to the U.S. Swingline Loan or U.S. Swingline Loans, the ROW Swingline Loan or ROW Swingline Loans, the Canadian Swingline Loan or the Canadian Swingline Loans or, the French Swingline Loan or the French Swingline Loans or the ANZ Swingline Loan or the ANZ Swingline Loans, in each case as the context requires.

 

“TARGET Day” means any day on which the Trans- European Automated Real-Time Gross Settlement Express Transfer payment system, which utilizes a single shared platform and which was launched on November 19, 2007, is open for the settlement of payments in Euro.

 

Taxes” means any and all present or future taxes, levies, imposts, deductions, charges or withholdings and all liabilities (including interest, penalties and additions to tax) with respect thereto, in each case in the nature of a tax, imposed by any Governmental Authority.

 

“TEG Letter” has the meaning specified in Section 3.1(c).

 

“Term SOFR” means, for the applicable corresponding tenor (or if any Available Tenor of a Benchmark does not correspond to an Available Tenor for the applicable Benchmark Replacement, the closest corresponding Available Tenor and if such Available Tenor corresponds equally to two Available Tenors of the applicable Benchmark Replacement, the corresponding tenor of the shorter duration shall be applied), the forward-looking term rate based on SOFR that has been selected or recommended by the Relevant Governmental Body.

 

Termination Date” means the earliest to occur of (a) the Maturity Date, (b) the date the Commitments are terminated either by the Borrowers pursuant to Section 4.3 or by the Required Lenders pursuant to Section 10.2, and (c) the date this Agreement is otherwise terminated pursuant to the terms of this Agreement.

 

Titled Goods” means vehicles and similar items that are (a) subject to certificate-of-title statutes or regulations under which a security interest in such items are perfected by an indication on the certificates of title of such items (in lieu of filing of financing statements under the UCC), (b) evidenced by certificates of ownership or other registration certificates issued or required to be issued under the laws of any jurisdiction or (c) motor vehicles” for purposes of the PPSA.

 

TLB Agent” means Bank of America, as agent under the TLB Credit Agreement.

 

TLB Credit Agreement” means the Credit and Guarantee Agreement, dated as of October 31, 2018, among Holdings, the Company, each subsidiary of the Company party thereto, the lenders from time to time party thereto and Bank of America, N.A., as TLB Agent.

 

Total Indebtedness Leverage Ratio” means on any date of determination, a ratio (a) the numerator of which is the aggregate principal amount (or accreted value, as the case may be) of Indebtedness for borrowed money of the Consolidated Parties on a consolidated basis outstanding on such date, less the amount of cash and Cash Equivalents that (i) would be stated on the consolidated balance sheet of the Consolidated Parties and held by the Consolidated Parties, as determined in accordance with GAAP, as of the date of determination, and (ii) constitutes (A) Unrestricted Cash, (B) cash and Cash Equivalents restricted in favor of the Obligations (which may also include cash and Cash Equivalents securing other Indebtedness that is secured by a Permitted Lien on the Collateral on a pari passu or junior lien basis with the Obligations) or (C) to the extent such Indebtedness is included in clause (a) above, proceeds of Indebtedness incurred to finance a Permitted Acquisition or other permitted Investment that are subject to customary escrow or similar arrangements pending consummation of such Permitted Acquisition or other Investment, and (b) the denominator of which is the Consolidated EBITDA for the most recent period of four consecutive Fiscal Quarters for which financial information in respect thereof is available, in each case calculated on a pro forma basis.

     

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Transactions” means, collectively, (a) the amendment and restatement of the Existing Loan Agreement, (b) the execution, delivery and performance by the Obligors of the Loan Documents to which they are a party and the making of the borrowings hereunder and (c) the payment of related fees and expenses in connection with each of the foregoing.

 

Type” means any type of a Loan determined with respect to the interest option applicable thereto, which shall be a LIBOR Loan, a BA Equivalent Loan, a Base Rate Loan or, a Canadian Prime Rate Loan, a SONIA Rate Loan or a Bank Bill Rate Loan.

 

UCC” means the Uniform Commercial Code, as in effect from time to time, of the State of New York or of any other state the laws of which are required as a result thereof to be applied in connection with the issue of perfection of security interests.

 

U.K. Borrower” means any Borrower (a) that is organized or formed under the laws of any constituent part of the United Kingdom or (b) payment from which under this Agreement or any other Loan Document are subject to withholding Taxes imposed by the laws of the United Kingdom.

 

“U.K .. Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended form time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.

 

“U.K. Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any U.K. Financial Institution.

 

Unfunded Foreign Borrowing Participation” means, in respect of any Participating Canadian Lender’s or Participating ROW Lender’s Foreign Borrowing Participation in any Canadian Revolving Loan or ROW Revolving Loan, respectively, funded by Bank of America and subject to Section 2.10, the outstanding principal amount of such Foreign Borrowing Participation minus the amount of such Participating Canadian Lender’s or Participating ROW Lender’s Funded Foreign Borrowing Participation in such Canadian Revolving Loan or ROW Revolving Loan, respectively.

 

Unfunded Pension Liability” means (a) with respect to a Pension Plan that is not a Canadian DB Pension Plan, the excess of a Pension Plan’s benefit liabilities under Section 4001(a)(16) of ERISA or other applicable law, over the current value of that Pension Plan’s assets, determined in accordance with the assumptions used for funding the Pension Plan pursuant to Section 412 of the Code or other applicable laws for the applicable plan year or, (b) with respect to any Canadian DB Pension Plan, any unfunded liability or solvency deficiency as determined for the purposes of the PBA on a “wind-up basis” that is set out in the actuarial valuation report most recently filed with a Governmental Authority.

 

Unrestricted Cash” means cash and Cash Equivalents, other than (a) as disclosed in the consolidated financial statements of the Consolidated Parties as a line item on the balance sheet as “restricted cash” and (b) cash and Cash Equivalents of any Subsidiary to the extent such cash and Cash Equivalents are not permitted by applicable law or regulation to be dividended, distributed or otherwise transferred to a Borrower or any Restricted Subsidiary that is not subject to a similar restriction.

 

Unrestricted Subsidiary” means (a) United Rentals Receivables LLC II, (b) any other Special Purpose Vehicle, (c) any Subsidiary of Holdings (other than a Borrower) designated by the Borrowers’ Agent as an Unrestricted Subsidiary hereunder by written notice to the Agent and (d) any Subsidiary of an Unrestricted Subsidiary; provided that the Borrowers’ Agent shall only be permitted to designate a new Unrestricted Subsidiary pursuant to clause (c) above after the Closing Date if (i) no Default or Event of Default has occurred and is continuing or would result therefrom, (ii) such Unrestricted Subsidiary is capitalized (to the extent capitalized by Holdings or any of the Subsidiaries) through Investments as permitted by, and in compliance with, Section 8.4, and any prior or concurrent Investments in such Subsidiary by Holdings or any of its Restricted Subsidiaries shall be deemed to have been made under Section 8.4, (iii) without duplication of clause (ii), any assets owned by such Unrestricted Subsidiary at the time of the initial designation thereof are treated as Investments pursuant to Section 8.4, (iv) at the time such Subsidiary is designated an Unrestricted Subsidiary, (x) the Fixed Charge Coverage Ratio (as defined in the TLB Credit Agreement as in effect on the Agreement Date), determined on a pro forma basis, is not less than 2.00:1.00 or (y) the Payment Conditions are satisfied and (v) after giving effect to such designation, no Out-of-Formula Condition exists; provided, further, that at the time of such designation, (x) the aggregate total assets of all Unrestricted Subsidiaries shall not exceed 10% of the total assets of Holdings and its Subsidiaries as at such date and (y) the aggregate total revenues of all Unrestricted Subsidiaries shall not exceed 10% of the total revenues of Holdings and its Subsidiaries for the four consecutive Fiscal Quarter period most recently ended for which financial statements are available. The Borrowers’ Agent may designate any Unrestricted Subsidiary to be a Restricted Subsidiary for purposes of this Agreement at any time; provided that (A) such Unrestricted Subsidiary, after giving effect to such designation, shall be a Wholly Owned Subsidiary of Holdings and (B) no Default or Event of Default shall have occurred and be continuing or would result therefrom. Each Unrestricted Subsidiary as of the Closing Date shall be set forth in Schedule 1.4. Notwithstanding the foregoing, for so long as the TLB Credit Agreement is in effect or any other secured Indebtedness incurred pursuant to Section 8.1(c) or otherwise secured pursuant to Section 8.2(c) or 8.2(ii) is outstanding in a principal amount in excess of $200,000,000, in no event shall any Subsidiary that is a “Restricted Subsidiary” under the TLB Credit Agreement or such other secured Indebtedness, as applicable, be designated as an Unrestricted Subsidiary hereunder.

     

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Unused Letter of Credit Subfacility” means an amount equal to the Letter of Credit Subfacility minus the Equivalent Amount in Dollars of the sum of (a) the aggregate undrawn amount of all outstanding Letters of Credit plus, without duplication, (b) the aggregate unpaid reimbursement obligations with respect to all Letters of Credit.

 

Unused Line Fee” has the meaning specified in Section 3.5.

 

UR Canada” has the meaning specified in the introductory paragraph to this Agreement.

 

U.S. Availability” means, at any time, (a) the lesser of (i) the Maximum Revolver Amount and (ii) the U.S. Borrowing Base, minus (b) the sum of (i) the Aggregate U.S. Revolver Outstandings, (ii) the Aggregate ROW Revolver Outstandings, (iii) the Aggregate French Swingline Outstandings and, (iv) the Aggregate Canadian Revolver Outstandings Funded On U.S. Borrowing Base and (v) the Aggregate ANZ Revolver Outstandings.

 

U.S. Bank” means Bank of America, N.A., a national banking association, or any successor entity thereto.

 

U.S. Borrowers” has the meaning specified in the introductory paragraph to this Agreement.

 

U.S. Borrowing Base” means, at any time, an amount in Dollars equal to:

 

(a)       the sum of

 

(i)        the lesser of (x) $100,000,000 and (y) the Merchandise and Consumables Inventory Formula Amount with respect to the U.S. Obligors; plus

 

(ii)        the lesser of (x) 100% of the Net Book Value of Eligible Rental Equipment of the U.S. Obligors and (y) 85% of the Net Orderly Liquidation Value of the Eligible Rental Equipment of the U.S. Obligors; minus

 

(b)        the sum of (i) the amount of Pari Passu Debt Reserves with respect to Indebtedness of the U.S. Obligors, plus (ii) the amount of all other Reserves related to the U.S. Credit Facilities, the ROW Credit Facilities and/or, the French Credit Facility and/or the ANZ Credit Facilities from time to time established by the Agent in accordance with Section 2.9 of this Agreement or in accordance with the definition of “Waterfall Priority Hedge Agreement Reserve”.

        

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U.S. Collateral” means all of the U.S. Obligors’ personal property from time to time subject to the Agent’s Liens securing payment or performance of any Obligations pursuant to the U.S. Security Documents, other than Excluded Assets (as defined in the U.S. Security Agreement).

 

U.S. Credit Facilities” means the revolving credit, swingline and letter of credit facilities provided for by this Agreement extended to the U.S. Borrowers.

 

“USD LIBOR” has the meaning specified in the definition of “LIBOR Rate”.

 

U.S. Guarantee Agreement” means the Third Amended and Restated U.S. Guarantee Agreement, dated as of the Agreement Date, from the U.S. Guarantors in favor of the Secured Parties.

 

U.S. Guarantors” means (a) Holdings, (b) each Domestic Subsidiary, whether now existing or hereafter created or acquired (other than any Subsidiary that is an Excluded Subsidiary, Foreign Subsidiary Holding Company or Subsidiary of a Foreign Subsidiary, unless the Company otherwise determines), and (c) each other Person who guarantees payment or performance in whole or in part of the U.S. Obligations. The U.S. Guarantors as of the Agreement Date are set forth on Schedule 1.2A under the heading “U.S. Guarantors”.

 

U.S. Intellectual Property Security Agreement” means the Amended and Restated Intellectual Property Security Agreement, dated as of October 14, 2011, among the U.S. Obligors for the benefit of the Secured Parties, as supplemented by the U.S. Intellectual Property Security Agreement Supplement, and as further amended, amended and restated, modified or supplemented from time to time.

 

U.S. Intellectual Property Security Agreement Supplement” means the Supplement to the U.S. Intellectual Property Security Agreement, dated as of the Agreement Date, among the U.S. Obligors for the benefit of the Secured Parties.

 

U.S. Obligations” means, with respect to the Indebtedness of the U.S. Obligors under the Loan Documents, any principal, premium (if any), interest (including interest accruing on or after the filing of any petition in bankruptcy or for reorganization relating to any U.S. Obligor whether or not a claim for post-filing interest is allowed in such proceedings), fees, charges, expenses, reimbursement obligations, Guarantees of such Indebtedness (or of Obligations in respect thereof), other monetary obligations of any U.S. Obligor of any nature and all other amounts payable by any U.S. Obligor under the Loan Documents or in respect thereof, excluding in each case Excluded Swap Obligations; provided that “U.S. Obligations” shall in any event include Designated Bank Products Obligations of any U.S. Obligor, any ROW Obligations guaranteed by the U.S. Obligors, any Canadian Obligations guaranteed by the U.S. Obligors, any French Obligations guaranteed by the U.S. Obligors and any FrenchANZ Obligations guaranteed by the U.S. Obligors (in each case, to the extent such Obligations are not Excluded Swap Obligations).

 

U.S. Obligors” means the U.S. Borrowers and the U.S. Guarantors.

 

U.S. Person” means any Person that is a “United States Person” as defined in Section 7701(a)(30) of the Code.

 

U.S. Revolving Loans” means the revolving loans made to the U.S. Borrowers pursuant to Section 2.1(a)(i), or any amendment to this Agreement entered into pursuant to Section 2.5, 2.6 or 2.7, each Agent Advance made to a U.S. Borrower and each U.S. Swingline Loan.

 

U.S. Security Agreement” means the Third Amended and Restated U.S. Security Agreement, dated as of the Agreement Date, among Holdings, the U.S. Borrowers and the U.S. Guarantors party thereto, for the benefit of the Secured Parties.

 

U.S. Security Documents” means, collectively, (a) the U.S. Security Agreement, (b) any security agreement executed and delivered after the Agreement Date by a Person that is or becomes a U.S. Obligor hereunder in accordance with Section 7.16, (c) the U.S. Intellectual Property Security Agreement, and (d) any Control Agreement or other agreements, instruments and documents heretofore, now or hereafter securing any of the U.S. Obligations.

     

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“U.S. Special Resolution Regimes” has the meaning specified in Section 14.28.

 

U.S. Swingline Commitment” means the Commitment of the U.S. Bank to make loans pursuant to Section 2.3(a).

 

U.S. Swingline Lender” means the U.S. Bank or any successor financial institution agreed to by the Agent, in its capacity as provider of U.S. Swingline Loans.

 

U.S. Swingline Loan” andU.S. Swingline Loans” have the meanings specified in Section 2.3(a).

 

U.S. Swingline Sublimit” has the meaning specified in Section 2.3(a).

 

U.S. Tax Compliance Certificate” has the meaning specified in Section 5.1(f)(ii).

 

Value” means, with reference to the value of Eligible Merchandise and Consumables Inventory, value determined on the basis of the lower of cost or market value of such Eligible Merchandise and Consumables Inventory, with the cost thereof calculated on a first-in, first-out basis, determined in accordance with GAAP.

 

VAT” means (a) any Tax imposed in compliance with the Council Directive of 28 November 2006 on the common system of value added tax (EC Directive 2006/112) and (b) any other Tax of a similar nature, whether imposed in a member state of the European Union in substitution for, or levied in addition to, such Tax referred to in clause (a) of this definition, or imposed elsewhere.

 

VAT Recipient” has the meaning specified in Section 5.1(i).

 

VAT Subject Party” has the meaning specified in Section 5.1(i).

 

VAT Supplier” has the meaning specified in Section 5.1(i).

 

Vendor Lease” means a lease pursuant to which any Person leases Inventory or Rental Equipment from a Vendor Lessor, whether or not such lease constitutes an operating lease or a Capital Lease under GAAP and whether or not such lease constitutes a true lease or a secured transaction under the Code or other applicable law.

 

Vendor Lessor” means any Person who leases Inventory or Rental Equipment to Holdings, a Borrower or a Guarantor pursuant to a Vendor Lease.

 

Voting Stock” means any class or classes of Capital Stock pursuant to which the holders thereof have the general voting power under ordinary circumstances to elect a majority of the board of directors, managers or trustees of any Person (irrespective of whether or not, at the time, stock of any other class or classes shall have, or might have, voting power by reason of the happening of any contingency).

 

Waterfall Priority Hedge Agreement” means a Hedge Agreement constituting a Bank Product entered into with an Obligor for which the Agent has received a Waterfall Priority Hedge Agreement Reserve Notice that remains in effect; provided that such Hedge Agreement shall constitute a Waterfall Priority Hedge Agreement only to the extent of the Waterfall Priority Hedge Agreement Reserve therefor.

 

Waterfall Priority Hedge Agreement Reserve” means, with respect to a Waterfall Priority Hedge Agreement, a reserve in an amount equal to the maximum Designated Bank Products Obligations in respect thereof set forth in the Waterfall Priority Hedge Agreement Reserve Notice therefor (as updated from time to time in accordance with the definition thereof) received by the Agent.

       

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Waterfall Priority Hedge Agreement Reserve Notice” means, with respect to a Hedge Agreement constituting a Bank Product entered into with an Obligor, a written notice by the provider of such Hedge Agreement and the Borrowers’ Agent to the Agent, in form and substance reasonably satisfactory to the Agent, delivered to the Agent within 10 Business Days (or such later date as shall be agreed to by the Agent in its sole discretion) after the later of the Closing Date and the date of creation of such Hedge Agreement that (a) describes such Hedge Agreement in reasonable detail (including the date and parties to such Hedge Agreement) and (b) sets forth the maximum Designated Bank Products Obligations in respect of such Hedge Agreement to be secured by the applicable Collateral, as such notice may be updated from time to time (not more often than once per calendar month except to permanently revoke such notice), pursuant to a writing, in form and substance reasonably satisfactory to the Agent, by the provider of such Hedge Agreement and the Borrowers’ Agent received by the Agent, to increase or decrease (including to zero) the maximum Designated Bank Products Obligations in respect of such Hedge Agreement to be secured by the applicable Collateral.

 

Wholly Owned Subsidiary” means, with respect to any Person, a Subsidiary of such Person, all of the Capital Stock of which (other than directors’ qualifying shares or nominee or other similar shares required pursuant to applicable law) are owned by such Person or another Wholly Owned Subsidiary of such Person.

 

Write- Down and Conversion Powers” means, (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any U.K. Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.

 

1.2        Accounting Terms. (a) Any accounting term used in this Agreement shall have, unless otherwise specifically provided herein, the meaning customarily given in accordance with GAAP, and all financial computations in this Agreement shall be computed, unless otherwise specifically provided therein, in accordance with GAAP as consistently applied and using the same method for inventory valuation as used in the preparation of the Financial Statements.

 

(b)           If at any time any change in GAAP or the application thereof would affect the computation or interpretation of any financial ratio, basket, requirement or other provision set forth in any Loan Document, and either the Borrowers’ Agent or the Required Lenders shall so request, the Agent and the Borrowers’ Agent shall negotiate in good faith to amend such ratio, basket, requirement or other provision to preserve the original intent thereof in light of such change in GAAP or the application thereof (and the Lenders hereby irrevocably authorize the Agent to enter into any such amendment); provided that, until so amended, (i)(x) such ratio, basket, requirement or other provision shall continue to be computed or interpreted in accordance with GAAP or the application thereof prior to such change therein and (y) upon request by the Agent, the Borrowers’ Agent shall provide to the Agent and the Lenders a written reconciliation between calculations of such ratio, basket, requirement or other provision made before and after giving effect to such change in GAAP or the application thereof or (ii) the Borrowers’ Agent may elect to fix GAAP (for purposes of such ratio, basket, requirement or other provision) as of another later date notified in writing to the Agent from time to time.

 

1.3       Interpretive Provisions.

 

(a)       The meanings of defined terms are equally applicable to the singular and plural forms of the defined terms.

 

(b)           The words “hereof,” “herein,” “hereunder” and similar words refer to this Agreement as a whole and not to any particular provision of this Agreement; and Subsection, Section, Schedule and Exhibit references are to this Agreement unless otherwise specified.

     

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(c)           The term “documents” includes any and all instruments, documents, agreements, certificates, indentures, notices and other writings, however evidenced.

 

(d)            The term “including” is not limiting and means “including without limitation.”

 

(e)           In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including,” the words “to” and “until” each mean “to but excluding” and the word “through” means “to and including.”

  

(f)           The word “or” is not exclusive.

 

(g)           Unless otherwise expressly provided herein, (i) references to agreements (including this Agreement) and other contractual instruments shall be deemed to include all subsequent amendments, supplements and other modifications thereto, but only to the extent such amendments, supplements and other modifications are not prohibited by the terms of any Loan Document, and (ii) references to any statute or regulation are to be construed as including all statutory and regulatory provisions consolidating, amending, replacing, supplementing or interpreting the statute or regulation.

  

(h)           The captions and headings of this Agreement and other Loan Documents are for convenience of reference only and shall not affect the interpretation of this Agreement.

 

(i)           This Agreement and other Loan Documents may use several different limitations, tests or measurements to regulate the same or similar matters. All such limitations, tests and measurements are cumulative and shall each be performed in accordance with their terms.

 

(j)           This Agreement and the other Loan Documents are the result of negotiations among and have been reviewed by counsel to the Agent, the Borrowers, the Guarantors and the other parties, and are the products of all parties. Accordingly, they shall not be construed against the Lenders or the Agent merely because of the Agent’s or Lenders’ involvement in their preparation.

 

(k)           For purposes of any Collateral located in the Province of Québec or charged by any deed of hypothec (or any other Loan Document) and for all other purposes pursuant to which the interpretation or construction of a Loan Document may be subject to the laws of the Province of Québec or a court or tribunal exercising jurisdiction in the Province of Québec, (i) personal property” shall be deemed to include “movable property”, (ii) real property” shall be deemed to include “immovable property”, (iii) tangible property” shall be deemed to include “corporeal property”, (iv) intangible property” shall be deemed to include “incorporeal property”, (v) security interest”, “mortgage” and “lien” shall be deemed to include a “hypothec,” “prior claim” and a “resolutory clause”, (vi) all references to filing, registering or recording under the UCC or the PPSA shall be deemed to include publication under the Civil Code of Québec, (vii) all references to “perfection” of or “perfected” Liens shall be deemed to include a reference to the “opposability” of such Liens to third parties, (viii) any “right of offset”, “right of setoff” or similar expression shall be deemed to include a “right of compensation”, (ix) goods” shall be deemed to include “corporeal movable property” other than chattel paper, documents of title, instruments, money and securities, (x) an “agent” shall be deemed to include a “mandatary”, (xi) construction liens” shall be deemed to include “legal hypothecs”, (xii) joint and several” shall be deemed to include “solidary”, (xiii) gross negligence or wilful misconduct” shall be deemed to be “intentional or gross fault”, (xiv) beneficial ownership” shall be deemed to include “ownership on behalf of another as mandatary”, (xv) easement” shall be deemed to include “servitude”, (xvi) priority” shall be deemed to include “prior claim”, (xvii) survey” shall be deemed to include “certificate of location and plan”, (xviii) fee simple title” shall be deemed to include “absolute ownership”, and (xix) foreclosure” shall be deemed to include “the exercise of a hypothecary right”.

 

(l)           In connection with any action being taken in connection with a Limited Condition Acquisition, for purposes of determining compliance with any provision of this Agreement which requires that no Default, Event of Default or Specified Default, as applicable, has occurred, is continuing or would result from any such action, as applicable, such condition shall, at the option of the Borrowers’ Agent, be deemed satisfied, so long as no Default, Event of Default or Specified Default, as applicable, exists on the date the definitive agreements for such Limited Condition Acquisition are entered into. For the avoidance of doubt, if the Borrowers’ Agent has exercised its option under the first sentence of this clause (l), and any Default or Event of Default occurs following the date the definitive agreements for the applicable Limited Condition Acquisition were entered into and prior to the consummation of such Limited Condition Acquisition, any such Default or Event of Default shall be deemed to not have occurred or be continuing for purposes of determining whether any action being taken in connection with such Limited Condition Acquisition is permitted hereunder.

 

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(m)           In connection with any action being taken in connection with a Limited Condition Acquisition, for purposes of:

 

(i)           determining compliance with any provision of this Agreement which requires the calculation of the Fixed Charge Coverage Ratio; or

 

(ii)           testing baskets set forth in this Agreement (including baskets measured as a percentage of Consolidated Net Tangible Assets), in each case, at the option of the Borrowers’ Agent (the Borrowers’ Agent’s election to exercise such option in connection with any Limited Condition Acquisition, an “LCA Election”), the date of determination of whether any such action is permitted hereunder, shall be deemed to be the date the definitive agreements for such Limited Condition Acquisition are entered into (the “LCA Test Date”), and if, after giving pro forma effect to the Limited Condition Acquisition and the other transactions to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) as if they had occurred at the beginning of the most recent four consecutive fiscal quarters ending prior to the LCA Test Date for which consolidated financial statements of the Consolidated Parties are available, the Borrowers’ Agent could have taken such action on the relevant LCA Test Date in compliance with such ratio or basket, such ratio or basket shall be deemed to have been complied with. For the avoidance of doubt, if the Borrowers’ Agent has made an LCA Election and any of the ratios or baskets for which compliance was determined or tested as of the LCA Test Date are exceeded as a result of fluctuations in any such ratio or basket, including due to fluctuations in Consolidated EBITDA or Consolidated Net Tangible Assets, at or prior to the consummation of the relevant transaction or action, such baskets or ratios will not be deemed to have been exceeded as a result of such fluctuations.

 

(n)           In this Agreement, where it relates to a French Borrower, a reference to:

 

(i)           an “insolvency” includes (A) a French Borrower is unable or admits inability to pay any of its debts (in full or a substantial part) as they fall due or suspends making payments on any of its debts (in full or a substantial part) when they become due, (B) a French Borrower is or becomes in cessation des paiements within the meaning of Article L.631-1 of the French Code de commerce or encounters difficulties that it is not able to overcome within the meaning of Article L.620-1 of the French Code de commerce, or becomes insolvent under any applicable insolvency law or (C) a moratorium is declared in respect of any indebtedness of a French Borrower or a French Borrower is subject to alert procedure ( procédure d’alerte) by its statutory auditors in accordance with Article L.234-1, L.234-2 or L.612-3 of the French Code de commerce;

 

(ii)           an “attachment” includes a saisie;

 

(iii)           a “consolidation” or an “amalgamation” includes in relation to any company any contribution of part of its business in consideration of shares (apport partiel d’actifs) and any demerger (scission) implemented in accordance with Articles L.236-1 to L.236-24 of the French Code de commerce;

 

(iv)           “financial assistance” has the meaning stated in Article L.225-216 of the French Code de commerce or in any other foreign law on financial assistance that is mandatorily applicable to a French Borrower;

 

(v)           “gross negligence” includes faute lourde;

 

(vi)           a “guarantee” means any type of sûreté personnelle;

    

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(vii)        an “administration”, “insolvency proceeding”, “dissolution” or “winding-up” means (A) any corporate action or legal proceeding is taken by a French Borrower in relation to (x) the suspension of payments, a moratorium of all or any indebtedness, dissolution, the opening of proceedings for sauvegarde (including, for the avoidance of doubt, sauvegarde accélérée and sauvegarde financière accélérée), redressement judiciaire or liquidation judiciaire or reorganisation (in the context of a mandat ad hoc or of a conciliation or otherwise) of a French Borrower other than a solvent liquidation or reorganisation, (y) the appointment of a liquidator, receiver, administrator, administrative receiver, temporary administrator, mandataire ad-hoc, conciliateur or other person exercising similar functions in respect of a French Borrower or in respect of all or any of their respective assets, except in relation to the appointment of a liquidator in case of an amicable dissolution (liquidation amiable) of a French Borrower, or (z) the enforcement of any Lien over any assets of any member of the group occurs and such enforcement is likely to have a Material Adverse Effect, (B) a French Borrower commences proceedings for the appointment of a mandataire ad hoc or the opening of a procedure of conciliation in accordance with Articles L. 611-3 to L. 611-15 of the French Code de commerce, (C) a judgment opening proceedings for sauvegarde (including, for the avoidance of doubt, sauvegarde accélérée and sauvegarde financière accélérée), redressement judiciaire or liquidation judiciaire or ordering a cession totale ou partielle de l’entreprise is rendered in relation to a French Borrower in accordance with Articles L.620- 1 to L.670-8 of the French Code de commerce, (D) any procedure, judgment or step is taken, which has effects that are substantially the same as those referred to in paragraphs (A) through (C) above;

 

(viii)           “merger” includes any fusion implemented in accordance with Articles L.236-1 to L.236-24 of the French Code de commerce;

 

(ix)           “trustee”, “fiduciary” and “fiduciary duty” has in each case the meaning given to such term under any applicable law;

 

(x)           a “person being unable to pay its debts” means that person being in a state of cessation des paiements in accordance with the French Code de commerce;

 

(xi)       a “receiver” includes an administrateur judiciaire, a mandataire ad hoc or a conciliateur; and

 

(xii)           “wilful misconduct” means dol.

 

(o)           In this Agreement, where it relates to a ROW Borrower organized under the laws of Belgium, a reference to:

  

(i)          a “liquidator”, “(interim) receiver”, “administrator”, “trustee”, “monitor”, “assignee”, “sequestrator”, “custodian”, “conservator” or similar official includes a curator/curateur, vereffenaar/liquidateur, voorlopig bewindvoerder/administrateur provisoire, commissaris inzake opschorting/commissaire au sursis, mandataris ad hoc/mandataire ad hoc, gerechtsmandataris/mandataire de justice, gerechtelijke deskundige/expert judiciaire, ondernemingsbemiddelaar/médiateur d’entreprise and an insolventiefunctionaris/praticien de l'insolvabilité, as applicable;

 

(ii)         a “Lien” or “security interest” includes any mortgage (hypotheek/hypothèque), pledge (pand/nantissement), privilege (voorrecht/privilège), a reservation of title (eigendomsvoorbehoud/réserve de propriété), a real surety (zakelijke zekerheid/sûreté réelle), a transfer by way of security (overdracht ten titel van zekerheid/transfert à titre de garantie) and a promise or mandate (mandaat/mandate) to create any of the security interests mentioned above;

 

(iii)         “commences any action or proceeding seeking reorganization, arrangement, consolidation or readjustment of debts” includes any negotiations conducted with a view to reaching a settlement agreement (minnelijk akkoord/accord amiable) with two or more of its creditors pursuant to Book XX of the Belgian Code of Economic Law;

       

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(iv)         a person being “unable to pay its debts” is that person being in a state of cessation of payments (staking van betaling/cessation de paiements);

 

(v)         a “reorganization”, “readjustment”, “moratorium”, “assignment”, “arrangement”, or other relief includes a gerechtelijke reorganisatie/réorganisation judiciaire, minnelijk akkoord met schuldeisers/accord amiable avec des créanciers, collectief akkoord/accord collectif, as applicable;

 

(vi)        “insolvency” includes any insolventieprocedure/procédure d’insolvabilité, faillissement/faillite, gerechtelijke reorganisatie/réorganisation judiciaire and any other concurrence between creditors (samenloop van schuldeisers/concours des créanciers);

 

(vii)          a “bankruptcy”, “winding up”, “liquidation” or “dissolution” includes vereffening/liquidation, ontbinding/dissolution, faillissement/faillite and sluiting van een onderneming/fermeture d’entreprise;

 

(viii)         a “warrant of attachment”, “execution” or similar process includes any uitvoerend beslag/saisie exécutoire, sekwester/séquestre and bewarend beslag/saisie conservatoire;

 

(ix)         an “amalgamation”, “merger” or “consolidation” includes any overdracht van algemeenheid/transfert d'universalité, overdracht van bedrijfstak/transfert de branche d'activité, splitsing/scission and fusie/fusion and assimilated transaction in accordance with article 12:7 and 12:8 (gelijkgestelde verrichting/opération assimilée) of the BCCA;

 

(x)          the “BCCA” means the Belgian Code of Companies and Associations (Wetboek van Vennootschappen en Verenigingen / Code des Sociétés et des Associations), dated 23 March 2019 as amended from time to time;

 

(xi)          the “Belgian Code of Economic Law” means the Belgian Wetboek van Economisch Recht/Code de Droit Economique dated 28 February 2013, as amended from time to time;

 

(xii)          “Charter Documents” includes the deed of incorporation (oprichtingsakte/acte de constitution) and the (co-ordinated) up-to-date articles of association (statuten/statuts);

 

(xiii)          “gross negligence” means zware fout/faute lourde;

 

(xiv)          “willful misconduct” means bedrog/dol;

 

(xv)          a “Subsidiary” shall be deemed to include a dochtervennootschap / filiale as defined in Article 1:15 of the BCCA;

 

(xvi)          “control” has the meaning set out in Articles 1:14 et seq. of the BCCA, and the term “controlling” shall be construed accordingly;

 

(xvii)          a “successor” means an algemene rechtsopvolger/successeur universel; and

 

(xviii)          “Other Taxes” shall include (i) the documentary duty of €0.15 that is payable for each original copy of an agreement containing a debt obligation, indebtedness or security interest for the benefit of credit institutions that is executed in Belgium, (ii) registration duties relating to the registration of the relevant Transaction Security in the Belgian pledge register or, as the case may be, (iii) notarial, registration and mortgage duties relating to any Security Documents entered into via a Belgian notarial deed.

 

1.4         Classification of Loans and Borrowings. For purposes of this Agreement, Loans may be classified and referred to by class (e.g., a “Canadian Revolving Loan” or “U.S. Revolving Loan”) or by Type (e.g., a “LIBOR Loan”) or by class and Type (e.g., a “Canadian Revolving BA Equivalent Loan”). Borrowings also may be classified and referred to by class (e.g., a “Canadian Revolving Borrowing” or “U.S. Revolving Borrowing”) or by Type (e.g., a “LIBOR Borrowing”) or by class and Type (e.g., a “Canadian Revolving BA Equivalent Borrowing”).

 

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1.5        Effectuation of Transactions. Each of the representations and warranties of Holdings and the other Obligors contained in this Agreement (and all corresponding definitions) are made after giving effect to the Transactions (or such portion thereof as shall be consummated as of the date of the applicable representation or warranty), unless the context otherwise requires.

 

1.6         Currency.

 

(a)         U.S. Revolving Loans shall be made and denominated in Dollars. U.S. Revolving Loans, interest thereon, and any Obligor’s payment obligations in respect thereof shall all be payable in Dollars.

 

(b)         ROW Revolving Loans shall be made and denominated in Dollars, Euros, Sterling or any other Alternative Currency, as applicable. ROW Revolving Loans, interest thereon, and any Obligor’s payment obligations in respect thereof expressly payable in Dollars, Euros, Sterling or such other Alternative Currency shall all be payable in Dollars, Euros, Sterling or such other Alternative Currency, as applicable.

 

(c)         Canadian Revolving Loans shall be made and denominated in Dollars or Cdn. Dollars, as applicable. Canadian Revolving Loans, interest thereon, and any Obligor’s payment obligations in respect thereof expressly payable in Dollars or Cdn. Dollars shall all be payable in Dollars or Cdn. Dollars, as applicable.

 

(d)         French Swingline Loans shall be made and denominated in Dollars, Euros or Sterling, as applicable. French Swingline Loans, interest thereon, and any Obligor’s payment obligations in respect thereof expressly payable in Dollars, Euros or Sterling shall all be payable in Dollars, Euros or Sterling, as applicable.

 

(e)         ANZ Revolving Loans shall be made and denominated in Dollars, Australian Dollars or New Zealand Dollars, as applicable. ANZ Revolving Loans, interest thereon, and any Obligor’s payment obligations in respect thereof expressly payable in Dollars, Australian Dollars or New Zealand Dollars shall all be payable in Dollars, Australian Dollars or New Zealand Dollars, as applicable.

 

(f)          (e) Any Obligor’s other payment obligations hereunder or under any other Loan Document expressly payable in Dollars, Cdn. Dollars, Euros, Sterling, Australian Dollars, New Zealand Dollars or any other Alternative Currency shall all be payable in Dollars, Cdn. Dollars, Euros, Sterling, Australian Dollars, New Zealand Dollars or such other Alternative Currency, as applicable. Any Obligor’s other payment obligations hereunder or under any other Loan Document not expressly payable in another currency shall all be payable in Dollars.

 

(g)          (f) Notwithstanding clauses (a), (b), (c), (d) and, (e) and (f) above, for purposes of determining compliance with covenant and default limitations and other monetary thresholds, all fees and amounts payable hereunder and all calculations hereunder, including the amount of each Borrowing Base, the Aggregate ROW Revolver Outstandings, the Maximum ROW Revolver Amount, the Aggregate Canadian Revolver Outstandings, the Maximum Canadian Revolver Amount, the Aggregate French Swingline Outstandings, the U.S. Availability, the Canadian Availability, the Aggregate ANZ Revolver Outstandings, the Maximum ANZ Revolver Amount and each Lender’s Commitments as of any date shall all be calculated in Dollars or the Equivalent Amount in Dollars.

  

(h)          (g) Where the permissibility of a transaction or a representation, warranty or covenant depends upon compliance with, or is determined by reference to, amounts stated in Dollars, any amount stated in another currency shall be translated to the Equivalent Amount in Dollars at the applicable time of determination hereunder and the permissibility of actions taken by a Borrower or any Subsidiary hereunder shall not be affected by subsequent fluctuations in exchange rates. Further, if Indebtedness is incurred to refinance Indebtedness in a transaction otherwise permitted hereunder and such Refinanced Indebtedness is denominated in a currency that is different from the currency of the Indebtedness being incurred, such refinancing shall be deemed not to have exceeded the principal amount of the Refinanced Indebtedness so long as the principal amount of such Refinancing Indebtedness incurred does not exceed (i) the outstanding committed or principal amount (whichever is higher) of such Indebtedness being refinanced determined at the Equivalent Amount in Dollars as of the applicable date of determination plus (ii) the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses incurred in connection with such refinancing.

 

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1.7        Additional Alternative Currencies.

 

(a)          The Borrowers’ Agent may, from time to time, request that a LIBOR Loan to a ROW Borrower or ANZ Borrower be made and/or Letters of Credit be issued in a currency other than those specifically listed in the definition of the term “Alternative Currency”; provided that such requested currency is a lawful currency (other than Dollars) that is readily available and freely transferable and convertible into Dollars. In the case of any such request (i) with respect to the making of LIBOR Loans to a ROW Borrower or ANZ Borrower, such request shall be subject to the approval of the Agent and each Lender with a Pro Rata Revolving Credit Commitment or ANZ Revolving Credit Commitment, as applicable , and (ii) with respect to the issuance of Letters of Credit, such request shall be subject to the approval of the Agent and each Letter of Credit Issuer that will be required to issue Letters of Credit in such Alternative Currency.

 

(b)          Any request with respect to an additional Alternative Currency shall be made to the Agent not later than 11:00 a.m., New York City time, 10 Business Days prior to the date of the desired Borrowing (or such other time or date as may be agreed by the Agent and, in the case of any such request with respect to Letters of Credit, each applicable Letter of Credit Issuer). The Agent shall promptly notify each Lender with a Pro Rata Revolving Credit Commitment or ANZ Revolving Credit Commitment, as applicable (in the case of any such request pertaining to LIBOR Loans) and each applicable Letter of Credit Issuer (in the case of any such request pertaining to Letters of Credit). Each Lender with a Pro Rata Revolving Credit Commitment or ANZ Revolving Credit Commitment, as applicable, or each applicable Letter of Credit Issuer, as applicable, shall notify the Agent, not later than 11:00 a.m., New York City time, 10 Business Days after receipt of such request whether it consents, in its sole discretion, to the making of LIBOR Loans to a ROW Borrower or ANZ Borrower or the issuance of Letters of Credit, as applicable, in such requested currency.

 

(c)          Any failure by a Lender or a Letter of Credit Issuer, as applicable, to respond to such request within the time period specified in the preceding sentence shall be deemed to be a refusal of such Lender or such Letter of Credit Issuer, as applicable, to permit LIBOR Loans to be made to a ROW Borrower or ANZ Borrower or Letters of Credit to be issued in such requested currency. If the Agent and the applicable Lenders or the applicable Letter of Credit Issuer, as applicable, consent to making of LIBOR Loans to a ROW Borrower or ANZ Borrower or the issuance of Letters of Credit in such requested currency, the Agent shall so notify the Borrowers’ Agent and such currency shall thereupon be deemed for all purposes to be an “Alternative Currency” hereunder for purposes of any LIBOR Loans made to a ROW Borrower or ANZ Borrower or any Letters of Credit, as applicable. If the Agent shall fail to obtain consent to any request for an additional currency under this Section 1.7, the Agent shall promptly so notify the Borrowers’ Agent. Additionally, if at any time, any Lender(s) and/or any Letter of Credit Issuer(s) notify the Agent that they will no longer be able to extend Loans and/or issue Letters of Credit, as applicable, in an Alternative Currency approved pursuant to this Section 1.7, the Agent shall promptly notify the Borrowers’ Agent, and such Alternative Currency shall no longer be an “Alternative Currency” hereunder effective (i) in the case of any Loan or Letter of Credit to be made or issued after receipt of such notice, immediately after receipt thereof and (ii) otherwise, five Business Days after receipt of such notice.

 

(d)          For the avoidance of doubt, any notice requirements applicable to LIBOR Loans made to ROW Borrowers or ANZ Borrowers or Letters of Credit in Alternative Currencies shall be substantially similar to those set forth in Sections 2.2 and 4.1(b) (with respect to LIBOR Loans) and Section 2.4 (with respect to Letters of Credit) or on such other terms as are mutually agreed by the Agent (and, in the case of any Letters of Credit, each applicable Letter of Credit Issuer) and the Borrowers’ Agent.

 

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1.8        Pro Forma Calculations.

 

(a)          Any financial ratio or test or compliance with any covenants determined by reference to Consolidated EBITDA, Consolidated Net Tangible Assets or any component definition thereof shall be calculated in a manner prescribed by this Section 1.8. In addition, whenever a financial ratio or test is to be calculated on a pro forma basis, the reference to the applicable period for purposes of calculating such financial ratio or test shall be deemed to be a reference to, and shall be based on, the most recently ended period for which the financial statements of the Consolidated Parties are available (as determined in good faith by the Company).

 

(b)          For purposes of determining compliance with any provision of this Agreement, including the determination of any financial ratio or test, any Specified Transaction that has occurred (i) during the applicable period or (ii) subsequent to such period and prior to or simultaneously with the event for which the determination of any such ratio, test or compliance with covenants is being made shall be determined on a pro forma basis (including giving effect to those specified in accordance with the definitions of “Consolidated EBITDA” and “Consolidated Net Income” and any component definitions thereof) assuming that all such Specified Transactions (including such Specified Transaction for which such compliance is being determined) had occurred on the first day of the applicable period. If since the beginning of any applicable period any Person that subsequently became a Restricted Subsidiary or was merged, amalgamated or consolidated with or into an Obligor or any Restricted Subsidiary since the beginning of such period shall have made any Specified Transaction that would have required adjustment pursuant to this Section 1.8, then for purposes of determining compliance with any provision of this Agreement, including the determination of any financial ratio or test, such Specified Transactions shall be calculated to give pro forma effect thereto in accordance with this Section 1.8.

 

(c)          In the event that (i) any Obligor or Restricted Subsidiary incurs (including by assumption or guarantee) or repays or refinances (including by redemption, repayment, retirement, discharge, defeasance or extinguishment) any Indebtedness (other than Indebtedness incurred or repaid under any revolving credit facility unless such Indebtedness has been permanently repaid and not replaced) or (ii) any Borrower or any Restricted Subsidiary issues, repurchases or redeems Disqualified Stock, (x) during the applicable period or (y) subsequent to the end of the applicable period and prior to or simultaneously with the event for which the calculation of any such ratio or test is made or compliance with any covenant is determined, then such financial ratio or test or determination of compliance shall be calculated giving pro forma effect to such incurrence or repayment of Indebtedness, or such issuance, refinancing or redemption of Disqualified Stock, in each case to the extent required, as if the same had occurred on the last day of the applicable period (except that, in making such computation, the amount of Indebtedness under any revolving credit facility shall be computed based upon the average daily balance of such Indebtedness during the applicable period during the period from the date of creation of such facility to the date of such calculation);

 

(d)          If any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date of determination had been the applicable rate for the entire period (taking into account any interest hedging arrangements applicable to such Indebtedness); provided, in the case of repayment of any Indebtedness, to the extent actual interest related thereto was included during all or any portion of the applicable period, the actual interest may be used for the applicable portion of such period. Interest on a Capital Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Company to be the rate of interest implicit in such Capital Lease Obligation in accordance with GAAP. Interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, LIBOR or other rate, shall be determined to have been based upon the rate actually chosen, or if none, then based upon such optional rate chosen as the Company or a Restricted Subsidiary may designate.

 

(e)          Whenever pro forma effect is to be given to any Specified Transaction, the pro forma calculations shall be made in good faith by a responsible financial or accounting officer of the Company.

 

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1.9        Additional Borrowers.

 

(a)          Notwithstanding anything in Section 12.1 to the contrary, following the Closing Date, the Borrowers’ Agent may request that one or more of its Subsidiaries that is a Wholly Owned Subsidiary be added to this Agreement as an additional borrower (an “Additional Borrower”) by delivering to the Agent a written notice; provided that:

 

(i)       the Agent shall have consented, which consent may not be unreasonably withheld, to the designation of such Additional Borrower and, in the case of an Additional Borrower that is to become a French Borrower, the French Swingline Lender shall have consented, which consent may not be unreasonably withheld, to such designation;

 

(ii)      (A) such Additional Borrower shall become a party to this Agreement as a U.S. Borrower, a ROW Borrower, a Canadian Borrower or, a French Borrower or an ANZ Borrower, as applicable, pursuant to joinder documentation in form and substance reasonably acceptable to the Agent and the Borrowers’ Agent and (B) to the extent reasonably requested by the Agent, the Agent shall have received such opinions, certificates, Charter Documents and other similar documents with respect to the Additional Borrower as are substantially consistent (as modified for differences in jurisdiction or as otherwise modified in a manner reasonably acceptable to the Agent) with those delivered with respect to the U.S. Borrowers, the ROW Borrowers, the Canadian Borrowers or the French Borrowers, as applicable, on the Closing Date pursuant to Section 9.1(c), or with respect to the ANZ Borrowers, on the First Amendment Effective Date pursuant to the First Amendment;

 

(iii)     (A) the Agent shall have first received, with respect to such Additional Borrower, all documentation and other information that is required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including the Act (as defined in Section 14.23) to the extent reasonably requested in writing by the Agent and the Lenders and (B) any Additional Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have first delivered, to each Lender that so requested, a Beneficial Ownership Certification in relation to such Additional Borrower;

 

(iv)

 

(A)        in the case of an Additional Borrower that is organized under the Laws of the United States of America, any state thereof or the District of Columbia, to the extent such Additional Borrower is not already a U.S. Guarantor, such Additional Borrower shall (x) execute and deliver to the Agent a Security Agreement Supplement (as defined in the U.S. Security Agreement), a Guaranty Supplement (as defined in the U.S. Guarantee Agreement) and such other amendments to the U.S. Security Documents as the Agent may reasonably deem necessary or reasonably advisable to grant to the Agent, for the benefit of the Secured Parties, a perfected security interest (as and to the extent provided in the U.S. Security Documents) in the Collateral of such Additional Borrower, (y) deliver such other documentation as the Agent may reasonably request in accordance with the U.S. Security Documents (and subject to the limitations set out therein) in order to cause the Lien created by the U.S. Security Documents in such Additional Borrower’s Collateral to be duly perfected in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may reasonably be requested by the Agent, and such other documents with respect to such Additional Borrower as the Agent may reasonably request that are consistent with the documents in place or delivered to the Agent by the Obligors on the Closing Date, and (z) subject to Section 7.4(a)(ii), prior to including such Additional Borrower’s assets in the U.S. Borrowing Base, the Agent shall conduct an Appraisal with respect to such Additional Borrower, including of (A) such Additional Borrower’s practices in the computation of its Borrowing Base and (B) the assets included in such Additional Borrower’s Borrowing Base and related financial information such as, but not limited to, sales, gross margins, payables, accruals and reserves, in each case, prepared on a basis reasonably satisfactory to the Agent and at the sole expense of the Obligors; or

 

(B)        in the case of an Additional Borrower that is organized under the Laws of Canada or any territory or province thereof, to the extent such Additional Borrower is not already a Canadian Guarantor, such Additional Borrower shall (x) execute and deliver to the Agent a Security Agreement Supplement (as defined in the Canadian Security Agreement), a Guarantee Supplement (as defined in the Canadian Guarantee Agreement) and such other amendments to the Canadian Security Documents as the Agent may reasonably deem necessary or reasonably advisable to grant to the Agent, for the benefit of the Canadian Secured Parties, a perfected security interest (as and to the extent provided in the Canadian Security Documents) in the Collateral of such Additional Borrower and in the Capital Stock of such Additional Borrower and (y) deliver such other documentation as the Agent may reasonably request in accordance with the applicable Security Documents (and subject to the limitations set out therein) in order to cause the Lien created by the applicable Security Documents in such new Canadian Subsidiary’s Collateral and in the Capital Stock of such new Canadian Subsidiary to be duly perfected in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may reasonably be requested by the Agent, and such other documents with respect to such Additional Borrower as the Agent may reasonably request that are consistent with the documents in place or delivered to the Agent by the Obligors on the Closing Date; and

 

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(v)      (A) with respect to any Additional Borrower that would not be a U.S. Borrower (other than a French Borrower that will be an Additional Borrower solely in respect of French Swingline Loans), the Borrowers’ Agent shall have provided the Lenders with at least 10 Business Days’ (or such shorter notice as may be reasonably agreed by the Agent) prior written notice of the proposed designation, and (B) no Lender (unless such Lender (with the prior written consent of such Lender, the Borrowers’ Agent and, in their sole discretion, the Agent and Bank of America) shall have become a Participating ROW Lender or a Participating Canadian Lender, as applicable, in which case this clause (B) shall not apply) with a Pro Rata Revolving Credit Commitment or an ANZ Revolving Credit Commitment, as applicable, shall have advised the Agent and the Borrowers’ Agent in writing, on or prior to the end of such 10 Business Day period, that (w) it is unlawful (or such Lender cannot or has not been able to determine that it is lawful) for such Lender to make Loans and other extensions of credit under this Agreement to such Additional Borrower, (x) the making of Loans or other extensions of credit under this Agreement to such Additional Borrower might subject such Lender to adverse tax consequences for which it is not reimbursed hereunder, (y) such Lender would be required to, or has determined that it would be prudent to, register or file in the jurisdiction of formation, organization or location of such Additional Borrower in order to make Loans or other extensions of credit under this Agreement to such Additional Borrower, and such Lender does not wish to do so or (z) such Lender is restricted by operational or administrative procedures or other applicable internal policies from making Loans or other extensions of credit under this Agreement to Persons formed, organized or located in the jurisdiction in which such Additional Borrower is formed, organized or located.

 

Any obligations in respect of borrowings by any Additional Borrower under this Agreement will constitute “Obligations” for all purposes of the Loan Documents.

 

(b)          Any Additional Borrower that is not organized under the Laws of the United States of America or any state thereof or the District of Columbia, Canada or any province or territory thereof or, France, Australia or New Zealand shall become a ROW Borrower.

 

(c)          In the case of any Additional Borrower, the Agent and the Borrowers’ Agent agree to enter into any amendment required to incorporate the addition of the Additional Borrower and such other amendments as may be necessary or appropriate in the reasonable opinion of the Agent and the Borrowers’ Agent in connection therewith. The Lenders hereby irrevocably authorize the Agent to enter into such amendments.

 

(d)          The Borrowers’ Agent may from time to time, upon not less than three Business Days’ written notice to the Agent (or such shorter period as may be agreed by the Agent in its reasonable discretion), terminate a Borrower’s (other than the Company’s) status as such, and such Person shall thereupon cease to be considered a “Borrower” (and cease to be considered a U.S. Borrower, ROW Borrower, Canadian Borrower or, French Borrower or ANZ Borrower, as applicable) for all purposes hereunder, provided that (i) there are no outstanding Loans or Agent Advances payable by such Borrower, or other amounts payable by such Borrower on account of any Loans made to it, as of the effective date of such termination, (ii) there are no amounts (including charges and fees payable to or reasonably incurred by the applicable Letter of Credit Issuer) outstanding under any Letters of Credit issued to such Borrower as of the effective date of such termination, (iii) after giving effect to the exclusion of such Borrower’s assets that were included in the applicable Borrowing Base, no Out-of-Formula Condition would be created, (iv) to the extent such Borrower is otherwise required to be a Guarantor hereunder, such Borrower shall continue to be a Guarantor for all purposes hereunder without any additional action by the Borrowers’ Agent upon such termination and (v) the Maximum Canadian Revolver Amount shall be deemed to be zero at all times when there is no Canadian Borrower. The Agent will promptly notify the Lenders of any such termination of a Borrower’s status.

 

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1.10       No Novation; Acknowledgement and Adjustment of Loans, Payment of Accrued Interest and Fees.

 

(a)          It is the intent of the parties hereto that this Agreement not constitute a novation of the rights, obligations and liabilities of the respective parties (including the Obligations) existing under the Existing Loan Agreement or evidence payment of all or any of such obligations and liabilities, and such rights, obligations and liabilities shall continue and remain outstanding under the terms and conditions of, and as amended and restated by, this Agreement, and that this Agreement amends and restates in its entirety the Existing Loan Agreement. Without limiting the generality of the foregoing (i) all U.S. Revolving Loans outstanding under, and as defined in, the Existing Loan Agreement shall on the Closing Date become U.S. Revolving Loans hereunder, (ii) all Canadian Revolving Loans outstanding under, and as defined in, the Existing Loan Agreement shall on the Closing Date become Canadian Revolving Loans hereunder, (iii) all Letters of Credit outstanding under, and as defined in, the Existing Loan Agreement shall on the Closing Date become Letters of Credit hereunder and (iv) all other Obligations outstanding under, and as defined in, the Existing Loan Agreement shall on the Closing Date be Obligations under this Agreement.

 

(b)          The Borrowers acknowledge and agree that as of the close of business on February 14, 2019, (i) the Aggregate Revolver Outstandings under, and as defined in, the Existing Loan Agreement (excluding the aggregate undrawn amount of all outstanding Letters of Credit under the Existing Loan Agreement) is approximately $1,632,700,000, (ii) the Aggregate U.S. Revolver Outstandings under, and as defined in, the Existing Loan Agreement (excluding the aggregate undrawn amount of all outstanding Letters of Credit under the Existing Loan Agreement) is $1,595,000,000, (iii) the Aggregate Canadian Revolver Outstandings under, and as defined in, the Existing Loan Agreement is Cdn $50,000,000 and (iv) the Letters of Credit outstanding under, and as defined in, the Existing Loan Agreement are set forth on Schedule 1.1A (the “Existing Letters of Credit”).

 

(c)          As of the date hereof, immediately prior to giving effect to the amendment and restatement of the Existing Loan Agreement by this Agreement, certain Lenders under, and as such term is defined in, the Existing Loan Agreement, which are not parties hereto (each, an “Exiting Lender”) have entered into a master Assignment and Acceptance Agreement with the Bank pursuant to which each such Exiting Lender assigned to the applicable Bank 100% of its applicable Revolving Credit Commitments and Loans under, and as such terms are defined in, the Existing Loan Agreement (the “Exiting Lender Assignment”). Each party hereto hereby agrees that (i) no consents or notices otherwise required under Section 12.2(a) of the Existing Loan Agreement shall be required for the Exiting Lender Assignment and (ii) all other conditions or requirements set forth in Section 12.2 of the Existing Loan Agreement for the effectiveness of the Exiting Lender Assignment shall be waived. In addition, the Borrowers agree to pay to each applicable Exiting Lender any amounts payable in respect of the assignment by such Exiting Lender under the Exiting Lender Assignment in accordance with Section 5.4 of the Existing Loan Agreement (with the assignment or assignments by such Exiting Lender under the Exiting Lender Assignment being deemed a prepayment for purposes of such Section 5.4).

 

(d)          The Borrowers acknowledge and agree that any and all unpaid interest and fees accrued under the Existing Loan Agreement as of (and including) the Agreement Date shall be paid on the Agreement Date.

 

(e)          After giving effect to the Exiting Lender Assignment and the amendment and restatement of the Existing Loan Agreement as provided for hereunder, on the date hereof, the outstanding U.S. Revolving Credit Commitments held by one or more of the U.S. Lenders under, and as such terms are defined in, the Existing Loan Agreement shall be converted into Revolving Credit Commitments hereunder and reduced or increased, as applicable, and reallocated amongst one or more Lenders hereunder so that, after giving effect to the provisions of this Section 1.10(e) and Section 1.10(f), each Lender holds the Revolving Credit Commitment set forth on Schedule 1.1 with respect to such Lender. After giving effect to such conversion and reallocation, the outstanding U.S. Revolving Loans may not be held pro rata in accordance with the new Revolving Credit Commitments hereunder. In order to remedy the foregoing, on the Agreement Date, the Lenders shall, as determined by the Agent, make advances among themselves (through the Agent) so that after giving effect thereto the U.S. Revolving Loans will be held by the Lenders on a pro rata basis in accordance with each Lender’s Pro Rata Share (after giving effect to the foregoing Revolving Credit Commitment reallocation and the reallocation pursuant to Section 1.10(f)) and, in such event, the Company shall pay to the applicable Lenders any amounts payable in respect thereof in accordance with Section 5.4 (with any reduction in U.S. Revolving Loans of any Lender pursuant to this Section 1.10(e) being deemed a prepayment for purposes of Section 5.4). Each Lender agrees to wire immediately available funds to the Agent in accordance with this Agreement as may be required by the Agent in connection with the foregoing. Notwithstanding the provisions of Section 12.2, the advances so made by each Lender under this Section 1.10(e) shall be deemed to be a purchase of a corresponding amount of the U.S. Revolving Loans from the applicable Lender or Lenders which hold U.S. Revolving Loans in excess of their Pro Rata Share of the aggregate outstanding U.S. Revolving Loans and shall not be considered an assignment for purposes of Section 12.2.

 

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(f)          After giving effect to the Exiting Lender Assignment and the amendment and restatement of the Existing Loan Agreement as provided for hereunder, on the date hereof, the outstanding Canadian Revolving Credit Commitments held by one or more of the Canadian Lenders under, and as such terms are defined in, the Existing Loan Agreement shall be converted into Revolving Credit Commitments hereunder and reduced or increased, as applicable, and reallocated amongst one or more Lenders hereunder so that, after giving effect to the provisions of this Section 1.10(f) and Section 1.10(e), each Lender holds the Revolving Credit Commitment set forth on Schedule 1.1 with respect to such Lender. After giving effect to such conversion and reallocation, the outstanding Canadian Revolving Loans may not be held pro rata in accordance with the new Revolving Credit Commitments hereunder. In order to remedy the foregoing, on the Agreement Date, the Lenders shall, as determined by the Agent, make advances among themselves (through the Agent) so that after giving effect thereto the Canadian Revolving Loans will be held by the Lenders on a pro rata basis in accordance with each Lender’s Pro Rata Share (after giving effect to the foregoing Revolving Credit Commitment reallocation and the reallocation pursuant to Section 1.10(e)) and, in such event, the Canadian Borrowers shall pay to the applicable Lenders any amounts payable in respect thereof in accordance with Section 5.4 (with any reduction in Canadian Revolving Loans of any Lender pursuant to this Section 1.10(f) being deemed a prepayment for purposes of Section 5.4). Each Lender agrees to wire immediately available funds to the Agent in accordance with this Agreement as may be required by the Agent in connection with the foregoing. Notwithstanding the provisions of Section 12.2, the advances so made by each Lender under this Section 1.10(f) shall be deemed to be a purchase of a corresponding amount of the Canadian Revolving Loans from the applicable Lender or Lenders which hold Canadian Revolving Loans in excess of their Pro Rata Share of the aggregate outstanding Canadian Revolving Loans and shall not be considered an assignment for purposes of Section 12.2.

 

1.11       Syndicated Facility Agreement. This Agreement is a “syndicated facility agreement” for the purposes of section 128F(11)(a) of the Australian Tax Act.

 

ARTICLE II

 

LOANS AND LETTERS OF CREDIT

 

2.1           Revolving Loans. (a) Subject to all of the terms and conditions of this Agreement, each Pro Rata Revolving Credit Lender severally, but not jointly or jointly and severally, agrees to make (ai) a U.S. Revolving Loan or U.S. Revolving Loans to the U.S. Borrowers, (bii) a Canadian Revolving Loan or Canadian Revolving Loans to the Canadian Borrowers and (ciii) a ROW Revolving Loan or ROW Revolving Loans to the ROW Borrowers, as applicable, in amounts not to exceed such Pro Rata Revolving Credit Lender’s Pro Rata Share of the aggregate Pro Rata Revolving Credit Commitments at such time; provided that no Pro Rata Revolving Credit Lender shall have any obligation to make (iA) a U.S. Revolving Loan or a ROW Revolving Loan if U.S. Availability is less than zero or to the extent that such U.S. Revolving Loan or ROW Revolving Loan, as applicable, would result in U.S. Availability being less than zero, subject to the Agent’s authority, in its sole discretion, to make Agent Advances pursuant to the terms of Section 2.2(b), (iiB) a Canadian Revolving Loan if Canadian Availability is less than zero or to the extent that such Canadian Revolving Loan would result in Canadian Availability being less than zero, subject to the Agent’s authority, in its sole discretion, to make Agent Advances pursuant to the terms of Section 2.2(b), (iiiC) a ROW Revolving Loan to the extent such ROW Revolving Loan would result in the Aggregate ROW Revolver Outstandings exceeding the Maximum ROW Revolver Amount or (ivD) any Revolving Loan to the extent that such Revolving Loan would result in the Aggregate Revolver Outstandings exceeding the Maximum Revolver Amount or the Aggregate Pro Rata Revolver Outstandings exceeding the Maximum Pro Rata Revolver Amount. The Pro Rata Revolving Credit Lenders, however, in their unanimous discretion, may elect to make U.S. Revolving Loans or ROW Revolving Loans or issue or arrange to have issued Letters of Credit in excess of U.S. Availability (but not in an amount that would result in the Aggregate Revolver Outstandings exceeding the Maximum Revolver Amount or the Aggregate Pro Rata Revolver Outstandings exceeding the Maximum Pro Rata Revolver Amount) or make Canadian Revolving Loans in excess of the Canadian Availability (but not in an amount that would result in the Aggregate Canadian Revolver Outstandings exceeding the Maximum Canadian Revolver Amount or the Aggregate Pro Rata Revolver Outstandings exceeding the Maximum Pro Rata Revolver Amount), as applicable, on one or more occasions, but if they do so, neither the Agent nor the Lenders shall be deemed thereby to have changed the limits of the U.S. Borrowing Base or the Canadian Borrowing Base or to be obligated to exceed such limits on any other occasion.

 

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(b)          Subject to all of the terms and conditions of this Agreement, each ANZ Revolving Credit Lender severally, but not jointly or jointly and severally, agrees to make an ANZ Revolving Loan or ANZ Revolving Loans to the ANZ Borrowers, in amounts not to exceed such ANZ Revolving Credit Lender’s Pro Rata Share of the aggregate ANZ Revolving Credit Commitments at such time; provided that no ANZ Revolving Credit Lender shall have any obligation to make an ANZ Revolving Loan (i) if U.S . Availability is less than zero or to the extent that such ANZ Revolving Loan would result in U.S. Availability being less than zero or (ii) to the extent that such Revolving Loan would result in the Aggregate Revolver Outstandings exceeding the Maximum Revolver Amount or the Aggregate ANZ Revolver Outstandings exceeding the Maximum ANZ Revolver Amount. The ANZ Revolving Credit Lenders, however, in their unanimous discretion, may elect to make ANZ Revolving Loans in excess of U. S. Availability (but not in an amount that would result in the Aggregate Revolver Outstandings exceeding the Maximum Revolver Amount or the Aggregate ANZ Revolver Outstandings exceeding the Maximum ANZ Revolver Amount) on one or more occasions, but if they do so, neither the Agent nor the Lenders shall be deemed thereby to have changed the limits of the U.S. Borrowing Base or to be obligated to exceed such limit on any other occasion.

 

2.2        Revolving Loan Administration.

 

(a)          Procedure for Borrowing. (i) Each of the applicable Borrowers may borrow under the applicable Commitments on any Business Day during the period from the Closing Date until the Termination Date; provided that the Borrowers’ Agent shall give the Agent irrevocable (in the case of any notice except notice with respect to the initial extension of Revolving Loans hereunder) notice in substantially the form of Exhibit B or in such other form as may be agreed between the Borrowers’ Agent and the Agent (each, a “Notice of Borrowing”) (which request must be received by the Agent prior to (x) 12:00 noon, New York City time, at least two Business Days prior to the requested Funding Date, if all or any part of the requested Revolving Loans are to be initially LIBOR Loans denominated in Dollars made to a U.S. Borrower, (y) 12:00 noon, New York City time, at least three Business Days prior to the requested Funding Date, if all or any part of the requested Revolving Loans are to be initially LIBOR Loans denominated in Dollars made to any Borrower other than a U.S. Borrower, LIBOR Loans denominated in any Alternative Currency or, BA Equivalent Loans, Bank Bill Rate Loans or SONIA Rate Loans or (z) 12:00 noon, New York City time, on the requested Funding Date, for Base Rate Loans or Canadian Prime Rate Loans (or in the case of the initial Borrowing hereunder, in each case, 10:00 a.m., New York City time, one Business Day prior to the date of the initial borrowing hereunder)) specifying (A) the identity of the Borrower, (B) the currency of the requested Borrowing and the amount to be borrowed, (C) the requested Funding Date, (D) whether the Borrowing is to be of LIBOR Loans, BA Equivalent Loans, Base Rate Loans or, Canadian Prime Rate Loans, SONIA Rate Loans or Bank Bill Rate Loans (as applicable) or a combination thereof (and if not so specified, it shall be deemed a request for Base Rate Loans (in the case of U.S. Revolving Loans, ROW Revolving Loans denominated in Dollars or Canadian Revolving Loans denominated in Dollars), LIBOR Loans with an Interest Period of one month (in the case of ROW Revolving Loans denominated in an Alternative Currency other than Sterling, Australian Dollars or New Zealand Dollars or in the case of ANZ Revolving Loans denominated in Dollars) or, Canadian Prime Rate Loans (in the case of Canadian Revolving Loans denominated in Canadian Dollars), SONIA Rate Loans (in the case of Revolving Loans denominated in Sterling) or Bank Bill Rate Loans with an Interest Period of one month (in the case of Revolving Loans denominated in Australian Dollars or New Zealand Dollars)) (provided that no such Notice of Borrowing shall request (x) ANZ Revolving Loans that are Base Rate Loans, and any such request shall be deemed to be a request for LIBOR Loans or Bank Bill Rate Loans, as applicable, in each case with an Interest Period of one month (for the avoidance of doubt, this proviso shall not apply to any ANZ Swingline Loans requested pursuant to Section 2.3(e)) or (y) Revolving Loans denominated in Sterling that are LIBOR Loans, and any such request shall be deemed to be a request for SONIA Rate Loans), and (E) if the Borrowing is to be entirely or partly of LIBOR Loans or, BA Equivalent Loans or Bank Bill Rate Loans, the respective amounts of each such Type of Loan and the respective lengths of the initial Interest Periods or BA Equivalent Interest Periods therefor (and if not so specified, it shall be deemed a request for a period of one month). Each Borrowing, except any Base Rate Loan or Canadian Prime Rate Loan to be used solely to pay a like amount of outstanding reimbursement obligations in respect of Letters of Credit or Swingline Loans, shall be in an amount equal to an integral multiple of the applicable Borrowing Multiple and not less than the applicable Borrowing Minimum. Upon receipt of any such notice from the Borrowers’ Agent, the Agent shall promptly notify each applicable Revolving Credit Lender thereof. Subject to the satisfaction of the conditions precedent specified in Section 9.2 and except as otherwise set forth in Section 2.10, each applicable Revolving Credit Lender will make the amount of its Pro Rata Share (or, in the case of Bank of America (for so long as it shall be a Revolving Credit Lender), in the case of any Borrowing of Canadian Revolving Loans or ROW Revolving Loans, as applicable, its Pro Rata Share plus an amount equal to the sum of the Pro Rata Share of each Participating Canadian Lender or Participating ROW Lender, as applicable, provided that, so long as any Participating Canadian Lender or Participating ROW Lender is a Defaulting Lender, Bank of America shall not be required to fund or otherwise make available the Pro Rata Share of such Participating Canadian Lender or Participating ROW Lender) of each Borrowing of Revolving Loans available to the Agent for the account of the Borrower(s) identified in such notice to the account or accounts from time to time designated by the Agent prior to 3:00 p.m., New York City time (or 10:00 a.m., New York City time, in the case of the initial borrowing hereunder), or at such other time as to which the Agent shall notify the Borrowers’ Agent reasonably in advance of the Funding Date with respect thereto, on the Funding Date requested by such Borrower(s) in Dollars, Euros, Sterling, Canadian Dollars, Australian Dollars, New Zealand Dollars or any other Alternative Currency, as applicable, and in funds immediately available to the Agent. Such Borrowing will then be made available to the relevant Borrower by the Agent, crediting the account of such Borrower designated by the Borrowers’ Agent in writing, with the aggregate of the amounts made available to the Agent by the applicable Revolving Credit Lenders and in like funds as received by the Agent.

 

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(ii)      In lieu of delivering a Notice of Borrowing, the Borrowers’ Agent may give the Agent telephonic notice of such request for advances on or before the deadline set forth above. The Agent at all times shall be entitled to rely on such telephonic notice in making such Loans, regardless of whether any written confirmation is received.

 

(iii)     At the election of the Agent or the Required Lenders, the Borrowers shall not be entitled to request a BA Equivalent Loan, a LIBOR Loan or a LIBORBank Bill Rate Loan while a Default or Event of Default has occurred and is continuing.

 

(b)         Agent Advances. (i) In the event any U.S. Borrower, ROW Borrower or Canadian Borrower is, as applicable, unable to comply with (x) the U.S. Availability or Canadian Availability limitations set forth in Section 2.1, as applicable, or (y) the conditions precedent to the making of Loans or the issuance of Letters of Credit set forth in Article IX or (ii) during the existence of a Default or Event of Default, (x) the Lenders authorize the Agent (in the case of Canadian Revolving Loans, acting through its Canadaany branch designated by it), for the account of the applicable Lenders, to make U.S. Revolving Loans to the U.S. Borrowers in Dollars, ROW Revolving Loans to the ROW Borrowers in Dollars or Canadian Revolving Loans to the Canadian Borrowers in Canadian Dollars, as applicable, each of which may only be made as Base Rate Loans (in the case of U.S. Revolving Loans or ROW Revolving Loans) or Canadian Prime Rate Loans (in the case of Canadian Revolving Loans) (each, an “Agent Advance”) for a period commencing on the date the Agent first receives a Notice of Borrowing requesting an Agent Advance until the earliest of (A) the 30th Business Day after such date, (B) the date the respective Borrowers or Borrower is again able to comply with the U.S. Availability or Canadian Availability limitations and the conditions precedent to the making of Loans and issuance of Letters of Credit or obtains an amendment or waiver with respect thereto, or the Default or Event of Default no longer exists, and (C) the date the Required Lenders instruct the Agent in writing to cease making Agent Advances (in each case, the “Agent Advance Period”); provided that (I) the Equivalent Amount in Dollars of the aggregate amount of Agent Advances outstanding at any time shall not exceed $250,000,000, (II) the Equivalent Amount in Dollars of the aggregate amount of Agent Advances to the Canadian Borrowers outstanding at any time shall not exceed the product of $250,000,000 multiplied by the Maximum Canadian Revolver Amount as a percentage of the Maximum Revolver Amount and (III) no Agent Advance shall be made to the extent that such Agent Advance would result in (x) the Aggregate Revolver Outstandings exceeding the Maximum Revolver Amount or (y) the Aggregate Pro Rata Revolver Outstandings exceeding the Maximum Pro Rata Revolver Amount. It is understood and agreed that the Borrowers shall have no right to require that any Agent Advances be made.

 

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(c)          Each Lender may make any Loan to the applicable Borrower through any branch or affiliate of such Lender that is an Eligible Assignee, provided that such Lender shall retain all rights and obligations hereunder in respect of any such Loan and such Lender’s Commitment.

 

(d)       Changes to Maximum Canadian Revolver Amount and Maximum ROW Revolver Amount.

 

(i)       Provided no Default or Event of Default has occurred and is continuing, upon notice to the Agent, (i) the Borrowers’ Agent may request an increase to the Maximum Canadian Revolver Amount by an amount not to exceed $200,000,000 (up to a total of $450,000,000), which increase shall be subject to the prior written consent of the Agent (not to be unreasonably withheld) but shall not require the consent of any Lender, and (ii) the Borrowers’ Agent may request an increase to the Maximum Canadian Revolver Amount by an amount in excess of $200,000,000, which increase shall be subject to the prior written consent of the Agent (not to be unreasonably withheld) and the Required Lenders; provided that the Maximum Canadian Revolver Amount may only be increased in amounts of at least $25,000,000 and in integral multiples of $5,000,000 in excess thereof.

 

(ii)      Provided no Default or Event of Default has occurred and is continuing, upon notice to the Agent, (i) the Borrowers’ Agent may request an increase to the Maximum ROW Revolver Amount by an amount not to exceed $125,000,000 (up to a total of $250,000,000), which increase shall be subject to the prior written consent of the Agent (not to be unreasonably withheld) but shall not require the consent of any Lender, and (ii) the Borrowers’ Agent may request an increase to the Maximum ROW Revolver Amount by an amount in excess of $125,000,000, which increase shall be subject to the prior written consent of the Agent (not to be unreasonably withheld) and the Required Lenders; provided that the Maximum ROW Revolver Amount may only be increased in amounts of at least $25,000,000 and in integral multiples of $5,000,000 in excess thereof.

 

(iii)     Upon notice to the Agent, the Borrowers’ Agent may request a decrease to the Maximum Canadian Revolver Amount or the Maximum ROW Revolver Amount, as applicable, in an amount equal to an integral multiple of $5,000,000.

 

2.3        Swingline Loans.

 

(a)          U.S. Swingline Loans. Subject to the terms and conditions hereof, the U.S. Swingline Lender agrees to make swing line loans (individually, a “U.S. Swingline Loan” and collectively, the “U.S. Swingline Loans”) to any U.S. Borrower from time to time on any Business Day during the period from the Closing Date until the Termination Date in an aggregate principal amount at any one time outstanding not to exceed (i) $150,000,000 or (ii) such greater amount, not to exceed $250,000,000, as may be requested by the Borrowers’ Agent and agreed to in writing by the Agent and the U.S. Swingline Lender (the “U.S. Swingline Sublimit”); provided that the U.S. Swingline Lender shall not make any U.S. Swingline Loans if, after doing so, (A) U.S. Availability would be less than zero or, (B) the Aggregate Revolver Outstandings would exceed the Maximum Revolver Amount or (C) the Aggregate Pro Rata Revolver Outstandings would exceed the Maximum Pro Rata Revolver Amount. Amounts borrowed by any U.S. Borrower under this Section 2.3(a) may be repaid and, through but excluding the Termination Date, reborrowed. All U.S. Swingline Loans shall be made in Dollars as Base Rate Loans and shall not be entitled to be converted into LIBOR Loans. The Borrowers’ Agent (on behalf of any U.S. Borrower) shall give the U.S. Swingline Lender irrevocable notice (which notice must be received by the U.S. Swingline Lender prior to 12:00 noon, New York City time) on the requested Funding Date specifying (1) the identity of the U.S. Borrower and (2) the amount of the requested U.S. Swingline Loan, which shall be in a minimum amount of $100,000 or whole multiples of $50,000 in excess thereof. The proceeds of the U.S. Swingline Loan will be made available by the U.S. Swingline Lender to the U.S. Borrower identified in such notice at an office of the U.S. Swingline Lender by wire transfer to the account of such U.S. Borrower specified in such notice. Each U.S. Swingline Loan shall be subject to all the terms and conditions applicable to other U.S. Revolving Loans except that all payments thereon (including interest) shall be payable to the U.S. Swingline Lender solely for its own account.

 

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(b)          ROW Swingline Loans. Subject to the terms and conditions hereof, the ROW Swingline Lender agrees to make swing line loans (individually, a “ROW Swingline Loan” and collectively, the “ROW Swingline Loans”) to any ROW Borrower from time to time on any Business Day during the period from the Closing Date until the Termination Date in an aggregate principal amount at any one time outstanding not to exceed (i) $10,000,000 or (ii) such greater amount, not to exceed $20,000,000, as may be requested by the Borrowers’ Agent and agreed to in writing by the Agent and the ROW Swingline Lender (the “ROW Swingline Sublimit”); provided that the ROW Swingline Lender shall not make any ROW Swingline Loans if, after doing so, (A) U.S. Availability would be less than zero, (B) the Aggregate Revolver Outstandings would exceed the Maximum Revolver Amount or, (C) the Aggregate ROW Revolver Outstandings would exceed the Maximum ROW Revolver Amount or (D) the Aggregate Pro Rata Revolver Outstandings would exceed the Maximum Pro Rata Revolver Amount. Amounts borrowed by any ROW Borrower under this Section 2.3(b) may be repaid and, through but excluding the Termination Date, reborrowed. All ROW Swingline Loans shall be made in Dollars, Euros or Sterling, as requested by the applicable ROW Borrower, as Base Rate Loans bearing interest based on the Foreign Base Rate or, in the case of Sterling denominated ROW Swingline Loans, as SONIA Rate Loans, and shall not be entitled to be converted into LIBOR Loans. The Borrowers’ Agent (on behalf of any ROW Borrower) shall give the ROW Swingline Lender irrevocable notice (which notice must be received by the ROW Swingline Lender prior to 11:00 a.m., London time) on the requested Funding Date specifying (1) the identity of the ROW Borrower, and (2) the amount and currency of the requested ROW Swingline Loan, which shall be in an amount equal to an integral multiple of the applicable ROW Swingline Loan Multiple and not less than the applicable ROW Swingline Loan Minimum. The proceeds of the ROW Swingline Loan will be made available by the ROW Swingline Lender to the ROW Borrower identified in such notice at an office of the ROW Swingline Lender by wire transfer to the account of such ROW Borrower specified in such notice. Each ROW Swingline Loan shall be subject to all the terms and conditions applicable to ROW Revolving Loans except that all payments thereon (including interest) shall be payable to the ROW Swingline Lender solely for its own account.

 

(c)          Canadian Swingline Loans. Subject to the terms and conditions hereof, the Canadian Swingline Lender agrees to make swing line loans (individually, a “Canadian Swingline Loan”; collectively, the “Canadian Swingline Loans”) to any Canadian Borrower from time to time on any Business Day during the period from the Closing Date until the Termination Date in an aggregate principal amount at any one time outstanding not to exceed $50,000,000 (the “Canadian Swingline Sublimit”); provided that the Canadian Swingline Lender shall not make any Canadian Swingline Loans if, after doing so, (i) Canadian Availability would be less than zero or, (ii) the Aggregate Revolver Outstandings would exceed the Maximum Revolver Amount or (iii) the Aggregate Pro Rata Revolver Outstandings would exceed the Maximum Pro Rata Revolver Amount. Amounts borrowed by any Canadian Borrower under this Section 2.3(c) may be repaid and, through but excluding the Termination Date, reborrowed. All Canadian Swingline Loans shall be made in Canadian Dollars as Canadian Prime Rate Loans and shall not be entitled to be converted into BA Equivalent Loans. The Borrowers’ Agent (on behalf of any Canadian Borrower) shall give the Canadian Swingline Lender irrevocable notice (which notice must be received by the Canadian Swingline Lender prior to 12:00 noon, New York City time) on the requested Funding Date specifying (A) the identity of the Canadian Borrower and (B) the amount of the requested Canadian Swingline Loan, which shall be in a minimum amount of Cdn $ 100,000 or whole multiples of Cdn $ 50,000 in excess thereof. The proceeds of the Canadian Swingline Loan will be made available by the Canadian Swingline Lender to the Canadian Borrower identified in such notice at an office of the Canadian Swingline Lender by wire transfer to the account of such Canadian Borrower specified in such notice. Each Canadian Swingline Loan shall be subject to all the terms and conditions applicable to other Canadian Revolving Loans except that all payments thereon (including interest) shall be payable to the Canadian Swingline Lender solely for its own account.

 

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(d)          French Swingline Loans. Subject to the terms and conditions hereof, the French Swingline Lender agrees to make swing line loans (individually, a “French Swingline Loan” and collectively, the “French Swingline Loans”) to any French Borrower from time to time on any Business Day during the period from the Closing Date until the Termination Date in an aggregate principal amount at any one time outstanding not to exceed $15,000,000 (the “French Swingline Sublimit”); provided that the French Swingline Lender shall not make any French Swingline Loans if, after doing so, (i) U.S. Availability would be less than zero or, (ii) the Aggregate Revolver Outstandings would exceed the Maximum Revolver Amount or (iii) the Aggregate Pro Rata Revolver Outstandings would exceed the Maximum Pro Rata Revolver Amount. Amounts borrowed by any French Borrower under this Section 2.3(d) may be repaid and, through but excluding the Termination Date, reborrowed. All French Swingline Loans shall be made in Dollars, Euros or Sterling, as requested by the applicable French Borrower, as Base Rate Loans bearing interest based on the Foreign Base Rate, in the case of Sterling denominated French Swingline Loans, as SONIA Rate Loans, or, as requested by the applicable French Borrower, as LIBOR Loans. The Borrowers’ Agent (on behalf of any French Borrower) shall give the French Swingline Lender irrevocable notice (which notice must be received by the French Swingline Lender prior to (A) 11:00 a.m., London time, at least two Business Days prior to the requested Funding Date, if the requested French Swingline Loan is to be initially a LIBOR Loan or (B) 11:00 a.m., London time, on the requested Funding Date, if the requested French Swingline Loan is to be initially a Base Rate Loan or a SONIA Rate Loan) specifying (1) the identity of the French Borrower, (2) the amount and currency of the requested French Swingline Loan, which shall be in an amount equal to (x) in the case of a Base Rate Loan, an integral multiple of the applicable French Swingline Loan Multiple and not less than the applicable French Swingline Loan Minimum and (y) in the case of a LIBOR Loan, an integral of the applicable Borrowing Multiple and not less than the applicable Borrowing Minimum, (3) the requested Funding Date, (4) whether the French Swingline Loan is to be a Base Rate Loan or a LIBOR Rate Loan (and if not so specified, it shall be deemed a request for a Base Rate Loan) and (5) if the French Swingline Loan is to be a LIBOR Loan, the length of the initial Interest Period therefor (and if not so specified, it shall be deemed a request for a period of one month). The proceeds of the French Swingline Loan will be made available by the French Swingline Lender to the French Borrower identified in such notice at an office of the French Swingline Lender by wire transfer to the account of such French Borrower specified in such notice. Each French Swingline Loan shall be subject to all the terms and conditions applicable to Revolving Loans except that all payments thereon (including interest) shall be payable to the French Swingline Lender solely for its own account.

 

(e)          ANZ Swingline Loans. Subject to the terms and conditions hereof, the ANZ Swingline Lender agrees to make swing line loans (individually, an “ANZ Swingline Loan” and collectively, the “ANZ Swingline Loans”) to any ANZ Borrower from time to time on any Business Day during the period from the First Amendment Effective Date until the Termination Date in an aggregate principal amount at any one time outstanding not to exceed $20,000,000 (the “ANZ Swingline Sublimit”); provided that the ANZ Swingline Lender shall not make any ANZ Swingline Loans if, after doing so, (i) U .S. Availability would be less than zero, (ii) the Aggregate Revolver Outstandings would exceed the Maximum Revolver Amount or (iii) the Aggregate ANZ Revolver Outstandings would exceed the Maximum ANZ Revolver Amount. Amounts borrowed by any ANZ Borrower under this Section 2.3(e) may be repaid and, through but excluding the Termination Date, reborrowed. All ANZ Swingline Loans shall be made in Dollars, Australian Dollars or New Zealand Dollars, as requested by the applicable ANZ Borrower, as Base Rate Loans bearing interest based on the Base Rate or the Foreign Base Rate, as applicable, and shall not be entitled to be converted into LIBOR Loans or Bank Bill Rate Loans . The Borrowers’ Agent (on behalf of any ANZ Borrower) shall give the ANZ Swingline Lender irrevocable notice (which notice must be received by the ANZ Swingline Lender prior to 10:00 a.m., Sydney time) on the requested Funding Date specifying (A) the identity of the ANZ Borrower, and (B) the amount and currency of the requested ANZ Swingline Loan, which shall be in an amount equal to an integral multiple of the applicable ANZ Swingline Loan Multiple and not less than the applicable ANZ Swingline Loan Minimum. The proceeds of the ANZ Swingline Loan will be made available by the ANZ Swingline Lender to the ANZ Borrower identified in such notice at an office of the ANZ Swingline Lender by wire transfer to the account of such ANZ Borrower specified in such notice. Each ANZ Swingline Loan shall be subject to all the terms and conditions applicable to ANZ Revolving Loans except that all payments thereon (including interest) shall be payable to the ANZ Swingline Lender solely for its own account.

 

2.4Letters of Credit.

 

(a)Agreement to Issue or Cause to Issue.

 

(i) Subject to all of the terms and conditions of this Agreement, the Agent agrees to cause each Letter of Credit Issuer to issue for the account of the Company (or for the account of any other Borrower or any Subsidiary of the Company, so long as the Company and such other Borrower or such Subsidiary are co-applicants) one or more commercial/documentary and standby letters of credit denominated in Dollars, Canadian Dollars or any Alternative Currency, as requested by the Borrowers’ Agent (each, a “Letter of Credit” and, collectively, the “Letters of Credit”) and to amend, renew or extend Letters of Credit previously issued by the applicable Letter of Credit Issuer (unless otherwise provided below).

 

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(ii)      Upon the Closing Date, (x) all Existing Letters of Credit issued for the account of the Company shall constitute Letters of Credit issued for the account of the Company hereunder with the same effect and status as if such Existing Letters of Credit were originally issued for the account of the Company pursuant to this Agreement and (y) all Existing Letters of Credit issued for the account of the UR Canada shall constitute Letters of Credit issued for the account of UR Canada (with the Company deemed to be a co-applicant thereof) hereunder with the same effect and status as if such Existing Letters of Credit were originally issued for the account of UR Canada pursuant to this Agreement. All fees payable with respect to the Existing Letters of Credit accruing through the Closing Date shall be paid on the Closing Date. Until the Closing Date, the fees with respect to all Existing Letters of Credit shall accrue and be payable at the rates set forth in the Existing Loan Agreement and on and after the Closing Date such fees shall accrue and be payable at the rates set forth herein.

 

(b)         Amounts; Outside Expiration Date. The Agent shall not have any obligation to issue or cause to be issued any Letter of Credit at any time if the Equivalent Amount in Dollars of (i) the maximum aggregate amount of the requested Letter of Credit for the term of such Letter of Credit (in each case including any increases in amount referenced therein) is greater than the Unused Letter of Credit Subfacility at such time, (ii) the maximum undrawn amount of the requested Letter of Credit would result in the U.S. Availability being less than zero, (iii) such Letter of Credit would result in the Aggregate Revolver Outstandings exceeding the Maximum Revolver Amount or the Aggregate Pro Rata Revolver Outstandings exceeding the Maximum Pro Rata Revolver Amount or (iv) such Letter of Credit has an expiration date later than 12 months after the date of issuance, in the case of standby letters of credit (subject to customary evergreen or automatic renewal provisions reasonably acceptable to such Letter of Credit Issuer), or later than 180 days after the date of issuance, in the case of documentary letters of credit; provided that in no event shall any Letter of Credit have an expiration date later than the date that is five Business Days prior to the Termination Date (except to the extent cash collateralized or backstopped pursuant to arrangements reasonably acceptable to the relevant Letter of Credit Issuer). With respect to any Letter of Credit which contains any “evergreen” or automatic renewal or extension provision, if such Letter of Credit permits the applicable Letter of Credit Issuer to prevent any extension by giving notice to the beneficiary thereof no later than a date (the “Non-Extension Notice Date”), once any such Letter of Credit has been issued, the Lenders shall be deemed to have authorized such Letter of Credit Issuer to permit extensions of such Letter of Credit to an expiry date not later than the date that is five Business Days prior to the Termination Date, unless the Agent shall have received written notice from the Required Lenders declining to consent to any such extension at least 30 days prior to the Non-Extension Notice Date; provided that no Lender may decline to consent to any such extension if all of the requirements of this Section 2.4 are met and no Default or Event of Default has occurred and is continuing.

 

(c)         Other Conditions. In addition to the conditions precedent contained in Article IX, the obligation of the Agent to issue or to cause to be issued any applicable Letter of Credit is subject to the following conditions precedent having been satisfied in a manner reasonably acceptable to the Agent:

 

(i)       the applicable Borrower shall have delivered to the applicable Letter of Credit Issuer, at least three Business Days (or such shorter period as the applicable Letter of Credit Issuer may, in its reasonable discretion, agree) in advance of the proposed date of issuance of any Letter of Credit, an application in form and substance reasonably satisfactory to such Letter of Credit Issuer for the issuance of the Letter of Credit and such other documents as may be reasonably required pursuant to the terms thereof, and the form of the proposed Letter of Credit shall be reasonably satisfactory to the Agent and the applicable Letter of Credit Issuer; and

 

(ii)      as of the date of issuance, no order of any court, arbitrator or Governmental Authority shall purport by its terms to enjoin or restrain the applicable Letter of Credit Issuer from issuing letters of credit of the type and in the amount of the proposed Letter of Credit, and no law, rule or regulation applicable to the applicable Letter of Credit Issuer and no request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such Letter of Credit Issuer shall prohibit, or request that the proposed Letter of Credit Issuer refrain from, the issuance of letters of credit generally or the issuance of such Letters of Credit.

 

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(d)       Issuance of Letters of Credit.

 

(i)       Request for Issuance. The Borrowers’ Agent shall notify the Agent of a requested Letter of Credit at least three Business Days (or such shorter period as the applicable Letter of Credit Issuer may agree) prior to the proposed issuance date. Such notice shall be irrevocable and must specify (t) the applicant or applicants of the Letter of Credit, (u) the original face amount (and currency) of the Letter of Credit requested, (v) the Business Day of issuance of such requested Letter of Credit, (w) whether such Letter of Credit may be drawn in a single or in partial draws, (x) the Business Day on which the requested Letter of Credit is to expire, (y) the purpose for which such Letter of Credit is to be issued, and (z) the beneficiary of the requested Letter of Credit. The Borrowers’ Agent shall attach to such notice the proposed form of the Letter of Credit.

 

(ii)      Responsibilities of the Agent; Issuance. As of the Business Day immediately preceding the requested issuance date of each Letter of Credit, the Agent shall determine the amount of the Unused Letter of Credit Subfacility and the U.S. Availability as of such date. If the Equivalent Amount in Dollars of (x) the aggregate amount of the requested Letter of Credit for the term of such Letter of Credit (including any increases in amount referenced therein) is no greater than the Unused Letter of Credit Subfacility, (y) the amount of such requested Letter of Credit would not exceed the U.S. Availability and (z) such Letter of Credit would not result in the Aggregate Revolver Outstandings exceeding the Maximum Revolver Amount or the Aggregate Pro Rata Revolver Outstandings exceeding the Maximum Pro Rata Revolver Amount, the Agent shall cause such Letter of Credit Issuer to issue the requested Letter of Credit on the requested issuance date so long as the other conditions to such issuance are met.

 

(iii)     No Extensions or Amendment. Except in the case of Letters of Credit subject to evergreen or automatic renewal provisions, the Agent shall not be obligated to cause the applicable Letter of Credit Issuer to extend, renew or amend any Letter of Credit issued pursuant hereto unless the requirements of this Section 2.4 are met as though a new Letter of Credit were being requested and issued.

 

(e)          Payments Pursuant to Letters of Credit. Each Borrower that is the account party of any Letter of Credit agrees to reimburse the applicable Letter of Credit Issuer for any draw under such Letter of Credit within one Business Day (or such longer period as may be agreed to by the Agent and the applicable Letter of Credit Issuer, in each case in its reasonable discretion) after notice of such drawing is received by such Borrower, together with accrued interest thereon from the date of such drawing at the Base Rate (in the case of Letters of Credit denominated in Dollars), at the Canadian Prime Rate (in the case of Letters of Credit denominated in Canadian Dollars) and at the Foreign Base Rate (in the case of Letters of Credit denominated in any Alternative Currency), and to pay the applicable Letter of Credit Issuer the amount of all other charges and fees payable to or reasonably incurred by such Letter of Credit Issuer in connection with any Letter of Credit immediately when due, irrespective of any claim, setoff, defense or other right which any Borrower may have at any time against such Letter of Credit Issuer or any other Person. All payments required under this Section 2.4(e) shall be made in the currency in which the applicable Letter of Credit was issued; provided, however, that the applicable Borrower may, subject to the conditions to borrowing set forth herein, request in accordance with Section 2.2 that such payment be financed with, or, in the event not so requested on such date, each drawing under any Letter of Credit issued for the account of a Borrower shall constitute a request by such Borrower to the Agent for, a Borrowing in Dollars of a Base Rate Loan or a Borrowing in Canadian Dollars of a Canadian Prime Rate Loan, as applicable, in the amount of such drawing (or, with respect to Letters of Credit issued in any Alternative Currency, a Borrowing in Dollars of a Base Rate Loan in the Equivalent Amount in Dollars of such drawing) and, to the extent so financed, such Borrower’s obligation to make such payment will be discharged and replaced by the resulting Base Rate Loan or Canadian Prime Rate Loan, as applicable.

 

(f)        Indemnification; Exoneration; Power of Attorney.

 

(i)       Indemnification. In addition to amounts payable as elsewhere provided in this Section 2.4, the Borrowers agree to protect, indemnify, pay and save the applicable Revolving Credit Lenders, the applicable Letter of Credit Issuer and the Agent harmless from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including Attorney Costs) which any Revolving Credit Lender, such Letter of Credit Issuer or the Agent may incur or be subject to as a consequence, direct or indirect, of the issuance of any Letter of Credit, except that the foregoing indemnity shall not apply to such Revolving Credit Lender, such Letter of Credit Issuer or the Agent, as applicable, to the extent of the gross negligence, bad faith or willful misconduct of such Person. The Borrowers’ obligations under this Section 2.4(f)(i) shall survive payment of all other Obligations and termination of this Agreement.

 

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(ii)       Assumption of Risk by the Borrowers. As among the applicable Borrowers, the applicable Revolving Credit Lenders, the applicable Letter of Credit Issuer and the Agent, the applicable Borrowers assume all risks of the acts and omissions of, or misuse of any of the Letters of Credit by, the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of the foregoing, the applicable Revolving Credit Lenders, the applicable Letter of Credit Issuer and the Agent shall not be responsible for (except in the case of any such Person (but not with respect to any other Person), to the extent of the gross negligence, bad faith or willful misconduct of such Person in connection with any of the following): (r) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any Person in connection with the application for and issuance of and presentation of drafts with respect to any of the Letters of Credit, even if it should prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (s) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason; (t) the failure of the beneficiary of any Letter of Credit to comply duly with conditions set forth in any separate agreement with an Obligor that are required in order to draw upon such Letter of Credit; (u) errors, omissions, interruptions, or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they be in cipher; (v) errors in interpretation of technical terms; (w) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any Letter of Credit or of the proceeds thereof; (x) the misapplication by the beneficiary of any Letter of Credit of the proceeds of any drawing under such Letter of Credit; (y) any consequences arising from causes beyond the control of the applicable Revolving Credit Lenders, the applicable Letter of Credit Issuer or the Agent, including any act or omission, whether rightful or wrongful, of any present or future de jure or de facto Governmental Authority; or (z) the applicable Letter of Credit Issuer’s honor of a draw for which the draw or any certificate fails to comply in any material respect with the terms of the Letter of Credit. None of the foregoing shall affect, impair or prevent the vesting of any rights or powers of the Agent or any Revolving Credit Lender under this Section 2.4(f).

 

(iii)     Exoneration. Without limiting the foregoing, no action or omission whatsoever by the Agent, a Letter of Credit Issuer or any Revolving Credit Lender shall result in any liability of the Agent, such Letter of Credit Issuer or any Revolving Credit Lender to any Borrower (except as provided in the immediately succeeding clause (iv)), or relieve any Borrower of any of its obligations hereunder to any such Person.

 

(iv)     Rights Against Letter of Credit Issuer. Nothing contained in this Agreement is intended to limit the Borrowers’ rights, if any, with respect to any Letter of Credit Issuer which arise as a result of the letter of credit application and related documents executed by and between any Borrower and such Letter of Credit Issuer or the gross negligence, bad faith or willful misconduct of such Letter of Credit Issuer.

 

(v)      Account Party. The Borrowers hereby authorize and direct any Letter of Credit Issuer to name the applicable Borrower as the “Account Party” in the Letters of Credit and to deliver to the Agent all instruments, documents and other writings and property received by the applicable Letter of Credit Issuer pursuant to the Letters of Credit, and to accept and rely upon the Agent’s instructions and agreements with respect to all matters arising in connection with the Letters of Credit or the applications therefor.

 

(g)         Supporting Letter of Credit. If, notwithstanding the provisions of Section 2.4(b) and Section 11.1, any Letter of Credit is outstanding upon the Termination Date, then upon the Termination Date each applicable Borrower shall (i) deposit with the Agent, for the ratable benefit of the Agent, the applicable Letter of Credit Issuer and the applicable Revolving Credit Lenders, with respect to each Letter of Credit then outstanding, a standby letter of credit (a “Supporting Letter of Credit”) in form and substance reasonably satisfactory to the Agent, issued by an issuer reasonably satisfactory to the Agent, in an amount equal to 102% (or such lesser amount as the Agent and such Letter of Credit Issuer shall agree, but not less than 100%) of the sum of the greatest amount for which such Letter of Credit may be drawn plus any fees and expenses then due with such Letter of Credit, under which Supporting Letter of Credit the Agent is entitled to draw amounts necessary to reimburse the Agent, such Letter of Credit Issuer and the applicable Revolving Credit Lenders for payments to be made by the Agent, such Letter of Credit Issuer and such Revolving Credit Lenders under such Letter of Credit and any fees and expenses then due or to become due with such Letter of Credit, or (ii) cash collateralize each Letter of Credit then outstanding, in an amount equal to 102% (or such lesser amount as the Agent and such Letter of Credit Issuer shall agree) of the sum of the greatest amount for which such Letter of Credit may be drawn plus any fees and expenses then due with such Letter of Credit, in a manner reasonably satisfactory to the Agent. Such Supporting Letter of Credit or cash collateral shall be held by the Agent, for the ratable benefit of the Agent, the applicable Letter of Credit Issuer and the Revolving Credit Lenders, as security for, and to provide for the payment of, the aggregate undrawn amount of such Letters of Credit remaining outstanding.

 

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2.5        Incremental Facility.

 

(a)          So long as no Specified Default exists or would arise therefrom, each Borrower shall have the right, at any time and from time to time after the Closing Date, to request (i) an increase of the aggregate amount of the then outstanding Pro Rata Revolving Credit Commitments or ANZ Revolving Credit Commitments, as applicable (the “Incremental Revolving Commitments”) or (ii) one or more term loans (the “Incremental ABL Term Loans” and together with the Incremental Revolving Commitments, collectively, the “Incremental Facilities” and each, an “Incremental Facility”). Any request under this Section 2.5 shall specify, (A) in the case of a request for Incremental Revolving Commitments, whether the Pro Rata Revolving Credit Commitments or the ANZ Revolving Credit Commitments (or a combination thereof) are requested to be increased and (B) in the case of a request for Incremental ABL Term Loans, (x) whether such loans will be made to a U.S. Borrower, a ROW Borrower and/or, a Canadian Borrower and/or an ANZ Borrower (including in each case any Additional Borrower) and (y) the currency in which such loans will be denominated, which shall be Dollars (to the extent made to a U.S. Borrower), Dollars, Euros, Sterling or any other Alternative Currency (to the extent made to a ROW Borrower) or, Cdn. Dollars or Dollars (to the extent made to a Canadian Borrower) or Dollars, Australian Dollars or New Zealand Dollars (to the extent made to an ANZ Borrower). Incremental ABL Term Loans will count as U.S. Revolving Loans (to the extent made to a U.S. Borrower), ROW Revolving Loans (to the extent made to a ROW Borrower) or, Canadian Revolving Loans (to the extent made to a Canadian Borrower) or ANZ Revolving Loans (to the extent made to an ANZ Borrower) for purposes of determining the Aggregate U.S. Revolver Outstandings, the Aggregate ROW Revolver Outstandings, the Aggregate Canadian Revolver Outstandings and the Aggregate CanadianANZ Revolver Outstandings, as applicable. Notwithstanding anything to the contrary herein, after giving effect to any new Incremental Facility, the Equivalent Amount in Dollars of the aggregate principal amount of any Incremental ABL Term Loans or Incremental Revolving Commitments shall not exceed the Available Incremental Amount at such time. The Borrowers may seek to obtain Incremental Revolving Commitments or Incremental ABL Term Loans from existing Lenders or any other Persons, as applicable (each, an “Incremental Facility Increase”), provided, however, that (A) no Lender shall be obligated to provide an Incremental Facility Increase as a result of any such request by any of the Borrowers, and (B) any Additional Lender which is not an existing Lender shall be subject to the approval of the Agent and the Borrowers’ Agent and, in the case of Incremental Revolving Commitments, the Swingline Lenders and the Letter of Credit Issuers (each such approval not to be unreasonably withheld).

 

(b)         Any Incremental ABL Term Loans (i) may not be guaranteed by any Subsidiaries of Holdings other than the Guarantors and shall rank pari passu or junior in right of (x) priority with respect to the Collateral and (y) payment with respect to the Obligations in respect of the Revolving Credit Commitments and any corresponding existing Incremental ABL Term Loans, (ii) shall count against the applicable Borrowing Base, (iii) shall not have a final maturity that is earlier than the Maturity Date (or, if later, the latest final maturity of any Extended Loans or any then-existing Incremental Facility), except for Incremental ABL Term Loans in an aggregate principal amount of up to the greater of (A) $705,000,000 and (B) 7.5% of Consolidated Net Tangible Assets, (iv) may not be secured by any Collateral or other assets of any Borrower or any Guarantor that do not also secure the Loans (other than, in the case of Incremental ABL Term Loans incurred to finance a Permitted Acquisition or other permitted Investment, proceeds of such Incremental ABL Term Loans that are subject to customary escrow or similar arrangements pending consummation of such Permitted Acquisition or other Investment), (v) may provide for commitment, arrangement, upfront or similar fees and margins and interest rates that may be agreed among the applicable Borrower and the Lenders providing such Incremental ABL Term Loans and (vi) shall otherwise be on terms as are reasonably acceptable to the Agent; provided that terms that are substantially consistent with, or not materially less favorable, taken as a whole, to the Lenders than, the terms of the TLB Credit Agreement or this Agreement shall be deemed to be reasonably acceptable to the Agent.

 

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(c)      Any Incremental Revolving Commitments (i) shall be guaranteed by the Guarantors and shall rank pari passu or junior in right of (x) priority with respect to the Collateral and (y) payment with respect to the Obligations in respect of the Revolving Credit Commitments in effect prior to the Incremental Revolving Commitment Effective Date, (ii) may not be secured by any Collateral or other assets of any Borrower or any Guarantor that do not also secure the Loans, (iii) may provide for commitment, arrangement, upfront or similar fees and margins and interest rates that may be agreed among the applicable Borrower and the Lenders providing such Incremental Revolving Commitments and (iv) shall otherwise be on terms and pursuant to the documentation applicable to the existing relevant Revolving Credit Commitments.

 

(d)      No Incremental Facility Increase shall become effective unless and until each of the following conditions has been satisfied:

 

(i) The applicable Borrowers, the Agent, and any Additional Lender shall have executed and delivered a joinder to the Loan Documents (“Lender Joinder Agreement”) in substantially the form of Exhibit I;

 

(ii) The applicable Borrowers shall have paid such fees and other compensation to the Additional Lenders and to the Agent as the applicable Borrowers, the Agent and such Additional Lenders shall agree;

 

(iii) To the extent reasonably required by the Lenders providing the Incremental Facility Increase, the applicable Borrowers shall deliver to the Agent and the Lenders participating in the Incremental Facility Increase customary legal opinion(s) from counsel to the applicable Borrowers and dated such date;

 

(iv) The Company shall deliver on the closing date of any Incremental Facility Increase a certificate certifying that (x) (other than with respect to an Incremental Facility Increase in connection with a Permitted Acquisition permitted hereunder or any other Investment not prohibited by the terms of this Agreement, unless required by the Lenders providing such Incremental Facility Increase) the representations and warranties made by Holdings, each Borrower and each Guarantor contained herein and in the other Loan Documents are true and correct in all material respects on and as of such closing date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects as of such earlier date, and (y) no Specified Default has occurred and is continuing; and

 

(v) The applicable Borrowers and Additional Lenders shall have delivered such other instruments, documents and agreements as the Agent may reasonably have requested in order to effectuate the documentation of the foregoing.

 

(e)

 

(i) In the case of any Incremental Facility Increase constituting Incremental Revolving Commitments, the Agent shall promptly notify each Lender as to the effectiveness of such Incremental Facility Increase (with each date of such effectiveness being referred to herein as an “Incremental Revolving Commitment Effective Date”), and at such time (x) the Pro Rata Revolving Credit Commitments and/or the ANZ Revolving Credit Commitments, as applicable, under, and for all purposes of, this Agreement shall be increased by the aggregate amount of such Incremental Revolving Commitments, (y) Schedule 1.1 shall be deemed modified, without further action, to reflect the revised Commitments of the Lenders and (z) this Agreement shall be deemed amended, without further action, to the extent necessary to reflect any such Incremental Revolving Commitments.

 

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(ii) In the case of any Incremental Facility Increase, the Agent, the Additional Lenders and the Borrowers agree to enter into any amendment required to incorporate the addition of the Incremental Revolving Commitments and the Incremental ABL Term Loans, the pricing of the Incremental Revolving Commitments and the Incremental ABL Term Loans, the maturity date of the Incremental Revolving Commitments and the Incremental ABL Term Loans and such other amendments as may be necessary or appropriate in the reasonable opinion of the Agent and the applicable Borrowers in connection therewith, including amendments to provide for the inclusion, as appropriate, of Additional Lenders in any required vote or action of the Required Lenders or the Supermajority Lenders, amendments to permit purchases of Incremental ABL Term Loans by Holdings or any of its Affiliates (which shall be cancelled upon purchase by Holdings or any Subsidiary) (provided that such purchases by an Affiliate of Holdings other than a Subsidiary shall be subject to customary restrictions to be agreed with the Additional Lenders providing such Incremental ABL Term Loans and the Agent), and amendments to properly reflect the pari passu or junior right of payment or priority with respect to the Collateral (each an “Incremental Commitment Amendment”). The Lenders hereby irrevocably authorize the Agent to enter into such amendments.

 

(f)       In connection with the Incremental Facility Increases hereunder, the Lenders and the Borrowers agree that, notwithstanding anything to the contrary in this Agreement, (i) the applicable Borrowers shall, in coordination with the Agent, (x) repay applicable outstanding Revolving Loans of certain Lenders, and obtain applicable Revolving Loans from certain other Lenders (including the Additional Lenders), or (y) take such other actions as reasonably may be required by the Agent to the extent necessary so that the Lenders effectively participate in each of the outstanding Revolving Loans, as applicable, pro rata on the basis of their respective applicable Commitments (determined after giving effect to any increase in such applicable Commitments pursuant to this Section 2.5), and (ii) the applicable Borrowers shall pay to the applicable Lenders any costs of the type referred to in Section 5.4 in connection with any repayment required pursuant to the preceding clause (i). Without limiting the obligations of the Borrowers provided for in this Section 2.5, the Agent and the Lenders agree that they will use commercially reasonable efforts to attempt to minimize the costs of the type referred to in Section 5.4 that the Borrowers would otherwise incur in connection with the implementation of an increase in the applicable Commitments.

 

2.6       Extension Amendments.

 

(a)      The applicable Borrowers may at any time and from time to time request that all or a portion of the Pro Rata Revolving Credit Commitments and/or the ANZ Revolving Credit Commitments (including any Extended Commitments), each existing at the time of such request (each, an “Existing Commitment” and any related Loans thereunder, “Existing Loans”; each Existing Commitment and related Existing Loans together being referred to as an “Existing Tranche”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Existing Loans related to such Existing Commitments (any such Existing Commitments which have been so extended, “Extended Commitments” and any related Existing Loans, “Extended Loans”, with the commitments of the Existing Tranche not so extended and any related Loans thereunder being referred to as “Non-Extended Commitments” and “Non-Extended Loans”, respectively) and to provide for other terms consistent with this Section 2.6; provided that (i) any such request shall be made by the applicable Borrowers to all Lenders with Existing Commitments with a like maturity date on a pro rata basis, and (ii) any Minimum Extension Condition shall be satisfied unless waived by the applicable Borrowers. In order to establish any Extended Commitments, the Borrowers’ Agent shall provide a notice to the Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Tranche) (an “Extension Request”) setting forth the proposed terms of the Extended Commitments to be established, which Extension Request may be modified, revoked, or revoked and reissued by the Borrowers’ Agent at any time prior to the effectiveness of the Extension Amendment. The terms of the Extended Commitments to be established pursuant to an Extension Request shall be identical to those applicable to the Existing Commitments from which they are to be extended (the “Specified Existing Commitment”), except (x) all or any of the final maturity dates of such Extended Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Commitments and (y)(A) the interest margins with respect to the Extended Commitments may be higher or lower than the interest margins for the Specified Existing Commitments and/or (B) additional fees may be payable to the Lenders providing such Extended Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A); provided that, notwithstanding anything to the contrary in this Section 2.6, (I) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Extended Commitments and Non-Extended Commitments shall be made on a pro rata basis with all such other outstanding Extended Commitments and Non-Extended Commitments, (II) assignments and participations of Extended Commitments and Extended Loans shall be governed by the same assignment and participation provisions applicable to relevant Commitments and the Revolving Loans related to such Commitments set forth in Section 12.2, and (III) no termination of Extended Commitments and no repayment of Extended Loans accompanied by a corresponding permanent reduction in Extended Commitments shall be permitted unless such termination or repayment (and corresponding reduction) is accompanied by an at least pro rata termination or permanent repayment (and corresponding permanent reduction), as applicable, of all earlier maturing corresponding Non-Extended Commitments and Revolving Loans related to such earlier maturing corresponding Non-Extended Commitments (or all earlier maturing corresponding Non-Extended Commitments and Revolving Loans related to such corresponding Non-Extended Commitments shall otherwise be or have been terminated and repaid in full). No Lender shall have any obligation to agree to have any of its Existing Loans or Existing Commitments of any Existing Tranche converted into Extended Loans or Extended Commitments pursuant to any Extension Request. Any Extended Commitments shall constitute a separate class of Commitments from the Specified Existing Commitments and from any other Existing Commitments (together with any other Extended Commitments so established on such date); provided that any Extended Commitments or Extended Loans may, to the extent provided in the applicable Extension Amendment, be designated as part of any class of Pro Rata Revolving Credit Commitments and/or ANZ Revolving Credit Commitments or Revolving Loans, as applicable, established on or prior to the date of such Extension Amendment.

 

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(b)      The Borrowers’ Agent shall provide the applicable Extension Request at least 10 Business Days (or such shorter period as may be agreed to by the Agent) prior to the date on which Lenders under the applicable Existing Tranche or Existing Tranches are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Specified Existing Commitments converted into Extended Commitments shall notify the Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Specified Existing Commitments that it has elected to convert into Extended Commitments. In the event that the aggregate amount of Specified Existing Commitments subject to Extension Elections exceeds the amount of Extended Commitments requested pursuant to the Extension Request, the Specified Existing Commitments subject to Extension Elections shall be converted to Extended Commitments on a pro rata basis based on the amount of Specified Existing Commitments included in each such Extension Election. Notwithstanding the conversion of any Existing Commitment into an Extended Commitment, such Extended Commitment shall be treated identically to all relevant Commitments for purposes of the obligations of a Lender in respect of Letters of Credit under Section 2.4 and Swingline Loans under Section 2.3, except that the applicable Extension Amendment may provide that the maturity date for Swingline Loans and/or Letters of Credit may be extended and the related obligations to make Swingline Loans and issue Letters of Credit may be continued so long as the U.S. Swingline Lender, the ROW Swingline Lender, the Canadian Swingline Lender, the French Swingline Lender, the ANZ Swingline Lender and/or the applicable Letter of Credit Issuer, as applicable, have consented to such extensions in their sole discretion (it being understood that no consent of any other Lender shall be required in connection with any such extension).

 

(c)      Extended Commitments shall be established pursuant to an amendment (an “Extension Amendment”) to this Agreement (which may include amendments to provisions related to maturity, interest margins or fees referenced in Section 2.6(a), clauses (x) and (y), and which, except to the extent expressly contemplated by the penultimate sentence of this Section 2.6(c) and notwithstanding anything to the contrary set forth in Section 12.1, shall not require the consent of any Lender other than the Extending Lenders with respect to the Extended Commitments established thereby) executed by the Borrowers, the Guarantors, the Agent and the Extending Lenders. Notwithstanding anything to the contrary in this Agreement and without limiting the generality or applicability of Section 12.1 to any Section 2.6 Additional Amendments, any Extension Amendment may provide for additional terms and/or additional amendments other than those referred to or contemplated above (any such additional amendment, a “Section 2.6 Additional Amendment”) to this Agreement and the other Loan Documents; provided that such Section 2.6 Additional Amendments do not become effective prior to the time that such Section 2.6 Additional Amendments have been consented to (including pursuant to consents applicable to holders of any Extended Commitments provided for in any Extension Amendment) by such of the Lenders, Borrowers, Guarantors and other parties (if any) as may be required in order for such Section 2.6 Additional Amendments to become effective in accordance with Section 12.1; provided, further, that no Extension Amendment may provide for (i) any Extended Commitment or Extended Loans to be secured by any Collateral or other assets of any Borrower or Guarantor that does not also secure the Existing Tranches and (ii) so long as any Existing Tranches are outstanding, any mandatory or voluntary prepayment provisions that do not also apply to the Existing Tranches (other than Existing Tranches secured on a junior basis by the Collateral or ranking junior in right of payment, which may be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for Existing Tranches than such Extended Commitments or Extended Loans). It is understood and agreed that each Lender has consented for all purposes requiring its consent, and shall at the effective time thereof be deemed to consent to each amendment to this Agreement and the other Loan Documents authorized by this Section 2.6 and the arrangements described above in connection therewith except that the foregoing shall not constitute a consent on behalf of any Lender to the terms of any Section 2.6 Additional Amendment. In connection with any Extension Amendment, the applicable Borrowers shall deliver an opinion of counsel reasonably acceptable to the Agent as to the enforceability of such Extension Amendment, this Agreement as amended thereby, and such of the other Loan Documents (if any) as may be amended thereby.

 

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(d)      Notwithstanding anything to the contrary contained in this Agreement, (i) on any date on which any Existing Tranche is converted to extend the related scheduled maturity date(s) in accordance with Section 2.6(a) (an “Extension Date”), in the case of the Specified Existing Commitments of each Extending Lender, the aggregate principal amount of such Specified Existing Commitments shall be deemed reduced by an amount equal to the aggregate principal amount of Extended Commitments so converted by such Lender on such date, and such Extended Commitments shall, unless otherwise provided by the Extension Amendment, be established as a separate class of Commitments from the Specified Existing Commitments and from any other Existing Commitments (together with any other Extended Commitments so established on such date) and (ii) if, on any Extension Date, any Revolving Loans of any Extending Lender are outstanding under the applicable Specified Existing Commitments, such Revolving Loans (and any related participations) shall be deemed to be allocated as Extended Loans (and related participations) and Existing Loans (and related participations) in the same proportion as such Extending Lender’s Specified Existing Commitments to Extended Commitments so converted by such Lender on such date.