Exhibit 4.5
EXECUTION VERSION
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U.S. GUARANTEE AND COLLATERAL AGREEMENT
made by
RSC HOLDINGS II, LLC,
RSC HOLDINGS III, LLC,
RENTAL SERVICE CORPORATION,
and
CERTAIN DOMESTIC SUBSIDIARIES OF RSC HOLDINGS III, LLC,
in favor of
DEUTSCHE BANK AG, NEW YORK BRANCH,
as U.S. Administrative Agent and U.S. Collateral Agent,
Dated as of November 27, 2006
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Table of Contents
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ARTICLE I Defined Terms.................................................. 2
Section 1.1. Definitions............................................. 2
Section 1.2. Other Definitional Provisions........................... 10
ARTICLE II Guarantee..................................................... 11
Section 2.1. Guarantee............................................... 11
Section 2.2. Right of Contribution................................... 12
Section 2.3. No Subrogation.......................................... 12
Section 2.4. Amendments, etc. with respect to the Obligations........ 13
Section 2.5. Guarantee Absolute and Unconditional.................... 13
Section 2.6. Reinstatement........................................... 15
Section 2.7. Payments................................................ 15
ARTICLE III Grant of Security Interest................................... 15
Section 3.1. Grant................................................... 15
Section 3.2. Pledged Collateral...................................... 17
Section 3.3. Certain Limited Exceptions.............................. 17
Section 3.4. Intercreditor Relations................................. 18
ARTICLE IV Representations and Warranties................................ 18
Section 4.1. Representations and Warranties of Each Guarantor........ 18
Section 4.2. Representations and Warranties of Each Grantor.......... 19
Section 4.3. Representations and Warranties of Each Pledgor.......... 22
ARTICLE V Covenants...................................................... 23
Section 5.1. Covenants of Each Guarantor............................. 23
Section 5.2. Covenants of Each Grantor............................... 23
Section 5.3. Covenants of Each Pledgor............................... 27
ARTICLE VI Remedial Provisions........................................... 28
Section 6.1. Certain Matters Relating to Accounts.................... 29
Section 6.2. Communications with Obligors; Grantors Remain Liable.... 30
Section 6.3. Pledged Stock........................................... 30
Section 6.4. Proceeds to be Turned Over To U.S. Collateral Agent..... 31
Section 6.5. Application of Proceeds................................. 32
Section 6.6. Code and Other Remedies................................. 35
Section 6.7. Registration Rights..................................... 36
Section 6.8. Waiver; Deficiency...................................... 37
(i)
Table of Contents
(continued)
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ARTICLE VII The Collateral Agent......................................... 37
Section 7.1. U.S. Collateral Agent's Appointment as
Attorney-in-Fact, etc................................... 37
Section 7.2. Duty of U.S. Collateral Agent........................... 39
Section 7.3. Financing Statements.................................... 39
Section 7.4. Authority of U.S. Collateral Agent...................... 40
Section 7.5. Right of Inspection..................................... 40
ARTICLE VIII Non-Lender Secured Parties.................................. 40
Section 8.1. Rights to Collateral.................................... 40
Section 8.2. Appointment of Agent.................................... 42
Section 8.3. Waiver of Claims........................................ 42
ARTICLE IX Miscellaneous................................................. 42
Section 9.1. Amendments in Writing................................... 42
Section 9.2. Notices................................................. 43
Section 9.3. No Waiver by Course of Conduct; Cumulative Remedies..... 43
Section 9.4. Enforcement Expenses; Indemnification................... 43
Section 9.5. Successors and Assigns.................................. 44
Section 9.6. Set-Off................................................. 44
Section 9.7. Counterparts............................................ 44
Section 9.8. Severability............................................ 44
Section 9.9. Section Headings........................................ 45
Section 9.10. Integration............................................. 45
Section 9.11. GOVERNING LAW........................................... 45
Section 9.12. Submission To Jurisdiction; Waivers..................... 45
Section 9.13. Acknowledgments......................................... 45
Section 9.14. WAIVER OF JURY TRIAL.................................... 46
Section 9.15. Additional Granting Parties............................. 46
Section 9.16. Releases................................................ 46
Section 9.17. Judgment................................................ 47
SCHEDULES
Schedule 1 -- Notice Addresses of Guarantors
Schedule 2 -- Pledged Securities
Schedule 3 -- Perfection Matters
Schedule 4 -- Location of Jurisdiction of Organization
Schedule 5 -- Intellectual Property
Schedule 6 -- Contracts
(ii)
Table of Contents
(continued)
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Schedule 7 -- Commercial Tort Claims
ANNEXES
Annex 1 -- Acknowledgement and Consent of Issuers who are not
Granting Parties
Annex 2 -- Assumption Agreement
(iii)
U.S. GUARANTEE AND COLLATERAL AGREEMENT
U.S. GUARANTEE AND COLLATERAL AGREEMENT, dated as of November 27,
2006, made by RSC HOLDINGS II, LLC, a Delaware limited liability company
("Holdings"), RSC HOLDINGS III, LLC, a Delaware limited liability company (in
its specific capacity as Parent Borrower, together with its successors and
assigns, the "Parent Borrower"), RENTAL SERVICE CORPORATION, an Arizona
corporation ("RSC") and certain of the Parent Borrower's Subsidiaries that may
become party hereto from time to time pursuant to Section 9.15 in favor of
DEUTSCHE BANK AG, NEW YORK BRANCH ("DBNY"), as collateral agent (in such
capacity, the "U.S. Collateral Agent") and administrative agent (in such
capacity, the "U.S. Administrative Agent") for the banks and other financial
institutions (collectively, the "Lenders"; individually, a "Lender") from time
to time parties to the Credit Agreement described below and for the other
Secured Parties (as defined below).
WITNESSETH:
WHEREAS, pursuant to that certain Credit Agreement, dated as of the
date hereof (as amended, amended and restated, waived, supplemented or otherwise
modified from time to time, together with any agreement extending the maturity
of, or restructuring, refunding, refinancing or increasing the Indebtedness
under such agreement or successor agreements, the "Credit Agreement"), among
Holdings, the Parent Borrower and RSC (together with the Parent Borrower and any
other entity that becomes a borrower thereunder pursuant to subsection 7.9(b) of
the Credit Agreement, the "U.S. Borrowers"), Rental Service Corporation of
Canada Ltd. (together with any other entity that becomes a borrower pursuant to
subsection 7.9(c) of the Credit Agreement, the "Canadian Borrowers"), the U.S.
Collateral Agent, the U.S. Administrative Agent, Deutsche Bank AG, Canada
Branch, as Canadian administrative agent and Canadian collateral agent (in such
capacities, the "Canadian Administrative Agent" and "Canadian Collateral
Agent"), and the other parties party thereto, the Lenders have severally agreed
to make extensions of credit to the Borrowers upon the terms and subject to the
conditions set forth therein (the Lenders, each Issuing Lender, the
Administrative Agents, the Collateral Agents and each other Agent are herein
called the "Lender Creditors");
WHEREAS, the Borrowers are members of an affiliated group of companies
that includes Holdings, the Borrowers, and any other Domestic Subsidiary of the
Parent Borrower that becomes a party hereto from time to time after the date
hereof (all of the foregoing (other than the Canadian Borrowers and Canadian
▇▇▇▇▇) collectively, the "Granting Parties");
WHEREAS, the proceeds of the extensions of credit under the Credit
Agreement will be used in part to enable the Borrowers to make valuable
transfers to one or more of the other Granting Parties in connection with the
operation of their respective businesses;
WHEREAS, the Borrowers and the other Granting Parties are engaged in
related businesses, and each such Granting Party will derive substantial direct
and indirect benefit from the making of the extensions of credit under the
Credit Agreement;
WHEREAS, it is a condition to the obligation of the Lenders to make
their respective extensions of credit under the Credit Agreement that the
Granting Parties shall
execute and deliver this Agreement to the U.S. Collateral Agent for the benefit
of the Secured Parties (as defined below);
WHEREAS, each Borrower and/or one or more of their respective
Subsidiaries may at any time and from time to time enter into one or more
Interest Rate Protection Agreements or Permitted Hedging Arrangements with one
or more Lenders or any affiliate thereof (each such Lender or affiliate, even if
the respective Lender subsequently ceases to be a Lender under the Credit
Agreement for any reason, together with such Lender's or affiliate's successors
and assigns, if any, collectively, the "Other Creditors" and, together with the
Lender Creditors, the "Secured Parties");
WHEREAS, the U.S. Collateral Agent and the Collateral Agent under, and
as defined in, the Second Lien Term Loan Credit Agreement have entered into an
Intercreditor Agreement with Holdings and certain of the Borrowers and the other
Granting Parties, dated as of the date hereof (as amended, amended and restated,
waived, supplemented or otherwise modified from time to time, the "Intercreditor
Agreement").
NOW, THEREFORE, in consideration of the premises and to induce the
U.S. Administrative Agent and the Lenders to enter into the Credit Agreement and
to induce the Lenders to make their respective extensions of credit to the
Borrowers thereunder, each Granting Party hereby agrees with the U.S. Collateral
Agent, for the ratable benefit of the Secured Parties, as follows:
ARTICLE I
Defined Terms
Section 1.1. Definitions. (a) Unless otherwise defined herein, terms
defined in the Credit Agreement and used herein shall have the meanings given to
them in the Credit Agreement, and the following terms that are defined in the
Code (as in effect on the date hereof) are used herein as so defined: Chattel
Paper, Commercial Tort Claims, Documents, Electronic Chattel Paper, Deposit
Accounts, Documents, Equipment, Farm Products, Fixtures, General Intangibles,
Letter-of-Credit Rights, Money, Promissory Notes, Records, Securities,
Securities Accounts, Security Entitlements, Supporting Obligations and Tangible
Chattel Paper.
(b) The following terms shall have the following meanings:
"Accounts": all accounts (as defined in the Code) of each Grantor,
including, without limitation, all Accounts (as defined in the Credit Agreement)
and Accounts Receivable of such Grantor.
"Accounts Receivable": any right to payment for goods sold or leased
or for services rendered, which is not evidenced by an instrument (as defined in
the Code) or Chattel Paper.
"Adjusted Net Worth": of any Guarantor at any time, shall mean the
greater of (x) $0 and (y) the amount by which the fair saleable value of such
Guarantor's assets on the date of the respective payment hereunder exceeds its
debts and other liabilities (including contingent
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liabilities, but without giving effect to any of its obligations under this
Agreement or any other Loan Document, or pursuant to its guarantee with respect
to any Indebtedness then outstanding pursuant to clauses (b) and (d) of
subsection 8.2 of the Credit Agreement) on such date.
"Agreement": this U.S. Guarantee and Collateral Agreement, as the same
may be amended, restated, supplemented, waived or otherwise modified from time
to time.
"Asset Sales Proceeds Account": one or more Deposit Accounts or
Securities Accounts holding only the proceeds of any sale or disposition of any
Collateral and the proceeds or investment thereof.
"Bankruptcy Case": (i) Holdings or any of its Subsidiaries commencing
any case, proceeding or other action (A) under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization, conservatorship or relief of debtors, seeking to have an order
for relief entered with respect to it, or seeking to adjudicate it a bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment, winding-up,
liquidation, dissolution, composition or other relief with respect to it or its
debts, or (B) seeking appointment of a receiver, trustee, custodian, conservator
or other similar official for it or for all or any substantial part of its
assets, or Holdings or any of its Subsidiaries making a general assignment for
the benefit of its creditors; or (ii) there being commenced against Holdings or
any of its Subsidiaries any case, proceeding or other action of a nature
referred to in clause (i) above which (A) results in the entry of an order for
relief or any such adjudication or appointment or (B) remains undismissed,
undischarged or unbonded for a period of 60 days.
"Borrower Loan Document Obligations": as defined in the definition of
"Borrower Obligations" in this subsection 1.1(b).
"Borrower Obligations": with respect to any Borrower, the collective
reference to: all obligations and liabilities of such Borrower in respect of (i)
the unpaid principal of and interest on (including, without limitation, interest
accruing after the maturity of the Loans and Reimbursement Obligations and
interest accruing after the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or like proceeding, relating to
such Borrower, whether or not a claim for post-filing or post-petition interest
is allowed in such proceeding) the Loans, the Reimbursement Obligations, and all
other obligations and liabilities of such Borrower to the Secured Parties,
whether direct or indirect, absolute or contingent, due or to become due, or now
existing or hereafter incurred, which may arise under, out of, or in connection
with, the Credit Agreement, the Loans, the Letters of Credit, the other Loan
Documents (all such obligations, liabilities and indebtedness under this clause
(i), except to the extent consisting of obligations and indebtedness with
respect to Interest Rate Protection Agreement or Permitted Hedging Arrangements,
being herein collectively called the "Borrower Loan Document Obligations"), and
(ii) any Interest Rate Protection Agreement or Permitted Hedging Arrangement
entered into with any Person who was at the time of entry into such agreement a
Lender or an affiliate of any Lender (all such obligations, liabilities and
indebtedness under this clause (ii) being herein collectively called the
"Borrower Other Obligations"); in each case whether on account of principal,
interest, reimbursement obligations, amounts payable in connection with the
provision of such cash management services or a termination of any transaction
entered into pursuant to any such Interest Rate Protection Agreement or
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Permitted Hedging Arrangement, fees, indemnities, costs, expenses or otherwise
(including, without limitation, all reasonable fees, expenses and disbursements
of counsel to the Administrative Agent or any other Secured Party that are
required to be paid by such Borrower pursuant to the terms of the Credit
Agreement or any other Loan Document).
"Borrower Other Obligations": as defined in the definition of
"Borrower Obligations" in this subsection 1.1(b).
"Borrowers": the U.S. Borrowers, the Canadian Borrower and, from and
after the date on which it executes and delivers to the U.S. Administrative
Agent a Borrower Joinder Agreement, Canadian ▇▇▇▇▇.
"Canadian Borrower Obligations": all Obligations of the Canadian
Borrowers and any guarantees thereof (including by U.S. Loan Parties) pursuant
to the Canadian Guarantee Agreement or pursuant to any other Loan Document.
"Code": the Uniform Commercial Code as from time to time in effect in
the State of New York.
"Collateral": as defined in Section 3; provided that, for purposes of
subsection 6.5, Section 8 and subsection 9.16(b), "Collateral" shall have the
meaning assigned to such term in the Credit Agreement.
"Commercial Tort Action" any action, other than (i) an action
primarily seeking declaratory or injunctive relief with respect to claims
asserted or expected to be asserted by Persons other than the Grantors or (ii)
an action arising out of or related to PL/PD Claims, that is commenced by a
Grantor in the courts of the United States of America, any state or territory
thereof or any political subdivision of any such state or territory, in which
any Grantor seeks damages arising out of torts committed against it that would
reasonably be expected to result in a damage award to it exceeding $40,000,000.
"Commitments": the collective reference to (i) the Term Loan
Commitments, (ii) the RCF Commitments and (iii) the obligation of the Issuing
Lenders to issue Letters of Credit to the Borrowers pursuant to subsection 3.1
of the Credit Agreement.
"Contracts": with respect to any Grantor, all contracts, agreements,
instruments and indentures in any form and portions thereof (except for
contracts listed on Schedule 6 hereto), to which such Grantor is a party or
under which such Grantor or any property of such Grantor is subject, as the same
may from time to time be amended, supplemented, waived or otherwise modified,
including, without limitation, (i) all rights of such Grantor to receive moneys
due and to become due to it thereunder or in connection therewith, (ii) all
rights of such Grantor to damages arising thereunder and (iii) all rights of
such Grantor to perform and to exercise all remedies thereunder.
"Copyright Licenses": with respect to any Grantor, all written license
agreements of such Grantor providing for the grant by or to such Grantor of any
right under any copyright of such Grantor, other than agreements with any Person
who is an Affiliate or a Subsidiary of the Parent Borrower or such Grantor,
including, without limitation, any material license agreements
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listed on Schedule 5 hereto, subject, in each case, to the terms of such license
agreements, and the right to prepare for sale, sell and advertise for sale, all
Inventory now or hereafter covered by such licenses.
"Copyrights": with respect to any Grantor, all of such Grantor's
right, title and interest in and to all United States and foreign copyrights,
whether or not the underlying works of authorship have been published or
registered, all United States and foreign copyright registrations and copyright
applications, including, without limitation, any copyright registrations and
copyright applications listed on Schedule 5 hereto, and (i) all renewals
thereof, (ii) all income, royalties, damages and payments now and hereafter due
and/or payable with respect thereto, including, without limitation, payments
under all licenses entered into in connection therewith, and damages and
payments for past or future infringements thereof and (iii) the right to ▇▇▇ or
otherwise recover for past, present and future infringements and
misappropriations thereof.
"Credit Agreement": has the meaning provided in the Preamble hereto.
"Excess Foreign Subsidiary Capital Stock" as defined in Section 3.1.
"Excluded Assets": as defined in Section 3.3.
"General Fund Account": the general fund account of the relevant
Grantor established at the same office of the U.S. Collateral Account Bank as
the U.S. Collateral Proceeds Account.
"Granting Parties": as defined in the recitals hereto.
"Grantor": Holdings, the U.S. Borrowers, and any other Domestic
Subsidiary of the Parent Borrower that becomes a party hereto from time to time
after the date hereof.
"Guarantor Obligations": with respect to any Guarantor, the collective
reference to (i) the Obligations guaranteed by such Guarantor pursuant to
Section 2 and (ii) (A) all obligations and liabilities of such Guarantor that
may arise under or in connection with this Agreement or any other Loan Document
to which such Guarantor is a party (all such obligations, liabilities and
indebtedness under this clause (ii)(A), except to the extent consisting of
obligations and indebtedness with respect to Interest Rate Protection Agreement
or Permitted Hedging Arrangements, being herein collectively called the
"Guarantor Loan Document Obligations," and, together with the Borrower Loan
Obligations, the "Loan Document Obligations") and (B) any Interest Rate
Protection Agreement or Permitted Hedging Arrangement entered into with any
Person who was at the time of entry into such agreement a Lender or an affiliate
of any Lender (all such obligations, liabilities and indebtedness under this
clause (ii)(B) being herein collectively called the "Guarantor Other
Obligations," and, together with the Borrower Other Obligations, the "Other
Obligations"); in each case whether on account of guarantee obligations,
reimbursement obligations, fees, indemnities, costs, expenses or otherwise
(including, without limitation, all fees and disbursements of counsel to the
U.S. Administrative Agent, to the Lead Arrangers or to the Lenders that are
required to be paid by such Guarantor pursuant to the terms of this Agreement or
any other Loan Document).
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"Guarantors": the collective reference to each Granting Party other
than Holdings; provided, that, when referring to the U.S. Borrowers as
Guarantors, such reference shall be a reference solely to a guaranty of the
Obligations of the Canadian Borrowers and Canadian ▇▇▇▇▇.
"Instruments": has the meaning specified in Article IX of the Code,
but excluding the Pledged Securities.
"Intellectual Property": with respect to any Grantor, the collective
reference to such Grantor's Copyrights, Copyright Licenses, Patents, Patent
Licenses, Trade Secrets, Trademarks and Trademark Licenses.
"Intercompany Note": with respect to any Grantor, any promissory note
in a principal amount in excess of $3,500,000 evidencing loans made by such
Grantor to Holdings or any of its Subsidiaries.
"Intercreditor Agreement": as defined in the recitals hereto.
"Inventory": with respect to any Grantor, all inventory (as defined in
the Code) of such Grantor, including, without limitation, all Inventory (as
defined in the Credit Agreement) of such Grantor.
"Investment Property": the collective reference to (i) all "investment
property" as such term is defined in Section 9-102(a)(49) of the Uniform
Commercial Code in effect in the State of New York on the date hereof (other
than any Capital Stock of any Foreign Subsidiary excluded from the definition of
"Pledged Stock") and (ii) whether or not constituting "investment property" as
so defined, all Pledged Securities.
"Issuers": the collective reference to the Persons identified on
Schedule 2 as the issuers of Pledged Stock, together with any successors to such
companies (including, without limitation, any successors contemplated by
subsection 8.5 of the Credit Agreement).
"Lender Creditors": as defined in the recitals hereto.
"Loan Document Obligations": as defined in the definition of
"Guarantor Obligations" in this subsection 1.1(b).
"Non-Lender Secured Parties": the collective reference to any person
who, at the time of entering into any Interest Rate Protection Agreement or
Permitted Hedging Arrangement secured hereby, was a Lender or an affiliate of
any Lender and their respective successors and assigns.
"Obligations": (i) in the case of each Borrower, its Borrower
Obligations and its Guarantor Obligations and (ii) in the case of each other
Guarantor, its Guarantor Obligations.
"Other Creditors: as defined in the recitals hereto.
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"Other Obligations": as defined in the definition of "Guarantor
Obligations" in this subsection 1.1(b).
"Parent Borrower": as defined in the Preamble hereto.
"Patent Licenses": with respect to any Grantor, all written license
agreements of such Grantor providing for the grant by or to such Grantor of any
right under any patent, patent application, or patentable invention other than
agreements with any Person who is an Affiliate or a Subsidiary of the Parent
Borrower or such Grantor, including, without limitation, the material license
agreements listed on Schedule 5 hereto, subject, in each case, to the terms of
such license agreements, and the right to prepare for sale, sell and advertise
for sale, all Inventory now or hereafter covered by such licenses.
"Patents": with respect to any Grantor, all of such Grantor's right,
title and interest in and to all United States and foreign patents, patent
applications and patentable inventions and all reissues and extensions thereof,
including, without limitation, all patents and patent applications identified in
Schedule 5 hereto, and including, without limitation, (i) all inventions and
improvements described and claimed therein, (ii) the right to ▇▇▇ or otherwise
recover for any and all past, present and future infringements and
misappropriations thereof, (iii) all income, royalties, damages and other
payments now and hereafter due and/or payable with respect thereto (including,
without limitation, payments under all licenses entered into in connection
therewith, and damages and payments for past, present or future infringements
thereof), and (iv) all other rights corresponding thereto and all reissues,
divisions, continuations, continuations-in-part, substitutes, renewals, and
extensions thereof, all improvements thereon, and all other rights of any kind
whatsoever of such Grantor accruing thereunder or pertaining thereto.
"Permitted Hedging Arrangement": as defined in subsection 8.17 of the
Credit Agreement.
"PL/PD Claims" means all claims that (i) arise out of or are related
to damage to the property of the Parent Borrower or any of its Subsidiaries or
out of bodily injury (including death) or damage to the property of Persons
other than the Parent Borrower and its Subsidiaries and are classified as
"public liability and property damage" claims for purposes of the consolidated
financial statements of the Parent Borrower and its Subsidiaries and (ii) arise
out of or are related to any policy of insurance under which the Parent Borrower
or any of its Subsidiaries is an insured or otherwise a beneficiary.
"Pledged Collateral": as to any Pledgor, the Pledged Securities now
owned or at any time hereafter acquired by such Pledgor, and any Proceeds
thereof.
"Pledged Notes": with respect to any Pledgor, all promissory notes
issued to or held by any Grantor in a principal amount in excess of $3,500,000
(other than promissory notes issued in connection with an extension of trade
credit by any Grantor in the ordinary course of business) and all Intercompany
Notes at any time issued to, or held or owned by, such Pledgor.
"Pledged Securities": the collective reference to the Pledged Notes
and the Pledged Stock.
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"Pledged Stock": with respect to any Pledgor, the shares of Capital
Stock listed on Schedule 2 as held by such Pledgor, together with any other
shares of Capital Stock required to be pledged by such Pledgor pursuant to
subsection 7.9 of the Credit Agreement, as well as any other shares, stock
certificates, options or rights of any nature whatsoever in respect of the
Capital Stock of any Person that may be issued or granted to, or held by, such
Pledgor while this Agreement is in effect (provided that in no event shall there
be pledged, nor shall any Pledgor be required to pledge, directly or indirectly,
(i) any of the Capital Stock of Subsidiaries of Foreign Subsidiaries or (ii) de
minimis shares of a Foreign Subsidiary held by any Pledgor as a nominee or in a
similar capacity).
"Pledgor": Holdings (with respect to the Pledged Stock of the Parent
Borrower and all other Pledged Collateral of the Parent Borrower), the U.S.
Borrowers (with respect to Pledged Stock of the entities listed on Schedule 2
hereto under the name of such applicable Borrower and all other Pledged
Collateral of such applicable Borrower) and each other Granting Party (with
respect to Pledged Securities held by such Granting Party and all other Pledged
Collateral of such Granting Party).
"Primary Canadian Borrower Obligations": as defined in subsection
6.5.2.
"Primary Obligations": as defined in subsection 6.5.2.
"Primary U.S. Borrower Obligations": as defined in subsection 6.5.2.
"Pro Rata Share": as defined in subsection 6.5.2.
"Proceeds": all "proceeds" as such term is defined in Section
9-102(a)(64) of the Uniform Commercial Code in effect in the State of New York
on the date hereof and, in any event, Proceeds of Pledged Securities shall
include, without limitation, all dividends or other income from the Pledged
Securities, collections thereon or distributions or payments with respect
thereto.
"Representative": as defined in subsection 6.5.4.
"Restrictive Agreements": as defined in subsection 3.3(a).
"RSC": as defined in the recitals hereto.
"Parent Borrower": as defined in the recitals hereto.
"Second-Lien Term Loan Guarantee and Collateral Agreement": that
certain Guarantee and Collateral Agreement, dated as of the date hereof, among
Holdings, the Parent Borrower, RSC and DBNY, as collateral agent, as amended,
amended and restated, waived, supplemented or otherwise modified from time to
time.
"Secondary Canadian Borrower Obligations": as defined in subsection
6.5.2.
"Secondary Obligations": as defined in subsection 6.5.2.
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"Secondary U.S. Borrower Obligations": as defined in subsection 6.5.2.
"Secured Parties": as defined in the recitals hereto.
"Security Collateral": with respect to any Granting Party, means,
collectively, the Collateral (if any) and the Pledged Collateral (if any) of
such Granting Party.
"Specified Asset": as defined in subsection 4.2.2 hereof.
"Trade Secret Licenses": with respect to any Grantor, all written
license agreements of such Grantor providing for the grant by or to such Grantor
of any right under any trade secrets, including, without limitation, know how,
processes, formulae, compositions, designs, and confidential business and
technical information, and all rights of any kind whatsoever accruing thereunder
or pertaining thereto, other than agreements with any Person who is an Affiliate
or a Subsidiary of the Parent Borrower or such Grantor, subject, in each case,
to the terms of such license agreements, and the right to prepare for sale, sell
and advertise for sale, all Inventory now or hereafter covered by such licenses.
"Trade Secrets": with respect to any Grantor, all of such Grantor's
right, title and interest in and to all United States and foreign trade secrets,
including, without limitation, know-how, processes, formulae, compositions,
designs, and confidential business and technical information, and all rights of
any kind whatsoever accruing thereunder or pertaining thereto, including,
without limitation, (i) all income, royalties, damages and payments now and
hereafter due and/or payable with respect thereto, including, without
limitation, payments under all licenses, non-disclosure agreements and memoranda
of understanding entered into in connection therewith, and damages and payments
for past or future misappropriations thereof, and (ii) the right to ▇▇▇ or
otherwise recover for past, present or future misappropriations thereof.
"Trademark Licenses": with respect to any Grantor, all written license
agreements of such Grantor providing for the grant by or to such Grantor of any
right under any trademarks, service marks, trade names, trade dress or other
indicia of trade origin or business identifiers, and all rights of any kind
whatsoever accruing thereunder or pertaining thereto, other than agreements with
any Person who is an Affiliate or a Subsidiary of the Parent Borrower or such
Grantor, including, without limitation, the material license agreements listed
on Schedule 5 hereto, subject, in each case, to the terms of such license
agreements, and the right to prepare for sale, sell and advertise for sale, all
Inventory now or hereafter covered by such licenses.
"Trademarks": with respect to any Grantor, all of such Grantor's
right, title and interest in and to all United States and foreign trademarks,
service marks, trade names, trade dress or other indicia of trade origin or
business identifiers, trademark and service ▇▇▇▇ registrations, and applications
for trademark or service ▇▇▇▇ registrations (except for "intent to use"
applications for trademark or service ▇▇▇▇ registrations filed pursuant to
Section l(b) of the ▇▇▇▇▇▇ Act, 15 U.S.C. Section 1051, unless and until an
Amendment to Allege Use or a Statement of Use under Sections l(c) and l(d) of
said Act has been filed, it being understood and agreed that the carve out in
this parenthetical shall be applicable only if and for so long as a grant of a
security interest in such intent to use application would invalidate or
otherwise jeopardize Grantor's rights therein), and any renewals thereof,
including, without limitation, each
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registration and application identified in Schedule 5 hereto, and including,
without limitation, (i) the right to ▇▇▇ or otherwise recover for any and all
past, present and future infringements or dilutions thereof, (ii) all income,
royalties, damages and other payments now and hereafter due and/or payable with
respect thereto (including, without limitation, payments under all licenses
entered into in connection therewith, and damages and payments for past or
future infringements thereof), and (iii) all other rights corresponding thereto
and all other rights of any kind whatsoever of such Grantor accruing thereunder
or pertaining thereto in the United States, together in each case with the
goodwill of the business connected with the use of, and symbolized by, each such
trademark, service ▇▇▇▇, trade name, trade dress or other indicia of trade
origin or business identifiers.
"ULC Shares": shares in any unlimited company, incorporated or
organized under the laws of Canada or any province or territory thereof, at any
time owned or otherwise held by the Grantor.
"U.S. Administrative Agent": as defined in the recitals hereto.
"U.S. Borrowers": as defined in the recitals hereto.
"U.S. Borrower Obligations" shall mean all Obligations of the U.S.
Borrowers (but not as a Guarantor of any Canadian Borrower or any Canadian
Subsidiary Guarantor) and any guarantees of such Obligations pursuant to this
Agreement or pursuant to any other Loan Document.
"U.S. Collateral Account Bank": Deutsche Bank AG, New York Branch, an
Affiliate thereof or another bank which at all times is a Lender as selected by
the relevant Grantor and consented to in writing by the U.S. Collateral Agent
(such consent not to be unreasonably withheld or delayed).
"U.S. Collateral Proceeds Account": a non-interest bearing cash
collateral account established and maintained by the relevant Grantor at an
office of the U.S. Collateral Account Bank in the name, and in the sole dominion
and control of, the U.S. Collateral Agent for the benefit of the Secured
Parties.
Section 1.2. Other Definitional Provisions. (a) The words "hereof,
"herein", "hereto" and "hereunder" and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not to any particular
provision of this Agreement, and Section, Schedule and Annex references are to
this Agreement unless otherwise specified.
(b) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
(c) Where the context requires, terms relating to the Collateral,
Pledged Collateral or Security Collateral, or any part thereof, when used in
relation to a Granting Party shall refer to such Granting Party's Collateral,
Pledged Collateral or Security Collateral or the relevant part thereof.
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(d) All references in this Agreement to any of the property described
in the definition of the term "Collateral" or "Pledged Collateral", or to any
Proceeds thereof, shall be deemed to be references thereto only to the extent
the same constitute Collateral or Pledged Collateral, respectively.
ARTICLE II
Guarantee
Section 2.1. Guarantee. (a) (i) Each of the Guarantors hereby, jointly
and severally, unconditionally and irrevocably, guarantees to the U.S.
Administrative Agent, for the ratable benefit of the applicable Secured Parties,
the prompt and complete payment and performance by each U.S. Borrower and
Canadian ▇▇▇▇▇ when due and payable (whether at the stated maturity, by
acceleration or otherwise) of the Borrower Obligations of such U.S. Borrower and
Canadian ▇▇▇▇▇ owed to the applicable Secured Parties, and (ii) each of the
Guarantors hereby, jointly and severally, unconditionally and irrevocably,
guarantees to the U.S. Administrative Agent, for the ratable benefit of the
applicable Secured Parties, the prompt and complete payment and performance by
each Canadian Borrower when due and payable (whether at the stated maturity, by
acceleration or otherwise) of the Borrower Obligations of such Canadian Borrower
owed to the applicable Secured Parties.
(b) Anything herein or in any other Loan Document to the contrary
notwithstanding, the maximum liability of each Guarantor hereunder and under the
other Loan Documents shall in no event exceed the amount that can be guaranteed
by such Guarantor under applicable law, including applicable federal and state
laws relating to the insolvency of debtors; provided that, to the maximum extent
permitted under applicable law, it is the intent of the parties hereto that (x)
the amount of the liability of any of the Guarantors or any guarantee in respect
of Indebtedness permitted pursuant to clause (b) of subsection 8.2 of the Credit
Agreement shall be reduced before the amount of the liability of the respective
Guarantor is reduced hereunder and (y) the rights of contribution of each
Guarantor provided in following subsection 2.2 be included as an asset of the
respective Guarantor in determining the maximum liability of such Guarantor
hereunder.
(c) Each Guarantor agrees that the Borrower Obligations guaranteed by
it hereunder may at any time and from time to time exceed the amount of the
liability of such Guarantor hereunder without impairing the guarantee contained
in this Section 2 or affecting the rights and remedies of the U.S.
Administrative Agent or any other Secured Party hereunder.
(d) The guarantee contained in this Section 2 shall remain in full
force and effect until the earlier to occur of (i) the first date on which all
the Loans, any Reimbursement Obligations, all other Borrower Obligations then
due and owing, and the obligations of each Guarantor under the guarantee
contained in this Section 2 then due and owing shall have been satisfied by
payment in full in cash, no Letter of Credit shall be outstanding and the
Commitments shall have been terminated, notwithstanding that from time to time
during the term of the Credit Agreement any of the Borrowers may be free from
any Borrower Obligations, or (ii) as to any Guarantor, the sale or other
disposition of all of the Capital Stock of such Guarantor
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(to a Person other than Holdings, the Parent Borrower or a Subsidiary of either)
as permitted under the Credit Agreement.
(e) No payment made by any Borrower, any of the Guarantors, any other
guarantor or any other Person or received or collected by the U.S.
Administrative Agent or any other Secured Party from any of the Borrowers, any
of the Guarantors, any other guarantor or any other Person by virtue of any
action or proceeding or any set-off or appropriation or application at any time
or from time to time in reduction of or in payment of any of the Borrower
Obligations shall be deemed to modify, reduce, release or otherwise affect the
liability of any Guarantor hereunder which shall, notwithstanding any such
payment (other than any payment made by such Guarantor in respect of the
Borrower Obligations or any payment received or collected from such Guarantor in
respect of any of the Borrower Obligations), remain liable for the Borrower
Obligations of each Borrower guaranteed by it hereunder up to the maximum
liability of such Guarantor hereunder until the earlier to occur of (i) the
first date on which all the Loans, any Reimbursement Obligations, and all other
Borrower Obligations then due and owing, are paid in full in cash, no Letter of
Credit shall be outstanding (except for Letters of Credit that have been cash
collateralized in a manner satisfactory to the Issuing Lender) and the
Commitments are terminated or (ii) the sale or other disposition of all of the
Capital Stock of such Guarantor (to a Person other than Holdings, the Parent
Borrower or a Subsidiary of either) as permitted under the Credit Agreement.
Section 2.2. Right of Contribution. Each Guarantor hereby agrees that
to the extent that a Guarantor shall have paid more than its proportionate share
(based, to the maximum extent permitted by law, on the respective Adjusted Net
Worths of the Guarantors on the date the respective payment is made) of any
payment made hereunder, such Guarantor shall be entitled to seek and receive
contribution from and against any other Guarantor hereunder that has not paid
its proportionate share of such payment. Each Guarantor's right of contribution
shall be subject to the terms and conditions of subsection 2.3. The provisions
of this subsection 2.2 shall in no respect limit the obligations and liabilities
of any Guarantor to the U.S. Administrative Agent and the other Secured Parties,
and each Guarantor shall remain liable to the U.S. Administrative Agent and the
other Secured Parties for the full amount guaranteed by such Guarantor
hereunder.
Section 2.3. No Subrogation. Notwithstanding any payment made by any
Guarantor hereunder or any set-off or application of funds of any Guarantor by
the U.S. Administrative Agent or any other Secured Party, no Guarantor shall be
entitled to be subrogated to any of the rights of the U.S. Administrative Agent
or any other Secured Party against any Borrower or any other Guarantor or any
collateral security or guarantee or right of offset held by the U.S.
Administrative Agent or any other Secured Party for the payment of the Borrower
Obligations, nor shall any Guarantor seek or be entitled to seek any
contribution or reimbursement from the Borrower or any other Guarantor in
respect of payments made by such Guarantor hereunder, until all amounts owing to
the U.S. Administrative Agent and the other Secured Parties by the Borrowers on
account of the Borrower Obligations are paid in full in cash, no Letter of
Credit shall be outstanding and the Commitments are terminated. If any amount
shall be paid to any Guarantor on account of such subrogation rights at any time
when all of the Borrower Obligations shall not have been paid in full in cash or
any Letter of Credit shall remain outstanding (and shall not have been cash
collateralized in a manner satisfactory to the Issuing Lender) or any of the
Commitments shall remain in effect, such amount shall be held by such
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Guarantor in trust for the U.S. Administrative Agent and the other Secured
Parties, segregated from other funds of such Guarantor, and shall, forthwith
upon receipt by such Guarantor, be turned over to the U.S. Administrative Agent
in the exact form received by such Guarantor (duly indorsed by such Guarantor to
the U.S. Administrative Agent if required), to be held as collateral security
for all of the Borrower Obligations (whether matured or unmatured) guaranteed by
such Guarantor and/or then or at any time thereafter may be applied against any
Borrower Obligations, whether matured or unmatured, in such order as the U.S.
Administrative Agent may determine.
Section 2.4. Amendments, etc. with respect to the Obligations. To the
maximum extent permitted by law, each Guarantor shall remain obligated hereunder
notwithstanding that, without any reservation of rights against any Guarantor
and without notice to or further assent by any Guarantor, any demand for payment
of any of the Borrower Obligations made by the U.S. Collateral Agent, the U.S.
Administrative Agent or any other Secured Party may be rescinded by the U.S.
Collateral Agent, the U.S. Administrative Agent or such other Secured Party and
any of the Borrower Obligations continued, and the Borrower Obligations, or the
liability of any other Person upon or for any part thereof, or any collateral
security or guarantee therefor or right of offset with respect thereto, may,
from time to time, in whole or in part, be renewed, extended, amended, waived,
modified, accelerated, compromised, subordinated, waived, surrendered or
released by the U.S. Collateral Agent, the U.S. Administrative Agent or any
other Secured Party, and the Credit Agreement and the other Loan Documents and
any other documents executed and delivered in connection therewith may be
amended, waived, modified, supplemented or terminated, in whole or in part, as
the U.S. Collateral Agent or the U.S. Administrative Agent (or the Required
Lenders or the applicable Lenders(s), as the case may be) may deem advisable
from time to time, and any collateral security, guarantee or right of offset at
any time held by the U.S. Collateral Agent, the U.S. Administrative Agent or any
other Secured Party for the payment of any of the Borrower Obligations may be
sold, exchanged, waived, surrendered or released. None of the U.S. Collateral
Agent, the U.S. Administrative Agent and each other Secured Party shall have any
obligation to protect, secure, perfect or insure any Lien at any time held by it
as security for any of the Borrower Obligations or for the guarantee contained
in this Section 2 or any property subject thereto, except to the extent required
by applicable law.
Section 2.5. Guarantee Absolute and Unconditional. Each Guarantor
waives, to the maximum extent permitted by applicable law, any and all notice of
the creation, renewal, extension or accrual of any of the Borrower Obligations
and notice of or proof of reliance by the U.S. Collateral Agent, the U.S.
Administrative Agent or any other Secured Party upon the guarantee contained in
this Section 2 or acceptance of the guarantee contained in this Section 2; each
of the Borrower Obligations, and any obligation contained therein, shall
conclusively be deemed to have been created, contracted or incurred, or renewed,
extended, amended or waived, in reliance upon the guarantee contained in this
Section 2; and all dealings between any of the Borrowers and any of the
Guarantors, on the one hand, and the U.S. Collateral Agent, the U.S.
Administrative Agent and the other Secured Parties, on the other hand, likewise
shall be conclusively presumed to have been had or consummated in reliance upon
the guarantee contained in this Section 2. Each Guarantor waives, to the maximum
extent permitted by applicable law, diligence, presentment, protest, demand for
payment and notice of default or nonpayment to or upon any Borrower or any of
the other Guarantors with respect to any of the Borrower Obligations. Each
Guarantor understands and agrees, to the extent permitted by law,
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that the guarantee contained in this Section 2 shall be construed as a
continuing, absolute and unconditional guarantee of payment and not of
collection. Each Guarantor hereby waives, to the maximum extent permitted by
applicable law, any and all defenses (other than any suit for breach of a
contractual provision of any of the Loan Documents) that it may have arising out
of or in connection with any and all of the following: (a) the validity or
enforceability of the Credit Agreement or any other Loan Document, any of the
Borrower Obligations or any other collateral security therefor or guarantee or
right of offset with respect thereto at any time or from time to time held by
the U.S. Collateral Agent, the U.S. Administrative Agent or any other Secured
Party, (b) any defense, set-off or counterclaim (other than a defense of payment
or performance) that may at any time be available to or be asserted by any of
the Borrowers against the U.S. Collateral Agent, the U.S. Administrative Agent
or any other Secured Party, (c) any change in the time, place, manner or place
of payment, amendment, or waiver or increase in any of the Obligations, (d) any
exchange, taking, or release of Security Collateral, (e) any change in the
structure or existence of any of the Borrowers, (f) any application of Security
Collateral to any of the Obligations, (g) any law, regulation or order of any
jurisdiction, or any other event, affecting any term of any Obligation or the
rights of the U.S. Collateral Agent, the U.S. Administrative Agent or any other
Secured Party with respect thereto, including, without limitation: (i) the
application of any such law, regulation, decree or order, including any prior
approval, which would prevent the exchange of any currency (other than Dollars)
for Dollars or the remittance of funds outside of such jurisdiction or the
unavailability of Dollars in any legal exchange market in such jurisdiction in
accordance with normal commercial practice, (ii) a declaration of banking
moratorium or any suspension of payments by banks in such jurisdiction or the
imposition by such jurisdiction or any Governmental Authority thereof of any
moratorium on, the required rescheduling or restructuring of, or required
approval of payments on, any indebtedness in such jurisdiction, (iii) any
expropriation, confiscation, nationalization or requisition by such country or
any Governmental Authority that directly or indirectly deprives any Borrower of
any assets or their use, or of the ability to operate its business or a material
part thereof, or (iv) any war (whether or not declared), insurrection,
revolution, hostile act, civil strife or similar events occurring in such
jurisdiction which has the same effect as the events described in clause (i),
(ii) or (iii) above (in each of the cases contemplated in clauses (i) through
(iv) above, to the extent occurring or existing on or at any time after the date
of this Agreement), or (h) any other circumstance whatsoever (other than payment
in full in cash of the Borrower Obligations guaranteed by it hereunder) (with or
without notice to or knowledge of any of the Borrowers or such Guarantor) that
constitutes, or might be construed to constitute, an equitable or legal
discharge of any of the Borrowers for the Borrower Obligations, or of such
Guarantor under the guarantee contained in this Section 2, in bankruptcy or in
any other instance. When making any demand hereunder or otherwise pursuing its
rights and remedies hereunder against any Guarantor, the U.S. Collateral Agent,
the U.S. Administrative Agent and any other Secured Party may, but shall be
under no obligation to, make a similar demand on or otherwise pursue such rights
and remedies as it may have against any of the Borrowers, any other Guarantor or
any other Person or against any collateral security or guarantee for the
Borrower Obligations guaranteed by such Guarantor hereunder or any right of
offset with respect thereto, and any failure by the U.S. Collateral Agent, the
U.S. Administrative Agent or any other Secured Party to make any such demand, to
pursue such other rights or remedies or to collect any payments from the
Borrower, any other Guarantor or any other Person or to realize upon any such
collateral security or guarantee or to exercise any such right of offset, or any
release of any of the
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Borrower, any other Guarantor or any other Person or any such collateral
security, guarantee or right of offset, shall not relieve any Guarantor of any
obligation or liability hereunder, and shall not impair or affect the rights and
remedies, whether express, implied or available as a matter of law, of the U.S.
Collateral Agent, the U.S. Administrative Agent or any other Secured Party
against any Guarantor. For the purposes hereof "demand" shall include the
commencement and continuance of any legal proceedings.
Section 2.6. Reinstatement. The guarantee of any Guarantor contained
in this Section 2 shall continue to be effective, or be reinstated, as the case
may be, if at any time payment, or any part thereof, of any of the Borrower
Obligations guaranteed by such Guarantor hereunder is rescinded or must
otherwise be restored or returned by the U.S. Collateral Agent, the U.S.
Administrative Agent or any other Secured Party upon the insolvency, bankruptcy,
dissolution, liquidation or reorganization of any Borrower or any Guarantor, or
upon or as a result of the appointment of a receiver, intervenor or conservator
of, or trustee or similar officer for, any Borrower or any Guarantor or any
substantial part of its property, or otherwise, all as though such payments had
not been made.
Section 2.7. Payments. Each Guarantor hereby guarantees that payments
hereunder will be paid to the U.S. Administrative Agent without set-off or
counterclaim, in Dollars (or in the case of any amount required to be paid in
any other currency pursuant to the requirements of the Credit Agreement or other
agreement relating to the respective Obligations, such other currency), at the
U.S. Administrative Agent's office specified in subsection 11.2 of the Credit
Agreement or such other address as may be designated in writing by the U.S.
Administrative Agent to such Guarantor from time to time in accordance with
subsection 11.2 of the Credit Agreement.
ARTICLE III
Grant of Security Interest
Section 3.1. Grant. Each Grantor hereby grants, subject to existing
licenses to use the Copyrights, Patents, Trademarks and Trade Secrets granted by
such Grantor in the ordinary course of business, to the U.S. Collateral Agent,
for the ratable benefit of the Secured Parties, a security interest in all of
the Collateral of such Grantor, as collateral security for the prompt and
complete payment and performance when due (whether at the stated maturity, by
acceleration or otherwise) of the Obligations of such Grantor, except as
provided in subsection 3.3. The term "Collateral", as to any Grantor, means the
following property (wherever located) now owned or at any time hereafter
acquired by such Grantor or in which such Grantor now has or at any time in the
future may acquire any right, title or interest, except as provided in
subsection 3.3:
(a) all Accounts;
(b) all Accounts Receivable;
(c) all Money (including all cash);
(d) all Cash Equivalents;
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(e) all Chattel Paper;
(f) all Contracts;
(g) all Deposit Accounts (including DDAs);
(h) all Documents;
(i) all Equipment;
(j) all General Intangibles;
(k) all Instruments;
(l) all insurance proceeds;
(m) all Intellectual Property;
(n) all Inventory;
(o) all Investment Property;
(p) all Letter of Credit Rights;
(q) all Rental Fleet;
(r) all Fixtures;
(s) all Commercial Tort Claims constituting Commercial Tort Actions
described in Schedule 7 (together with any Commercial Tort Actions subject
to a further writing provided in accordance with subsection 5.2.12);
(t) all books and records pertaining to any of the foregoing;
(u) the U.S. Collateral Proceeds Account; and
(v) to the extent not otherwise included, all Proceeds and products of
any and all of the foregoing and all collateral security and guarantees
given by any Person with respect to any of the foregoing;
provided that, in the case of each Grantor, (w) Collateral shall not include any
Pledged Collateral, or any property or assets specifically excluded from Pledged
Collateral, (x) to the extent any Capital Stock of any Foreign Subsidiary is
pledged hereunder which represent more than 65% of all classes of the Capital
Stock of the respective Foreign Subsidiary (with all Capital Stock of the
respective Foreign Subsidiary in excess of said 65% limit being herein called
"Excess Foreign Subsidiary Capital Stock"), such Excess Foreign Subsidiary
Capital Stock shall secure Borrower Obligations of the respective Grantor only
as a guarantor of the Borrower Obligations of the Canadian Borrowers, and shall
not secure any direct Obligations of the U.S. Borrowers (or guarantees of such
Obligations by the respective Grantor) and (y) each Grantor
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shall be required to pledge hereunder 65% of the Capital Stock of each Foreign
Subsidiary at any time and from time to time acquired by such Grantor, which
Capital Stock shall not be subject to the limitations described in preceding
clause (x).
Section 3.2. Pledged Collateral. Each Granting Party that is a
Pledgor, hereby grants to the U.S. Collateral Agent, for the ratable benefit of
the Secured Parties, a security interest in all of the Pledged Collateral of
such Pledgor now owned or at any time hereafter acquired by such Pledgor, and
any Proceeds thereof, as collateral security for the prompt and complete payment
and performance when due (whether at the stated maturity, by acceleration or
otherwise) of the Obligations of such Pledgor, except as provided in subsection
3.3.
Section 3.3. Certain Limited Exceptions. No security interest is or
will be granted pursuant hereto in any right, title or interest of any Granting
Party under or in (collectively, the "Excluded Assets"):
(a) any Instruments, Contracts, Chattel Paper, General Intangibles,
Copyright Licenses, Patent Licenses, Trademark Licenses, Trade Secret
Licenses or other contracts or agreements with or issued by Persons other
than Holdings, a Subsidiary of Holdings or an Affiliate thereof,
(collectively, "Restrictive Agreements") that would otherwise be included
in the Security Collateral (and such Restrictive Agreements shall not be
deemed to constitute a part of the Security Collateral) for so long as, and
to the extent that, the granting of such a security interest pursuant
hereto would result in a breach, default or termination of such Restrictive
Agreements (in each case, except to the extent that, pursuant to the Code
or other applicable law, the granting of security interests therein can be
made without resulting in a breach, default or termination of such
Restrictive Agreements);
(b) any Equipment that would otherwise be included in the Security
Collateral (and such Equipment shall not be deemed to constitute a part of
the Security Collateral) if such Equipment is subject to a Lien permitted
by subsection 8.3(h) of the Credit Agreement (but only for so long as such
Liens are in place);
(c) any property that would otherwise be included in the Security
Collateral (and such property shall not be deemed to constitute a part of
the Security Collateral) if such property has been sold or otherwise
transferred in connection with a Sale and Leaseback Transaction permitted
under subsection 8.11 of the Credit Agreement, or is subject to any Liens
permitted under subsection 8.3(n) of the Credit Agreement. Notwithstanding
the foregoing, the security interest of the Collateral Agent shall attach
to any money, securities or other consideration received by any Grantor as
consideration for the sale or other disposition of such property;
(d) any Intellectual Property governed by the laws of a jurisdiction
in which a security interest or similar lien of any kind is prohibited
under that jurisdiction's laws, for so long as the laws of that
jurisdiction so provide;
(e) Capital Stock which is specifically excluded from the definition
of Pledged Stock by virtue of the proviso contained in the parenthetical to
such definition;
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(f) Capital Stock issued by Canadian ▇▇▇▇▇ and any other ULC Shares.
If the Grantor acquires any ULC Shares, it shall promptly notify the U.S.
Collateral Agent. Upon the request of the U.S. Collateral Agent, such
Grantor shall execute and deliver all such agreements and deliver all such
other documents, opinions and certificates (including without limitation
share certificates evidencing such ULC Shares) as the U.S. Collateral Agent
may reasonably require to receive a perfected, first ranking priority
security interest in the ULC Shares, in each case, in form and substance
reasonably acceptable to the U.S. Collateral Agent;
(g) Any forward contracts between RSC and RSC Canada entered into in
connection with the loan made by Canadian ▇▇▇▇▇ to RSC Canada; or
(h) any Money, cash, checks, other negotiable instrument, funds and
other evidence of payment held in any Deposit Account of the Parent
Borrower or any of its Subsidiaries (i) for the benefit of customers of any
Granting Party or any of its Subsidiaries in the ordinary course of
business and (ii) in the nature of security deposit with respect to
obligations for the benefit of the Parent Borrower or any of its
Subsidiaries, which must be held for or returned to the applicable
counterparty under applicable law or pursuant to Contractual Obligations.
Section 3.4. Intercreditor Relations. Notwithstanding anything herein
to the contrary, it is the understanding of the parties that the Liens granted
pursuant to this Agreement shall with respect to all Security Collateral, be
senior to the Liens granted to the Second-Lien Collateral Agent (as defined in
the Intercreditor Agreement) for the benefit of the holders of the Second-Lien
Obligations (as defined in the Intercreditor Agreement) to secure the
Second-Lien Obligations (as defined in the Intercreditor Agreement) pursuant to
the Second-Lien Term Loan Guarantee and Collateral Agreement. Notwithstanding
anything herein to the contrary, the Liens and security interest granted to the
U.S. Collateral Agent pursuant to this Agreement and the exercise of any right
or remedy by the U.S. Collateral Agent hereunder are subject to the provisions
of the Intercreditor Agreement. In the event of any conflict between the terms
of the Intercreditor Agreement and this Agreement, the terms of the
Intercreditor Agreement shall govern and control.
ARTICLE IV
Representations and Warranties
Section 4.1. Representations and Warranties of Each Guarantor. To
induce the U.S. Collateral Agent and the Lenders to enter into the Credit
Agreement and to induce the Lenders to make their respective extensions of
credit to the Borrowers thereunder, each Guarantor hereby represents and
warrants to the U.S. Collateral Agent and each other Secured Party that the
representations and warranties set forth in Section 5 of the Credit Agreement as
they relate to such Guarantor or to the Loan Documents to which such Guarantor
is a party, each of which representations and warranties is hereby incorporated
herein by reference, are true and correct in all material respects, and the U.S.
Collateral Agent and each other Secured Party shall be entitled to rely on each
of such representations and warranties as if fully set forth herein; provided
that each reference in each such representation and warranty to the Parent
Borrower's knowledge
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shall, for the purposes of this subsection 4.1, be deemed to be a reference to
such Guarantor's knowledge.
Section 4.2. Representations and Warranties of Each Grantor. To induce
the U.S. Collateral Agent and the Lenders to enter into the Credit Agreement and
to induce the Lenders to make their respective extensions of credit to the
Borrowers thereunder, each Grantor hereby represents and warrants to the U.S.
Collateral Agent and each other Secured Party that, in each case after giving
effect to the Transactions:
4.2.1 Title; No Other Liens. Except for the security interests granted
to the U.S. Collateral Agent for the ratable benefit of the Secured Parties
pursuant to this Agreement and the other Liens permitted to exist on such
Grantor's Collateral by the Credit Agreement (including, without
limitation, subsection 8.3 thereof), such Grantor owns each item of such
Grantor's Collateral free and clear of any and all Liens. Except as set
forth on Schedule 3, no currently effective financing statement or other
similar public notice with respect to all or any part of such Grantor's
Collateral is on file or of record in any public office, except such as
have been filed in favor of the U.S. Collateral Agent for the ratable
benefit of the Secured Parties pursuant to this Agreement or as are
permitted by the Credit Agreement (including without limitation subsection
8.3 thereof) or any other Loan Document or for which termination statements
will be delivered on the Closing Date.
4.2.2 Perfected First Priority Liens. (a) This Agreement is effective
to create, as collateral security for the Obligations of such Grantor,
valid and enforceable Liens on such Grantor's Security Collateral in favor
of the U.S. Collateral Agent for the benefit of the Secured Parties, except
(i) with respect to all Intellectual Property that is an Excluded Asset or
(ii) as enforceability may be affected by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditor's rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
(b) Except with regard to (i) Liens (if any) on Specified Assets and
(ii) any rights in favor of the United States government as required by law
(if any), upon the completion of the Filings and, with respect to
Instruments, Chattel Paper and Documents upon the earlier of such Filing or
the delivery to and continuing possession by the U.S. Collateral Agent, of
all Instruments, Chattel Paper and Documents a security interest in which
is perfected by possession, and the obtaining and maintenance of "control"
(as described in the Code) by the U.S. Collateral Agent, the Canadian
Collateral Agent, the U.S. Administrative Agent, as applicable (or their
respective agents appointed for purposes of perfection), in accordance with
the Intercreditor Agreement of all Deposit Accounts, the U.S. Collateral
Proceeds Account, Electronic Chattel Paper and Letter of Credit Rights a
security interest in which is perfected by "control" and in the case of
Commercial Tort Actions (other than such Commercial Tort Actions listed on
Schedule 7 on the date of this Agreement), the taking of the actions
required by subsection 5.2.12 herein, the Liens created pursuant to this
Agreement will constitute valid Liens on and (to the extent provided
herein) perfected security interests in such Grantor's Security Collateral
in favor of the U.S. Collateral Agent for the benefit of the Secured
Parties, and
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will be prior to all other Liens of all other Persons other than Permitted
Liens, and enforceable as such as against all other Persons other than
Ordinary Course Transferees, except to the extent that the recording of an
assignment or other transfer of title to the U.S. Collateral Agent or the
recording of other applicable documents in the United States Patent and
Trademark Office or United States Copyright Office may be necessary for
perfection or enforceability, and except as enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting the enforcement of creditors' rights generally and by
general equitable principles (whether enforcement is sought by proceedings
in equity or at law) or by an implied covenant of good faith and fair
dealing. As used in this subsection 4.2.2(b), the following terms shall
have the following meanings:
"Filings": the filing or recording of (i) the Financing
Statements as set forth in Schedule 3, (ii) this Agreement or a notice
thereof with respect to Intellectual Property as set forth in Schedule 3,
(iii) the recordation after the Closing Date on the certificate of title
related thereto of each Lien granted in favor of the U.S. Collateral Agent
hereunder, subject to certificate of title statutes, and (iv) any filings
after the Closing Date in any other jurisdiction as may be necessary under
any Requirement of Law.
"Financing Statements": the financing statements delivered to the
U.S. Collateral Agent by such Grantor on the Closing Date for filing in the
jurisdictions listed in Schedule 4.
"Ordinary Course Transferees": (i) with respect to goods only,
buyers in the ordinary course of business and lessees in the ordinary
course of business to the extent provided in Section 9-320(a) and 9-321 of
the Uniform Commercial Code as in effect from time to time in the relevant
jurisdiction, (ii) with respect to general intangibles only, licensees in
the ordinary course of business to the extent provided in Section 9-321 of
the Uniform Commercial Code as in effect from time to time in the relevant
jurisdiction and (iii) any other Person who is entitled to take free of the
Lien pursuant to the Uniform Commercial Code as in effect from time to time
in the relevant jurisdiction.
"Permitted Liens": Liens permitted pursuant to the Credit
Documents, including without limitation those permitted to exist pursuant
to subsection 8.3 of the Credit Agreement.
"Specified Assets": the following property and assets of such
Grantor:
(1) Patents, Patent Licenses, Trademarks and Trademark Licenses
to the extent that (a) Liens thereon cannot be perfected by the filing
of financing statements under the Uniform Commercial Code or by the
filing and acceptance thereof in the United States Patent and
Trademark Office (including Liens on such Patents, Patent Licenses,
Trademarks and Trademark Licenses that are non-U.S. Patents, Patent
Licenses, Trademarks and Trademark Licenses) or (b) such Patents,
Patent Licenses, Trademarks and Trademark Licenses are not,
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individually or in the aggregate, material to the business of the
Parent Borrower and its Subsidiaries taken as a whole;
(2) Copyrights and Copyright Licenses with respect thereto and
Accounts or receivables arising therefrom to the extent that the
Uniform Commercial Code as in effect from time to time in the relevant
jurisdiction is not applicable to the creation or perfection of Liens
thereon;
(3) Collateral for which the perfection of Liens thereon requires
filings in or other actions under the laws of jurisdictions outside of
the United States of America, any State, territory or dependency
thereof or the District of Columbia;
(4) goods included in Collateral received by any Person from any
Grantor for "sale or return" within the meaning of Section 2-326 of
the Uniform Commercial Code of the applicable jurisdiction, to the
extent of claims of creditors of such Person;
(5) Equipment constituting Fixtures (other than any such
Equipment subject to a Mortgage);
(6) Proceeds of Accounts or Inventory which do not themselves
constitute Collateral or which have not yet been transferred to or
deposited in the U.S. Collateral Proceeds Account (if any) or to a
Blocked Account; and
(7) uncertificated securities (to the extent a security interest
is not perfected by the filing of a financing statement).
4.2.3 Jurisdiction of Organization. On the date hereof, such Grantor's
jurisdiction of organization is specified on Schedule 4.
4.2.4 Farm Products. None of such Grantor's Collateral constitutes, or
is the Proceeds of, Farm Products.
4.2.5 Accounts Receivable. The amounts represented by such Grantor to
the U.S. Administrative Agent or the other Secured Parties from time to
time as owing by each account debtor or by all account debtors in respect
of such Grantor's Accounts Receivable constituting Security Collateral will
at such time be the correct amount, in all material respects, actually
owing by such account debtor or debtors thereunder, except to the extent
that appropriate reserves therefor have been established on the books of
such Grantor in accordance with GAAP. Unless otherwise indicated in writing
to the U.S. Administrative Agent, each Account Receivable of such Grantor
arises out of a bona fide sale and delivery of goods or rendition of
services by such Grantor. Such Grantor has not given any account debtor any
deduction in respect of the amount due under any such Account, except in
the ordinary course of business or as such Grantor may otherwise advise the
U.S. Administrative Agent in writing.
4.2.6 Patents, Copyrights and Trademarks. Schedule 5 lists all
material Trademarks, material Copyrights and material Patents, in each
case, registered in the
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▇▇▇▇▇▇ ▇▇▇▇▇▇ Patent and Trademark Office or the United States Copyright
Office or other equivalent foreign office, as applicable, and owned by such
Grantor in its own name as of the date hereof, and all material Trademark
Licenses, all material Copyright Licenses and all material Patent Licenses
(including, without limitation, material Trademark Licenses for registered
Trademarks, material Copyright Licenses for registered Copyrights and
material Patent Licenses for registered Patents) owned by such Grantor in
its own name as of the date hereof.
Section 4.3. Representations and Warranties of Each Pledgor. To induce
the U.S. Collateral Agent, the U.S. Administrative Agent and the Lenders to
enter into the Credit Agreement and to induce the Lenders to make their
respective extensions of credit to the Borrowers thereunder, each Pledgor hereby
represents and warrants to the U.S. Collateral Agent and each other Secured
Party that:
4.3.1 Except as provided in subsection 3.3, the shares of Pledged
Stock pledged by such Pledgor hereunder constitute all the issued and
outstanding shares of all classes of the Capital Stock of such Subsidiary
owned by such Pledgor.
4.3.2 All the shares of the Pledged Stock pledged by such Pledgor
hereunder have been duly and validly issued and are fully paid and
nonassessable (or the equivalent, if any, under applicable foreign law).
4.3.3 Such Pledgor is the record and beneficial owner of, and has good
title to, the Pledged Securities pledged by it hereunder, free of any and
all Liens or options in favor of, or claims of, any other Person, except
the security interest created by this Agreement and Liens arising by
operation of law or permitted by the Credit Agreement.
4.3.4 Upon the delivery to the U.S. Collateral Agent of the
certificates, if any, evidencing the Pledged Securities held by such
Pledgor together with executed undated stock powers or other instruments of
transfer, the security interest created in such Pledged Securities
constituting certificated securities by this Agreement, assuming the
continuing possession of such Pledged Securities by the U.S. Collateral
Agent will constitute a valid, perfected first priority security interest
in such Pledged Securities to the extent provided in and governed by the
Code, enforceable in accordance with its terms against all creditors of
such Pledgor and any Persons purporting to purchase such Pledged Securities
from such Pledgor, except as enforceability may be affected by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity or at
law) and an implied covenant of good faith and fair dealing.
4.3.5 Upon the earlier of (x) (to the extent a security interest in
uncertificated securities may be perfected by the filing of a financing
statement) the filing of the financing statements listed on Schedule 3
hereto and (y) the obtaining and maintenance of "control" (as described in
the Code) by the U.S. Collateral Agent (or its agent appointed for purposes
of perfection) of all Pledged Securities that constitute uncertificated
securities, the security interest created by this Agreement in such Pledged
Securities that constitute uncertificated securities, will constitute a
valid, perfected first
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priority security interest in such Pledged Securities constituting
uncertificated securities, enforceable in accordance with its terms against
all creditors of such Pledgor and any persons purporting to purchase such
Pledged Securities from such Pledgor, to the extent provided in and
governed by the Code, except as enforceability may be affected by
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
and other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a proceeding
in equity or at law) and an implied covenant of good faith and fair
dealing.
ARTICLE V
Covenants
Section 5.1. Covenants of Each Guarantor. Each Guarantor covenants and
agrees with the U.S. Collateral Agent and the other Secured Parties that, from
and after the date of this Agreement until the earlier to occur of (i) the date
upon which the Loans, any Reimbursement Obligations, and all other Obligations
then due and owing, shall have been paid in full in cash, no Letter of Credit
shall be outstanding (except for Letters of Credit that have been cash
collateralized in a manner satisfactory to the Issuing Lender) and the
Commitments shall have terminated or (ii) as to any Guarantor, the date upon
which all the Capital Stock of such Guarantor shall have been sold or otherwise
disposed of (to a Person other than Holdings, the Parent Borrower or a
Subsidiary of either) in accordance with the terms of the Credit Agreement, such
Guarantor shall take, or shall refrain from taking, as the case may be, each
action that is necessary to be taken or not taken, as the case may be, so that
no Default or Event of Default is caused by the failure to take such action or
to refrain from taking such action by such Guarantor or any of its Subsidiaries.
Section 5.2. Covenants of Each Grantor. Each Grantor covenants and
agrees with the U.S. Collateral Agent and the other Secured Parties that, from
and after the date of this Agreement until the earlier to occur of (i) the date
upon which the Loans, any Reimbursement Obligations and all other Obligations
then due and owing shall have been paid in full in cash, no Letter of Credit
shall be outstanding (except for Letters of Credit that have been cash
collateralized in a manner satisfactory to the Issuing Lender) and the
Commitments shall have terminated or (ii) as to any Grantor, the date upon which
all the Capital Stock of such Grantor shall have been sold or otherwise disposed
of (to a Person other than Holdings, the Parent Borrower or a Subsidiary of
either) in accordance with the terms of the Credit Agreement:
5.2.1 Delivery of Instruments and Chattel Paper. If any amount payable
under or in connection with any of such Grantor's Collateral shall be or
become evidenced by any Instrument or Chattel Paper, such Grantor shall
(except as provided in the following sentence) be entitled to retain
possession of all Collateral of such Grantor evidenced by any Instrument or
Chattel Paper, and shall hold all such Collateral in trust for the U.S.
Collateral Agent, for the ratable benefit of the Secured Parties. In the
event that an Event of Default shall have occurred and be continuing, upon
the request of the U.S. Collateral Agent, such Instrument or Chattel Paper
(other than ordinary course rental contracts for Rental Fleet) shall be
promptly delivered to the U.S. Collateral Agent, duly indorsed in a manner
satisfactory to the U.S. Collateral Agent, to be held as Collateral
pursuant to this
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Agreement. Such Grantor shall not permit any other Person to possess any
such Collateral at any time other than in connection with any sale or other
disposition of such Collateral in a transaction permitted by the Credit
Agreement.
5.2.2 Maintenance of Insurance. Such Grantor will maintain with
financially sound and reputable insurance companies insurance on all
property material to the business of the Parent Borrower and its
Subsidiaries, taken as a whole, in at least such amounts and against at
least such risks (but including in any event public liability, product
liability and business interruption) as are usually insured against in the
same general area by companies of similar size engaged in the same or a
similar business; furnish to the U.S. Collateral Agent, upon written
request, information in reasonable detail as to the insurance carried; and
ensure that at all times the U.S. Collateral Agent shall be named as
additional insureds with respect to liability policies and the U.S.
Collateral Agent shall be named loss payee with respect to the casualty
insurance maintained by such Grantor with respect to such Grantor's
Collateral.
5.2.3 Payment of Obligations. Such Grantor will pay, discharge or
otherwise satisfy at or before maturity or before they become delinquent,
as the case may be, all material taxes, assessments and governmental
charges or levies imposed upon such Grantor's Collateral or in respect of
income or profits therefrom, as well as all material claims of any kind
(including, without limitation, material claims for labor, materials and
supplies) against or with respect to such Grantor's Collateral, except that
no such tax, assessment, charge or levy need be paid or satisfied if the
amount or validity thereof is currently being contested in good faith by
appropriate proceedings and reserves in conformity with GAAP with respect
thereto have been provided on the books of such Grantor.
5.2.4 Maintenance of Perfected Security Interest; Further
Documentation. (a) Such Grantor shall maintain the security interest
created by this Agreement in such Grantor's Collateral as a perfected
security interest having at least the priority described in subsection
4.2.2 and shall defend such security interest against the claims and
demands of all Persons whomsoever.
(b) Such Grantor will furnish to the U.S. Collateral Agent from time
to time statements and schedules further identifying and describing such
Grantor's Collateral and such other reports in connection with such
Grantor's Collateral as the U.S. Collateral Agent may reasonably request in
writing, all in reasonable detail.
(c) Except with respect to Intellectual Property that is an Excluded
Asset, at any time and from time to time, upon the written request of the
U.S. Collateral Agent, and at the sole expense of such Grantor, such
Grantor will promptly and duly execute and deliver such further instruments
and documents and take such further actions as the U.S. Collateral Agent
may reasonably request for the purpose of obtaining or preserving the full
benefits of this Agreement and of the rights and powers herein granted by
such Grantor, including, without limitation, the filing of any financing or
continuation statements under the Uniform Commercial Code (or other similar
laws) in effect in any jurisdiction with respect to the security interests
created hereby.
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5.2.5 Changes in Name, Jurisdiction of Organization, etc. Such Grantor
will not, except upon not less than 30 days' prior written notice to the
U.S. Collateral Agent, change its name or jurisdiction of organization
(whether by merger of otherwise); provided that, promptly after receiving a
written request therefor from the U.S. Collateral Agent, such Grantor shall
deliver to the U.S. Collateral Agent all additional financing statements
and other documents reasonably requested by the U.S. Collateral Agent to
maintain the validity, perfection and priority of the security interests as
and to the extent provided for herein.
5.2.6 Notices. Such Grantor will advise the U.S. Administrative Agent
promptly, in reasonable detail, of:
(a) any Lien (other than security interests created hereby or Liens
permitted under the Credit Agreement) on any of such Grantor's Collateral
which would materially adversely affect the ability of the U.S. Collateral
Agent to exercise any of its remedies hereunder; and
(b) the occurrence of any other event which would reasonably be
expected to have a material adverse effect on the security interests
created hereby.
5.2.7 Pledged Stock. In the case of each Grantor that is an Issuer,
such Issuer agrees that (i) it will be bound by the terms of this Agreement
relating to the Pledged Stock issued by it and will comply with such terms
insofar as such terms are applicable to it, (ii) it will notify the U.S.
Collateral Agent promptly in writing of the occurrence of any of the events
described in subsection 5.3.1 with respect to the Pledged Stock issued by
it and (iii) the terms of subsections 6.3(c) and 6.7 shall apply to it,
mutatis mutandis, with respect to all actions that may be required of it
pursuant to subsection 6.3(c) or 6.7 with respect to the Pledged Stock
issued by it.
5.2.8 Accounts Receivable. (a) With respect to Accounts Receivable
constituting Collateral, other than in the ordinary course of business or
as permitted by the Loan Documents, such Grantor will not (i) grant any
extension of the time of payment of any of such Grantor's Accounts
Receivable, (ii) compromise or settle any such Account Receivable for less
than the full amount thereof, (iii) release, wholly or partially, any
Person liable for the payment of any Account Receivable, (iv) allow any
credit or discount whatsoever on any such Account Receivable or (v) amend,
supplement or modify any Account Receivable unless such extensions,
compromises, settlements, releases, credits or discounts would not
reasonably be expected to materially adversely affect the value of the
Accounts Receivable constituting Collateral taken as a whole.
(b) Such Grantor will deliver to the U.S. Collateral Agent a copy of
each material demand, notice or document received by it that questions or
calls into doubt the validity or enforceability of more than 10% of the
aggregate amount of the then outstanding Accounts Receivable.
5.2.9 Maintenance of Records. Such Grantor will keep and maintain at
its own cost and expense reasonably satisfactory and complete records of
its Collateral,
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including, without limitation, a record of all payments received and all
credits granted with respect to such Collateral, and shall ▇▇▇▇ such
records to evidence this Agreement and the Liens and the security interests
created hereby.
5.2.10 Acquisition of Intellectual Property. Within 90 days after the
end of each calendar year, such Grantor will notify the U.S. Collateral
Agent of any acquisition by such Grantor of (i) any registration of any
material Copyright, Patent or Trademark or (ii) any exclusive rights under
a material Copyright License, Patent License or Trademark License
constituting Collateral, and, except with respect to Intellectual Property
that is an Excluded Asset, shall take such actions as may be reasonably
requested by the U.S. Collateral Agent (but only to the extent such actions
are within such Grantor's control) to perfect the security interest granted
to the U.S. Collateral Agent and the other Secured Parties therein, to the
extent provided herein in respect of any Copyright, Patent or Trademark
constituting Collateral on the date hereof, by (x) the execution and
delivery of an amendment or supplement to this Agreement (or amendments to
any such agreement previously executed or delivered by such Grantor) and/or
(y) the making of appropriate filings (I) of financing statements under the
Uniform Commercial Code of any applicable jurisdiction and/or (II) in the
United States Patent and Trademark Office, or with respect to Copyrights
and Copyright Licenses, another applicable United States office).
5.2.11 Protection of Trade Secrets. Such Grantor shall take all steps
which it deems commercially reasonable to preserve and protect the secrecy
of all material Trade Secrets of such Grantor.
5.2.12 Commercial Tort Actions. All Commercial Tort Actions of each
Grantor in existence on the date of this Agreement, known to such Grantor
after reasonable inquiry, are described in Schedule 7 hereto. If any
Grantor shall at any time after the date of this Agreement acquire a
Commercial Tort Action, such Grantor shall promptly notify the U.S.
Collateral Agent and the U.S. Administrative Agent thereof in a writing
signed by such Grantor and describing the details thereof and shall grant
to the U.S. Collateral Agent and the U.S. Administrative Agent in such
writing a security interest therein and in the proceeds thereof, all upon
the terms of this Agreement, with such writing to be in form and substance
reasonably satisfactory to the U.S. Collateral Agent and the U.S.
Administrative Agent.
5.2.13 Deposit Accounts; Etc. Such Grantor shall take, or refrain from
taking, as the case may be, each action that is necessary to be taken or
not taken, as the case maybe, so that no breach of subsection 4.16 of the
Credit Agreement is caused by the failure to take such action or to refrain
from taking such action by such Grantor or any of its Subsidiaries.
5.2.14 Protection of Trademarks. Such Grantor shall not, with respect
to any Trademarks that are material to the business of any Grantor, cease
the use of any of such Trademarks or fail to maintain the level of the
quality of products sold and services rendered under any of such Trademark
at a level at least substantially consistent with the quality of such
products and services as of the date hereof, and each Grantor shall take
all
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steps reasonably necessary to insure that licensees of such Trademarks use
such consistent standards of quality.
5.2.15 Protection of Intellectual Property. Subject to the Credit
Agreement, such Grantor shall not do any act or omit to do any act whereby
any of the Intellectual Property which is material to the business of
Grantor may lapse, expire, or become abandoned, or unenforceable.
5.2.16 Assignment of Letter of Credit Rights. In the case of any
Letter-of-Credit Rights of any Grantor in any letter of credit exceeding
$5,000,000 in value acquired following the Closing Date, such Grantor shall
use its commercially reasonable efforts to promptly obtain the consent of
the issuer thereof and any nominated person thereon to the assignment of
the proceeds of the related letter of credit in accordance with Section
5-114(c) of the UCC, pursuant to an agreement in form and substance
reasonably satisfactory to the U.S. Administrative Agent.
Section 5.3. Covenants of Each Pledgor. Each Pledgor covenants and
agrees with the U.S. Collateral Agent and the other Secured Parties that, from
and after the date of this Agreement until the earlier to occur of (i) the
Loans, any Reimbursement Obligations, and all other Obligations then due and
owing shall have been paid in full in cash, no Letter of Credit shall be
outstanding (except for Letters of Credit that have been cash collateralized in
a manner satisfactory to the Issuing Lender) and the Commitments shall have
terminated or (ii) as to any Pledgor, all the Capital Stock of such Pledgor
shall have been sold or otherwise disposed of (to a Person other than Holdings,
the Parent Borrower or a Subsidiary of either) as permitted under the terms of
the Credit Agreement:
5.3.1 Additional Shares. If such Pledgor shall, as a result of its
ownership of its Pledged Stock, become entitled to receive or shall receive
any stock certificate (including, without limitation, any stock certificate
representing a stock dividend or a distribution in connection with any
reclassification, increase or reduction of capital or any certificate
issued in connection with any reorganization), stock option or similar
rights in respect of the Capital Stock of any Issuer, whether in addition
to, in substitution of, as a conversion of, or in exchange for, any shares
of the Pledged Stock, or otherwise in respect thereof, such Pledgor shall
accept the same as the agent of the U.S. Collateral Agent and the other
Secured Parties, hold the same in trust for the U.S. Collateral Agent and
the other Secured Parties and deliver the same forthwith to the U.S.
Collateral Agent (who will hold the same on behalf of the Secured Parties)
in the exact form received, duly indorsed by such Pledgor to the U.S.
Collateral Agent, if required, together with an undated stock power
covering such certificate duly executed in blank by such Grantor, to be
held by the U.S. Collateral Agent, subject to the terms hereof, as
additional collateral security for the Obligations (subject to subsection
3.3 and provided that in no event shall there be pledged, nor shall any
Pledgor be required to pledge, more than 65% of any series of the
outstanding Capital Stock of any Foreign Subsidiary pursuant to this
Agreement). Any sums paid upon or in respect of the Pledged Stock upon the
liquidation or dissolution of any Issuer (except any liquidation or
dissolution of any Subsidiary of the Parent Borrower in accordance with the
Credit Agreement) shall be paid over to the U.S. Collateral Agent to be
held by it hereunder as additional collateral security for the
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Obligations, and in case any distribution of capital shall be made on or in
respect of the Pledged Stock or any property shall be distributed upon or
with respect to the Pledged Stock pursuant to the recapitalization or
reclassification of the capital of any Issuer or pursuant to the
reorganization thereof, the property so distributed shall, unless otherwise
subject to a perfected security interest in favor of the U.S. Collateral
Agent, be delivered to the U.S. Collateral Agent to be held by it hereunder
as additional collateral security for the Obligations in each case except
as otherwise provided by the Intercreditor Agreement. If any sums of money
or property so paid or distributed in respect of the Pledged Stock shall be
received by such Pledgor, such Pledgor shall, until such money or property
is paid or delivered to the U.S. Collateral Agent, hold such money or
property in trust for the Secured Parties, segregated from other funds of
such Pledgor, as additional collateral security for the Obligations.
5.3.2 Maintenance of Pledged Stock. Without the prior written consent
of the U.S. Collateral Agent, such Pledgor will not (except as permitted by
the Credit Agreement) (i) vote to enable, or take any other action to
permit, any Issuer to issue any stock or other equity securities of any
nature or to issue any other securities convertible into, or granting the
right to purchase or exchange for, any stock or other equity securities of
any nature of any Issuer, (ii) sell, assign, transfer, exchange, or
otherwise dispose of, or grant any option with respect to, the Pledged
Securities or Proceeds thereof, (iii) create, incur or permit to exist any
Lien or option in favor of, or any material adverse claim of any Person
with respect to, any of the Pledged Securities or Proceeds thereof, or any
interest therein, except for the security interests created by this
Agreement or Liens arising by operation of law or (iv) enter into any
agreement or undertaking restricting the right or ability of such Pledgor
or the U.S. Collateral Agent to sell, assign or transfer any of the Pledged
Securities or Proceeds thereof. Each interest in any limited liability
company created after the Closing Date pledged hereunder shall be
represented by a certificate, shall be a "security" within the meaning of
the Article VIII of the Code and shall be governed by Article VIII of the
Code. The charter documents of each such limited liability company shall
include an express provision providing that each interest in such entity
"is a security governed by Article VIII of the Uniform Commercial Code in
effect in the State of New York on the date hereof".
5.3.3 Pledged Notes. Such Pledgor shall, on the date of this Agreement
(or on such later date upon which it becomes a party hereto pursuant to
subsection 9.15), deliver to the U.S. Collateral Agent, all Pledged Notes
then held by such Pledgor (excluding any Pledged Note the principal amount
of which does not exceed $3,500,000), endorsed in blank or, at the request
of the U.S. Collateral Agent, endorsed to the U.S. Collateral Agent.
Furthermore, within ten Business Days after any Pledgor obtains a Pledged
Note with a principal amount in excess of $5,000,000, such Pledgor shall
cause such Pledged Note to be delivered to the U.S. Collateral Agent
endorsed in blank or, at the request of the U.S. Collateral Agent endorsed
to the U.S. Collateral Agent.
ARTICLE VI
Remedial Provisions
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Section 6.1. Certain Matters Relating to Accounts. (a) At any time and
from time to time after the occurrence and during the continuance of an Event of
Default, the U.S. Collateral Agent shall have the right to make test
verifications of the Accounts Receivable constituting Collateral in any
reasonable manner and through any reasonable medium that it reasonably considers
advisable, and the relevant Grantor shall furnish all such assistance and
information as the U.S. Collateral Agent may reasonably require in connection
with such test verifications. At any time and from time to time after the
occurrence and during the continuance of an Event of Default, upon the U.S.
Collateral Agent's reasonable request and at the expense of the relevant
Grantor, such Grantor shall cause independent public accountants or others
reasonably satisfactory to the U.S. Collateral Agent to furnish to the U.S.
Collateral Agent reports showing reconciliations, aging and test verifications
of, and trial balances for, the Accounts Receivable constituting Collateral.
(b) The U.S. Collateral Agent hereby authorizes each Grantor to
collect such Grantor's Accounts Receivable constituting Collateral and the U.S.
Collateral Agent may curtail or terminate said authority at any time after the
occurrence and during the continuance of an Event of Default specified in
subsection 9(a) of the Credit Agreement. If required by the U.S. Collateral
Agent at any time after the occurrence and during the continuance of an Event of
Default specified in subsection 9(a) of the Credit Agreement, any Proceeds
constituting payments or other cash proceeds of Accounts Receivables
constituting Collateral, when collected by such Grantor, (i) shall be forthwith
(and, in any event, within two Business Days of receipt by such Grantor)
deposited in, or otherwise transferred by such Grantor to, the U.S. Collateral
Proceeds Account, subject to withdrawal by the U.S. Collateral Agent for the
account of the Secured Parties only as provided in subsection 6.5, and (ii)
until so turned over, shall be held by such Grantor in trust for the U.S.
Collateral Agent and the other Secured Parties, segregated from other funds of
such Grantor. All Proceeds constituting collections or other cash proceeds of
Accounts Receivable constituting Collateral while held by the U.S. Collateral
Account Bank (or by any Grantor in trust for the benefit of the U.S. Collateral
Agent and the other Secured Parties) shall continue to be collateral security
for all of the Obligations and shall not constitute payment thereof until
applied as hereinafter provided. At any time when an Event of Default specified
in subsection 9(a) of the Credit Agreement has occurred and is continuing, at
the U.S. Collateral Agent's election, each of the U.S. Collateral Agent and the
U.S. Administrative Agent may apply all or any part of the funds on deposit in
the U.S. Collateral Proceeds Account established by the relevant Grantor to the
payment of the Obligations of such Grantor then due and owing, such application
to be made as set forth in subsection 6.5 hereof. So long as no Event of Default
has occurred and is continuing, the funds on deposit in the U.S. Collateral
Proceeds Account shall be remitted as provided in subsection 6.1(d) hereof.
(c) At any time and from time to time after the occurrence and during
the continuance of an Event of Default specified in subsection 9(a) of the
Credit Agreement, at the U.S. Collateral Agent's request, each Grantor shall
deliver to the U.S. Collateral Agent copies or, if required by the U.S.
Collateral Agent for the enforcement thereof or foreclosure thereon, originals
of all documents held by such Grantor evidencing, and relating to, the
agreements and transactions which gave rise to such Grantor's Accounts
Receivable constituting Collateral, including, without limitation, all
statements relating to such Grantor's Accounts Receivable constituting
Collateral and all orders, invoices and shipping receipts.
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(d) So long as no Event of Default has occurred and is continuing, the
U.S. Collateral Agent shall instruct the U.S. Collateral Account Bank to
promptly remit any funds on deposit in each Grantor's U.S. Collateral Proceeds
Account to such Grantor's General Fund Account. In the event that an Event of
Default has occurred and is continuing, the U.S. Collateral Agent and the
Grantors agree that the U.S. Collateral Agent, at its option, may require that
each U.S. Collateral Proceeds Account and the General Funds Account of each
Grantor be established at the U.S. Collateral Agent. Each Grantor shall have the
right, at any time and from time to time, to withdraw such of its own funds from
its own General Fund Account, and to maintain such balances in its General Fund
Account, as it shall deem to be necessary or desirable.
Section 6.2. Communications with Obligors; Grantors Remain Liable. (a)
The U.S. Collateral Agent in its own name or in the name of others, may at any
time and from time to time after the occurrence and during the continuance of an
Event of Default specified in subsection 9(a) of the Credit Agreement,
communicate with obligors under the Accounts Receivable constituting Collateral
and parties to the Contracts (in each case, to the extent constituting
Collateral) to verify with them to the U.S. Collateral Agent's satisfaction the
existence, amount and terms of any Accounts Receivable or Contracts.
(b) Upon the request of the U.S. Collateral Agent at any time after
the occurrence and during the continuance of an Event of Default specified in
subsection 9(a) of the Credit Agreement, each Grantor shall notify obligors on
such Grantor's Accounts Receivable and parties to such Grantor's Contracts (in
each case, to the extent constituting Collateral) that such Accounts Receivable
and such Contracts have been assigned to the U.S. Collateral Agent, for the
ratable benefit of the Secured Parties, and that payments in respect thereof
shall be made directly to the U.S. Collateral Agent.
(c) Anything herein to the contrary notwithstanding, each Grantor
shall remain liable under each of such Grantor's Accounts Receivable to observe
and perform all the conditions and obligations to be observed and performed by
it thereunder, all in accordance with the terms of any agreement giving rise
thereto. None of the U.S. Collateral Agent, the U.S. Administrative Agent or any
other Secured Party shall have any obligation or liability under any Account
Receivable (or any agreement giving rise thereto) by reason of or arising out of
this Agreement or the receipt by the U.S. Collateral Agent or any other Secured
Party of any payment relating thereto, nor shall the U.S. Collateral Agent or
any other Secured Party be obligated in any manner to perform any of the
obligations of any Grantor under or pursuant to any Account Receivable (or any
agreement giving rise thereto) to make any payment, to make any inquiry as to
the nature or the sufficiency of any payment received by it or as to the
sufficiency of any performance by any party thereunder, to present or file any
claim, to take any action to enforce any performance or to collect the payment
of any amounts that may have been assigned to it or to which it may be entitled
at any time or times.
Section 6.3. Pledged Stock. (a) Unless an Event of Default shall have
occurred and be continuing and the U.S. Collateral Agent shall have given notice
to the relevant Pledgor of the U.S. Collateral Agent's intent to exercise its
corresponding rights pursuant to subsection 6.3(b), each Pledgor shall be
permitted to receive all cash dividends and distributions paid in respect of the
Pledged Stock (subject to the last two sentences of subsection 5.3.1 of this
Agreement) and
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all payments made in respect of the Pledged Notes, to the extent permitted in
the Credit Agreement, and to exercise all voting and corporate rights with
respect to the Pledged Stock; provided, however, that no vote shall be cast or
corporate right exercised or such other action taken (other than in connection
with a transaction expressly permitted by the Credit Agreement) which, in the
U.S. Collateral Agent's reasonable judgment, would materially impair the Pledged
Stock or the related rights or remedies of the Secured Parties or which would be
inconsistent with or result in any violation of any provision of the Credit
Agreement, this Agreement or any other Loan Document.
(b) If an Event of Default shall occur and be continuing and the U.S.
Collateral Agent shall give notice of its intent to exercise such rights to the
relevant Pledgor or Pledgors, (i) the U.S. Collateral Agent shall have the right
to receive any and all cash dividends, payments or other Proceeds paid in
respect of the Pledged Stock and make application thereof to the Obligations of
the relevant Pledgor in such order as is provided in subsection 6.5, and (ii)
any or all of the Pledged Stock shall be registered in the name of the U.S.
Collateral Agent or its nominee, as applicable, may thereafter exercise (x) all
voting, corporate and other rights pertaining to such Pledged Stock at any
meeting of shareholders of the relevant Issuer or Issuers or otherwise and (y)
any and all rights of conversion, exchange, subscription and any other rights,
privileges or options pertaining to such Pledged Stock as if it were the
absolute owner thereof (including, without limitation, the right to exchange at
its discretion any and all of the Pledged Stock upon the merger, consolidation,
reorganization, recapitalization or other fundamental change in the corporate
structure of any Issuer, or upon the exercise by the relevant Pledgor or the
U.S. Collateral Agent, of any right, privilege or option pertaining to such
Pledged Stock, and in connection therewith, the right to deposit and deliver any
and all of the Pledged Stock with any committee, depositary, transfer agent,
registrar or other designated agency upon such terms and conditions as the U.S.
Collateral Agent may reasonably determine), all without liability (other than
for its gross negligence or willful misconduct, as determined in a final
non-appealable decision issued by a court of competent jurisdiction) except to
account for property actually received by it, but the U.S. Collateral Agent
shall have no duty, to any Pledgor to exercise any such right, privilege or
option and shall not be responsible for any failure to do so or delay in so
doing, provided that the U.S. Collateral Agent, shall not exercise any voting or
other consensual rights pertaining to the Pledged Stock in any way that would
constitute an exercise of the remedies described in subsection 6.6 other than in
accordance with subsection 6.6.
(c) Each Pledgor hereby authorizes and instructs each Issuer or maker
of any Pledged Securities pledged by such Pledgor hereunder to (i) comply with
any instruction received by it from the U.S. Collateral Agent in writing that
(x) states that an Event of Default has occurred and is continuing and (y) is
otherwise in accordance with the terms of this Agreement, without any other or
further instructions from such Pledgor, and each Pledgor agrees that each Issuer
or maker shall be fully protected in so complying, and (ii) unless otherwise
expressly permitted hereby, pay any dividends or other payments with respect to
the Pledged Securities directly to the U.S. Collateral Agent.
Section 6.4. Proceeds to be Turned Over To U.S. Collateral Agent. In
addition to the rights of the U.S. Collateral Agent and the other Secured
Parties specified in subsection 6.1 with respect to payments of Accounts
Receivable constituting Collateral, if an Event of Default shall occur and be
continuing, and the U.S. Collateral Agent shall have instructed any Grantor to
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do so, all Proceeds of Collateral received by such Grantor consisting of cash,
checks and other Cash Equivalent items shall be held by such Grantor in trust
for the U.S. Collateral Agent and the other Secured Parties hereto or the
Secured Parties (as defined in the Second-Lien Term Loan Guarantee and
Collateral Agreement) as applicable, segregated from other funds of such
Grantor, and shall, forthwith upon receipt by such Grantor, be turned over to
the U.S. Collateral Agent (or its agent appointed for purposes of perfection) in
the exact form received by such Grantor (duly indorsed by such Grantor to the
U.S. Collateral Agent if required). All Proceeds of Collateral received by the
U.S. Collateral Agent hereunder shall be held by the U.S. Collateral Agent in
the relevant U.S. Collateral Proceeds Account maintained under its sole dominion
and control. All Proceeds of Collateral while held by the U.S. Collateral Agent
in such U.S. Collateral Proceeds Account (or by the relevant Grantor in trust
for the U.S. Collateral Agent and the other Secured Parties) shall continue to
be held as collateral security for all the Obligations of such Grantor and shall
not constitute payment thereof until applied as provided in subsection 6.5.
Section 6.5. Application of Proceeds. It is agreed that if an Event of
Default shall occur and be continuing, any and all Proceeds of the relevant
Granting Party's Collateral (as defined in the Credit Agreement) received by the
U.S. Collateral Agent (whether from the relevant Granting Party or otherwise)
shall be held by the U.S. Collateral Agent for the benefit of the Secured
Parties as collateral security for the Obligations of the relevant Granting
Party (whether matured or unmatured), and/or then or at any time thereafter may,
in the sole discretion of the U.S. Collateral Agent, be applied by the U.S.
Collateral Agent as follows:
(a) first, to the payment of all amounts owing the U.S. Collateral
Agent for (i) any amounts advanced by the U.S. Collateral Agent in order to
preserve the Collateral or preserve its security interest in the
Collateral, (ii) in the event of the enforcement of any indebtedness,
obligations, or liabilities of any Grantor, after an Event of Default shall
have occurred and be continuing, the reasonable expenses of retaking,
holding, preparing for sale or lease, selling or otherwise disposing of or
realizing on the Collateral, or of any exercise by the U.S. Collateral
Agent of its rights hereunder, together with reasonable attorneys' fees and
court costs and (iii) all amounts paid to which the U.S. Collateral Agent
has the right to reimbursement under subsection 9.4;
(b) second, to the extent proceeds remain after the application
pursuant to the preceding clause (a), to the payment of all amounts owing
to any Agent pursuant to any of the Loan Documents in its capacity as such;
(c) third, but subject to the provisions of the following subclauses
6.5.6 and 6.5.7, to the extent proceeds remain after the application
pursuant to the preceding clauses (a) and (b), an amount equal to the
outstanding Primary U.S. Borrower Obligations shall be paid to the Secured
Parties as provided in subsection 6.5.2 hereof, with each Secured Party
receiving an amount equal to its outstanding Primary U.S. Borrower
Obligations or, if the proceeds are insufficient to pay in full all such
Primary U.S. Borrower Obligations, its Pro Rata Share of the amount
remaining to be distributed;
(d) fourth, but subject to the provisions of the following subclauses
6.5.6 and 6.5.7, to the extent proceeds remain after the application
pursuant to the preceding clauses (a) through (c), an amount equal to the
outstanding Primary Canadian Borrower
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Obligations shall be paid to the Secured Parties as provided in subsection
6.5.2 hereof, with each Secured Party receiving an amount equal to its
outstanding Primary Canadian Borrower Obligations or, if the proceeds are
insufficient to pay in full all such Primary Canadian Borrower Obligations,
its Pro Rata Share of the amount remaining to be distributed;
(e) fifth, but subject to the provisions of subclauses 6.5.6 and
6.5.7, to the extent proceeds remain after the application pursuant to the
preceding clauses (a) through (d), inclusive, an amount equal to the
outstanding Secondary U.S. Borrower Obligations shall be paid to the
Secured Parties as provided in subsection 6.5.2 hereof, with each Secured
Party receiving an amount equal to its outstanding Secondary U.S. Borrower
Obligations or, if the proceeds are insufficient to pay in full all such
Secondary U.S. Borrower Obligations, its Pro Rata Share of the amount
remaining to be distributed;
(f) sixth, but subject to the provisions of subclauses 6.5.6 and
6.5.7, to the extent proceeds remain after the application pursuant to
preceding clauses (a) through (e), inclusive, an amount equal to the
outstanding Secondary Canadian Borrower Obligations shall be paid to the
Secured Parties as provided in subsection 6.5.2 hereof, with each Secured
Party receiving an amount equal to its outstanding Secondary Canadian
Borrower Obligations or, if the proceeds are insufficient to pay in full
all such Secondary Canadian Borrower Obligations, its Pro Rata Share of the
amount remaining to be distributed;
(g) seventh, but subject to the provisions of subclauses 6.5.6 and
6.5.7, to the extent proceeds remain after the application pursuant to
preceding clauses (a) through (f), inclusive, ratably to any then remaining
unpaid Obligations; and
(h) eighth, to the extent proceeds remain after the application
pursuant to the preceding clauses (a) through (g), inclusive, and following
the termination of this Agreement, to the relevant Grantor or to whomever
may be lawfully entitled to such surplus.
6.5.2 For purposes of this Agreement, (i) "Pro Rata Share" shall mean,
when calculating a Secured Party's portion of any distribution or amount, that
amount (expressed as a percentage) equal to a fraction the numerator of which is
the then unpaid amount of such Secured Party's Primary U.S. Borrower
Obligations, Primary Canadian Borrower Obligations, Secondary U.S. Borrower
Obligations or Secondary Canadian Borrower Obligations, as the case may be, and
the denominator of which is the then outstanding amount of all Primary U.S.
Borrower Obligations, Primary Canadian Borrower Obligations, Secondary U.S.
Borrower Obligations or Secondary Canadian Borrower Obligations, as the case may
be, (ii) "Primary Obligations" shall mean (x) in the case of the Loan Document
Obligations, all unpaid principal of, premium, if any, fees and interest on, all
Loans, all Reimbursement Obligations and all fees and expenses due and owing
pursuant to the Credit Agreement and (y) in the case of the Other Obligations,
all amounts due under each Interest Rate Protection Agreement or Permitted
Hedging Arrangement with an Other Creditor (other than indemnities, fees
(including, without limitation, attorneys' fees) and similar obligations and
liabilities), (iii) "Secondary Obligations" shall mean all Obligations other
than Primary Obligations, (iv) "Primary U.S. Borrower Obligations" shall mean
all Primary
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Obligations which are also U.S. Borrower Obligations, (v) "Secondary U.S.
Borrower Obligations" shall mean all Secondary Obligations which are also U.S.
Borrower Obligations, (vi) "Primary Canadian Borrower Obligations" shall mean
all Primary Obligations which are also Canadian Borrower Obligations and (vii)
"Secondary Canadian Borrower Obligations" shall mean all Secondary Obligations
which are also Canadian Borrower Obligations.
6.5.3 Each of the Secured Parties, by their acceptance of the benefits
hereof and of the other Security Documents, agrees and acknowledges that if the
Lender Creditors receive a distribution on account of undrawn amounts with
respect to Letters of Credit issued under the Credit Agreement (which shall only
occur after all Loans and Reimbursement Obligations constituting Primary U.S.
Borrower Obligations or Primary Canadian Borrower Obligations, as the case may
be, have been paid in full), such amounts shall be paid to the U.S.
Administrative Agent under the Credit Agreement and held by it, for the equal
and ratable benefit of the respective Lender Creditors, as cash security for the
repayment of Obligations owing to the Lender Creditors as such. If any amounts
are held as cash security pursuant to the immediately preceding sentence, then
upon the termination of all outstanding Letters of Credit under the Credit
Agreement constituting Primary U.S. Borrower Obligations or Primary Canadian
Borrower Obligations, as the case may be, and after the application of all such
cash security to the repayment of all Obligations owing to the respective Lender
Creditors after giving effect to the termination of all such Letters of Credit,
if there remains any excess cash, such excess cash shall be returned by the U.S.
Administrative Agent to the U.S. Collateral Agent for distribution in accordance
with provisions set forth above in this subsection 6.5.
6.5.4 All payments required to be made hereunder shall be made (x) if
to the Lender Creditors, to the U.S. Administrative Agent for the account of the
Lender Creditors and (y) if to the Other Creditors, to the trustee, paying agent
or other similar representative (each, a "Representative") for the Other
Creditors or, in the absence of such a Representative, directly to the Other
Creditors.
6.5.5 For purposes of applying payments received in accordance with
this subsection 6.5, the U.S. Collateral Agent shall be entitled to rely upon
(i) the Administrative Agents and (ii) the Representative or, in the absence of
such a Representative, upon the Other Creditors for a determination (which the
Administrative Agents, each Representative and the Other Creditors agree (or
shall agree) to provide upon request of the U.S. Collateral Agent) of the
outstanding Primary U.S. Borrower Obligations, Primary Canadian Borrower
Obligations, Secondary Canadian Borrower Obligations and Secondary Canadian
Borrower Obligations owed to the Lender Creditors or the Other Creditors, as the
case may be. Unless it has received written notice from a Lender Creditor or an
Other Creditor to the contrary, the Administrative Agents and each
Representative, in furnishing information pursuant to the preceding sentence,
and the U.S. Collateral Agent, in acting hereunder, shall be entitled to assume
that no Secondary Obligations are outstanding. Unless it has written notice from
an Other Creditor to the contrary, the U.S. Collateral Agent, in acting
hereunder, shall be entitled to assume that no Interest Rate Protection
Agreements or Permitted Hedging Arrangements with an Other Creditor are in
existence.
6.5.6 Notwithstanding anything to the contrary contained above, to the
extent monies or proceeds to be applied pursuant to this subsection 6.5 consist
of proceeds received
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from a sale or other disposition of Excess Foreign Subsidiary Capital Stock,
such proceeds will be applied as otherwise required above in this subsection
6.5, but for this purpose treating the outstanding Primary Obligations and
Secondary Obligations as only those obligations secured by the Excess Foreign
Subsidiary Capital Stock in accordance with the provisions of clause (x) to the
proviso appearing at the end of subsection 3.1 hereof. In determining whether
any Excess Foreign Subsidiary Capital Stock has been sold or otherwise disposed
of, the U.S. Collateral Agent shall treat any sale or disposition of Capital
Stock of any Foreign Subsidiary as first being a sale of Capital Stock which is
not Excess Foreign Subsidiary Capital Stock until such time as the stock sold
represents 65% of the total combined voting power of all classes of Capital
Stock of the respective Foreign Subsidiary and, after such threshold has been
met, any further sales of Capital Stock of the respective Foreign Subsidiary
shall be treated as sales of Excess Foreign Subsidiary Capital Stock.
6.5.7 Notwithstanding anything to the contrary contained above, to the
extent monies or proceeds to be applied pursuant to this subsection 6.5 consist
of proceeds received under any Canadian Security Document, such proceeds will be
applied as otherwise required above in this subsection 6.5, but for this purpose
(i) reversing clauses (c) and (d) above (thereby treating clause (d) as if it
were the third priority of distribution, and treating clause (c) as if it were
the fourth priority of distribution) and reversing clauses (e) and (f) above
(thereby treating clause (f) above as if it were the fifth priority of
distribution and treating clause (e) above as if it were the sixth priority
distribution), in each case mutatis mutandis and with any necessary reference
changes (to clauses, etc.) and (ii) treating the outstanding Primary Obligations
and Secondary Obligations as only those obligations secured by the respective
Canadian Security Document.
6.5.8 It is understood that the Grantors shall remain jointly and
severally liable to the extent of any deficiency between the amount of the
proceeds of the Collateral and the aggregate amount of the Obligations.
Section 6.6. Code and Other Remedies. If an Event of Default shall
occur and be continuing, the U.S. Collateral Agent, on behalf of the Secured
Parties, may exercise, in addition to all other rights and remedies granted to
them in this Agreement and in any other instrument or agreement securing,
evidencing or relating to the Obligations to the extent permitted by applicable
law, all rights and remedies of a secured party under the Code, under any other
applicable law and in equity. Without limiting the generality of the foregoing,
to the extent permitted by applicable law, the U.S. Collateral Agent, without
demand of performance or other demand, presentment, protest, advertisement or
notice of any kind (except any notice required by law referred to below) to or
upon any Granting Party or any other Person (all and each of which demands,
defenses, advertisements and notices are hereby waived), may in such
circumstances, forthwith collect, receive, appropriate and realize upon the
Security Collateral, or any part thereof, and/or may forthwith sell, lease,
assign, give option or options to purchase, or otherwise dispose of and deliver
the Security Collateral or any part thereof (or contract to do any of the
foregoing), in one or more parcels at public or private sale or sales, at any
exchange, broker's board or office of the U.S. Collateral Agent or any other
Secured Party or elsewhere upon such terms and conditions as it may deem
advisable and at such prices as it may deem best, for cash or on credit or for
future delivery without assumption of any credit risk. The U.S. Collateral Agent
or any other Secured Party shall have the right, to the extent permitted by law,
upon any such
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sale or sales, to purchase the whole or any part of the Security Collateral so
sold, free of any right or equity of redemption in such Granting Party, which
right or equity is hereby waived and released. Each Granting Party further
agrees, at the U.S. Collateral Agent's request, to assemble the Security
Collateral and make it available to the U.S. Collateral Agent at places which
the U.S. Collateral Agent shall reasonably select, whether at such Granting
Party's premises or elsewhere. The U.S. Collateral Agent shall apply the net
proceeds of any action taken by it pursuant to this subsection 6.6, after
deducting all reasonable costs and expenses of every kind incurred in connection
therewith or incidental to the care or safekeeping of any of the Security
Collateral or in any way relating to the Security Collateral or the rights of
the U.S. Collateral Agent and the other Secured Parties hereunder, including,
without limitation, reasonable attorneys' fees and disbursements, to the payment
in whole or in part of the Obligations of the relevant Granting Party then due
and owing, in the order of priority specified in subsection 6.5 above, and only
after such application and after the payment by the U.S. Collateral Agent of any
other amount required by any provision of law, including, without limitation,
Section 9-615(a)(3) of the Code, need the U.S. Collateral Agent account for the
surplus, if any, to such Granting Party. To the extent permitted by applicable
law, (i) such Granting Party waives all claims, damages and demands it may
acquire against the U.S. Collateral Agent or any other Secured Party arising out
of the repossession, retention or sale of the Security Collateral, other than
any such claims, damages and demands that may arise from the gross negligence or
willful misconduct of any of the U.S. Collateral Agent or such other Secured
Party (in each case as determined in a final non-appealable decision issued by a
court of competent jurisdiction), and (ii) if any notice of a proposed sale or
other disposition of Security Collateral shall be required by law, such notice
shall be deemed reasonable and proper if given at least 10 days before such sale
or other disposition.
Section 6.7. Registration Rights. (a) If the U.S. Collateral Agent
shall determine to exercise its right to sell any or all of the Pledged Stock
pursuant to subsection 6.6, and if in the reasonable opinion of the U.S.
Collateral Agent it is necessary or reasonably advisable to have the Pledged
Stock (other than Pledged Stock of Special Purpose Subsidiaries), or that
portion thereof to be sold, registered under the provisions of the Securities
Act, the relevant Pledgor will use its reasonable best efforts to cause the
Issuer thereof to (i) execute and deliver, and use its best efforts to cause the
directors and officers of such Issuer to execute and deliver, all such
instruments and documents, and do or cause to be done all such other acts as may
be, in the reasonable opinion of the U.S. Collateral Agent, necessary or
advisable to register such Pledged Stock, or that portion thereof to be sold,
under the provisions of the Securities Act, (ii) use its reasonable best efforts
to cause the registration statement relating thereto to become effective and to
remain effective for a period of not more than one year from the date of the
first public offering of such Pledged Stock, or that portion thereof to be sold,
and (iii) make all amendments thereto and/or to the related prospectus which, in
the reasonable opinion of the Collateral Agent, are necessary or advisable, all
in conformity with the requirements of the Securities Act and the rules and
regulations of the Securities and Exchange Commission applicable thereto. Such
Pledgor agrees to use its reasonable best efforts to cause such Issuer to comply
with the provisions of the securities or "Blue Sky" laws of any and all states
and the District of Columbia that the U.S. Collateral Agent shall reasonably
designate and to make available to its security holders, as soon as practicable,
an earnings statement (which need not be audited) that will satisfy the
provisions of Section 11(a) of the Securities Act.
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(b) Such Pledgor recognizes that the U.S. Collateral Agent may be
unable to effect a public sale of any or all such Pledged Stock, by reason of
certain prohibitions contained in the Securities Act and applicable state
securities laws or otherwise, and may be compelled to resort to one or more
private sales thereof to a restricted group of purchasers which will be obliged
to agree, among other things, to acquire such securities for their own account
for investment and not with a view to the distribution or resale thereof. Such
Pledgor acknowledges and agrees that any such private sale may result in prices
and other terms less favorable than if such sale were a public sale and,
notwithstanding such circumstances, to the extent permitted by applicable law,
agrees that any such private sale shall be deemed to have been made in a
commercially reasonable manner. The U.S. Collateral Agent shall not be under any
obligation to delay a sale of any of the Pledged Stock for the period of time
necessary to permit the Issuer thereof to register such securities for public
sale under the Securities Act, or under applicable state securities laws, even
if such Issuer would agree to do so.
(c) Such Pledgor agrees to use its reasonable best efforts to do or
cause to be done all such other acts as may be necessary to make such sale or
sales of all or any portion of such Pledged Stock pursuant to this subsection
6.7 valid and binding and in compliance with any and all other applicable
Requirements of Law. Such Pledgor further agrees that a breach of any of the
covenants contained in this subsection 6.7 will cause irreparable injury to the
U.S. Collateral Agent and the Lenders, that the U.S. Collateral Agent and the
Lenders have no adequate remedy at law in respect of such breach and, as a
consequence, that each and every covenant contained in this subsection 6.7 shall
be specifically enforceable against such Pledgor, and to the extent permitted by
applicable law, such Pledgor hereby waives and agrees not to assert any defenses
against an action for specific performance of such covenants except for a
defense that no Event of Default has occurred or is continuing under the Credit
Agreement.
Section 6.8. Waiver; Deficiency. Each Granting Party shall remain
liable for any deficiency if the proceeds of any sale or other disposition of
the Security Collateral are insufficient to pay in full, the Loans,
Reimbursement Obligations constituting Obligations of such Granting Party and,
to the extent then due and owing, all other Obligations of such Granting Party
and the reasonable fees and disbursements of any attorneys employed by the U.S.
Collateral Agent or any other Secured Party to collect such deficiency.
ARTICLE VII
The Collateral Agent
Section 7.1. U.S. Collateral Agent's Appointment as Attorney-in-Fact,
etc. (a) Each Granting Party hereby irrevocably constitutes and appoints the
U.S. Collateral Agent and any authorized officer or agent thereof, with full
power of substitution, as its true and lawful attorney-in-fact with full
irrevocable power and authority in the place and stead of such Granting Party
and in the name of such Granting Party or in its own name, for the purpose of
carrying out the terms of this Agreement, to take any and all appropriate action
and to execute any and all documents and instruments that may be reasonably
necessary or desirable to accomplish the purposes of this Agreement to the
extent permitted by applicable law, provided that the U.S. Collateral Agent
agrees not to exercise such power except upon the occurrence and during the
continuance of any Event of Default. Without limiting the generality of the
foregoing, at any
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time when an Event of Default has occurred and is continuing (in each case to
the extent permitted by applicable law), (x) each Pledgor hereby gives the U.S.
Collateral Agent the power and right, on behalf of such Pledgor, without notice
or assent by such Pledgor, to execute, in connection with any sale provided for
in subsection 6.6 or 6.7, any endorsements, assessments or other instruments of
conveyance or transfer with respect to such Pledgor's Pledged Collateral, and
(y) each Grantor hereby gives the U.S. Collateral Agent the power and right, on
behalf of such Grantor, without notice to or assent by such Grantor, to do any
or all of the following:
(i) in the name of such Grantor or its own name, or otherwise, take
possession of and indorse and collect any checks, drafts, notes,
acceptances or other instruments for the payment of moneys due under any
Account Receivable of such Grantor that constitutes Collateral or with
respect to any other Collateral of such Grantor and file any claim or take
any other action or institute any proceeding in any court of law or equity
or otherwise deemed appropriate by the U.S. Collateral Agent for the
purpose of collecting any and all such moneys due under any Account
Receivable of such Grantor that constitutes Collateral or with respect to
any other Collateral of such Grantor whenever payable;
(ii) in the case of any Copyright, Patent, or Trademark constituting
Collateral of such Grantor, execute and deliver any and all agreements,
instruments, documents and papers as the U.S. Collateral Agent may
reasonably request to such Grantor to evidence the U.S. Collateral Agent's
and the Lenders' security interest in such Copyright, Patent, or Trademark
and the goodwill and general intangibles of such Grantor relating thereto
or represented thereby;
(iii) pay or discharge taxes and Liens, other than Liens permitted
under this Agreement or the other Loan Documents, levied or placed on the
Collateral of such Grantor, effect any repairs or any insurance called for
by the terms of this Agreement and pay all or any part of the premiums
therefor and the costs thereof; and
(iv) (A) direct any party liable for any payment under any of the
Collateral of such Grantor to make payment of any and all moneys due or to
become due thereunder directly to the U.S. Collateral Agent or as the U.S.
Collateral Agent shall direct; (B) ask or demand for, collect, receive
payment of and receipt for, any and all moneys, claims and other amounts
due or to become due at any time in respect of or arising out of any
Collateral of such Grantor; (C) sign and indorse any invoices, freight or
express bills, bills of lading, storage or warehouse receipts, drafts
against debtors, assignments, verifications, notices and other documents in
connection with any of the Collateral of such Grantor; (D) commence and
prosecute any suits, actions or proceedings at law or in equity in any
court of competent jurisdiction to collect the Collateral of such Grantor
or any portion thereof and to enforce any other right in respect of any
Collateral of such Grantor; (E) defend any suit, action or proceeding
brought against such Grantor with respect to any Collateral of such
Grantor; (F) settle, compromise or adjust any such suit, action or
proceeding described in clause (E) above and, in connection therewith, to
give such discharges or releases as the U.S. Collateral Agent may deem
appropriate; (G) subject to any existing reserved rights or licenses,
assign any Copyright, Patent or Trademark constituting Collateral of such
Grantor (along with the goodwill of the
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business to which any such Copyright, Patent or Trademark pertains), for
such term or terms, on such conditions, and in such manner, as the U.S.
Collateral Agent shall in its sole discretion determine; and (H) generally,
sell, transfer, pledge and make any agreement with respect to or otherwise
deal with any of the Collateral of such Grantor as fully and completely as
though the U.S. Collateral Agent were the absolute owner thereof for all
purposes, and do, at the U.S. Collateral Agent's option and such Grantor's
expense, at any time, or from time to time, all acts and things which the
U.S. Collateral Agent deems necessary to protect, preserve or realize upon
the Collateral of such Grantor and the U.S. Collateral Agent's and the
other Secured Parties' security interests therein and to effect the intent
of this Agreement, all as fully and effectively as such Grantor might do.
(b) The reasonable expenses of the U.S. Collateral Agent incurred in
connection with actions undertaken as provided in this subsection 7.1, together
with interest thereon at a rate per annum equal to the rate per annum at which
interest would then be payable on past due ABR Loans that are U.S. RCF Loans
under the Credit Agreement, from the date of payment by the U.S. Collateral
Agent to the date reimbursed by the relevant Granting Party, shall be payable by
such Granting Party to the U.S. Collateral Agent on demand.
(c) Each Granting Party hereby ratifies all that said attorney shall
lawfully do or cause to be done by virtue hereof. All powers, authorizations and
agencies contained in this Agreement are coupled with an interest and are
irrevocable as to the relevant Granting Party until this Agreement is terminated
as to such Granting Party, and the security interests in the Security Collateral
of such Granting Party created hereby are released.
Section 7.2. Duty of U.S. Collateral Agent. The U.S. Collateral
Agent's sole duty with respect to the custody, safekeeping and physical
preservation of the Security Collateral in its possession, under Section 9-207
of the Code or otherwise, shall be to deal with it in the same manner as the
U.S. Collateral Agent deals with similar property for its own account. None of
the U.S. Collateral Agent or any other Secured Party nor any of their respective
officers, directors, employees or agents shall be liable for failure to demand,
collect or realize upon any of the Security Collateral or for any delay in doing
so or shall be under any obligation to sell or otherwise dispose of any Security
Collateral upon the request of any Granting Party or any other Person or, except
as otherwise provided herein, to take any other action whatsoever with regard to
the Security Collateral or any part thereof. The powers conferred on the U.S.
Collateral Agent and the other Secured Parties hereunder are solely to protect
the U.S. Collateral Agent's and the other Secured Parties' interests in the
Security Collateral and shall not impose any duty upon the U.S. Collateral Agent
or any other Secured Party to exercise any such powers. The U.S. Collateral
Agent and the other Secured Parties shall be accountable only for amounts that
they actually receive as a result of the exercise of such powers, and neither
they nor any of their officers, directors, employees or agents shall be
responsible to any Granting Party for any act or failure to act hereunder,
except as otherwise provided herein or for their own gross negligence or willful
misconduct (as determined in a final non-appealable decision issued by a court
of competent jurisdiction).
Section 7.3. Financing Statements. Pursuant to any applicable law,
each Granting Party authorizes the U.S. Collateral Agent to file or record
financing statements and other filing
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or recording documents or instruments with respect to such Granting Party's
Security Collateral without the signature of such Granting Party in such form
and in such filing offices as the U.S. Collateral Agent reasonably determines
appropriate to perfect the security interests of the U.S. Collateral Agent under
this Agreement. Each Granting Party authorizes the U.S. Collateral Agent to use
any collateral description determined by the U.S. Collateral Agent, including,
without limitation, the collateral description "all personal property" or "all
assets" in any such financing statements.
Section 7.4. Authority of U.S. Collateral Agent. Each Granting Party
acknowledges that the rights and responsibilities of the U.S. Collateral Agent
under this Agreement with respect to any action taken by the U.S. Collateral
Agent or the exercise or non-exercise by the U.S. Collateral Agent of any
option, voting right, request, judgment or other right or remedy provided for
herein or resulting or arising out of this Agreement or any amendment,
supplement or other modification of this Agreement shall, as between the U.S.
Collateral Agent and the Secured Parties, be governed by the Credit Agreement
and by such other agreements with respect thereto as may exist from time to time
among them, but, as between the U.S. Collateral Agent and the Granting Parties,
the U.S. Collateral Agent shall be conclusively presumed to be acting as agent
for the Secured Parties with full and valid authority so to act or refrain from
acting, and no Granting Party shall be under any obligation, or entitlement, to
make any inquiry respecting such authority.
Section 7.5. Right of Inspection. Upon reasonable written advance
notice to any Grantor and as often as may reasonably be desired, or at any time
and from time to time after the occurrence and during the continuation of an
Event of Default, the U.S. Collateral Agent shall have reasonable access during
normal business hours to all the books, correspondence and records of such
Grantor, and the U.S. Collateral Agent and its representatives may examine the
same, and to the extent reasonable take extracts therefrom and make photocopies
thereof, and such Grantor agrees to render to the U.S. Collateral Agent at such
Grantor's reasonable cost and expense, such clerical and other assistance as may
be reasonably requested with regard thereto. The U.S. Collateral Agent and its
representatives shall also have the right, upon reasonable advance written
notice to such Grantor subject to any lease restrictions, to enter during normal
business hours into and upon any premises owned, leased or operated by such
Grantor where any of such Grantor's Inventory or Equipment is located for the
purpose of inspecting the same, observing its use or otherwise protecting its
interests therein.
ARTICLE VIII
Non-Lender Secured Parties
Section 8.1. Rights to Collateral. (a) The Non-Lender Secured Parties
shall not have any right whatsoever to do any of the following: (i) exercise any
rights or remedies with respect to the Collateral (such term, as used in this
Section 8, having the meaning assigned to it in the Credit Agreement),
including, without limitation, the right to (A) enforce any Liens or sell or
otherwise foreclose on any portion of the Collateral, (B) request any action,
institute any proceedings, exercise any voting rights, give any instructions,
make any election, notice account debtors or make collections with respect to
all or any portion of the Collateral or (C) release any Guarantor under this
Agreement or release any Collateral from the Liens of any Security
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Document or consent to or otherwise approve any such release; (ii) demand,
accept or obtain any Lien on any Collateral (except for Liens arising under, and
subject to the terms of, this Agreement); (iii) vote in any Bankruptcy Case or
similar proceeding in respect of Holdings or any of its Subsidiaries (any such
proceeding, for purposes of this clause (a), a "Bankruptcy") with respect to, or
take any other actions concerning the Collateral; (iv) receive any proceeds from
any sale, transfer or other disposition of any of the Collateral (except in
accordance with this Agreement); (v) oppose any sale, transfer or other
disposition of the Collateral; (vi) object to any debtor-in-possession financing
in any Bankruptcy which is provided by one or more Lenders among others
(including on a priming basis under Section 364(d) of the Bankruptcy Code);
(vii) object to the use of cash collateral in respect of the Collateral in any
Bankruptcy; or (viii) seek, or object to the Lenders seeking on an equal and
ratable basis, any adequate protection or relief from the automatic stay with
respect to the Collateral in any Bankruptcy.
(b) Each Non-Lender Secured Party, by its acceptance of the benefits
of this Agreement and the other Security Documents, agrees that in exercising
rights and remedies with respect to the Collateral, the U.S. Collateral Agent
and the Lenders, with the consent of the U.S. Collateral Agent, may enforce the
provisions of the Security Documents and exercise remedies thereunder and under
any other Loan Documents (or refrain from enforcing rights and exercising
remedies), all in such order and in such manner as they may determine in the
exercise of their sole business judgment. Such exercise and enforcement shall
include, without limitation, the rights to collect, sell, dispose of or
otherwise realize upon all or any part of the Collateral, to incur expenses in
connection with such collection, sale, disposition or other realization and to
exercise all the rights and remedies of a secured lender under the Uniform
Commercial Code of any applicable jurisdiction. The Non-Lender Secured Parties
by their acceptance of the benefits of this Agreement and the other Security
Documents hereby agree not to contest or otherwise challenge any such
collection, sale, disposition or other realization of or upon all or any of the
Collateral. Whether or not a Bankruptcy Case has been commenced, the Non-Lender
Secured Parties shall be deemed to have consented to any sale or other
disposition of any property, business or assets of Holdings or any of its
Subsidiaries and the release of any or all of the Collateral from the Liens of
any Security Document in connection therewith.
(c) Notwithstanding any provision of this subsection 8.1, the
Non-Lender Secured Parties shall be entitled to file any necessary responsive or
defensive pleadings in opposition to any motion, claim, adversary proceeding or
other pleadings (A) in order to prevent any Person from seeking to foreclose on
the Collateral or supersede the Non-Lender Secured Parties' claim thereto or (B)
in opposition to any motion, claim, adversary proceeding or other pleading made
by any Person objecting to or otherwise seeking the disallowance of the claims
of the Non-Lender Secured Parties.
(d) Each Non-Lender Secured Party, by its acceptance of the benefit of
this Agreement, agrees that the U.S. Collateral Agent and the Lenders may deal
with the Collateral, including any exchange, taking or release of Collateral,
may change or increase the amount of the Borrower Obligations and/or the
Guarantor Obligations, and may release any Guarantor from its Obligations
hereunder, all without any liability or obligation (except as may be otherwise
expressly provided herein) to the Non-Lender Secured Parties.
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Section 8.2. Appointment of Agent. Each Non-Lender Secured Party, by
its acceptance of the benefits of this Agreement and the other Security
Documents, shall be deemed irrevocably to make, constitute and appoint the U.S.
Collateral Agent, as agent under the Credit Agreement (and all officers,
employees or agents designated by the U.S. Collateral Agent) as such Person's
true and lawful agent and attorney-in-fact, and in such capacity, the U.S.
Collateral Agent shall have the right, with power of substitution for the
Non-Lender Secured Parties and in each such Person's name or otherwise, to
effectuate any sale, transfer or other disposition of the Collateral. It is
understood and agreed that the appointment of the U.S. Collateral Agent as the
agent and attorney-in-fact of the Non-Lender Secured Parties for the purposes
set forth herein is coupled with an interest and is irrevocable. It is
understood and agreed that the U.S. Collateral Agent has appointed the U.S.
Administrative Agent as its agent for purposes of perfecting certain of the
security interests created hereunder and for otherwise carrying out certain of
its obligations hereunder.
Section 8.3. Waiver of Claims. To the maximum extent permitted by law,
each Non-Lender Secured Party waives any claim it might have against the U.S.
Collateral Agent or the Lenders with respect to, or arising out of, any action
or failure to act or any error of judgment, negligence, or mistake or oversight
whatsoever on the part of the U.S. Collateral Agent or the Lenders or their
respective directors, officers, employees or agents with respect to any exercise
of rights or remedies under the Loan Documents or any transaction relating to
the Collateral (including, without limitation, any such exercise described in
subsection 8.1(b) above), except for any such action or failure to act which
constitutes willful misconduct or gross negligence of such Person. None of the
U.S. Collateral Agent or any Lender or any of their respective directors,
officers, employees or agents shall be liable for failure to demand, collect or
realize upon any of the Collateral or for any delay in doing so or shall be
under any obligation to sell or otherwise dispose of any Collateral upon the
request of Holdings, any Subsidiary of Holdings, any Non-Lender Secured Party or
any other Person or to take any other action or forbear from doing so whatsoever
with regard to the Collateral or any part thereof, except for any such action or
failure to act which constitutes willful misconduct or gross negligence of such
Person (as determined in a final non-appealable decision by a court of competent
jurisdiction).
ARTICLE IX
Miscellaneous
Section 9.1. Amendments in Writing. None of the terms or provisions of
this Agreement may be waived, amended, supplemented or otherwise modified except
by a written instrument executed by each affected Granting Party and the U.S.
Collateral Agent (acting at the directions of the Required Lenders or, if
required pursuant to Section 11.1 of the Credit Agreement, all of the Lenders),
provided that (a) any provision of this Agreement imposing obligations on any
Granting Party may be waived by the U.S. Collateral Agent in a written
instrument executed by the U.S. Collateral Agent (acting at the directions of
the Required Lenders or, if required pursuant to Section 11.1 of the Credit
Agreement, all of the Lenders) and (b) notwithstanding anything to the contrary
in subsection 11.1 of the Credit Agreement, no such waiver and no such amendment
or modification shall amend, modify or waive the definition of "Secured Party"
or subsection 6.5 if such waiver, amendment, or modification would adversely
affect a Secured Party without the written consent of each such affected Secured
Party.
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Section 9.2. Notices. All notices, requests and demands to or upon the
U.S. Collateral Agent or any Granting Party hereunder shall be effected in the
manner provided for in subsection 11.2 of the Credit Agreement; provided that
any such notice, request or demand to or upon any Guarantor shall be addressed
to such Guarantor at its notice address set forth on Schedule 1, unless and
until such Guarantor shall change such address by notice to the U.S. Collateral
Agent and the U.S. Administrative Agent given in accordance with subsection 11.2
of the Credit Agreement.
Section 9.3. No Waiver by Course of Conduct; Cumulative Remedies. None
of the U.S. Collateral Agent or any other Secured Party shall by any act (except
by a written instrument pursuant to subsection 9.1), delay, indulgence, omission
or otherwise be deemed to have waived any right or remedy hereunder or to have
acquiesced in any Default or Event of Default. No failure to exercise, nor any
delay in exercising, on the part of the U.S. Collateral Agent or any other
Secured Party, any right, power or privilege hereunder shall operate as a waiver
thereof. No single or partial exercise of any right, power or privilege
hereunder shall preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. A waiver by the U.S. Collateral Agent or
any other Secured Party of any right or remedy hereunder on any one occasion
shall not be construed as a bar to any right or remedy which the U.S. Collateral
Agent or such other Secured Party would otherwise have on any future occasion.
The rights and remedies herein provided are cumulative, may be exercised singly
or concurrently and are not exclusive of any other rights or remedies provided
by law.
Section 9.4. Enforcement Expenses; Indemnification. (a) Each Guarantor
jointly and severally agrees to pay or reimburse each Secured Party and the U.S.
Collateral Agent for all their respective reasonable costs and expenses incurred
in collecting against any Guarantor under the guarantee contained in Section 2
or otherwise enforcing or preserving any rights under this Agreement against
such Guarantor and the other Loan Documents to which such Guarantor is a party,
including, without limitation, the reasonable fees and disbursements of counsel
to the Secured Parties, the U.S. Collateral Agent and the U.S. Administrative
Agent.
(b) Each Grantor jointly and severally agrees to pay, and to save the
U.S. Collateral Agent, the U.S. Administrative Agent and the other Secured
Parties harmless from, (x) any and all liabilities with respect to, or resulting
from any delay in paying, any and all stamp, excise, sales or other similar
taxes which may be payable or determined to be payable with respect to any of
the Security Collateral or in connection with any of the transactions
contemplated by this Agreement and (y) any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever with respect to the execution,
delivery, enforcement, performance and administration of this Agreement
(collectively, the "indemnified liabilities"), in each case to the extent the
Parent Borrower would be required to do so pursuant to subsection 11.5 of the
Credit Agreement, and in any event excluding any taxes or other indemnified
liabilities arising from gross negligence or willful misconduct of the U.S.
Collateral Agent or any other Secured Party (as determined in a final
non-appealable decision by a court of competent jurisdiction).
(c) The agreements in this subsection 9.4 shall survive repayment of
the Obligations and all other amounts payable under the Credit Agreement and the
other Loan Documents.
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Section 9.5. Successors and Assigns. This Agreement shall be binding
upon and shall inure to the benefit of the Granting Parties, the U.S. Collateral
Agent and the Secured Parties and their respective successors and assigns;
provided that no Granting Party may assign, transfer or delegate any of its
rights or obligations under this Agreement without the prior written consent of
the U.S. Collateral Agent.
Section 9.6. Set-Off. Each Guarantor hereby irrevocably authorizes
each of the Administrative Agent and the U.S. Collateral Agent and each other
Secured Party at any time and from time to time without notice to such
Guarantor, any other Guarantor or any of the Borrowers, any such notice being
expressly waived by each Guarantor and by each Borrower, to the extent permitted
by applicable law, upon the occurrence and during the continuance of an Event of
Default under subsection 9(a) of the Credit Agreement so long as any amount
remains unpaid after it becomes due and payable by such Guarantor hereunder, to
set-off and appropriate and apply against any such amount any and all deposits
(general or special, time or demand, provisional or final) (other than the U.S.
Collateral Proceeds Account), in any currency, and any other credits,
indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured, at any time held or
owing by the U.S. Collateral Agent, the U.S. Administrative Agent or such other
Secured Party to or for the credit or the account of such Guarantor, or any part
thereof in such amounts as the U.S. Collateral Agent, the U.S. Administrative
Agent or such other Secured Party may elect. The U.S. Collateral Agent, the U.S.
Administrative Agent and each other Secured Party shall notify such Guarantor
promptly of any such set-off and the application made by the U.S. Collateral
Agent, the U.S. Administrative Agent or such other Secured Party of the proceeds
thereof; provided that the failure to give such notice shall not affect the
validity of such set-off and application. The rights of the U.S. Collateral
Agent, the U.S. Administrative Agent and each other Secured Party under this
subsection 9.6 are in addition to other rights and remedies (including, without
limitation, other rights of set-off) which the U.S. Collateral Agent, the U.S.
Administrative Agent or such other Secured Party may have.
Section 9.7. Counterparts. This Agreement may be executed by one or
more of the parties to this Agreement on any number of separate counterparts,
and all of said counterparts taken together shall be deemed to constitute one
and the same instrument.
Section 9.8. Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction; provided that, with
respect to any Pledged Stock issued by a Foreign Subsidiary, all rights, powers
and remedies provided in this Agreement may be exercised only to the extent that
they do not violate any provision of any law, rule or regulation of any
Governmental Authority applicable to any such Pledged Stock or affecting the
legality, validity or enforceability of any of the provisions of this Agreement
against the Pledgor (such laws, rules or regulations, "Applicable Law") and are
intended to be limited to the extent necessary so that they will not render this
Agreement invalid, unenforceable or not entitled to be recorded, registered or
filed under the provisions of any Applicable Law.
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Section 9.9. Section Headings. The Section headings used in this
Agreement are for convenience of reference only and are not to affect the
construction hereof or be taken into consideration in the interpretation hereof.
Section 9.10. Integration. This Agreement and the other Loan Documents
represent the entire agreement of the Granting Parties, the U.S. Collateral
Agent and the other Secured Parties with respect to the subject matter hereof,
and there are no promises, undertakings, representations or warranties by the
Granting Parties, the U.S. Collateral Agent or any other Secured Party relative
to subject matter hereof not expressly set forth or referred to herein or in the
other Loan Documents.
Section 9.11. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
Section 9.12. Submission To Jurisdiction; Waivers. Each party hereto
hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to which
it is a party, or for recognition and enforcement of any judgment in
respect thereof, to the non-exclusive general jurisdiction of the courts of
the State of New York, the courts of the United States of America located
in the county of New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in such
courts and waives any objection that it may now or hereafter have to the
venue of any such action or proceeding in any such court or that such
action or proceeding was brought in an inconvenient court and agrees not to
plead or claim the same;
(c) agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail
(or any substantially similar form of mail), postage prepaid, to such party
at its address referred to in subsection 9.2 or at such other address of
which the U.S. Collateral Agent and the U.S. Administrative Agent (in the
case of any other party hereto) or the Parent Borrower (in the case of the
U.S. Collateral Agent and the U.S. Administrative Agent) shall have been
notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the
right to ▇▇▇ in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right it
may have to claim or recover in any legal action or proceeding referred to
in this Section any consequential or punitive damages.
Section 9.13. Acknowledgments. Each Guarantor hereby acknowledges
that:
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(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Loan Documents to which it is a
party;
(b) none of the U.S. Collateral Agent, the U.S. Administrative Agent
or any other Secured Party has any fiduciary relationship with or duty to
any Guarantor arising out of or in connection with this Agreement or any of
the other Loan Documents, and the relationship between the Guarantors, on
the one hand, and the U.S. Collateral Agent, the U.S. Administrative Agent
and the other Secured Parties, on the other hand, in connection herewith or
therewith is solely that of creditor and debtor; and
(c) no joint venture is created hereby or by the other Loan Documents
or otherwise exists by virtue of the transactions contemplated hereby and
thereby among the Secured Parties or among the Guarantors and the Secured
Parties.
Section 9.14. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY
COUNTERCLAIM THEREIN.
Section 9.15. Additional Granting Parties. Each new Subsidiary of the
Parent Borrower that is required to become a party to this Agreement pursuant to
subsection 7.9(b) of the Credit Agreement shall become a Granting Party for all
purposes of this Agreement upon execution and delivery by such Subsidiary of an
Assumption Agreement in the form of Annex 2 hereto. Each existing Granting Party
that is required to become a Pledgor with respect to Capital Stock of any new
Subsidiary of the Parent Borrower pursuant to subsection 7.9(b) of the Credit
Agreement shall become a Pledgor with respect thereto upon execution and
delivery by such Granting Party of a Supplemental Agreement substantially in the
form of Annex 2 hereto.
Section 9.16. Releases. (a) At such time as the Loans, the
Reimbursement Obligations and the other Obligations then due and owing shall
have been paid in full, the Commitments have been terminated and no Letters of
Credit shall be outstanding, all Security Collateral shall be released from the
Liens created hereby, and this Agreement and all obligations (other than those
expressly stated to survive such termination) of the U.S. Collateral Agent and
each Granting Party hereunder shall terminate, all without delivery of any
instrument or performance of any act by any party, and all rights to the
Security Collateral shall revert to the Granting Parties. At the request and
sole expense of any Granting Party following any such termination, the U.S.
Collateral Agent shall deliver to such Granting Party any Security Collateral
held by the U.S. Collateral Agent hereunder, and execute and deliver to such
Granting Party such documents (including without limitation UCC termination
statements) as such Granting Party shall reasonably request to evidence such
termination.
(b) In connection with any sale or other disposition of Security
Collateral permitted by the Credit Agreement (other than any sale or disposition
to another Grantor), the Lien pursuant to this Agreement on such sold or
disposed of Security Collateral shall be automatically released. In connection
with the sale or other disposition of all of the Capital Stock of any Guarantor
(other than to Holdings, the Parent Borrower or a Subsidiary of either) or the
sale or other disposition of Security Collateral (other than a sale or
disposition to another Grantor) permitted under the Credit
-46-
Agreement, the U.S. Collateral Agent shall, upon receipt from the Parent
Borrower of a written request for the release of such Guarantor from its
Guarantee or the release of the Security Collateral subject to such sale or
other disposition, identifying such Guarantor or the relevant Security
Collateral and the terms of the sale or other disposition in reasonable detail,
including the price thereof and any expenses in connection therewith, together
with a certification by the Parent Borrower stating that such transaction is in
compliance with the Credit Agreement and the other Loan Documents, execute and
deliver to the relevant Granting Party (at the sole cost and expense of such
Granting Party and without representation or warranty of any kind) all releases
or other documents (including without limitation UCC termination statements)
necessary or reasonably desirable for the release of such Guarantee or the Liens
created hereby on such Security Collateral, as applicable, as such Granting
Party may reasonably request.
Section 9.17. Judgment. (a) If for the purpose of obtaining judgment
in any court it is necessary to convert a sum due hereunder in one currency into
another currency, the parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures the U.S. Collateral Agent could
purchase the first currency with such other currency on the Business Day
preceding the day on which final judgment is given.
(b) The obligations of any Guarantor in respect of this Agreement to
the U.S. Collateral Agent, for the benefit of each holder of Secured
Obligations, shall, notwithstanding any judgment in a currency (the "judgment
currency") other than the currency in which the sum originally due to such
holder is denominated (the "original currency"), be discharged only to the
extent that on the Business Day following receipt by the U.S. Collateral Agent
of any sum adjudged to be so due in the judgment currency, the U.S. Collateral
Agent may in accordance with normal banking procedures purchase the original
currency with the judgment currency; if the amount of the original currency so
purchased is less than the sum originally due to such holder in the original
currency, such Guarantor agrees, as a separate obligation and notwithstanding
any such judgment, to indemnify the U.S. Collateral Agent for the benefit of
such holder, against such loss, and if the amount of the original currency so
purchased exceeds the sum originally due to the U.S. Collateral Agent, the U.S.
Collateral Agent agrees to remit to the Parent Borrower, such excess. This
covenant shall survive the termination of this Agreement and payment of the
Obligations and all other amounts payable hereunder.
[Remainder of page left blank intentionally; Signature page to follow.]
-47-
IN WITNESS WHEREOF, the undersigned has caused this U.S. Guarantee and
Collateral Agreement to be duly executed and delivered as of the date first
written above.
RSC HOLDINGS II, LLC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
Title: Senior Vice President and
Chief Financial Officer
---------------------------------
RSC HOLDINGS III, LLC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
Title: Senior Vice President and
Chief Financial Officer
---------------------------------
RENTAL SERVICE CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
Title: Senior Vice President and
Chief Financial Officer
---------------------------------
Acknowledged and Agreed to as
of the date hereof by:
DEUTSCHE BANK AG, NEW YORK BRANCH,
as U.S. Collateral Agent and U.S.
Administrative Agent
By: /s/ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Title: Director
------------------------------
By: /s/ ▇▇▇▇▇▇ Lavcella
---------------------------------
Name: ▇▇▇▇▇▇ Lavcella
-------------------------------
Title: Vice President
------------------------------
SCHEDULE 1
NOTICE ADDRESSES OF GUARANTORS
Notices, requests or demands to or upon any Guarantor under the U.S.
Guarantee and Collateral Agreement shall be made to such Guarantor:
c/o RENTAL SERVICE CORPORATION
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Vice President and Treasurer
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to:
Ripplewood Holdings, L.L.C.
▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Oak Hill Capital Management, LLC
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Debevoise & ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
SCHEDULE 2
PLEDGED SECURITIES
I. PLEDGED STOCK
NUMBER OF % OF ALL ISSUED
CLASS OF SHARES OR CAPITAL OR OTHER
STOCK OR CERTIFICATE INTERESTS EQUITY INTERESTS OF
PLEDGOR ISSUER INTERESTS PAR VALUE NO(S). PLEDGED ISSUER PLEDGED
----------------- ----------------- --------- --------- -------------- --------- -------------------
RSC Holdings II, RSC Holdings III, N/A N/A Uncertificated N/A 100%
LLC LLC
RSC Holdings III, Rental Service Common No par 2 1,000 100%
LLC Corporation value.
Rental Service Rental Service Common No par 8 715 65%
Corporation Corporation of value.
Canada Ltd.
Rental Service Rental Service Common No par 9 385 35%
Corporation Corporation of value.
Canada Ltd.
II. PLEDGED NOTES
None.
SCHEDULE 3
PERFECTION MATTERS
Existing Security Interests
None.
UCC Filings
GRANTING PARTY STATE FILING OFFICE DOCUMENT FILED
----------------------------- -------- ------------------ --------------
1. RSC Holdings II, LLC Delaware Secretary of State Form UCC-1
2. RSC Holdings III, LLC Delaware Secretary of State Form UCC-1
3. Rental Service Corporation Arizona Secretary of State Form UCC-1
Intellectual Property Filings
A. FILINGS WITH THE U.S. PATENT AND TRADEMARK OFFICE
Filing of a Notice of Grant of Security Interest in Trademarks owned by Rental
Service Corporation
B. FILINGS WITH THE U.S. COPYRIGHT OFFICE
Filing of a Notice of Grant of Security Interest in Copyrights owned by Rental
Service Corporation
SCHEDULE 4
LOCATION OF JURISDICTION OF ORGANIZATION
GRANTING PARTY JURISDICTION OF INCORPORATION
-------------------------- -----------------------------
RSC Holdings II, LLC Delaware, United States
RSC Holdings III, LLC Delaware, United States
Rental Service Corporation Arizona, United States
SCHEDULE 5
INTELLECTUAL PROPERTY
A. PATENTS AND PATENT LICENSES
None.
B. TRADEMARKS AND TRADEMARK LICENSES
1. U.S. Trademarks
OWNER OF
TRADEMARK APP. NO. APP. DATE REG. NO. REG. DATE STATUS RECORD
--------- -------- ---------- -------- --------- ------------------ --------
1-888-RENT-RSC 75939274 3/3/2000 2435179 3/13/2001 Registered 3/13/01 RSC
1-888-RENT-RSC 75937962 3/3/2000 2435174 3/13/2001 Registered 3/13/01 RSC
BRAND ON COMMAND 78757357 11/18/2005 Pending RSC
RENT OUR EQUIPMENT CUT 78570582 2/18/2005 3147687 9/26/06 Registration RSC
YOUR COSTS 9/26/06
RSC elected not
to pursue further
RENT OUR EQUIPMENT RAISE 78560196 2/3/2005 Published for RSC
YOUR PROFITS Opposition
10/17/06
RSC 78795158 1/19/2006 Pending RSC
RSC 75319879 7/7/1997 2264049 7/27/1999 Sec. 8 & 15 RSC
Accepted 1/14/05
RSC EQUIPMENT RENTAL 78492564 9/30/2004 3136868 8/29/2006 Registered 8/29/06 RSC
RSC ONLINE 78534413 12/17/2004 3111367 7/4/2006 Registration RSC
7/4/06
RSC RENTAL SERVICE 74709781 8/1/1995 2028379 1/7/1997 Sec. 8 & 15 RSC
CORPORATION Accepted 3/28/03
RSC'S BRAND ON COMMAND 78757380 11/18/2005 Approved for RSC
Publication
10/20/06
TOTAL CONTROL 76510869 4/30/2003 2850473 6/8/2004 Registered 6/8/04 RSC
2. State Trademarks
OWNER OF
STATE TRADEMARK APP. NO. APP. DATE REG. NO. REG. DATE STATUS RECORD
----- -------------- -------- ------------ -------- --------- ---------- --------
Wisconsin+ SARGE'S A-1 November 17, Registered RSC
RENTALS 1999
Kansas+ VALLEY RENTALS August 21, Registered RSC
1998
Kansas+ CENTER August 21, Registered RSC
RENTAL, 1998
SALES, SERVICE
+ These are state trademark registrations which RSC does not intend to renew.
3. Foreign Trademarks
OWNER OF
STATE TRADEMARK APP. NO. APP. DATE REG. NO. REG. DATE STATUS RECORD
----- -------------- --------- ------------ --------- --------- ---------- ------------
Canada TOTAL CONTROL 1195024 10/29/2003 TMA672415 9/12/2006 Registered RSC
RSC-10124 9/12/06
Mexico RSC EQUIPMENT 4/22/2005 890294 Atlas Copco
RENTAL 800.222. Mexicana
7777 Tlainepantia
Mexico*
Mexico RSC EQUIPMENT 4/22/2005 ▇▇▇▇▇▇ ▇▇▇▇▇ Copco
RENTAL Mexicana
800.222.7777 Tlainepantia
Mexico*
* To be assigned to RSC
4. Trademark Licenses
None.
C. COPYRIGHTS AND COPYRIGHT LICENSES
1. U.S. Registered Copyrights
OWNER OF
TITLE REG. NO. REG. DATE RECORD
----- ------------ ---------- --------
Main--Industrial Air Tools TX-5-866-708 10/28/2003 RSC
tool rental system
2. Copyright Licenses(1)
1. AT&T Master Agreement Version IX MA Reference No. 120681 dated May 27,
2003 between the Company and AT&T, together with Addendum thereto of
even date therewith, and any Supplement, Addendum, or Annex thereto.
2. Software License Agreement dated November 14, 2000 between Acceleron
Incorporated and RSC.
3. Kronos Sales Agreement and Software License dated as of May 14, 2004
between Kronos Incorporated and Rental Service Corporation.
----------
(1) Other agreements (including licenses) with any Grantor with respect to
other software or incidental use of trademarks or technology are not
listed.
-7-
4. Non-Exclusive License Agreement dated August 31, 1994 between ▇▇▇▇▇▇
Associates Inc. and RSC (successor to Acme Holdings, Inc.), together
with Addenda thereto.
5. Master Agreement dated August 31, 1994 between ▇▇▇▇▇ Systems, Inc. and
ACME Acquisition Corp., together with Amendment Number One thereto
dated December 10, 1999, Amendment Number Two thereto dated as of
September 3, 2003 and Custom Programming and Confidentiality Agreement
dated March 20, 1998.
6. CopperKey Data and Professional Services Agreement 0105 dated as of
December 13, 2004 between RSC and CopperKey, Inc.
7. License and Services Agreement dated December 15, 2005 between PROS
Revenue Management, L.P. dba PROS Pricing Solutions and RSC, together
with First Amendment thereto dated March 20, 2006.
8. Services and Software License Agreement dated as of December 17, 2002
between the Company and ProBusiness Services, Inc., as amended by
First Amendment thereto dated May 31, 2005.
9. Software License Agreement dated February 25, 2003 between Conduit
Internet Technologies, Inc. and RSC.
10. Qualcomm - Omnitracs and Omniexpress Contract, dated September 26,
2003, and any Amendment thereto.
11. Safety Solutions Systems Amendment to Contract Customer Training
Information and Data Management, dated March 13, 2006.
12. Taleo Application Service Provider Agreement (dated June 20, 2005).
13. Multivendor Information Technology Recovery Services Contract,
together with Statement of Work for Services - IBM Business Continuity
and Recovery Services for Operating System Restore, effective October
7, 2006, between IBM Corporation and Rental Service Corporation as
supplemented or amended.
14. IBM Agreement for Exchange of Confidential Information, dated
September 16, 2003, between Atlas Copco North America (c/o Rental
Service Corporation) and International Business Machines Corporation.
15. Relavis Corporation Consulting Services Agreement, effective as of May
19, 2004, between Relavis Corporation and Rental Service Comparison.
16. Sprint Customer Service Agreement No. BSG0408-2640, between Sprint and
RSC.
17. Bellsouth Business Master Agreement For Regulated Services and Volume
Term Agreement, effective September 1, 2004, between RSC and
affiliates and BellSouth Telecommunications, Inc.
18. Qwest ISDN PRS, and/or DSS advanced and/or UAS Bulk Rated Agreement,
undated, between RSC and Qwest Corporation.
19. Texas Primary Rate ISDN SmartTrunk Promotion, effective December 8,
2004, between Southwestern ▇▇▇▇ Telephone and RSC.
20. Boomerang Software License Agreement, dated October 4, 2001, by and
between Acceleron, Inc. and Rental Service Corporation.
-8-
21. Maintenance & Support Agreement, Schedule B to the Boomerang Software
License Agreement, dated October 4, 2001, by and between Acceleron,
Inc. and Rental Service Corporation.
22. Safety Solutions Systems Amendment to Contract Authority to Amend
Contract and Return of Data and Software Code, dated April 19, 2006.
23. Safety Solutions Systems Amendment to Contract Employee/Customer
Training Information and Data Management, dated April 19, 2006.
24. Safety Solutions Systems Amendment to Contract Customer Training
Information and Data Management, dated March 13, 2006.
25. Safety Solutions Systems Amendment to Contract Books and Records,
dated September 26, 2005.
26. Safety Solutions Systems Amendment to Letter of Intent and Contract
DOT HAZMAT Training Employee Training Management & Data Management,
dated October 27, 2005.
27. Safety Solutions Systems Amendment Letter to Contract-Ad Hoc Services
- Project Management, Programming, Integration, Data Auditing and Data
Entry, dated October 27, 2005.
28. DOT Compliance Management Project Review Summary, dated August 8,
2006, as related to Rental Service Corporation and Safety Solutions
Systems.
29. Letter regarding Contractual Compliance Status Statement, dated
September 14, 2006.
30. Professional Services and Non-Disclosure Agreement, dated February 6,
2003, by and between Software Architects, Inc. and Rental Service
Corporation.
31. Mutual Non-Disclosure Agreement, dated January 28, 2003, by and
between Software Architects, Inc. and Rental Service Corporation.
32. Amendment 1 to Professional Services and Non-Disclosure Agreement,
dated as of March 5, 2004, between Software Architects, Inc. and
Rental Service Corporation.
33. Amendment 2 to Professional Services Agreement, dated as of March 6,
2005 between Software Architects, Inc. and Rental Service Corporation.
34. Amendment 3 to Professional Services Agreement, dated as of February
7, 2006, between Software Architects, Inc. and Rental Service
Corporation.
35. Letter Agreement dated July 6, 2006, between Data Rich International
addressed to Rental Service Corporation.
36. Agreement for Consulting Service, dated as of July 28, 2006, by and
between Rental Service Corporation and Technology Transfer
Incorporated.
37. Pembrooke Contract for Services, dated as of August 30, 2005, by and
between Pembrooke Occupational Health, Inc. and Rental Service
Corporation.
38. Consent Agreement, effective July 31, 2006, by and between the Royal
Shakespeare Company and Rental Service Corporation.
-9-
39. Total Control software is licensed to certain customers in the
ordinary course of business.
40. Licenses for the following software: IBM Lotus Notes CEO, Symantec
Anti-Virus Enterprise Edition and Microsoft MS Enterprise Agreement
(Windows and MS Office).
-10-
SCHEDULE 6
CONTRACTS
None.
SCHEDULE 7
COMMERCIAL TORT CLAIMS
None.
ANNEX 1
to
U.S. Guarantee and Collateral Agreement
ACKNOWLEDGEMENT AND CONSENT*
The undersigned hereby acknowledges receipt of a copy of the U.S.
Guarantee and Collateral Agreement, dated as of November 27, 2006 (the
"Agreement"), made by the Granting Parties thereto for the benefit of Deutsche
Bank AG, New York Branch, as U.S. Collateral Agent and U.S. Administrative
Agent. The undersigned agrees for the benefit of the U.S. Collateral Agent, the
U.S. Administrative Agent and the Lenders as follows:
The undersigned will be bound by the terms of the Agreement and will
comply with such terms insofar as such terms are applicable to the undersigned.
The undersigned will notify the U.S. Collateral Agent promptly in
writing of the occurrence of any of the events described in subsection 5.3.1 of
the Agreement.
The terms of subsections 6.3(c) and 6.7 of the Agreement shall apply
to it, mutatis mutandis, with respect to all actions that may be required of it
pursuant to subsection 6.3(c) or 6.7 of the Agreement.
[NAME OF ISSUER]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Address for Notices:
----------------------------------------
----------------------------------------
----------------------------------------
Fax:
-----------------------------------
----------
* This consent is necessary only with respect to any Issuer which is not also
a Granting Party.
ANNEX 2
to
U.S. Guarantee and Collateral Agreement
ASSUMPTION AGREEMENT
ASSUMPTION AGREEMENT, dated as of __________ __, ____, made
by_____________________________, a ___________ corporation (the "Additional
Granting Party"), in favor of DEUTSCHE BANK AG, NEW YORK BRANCH, as U.S.
collateral agent (in such capacity, the "U.S. Collateral Agent") and as U.S.
administrative agent (in such capacity, the "U.S. Administrative Agent") for the
banks and other financial institutions (the "Lenders") from time to time parties
to the Credit Agreement referred to below and the other Secured Parties (as
defined below). All capitalized terms not defined herein shall have the meaning
ascribed to them in such the U.S. Guarantee and Collateral Agreement referred to
below, or if not defined therein, in the Credit Agreement.
WITNESSETH:
WHEREAS, RSC HOLDINGS II, LLC ("Holdings"), RSC HOLDINGS III, LLC (the "Parent
Borrower"), RENTAL SERVICE CORPORATION ("RSC"), RENTAL SERVICE CORPORATION OF
CANADA LTD., the other Borrowers parties thereto, DEUTSCHE BANK AG, NEW YORK
BRANCH, as U.S. administrative agent and U.S. collateral agent, DEUTSCHE BANK
AG, CANADA BRANCH, as Canadian agent and Canadian collateral agent, and the
other parties party thereto are parties to a Credit Agreement, dated as of
November 27, 2006 (as amended, supplemented, waived or otherwise modified from
time to time, the "Credit Agreement");
WHEREAS, in connection with the Credit Agreement, Holdings, the Parent
Borrower, RSC and certain of its Subsidiaries are, or are to become, parties to
the U.S. Guarantee and Collateral Agreement, dated as of November 27, 2006 (as
amended, supplemented, waived or otherwise modified from time to time, the "U.S.
Guarantee and Collateral Agreement"), in favor of the Collateral Agent, for the
ratable benefit of the Secured Parties (as defined in the U.S. Guarantee and
Collateral Agreement);
WHEREAS, the Additional Granting Party is a member of an affiliated
group of companies that includes the Parent Borrower and each other Granting
Party; the proceeds of the extensions of credit under the Credit Agreement will
be used in part to enable the Borrowers to make valuable transfers to one or
more of the other Granting Parties (including the Additional Granting Party) in
connection with the operation of their respective businesses; and the Borrowers
and the other Granting Parties (including the Additional Granting Party) are
engaged in related businesses, and each such Granting
Party (including the Additional Granting Party) will derive substantial direct
and indirect benefit from the making of the extensions of credit under the
Credit Agreement;
WHEREAS, the Credit Agreement requires the Additional Granting Party
to become a party to the U.S. Guarantee and Collateral Agreement; and
WHEREAS, the Additional Granting Party has agreed to execute and
deliver this Assumption Agreement in order to become a party to the U.S.
Guarantee and Collateral Agreement;
NOW, THEREFORE, IT IS AGREED:
1. U.S. Guarantee and Collateral Agreement. By executing and
delivering this Assumption Agreement, the Additional Granting Party, as provided
in subsection 9.15 of the U.S. Guarantee and Collateral Agreement, hereby
becomes a party to the U.S. Guarantee and Collateral Agreement as a Granting
Party thereunder with the same force and effect as if originally named therein
as a Guarantor, Grantor and Pledgor and, without limiting the generality of the
foregoing, hereby expressly assumes all obligations and liabilities of a
Guarantor, Grantor and Pledgor thereunder. The information set forth in Annex
1-A hereto is hereby added to the information set forth in Schedules
____________ to the U.S. Guarantee and Collateral Agreement, and such Schedules
are hereby amended and modified to include such information. The Additional
Granting Party hereby represents and warrants that each of the representations
and warranties of such Additional Granting Party, in its capacities as a
Guarantor, Grantor and Pledgor, contained in Section 4 of the U.S. Guarantee and
Collateral Agreement is true and correct in all material respects on and as the
date hereof (after giving effect to this Assumption Agreement) as if made on and
as of such date.
2. GOVERNING LAW. THIS ASSUMPTION AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER AND ANY CLAIM OR CONTROVERSY RELATING
HERETO SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH,
THE LAW OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the undersigned has caused this Assumption
Agreement to be duly executed and delivered as of the date first above written.
[ADDITIONAL GRANTING PARTY]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Acknowledged and Agreed to as
of the date hereof by:
DEUTSCHE BANK AG, NEW YORK BRANCH
as U.S. Collateral Agent and
U.S. Administrative Agent
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
ANNEX 1-A
to
Assumption Agreement
Supplement to
Guarantee and Collateral Agreement
Schedule 1
Supplement to
Guarantee and Collateral Agreement
Schedule 2
Supplement to
Guarantee and Collateral Agreement
Schedule 3
Supplement to
Guarantee and Collateral Agreement
Schedule 4
Supplement to
Guarantee and Collateral Agreement
Schedule 5
Supplement to
Guarantee and Collateral Agreement
Schedule 6
Supplement to
Guarantee and Collateral Agreement
Schedule 7
Supplement to
Guarantee and Collateral Agreement