EXHIBIT 10.19
LIABILITY AGREEMENT
▇▇▇▇▇▇▇ ▇▇▇▇▇ RENTAL, L.P.
AND
▇▇▇▇▇▇▇ ▇▇▇▇▇ CAPITAL CORPORATION
THIS LIABILITY AGREEMENT (this "Agreement") is made as of July 15, 1998, by
and among ▇▇▇▇▇▇▇ ▇▇▇▇▇ Rental, L.P., a Pennsylvania limited partnership
("ACRLP"), and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Corporation, a Delaware corporation ("ACR
CAPITAL CORPORATION").
W I T N E S S E T H:
WHEREAS, ACRLP is a Pennsylvania limited partnership; and
WHEREAS, ACR CAPITAL CORPORATION is a Delaware corporation which is wholly
owned by ACRLP and which owns only a nominal amount of assets; and
WHEREAS, ACRLP and ACR CAPITAL CORPORATION are issuing, jointly and
severally, $155,000,000 of Senior Notes (the "Senior Notes"), with all of the
proceeds of such Senior Notes being received by ACRLP; and
WHEREAS, ACRLP intends to borrow certain funds pursuant to a senior secured
credit facility with a borrowing capacity of $325,000,000 (the "Senior Secured
Credit Facility"); and
WHEREAS, the parties to this Agreement desire to set forth in writing their
agreement as to the ultimate liability between them for the repayment of such
Senior Notes, the Senior Secured Credit Facility and any other liabilities which
were incurred for the benefit of ACRLP, whether or not incurred jointly with ACR
Capital Corporation (the "Other Liabilities").
NOW, THEREFORE, in consideration of the premises and the mutual covenants,
representations, warranties, conditions and agreements set forth herein and
intending to be legally bound hereby, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1. DEFINITIONS. When used in this Agreement, any amendments hereto or
any exhibit or schedule attached hereto, the following terms shall have the
meanings specified:
"Agreement" shall mean this Liability Agreement, as the same may be
amended or supplemented from time to time.
"ACRLP" shall mean ▇▇▇▇▇▇▇ ▇▇▇▇▇ Rental, L.P., a Pennsylvania limited
partnership.
"ACR CAPITAL CORPORATION" shall mean ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital
Corporation, a Delaware corporation.
"Person" shall mean any natural person, partnership, corporation,
association or other legal entity.
1.2. SINGULAR/PLURAL; GENDER. Where the context so requires or permits,
the use of the singular form includes the plural, and use of the plural form
includes the singular, and the use of any gender includes any and all genders.
ARTICLE II
LIABILITY AGREEMENTS
2.1. AGREEMENT AS TO ULTIMATE LIABILITY. The parties to this Agreement
hereby acknowledge that the benefits from the proceeds of the issuance of the
Senior Notes, the Senior Secured Credit Facility and the Other Liabilities will
be received exclusively by ACRLP, and as such, ACRLP shall be ultimately and
fully liable for the repayment of the Senior Notes, the Senior Secured Credit
Facility and the Other Liabilities without any right of contribution from, or
other claim of indemnification against, ACR CAPITAL CORPORATION.
2.1. ACR CAPITAL CORPORATION RIGHTS. ACR CAPITAL CORPORATION shall be
entitled to recover from ACRLP any amounts which ACR Capital Corporation is
required to pay with respect to the Senior Notes, the Senior Secured Credit
Facility and the Other Liabilities and ACRLP shall indemnify and hold harmless
ACR CAPITAL CORPORATION with respect to all such amounts, including any costs of
collection of such amounts incurred by ACR CAPITAL CORPORATION.
2.2 ASSETS OF ACR CAPITAL CORPORATION. ACR CAPITAL CORPORATION has only
nominal assets. If any assets should be titled in the name of ACR CAPITAL
CORPORATION during the term of either the Senior Notes or the Senior Secured
Credit Facility, the parties to this Agreement hereby agree that such assets are
to be treated as owned by ACRLP, with ACR CAPITAL CORPORATION holding title to
such assets in trust for the exclusive benefit of ACRLP.
ARTICLE III
ADDITIONAL PROVISIONS
3.1. DOCUMENTATION. The parties to this Agreement shall upon request
execute and deliver all documents and take all reasonable actions to fully
effectuate and will work together to accomplish the terms of this Agreement as
efficiently and as expediently as possible.
ARTICLE IV
MISCELLANEOUS
4.1. ENTIRE AGREEMENT; AMENDMENT. This Agreement constitutes the entire
agreement among the parties pertaining to the subject matter hereof, and
supersedes all prior and contemporaneous agreements, understandings,
negotiations and discussions of the parties, whether oral or written; and there
are no warranties, representations or other agreements between the parties in
connection with the subject matter hereof, except as specifically set forth
herein. No amendment, supplement, modification, waiver or termina tion of this
Agreement shall be binding unless executed in writing by the party to be bound
thereby. No waiver of any of the provisions of this Agreement shall be deemed
or shall con stitute a waiver of any other provision of this Agreement, whether
or not similar, unless otherwise expressly provided.
4.2. ASSIGNMENT. This Agreement shall not be assigned by any party without
the prior written consent of the other party.
4.3. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania.
4.4. COUNTERPARTS; HEADINGS. This Agreement may be executed in several
counterparts or with counterpart signature pages, each of which shall be deemed
an original, but such counterparts shall together constitute but one and the
same Agreement. The Section headings in this Agreement are inserted for
convenience of reference only and shall not constitute a part hereof.
4.5. SEVERABILITY. If any provision, clause, or part of this Agreement or
the application thereof under certain circumstances is held invalid, the
remainder of this Agreement, or the application of such provision, clause or
part under other circumstances, shall not be affected thereby.
4.6. NO RELIANCE. Except for any assignees permitted by Section 4.2 of
this Agreement: (a) no third party is entitled to rely on any of the agreements
of the parties contained in this Agreement; and (b) the parties assume no
liability to any third party because of any reliance on the agreements of the
parties contained in this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and sealed as of the day and year first above written.
▇▇▇▇▇▇▇ ▇▇▇▇▇ RENTAL, L.P.
By ▇▇▇▇▇▇▇ ▇▇▇▇▇ RENTAL, INC.
Its general partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Chief Financial Officer
▇▇▇▇▇▇▇ ▇▇▇▇▇ CAPITAL CORPORATION
By:______________________________________________________
Title: ___________________________________________________