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EX-10.5 - EXHIBIT 10.5 - WillScot Mobile Mini Holdings Corp.tm2023606d2_ex10-5.htm
EX-10.4 - EXHIBIT 10.4 - WillScot Mobile Mini Holdings Corp.tm2023606d2_ex10-4.htm
EX-10.3 - EXHIBIT 10.3 - WillScot Mobile Mini Holdings Corp.tm2023606d2_ex10-3.htm
EX-10.2 - EXHIBIT 10.2 - WillScot Mobile Mini Holdings Corp.tm2023606d2_ex10-2.htm
EX-4.2 - EXHIBIT 4.2 - WillScot Mobile Mini Holdings Corp.tm2023606d2_ex4-2.htm
EX-4.1 - EXHIBIT 4.1 - WillScot Mobile Mini Holdings Corp.tm2023606d2_ex4-1.htm
EX-3.2 - EXHIBIT 3.2 - WillScot Mobile Mini Holdings Corp.tm2023606d2_ex3-2.htm
EX-3.1(B) - EXHIBIT 3.1B - WillScot Mobile Mini Holdings Corp.tm2023606d2_ex3-1b.htm
EX-3.1(A) - EXHIBIT 3.1A - WillScot Mobile Mini Holdings Corp.tm2023606d2_ex3-1a.htm
EX-1.1 - EXHIBIT 1.1 - WillScot Mobile Mini Holdings Corp.tm2023606d2_ex1-1.htm
8-K - FORM 8-K - WillScot Mobile Mini Holdings Corp.tm2023606d2_8k.htm

Exhibit 10.1

 

 

ABL CREDIT AGREEMENT

 

Dated as of July 1, 2020

 

among

 

WILLIAMS SCOTSMAN HOLDINGS CORP.,

as Holdings,

 

WILLIAMS SCOTSMAN INTERNATIONAL, INC.,
as Administrative Borrower,

 

Each of those entities listed on Schedule 1,

as Initial Borrowers and Initial Guarantors,

 

certain other Persons party hereto from time to time as Borrowers or Guarantors,

 

CERTAIN FINANCIAL INSTITUTIONS,
as Lenders,

 

and

 

BANK OF AMERICA, N.A.,
as Administrative Agent and Collateral Agent

 

 

 

BOFA SECURITIES, INC.,

DEUTSCHE BANK SECURITIES INC.,

JPMORGAN CHASE BANK, N.A.,

ING CAPITAL LLC,

BBVA USA,

BANK OF THE WEST,

PNC CAPITAL MARKETS LLC,

MUFG UNION BANK, N.A.,

M&T BANK,

NYCB SPECIALTY FINANCE COMPANY, LLC

as Joint Lead Arrangers and as Joint Bookrunners

 

BMO CAPITAL MARKETS CORP.,

as Joint Bookrunner

 

 

 

 

 

TABLE OF CONTENTS

 

Page

 

SECTION 1. DEFINITIONS; RULES OF CONSTRUCTION 1
1.1Definitions 1
1.2Accounting Terms 97
1.3Uniform Commercial Code/PPSA 98
1.4Certain Matters of Construction 98
1.5Currency Calculations 99
1.6Interpretation (Quebec) 99
1.7Pro Forma Calculations 100
1.8Limited Condition Transaction. 102
1.9Compliance with Certain Sections 104
1.10Interest Rates 104
1.11Divisions 104

 

SECTION 2. CREDIT FACILITIES 105
2.1Commitment 105
2.2Canadian Letters of Credit 119
2.3UK Letters of Credit 123
2.4US Letters of Credit 127
2.5Obligations of the Non-US Loan Parties 131
2.6Minimum Borrowing Base. 131
2.7Bank of the West 132

 

SECTION 3. INTEREST, FEES AND CHARGES 132
3.1Interest 132
3.2Fees 135
3.3Computation of Interest, Fees, Yield Protection 137
3.4Reimbursement Obligations 137
3.5Illegality 138
3.6Inability to Determine Rates 139
3.7Increased Costs; Capital Adequacy 141
3.8Mitigation 142
3.9Funding Losses 143
3.10Maximum Interest 143

 

SECTION 4. LOAN ADMINISTRATION 144
4.1Manner of Borrowing and Funding Loans 144
4.2Defaulting Lender 146
4.3Number and Amount of Interest Period Loans; Determination of Rate 147
4.4Administrative Borrower 147
4.5Effect of Termination 148

 

i 

 

 

SECTION 5. PAYMENTS 148
5.1General Payment Provisions 148
5.2Repayment of Obligations 149
5.3Payment of Other Obligations 149
5.4Marshaling; Payments Set Aside 150
5.5Post-Default Allocation of Payments 150
5.6Application of Payments 152
5.7Loan Account; Account Stated 152
5.8Taxes 153
5.9Lender Tax Information 156
5.10Guarantees 160
5.11Currency Matters 162
5.12Release of Guarantors 163
5.13Keepwell 163

 

SECTION 6. CONDITIONS PRECEDENT 164
6.1Conditions Precedent to the Closing Date 164
6.2Conditions Precedent to All Credit Extensions after the Closing Date 168

 

SECTION 7. COLLATERAL ADMINISTRATION 169
7.1Administration of Accounts 169
7.2Administration of Rental Equipment, Equipment and Inventory 169
7.3Administration of Deposit Accounts 170
7.4General Provisions 171
7.5Cash Collateral 173

 

SECTION 8. REPRESENTATIONS AND WARRANTIES 173
8.1 General Representations and Warranties 173

 

SECTION 9. COVENANTS AND CONTINUING AGREEMENTS 180
9.1Affirmative Covenants 180
9.2Negative Covenants 195
9.3Consolidated Fixed Charge Coverage Ratio 217

 

SECTION 10. EVENTS OF DEFAULT; REMEDIES ON DEFAULT 217
10.1Events of Default 217
10.2Cure Right 222
10.3Setoff 223
10.4Remedies Cumulative; No Waiver 223
10.5Judgment Currency 224

 

SECTION 11. AGENT 224
11.1Appointment, Authority and Duties of Agent 224
11.2Agreements Regarding Collateral and Field Examination Reports 226
11.3Reliance By Agent 227
11.4Action Upon Default 228
11.5Ratable Sharing 228
11.6Indemnification of Agent Indemnitees 228

 

ii 

 

 

11.7Limitation on Responsibilities of Agent 229
11.8Successor Agent and Co-Agents 230
11.9Due Diligence and Non-Reliance 231
11.10Remittance of Payments and Collections 231
11.11Agent in its Individual Capacity 232
11.12ERISA Matters 232
11.13Bank Product Providers 233
11.14No Third Party Beneficiaries 233
11.15Agent May File Proofs of Claim 233

 

SECTION 12. BENEFIT OF AGREEMENT; ASSIGNMENTS AND PARTICIPATIONS 234
12.1Successors and Assigns 234
12.2Participations 235
12.3Assignments 236

 

SECTION 13. MISCELLANEOUS 238
13.1Consents, Amendments and Waivers 238
13.2Indemnity 241
13.3Notices and Communications 241
13.4Performance of Loan Parties’ Obligations 242
13.5Credit Inquiries 242
13.6Severability 242
13.7Cumulative Effect; Conflict of Terms; Headings 243
13.8Counterparts 243
13.9Entire Agreement 243
13.10Relationship with Lenders 243
13.11No Advisory or Fiduciary Responsibility 244
13.12Confidentiality 244
13.13GOVERNING LAW 245
13.14Consent to Forum; Process Agent 245
13.15Process Agent 245
13.16Waivers by Loan Parties 246
13.17Patriot Act Notice 246
13.18Canadian Anti-Money Laundering Legislation 247
13.19 Know Your Customer 247
13.20 Acknowledgement Regarding Any Supported QFCs 247
13.21Reinstatement 248
13.22Nonliability of Lenders 248
13.23Certain Provisions Regarding Perfection of Security Interests 249
13.24Acknowledgement and Consent to Bail-In 249

 

iii 

 

 

LIST OF EXHIBITS AND SCHEDULES
 
Exhibit A Form of Assignment and Acceptance
Exhibit B-1 Form of Multicurrency Facility Note

Exhibit B-2

Exhibit C

Form of US Facility Note

Form of Compliance Certificate

Exhibit D Form of Notice of Borrowing
Exhibit E Form of Notice of Conversion/Continuation
Exhibit F Form of Perfection Certificate
Exhibit G Form of Solvency Certificate
Exhibit H Form of Joinder Agreement
Exhibit I-1 Form of Non-Bank Certificate for Non-Partnership
Exhibit I-2 Form of Non-Bank Certificate for Partnership
Exhibit J Form of Intercreditor Agreement
Exhibit K Form of Security Agreement
Exhibit L Form of Intercompany Note
Exhibit M Form of Existing Borrowing Base Certificate

 

iv 

 

 

Schedule 1

Schedule 1.1(a)

Initial Borrowers and Initial Guarantors

Letter of Credit Commitments

Schedule 1.1(b) Existing Letters of Credit
Schedule 2.1.1(a) Multicurrency Facility Commitment
Schedule 2.1.1(b) US Facility Commitment
Schedule 6.1(a) Other Loan Documents
Schedule 7.3 Deposit Accounts
Schedule 7.4.1 Location of Collateral

Schedule 8.1.3

Schedule 8.1.4

Material Debt

Litigation

Schedule 8.1.12 Subsidiaries/Excluded Subsidiaries

Schedule 8.1.22

Schedule 9.1.10

Labor Matters

Permitted Transactions with Affiliates

Schedule 9.1.15 Post-Closing Actions
Schedule 9.2.1 Existing Indebtedness
Schedule 9.2.2 Existing Liens
Schedule 9.2.5 Permitted Investments
Schedule 9.2.10 Permitted Burdensome Agreements
Schedule 13.3.1 Notice Addresses

 

v 

 

 

ABL CREDIT AGREEMENT

 

THIS ABL CREDIT AGREEMENT is dated as of July 1, 2020, among WILLIAMS SCOTSMAN HOLDINGS CORP., a Delaware corporation, as Holdings (in such capacity, “Holdings”), WILLIAMS SCOTSMAN INTERNATIONAL, INC., a Delaware corporation (“WS International”), as Administrative Borrower (in such capacity, “Administrative Borrower”), each of the parties listed on Schedule 1 attached hereto as an Initial Borrower (in such capacity, the “Initial Borrowers”), each of the parties listed on Schedule 1 attached hereto as an Initial Guarantor (in such capacity, the “Initial Guarantors”), certain other Persons party hereto from time to time as Borrowers or Guarantors, the financial institutions party to this Agreement from time to time as lenders (collectively, “Lenders”) and BANK OF AMERICA, N.A., a national banking association, in its capacity as collateral agent and administrative agent for itself and the other Secured Parties (as defined herein) (together with any successor agent appointed pursuant to Section 11.8, including any branches from which such successor agent acts in such capacity, the “Agent”).

 

R E C I T A L S:

 

A.            Pursuant to the terms and conditions set forth in the Acquisition Agreement (as defined below), the Administrative Borrower will acquire (the “Acquisition”), by way of a merger of one of its subsidiaries, all the issued and outstanding equity interests of Mobile Mini, Inc., a Delaware corporation (“MMI”), in accordance with and pursuant to the Acquisition Agreement.

 

B.            The Borrowers have requested that the Lenders make available to the Borrowers the Revolver Commitments (as defined below) as described herein.

 

C.            The Lenders have indicated their willingness to provide the Revolver Commitments on the terms and conditions set forth herein.

 

NOW, THEREFORE, for valuable consideration the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:

 

SECTION 1.      DEFINITIONS; RULES OF CONSTRUCTION

 

1.1          Definitions. As used herein, the following terms have the meanings set forth below:

 

2023 Senior Secured Notes”: the $490,000,000 in aggregate principal amount of 6.875% Senior Secured Notes due 2023 of WS International issued under the 2023 Senior Secured Notes Indenture.

 

2023 Senior Secured Notes Collateral Agent”: Deutsche Bank Trust Company Americas, in its capacity as collateral agent under the 2023 Senior Secured Notes Indenture, and its successors and assigns.

 

2023 Senior Secured Notes Documents”: the 2023 Senior Secured Notes Indenture, the 2023 Senior Secured Notes, and the 2023 Senior Secured Notes Security Documents.

 

2023 Senior Secured Notes Guarantors”: the guarantors from time to time party to the 2023 Senior Secured Notes Indenture or any other 2023 Senior Secured Notes Document.

 

[ABL Credit Agreement]

 

 

 

2023 Senior Secured Notes Indenture”: the Indenture dated as of August 6, 2018 among WS International, the 2023 Senior Secured Notes Trustee, the 2023 Senior Secured Notes Collateral Agent and the 2023 Senior Secured Notes Guarantors.

 

2023 Senior Secured Notes Security Documents”: the “Security Documents,” as defined in the 2023 Senior Secured Notes Indenture.

 

2023 Senior Secured Notes Trustee”: Deutsche Bank Trust Company Americas, in its capacity as trustee under the 2023 Senior Secured Notes Indenture, and its successors and assigns.

 

2025 Senior Secured Notes”: the $650,000,000 in aggregate principal amount of 6.125% Senior Secured Notes due 2025 of WS International issued under the 2025 Senior Secured Notes Indenture.

 

2025 Senior Secured Notes Collateral Agent”: Deutsche Bank Trust Company Americas, in its capacity as collateral agent under the 2025 Senior Secured Notes Indenture, and its successors and assigns.

 

2025 Senior Secured Notes Documents”: the 2025 Senior Secured Notes Indenture, the 2025 Senior Secured Notes, and the 2025 Senior Secured Notes Security Documents.

 

2025 Senior Secured Notes Guarantors”: the guarantors from time to time party to the 2025 Senior Secured Notes Indenture or any other 2025 Senior Secured Notes Document.

 

2025 Senior Secured Notes Indenture”: the Indenture dated as of June 15, 2020 among WS International, the 2025 Senior Secured Notes Trustee, the 2025 Senior Secured Notes Collateral Agent and the 2025 Senior Secured Notes Guarantors.

 

2025 Senior Secured Notes Security Documents”: the “Security Documents,” as defined in the 2025 Senior Secured Notes Indenture.

 

2025 Senior Secured Notes Trustee”: Deutsche Bank Trust Company Americas, in its capacity as trustee under the 2025 Senior Secured Notes Indenture, and its successors and assigns.

 

Account”: as defined in the UCC or the PPSA, as applicable, in each case including all rights to payment for goods sold or leased, or for services rendered, whether or not they have been earned by performance.

 

Account Debtor”: any Person who is obligated under an Account, Chattel Paper or General Intangible.

 

Accounting Change”: as defined in Section 1.2.

 

Acquisition”: as defined in the recitals to this Agreement.

 

Acquisition Agreement”: that certain Agreement and Plan of Merger, dated as of March 1, 2020, by and among the Parent, Picasso Merger Sub, Inc. and MMI, as amended by the Amendment to Agreement and Plan of Merger, dated as of May 28, 2020, and as further amended, modified or restated from time to time.

 

2

 

 

Additional Multicurrency Facility Lender”: as defined in Section 2.1.9(a)

 

Additional Revolver Lender”: as defined in Section 2.1.9(b).

 

Additional UK Treaty Lender”: as defined in the definition of “Borrower DTTP Filing”.

 

Additional US Facility Lender”: as defined in Section 2.1.9(b).

 

Adjustment”: has the meaning specified in Section 3.6(b).

 

Administrative Borrower”: as defined in the preamble to this Agreement.

 

Affected Financial Institution”: means (a) any EEA Financial Institution or (b) any UK Financial Institution.

 

Affiliate”: with respect to any Person, any branch of such Person or any other Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified. “Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have correlative meanings.

 

Agent”: as defined in the preamble to this Agreement.

 

Agent Indemnitees”: Agent, the Joint Lead Arrangers and their respective Affiliates and their respective officers, directors, employees, agents, advisors and other representatives.

 

Agent Professionals”: attorneys, accountants, appraisers, auditors, business valuation experts, environmental engineers or consultants and field examiners.

 

Agreement”: this ABL Credit Agreement, as the same may be further amended, supplemented or otherwise modified from time to time.

 

Allocable Amount”: as defined in Section 5.10.3(b).

 

AML Legislation”: as defined in Section 13.17.

 

Anti-Corruption Laws”: all laws, rules, and regulations of any jurisdiction applicable to Holdings, the Borrowers or any of its or their respective Subsidiaries from time to time concerning or that prohibit bribery or corruption, including without limitation, the United States Foreign Corrupt Practices Act of 1977, as amended, the Corruption of Foreign Public Officials Act (Canada), as amended, the UK Bribery Act and other similar legislation in any other jurisdictions in which Holdings, the Borrowers or any of its or their respective Subsidiaries has operations.

 

Applicable Canadian Borrower”: (a) any of the Initial Canadian Borrowers, or (b) any other Canadian Borrower, as the context requires.

 

Applicable Law”: all laws, rules, regulations and legally binding governmental guidelines applicable to the Person and its Property, conduct, transaction, agreement or matter in question, including all applicable statutory law and common law, and all provisions of constitutions, treaties, statutes, rules, regulations, orders and decrees of Governmental Authorities (having the force of law).

 

3

 

 

Applicable Lenders”: (a) with respect to Multicurrency Facility Loans made to the US Borrowers, the Canadian Borrowers or the UK Borrowers, the Multicurrency Facility Lenders and (b) with respect to US Facility Loans made to the US Borrowers, the US Facility Lenders.

 

Applicable Margin”: with respect to any Type of Loan and such other Obligations specified below, the respective margin set forth below, as determined by reference to the Borrowers’ average daily Specified Excess Availability for the fiscal quarter then most recently ended:

 

Level

 

Average Daily

Specified
Excess
Availability

 

Canadian BA
Rate Loans
and LIBOR
Loans

 

Base Rate Loans
and
Canadian Prime
Rate Loans

I   ≥ 66.7% of the Line Cap   1.625%   0.625%
II   < 66.7% of the Line Cap
but
≥ 33.3% of the Line Cap
  1.875%   0.875%
III   < 33.3% of the Line Cap   2.125%   1.125%

 

On and before September 30, 2020, the Applicable Margin shall be determined as if Level II were applicable and thereafter, the Applicable Margin shall be determined as of the end of each fiscal quarter of WS International based upon the Borrowers’ average daily Specified Excess Availability during such prior fiscal quarter. Each change in the Applicable Margin resulting from a change in Specified Excess Availability shall be effective during the period commencing on the fifth Business Day following the last day of such fiscal quarter and ending on the date immediately preceding the effective date of the next such change.

 

Applicable UK Borrower”: (a) any of the Initial UK Borrowers, or (b) any other UK Borrower, as the context requires.

 

Applicable US Borrower”: (a) any of the Initial US Borrowers, or (b) any other US Borrower, as the context requires.

 

Appraisal”: (a) from and after the Closing Date until New Appraisals and Field Exams are completed pursuant to Section 9.1.14, the Existing Appraisals and Field Exams and (b) from and after the date on which New Appraisals and Field Exams are completed, the most recent appraisals and field exams that have been completed pursuant to Section 9.1.14, provided, that upon the completion of the New WS Appraisals and Field Exams but prior to the completion of the New Mobile Mini Appraisals and Field Exams, “Appraisal” shall be deemed to refer to such New WS Appraisals and Field Exams and the Existing Mobile Mini Appraisals and Field Exams. For all purposes of this Agreement, Agent, the Lenders and Fronting Banks are deemed to be satisfied with the Existing Appraisals and Field Exams.

 

4

 

 

Appraised Fair Market Value”: with respect to any Real Estate, the price at which a willing buyer, who is not an Affiliate of the seller, and a willing seller, who does not have to sell, would agree to purchase and sell such Real Estate, as determined by an appraiser in an appraisal in form and substance reasonably satisfactory to Agent or other documentation in form and substance reasonably acceptable to Agent.

 

Approved Fund”: any Person (other than a natural person) that is engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in its ordinary course of activities and is administered or managed by a Lender, an entity that administers or manages a Lender, or an Affiliate of either and (in the case of assignment of Revolver Loans) has the capacity to fund Revolver Loans hereunder.

 

Article 55 BRRD”: Article 55 of Directive 2014/59/EU (as amended or re-enacted) of the European Parliament and the Council of the European Union, establishing a framework for the recovery and resolution of credit institutions and investment firms.

 

Assignment and Acceptance”: an assignment agreement between a Lender and Eligible Assignee (and, to the extent required by the definition of “Eligible Assignee,” consented to by the Administrative Borrower) in the form of Exhibit A (or such other form approved by Agent and the Administrative Borrower).

 

Availability”: Multicurrency Facility Availability and/or US Facility Availability (without duplication), as the context may require.

 

Available Excluded Contribution Amount”: the aggregate amount of Cash or Permitted Investments or the fair market value of other assets or property (as reasonably determined by the Administrative Borrower, but excluding any Cure Amount) received by Holdings (and promptly contributed by Holdings to the Administrative Borrower) after the Closing Date from (without duplication):

 

(1)            contributions in respect of Equity Interests of Holdings other than Disqualified Stock (other than any amounts received from the Administrative Borrower or any of its Restricted Subsidiaries); and

 

(2)            the sale of Equity Interests of Holdings (other than (x) to the Administrative Borrower or any Restricted Subsidiary, (y) pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or (z) Disqualified Stock).

 

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

 

5

 

 

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

 

Bank of America”: Bank of America, N.A., a national banking association, and its successors and assigns.

 

Bank of America (Canada)”: Bank of America, N.A. (acting through its Canada branch).

 

Bank of America (London)”: Bank of America, N.A. (acting through its London branch).

 

Bank of America Indemnitees”: Bank of America, Bank of America (Canada), Bank of America (London) and their respective Affiliates (including, in each case, any applicable branches from which any of the foregoing act) and their respective officers, directors, employees, agents, advisors and other representatives.

 

Bank Product”: any of the following products, services or facilities extended to any Borrower or any other Loan Party or any of their respective Restricted Subsidiaries by Agent, a Lender or any of their Affiliates or branches: (a) Cash Management Services; (b) products under Hedge Agreements; (c) commercial credit card, debit card, purchase card and merchant card services; and (d) other banking products or services as may be requested by any Borrower or any other Loan Party or any of their respective Subsidiaries, other than loans and letters of credit.

 

Bank Product Debt”: Indebtedness and other obligations of a Loan Party or any of their respective Restricted Subsidiaries relating to Bank Products.

 

Bank Product Document”: any agreement, instrument or other document entered into in connection with any Bank Product Debt.

 

Bank Product Reserves”: on any date of determination, the sum of (i) with respect to Qualified Secured Bank Product Obligations of a Loan Party or any Restricted Subsidiary, an amount equal to the sum of the maximum amounts of the then outstanding Qualified Secured Bank Product Obligations of such Loan Party or such Restricted Subsidiary to be secured as set forth in the notices delivered by Secured Bank Product Providers providing such Qualified Secured Bank Product Obligations and the Administrative Borrower to Agent in accordance with clause (b) of the definition of Secured Bank Product Providers and (ii) with respect to any other Secured Bank Product Obligations of any Loan Party or any Restricted Subsidiary, reserves established by Agent in its Permitted Discretion in consultation with the Administrative Borrower to reflect the reasonably anticipated liabilities in respect of such other then outstanding Secured Bank Product Obligations of any such Loan Party or any such Restricted Subsidiary.

 

Base Rate”: Canadian Base Rate, US Base Rate and/or UK Base Rate, as the context requires.

 

Base Rate Loan”: a Canadian Base Rate Loan, US Base Rate Loan and/or UK Base Rate Loan, as the context requires.

 

6

 

 

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

 

Beneficial Ownership Certification”: a certification regarding beneficial ownership required by the Beneficial Ownership Regulation.

 

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

 

Benefit Plan”: any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in and subject to Section 4975 of the Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.

 

Blocking Regulation”: means (i) Council Regulation (EC) No 2271/1996 of 22 November 1996 (as amended) and/or any applicable national law or regulation relating to it and (ii) any similar and applicable anti-boycott law or regulation created to provide for the UK exiting the European Union.

 

Board of Governors”: the Board of Governors of the Federal Reserve System.

 

Borrower DTTP Filing”: means an HM Revenue & Customs’ Form DTTP2 or DTTP2A duly completed and filed by the relevant UK Borrower, which:

 

(a)            where it relates to a UK Treaty Lender that is a Lender set forth on Schedule 2.1.1 (each an “Original UK Treaty Lender”), contains the scheme reference number and jurisdiction of tax residence stated opposite that Original UK Treaty Lender’s name in Schedule 2.1.1, and

 

(i)            where the UK Borrower is an Initial Borrower, is filed with HM Revenue & Customs within 30 days of the Closing Date; or

 

(ii)            where the UK Borrower is not an Initial Borrower, is filed with HM Revenue & Customs within 30 days of the date on which that UK Borrower becomes a Borrower; or

 

(b)            where it relates to a UK Treaty Lender that becomes a Lender after the Closing Date (each an “Additional UK Treaty Lender”), contains the scheme reference number and jurisdiction of tax residence stated in respect of that Lender in the relevant Assignment and Acceptance, and

 

(i)            where the UK Borrower is a Borrower as at the date on which that Additional UK Treaty Lender becomes a Party as a Lender, is filed with HM Revenue & Customs within 30 days of that date; or

 

7

 

 

(ii)            where the UK Borrower is not a Borrower as at the date on which that Additional UK Treaty Lender becomes a Party as Lender, is filed with HM Revenue & Customs within 30 days of the date on which that UK Borrower becomes a Borrower.

 

Borrowers”: collectively, (a) the Canadian Borrowers, (b) the UK Borrowers and (c) the US Borrowers.

 

Borrowing”: a group of Revolver Loans of one Type that are made on the same day or are converted into Revolver Loans of one Type on the same day.

 

Borrowing Base”: (a) the Canadian Borrowing Base, (b) the UK Borrowing Base and/or (c) the US Borrowing Base, as the context requires.

 

Borrowing Base Certificate”: a certificate, executed by a Senior Officer of the Administrative Borrower setting forth the Borrowers’ calculation of the Borrowing Base, substantially in the form of the Existing Borrowing Base Certificate, but with modifications reasonably acceptable to the Agent and the Administrative Borrower including modifications necessary to reflect the definitions of Canadian Borrowing Base, UK Borrowing Base and US Borrowing Base.

 

Borrowing Base Test Event”: any time when (i) a Specified Default has occurred and is continuing or (ii) Specified Excess Availability shall at any time be less than the greater of (A) 10% of the Line Cap and (B) $240,000,000 for a period of five (5) consecutive Business Days; provided, that, if a Borrowing Base Test Event has occurred, such Borrowing Base Test Event shall continue until such time as Specified Excess Availability shall thereafter have exceeded the greater of (x) 10% of the Line Cap and (y) $240,000,000 for at least twenty (20) consecutive calendar days and no Specified Default is outstanding during such twenty (20) consecutive calendar day period, at which time the Borrowing Base Test Event shall be deemed to be over.

 

Business Day”: any day excluding Saturday, Sunday and any other day that is a legal holiday under the laws of the State of North Carolina or the State of New York or is a day on which banking institutions located in such state are closed; and when used with reference to (a) a LIBOR Loan, the term shall also exclude any day on which banks are not open for the transaction of banking business in London, England, (b) a Revolver Loan made to a UK Borrower, shall also exclude any day (i) on which banks are not open for the transaction of banking business in London, England and (ii) in respect of any such Revolver Loan denominated in Euros, any day that is not a TARGET Day, or (c) a Revolver Loan made to a Canadian Borrower, shall also exclude a day on which banks in Toronto, Ontario, Canada are not open for the transaction of banking business.

 

Canadian AML Legislation”: the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada) and such other applicable Canadian policies, regulations, laws or rules, collectively, including any guidelines or orders thereunder.

 

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Canadian BA Rate”: with respect to each Interest Period for a Canadian BA Rate Loan, the rate of interest per annum equal to the average rate applicable to Canadian Dollar Bankers’ Acceptances having an identical or comparable term as the proposed Canadian BA Rate Loan displayed and identified as such on the display referred to as the “CDOR Page” (or any display substituted therefor) of Reuters Monitor Money Rates Service as at approximately 10:00 a.m. Toronto time on such day (or, if such day is not a Business Day, as of 10:00 a.m. Toronto time on the immediately preceding Business Day), provided, that, if such rate does not appear on the CDOR Page at such time on such date, the rate for such date will be the annual discount rate (rounded upward to the nearest whole multiple of 1/100 of 1%) as of 10:00 a.m. Eastern time on such day at which a Canadian chartered bank listed on Schedule 1 of the Bank Act (Canada) as selected by Agent is then offering to purchase Canadian Dollar Bankers’ Acceptances accepted by it having such specified term (or a term as closely as possible comparable to such specified term), provided, further, that in no event shall the Canadian BA Rate be less than zero.

 

Canadian BA Rate Loan”: a Multicurrency Facility Loan, or portion thereof, made to a Canadian Borrower funded in Canadian Dollars and bearing interest calculated by reference to the Canadian BA Rate.

 

Canadian Base Rate”: on any date, the highest of (a) a fluctuating rate of interest per annum equal to the rate of interest in effect for such day as publicly announced from time to time by Bank of America (Canada) as its “Base Rate”, (b) the sum of 0.50% plus the Federal Funds Rate for such day, and (c) the sum of 1.00% plus the LIBOR rate for Dollars for a thirty (30) day Interest Period as determined on such day; provided, that in no event shall the Canadian Base Rate be less than zero. As used in this definition, the “Base Rate” is a rate set by Bank of America (Canada) based upon various factors including Bank of America (Canada)’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans made in Dollars in Canada, which may be priced at, above, or below such announced rate. Any change in such rate shall take effect at the opening of business on the day of such change.

 

Canadian Base Rate Loan”: a Multicurrency Facility Loan, or portion thereof, made to a Canadian Borrower funded in Dollars and bearing interest calculated by reference to the Canadian Base Rate.

 

Canadian Borrowers”: (a) the Initial Canadian Borrowers and (b) each other Wholly-Owned Canadian Subsidiary that, after the date hereof, has executed a supplement or joinder to this Agreement in accordance with Section 9.1.12 and has satisfied the other requirements set forth in Section 9.1.12 in order to become a Canadian Borrower.

 

Canadian Borrowing Base”: at any time an amount equal to the sum (expressed in Dollars, based on the Dollar Equivalent thereof) of, without duplication:

 

(a)            eighty-five percent (85%) of the net book value of Eligible Accounts of any Canadian Loan Party, plus

 

(b)            the lesser of:

 

(i)            ninety-five percent (95)% of the net book value of Eligible Rental Equipment of any Canadian Loan Party and

 

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(ii)            the product of (x) ninety percent (90%) multiplied by (y) either (I) in the case of Eligible Rental Equipment not covered by the following clause (II), the lower of the (A) Cost of Eligible Rental Equipment of any Canadian Loan Party and (B) Net Orderly Liquidation Value percentage identified in the most recent Appraisal of the Eligible Rental Equipment of any Canadian Loan Parties multiplied by the net book value of such Eligible Rental Equipment or (II) for Eligible Rental Equipment of any Canadian Loan Party consisting of custom containers and ISO containers that are presold, the lower of (A) the Cost of such Eligible Rental Equipment and (B) the sales invoice price of such Eligible Rental Equipment, plus

 

(c)            the sum of:

 

(i)            ninety percent (90%) of the net book value of the Eligible Container Inventory Held For Sale of any Canadian Loan Party,

 

(ii)            ninety percent (90%) of the net book value of the Eligible Work-In-Process Container Inventory of any Canadian Loan Party, and

 

(iii)            sixty-five percent (65%) of either (x) Cost of the Eligible Raw Material Inventory of any Canadian Loan Party or (y) if such Eligible Raw Material Inventory consists of steel, lumber, plywood, or paint, for purposes of fiscal year end calculations only, the lower of the (I) Cost of such Eligible Raw Material Inventory or (II) fair market value of such Eligible Raw Material Inventory;

 

provided, that the amount of the Canadian Borrowing Base pursuant to this clause (c) shall not exceed (i) $100,000,000 at any time individually with respect to the Canadian Borrowing Base and (ii) $200,000,000 in the aggregate when taken together with the amount of the UK Borrowing Base pursuant to clause (c) of the definition thereof and the amount of the US Borrowing Base pursuant to clause (c) of the definition thereof, plus

 

(d)            eighty-five percent (85%) of the Net Orderly Liquidation Value percentage identified in the most recent Appraisal of Eligible Machinery and Equipment of any Canadian Loan Party, provided, that the amount included in the Canadian Borrowing Base pursuant to this clause (d) shall not exceed $25,000,000, plus

 

(e)            one-hundred percent (100%) of Eligible Qualified Cash of any Canadian Loan Party, minus

 

(f)            upon five (5) Business Days’ prior written notification thereof to the Administrative Borrower by Agent (after consultation with the Administrative Borrower in accordance with the definition of the term “Permitted Discretion”), any and all Reserves established against the Canadian Borrowing Base.

 

Clauses (a) through (e) of the Canadian Borrowing Base at any time shall be determined by reference to the most recent Borrowing Base Certificate theretofore delivered to Agent.

 

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

 

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Canadian Dominion Account”: each lockbox or Deposit Account established by the Canadian Loan Parties which is subject to a Deposit Account Control Agreement in favor of Agent in accordance with Section 7.3.2.

 

Canadian Fronting Bank”: (a) Bank of America (Canada); JPMorgan Chase Bank, N.A.; Deutsche Bank AG New York Branch; ING Capital LLC; BBVA USA; Bank of the West and MUFG Union Bank, N.A. or, in each case, any of their respective Affiliates or branches that agrees to issue Canadian Letters of Credit, (b) for purposes of such Existing Canadian Letters of Credit, any Multicurrency Facility Lender that issued an Existing Canadian Letter of Credit, and (c) if reasonably acceptable to the Administrative Borrower, any other Multicurrency Facility Lender or Affiliate or branch thereof that agrees to issue Canadian Letters of Credit.

 

Canadian Fronting Bank Indemnitees”: any Canadian Fronting Bank and its Affiliates and branches and their respective officers, directors, employees, agents, advisors and other representatives.

 

Canadian Guarantors”: (a) each Canadian Borrower, (b) the Initial Canadian Guarantors and (c) each other Canadian Subsidiary that, after the date hereof, has executed a supplement or joinder to this Agreement in accordance with Section 9.1.12 and has satisfied the other requirements set forth in Section 9.1.12 in order to become a Canadian Guarantor.

 

Canadian LC Application”: an application by any Canadian Borrower on behalf of itself or any other Restricted Subsidiary to a Canadian Fronting Bank for issuance of a Canadian Letter of Credit, in form and substance reasonably satisfactory to such Canadian Fronting Bank.

 

Canadian LC Conditions”: the following conditions necessary for issuance, renewal and extension of a Canadian Letter of Credit: (a) each of the conditions set forth in Section 6 being satisfied or waived; (b) after giving effect to such issuance, the total Canadian LC Obligations do not exceed the Canadian Letter of Credit Sublimit and no Multicurrency Overadvance exists or would result therefrom; (c) the expiration date of such Canadian Letter of Credit is (i) no more than 365 days from issuance (provided, that each Canadian Letter of Credit may, upon the request of the Applicable Canadian Borrower, include a provision whereby such Letter of Credit shall be renewed automatically for additional consecutive periods of twelve (12) months or less (but no later than five (5) Business Days prior to the Revolver Facility Termination Date)) or such other date as the Administrative Borrower, Agent and the applicable Canadian Fronting Bank shall agree, and (ii) unless the applicable Canadian Fronting Bank and Agent otherwise consent (subject to the satisfaction of the Cash Collateral requirements set forth in Section 2.2.3), at least five (5) Business Days prior to the Revolver Facility Termination Date; (d) the Canadian Letter of Credit and payments thereunder are denominated in Canadian Dollars or Dollars; (e) the form of the proposed Canadian Letter of Credit is reasonably satisfactory to the applicable Canadian Fronting Bank; (f) the proposed use of the Canadian Letter of Credit is for a lawful purpose; (g) such Canadian Letter of Credit complies with the applicable Canadian Fronting Bank’s policies and procedures with respect thereto; (h) no Canadian Fronting Bank shall be required to issue any Canadian Letter of Credit if, after giving effect thereto, the aggregate amount of issued and outstanding Canadian Letters of Credit issued by such Canadian Fronting Bank and its Affiliates and branches would exceed (x) in the case of any Canadian Fronting Bank party hereto as of the Closing Date, the amount set forth opposite such Canadian Fronting Bankʼs name on Schedule 1.1(a) under the heading “Canadian Letters of Credit Commitments” and (y) in the case of any Canadian Fronting Bank that becomes a Canadian Fronting Bank after the Closing Date, the amount which shall be set forth in the written agreement by which such Canadian Fronting Bank becomes a Canadian Fronting Bank hereunder, in each case, unless otherwise agreed by such Canadian Fronting Bank in its sole discretion; and (i) no Canadian Fronting Bank shall be required to issue any Canadian Letters of Credit other than standby letters of credit without its consent.

 

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Canadian LC Documents”: all documents, instruments and agreements (including Canadian LC Applications) required to be delivered by any Canadian Borrower or by any other Person to a Canadian Fronting Bank or Agent in connection with issuance, amendment or renewal of, or payment under, any Canadian Letter of Credit.

 

Canadian LC Obligations”: the Dollar Equivalent of the sum (without duplication) of (a) all amounts owing in respect of any unreimbursed drawings under Canadian Letters of Credit; (b) the stated undrawn amount of all outstanding Canadian Letters of Credit; and (c) for the purpose of determining the amount of required Cash Collateralization only, all fees and other amounts owing with respect to such Canadian Letters of Credit.

 

Canadian Letter of Credit”: any standby, time (usance) or documentary letter of credit issued by a Canadian Fronting Bank for the account of a Canadian Borrower or any Restricted Subsidiary, or any indemnity, guarantee or similar form of credit support issued by Agent or a Canadian Fronting Bank for the benefit of a Canadian Borrower or Restricted Subsidiary, including any Existing Canadian Letter of Credit issued for the account of a Canadian Borrower or any Restricted Subsidiary.

 

Canadian Letter of Credit Sublimit”: $75,000,000.

 

Canadian Loan Party”: each Canadian Borrower and each Canadian Guarantor, and “Canadian Loan Parties” means all such Persons, collectively.

 

Canadian Multi-Employer Plan”: each multi-employer plan, within the meaning of the Regulations under the Income Tax Act (Canada).

 

Canadian Obligations”: all Obligations of the Canadian Loan Parties (including, for the avoidance of doubt, the Obligations of the Canadian Loan Parties as Guarantors of any UK Obligations).

 

Canadian Pension Plan”: a “registered pension plan,” as defined in the Income Tax Act (Canada) and any other pension plan maintained or contributed to by, or to which there is or may be an obligation to contribute by, any Canadian Loan Party in respect of its Canadian employees or former employees, excluding, for greater certainty, a Canadian Multi-Employer Plan.

 

Canadian Prime Rate”: on any date, the highest of (i) a fluctuating rate of interest per annum equal to the rate of interest in effect for such day as publicly announced from time to time by Bank of America (Canada) as its “Prime Rate” and (ii) the sum of 1.00% plus the Canadian BA Rate for a one-month Interest Period as determined on such day; provided, that in no event shall the Canadian Prime Rate be less than zero. As used in this definition, the “Prime Rate” is a rate set by Bank of America (Canada) based upon various factors including the costs and desired return of Bank of America (Canada), general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate. Any change in such rate shall take effect at the opening of business on the day specified in the public announcement of such change. Each interest rate based on the Canadian Prime Rate hereunder shall be adjusted simultaneously with any change in the Canadian Prime Rate.

 

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Canadian Prime Rate Loan”: a Multicurrency Facility Loan made to a Canadian Borrower funded in Canadian Dollars and bearing interest calculated by reference to the Canadian Prime Rate.

 

Canadian Reimbursement Date”: as defined in Section 2.2.2(a).

 

Canadian Secured Obligations”: all Secured Obligations of the Canadian Loan Parties (including, for the avoidance of doubt, the Secured Obligations of the Canadian Loan Parties as Guarantors of any UK Secured Obligations).

 

Canadian Security Agreements”: each general security agreement dated as of the Closing Date and each deed of movable hypothec dated as of on or about the Closing Date, in each case among the Canadian Loan Parties and Agent, as such general security agreements and deeds of movable hypothec may be amended, restated, amended and restated, supplemented, modified or waived, and any other security agreement or deed of hypothec entered into from time to time by any Canadian Loan Party and Agent.

 

Canadian Subsidiary”: each Subsidiary of Holdings incorporated or organized under the laws of Canada or any province or territory of Canada.

 

Canadian Swingline Commitment”: $50,000,000.

 

Canadian Swingline Lender”: Bank of America (Canada) or an Affiliate or branch of Bank of America (Canada).

 

Canadian Swingline Loan”: a Swingline Loan made by the Canadian Swingline Lender to a Canadian Borrower pursuant to Section 2.1.7(a), which Swingline Loan shall, if denominated in Canadian Dollars, be a Canadian Prime Rate Loan and, if denominated in Dollars, shall be a Canadian Base Rate Loan, in each case as selected by the Applicable Canadian Borrower.

 

Capital Expenditures”: with respect to any Person, for any period, all liabilities incurred or expenditures made by such Person for the acquisition of fixed assets, or any improvements, replacements, substitutions or additions thereto with a useful life of more than one year that, in accordance with GAAP, would be required to be included as Capital Expenditures on the balance sheet, provided, that Capital Expenditures shall exclude (i) the purchase of new and used manufactured or remanufactured portable container Inventory held for sale and (ii) Inventory, Rental Equipment or Equipment acquired as part of a Permitted Acquisition or other Investment permitted hereunder.

 

Capital Lease”: as applied to any Person, any lease of any property (whether real, personal or mixed) by that Person as lessee that, in conformity with GAAP, is, or is required to be, accounted for as a capital lease on the balance sheet of that Person; provided, that the adoption or issuance of any accounting standards after the Closing Date will not cause any lease that was not or would not have been a Capital Lease prior to such adoption or issuance to be deemed a Capital Lease.

 

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Capital Lease Deposit Account”: any Deposit Account established by a Loan Party for the sole purpose of collecting proceeds of Accounts and Chattel Paper of such Loan Party which are not included in the Borrowing Base and which arise under Stand-Alone Customer Capital Leases of equipment by such Loan Party acquired by such Loan Party under Permitted Stand-Alone Capital Lease Transactions.

 

Capitalized Lease Obligations”: as applied to any Person, all obligations under Capital Leases of such Person or any of its Subsidiaries, in each case taken at the amount thereof accounted for as liabilities in accordance with GAAP.

 

Cash Collateral”: cash, and any interest or other income earned thereon, that is delivered to Agent to Cash Collateralize any Secured Obligations.

 

Cash Collateralize”: the delivery of Cash Collateral to Agent, as security for the payment of Secured Obligations with respect to LC Obligations, in an amount equal to 103% of the aggregate LC Obligations. “Cash Collateralization” has a correlative meaning.

 

Cash Dominion Event”: the occurrence of any one of the following events: (i) Specified Excess Availability shall be less than the greater of (A) 10% of the Line Cap and (B) $240,000,000 for a period of five (5) consecutive Business Days; or (ii) a Specified Default shall have occurred and be continuing; provided, that, if a Cash Dominion Event has occurred due to clause (i) of this definition, such Cash Dominion Event shall continue until such time as Specified Excess Availability shall thereafter have exceeded the greater of (1) 10% of the Line Cap and (2) $240,000,000 for at least twenty (20) consecutive calendar days, at which time the related Cash Dominion Event shall be deemed to be over. At any time that a Cash Dominion Event shall be deemed to be over or otherwise cease to exist, Agent shall take such actions as may reasonably be required by the Administrative Borrower to terminate the cash sweeps and other transfers existing on Deposit Accounts of the Loan Parties pursuant to Section 5.6 as a result of any notice or direction given by Agent during the existence of a Cash Dominion Event.

 

Cash Management Services”: any services provided from time to time by Agent, any Lender or any of their respective Affiliates to any Borrower, any other Loan Party or any of their respective Subsidiaries in connection with operating, collections, payroll, trust, or other depository or disbursement accounts, including automated clearinghouse, e-payable, electronic funds transfer, wire transfer, controlled disbursement, overdraft, depository, information reporting, credit card processing, lockbox and stop payment services.

 

CCAA”: the Companies’ Creditors Arrangement Act (Canada), (or any successor statute), as amended from time to time, and includes all regulations thereunder.

 

Certain Funds Provision”: as defined in Section 6.1(h).

 

Certificate of Title”: shall mean certificates of title, certificates of ownership or other registration certificates issued or required to be issued under the certificate of title or other similar laws of any state, province or other jurisdiction for any Unit.

 

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Certificated Units”: each Unit that is the subject of, or is required to be the subject of, a Certificate of Title under the motor vehicle or other applicable statute of the state in which such Unit was located when it was first acquired by any US Loan Party or any other state where such Unit becomes permanently located while still owned by a US Loan Party, other than New Mexican Units.

 

CFC”: as defined in the definition of “Excluded Subsidiary”.

 

Change in Law”: the occurrence, after the Closing Date, of (a) the adoption, taking effect or phasing in of any law, rule, regulation or treaty; (b) any change in any law, rule, regulation or treaty or in the administration, interpretation or application thereof by any Governmental Authority; or (c) the making, issuance or application of any request, guideline, requirement or directive (whether or not having the force of law) by any Governmental Authority; provided, that, notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.

 

Change in Tax Law”: the enactment, promulgation, execution or ratification of, or any change in or amendment to, any law (including the Code), treaty, regulation or rule (or in the official application or interpretation of any law, treaty, regulation or rule, including a holding, judgment or order by a court of competent jurisdiction) relating to Taxes.

 

Change of Control”: shall mean and be deemed to have occurred if (a) any person, entity or “group” (within the meaning of Section 13(d) or 14(d) of the Securities Exchange Act of 1934, as amended), other than Parent, the Sponsor and/or the Sponsor Affiliates, shall at any time have acquired direct or indirect beneficial ownership of both (x) 35% or more of the voting power of the outstanding Voting Stock of Holdings and (y) more than the percentage of the voting power of such Voting Stock then beneficially owned, directly or indirectly, in the aggregate, by the Parent, the Sponsor and the Sponsor Affiliates collectively, unless the Parent, the Sponsor and/or the Sponsor Affiliates has or have, at such time, the right or the ability by voting power, contract or otherwise to elect or designate for election at least a majority of the board of managers or similar governing body of Holdings; (b) Holdings shall cease to own, directly or indirectly, 100% on a fully diluted basis of the economic and voting interests in each of the Borrowers’ equity (subject to director qualifying shares and management owned shares in a percentage not in excess of that held by managers on the Closing Date) unless 100% of the equity of such Borrower is sold or otherwise disposed of in a transaction permitted hereunder or (c) a “change of control”, “change in control” or similar term as defined in the 2023 Senior Secured Notes Indenture, the 2025 Senior Secured Notes Indenture or any other document, instrument or agreement evidencing or governing Indebtedness of a Loan Party or any Restricted Subsidiary in a principal amount in excess of $100,000,000 has occured.

 

Civil Code”: the Civil Code of Québec, or any successor statute, as amended from time to time, and includes all regulations thereunder.

 

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Claims”: all claims, liabilities, obligations, losses, damages, penalties, judgments, proceedings, interest, costs and reasonable and documented out-of-pocket expenses of any kind (including remedial response costs, reasonable attorneys’ fees (which shall be limited to the fees, disbursements and other charges of one primary counsel and one local counsel in each relevant jurisdiction for all Indemnitees taken as a whole (unless there is an actual or perceived conflict of interest or the availability of different claims or defenses), in which case the affected Indemnitees similarly situated (taken as a whole) may retain one additional counsel in each relevant jurisdiction) and Extraordinary Expenses) at any time (including after Full Payment of the Obligations, replacement of Agent or any Lender) incurred by any Indemnitee or asserted against any Indemnitee by any Loan Party or other Person, in any way relating to (a) any Loans, Letters of Credit, Loan Documents, the Commitment Letter, or the use thereof or transactions relating thereto, (b) the existence or perfection of any Liens, or realization upon any Collateral, (c) the exercise of any rights or remedies under any Loan Documents or Applicable Law or (d) the failure by any Loan Party to perform or observe any terms of any Loan Document, in each case, including all costs and reasonable and documented out-of-pocket expenses relating to any investigation, litigation, arbitration or other proceeding (including an Insolvency Proceeding or appellate proceedings), whether or not the applicable Indemnitee is a party thereto.

 

Closing Date”: July 1, 2020.

 

Closing Date Borrowing Base”: the lesser of (a) $2,400,000,000 ($135,000,000 of which shall be allocated to the Canadian Borrowing Base, $120,000,000 of which shall be allocated to the UK Borrowing Base and $2,145,000,000 of which shall be allocated to the US Borrowing Base) and (b) the aggregate sum of the borrowing bases under the Existing WS Credit Agreement and the Existing Mobile Mini Credit Agreement as of May 31, 2020, such amount being $2,429,845,000 ($214,922,500 of which shall be allocated to the Canadian Borrowing Base, $214,922,500 of which shall be allocated to the UK Borrowing Base and $2,000,000,000 of which shall be allocated to the US Borrowing Base), as more specifically set forth in the Borrowing Base Certificate dated as of the Closing Date and delivered to the Agent pursuant to Section 6.1(i).

 

Closing Date Financial Statements”:

 

(a)             the audited consolidated balance sheets of Parent and its consolidated Subsidiaries as at the end of, and related statements of income and cash flows for, the three prior fiscal years ended at least 90 days before the Closing Date;

 

(b)             the audited consolidated balance sheets of MMI and its consolidated Subsidiaries as at the end of, and related statements of operations and cash flows for, the three prior fiscal years ended at least 90 days before the Closing Date;

 

(c)             the unaudited condensed consolidated balance sheets of Parent and its consolidated Subsidiaries as at the end of, and the related condensed consolidated statements of operations and cash flows for each subsequent fiscal quarter (other than the fourth fiscal quarter of any fiscal year) of Parent and its consolidated Subsidiaries ended after the most recent fiscal period for which audited financial statements have been provided pursuant to clause (a) above and at least 45 days before the Closing Date; and

 

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(d)             the unaudited condensed consolidated balance sheets of MMI and its consolidated Subsidiaries as at the end of, and the related condensed consolidated statements of operations and cash flows for each subsequent fiscal quarter (other than the fourth fiscal quarter of any fiscal year) of MMI and its consolidated Subsidiaries ended after the most recent fiscal period for which audited financial statements have been provided pursuant to clause (b) above and at least 45 days before the Closing Date.

 

Code”: the Internal Revenue Code of 1986 and the regulations promulgated and rulings issued thereunder.

 

Collateral”: all Property described in any Security Document as security for any Secured Obligation, and all other Property that now or hereafter secures (or is intended to secure) any Secured Obligations.

 

Collateral Access Agreement”: a landlord waiver, bailee letter, warehouse letter, agreement regarding processing arrangements or other access agreement, collateral management agreement or warehouse receipt, reasonably acceptable to Agent.

 

Commitment Letter”: the Sixth Amended and Restated Commitment Letter dated May 26, 2020 among Parent and each of the Joint Lead Arrangers party thereto.

 

Commodity Agreement”: any commodity swap agreement, futures contract, option contract or other similar agreement or arrangement, each of which is for the purpose of hedging the commodity price exposure associated with any Borrower’s and its Subsidiaries’ operations and not for speculative purposes.

 

Commodity Exchange Act”: the Commodity Exchange Act (7 USC. § 1 et seq.), as amended from time to time, and any successor statute.

 

Compliance Certificate”: a certificate, in the form of Exhibit C with such changes as may be agreed to by the Administrative Borrower and Agent, by which the Borrowers certify to the matters set forth in Section 9.1.1(d).

 

Consolidated EBITDA”: with respect to WS International and the Restricted Subsidiaries for any period, Consolidated Net Income for such period,

 

(1)          increased (without duplication) by:

 

(a)             provision for taxes based on income or profits or capital, including, without limitation, foreign, US federal, state, franchise, excise and similar taxes and foreign withholding taxes (including penalties and interest related to such taxes or arising from tax examinations) of WS International and the Restricted Subsidiaries paid or accrued during such period deducted (and not added back) in computing Consolidated Net Income and any payments to a Parent Entity in respect of any such taxes; plus

 

(b)             Consolidated Interest Expense of such WS International and its Restricted Subsidiaries for such period (but including items excluded from the definition of “Consolidated Interest Expense” pursuant to clauses (1)(i) through (1)(ix) thereof), to the extent the same were deducted (and not added back) in calculating such Consolidated Net Income; plus

 

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(c)             depreciation and amortization of WS International and the Restricted Subsidiaries for such period to the extent the same were deducted (and not added back) in computing Consolidated Net Income; plus

 

(d)             any expenses or charges (other than depreciation or amortization expenses) related to any equity offering (including by any Parent Entity), Permitted Investment, acquisition (including any Permitted Acquisition), disposition, recapitalization or the incurrence of Indebtedness permitted to be incurred by this Agreement (including a refinancing hereof) (whether or not successful), and any amendment or modification to the terms of any such transaction, including such fees, expenses or charges related to (i) the Transactions or (ii) any amendment or other modification of this Agreement, and, in each case, deducted (and not added back) in computing Consolidated Net Income; plus

 

(e)             the amount of any restructuring charges or reserves, business optimization expenses or non-recurring integration costs deducted (and not added back) in such period in computing Consolidated Net Income, including any one-time costs incurred in connection with acquisitions after the Closing Date and costs and charges related to the closure and/or consolidation of facilities, severance, relocation costs, integration and facilities opening costs, transition costs and other restructuring costs; plus

 

(f)              any other non-cash charges, including any write offs or write downs, reducing Consolidated Net Income for such period (and not added back) (provided, that, if any such non-cash charges represent an accrual or reserve for potential cash items in any future period, the cash payment in respect thereof in such future period shall be subtracted from Consolidated EBITDA in such future period to such extent, and excluding amortization of a prepaid cash item that was paid in a prior period); plus

 

(g)             the amount of any non-controlling interest expense consisting of Subsidiary income attributable to minority equity interests of third parties in any non-Wholly-Owned Subsidiary of WS International deducted (and not added back) in such period in the calculation of Consolidated Net Income, excluding cash distributions in respect thereof to the extent such cash distributions are included in the calculation of Consolidated Net Income; plus

 

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(h)             the amount of net cost savings, operating expense reductions, charges attributable to the undertaking and/or implementation of cost savings initiatives and improvements, business optimization and other restructuring and integration charges, and other synergies (including, to the extent applicable, from the Transactions) (without duplication of any amounts added back pursuant to Section 1.7(b)) projected by WS International in good faith to result from actions taken or reasonably expected to be taken within twenty-four (24) months following the date of determination as a result of specified actions initiated or reasonably expected to be taken (calculated on a pro forma basis as though such net cost savings, operating expense reductions, charges and other synergies had been realized on the first day of such period), net of the amount of actual benefits realized during such period from such actions (including, without limitation, business optimization costs, charges and expenses, costs and expenses incurred in connection with new product design, development and introductions, costs and expenses incurred in connection with intellectual property development and new systems design, and costs and expenses incurred in connection with the implementation, replacement, development or upgrade of operational, reporting and information technology systems and technology initiatives); provided, that (x) such net cost savings, operating expense reductions or other synergies are reasonably identifiable (in the good faith determination of the Administrative Borrower) and quantifiable and reflected in each Compliance Certificate delivered to Agent for any Test Period in which such net cost savings, operating expense reductions, charges or other synergies are reflected in Consolidated EBITDA and (y) the sum of (1) the aggregate amount of increases pursuant to this clause (h), plus (2) the aggregate amount of operating expense reductions, operating improvements and synergies pursuant to Section 1.7(b) shall not exceed 20% of Consolidated EBITDA for any four consecutive fiscal quarter period (calculated prior to giving effect to such adjustments); provided, further, that the adjustments pursuant to this clause (h) may be incremental to pro forma adjustments made pursuant to Section 1.7(b) (subject to the aggregate 20% limitation provided for in this clause (h) and in such Section 1.7(b)); plus

 

(i)              the amount of loss or discount on sale of receivables and related assets to a Receivables Entity in connection with a Qualified Receivables Transaction deducted (and not added back) in such period in the calculation of Consolidated Net Income; plus

 

(j)              any costs or expenses incurred by WS International or a Restricted Subsidiary pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement or any stock subscription or shareholder agreement, to the extent that such costs or expenses are funded with cash proceeds contributed to the capital of the applicable Person or net cash proceeds of an issuance of Stock or other Equity Interests of the applicable Person, in each case to the extent deducted (and not added back) in such period in the calculation of Consolidated Net Income; plus

 

(k)              the amount of expenses relating to payments made to option holders of Holdings or any Parent Entity in connection with, or as a result of, any distribution being made to shareholders of such Person or its Parent Entity, which payments are being made to compensate such option holders as though they were shareholders at the time of, and entitled to share in, such distribution, in each case to the extent permitted under this Agreement, in each case to the extent deducted (and not added back) in such period in the calculation of Consolidated Net Income; plus

 

(l)               costs associated with, or in anticipation of, or preparation for, compliance with the requirements of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith or other enhanced accounting functions and Public Company Costs, in each case to the extent deducted (and not added back) in such period in the calculation of Consolidated Net Income; plus

 

(m)             costs of Surety Bonds incurred in such period in connection with financing activities to the extent deducted (and not added back) in such period in the calculation of Consolidated Net Income; plus

 

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(n)             payments by Holdings, any of the Borrowers or Restricted Subsidiaries paid or accrued during such period in respect of purchase price holdbacks or earn-outs to the extent deducted (and not added back) in such period in the calculation of Consolidated Net Income; plus

 

(o)             adjustments (i) previously identified in the model delivered to the Joint Lead Arrangers on May 15, 2020 (excluding any revenue adjustments included therein) or (ii) consistent with Regulation S-X of the Securities Act of 1933, as amended; and

 

(2)          decreased by (without duplication) non-cash gains increasing Consolidated Net Income of WS International and the Restricted Subsidiaries for such period, excluding any non-cash gains to the extent they represent the reversal of an accrual or reserve for a potential cash item that reduced Consolidated EBITDA in any prior period; provided, that, to the extent non-cash gains are deducted pursuant to this clause (2) for any previous period and not otherwise added back to Consolidated EBITDA, Consolidated EBITDA shall be increased by the amount of any cash receipts (or any netting arrangements resulting in reduced cash expenses) in respect of such non-cash gains received in subsequent periods to the extent not already included therein.

 

Consolidated Fixed Charge Coverage Ratio”: for any Test Period, and subject to Section 1.7, the ratio of (a) the difference between (i) Consolidated EBITDA for such Test Period and (ii) the sum of (A) Unfinanced Capital Expenditures made by WS International and its Restricted Subsidiaries in such Test Period plus (B) income taxes actually paid in cash by WS International and its Restricted Subsidiaries during such Test Period to (b) Consolidated Fixed Charges for such Test Period.

 

Consolidated Fixed Charges”: for any period, and subject to Section 1.7, the sum, without duplication, of (a) Consolidated Interest Expense, (b) scheduled amortization payments of principal on Consolidated Total Debt (excluding revolving Indebtedness and Indebtedness between or among Holdings or any Restricted Subsidiary and Holdings or any Restricted Subsidiary) paid or payable in cash, and (c) Dividends (on any class of Stock) paid in cash during such period (other than Dividends paid by a Restricted Subsidiary of Holdings to a Loan Party).

 

Consolidated Interest Expense”: with respect to WS International and the Restricted Subsidiaries for any period, without duplication, the sum of:

 

(1)           consolidated interest expense of WS International and the Restricted Subsidiaries for such period, to the extent such expense was deducted (and not added back) in computing Consolidated Net Income (including (a) amortization of original issue discount resulting from the issuance of Indebtedness at less than par, other than with respect to Indebtedness issued in connection with the Transactions, (b) all commissions, discounts and other fees and charges owed with respect to letters of credit or bankers acceptances, (c) non-cash interest payments (but excluding any non-cash interest expense attributable to the movement in the mark to market valuation of hedging obligations or other derivative instruments pursuant to GAAP), (d) the interest component of Capitalized Lease Obligations, and (e) net payments, if any, pursuant to interest rate hedging obligations with respect to Indebtedness, and excluding (i) penalties and interest relating to taxes, (ii) any “additional interest” relating to customary registration rights with respect to any securities, (iii) non-cash interest expense attributable to movement in mark-to-market valuation of hedging obligations or other derivatives (in each case permitted hereunder under GAAP), (iv) interest expense attributable to a Parent Entity resulting from push-down accounting, (v) accretion or accrual of discounted liabilities not constituting Indebtedness, (vi) any expense resulting from the discounting of Indebtedness in connection with the application of recapitalization or purchase accounting, (vii) amortization of deferred financing fees, debt issuance costs, commissions, fees and expenses and, with respect to Indebtedness issued in connection with the Transactions, original issue discount, (viii) any expensing of bridge, commitment and other financing fees and (ix) commissions, discounts, yield and other fees and charges (including any interest expense) related to any Qualified Receivables Transaction); plus

 

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(2)           consolidated capitalized interest of WS International and the Restricted Subsidiaries for such period, whether paid or accrued; less

 

(3)           interest income of WS International and the Restricted Subsidiaries for such period.

 

For purposes of this definition, interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by such Person to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP.

 

Consolidated Net Income”: with respect to WS International and the Restricted Subsidiaries for any period, the aggregate of the net income (loss), attributable to WS International and the Restricted Subsidiaries for such period, on a consolidated basis, and otherwise determined in accordance with GAAP; provided, however, that, without duplication,

 

(1)           any after-tax effect of (a) extraordinary gains, losses, charges (including all fees and expenses relating thereto) or expenses and (b) non-recurring or unusual gains, losses, charges (including all fees and expenses relating thereto) or expenses (including the Transaction Expenses) shall be excluded,

 

(2)           the cumulative effect of a change in accounting principles during such period and changes as a result of the adoption or modification of accounting policies shall be excluded,

 

(3)           any after-tax effect of income (loss) from disposed of, abandoned, transferred, closed or discontinued operations and any net after-tax gains or losses on the disposal of, or disposed-of, abandoned, transferred, closed or discontinued, operations or fixed assets shall be excluded,

 

(4)           any after-tax effect of gains or losses (less all fees and expenses relating thereto) attributable to asset dispositions or abandonments or the sale or other disposition of any Stock of any Person other than in the Ordinary Course of Business, as determined in good faith by WS International, shall be excluded,

 

(5)            the net income for such period of any Person that is not a Subsidiary or is an Unrestricted Subsidiary, or that is accounted for by the equity method of accounting, shall be excluded; provided, that Consolidated Net Income of WS International shall be increased by the amount of Dividends or distributions or other payments that are actually paid in cash (or to the extent converted into cash or Permitted Investments) by such Person that is not a Subsidiary or Unrestricted Subsidiary, as the case may be, to WS International or a Restricted Subsidiary thereof in respect of such period,

 

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(6)           effects of adjustments (including the effects of such adjustments pushed down to WS International and the Restricted Subsidiaries) in the inventory, property and equipment, software and other intangible assets and in process research and development, deferred revenue and debt line items in WS International’s consolidated financial statements pursuant to GAAP resulting from the application of purchase accounting in relation to the Transactions or any consummated acquisition or the amortization or write-off of any amounts thereof, net of taxes, shall be excluded,

 

(7)           any after-tax effect of income (loss) from the early extinguishment of Indebtedness or Hedge Agreements or other derivative instruments (including deferred financing costs written off and premiums paid) shall be excluded,

 

(8)           any impairment charge, asset write-off or write-down, including impairment charges or asset write-offs or write-downs related to intangible assets, long-lived assets, investments in debt and equity securities or as a result of a change in law or regulation, the amortization of intangibles, and the effects of adjustments to accruals and reserves during a prior period relating to any change in the methodology of calculating reserves for returns, rebates and other chargebacks (including government program rebates), in each case, pursuant to GAAP shall be excluded,

 

(9)           any (i) non-cash compensation charge or expense related to the grants of stock appreciation or similar rights, phantom equity, stock options, restricted stock or other rights and (ii) income (loss) attributable to deferred compensation plans or trusts shall be excluded,

 

(10)         accruals and reserves that are established within twelve (12) months after the Closing Date that are so required to be established as a result of the Transactions (or within twelve (12) months after the closing of any acquisition that are so required to be established as a result of such acquisition) in accordance with GAAP or charges, accruals, expenses and reserves as a result of adoption or modification of accounting policies in accordance with GAAP,

 

(11)         (i) any net gain or loss resulting in such period from currency transaction or translation gains or losses related to currency remeasurements and (ii) any income (or loss) related to currency gains or losses related to Indebtedness, intercompany balance sheet items and hedging obligations shall be excluded, and

 

(12)         any deferred tax expense associated with tax deductions or net operating losses arising as a result of the Transactions, or the release of any valuation allowance related to such item, shall be excluded.

 

In addition, to the extent not already accounted for in the Consolidated Net Income of such Person and its Restricted Subsidiaries, notwithstanding anything to the contrary in the foregoing, Consolidated Net Income shall include (i) the amount of proceeds received during such period from business interruption insurance in respect of insured claims for such period, (ii) the amount of proceeds as to which WS International has determined there is reasonable evidence it will be reimbursed by the insurer in respect of such period from business interruption insurance (with a deduction for any amounts so included to the extent not so reimbursed within 365 days) and (iii) reimbursements received of any expenses and charges that are covered by indemnification or other reimbursement provisions in connection with any Investment or any sale, conveyance, transfer or other disposition of assets, in each case to the extent permitted hereunder.

 

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Consolidated Total Assets”: the total assets of WS International and its Restricted Subsidiaries, determined on a consolidated basis in accordance with GAAP, as shown on the most recent balance sheet of WS International delivered pursuant to the terms of this Agreement.

 

Consolidated Total Debt”: as of any date of determination, (a) the aggregate principal amount of Indebtedness of WS International and the Restricted Subsidiaries outstanding on such date, determined on a consolidated basis in accordance with GAAP (but excluding the effects of any discounting of Indebtedness resulting from the application of purchase accounting in connection with any Permitted Acquisition), consisting of Indebtedness for borrowed money, Capitalized Lease Obligations and debt obligations evidenced by promissory notes or similar instruments, minus (b) the aggregate amount of cash and Permitted Investments held in accounts on the consolidated balance sheet of WS International and the Restricted Subsidiaries as at such date to the extent the use thereof for application to payment of senior Indebtedness is not prohibited by law or any contract to which any such Person is a party; it being understood that such aggregate amount of cash and Permitted Investments shall in any event include all Eligible Qualified Cash, provided, that Consolidated Total Debt shall be calculated (for all purposes hereunder, including as a component of the definition of Total Net Leverage Ratio, and any applications thereof) to exclude any obligation, liability or indebtedness of WS International and/or the Restricted Subsidiaries if, upon or prior to the maturity thereof, WS International and/or the Restricted Subsidiaries, as applicable, has (or have) irrevocably deposited with the proper Person in trust or escrow the necessary funds (or evidence of indebtedness) for the payment, redemption or satisfaction of such obligation, liability or indebtedness (it being understood and agreed that from and after such date that such funds (or evidence of indebtedness) are so deposited that such funds (or evidence of indebtedness) are not netted pursuant to clause (b) above for purposes of determining Consolidated Total Debt).

 

Contribution Notice”: means a contribution notice issued by the Pensions Regulator in the UK under Section 38 or Section 47 of the Pensions Act 2004 of the United Kingdom.

 

Cost”: with respect to Eligible Rental Equipment or Eligible Raw Material Inventory, the cost thereof, as determined in a manner consistent with the Loan Parties’ current and historical accounting practices unless otherwise specified in this Agreement.

 

Credit Documents”: the Loan Documents and the Bank Product Documents.

 

Credit Party”: Agent, a Lender or any Fronting Bank; and “Credit Parties” means Agent, Lenders and Fronting Banks.

 

Creditor Representative”: under any Applicable Law, a receiver, manager, controller, interim receiver, receiver and manager, trustee (including any trustee in bankruptcy), custodian, conservator, administrator, examiner, sheriff, monitor, assignee, liquidator, provisional liquidator, sequestrator, administrative receiver, judicial manager, statutory manager or similar officer or fiduciary.

 

CTA”: means the United Kingdom Corporation Tax Act 2009.

 

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Cure Amount”: as defined in Section 10.2(a).

 

Cure Right”: as defined in Section 10.2(a).

 

Currency Agreement”: any foreign exchange contract, currency swap agreement, futures contract, option contract, synthetic cap or other similar agreement or arrangement, each of which is for the purpose of hedging the foreign currency risk associated with any Borrower’s and its Subsidiaries’ operations and not for speculative purposes.

 

Custodian Agreement”: the Custodian Agreement, dated as of the Closing Date, among each US Loan Party, Agent and the Custodians.

 

Custodians”: as defined in the Custodian Agreement.

 

Debt Repayment”: the repayment or redemption (with any applicable premium) or other satisfaction and discharge in full (including by way of cash necessary to redeem the Existing Mobile Mini Notes (as defined below) being deposited with the trustee of such Existing Mobile Mini Notes (it being understood and agreed that the depositing with the applicable trustee of cash necessary to redeem the Existing Mobile Mini Notes shall be satisfactory for such purposes, whether such deposit is made pursuant to Section 3.5 of the indenture referred to below, Section 11.1 of the indenture referred to below, or otherwise)) and the termination of any liens and guarantees related thereto, of each of the following:

 

(1)              the Indebtedness of Holdings and its subsidiaries under that certain ABL Credit Agreement, dated as of November 29, 2017, among, inter alios, Parent, the joint lead arrangers and joint bookrunners party thereto and Bank of America, N.A., as administrative agent (as amended, restated, amended and restated, or otherwise modified from time to time, the “Existing WS Credit Agreement”),

 

(2)              the Indebtedness of MMI and its subsidiaries under that certain Second Amended and Restated ABL Credit Agreement, dated as of March 22, 2019, among, inter alios, MMI, the joint lead arrangers and joint bookrunners party thereto and Deutsche Bank AG New York Branch, as administrative agent (as amended, restated, amended and restated, or otherwise modified from time to time, the “Existing Mobile Mini Credit Agreement”), and

 

(3)              the senior notes of MMI and its subsidiaries under that certain Indenture, dated as of May 9, 2016, among, inter alios, MMI and Deutsche Bank Trust Company Americas as trustee, paying agent, registrar and transfer agent (the “Existing Mobile Mini Notes”).

 

Default”: an event or condition that, with the lapse of time or giving of notice, would constitute an Event of Default.

 

Default Rate”: for any Obligation not paid when due (including, to the extent permitted by law, interest not paid when due), 2.00% plus the interest rate otherwise applicable thereto, or if such Obligation does not bear interest and is the Obligation of (i) a US Loan Party, a rate equal to the US Base Rate plus the Applicable Margin with respect to US Base Rate Loans plus 2.00%, (ii) a Canadian Loan Party, a rate equal to the Canadian Prime Rate (if denominated in Canadian Dollars) plus the Applicable Margin with respect to Canadian Prime Rate Loans plus 2.00% or Canadian Base Rate (if denominated in Dollars) plus the Applicable Margin with respect to Canadian Base Rate Loans plus 2.00% or (iii) a UK Loan Party, a rate equal to the UK Base Rate plus the Applicable Margin with respect to UK Base Rate Loans plus 2.00%.

 

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Defaulting Lender”: any Revolver Lender that, as reasonably determined by Agent, (a) has failed to perform any funding obligations hereunder, and such failure is not cured within two Business Days, unless such Revolver Lender notifies Agent and the Administrative Borrower in writing that such failure is the result of such Revolver Lender’s determination that one or more conditions precedent to funding (which conditions precedent, together with the applicable Default, if any, shall be specifically identified in such writing) have not been satisfied; (b) has notified Agent or any Borrower that such Revolver Lender does not intend to comply with its funding obligations hereunder or has made a public statement to the effect that it does not intend to comply with its funding obligations hereunder or generally under other credit facilities (unless such notice or public statement relates to such Revolver Lender’s obligation to fund a Revolver Loan hereunder and states that such position is based on such Revolver Lender’s determination that a condition precedent to funding cannot be satisfied); (c) has failed, within three Business Days following written request by Agent, to confirm in a manner reasonably satisfactory to Agent that such Revolver Lender will comply with its funding obligations hereunder (provided, that such Revolver Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt by Agent of such confirmation); or (d) has, or has a direct or indirect parent company that has, become the subject of a Bail-In Action or an Insolvency Proceeding or taken any action in furtherance thereof; provided, however, that, for the avoidance of doubt, a Revolver Lender shall not be a Defaulting Lender solely by virtue of (i) a Governmental Authority’s ownership or acquisition of an equity interest in such Revolver Lender or parent company as long as such ownership does not give immunity or (ii) in the case of a solvent Person, the precautionary appointment of an administrator, guardian, trustee, custodian or other similar official by a Governmental Authority under or based on the law of the country where such Person is subject to home jurisdiction supervision if applicable law requires that such appointment not be publicly disclosed in any such case (and for only so long as there is no public disclosure of such appointment), where, in the case of clauses (i) or (ii), such ownership or action does not give immunity from the jurisdiction of courts of any Principal Jurisdiction or from the enforcement of judgments or writs of attachment on its assets or permit such Person (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made by such Person.

 

Deposit Account”: (i) any “deposit account” as such term is defined in Article 9 of the UCC and in any event shall include all accounts and sub-accounts relating to any of the foregoing and (ii) with respect to any account located outside of the US, any bank account with a deposit function.

 

Deposit Account Control Agreements”: the deposit account control agreements (whether in the form of an agreement, notice and acknowledgement or like instrument), in form and substance reasonably satisfactory to Agent and the Administrative Borrower, executed by Agent, the applicable Loan Parties, the applicable lockbox servicer and financial institution maintaining a lockbox and/or Deposit Account (other than an Excluded Deposit Account) for a Loan Party in favor of Agent, for the benefit of any Secured Parties, as security for and/or to perfect Agent’s Liens securing any Secured Obligations.

 

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Designated Non-Cash Consideration”: the fair market value of non-cash consideration received by any Loan Party or a Restricted Subsidiary in connection with a Disposition pursuant to Section 9.2.4(b) that is designated as Designated Non-Cash Consideration pursuant to a certificate of a Senior Officer of the Administrative Borrower, setting forth the basis of such valuation (which amount will be reduced by the fair market value of the portion of the non-cash consideration converted to cash within 180 days following the consummation of the applicable Disposition).

 

Disposition”: as defined in Section 9.2.4(b).

 

Disqualified Institution”: (i) those banks, financial institutions and other institutional lenders and investors that have been separately identified in writing by Holdings (or its Affiliates) to the Joint Lead Arrangers on or prior to March 1, 2020, (ii) those persons who are competitors of Parent or MMI or their respective Subsidiaries that were or are separately identified in writing by Holdings (or its Affiliates) to the Joint Lead Arrangers or, after the Closing Date, to Agent from time to time (which shall not apply to retroactively disqualify any person who previously acquired in a manner permitted hereunder and continues to hold, any Loans or Revolver Commitments in respect of any Facility) and (iii) in the case of each of clauses (i) and (ii), any of their Affiliates (excluding, in the case of clause (ii), bona fide debt fund affiliates predominantly engaged in the business of debt investing and for which no personnel involved with the relevant competitor (A) make investment decisions or (B) have access to non-public information relating to Holdings or MMI or any person that forms part of Holdings’ or MMI’s business (including their respective Subsidiaries)) that are either (a) identified in writing by Holdings (or its Affiliates) from time to time (which shall not apply to retroactively disqualify any person who previously acquired in a manner permitted hereunder, and continues to hold, any Loans or Revolver Commitments in respect of any Facility) or (b) reasonably identifiable on the basis of such Affiliate’s name.

 

Disqualified Stock”: with respect to any Person, any Stock of such Person which, by its terms, or by the terms of any security into which it is convertible or for which it is putable or exchangeable, or upon the happening of any event, matures or is mandatorily redeemable (other than solely as a result of a change of control or asset sale) pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof (other than solely as a result of a change of control or asset sale), in whole or in part, in each case prior to the date 91 days after the earlier of the Revolver Facility Termination Date or the date of Full Payment of the Secured Obligations; provided, however, that if such Stock is issued to any plan for the benefit of employees of WS International or its Subsidiaries or by any such plan to such employees, such Stock shall not constitute Disqualified Stock solely because it may be required to be repurchased by WS International or its Subsidiaries in order to satisfy applicable statutory or regulatory obligations, provided, further, that any Stock held by any future, current or former employee, director, manager or consultant (or their respective trusts, estates, investment funds, investment vehicles or immediate family members) of WS International, any of its Subsidiaries or any direct or indirect Parent Entity in each case upon the termination of employment or death of such person pursuant to any stockholders’ agreement, management equity plan, stock option plan or any other management or employee benefit plan or agreement shall not constitute Disqualified Stock solely because it may be required to be repurchased by WS International or its Subsidiaries or any direct or indirect parent of WS International.

 

Dividends”: as defined in Section 9.2.6.

 

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Document”: as defined in the UCC (and/or with respect to any Document of a Canadian Loan Party, a “document of title” as defined in the PPSA) or any other Applicable Law, as applicable.

 

Dollar Equivalent”: on any date, with respect to any amount denominated in Dollars, such amount in Dollars, and with respect to any stated amount in a currency other than Dollars, the amount of Dollars that Agent determines (which determination shall be conclusive and binding absent manifest error) would be necessary to be sold on such date at the applicable Exchange Rate to obtain the stated amount of the other currency.

 

Dollars” or “$”: lawful money of the United States.

 

Dominion Account”: with respect to (a) the Canadian Loan Parties, each Canadian Dominion Account, (b) the UK Loan Parties, each UK Dominion Account, and (c) the US Loan Parties, each US Dominion Account.

 

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

 

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

 

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

 

Eligible Accounts”: at any time, the Accounts or Chattel Paper of any Loan Party at such date, except any Account or Chattel Paper:

 

(a)             which is not subject to a valid and duly perfected Lien in favor of Agent;

 

(b)             (i) which is subject to any Lien other than (x) a Lien in favor of Agent and (y) Liens permitted pursuant to Section 9.2.2 which do not have priority over (and are not pari passu with) the Liens in favor of Agent other than any Lien permitted pursuant to Section 9.2.2 which as a matter of law has priority over the respective Liens in favor of Agent or (ii) which arises under a Permitted Stand-Alone Capital Lease Transaction;

 

(c)             owing by any Account Debtor with respect to which more than 120 days have elapsed since the date of the original invoice therefor or which is more than 90 days past the due date for payment;

 

(d)             which is owing by an Account Debtor for which more than 50% of the Accounts owing from such Account Debtor are ineligible pursuant to clause (c) above;

 

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(e)             which is owing by any Account Debtor to the extent the aggregate amount of all otherwise Eligible Accounts owing from such Account Debtor to the Loan Parties exceeds 20% of the aggregate of all Eligible Accounts (or such higher percentage as Agent may establish for the Account Debtor from time to time), in each case, only to the extent of such excess;

 

(f)              with respect to which any covenant, representation or warranty relating to such Account or Chattel Paper contained in this Agreement or any Security Document has been breached or is not true in each case in any material respect;

 

(g)             which (i) does not arise from the sale or lease of Rental Equipment or Inventory, the provision of build-own-operate services or performance of other services in the Ordinary Course of Business, (ii) is not evidenced by an invoice, or other documentation reasonably satisfactory to Agent, which has been sent to the Account Debtor (provided, that unbilled Accounts (other than progress billing) not to exceed the Dollar Equivalent of $20,000,000 in the aggregate for all Loan Parties collectively at any time may constitute Eligible Accounts to the extent they satisfy the other criteria set forth in this definition), (iii) represents a progress billing, (iv) is contingent upon the applicable Loan Party’s completion of any further performance (other than, for the avoidance of doubt, performance terms under a rental or lease contract), or (v) represents a sale on a bill-and-hold, guaranteed sale, sale-and-return, sale on approval, consignment which is billed prior to actual sale to the end user, cash-on-delivery or any other repurchase or return basis (other than, for the avoidance of doubt, pursuant to the terms of a rental or lease contract);

 

(h)             for which any Rental Equipment giving rise to such Account or Chattel Paper (other than Rental Equipment utilized in build-own-operate services) has not been shipped to the Account Debtor or for which the services giving rise to such Account or Chattel Paper have not been performed by the applicable Loan Party;

 

(i)              with respect to which any check or other instrument of payment has been returned uncollected for any reason;

 

(j)              which is owed by an Account Debtor in respect of which an Insolvency Proceeding has been commenced or which is otherwise a debtor or a debtor in possession under any bankruptcy law or any other federal, state or foreign (including any province or territory) receivership, insolvency relief or other law or laws for the relief of debtors, including the US Bankruptcy Code, the UK Insolvency Act, the Bankruptcy and Insolvency Act (Canada) and the CCAA, unless the payment of Accounts or Chattel Paper from such Account Debtor is secured by assets of, or guaranteed by, in either case, in a manner reasonably satisfactory to Agent, a Person that is reasonably acceptable to Agent or, if the Account or Chattel Paper from such Account Debtor arises subsequent to a decree or order for relief with respect to such Account Debtor in respect of which an Insolvency Proceeding has been commenced or which is otherwise a debtor under such laws, including the US Bankruptcy Code, the UK Insolvency Act, the Bankruptcy and Insolvency Act (Canada) and the CCAA, as now or hereafter in effect, Agent shall have reasonably determined that the timely payment and collection of such Account or Chattel Paper will not be impaired;

 

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(k)             which is owed by an Account Debtor which has suspended or ceased doing business, is liquidating, dissolving or winding up its affairs or is not solvent, or is a Restricted Party;

 

(l)              which is owed by an Account Debtor which is not organized, incorporated or established under the applicable law of the US, Canada or the United Kingdom, any state of the US, the District of Columbia or any province or territory of Canada or does not have its principal place of business in the US, Canada or the United Kingdom unless such Account or Chattel Paper is backed by a letter of credit or other credit support reasonably acceptable to Agent;

 

(m)            which is owed in any currency other than, (x) in the case of an Account Debtor of a US Loan Party or a Canadian Loan Party, Dollars or Canadian Dollars and (y) in the case of an Account Debtor of a UK Loan Party, Dollars, Pounds Sterling or Euros;

 

(n)             which is owed by any Governmental Authority, unless (i) the Account Debtor is the United States or any state or political subdivision thereof, or any department, agency or instrumentality of the foregoing, and the Account has been assigned to Agent in compliance with the US Assignment of Claims Act, and any other steps necessary to perfect the Lien of Agent on such Account have been complied with to Agent’s reasonable satisfaction, (ii) the Account Debtor is the government of Canada or a province or territory thereof or any department, agency or instrumentality of the foregoing, and the Account has been assigned to Agent in compliance with the Financial Administration Act (Canada) (or similar Applicable Law of such province or territory), and any other steps necessary to perfect the Lien of Agent on such Account have been complied with to Agent’s reasonable satisfaction, (iii) the Account Debtor is the government of the United Kingdom or a province or territory thereof or any department, agency or instrumentality of the foregoing and any steps necessary to perfect the Lien of Agent on such Account have been complied with to Agent’s reasonable satisfaction, (iv) such Account is backed by a letter of credit reasonably acceptable to Agent or (v) Agent otherwise reasonably approves;

 

(o)             which is owed by any Affiliate, employee, director, or officer of any Loan Party; provided, that portfolio companies of the Sponsor or Parent that do business with any applicable Loan Party in the Ordinary Course of Business will not be treated as Affiliates for purposes of this clause (o);

 

(p)             which is subject to any counterclaim, deduction, defense, setoff or dispute, but only to the extent of the amount of such counterclaim, deduction, defense, setoff or dispute, unless (i) Agent, in its Permitted Discretion, has established Reserves and determines to include such Account as an Eligible Account or (ii) such Account Debtor has entered into an agreement reasonably acceptable to Agent to waive or limit such rights;

 

(q)             which is evidenced by any promissory note or instrument (in each case, other than any such items that are delivered to Agent);

 

(r)              which is owed by an Account Debtor located in any jurisdiction that requires, as a condition to access to the courts of such jurisdiction, that a creditor qualify to transact business, file a business activities report or other report or form, or take one or more other actions, unless the applicable Loan Party has so qualified, filed such reports or forms, or taken such actions (and, in each case, paid any required fees or other charges), except to the extent the applicable Loan Party may qualify subsequently as an entity authorized to transact business in such jurisdiction and gain access to such courts, without incurring any cost or penalty reasonably viewed by Agent to be material in amount, and such later qualification cures any access to such courts to enforce payment of such Account, provided, that any jurisdiction in clause (l) above shall not be excluded by virtue of this clause (r);

 

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(s)             with respect to which the applicable Loan Party has made any agreement with the Account Debtor for any reduction thereof, but only to the extent of such reduction, other than discounts and adjustments given in the Ordinary Course of Business;

 

(t)              with respect to a UK Loan Party, Accounts regulated by the UK Consumer Credit Act of 1974 (as amended); or

 

(u)             with respect to a UK Loan Party, the Accounts are governed by laws other than that of England and Wales.

 

Subject to Section 13.1, Agent may modify the foregoing criteria in its Permitted Discretion (after consultation with the Administrative Borrower in accordance with the definition of the term “Permitted Discretion”).

 

Eligible Assignee”: subject to the requirements of Section 12.3.3, a Person that is (a) a Lender or an Affiliate or branch of a Lender; (b) an Approved Fund; (c) any other financial institution approved by Agent (such approval not to be unreasonably conditioned, withheld or delayed) and the Administrative Borrower (which approval by the Administrative Borrower shall not be unreasonably conditioned, withheld or delayed and shall be deemed given if no objection is made within ten (10) Business Days after the Administrative Borrower’s receipt of notice of the proposed assignment) whose becoming an assignee would not constitute a prohibited transaction under Section 4975 of the Code or any other Applicable Law, or would, immediately following any such assignment, not result in increased costs or Taxes payable by the Loan Parties pursuant to Section 5.8; or (d) during the occurrence and continuance of any Event of Default arising under Section 10.1.1 or Section 10.1.5 with respect to a Borrower or a Material Subsidiary, any Person acceptable to Agent in its discretion, which acceptance shall not be unreasonably conditioned, withheld or delayed; provided, that in no event shall (x) a natural person, (y) a Disqualified Institution or (z) Holdings or any of its Subsidiaries or any of its Affiliates be an Eligible Assignee. For the avoidance of doubt, any purported assignment to a Disqualified Institution is subject to Section 12.3.6.

 

Eligible Container Inventory Held For Sale”: at any date of determination thereof, Eligible Goods Inventory owned by any Loan Party consisting of (a) new and used manufactured or remanufactured portable and ISO containers and portable mobile offices held by such Loan Party for intended sale to third parties, containers temporarily out of service and otherwise unrefurbished ISO units and (b) up to an aggregate amount for all of the Loan Parties collectively equal to the Dollar Equivalent of $40,000,000 of containers used in the conduct of their business (and not held for sale or lease).

 

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Eligible Goods Inventory”: at any date of determination thereof, Inventory owned by a Loan Party at such date except any Inventory:

 

(a)              which is not subject to a valid and duly perfected Lien in favor of Agent; provided, that this clause (a) shall not apply to Inventory owned by a US Loan Party constituting a Unit (such Inventory being subject to clause (f) below);

 

(b)             which is subject to any Lien other than (i) a Lien in favor of Agent (subject to the proviso in clause (a) above) and (ii) Liens permitted pursuant to Section 9.2.2 which do not have priority over (and are not pari passu with) the Liens in favor of Agent (other than Liens permitted pursuant to Section 9.2.2 which as a matter of law have priority over the respective Liens in favor of the Agent);

 

(c)             which is obsolete or damaged or defective and not repairable;

 

(d)             with respect to which any covenant, representation or warranty contained in this Agreement or any Security Document has been breached or is not true in any material respect;

 

(e)             (i) with respect to Inventory owned by a Canadian Loan Party, which is not located in Canada or the United States or is not (x) at a location listed on Schedule 7.4.1 (as updated from time to time in accordance with the provisions hereof), (y) in transit between locations of a Canadian Loan Party and another Canadian Loan Party or a US Loan Party or (z) located on the premises of any customer of any Canadian Loan Party or in transit to or from the location of any customer of any Canadian Loan Party, (ii) with respect to Inventory owned by a US Loan Party, which is not located in the United States or Canada or is not (x) at a location listed on Schedule 7.4.1 (as updated from time to time in accordance with the provisions hereof), (y) in transit between locations of a US Loan Party and another US Loan Party or a Canadian Loan Party or (z) located on the premises of any customer of any US Loan Party or in transit to or from the location of any customer of any US Loan Party and (iii) with respect to Inventory owned by a UK Loan Party, which is not located in UK or is not (x) at a location listed on Schedule 7.4.1 (as updated from time to time in accordance with the provisions hereof), (y) in transit between locations of a UK Loan Party and another UK Loan Party or (z) located on the premises of any customer of any UK Loan Party or in transit to or from the location of any customer of any UK Loan Party;

 

(f)              in respect of Inventory owned by a US Loan Party that constitutes a Unit only, the actions required to be taken pursuant to Section 9.1.20 have not been taken (unless the time period within which such actions are required to be taken has not yet expired);

 

(g)             which is the subject of a Permitted Stand-Alone Capital Lease Transaction;

 

(h)             which has not been subject to an Appraisal in form and substance satisfactory to Agent and it is not of an identical kind or type of Inventory that has been appraised;

 

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(i)              which is Eligible Rental Equipment, Eligible Raw Materials Inventory or Eligible Machinery and Equipment;

 

(j)              which is not owned by a Loan Party or a Loan Party does not have good, valid and marketable title thereto; or

 

(k)             which consists of goods returned or rejected by a Loan Partyʼs or Affiliateʼs customers on account of defects or damages;

 

provided, that the amount of Eligible Goods Inventory shall be determined on a first-in, first-out basis.

 

Subject to Section 13.1, Agent may modify the foregoing criteria in its Permitted Discretion (after consultation with the Administrative Borrower in accordance with the definition of the term “Permitted Discretion”).

 

Eligible Machinery and Equipment”: at any date of determination, Equipment owned by a Loan Party in the Ordinary Course of Business except at such date any Equipment:

 

(a)             which is not subject to a valid and duly perfected Lien in favor of Agent; provided, that this clause (a) shall not apply to Equipment owned by a US Loan Party constituting a Unit (such Equipment being subject to clause (d) below);

 

(b)             which is subject to any Lien other than (i) a Lien in favor of Agent (subject to the proviso in clause (a) above) and (ii) Liens permitted pursuant to Section 9.2.2 which do not have priority over (and are not pari passu with) the Liens in favor of Agent (other than Liens permitted pursuant to Section 9.2.2 which as a matter of law have priority over the respective Liens in favor of Agent);

 

(c)             (i) with respect to Equipment owned by a Canadian Loan Party, which is not located in Canada or the United States or is not (x) at a location listed on Schedule 7.4.1 (as updated from time to time in accordance with the provisions hereof), (y) in transit between locations of a Canadian Loan Party and another Canadian Loan Party or a US Loan Party or (z) located on the premises of any customer of any Canadian Loan Party or in transit to or from the location of any customer of any Canadian Loan Party, (ii) with respect to Equipment owned by a US Loan Party, which is not located in the United States or Canada or is not (x) at a location listed on Schedule 7.4.1 (as updated from time to time in accordance with the provisions hereof), (y) in transit between locations of a US Loan Party and another US Loan Party or a Canadian Loan Party or (z) located on the premises of any customer of any US Loan Party or in transit to or from the location of any customer of any US Loan Party and (iii) with respect to Equipment owned by a UK Loan Party, which is not located in UK or is not (x) at a location listed on Schedule 7.4.1 (as updated from time to time in accordance with the provisions hereof), (y) in transit between locations of a UK Loan Party and another UK Loan Party or (z) located on the premises of any customer of any UK Loan Party or in transit to or from the location of any customer of any UK Loan Party;

 

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(d)             in respect of Equipment owned by a US Loan Party that constitutes a Unit only, the actions required to be taken pursuant to Section 9.1.20 have not been taken (unless the time period within which such actions are required to be taken has not yet expired);

 

(e)             which has not been subject to an Appraisal in form and substance satisfactory to Agent and it is not of an identical kind or type of Equipment that has been appraised;

 

(f)             which is Eligible Rental Equipment, Eligible Raw Materials or Eligible Goods Inventory; or

 

(g)            which is not owned by a Loan Party or a Loan Party does not have good, valid and marketable title thereto.

 

Subject to Section 13.1, Agent may modify the foregoing criteria in its Permitted Discretion (after consultation with the Administrative Borrower in accordance with the definition of the term “Permitted Discretion”).

 

Eligible Qualified Cash”: shall mean the aggregate amount of cash and Permitted Investments (other than any cash or Permitted Investments that appears (or would be required to appear) as “restricted” on a consolidated balance sheet of the Administrative Borrower unless such appearance is related to the Loan Documents (or the Liens created thereunder)) of any Loan Party that is subject to a valid, enforceable and first priority Lien in favor of Agent in an investment account, deposit account or other account at Agent or another institution, in each case, subject to a Deposit Account Control Agreement or Securities Account Control Agreement in favor of Agent or, in the case of Eligible Qualified Cash of any UK Loan Party, a fixed charge in favor of Agent.

 

Eligible Raw Materials Inventory”: at any date of determination thereof, Inventory owned by a Loan Party consisting of steel, lumber, plywood, paint, drywall, plumbing materials and fixtures, electrical components, insulation materials, HVAC materials, doors and windows, and fasteners at such date except any Inventory:

 

(a)             which is not subject to a valid and duly perfected Lien in favor of Agent;

 

(b)             which is subject to any Lien other than (i) a Lien in favor of Agent and (ii) Liens permitted pursuant to Section 9.2.2 which do not have priority over (and are not pari passu with) the Liens in favor of Agent (other than Liens permitted pursuant to Section 9.2.2 which as a matter of law have priority over the respective Liens in favor of Agent);

 

(c)             which is slow moving or with respect to which any covenant, representation or warranty contained in this Agreement or any Security Document has been breached or is not true in any material respect;

 

(d)             (i) with respect to Inventory owned by a Canadian Loan Party, which is not located in Canada or the United States or is not (x) at a location listed on Schedule 7.4.1 (as updated from time to time in accordance with the provisions hereof), (y) in transit between locations of a Canadian Loan Party and another Canadian Loan Party or a US Loan Party or (z) located on the premises of any customer of any Canadian Loan Party or in transit to or from the location of any customer of any Canadian Loan Party, (ii) with respect to Inventory owned by a US Loan Party, which is not located in the United States or Canada or is not (x) at a location listed on Schedule 7.4.1 (as updated from time to time in accordance with the provisions hereof), (y) in transit between locations of a US Loan Party and another US Loan Party or a Canadian Loan Party or (z) located on the premises of any customer of any US Loan Party or in transit to or from the location of any customer of any US Loan Party and (iii) with respect to Inventory owned by a UK Loan Party, which is not located in UK or is not (x) at a location listed on Schedule 7.4.1 (as updated from time to time in accordance with the provisions hereof), (y) in transit between locations of a UK Loan Party and another UK Loan Party or (z) located on the premises of any customer of any UK Loan Party or in transit to or from the location of any customer of any UK Loan Party;

 

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(e)             which is Eligible Rental Equipment, Eligible Machinery and Equipment or Eligible Goods Inventory;

 

(f)             which is not owned by a Loan Party or a Loan Party does not have good, valid and marketable title thereto; or

 

(g)             which is not first quality raw materials or is obsolete;

 

provided, that the amount of Eligible Raw Materials Inventory shall be determined on a first-in, first-out basis.

 

Subject to Section 13.1, Agent may modify the foregoing criteria in its Permitted Discretion (after consultation with the Administrative Borrower in accordance with the definition of the term “Permitted Discretion”).

 

Eligible Real Property”: at any date of determination thereof, any Real Estate owned by a US Loan Party at such date except any Real Estate:

 

(a)             which is not located in the United States;

 

(b)             which is not subject to a valid and duly perfected Lien pursuant to a Mortgage in favor of Agent;

 

(c)             which is subject to any Lien other than (i) a Lien in favor of Agent and (ii) Liens permitted pursuant to Section 9.2.2 which do not have priority over (and are not pari passu with) the Liens in favor of Agent (other than Permitted Encumbrances);

 

(d)             with respect to which any covenant, representation or warranty contained in this Agreement or any Security Document has been breached or is not true in any material respect;

 

(e)             which is not covered by customary title insurance reasonably acceptable to Agent;

 

(f)             with respect to which environmental due diligence reasonably satisfactory to Agent has not been completed with respect to such Real Estate;

 

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(g)             with respect to which an opinion of counsel for the US Loan Party which is the owner of the Real Estate has not been delivered to Agent, in a form, scope and substance reasonably satisfactory to Agent and its counsel, if reasonably requested by Agent;

 

(h)             with respect to which a customary certificate in a form reasonably acceptable to Agent and the Lenders has not been obtained indicating that the property is not in a flood zone, or if the property is in a flood zone, an acknowledged borrower notice and flood insurance in compliance (including as to amount) with all applicable Food Insurance Laws and in an amount, with endorsements and by an insurer reasonably acceptable to Agent and the Lenders has not been obtained, provided, that each Lender shall be deemed to have reasonably accepted any certificate provided pursuant to this clause (h) and shall be reasonably satisfied with matters pertaining to the insurance requirements of this clause (h) if it has not rejected such certificate or insurance matters within 15 days of receiving such certificate and/or evidence of insurance from the applicable Loan Party;

 

(i)              which is not owned by a US Loan Party or a US Loan Party does not have good record and valid and marketable title in fee simple thereto;

 

(j)              which has not been subject to an appraisal that is reasonably satisfactory to Agent (or other means for determining the fair market value that is reasonably acceptable to the Agent);

 

(k)             for which all Related Real Estate Documents (regardless of whether such Real Estate is Material Real Estate) have not been delivered to Agent; or

 

(l)              which is not covered by casualty and property insurance reasonably acceptable to Agent.

 

Eligible Rental Equipment”: at any date of determination thereof, the Rental Equipment owned by any Loan Party at such date except any Rental Equipment:

 

(a)             which is not subject to a valid and duly perfected Lien in favor of Agent; provided, that this clause (a) shall not apply to Rental Equipment owned by a US Loan Party constituting a Unit (such Rental Equipment being subject to clause (h) below);

 

(b)             which is subject to any Lien other than (i) a Lien in favor of Agent (subject to the proviso in clause (a) above) and (ii) Liens permitted pursuant to Section 9.2.2 which do not have priority over (and are not pari passu with) the Liens in favor of Agent other than any Lien permitted pursuant to Section 9.2.2 which as a matter of law has priority over the respective Liens in favor of Agent;

 

(c)             which is slow moving, obsolete, unmerchantable, defective, unfit for rent or unacceptable due to age, type, category and/or quantity;

 

(d)             with respect to which any covenant, representation or warranty contained in this Agreement or any Security Document has been breached or is not true in any material respect;

 

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(e)             which does not conform in all material respects to all standards imposed by any applicable Governmental Authority (except that any standard that is qualified as to “materiality” shall have been conformed to in all respects), or has been acquired from a Restricted Party;

 

(f)              which constitutes packaging and shipping material, manufacturing supplies, display items, bill-and-hold goods, returned or repossessed goods (other than goods that are undamaged and able to be resold or released in the Ordinary Course of Business), defective goods, goods to be returned to the applicable Loan Party’s suppliers or goods which are not of a type held for lease or sale in the Ordinary Course of Business;

 

(g)             (i) with respect to Rental Equipment owned by a Canadian Loan Party, which is not located in Canada or the United States or is not (x) at a location listed on Schedule 7.4.1 (as updated from time to time in accordance with the provisions hereof), (y) in transit between locations of a Canadian Loan Party and another Canadian Loan Party or a US Loan Party or (z) located on the premises of any customer of any Canadian Loan Party or in transit to or from the location of any customer of any Canadian Loan Party, (ii) with respect to Rental Equipment owned by a US Loan Party, which is not located in the United States or Canada or is not (x) at a location listed on Schedule 7.4.1 (as updated from time to time in accordance with the provisions hereof), (y) in transit between locations of a US Loan Party and another US Loan Party or a Canadian Loan Party or (z) located on the premises of any customer of any US Loan Party or in transit to or from the location of any customer of any US Loan Party and (iii) with respect to Rental Equipment owned by a UK Loan Party, which is not located in UK or is not (x) at a location listed on Schedule 7.4.1 (as updated from time to time in accordance with the provisions hereof), (y) in transit between locations of a UK Loan Party and another UK Loan Party or (z) located on the premises of any customer of any UK Loan Party or in transit to or from the location of any customer of any UK Loan Party;

 

(h)             in respect of Rental Equipment owned by a US Loan Party that constitutes a Unit only, the actions required to be taken pursuant to Section 9.1.20 have not been taken (unless the time period within which such actions are required to be taken has not yet expired);

 

(i)              which is the subject of a Permitted Stand-Alone Capital Lease Transaction;

 

(j)              which is not owned by a Loan party or a Loan Party does not have good, valid and marketable title thereto;

 

(k)             which has not been subject to an Appraisal in form and substance satisfactory to Agent and it is not of an identical kind or type of Inventory that has been appraised; or

 

(l)              which is the subject of a consignment by such Loan Party as consignor unless (i) a protective UCC-1 or PPSA financing statement has been properly filed by the applicable Loan Party against the consignee in respect if such Loan Partyʼs interests in and to such Rental Equipment, and (ii) there is a written agreement acknowledging that such Rental Equipment is held on consignment, that such Loan Party retains title to such Rental Equipment, that no Lien arising by, through or under such consignee has attached or will attach to such Rental Equipment and requiring consignee to segregate the consigned Equipment from the consigneeʼs other personal or movable property and having other terms consistent with such Loan Partyʼs past practice for consigned Rental Equipment.

 

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Subject to Section 13.1, Agent may modify the foregoing criteria in its Permitted Discretion (after consultation with the Administrative Borrower in accordance with the definition of the term “Permitted Discretion”).

 

Eligible Work-In-Process Container Inventory”: at any date of determination, Eligible Goods Inventory consisting of: (a) new and used manufactured or remanufactured portable containers, which is in the work-in-process phase of manufacturing; (b) shaped steel component parts; or (c) sub-assemblies; provided, that any property that may qualify as Eligible Rental Equipment and Eligible Work-In-Process Container Inventory shall be deemed solely to constitute Eligible Rental Equipment.

 

Enforcement Action”: any action to enforce any Obligations or Loan Documents or to exercise any rights or remedies relating to any Collateral (whether by judicial action, self-help, notification of Account Debtors, exercise of setoff or recoupment, exercise of any right or vote to act in a Loan Party’s Insolvency Proceeding, or otherwise).

 

Environmental Claims”: any and all actions, suits, orders, decrees, demands, claims, liens, notices of noncompliance, violation, general notice letters issued to potentially responsible parties pursuant to the Comprehensive Environmental Response, Compensation and Liability Act, 42 USC §§ 9601 et seq., or government investigation or proceedings relating to any Environmental Law or any permit issued, or any approval given, under any such Environmental Law, including, (i) any and all such claims by governmental or regulatory authorities for enforcement, cleanup, removal, response, remedial or other actions or damages pursuant to any applicable Environmental Law and (ii) any and all such claims by any third party seeking damages, contribution, indemnification, cost recovery, compensation or injunctive relief relating to the presence, release or threatened release of Hazardous Materials or arising from alleged injury or threat of injury to health or safety (to the extent relating to human exposure to Hazardous Materials).

 

Environmental Law”: any applicable federal, commonwealth, state, provincial, territorial, foreign, municipal or local statute, law, rule, regulation, ordinance and code, and any binding judicial or administrative order, agreement, consent decree or judgment, relating to the protection of the environment, including, ambient air, surface water, groundwater, land surface and subsurface strata and natural resources such as wetlands, or the protection of human health or safety (to the extent relating to human exposure to Hazardous Materials), or Hazardous Materials.

 

Equipment”: all machinery, apparatus, equipment, motor vehicles and other similar assets (other than Inventory and Rental Equipment) used in the operations of a Loan Party or any of its Restricted Subsidiaries or owned by any Loan Party or any of its Restricted Subsidiaries or in which any Loan Party or any of its Restricted Subsidiaries has an interest, whether now owned or hereafter acquired by a Loan Party or any of its Restricted Subsidiaries and wherever located, and all parts, accessories and special tools and all increases and accessions thereto and substitutions and replacements therefor.

 

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Equity Interests”: Stock and all warrants, options or other rights to acquire Stock, but excluding any other debt security that is convertible into, or exchangeable for, Stock.

 

ERISA”: the Employee Retirement Income Security Act of 1974, as amended from time to time, and the rules and regulations promulgated thereunder.

 

ERISA Affiliate”: any trade or business (whether or not incorporated) under common control with a Loan Party or treated as a single employer with a Loan Party, in each case within the meaning of Section 414 of the Code.

 

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

 

Euro” or “”: the lawful currency of the European Union.

 

Event of Default”: as defined in Section 10.1.

 

Excess Availability”: as of any date of determination, an amount equal to (i) the Line Cap minus (ii) the sum of (a) the Dollar Equivalent of the aggregate principal amount of all Revolver Loans then outstanding under the Facilities and (b) the aggregate principal amount of all LC Obligations then outstanding.

 

Exchange Rate”: the exchange rate, as determined by Agent, that is applicable to conversion of one currency into another currency, which is (a) the exchange rate reported by Bloomberg (or other commercially available source designated by Agent) as of the end of the preceding Business Day in the financial market for the first currency or (b) if such report is unavailable for any reason, the spot rate for the purchase of the first currency with the second currency as in effect during the preceding business day in Agent’s principal foreign exchange trading office for the first currency.

 

Excluded Deposit Account”: any lockbox or deposit account (i) which is used for the sole purpose of making payroll and withholding tax payments related thereto and other employee wage and benefit payments and accrued and unpaid employee compensation (including salaries, wages, benefits and expense reimbursements), (ii) which is a zero balance account, (iii) which is used solely for paying taxes, including sales taxes, (iv) which is used solely as an escrow account or solely as a fiduciary or trust account, (v) which, individually or in the aggregate with all other accounts being treated as Excluded Deposit Accounts pursuant to this clause (v), has a daily balance of less than $10,000,000, (vi) which is then a Capital Lease Deposit Account, or (vii) is used solely for disbursements.

 

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Excluded Subsidiary”: (a) each Subsidiary listed on Schedule 8.1.12 hereto as an Excluded Subsidiary; (b) any Subsidiary that is not a Wholly-Owned Subsidiary of Holdings (other than any Borrower); (c) (i) any Subsidiary that is prohibited by any Applicable Law or, solely with respect to Subsidiaries existing on the Closing Date or on the date such Subsidiary is acquired (provided, that such prohibition is not be created in contemplation of such acquisition), its Organizational Documents from guaranteeing the Secured Obligations, (ii) any Subsidiary that is prohibited by any contractual obligation existing on the Closing Date or on the date any such Subsidiary is acquired from guaranteeing the Secured Obligations (provided, that such prohibition is not be created in contemplation of such acquisition) or (iii) to the extent that the provision of any guarantee of the Secured Obligations would require the consent, approval, license or authorization of any Governmental Authority or unaffiliated third party which has not been obtained, any Subsidiary that is subject to such restrictions; provided, that, after such time that such restrictions on guarantees are waived, lapse, terminate or are no longer effective, such Restricted Subsidiary shall no longer be an Excluded Subsidiary; (d) (i) any Non-US Subsidiary or (ii) any direct or indirect US Subsidiary (A) of a direct or indirect Non-US Subsidiary of any US Borrower that is a “controlled foreign corporation” within the meaning of Section 957 of the Code (any such Non-US Subsidiary, a “CFC”) or (B) of a US Borrower that has no material assets (directly or through one or more disregarded entities) other than equity of one or more direct or indirect Non-US Subsidiary that is a CFC (provided that, solely for purposes of the foregoing clauses (d)(i) and (d)(ii), any Subsidiary described in the foregoing clauses (d)(i) or (d)(ii) shall be an Excluded Subsidiary only with respect to the guarantee of Secured Obligations of US Loan Parties, and not in respect of any other Secured Obligations); (e) each Subsidiary that is not a Material Subsidiary, (f) any Subsidiary that is not a Canadian Subsidiary, UK Subsidiary or a US Subsidiary, (g) each Receivables Entity, (h) each Unrestricted Subsidiary, (i) any Subsidiary that is a special purpose entity, (j) any Subsidiary with respect to which Agent and the Administrative Borrower reasonably agree that the cost of guaranteeing the Secured Obligations outweighs the value afforded thereby, and (k) any Subsidiary for which the provision of a Guarantee would result in a material adverse Tax or regulatory consequence to the US Borrowers or one of their respective Subsidiaries, a material adverse Tax or regulatory consequence to the UK Borrowers or one of their respective Subsidiaries or a material adverse Tax or regulatory consequence to the Canadian Borrowers or one of their respective Subsidiaries, as applicable (in each case as reasonably determined by the Administrative Borrower in consultation with Agent); provided, that no Subsidiary shall be an Excluded Subsidiary to the extent it is required to be or becomes a guarantor of the 2023 Senior Secured Notes or the 2025 Senior Secured Notes. Notwithstanding the foregoing (and for the avoidance of doubt), if any entity shall be considered an “Excluded Subsidiary” under this definition as a result of costs or adverse tax consequences, in each case, under Section 956 of the Code, such entity shall be an Excluded Subsidiary solely with respect to the guarantee of Secured Obligations of US Loan Parties, and not in respect of any other Secured Obligations except to the extent that it would otherwise be treated as an Excluded Subsidiary pursuant to this definition.

 

Excluded Swap Obligation”: with respect to any Guarantor, (a) any Swap Obligation if, and to the extent that all or a portion of the guarantee of such Guarantor of, or the grant by such Guarantor of a security interest to secure, as applicable, such Swap Obligation (or any guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder or (b) any other Swap Obligation designated as an “Excluded Swap Obligation” of such Guarantor as specified in any agreement between the relevant Loan Parties and hedge counterparty applicable to such Swap Obligations, and agreed by Agent. If a Swap Obligation arises under a master agreement governing more than one Swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to Swaps for which such guarantee or security interest is or becomes illegal.

 

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Excluded Taxes”: with respect to Agent, any Lender, any Fronting Bank or any other recipient of a payment to be made by or on behalf of any Loan Party on account of any Obligation, (a) Taxes imposed on or measured by its net income (however denominated), and franchise taxes imposed on it (i) by a jurisdiction (or any political subdivision thereof) as a result of the recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable Lending Office located in the jurisdiction imposing such Tax or (ii) as the result of any other present or former connection between such recipient and the jurisdiction imposing such tax (other than connections arising from such recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan, Letter of Credit or Loan Document); (b) any branch profits taxes imposed by the United States or any similar tax imposed by any other jurisdiction in which such recipient has a branch; (c) in the case of a Foreign Lender (other than in the case of an assignee pursuant to a request by any Borrower under Section 3.8 or Section 12.3.4) with a Loan or Revolver Commitment to a US Borrower, any United States federal withholding tax that is imposed on amounts payable to such Foreign Lender pursuant to laws in force at the time such Foreign Lender becomes a Lender (or designates a new Lending Office) hereunder, except that taxes in this clause (c) shall not include (i) additional withholding tax that may be imposed on amounts payable to a Foreign Lender after the time such Foreign Lender becomes a party to this Agreement (or designates a new Lending Office), as a result of a Change in Tax Law after such time or (ii) any amount with respect to withholding tax that such Foreign Lender (or its assignor, if any) was previously entitled to receive pursuant to Section 5.8 of this Agreement, if any, with respect to such withholding tax at the time such Foreign Lender designates a new Lending Office (or at the time of the assignment); (d) any United States withholding tax imposed under FATCA; (e) any withholding tax that is attributable to such recipient’s failure (other than as a result of a Change in Tax Law) to comply with Section 5.9 other than Sections 5.9.3, 5.9.4 and 5.9.6; or (f) in the case of a Lender with a Loan or Revolver Commitment to a Canadian Borrower, any Canadian federal withholding tax arising as a result of the recipient (i) not dealing at arm’s length (within the meaning of the Income Tax Act (Canada)) with a Loan Party, or (ii) being a “specified non-resident shareholder” of a Loan Party or being a non-resident person not dealing at arm’s length with a “specified shareholder” of a Loan Party (in each case within the meaning of the Income Tax Act (Canada)), in each case, excluding any non-arm’s length or “specified non-resident shareholder” relationship that is attributable solely to such recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document.

 

Existing Appraisals and Field Exams”: Existing Mobile Mini Appraisals and Field Exams and Existing WS Appraisals and Field Exams.

 

Existing Borrowing Base Certificate”: a certificate, executed by a Senior Officer of the Administrative Borrower, in the form of Exhibit M, which reflects (a) the borrowing base of MMI and its Subsidiaries under the Existing Mobile Mini Credit Agreement, as if such Existing Mobile Mini Credit Agreement were still in effect, (b) the Canadian borrowing base of those Canadian Subsidiaries of the Administrative Borrower that were Canadian Subsidiaries of the Administrative Borrower prior to the Closing Date under the Existing WS Credit Agreement, as if such Existing WS Credit Agreement were still in effect, and (c) the US borrowing base of the Administrative Borrower and its US Subsidiaries that were its US Subsidiaries prior to the Closing Date under the Existing WS Credit Agreement, as if such Existing WS Credit Agreement were still in effect.

 

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Existing Canadian Letter of Credit”: as defined in Section 2.2.1(e).

 

Existing Letters of Credit”: collectively, the Existing Canadian Letters of Credit, the Existing US Letters of Credit and the Existing UK Letters of Credit.

 

Existing Mobile Mini Appraisals and Field Exams”: (i) the equipment appraisal with respect to MMI and its Subsidiaries dated January 22, 2020, (ii) the machinery and equipment appraisal with respect to MMI and its Subsidiaries dated January 22, 2020 and (iii) the field exam with respect to MMI and its Subsidiaries dated September 26, 2019.

 

Existing Mobile Mini Credit Agreement”: as defined in the definition of “Debt Repayment”.

 

Existing Mobile Mini Notes”: as defined in the definition of “Debt Repayment”.

 

Existing UK Letter of Credit”: as defined in Section 2.3.1(e).

 

Existing US Letter of Credit”: as defined in Section 2.4.1(e).

 

Existing WS Appraisals and Field Exams”: collectively, (i) the equipment appraisal with respect to Parent and its Subsidiaries dated January 16, 2020 and (ii) the field exam with respect to Parent and its Subsidiaries dated January 15, 2020.

 

Existing WS Credit Agreement”: as defined in the definition of “Debt Repayment”.

 

Extended Tranche”: as defined in Section 2.1.8(a).

 

Extending Lender”: as defined in Section 2.1.8(a).

 

Extension Offer”: as defined in Section 2.1.8(a).

 

Extraordinary Expenses”: all costs, reasonable and documented out-of-pocket expenses or advances that Agent may incur during the continuance of an Event of Default, or during the pendency of any Insolvency Proceeding of any Loan Party or any Restricted Subsidiary, including those relating to (a) any audit, inspection, repossession, storage, repair, appraisal, insurance, manufacture, preparation or advertising for sale, sale, collection, or other preservation of or realization upon any Collateral; (b) any action, arbitration or other proceeding (whether instituted by or against Agent, any Fronting Bank, any Lender, any Loan Party, any representative of creditors of any Loan Party or any other Person) in any way relating to any Collateral (including the validity, perfection, priority or avoidability of Agent’s Liens with respect to any Collateral), Loan Documents, Letters of Credit or Obligations, including any lender liability or other Claims; (c) the exercise, protection or enforcement of any rights or remedies of Agent in, or the monitoring of, any Insolvency Proceeding; (d) settlement or satisfaction of any taxes, charges or Liens with respect to any Collateral; (e) any Enforcement Action; (f) negotiation and documentation of any modification, waiver, workout, restructuring or forbearance with respect to any Loan Documents or Obligations; and (g) Protective Advances. Such costs, expenses and advances include transfer fees, Other Taxes, storage fees, insurance costs, permit fees, utility reservation and standby fees, appraisal fees, brokers’ fees and commissions, auctioneers’ fees and commissions, accountants’ fees, environmental study fees, wages and salaries paid to employees of any Loan Party or independent contractors in liquidating any Collateral, travel expenses, receivers’ and managers’ fees and legal fees (which shall be limited to the reasonable fees, disbursements and other charges of one primary counsel and one local counsel in each appropriate state, province or foreign jurisdiction for Agent).

 

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Facility Termination Date”: the Multicurrency Facility Commitment Termination Date and/or US Facility Commitment Termination Date, as the context may require.

 

Facilities”: collectively, (a) the Multicurrency Facility and (b) the US Facility and “Facility” means either of the foregoing.

 

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

 

FATCA Deduction”: means a deduction or withholding from a payment under a Finance Document required by FATCA.

 

Federal Funds Rate”: (a) the weighted average of interest rates on overnight federal funds transactions with members of the Federal Reserve System on the applicable day (or the preceding Business Day, if the applicable day is not a Business Day), as published by the Federal Reserve Bank of New York on the next Business Day; or (b) if no such rate is published on the next Business Day, the average rate (rounded up, if necessary, to the nearest 1/8 of 1%) charged to Bank of America on the applicable day on such transactions, as determined by Agent; provided, that in no event shall such rate be less than zero.

 

Fee Letter”: the Sixth Amended and Restated Fee Letter dated May 26, 2020 among Parent and each of the Joint Lead Arrangers party thereto.

 

Financial Covenant Test Event”: Specified Excess Availability shall, on any day, be less than the greater of (A) 10% of the Line Cap and (B) $240,000,000, provided, that, if the Financial Covenant Test Event has occurred, such Financial Covenant Test Event shall continue until such time as Specified Excess Availability shall have thereafter exceeded the greater of (x) 10% of the Line Cap and (y) $240,000,000 for at least twenty (20) consecutive calendar days, at which time the Financial Covenant Test Event shall be deemed to be over.

 

Financial Performance Covenant”: as defined in Section 10.2.

 

Financial Support Direction”: a financial support direction issued by the Pensions Regulator in the UK under Section 43 of the Pensions Act 2004 of the United Kingdom.

 

Floating Rate Loan”: a Base Rate Loan or a Canadian Prime Rate Loan.

 

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Flood Insurance Laws”: collectively, (i) the National Flood Insurance Act of 1968 as now or hereafter in effect or any successor statute thereto, (ii) the Flood Disaster Protection Act of 1973 as now or hereafter in effect or any successor statute thereto, (iii) the National Flood Insurance Reform Act of 1994 as now or hereafter in effect or any successor statute thereto, (iv) the Flood Insurance Reform Act of 2004 and the Biggert – Waters Flood Insurance Reform Act of 2012, as now or hereafter in effect or any successor statute thereto.

 

FLSA”: the Fair Labor Standards Act of 1938.

 

Foreign Lender”: (a) with respect to each Borrower that is a US Person, each Lender or Fronting Bank that is not a US Person, and (b) with respect to each Borrower that is not a US Person, each Lender or Fronting Bank that is resident or organized under the laws of a jurisdiction other than that in which such Borrower is resident for tax purposes.

 

Foreign Plan”: any employee benefit plan, fund or other similar program maintained or established by a Loan Party or any of its Subsidiaries outside of the US or Canada primarily for the benefit of employees of any Loan Party or any of its Subsidiaries residing outside of the US or Canada, other than any state social security arrangements, which plan, fund or other similar program provides, or results in, retirement income, a deferral of income in contemplation of retirement or payments to be made upon termination of employment, and which is not subject to ERISA, the Code or the PBA.

 

Fronting Bank”: (a) a Canadian Fronting Bank (b) a UK Fronting Bank, and/or (c) a US Fronting Bank, as the context requires, and shall include, with respect to any Existing Letter of Credit, the issuer of such Existing Letter of Credit.

 

Fronting Bank Indemnitees”: (a) Canadian Fronting Bank Indemnitees, (b) UK Fronting Bank Indemnitees, and/or (c) US Fronting Bank Indemnitees, as the context requires.

 

FSCO”: the Financial Services Commission of Ontario or like body in Canada or in any other province or territory or jurisdiction of Canada with whom a Canadian Pension Plan is required to be registered in accordance with Applicable Law and any other Governmental Authority succeeding to the functions thereof.

 

Full Payment”: with respect to any Secured Obligations (other than (i) Secured Bank Product Obligations, (ii) reimbursement obligations for which no claim has been made and (iii) contingent indemnity claims), (a) the full cash payment thereof in the applicable currency required hereunder, including any interest and documented fees and other charges accruing during an Insolvency Proceeding (including such amount that would have accrued or arisen but for the commencement of such Insolvency Proceeding), whether or not a claim for such post-petition interest, fees or other charges is allowed in such proceeding; and (b) if such Obligations are LC Obligations, the Cash Collateralization thereof (or delivery of a standby letter of credit acceptable to the related Fronting Bank in its discretion, in the amount of required Cash Collateral). No Revolver Loans shall be deemed to have been paid in full until all Revolver Commitments related to such Revolver Loans have expired or been terminated.

 

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GAAP”: generally accepted accounting principles in effect in the United States from time to time, provided, that (i) in no event shall any lease be deemed a capital lease for purposes of this Agreement if such lease would have been categorized as an operating lease as determined in accordance with GAAP prior to giving effect to the Accounting Standards Codification Topic 842, Leases and (ii) for the avoidance of doubt, all lease liabilities related to operating leases shall not constitute Indebtedness and all payments under and in respect of operating leases shall not constitute Consolidated Fixed Charges.

 

General Intangibles”: as defined in the UCC (and/or with respect to any General Intangible of a Canadian Loan Party, an “intangible” as defined in the PPSA) or any other Applicable Law, as applicable.

 

Governmental Approval”: all authorizations, consents, approvals, licenses and exemptions of, registrations and filings with, and required reports to, all Governmental Authorities.

 

Governmental Authority”: any federal, state, provincial, territorial, municipal, foreign or other governmental department, agency, commission, board, bureau, court, tribunal, instrumentality, political subdivision, authority, corporation or body, regulatory or self-regulatory organization or other entity or officer exercising executive, legislative, judicial, statutory, regulatory or administrative functions for or pertaining to any government or court (including any supranational bodies such as the European Union), in each case whether it is or is not associated with Canada, the United Kingdom, the United States or any state, province, district or territory thereof, or any other foreign entity or government.

 

Guarantee”: each guarantee agreement including the guarantee under Section 5.10 of this Agreement executed by a Guarantor in favor of Agent guaranteeing all or any portion of the Secured Obligations.

 

Guarantee Obligations”: as to any Person, any obligation of such Person guaranteeing or intended to guarantee, or having the economic effect of guaranteeing, any Indebtedness or other obligations of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, including any obligation of such Person, whether or not contingent, (a) to purchase or pay any such Indebtedness or other obligations or any property constituting direct or indirect security therefor, (b) to advance or supply funds (i) for the purchase or payment of any such Indebtedness or other obligations or (ii) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (c) to purchase property, securities or services primarily for the purpose of assuring the owner of any such Indebtedness of the ability of the primary obligor to make payment of such Indebtedness or other obligations or (d) otherwise to assure or hold harmless the owner of such Indebtedness or other obligations against loss in respect thereof; provided, however, that the term “Guarantee Obligations” shall not include endorsements of instruments for deposit or collection in the Ordinary Course of Business or customary and reasonable indemnity obligations in effect on the Closing Date or entered into in connection with any acquisition or disposition of assets permitted under this Agreement (other than such obligations of the Unit Subsidiary and other than such obligations with respect to Indebtedness). The amount of any Guarantee Obligation (other than in respect of the Secured Obligations) shall be deemed to be an amount equal to the stated or determinable amount of the Indebtedness or other obligations in respect of which such Guarantee Obligation is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof (assuming such Person is required to perform thereunder) as determined by such Person in good faith.

 

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Guarantor Payment”: as defined in Section 5.10.3(b).

 

Guarantors”: Canadian Guarantors, UK Guarantors, US Guarantors and each other Person who guarantees payment or performance of any Secured Obligations.

 

Hazardous Materials”: (a) any petroleum or petroleum products, radioactive materials, friable asbestos, urea formaldehyde foam insulation, transformers or other equipment that contain dielectric fluid containing regulated levels of polychlorinated biphenyls, and radon gas; (b) any chemicals, materials or substances defined as or included in the definition of “hazardous substances”, “hazardous waste”, “hazardous materials”, “extremely hazardous waste”, “restricted hazardous waste”, “toxic substances”, “toxic pollutants”, “contaminants”, or “pollutants”, or words of similar import, under any applicable Environmental Law; and (c) any other chemical, material or substance which is prohibited, limited or regulated as harmful or deleterious by any Environmental Law.

 

Hedge Agreement”: an Interest Rate Agreement, Currency Agreement, Commodity Agreement or other swap or hedging agreement entered into in the ordinary course of any Borrower’s or any of its Restricted Subsidiaries’ businesses.

 

HMT”: Her Majesty’s Treasury of the United Kingdom.

 

Holdings”: as defined in the preamble to this Agreement.

 

IFRS”: International Financial Reporting Standards, as adopted by the International Accounting Standards Board and/or the European Union, as in effect from time to time, provided, that (i) in no event shall any lease be deemed a capital lease for purposes of this Agreement if such lease would have been categorized as an operating lease as determined in accordance with IFRS prior to giving effect to the IFRS 16 and (ii) for the avoidance of doubt, all lease liabilities related to operating leases shall not constitute Indebtedness and all payments under and in respect of operating leases shall not constitute Consolidated Fixed Charges.

 

Increase Date”: as defined in Section 2.1.9(c).

 

Indebtedness”: with respect to any Person shall mean (a) all indebtedness of such Person for borrowed money and all obligations of such Person evidenced by bonds, debentures notes, loan agreements or other similar instruments, (b) the deferred purchase price of assets or services, (c) the face amount of all letters of credit issued for the account of such Person and, without duplication, all drafts drawn thereunder, (d) all Indebtedness of a Person of the type described in clauses (a), (b), (c), (e), (f) and (g) of this definition secured by any Lien on any property owned by such Person, whether or not such Indebtedness has been assumed (limited to the lesser of the principal amount of such Indebtedness and the fair market value of the property subject to such Lien as determined by the Administrative Borrower in good faith), (e) all Capitalized Lease Obligations of such Person, (f) all net obligations of such Person under interest rate swap, cap or collar agreements, interest rate future or option contracts, currency swap agreements, currency future or option contracts, commodity price protection agreements or other commodity price hedging agreements and other similar agreements (but taking into account only the mark-to-market value or, if any actual amount is due as a result of the termination or close-out of such transaction, that amount); and (g) without duplication, all Guarantee Obligations of such Person; provided that Indebtedness shall not include (i) trade payables and accrued expenses, in each case arising in the Ordinary Course of Business, (ii) deferred or prepaid revenue, (iii) purchase price holdbacks in respect of a portion of the purchase price of an asset to satisfy warranty or other unperformed obligations of the respective seller; and (iv) indebtedness of any Parent Entity of WS International appearing on the consolidated balance sheet of WS International by reason of push-down accounting under GAAP.

 

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Indemnified Taxes”: Taxes other than Excluded Taxes and Other Taxes.

 

Indemnitees”: Agent Indemnitees, Lender Indemnitees, Fronting Bank Indemnitees and Bank of America Indemnitees.

 

Information”: as defined on Section 13.12.

 

Initial Borrowers”: each of those entities on Schedule 1 identified as an Initial Borrower.

 

Initial Canadian Borrowers”: each of those entities on Schedule 1 identified as an Initial Canadian Borrower.

 

Initial Canadian Guarantors”: each of those entities on Schedule 1 identified as an Initial Canadian Guarantor.

 

Initial Guarantors”: each of those entities on Schedule 1 identified as an Initial Guarantor.

 

Initial UK Borrowers”: each of those entities on Schedule 1 identified as an Initial UK Borrower.

 

Initial UK Guarantors”: each of those entities on Schedule 1 identified as an Initial UK Guarantor.

 

Initial US Borrowers”: each of those entities on Schedule 1 identified as an Initial US Borrower.

 

Initial US Guarantors”: each of those entities on Schedule 1 identified as an Initial US Guarantor.

 

Insolvency Proceeding”: (i) any case or proceeding, application, meeting convened, resolution passed, proposal, corporate action or any other proceeding commenced by or against a Person under any state, provincial, territorial, federal or foreign law for, or any agreement of such Person to, (a) the entry of an order for relief under the US Bankruptcy Code, or any other steps being taken under any other insolvency, debtor relief, bankruptcy, receivership, debt adjustment law or other similar law (whether state, provincial, territorial, federal or foreign), including the Bankruptcy and Insolvency Act (Canada), the CCAA, the Winding-Up and Restructuring Act (Canada) and the UK Insolvency Act; (b) the appointment of a Creditor Representative for such Person or any part of its Property; (c) an assignment or trust mortgage for the benefit of creditors; (d) the winding-up or strike off of the Person; and/or (e) a suspension of payment, moratorium of any debts, official assignment, composition or arrangement with a Person’s creditors; and (ii) in the case of a UK Loan Party, any corporate action, legal proceedings or other procedure commenced or other step taken (including the making of an application, the presentation of a petition, the filing or service of a notice or the passing of a resolution) in relation to (A) such UK Loan Party being adjudicated or found insolvent, (B) the suspension of payments, a moratorium of any indebtedness, winding-up, dissolution, administration or reorganization (by way of voluntary arrangement, scheme of arrangement, restructuring plan or otherwise) of such UK Loan Party other than a solvent liquidation or reorganization of such UK Loan Party, the terms of which have been previously approved in writing by Agent, (C) a composition, assignment or arrangement with any class of creditors of such UK Loan Party or (D) the appointment of a liquidator, trustee in bankruptcy, receiver, administrator, administrative receiver, compulsory manager, monitor or other similar officer in respect of such UK Loan Party or any of its assets.

 

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Intellectual Property Security Agreements”: each trademark security agreement, patent security agreement and copyright security agreement, substantially in the forms attached as exhibits to the US Security Agreement, required to be executed and delivered by a US Loan Party under the terms of the US Security Agreement.

 

Intercompany Note”: an intercompany promissory note, duly executed and delivered substantially in the form of Exhibit L (or such other form as shall be reasonably satisfactory to Agent), with blanks completed in conformity herewith.

 

Intercreditor Agreement”: that certain Intercreditor Agreement dated as of the Closing Date among Agent, Deutsche Bank Trust Company Americas, in its capacity as Initial Second Lien Representative and Initial Second Lien Collateral Agent, Deutsche Bank Trust Company Americas, in its capacity as the 2018 Additional Second Lien Representative and the 2018 Additional Second Lien Collateral Agent (as those terms are defined therein) and acknowledged and agreed to by the Loan Parties substantially in the form of Exhibit J as the same may be amended, supplemented or otherwise modified from time to time.

 

Interest Coverage Ratio”: for any Test Period, and subject to Section 1.7, the ratio of (a) Consolidated EBITDA for such Test Period to (b) to the extent paid in cash during such Test Period, Consolidated Interest Expense for such Test Period.

 

Interest Period”: as defined in Section 3.1.4.

 

Interest Period Loan”: a Canadian BA Rate Loan or a LIBOR Loan.

 

Interest Rate Agreement”: any interest rate swap agreement, interest rate cap agreement, interest rate collar agreement, interest rate hedging agreement or other similar agreement or arrangement, each of which is for the purpose of hedging the interest rate exposure associated with any Borrower’s and its Subsidiaries’ operations and not for speculative purposes.

 

Inventory”: as defined in the UCC, the PPSA or any other Applicable Law, as applicable, and in any event including all goods intended for sale, lease, display or demonstration; all goods provided under a contract for services; all work in process; and all raw materials, and other materials and supplies of any kind that are or could be used in connection with the manufacture, transformation, printing, packing, shipping, advertising, sale, lease or furnishing of such goods, or otherwise used or consumed in a Loan Party’s business (but excluding Rental Equipment).

 

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Investment”: for any Person: (a) the acquisition (whether for cash, property, services or securities or otherwise) of Stock, other Equity Interests, bonds, notes, debentures, partnership or other ownership interests, debt instruments convertible into Equity Interests or other securities of any other Person (including any “short sale” or any sale of any securities at a time when such securities are not owned by the Person entering into such sale); (b) the making of any advance, loan or other extension of credit or capital contribution (including contribution to reserves) to, investment in, or assumption of debt of, any other Person (including the purchase of property from another Person subject to an understanding or agreement, contingent or otherwise, to resell such property to such Person); (c) the purchase or other acquisition (in one transaction or a series of transactions) of assets of another Person that constitute a business unit or all or a substantial part of the business of, such Person; or (d) the entering into of any guarantee of, or other contingent obligation with respect to, Indebtedness of another Person.

 

IRS”: the United States Internal Revenue Service.

 

ITA”: means the United Kingdom Income Tax Act 2007.

 

Joint Lead Arrangers”: BofA Securities, Inc.; Deutsche Bank Securities Inc.; JPMorgan Chase Bank, N.A.; ING Capital LLC; BBVA USA; Bank of the West; PNC Capital Markets LLC; MUFG Union Bank, N.A.; M&T Bank; and NYCB Specialty Finance Company, LLC in their respective capacities as joint lead arrangers and joint bookrunners hereunder, and BMO Capital Markets Corp., in its capacity as joint bookrunner hereunder.

 

Junior Debt”: any Indebtedness of a Loan Party or Restricted Subsidiary permitted hereunder that is unsecured, is secured by a Lien on a junior basis to the Liens securing the Secured Obligations or is Subordinated Indebtedness.

 

LC Conditions”: the Canadian LC Conditions, the UK LC Conditions and/or the US LC Conditions, as applicable.

 

LC Document”: any of the Canadian LC Documents, the UK LC Documents and/or the US LC Documents, as the context requires.

 

LC Obligations”: the Canadian LC Obligations, the UK LC Obligations and/or the US LC Obligations, as the context requires.

 

LCT Dividend Reserve”: as defined in Section 1.8.

 

LCT Election”: as defined in Section 1.8.

 

LCT Test Date”: as defined in Section 1.8.

 

Lender Indemnitees”: Lenders (including, for the avoidance of doubt, any applicable branches thereof), Affiliates of Lenders and their respective officers, directors, members, partners, employees, agents, advisors and other representatives.

 

Lenders”: as defined in the preamble to this Agreement, including (a) Bank of America and its Affiliates and branches in their respective capacities as the Canadian Swingline Lender, the UK Swingline Lender and the US Swingline Lender, (b) each Revolver Lender listed on Schedule 2.1.1(a) or Schedule 2.1.1(b) as of the date hereof and (c) where applicable, any Fronting Bank and any other Person who hereafter becomes a “Lender” pursuant to an Assignment and Acceptance.

 

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Lending Office”: the office designated as such by the Applicable Lender at the time it becomes party to this Agreement or thereafter by notice to Agent and the Administrative Borrower.

 

Letter-of-Credit Right”: as defined in the UCC, and in any event shall mean a right to payment or performance under a letter of credit, whether or not the beneficiary has demanded or is at the time entitled to demand payment or performance.

 

Letters of Credit”: the Canadian Letters of Credit, the UK Letters of Credit and/or the US Letters of Credit, as the context requires. Letters of Credit include the Existing Letters of Credit.

 

LIBOR”: the per annum rate of interest, determined by Agent at or about 11:00 a.m. (London time) two Business Days prior to commencement of an Interest Period, for a term comparable to such Interest Period, equivalent to the London interbank offered rate administered by ICE Benchmark Administration Limited for the applicable currency, or comparable or successor rate approved by Agent in consultation with the Administrative Borrower, as published on the LIBOR Screen Rate; provided, that any such comparable or successor rate shall be applied by Agent, if administratively feasible, in a manner consistent with market practice. If the Board of Governors imposes a Reserve Percentage with respect to LIBOR deposits in Dollars, then LIBOR for Dollars shall be the foregoing rate, divided by 1 minus the Reserve Percentage. In no event shall LIBOR be less than zero.

 

LIBOR Loan”: Revolver Loans having a common currency that bear interest based on LIBOR and have a common length and commencement of Interest Period; provided, however, that a Canadian Base Rate Loan bearing interest as set forth in clause (c) of the definition of Canadian Base Rate or a US Base Rate Loan bearing interest as set forth in clause (c) of the definition of US Base Rate or a UK Base Rate Loan, shall not, in each case, constitute a LIBOR Loan.

 

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

 

LIBOR Successor Rate”: has the meaning specified in Section 3.6(b).

 

LIBOR Successor Rate Conforming Changes”: means, with respect to any proposed LIBOR Successor Rate for an applicable currency, any conforming changes to the definition of Base Rate, Interest Period, timing and frequency of determining rates and making payments of interest and other technical, administrative or operational matters as may be appropriate, in the discretion of Agent, to reflect the adoption and implementation of such LIBOR Successor Rate and to permit the administration thereof by Agent in a manner substantially consistent with market practice for such applicable currency (or, if Agent determines that adoption of any portion of such market practice for such applicable currency is not administratively feasible or that no market practice for the administration of such LIBOR Successor Rate for such applicable currency exists, in such other manner of administration as Agent determines is reasonably necessary in connection with the administration of this Agreement).

 

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Lien”: any mortgage, pledge (including, without limitation, disclosed, undisclosed, possessory and non-possessory), security interest, hypothecation, assignment, statutory trust, deemed trust, privilege, lien, charge, bailment or similar encumbrance, whether statutory, based on common law, contract or otherwise, and including any option or agreement to give any of the foregoing, any filing of or agreement to give any financing statement under the Uniform Commercial Code or PPSA (or equivalent statutes) of any jurisdiction to evidence any of the foregoing, any conditional sale or other title retention agreement, any reservation of ownership or any lease in the nature thereof.

 

Limited Condition Transaction”: any Permitted Acquisition or other similar Investment, irrevocable debt repurchase, repayment or redemption, or Dividend (including, in each case, the incurrence of any Indebtedness contemplated or incurred in connection therewith), in each case, permitted hereunder by a Borrower or one or more of its Restricted Subsidiaries whose consummation is not conditioned on the availability of, or on obtaining, third party financing.

 

Line Cap”: at any time, the lesser of (i) the aggregate Revolver Commitments and (ii) the aggregate Borrowing Base.

 

Loan”: a Revolver Loan and/or Swingline Loan, as the context requires.

 

Loan Account”: as defined in Section 5.7.1.

 

Loan Documents”: this Agreement, the Other Agreements and the Security Documents.

 

Loan Parties”: the Canadian Loan Parties, the UK Loan Parties, and the US Loan Parties, collectively, and “Loan Party” means any of the Loan Parties, individually. For the avoidance of doubt, except to the extent provided in clause (d) of the definition of Excluded Subsidiary, no Excluded Subsidiary shall be a Loan Party hereunder.

 

Loan Party Group”: a group consisting of (a) the Non-US Loan Parties or (b) the US Loan Parties, as the context requires.

 

Loan Party Group Obligations”: with respect to (a) all Non-US Loan Parties, the Canadian Obligations and the UK Obligations and (b) all US Loan Parties, the US Obligations.

 

Local Time”: prevailing Eastern time in the United States (or, (i) with respect to UK Base Rate Loans, prevailing time in London, England and (ii) with respect to Section 4.1.1, prevailing time in Phoenix, Arizona).

 

Market Capitalization”: shall mean an amount equal to (i) the total number of issued and outstanding shares of common (or common equivalent) Equity Interests of Holdings or a Parent Entity on the date of the declaration of the relevant Dividend multiplied by (ii) the arithmetic mean of the closing prices per share of the common (or common equivalent) Equity Interests on the principal securities exchange on which such common (or common equivalent) Equity Interests are traded for 30 consecutive trading days immediately preceding the date of declaration of such Dividend.

 

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Master Lease Agreements”: any lease agreement between a US Loan Party and the Unit Subsidiary pursuant to which Non-Certificated Units from time to time held by the Unit Subsidiary are leased to another US Loan Party.

 

Material Adverse Effect”: a material adverse effect on (a) the operations, business, assets, properties or financial condition of the Borrowers, the Guarantors and their respective Subsidiaries, taken as a whole; (b) the rights and remedies of Agent, any Fronting Bank or any Lender under any of the Loan Documents or (c) the ability of the Borrowers or the Guarantors, taken as a whole, to perform the payment obligations of the Borrowers or the Guarantors under any of the Loan Documents to which a Borrower or a Guarantor is a party.

 

Material Real Estate”: subject to the proviso in Section 9.1.12(e), any parcel of Real Estate located in the United States and owned in fee simple by any US Loan Party with a fair market value in excess of $25,000,000.

 

Material Subsidiary”: at any date of determination, each Restricted Subsidiary of WS International (a) whose total assets (other than intercompany receivables) at the last day of the Test Period ending on the last day of the most recent fiscal period for which financial statements have been delivered pursuant to clause (a) or (b) of Section 9.1.1 were equal to or greater than 2.5% of the Consolidated Total Assets of WS International and its Restricted Subsidiaries at such date or (b) whose gross revenues (other than revenues generated from sales to WS International or any Restricted Subsidiary) for such Test Period were equal to or greater than 2.5% of the consolidated gross revenues of WS International and its Restricted Subsidiaries for such period, in each case determined in accordance with GAAP; provided, that in the event that the Consolidated Total Assets or gross revenues as at such date or for such period of WS International’s Restricted Subsidiaries that are not Material Subsidiaries, taken together, comprise more than 7.5% of Consolidated Total Assets of WS International and its Restricted Subsidiaries as at such date or more than 7.5% of gross revenues of WS International and its Restricted Subsidiaries for such period, the Administrative Borrower will designate one or more of such Restricted Subsidiaries to be a Material Subsidiary as may be necessary such that the foregoing 7.5% limits shall not be exceeded, and any such Restricted Subsidiary shall thereafter be deemed to be a Material Subsidiary. Notwithstanding the foregoing, each Borrower shall at all times be deemed to be a Material Subsidiary.

 

Maturity Reserve”: a Reserve with respect to any Indebtedness of a Loan Party or any Restricted Subsidiary with a principal amount in excess of $100,000,000 that remains outstanding as of the date that is 91 days prior to the maturity date of such Indebtedness, provided that the amount of such Reserve shall be no more than the aggregate principal amount of such Indebtedness. The maximum amount of the Maturity Reserve with respect to any such Indebtedness is the aggregate principal amount of such Indebtedness as of the date that is 91 days prior to the maturity date of such Indebtedness (or such lesser amount as Agent may agree). The Maturity Reserve with respect to any such Indebtedness shall become effective no earlier than the 91st day prior to the maturity date of such Indebtedness.

 

Maximum Multicurrency Facility Amount”: on any date of determination, the Multicurrency Facility Commitments on such date (after giving effect to (i) any reductions in the Multicurrency Facility Commitments pursuant to Section 2.1.3, (ii) any Reallocation pursuant to Section 2.1.6 and/or (iii) any Multicurrency Facility Commitment Increase made pursuant to and in accordance with Section 2.1.9(a)).

 

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Maximum Revolver Facility Amount”: the sum of (a) Maximum Multicurrency Facility Amount and (b) Maximum US Facility Amount.

 

Maximum US Facility Amount”: on any date of determination, the aggregate US Facility Commitments on such date (after giving effect to (i) any reductions in the US Facility Commitments pursuant to Section 2.1.3, (ii) any Reallocation pursuant to Section 2.1.6 and/or (iii) any US Facility Commitment Increase made pursuant to and in accordance with Section 2.1.9(b)).

 

Minimum Extension Condition”: as defined in Section 2.1.8(b).

 

MMI”: as defined in the recitals to this Agreement.

 

Moody’s”: Moody’s Investors Service, Inc., and its successors.

 

Mortgage”: each mortgage, deed of trust or deed to secure debt pursuant to which any US Loan Party grants to Agent, for the benefit of Secured Parties, Liens upon the Material Real Estate owned by such US Loan Party, as security for the applicable Secured Obligations.

 

“Multicurrency Facility”: the credit facility provided by the Multicurrency Facility Lenders to the Borrowers hereunder.

 

Multicurrency Facility Availability”: as of any date of determination, the difference between:

 

(a)            the lesser of (i) the Multicurrency Facility Commitments and (ii) the Multicurrency Facility Borrowing Base as of such date of determination, minus

 

(b)            the Dollar Equivalent of the principal balance of all Multicurrency Facility Loans and all Multicurrency LC Obligations as of such date of determination (other than, if no Event of Default exists, those constituting charges owing to any Canadian Fronting Bank or UK Fronting Bank).

 

Multicurrency Facility Borrowing Base”: collectively, (a) the Canadian Borrowing Base, (b) the UK Borrowing Base and (c) the US Borrowing Base; provided that for purposes of determining the Multicurrency Facility Borrowing Base, the US Borrowing Base shall be deemed to be reduced by the amount of the Total US Facility Exposure.

 

Multicurrency Facility Commitment”: for any Multicurrency Facility Lender, its obligation to make Multicurrency Facility Loans to the Borrowers and to participate in Multicurrency LC Obligations up to the maximum principal amount shown on Schedule 2.1.1(a), or, in the case of any Additional Multicurrency Facility Lender, up to the maximum principal amount indicated on the joinder agreement executed and delivered by such Additional Multicurrency Facility Lender pursuant to Section 2.1.9(c)(iv) or as hereafter determined pursuant to each Assignment and Acceptance to which it is a party, as such Multicurrency Facility Commitment may be adjusted from time to time in accordance with the provision of Sections 2.1.3, 2.1.9 or 10.1.

 

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Multicurrency Facility Commitment Increase”: as defined in Section 2.1.9(a).

 

Multicurrency Facility Commitment Termination Date”: the earliest of (a) the Revolver Facility Termination Date, (b) the date on which the Administrative Borrower terminates or reduces to zero all of the Multicurrency Facility Commitments pursuant to Section 2.1.3(a), and (c) the date on which the Multicurrency Facility Commitments are terminated pursuant to Section 10.1. From and after the Multicurrency Facility Commitment Termination Date, the Borrowers shall no longer be entitled to request a Multicurrency Commitment Increase pursuant to Section 2.1.9 hereof.

 

Multicurrency Facility Lender”: each Lender that has a Multicurrency Facility Commitment (including each Additional Multicurrency Facility Lender ) and each other Lender that acquires an interest in the Multicurrency Facility Loans and/or Multicurrency LC Obligations pursuant to an Assignment and Acceptance.

 

Multicurrency Facility Loan”: (i) a Revolver Loan made by Multicurrency Facility Lenders to a Borrower pursuant to Section 2.1.1(a), which Revolver Loan shall, (a) if denominated in Canadian Dollars, be borrowed by a Canadian Borrower and be either a Canadian Prime Rate Loan or Canadian BA Rate Loan, (b) if denominated in Dollars and (x) borrowed by a Canadian Borrower, be either a Canadian Base Rate Loan or LIBOR Loan, (y) borrowed by a UK Borrower, be either a UK Base Rate Loan or LIBOR Loan or (z) borrowed by a US Borrower, be either a US Base Rate Loan or LIBOR Loan or (c) if denominated in Euros or Pounds Sterling, be borrowed by a UK Borrower and be a LIBOR Loan, in each case as selected by the Administrative Borrower, (ii) each Canadian Swingline Loan, (iii) each UK Swingline Loan, (iv) each Multicurrency Overadvance Loan, and (v) each Multicurrency Protective Advance.

 

Multicurrency Facility Note”: the promissory notes, if any, executed by Borrowers in favor of each Multicurrency Facility Lender to evidence the Multicurrency Facility Loans funded from time to time by such Multicurrency Facility Lender, which shall be substantially in the form of Exhibit B-1 to this Agreement or such other form as Agent may agree, together with any replacement or successor notes therefor.

 

Multicurrency Facility Obligations”: all Obligations of the Loan Parties pertaining to Multicurrency Facility Commitments, Multicurrency Facility Loans borrowed by any Borrower, Canadian LC Obligations and UK LC Obligations (including, for the avoidance of doubt, any guarantees in respect thereof).

 

Multicurrency LC Obligations”: collectively, the Canadian LC Obligations and the UK LC Obligations.

 

Multicurrency Overadvance”: as defined in Section 2.1.4(a).

 

Multicurrency Overadvance Loan”: a Loan made to a Borrower when a Multicurrency Overadvance exists or is caused by the funding thereof.

 

Multicurrency Protective Advances”: as defined in Section 2.1.5(a).

 

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Multicurrency Secured Parties”: Agent, any Canadian Fronting Bank, any UK Fronting Bank, the Multicurrency Facility Lenders and the Secured Bank Product Providers of Bank Products to Canadian Loan Parties or UK Loan Parties, and the other Secured Parties that are the holders of, or beneficiaries of, any Guarantee of any Multicurrency Facility Obligations.

 

Multiemployer Plan”: any employee benefit plan of the type described in Section 4001(a)(3) of ERISA and subject to Title IV of ERISA, to which any US Loan Party or ERISA Affiliate domiciled in the US makes or is obligated to make contributions, or during the preceding five plan years has made or been obligated to make contributions with respect to employees in the US.

 

Net Orderly Liquidation Value”: the orderly liquidation value (net of costs and expenses estimated to be incurred in connection with such liquidation) of the Eligible Rental Equipment or Eligible Machinery and Equipment that is estimated to be recoverable in an orderly liquidation of such Eligible Rental Equipment or Eligible Machinery and Equipment, as determined from time to time by reference to the most recent Appraisal. The Net Orderly Liquidation Value percentage shall be, for the purposes of any Borrowing Base calculation and any category of assets, the fraction, expressed as a percentage (a) the numerator of which is the Net Orderly Liquidation Value of the aggregate amount of such category of Eligible Rental Equipment or Eligible Machinery and Equipment and (b) the denominator of which is the net book value of the aggregate amount such category of Eligible Rental Equipment or Eligible Machinery and Equipment subject to such Appraisal.

 

New Appraisals and Field Exams”: the New Mobile Mini Appraisals and Field Exams and/or the New WS Appraisals and Field Exams, as the context requires.

 

New Lender”: each Lender that becomes a party to this Agreement after the Closing Date.

 

New Loan Party”: Any Person that executes a supplement or joinder to this Agreement substantially in the form of Exhibit H and becomes a Loan Party under this Agreement pursuant to Section 9.1.12(a) or (b), Section 9.2.1(b)(ix) or Section 9.2.3(a).

 

New Mexican Units”: Units located in the State of New Mexico on the Closing Date for which a Certificate of Title has been issued but which are no longer required to be subject to a Certificate of Title under the laws of the State of New Mexico.

 

New Mobile Mini Appraisals and Field Exams”: the first appraisals and field exams to be completed after the Closing Date with respect to the assets of MMI and its Subsidiaries pursuant to Section 9.1.14.

 

New WS Appraisals and Field Exams”: the first appraisals and field exams to be completed after the Closing Date with respect to the assets of Holdings and those Subsidiaries that were its Subsidiaries prior to the Closing Date pursuant to Section 9.1.14.

 

Non-Bank Certificate”: as defined in Section 5.9.2.

 

Non-Certificated Units”: each Unit that is neither the subject of, nor is required to be the subject of, a Certificate of Title under the motor vehicle or other applicable statute of the state in which such Unit was located when it was first acquired by any US Loan Party or any other state where such Unit becomes permanently located while still owned by a US Loan Party.

 

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Non-US Loan Party”: each Canadian Loan Party and each UK Loan Party, and “Non-US Loan Parties” means all such Persons, collectively.

 

Non-US Subsidiary”: a Subsidiary of Holdings that is not a US Subsidiary.

 

Notice of Borrowing”: a Notice of Borrowing to be provided by the Administrative Borrower to request a Borrowing of Loans, in the form attached hereto as Exhibit D or otherwise in form reasonably satisfactory to Agent and the Administrative Borrower.

 

Notice of Conversion/Continuation”: a Notice of Conversion/Continuation to be provided by the Administrative Borrower to request a conversion or continuation of any Loans as Canadian BA Rate Loans or LIBOR Loans, in the form attached hereto as Exhibit E or otherwise in form reasonably satisfactory to Agent and the Administrative Borrower.

 

Obligations”: all (a) principal of and premium, if any, on the Loans, (b) LC Obligations and other obligations of the Loan Parties with respect to Letters of Credit, (c) interest, expenses, fees, indemnification obligations, Extraordinary Expenses and other amounts payable by the Loan Parties under the Loan Documents and (d) other Indebtedness, obligations and liabilities of any kind owing by the Loan Parties pursuant to the Loan Documents, whether now existing or hereafter arising, whether evidenced by a note or other writing, whether allowed or allowable in any Insolvency Proceeding (including, without limitation, any of the foregoing Obligations described in this definition that would have accrued or arisen but for the commencement of any Insolvency Proceeding of any Loan Party at the rate provided for in the respective Loan Documents, whether or not a claim for such is allowed or allowable against such Loan Party in any such proceeding) whether arising from an extension of credit, issuance of a letter of credit, acceptance, loan, guarantee, indemnification or otherwise, and whether direct or indirect, absolute or contingent, due or to become due, primary or secondary, or joint or several.

 

OFAC”: Office of Foreign Assets Control of the US Treasury Department.

 

Ordinary Course of Business”: with respect to any Person, the ordinary course of business of such Person, consistent in all material respects with past practices or, with respect to actions taken by such Person for which no past practice exists, consistent in all material respects with past practices of similarly situated companies, and, in each case, determined by such Person in good faith.

 

Organizational Documents”: with respect to any Person, its charter, certificate and/or articles of incorporation, continuation or amalgamation, bylaws, articles of organization, consolidated articles of association, limited liability agreement, operating agreement, members agreement, shareholders agreement, partnership agreement, certificate of partnership, certificate of formation, memorandum or articles of association, constitution, voting trust agreement, or similar agreement or instrument governing the formation or operation of such Person, including, with respect to any UK Loan Party, its “PSC register” (within the meaning of section 790C(10) of the UK Companies Act 2006).

 

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Original UK Treaty Lender”: as defined in the definition of “Borrower DTTP Filing”.

 

Other Agreement”: each Revolver Note; each LC Document; the Fee Letter; the Intercreditor Agreement; each Intercompany Note; each intercreditor or any intercompany subordination agreement relating to the Obligations; any amendments, supplements, waivers, reaffirmations, acknowledgements or other modifications to or of the foregoing; and any other document to which a Loan Party is a party which expressly states that it is to be treated as a “Loan Document” or “Other Agreement”.

 

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

 

Other Taxes”: all present or future stamp, registration or documentary Taxes, intangible, recording, filing or similar Taxes, or any other excise or property Taxes, charges or similar levies arising from any payment made under any Loan Document or from the execution, delivery, performance, registration or enforcement of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Sections 3.8 and 12.3.4).

 

Overadvance”: a Multicurrency Overadvance and/or a US Overadvance, as the context requires.

 

Overadvance Loan”: a Multicurrency Overadvance Loan and/or a US Overadvance Loan, as the context requires.

 

Parent”: WillScot Corporation, a Delaware corporation.

 

Parent Entity”: Parent or a Person that is a direct or indirect parent of Holdings that owns a majority on a fully diluted basis of the economic and voting interests in Holdings’ Equity Interests.

 

Participant”: as defined in Section 12.2.1.

 

Participant Register”: as defined in Section 12.2.1.

 

PATRIOT Act”: the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. No. 107-56, 115 Stat. 272 (2001).

 

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Payment Condition”:

 

(a)            immediately after giving effect to the Specified Transaction at issue, either:

 

(i)          (a) as of the date such Specified Transaction is effected and for each day during the prior 30 consecutive day period (based on daily Specified Excess Availability for such 30 consecutive day period), pro forma Specified Excess Availability after giving effect to such Specified Transaction shall be greater than the greater of (i) 10% of the Line Cap and (ii) $240,000,000 and (b) the Borrowers shall be in compliance with the Financial Performance Covenant (assuming, for the purposes of this determination, that a Financial Covenant Test Event has occurred) determined as of the most recent Test Period for which financial statements have been delivered pursuant to clause (a) or (b)(i) of Section 9.1.1 (on a trailing four quarter basis after giving pro forma effect to such Specified Transaction and each other Specified Transaction requiring pro forma effect under Section 1.7 that has occurred since the beginning of such four quarter period through the date of such Specified Transaction for which pro forma effect shall be given pursuant to Section 1.7); or

 

(ii)          as of the date such Specified Transaction is effected and for each day during the prior 30 consecutive day period (based on daily Specified Excess Availability for such 30 consecutive day period), pro forma Specified Excess Availability after giving effect to such Specified Transaction shall be greater than the greater of (i) 15% of the Line Cap and (ii) $360,000,000;

 

(b)            no Specified Default has occurred and is continuing before or after giving effect to such Specified Transaction; and

 

(c)            with respect to each Specified Transaction in an amount in excess of $200,000,000, receipt by Agent of a certificate, signed by a Senior Officer, certifying as to the matters set forth in clauses (a) and (b) above, together with, if requested by Agent, reasonably detailed relevant financial information in support of such calculations.

 

Payment Item”: each check, draft or other item of payment payable to a Loan Party, including those constituting proceeds of any Collateral.

 

PBA”: the Pensions Benefits Act (Ontario) or any other Canadian federal or provincial or territorial pension benefit standards legislation pursuant to which any Canadian Pension Plan is required to be registered.

 

PBGC”: the Pension Benefit Guaranty Corporation.

 

Perfection Certificate”: a certificate disclosing information regarding the Loan Parties in the form of Exhibit F or any other form approved by Agent.

 

Permitted Acquisition”: the acquisition, by purchase, merger, amalgamation, consolidation or otherwise, by any Borrower or any of the Restricted Subsidiaries (other than the Unit Subsidiary) of all or substantially all of the assets of, or business line, unit or division of, another Person or Persons or a majority of the outstanding Stock or other Equity Interest of any Person (or that increases the Stock or other Equity Interests of such Person held by such Borrower or Restricted Subsidiary), so long as (a) such acquisition shall result in the issuer of such Stock or other Equity Interests becoming a Restricted Subsidiary and a Guarantor, to the extent required by, and in accordance with, Section 9.1.12; (b) such acquisition shall result in Agent, for the benefit of the Secured Parties, being granted a Lien in any Stock, other Equity Interest or any assets so acquired, to the extent required by, and in accordance with, Section 9.1.12; (c) no Event of Default shall have occurred and be continuing immediately prior to or immediately after giving effect to such acquisition (or, in the case of a Limited Condition Transaction, at the Administrative Borrower’s option, at the time of the LCT Test Date); (d) the target of such acquisition shall be primarily in the same line of business as the Loan Parties or a Similar Business; (e) to the extent that the target of such acquisition becomes a Loan Party, substantially concurrently with such Person becoming a Loan Party, Agent shall have been provided with (x) such information as it shall reasonably request which is necessary to comply with the Patriot Act and AML Legislation and (y) any other information as it shall reasonably request and shall be reasonably available to complete its evaluation of any Person so acquired and any acquired Collateral; and (f) the Administrative Borrower shall have delivered to Agent a certificate signed by a Senior Officer certifying to Agent compliance with the conditions specified in clause (c) and, if the total consideration (other than any equity consideration) in respect of such acquisition exceeds $200,000,000, the Loan Parties shall have delivered, if requested by Agent, reasonably detailed financial information related to the acquisition.

 

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Notwithstanding the respective Borrowing Base definitions, in connection with and subsequent to any Permitted Acquisition, the Specified Assets acquired by the Loan Parties, or, subject to compliance with Section 9.1.12 of this Agreement, of the Person so acquired, may be included in the calculation of the Borrowing Base and thereafter if all criteria set forth in the definitions of Eligible Accounts, Eligible Container Inventory Held For Sale, Eligible Goods Inventory, Eligible Machinery and Equipment, Eligible Raw Materials Inventory, Eligible Real Property, Eligible Rental Equipment and Eligible Work-In-Process Container Inventory have been satisfied and Agent shall have received a field exam of any Person so acquired and collateral audit and appraisal of such Specified Assets acquired by the applicable Loan Party or Loan Parties or owned by such Person acquired by the applicable Loan Party or Loan Parties which shall be reasonably satisfactory in scope, form and substance to Agent; provided, that no field exam, collateral audit or appraisals shall be required for newly-acquired Specified Assets constituting less than 10% in the aggregate of the aggregate Borrowing Base in effect after giving effect to such acquisition.

 

Permitted Capped Debt”: Indebtedness in an aggregate principal amount not to exceed $500,000,000 in the aggregate outstanding at any one time.

 

Permitted Discretion”: the commercially reasonable credit judgment of Agent exercised in good faith in accordance with customary business practices for comparable asset-based lending transactions. In exercising such judgment as it relates to the establishment of Reserves or the establishment or adjustment of any ineligibility, Permitted Discretion will require that: (a) such establishment, adjustment or modification be based on the analysis of facts or events first occurring (including the coming into effect of any change in law) or discovered after the Closing Date that are materially different from the facts or events occurring or discovered on or prior to the Closing Date, unless the Administrative Borrower and Agent agree in writing, provided that, Reserves may be established during the period starting from the completion and delivery to Agent of the New WS Appraisals and Field Exams (after which, in accordance with Section 2.6(b), the Canadian Borrowing Base, the UK Borrowing Base and the US Borrowing Base shall be calculated in accordance with the definitions thereof) and ending upon the completion and delivery of the New Mobile Mini Appraisals and Field Exams (which shall also be accompanied by a new appraisal and field exam that has been conducted and delivered after the Closing Date with respect to the assets of Holdings and those Subsidiaries that were its Subsidiaries prior to the Closing Date pursuant to Section 9.1.14) based on analysis of facts or events occurring or discovered prior to the Closing Date, (b) the contributing factors to such establishment, adjustment or modification shall not duplicate (i) any other exclusionary criteria set forth in the definitions of Eligible Accounts, Eligible Goods Inventory, Eligible Machinery and Equipment, Eligible Raw Materials Inventory, Eligible Rental Equipment, Eligible Real Property or any other eligibility terms (including advance rates) as applicable (and vice versa) or (ii) any Reserves deducted in computing book value and (c) the amount of any such Reserve or ineligibility criteria so established or the effect of any adjustment or modification thereto shall be a reasonable quantification (as reasonably determined by Agent) of the incremental dilution of the Borrowing Base attributable to such contributing factors. Reserves will not be established or changed except upon at least five (5) Business Days’ prior written notice to the Administrative Borrower (during which period Agent shall be available to discuss any such proposed Reserve with the Administrative Borrower and the Administrative Borrower may take such actions as may be required to ensure that the event, condition or matter that is the basis of such Reserve no longer exists; provided, that the Borrowers may not borrow Revolver Loans or Swingline Loans or amend or request the issuance of Letters of Credit during such five (5) Business Day period in excess of the Line Cap (which shall be calculated assuming the effectiveness of such proposed Reserve)).

 

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Permitted Encumbrance” shall mean, with respect to any Real Estate that is subject to a Mortgage, such exceptions to title as are set forth in a lender's title insurance policy delivered with respect thereto, all of which exceptions must be reasonably acceptable to the Agent.

 

Permitted Investments”: shall mean:

 

(a)            securities issued or unconditionally guaranteed by the Canadian, UK or US government or any agency or instrumentality thereof, in each case having maturities of not more than two years from the date of acquisition thereof;

 

(b)            securities issued by any state of the United States of America, any province or territory of Canada, any country of the United Kingdom or any political subdivision of any such state, province, territory or country, or any public instrumentality thereof or any political subdivision of any such state, province, territory or country, or any public instrumentality thereof having maturities of not more than two years from the date of acquisition thereof and, at the time of acquisition, having an investment grade rating generally obtainable from either S&P or Moody’s (or, if at any time neither S&P nor Moody’s shall be rating such obligations, then from another nationally recognized rating service);

 

(c)            commercial paper issued by any Lender or any bank holding company owning any Lender;

 

(d)            commercial paper, marketable short-term money market and similar securities at the time of acquisition, having a rating of at least A-2 or the equivalent thereof by S&P or P-2 or the equivalent thereof by Moody’s (or, if at any time neither S&P nor Moody’s shall be rating such obligations, an equivalent rating from another nationally recognized rating service);

 

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(e)            domestic and LIBOR certificates of deposit or bankers’ acceptances maturing no more than two years after the date of acquisition thereof issued by any Lender or any other bank having combined capital and surplus of not less than $500,000,000 in the case of domestic banks;

 

(f)            repurchase agreements for underlying securities of the type described in clauses (a), (b) and (e) above entered into with any bank meeting the qualifications specified in clause (e) above or securities dealers of recognized national standing;

 

(g)            marketable short-term money market and similar funds (x) either having assets in excess of $250,000,000 or (y) having a rating of at least A-1 or P-1 from either S&P or Moody’s (or, if at any time neither S&P nor Moody’s shall be rating such obligations, an equivalent rating from another nationally recognized rating service);

 

(h)           United States Dollars, Canadian Dollars, Euros, Pounds Sterling or any national currency of any member state of the European Union or any other foreign currency held by the Loan Parties or the Restricted Subsidiaries in the Ordinary Course of Business;

 

(i)            Indebtedness or Preferred Stock issued by Persons with a rating of A- or higher from S&P or A3 or higher from Moody’s (or, if at the time, neither is issuing comparable ratings, then a comparable rating of another rating agency) with maturities of 12 months or less from the date of acquisition;

 

(j)            bills of exchange issued in the United States, Canada, the United Kingdom or any member state of the European Union eligible for rediscount at the relevant central bank and accepted by a bank (or any dematerialized equivalent);

 

(k)            Investments with average maturities of 12 months or less from the date of acquisition in money market funds rated AAA- (or the equivalent thereof) or better by S&P or Aaa3 (or the equivalent thereof) or better by Moody’s;

 

(l)            investment funds investing at least 95% of their assets in securities which are one or more of the types of securities described in clauses (a) through (k) above; and

 

(m)           in the case of Investments by any Non-US Subsidiary (other than the Canadian Borrowers and UK Borrowers) or Investments made in a country outside Canada, the UK and the US, Permitted Investments shall also include (i) direct obligations of the sovereign nation (or any agency thereof) in which such Restricted Non-US Subsidiary is organized, incorporated or established and is conducting business or where such Investment is made, or in obligations fully and unconditionally guaranteed by such sovereign nation (or any agency thereof), in each case maturing within two years after such date and having, at the time of the acquisition thereof, a rating equivalent to one of the two highest ratings from either S&P or Moody’s, (ii) investments of the type and maturity described in clauses (a) through (l) above of foreign obligors, which Investments or obligors (or the parents of such obligors) have ratings described in such clauses or equivalent ratings from comparable foreign rating agencies, (iii) shares of money market mutual or similar funds which invest exclusively in assets otherwise satisfying the requirements of this definition (including this clause (iii)) and (iv) other short-term investments utilized by such Non-US Subsidiaries in accordance with normal investment practices for cash management in investments analogous to the foregoing investments in clauses (a) through (l).

 

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Permitted Liens”: shall mean:

 

(a)            pledges, deposits or security by such Person under workmen’s compensation laws, unemployment insurance, employers’ health tax, and other social security laws or similar legislation or other insurance related obligations (including, but not limited to, in respect of deductibles, self-insured retention amounts and premiums and adjustments thereto) or indemnification obligations of (including obligations in respect of letters of credit or bank guarantees for the benefit of) insurance carriers providing property, casualty or liability insurance, or good faith deposits in connection with bids, tenders, contracts (other than for the payment of Indebtedness) or leases to which such Person is a party, or deposits to secure public or statutory obligations of such Person or deposits of cash or US government bonds to secure surety, stay, customs or appeal bonds to which such Person is a party, or deposits as security for the payment of rent, performance and return-of-money bonds and other similar obligations (including letters of credit issued in lieu of any such bonds or to support the issuance thereof and including those to secure health, safety and environmental obligations), in each case incurred in the Ordinary Course of Business;

 

(b)            Liens imposed by law or regulation, such as landlords’, carriers’, warehousemen’s and mechanics’, materialmen’s and repairmen’s Liens, contractors’, supplier of materials, architects’, and other like Liens, in each case for sums not yet overdue for a period of more than 30 days or that are being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards against such Person with respect to which such Person shall then be proceeding with an appeal or other proceedings for review if adequate reserves with respect thereto are maintained on the books of such Person in accordance with GAAP;

 

(c)            Liens for taxes, assessments or other governmental charges not yet overdue for a period of more than 30 days or not yet payable or subject to penalties for nonpayment or which are being contested in good faith by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of such Person in accordance with GAAP, or for property taxes on property if the Borrowers or one of their Subsidiaries has determined to abandon such property and if the sole recourse for such tax, assessment, charge, levy or claim is to such property;

 

(d)            Liens in favor of the issuers of performance, surety, bid, indemnity, warranty, release, appeal or similar bonds or with respect to other regulatory requirements or letters of credit or bankers’ acceptances and completion guarantees, in each case issued pursuant to the request of and for the account of such Person in the Ordinary Course of Business;

 

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(e)            minor survey exceptions, minor encumbrances, ground leases, easements or reservations of, or rights of others for, licenses, rights-of-way, servitudes, drains, sewers, electric lines, telegraph and telephone and cable television lines and other similar purposes, or zoning, building codes or other restrictions (including minor defects and irregularities in title and similar encumbrances) as to the use of real properties or Liens incidental to the conduct of the business of such Person or to the ownership of its properties which were not incurred in connection with Indebtedness and which do not in the aggregate materially impair their use in the operation of the business of such Person;

 

(f)            Liens securing Indebtedness permitted to be incurred (and, in the case of Section 9.2.1(a), secured) pursuant to Section 9.2.1(a) and Sections 9.2.1(b)(iv) (to the extent the underlying obligations that are being guaranteed are permitted to be secured), (vi), (viii), (ix), (xiii), (xx) and (xxi); provided, that (i) Liens securing Indebtedness permitted to be incurred pursuant to Section 9.2.1(b)(vi) and (xxi) extend only to the assets and Equity Interests purchased, leased, constructed or improved with the proceeds of such Indebtedness and the proceeds and products thereof (and, in the case of any Loan Party, Accounts and Chattel Paper of such Loan Party which are not included in the Borrowing Base and which arise from the lease by such Loan Party of equipment acquired by such Loan Party under Permitted Stand-Alone Capital Lease Transactions and the related Capital Lease Deposit Accounts), (ii) in the case of Non-US Loan Parties and Restricted Subsidiaries that are not Loan Parties, Liens securing Indebtedness permitted to be incurred pursuant to Section 9.2.1(a) and (b)(xx) extend only to the assets and Equity Interests of such Non-US Loan Parties and Restricted Subsidiaries that are not Loan Parties that are incurring or guaranteeing such Indebtedness; provided, further, that for purposes of Section 9.2.1(a) (unless such Indebtedness constitutes Capital Leases or other Purchase Money Indebtedness), this clause (f) shall be available to permit such Liens only to the extent that the conditions set forth in clause (ii)(A)(y) of the second proviso to Section 9.2.1(a) with respect to such secured Indebtedness are satisfied; provided, further, that Liens securing Indebtedness permitted to be incurred pursuant to Section 9.2.1(b)(viii) shall be limited to cash collateral in an amount of up to the greater of (x) $25,000,000 and (y) 0.5% of Consolidated Total Assets as of the last day of the most recently ended Test Period at any one time outstanding; and provided, further, that Liens securing Indebtedness permitted to be incurred pursuant to Section 9.2.1(b)(xiii) shall only secure obligations of up to the greater of (x) $15,000,000 and (y) 0.3% of Consolidated Total Assets as of the last day of the most recently ended Test Period at any one time outstanding;

 

(g)            Liens existing on the Closing Date or pursuant to agreements in existence on the Closing Date, provided, that to the extent such Liens are in excess of $50,000,000 in the aggregate, they are identified on Schedule 9.2.2 hereof;

 

(h)            Liens on property or shares of stock or other assets of a Person at the time such Person becomes a Subsidiary; provided, however, such Liens are not created or incurred in connection with, or in contemplation of, such other Person becoming such a Subsidiary; provided, further, however, that such Liens may not extend to any (i) Specified Assets (other than Real Estate) (except for Liens securing Purchase Money Indebtedness and Capital Leases in respect of such Specified Assets in an aggregate amount, when combined with the corresponding basket in the second proviso in clause (i) below, not greater than $300,000,000 at any time outstanding) or (ii) other property owned by such Person (other than, in the case of this clause (ii), (w) after-acquired property that is affixed or incorporated into the property covered by such Lien, (x) after-acquired property subject to a Lien securing such Indebtedness to the extent the terms of the Indebtedness secured thereby require or include a pledge of after-acquired property (it being understood that such requirement shall not be permitted to apply to any property to which such requirement would not have applied but for such acquisition), (y) the proceeds or products of such property, shares of stock or assets or improvements thereon and (z) Capital Lease Deposit Accounts);

 

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(i)            Liens on property or other assets at the time such Person acquired such property or other assets, including any acquisition by means of a merger, amalgamation or consolidation with or into WS International or any of the Restricted Subsidiaries; provided, however, that such Liens are not created or incurred in connection with, or in contemplation of, such acquisition, merger, amalgamation or consolidation; provided, further, however, that the Liens may not extend to any Specified Assets (other than Real Estate) (except for Liens securing Purchase Money Indebtedness and Capital Leases in respect of such Specified Assets in an aggregate amount, when combined with the corresponding basket in the proviso in clause (h) above, not greater than $300,000,000 at any time outstanding) or to any other property owned by the Borrowers or any of the Restricted Subsidiaries (other than the proceeds or products of such assets or property or improvements thereon);

 

(j)            Liens on specific items of inventory or other goods of any Person (and any proceeds thereof) securing such Person’s obligations in respect of bankers’ acceptances or trade letters of credit issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods;

 

(k)            leases, subleases, licenses or sublicenses (including of intellectual property) granted to others in the Ordinary Course of Business which do not materially interfere with the ordinary conduct of the business of WS International or any of the Restricted Subsidiaries;

 

(l)            Liens arising from Uniform Commercial Code (or equivalent statute) financing statement filings and/or PPSA financing statements or similar filings entered into by WS International and the Restricted Subsidiaries regarding operating leases entered into in the Ordinary Course of Business;

 

(m)            Liens on vehicles or equipment (other than Rental Equipment of the Loan Parties) of WS International or any of the Restricted Subsidiaries created in the Ordinary Course of Business;

 

(n)            Liens on accounts receivable and related assets of the Restricted Subsidiaries (other than Loan Parties) incurred in connection with a Qualified Receivables Transaction;

 

(o)            Liens to secure any modification, refinancing, refunding, extension, renewal or replacement (or successive refinancing, refunding, extensions, renewals or replacements) as a whole, or in part, of any Indebtedness secured by any Lien referred to in the foregoing clauses (f), (g), (h) or (i); provided, however, that (i) such new Lien shall be limited to all or part of the same property that secured the original Lien (plus accessions, additions and improvements on such property, including (x) after-acquired property that is affixed or incorporated into the property covered by such Lien, (y) after-acquired property subject to a Lien securing such Indebtedness, the terms of which Indebtedness require or include a pledge of after-acquired property (it being understood that such requirement shall not be permitted to apply to any property to which such requirement would not have applied but for such modification, refinancing, refunding, extension, renewal or replacement) and (z) the proceeds and products thereof) and (ii) the Indebtedness secured by such Lien at such time is not increased to any amount greater than the sum of (x) the outstanding principal amount (or accreted value, if applicable) or, if greater, committed amount of the Indebtedness described under such clauses (f), (g), (h) or (i) at the time the original Lien became a Permitted Lien under this Agreement, and (y) an amount necessary to pay any fees and expenses, including any Refinancing Costs, related to such modification, refinancing, refunding, extension, renewal or replacement;

 

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(p)            deposits made or other security provided in the Ordinary Course of Business to secure liability to insurance carriers;

 

(q)            other Liens securing obligations which do not exceed an amount at any one time outstanding equal to the greater of (x) $300,000,000 and (y) 6.0% of Consolidated Total Assets as of the last day of the most recently ended Test Period; provided, that, to the extent any such Liens cover the Collateral (unless such Indebtedness constitutes Capital Leases or other Purchase Money Indebtedness), this clause (q) shall be available to permit such Liens only to the extent that such Liens are subordinated to the Liens securing the Secured Obligations pursuant to the terms of the Intercreditor Agreement (and the holders of such Indebtedness (or their duly appointed agent or other representative) shall have become party to the Intercreditor Agreement);

 

(r)            Liens securing judgments for the payment of money not constituting an Event of Default under Section 10.1.10 so long as such Liens are adequately bonded and any appropriate legal proceedings that may have been duly initiated for the review of such judgment have not been finally terminated or the period within which such proceedings may be initiated has not expired;

 

(s)           Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods in the Ordinary Course of Business;

 

(t)            Liens (a) of a collection bank arising under Section 4-210 of the Uniform Commercial Code (or any comparable or successor provision) on items in the course of collection, (b) attaching to commodity trading accounts or other brokerage accounts incurred in the Ordinary Course of Business, and (c) in favor of banking institutions arising as a matter of law or their standard business terms and conditions encumbering deposits (including the right of setoff) and which are within the general parameters customary in the banking industry;

 

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(u)           Liens deemed to exist in connection with Investments in repurchase agreements permitted under Section 9.2.5; provided, that such Liens do not extend to any assets other than those that are the subject of such repurchase agreement;

 

(v)           Liens encumbering reasonable customary initial deposits and margin deposits and similar Liens attaching to commodity trading accounts or other brokerage accounts incurred in the Ordinary Course of Business and not for speculative purposes;

 

(w)          Liens that are legal or contractual rights of set-off or rights of pledge (a) relating to the establishment of depository relations with banks not given in connection with the issuance of Indebtedness, (b) relating to pooled deposit or sweep accounts of WS International or any of the Restricted Subsidiaries to permit satisfaction of overdraft or similar obligations incurred in the Ordinary Course of Business of WS International and the Restricted Subsidiaries or (c) relating to purchase orders and other agreements entered into with customers of WS International or any of the Restricted Subsidiaries in the Ordinary Course of Business;

 

(x)           any encumbrance or restriction (including put and call arrangements) with respect to Stock of any joint venture or similar arrangement pursuant to any joint venture or similar agreement;

 

(y)           Liens solely on any cash earnest money deposits made by WS International or any of the Restricted Subsidiaries in connection with any letter of intent or purchase agreement with respect to any Investment permitted under this Agreement;

 

(z)           Liens on Stock of an Unrestricted Subsidiary;

 

(aa)         Liens arising out of conditional sale, title retention, consignment or similar arrangements with vendors for the sale or purchase of goods entered into by WS International or any Restricted Subsidiary in the Ordinary Course of Business other than with respect to real property that constitutes Collateral;

 

(bb)        ground leases or subleases, licenses or sublicenses in respect of real property on which facilities owned or leased by WS International or any of their Subsidiaries are located;

 

(cc)         Liens on insurance policies and the proceeds thereof securing the financing of the premiums with respect thereto;

 

(dd)        the reservations, limitations, provisos and conditions expressed in any original grants of real or immoveable property which do not materially impair the use of the affected land for the purpose used or intended to be used;

 

(ee)         Liens resulting from the deposit of cash or securities in connection with the performance of a bid, tender, sale or contract (excluding the borrowing of money) entered into in the Ordinary Course of Business or deposits of cash or securities in order to secure appeal bonds or bonds required in respect of judicial proceedings;

 

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(ff)           Liens in favor of a lessor or licensor for rent to become due or for other obligations or acts, the payment or performance of which is required under any lease as a condition to the continuance of such lease other than with respect to real property than constitutes Collateral;

 

(gg)         (i) Liens securing Indebtedness or other obligations of any Loan Party in favor of any other Loan Party, (ii) Liens securing any Indebtedness or other obligations of any Subsidiary (other than a Loan Party) in favor of any Loan Party, (iii) Liens securing Indebtedness or other obligations of any Subsidiary that is not a Loan Party in favor of any other Subsidiary that is not a Loan Party;

 

(hh)         Liens on the assets and capital stock of Restricted Subsidiaries that are not Loan Parties securing any Indebtedness of Restricted Subsidiaries that are not Loan Parties permitted to be incurred hereunder;

 

(ii)           all rights of expropriation, access or use or other similar rights conferred by or reserved by any federal, provincial, territorial, state or municipal authority or agency;

 

(jj)           any agreements with any governmental authority or utility that do not, in the aggregate, adversely effect in any material respect the use or value of real property and improvements thereon in the good faith judgment of the Administrative Borrower;

 

(kk)         Liens (i) on cash advances in favor of the seller of any property to be acquired in an Investment permitted under this Agreement to be applied against the purchase price for such Investment or (ii) consisting of an agreement to sell, transfer, lease or otherwise dispose of any property in a transaction permitted under this Agreement in each case, solely to the extent such Investment or sale, disposition, transfer or lease, as the case may be, would have been permitted on the date of the creation of such Lien;

 

(ll)           agreements to subordinate any interest of the Borrowers or any Restricted Subsidiary in any accounts receivable or other proceeds arising from inventory consigned by WS International or any Restricted Subsidiary pursuant to an agreement entered into in the Ordinary Course of Business; and

 

(mm)       Liens on Collateral securing Permitted Capped Debt on a junior basis to the Liens granted to Agent for the benefit of the Secured Parties under the Security Documents so long as the creditors with respect to such Indebtedness become party to the Intercreditor Agreement or other intercreditor agreement or customary arrangement in form and substance reasonably satisfactory to Agent.

 

For purposes of determining compliance with this definition, (A) Liens need not be incurred solely by reference to one category of Permitted Liens described in this definition but are permitted to be incurred in part under any combination thereof and of any other available exemption and (B) in the event that a Lien (or any portion thereof) meets the criteria of one or more of the categories of Permitted Liens, the Borrowers shall, in their sole discretion, classify or reclassify such Lien (or any portion thereof) in any manner that complies with this definition.

 

For purposes of this definition, the term “Indebtedness” shall be deemed to include interest on such Indebtedness.

 

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Permitted Sale Leaseback”: any Sale Leaseback consummated by any Loan Party or any of the Restricted Subsidiaries after the Closing Date, provided, that any such Sale Leaseback is consummated for fair value as determined at the time of consummation in good faith by such Loan Party or such Restricted Subsidiary.

 

Permitted Stand-Alone Capital Lease Counterparty”: as defined in the definition of Permitted Stand-Alone Capital Lease Transactions.

 

Permitted Stand-Alone Capital Lease Transactions”: Capital Leases or purchases of equipment that has never constituted Collateral entered into by a Loan Party from a financial institution (such financial institution, a “Permitted Stand-Alone Capital Lease Counterparty”) for the purpose of re-leasing such equipment to a customer of such Loan Party under a Capital Lease (such lease, together with any guarantees or other credit support provided in connection therewith, a “Stand-Alone Customer Capital Lease”) and (a) as to which no other Loan Party nor any of their Restricted Subsidiaries (i) provides credit support of any kind, or (ii) is directly or indirectly liable (as a guarantor or otherwise); and (b) as to which the applicable Permitted Stand-Alone Capital Lease Counterparty will not have any recourse to the Stock or assets of any of the Loan Parties or any of their Restricted Subsidiaries (other than the equipment so leased, the related Stand-Alone Customer Capital Leases and any Capital Lease Deposit Account into which the proceeds of such Stand-Alone Customer Capital Lease (and only the proceeds of such Stand-Alone Customer Capital Lease) are deposited).

 

Person”: any individual, corporation, limited liability company, unlimited liability company, partnership, joint venture, joint stock company, land trust, business trust, unincorporated organization, Governmental Authority or other entity.

 

Pounds Sterling” or “£”: the lawful currency of the United Kingdom.

 

PPSA”: the Personal Property Security Act (Ontario) (or any successor statute) and the regulations thereunder; provided, however, if validity, perfection and effect of perfection and non-perfection and opposability of Agent’s security interest in or Lien on any Collateral located in Canada or owned by a Canadian Loan Party are governed by the personal property security laws of any jurisdiction other than Ontario, PPSA shall mean those personal property security laws (including the Civil Code) in such other jurisdiction for the purposes of the provisions hereof relating to such validity, perfection, and effect of perfection and non-perfection and for the definitions related to such provisions, as from time to time in effect.

 

Preferred Stock”: any Equity Interest with preferential rights of payment of Dividends or upon liquidation, dissolution, or winding up.

 

Principal Jurisdiction”: Canada, the UK, the US (including the District of Columbia) and each state, province, territory or other political subdivision of any of the foregoing.

 

Priority Payables Reserves”: on any date of determination, (i) solely with respect to Collateral owned by a Canadian Loan Party, a reserve in such amount as Agent may determine in its Permitted Discretion which reflects amounts secured by any Liens, choate or inchoate, or any rights, whether imposed by Applicable Law in Canada or any province or territory thereof or elsewhere (including rights to the payment or reimbursement of any costs, charges or other amounts in connection with any Insolvency Proceeding), which rank or are capable of ranking in priority to Agent’s and/or the Secured Parties’ Liens or claims and/or for amounts which may represent costs relating to the enforcement of Agent’s and/or Secured Parties’ Liens or claims including, without limitation, any such amounts due and not paid for wages or vacation pay (including amounts protected by the Wage Earner Protection Program Act (Canada)), amounts due and not paid under any legislation relating to workers’ compensation or to employment insurance, all amounts deducted or withheld and not paid and remitted when due under the Income Tax Act (Canada), amounts currently or past due and not paid or remitted for sales tax, goods and services tax, harmonized sales tax, excise tax, realty tax, municipal tax or similar taxes (to the extent impacting any Collateral owned by a Canadian Loan Party), all amounts currently or past due and not contributed, remitted or paid to any Canadian Pension Plan or under the Canada Pension Plan, the Quebec Pension Plan or the PBA, and any amounts representing any unfunded liability, solvency deficiency or wind up deficiency with respect to any Canadian Pension Plan which provides benefits on a defined benefit basis and (ii) solely with respect to Collateral owned by a UK Loan Party, a reserve in such amount as Agent may determine in its Permitted Discretion (but not exceeding any statutory limit on any such amounts) which reflects the full amount of any liabilities or amounts which by virtue of any Liens, choate or inchoate, or any rights, whether imposed by any Applicable Law in the UK or elsewhere (and including rights to the payment or reimbursement of any costs, charges or other amounts required to be paid in connection with any Insolvency Proceeding), which rank or are capable of ranking in priority to (or otherwise dilute or reduce the recoveries in respect of) Agent’s and/or the Secured Parties’ Liens or claims and/or for amounts which may represent costs relating to the enforcement of Agent’s and or the Secured Parties’ Liens or claims including, without limitation, but only to the extent prescribed pursuant to English law and statute then in force, (a) amounts due to employees in respect of unpaid wages and holiday pay, together with any other preferential debts (as described in Section 386 of the UK Insolvency Act), (b) the “prescribed part” of floating charge realizations held for unsecured creditors, (c) the expenses and liabilities incurred by any liquidator, administrator, monitor or other insolvency officer and any remuneration of such administrator, monitor or other insolvency officer, and (d) the amount of any unpaid contributions to occupational pension schemes and state scheme premiums, including in respect of contracted-out rights.

 

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pro forma”: pro forma determinations made in accordance with Section 1.7.

 

Pro Forma Financial Statements”: pro forma consolidated balance sheet and related pro forma consolidated statement of operations of Parent as of, and for the twelve month period ending on, the last day of the most recently completed four fiscal quarter period ended at least 45 days prior to the Closing Date (or 90 days prior to the Closing Date in case such four fiscal quarter period is the end of Parent’s fiscal year), prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such statement of income).

 

Pro Rata”: (a) when used with reference to a Multicurrency Facility Lender’s (i) share on any date of the Multicurrency Facility Commitments, (ii) participating interest in Multicurrency LC Obligations (if applicable), (iii) share of payments made by the Borrowers with respect to Multicurrency Facility Obligations, (iv) reductions to the Multicurrency Facility Commitments pursuant to Section 2.1.3, and (v) obligation to pay or reimburse Agent for Extraordinary Expenses owed by the Borrowers in respect of the Multicurrency Facility or to indemnify any Indemnitees for Claims relating to the Multicurrency Facility, a percentage (expressed as a decimal, rounded to the ninth decimal place) derived by dividing the amount of the Multicurrency Facility Commitment of such Multicurrency Facility Lender on such date by the aggregate amount of the Multicurrency Facility Commitments of all Multicurrency Facility Lenders on such date (or if the Multicurrency Facility Commitments have been terminated, by reference to the Multicurrency Facility Commitments as in effect immediately prior to the termination thereof), (b) when used with reference to a US Facility Lender’s (i) share on any date of the US Facility Commitments, (ii) participating interest in US LC Obligations (if applicable), (iii) share of payments made by the US Borrowers with respect to US Facility Obligations, (iv) reductions to the US Facility Commitments pursuant to Section 2.1.3, and (v) obligation to pay or reimburse Agent for Extraordinary Expenses owed by the US Borrowers in respect of the US Facility or to indemnify any Indemnitees for Claims relating to the US Facility, a percentage (expressed as a decimal, rounded to the ninth decimal place) derived by dividing the amount of the US Facility Commitment of such US Facility Lender on such date by the aggregate amount of the US Facility Commitments of all US Facility Lenders on such date (or if the US Facility Commitments have been terminated, by reference to the US Facility Commitments as in effect immediately prior to the termination thereof) or (c) when used for any other reason, a percentage (expressed as a decimal, rounded to the ninth decimal place) derived by dividing the aggregate amount of the Lender’s Revolver Commitments on such date by the aggregate amount of the Revolver Commitments of all Lenders on such date (or if any such Revolver Commitments have been terminated, such Revolver Commitments as in effect immediately prior to the termination thereof).

 

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Property”: any interest in any kind of property or asset, whether real (immovable), personal (movable) or mixed, or tangible (corporeal) or intangible (incorporeal).

 

Protective Advances”: Multicurrency Protective Advances and/or US Protective Advances, as the context requires.

 

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

 

Public Company Costs”: costs associated with, or in anticipation of, or prepayment for, compliance with the provisions of the Securities Act of 1933 and the Securities Exchange Act of 1934, as applicable to companies with equity or debt securities held by the public, the rules of national securities exchange companies with listed equity or debt securities, directors’ or managers’ compensation, fees and expense reimbursement, costs relating to investor relations, shareholder meetings and reports to shareholders or debtholders, directors’ and officers’ insurance and other executive costs, legal and other professional fees, and listing fees.

 

Purchase Money Indebtedness”: with respect to any Person, any Indebtedness of such Person to any seller or other Person incurred solely to finance the acquisition, construction, installation or improvement of any real or tangible personal property which is incurred substantially concurrently with such acquisition, construction, installation or improvement and is secured only by the assets so financed and, to the extent permitted hereunder, any related assets. “Qualified ECP Guarantor”: in respect of any Swap Obligations, each Loan Party that has total assets exceeding $10,000,000 at the time the relevant Guarantee or grant of the relevant security interest becomes effective with respect to such Swap Obligation or such other person as constitutes an “eligible contract participant” under the Commodity Exchange Act or any regulations promulgated thereunder and can cause another person to qualify as an “eligible contract participant” at such time by entering into a keepwell under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.

 

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Qualified Receivables Transaction”: any transaction or series of transactions that may be entered into by a Restricted Subsidiary that is not a Loan Party pursuant to which such Subsidiary may sell, assign, convey, participate, contribute to capital or otherwise transfer to (a) a Receivables Entity (in the case of a transfer by such Subsidiary) or (b) any other Person (in the case of a transfer by a Receivables Entity), or may grant a security interest in or pledge, any Accounts or interests therein (whether now existing or arising in the future) of such Subsidiary, and any assets related thereto (other than any Inventory, Rental Equipment or Equipment) including, without limitation, all collateral securing such Accounts, all contracts and contract rights, purchase orders, security interests, financing statements or other documentation in respect of such Accounts and all guarantees, indemnities, warranties or other documentation or other obligations in respect of such Accounts, any other assets which are customarily transferred, or in respect of which security interests are customarily granted, in connection with asset securitization transactions involving receivables similar to such Accounts and any collections or proceeds of any of the foregoing (the “Related Assets”); provided, that such Qualified Receivables Transaction is permitted under the 2023 Senior Secured Notes Indenture and the 2025 Senior Secured Notes Indenture.

 

Qualified Secured Bank Product Obligations”: Bank Product Debt with respect to Hedge Agreements owing by a Loan Party or a Restricted Subsidiary to a Secured Bank Product Provider and evidenced by one or more Bank Product Documents that the Administrative Borrower, in a written notice to Agent, has expressly requested be treated as Qualified Secured Bank Product Obligations for purposes hereof, up to the maximum amount (in the case of any Secured Bank Product Provider other than Bank of America and its Affiliates or branches) specified by such provider in writing to Agent, which amount may be established and increased or decreased by further written notice to Agent from time to time. All Bank Product Debt with respect to Hedge Agreements owed to Bank of America and its Affiliates or branches shall constitute Qualified Secured Bank Product Obligations unless otherwise agreed by Bank of America or such Affiliate or branch.

 

Real Estate”: all right, title and interest of any Loan Party (whether as owner, lessor or lessee) in any real Property, or any land, buildings, structures, parking areas or other and improvements thereon, but excluding all operating fixtures and equipment, whether or not incorporated into improvements.

 

Reallocation”: as defined in Section 2.1.6(a).

 

Reallocation Consent”: as defined in Section 2.1.6(b).

 

Reallocation Date”: as defined in Section 2.1.6(a).

 

Receivables Entity”: any Wholly-Owned Subsidiary (or another Person in which such Subsidiary makes an Investment and to which such Subsidiary transfers Accounts and Related Assets) formed after the Closing Date, in each such case, (i) which is not a Loan Party, (ii) which engages in no activities other than in connection with the financing of Accounts or interests therein and Related Assets and any business or activities incidental or related to such business, (iii) which is designated by the Administrative Borrower as a Receivables Entity, (iv) no portion of the Indebtedness or any other obligations (contingent or otherwise) of which (A) is guaranteed by any Loan Party; (B) is recourse to or obligates any Loan Party in any way; or (C) subjects any property or asset of any Loan Party, directly or indirectly, contingently or otherwise, to the satisfaction thereof; (v) with which no Loan Party has any material contract, agreement, arrangement or understanding other than in connection with a Qualified Receivables Transaction; and (vi) to which neither any Loan Party nor any of its Subsidiaries has any obligation to maintain or preserve such entity’s financial condition or cause such entity to achieve certain levels of operating results.

 

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Records”: as defined in the UCC, and in any event means information that is inscribed on a tangible medium or which is stored in an electronic or other medium and is retrievable in perceivable form, including all books and records, customer lists, files, correspondence, tapes, computer programs, print outs and computer records.

 

Refinancing Costs”: as defined in “Refinancing Indebtedness”.

 

Refinancing Indebtedness”: the incurrence of Indebtedness which serves to refund, refinance, replace, renew, extend or defease any Indebtedness or any Indebtedness issued to so refund, refinance, replace, renew, extend or defease such Indebtedness, in an amount not to exceed the principal amount (or accreted value, if applicable) of such Indebtedness (including any unused commitments thereunder) plus additional Indebtedness incurred to pay all unpaid accrued interest and premiums thereon plus underwriting discounts, other arranger fees, commissions and expenses (including upfront fees, original issues discount or similar payments incurred in connection therewith) (collectively, “Refinancing Costs”); provided, however, that such Refinancing Indebtedness (a) (i) has a weighted average life to maturity at the time such Refinancing Indebtedness is incurred which is not less than the remaining weighted average life to maturity of the Indebtedness being refunded, refinanced, replaced, renewed, extended or defeased and (ii) has a maturity date which is not earlier than the maturity date of the Indebtedness being refunded, refinanced, replaced, renewed, extended or defeased; (b) to the extent such Refinancing Indebtedness refunds, refinances, replaces, renews, extends or defeases Indebtedness subordinated or pari passu (without giving effect to security interests) to the Obligations or any guarantee thereof, such Refinancing Indebtedness is subordinated or pari passu (without giving effect to security interests) to the same extent as the Indebtedness being refunded, refinanced, replaced, renewed, extended or defeased; (c) no direct and contingent obligor with respect to such Refinancing Indebtedness shall be a Person that was not a direct or contingent obligor with respect to the Indebtedness being refinanced; (d) to the extent such Refinancing Indebtedness refunds, refinances, replaces, renews, extends or defeases unsecured Indebtedness (including Refinancing Costs related to such Indebtedness), such Refinancing Indebtedness is unsecured, (e) to the extent such Refinancing Indebtedness refunds, refinances, replaces, renews, extends or defeases secured Indebtedness (including Refinancing Costs related to such Indebtedness), such Refinancing Indebtedness shall not expand the scope of the collateral securing such Indebtedness (including Refinancing Costs related to such Indebtedness) being refunded, refinanced, replaced, renewed, extended or defeased, and (f) to the extent such Refinancing Indebtedness refunds, refinances, renews, extends or defeases either of (i) the 2023 Senior Secured Notes or (ii) the 2025 Senior Secured Notes, the terms of such Refinancing Indebtedness (other than pricing) are either (x) no less favorable in any material respect, when taken as a whole, to the Loan Parties or the Lenders than the debt being refinanced or (y) consistent with then-prevailing market terms, in each case as determined by the Administrative Borrower.

 

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Register”: as defined in Section 12.1.

 

Regulation”: as defined in Section 9.1.16.

 

Related Asset”: as defined in “Qualified Receivables Transaction”.

 

Related Real Estate Documents”: with respect to any Material Real Estate subject to a Mortgage, the following, in form and substance reasonably satisfactory to Agent and received by Agent for review at least forty-five (45) days prior to the effective date of the Mortgage (or such lesser time period as Agent may agree): (a) a mortgagee title policy (or binding pro forma therefor) covering Agent’s interest under the Mortgage, in a form and amount and by a title insurer reasonably acceptable to Agent, to include endorsements as reasonably requested by Agent and to be fully paid and subject to no other conditions on such effective date; (b) such assignments of leases, estoppel letters, attornment agreements, consents, waivers and releases as Agent may reasonably require with respect to other Persons having an interest in the Material Real Estate; (c) unless Agent otherwise agrees, either (i) a current, as-built survey of the Material Real Estate, meeting the 2011 minimum standard detail requirements for ALTA/ACSM land title surveys, including, but not limited to, (w) a metes-and-bounds property description, (x) a flood plain certification, (y) certification by a licensed surveyor reasonably acceptable to Agent and (z) any other optional table A items as reasonably requested by Agent or (ii) existing surveys with respect to a particular piece of Material Real Estate that are in the possession of any Loan Party accompanied by a no-change survey affidavit, or similar document, in form and substance sufficient for a title insurer to issue any applicable survey related endorsement coverage as reasonably requested by Agent; and (d) flood zone determinations and, if the Material Real Estate is within a special flood hazard area, an acknowledged borrower notice, and flood insurance in compliance (including as to amount) with all applicable Flood Insurance Laws and in an amount, with endorsements and by an insurer acceptable to Agent. Notwithstanding anything contained in this Agreement to the contrary, no Mortgage shall be executed and delivered with respect to any Real Estate unless and until each Applicable Lender has received (at least forty-five (45) days in advance of any such execution, or such shorter period to which such Lender shall agree) a life of loan flood zone determination, the other documents described in the preceding clause (d), and such other documents as it may reasonably request to complete its flood insurance due diligence and has confirmed to Agent that flood insurance due diligence and flood insurance compliance has been completed to its satisfaction.

 

Release”: disposing, discharging, injecting, spilling, pumping, leaking, leaching, dumping, emitting, escaping, emptying, pouring, seeping, or migrating into or through the environment, including into or upon any land, water or air.

 

Relevant Governmental Body”: means the Federal Reserve Board and/or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board and/or the Federal Reserve Bank of New York for the purpose of recommending a benchmark rate to replace LIBOR in loan agreements similar to this Agreement.

 

Rent Reserves”: on any date of determination, the sum of (a) all past due rent and other past due charges owing by any Loan Party to any landlord or other Person who possesses any Collateral or has the right to assert a Lien on such Collateral (other than any Loan Party or any Restricted Subsidiary); plus (b) a reserve in an amount not to exceed rent and other charges that Agent determines, in its Permitted Discretion (but in any event, not more than three months’ rent), would reasonably be expected to be payable to any such Person for the time period used to determine and realize the Net Orderly Liquidation Value of Collateral being held by such Person, in each case, as adjusted from time to time by Agent in its Permitted Discretion; provided, that no Rent Reserve shall be established with respect to any location (i) leased by a Loan Party as of the Closing Date, prior to the date that is 120 days after the Closing Date, (ii) that becomes leased by a Loan Party after the Closing Date in connection with a Permitted Acquisition or similar Investment, prior to the date that is 120 days after the date on which such Permitted Acquisition or similar Investment is consummated, or (iii) where the lessor has delivered to Agent a Collateral Access Agreement. Notwithstanding anything herein to the contrary, if Agent would be entitled to establish a Rent Reserve but for the operation of clause (i) of the proviso in the preceding sentence, the amount of such Rent Reserve may be established by Agent on the 120th day after the Closing Date and the amount of such Rent Reserve shall be the amount that could have been established at the Closing Date but for the operation of clause (i).

 

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Rental Equipment”: all rental fleet equipment and containers (including, without limitation, value added products) including (i) new and used manufactured or remanufactured over-the-road tractor trailers and trailers intended for use as storage facilities, (ii) timber accommodation units, (iii) new and used manufactured or remanufactured portable and ISO containers and portable mobile offices, and (iv) any other rental storage fleet inventory or rental mobile office inventory that, in each case, are held for lease, or provided under a contract for services (including, without limitation, build-own-operate services), by a Person.

 

Report”: as defined in Section 11.2.3.

 

Reportable Event”: the occurrence of any of the events set forth in Section 4043(c) of ERISA and regulations thereunder with respect to a US Employee Plan (other than an event for which the 30-day notice period is waived).

 

Required Facility Lenders”: Required Multicurrency Facility Lenders and/or Required US Facility Lenders, as the context requires.

 

Required Lenders”: at any date of determination thereof, Lenders having Revolver Commitments representing more than 50% of the aggregate Revolver Commitments at such time; provided, however, that for so long as any Lender shall be a Defaulting Lender, the term “Required Lenders” shall mean Lenders (excluding Defaulting Lenders) having Revolver Commitments representing more than 50% of the aggregate Revolver Commitments (excluding the Revolver Commitments of each Defaulting Lender) at such time; provided, further, that if the Revolver Commitments have been terminated, the term “Required Lenders” shall be calculated based on the Dollar Equivalent thereof using (a) in lieu of such Lender’s terminated Revolver Commitment, the outstanding principal amount of the Revolver Loans by such Lender to, and (if applicable) participation interests in LC Obligations owing by, all Borrowers and (b) in lieu of the aggregate Revolver Commitments to all Borrowers, the aggregate outstanding Revolver Loans to, and (if applicable) LC Obligations owing by, all Borrowers.

 

Required Multicurrency Facility Lenders”: at any date of determination thereof, Multicurrency Facility Lenders having Multicurrency Facility Commitments representing more than 50% of the aggregate Multicurrency Facility Commitments at such time; provided, however, that if and for so long as any such Multicurrency Facility Lender shall be a Defaulting Lender, the term “Required Multicurrency Facility Lenders” shall mean Multicurrency Facility Lenders (excluding Defaulting Lenders) having Multicurrency Facility Commitments representing more than 50% of the aggregate Multicurrency Facility Commitments at such time (excluding the Multicurrency Facility Commitments of each Defaulting Lender) at such time; provided, further, however, that if all of the Multicurrency Facility Commitments have been terminated, the term “Required Multicurrency Facility Lenders” shall mean Multicurrency Facility Lenders holding Multicurrency Facility Loans to, and (if applicable) participating interest in Canadian LC Obligations and/or UK LC Obligations owing by, the Borrowers representing more than 50% of the aggregate outstanding principal amount of Multicurrency Facility Loans and (if applicable) Canadian LC Obligations and/or UK LC Obligations.

 

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Required US Facility Lenders”: at any date of determination thereof, US Facility Lenders having US Facility Commitments representing more than 50% of the aggregate US Facility Commitments at such time; provided, however, that if and for so long as any such US Facility Lender shall be a Defaulting Lender, the term “Required US Facility Lenders” shall mean US Facility Lenders (excluding Defaulting Lenders) having US Facility Commitments representing more than 50% of the aggregate US Facility Commitments at such time (excluding the US Facility Commitments of each Defaulting Lender) at such time; provided, further, however, that if all of the US Facility Commitments have been terminated, the term “Required US Facility Lenders” shall mean US Facility Lenders holding US Facility Loans to, and (if applicable) participating interest in US LC Obligations owing by, the US Borrowers representing more than 50% of the aggregate outstanding principal amount of US Facility Loans and US LC Obligations.

 

Reserve Percentage”: the reserve percentage (expressed as a decimal, rounded up to the nearest 1/8th of 1%) applicable to member banks under regulations issued by the Board of Governors for determining the maximum reserve requirement for eurocurrency liabilities.

 

Reserves”: on any date of determination, the sum (without duplication) of (a) Bank Product Reserves; (b) Priority Payables Reserves; (c) Rent Reserves; (d) obligations of any Loan Party under contracts and purchase orders relating to the purchase or other acquisition of Rental Equipment, Inventory or Equipment which are, or could reasonably be expected to be, subject to retention of title, repossession or similar claims by contract or law; (e) the aggregate amount of liabilities secured by Liens upon Collateral owned by any Loan Party that are senior to or pari passu with Agent’s Liens (but imposition of any such reserve shall not waive an Event of Default arising therefrom); (f) LCT Dividend Reserves; (g) the Maturity Reserve and (h) such additional reserves in such amounts and with respect to such matters as Agent may establish in its Permitted Discretion.

 

Resolution Authority”: means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.

 

Restricted Non-US Subsidiary”: a Non-US Subsidiary that is a Restricted Subsidiary.

 

Restricted Party”: any Person that is: (i) listed on, or owned 50 percent or more by a Person listed on, any Sanctions List; (ii) located in, organized, incorporated or established under the laws of, or domiciled in a Sanctioned Country; or (iii) otherwise a target of Sanctions (“target of Sanctions” signifies a Person with whom a person subject to the jurisdiction of a Sanctions Authority would be prohibited or restricted by law from engaging in trade, business, or other activities).

 

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Restricted Subsidiary”: any Subsidiary of Holdings or a Loan Party, as the context requires, other than an Unrestricted Subsidiary.

 

Revolver Commitment Increase”: as defined in Section 2.1.9(b).

 

Revolver Commitments”: Multicurrency Facility Commitments and/or US Facility Commitments, as the context requires.

 

Revolver Facility Termination Date”: July 1, 2025.

 

Revolver Lenders”: each Lender that has a Revolver Commitment (including each Additional Revolver Lender) and each other Lender that acquires an interest in any Revolver Loans and/or LC Obligations pursuant to an Assignment and Acceptance.

 

Revolver Loan”: a loan made pursuant to Section 2.1.1, and any Overadvance Loan, Swingline Loan or Protective Advance.

 

Revolver Notes”: Multicurrency Facility Notes and US Facility Notes.

 

S&P”: Standard & Poor’s Financial Services LLC, a subsidiary of The McGraw-Hill Companies, Inc., and its successors.

 

Sale Leaseback”: any transaction or series of related transactions pursuant to which any Loan Party or any of the Restricted Subsidiaries (a) sells, transfers or otherwise disposes of any property, real or personal, whether now owned or hereafter acquired, and (b) as part of such transaction, thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property being sold, transferred or disposed.

 

Sanctioned Country”: any country or territory that is the target of comprehensive, country-wide or territory-wide Sanctions (being, at the time of this Agreement, the Crimea region of Ukraine, Cuba, Iran, North Korea and Syria).

 

Sanctions”: any applicable financial or economic sanction administered or enforced by a Sanctions Authority.

 

Sanctions Authority”: (a) the US Government; (b) the Government of Canada; (c) the United Kingdom; (d) the United Nations; (e) the European Union; or (f) the respective governmental institutions and agencies of any of the foregoing, including without limitation, OFAC, the United States Department of State, the United States Department of Commerce, and HMT.

 

Sanctions List”: the List of Specially Designated Nationals and Blocked Persons and the Sectoral Sanctions Identifications lists administered by OFAC, the Consolidated List of Financial Sanctions Targets administered by HMT, or the Government of Canada or any similar list or public designation of Sanctions issued or maintained or made public by any other Sanctions Authority, each as amended, supplemented, or substituted from time to time.

 

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Scheduled Unavailability Date”: has the meaning specified in Section 3.6(b).

 

SEC”: the Securities and Exchange Commission or any successor thereto and, as the context may require, any analogous Governmental Authority in any other relevant jurisdiction of Holdings or any Subsidiary.

 

Secured Bank Product Obligations”: Bank Product Debt owing by a Loan Party or a Restricted Subsidiary to a Secured Bank Product Provider and evidenced by one or more Bank Product Documents that the Administrative Borrower on behalf of any Loan Party or Restricted Subsidiary, in a written notice to Agent, has expressly requested be treated as Secured Bank Product Obligations and/or a Qualified Secured Bank Product Obligation for purposes hereof, up to the maximum amount (in the case of any Secured Bank Product Provider other than Bank of America and its Affiliates or branches) specified by such provider and the Administrative Borrower in writing to Agent, which amount may be established and increased or decreased by further written notice from such provider and the Administrative Borrower to Agent from time to time.

 

Secured Bank Product Provider”: (a) Bank of America or any of its Affiliates or branches; and (b) any other Lender or Affiliate or branch of a Lender that is providing a Bank Product or any other Person providing a Bank Product that was a Lender or Affiliate or branch of Lender at the time of entering into a Bank Product Document with respect to the Bank Product Debt designated as a Secured Bank Product Obligation pursuant to the definition thereof; provided, that such provider and the Administrative Borrower shall have delivered or shall deliver a written notice to Agent, in form and substance reasonably satisfactory to Agent, by the later of the Closing Date or 10 Business Days (or such later time as Agent and the Administrative Borrower may agree in their reasonable discretion) following the later of the creation of the Bank Product or such Secured Bank Product Provider (or its Affiliate or branch) becoming a Lender hereunder, (i) describing the Bank Product and setting forth the maximum amount of the related Secured Bank Product Obligations (and, if all or any portion of such Secured Bank Product Obligations are to constitute Qualified Secured Bank Product Obligations, the maximum amount of such Qualified Secured Bank Product Obligations) that are to be secured by the Collateral and the methodology to be used in calculating such amount(s) and (ii) if such provider is not a Lender, agreeing to be bound by Section 11.13.

 

Secured Obligations”: Obligations and Secured Bank Product Obligations, including in each case those under all Credit Documents, but not including any Excluded Swap Obligations.

 

Secured Parties”: Multicurrency Secured Parties, US Secured Parties and Secured Bank Product Providers.

 

Securities Account Control Agreement”: the securities account control agreements, in form and substance reasonably satisfactory to Agent and the Administrative Borrower, executed by Agent, the applicable Loan Parties and the applicable financial institution maintaining a Securities Account for such Loan Parties, in favor of Agent.

 

Securities Accounts”: all present and future “securities accounts” (as defined in Article 8 of the UCC, or in the PPSA, as applicable), including all monies, “uncertificated securities,” “security entitlements” and other “financial assets” (as defined in Article 8 of the UCC or in the PPSA, as applicable), contained therein.

 

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Security Documents”: this Agreement, the Guarantees, the Canadian Security Agreements, the UK Security Agreements, the US Security Agreement, the Custodian Agreement, the Deposit Account Control Agreements, the Securities Account Control Agreements, the Intellectual Property Security Agreements, the Mortgages and all other documents, instruments and agreements now or hereafter securing (or given with the intent to secure) any Secured Obligations or which reaffirm, acknowledge, amend or restate any of the foregoing.

 

Senior Officer”: the Chief Executive Officer, the President, any Vice President, the Chief Financial Officer, the Principal Accounting Officer, the Treasurer, the Director of Treasury, Controller, Secretary, Director, Manager or other “Authorized Officer” (or similar term), or any other senior officer of a Person designated as such in writing to Agent by such Person.

 

Series of Cash Neutral Transactions”: any series of Investments solely among Loan Parties and Restricted Subsidiaries; provided, that (i) the amount of cash transferred by a Loan Party (such Loan Party, an “Initiating Company”) to a Restricted Subsidiary in such Series of Cash Neutral Transactions is not greater than the amount of cash received by such Initiating Company or another Loan Party in such Series of Cash Neutral Transactions less reasonable transaction expenses and taxes (which cash must be received by such Initiating Company or another Loan Party within three Business Days of the initiation of such Series of Cash Neutral Transactions), (ii) any Collateral (including cash of any Loan Party involved in such Series of Cash Neutral Transactions) shall be subject to a perfected security interest of Agent, and the validly, perfection and priority of such security interest shall not be impaired by or in connection with such Series of Cash Neutral Transactions, (iii) no Restricted Subsidiary that is not a Loan Party may retain any cash after giving effect to such Series of Cash Neutral Transactions, and (iv) five (5) Business Days prior to giving effect to such Series of Cash Neutral Transactions (or such shorter period as Agent may agree), Agent shall have received a reasonably detailed description of such Series of Cash Neutral Transactions and drafts of the documentation relating thereto as Agent may reasonably request.

 

Settlement Report”: a report delivered by Agent to the Revolver Lenders summarizing the Revolver Loans and, if applicable, participations in LC Obligations of the applicable Borrowers under a Facility outstanding as of a given settlement date, allocated to such Applicable Lenders on a Pro Rata basis in accordance with their Revolver Commitments.

 

Similar Business”: any business conducted or proposed to be conducted by Holdings or any of its Subsidiaries on the Closing Date or any business that is similar, complementary, reasonably related, incidental or ancillary thereto, or is a reasonable extension, development or expansion thereof.

 

SOFR”: with respect to any day means the secured overnight financing rate published for such day by the Federal Reserve Bank of New York, as the administrator of the benchmark (or a successor administrator) on the Federal Reserve Bank of New York’s website (or any successor source) and, in each case, that has been selected or recommended by the Relevant Governmental Body.

 

SOFR-Based Rate”: means SOFR or Term SOFR.

 

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Solvent”: with respect to the Borrowers and their Subsidiaries, that, after giving effect to the consummation of the Transactions, (i) the sum of the liabilities (including contingent liabilities) of the Borrowers and their Subsidiaries, on a consolidated basis, does not exceed the present fair saleable value of the present assets of the Borrowers and their Subsidiaries, on a consolidated basis, (ii) the fair value of the property of the Borrowers and their Subsidiaries, on a consolidated basis, is greater than the total amount of liabilities (including contingent liabilities) of the Borrowers and their Subsidiaries, on a consolidated basis, (iii) the capital of the Borrowers and their Subsidiaries, on a consolidated basis, is not unreasonably small in relation to their business as contemplated on the date hereof and (iv) the Borrowers and their Subsidiaries, on a consolidated basis, have not incurred and do not intend to incur, or believe that they will incur, debts including current obligations beyond their ability to pay such debts as they become due (whether at maturity or otherwise).

 

Specified Acquisition Agreement Representations”: representations made by, or with respect to, MMI and its subsidiaries in the Acquisition Agreement as are material to the interests of the Lenders, but only to the extent that Parent (or its Affiliates) has the right (taking into account any applicable cure provisions) to terminate its (or their) obligations under the Acquisition Agreement as a result of a breach of such representations in the Acquisition Agreement or to decline to consummate the Acquisition (in accordance with the terms of the Acquisition Agreement).

 

Specified Assets”: Equipment, Rental Equipment, Inventory, Real Estate, Chattel Paper and Accounts, in each case, solely to the extent included in the Borrowing Base.

 

Specified Defaults”: any (i) Event of Default under Section 10.1.1 or 10.1.5, (ii) any Event of Default arising from the failure of any Loan Party to deliver a Borrowing Base Certificate required to be delivered hereunder or any material inaccuracy contained in any Borrowing Base Certificate, (iii) any Event of Default arising from the failure of any Loan Party to comply with its obligations under this Agreement and the Security Agreements to make or direct payments into Deposit Accounts over which Agent has a first priority perfected Lien and dominion and control (or, in the case of a Deposit Account of a UK Loan Party, a floating charge), or to maintain such Lien and dominion and control (or, in the case of a Deposit Account of a UK Loan Party, a floating charge), over Deposit Accounts (other than Excluded Deposit Accounts and Deposit Accounts to the extent such Deposit Accounts are not yet required to be subject to a Deposit Account Control Agreement pursuant to Section 7.3.2 or 9.1.12(c)(iii)) and (iv) any Event of Default arising from the failure of the Loan Parties to comply with the covenant contained in Section 9.3 at any time that such covenant is applicable pursuant to the terms hereof.

 

Specified Equity Contribution”: any cash contribution to the common equity (or otherwise in a form reasonably acceptable to Agent) of Holdings and/or any purchase or investment in the common equity (or otherwise in a form reasonably acceptable to Agent) of Holdings, in each case made pursuant to Section 10.2.

 

Specified Excess Availability”: as of any date of determination, an amount equal to the sum of (a) Excess Availability and (b) Specified Suppressed Availability.

 

Specified Holders”: Sponsor, Parent or any of their respective Affiliates.

 

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Specified Representations”: the representations and warranties contained in Section 8.1.1(a), Section 8.1.2, Section 8.1.3(c) and (d), Section 8.1.5, Section 8.1.7, the second sentence of Section 8.1.15, Section 8.1.16, Section 8.1.18 and Section 8.1.19.

 

Specified Suppressed Availability”: as of any date of determination, the lesser of (a) the amount by which the aggregate Borrowing Base exceeds the aggregate Revolver Commitments and (b) an amount equal to 5% of the aggregate Revolver Commitments.

 

Specified Transaction”: any Permitted Acquisition, any Investment under Section 9.2.5(g) or (k), any Dividend under Section 9.2.6 or any prepayment, repurchase, redemption or defeasance of Indebtedness under Section 9.2.7, or any other action or matter, in each case which is being made in reliance on compliance with the Payment Condition.

 

Sponsor”: TDR Capital LLP, a limited liability partnership established under the laws of England and Wales, having its registered office at 20 Bentinck, London W1U 2EU and being registered with Companies House under number OC302604.

 

Sponsor Affiliates”: (a) the TDR Investor and any other fund (including, without limitation, any unit trust, investment trust, limited partnership or general partnership) which is advised by, or the assets of which are managed (whether solely or jointly with others) from time to time by, the Sponsor or the TDR Investor (or a group controlled by and whose members include the Sponsor and/or the TDR Investor or their Affiliates (other than Holdings or any of its Subsidiaries or any portfolio company of the Sponsor or the TDR Investor)); and (b) any other fund (including, without limitation, any unit trust, investment trust, limited partnership or general partnership) of which the Sponsor or the TDR Investor (or a group controlled by and whose members include the Sponsor and/or the TDR Investor or their Affiliates (other than Holdings or any of its Subsidiaries or any portfolio company of the Sponsor or the TDR Investor)) or the TDR Investor’s general partner, trustee or nominee, is a general partner, manager, adviser, trustee or nominee (but, for the avoidance of doubt, excluding any of Holdings or any of its Subsidiaries or any portfolio company of the Sponsor or the TDR Investor).

 

Stand-Alone Customer Capital Leases”: as defined in the definition of Permitted Stand-Alone Capital Lease Transactions.

 

Stock”: shares of capital stock or shares in the capital, as the case may be (whether denominated as common stock or preferred stock or ordinary shares or preferred shares, as the case may be), beneficial, partnership or membership interests, participations or other equivalents (regardless of how designated) of or in a corporation, partnership, limited liability company or equivalent entity, whether voting or non-voting.

 

Subordinated Indebtedness”: Indebtedness of any Loan Party that is expressly subordinate and junior in right of payment to the Obligations of such Loan Party under this Agreement and is on subordination terms no less favorable to the Lenders than as is customary for senior subordinated notes issued in a public or Rule 144A high yield debt offering, it being understood that delivery to Agent at least five Business Days prior to the incurrence of such Indebtedness of a certificate of a Senior Officer of a Borrower (together with a reasonably detailed description of the subordination terms and conditions of such Indebtedness or drafts of the documentation relating thereto) certifying that such Borrower has determined in good faith that such subordination terms and conditions satisfy the foregoing requirements shall be conclusive evidence that such terms and conditions satisfy such requirement.

 

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Subsidiary”: means, with respect to any Person:

 

(a)            any corporation, association or other business entity (other than a partnership, joint venture, limited liability company or similar entity) of which more than 50% of the total voting power of shares of Stock entitled to vote in the election of directors, managers or trustees thereof is at the time of determination owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of that Person or a combination thereof, and

 

(b)            any partnership, joint venture, limited liability company or similar entity of which:

 

(x)           more than 50% of the capital accounts, distribution rights, total equity and voting interests or general or limited partnership interests, as applicable, are owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of that Person or a combination thereof whether in the form of membership, general, special or limited partnership or otherwise, and

 

(y)           such Person or any Restricted Subsidiary of such Person is a controlling general partner or otherwise controls such entity.

 

Unless otherwise expressly provided, all references herein to a “Subsidiary” shall mean a Subsidiary of Holdings, WS International or of a Loan Party, as the context requires.

 

Super-Majority Facility Lenders”: Super-Majority Multicurrency Facility Lenders and/or Super-Majority US Facility Lenders, as the context requires.

 

Super-Majority Lenders”: at any date of determination thereof, Revolver Lenders having Revolver Commitments representing more than 66-2/3% of the aggregate Revolver Commitments at such time; provided, however, that for so long as any Revolver Lender shall be a Defaulting Lender, the term “Super-Majority Lenders” shall mean Revolver Lenders (excluding Defaulting Lenders) having Revolver Commitments representing more than 66 2/3% of the aggregate Revolver Commitments (excluding the Revolver Commitments of each Defaulting Lender) at such time; provided, further, that if the Revolver Commitments have been terminated, the term “Super-Majority Lenders” shall be calculated based on the Dollar Equivalent thereof using (a) in lieu of such Revolver Lender’s terminated Revolver Commitment, the outstanding principal amount of the Revolver Loans by such Revolver Lender to, and (if applicable) participation interests in LC Obligations owing by, all Borrowers and (b) in lieu of the aggregate Revolver Commitments to all Borrowers, the aggregate outstanding Revolver Loans to, and (if applicable) LC Obligations owing by, all Borrowers.

 

Super-Majority Multicurrency Facility Lenders”: at any date of determination thereof, Multicurrency Facility Lenders having Multicurrency Facility Commitments representing more than 66-2/3% of the aggregate Multicurrency Facility Commitments at such time; provided, however, that for so long as any Multicurrency Facility Lender shall be a Defaulting Lender, the term “Super-Majority Multicurrency Facility Lenders” shall mean Multicurrency Facility Lenders (excluding Defaulting Lenders) having Multicurrency Facility Commitments representing more than 66 2/3% of the aggregate Multicurrency Facility Commitments (excluding the Multicurrency Facility Commitments of each Defaulting Lender) at such time; provided, further, that if the Multicurrency Facility Commitments have been terminated, the term “Super-Majority Multicurrency Facility Lenders” shall be calculated based on the Dollar Equivalent thereof using (a) in lieu of such Multicurrency Facility Lender’s terminated Multicurrency Facility Commitment, the outstanding principal amount of the Multicurrency Facility Loans by such Multicurrency Facility Lender to, and (if applicable) participation interests in Multicurrency LC Obligations owing by, all Borrowers and (b) in lieu of the aggregate Multicurrency Facility Commitments to all Borrowers, the aggregate outstanding Multicurrency Facility Loans to, and (if applicable) Multicurrency LC Obligations owing by, all Borrowers.

 

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Super-Majority US Facility Lenders”: at any date of determination thereof, US Facility Lenders having US Facility Commitments representing more than 66-2/3% of the aggregate US Facility Commitments at such time; provided, however, that for so long as any US Facility Lender shall be a Defaulting Lender, the term “Super-Majority US Facility Lenders” shall mean US Facility Lenders (excluding Defaulting Lenders) having US Facility Commitments representing more than 66 2/3% of the aggregate US Facility Commitments (excluding the US Facility Commitments of each Defaulting Lender) at such time; provided, further, that if the US Facility Commitments have been terminated, the term “Super-Majority US Facility Lenders” shall be calculated based on the Dollar Equivalent thereof using (a) in lieu of such US Facility Lender’s terminated US Facility Commitment, the outstanding principal amount of the US Facility Loans by such US Facility Lender to, and (if applicable) participation interests in US LC Obligations owing by, all US Borrowers and (b) in lieu of the aggregate US Facility Commitments to all US Borrowers, the aggregate outstanding US Facility Loans to, and (if applicable) US LC Obligations owing by, all US Borrowers.

 

Supporting Obligations”: as defined in the UCC, and in any event means a Letter-of-Credit Right or secondary obligation that supports the payment or performance of an Account, Chattel Paper, Document, General Intangible, Instrument or Investment Property, including, but not limited to, securities, Investment Property, bills, notes, lien notes, judgments, chattel mortgages, mortgages, security interests, hypothecs, assignments, guarantees, suretyships, accessories, bills of exchange, negotiable instruments, invoices and all other rights, benefits and documents now or hereafter taken, vested in or held by a Person in respect of or as security for the same and the full benefit and advantage thereof, and all rights of action or claims which a Person now has or may at any time hereafter have against any other Person in respect thereof, including rights in its capacity as seller of any property or assets returned, repossessed or recovered, under an installment or conditional sale or otherwise.

 

Surety Bond”: any bid, performance, payment, surety, indemnity, or other similar bonds.

 

Swap”: any agreement, contract, or transaction that constitutes a “swap” within the meaning of section 1a(47) of the Commodity Exchange Act.

 

Swap Obligation”: with respect to any Person, any obligation to pay or perform under any Swap.

 

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Swingline Commitment”: the Canadian Swingline Commitment, the UK Swingline Commitment and/or the US Swingline Commitment, as the context requires.

 

Swingline Lender”: the Canadian Swingline Lender, the UK Swingline Lender and/or the US Swingline Lender, as the context requires.

 

Swingline Loan”: a loan made pursuant to Section 2.1.7.

 

TARGET Day”: any day on which the Trans-European Automated Real-time Gross Settlement Express Transfer (TARGET) payment system (or, if such payment system ceases to be operative, such other payment system (if any) determined by Agent to be a suitable replacement) is open for the settlement of payments in Euro.

 

Tax Confirmation”: means a confirmation in writing by a Lender that the person beneficially entitled to interest payable to that Lender in respect of an advance under a Loan Document is either:

 

(a)           a company resident in the United Kingdom for United Kingdom tax purposes; or

 

(b)           a partnership each member of which is:

 

(i)             a company so resident in the United Kingdom; or

 

(ii)            a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of the CTA) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of the CTA; or

 

(c)           a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of section 19 of the CTA) of that company.

 

Tax Credit”: a credit against, relief or remission for, or refund or repayment of, any Taxes.

 

Tax Deduction”: a deduction or withholding for or on account of Taxes from a payment under any Loan Document, other than a FATCA Deduction.

 

Taxes”: all present or future taxes, levies, imposts, duties, deductions, withholdings, assessments, fees or other similar charges imposed in the nature of taxation by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.

 

TDR Investor”: TDR Capital II Holdings LP.

 

Term SOFR: means the forward-looking term rate for any period that is approximately (as determined by Agent) as long as any of the Interest Period options set forth in the definition of “Interest Period” and that is based on SOFR and that has been selected or recommended by the Relevant Governmental Body, in each case as published on an information service as selected by Agent from time to time in its reasonable discretion.

 

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Termination Event”: (a) the voluntary full or partial wind-up of a Canadian Pension Plan that is a registered pension plan by a Canadian Loan Party; (b) the institution of proceedings by any Governmental Authority to terminate in whole or in part or have a trustee appointed to administer such a plan; or (c) any other event or condition which might constitute grounds for the termination of, winding-up or partial termination or winding-up or the appointment of a trustee to administer, any such plan.

 

Test Period”: for (i) any determination under Section 9.3 of this Agreement, the four consecutive fiscal quarters of WS International then last ended and (ii) for all other purposes hereunder (including any provision of this Agreement requiring pro forma compliance with the Interest Coverage Ratio, the Consolidated Fixed Charge Coverage Ratio or Total Net Leverage Ratio), the four consecutive fiscal quarters of WS International then last ended for which financial statements have been delivered pursuant to clauses (a) or (b) of Section 9.1.1.

 

Titling State”: any state with a motor vehicle or other applicable statute that requires certain mobile assets to be subject to a Certificate of Title.

 

Total Multicurrency Facility Exposure”: as of any date of determination, the Dollar Equivalent of an amount equal to the sum of (a) the Multicurrency Facility Loans outstanding on such date, (b) the Canadian LC Obligations on such date and (c) the UK LC Obligations on such date.

 

Total Net Leverage Ratio”: as of any date of determination, the ratio of (a) Consolidated Total Debt as of such date of determination to (b) Consolidated EBITDA for the relevant Test Period.

 

Total Revolver Exposure”: Total US Facility Exposure and Total Multicurrency Facility Exposure.

 

Total US Facility Exposure”: as of any date of determination, the amount equal to the sum of (a) the US Facility Loans outstanding on such date and (b) the US LC Obligations on such date.

 

Tranche”: as defined in Section 2.1.8(a).

 

Transaction Expenses”: any fees or expenses incurred or paid by any Loan Party or any of its Subsidiaries in connection with this Agreement, the other Loan Documents, the Transactions and the transactions contemplated hereby and thereby.

 

Transactions”: collectively, (i) the execution, delivery and performance by the Loan Parties of this Agreement and the other Loan Documents, the borrowing of the Loans and issuance of Letters of Credit hereunder and the use of the proceeds thereof, (ii) the consummation of the Acquisition, (iii) the consummation of the Debt Repayment, (iv) the execution, delivery and performance by the parties thereto of the 2025 Senior Secured Notes Indenture and all related documents, the issuance of the 2025 Senior Secured Notes thereunder and the use of the proceeds thereof and (v) the payment of the Transaction Expenses.

 

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Transfer”: as defined in Section 2.1.5(d).

 

Transfer Date”: as defined in Section 2.1.5(d).

 

Transferee”: any actual or potential Eligible Assignee, Participant or other Person acquiring an interest in any Obligations.

 

Type”: any type of a Loan (i.e., Base Rate Loan, LIBOR Loan, Canadian BA Rate Loan, or Canadian Prime Rate Loan) and which shall be either an Interest Period Loan or a Floating Rate Loan.

 

UCC”: the Uniform Commercial Code as in effect in the State of New York or, when the laws of any other US state or territory govern the creation, perfection, priority or enforcement of any Lien, the Uniform Commercial Code of such state or territory.

 

UK” or “United Kingdom”: the United Kingdom of Great Britain and Northern Ireland.

 

UK Base Rate”: on any date, a rate per annum equal to LIBOR for the applicable currency as of 11:00 a.m. (London time) on the first day of the then-current calendar month for a one-month Interest Period, plus 1%.

 

UK Base Rate Loan”: a Multicurrency Facility Loan, or portion thereof, made to a UK Borrower or a UK Swingline Loan made to a UK Borrower in each case which is designated or deemed designated as a UK Base Rate Loan by the Administrative Borrower at the time or the borrowing or conversion thereto. All UK Base Rate Loans shall be denominated in Euros (only to the extent such UK Base Rate Loan is a UK Swingline Loan), Pounds Sterling (only to the extent such UK Base Rate Loan is a UK Swingline Loan) or Dollars and bear interest calculated by reference to the UK Base Rate.

 

UK Borrowers”: (a) the Initial UK Borrowers and (b) each other Wholly-Owned UK Subsidiary that, after the date hereof, has executed a supplement or joinder to this Agreement in accordance with Section 9.1.12 and has satisfied the other requirements set forth in Section 9.1.12 in order to become a UK Borrower.

 

UK Borrowing Base”: at any time an amount equal to the sum (expressed in Dollars, based on the Dollar Equivalent thereof) of, without duplication:

 

(a)            eighty-five percent (85%) of the net book value of Eligible Accounts of any UK Loan Party, plus

 

(b)            the lesser of:

 

(i)             ninety-five percent (95%) of the net book value of Eligible Rental Equipment of any UK Loan Party and

 

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(ii)            the product of (x) ninety percent (90%) multiplied by (y) either (I) in the case of Eligible Rental Equipment not covered by the following clause (II), the lower of the (A) Cost of Eligible Rental Equipment of any UK Loan Party and (B) Net Orderly Liquidation Value percentage identified in the most recent Appraisal of the Eligible Rental Equipment of any UK Loan Parties multiplied by the net book value of such Eligible Rental Equipment or (II) for Eligible Rental Equipment of any UK Loan Party consisting of custom containers and ISO containers that are presold, the lower of (A) the Cost of such Eligible Rental Equipment and (B) the sales invoice price of such Eligible Rental Equipment, plus

 

(c)            the sum of:

 

(i)             ninety percent (90%) of the net book value of the Eligible Container Inventory Held For Sale of any UK Loan Party,

 

(ii)            ninety percent (90%) of the net book value of the Eligible Work-In-Process Container Inventory of any UK Loan Party, and

 

(iii)           sixty-five percent (65%) of either (x) Cost of the Eligible Raw Material Inventory of any UK Loan Party or (y) if such Eligible Raw Material Inventory consists of steel, lumber, plywood, or paint, for purposes of fiscal year end calculations only, the lower of the (I) Cost of such Eligible Raw Material Inventory or (II) fair market value of such Eligible Raw Material Inventory;

 

provided, that the amount of the UK Borrowing Base pursuant to this clause (c) shall not exceed (i) $100,000,000 at any time individually with respect to the UK Borrowing Base and (ii) $200,000,000 in the aggregate when taken together with the amount of the Canadian Borrowing Base pursuant to clause (c) of the definition thereof and the amount of the US Borrowing Base pursuant to clause (c) of the definition thereof, plus

 

(d)            eighty-five percent (85%) of the Net Orderly Liquidation Value percentage identified in the most recent Appraisal of Eligible Machinery and Equipment of any UK Loan Party, provided, that the amount included in the UK Borrowing Base pursuant to this clause (d) shall not exceed $25,000,000, plus

 

(e)            one-hundred percent (100%) of Eligible Qualified Cash of any UK Loan Party, minus

 

(f)            upon five (5) Business Days’ prior written notification thereof to the Administrative Borrower by Agent (after consultation with the Administrative Borrower in accordance with the definition of the term “Permitted Discretion”), any and all Reserves established against the UK Borrowing Base.

 

Clauses (a) through (e) of the UK Borrowing Base at any time shall be determined by reference to the most recent Borrowing Base Certificate theretofore delivered to Agent.

 

UK Bribery Act”: the United Kingdom Bribery Act of 2010.

 

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UK DB Pension Plan”: an occupational pension scheme which is not a money purchase scheme (each as defined in Section 181 of the Pension Schemes Act 1993) of the United Kingdom.

 

UK Dominion Account”: each lockbox or Deposit Account established by the UK Loan Parties which is either (i) subject to a fixed charge lien in favor of Agent or (ii) subject to a floating charge lien in favor of Agent which shall, upon the occurrence of a Cash Dominion Event and subsequent creation of a fixed charge lien in favor of Agent over such lockboxes or Deposit Accounts, become subject to a fixed charge lien in favor of Agent, in each case, in accordance with Section 7.3.2.

 

UK Financial Institution”: means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended form time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.

 

UK Fronting Bank”: (a) Bank of America (London); JPMorgan Chase Bank, N.A.; Deutsche Bank AG New York Branch; ING Capital LLC; BBVA USA; Bank of the West and MUFG Union Bank, N.A. or, in each case, any Affiliate or branch thereof that agrees to issue UK Letters of Credit, (b) for purposes of such Existing UK Letters of Credit, any Multicurrency Facility Lender that issued an Existing UK Letter of Credit, and (c) if reasonably acceptable to the Administrative Borrower, any other Multicurrency Facility Lender or Affiliate or branch thereof that agrees to issue UK Letters of Credit.

 

UK Fronting Bank Indemnitees”: any UK Fronting Bank and its Affiliates and branches and their respective officers, directors, employees, agents, advisors and other representatives.

 

UK Guarantors”: (a) each UK Borrower, (b) the Initial UK Guarantors and (c) each other UK Subsidiary that, after the date hereof, has executed a supplement or joinder to this Agreement in accordance with Section 9.1.12 and has satisfied the other requirements set forth in Section 9.1.12 in order to become a UK Guarantor.

 

UK Insolvency Act”: the Insolvency Act 1986 enacted in the United Kingdom, as such act may be amended, varied, supplemented or replaced from time to time.

 

UK LC Application”: an application by any UK Borrower on behalf of itself or any Restricted Subsidiary to a UK Fronting Bank for issuance of a UK Letter of Credit, in form and substance reasonably satisfactory to such UK Fronting Bank.

 

UK LC Conditions”: the following conditions necessary for issuance, renewal and extension of a UK Letter of Credit: (a) each of the conditions set forth in Section 6 being satisfied or waived; (b) after giving effect to such issuance, the total UK LC Obligations do not exceed the UK Letter of Credit Sublimit and no Multicurrency Overadvance exists or would result therefrom; (c) the expiration date of such UK Letter of Credit is (i) no more than 365 days from issuance (provided, that each UK Letter of Credit may, upon the request of the Applicable UK Borrower, include a provision whereby such Letter of Credit shall be renewed automatically for additional consecutive periods of twelve (12) months or less (but no later than five (5) Business Days prior to the Revolver Facility Termination Date)) or such other date as the Administrative Borrower, Agent and applicable UK Fronting Bank shall agree, and (ii) unless the applicable UK Fronting Bank and Agent otherwise consent (subject to the satisfaction of the Cash Collateral requirements set forth in Section 2.3.3), at least five (5) Business Days prior to the Revolver Facility Termination Date; (d) the UK Letter of Credit and payments thereunder are denominated in Dollars, Pounds Sterling or Euros; (e) the form of the proposed UK Letter of Credit is reasonably satisfactory to the applicable UK Fronting Bank; (f) the proposed use of the UK Letter of Credit is for a lawful purpose; (g) such UK Letter of Credit complies with the applicable UK Fronting Bank’s policies and procedures with respect thereto; (h) no UK Fronting Bank shall be required to issue any UK Letter of Credit if, after giving effect thereto, the aggregate amount of issued and outstanding UK Letters of Credit issued by such UK Fronting Bank and its Affiliates and branches would exceed (x) in the case of any UK Fronting Bank party hereto as of the Closing Date, the amount set forth opposite such UK Fronting Bank’s name on Schedule 1.1(a) under the heading “UK Letters of Credit Commitments” and (y) in the case of any UK Fronting Bank that becomes a UK Fronting Bank after the Closing Date, the amount which shall be set forth in the written agreement by which such UK Fronting Bank becomes a UK Fronting Bank hereunder, in each case, unless otherwise agreed by such UK Fronting Bank in its sole discretion; and (i) no UK Fronting Bank shall be required to issue any UK Letters of Credit other than standby letters of credit without its consent.

 

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UK LC Documents”: all documents, instruments and agreements (including UK LC Applications) required to be delivered by any UK Borrower or by any other Person to a UK Fronting Bank or Agent in connection with issuance, amendment or renewal of, or payment under, any UK Letter of Credit.

 

UK LC Obligations”: the Dollar Equivalent of the sum (without duplication) of (a) all amounts owing for any unreimbursed drawings under UK Letters of Credit; (b) the stated undrawn amount of all outstanding UK Letters of Credit; and (c) for the purpose of determining the amount of required Cash Collateralization only, all fees and other amounts owing with respect to such UK Letters of Credit.

 

UK Letter of Credit”: any standby, time (usance) or documentary letter of credit issued by a UK Fronting Bank for the account of a UK Borrower or a Restricted Subsidiary or any indemnity, guarantee or similar form of credit support issued by Agent or a Fronting Bank for the benefit of a UK Borrower or a Restricted Subsidiary, including any Existing UK Letter of Credit issued for the account of a UK Borrower or a Restricted Subsidiary.

 

UK Letter of Credit Sublimit”: $20,000,000.

 

UK Loan Party”: each UK Borrower and each UK Guarantor, and “UK Loan Parties” means all such Persons, collectively.

 

UK Non-Bank Lender”: means:

 

(a)            a Lender (which falls within clause (a)(ii) of the definition of UK Qualifying Lender) which becomes a Party on the Closing Date and which is listed in Schedule 2.1.1(a); and

 

(b)            where a Lender becomes a party after the Closing Date, an Eligible Assignee which gives a Tax Confirmation in the Assignment and Acceptance which it executes on becoming a party.

 

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UK Obligations”: all Obligations of the UK Loan Parties (including, for the avoidance of doubt, the Obligations of the UK Loan Parties as Guarantors of any Canadian Obligations).

 

UK Qualifying Lender”: means:

 

(a)            a Lender which is beneficially entitled to interest payable to that Lender in respect of an advance under a Loan Document and is:

 

(i)            a Lender;

 

(A)            which is a bank (as defined for the purpose of section 879 of the ITA) making an advance under a Loan Document and is within the charge to United Kingdom corporation tax as respects any payments of interest made in respect of that advance or would be within such charge as respects such payments apart from section 18A of the CTA; or

 

(B)            in respect of an advance made under a Loan Document by a person that was a bank (as defined for the purpose of section 879 of the ITA) at the time that such advance was made and is within the charge to United Kingdom corporation tax as respects any payments of interest made in respect of that advance; or

 

(ii)            a Lender which is:

 

(A)           a company resident in the United Kingdom for United Kingdom tax purposes;

 

(B)           a partnership, each member of which is:

 

(1)            a company so resident in the United Kingdom; or

 

(2)            a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of the CTA) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of the CTA; or

 

(C)            a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of section 19 of the CTA) of that company; or

 

(iii)            a UK Treaty Lender; or

 

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(b)            a Lender which is a building society (as defined for the purposes of section 880 of the ITA) making an advance under a Loan Document.

 

UK Reimbursement Date”: as defined in Section 2.3.2(a).

 

UK Resolution Authority”: means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.

 

UK Secured Obligations”: all Secured Obligations of the UK Loan Parties (including, for the avoidance of doubt, the Secured Obligations of the UK Loan Parties as Guarantors of any Canadian Secured Obligations).

 

UK Security Agreements”: (i) the English law debenture among certain UK Loan Parties and Agent; (ii) the English law share charge among certain Loan Parties and Agent; and (iii) the English law partnership debenture among certain Loan Parties and Agent, each of (i), (ii) and (iii) dated as of the Closing Date and each as may be amended, restated, amended and restated, supplemented or otherwise modified from time to time.

 

UK Subsidiary”: each Subsidiary of Holdings incorporated under the laws of England and Wales.

 

UK Swingline Commitment”: $20,000,000.

 

UK Swingline Lender”: Bank of America (London) or an Affiliate of Bank of America (London).

 

UK Swingline Loan”: a Swingline Loan made by the UK Swingline Lender to a UK Borrower pursuant to Section 2.1.7(b), which Swingline Loan shall be a UK Base Rate Loan.

 

UK Tax Deduction”: a deduction or withholding for or on account of Taxes imposed by the United Kingdom from a payment under any Loan Document, other than a FATCA Deduction.

 

UK Treaty Lender”: a Lender which:

 

(a)            is treated as a resident of a UK Treaty State for the purposes of the relevant treaty;

 

(b)            does not carry on a business in the United Kingdom, as applicable, through a permanent establishment with which that Lender’s participation in any advance is effectively connected; and

 

(c)            meets all other conditions in the relevant Treaty for full exemption from tax imposed by the United Kingdom on interest, subject to the completion of any procedural formalities.

 

UK Treaty State”: means a jurisdiction having a double taxation agreement (a “Treaty”) with the United Kingdom which makes provision for full exemption from tax imposed by the United Kingdom on interest.

 

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Unfinanced Capital Expenditures”: for any period, Capital Expenditures of WS International and the Restricted Subsidiaries made in cash during such period, except to the extent financed with the proceeds of Capitalized Lease Obligations or other Indebtedness (other than Loans incurred hereunder), equity issuances, cash received from the sale of any fixed assets (including, without limitation, assets of the type that may constitute Rental Equipment hereunder), casualty proceeds, condemnation proceeds or other proceeds that would not be included in Consolidated EBITDA, during such period; provided, that the aggregate amount of Unfinanced Capital Expenditures during such period may not be less than zero.

 

Unfunded Current Liability”: of any (i) US Employee Plan shall mean the amount, if any, by which the present value of the accrued benefits under the US Employee Plan as of the close of its most recent plan year, determined in accordance with Accounting Standards Codification Topic 715-30, formerly Statement of Financial Accounting Standards No. 87, as in effect on the Closing Date, based upon the actuarial assumptions that would be used by the US Employee Plan’s actuary in a termination of the US Employee Plan, exceeds the fair market value of the assets allocable thereto, and (ii) Canadian Pension Plan which provides benefits on a defined benefit basis shall mean the excess of the present value of the benefit liabilities determined on a plan termination basis in accordance with actuarial assumptions over the current value of the assets, and in any event includes any unfunded liability, solvency liability or wind up deficiency in respect of any such Canadian Pension Plan.

 

Unit”: any (a) Eligible Goods Inventory (disregarding for purposes of this definition the requirements of clauses (a) and (f) of the definition of Eligible Goods Inventory), (b) Eligible Machinery and Equipment (disregarding for purposes of this definition the requirements of clauses (a) and (d) of the definition of Eligible Machinery and Equipment) or (c) Eligible Rental Equipment (disregarding for purposes of this definition the requirements of clauses (a) and (h) of the definition of Eligible Rental Equipment) owned by a US Loan Party that, in each case, is of the type that, if it were located in a Titling State, it would be required to be subject to a Certificate of Title.

 

Unit Subsidiary”: WillScot Equipment II, LLC, a Delaware limited liability company.

 

Unit Subsidiary Management Agreement”: the Unit Subsidiary Management Agreement dated as of November 29, 2017 between WS International and Unit Subsidiary and shall include any other management agreement entered into by a Loan Party with the Unit Subsidiary so long as all terms and conditions thereof are reasonably acceptable to Agent.

 

Unrestricted Subsidiary”: (a) any Subsidiary of WS International (whether existing as of the Closing Date or formed or acquired thereafter) that the Administrative Borrower designates as an Unrestricted Subsidiary in a written notice to Agent, provided, that (x) such designation shall be deemed to be an Investment on the date of such designation in an Unrestricted Subsidiary in an amount equal to the sum of (i) WS International’s direct or indirect equity ownership percentage of the fair market value of such designated Restricted Subsidiary immediately prior to such designation and (ii) the aggregate outstanding principal amount of any Indebtedness owed by such designated Restricted Subsidiary to any Loan Party or any other Restricted Subsidiary immediately prior to such designation, all calculated on a consolidated basis in accordance with GAAP, (y) the Payment Condition shall be satisfied after giving effect to such designation, and (z) no Specified Default has occurred and is continuing at the time of such designation or would result from such designation or would exist after giving effect thereto (or, if such designation is part of a Limited Condition Transaction, on the LCT Test Date) and (b) each Subsidiary of an Unrestricted Subsidiary; provided, however, that (i) such Subsidiary shall constitute an “Unrestricted Subsidiary” (under and as defined in the 2023 Senior Secured Notes Indenture as in effect on the Closing Date and the 2025 Senior Secured Notes Indenture as in effect on the Closing Date) and an “unrestricted subsidiary” (or similar term) under any other document, instrument or agreement evidencing or governing Indebtedness of a Loan Party in a principal amount in excess of $100,000,000 at the time of any determination made hereunder (to the extent that the terms of such document, instrument or agreement provide that there may be unrestricted subsidiaries (or similar term) thereunder) and (ii) at the time of any written designation by the Administrative Borrower to Agent that any Unrestricted Subsidiary shall no longer constitute an Unrestricted Subsidiary, such Unrestricted Subsidiary shall cease to be an Unrestricted Subsidiary to the extent (x) no Specified Default has occurred and is continuing at the time of such designation or would result from such designation or would exist after giving effect thereto (or, if such designation is part of a Limited Condition Transaction, on the LCT Test Date), (y) the Payment Condition shall be satisfied after giving effect to such designation and (z) any Indebtedness of such Unrestricted Subsidiary or Liens on assets of such Unrestricted Subsidiary as of the date on which it becomes a Restricted Subsidiary shall be deemed to be an incurrence of Indebtedness and Liens on such date. As of the Closing Date, no Subsidiary is an Unrestricted Subsidiary. Notwithstanding anything herein to the contrary, no Borrower shall be designated as or otherwise be an Unrestricted Subsidiary.

 

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US”: the United States of America.

 

US Assignment of Claims Act”: Assignment of Claims Act of 1940, 31 USC. § 3727, 41 USC. § 15, as amended.

 

US Bankruptcy Code”: Title 11 of the United States Code.

 

US Base Rate”: for any day, a per annum rate equal to the greatest of (a) the US Prime Rate for such day; (b) the Federal Funds Rate for such day, plus 0.50%; or (c) LIBOR for Dollars for a one-month interest period as determined as of such day, plus 1.0%. In no event shall the US Base Rate be less than zero.

 

US Base Rate Loan”: any Revolver Loan made to a US Borrower denominated in Dollars that bears interest based on the US Base Rate.

 

US Borrowers”: (a) the Initial US Borrowers and (b) each other Wholly-Owned US Subsidiary that, after the date hereof, has executed a supplement or joinder to this Agreement in accordance with Section 9.1.12 and has satisfied the other requirements set forth in Section 9.1.12 in order to become a US Borrower.

 

US Borrowing Base”: at any time an amount equal to the sum (expressed in Dollars, based on the Dollar Equivalent thereof) of, without duplication:

 

(a)            eighty-five percent (85%) of the net book value of Eligible Accounts of any US Loan Party, plus

 

(b)            the lesser of:

 

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(i)            ninety-five percent (95%) of the net book value of Eligible Rental Equipment of any US Loan Party; and

 

(ii)            the product of (x) ninety percent (90%) multiplied by (y) either (I) in the case of Eligible Rental Equipment not covered by the following clause (II), the lower of the (A) Cost of Eligible Rental Equipment of any US Loan Party and (B) Net Orderly Liquidation Value percentage identified in the most recent Appraisal of the Eligible Rental Equipment of any US Loan Parties multiplied by the net book value of such Eligible Rental Equipment or (II) for Eligible Rental Equipment of any US Loan Party consisting of custom containers and ISO containers that are presold, the lower of (A) the Cost of such Eligible Rental Equipment and (B) the sales invoice price of such Eligible Rental Equipment, plus

 

(c)            the sum of:

 

(i)             ninety percent (90%) of the net book value of the Eligible Container Inventory Held For Sale of any US Loan Party;

 

(ii)            ninety percent (90%) of the net book value of the Eligible Work-In-Process Container Inventory of any US Loan Party; and

 

(iii)            sixty-five percent (65%) of either (x) Cost of the Eligible Raw Material Inventory of any US Loan Party or (y) if such Eligible Raw Material Inventory consists of steel, lumber, plywood, or paint, for purposes of fiscal year end calculations only, the lower of (I) Cost of such Eligible Raw Material Inventory or (II) fair market value of such Eligible Raw Material Inventory;

 

provided, that the amount of the US Borrowing Base pursuant to this clause (c) shall not exceed (i) $100,000,000 at any time individually with respect to the US Borrowing Base and (ii) $200,000,000 in the aggregate when taken together with the amount of the UK Borrowing Base pursuant to clause (c) of the definition thereof and the amount of the Canadian Borrowing Base pursuant to clause (c) of the definition thereof, plus

 

(d)            the sum of:

 

(i)             eighty-five percent (85%) of the Net Orderly Liquidation Value percentage identified in the most recent Appraisal of Eligible Machinery and Equipment of any US Loan Party; and

 

(ii)            solely at the Administrative Borrower’s option, sixty percent (60%) of the Appraised Fair Market Value of Eligible Real Property;

 

provided, that the amount included in the US Borrowing Base pursuant to this clause (d) shall not exceed $125,000,000, plus

 

(e)            one-hundred percent (100%) of Eligible Qualified Cash of any US Loan Party, minus

 

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(f)            upon five (5) Business Days’ prior written notification thereof to the Administrative Borrower by Agent (after consultation with the Administrative Borrower in accordance with the definition of the term “Permitted Discretion”), any and all Reserves established against the US Borrowing Base.

 

Clauses (a) through (e) of the US Borrowing Base at any time shall be determined by reference to the most recent Borrowing Base Certificate theretofore delivered to Agent.

 

US Collateral”: Collateral that now or hereafter secures (or is intended to secure) any of the US Secured Obligations, including property of US Loan Parties pledged to secure the US Secured Obligations under the Security Documents to which they are a party.

 

US Dominion Account”: each lockbox or Deposit Account established by the US Loan Parties which is subject to a Deposit Account Control Agreement in favor of Agent in accordance with Section 7.3.2.

 

US Employee Plan”: an employee pension benefit plan within the meaning of Section 3(2) of ERISA (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, which is or, during the five-year period immediately preceding the date hereof, was sponsored, maintained or contributed to by, or required to be contributed to by, any US Loan Party or any of their ERISA Affiliates domiciled in the US, excluding, for greater clarity, any Foreign Plan or arrangement subject to the laws of a non-US jurisdiction.

 

US Facility”: the credit facility provided by the US Facility Lenders to the US Borrowers hereunder.

 

US Facility Availability”: as of any date of determination, the difference between:

 

(a) the lesser of (i) the US Facility Commitments and (ii) the US Borrowing Base (provided that for purposes of determining US Facility Availability, the US Borrowing Base as of such date of determination shall be deemed to be reduced by the amount by which the Total Multicurrency Facility Exposure as of such date of determination exceeds the sum of the Canadian Borrowing Base and the UK Borrowing Base as of such date of determination) as of such date of determination, minus

 

(b) the principal balance of all US Facility Loans and all US LC Obligations as of such date of determination (other than, if no Event of Default exists, those constituting charges owing to any US Fronting Bank).

 

US Facility Commitment”: for any US Facility Lender, its obligation to make US Facility Loans to the US Borrowers and to participate in US LC Obligations up to the maximum principal amount shown on Schedule 2.1.1(b), or, in the case of any Additional US Facility Lender, up to the maximum principal amount indicated on the joinder agreement executed and delivered by such Additional US Facility Lender pursuant to Section 2.1.9(c)(iv) or as hereafter determined pursuant to each Assignment and Acceptance to which it is a party, as such US Facility Commitment may be adjusted from time to time in accordance with the provision of Sections 2.1.3, 2.1.9 or 10.1.

 

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US Facility Commitment Increase”: as defined in Section 2.1.9(b).

 

US Facility Commitment Termination Date”: the earliest of (a) the Revolver Facility Termination Date, (b) the date on which the Administrative Borrower terminates or reduces to zero all of the US Facility Commitments pursuant to Section 2.1.3(b), and (c) the date on which the US Facility Commitments are terminated pursuant to Section 10.1. From and after the US Facility Commitment Termination Date, the US Borrowers shall no longer be entitled to request a US Facility Commitment Increase pursuant to Section 2.1.9 hereof.

 

US Facility Lender”: each Lender that has a US Facility Commitment (including each Additional US Facility Lender) and each other Lender that acquires an interest in the US Facility Loans and/or US LC Obligations pursuant to an Assignment and Acceptance.

 

US Facility Loan”: (i) a Revolver Loan made by a US Facility Lender to a US Borrower pursuant to Section 2.1.1(b), which Revolver Loan shall be denominated in Dollars and shall be either a US Base Rate Loan or a LIBOR Loan, in each case as selected by the Administrative Borrower, and (ii) each US Swingline Loan, US Overadvance Loan and US Protective Advance.

 

US Facility Note”: the promissory notes, if any, executed by the US Borrowers in favor of each US Facility Lender to evidence the US Facility Loans funded from time to time by such US Facility Lender, which shall be substantially in the form of Exhibit B-2 to this Agreement or such other form as Agent may agree, together with any replacement or successor notes therefor.

 

US Facility Obligations”: all Obligations of the US Loan Parties pertaining to US Facility Commitments, US Facility Loans borrowed by any US Borrower and US LC Obligations, including any guarantees in respect thereof.

 

US Fronting Bank”: (a) Bank of America, JPMorgan Chase Bank, N.A.; Deutsche Bank AG New York Branch; ING Capital LLC; BBVA USA; Bank of the West; PNC Bank, National Association; MUFG Union Bank, N.A.; and M&T Bank; or, in each case, any of their respective Affiliates or branches that agrees to issue US Letters of Credit, (b) for purposes of such Existing US Letters of Credit, any US Facility Lender that issued an Existing US Letter of Credit, and (c) if reasonably acceptable to the Administrative Borrower, any other US Facility Lender or Affiliate or branch thereof that agrees to issue US Letters of Credit.

 

US Fronting Bank Indemnitees”: any US Fronting Bank and its Affiliates and branches and their respective officers, directors, employees, agents, advisors and other representatives.

 

US Guarantors”: (a) each US Borrower, (b) the Initial US Guarantors and (c) each other US Subsidiary that, after the date hereof, has executed a supplement or joinder to this Agreement in accordance with Section 9.1.12 and has satisfied the other requirements set forth in Section 9.1.12 in order to become a US Guarantor.

 

US LC Application”: an application by any US Borrower on behalf of itself or any other US Restricted Subsidiary to a US Fronting Bank for issuance of a US Letter of Credit, in form and substance reasonably satisfactory to such US Fronting Bank.

 

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US LC Conditions”: the following conditions necessary for issuance, renewal and extension of a US Letter of Credit: (a) each of the conditions set forth in Section 6 being satisfied or waived; (b) after giving effect to such issuance, total US LC Obligations do not exceed the US Letter of Credit Sublimit, (ii) no US Overadvance exists or would result therefrom and (iii) the sum of the Dollar Equivalent of the outstanding amount of all US Loans made to all US Borrowers and the US LC Obligations of all US Loan Parties does not exceed the US Borrowing Base (provided that for purposes of determining whether this clause (b)(iii) has been satisfied, the US Borrowing Base shall be deemed to be reduced by the amount by which the Total Multicurrency Facility Exposure exceeds the sum of the Canadian Borrowing Base and the UK Borrowing Base); (c) the expiration date of such US Letter of Credit is (i) no more than 365 days from issuance (provided, that each US Letter of Credit may, upon the request of the Applicable US Borrower, include a provision whereby such Letter of Credit shall be renewed automatically for additional consecutive periods of twelve (12) months or less (but no later than five (5) Business Days prior to the Revolver Facility Termination Date)) or such other date as the Administrative Borrower, Agent and the applicable US Fronting Bank shall agree, and (ii) unless the applicable US Fronting Bank and Agent otherwise consent (subject to the satisfaction of the Cash Collateral requirements set forth in Section 2.4.3), at least five (5) Business Days prior to the Revolver Facility Termination Date; (d) the US Letter of Credit and payments thereunder are denominated in Dollars; (e) the form of the proposed US Letter of Credit is reasonably satisfactory to the applicable US Fronting Bank; (f) the proposed use of the US Letter of Credit is for a lawful purpose; (g) such US Letter of Credit complies with the applicable US Fronting Bank’s policies and procedures with respect thereto; (h) no US Fronting Bank shall be required to issue any US Letter of Credit if, after giving effect thereto, the aggregate amount of issued and outstanding US Letters of Credit issued by such US Fronting Bank and its Affiliates and branches would exceed (x) in the case of any US Fronting Bank party hereto as of the Closing Date, the amount set forth opposite such US Fronting Bank’s name on Schedule 1.1(a) under the heading “US Letters of Credit Commitments” and (y) in the case of any US Fronting Bank that becomes a US Fronting Bank after the Closing Date, the amount which shall be set forth in the written agreement by which such US Fronting Bank becomes a US Fronting Bank hereunder, in each case, unless otherwise agreed by such US Fronting Bank in its sole discretion; and (i) no US Fronting Bank shall be required to issue any US Letters of Credit other than standby letters of credit without its consent.

 

US LC Documents”: all documents, instruments and agreements (including US LC Applications) required to be delivered by any US Borrower or by any other Person to a US Fronting Bank or Agent in connection with issuance, amendment or renewal of, or payment under, any US Letter of Credit.

 

US LC Obligations”: the sum (without duplication) of (a) all amounts owing in respect of any unreimbursed drawings under US Letters of Credit; (b) the stated undrawn amount of all outstanding US Letters of Credit; and (c) for the purpose of determining the amount of required Cash Collateralization only, all fees and other amounts owing with respect to US Letters of Credit.

 

US Letter of Credit”: any standby, time (usance) or documentary letter of credit issued by a US Fronting Bank for the account of a US Borrower or any Restricted Subsidiary, including any Existing US Letter of Credit issued for the account of a US Borrower or a Restricted Subsidiary.

 

US Letter of Credit Sublimit”: $125,000,000.

 

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US Loan Party”: each US Borrower and each US Guarantor, and “US Loan Parties” means all such Persons, collectively.

 

US Loans”: (i) a US Facility Loan and (ii) each Multicurrency Facility Loan made by a Multicurrency Facility Lender to a US Borrower pursuant to Section 2.1.1(a).

 

US Obligations: all Obligations of the US Loan Parties (including, for the avoidance of doubt, the Obligations of the US Loan Parties as Guarantors of any Obligations).

 

US Overadvance”: as defined in Section 2.1.4(b).

 

US Overadvance Loan”: a US Base Rate Loan made to a US Borrower when a US Overadvance exists or is caused by the funding thereof.

 

US Person”: any Person that is a “United States Person” as defined in Section 7701(a)(30) of the Code.

 

US Prime Rate”: the rate of interest announced by Bank of America from time to time as its prime rate. Such rate is set by Bank of America on the basis of various factors, including its costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above or below such rate. Any change in such rate announced by Bank of America shall take effect at the opening of business on the day specified in the public announcement of such change. In no event shall the US Prime Rate be less than zero.

 

US Protective Advances”: as defined in Section 2.1.5(b).

 

US Reimbursement Date”: as defined in Section 2.4.2(a).

 

US Secured Obligations”: all Secured Obligations of the US Loan Parties (including, for the avoidance of doubt, the Secured Obligations of the US Loan Parties as Guarantors of any Secured Obligations).

 

US Secured Parties”: Agent, any US Fronting Bank, US Facility Lenders and Secured Bank Product Providers of Bank Products to US Loan Parties and any other Secured Parties that are the holders of, or the beneficiaries of, any Guarantee of any US Facility Obligations.

 

US Security Agreement”: the Security and Pledge Agreement substantially in the form of Exhibit K hereto among the US Loan Parties (including Holdings) and Agent, as such Security and Pledge Agreement may be amended, supplemented, modified or waived.

 

US Special Resolution Regimes”: has the meaning specified in Section 13.20.

 

US Subsidiary”: a Subsidiary of Holdings that is organized under the laws of the United States, any state of the United States or the District of Columbia.

 

US Swingline Commitment”: $100,000,000.

 

US Swingline Lender”: Bank of America or an Affiliate of Bank of America.

 

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US Swingline Loan”: a Swingline Loan made by the US Swingline Lender to a US Borrower pursuant to Section 2.1.7(c), which Swingline Loan shall be denominated in Dollars and shall be a US Base Rate Loan.

 

"VAT" means:

 

(a)            any tax imposed in compliance with the Council Directive of 28 November 2006 on the common system of value added tax (EC Directive 2006/112); and

 

(b)           any other tax of a similar nature, whether imposed in a member state of the European Union in substitution for, or levied in addition to, such tax referred to in clause (a) above, or imposed elsewhere.

 

Voting Stock”: with respect to any Person, any class or classes of equity interests pursuant to which the holders thereof have the general voting power under ordinary circumstances, in the absence of contingencies, to elect at least a majority of the board of directors of such Person.

 

Wholly-Owned”: with respect to any Person at any time any Subsidiary, 100% of whose Stock (other than (i) Stock owned by third parties on the Closing Date and (ii) in the case of any Non-US Subsidiary, nominal directors’ qualifying shares or other nominal shares legally required to be held by third parties) is at such time owned, directly or indirectly, by such Person or by one or more Wholly-Owned Subsidiaries of such Person.

 

Write-Down and Conversion Powers”: (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.

 

WS International”: as defined in the preamble to this Agreement.

 

1.2          Accounting Terms. Under the Loan Documents (except as otherwise specified herein), all accounting terms shall be interpreted, all accounting determinations shall be made, and all financial statements shall be prepared, in accordance with GAAP. In the event that the Administrative Borrower shall notify Agent that the Loan Parties have adopted IFRS or any Accounting Changes (as defined below) shall occur and such change results in a change in the method of calculation of financial covenants, standards or terms in this Agreement, then regardless of whether any such notice is given before or after such adoption or such Accounting Change or in the application thereof, at the request of the Administrative Borrower, Agent or the Required Lenders, the Administrative Borrower, Agent and the Lenders agree to enter into good faith negotiations in order to amend such provisions of this Agreement so as to reflect equitably such adoption or such Accounting Changes with the desired result that the criteria for evaluating the financial condition of the Loan Parties and the Restricted Subsidiaries shall be substantially the same after such change as if such change had not been made. Until such time as such an amendment shall have been executed and delivered by the Loan Parties, Agent and the Required Lenders, (i) all financial covenants, standards and terms in this Agreement shall continue to be calculated or construed as if such adoption or such Accounting Changes had not occurred and (ii) to the extent the applicable Accounting Change is the result of a proposal by the Administrative Borrower pursuant to clause (ii) of the definition thereof, the Loan Parties shall provide to Agent and the Lenders any documents and calculations reasonably requested by Agent setting forth a reconciliation between calculations of such ratios and requirements and other terms of an accounting or a financial nature made before and after giving effect to such adoption or such Accounting Change. “Accounting Changes” refers to changes in accounting principles (i) required by the promulgation or change in application of any rule, regulation, pronouncement or opinion by the United States Financial Accounting Standards Board or International Accounting Standards Board, as applicable, or (ii) otherwise proposed by the Administrative Borrower to, and approved by, Agent. Notwithstanding the foregoing, for purposes of determining compliance with any covenant contained herein, Indebtedness of WS International and its Subsidiaries shall be deemed to be carried at 100% of the outstanding principal amount thereof, and the effects of any accounting principles on financial liabilities shall be disregarded.

 

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1.3          Uniform Commercial Code/PPSA. As used herein, the following terms are defined in accordance with the UCC in effect in the State of New York from time to time: “Chattel Paper”, “Commercial Tort Claim”, “Instrument”, “Investment Property” (and, subject to Section 1.6, as such terms relate to any such Property of any Canadian Loan Party, such terms shall refer to such Property as defined in the PPSA or the Securities Transfer Act, 2006 to the extent applicable). In addition, other terms relating to Collateral used and not otherwise defined herein that are defined in the UCC and/or the PPSA shall have the meanings set forth in the UCC and/or the PPSA, as applicable and as the context requires.

 

1.4          Certain Matters of Construction. The terms “herein,” “hereof,” “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular section, paragraph or subdivision. Any pronoun used shall be deemed to cover all genders. In the computation of periods of time from a specified date to a later specified date, “from” means “from and including,” and “to” and “until” each mean “to but excluding.” All references to “knowledge” or “awareness” of any Loan Party or any Restricted Subsidiary thereof means the actual knowledge of a Senior Officer of such Loan Party or such Restricted Subsidiary. The terms “including” and “include” shall mean “including, without limitation” and, for purposes of each Loan Document, the parties agree that the rule of ejusdem generis shall not be applicable to limit any provision. Section titles appear as a matter of convenience only and shall not affect the interpretation of any Loan Document. All references to (a) laws or statutes include all related rules, regulations, interpretations, amendments and successor provisions; (b) any reference to any Loan Document shall be deemed to include any amendments, restatements, waivers and other modifications, extensions or supplements to, or renewals of, such Loan Document and any reference to any other document, instrument or agreement shall be deemed to include any amendments, restatements, waivers and other modifications, extensions or supplements to, or renewals of, such document, instrument or agreement so long as the same is not prohibited under this Agreement or the other Loan Documents; (c) section means, unless the context otherwise requires, a section of this Agreement; (d) any exhibits or schedules mean, unless the context otherwise requires, exhibits and schedules attached hereto, which are hereby incorporated by reference; (e) any Person includes successors, permitted transferees and permitted assigns of such Person; (f) time of day means time of day in New York, New York (Eastern Time) unless otherwise specified herein; (g) discretion of Agent, any Fronting Bank or any Lender means the sole and absolute discretion of such Person exercised in a manner consistent with its duties of good faith and fair dealing; (h) “property” or “asset” includes any real or personal, present or future, tangible or intangible property or asset and any right, interest, revenue or benefit in, under or derived from the property or asset; and (i) for the purposes of this Agreement and the other Loan Documents governed by the laws of the United States, any “foreign” jurisdiction means any jurisdiction outside of the United States of America. The meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms. To the extent not otherwise specified herein, Borrowing Base calculations for each Borrower shall be consistent with historical methods of valuation and calculation for such Borrower’s Borrowing Base under this Agreement or such Borrower’s borrowing base under any asset based loan facility of such Borrower in existence immediately prior to its entering into this Agreement, and otherwise reasonably satisfactory to Agent (and not necessarily calculated in accordance with GAAP). No provision of any Loan Documents shall be construed against any party by reason of such party having, or being deemed to have, drafted the provision. Whenever any payment, certificate, notice or other delivery shall be stated to be due on a day other than a Business Day, the due date for such payment or delivery shall be extended to the next succeeding Business Day, and such extension of time shall in such case be included in the computation of interest or fees, as the case may be; provided, however, that if such extension would cause payment of interest on or principal of any Interest Period Loan to be made in the next calendar month, such payment shall be made on the immediately preceding Business Day. Agent does not warrant, nor accept responsibility, nor shall Agent have any liability with respect to the administration, submission or any other matter related to the rates in the definition of “LIBOR” or with respect to any comparable or successor rate thereto, except as expressly provided herein, including, for the avoidance of doubt, as set forth in Section 13.22.

 

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1.5          Currency Calculations. Unless expressly provided otherwise, all references in the Loan Documents to Loans, Letters of Credit, Obligations, Revolver Commitments, availability, Borrowing Base components and other amounts shall be denominated in Dollars. The Dollar Equivalent of any amounts denominated or reported under a Loan Document in a currency other than Dollars shall be determined by Agent on a daily basis, based on the current Exchange Rate. Loan Parties shall report the value of any Borrowing Base components to Agent in the currency invoiced by Loan Parties or shown in Loan Parties’ financial records, and unless expressly provided otherwise herein, shall deliver financial statements and calculate financial covenants in Dollars. Notwithstanding anything herein to the contrary, if any Obligation is funded and expressly denominated in a currency other than Dollars, Borrowers shall repay such Obligation in such other currency.

 

1.6          Interpretation (Quebec). For purposes of any Collateral located in the Province of Quebec or charged by any deed of hypothec (or any other Loan Document) and for all other purposes pursuant to which the interpretation or construction of a Loan Document may be subject to the laws of the Province of Quebec or a court or tribunal exercising jurisdiction in the Province of Québec, (a) “personal property” shall be deemed to include “movable property”, (b) “real property” shall be deemed to include “immovable property”, (c) “tangible property” shall be deemed to include “corporeal property”, (d) “intangible property” shall be deemed to include “incorporeal property”, (e) “security interest”, “mortgage” and “lien” shall be deemed to include a “hypothec”, “prior claim”, “right of retention”, “reservation of ownership” and a “resolutory clause”, (f) all references to filing, registering or recording under the UCC or the PPSA shall be deemed to include publication under the Civil Code, (g) all references to “perfection” of or “perfected” Liens shall be deemed to include a reference to “opposable” or “set up” Liens as against third parties, (h) any “right of offset”, “right of setoff” or similar expression shall be deemed to include a “right of compensation”, (i) “goods” shall be deemed to include “corporeal movable property” other than chattel paper, documents of title, instruments, money and securities, (j) an “agent” shall be deemed to include a “mandatary”, (k) “construction liens” or “mechanics, materialmen, repairmen, construction contractors or other like Liens” shall be deemed to include “legal hypothecs” and “legal hypothecs in favor of persons having taken part in the construction or renovation of an immovable”, (l) “joint and several” shall be deemed to include “solidary”, (m) “gross negligence or willful misconduct” shall be deemed to be “intentional or gross fault”, (n) “beneficial ownership” shall be deemed to include “ownership on behalf of another as mandatary”, (o) “easement” shall be deemed to include “servitude”, (p) “priority” shall be deemed to include “rank” or “prior claim”, as applicable (q) “survey” shall be deemed to include “certificate of location and plan”, and (r) “fee simple title” shall be deemed to include “absolute ownership” and “ownership” (including ownership under a right of superficies), (s) “accounts” shall include “claims”, (t) “legal title” shall be deemed to include “holding title on behalf of an owner as mandatary or prête-nom”, (u) “ground lease” shall be deemed to include “emphyteusis” or a “lease with a right of superficies”, as applicable, (v) “leasehold interest” shall be deemed to include a “valid lease”, (w) “lease” shall be deemed to include a “leasing contract”, (x) “guarantee” and “guarantor” shall be deemed to include “suretyship” and “surety”, respectively, and (y) “foreclosure” shall be deemed to include the “exercise of a hypothecary right”. The parties hereto confirm that it is their wish that this Agreement and any other document executed in connection with the transactions contemplated herein be drawn up in the English language only (except if another language is required under any Applicable Law) and that all other documents contemplated thereunder or relating thereto, including notices, may also be drawn up in the English language only. Les parties aux présentes confirment que c’est leur volonté que cette convention et les autres documents de crédit soient rédigés en langue anglaise seulement et que tous les documents, y compris tous avis, envisagés par cette convention et les autres documents peuvent être rédigés en la langue anglaise seulement (sauf si une autre langue est requise en vertu d’une Applicable Law).

 

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1.7          Pro Forma Calculations.

 

(a)            For purposes of determining the Interest Coverage Ratio, the Total Net Leverage Ratio, the Consolidated Total Assets and the Consolidated Fixed Charge Coverage Ratio (including Consolidated EBITDA and the other components of such ratios), Investments, Dividends, prepayments, repurchases, redemptions or defeasance of Indebtedness, the designation of a Subsidiary as a Restricted Subsidiary or an Unrestricted Subsidiary, the incurrence or repayment of Indebtedness (other than Indebtedness incurred or repaid under any revolving credit facility in the ordinary course of business for working capital purposes), acquisitions, dispositions, mergers, amalgamations, consolidations and disposed operations (as determined in accordance with GAAP) that have been made by WS International or any of the Restricted Subsidiaries during a Test Period or subsequent to such Test Period and on or prior to the date that the Interest Coverage Ratio, the Total Net Leverage Ratio, the Consolidated Total Assets and the Consolidated Fixed Charge Coverage Ratio is being tested shall be calculated on a pro forma basis assuming that all such Investments, Dividends, prepayments, repurchases, redemptions or defeasance of Indebtedness, acquisitions, dispositions, mergers, amalgamations consolidations and disposed operations (and, for the avoidance of doubt, the change in any associated fixed charge obligations and the change in Consolidated EBITDA resulting therefrom) had occurred on the first day of the Test Period. If since the beginning of such Test Period any Person that subsequently became a Restricted Subsidiary or was merged or amalgamated with or into WS International or any of the Restricted Subsidiaries since the beginning of such period shall have made any Investment, Dividends, prepayments, repurchases, redemptions or defeasance of Indebtedness, acquisition, disposition, merger, amalgamation, consolidation or disposed operation that would have required adjustment pursuant to the preceding sentence, then the Interest Coverage Ratio, the Total Net Leverage Ratio, the Consolidated Total Assets and the Consolidated Fixed Charge Coverage Ratio (including Consolidated EBITDA and the other components of such ratios) shall be calculated giving pro forma effect thereto for such period as if such Investment, Dividends, prepayments, repurchases, redemptions or defeasance of Indebtedness, acquisition, disposition, merger, amalgamation, consolidation or disposed operation had occurred at the beginning of the Test Period.

 

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(b)            Whenever pro forma effect is to be given with respect to a transaction or specified action, the pro forma calculations shall be made in good faith by a responsible financial or accounting officer of the Administrative Borrower and shall be made in accordance with Article 11 of Regulation S-X. In addition to pro forma adjustments made in accordance with Article 11 of Regulation S-X, pro forma calculations may also include operating expense reductions and operating improvements or synergies for such period resulting from any asset sale or other disposition or acquisition, Investment, merger, amalgamation, consolidation, discontinued operation, cost savings initiatives, operating improvements and changes or business optimization and other restructuring and integration activities for which pro forma effect is being given that (A) have been realized or (B) for which specified actions have been taken or are reasonably expected to be taken within twenty-four (24) months of the date of such transaction; provided, that (w) any pro forma adjustments made pursuant to this sentence shall be set forth in Compliance Certificates of the Administrative Borrower delivered to Agent pursuant to Section 9.1.1(d) and, to the extent required hereunder, in any certificate required to be delivered under the definition of Payment Condition, (x) such operating expense reductions, operating improvements or synergies are reasonably identifiable and quantifiable in the good faith judgment of the Administrative Borrower, (y) no operating expense reductions, operating improvements or synergies shall be given pro forma effect to the extent duplicative of any expenses or charges relating to such operating expense reductions, operating improvements or synergies that are added back pursuant to the definition of Consolidated EBITDA, and (z) operating expense reductions, operating improvements or synergies given pro forma effect shall not include any operating expense reductions, operating improvements or synergies related to the combination of the operation of any Person, property, business or asset acquired, including pursuant to the Transactions or pursuant to a transaction consummated prior to the Closing Date, and subsequently so disposed of. Such pro forma adjustments may be in addition to (but not duplicative of) adjustments to Consolidated Net Income and addbacks to Consolidated EBITDA; provided, that the sum of (i) the aggregate amount of operating expense reductions, operating improvements and synergies pursuant to this Section 1.7(b), plus (ii) the aggregate amount of increases to Consolidated EBITDA pursuant to clause (h) of the definition thereof shall not exceed 20% of Consolidated EBITDA for any four consecutive fiscal quarter period (calculated prior to giving effect to such adjustments). If any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date that Consolidated EBITDA is being tested had been the applicable rate for the entire period (taking into account any hedging obligations applicable to such Indebtedness). Interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Administrative Borrower to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP. For purposes of making the computation referred to above, interest on any Indebtedness under a revolving credit facility computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period. Interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Administrative Borrower may designate.

 

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1.8          Limited Condition Transaction.

 

(a)            For purposes of (i) determining compliance with any provision of this Agreement which requires the calculation of the Interest Coverage Ratio, the Total Net Leverage Ratio, the Consolidated Total Assets or the Consolidated Fixed Charge Coverage Ratio, (ii) determining compliance with representations and warranties (other than, in the case of an acquisition or other similar Investment, certain customary “specified representations” or, at the option of the Administrative Borrower, European “certain funds” representations) or absence of Defaults or Events of Default, (iii) testing availability under baskets set forth in this Agreement (including baskets measured as a percentage of Consolidated Total Assets or Consolidated EBITDA) or (iv) satisfying the Payment Conditions, in each case, in connection with a Limited Condition Transaction (and each transaction entered into connection therewith, including, without limitation, the incurrence of any Indebtedness, or the issuance of any shares of Disqualified Stock, the incurrence of any Liens or the making of Investments, Dividends, prepayments of Junior Debt, asset sales, transfers and dispositions, fundamental changes or the designation of any Restricted Subsidiary or Unrestricted Subsidiary), at the option of the Administrative Borrower (the Administrative Borrower’s election to exercise such option in connection with any Limited Condition Transaction, an “LCT Election”), the date of determination of whether any such action is permitted hereunder shall be deemed to be (A) in the case of any acquisition or other similar Investment (including with respect to any Indebtedness to be incurred in connection therewith), either, at the Administrative Borrower’s option (x) as of the date the definitive agreements for such acquisition or other similar Investment are entered into, (y) at the time that binding commitments to provide any Indebtedness to be incurred in connection therewith are provided or at the time such Indebtedness is incurred or (z) at the time of the consummation of the relevant acquisition or other similar Investment, (B) in the case of any Dividends (including with respect to any Indebtedness to be incurred in connection therewith), either, at the Administrative Borrower’s option, (x) at the time of the declaration of such Dividend, (y) at the time that binding commitments to provide any Indebtedness to be incurred in connection therewith are provided or are the time such Indebtedness is incurred or (z) at the time of the making of such Dividend, and (C) in the case of any irrevocable repayment, repurchase or redemption of Indebtedness (including with respect to any Indebtedness to be incurred in connection therewith), either, at the option of the Administrative Borrower (x) at the time of delivery of notice with respect to such repayment, repurchase or redemption, (y) at the time that binding commitments to provide any Indebtedness to be incurred in connection therewith are provided or at the time such Indebtedness is incurred or (z) at the time of the making of such repayment, repurchase or redemption (each such time described in clauses (A) through (C), the “LCT Test Date”), in each case, after giving effect to the relevant transaction, any related Indebtedness (including the intended use of proceeds thereof), and all other permitted pro forma adjustments on a pro forma basis, and if, after giving pro forma effect to the Limited Condition Transaction and the other transactions to be entered into in connection therewith as if they had occurred at the beginning of the most recent Test Period ending prior to the LCT Test Date, the Borrowers or other Restricted Subsidiaries could have taken such action on the relevant LCT Test Date in compliance with such ratio, representation, warranty, absence of Defaults or Events of Default, basket or Payment Condition, such ratio, representation, warranty, absence of Defaults or Events of Default, basket or Payment Condition shall be deemed to have been complied with, provided, that (I) in the event the Administrative Borrower makes an LCT Election in connection with the making of a Dividend, a reserve shall be established in an amount no greater than the amount of such Dividend (or such lesser amount as Agent shall agree in its Permitted Discretion) at the time of making such LCT Election (such reserve, a “LCT Dividend Reserve”) and (II) the determination of or testing of a Payment Condition on an LCT Test Date in connection with a Limited Condition Transaction shall only be permitted to the extent such Limited Condition Transaction is consummated within sixty (60) days of such LCT Test Date.

 

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(b)            For the avoidance of doubt, if the Administrative Borrower has made an LCT Election and any of the ratios or baskets for which compliance was determined or tested as of the LCT Test Date are exceeded as a result of fluctuations in any such ratio or basket (including due to fluctuations of the target of any acquisition or other similar Investment that is part of such Limited Condition Transaction) at or prior to the consummation of the relevant transaction or action, such baskets or ratios will not be deemed to have been exceeded as a result of such fluctuations. If the Administrative Borrower has made an LCT Election for any Limited Condition Transaction, then in connection with any subsequent calculation of such ratios or baskets on or following the relevant LCT Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated or (ii) the date that the definitive agreement for such Limited Condition Transaction is terminated or expires or such irrevocable notice is rescinded, as applicable, without consummation of such Limited Condition Transaction, any such ratio or basket shall be calculated on a pro forma basis assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) have been consummated. Notwithstanding the foregoing, assets of the target of any acquisition or other similar Investment that is part of a Limited Condition Transaction shall not be included in the Borrowing Base until the date on which such Limited Condition Transaction is consummated.

 

(c)            Notwithstanding anything herein to the contrary (other than as set forth in Section 2.1.9(c)), this Section 1.8 shall not be applicable in determining whether the conditions precedent set forth in Section 6 have been satisfied with respect to the making of any Loan or the issuance, extension or renewal of any Letter of Credit.

 

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1.9          Compliance with Certain Sections. For purposes of determining compliance with Section 9.2, in the event that any Lien, Indebtedness (whether at the time of incurrence or upon application of all or a portion of the proceeds thereof), Investment, Dividend, prepayment of Junior Debt, fundamental change, disposition or contractual requirement, meets the criteria of one, or more than one, of the “baskets” or categories of transactions then permitted pursuant to any clause or subsection of Section 9.2 related thereto, such transaction (or portion thereof) at any time shall be permitted under one or more of such clauses at the time of such transaction or any later time from time to time, in each case, as determined by the Administrative Borrower in its sole discretion at such time and thereafter may be reclassified by the Administrative Borrower in any manner not expressly prohibited by this Agreement; provided, that (w) all Indebtedness outstanding under the Loan Documents will at all times be deemed to be outstanding in reliance on Section 9.2.1(b)(i)(A), (w) all Indebtedness outstanding under the 2025 Senior Secured Notes and any Refinancing Indebtedness with respect thereto will at all times be deemed to be outstanding in reliance on Section 9.2.1(b)(i)(B), (x) all Indebtedness outstanding under the 2023 Senior Secured Notes and any Refinancing Indebtedness with respect thereto will at all times be deemed to be outstanding in reliance on Section 9.2.1(b)(i)(C), (y) all Indebtedness under Hedge Agreements will at all times be deemed to be outstanding in reliance on Section 9.2.1(b)(viii) and (z) no such classification or reclassification shall obviate the requirement for any Indebtedness secured by any of the Collateral to be subject to the Intercreditor Agreement to the extent otherwise required by this Agreement. With respect to (x) any amounts incurred or transactions entered into (or consummated) in reliance on a provision of this Agreement that do not require compliance with a financial ratio or test (including the Interest Coverage Ratio, the Consolidated Fixed Charge Coverage Ratio, the Total Net Leverage Ratio, Consolidated EBITDA and/or Consolidated Total Assets) substantially concurrently with (y) any amounts incurred or transactions entered into (or consummated) in reliance on a provision of this Agreement that requires compliance with a financial ratio or test (including the Interest Coverage Ratio, the Consolidated Fixed Charge Coverage Ratio, the Total Net Leverage Ratio, Consolidated EBITDA and/or the Consolidated Total Assets), it is understood and agreed that the amounts in clause (x) shall be disregarded in the calculation of the financial ratio or test applicable to the amounts in clause (y).

 

1.10        Interest Rates. Agent does not warrant, nor accept responsibility, nor shall Agent have any liability with respect to the administration, submission or any other matter related to the rates in the definition of “LIBOR” or with respect to any rate that is an alternative or replacement for or successor to any of such rate (including, without limitation, any LIBOR Successor Rate) or the effect of any of the foregoing, or of any LIBOR Successor Rate Conforming Changes.

 

1.11        Divisions. For all purposes under the Loan Documents, in connection with any division or plan of division under Delaware law (or any comparable event under a different jurisdiction’s laws): (a) if any asset, right, obligation or liability of any Person becomes the asset, right, obligation or liability of a different Person, then it shall be deemed to have been transferred from the original Person to the subsequent Person, and (b) if any new Person comes into existence, such new Person shall be deemed to have been organized on the first date of its existence by the holders of its Equity Interests at such time.

 

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SECTION 2.        CREDIT FACILITIES

 

2.1          Commitment.

 

2.1.1        Revolver Loans.

 

(a)            Multicurrency Facility Loans. Each Multicurrency Facility Lender agrees, severally and not jointly with the other Multicurrency Facility Lenders, upon the terms and subject to the conditions set forth herein, to make Multicurrency Facility Loans to any of the Borrowers on any Business Day during the period from the Closing Date to the Multicurrency Facility Commitment Termination Date, not to exceed an aggregate principal amount outstanding at any time (based on the Dollar Equivalent thereof), together with such Multicurrency Facility Lender’s portion of the Multicurrency LC Obligations, such Multicurrency Facility Lender’s Multicurrency Facility Commitment at such time, which Multicurrency Facility Loans may be repaid and reborrowed in accordance with the provisions of this Agreement; provided, however, that Multicurrency Facility Lenders shall have no obligation to the Borrowers whatsoever to honor any request for a Multicurrency Facility Loan (i) on or after the Multicurrency Facility Commitment Termination Date, (ii) if the Dollar Equivalent of the amount of the proposed Multicurrency Facility Loan exceeds the Multicurrency Facility Availability on the proposed funding date for such Multicurrency Facility Loan or (iii) in the case of a Multicurrency Facility Loan to be borrowed by a US Borrower, after giving effect thereto, if the amount of all Multicurrency Facility Loans made to all US Borrowers as of the proposed funding date for such Multicurrency Facility Loan exceeds the US Borrowing Base as of such date (provided that for purposes of determining whether this clause (iii) has been satisfied, the US Borrowing Base as of such date shall be deemed to be reduced by the amount of the Total US Facility Exposure as of such date). Each Borrowing of Multicurrency Facility Loans shall be funded by the Multicurrency Facility Lenders on a Pro Rata basis. The Multicurrency Facility Loans shall bear interest as set forth in Section 3.1. Each Multicurrency Facility Loan shall, at the option of the Administrative Borrower, be made or continued as, or converted into, part of one or more Borrowings that, unless specifically provided herein shall consist entirely of (i) if denominated in Canadian Dollars, Canadian Prime Rate Loans or Canadian BA Rate Loans (and shall be borrowed by a Canadian Borrower), (ii) if denominated in Dollars and (x) borrowed by a Canadian Borrower, Canadian Base Rate Loans or LIBOR Loans, (y) borrowed by a UK Borrower, UK Base Rate Loans or LIBOR Loans or (z) borrowed by a US Borrower, US Base Rate Loans or LIBOR Loans or (iii) if denominated in Euros or Pounds Sterling, LIBOR Loans (and shall be borrowed by a UK Borrower). All Borrowers shall be jointly and severally liable to pay all of the Multicurrency Facility Loans borrowed by a Canadian Borrower or a UK Borrower. All US Borrowers shall be jointly and severally liable to pay all Multicurrency Facility Loans borrowed by a US Borrower. The Multicurrency Facility Loans shall be repaid in accordance with the terms of this Agreement. Each Multicurrency Facility Loan shall be funded, at the option of the Administrative Borrower, in Canadian Dollars, Dollars, Euros or Pounds Sterling, and repaid in the same currency as the underlying Multicurrency Facility Loan was made. Canadian Prime Rate Loans and Canadian Base Rate Loans shall be in a minimum amount of Cdn$500,000 and $500,000, respectively, and increments of Cdn$500,000 and $500,000, respectively, in excess thereof. UK Base Rate Loans shall be in a minimum amount of £500,000 and increments of £500,000 in excess thereof. US Base Rate Loans under the Multicurrency Facility shall be in a minimum amount of $500,000 and increments of $500,000 in excess thereof.

 

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(b)            US Facility Loans. Each US Facility Lender agrees, severally and not jointly with the other US Facility Lenders, upon the terms and subject to the conditions set forth herein, to make US Facility Loans to any of the US Borrowers on any Business Day during the period from the Closing Date to the US Facility Commitment Termination Date, not to exceed an aggregate principal amount outstanding at any time, together with such US Facility Lender’s portion of the US LC Obligations, such US Facility Lender’s US Facility Commitment at such time, which US Facility Loans may be repaid and reborrowed in accordance with the provisions of this Agreement; provided, however, that US Facility Lenders shall have no obligation to US Borrowers whatsoever to honor any request for a US Facility Loan (i) on or after the US Facility Commitment Termination Date or (ii) if the amount of the proposed US Facility Loan exceeds US Facility Availability on the proposed funding date for such US Facility Loan. Each Borrowing of US Facility Loans shall be funded by US Facility Lenders on a Pro Rata basis. The US Facility Loans shall bear interest as set forth in Section 3.1. Each US Facility Loan shall, at the option of the Administrative Borrower, be made or continued as, or converted into, part of one or more Borrowings that, unless specifically provided herein, shall consist entirely of US Base Rate Loans or LIBOR Loans. The US Facility Loans shall be repaid in accordance with the terms of this Agreement. US Borrowers shall be jointly and severally liable to pay all of the US Facility Loans. Each US Facility Loan shall be funded and repaid in Dollars. US Base Rate Loans under the US Facility shall be in a minimum amount of $500,000 and increments of $500,000 in excess thereof.

 

(c)            Cap on Total Revolver Exposure. Notwithstanding anything to the contrary contained in this Section 2.1.1, in no event shall any Borrower be entitled to receive a Revolver Loan if at the time of the proposed funding of such Revolver Loan (and after giving effect thereto and all pending requests for Loans), the Total Revolver Exposure exceeds (or would exceed) the Maximum Revolver Facility Amount. If at any time, (i) the Total Revolver Exposure exceeds the Maximum Revolver Facility Amount, (ii) the Total US Facility Exposure exceeds the Maximum US Facility Amount or (iii) the Total Multicurrency Facility Exposure exceeds the Maximum Multicurrency Facility Amount, in each case the applicable excess amount shall be payable on demand by Agent. Notwithstanding anything herein to the contrary, any Revolver Loans made on the Closing Date shall be used solely (w) to finance the Debt Repayment, (x) to fund all or a portion of the Transaction Expenses, (y) for general corporate purposes, including working capital (with the amount of Revolver Loans that may be borrowed on the Closing Date for the purposes described in this clause (y) not to exceed $75,000,000) and (z) to finance any original issue discount or upfront fees payable in connection with the Transactions.

 

2.1.2        Revolver Notes. The Revolver Loans made by each Revolver Lender and interest accruing thereon shall be evidenced by the records of Agent and such Revolver Lender. At the request of (a) any Multicurrency Facility Lender, the Borrowers shall deliver a Multicurrency Facility Note to such Multicurrency Facility Lender in the amount of such Multicurrency Facility Lender’s Multicurrency Facility Commitment and (b) any US Facility Lender, the US Borrowers shall deliver a US Facility Note to such US Facility Lender in the amount of such US Facility Lender’s US Facility Commitment.

 

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2.1.3        Reduction or Termination of Revolver Commitments.

 

(a)            Multicurrency Facility Commitments. Unless sooner terminated in accordance with this Agreement, the Multicurrency Facility Commitments, the Canadian Swingline Commitments and the UK Swingline Commitments shall terminate on the Multicurrency Facility Commitment Termination Date. Upon at least ten days’ prior written notice to Agent, the Administrative Borrower may, at its option, terminate the Multicurrency Facility Commitments without premium or penalty (other than funding losses payable pursuant to Section 3.9). On the Multicurrency Commitment Termination Date, the Loan Parties shall make Full Payment of all Multicurrency Facility Obligations.

 

(b)            US Facility Commitments. Unless sooner terminated in accordance with this Agreement, the US Facility Commitments and the US Swingline Commitments shall terminate on the US Facility Commitment Termination Date. Upon at least ten days’ prior written notice to Agent, the Administrative Borrower may, at its option, terminate the US Facility Commitments without premium or penalty (other than funding losses payable pursuant to Section 3.9). If the US Borrowers elect to reduce to zero or terminate the US Facility Commitments pursuant to the previous sentence, the Multicurrency Facility Commitments shall automatically terminate concurrently with the termination of the US Facility Commitments. On the US Facility Commitment Termination Date, the US Loan Parties shall make Full Payment of all US Facility Obligations.

 

(c)            Notices Irrevocable. Any notice of termination given by the Borrowers pursuant to this Section 2.1.3 shall be irrevocable; provided, however, that notice may be contingent on the occurrence of a financing or refinancing or the consummation of a sale, transfer, lease or other disposition of assets, the occurrence of a Change of Control or the occurrence of another Limited Condition Transaction and may be revoked or the termination date deferred if the financing or refinancing or sale, transfer, lease or other disposition of assets, Change of Control or Limited Condition Transaction does not occur.

 

(d)            Partial Reductions. So long as no Default or Event of Default then exists or would result therefrom and after giving effect thereto, the Administrative Borrower may permanently and irrevocably reduce the Maximum Revolver Facility Amount by giving Agent at least five (5) Business Days’ prior written notice thereof (or such lesser time as Agent may consent to) from a Senior Officer of the Administrative Borrower, which notice shall (1) specify the date (which shall be a Business Day) and amount of such reduction (which shall be in a minimum amount of $10,000,000 and increments of $5,000,000 in excess thereof) and (2) specify the allocation of such reduction to, and the corresponding reductions of, the Maximum Multicurrency Facility Amount and/or the Maximum US Facility Amount (and the respective Multicurrency Facility Commitments and the US Facility Commitments in respect thereof, each of which shall be allocated to the Multicurrency Facility Lenders and the US Facility Lenders, respectively, on a Pro Rata basis at the time of such reduction). Without limiting the foregoing, (i) each reduction in the Revolver Commitment shall not exceed the aggregate Availability as of the date of such reduction, (ii) each reduction in the US Facility Commitment shall not exceed the US Facility Availability as of the date of such reduction, (iii) each reduction in the Multicurrency Facility Commitment shall not exceed the Multicurrency Facility Availability as of the date of such reduction and (iv) each reduction in the Multicurrency Facility Commitment may not result in, as of the date of such reduction, the amount of all Multicurrency Facility Loans made to all US Borrowers as of such date exceeding the US Borrowing Base (provided that for purposes of determining whether this clause (iv) has been satisfied, the US Borrowing Base as of such date shall be deemed to be reduced by the amount of the Total US Facility Exposure as of such date).

 

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2.1.4        Overadvances.

 

(a)            Multicurrency Overadvance. If at any time the Dollar Equivalent of the aggregate principal balance of the sum of (a) all Multicurrency Facility Loans plus (b) all Multicurrency LC Obligations exceeds the Multicurrency Facility Borrowing Base (a “Multicurrency Overadvance”), the excess amount shall, subject to Section 5.2, be payable by the Borrowers under the Multicurrency Facility on demand by Agent; provided, that, if the aggregate principal balance of the sum of (a) all Multicurrency Facility Loans plus (b) all Multicurrency LC Obligations exceeds the Multicurrency Facility Borrowing Base solely as a result of a fluctuation in Exchange Rates between the currency in which such Loans were funded and Dollars, no repayment shall be required until and unless such excess amount is equal to or greater than 105% of the Multicurrency Facility Borrowing Base. All Multicurrency Overadvance Loans shall (i) constitute Secured Obligations and (ii) subject to Section 2.5, be secured by the applicable Collateral and entitled to all benefits of the Loan Documents.

 

(b)            US Overadvance. If at any time the aggregate principal balance of the sum of (a) all US Facility Loans plus (b) all US LC Obligations exceeds the US Borrowing Base (provided that for purposes of determining whether a US Overadvance exists, the US Borrowing Base at such time shall be deemed to be reduced by the amount by which the Total Multicurrency Facility Exposure at such time exceeds the sum of the Canadian Borrowing Base and the UK Borrowing Base at such time) (a “US Overadvance”), the excess amount shall, subject to Section 5.2, be payable by the US Borrowers on demand by Agent. All US Overadvance Loans shall constitute US Obligations secured by the US Collateral and shall be entitled to all benefits of the Loan Documents.

 

(c)            Funding of Overadvance Loans. Agent may require applicable Revolver Lenders to honor requests for Overadvance Loans and to forbear from requiring the applicable Borrower(s) to cure an Overadvance, (i) when no other Event of Default is known to Agent, as long as (1) such Overadvance does not continue for more than twenty (20) consecutive Business Days (and no Overadvance may exist for at least five (5) consecutive days thereafter before further Overadvance Loans are required), (2) such Overadvance is not known by Agent to exceed five percent (5%) or, if agreed to by Agent in its sole discretion, ten percent (10%), of the applicable Borrowing Base (as calculated as described above in clauses (a) and (b)) and (3) the aggregate principal amount of the Overadvances existing at any time, together with the Protective Advances outstanding at any time pursuant to Section 2.1.5 below, do not exceed ten percent (10%) of the aggregate Revolver Commitments for the applicable Facility then in effect; and (ii) regardless of whether an Event of Default exists, if Agent discovers an Overadvance not previously known by it to exist, as long as from the date of such discovery the Overadvance does not continue for more than twenty (20) consecutive Business Days. In no event shall Overadvance Loans be required that would cause (I) the Total Multicurrency Facility Exposure to exceed the aggregate Multicurrency Facility Commitments then in effect or (II) the Total US Facility Exposure to exceed the aggregate US Facility Commitments then in effect. Required Facility Lenders may at any time revoke Agent’s authority to make further Overadvance Loans to the Borrowers under their applicable Facility by written notice to Agent. Any funding of an Overadvance Loan or sufferance of an Overadvance shall not constitute a waiver by Agent or Lenders of the Event of Default caused thereby. In no event shall any Borrower or other Loan Party be deemed a beneficiary of this Section 2.1.4 nor authorized to enforce any of its terms. All Multicurrency Overadvance Loans shall be Multicurrency Facility Loans funded by Multicurrency Facility Lenders on a Pro Rata basis. All US Overadvance Loans shall be US Facility Loans funded by US Facility Lenders on a Pro Rata basis.

 

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2.1.5        Protective Advances.

 

(a)            Multicurrency Protective Advances. Agent shall be authorized by each Borrower and each Multicurrency Facility Lender, from time to time in Agent’s sole discretion (but shall have absolutely no obligation), to make (in the case of any Canadian Borrower, through its Canada branch), US Base Rate Loans to any US Borrower, Canadian Base Rate Loans or Canadian Prime Rate Loans to any Canadian Borrower or UK Base Rate Loans to any UK Borrower, in each case, on behalf of the Multicurrency Facility Lenders (any of such Loans are herein referred to as “Multicurrency Protective Advances”) which Agent, in its Permitted Discretion, deems necessary or desirable to (i) preserve or protect Collateral or any portion thereof or (ii) enhance the likelihood of, or maximize the amount of, repayment of the Multicurrency Facility Loans and other Multicurrency Facility Obligations; provided, that no Multicurrency Protective Advance shall cause the Total Multicurrency Facility Exposure to exceed the Multicurrency Facility Commitments then in effect. All Multicurrency Protective Advances made by Agent shall (i) be Secured Obligations, (ii) be secured by the applicable Collateral, (iii) if borrowed by a Canadian Borrower, be denominated in either Canadian Dollars or Dollars and (A) if denominated in Canadian Dollars, be treated for all purposes as a Canadian Prime Rate Loan or (B) if denominated in Dollars, be treated for all purposes as a Canadian Base Rate Loan, (iv) if borrowed by a UK Borrower, be treated for all purposes as a UK Base Rate Loan and be denominated in either Dollars, Euros or Pounds Sterling and (v) if borrowed by a US Borrower, be denominated in Dollars and be treated as a US Base Rate Loan.

 

(b)            US Protective Advances. Agent shall be authorized by each US Borrower and each US Facility Lender, from time to time in Agent’s sole discretion (but shall have absolutely no obligation), to make US Base Rate Loans to the US Borrowers on behalf of the US Facility Lenders (any of such Loans are herein referred to as “US Protective Advances”) which Agent, in its Permitted Discretion, deems necessary or desirable to (i) preserve or protect US Collateral or any portion thereof or (ii) enhance the likelihood of, or maximize the amount of, repayment of the US Facility Loans and other US Facility Obligations; provided, that no US Protective Advance shall cause the Total US Facility Exposure to exceed the US Facility Commitments then in effect. All US Protective Advances made by Agent shall be US Obligations, secured by the US Collateral and shall be treated for all purposes as US Base Rate Loans.

 

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(c)            Limitations on Protective Advances. The aggregate principal amount of Multicurrency Protective Advances shall not exceed ten percent (10%) of the Multicurrency Facility Commitments at such time. The aggregate principal amount of US Protective Advances shall not exceed ten percent (10%) of the US Facility Commitments at such time. In addition, (x) the aggregate principal amount of Multicurrency Protective Advances outstanding at any time pursuant to this Section 2.1.5, together with the aggregate principal amount of Multicurrency Overadvances existing at any time pursuant to Section 2.1.4 above, shall not exceed ten percent (10%) of the aggregate Multicurrency Facility Commitments then in effect and (y) the aggregate principal amount of US Protective Advances outstanding at any time pursuant to this Section 2.1.5, together with the aggregate principal amount of US Overadvances existing at any time pursuant to Section 2.1.4 above, shall not exceed ten percent (10%) of the aggregate US Facility Commitments then in effect. Protective Advances may be made even if the conditions set forth in Section 6 have not been satisfied. Each Revolver Lender shall participate in each Protective Advance with respect to any applicable Facility in which such Revolver Lender has a Revolver Commitment on a Pro Rata basis for such Facility. Required Facility Lenders may at any time revoke Agent’s authority to make further Protective Advances to any Borrower under the applicable Facility, in each case by written notice to Agent. Absent such revocation, Agent’s determination that funding of a Protective Advance is appropriate shall be conclusive. At any time that there is sufficient Availability for the applicable Facility and the conditions precedent set forth in Section 6 have been satisfied, Agent may request the applicable Revolver Lenders to make a Revolver Loan to repay a Protective Advance. At any other time, Agent may require the Revolver Lenders to fund their risk participations described in Section 2.1.5(d).

 

(d)            Transfers. Upon the making of a Protective Advance by Agent (whether before or after the occurrence of a Default or Event of Default), each applicable Revolver Lender shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from Agent without recourse or warranty, an undivided interest and participation in such Protective Advance in proportion to its Pro Rata share of such Protective Advance. Each applicable Revolver Lender shall transfer (a “Transfer”) the amount of such Revolver Lender’s Pro Rata share of the outstanding principal amount of the applicable Protective Advance with respect to such purchased interest and participation promptly when requested by Agent to such account of Agent as Agent may designate, but in any case not later than 3:00 p.m. (Local Time) on the Business Day notified (if notice is provided by Agent prior to 12:00 p.m. (Local Time) and otherwise on the immediately following Business Day (the “Transfer Date”)). Transfers may occur during the existence of a Default or Event of Default and whether or not the applicable conditions precedent set forth in Section 6 have then been satisfied. Such amounts transferred to Agent shall be applied against the amount of the applicable Protective Advance and, together with such applicable Revolver Lender’s Pro Rata share of such Protective Advance, shall constitute Revolver Loans under the applicable Facility of such applicable Revolver Lenders, respectively. If any such amount is not transferred to Agent by any Revolver Lender on such Transfer Date, Agent shall be entitled to recover such amount on demand from such Revolver Lender together with interest thereon as specified in Section 3.1. From and after the date, if any, on which any Revolver Lender is required to fund, and funds, its participation in any Protective Advance purchased hereunder, Agent shall promptly distribute to such Revolver Lender such Revolver Lender’s Pro Rata share of all payments of principal and interest and all proceeds of Collateral received by Agent in respect of such Protective Advance.

 

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2.1.6        Reallocation.

 

(a)            Reallocation Mechanism. Subject to the terms and conditions of this Section 2.1.6, the Administrative Borrower may request that certain Revolver Lenders (and such Revolver Lenders in their individual sole discretion may agree to) change the then current allocation of each such Revolver Lender’s (and, if applicable, its Affiliate’s or branch’s) Revolver Commitment among the Facilities in order to effect an increase or decrease in the Revolver Commitments of a particular Facility, with any such increase or decrease in Revolver Commitments for one Facility to be accompanied by a concurrent and equal decrease or increase, respectively, in the Revolver Commitments for the other Facility (each, a “Reallocation”); provided, that, no more than $100,000,000 may be reallocated from the US Facility to the Multicurrency Facility over the term of this Agreement. In addition to the conditions set forth in Section 2.1.6(b), any such Reallocation shall be subject to the following conditions: (i) the Administrative Borrower shall have provided to Agent a written request (in reasonable detail) at least fifteen Business Days prior to the requested effective date therefor (which effective date must be a Business Day) (the “Reallocation Date”) setting forth the proposed Reallocation Date and the amounts of the proposed Revolver Commitment Reallocations to be effected, (ii) any such Reallocation shall increase or decrease, as the case may be, the applicable Revolver Commitments in an amount equal to $5,000,000 and in increments of $1,000,000 in excess thereof, (iii) Agent shall have received Reallocation Consents from Lenders having applicable Revolver Commitments sufficient to effectuate such requested Reallocation, (iv) no more than two Reallocations may be effected in any calendar year, (v) no Default or Event of Default shall have occurred and be continuing either as of the date of such request or on the Reallocation Date (both immediately before and after giving effect to such Reallocation), (vi) any increase in a Revolver Commitment of one Facility shall result in a dollar-for-dollar decrease in the Revolver Commitment of the other Facility, (vii) in no event shall the Maximum Revolver Facility Amount exceed the aggregate amount of the aggregate Revolver Commitments then in effect, (viii) after giving effect to such Reallocation, no Overadvance would exist or would result therefrom and (ix) at least three Business Days prior to the proposed Reallocation Date, a Senior Officer of the Administrative Borrower shall have delivered to Agent a certificate certifying as to compliance with preceding clauses (v), (vii) and (viii) and demonstrating (in reasonable detail) the calculations required in connection therewith, which certificate shall be deemed recertified to Agent by a Senior Officer of the Administrative Borrower on and as of the Reallocation Date.

 

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(b)            Reallocations Generally. Agent shall promptly inform the Revolver Lenders in each of the Facilities of any request for a Reallocation. Each Revolver Lender electing to participate in the Reallocation by decreasing its Revolver Commitments under one Facility and increasing its Revolver Commitments in the other Facility in an equal amount shall notify Agent within five (5) Business Days after its receipt of such notice of its election and the maximum amount of the respective Revolver Commitment Reallocations to which it would agree (each, a “Reallocation Consent”). Notwithstanding the foregoing, (i) no Revolver Lender shall be obligated to agree to any such Reallocation of its Revolver Commitment (and no consent by any Revolver Lender to any Reallocation on one occasion shall be deemed consent to any future Reallocation by such Revolver Lender), (ii) other than the Revolver Lenders consenting to such Reallocation, no consent of any other Revolver Lender shall be required and (iii) the failure of any Revolver Lender to affirmatively consent to participate in any such Reallocation on or prior to the fifth Business Day after its receipt of notice thereof shall be deemed to constitute an election by such Revolver Lender not to participate in such Reallocation. If, at the end of such five Business Day period, Agent receives Reallocation Consents from Revolver Lenders in an aggregate amount greater than or equal to the required reallocation amounts, each such consenting Revolver Lender’s affected Revolver Commitments for the applicable Facility shall be increased or decreased on a Pro Rata basis based on the affected Revolver Commitments of the participating Revolver Lenders. If the conditions set forth in Section 2.1.6, including, without limitation, the receipt of Reallocation Consents within the time period set forth above, are not satisfied on the applicable Reallocation Date (or, to the extent such conditions relate to an earlier date, such earlier date), Agent shall notify the Administrative Borrower in writing that the requested Reallocation will not be effectuated; provided, that (A) Agent shall in all cases be entitled to rely (without liability) on the certificate delivered by the Administrative Borrower pursuant to Section 2.1.6(a)(ix) in making its determination as to the satisfaction of the conditions set forth in Section 2.1.6(a) (v), (vii) and (viii) and (B) if the proposed Reallocation cannot be effected because sufficient Reallocation Consents were not received, then the Administrative Borrower may elect to consummate such Reallocation in the lesser amount of the Reallocation Consents that were received. On each Reallocation Date, Agent shall notify the Revolver Lenders of the affected Facility and the Administrative Borrower, on or before 3:00 p.m. (Local Time) by facsimile, e-mail or other electronic means, of the occurrence of the Reallocation to be effected on such Reallocation Date, the amount of the Revolver Loans held by each such Revolver Lender as a result thereof and the amount of the affected Revolver Commitments of each such Revolver Lender as a result thereof. To the extent necessary where a Revolver Lender in one Facility and its separate affiliate or branch that is a Revolver Lender in another Facility are participating in a Reallocation, the Reallocation among such Persons shall be deemed to have been consummated pursuant to an Assignment and Acceptance. The respective Pro Rata shares of the Revolver Lenders shall thereafter, to the extent applicable, be determined based on such reallocated amounts (subject to any subsequent changes thereto), and Agent and the affected Revolver Lenders shall make such adjustments as Agent shall deem necessary so that the outstanding Revolver Loans and LC Obligations of each Revolver Lender equals its Pro Rata share thereof after giving effect to the Reallocation.

 

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2.1.7        Swingline Loans.

 

(a)            Canadian Swingline Loans to Canadian Borrowers. The Canadian Swingline Lender shall make Canadian Swingline Loans to any of the Canadian Borrowers on any Business Day during the period from the Closing Date to the Multicurrency Facility Commitment Termination Date, not to exceed the Canadian Swingline Commitment in aggregate principal amount outstanding at any time (based on the Dollar Equivalent thereof), which Canadian Swingline Loans may be repaid and reborrowed in accordance with the provisions of this Agreement; provided, however, that the Canadian Swingline Lender shall not honor any request for a Canadian Swingline Loan (i) on or after the Multicurrency Facility Commitment Termination Date or (ii) if the Dollar Equivalent of the amount of the proposed Canadian Swingline Loan exceeds the Multicurrency Facility Availability on the proposed funding date for such Canadian Swingline Loan. The Canadian Swingline Loans shall be Canadian Prime Rate Loans if denominated in Canadian Dollars and Canadian Base Rate Loans if denominated in Dollars and shall bear interest as set forth in Section 3.1. Each Canadian Swingline Loan shall constitute a Revolver Loan and a Multicurrency Facility Loan for all purposes (subject, in the case of unused line fees, to Section 3.2.1(a)), except that payments thereon shall be made to the Canadian Swingline Lender for its own account. The Canadian Swingline Loans of each Canadian Borrower shall be repaid in accordance with the terms of this Agreement and shall be secured by all of the Collateral. The Borrowers under the Multicurrency Facility shall be jointly and severally liable to pay all of the Canadian Swingline Loans. Each Canadian Swingline Loan shall be funded in Canadian Dollars or, at the option of the Administrative Borrower, Dollars and repaid in the same currency as the underlying Canadian Swingline Loan was made. Canadian Swingline Loans shall be in a minimum amount of Cdn$100,000 (or $100,000 if denominated in Dollars) and increments of Cdn$100,000 (or $100,000 if denominated in Dollars) in excess thereof.

 

(b)            UK Swingline Loans to UK Borrowers. The UK Swingline Lender shall make UK Swingline Loans to any of the UK Borrowers on any Business Day during the period from the Closing Date to the Multicurrency Facility Commitment Termination Date, not to exceed the UK Swingline Commitment in aggregate principal amount outstanding at any time (based on the Dollar Equivalent thereof), which UK Swingline Loans may be repaid and reborrowed in accordance with the provisions of this Agreement; provided, however, that the UK Swingline Lender shall not honor any request for a UK Swingline Loan (i) on or after the Multicurrency Facility Commitment Termination Date or (ii) if the Dollar Equivalent of the amount of the proposed UK Swingline Loan exceeds the Multicurrency Facility Availability on the proposed funding date for such UK Swingline Loan. The UK Swingline Loans shall be UK Base Rate Loans denominated in Pounds Sterling, Euros or Dollars and shall bear interest as set forth in Section 3.1. Each UK Swingline Loan shall constitute a Revolver Loan and a Multicurrency Facility Loan for all purposes (subject, in the case of unused line fees, to Section 3.2.1(a)), except that payments thereon shall be made to the UK Swingline Lender for its own account. The UK Swingline Loans of each UK Borrower shall be repaid in accordance with the terms of this Agreement and shall be secured by all of the Collateral. The Borrowers under the Multicurrency Facility shall be jointly and severally liable to pay all of the UK Swingline Loans. Each UK Swingline Loan shall be funded in Pounds Sterling or, at the option of the Administrative Borrower, Euros or Dollars and repaid in the same currency as the underlying UK Swingline Loan was made. UK Swingline Loans shall be in a minimum amount of £100,000 and increments of £100,000 in excess thereof.

 

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(c)            US Swingline Loans to US Borrowers. The US Swingline Lender shall make US Swingline Loans to any of the US Borrowers on any Business Day during the period from the Closing Date to the US Facility Commitment Termination Date, not to exceed the US Swingline Commitment in aggregate principal amount outstanding at any time, which US Swingline Loans may be repaid and reborrowed in accordance with the provisions of this Agreement; provided, however, that the US Swingline Lender shall not honor any request for a US Swingline Loan (i) on or after the US Facility Commitment Termination Date or (ii) if the amount of the proposed US Swingline Loan exceeds the US Facility Availability on the proposed funding date for such US Swingline Loan. The US Swingline Loans shall be US Base Rate Loans and shall bear interest as set forth in Section 3.1. Each US Swingline Loan shall constitute a Revolver Loan and a US Facility Loan for all purposes (subject, in the case of unused line fees, to Section 3.2.1(b)), except that payments thereon shall be made to the US Swingline Lender for its own account. The US Swingline Loans shall be repaid in accordance with the terms of this Agreement and shall be secured by all of the US Collateral. The US Borrowers shall be jointly and severally liable to pay all of the US Swingline Loans. Each US Swingline Loan shall be funded and repaid in Dollars. US Swingline Loans shall be in a minimum amount of $100,000 and increments of $100,000 in excess thereof.

 

(d)            Swinglines Generally. The Swingline Loans made by each Swingline Lender and interest accruing thereon shall be evidenced by the records of Agent and such Swingline Lender and need not be evidenced by any promissory note.

 

2.1.8        Extensions.

 

(a)            Notwithstanding anything to the contrary in this Agreement, pursuant to one or more offers (each, an “Extension Offer”) made from time to time by the Administrative Borrower to all Revolver Lenders within a Facility on a Pro Rata basis (based on the aggregate outstanding principal amount of the Revolver Commitments for such Facility), the Administrative Borrower is hereby permitted to consummate from time to time transactions with individual Lenders that accept the terms contained in such Extension Offers to extend the maturity date of each such Lender’s Revolver Commitments for the applicable Facility and otherwise modify the terms of such Revolver Commitments for such Facility pursuant to the terms of the relevant Extension Offer (to the extent permitted hereunder) (each, an “Extension”), so long as the following terms are satisfied with respect to any such Extension: (i) each Extension Offer made to any Revolver Lender of any Tranche must be made on the same terms to each Revolver Lender of such Tranche, (ii) each Extension Offer shall provide that the proposed extended Tranche shall have the same terms as the original Revolver Commitments (and related outstandings) for such Facility to be extended, except for (A) the extension of the maturity date, (B) changes to interest rates, fees (including agreements as to additional administrative fees to be paid by the Borrowers), premiums and amortization and (C) changes to covenants and other provisions that are no more favorable to the Lenders of an Extended Tranche than to the existing Revolver Lenders for the applicable Facility (unless such changes are extended for the benefit of the existing Revolver Lenders for the applicable Facility) or that are applicable only to the periods after the then applicable Facility Termination Date (which, in each case, shall be determined by the Administrative Borrower and set forth in the relevant Extension Offer), (iii) any applicable Minimum Extension Condition shall be satisfied unless waived by the Administrative Borrower and (iv) at no time shall there be Revolver Commitments hereunder (including Revolver Commitments in respect of any Extended Tranche and any original Revolver Commitments) which have more than three (3) different maturity dates, unless otherwise agreed by Agent and the Administrative Borrower. The Revolver Commitments of any Revolver Lender that agrees to an extension with respect to such Revolver Commitment (an “Extending Lender”) extended pursuant to an Extension (an “Extended Tranche”), and the related outstandings, shall be a Revolver Commitment (or related outstandings, as the case may be) with the same terms as the original Revolver Commitments (and related outstandings) except as provided above; provided, that, subject to the provisions of Section 2 to the extent dealing with Letters of Credit and Swingline Loans which mature or expire after a maturity date when there exist Revolver Commitments with a longer maturity date, all Letters of Credit and Swingline Loans for the applicable Facility shall be participated in on a Pro Rata basis by all Lenders with Revolver Commitments for such Facility in accordance with their respective Pro Rata shares of the Revolver Commitments for such Facility and all borrowings under Revolver Commitments and repayments thereunder shall be made on a Pro Rata basis (except for (A) payments of interest and fees at different rates on Extended Tranches (and related outstandings) and (B) repayments required upon the maturity date of the non-extending Revolver Commitments). Each group of Revolver Commitments, as so extended, as well as the original Revolver Commitments (not so extended), as applicable, shall be considered separate “tranches” (each, a “Tranche”), with any Extended Tranche of Revolver Commitments constituting a separate tranche of Revolver Commitments from the tranche of Revolver Commitments from which they were converted.

 

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(b)            With respect to all Extensions consummated by the Borrowers pursuant to this Section 2.1.8, (i) such Extensions shall not constitute optional or mandatory payments or prepayments for purposes of this Agreement and (ii) no Extension Offer is required to be in any minimum amount or any minimum increment, provided, that the Administrative Borrower may at its election specify as a condition (a “Minimum Extension Condition”) to consummating any such Extension that a minimum amount (to be determined and specified in the relevant Extension Offer in the Administrative Borrower’s sole discretion and which may be waived by the Administrative Borrower) of Revolver Commitments of any or all applicable Tranches be extended. Agent and the Lenders hereby consent to the transactions contemplated by this Section 2.1.8 (including, for the avoidance of doubt, payment of any interest, fees or premium in respect of any Extended Tranches on such terms as may be set forth in the relevant Extension Offer) and hereby waive the requirements of any provision of this Agreement (including, without limitation, Sections 5.2 and 5.6) or any other Loan Document that may otherwise prohibit any such Extension or any other transaction contemplated by this Section 2.1.8.

 

(c)            No consent of any Lender or Agent shall be required to effectuate any Extension, other than (A) the consent of each Revolver Lender agreeing to such Extension with respect to its Revolver Commitments (or a portion thereof) and (B) with respect to any Extension of the Revolver Commitments for either Facility, the consent of each applicable Fronting Bank and each applicable Swingline Lender for such Facility (in each case in its sole discretion). All Extended Tranches and all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents that are secured by the same Collateral as the applicable Tranche being extended on a pari passu basis with all other Obligations of such Facility under this Agreement and the other Loan Documents. The Lenders hereby irrevocably authorize Agent to enter into amendments to this Agreement and the other Loan Documents with the Borrowers as may be necessary in order to establish new tranches or sub-tranches in respect of Revolver Commitments so extended, permit the repayment of non-extending Loans on the Revolver Commitment Termination Date, and such technical amendments as may be necessary or appropriate in the reasonable opinion of Agent and the Administrative Borrower in connection therewith, in each case on terms consistent with this Section 2.1.8. Without limiting the foregoing, in connection with any Extensions the respective Loan Parties shall (at their expense) amend (and Agent is hereby directed to amend) any Mortgage or other Security Document that has a maturity date prior to the then latest maturity date so that such maturity date is extended to the then latest maturity date (or such later date as may be advised by local counsel to Agent).

 

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(d)            In connection with any Extension, the Administrative Borrower shall provide Agent at least ten (10) Business Days’ (or such shorter period as may be agreed by Agent) prior written notice thereof, and shall agree to such procedures (including, without limitation, regarding timing, rounding and other adjustments and to ensure reasonable administrative management of the credit facilities hereunder after such Extension), if any, as may be established by, or acceptable to, Agent, in each case acting reasonably to accomplish the purposes of this Section 2.1.8.

 

2.1.9        Increase in Revolver Commitments.

 

(a)            Multicurrency Facility Commitment Increase. Subject to the other terms of this Section 2.1.9, the Administrative Borrower may by written notice to Agent elect to increase the Maximum Multicurrency Facility Amount then in effect (a “Multicurrency Facility Commitment Increase”) by increasing the Multicurrency Facility Commitment of a Multicurrency Facility Lender (with the consent of such Multicurrency Facility Lender, which may be withheld in its sole discretion) or by causing a Person that is an Eligible Assignee (reasonably acceptable to Agent, each UK Fronting Bank, each Canadian Fronting Bank, each Canadian Swingline Lender and each UK Swingline Lender, in each case, to the extent such Person’s consent would be required under Section 12.3.1 for an assignment to such Eligible Assignee) that at such time is not a Multicurrency Facility Lender to become a Multicurrency Facility Lender (an “Additional Multicurrency Facility Lenderˮ).

 

(b)            US Facility Commitment Increase. Subject to the other terms of this Section 2.1.9, the Administrative Borrower may by written notice to Agent elect to increase the Maximum US Facility Amount then in effect (a “US Facility Commitment Increase” and, together with any Multicurrency Facility Commitment Increase, a “Revolver Commitment Increase”) by increasing the US Facility Commitment of a US Facility Lender (with the consent of such US Facility Lender, which may be withheld in its sole discretion) or by causing a Person that is an Eligible Assignee (reasonably acceptable to Agent, each US Fronting Bank and each US Swingline Lender, in each case, to the extent such Person’s consent would be required under Section 12.3.1 for an assignment to such Eligible Assignee) that at such time is not a US Facility Lender to become a US Facility Lender (an “Additional US Facility Lender” and together with any Additional Multicurrency Facility Lender, the “Additional Revolver Lenders”).

 

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(c)            Terms of Revolver Commitment Increases. Each notice of a Revolver Commitment Increase shall specify the proposed date (each, an “Increase Date”) for the effectiveness of the Revolver Commitment Increase, which date shall be not less than five Business Days (or such shorter period as Agent may agree) after the date on which such notice is delivered to Agent, and the applicable Facility to which such Revolver Commitment Increase shall apply. Any such Revolver Commitment Increase shall be subject to the following additional conditions: (i) no Event of Default shall have occurred and be continuing as of the date of such notice or both immediately before and after giving effect thereto as of the Increase Date (provided, that, solely with respect to an Increase Date occurring in connection with a Limited Condition Transaction, (x) no Event of Default shall have occurred and be continuing as of the LCT Test Date and (y) no Event of Default arising under Section 10.1.1 or Section 10.1.5 shall have occurred and be continuing as of the date of the consummation of such Limited Condition Transaction, both immediately before and after giving effect thereto, it being understood and agreed that the terms of clause (x) of this proviso shall not apply to any Borrowing or other extension of credit under any Facility other than a Borrowing or extension of credit that is occurring concurrently with such Limited Condition Transaction); (ii) no Lender shall be obligated or have a right to participate in the Revolver Commitment Increase by increasing its Revolver Commitment and no Borrower shall have any obligation to offer existing Lenders rights to participate in such Revolver Commitment Increase; (iii) the Revolver Commitment Increase shall be on the same terms and conditions as this Agreement (other than any arrangement, upfront or other fees paid to any Lender that is increasing its Revolver Commitment or to any Additional Revolver Lender), provided, that, if the Applicable Margin, unused line fees or fees associated with Letters of Credit in respect of any Revolver Commitment Increase are greater than those of the relevant Facility, the Applicable Margin, unused line fees and fees associated with Letters of Credit with respect to such Facility shall be increased (without the consent of any Lender) to the extent of the applicable differential, provided, further, that any Revolver Commitment Increase may include terms that are more restrictive to the Loan Parties so long as the existing Revolver Lenders benefit from such more restrictive terms (it being understood and agreed that, notwithstanding Section 13.1, such amendments may be made to this Agreement for the purpose of effectuating such terms without the consent of any existing Revolver Lender); (iv) the Revolver Commitment Increase, to the extent arising from the admission of an Additional Revolver Lender, shall be effected pursuant to one or more joinder agreements executed and delivered by the applicable Borrowers, the Additional Revolver Lender(s) and Agent, each of which shall be in form and substance reasonably satisfactory to Agent, or otherwise pursuant to an amendment to this Agreement executed and delivered by the applicable Borrowers, the participating Revolver Lenders and Agent; (v) all of the representations and warranties contained in this Agreement and the other Loan Documents (provided, that, solely with respect to an Increase Date occurring in connection with a Limited Condition Transaction, this clause (v) shall be limited to the Specified Representations and other customary “SunGardˮ representations or European “certain funds” representations as agreed by the relevant Lenders and Additional Revolver Lenders providing the relevant Revolver Commitment Increase) are true and correct in all material respects (unless such representations and warranties are stated to relate to an earlier date, in which case, such representations and warranties shall be true and correct in all material respects as of such earlier date, and unless any representation or warranty is qualified by materiality, material adverse effect or similar language, in which case such representation and warranty shall be true and correct in all respects (after giving effect to such materiality, material adverse effect or similar qualifying language), it being understood and agreed that the terms of this proviso shall not apply to any Borrowing or other extension of credit under any Facility other than a Borrowing or extension of credit that is occurring concurrently with such Limited Condition Transaction); (vi) the Administrative Borrower shall deliver or cause to be delivered any officer’s certificates, board resolutions, legal opinions or other documents reasonably requested by Agent in connection with the Revolver Commitment Increase, in each case substantially similar to those delivered on the Closing Date (to the extent comparable documentation was delivered on the Closing Date); (vii) the Borrowers shall pay all reasonable and documented out-of-pocket expenses of the Agent in connection with the Revolver Commitment Increase to the extent required pursuant to Section 3.4; (viii) such increase shall be in a minimum amount of the Dollar Equivalent of $25,000,000 and integral multiples of $5,000,000 in excess thereof (or such lesser amount as Agent may reasonably agree); and (ix) if Agent determines in its reasonable discretion upon the advice of counsel that the same is required by, or advisable under, Applicable Law in order to maintain the perfected security interest and Lien of Agent in and on the Collateral with the priority contemplated in the Intercreditor Agreement and the Security Documents to secure all of the Secured Obligations, including the Secured Obligations arising due to any Revolver Commitment Increase, the Loan Parties shall enter into any such security documents, amendments, confirmations, reaffirmations or other agreements (it being understood and agreed that, at the reasonable discretion of Agent, such agreements may be entered into on a post-closing basis within a timeframe to be agreed). Notwithstanding the foregoing, in no event shall the Dollar Equivalent of the sum of the aggregate principal amount of all Revolver Commitment Increases made under this Section 2.1.9 exceed $600,000,000 plus the amount of all voluntary permanent reductions of the Revolver Commitments hereunder.

 

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(d)            Increases Generally. Agent shall promptly inform the Lenders of any request for a Revolver Commitment Increase made by the Administrative Borrower. If the conditions set forth in clause (c) above are not satisfied on the applicable Increase Date (or, to the extent such conditions relate to an earlier date, such earlier date), Agent shall notify the Administrative Borrower in writing that the requested Revolver Commitment Increase will not be effectuated. On each Increase Date, Agent shall notify the Lenders and the Administrative Borrower, on or before 3:00 p.m. (Local Time), by telecopier or e-mail, of the occurrence of the Revolver Commitment Increase to be effected on such Increase Date, the amount of Revolver Loans of each Facility held by each Revolver Lender as a result thereof, the amount of the Revolver Commitment under each Facility of each Revolver Lender (and the percentage of each Revolver Loan, if any, that each Revolver Lender must purchase a participation interest in) as a result thereof. At the time of any provision of any Revolver Commitment Increase pursuant to this Section 2.1.9, the Applicable Lenders shall, in coordination with Agent, purchase and sell the applicable Loans and participations in the other applicable Obligations in this Agreement (even though as a result thereof such new Revolver Loans (to the extent required to be maintained as LIBOR Loans or Canadian BA Rate Loans) may have a shorter Interest Period than the then outstanding Revolving Loans), in each case to the extent necessary so that (i) all of the Multicurrency Facility Lenders participate in outstanding Multicurrency Facility Obligations Pro Rata on the basis of their respective Multicurrency Facility Commitments and (ii) all of the US Facility Lenders participate in outstanding US Facility Obligations Pro Rata on the basis of their respective US Facility Commitments (in each case, after giving effect to any Revolver Commitment Increases pursuant to this Section 2.1.9). All determinations by Agent and any Revolver Lender pursuant to the preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.

 

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(e)            In the event the Borrowers from time to time obtain any Revolver Commitment Increase under this Section 2.1.9, all availability levels hereunder denominated in Dollars, Canadian Dollars, Euros or Pounds Sterling hereunder (including, without limitation, in the definition of “Payment Conditions”) shall be increased in proportion to the ratio of such Revolver Commitment Increase to the aggregate Revolver Commitments and the Revolver Commitments of each Facility, as applicable, as in effect immediately prior to the Borrowers obtaining such Revolver Commitment Increase and, for the avoidance of doubt, all such levels denominated in percentages shall be calculated based on the Revolver Commitments after giving effect to such Revolver Commitment Increase.

 

2.2          Canadian Letters of Credit.

 

2.2.1        Issuance of Canadian Letters of Credit. Each Canadian Fronting Bank agrees to issue Canadian Letters of Credit for the account of any Canadian Borrower or any Restricted Subsidiaries from time to time until five Business Days prior to the Multicurrency Facility Commitment Termination Date, in, at the option of the Applicable Canadian Borrower, Canadian Dollars or Dollars, on the terms set forth herein, including the following:

 

(a)            Each Canadian Borrower acknowledges that each Canadian Fronting Bank’s willingness to issue any Canadian Letter of Credit is conditioned upon such Canadian Fronting Bank’s receipt of a Canadian LC Application with respect to the requested Canadian Letter of Credit, as well as such other instruments and agreements as such Canadian Fronting Bank may customarily require for issuance of a letter of credit of similar type and amount. No Canadian Fronting Bank shall have any obligation to issue any Canadian Letter of Credit unless (i) such Canadian Fronting Bank and Agent receive a Canadian LC Application at least three Business Days prior to the requested date of issuance; (ii) each Canadian LC Condition is satisfied; and (iii) if a Defaulting Lender that is a Multicurrency Facility Lender exists, such Defaulting Lender or Canadian Borrowers have entered into arrangements reasonably satisfactory to Agent and such Canadian Fronting Bank to eliminate any funding risk associated with such Defaulting Lender. If a Canadian Fronting Bank receives written notice from a Multicurrency Facility Lender at least three Business Days before issuance of a Canadian Letter of Credit that any Canadian LC Condition has not been satisfied, such Canadian Fronting Bank shall have no obligation to issue the requested Canadian Letter of Credit (or any other) until such notice is withdrawn in writing by such Multicurrency Facility Lender or until the Required Multicurrency Facility Lenders have waived such condition in accordance with this Agreement. Prior to receipt of any such notice, a Canadian Fronting Bank shall not be deemed to have knowledge of any failure of Canadian LC Conditions.

 

(b)            The renewal or extension of any Canadian Letter of Credit shall be treated as the issuance of a new Canadian Letter of Credit, except that delivery of a new Canadian LC Application shall only be required at the discretion of the applicable Canadian Fronting Bank. No Canadian Fronting Bank shall renew or extend any Canadian Letter of Credit if it receives written notice from Agent or the Required Multicurrency Facility Lenders of the existence of a Default or Event of Default.

 

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(c)            The Canadian Borrowers assume all risks of the acts, omissions or misuses of any Canadian Letter of Credit by the beneficiary. In connection with issuance of any Canadian Letter of Credit, none of Agent, any Canadian Fronting Bank or any Lender shall be responsible for the existence, character, quality, quantity, condition, packing, value or delivery of any goods purported to be represented by any Documents; any differences or variation in the character, quality, quantity, condition, packing, value or delivery of any goods from that expressed in any Documents; the form, validity, sufficiency, accuracy, genuineness or legal effect of any Documents or of any endorsements thereon; the time, place, manner or order in which shipment of goods is made; partial or incomplete shipment of, or failure to ship, any goods referred to in a Canadian Letter of Credit or Documents; any deviation from instructions, delay, default or fraud by any shipper or other Person in connection with any goods, shipment or delivery; any breach of contract between a shipper or vendor and a Canadian Borrower or Restricted Subsidiary; errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex, telecopy, e-mail, telephone or otherwise; errors in interpretation of technical terms; the misapplication by a beneficiary of any Canadian Letter of Credit or the proceeds thereof; or any consequences arising from causes beyond the control of any Canadian Fronting Bank, Agent or any Multicurrency Facility Lender, including any act or omission of a Governmental Authority. The rights and remedies of each Canadian Fronting Bank under the Loan Documents shall be cumulative. Each Canadian Fronting Bank shall be fully subrogated to the rights and remedies of each beneficiary whose claims against Canadian Borrowers or Restricted Subsidiaries are discharged with proceeds of any Canadian Letter of Credit issued by such Canadian Fronting Bank.

 

(d)            In connection with its administration of and enforcement of rights or remedies under any Canadian Letters of Credit or Canadian LC Documents, each Canadian Fronting Bank shall be entitled to act, and shall be fully protected in acting, upon any certification, documentation or communication in whatever form believed by such Canadian Fronting Bank, in good faith, to be genuine and correct and to have been signed, sent or made by a proper Person. Each Canadian Fronting Bank may consult with and employ legal counsel, accountants and other experts to advise it concerning its obligations, rights and remedies, and shall be entitled to act upon, and shall be fully protected in any action taken in good faith reliance upon, any advice given by such experts. Each Canadian Fronting Bank may employ agents and attorneys-in-fact in connection with any matter relating to Canadian Letters of Credit or Canadian LC Documents, and shall not be liable for the negligence or misconduct of agents and attorneys-in-fact selected with reasonable care.

 

(e)            Schedule 1.1(b) contains a description of letters of credit under the heading “Existing Canadian Letters of Credit” that were issued by a Multicurrency Facility Lender for the account of a Canadian Borrower or Restricted Subsidiary prior to the Closing Date and which remain outstanding on the Closing Date (and setting forth, with respect to each such letter of credit, (i) the name of the issuing lender, (ii) the letter of credit number, (iii) the name of the account party, (iv) the stated amount (which shall be Dollars or Canadian Dollars), (v) the name of the beneficiary, (vi) the expiry date and (vii) whether such letter of credit constitutes a standby letter of credit or a trade letter of credit). Each Canadian Borrower and each Multicurrency Facility Lender hereby acknowledges and agrees that each such letter of credit, including any extension or renewal thereof in accordance with the terms thereof and hereof (each, as amended from time to time in accordance with the terms thereof and hereof, an “Existing Canadian Letter of Credit”) shall constitute a “Canadian Letter of Credit” for all purposes of this Agreement and, notwithstanding anything to the contrary stated in any such Existing Canadian Letter of Credit (including, without limitation, the account party named therein), shall be deemed issued on the Closing Date for the account of the Applicable Canadian Borrower or Restricted Subsidiary.

 

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2.2.2            Canadian LC Reimbursement; Canadian LC Participations.

 

(a)            If a Canadian Fronting Bank honors any request for payment under a Canadian Letter of Credit, the Canadian Borrowers agree, jointly and severally, to pay to such Canadian Fronting Bank, on the day that Canadian Borrowers receive notice of such drawing if such notice is received by 10:00 a.m. (Local Time) and on the next succeeding Business Day if such notice is received after such time (“Canadian Reimbursement Date”), the amount paid by such Canadian Fronting Bank under such Letter of Credit, together with interest on the amount of such drawing at the interest rate for Canadian Prime Rate Loans (if the Canadian Letter of Credit was denominated in Canadian Dollars) and Canadian Base Rate Loans (if the Canadian Letter of Credit was denominated in Dollars), in each case, from the date of drawing under such Canadian Letter of Credit until payment by Canadian Borrowers of the amount of such drawing, provided, that the Canadian Borrowers may, without regard to the conditions to set forth in Section 6.2, request (and, absent such payment having already been made, shall be deemed to have requested) that such payment be financed with a Multicurrency Facility Loan accruing interest at Canadian Base Rate (if denominated in Dollars) or Canadian Prime Rate (if denominated in Canadian Dollars), denominated in the same currency as the Canadian Letter of Credit being financed, and in an amount equal to such payment and, to the extent so financed, the Canadian Borrowers’ obligation to make such payment shall be discharged and replaced by the resulting Multicurrency Facility Loan. The obligation of the Canadian Borrowers to reimburse each Canadian Fronting Bank for any payment made under a Canadian Letter of Credit issued by such Canadian Fronting Bank shall be absolute, unconditional and irrevocable, and joint and several among the Canadian Borrowers, and shall be paid without regard to any lack of validity or enforceability of any Canadian Letter of Credit or the existence of any claim, setoff, defense or other right that the Canadian Borrowers or Loan Parties may have at any time against the beneficiary, provided, however, that no Canadian Borrower shall be obligated to reimburse any Canadian Fronting Bank for any wrongful payment made by such Canadian Fronting Bank under a Canadian Letter of Credit issued by it as a result of acts or omissions constituting willful misconduct, bad faith or gross negligence on the part of such Canadian Fronting Bank (as determined by a court of competent jurisdiction in a final and non-appealable decision).

 

(b)            Upon issuance of a Canadian Letter of Credit, each Multicurrency Facility Lender shall be deemed to have irrevocably and unconditionally purchased from the Canadian Fronting Bank that issued such Canadian Letter of Credit, without recourse or warranty, an undivided Pro Rata interest and participation in all Canadian LC Obligations relating to the Canadian Letter of Credit. If the applicable Canadian Fronting Bank makes any payment under a Canadian Letter of Credit and the Canadian Borrowers do not reimburse such payment on the Canadian Reimbursement Date, Agent shall promptly notify Multicurrency Facility Lenders and each Multicurrency Facility Lender shall promptly (within one Business Day) and unconditionally pay to Agent in the currency of the payment made under such Canadian Letter of Credit, for the benefit of the Canadian Fronting Bank, the Multicurrency Facility Lender’s Pro Rata share of such payment. Upon request by a Multicurrency Facility Lender, the applicable Canadian Fronting Bank shall furnish copies of any Canadian Letters of Credit and Canadian LC Documents in its possession at such time.

 

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(c)            The obligation of each Multicurrency Facility Lender to make payments to Agent for the account of the applicable Canadian Fronting Bank in connection with such Canadian Fronting Bank’s payment under a Canadian Letter of Credit shall be absolute, unconditional and irrevocable, not subject to any counterclaim, setoff, qualification or exception whatsoever, and shall be made in accordance with this Agreement under all circumstances, irrespective of any lack of validity or unenforceability of any Loan Documents; any draft, certificate or other document presented under a Canadian Letter of Credit having been determined to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; or the existence of any setoff or defense that any Loan Party may have with respect to any Obligations. No Canadian Fronting Bank assumes any responsibility for any failure or delay in performance or any breach by any Canadian Borrower or other Person of any obligations under any Canadian LC Documents. No Canadian Fronting Bank makes any express or implied warranty, representation or guarantee to Multicurrency Facility Lenders with respect to the Collateral, Canadian LC Documents or any Canadian Loan Party. No Canadian Fronting Bank shall be responsible to any Multicurrency Facility Lender for any recitals, statements, information, representations or warranties contained in, or for the execution, validity, genuineness, effectiveness or enforceability of any Canadian LC Documents; the validity, genuineness, enforceability, collectability, value or sufficiency of any Collateral or the perfection of any Lien therein; or the assets, liabilities, financial condition, results of operations, business, creditworthiness or legal status of any Loan Party.

 

(d)            No Canadian Fronting Bank Indemnitee shall be liable to any Loan Party or other Person for any action taken or omitted to be taken in connection with any Canadian LC Documents except as a result of such Canadian Fronting Bank’s gross negligence, willful misconduct or bad faith, as determined by a final, nonappealable judgment of a court of competent jurisdiction. No Canadian Fronting Bank shall have any liability to any Multicurrency Facility Lender if such Canadian Fronting Bank refrains from any action under any Canadian Letter of Credit or Canadian LC Documents until it receives written instructions from Required Multicurrency Facility Lenders to act and fails to so act.

 

2.2.3            Canadian LC Cash Collateral. If any Canadian LC Obligations, whether or not then due or payable, shall for any reason be outstanding at any time (a) that an Event of Default exists, (b) that a Multicurrency Overadvance exists (with respect to the amount of Overadvance only), (c) after the Multicurrency Facility Commitment Termination Date, or (d) within five Business Days prior to the Multicurrency Facility Commitment Termination Date, then Canadian Borrowers shall, within one Business Day of any Canadian Fronting Bank’s or Agent’s request, Cash Collateralize the stated amount of all outstanding Canadian Letters of Credit and pay to each Canadian Fronting Bank the amount of all other Canadian LC Obligations owing to such Canadian Fronting Bank. Canadian Borrowers shall, within one Business Day of demand by any Canadian Fronting Bank or Agent from time to time, Cash Collateralize the Canadian LC Obligations of any Defaulting Lender that is a Multicurrency Facility Lender. If Canadian Borrowers fail to provide any Cash Collateral as required hereunder, Multicurrency Facility Lenders may (and shall upon direction of Agent) advance, as Multicurrency Facility Loans, the amount of the Cash Collateral required whether or not the Multicurrency Facility Commitments have terminated, any Multicurrency Overadvance exists or would result therefrom or the conditions in Section 6 are satisfied (it being agreed that no Multicurrency Facility Lender shall have any obligation to make any such Multicurrency Facility Loan if after giving effect thereto such Multicurrency Facility Loan would cause its Pro Rata share of the Total Multicurrency Facility Exposure to exceed its Multicurrency Facility Commitment (or if its Multicurrency Facility Commitment has been terminated, its Multicurrency Facility Commitment as in effect immediately prior to such termination)); provided, that, in the event the reason for such cash collateralization is to cash collateralize a Defaulting Lender’s obligation, (x) no Multicurrency Facility Lender shall be required to fund more than its Pro Rata share of such Multicurrency Facility Loan after giving effect to the reallocation pursuant to Section 4.2.1 and (y) no Multicurrency Facility Lender shall be required to fund such a Multicurrency Facility Loan to the extent such Multicurrency Facility Loan would cause its Pro Rata share of the Total Multicurrency Facility Exposure to exceed its Multicurrency Facility Commitment (or if its Multicurrency Facility Commitment has been terminated, its Multicurrency Facility Commitment as in effect immediately prior to such termination).

 

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2.3          UK Letters of Credit.

 

2.3.1            Issuance of UK Letters of Credit. Each UK Fronting Bank agrees to issue UK Letters of Credit for the account of any UK Borrower or any Restricted Subsidiaries from time to time until five Business Days prior to the Multicurrency Facility Commitment Termination Date, in, at the option of the Applicable UK Borrower, Dollars, Pounds Sterling or Euros, on the terms set forth herein, including the following:

 

(a)            Each UK Borrower acknowledges that each UK Fronting Bank’s willingness to issue any UK Letter of Credit is conditioned upon such UK Fronting Bank’s receipt of a UK LC Application with respect to the requested UK Letter of Credit, as well as such other instruments and agreements as such UK Fronting Bank may customarily require for issuance of a letter of credit of similar type and amount. No UK Fronting Bank shall have any obligation to issue any UK Letter of Credit unless (i) such UK Fronting Bank and Agent receive UK LC Application at least three Business Days prior to the requested date of issuance; (ii) each UK LC Condition is satisfied; and (iii) if a Defaulting Lender that is a Multicurrency Facility Lender exists, such Defaulting Lender or UK Borrowers have entered into arrangements reasonably satisfactory to Agent and such UK Fronting Bank to eliminate any funding risk associated with such Defaulting Lender. If a UK Fronting Bank receives written notice from a Multicurrency Facility Lender at least three Business Days before issuance of a UK Letter of Credit that any UK LC Condition has not been satisfied, such UK Fronting Bank shall have no obligation to issue the requested UK Letter of Credit (or any other) until such notice is withdrawn in writing by such Multicurrency Facility Lender or until the Required Multicurrency Facility Lenders have waived such condition in accordance with this Agreement. Prior to receipt of any such notice, a UK Fronting Bank shall not be deemed to have knowledge of any failure of UK LC Conditions.

 

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(b)            The renewal or extension of any UK Letter of Credit shall be treated as the issuance of a new UK Letter of Credit, except that delivery of a new UK LC Application shall only be required at the discretion of the applicable UK Fronting Bank. No UK Fronting Bank shall renew or extend any UK Letter of Credit if it receives written notice from Agent or the Required Multicurrency Facility Lenders of the existence of a Default or Event of Default.

 

(c)            The UK Borrowers assume all risks of the acts, omissions or misuses of any UK Letter of Credit by the beneficiary. In connection with issuance of any UK Letter of Credit, none of Agent, any UK Fronting Bank or any Lender shall be responsible for the existence, character, quality, quantity, condition, packing, value or delivery of any goods purported to be represented by any Documents; any differences or variation in the character, quality, quantity, condition, packing, value or delivery of any goods from that expressed in any Documents; the form, validity, sufficiency, accuracy, genuineness or legal effect of any Documents or of any endorsements thereon; the time, place, manner or order in which shipment of goods is made; partial or incomplete shipment of, or failure to ship, any goods referred to in a UK Letter of Credit or Documents; any deviation from instructions, delay, default or fraud by any shipper or other Person in connection with any goods, shipment or delivery; any breach of contract between a shipper or vendor and a UK Borrower or Restricted Subsidiary; errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex, telecopy, e-mail, telephone or otherwise; errors in interpretation of technical terms; the misapplication by a beneficiary of any UK Letter of Credit or the proceeds thereof; or any consequences arising from causes beyond the control of any UK Fronting Bank, Agent or any Multicurrency Facility Lender, including any act or omission of a Governmental Authority. The rights and remedies of each UK Fronting Bank under the Loan Documents shall be cumulative. Each UK Fronting Bank shall be fully subrogated to the rights and remedies of each beneficiary whose claims against UK Borrowers or Restricted Subsidiaries are discharged with proceeds of any UK Letter of Credit issued by such UK Fronting Bank.

 

(d)            In connection with its administration of and enforcement of rights or remedies under any UK Letters of Credit or UK LC Documents, each UK Fronting Bank shall be entitled to act, and shall be fully protected in acting, upon any certification, documentation or communication in whatever form believed by such UK Fronting Bank, in good faith, to be genuine and correct and to have been signed, sent or made by a proper Person. Each UK Fronting Bank may consult with and employ legal counsel, accountants and other experts to advise it concerning its obligations, rights and remedies, and shall be entitled to act upon, and shall be fully protected in any action taken in good faith reliance upon, any advice given by such experts. Each UK Fronting Bank may employ agents and attorneys-in-fact in connection with any matter relating to UK Letters of Credit or UK LC Documents, and shall not be liable for the negligence or misconduct of agents and attorneys-in-fact selected with reasonable care.

 

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(e)            Schedule 1.1(b) contains a description of letters of credit under the heading “Existing UK Letters of Credit” that were issued by a Multicurrency Facility Lender for the account of a UK Borrower or Restricted Subsidiary prior to the Closing Date and which remain outstanding on the Closing Date (and setting forth, with respect to each such letter of credit, (i) the name of the issuing lender, (ii) the letter of credit number, (iii) the name of the account party, (iv) the stated amount (which shall be Dollars, Pounds Sterling or Euros), (v) the name of the beneficiary, (vi) the expiry date and (vii) whether such letter of credit constitutes a standby letter of credit or a trade letter of credit). Each UK Borrower and each Multicurrency Facility Lender hereby acknowledges and agrees that each such letter of credit, including any extension or renewal thereof in accordance with the terms thereof and hereof (each, as amended from time to time in accordance with the terms thereof and hereof, an “Existing UK Letter of Credit”) shall constitute a “UK Letter of Credit” for all purposes of this Agreement and, notwithstanding anything to the contrary stated in any such Existing UK Letter of Credit (including, without limitation, the account party named therein), shall be deemed issued on the Closing Date for the account of the Applicable UK Borrower or Restricted Subsidiary.

 

2.3.2            UK LC Reimbursement; UK LC Participations.

 

(a)            If a UK Fronting Bank honors any request for payment under a UK Letter of Credit, the UK Borrowers agree, jointly and severally, to pay to such UK Fronting Bank, on the day that UK Borrowers receive notice of such drawing if such notice is received by 10:00 a.m. (Local Time), and on the next succeeding Business Day if such notice is received after such time (“UK Reimbursement Date”), the amount paid by such UK Fronting Bank under such Letter of Credit, together with interest on the amount of such drawing at the interest rate for UK Base Rate Loans (if the UK Letter of Credit was denominated in Dollars) and LIBOR Loans (if the UK Letter of Credit was denominated in Euros or Pounds Sterling), in each case, from the date of drawing under such UK Letter of Credit until payment by the UK Borrowers of the amount of such drawing, provided, that the UK Borrowers may, without regard to the conditions to set forth in Section 6.2, request (and, absent such payment having already been made, shall be deemed to have requested) that such payment be financed with a UK Swingline Loan accruing interest at the UK Base Rate (or, in the event that the Dollar Equivalent of such UK Swingline Loan would exceed the Dollar Equivalent of the available UK Swingline Commitment, a Multicurrency Facility Loan accruing interest as a LIBOR Loan), denominated in the same currency as the UK Letter of Credit being financed, and in an amount equal to such payment and, to the extent so financed, the UK Borrowers’ obligation to make such payment shall be discharged and replaced by the resulting UK Swingline Loan or Multicurrency Facility Loan, as applicable. The obligation of the UK Borrowers to reimburse each UK Fronting Bank for any payment made under a UK Letter of Credit issued by such UK Fronting Bank shall be absolute, unconditional and irrevocable, and joint and several among the UK Borrowers, and shall be paid without regard to any lack of validity or enforceability of any UK Letter of Credit or the existence of any claim, setoff, defense or other right that the UK Borrowers or Loan Parties may have at any time against the beneficiary, provided, however, that no UK Borrower shall be obligated to reimburse any UK Fronting Bank for any wrongful payment made by such UK Fronting Bank under a UK Letter of Credit issued by it as a result of acts or omissions constituting willful misconduct, bad faith or gross negligence on the part of such UK Fronting Bank (as determined by a court of competent jurisdiction in a final and non-appealable decision).

 

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(b)            Upon issuance of a UK Letter of Credit, each Multicurrency Facility Lender shall be deemed to have irrevocably and unconditionally purchased from the UK Fronting Bank that issued such UK Letter of Credit, without recourse or warranty, an undivided Pro Rata interest and participation in all UK LC Obligations relating to the UK Letter of Credit. If the applicable UK Fronting Bank makes any payment under a UK Letter of Credit and the UK Borrowers do not reimburse such payment on the UK Reimbursement Date, Agent shall promptly notify Multicurrency Facility Lenders and each Multicurrency Facility Lender shall promptly (within one Business Day) and unconditionally pay to Agent in the currency of the payment made under such UK Letter of Credit, for the benefit of the UK Fronting Bank, the Multicurrency Facility Lender’s Pro Rata share of such payment. Upon request by a Multicurrency Facility Lender, the applicable UK Fronting Bank shall furnish copies of any UK Letters of Credit and UK LC Documents in its possession at such time.

 

(c)            The obligation of each Multicurrency Facility Lender to make payments to Agent for the account of the applicable UK Fronting Bank in connection with such UK Fronting Bank’s payment under a UK Letter of Credit shall be absolute, unconditional and irrevocable, not subject to any counterclaim, setoff, qualification or exception whatsoever, and shall be made in accordance with this Agreement under all circumstances, irrespective of any lack of validity or unenforceability of any Loan Documents; any draft, certificate or other document presented under a UK Letter of Credit having been determined to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; or the existence of any setoff or defense that any Loan Party may have with respect to any Obligations. No UK Fronting Bank assumes any responsibility for any failure or delay in performance or any breach by any UK Borrower or other Person of any obligations under any UK LC Documents. No UK Fronting Bank makes any express or implied warranty, representation or guarantee to Multicurrency Facility Lenders with respect to the Collateral, the UK LC Documents or any UK Loan Party. No UK Fronting Bank shall be responsible to any Multicurrency Facility Lender for any recitals, statements, information, representations or warranties contained in, or for the execution, validity, genuineness, effectiveness or enforceability of any UK LC Documents; the validity, genuineness, enforceability, collectability, value or sufficiency of any Collateral or the perfection of any Lien therein; or the assets, liabilities, financial condition, results of operations, business, creditworthiness or legal status of any Loan Party.

 

(d)            No UK Fronting Bank Indemnitee shall be liable to any Loan Party or other Person for any action taken or omitted to be taken in connection with any UK LC Documents except as a result of such UK Fronting Bank’s gross negligence, willful misconduct or bad faith, as determined by a final, nonappealable judgment of a court of competent jurisdiction. No UK Fronting Bank shall have any liability to any Multicurrency Facility Lender if such UK Fronting Bank refrains from any action under any UK Letter of Credit or UK LC Documents until it receives written instructions from Required Multicurrency Facility Lenders to act and fails to so act.

 

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2.3.3            UK LC Cash Collateral. If any UK LC Obligations, whether or not then due or payable, shall for any reason be outstanding at any time (a) that an Event of Default exists, (b) that a Multicurrency Overadvance exists (with respect to the amount of Overadvance only), (c) after the Multicurrency Facility Commitment Termination Date, or (d) within five Business Days prior to the Multicurrency Facility Commitment Termination Date, then UK Borrowers shall, within one Business Day of any UK Fronting Bank’s or Agent’s request, Cash Collateralize the stated amount of all outstanding UK Letters of Credit and pay to each UK Fronting Bank the amount of all other UK LC Obligations owing to such UK Fronting Bank. UK Borrowers shall, within one Business Day of demand by any UK Fronting Bank or Agent from time to time, Cash Collateralize the UK LC Obligations of any Defaulting Lender that is a Multicurrency Facility Lender. If UK Borrowers fail to provide any Cash Collateral as required hereunder, Multicurrency Facility Lenders may (and shall upon direction of Agent) advance, as Multicurrency Facility Loans, the amount of the Cash Collateral required (whether or not the Multicurrency Facility Commitments have terminated, any Multicurrency Overadvance exists or would result therefrom or the conditions in Section 6 are satisfied (it being agreed that no Multicurrency Facility Lender shall have any obligation to make any such Multicurrency Facility Loan if after giving effect thereto such Multicurrency Facility Loan would cause its Pro Rata share of the Total Multicurrency Facility Exposure to exceed its Multicurrency Facility Commitment (or if its Multicurrency Facility Commitment has been terminated, its Multicurrency Facility Commitment as in effect immediately prior to such termination)); provided, that, in the event the reason for such cash collateralization is to cash collateralize a Defaulting Lender’s obligation, (x) no Multicurrency Facility Lender shall be required to fund more than its Pro Rata share of such Multicurrency Facility Loan after giving effect to the reallocation pursuant to Section 4.2.1 and (y) no Multicurrency Facility Lender shall be required to fund such Multicurrency Facility Loan to the extent such Multicurrency Facility Loan would cause its Pro Rata share of the Total Multicurrency Facility Exposure to exceed its Multicurrency Facility Commitment (or if its Multicurrency Facility Commitment has been terminated, its Multicurrency Facility Commitment as in effect immediately prior to such termination).

 

2.4          US Letters of Credit.

 

2.4.1            Issuance of US Letters of Credit. Each US Fronting Bank agrees to issue US Letters of Credit for the account of any US Borrower or any Restricted Subsidiaries from time to time until five Business Days prior to the US Facility Commitment Termination Date, in Dollars, on the terms set forth herein, including the following:

 

(a)            Each US Borrower acknowledges that each US Fronting Bank’s willingness to issue any US Letter of Credit is conditioned upon such US Fronting Bank’s receipt of a US LC Application with respect to the requested US Letter of Credit, as well as such other instruments and agreements as such US Fronting Bank may customarily require for issuance of a letter of credit of similar type and amount. No US Fronting Bank shall have any obligation to issue any US Letter of Credit unless (i) such US Fronting Bank and Agent receive a US LC Application at least three Business Days prior to the requested date of issuance; (ii) each US LC Condition is satisfied; and (iii) if a Defaulting Lender that is a US Facility Lender exists, such Defaulting Lender or US Borrowers have entered into arrangements reasonably satisfactory to Agent and such US Fronting Bank to eliminate any funding risk associated with such Defaulting Lender. If a US Fronting Bank receives written notice from a US Facility Lender at least three Business Days before issuance of a US Letter of Credit that any US LC Condition has not been satisfied, such US Fronting Bank shall have no obligation to issue the requested US Letter of Credit (or any other) until such notice is withdrawn in writing by such US Facility Lender or until the Required US Facility Lenders have waived such condition in accordance with this Agreement. Prior to receipt of any such notice, a US Fronting Bank shall not be deemed to have knowledge of any failure of US LC Conditions.

 

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(b)            The renewal or extension of any US Letter of Credit shall be treated as the issuance of a new US Letter of Credit, except that delivery of a new US LC Application shall only be required at the discretion of the applicable US Fronting Bank. No US Fronting Bank shall renew or extend any US Letter of Credit if it receives written notice from Agent or the Required US Facility Lenders of the existence of a Default or Event of Default.

 

(c)            The US Borrowers assume all risks of the acts, omissions or misuses of any US Letter of Credit by the beneficiary. In connection with issuance of any US Letter of Credit, none of Agent, any US Fronting Bank or any Lender shall be responsible for the existence, character, quality, quantity, condition, packing, value or delivery of any goods purported to be represented by any Documents; any differences or variation in the character, quality, quantity, condition, packing, value or delivery of any goods from that expressed in any Documents; the form, validity, sufficiency, accuracy, genuineness or legal effect of any Documents or of any endorsements thereon; the time, place, manner or order in which shipment of goods is made; partial or incomplete shipment of, or failure to ship, any goods referred to in a US Letter of Credit or Documents; any deviation from instructions, delay, default or fraud by any shipper or other Person in connection with any goods, shipment or delivery; any breach of contract between a shipper or vendor and a US Borrower or Restricted Subsidiary; errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex, telecopy, e-mail, telephone or otherwise; errors in interpretation of technical terms; the misapplication by a beneficiary of any US Letter of Credit or the proceeds thereof; or any consequences arising from causes beyond the control of any US Fronting Bank, Agent or any US Facility Lender, including any act or omission of a Governmental Authority. The rights and remedies of each US Fronting Bank under the Loan Documents shall be cumulative. Each US Fronting Bank shall be fully subrogated to the rights and remedies of each beneficiary whose claims against US Borrowers or Restricted Subsidiaries are discharged with proceeds of any US Letter of Credit issued by such US Fronting Bank.

 

(d)            In connection with its administration of and enforcement of rights or remedies under any US Letters of Credit or US LC Documents, each US Fronting Bank shall be entitled to act, and shall be fully protected in acting, upon any certification, documentation or communication in whatever form believed by such US Fronting Bank, in good faith, to be genuine and correct and to have been signed, sent or made by a proper Person. Each US Fronting Bank may consult with and employ legal counsel, accountants and other experts to advise it concerning its obligations, rights and remedies, and shall be entitled to act upon, and shall be fully protected in any action taken in good faith reliance upon, any advice given by such experts. Each US Fronting Bank may employ agents and attorneys-in-fact in connection with any matter relating to US Letters of Credit or US LC Documents, and shall not be liable for the negligence or misconduct of agents and attorneys-in-fact selected with reasonable care.

 

(e)            Schedule 1.1(b) contains a description of letters of credit under the heading “Existing US Letters of Credit” that were issued by a US Facility Lender for the account of a US Borrower or Restricted Subsidiary prior to the Closing Date and which remain outstanding on the Closing Date (and setting forth, with respect to each such letter of credit, (i) the name of the issuing lender, (ii) the letter of credit number, (iii) the name of the account party, (iv) the stated amount (which shall be Dollars), (v) the name of the beneficiary, (vi) the expiry date and (vii) whether such letter of credit constitutes a standby letter of credit or a trade letter of credit). Each US Borrower and each US Facility Lender hereby acknowledges and agrees that each such letter of credit, including any extension or renewal thereof in accordance with the terms thereof and hereof (each, as amended from time to time in accordance with the terms thereof and hereof, an “Existing US Letter of Credit”) shall constitute a “US Letter of Credit” for all purposes of this Agreement and, notwithstanding anything to the contrary stated in any such Existing US Letter of Credit (including, without limitation, the account party named therein), shall be deemed issued on the Closing Date for the account of the Applicable US Borrower or Restricted Subsidiary.

 

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2.4.2            US LC Reimbursement; US LC Participations.

 

(a)            If a US Fronting Bank honors any request for payment under a US Letter of Credit, the US Borrowers agree, jointly and severally, to pay to such US Fronting Bank, on the day that US Borrowers receive notice of such drawing if such notice is received by 10:00 a.m. (Local Time) and on the next succeeding Business Day if such notice is received after such time (“US Reimbursement Date”), the amount paid by such US Fronting Bank under such US Letter of Credit, together with interest on the amount of such drawing at the interest rate for US Base Rate Loans from the date of drawing under such US Letter of Credit until payment by the US Borrowers of the amount of such drawing, provided, that the US Borrowers may, without regard to the conditions to set forth in Section 6.2, request (and, absent such payment having already been made, shall be deemed to have requested) that such payment be financed with a US Facility Loan accruing interest at US Base Rate, denominated in Dollars, and in an amount equal to such payment and, to the extent so financed, the US Borrowers’ obligation to make such payment shall be discharged and replaced by the resulting US Facility Loan. The obligation of the US Borrowers to reimburse each US Fronting Bank for any payment made under a US Letter of Credit issued by such US Fronting Bank shall be absolute, unconditional and irrevocable, and joint and several among the US Borrowers, and shall be paid without regard to any lack of validity or enforceability of any US Letter of Credit or the existence of any claim, setoff, defense or other right that the US Borrowers or Loan Parties may have at any time against the beneficiary, provided, however, that no US Borrower shall be obligated to reimburse any US Fronting Bank for any wrongful payment made by such US Fronting Bank under a US Letter of Credit issued by it as a result of acts or omissions constituting willful misconduct, bad faith or gross negligence on the part of such US Fronting Bank (as determined by a court of competent jurisdiction in a final and non-appealable decision).

 

(b)            Upon issuance of a US Letter of Credit, each US Facility Lender shall be deemed to have irrevocably and unconditionally purchased from the US Fronting Bank that issued such US Letter of Credit, without recourse or warranty, an undivided Pro Rata interest and participation in all US LC Obligations relating to the US Letter of Credit. If the applicable US Fronting Bank makes any payment under a US Letter of Credit and US Borrowers do not reimburse such payment on the US Reimbursement Date, Agent shall promptly notify US Facility Lenders and each US Facility Lender shall promptly (within one Business Day) and unconditionally pay to Agent in Dollars, for the benefit of US Fronting Bank, the US Facility Lender’s Pro Rata share of such payment. Upon request by a US Facility Lender, the applicable US Fronting Bank shall furnish copies of any US Letters of Credit and US LC Documents in its possession at such time.

 

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(c)            The obligation of each US Facility Lender to make payments to Agent for the account of the applicable US Fronting Bank in connection with such US Fronting Bank’s payment under a US Letter of Credit shall be absolute, unconditional and irrevocable, not subject to any counterclaim, setoff, qualification or exception whatsoever, and shall be made in accordance with this Agreement under all circumstances, irrespective of any lack of validity or unenforceability of any Loan Documents; any draft, certificate or other document presented under a US Letter of Credit having been determined to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; or the existence of any setoff or defense that any Loan Party may have with respect to any Obligations. No US Fronting Bank assumes any responsibility for any failure or delay in performance or any breach by any US Borrower or other Person of any obligations under any US LC Documents. No US Fronting Bank makes any express or implied warranty, representation or guarantee to US Facility Lenders with respect to the US Collateral, US LC Documents or any US Loan Party. No US Fronting Bank shall be responsible to any US Facility Lender for any recitals, statements, information, representations or warranties contained in, or for the execution, validity, genuineness, effectiveness or enforceability of any US LC Documents; the validity, genuineness, enforceability, collectability, value or sufficiency of any US Collateral or the perfection of any Lien therein; or the assets, liabilities, financial condition, results of operations, business, creditworthiness or legal status of any US Loan Party.

 

(d)            No US Fronting Bank Indemnitee shall be liable to any Loan Party or other Person for any action taken or omitted to be taken in connection with any US LC Documents except as a result of such US Fronting Bank’s gross negligence, willful misconduct or bad faith, as determined by a final, nonappealable judgment of a court of competent jurisdiction. No US Fronting Bank shall have any liability to any US Facility Lender if such US Fronting Bank refrains from any action under any US Letter of Credit or US LC Documents until it receives written instructions from Required US Facility Lenders to act and fails to so act.

 

2.4.3            US LC Cash Collateral. If any US LC Obligations, whether or not then due or payable, shall for any reason be outstanding at any time (a) that an Event of Default exists, (b) that a US Overadvance exists (with respect to the amount of Overadvance only), (c) after the US Facility Commitment Termination Date, or (d) within five Business Days prior to the US Facility Commitment Termination Date, then US Borrowers shall, within one Business Day of any US Fronting Bank’s or Agent’s request, Cash Collateralize the stated amount of all outstanding US Letters of Credit and pay to each US Fronting Bank the amount of all other US LC Obligations owing to such US Fronting Bank. US Borrowers shall, within one Business Day of demand by any US Fronting Bank or Agent from time to time, Cash Collateralize the US LC Obligations of any Defaulting Lender that is a US Facility Lender. If US Borrowers fail to provide any Cash Collateral as required hereunder, US Facility Lenders may (and shall upon direction of Agent) advance, as US Facility Loans, the amount of the Cash Collateral required whether or not the US Facility Commitments have terminated, any US Overadvance exists or would result therefrom or the conditions in Section 6 are satisfied (it being agreed that no US Facility Lender shall have any obligation to make any such US Facility Loan if after giving effect thereto such US Facility Loan would cause its Pro Rata Share of the Total US Facility Exposure to exceed its US Facility Commitment (or if its US Facility Commitment has been terminated, its US Facility Commitment as in effect immediately prior to such termination)); provided, that, in the event the reason for such cash collateralization is to cash collateralize a Defaulting Lender’s obligation, (x) no US Facility Lender shall be required to fund more than its Pro Rata share of such US Facility Loan after giving effect to the reallocation pursuant to Section 4.2.1 and (y) no US Facility Lender shall be required to fund such US Facility Loan to the extent such US Facility Loan would cause its Pro Rata share of the Total US Facility Exposure to exceed its US Facility Commitment (or if its US Facility Commitment has been terminated, its US Facility Commitment as in effect immediately prior to such termination).

 

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2.5          Obligations of the Non-US Loan Parties. Notwithstanding anything in this Agreement or any other Loan Document to the contrary, except as may be otherwise expressly agreed by Agent and the Administrative Borrower in writing following the Closing Date, no Non-US Loan Party shall be liable or in any manner responsible for, or be deemed to have guaranteed, directly or indirectly, whether as a primary obligor, guarantor, indemnitor, or otherwise, and none of their assets shall secure, directly or indirectly, any Secured Obligations (including, without limitation, principal, interest, fees, penalties, premiums, expenses, charges, reimbursements, indemnities or any other Secured Obligations) of US Loan Parties under this Agreement or any other Credit Document.

 

2.6          Minimum Borrowing Base.

 

(a)            Notwithstanding anything in this Agreement or any other Loan Document to the contrary and regardless of the calculation of the Multicurrency Facility Borrowing Base and the US Borrowing Base pursuant to the definitions thereof on the Closing Date, the aggregate amount of the Multicurrency Facility Borrowing Base and the US Borrowing Base shall be deemed to be no less than $2,200,000,000 ($100,000,000 of which shall be allocated to the Canadian Borrowing Base, $100,000,000 of which shall be allocated to the UK Borrowing Base and $2,000,000,000 of which shall be allocated to the US Borrowing Base) on and from the Closing Date until the date that is 120 days after the Closing Date (or such later date as Agent may agree in its sole discretion).

 

(b)            Subject to the preceding clause (a), until the earlier of (i) January 31, 2021 and (ii) the date of receipt by Agent of the New Appraisals and Field Exams, the aggregate amount of the Canadian Borrowing Base, UK Borrowing Base and US Borrowing Base shall be determined using the Existing Appraisals and Field Exams and be based on the sum of such borrowing bases as calculated under the Existing WS Credit Agreement and the Existing Mobile Mini Credit Agreement, in each case, as if such agreements were still in effect, provided, that, upon completion and delivery to Agent of the New WS Appraisals and Field Exams (but prior to the completion of the New Mobile Mini Appraisals and Field Exams), the Canadian Borrowing Base, UK Borrowing Base and US Borrowing Base shall each be calculated in accordance with the definitions thereof based on the New WS Appraisals and Field Exams and the Existing Mobile Mini Appraisals and Field Exams until the New Mobile Mini Appraisals and Field Exams are completed and delivered to Agent. In the event that the New WS Appraisals and Field Exams are not completed and delivered to Agent by January 31, 2021, the Borrowing Base shall be deemed to be $0 from and after January 31, 2021 until the date on which the New WS Appraisals and Field Exams are completed and delivered to Agent.

 

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2.7          Bank of the West. Upon Bank of the West receiving requisite internal approvals to act as a Canadian Fronting Bank, a UK Fronting Bank and a US Fronting Bank and delivery by Bank of the West to Agent and the Administrative Borrower of duly executed signature pages to this Agreement in such capacities, Bank of the West (or any applicable branch or Affiliate) shall be deemed to be a Canadian Fronting Bank, a UK Fronting Bank and a US Fronting Bank hereunder and Schedule 1.1(a) shall be amended (i) to reduce the “Canadian Letters of Credit Commitment”, the “UK Letters of Credit Commitment” and the “US Letters of Credit Commitment” set forth thereon of Bank of America, N.A. (or any applicable branch or Affiliate) in an amount to be agreed between Agent and Bank of the West and (ii) to add Bank of the West (or any applicable branch or Affiliate) to such Schedule 1.1(a) with a “Canadian Letters of Credit Commitment”, a “UK Letters of Credit Commitment” and a “US Letters of Credit Commitment” in each case in an amount equal to the corresponding reduction described in the foregoing clause (i), all without the consent of any other party hereto.

 

SECTION 3.             INTEREST, FEES AND CHARGES

 

3.1          Interest.

 

3.1.1            Rates and Payment of Interest.

 

(a)           The Obligations shall bear interest as follows:

 

(i)            in the case of a Base Rate Loan, at the Base Rate in effect from time to time for the applicable currency, plus the Applicable Margin for such Base Rate Loan;

 

(ii)            in the case of a Canadian BA Rate Loan, at the Canadian BA Rate for the applicable Interest Period, plus the Applicable Margin for Canadian BA Rate Loans;

 

(iii)            in the case of a Canadian Prime Rate Loan, at the Canadian Prime Rate in effect from time to time, plus the Applicable Margin for Canadian Prime Rate Loans;

 

(iv)            in the case of a LIBOR Loan, at a rate equal to LIBOR for the applicable Interest Period for the applicable currency, plus the Applicable Margin for such LIBOR Loans.

 

Interest shall accrue from the date the Loan is advanced or the Obligation becomes payable, until paid by the applicable Borrower(s), and shall in no event be less than zero at any time. If a Loan is repaid on the same day made, one day’s interest shall accrue.

 

(b)           Interest on Loans shall be payable in the currency of the underlying Loan.

 

(c)           If all or a portion of (i) the principal amount of any Loan or (ii) any interest payable thereon shall not be paid when due (whether at the stated maturity, by acceleration or otherwise) or any other amounts shall not be paid when due hereunder, such overdue amount shall bear interest (including post-petition interest during the pendency of any Insolvency Proceeding) at a rate per annum that is (x) in the case of overdue principal, the Default Rate or (y) in the case of any overdue interest or other amounts not paid when due hereunder, to the extent permitted by Applicable Law, the Default Rate from and including the date of such non-payment to but excluding the date on which such amount is paid in full (after as well as before judgment). Payment or acceptance of the increased rates of interest provided for in this Section 3.1.1 is not a permitted alternative to timely payment of amounts due hereunder and shall not constitute a waiver of any Event of Default or otherwise prejudice or limit any rights or remedies of Agent or any Lender.

 

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(d)            Interest accrued on the Loans shall be due and payable in arrears, (i) for any Base Rate Loan or Canadian Prime Rate Loan, quarterly on the first day of each January, April, July and October for the preceding quarter; (ii) for any Interest Period Loan, on the last day of its Interest Period (and, if its Interest Period exceeds three months, at the end of each period of three months) and (iii) on any date of prepayment, with respect to the principal amount of Loans being prepaid. In addition, interest accrued on the (1) Multicurrency Facility Loans shall be due and payable in arrears on the Multicurrency Facility Commitment Termination Date and (2) US Facility Loans shall be due and payable in arrears on the US Facility Commitment Termination Date. Notwithstanding the foregoing, interest on Obligations accrued at the Default Rate shall be due and payable on demand.

 

3.1.2            Application of LIBOR to Outstanding Loans.

 

(a)            Borrowers may on any Business Day, subject to delivery of a Notice of Conversion/Continuation and the other terms hereof, elect to convert any portion of any Base Rate Loan funded in Dollars to, or to continue any LIBOR Loan at the end of its Interest Period as, a LIBOR Loan in the same currency. During any Event of Default, Agent may (and shall at the direction of Required Lenders) declare that no Loan funded in Dollars may be made, converted or continued as a LIBOR Loan.

 

(b)            Whenever Borrowers desire to convert or continue Loans as LIBOR Loans, the Administrative Borrower shall give Agent a Notice of Conversion/Continuation, no later than 10:00 a.m. (Local Time) at least three Business Days prior to the requested conversion or continuation date. Promptly after receiving any such notice, Agent shall notify each applicable Revolver Lender thereof. Each Notice of Conversion/Continuation shall be irrevocable, and shall specify the amount of Loans to be converted or continued, the conversion or continuation date (which shall be a Business Day), and the duration of the Interest Period (which shall be deemed to be one month if not specified). If, upon the expiration of any Interest Period in respect of any LIBOR Loans, the Administrative Borrower shall have failed to deliver a Notice of Conversion/Continuation with respect thereto as required above, Borrowers shall be deemed to have elected to continue such Loans as LIBOR Loans in the same currency with an Interest Period of one month.

 

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3.1.3            Application of Canadian BA Rate to Outstanding Loans.

 

(a)            A Canadian Borrower may on any Business Day, subject to delivery of a Notice of Conversion/Continuation and the other terms hereof, elect to convert any portion of the Canadian Prime Rate Loans, or to continue any Canadian BA Rate Loan at the end of its Interest Period as a Canadian BA Rate Loan; provided, however, that such Canadian BA Rate Loans may only be so converted at the end of the Interest Period applicable thereto. During any Event of Default, Agent may (and shall at the direction of Required Multicurrency Facility Lenders) declare that no Loan may be made, converted or continued as a Canadian BA Rate Loan.

 

(b)            Whenever the Applicable Canadian Borrower desires to convert or continue Loans as Canadian BA Rate Loans, the Administrative Borrower shall give Agent a Notice of Conversion/Continuation, no later than 10:00 a.m. (Local Time) at least three Business Days prior to the requested conversion or continuation date. Promptly after receiving any such notice, Agent shall notify each Multicurrency Facility Lender thereof. Each Notice of Conversion/Continuation shall be irrevocable, and shall specify the amount of Loans to be converted or continued, the conversion or continuation date (which shall be a Business Day), and the duration of the Interest Period (which shall be deemed to be one month if not specified). If, upon the expiration of any Interest Period in respect of any Canadian BA Rate Loans, Administrative Borrower shall have failed to deliver a Notice of Conversion/Continuation with respect thereto as required above, the Applicable Canadian Borrower shall be deemed to have elected to continue such Loans as Canadian BA Rate Loans with an Interest Period of one month.

 

3.1.4            Interest Periods. In connection with the making, conversion or continuation of any Interest Period Loans, the Administrative Borrower, on behalf of the applicable Borrower(s), shall select an interest period to apply (the “Interest Period”), which interest period shall be a one, two, three, six or, if available to all Applicable Lenders as determined by such Applicable Lenders in good faith based upon prevailing market conditions, twelve month or a shorter period; provided, however, that:

 

(a)            each Interest Period shall commence on the date the Loan is made or continued as, or converted into, an Interest Period Loan, and shall expire on the numerically corresponding day in the calendar month at its end;

 

(b)            if any Interest Period commences on a day for which there is no corresponding day in the calendar month at its end or if such corresponding day falls after the last Business Day of such month, then the Interest Period shall expire on the last Business Day of such month;

 

(c)            subject to clause (b), above, if any Interest Period would expire on a day that is not a Business Day, the period shall expire on the next Business Day; and

 

(d)            no Interest Period shall extend beyond the Revolver Facility Termination Date.

 

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3.2          Fees.

 

3.2.1            Unused Line Fee.

 

(a)            Multicurrency Facility Unused Line Fee. Borrowers shall pay to Agent, for the Pro Rata benefit of the Multicurrency Facility Lenders, a fee equal to 0.225% per annum times the average daily amount by which the Multicurrency Facility Commitments exceed the Total Multicurrency Facility Exposure during any month. Such fee shall be payable in arrears in Dollars, quarterly on the first day of each January, April, July and October for the preceding quarter (commencing with the first such date to occur after the Closing Date) and on the Multicurrency Facility Commitment Termination Date.

 

(b)            US Facility Unused Line Fee. US Borrowers shall pay to Agent, for the Pro Rata benefit of US Facility Lenders, a fee equal to 0.225% per annum times the average daily amount by which the US Facility Commitments exceed the Total US Facility Exposure during any month. Such fee shall be payable in arrears in Dollars, quarterly on the first day of each January, April, July and October for the preceding quarter (commencing with the first such date to occur after the Closing Date) and on the US Facility Commitment Termination Date.

 

(c)            Swingline Utilization. For the purposes of this Section 3.2.1, outstanding Swingline Loans shall not be considered utilization of any Facility in determining the unused line fees.

 

3.2.2            Canadian Letters of Credit Fees. The Canadian Borrowers jointly and severally agree to pay (a) to Agent, for the Pro Rata benefit of Multicurrency Facility Lenders, a fee equal to the per annum rate of the Applicable Margin in effect for Canadian BA Rate Loans (in the case of Canadian Letters of Credit denominated in Canadian Dollars) or LIBOR Loans (in the case of Canadian Letters of Credit denominated in Dollars) times the average daily stated amount of the Canadian Letters of Credit denominated in such currency, as the case may be, which fee shall be payable quarterly in arrears, on the first day of each January, April, July and October for the preceding quarter (commencing with the first such date to occur after the Closing Date), and in addition shall be paid on the date of termination of any Canadian Letter of Credit and on the Multicurrency Facility Commitment Termination Date; (b) to Canadian Fronting Bank, for its own account, a fronting fee equal to 0.125% per annum on the stated amount of each Canadian Letter of Credit issued by it, which fee shall be payable upon the issuance of such Canadian Letter of Credit and at the time of each renewal or extension of each Canadian Letter of Credit, and also quarterly in arrears, on the first day of each January, April, July and October for the preceding quarter (commencing with the first such date to occur after the Closing Date), and in addition shall be paid on the date of termination of such Canadian Letter of Credit and on the Multicurrency Facility Commitment Termination Date; and (c) to Canadian Fronting Bank, for its own account, all customary charges associated with the issuance, amending, negotiating, payment, processing, transfer and administration of Canadian Letters of Credit issued by it, which charges shall be paid as and when incurred on demand. All fees payable under this Section 3.2.2 shall be payable in (x) Dollars for Canadian Letters of Credit denominated in Dollars and (y) Canadian Dollars for Canadian Letters of Credit denominated in Canadian Dollars.

 

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3.2.3            UK Letters of Credit Fees. The UK Borrowers jointly and severally agree to pay (a) to Agent, for the Pro Rata benefit of Multicurrency Facility Lenders, a fee equal to the per annum rate of the Applicable Margin in effect for LIBOR Loans of the applicable currency times the average daily stated amount of UK Letters of Credit of such applicable currency, which fee shall be payable quarterly in arrears, on the first day of each January, April, July and October for the preceding quarter (commencing with the first such date to occur after the Closing Date), and in addition shall be paid on the date of termination of any UK Letter of Credit and on the Multicurrency Facility Commitment Termination Date; (b) to UK Fronting Bank, for its own account, a fronting fee equal to 0.125% per annum on the stated amount of each UK Letter of Credit issued by it, which fee shall be payable upon the issuance of such UK Letter of Credit and at the time of each renewal or extension of each UK Letter of Credit, and also quarterly in arrears, on the first day of each January, April, July and October for the preceding quarter (commencing with the first such date to occur after the Closing Date), and in addition shall be paid on the date of termination of such UK Letter of Credit and on the Multicurrency Facility Commitment Termination Date; and (c) to UK Fronting Bank, for its own account, all customary charges associated with the issuance, amending, negotiating, payment, processing, transfer and administration of UK Letters of Credit issued by it, which charges shall be paid as and when incurred on demand. All fees payable under this Section 3.2.3 shall be payable in (x) Dollars for UK Letters of Credit denominated in Dollars, (y) Pounds Sterling for UK Letters of Credit denominated in Pounds Sterling and (z) Euros for UK Letters of Credit denominated in Euros.

 

3.2.4            US Letters of Credit Fees. US Borrowers jointly and severally agree to pay (a) to Agent, for the Pro Rata benefit of US Facility Lenders, a fee equal to the per annum rate of the Applicable Margin in effect for LIBOR Loans in Dollars times the average daily stated amount of US Letters of Credit, which fee shall be payable quarterly in arrears, on the first day of each January, April, July and October for the preceding quarter (commencing with the first such date to occur after the Closing Date), and in addition shall be paid on the date of termination of any US Letter of Credit and on the US Facility Commitment Termination Date; (b) to US Fronting Bank, for its own account, a fronting fee equal to 0.125% per annum on the stated amount of each US Letter of Credit issued by it, which fee shall be payable upon the issuance of such US Letter of Credit and at the time of each renewal or extension of each US Letter of Credit, and also quarterly in arrears, on the first day of each January, April, July and October for the preceding quarter (commencing with the first such date to occur after the Closing Date), and in addition shall be paid on the date of termination of such US Letter of Credit and on the US Facility Commitment Termination Date; and (c) to US Fronting Bank, for its own account, all customary charges associated with the issuance, amending, negotiating, payment, processing, transfer and administration of US Letters of Credit issued by it, which charges shall be paid as and when incurred on demand. All fees payable under this Section 3.2.4 shall be payable in Dollars.

 

3.2.5            Other Fees. Holdings and the Borrowers shall pay such other fees as described in the Fee Letter.

 

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3.3          Computation of Interest, Fees, Yield Protection. All interest, as well as fees and other charges calculated on a per annum basis, shall be computed for the actual days elapsed, based on a year of 360 days, or, in the case of interest based on Loans bearing interest at the US Prime Rate, on the basis of a year of 365 or 366 days, as the case may be, or, in the case of interest on Loans denominated in Canadian Dollars or Pounds Sterling, on the basis of a year of 365 days, or, in the case of interest on Loans denominated in Dollars bearing interest at the Canadian Base Rate, on the basis of a year of 365 days. Each determination by Agent of any interest, fees or interest rate hereunder shall be final, conclusive and binding for all purposes, absent manifest error. All fees shall be fully earned when due and shall not be subject to rebate, refund or proration. All fees payable under Section 3.2 are compensation for services and are not, and shall not be deemed to be, interest or any other charge for the use, forbearance or detention of money, except to the extent such treatment is inconsistent with any Applicable Law. A certificate setting forth in reasonable detail amounts payable by any Borrower under Section 3.4, 3.7 or 3.9 and the basis therefor, submitted to the Administrative Borrower by Agent or the affected Lender or Fronting Bank shall be final, conclusive and binding for all purposes, absent manifest error, and Borrowers shall pay such amounts to the appropriate party within ten (10) Business Days following receipt of the certificate. For the purposes of the Interest Act (Canada), the yearly rate of interest to which any rate calculated on the basis of a period of time different from the actual number of days in the year (360 days, for example) is equivalent is the stated rate multiplied by the actual number of days in the year (365 or 366, as applicable) and divided by the number of days in the shorter period (360 days, in the example), and the parties hereto acknowledge that there is a material distinction between the nominal and effective rates of interest and that they are capable of making the calculations necessary to compare such rates and that the calculations herein are to be made using the nominal rate method and not on any basis that gives effect to the principle of deemed reinvestment of interest. Each Canadian Loan Party confirms that it understands and is able to calculate the rate of interest applicable to Borrowings based on the methodology for calculating per annum rates provided for herein. Each Canadian Loan Party irrevocably agrees not to plead or assert, whether by way of defense or otherwise, in any proceeding relating to this Agreement or any Loan Documents, that the interest payable hereunder and the calculation thereof has not been adequately disclosed to the Canadian Loan Parties as required pursuant to Section 4 of the Interest Act (Canada). Any provision of this Agreement that would oblige a Canadian Loan Party to pay any fine, penalty or rate of interest on any arrears of principal or interest secured by a mortgage on real property or hypothec on immovables that has the effect of increasing the charge on arrears beyond the rate of interest payable on principal money not in arrears shall not apply to such Canadian Loan Party, which shall be required to pay interest on money in arrears at the same rate of interest payable on principal money not in arrears.

 

3.4          Reimbursement Obligations. Each Borrower shall, subject to Section 2.5, reimburse Agent for all Extraordinary Expenses incurred by Agent in reference to such Borrower or its related Loan Party Group Obligations or Collateral securing its Loan Party Group Obligations. In addition to such Extraordinary Expenses, such Borrowers shall also reimburse Agent and, in the case of clause (a) below only, each Joint Lead Arranger, for all reasonable and documented legal, accounting, appraisal, and other reasonable and documented fees, costs and expenses, without duplication, incurred by them in connection with (a) negotiation and preparation of any Loan Documents and any commitment letters executed in connection herewith and the syndication of the Loans hereunder; (b) any amendment or other modification to any of the Loan Documents; (c) all due diligence expenses, including field examinations and appraisals incurred by Agent in connection with the Loan Documents incurred prior to the Closing Date, provided, that any expenses incurred by an Agent Professional (other than attorneys which, for the avoidance of doubt, are covered by the proviso to this sentence) shall only be reimbursed to the extent the Administrative Borrower provided its prior written consent to the retaining of such Agent Professional (such consent not to be unreasonably conditioned, withheld or delayed); (d) administration of and actions relating to any Collateral, including any actions taken to perfect or maintain priority of Agent’s Liens on any such Collateral, to maintain any insurance required hereunder or to verify such Collateral; and (e) each inspection, field exam, audit or appraisal with respect to any Loan Party within such Borrowers’ related Loan Party Group or Collateral securing such Loan Party Group’s Obligations (including Bank of America’s standard charges for field examinations, audits and the preparation of reports thereof), whether prepared by Agent’s personnel or a third party (subject to the limitations of Section 9.1.14); provided, that the Borrowers’ obligation to reimburse Agent and Joint Lead Arrangers for legal fees shall be limited to the reasonable and documented legal fees and expenses of Latham & Watkins, LLP, US and UK counsel to Agent and Joint Lead Arrangers, and Norton Rose Fulbright Canada LLP, Canadian counsel to Agent and Joint Lead Arrangers, replacement or substitute counsel in any such jurisdiction and, if necessary, one local counsel in each other relevant material jurisdiction, including material local jurisdictions within any country listed above (which may include a local counsel acting in multiple jurisdictions). In addition to the Extraordinary Expenses of Agent, upon the occurrence and during the continuance of an Event of Default, Borrowers shall reimburse Fronting Banks and Lenders for the reasonable and documented fees, charges and disbursements of one US counsel, one UK counsel, and one Canadian counsel (and, if necessary, of one local counsel in each other relevant material jurisdiction, including local material jurisdictions within any country listed above (which may include a local counsel acting in multiple jurisdictions)) for the Fronting Banks and Lenders, as a whole, in connection with the enforcement, collection or protection of their respective rights under the Loan Documents (unless there is an actual or perceived conflict of interest, in which case the affected Fronting Banks and Lenders (taken as a whole) may retain one additional counsel in each relevant material jurisdiction, including local material jurisdictions within any country listed above (which may include a local counsel acting in multiple jurisdictions))), including all such expenses incurred during any workout, restructuring or Insolvency Proceeding. All amounts payable by Borrowers under this Section 3.4 shall be due and payable in accordance with Section 3.3.

 

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3.5          Illegality. If any Lender determines that any Applicable Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or its applicable Lending Office to make, maintain or fund Interest Period Loans, or to determine or charge interest rates based upon the Canadian BA Rate or LIBOR, or any Governmental Authority has imposed material restrictions on the authority of such Lender to purchase or sell bills of exchange denominated in, or to take deposits of, Dollars, Euros or Pounds Sterling in the London interbank market, or Canadian Dollars through bankers’ acceptances in the Canadian interbank market then, on notice thereof by such Lender to Agent, any obligation of such Lender to make or continue affected Interest Period Loans or to convert Floating Rate Loans to affected Interest Period Loans shall be suspended until such Lender notifies Agent that the circumstances giving rise to such determination no longer exist. Upon delivery of such notice, Borrowers shall prepay or, if applicable, convert all affected Interest Period Loans of such Lender to Floating Rate Loans, either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Interest Period Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such Interest Period Loans. Upon any such prepayment or conversion, the affected Borrowers shall also pay accrued interest on the amount so prepaid or converted. If any Lender invokes this Section 3.5, such Lender shall use reasonable efforts to notify the Administrative Borrower and Agent when the conditions giving rise to such action no longer exists, provided, however, that such Lender shall have no liability to Borrowers or to any other Person for its failure to provide such notice.

 

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3.6          Inability to Determine Rates.

 

(a)            If Required Lenders notify Agent for any reason in connection with a request for a Borrowing of, or conversion to or continuation of, an Interest Period Loan that (a) deposits or bankers’ acceptances are not being offered to (i) with respect to LIBOR, banks in the London interbank market and (ii) with respect to the Canadian BA Rate, banks in Canada in the Canadian interbank market, in each case for the applicable amount and Interest Period of such Loan, (b) adequate and reasonable means do not exist for determining LIBOR or the Canadian BA Rate for the requested Interest Period, or (c) LIBOR or the Canadian BA Rate for the requested Interest Period does not adequately and fairly reflect the cost to such Lenders of funding such Loan, then Agent will promptly so notify the Administrative Borrower and each Applicable Lender. Thereafter, the obligation of the Applicable Lenders to make or maintain affected Interest Period Loans shall be suspended until Agent (upon instruction by the applicable Required Facility Lenders) revokes such notice. Upon receipt of such notice, the Administrative Borrower may revoke any pending request for a Borrowing of, conversion to or continuation of an Interest Period Loan or, failing that, will be deemed to have submitted a request for a Floating Rate Loan. If any Lender invokes this Section 3.6, such Lender shall use reasonable efforts to notify the Administrative Borrower and Agent when the conditions giving rise to such action no longer exists, provided, however, that such Lender shall have no liability to Borrowers or to any other Person for its failure to provide such notice.

 

(b)            Notwithstanding anything to the contrary in this Agreement or any other Loan Documents, if Agent determines (which determination shall be conclusive absent manifest error), or the Administrative Borrower or Required Lenders notify Agent (with, in the case of the Required Lenders, a copy to the Administrative Borrower) that the Administrative Borrower or Required Lenders (as applicable) have determined, that:

 

(i)            adequate and reasonable means do not exist for ascertaining LIBOR for an applicable currency for any requested Interest Period, including, without limitation, because the LIBOR Screen Rate for such applicable currency is not available or published on a current basis and such circumstances in this clause (i) are unlikely to be temporary; or

 

(ii)            the administrator of the LIBOR Screen Rate for an applicable currency or a Governmental Authority having jurisdiction over Agent has made a public statement identifying a specific date after which LIBOR for such currency or the LIBOR Screen Rate for such currency shall no longer be made available, or used for determining the interest rate of loans denominated in such applicable currency, provided that, in each case, at the time of such statement, there is no successor administrator that is satisfactory to Agent, that will continue to provide LIBOR for such currency after such specific date (such specific date, the “Scheduled Unavailability Date”); or

 

(iii)            syndicated loans currently being executed, or that include language similar to that contained in this Section 3.6, are being executed or amended (as applicable) to incorporate or adopt a new benchmark interest rate to replace LIBOR for an applicable currency,

 

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then, reasonably promptly after such determination by Agent or receipt by Agent of such notice, as applicable, Agent and the Administrative Borrower may amend this Agreement solely for the purpose of replacing LIBOR for the applicable currency in accordance with this Section 3.6 with (x) in the case of Revolver Loans denominated in Dollars, one or more SOFR-Based Rates or (y) in all cases (including in the case of loans denominated in Dollars), another alternate benchmark rate giving due consideration to any evolving or then existing convention for similar syndicated credit facilities syndicated in the United States and denominated in the applicable currency for such alternative benchmarks and, in each case, including any mathematical or other adjustments to such benchmark giving due consideration to any evolving or then existing convention for similar syndicated credit facilities syndicated in the United States and denominated in the applicable currency for such benchmarks, each of which adjustments or methods for calculating such adjustments shall be published on one or more information services as selected by Agent from time to time in its reasonable discretion and may be periodically updated (the “Adjustment;” and any such proposed rate, a “LIBOR Successor Rate”), and any such amendment shall become effective at 5:00 p.m. (Local Time) on the fifth Business Day after Agent shall have posted such proposed amendment to all Lenders and the Administrative Borrower unless, prior to such time, Lenders comprising the Required Lenders have delivered to Agent written notice that such Required Lenders (A) in the case of an amendment to replace LIBOR with respect to Revolver Loans denominated in Dollars with a rate described in clause (x), object to any Adjustment; or (B) in the case of an amendment to replace LIBOR with a rate described in clause (y), object to such amendment; provided that for the avoidance of doubt, in the case of clause (A), the Required Lenders shall not be entitled to object to any SOFR-Based Rate contained in any such amendment. Such LIBOR Successor Rate for the applicable currency shall be applied in a manner consistent with market practice; provided that, to the extent such market practice is not administratively feasible for Agent, such LIBOR Successor Rate shall be applied in a manner as otherwise reasonably determined by Agent.

 

If no LIBOR Successor Rate has been determined for the applicable currency and the circumstances under clause (i) above exist or the Scheduled Unavailability Date has occurred (as applicable), Agent will promptly so notify the Administrative Borrower and each Lender. Thereafter, (x) the obligation of the Lenders to make or maintain LIBOR Loans in each applicable currency shall be suspended (to the extent of the affected LIBOR Loans or Interest Periods), and (y) the LIBOR component for each applicable currency shall no longer be utilized in determining the applicable Base Rate. Upon receipt of such notice, (i) the Administrative Borrower may revoke any pending request for a Borrowing of, conversion to or continuation of LIBOR Loans in each such affected applicable currency (to the extent of the affected LIBOR Loans or Interest Periods) or, failing that, will be deemed to have converted each such request into a request for a Borrowing of Base Rate Loans denominated in Dollars in the Dollar Equivalent of the amount specified therein and (ii) (A) any outstanding affected LIBOR Loans denominated in Dollars will be deemed to have been converted into Base Rate Loans at the end of the applicable Interest Period and (B) any outstanding affected LIBOR Loans denominated in Euros or Pounds Sterling, at the Administrative Borrower’s election, shall either (1) be converted into a Borrowing of Base Rate Loans denominated in Dollars in the Dollar Equivalent of the amount of such outstanding LIBOR Loan at the end of the applicable Interest Period or (2) be prepaid at the end of the applicable Interest Period in full; provided that if no election is made by the Administrative Borrower by the earlier of (x) the date that is three Business Days after receipt by the Administrative Borrower of such notice and (y) the last day of the current Interest Period for the applicable LIBOR Rate Loan, the Administrative Borrower shall be deemed to have elected clause (1) above.

 

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Notwithstanding anything else herein, any definition of LIBOR Successor Rate for any currency shall provide that in no event shall such LIBOR Successor Rate be less than zero for purposes of this Agreement.

 

In connection with the implementation of a LIBOR Successor Rate, Agent will have the right to make LIBOR Successor Rate Conforming Changes from time to time in consultation with the Administrative Borrower and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such LIBOR Successor Rate Conforming Changes will become effective without any further action or consent of any other party to this Agreement; provided that, with respect to any such amendment effected, Agent shall post each such amendment implementing such LIBOR Successor Conforming Changes to the Lenders reasonably promptly after such amendment becomes effective.

 

3.7          Increased Costs; Capital Adequacy.

 

3.7.1            Change in Law. If any Change in Law shall:

 

(a)            impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender (except any reserve requirement reflected in the Canadian BA Rate or LIBOR) or Fronting Bank;

 

(b)            impose on any Lender or Fronting Bank or the London interbank market or the Canadian market any other condition, cost or expense affecting any Loan, Loan Document, Letter of Credit or participation in LC Obligations; or

 

(c)            subject any Lender, any Fronting Bank or Agent to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (c), (d) and (e) of the definition of Excluded Taxes, and (C) franchise, branch profit and net income Taxes (however denominated) imposed as a result of a present or former connection between such party and the jurisdiction imposing such Tax other than connections arising from such party having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan, Letter of Credit or Loan Document, in each case imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital thereto,

 

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and the result thereof shall be to increase the cost to such Lender of making or maintaining any Interest Period Loan (or of maintaining its obligation to make any such Loan), or to increase the cost to such Lender or Fronting Bank of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or Fronting Bank hereunder (whether of principal, interest or any other amount) then, upon request of such Lender or Fronting Bank, the Borrowers to which such Lender or Fronting Bank has a Revolver Commitment shall pay to such Lender or Fronting Bank such additional amount or amounts as will compensate such Lender or Fronting Bank for such additional costs incurred or reduction suffered, in each case, in accordance with Section 3.3. For the avoidance of doubt, this Section 3.7.1 shall not apply to the extent that any amount is (i) attributable to a Tax Deduction required by law to be made by a Loan Party, or (ii) attributable to the implementation or application of or compliance with the “International Convergence of Capital Measurement and Capital Standards, a Revised Framework” published by the Basel Committee on Banking Supervision in June 2004 in the form existing on the date of this Agreement (“Basel II”) or any other law or regulation which implements Basel II (whether such implementation, application or compliance is by a government, regulator, Secured Party or any of its Affiliates) other than in connection with Basel III.

 

3.7.2            Capital Adequacy. If any Lender or Fronting Bank determines that any Change in Law affecting such Lender or Fronting Bank or any Lending Office of such Lender or such Lender’s or Fronting Bank’s holding company, if any, regarding capital, liquidity or leverage requirements has or would have the effect of reducing the rate of return on such Lender’s, Fronting Bank’s or holding company’s capital as a consequence of this Agreement, or such Lender’s or Fronting Bank’s Revolver Commitments, Loans, Letters of Credit or participations in LC Obligations to a level below that which such Lender, Fronting Bank or holding company could have achieved but for such Change in Law (taking into consideration such Lender’s, Fronting Bank’s and holding company’s policies with respect to capital adequacy), then from time to time the Borrowers to which such Lender or Fronting Bank has a Revolver Commitment will pay to such Lender or Fronting Bank, as the case may be, such additional amount or amounts as will compensate it or its holding company for any such reduction suffered, in each case, in accordance with Section 3.3.

 

3.7.3            Compensation. Failure or delay on the part of any Lender or Fronting Bank to demand compensation pursuant to this Section 3.7 shall not constitute a waiver of its right to demand such compensation, but Borrowers shall not be required to compensate a Lender or Fronting Bank for any increased costs incurred or reductions suffered more than six months prior to the date that the Lender or Fronting Bank notifies the Administrative Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Fronting Bank’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the six month period referred to above shall be extended to include the period of retroactive effect thereof).

 

3.8          Mitigation. If any Lender gives a notice under Section 3.5 or requests compensation under Section 3.7, or if any Borrower is required to pay additional amounts or indemnity payments with respect to a Lender under Section 5.8, then such Lender shall use reasonable efforts to designate a different Lending Office or to assign its rights and obligations hereunder to another of its offices, branches or Affiliates, if, in the judgment of such Lender, such designation or assignment (a) would eliminate the need for such notice or reduce amounts payable or to be withheld in the future, as applicable; and (b) in each case, would not subject such Lender to any unreimbursed cost or expense and would not otherwise be materially disadvantageous to such Lender or unlawful. Subject to Section 2.5, the Borrowers shall pay all reasonable costs and expenses incurred by any Lender that has a Revolver Commitment in connection with any such designation or assignment.

 

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3.9          Funding Losses. If for any reason (other than default by a Lender) (a) any Borrowing of, or conversion to or continuation of, an Interest Period Loan does not occur on the date specified therefor in a Notice of Borrowing or Notice of Conversion/Continuation (whether or not withdrawn), (b) any repayment or conversion of an Interest Period Loan or any Reallocation occurs on a day other than the end of an Interest Period, (c) any Borrower fails to repay an Interest Period Loan when required hereunder, or (d) pursuant to Section 12.3.4, the Administrative Borrower requires a Lender to assign all of its rights and obligations under the Loan Documents to one or more Eligible Assignees, then the relevant Borrower shall pay to Agent its customary administrative charge and to each Lender all losses and expenses that it sustains as a consequence thereof, including any loss or expense arising from liquidation or redeployment of funds or from fees payable to terminate deposits of matching funds, but excluding loss of margin. All amounts payable by Borrowers under this Section 3.9 shall be due and payable in accordance with Section 3.3. Lenders shall not be required to purchase deposits in the London interbank market or any other applicable market to fund any Interest Period Loan, but the provisions hereof shall be deemed to apply as if each Lender had purchased such deposits to fund such Loans.

 

3.10         Maximum Interest. Notwithstanding anything to the contrary contained in any Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the maximum rate of non-usurious interest permitted by Applicable Law (“maximum rate”). If Agent or any Lender shall receive interest in an amount that exceeds the maximum rate, the excess interest shall be applied to the principal of the Obligations of the Borrower to which such excess interest relates or, if it exceeds such unpaid principal, refunded to such Borrower. In determining whether the interest contracted for, charged or received by Agent or a Lender exceeds the maximum rate, such Person may, to the extent permitted by Applicable Law, (a) characterize any payment that is not principal as an expense, fee or premium rather than interest; (b) exclude voluntary prepayments and the effects thereof; and (c) amortize, prorate, allocate and spread in equal or unequal parts the total amount of interest throughout the contemplated term of the Obligations hereunder. Without limiting the generality of the foregoing provisions of this Section 3.10, if any provision of any of the Loan Documents would obligate any Canadian Loan Party to make any payment of interest with respect to the Canadian Obligations in an amount or calculated at a rate which would be prohibited by Applicable Law or would result in the receipt of interest with respect to the Canadian Obligations at a criminal rate (as such terms are construed under the Criminal Code (Canada)), then notwithstanding such provision, such amount or rates shall be deemed to have been adjusted with retroactive effect to the maximum amount or rate of interest, as the case may be, as would not be so prohibited by law or so result in a receipt by the applicable recipient of interest with respect to the Canadian Obligations at a criminal rate, such adjustment to be effected, to the extent necessary, as follows: (i) first, by reducing the amount or rates of interest required to be paid by the Canadian Loan Parties to the applicable recipient under the Loan Documents; and (ii) thereafter, by reducing any fees, commissions, premiums and other amounts required to be paid by the Canadian Loan Parties to the applicable recipient which would constitute interest with respect to the Canadian Obligations for purposes of Section 347 of the Criminal Code (Canada). Notwithstanding the foregoing, and after giving effect to all adjustments contemplated thereby, if the applicable recipient shall have received an amount in excess of the maximum permitted by that section of the Criminal Code (Canada), then Canadian Loan Parties shall be entitled, by notice in writing to Agent, to obtain reimbursement from the applicable recipient in an amount equal to such excess, and pending such reimbursement, such amount shall be deemed to be an amount payable by the applicable recipient to the applicable Canadian Loan Party. Any amount or rate of interest with respect to the Canadian Obligations referred to in this Section 3.10 shall be determined in accordance with generally accepted actuarial practices and principles as an effective annual rate of interest over the term that any Revolver Loans to any Canadian Borrower remains outstanding on the assumption that any charges, fees or expenses that fall within the meaning of “interest” (as defined in the Criminal Code (Canada)) shall, if they relate to a specific period of time, be pro-rated over that period of time and otherwise be pro-rated over the period from the Closing Date to the date of Full Payment of the Canadian Obligations, and, in the event of a dispute, a certificate of a Fellow of the Canadian Institute of Actuaries appointed by Agent shall be conclusive for the purposes of such determination.

 

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SECTION 4.              LOAN ADMINISTRATION

 

4.1          Manner of Borrowing and Funding Loans.

 

4.1.1            Notices of Borrowing.

 

(a)            Revolver Loans. Whenever any Borrower desires funding of a Borrowing of any Loans, the Administrative Borrower shall give Agent a Notice of Borrowing. Such notice must be received by Agent no later than 10:00 a.m. (Local Time) (i) on the Business Day of the requested funding date, in the case of Floating Rate Loans (or one Business Day prior to the requested funding date in the case of any Floating Rate Loans to be Borrowed on the Closing Date) (provided that, in the case of any UK Base Rate Loans (other than UK Swingline Loans), such notice must be received by Agent no later than 10:00 a.m. (Local Time) two Business Days (or such shorter period as may be agreed by Agent and all Applicable Lenders) prior to the requested funding date) (provided that, in the case of any Canadian Prime Rate Loans (other than Canadian Swingline Loans), such notice must be received by Agent no later than 10:00 a.m. (Local Time) one Business Day (or such shorter period as may be agreed by Agent and all Applicable Lenders) prior to the requested funding date) and (ii) at least three Business Days prior to the requested funding date, in the case of Interest Period Loans (or one Business Day in the case of any Interest Period Loans to be Borrowed on the Closing Date). Notices received after 10:00 a.m. (Local Time) shall be deemed received on the next Business Day. Each Notice of Borrowing shall be irrevocable and shall specify (A) the applicable Borrower for such Borrowing, (B) the amount of the Borrowing, (C) the requested funding date (which must be a Business Day), (D) whether the Borrowing is to be made as a Base Rate Loan, LIBOR Loan, Canadian Prime Rate Loan or Canadian BA Rate Loan, (E) in the case of Interest Period Loans, the duration of the applicable Interest Period (which shall be deemed to be one month if not specified), (F) whether the Borrowing is to be a Multicurrency Facility Loan or a US Facility Loan and (G) the currency in which such Loan is to be denominated.

 

(b)            Swingline Loans. Whenever any Borrower desires funding of a Borrowing of Swingline Loans, the Administrative Borrower shall give Agent a Notice of Borrowing. Such notice must be received by Agent no later than 10:00 a.m. (Local Time) on the Business Day of the requested funding date. Notices received after 10:00 a.m. (Local Time) shall be deemed received on the next Business Day. Each Notice of Borrowing shall be irrevocable and shall specify (A) the applicable Borrower for such Borrowing, (B) the amount of the Borrowing, (C) the requested funding date (which must be a Business Day), (D) whether the Borrowing is to be made as a Base Rate Loan or Canadian Prime Rate Loan, (E) whether such Swingline Loan is to be a Canadian Swingline Loan, a UK Swingline Loan or a US Swingline Loan and (F) the currency in which such Loan is to be denominated.

 

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4.1.2            Fundings by Lenders; Settlement.

 

(a)            Each Applicable Lender shall timely honor its Revolver Commitment by funding its Pro Rata share of each Borrowing of Revolver Loans under the applicable Facility that is properly requested hereunder; provided, however, that no Lender shall be required to honor its Revolver Commitment by funding its Pro Rata share of any Borrowing that would (i) in the case of a Multicurrency Facility Loan, cause the Total Multicurrency Facility Exposure to exceed the Multicurrency Facility Borrowing Base or the Multicurrency Facility Commitment, (ii) in the case of a US Facility Loan, cause the Total US Facility Exposure to exceed the US Borrowing Base (provided that for purposes of determining whether this clause (ii) has been satisfied, the US Borrowing Base shall be deemed to be reduced by the amount by which the Total Multicurrency Facility Exposure exceeds the sum of the Canadian Borrowing Base and the UK Borrowing Base) or the US Facility Commitment or (iii) in the case of a Multicurrency Facility Loan borrowed by a US Borrower, cause the outstanding amount of all Multicurrency Facility Loans made to all US Borrowers to exceed the US Borrowing Base (provided that for purposes of determining whether this clause (iii) has been satisfied, the US Borrowing Base shall be deemed to be reduced by the amount of the Total US Facility Exposure). Agent shall endeavor to provide prompt written notice to the Applicable Lenders of each Notice of Borrowing (or deemed request for a Borrowing). Subject to its receipt of such amounts from the Applicable Lenders, Agent shall disburse the proceeds of the applicable Revolver Loans as directed by the Administrative Borrower. Unless Agent shall have received (in sufficient time to act) written notice from an Applicable Lender that it does not intend to fund its Pro Rata share of a Borrowing, Agent may assume that such Applicable Lender has deposited or promptly will deposit its share with Agent, and Agent may disburse a corresponding amount to the applicable Borrower or Borrowers. If an Applicable Lender’s share of any Borrowing is not received by Agent, then the applicable Borrower agrees to repay to Agent on demand the amount of such share, together with interest thereon from the date disbursed until repaid, at the rate applicable to such Borrowing. Notwithstanding the foregoing, Agent may, in its discretion, fund any request for a Borrowing of Revolver Loans as Swingline Loans.

 

(b)            To facilitate administration of the Revolver Loans, the Lenders, the Swingline Lenders and Agent agree (which agreement is solely among them, and not for the benefit of or enforceable by any Borrower or any other Loan Party) that settlement among them with respect to Swingline Loans and other Revolver Loans may take place on a date determined from time to time by Agent, which, in the case of Canadian Swingline Loans and US Swingline Loans, shall occur at least once every five (5) Business Days. On each settlement date, settlement shall be made with each such Lender in accordance with the Settlement Report delivered by Agent to the Lenders. Each Lender’s obligation to make settlements with Agent is absolute and unconditional, without offset, counterclaim or other defense, and whether or not the Revolver Commitments have terminated, an Overadvance exists or the conditions in Section 6 are satisfied. Between settlement dates contemplated under the first sentence of this clause (b), Agent may in its discretion (but is not obligated to) apply payments on Revolver Loans to Swingline Loans, regardless of any designation by the Administrative Borrower or any Borrower or any provision herein to the contrary. If, due to an Insolvency Proceeding with respect to any Borrower or any other Loan Party or otherwise, any Swingline Loan may not be settled among the Lenders, then each Applicable Lender shall be deemed to have purchased from the applicable Swingline Lender a Pro Rata participation in each unpaid Swingline Loan and shall transfer the amount of such participation to the applicable Swingline Lender, in immediately available funds, within one Business Day after Agent’s request therefor.

 

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4.1.3            Notices. Each Borrower authorizes Agent and Lenders to extend Loans, convert or continue Revolver Loans, effect selections of interest rates, and transfer funds to or on behalf of applicable Borrowers based on telephonic or e-mailed instructions by the Administrative Borrower to Agent. The Administrative Borrower shall confirm each such request by reasonably prompt delivery to Agent of a Notice of Borrowing or Notice of Conversion/Continuation, if applicable, but if it differs in any material respect from the action taken by Agent or Lenders, the records of Agent and Lenders shall govern. Neither Agent nor any Lender shall have any liability for any loss suffered by a Borrower as a result of Agent or any Lender acting upon its understanding of telephonic or e-mailed instructions from a person believed in good faith by Agent or any Lender to be a person authorized to give such instructions on the Administrative Borrower’s behalf.

 

4.1.4            Lending Offices. Each Lender may, at its option, make any Revolver Loan, and participation in Letters of Credit, available to any Borrower by causing any lending office, foreign or domestic branch or Affiliate of such Lender to make such Loan; provided, that any exercise of such option shall not affect the obligation of such Borrower to repay such Loan in accordance with the terms of this Agreement. Each such lending office, branch or Affiliate of any Lender shall, for all purposes of this Agreement and the other Loan Documents, be treated in the same manner as the respective Lender (and shall be entitled to all indemnities and similar provisions (subject to all conditions and restrictions with respect to such provisions) in respect of its acting as such).

 

4.2          Defaulting Lender.

 

4.2.1            Reallocation of Pro Rata Share; Amendments. For purposes of determining Lenders’ obligations to fund or participate in Revolver Loans or Letters of Credit, Agent may exclude the Revolver Commitments and Loans of any Defaulting Lender from the calculation of Pro Rata shares; provided, that (i) no non-Defaulting Lender shall be re-allocated any Defaulting Lender’s commitment to fund Revolver Loans under Section 2.1.1 hereof if a Default or Event of Default is then continuing and (ii) notwithstanding such exclusion, no non-Defaulting Lender shall be required to fund or participate in any Loans or Letter of Credit if such funding or participation shall cause the Total Revolver Exposure of any non-Defaulting Lender to exceed such non-Defaulting Lender’s Revolver Commitments. A Defaulting Lender shall have no right to vote on any amendment, waiver or other modification of a Loan Document, except as provided in Section 13.1.1(c).

 

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4.2.2            Payments; Fees. Agent may, in its discretion, receive and retain any amounts payable to a Defaulting Lender under the Loan Documents, and a Defaulting Lender shall be deemed to have assigned to Agent such amounts until all Obligations owing to Agent, non-Defaulting Lenders and other Secured Parties have been paid in full. Agent may apply such amounts to the Defaulting Lender’s defaulted obligations, use the funds to Cash Collateralize such Lender’s LC Obligations, or readvance the amounts to Borrowers hereunder. A Lender shall not be entitled to receive any fees accruing hereunder during the period in which it is a Defaulting Lender, and the unfunded portion of its Revolver Commitment shall be disregarded for purposes of calculating the unused line fee under Section 3.2.1. If any LC Obligations owing to a Defaulting Lender are reallocated to other Lenders, fees attributable to such LC Obligations under Section 3.2.2, 3.2.3 or 3.2.4 shall be paid to such Lenders. Notwithstanding anything to the contrary in Section 4.2.1 and this Section 4.2.2, the LC Obligations owing to a Defaulting Lender may be reallocated to the other Lenders only to the extent that such reallocation does not cause the Total Revolver Exposure of any non-Defaulting Lender to exceed such non-Defaulting Lender’s Revolver Commitments. Agent shall be paid all fees attributable to LC Obligations that are not reallocated.

 

4.2.3            Cure. Administrative Borrower, Agent and each Fronting Bank may agree in writing that a Revolver Lender is no longer a Defaulting Lender. At such time, Pro Rata shares shall be reallocated without exclusion of such Revolver Lender’s Revolver Commitment and Revolver Loans, and all outstanding Revolver Loans, LC Obligations and other exposures under the Revolver Commitments shall be reallocated among Revolver Lenders and settled by Agent (with appropriate payments by the reinstated Revolver Lender) in accordance with the readjusted Pro Rata shares. Unless expressly agreed by Borrowers, Agent and each Fronting Bank, or as expressly provided herein with respect to Bail-In Actions and related matters, no reallocation of Commitments and Revolver Loans to non-Defaulting Lenders or reinstatement of a Defaulting Lender shall constitute a waiver or release of claims against such Lender. The failure of any Lender to fund a Loan, to make a payment in respect of LC Obligations or otherwise to perform its obligations hereunder shall not relieve any other Lender of its obligations, and no Lender shall be responsible for default by another Lender.

 

4.3            Number and Amount of Interest Period Loans; Determination of Rate. For ease of administration, all Interest Period Loans within a Facility of the same Type having the same length and beginning date of their Interest Periods and the same currency shall be aggregated together, and such Loans shall be allocated among the Applicable Lenders on a Pro Rata basis. With respect to either Facility, no more than ten (10) Borrowings of Interest Period Loans may be outstanding at any time, and each Borrowing of Interest Period Loans when made, continued or converted shall be in a minimum amount of $1,000,000, Cdn$1,000,000, €1,000,000, or £1,000,000, as applicable, or an increment of $100,000, Cdn$100,000, €100,000 or £100,000 in excess thereof, as applicable. Upon determining Canadian BA Rate or LIBOR for any Interest Period, Agent shall promptly notify the Administrative Borrower by telephone or electronically and, if requested by the Administrative Borrower, shall confirm any telephonic notice in writing.

 

4.4          Administrative Borrower.

 

4.4.1            Administrative Borrower. Each Loan Party hereby designates WS International as its representative and agent (in such capacity, the “Administrative Borrower”) for all purposes under the Loan Documents, including requests for Loans and Letters of Credit, designation of interest rates, delivery or receipt of communications, preparation and delivery of any Borrowing Base and financial reports, receipt and payment of Obligations, requests for waivers, amendments or other accommodations, actions under the Loan Documents (including in respect of compliance with covenants), and all other dealings with Agent, any Fronting Bank or any Lender. The Administrative Borrower hereby accepts such appointment.

 

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4.4.2            Administrative Borrower Generally. Agent, each Fronting Bank and each Lender shall be entitled to rely upon, and shall be fully protected in relying upon, any notice or communication (including any Notice of Borrowing) delivered by the Administrative Borrower on behalf of any Loan Party. Agent, any Fronting Bank and any Lender may give any notice or communication with a Loan Party hereunder to the Administrative Borrower on behalf of such Loan Party. Each of Agent, any Fronting Bank and any Lender shall have the right, in its discretion, to deal exclusively with the Administrative Borrower for any or all purposes under the Loan Documents. Each Loan Party agrees that any notice, election, communication, representation, agreement or undertaking made on its behalf by the Administrative Borrower shall be binding upon and enforceable against it.

 

4.5           Effect of Termination. On the effective date of termination of the Revolver Commitments, all Obligations shall be immediately due and payable. All undertakings of Loan Parties contained in the Loan Documents shall survive, and Agent shall retain their Liens on the Collateral and all of their rights and remedies under the Loan Documents until Full Payment of the Secured Obligations. Sections 2.2, 2.3, 2.4, 3.4, 3.6, 3.7, 3.9, 5.4, 5.8, 5.9, 11, 13.2 and this Section 4.5, and the obligation of each Loan Party and Lenders with respect to each indemnity given by it in any Loan Document, shall survive Full Payment of the Secured Obligations.

 

SECTION 5.           PAYMENTS

 

5.1            General Payment Provisions. All payments of Obligations shall be made without offset, counterclaim or defense of any kind, and in immediately available funds, not later than 1:00 p.m. (Local Time) on the due date. Any payment after such time shall be deemed made on the next Business Day. If any payment under the Loan Documents shall be stated to be due on a day other than a Business Day, the due date shall be extended to the next Business Day and such extension of time shall be included in any computation of interest and fees. Any payment of an Interest Period Loan prior to the end of its Interest Period shall be accompanied by all amounts due under Section 3.9. Any prepayment of Loans by a Borrower shall be applied first to costs and expenses of Agent (including any Extraordinary Expenses) relating to such Borrower, second to Floating Rate Loans (and Agent may, in its discretion, apply such prepayment to Swingline Loans before other Revolver Loans) of such Borrower, and then to Interest Period Loans of such Borrower; provided, however, that as long as no Default or Event of Default exists, prepayments of Interest Period Loans may (other than in the case of Full Payment of the Obligations), at the option of the applicable Borrower, be held by Agent as Cash Collateral and applied to such Loans at the end of their Interest Periods (in which case no compensation under Section 3.9 hereof shall be payable with respect to such prepayment, but interest shall continue to accrue on the outstanding principal of such Loans until payment thereon). All payments with respect to any Obligation shall be made in the currency of the underlying Obligation. Any payment made contrary to the requirements of the preceding sentence shall be subject to the terms of Section 5.11.

 

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5.2         Repayment of Obligations. (i) All Multicurrency Facility Obligations and shall be immediately due and payable in full on the Multicurrency Facility Commitment Termination Date and (ii) all US Facility Obligations shall be immediately due and payable in full on the US Facility Commitment Termination Date, in each case, unless payment of such Obligations is sooner required hereunder. Revolver Loans may be prepaid from time to time, without penalty or premium, subject to, in the case of Interest Period Loans, the payment of costs set forth in Section 3.9 (except to the extent provided in Section 5.1). Notwithstanding anything herein to the contrary, (x) if a Multicurrency Overadvance exists, Borrowers under the Multicurrency Facility shall, subject to Section 2.5, on the sooner of Agent’s demand or the first Business Day after the Administrative Borrower has knowledge thereof, repay the outstanding Multicurrency Facility Loans in an amount sufficient to reduce the principal balance of the related Overadvance Loan to zero; provided, that if the aggregate principal balance of all Multicurrency Facility Loans owed by such Borrowers and all outstanding Multicurrency LC Obligations exceeds the Multicurrency Facility Borrowing Base solely as a result of a fluctuation in Exchange Rates between the currencies in which such Multicurrency Facility Loans were funded or Letters of Credit were issued and Dollars, no repayment due to such Overadvance shall be required under this Section 5.2 until and unless such excess amount is equal to or greater than 105% of the Multicurrency Facility Borrowing Base and (y) if a US Overadvance exists, US Borrowers shall on the sooner of Agent’s demand or the first Business Day after the Administrative Borrower has knowledge thereof, repay the outstanding US Facility Loans in an amount sufficient to reduce the principal balance of the related Overadvance Loan to zero. If at any time the sum of the Dollar Equivalent of (x) the aggregate principal balance of all Multicurrency Facility Loans owed by the Borrowers plus (y) the Multicurrency LC Obligations exceeds the Multicurrency Facility Commitments (whether as a result of a fluctuation of Exchange Rates between the currencies in which such Loans were funded or Letters of Credit were issued and Dollars or otherwise), the Borrowers under the Multicurrency Facility shall, on the sooner of Agent’s demand or the first Business Day after the Administrative Borrower has knowledge thereof, repay its outstanding Multicurrency Facility Loans (or Cash Collateralize its Canadian Letters of Credit or UK Letters of Credit, as applicable) in an amount sufficient to reduce such excess to zero. If at any time the sum of (x) the aggregate principal balance of all US Facility Loans plus (y) the US LC Obligations exceeds the US Facility Commitments, the US Borrowers shall, on the sooner of Agent’s demand or the first Business Day after the Administrative Borrower has knowledge thereof, repay its outstanding US Facility Loans (or Cash Collateralize its US Letters of Credit) in an amount sufficient to reduce such excess to zero. If at any time the aggregate principal balance of all Multicurrency Facility Loans owed by the US Borrowers exceeds the US Borrowing Base (provided that for this purpose the US Borrowing Base shall be deemed to be reduced by the amount of the Total US Facility Exposure), the US Borrowers shall, on the sooner of Agent’s demand or the first Business Day after the Administrative Borrower has knowledge thereof, repay its outstanding Multicurrency Facility Loans in an amount sufficient to reduce such excess to zero.

 

5.3         Payment of Other Obligations. Obligations shall be paid by Borrowers as provided in the Loan Documents or, if no payment date is specified, within thirty (30) days of demand by Agent therefor.

 

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5.4         Marshaling; Payments Set Aside. None of Agent, Fronting Banks or Lenders shall be under any obligation to marshal any assets in favor of any Loan Party or against any Obligations. If any payment by or on behalf of any Borrower or Borrowers is made to Agent, any Fronting Bank or any Lender, or Agent, any Fronting Bank or any Lender exercises a right of setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by Agent, such Fronting Bank or such Lender in its discretion) to be repaid to a Creditor Representative or any other Person, then to the extent of such recovery, the Obligation originally intended to be satisfied, and all Liens, rights and remedies relating thereto, shall be revived and continued in full force and effect as if such payment had not been made or such setoff had not occurred.

 

5.5         Post-Default Allocation of Payments.

 

5.5.1       Allocation. Notwithstanding anything herein to the contrary, during the continuance of an Event of Default, monies to be applied to the Secured Obligations, whether arising from payments by or on behalf of any Loan Party, realization on Collateral, setoff or otherwise, shall, in each case, be allocated as follows:

 

(a)          with respect to monies, payments, Property or Collateral of or from any US Loan Parties:

 

(i)           first, to all costs and expenses, including Extraordinary Expenses, owing to Agent, to the extent owing by any US Loan Party;

 

(ii)          second, to all amounts owing to US Swingline Lender on US Swingline Loans;

 

(iii)         third, to all amounts owing to any US Fronting Bank on US LC Obligations;

 

(iv)         fourth, to all US Obligations constituting fees owing by the US Loan Parties (exclusive of any Canadian Obligations and UK Obligations which are guaranteed by the US Loan Parties);

 

(v)          fifth, to all US Obligations constituting interest owing by the US Loan Parties (exclusive of any Canadian Obligations and UK Obligations which are guaranteed by the US Loan Parties);

 

(vi)         sixth, to Cash Collateralization of US LC Obligations;

 

(vii)        seventh, to the principal amount of all Loans and all Qualified Secured Bank Product Obligations of any US Loan Party (exclusive of any Qualified Secured Bank Product Obligations which are guaranteed by the US Loan Parties) to the extent a Bank Product Reserve has been established with respect thereto up to and including the amount most recently specified to Agent pursuant to the terms hereof;

 

(viii)       eighth, to all other US Obligations (exclusive of any Canadian Secured Obligations and UK Secured Obligations which are guaranteed by the US Loan Parties); and

 

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(ix)          ninth, to be applied to clause (b) below; and

 

(b)          with respect to monies, payments, Property or Collateral of or from any Non-US Loan Parties, together with any allocations pursuant to subclause (ix) of Section 5.5.1(a):

 

(i)           first, to all costs and expenses, including Extraordinary Expenses, owing to Agent, to the extent owing by any Non-US Loan Party;

 

(ii)          second, to all amounts owing to Canadian Swingline Lender on Canadian Swingline Loans to such Canadian Swingline Lender and UK Swingline Lender on UK Swingline Loans to such UK Swingline Lender;

 

(iii)         third, to all amounts owing to any Canadian Fronting Bank on Canadian LC Obligations of any Canadian Loan Party and any UK Fronting Bank on UK LC Obligations of any UK Loan Party, in each case constituting fees;

 

(iv)         fourth, to all Canadian Obligations and UK Obligations constituting fees owing by the Non-US Loan Parties;

 

(v)          fifth, to all Canadian Obligations and UK Obligations constituting interest owing by the Non-US Loan Parties;

 

(vi)         sixth, to Cash Collateralization of Canadian LC Obligations and UK LC Obligations;

 

(vii)        seventh, to the principal amount of all Loans and all Qualified Secured Bank Product Obligations of any Non-US Loan Party (exclusive of any Qualified Secured Bank Product Obligations which are guaranteed by the Non-US Loan Parties) to the extent a Bank Product Reserve has been established with respect thereto up to and including the amount most recently specified to Agent pursuant to the terms hereof; and

 

(viii)       eighth, to all other Canadian Secured Obligations and UK Secured Obligations of the Non-US Loan Parties.

 

Amounts shall be applied to each category of Secured Obligations set forth within subsections (a) and (b), as applicable, until Full Payment thereof and then to the next category. If amounts are insufficient to satisfy a category, they shall be applied on a pro rata basis among the Secured Obligations in the category. Amounts distributed with respect to any Secured Bank Product Obligations or Qualified Secured Bank Product Obligations shall be the lesser of the maximum Secured Bank Product Obligations or Qualified Secured Bank Product Obligations, as the case may be, last reported to Agent or the actual Secured Bank Product Obligations or Qualified Secured Bank Product Obligations, as the case may be, as calculated by the methodology reported to Agent for determining the amount due. Agent shall have no obligation to calculate the amount to be distributed with respect to any Secured Bank Product Obligations or Qualified Secured Bank Product Obligations, and may request a reasonably detailed calculation of such amount from the applicable Secured Party. If a Secured Party fails to deliver such calculation within five days following request by Agent, Agent may assume the amount to be the maximum amount of the applicable Secured Bank Product Obligations or Qualified Secured Bank Product Obligations, as the case may be, last reported to Agent. The allocations set forth in this Section 5.5.1 are solely to determine the rights and priorities of Agent and Secured Parties as among themselves, and any allocation within subsection (a) and (b) of proceeds of the realization of Collateral may be changed by agreement among them without the consent of any Loan Party. This Section 5.5.1 is not for the benefit of or enforceable by any Loan Party. Notwithstanding the preceding two sentences and anything else to the contrary set forth in any of the Loan Documents, all payments by or on behalf of any Loan Party shall be applied first to the Secured Obligations of any member of the Loan Party Group of which such Loan Party is a member then due until paid in full and then to all other Secured Obligations (subject to the limitations contained herein including in Section 2.5) until paid in full. Notwithstanding anything contained in this Section 5.5.1, no amount received from any Guarantor shall be applied to any Excluded Swap Obligation of such Guarantor.

 

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5.5.2      Erroneous Application. Agent shall not be liable for any application of amounts made by it in good faith and, if any such application is subsequently determined to have been made in error, the sole recourse of any Lender or other Person to which such amount should have been made shall be to recover the amount from the Person that actually received it (and, if such amount was received by any Lender, such Lender hereby agrees to return it).

 

5.6         Application of Payments. The ledger balance (x) in the Dominion Accounts of the US Loan Parties as of the end of a Business Day shall be applied to the US Obligations and, after that, at the discretion of Agent to any other Secured Obligations, (y) in the Dominion Accounts of the Canadian Loan Parties as of the end of a Business Day shall be applied to the Canadian Obligations and, after that, at the discretion of Agent, but subject to Section 2.5 to any other Secured Obligations and (z) in the Dominion Accounts of the UK Loan Parties as of the end of a Business Day shall be applied to the UK Obligations and, after that, at the discretion of Agent, but subject to Section 2.5, to any other Secured Obligations, in each case, at the beginning of the next Business Day during the existence of any Cash Dominion Event. If, as a result of such application, a credit balance exists, the balance shall not accrue interest in favor of Borrowers and shall be made available to Borrowers of the applicable Loan Party Group as long as no Event of Default exists. During the continuance of an Event of Default, each Borrower irrevocably waives the right to direct the application of any payments or Collateral proceeds, and agrees that Agent shall have the continuing, exclusive right to apply and reapply same against the Obligations, in such manner as Agent deems advisable.

 

5.7         Loan Account; Account Stated.

 

5.7.1      Loan Account. Agent shall maintain in accordance with its usual and customary practices an account or accounts (“Loan Account”) evidencing the Obligations of Borrowers resulting from each Loan made to such Borrowers or issuance of a Letter of Credit for the account of Borrowers from time to time; it being understood that with respect to US Borrowers, such Loan Accounts shall indicate the amount of such Obligations that constitute US Facility Obligations and the amount of such Obligations that constitute Multicurrency Facility Obligations. Any failure of Agent to record anything in the Loan Account, or any error in doing so, shall not limit or otherwise affect the obligation of any Borrower to pay any amount owing hereunder. Agent may maintain a single Loan Account in the name of each Borrower from the same jurisdiction (in the name of any such Borrower), and each Borrower confirms that, subject to Section 2.5, such arrangement shall have no effect on the joint and several character of its liability for the Secured Obligations.

 

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5.7.2      Entries Binding. Entries made in the Loan Account shall constitute presumptive evidence of the information contained therein. If any information contained in the Loan Account is provided to or inspected by any Person, then such information shall be conclusive and binding on such Person for all purposes absent manifest error, except to the extent such Person notifies Agent in writing within 45 days after receipt or inspection that specific information is subject to dispute.

 

5.8         Taxes. For purposes of this Section 5.8, the term “Lender” includes any Fronting Bank.

 

5.8.1      Payments Free of Taxes. All payments by or on behalf of any Loan Party of Obligations shall be free and clear of and without deduction, remittance or withholding for any Taxes, unless required by Applicable Law. If Applicable Law requires any Loan Party or Agent to withhold, remit or deduct any Taxes (as determined in good faith by the applicable Loan Party or Agent), the withholding, remittance or deduction shall be based on Applicable Law and the information provided pursuant to this Section 5.8 and Section 5.9, and the applicable Loan Party or Agent shall be entitled to make such deduction or withholding and shall timely pay the amount withheld, remitted or deducted to the relevant Governmental Authority. If the withholding or deduction is made on account of Indemnified Taxes or Other Taxes then (subject to Section 5.8.2 in respect of Tax imposed by the United Kingdom) the sum payable by Loan Parties shall be increased so that the applicable Credit Parties receive an amount equal to the sum they would have received if no such withholding, remittance or deduction (including deductions applicable to additional sums payable under this Section 5.8) had been made. Without limiting the foregoing, Loan Parties shall timely pay and remit all Other Taxes to the relevant Governmental Authorities in accordance with Applicable Law or, at the option of Agent, timely reimburse it for the payment of any Other Taxes.

 

5.8.2      Exclusion to the Tax Gross-Up for UK Borrowers. A payment shall not be increased under Section 5.8.1 above in respect of any advance under any Loan Document to a Borrower incorporated in the UK on account of a UK Tax Deduction, if on the date on which the payment falls due:

 

(a)           the payment could have been made to the relevant Lender without a UK Tax Deduction if the Lender had been a UK Qualifying Lender, but on that date that Lender is not or has ceased to be a UK Qualifying Lender other than as a result of any change after the date it became a Lender under this Agreement in (or in the interpretation, administration, or application of) any law or Treaty or any published practice or published concession of any relevant taxing authority; or

 

(b)          the relevant Lender is a UK Qualifying Lender solely by virtue of clause (a)(ii) of the definition of UK Qualifying Lender, and:

 

(i)            an officer of H.M. Revenue & Customs has given (and not revoked) a direction (a “Direction”) under section 931 of the ITA which relates to the payment and that Lender has received from the Loan Party making the payment or from the Administrative Borrower a certified copy of that Direction; and

 

(ii)           the payment could have been made to the Lender without any Tax Deduction if that Direction had not been made; or

 

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(c)           the relevant Lender is a UK Qualifying Lender solely by virtue of clause (a)(ii) of the definition of UK Qualifying Lender and:

 

(i)            the relevant Lender has not given a Tax Confirmation to Agent; and

 

(ii)           the payment could have been made to the Lender without any Tax Deduction if the Lender had given a Tax Confirmation to the Agent, on the basis that the Tax Confirmation would have enabled the Loan Party making the payment to have formed a reasonable belief that the payment was an "excepted payment" for the purpose of section 930 of the ITA; or

 

(d)           the relevant Lender is a UK Treaty Lender and the Loan Party making the payment is able to demonstrate that the payment could have been made to the Lender without the UK Tax Deduction had that Lender complied with its obligations under Sections 5.9.3(a), 5.9.3(b) or 5.9.3(c) (as applicable) below.

 

5.8.3      Payment. Loan Parties shall indemnify, hold harmless and reimburse each Credit Party for the full amount of any Indemnified Taxes or Other Taxes (including Indemnified Taxes and Other Taxes attributable to amounts payable under this Section 5.8) paid by such Credit Party with respect to any Obligations, whether or not such Taxes were properly asserted by the relevant Governmental Authority, and including all penalties, interest and reasonable expenses relating thereto. A certificate setting forth in reasonable detail the amount and basis for calculation of any such payment or liability delivered to the Administrative Borrower by a Credit Party (with a copy to Agent) shall be conclusive, absent manifest error, and all amounts payable by Loan Parties under this Section 5.8.3 shall be due in accordance with Section 5.3. As soon as reasonably practicable after any payment of Indemnified Taxes or Other Taxes by a Loan Party, the Administrative Borrower shall deliver to Agent a receipt from the Governmental Authority or other evidence of payment reasonably satisfactory to Agent. This Section 5.8.3 shall not apply to a UK Tax Deduction which would have been compensated for under Section 5.8.1 or Section 5.8.5, but was not so compensated solely because one of the exclusions in Section 5.8.2 or Section 5.8.5 applied.

 

5.8.4      Treatment of Certain Refunds. If any Credit Party determines, in its sole discretion in good faith, that it is entitled to claim a refund from a Governmental Authority in respect of any Indemnified Tax or Other Taxes as to which it has been indemnified by any Loan Party or with respect to which any Loan Party has paid additional amounts pursuant to this Section 5.8 (including by the payment of additional amounts pursuant to Section 5.8.1), such Credit Party shall promptly notify such Loan Party of the availability of such refund claim and, if such Credit Party determines in good faith that making a claim for refund will not place such party in a less favorable net after-Tax position than such party would have been in if the indemnification payments or additional amounts giving rise to such refund had never been paid, shall, within 60 days after receipt of a request by such Loan Party, make a claim to such Governmental Authority for such refund. If a Credit Party determines, in its sole discretion, that it has received a refund of any Indemnified Tax or Other Taxes as to which it has been indemnified by any Loan Party or with respect to which any Loan Party has paid additional amounts pursuant to this Section 5.8 (including by the payment of additional amounts pursuant to Section 5.8.1), it shall pay to such Loan Party an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by Loan Parties under this Section 5.8 with respect to the Indemnified Tax or Other Taxes giving rise to such refund), net of all out-of-pocket expenses of such Credit Party, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided, that Loan Parties agree in writing to repay the amount paid over to Loan Parties (plus interest attributable to the period during which the Loan Parties held such funds) to such Credit Party in the event that such Credit Party is required to repay such refund to such Governmental Authority. This paragraph shall not be construed to require any Credit Party to make available its tax returns (or any other information relating to its Taxes) to any Loan Party or any other Person.

 

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5.8.5        VAT

 

(a)          All amounts set out or expressed in a Loan Document to be payable by any party to any Credit Party which (in whole or in part) constitute the consideration for a supply or supplies for VAT purposes shall be deemed to be exclusive of any VAT which is chargeable on such supply or supplies, and accordingly, subject to clause (b) below, if VAT is or becomes chargeable on any supply made by any Credit Party to any party under a Loan Document and such Credit Party is required to account to the relevant tax authority for the VAT, that party shall pay to the Credit Party (in addition to and at the same time as paying any other consideration for such supply) an amount equal to the amount of such VAT (and such Credit Party shall promptly provide an appropriate VAT invoice to such party).

 

(b)          If VAT is or becomes chargeable on any supply made by any Lender (the “Supplier”) to any other Lender (the “Recipient”) under a Loan Document, and any party other than the Recipient (the “Relevant Party”) is required by the terms of any Loan Document to pay an amount equal to the consideration for that supply to the Supplier (rather than being required to reimburse or indemnify the Recipient in respect of that consideration),

 

(i)            where the Supplier is the person required to account to the relevant tax authority for the VAT, the Relevant Party must also pay to the Supplier (at the same time as paying that amount) an additional amount equal to the amount of VAT. The Recipient must (where this subsection (b)(i) applies) promptly pay to the Relevant Party an amount equal to any credit or repayment the Recipient receives from the relevant tax authority which the Recipient reasonably determines relates to the VAT chargeable on that supply; and

 

(ii)           where the Recipient is the person required to account to the relevant tax authority for the VAT, the Relevant Party must promptly, following demand from the Recipient, pay to the Recipient an amount equal to the VAT chargeable on that supply but only to the extent that the Recipient reasonably determines that it is not entitled to credit or repayment from the relevant tax authority in respect of that VAT.

 

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(c)           Where a Loan Document requires any party to reimburse or indemnify a Lender for any cost or expense in connection with such Loan