AMENDMENT NO. 2 TO CREDIT AGREEMENT


[Execution]

AMENDMENT NO. 2 TO CREDIT AGREEMENT
AMENDMENT NO. 2 TO CREDIT AGREEMENT, dated as of April 11, 2024 (this “Amendment No. 2”), is by and among Bank of America, N.A., a national banking association, in its capacity as Agent (in such capacity, together with its successors and assigns, “Agent”) pursuant to the Credit Agreement (as defined below), the financial institutions from time to time parties thereto (such financial institutions, together with their respective successors and assigns, each individually, a “Lender” and collectively, the “Lenders”), Herc Holdings Inc., a Delaware corporation (the “Company”), each the Subsidiaries of the Company party hereto as U.S. Subsidiary Borrowers (the “U.S. Subsidiary Borrowers” and, together with the Company, the “U.S. Borrowers”), Xxxxxxxx Equipment Limited, a corporation amalgamated under the laws of the Province of Ontario (the “Canadian Borrower”), and the Subsidiaries of the Company party hereto as Guarantors (“Guarantors”).
W I T N E S S E T H :
    WHEREAS, Agent, Xxxxxxx and certain other parties have entered into a senior secured revolving credit facility pursuant to which Agent and Lenders have made, and may make, loans and advances and provide other financial accommodations to Borrowers as set forth in the Credit Agreement, dated as of July 31, 2019, by and among U.S. Borrowers, Canadian Borrower and the Guarantors, as amended by Amendment No. 1 to Credit Agreement, dated as of July 5, 2022 (as so amended and as the same now exists or may hereafter be amended, amended and restated, modified, supplemented, extended, renewed, restated or replaced prior to the effectiveness of this Amendment No. 2, the “Existing Credit Agreement” and the Existing Credit Agreement as amended by this Amendment No. 2 to Credit Agreement, the “Amended Credit Agreement”), and the other Loan Documents (as defined in the Credit Agreement);

    WHEREAS, the Obligors have requested, in accordance with Section 12.1 of the Existing Credit Agreement, to amend the Existing Credit Agreement;
WHEREAS, Agent, the Company, the other Obligors and each of the Lenders are willing to agree to such amendments subject to the terms and conditions set forth herein; and
WHEREAS, by this Amendment No. 2, Agent, the Lenders party hereto and the Obligors intend to evidence such amendments;
NOW, THEREFORE, in consideration of the foregoing and the mutual agreements and covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1.Interpretation. For purposes of this Amendment No. 2, all terms used herein which are not otherwise defined herein, including but not limited to, those terms used in the recitals hereto, shall have the respective meanings assigned thereto in the Amended Credit Agreement.
2. Amendments to Existing Credit Agreement.
2.1. Amended Credit Agreement. As of the Amendment No. 2 Effective Date, the Existing Credit Agreement (excluding the schedules and exhibits thereto, which shall remain in full force and effect, except as specifically amended and restated pursuant to Section 2.2 of this Amendment No. 2) is hereby amended as set forth in Exhibit A hereto to delete the bold, stricken text (indicated textually in the
7742524.4


same manner as the following example: stricken text) and adding the bold, double-underlined text (indicated textually in the same manner as the following example: double-underlined text), as set forth in the Credit Agreement as attached as Exhibit A hereto.
2.2. Notice of Borrowing. As of the Amendment No. 2 Effective Date, the Existing Credit Agreement is hereby amended to amend and restate Exhibit B thereto in its entirety in the form of Exhibit B to this Amendment No. 2. All other Exhibits to the Existing Credit Agreement, as in effect immediately prior to the date of this Amendment No. 2, shall continue to constitute Exhibits to the Amended Credit Agreement.
3. Interest Rate Transition Arrangements. Each Borrowing of Revolving Loans that is outstanding under the Existing Credit Agreement immediately prior to the effectiveness of this Amendment No. 2 and that consists of BA Equivalent Loans (under and as defined in the Existing Credit Agreement), if any (each, an “Existing BA Equivalent Borrowing” and collectively, the “Existing BA Equivalent Borrowings”) shall continue to remain outstanding under the Existing Credit Agreement as a Borrowing of BA Equivalent Loans (under and as defined in the Existing Credit Agreement) for the period from and after the Amendment No. 2 Effective Date (as hereinafter defined) until the earlier of (a) the date the applicable Borrower elects to convert such Existing BA Equivalent Borrowing to a Borrowing of Daily Simple XXXXX Loans (or on or after the Term XXXXX Activation Date, Term XXXXX Loans) pursuant to Section 3.2 of the Amended Credit Agreement as if the relevant BA Equivalent Loans were a Type of Loans available under the Amended Credit Agreement, (b) the date the applicable Borrower elects or is otherwise required to repay the Loans included in such Existing BA Equivalent Borrowing in accordance with the Amended Credit Agreement, and (c) the last day of the applicable “Interest Period” (as defined in the Existing Credit Agreement) with respect to such Existing BA Equivalent Borrowing in effect on the date of this Amendment No. 2. If, prior to the end of an “Interest Period” (as defined in the Existing Credit Agreement) applicable to any Existing BA Equivalent Borrowing, the applicable Borrower shall have failed to deliver a Notice of Continuation/Conversion in accordance with Section 3.2 of the Amended Credit Agreement requesting the conversion of the Loans included in such Existing BA Equivalent Borrowing to Loans of another Type available under the Amended Credit Agreement, then such Loans shall be automatically converted to Daily Simple XXXXX Loans. All provisions of the Existing Credit Agreement applicable to BA Equivalent Loans (as defined in the Existing Credit Agreement) shall remain in effect with respect to the Existing BA Equivalent Borrowings until such time as no such Existing BA Equivalent Borrowings remain outstanding.
4. Representations, Warranties and Covenants. Each Obligor represents and warrants with and to Secured Parties as follows, which representations and warranties shall survive the execution and delivery hereof:
4.1. As of the Amendment No. 2 Effective Date and after giving effect to this Amendment No. 2, no Default or Event of Default exists or has occurred and is continuing.
4.2. Each Obligor party hereto (i) has the power and authority to execute, deliver and perform this Amendment No. 2 and (ii) has taken all necessary corporate, limited liability or partnership, as applicable, action (including obtaining approval of its stockholders if necessary) to authorize its execution, delivery and performance of this Amendment No. 2.
4.3.    This Amendment No. 2 has been duly authorized, executed and delivered by all necessary corporate or limited liability company action, as applicable, on the part of each Obligor and is in full force and effect as of the date hereof, as the case may be, and constitute legal, valid and binding obligations of each such Obligor, enforceable against it in accordance with their respective terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, winding up, moratorium
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and other similar laws relating to or affecting creditors’ rights generally and general equitable principles (whether considered in a proceeding in equity or at law).
4.4.    Each Obligor’s execution, delivery, and performance of this Amendment No. 2 do not and will not (a) conflict with, or constitute a violation or breach of, the terms of (i) any contract, mortgage, lease, agreement, indenture, or instrument to which such Obligor or any of its Subsidiaries is a party or which is binding upon it, (ii) any Requirement of Law applicable to such Obligor or any of its Subsidiaries, or (ii) any Charter Documents of such Obligor or any of its Subsidiaries or (b) result in the imposition of any Lien (other than the Liens created by the Loan Documents) upon the property of such Obligor or any of its Subsidiaries by reason of any of the foregoing, except in the case of clause (a)(i) or (ii) above, as would not reasonably be expected to have a Material Adverse Effect.
4.5.    All of the representations and warranties of each Obligor set forth in the Credit Agreement, the other Loan Documents and herein are true and correct in all material respects (or, in the case of any representations and warranties qualified by materiality or Material Adverse Effect, in all respects) on and as of the Amendment No. 2 Effective Date after giving effect to the effectiveness of this Amendment No. 2 and the transactions contemplated hereby with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects (or, in the case of any representations and warranties qualified by materiality or Material Adverse Effect, in all respects) as of such earlier date).
5.    Conditions Precedent. The amendments contained in this Amendment No. 2 shall only be effective upon the satisfaction of each of the following conditions (the date of such effectiveness, the “Amendment No. 2 Effective Date”):
5.1.    Agent shall have received executed counterparts of this Amendment No. 2, duly executed and delivered by the Obligors, Agent and each of the Lenders.
5.2.    Agent shall have received the Florida Borrower Affidavit As To Out-of-State Execution and Delivery as executed and delivered by a Responsible Officer of the Company.
5.3.    The representations and warranties set forth in Section 4 of this Amendment No. 2 are true and correct in all material respects (without duplication of any materiality qualifier contained therein), except to the extent that such representations or warranties expressly relate to an earlier date (in which event such representations or warranties are true and correct in all material respects (or, in the case of any representations and warranties qualified by materiality or Material Adverse Effect, in all respects) as of such earlier date).
5.4.    No Default or Event of Default has occurred and is continuing as of the Amendment No. 2 Effective Date.
6.    Effect of Amendment No. 2; Reaffirmation.
6.1.    Effect of Amendment No. 2.
(a) Except as expressly set forth in this Amendment No. 2, this Amendment No. 2 shall not by implication or otherwise limit, impair, constitute a waiver of, or otherwise affect the rights and remedies of the Lenders, Agent, the Borrowers or any other Obligor under the Existing Credit Agreement or any other Loan Document. In addition, except as expressly set forth in this Amendment No. 2, this Amendment No. 2 shall not alter, modify, amend or in any way affect any of the terms, conditions,
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obligations, covenants or agreements contained in the Existing Credit Agreement or any other Loan Document, all of which are, except as expressly set forth in this Amendment No. 2, ratified and affirmed in all respects and shall continue in full force and effect. Nothing in this Amendment No. 2 shall be deemed to entitle any Borrower or other Obligor to any future consent to, or waiver, amendment, modification or other change of, any of the terms, conditions, obligations, covenants or agreements contained in the Amended Credit Agreement or any other Loan Document in similar or different circumstances.
(b) From and after the Amendment No. 2 Effective Date, each reference in the Amended Credit Agreement to “this Agreement”, “hereunder”, “hereof”, “herein”, or words of like import, and each reference to the “Credit Agreement” in any other Loan Document shall be deemed a reference to the Existing Credit Agreement as amended hereby. Each of the financial institutions listed on the signature pages hereto as a “Lender” acknowledges and agrees that, effective as of the Amendment No. 2 Effective Date, it shall become a “Lender” for all purposes in connection with this Amendment, the Amended Credit Agreement and the other Loan Documents. Upon the Amendment No. 2 Effective Date, any reference to the Credit Agreement shall mean the Amended Credit Agreement. Upon the Amendment No. 2 Effective Date, this Amendment No. 2 shall constitute a “Loan Document”.
6.2.    Acknowledgement of Obligations and Security Interests.
(a) Each Obligor, in their respective capacities as Borrowers or Guarantors, absolutely and unconditionally acknowledges and reaffirms its obligations under the Loan Document to which it is a party and reaffirms that such obligations are and shall continue to be secured by the security interests, pledges, assignments and liens granted by such Obligor and all of the terms, conditions provisions, agreements, obligations, duties, covenants and representations of such Obligor under such documents and agreements are hereby ratified and affirmed in all respects by such Xxxxxxx, and agrees that its obligations thereunder are and shall continue to be, in full force and effect and is hereby ratified and confirmed in all respects. Although each Obligor has been informed of the matters set forth herein and has acknowledged and agreed to the same, it understands that Agent and Lenders have no obligation to inform it of such matters in the future or to seek its acknowledgement or agreement to future amendments, supplements or waivers, and nothing contained herein shall create such duty. This reaffirmation shall be binding upon each Obligor and its successors and assigns and inure to the benefit of Agent and the Lenders and their respective successors and assigns. The failure of any one Obligor to execute and deliver this Amendment No. 2 shall not affect the agreement of any other Obligor that has executed and delivered the Amendment No. 2.
(b) Without limiting the foregoing, to the extent such Obligor granted liens on or security interests in any of its property pursuant to any such Loan Document as security for the Obligations under or with respect to the Loan Documents, such Obligor ratifies and reaffirms as of the date hereof such grant of security interests and liens and confirms and agrees that such security interests and liens hereafter secure all of the Obligations as amended hereby and hereby re-grants a security interest and liens in all of its right, title and interest in the Collateral, as defined in, and on the terms set forth in, the applicable Security Documents, to secure all of the Obligations as amended hereby and, further, ratifies and reaffirms as of the date hereof that the security constituted by the Security Documents continue to secure the payment of liabilities and obligations of the Obligors under the Loan Documents.
6.3.    No Novation. The parties hereto expressly acknowledge that it is not their intention that this Amendment No. 2 or any of the other Loan Documents executed or delivered pursuant hereto constitute a novation of any of the obligations, covenants or agreements contained in the Existing Credit Agreement or any other Loan Document, but rather constitute a modification thereof or supplement thereto pursuant to the terms contained herein. The Existing Credit Agreement and the Loan Documents,
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in each case as amended, modified, restated and/or supplemented hereby, shall be deemed to be continuing agreements among the parties thereto, and all documents, instruments, and agreements delivered, as well as all Liens created, pursuant to or in connection with the Existing Credit Agreement and the other Loan Documents shall remain in full force and effect, each in accordance with its terms (as amended, modified, restated and/or supplemented by this Amendment No. 2 or otherwise).
7.    Governing Law. The validity, interpretation and enforcement of this Amendment No. 2 and any dispute arising out of the relationship between the parties hereto whether in contract, tort, equity or otherwise, shall be governed by the internal laws of the State of New York but excluding any principles of conflicts of law or other rule of law that would cause the application of the law of any jurisdiction other than the laws of the State of New York.
8.    Jury Trial Waiver. OBLIGORS, AGENT AND LENDERS PARTY HERETO EACH HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER THIS AMENDMENT NO. 2 OR ANY OF THE OTHER LOAN DOCUMENTS OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO IN RESPECT OF THIS AMENDMENT NO. 2 OR ANY OF THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS RELATED HERETO OR THERETO IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT, EQUITY OR OTHERWISE. OBLIGORS, AGENT AND XXXXXXX PARTY HERETO EACH HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT OBLIGORS, AGENT, OR ANY LENDER PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OF A COPY OF THIS AMENDMENT NO. 2 WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
9.    Binding Effect. This Amendment No. 2 shall be binding upon and inure to the benefit of each of the parties hereto and their respective successors and assigns.
10.    Waiver, Modification, Etc. No provision or term of this Amendment No. 2 may be modified, altered, waived, discharged or terminated orally or by course of conduct, but only by an instrument in writing executed by the party against whom such modification, alteration, waiver, discharge or termination is sought to be enforced.
11.    Further Assurances. Obligors shall execute and deliver such additional documents and take such additional action as may be reasonably requested by Agent to effectuate the provisions and purposes of this Amendment No. 2.
12.    Entire Agreement. This Amendment No. 2 and the Amended Credit Agreement represent the entire agreement and understanding concerning the subject matter hereof among the parties hereto, and supersede all other prior agreements, understandings, negotiations and discussions, representations, warranties, commitments, proposals, offers and contracts concerning the subject matter hereof, whether oral or written.
13.    Headings. The headings listed herein are for convenience only and do not constitute matters to be construed in interpreting this Amendment No. 2.
14.    Counterparts. This Amendment No. 2 and any notices or other documents delivered under this Amendment No. 2 may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. Delivery by
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facsimile or other electronic means of an executed counterpart of a signature page to this Amendment No. 2 and any notices or other documents as set forth herein shall be effective as delivery of an original executed counterpart of this Amendment No. 2 or such notice or other document. This Amendment No. 2 and any notices or other documents delivered under this Amendment No. 2, may be executed by means of (a) an electronic signature that complies with the federal Electronic Signatures in Global and National Commerce Act, state enactments of the Uniform Electronic Transactions Act, or any other relevant and applicable electronic signatures law; (b) an original manual signature; or (c) a faxed, scanned, or photocopied manual signature. Each electronic signature or faxed, scanned, or photocopied manual signature shall for all purposes have the same validity, legal effect, and admissibility in evidence as an original manual signature. Agent reserves the right, in its sole discretion, to accept, deny, or condition acceptance of any electronic signature on this Amendment No. 2 or on any notice or other document delivered to Agent under this Amendment No. 2.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 2 to be duly executed and delivered by their authorized officers as of the day and year first above written.
HERC HOLDINGS INC., as the Company and a U.S. Borrower


By: /s/ Xxxx Xxxxxxxx
Name: Xxxx Xxxxxxxx
Title: SVP & CFO

OTHER BORROWERS

HERC RENTALS INC., as a U.S. Borrower


By: /s/ Xxxx Xxxxxxxx
Name: Xxxx Xxxxxxxx
Title: SVP & CFO


XXXXXXXX EQUIPMENT LIMITED, as a Canadian Borrower


By: /s/ Xxxxxxxx Xxxxxxxxxxx
Name: Xxxxxxxx Xxxxxxxxxxx
Title: VP Finance & Treasurer

[Signature Page to Amendment No. 2 to Credit Agreement]

U.S. GUARANTORS

HERC BUILD, LLC
HERC INTERMEDIATE HOLDINGS, LLC
HERC INVESTORS, LLC (F/K/A HERTZ INVESTORS, INC.)
HERC MANAGEMENT SERVICES LLC
HERC PURCHASING LLC
HERC RENTALS 1, LLC
HERC RENTALS 2, LLC
HERC RENTALS EMPLOYEE SERVICES LLC
HERC RENTALS HOLDINGS, LLC
HERC SALES FORCE A LLC
HERC SALES FORCE B LLC
HERC SALES HOLDINGS LLC


By: /s/ Xxxxxxxx Xxxxxxxxxxx
Name: Xxxxxxxx Xxxxxxxxxxx
Title: VP Finance & Treasurer


CINELEASE, INC.
HERC ENTERTAINMENT SERVICES LLC


By: /s/ Xxxxxxxx Xxxxxxxxxxx
Name: Xxxxxxxx Xxxxxxxxxxx
Title: VP Finance & Treasurer


CANADIAN GUARANTOR

HERC RENTALS TRUCKING (ALBERTA) LIMITED

By: /s/ Xxxxxxxx Xxxxxxxxxxx
Name: Xxxxxxxx Xxxxxxxxxxx
Title: VP Finance & Treasurer

[Signature Page to Amendment No. 2 to Credit Agreement]

BANK OF AMERICA, N.A., as the Agent, a Lender, Multicurrency U.S. Swingline Lender and Letter of Credit Issuer


By: /s/ Xxxxxxx X. X’Xxxxx
Name: Xxxxxxx X. X’Xxxxx
Title: Senior Vice President


BANK OF AMERICA, N.A. (acting through its Canada branch), as the Agent (as applicable), a Lender, Multicurrency Canadian Swingline Lender and Letter of Credit Issuer (as applicable)


By: /s/ Xxxxxx Xxxxxxxxxx
Name: Xxxxxx Xxxxxxxxxx
Title: Vice President

[Signature Page to Amendment No. 2 to Credit Agreement]

CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK, as a Lender


By: /s/ Xxxx Xxxx
Name: Xxxx Xxxx
Title: Director


By: /s/ Xxxxxx Xxxxxxx
Name: Xxxxxx Xxxxxxx
Title: Managing Director



[Signature Page to Amendment No. 2 to Credit Agreement]

MUFG Bank, Ltd., as a Lender


By: /s/ Xxxxxx Xxxxxxxxx
Name: Xxxxxx Xxxxxxxxx
Title: Director



[Signature Page to Amendment No. 2 to Credit Agreement]

XXXXX FARGO BANK, NATIONAL ASSOCIATION, as a Lender


By: /s/ Xxx X. Xxxxxxxxx
Name: Xxx X. Xxxxxxxxx
Title: Authorized Signatory



[Signature Page to Amendment No. 2 to Credit Agreement]

XXXXX FARGO CAPITAL FINANCE CORPORATION CANADA, as a Lender


By: /s/ Xxxxxxx Xxxxxxx
Name: Xxxxxxx Xxxxxxx
Title:



[Signature Page to Amendment No. 2 to Credit Agreement]

BANK OF MONTREAL, as a Lender and Letter of Credit Issuer


By: /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Managing Director



[Signature Page to Amendment No. 2 to Credit Agreement]

CAPITAL ONE, NATIONAL ASSOCIATION, as a Lender


By: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: Duly Authorized Signatory



[Signature Page to Amendment No. 2 to Credit Agreement]

JPMORGAN CHASE BANK, N.A., as a Lender


By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Executive Director




[Signature Page to Amendment No. 2 to Credit Agreement]

ING Capital LLC, as a Lender


By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: Managing Director


By: /s/ Xxxxxxx Xxx
Name: Xxxxxxx Xxx
Title: Director


[Signature Page to Amendment No. 2 to Credit Agreement]

TD Bank, N.A., as a Lender


By: /s/ Xxxxxxx Xxxx
Name: Xxxxxxx Xxxx
Title: Vice President



[Signature Page to Amendment No. 2 to Credit Agreement]

FLAGSTAR SPECIALTY FINANCE
COMPANY LLC, (fka NYCB Specialty Finance Company, LLC), as a Lender


By: /s/ Xxxxxxx Xxxxxxxxx
Name: Xxxxxxx Xxxxxxxxx
Title: Senior Vice President



[Signature Page to Amendment No. 2 to Credit Agreement]

PNC Bank N.A., as a Lender


By: /s/ Xxxx Xxxxxxxx
Name: Xxxx Xxxxxxxx
Title: Senior Vice President




[Signature Page to Amendment No. 2 to Credit Agreement]

SUMITOMO MITSUI BANKING CORPORATION, as a Lender


By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Managing Director



[Signature Page to Amendment No. 2 to Credit Agreement]

Xxxxxxx Xxxxx Bank USA, as a Lender


By: /s/ Xxxxxxxxxx Xxxxxxx
Name: Xxxxxxxxxx Xxxxxxx
Title: Authorized Signatory



[Signature Page to Amendment No. 2 to Credit Agreement]

Regions Bank, as a Lender


By: /s/ Xxxxxxxxx X. Xxxxxx
Name: Xxxxxxxxx X. Xxxxxx
Title: Managing Director



[Signature Page to Amendment No. 2 to Credit Agreement]

Truist Bank, as a Lender


By: /s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: Director



[Signature Page to Amendment No. 2 to Credit Agreement]

Canadian Imperial Bank of Commerce, as a Lender


By: /s/ Xxxxxxx Xxxxx
Name: Xxxxxxx Xxxxx
Title: Authorized Signatory


By: /s/ Xxxxx Xxxxxxxx
Name: Xxxxx Xxxxxxxx
Title: Authorized Signatory



[Signature Page to Amendment No. 2 to Credit Agreement]

KEYBANK NATIONAL ASSOCIATION, as
a Lender


By: /s/ Xxxxxxxxxxx X. Xxxxxxxx
Name: Xxxxxxxxxxx X. Xxxxxxxx
Title: Vice President



[Signature Page to Amendment No. 2 to Credit Agreement]

CITY NATIONAL BANK, as a Lender


By: /s/ Xxxxxxxxxx Xxxxxx
Name: Xxxxxxxxxx Xxxxxx
Title: Senior Vice President
[Signature Page to Amendment No. 2 to Credit Agreement]


Exhibit A to Amendment No. 2 to Credit Agreement

Amended Credit Agreement

[See attached]




[Execution]

EXHIBIT A TO AMENDMENT NO. 2 TO CREDIT AGREEMENT    
CREDIT AGREEMENT
Dated as of July 31, 2019
among
THE FINANCIAL INSTITUTIONS NAMED HEREIN,
as the Lenders
and
BANK OF AMERICA, N.A.,
as Agent, U.S. Swingline Lender, Multicurrency U.S. Swingline Lender and Letter of Credit Issuer
BANK OF AMERICA, N.A. (acting through its Canada branch),
as Multicurrency Canadian Swingline Lender
and
HERC HOLDINGS INC.,
as the Company and a U.S. Borrower
CERTAIN SUBSIDIARIES OF HERC HOLDINGS INC.,
as the Guarantors
XXXXXXXX EQUIPMENT LIMITED,
as the Initial Canadian Borrower
and
THE OTHER BORROWERS PARTY HERETO
and
BANK OF AMERICA, N.A.,
CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK
MUFG UNION BANK, X.X.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Joint Lead Arrangers, Joint Book Runners and Co-Syndication Agents
and
BANK OF MONTREAL
CAPITAL ONE, NATIONAL ASSOCIATION
JPMORGAN CHASE BANK, N.A.
ING CAPITAL LLC
TD BANK, N.A.
NYCB SPECIALITY FINANCE COMPANY, LLC
PNC BANK, NATIONAL ASSOCIATION
SUMITOMO MITSUI BANKING CORPORATION,
as Joint Book Runners and Co-Documentation Agents
7742520.9

TABLE OF CONTENTS
Page
ARTICLE I

DEFINITIONS

1.1. Defined Terms.............................................................................................................................. 2
1.2. Accounting Terms.................................................................................................................. 8283
1.3. Interpretive Provisions........................................................................................................... 8384
1.4. Classification of Loans and Borrowings................................................................................ 8586
1.5. Effectuation of Transactions.................................................................................................. 8587
1.6. Currency................................................................................................................................. 8587
1.7. Additional Alternative Currencies......................................................................................... 8688
1.8. Pro Forma Calculations.......................................................................................................... 8789
1.9. Additional Borrowers............................................................................................................. 8890
1.10. No Novation; Acknowledgement and Adjustment of Loans, Payment of Accrued Interest
and Fees.................................................................................................................................. 9192
1.11. Canadian Guarantors, Excess Availability and Related Matters.......................................... 9294
1.12. LLC Divisions........................................................................................................................ 9394

ARTICLE II

LOANS AND LETTERS OF CREDIT

2.1. Revolving Loans.................................................................................................................... 9394
2.2. Revolving Loan Administration............................................................................................. 9495
2.3. Swingline Loans..................................................................................................................... 9798
2.4. Letters of Credit................................................................................................................... 98100
2.5. Incremental Facility........................................................................................................... 104105
2.6. Extension Amendments..................................................................................................... 107108
2.7. Refinancing Amendments.................................................................................................. 110112
2.8. [Intentionally Omitted]....................................................................................................... 116117
2.9. Reserves............................................................................................................................. 116117
2.10. Sustainability Adjustments................................................................................................ 116118

ARTICLE III

INTEREST AND FEES

3.1. Interest................................................................................................................................ 117119
3.2. Continuation and Conversion Elections............................................................................. 119120
3.3. Maximum Interest Rate...................................................................................................... 121123
3.4. Closing Fees....................................................................................................................... 121123
3.5. Unused Line Fee................................................................................................................ 121123
3.6. Letter of Credit Fees........................................................................................................... 122123

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ARTICLE IV
PAYMENTS AND PREPAYMENTS

4.1. Payments and Prepayments................................................................................................ 122124
4.2. Out-of-Formula Condition................................................................................................. 123125
4.3. Termination or Reductions of Facilities............................................................................. 123125
4.4. Term SOFR Loan and BA EquivalentTerm XXXXX Loans Prepayments....................... 125126
4.5. Payments by the Borrowers............................................................................................... 125126
4.6. Apportionment, Application and Reversal of Payments.................................................... 125127
4.7. Indemnity for Returned Payments..................................................................................... 127129
4.8. [Intentionally Omitted]....................................................................................................... 127129
4.9. Agent’s and Lenders’ Books and Records; Monthly Statements....................................... 127129
4.10. Borrowers’ Agent............................................................................................................... 128130
4.11. [Intentionally Omitted]...................................................................................................... 128130
4.12. Excess Resulting from Exchange Rate Change................................................................. 128130
4.13. [Intentionally omitted.]...................................................................................................... 129131
4.14. Joint and Several Liability................................................................................................. 129131

ARTICLE V

TAXES, YIELD PROTECTION AND ILLEGALITY

5.1. Taxes 130132
5.2. Illegality............................................................................................................................. 133135
5.3. Increased Costs and Reduction of Return.......................................................................... 134136
5.4. Funding Losses................................................................................................................... 136137
5.5. Inability to Determine Applicable Interest Rate................................................................ 136138
5.6. Certificates of Agent.......................................................................................................... 137139
5.7. Successor Rate................................................................................................................... 138140
5.8. Replacement of Term XXXXX or Term XXXXX Successor BA Rate.............................. 139140
5.9. Survival.............................................................................................................................. 140142
5.10. Assignment of Commitments Under Certain Circumstances............................................ 140142

ARTICLE VI

GENERAL WARRANTIES AND REPRESENTATIONS

6.1. Authorization, Xxxxxxxx, and Enforceability of this Agreement and the Loan Documents.141143
6.2. Validity and Priority of Security Interest........................................................................... 141143
6.3. Organization and Qualification.......................................................................................... 142144
6.4. Subsidiaries........................................................................................................................ 142144
6.5. Financial Statements and Borrowing Base Certificate....................................................... 142144
6.6. Capitalization..................................................................................................................... 142144
6.7. Solvency............................................................................................................................. 143144
6.8. Intellectual Property........................................................................................................... 143144
6.9. Litigation............................................................................................................................ 143145
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6.10. Labor Disputes................................................................................................................... 143145
6.11. Environmental Laws.......................................................................................................... 143145
6.12. No Violation of Law.......................................................................................................... 144146
6.13. No Default.......................................................................................................................... 144146
6.14. ERISA Compliance............................................................................................................ 144146
6.15. Taxes 145147
6.16. Regulated Entities.............................................................................................................. 145147
6.17. Use of Proceeds; Margin Regulations................................................................................ 145147
6.18. No Material Adverse Effect............................................................................................... 146148
6.19. No Material Misstatements................................................................................................ 146148
6.20. Government Authorization................................................................................................ 146148
6.21. Sanctions............................................................................................................................ 146148
6.22. EU Bail-In.......................................................................................................................... 147148
6.23. Beneficial Ownership Certification................................................................................... 147149
6.24. Deposit Accounts; Credit Card Arrangements................................................................... 147149

ARTICLE VII

AFFIRMATIVE COVENANTS

7.1. Books and Records............................................................................................................. 147149
7.2. Financial Information......................................................................................................... 147149
7.3. Certificates; Other Information.......................................................................................... 149151
7.4. Collateral Reporting........................................................................................................... 149151
7.5. Filing of Tax Returns; Payment of Taxes.......................................................................... 150152
7.6. Legal Existence and Good Standing.................................................................................. 150152
7.7. Compliance with Law; Maintenance of License................................................................ 150152
7.8. Maintenance of Property.................................................................................................... 151153
7.9. Inspection; Field Examinations; Appraisals....................................................................... 151153
7.10. Insurance............................................................................................................................ 152154
7.11. Insurance and Condemnation Proceeds............................................................................. 153155
7.12. Use of Proceeds.................................................................................................................. 153155
7.13. Environmental Laws.......................................................................................................... 153155
7.14. Compliance with ERISA.................................................................................................... 154155
7.15. Further Assurances............................................................................................................. 154156
7.16. Additional Obligors........................................................................................................... 154156
7.17. Bank and Securities Accounts; Cash Dominion................................................................ 158160
7.18. Sanctions............................................................................................................................ 160162
7.19. Anti-Money Laundering Laws........................................................................................... 160162
7.20. Securitization Transactions................................................................................................ 160162

ARTICLE VIII

NEGATIVE COVENANTS

8.1. Indebtedness....................................................................................................................... 161163
8.2. Liens 166168
iii

8.3. [Intentionally omitted]....................................................................................................... 170172
8.4. Distributions; Restricted Investments................................................................................ 171172
8.5. Mergers, Consolidations or Sales....................................................................................... 171172
8.6. Prepayments of Indebtedness............................................................................................. 172174
8.7. Transactions with Affiliates............................................................................................... 173175
8.8. Restrictive Agreements...................................................................................................... 175177
8.9. Fixed Charge Coverage Ratio............................................................................................ 177179

ARTICLE IX

CONDITIONS OF LENDING

9.1. Conditions Precedent to Effectiveness of Agreement and Making of Loans on the Closing
Date178179
9.2. Conditions Precedent to Each Loan................................................................................... 180182

ARTICLE X

DEFAULT; REMEDIES

10.1. Events of Default............................................................................................................... 181183
10.2. Remedies............................................................................................................................ 184186

ARTICLE XI

TERM AND TERMINATION

11.1. Term and Termination....................................................................................................... 185186

ARTICLE XII

AMENDMENTS; WAIVERS; PARTICIPATIONS; ASSIGNMENTS; SUCCESSORS

12.1. Amendments and Waivers................................................................................................. 185187
12.2. Assignments; Participations............................................................................................... 188190

ARTICLE XIII

THE AGENT

13.1. Appointment and Authorization......................................................................................... 190192
13.2. Delegation of Duties.......................................................................................................... 191193
13.3. Liability of Agent............................................................................................................... 192193
13.4. Reliance by Agent.............................................................................................................. 192194
13.5. Notice of Default................................................................................................................ 192194
13.6. Credit Decision.................................................................................................................. 192194
13.7. Indemnification.................................................................................................................. 193195
13.8. Agent in Individual Capacity............................................................................................. 193195
iv


13.9. Successor Agent................................................................................................................. 194195
13.10. Withholding Tax................................................................................................................. 194196
13.11. Collateral Matters............................................................................................................... 194196
13.12. Restrictions on Actions by Xxxxxxx; Sharing of Payments................................................ 196198
13.13. Agency for Perfection......................................................................................................... 197199
13.14. Payments by Agent to Lenders........................................................................................... 197199
13.15. Settlement; Defaulting Lenders.......................................................................................... 198200
13.16. Letters of Credit; Intra-Lender Issues................................................................................. 203205
13.17. Concerning the Collateral and the Related Loan Documents............................................. 205207
13.18. Field Audit and Examination Reports; Disclaimer by Xxxxxxx.......................................... 206208
13.19. Relation Among Lenders.................................................................................................... 207209
13.20. Arrangers; Agent................................................................................................................ 207209
13.21. The Register........................................................................................................................ 207209
13.22. Québec Collateral............................................................................................................... 208210
13.23. Certain ERISA Matters....................................................................................................... 209211
13.24. Recovery of Erroneous Payments....................................................................................... 210212

ARTICLE XIV

MISCELLANEOUS

14.1. No Waivers; Cumulative Remedies................................................................................... 211212
14.2. Severability........................................................................................................................ 211213
14.3. Governing Law; Choice of Forum; Service of Process..................................................... 211213
14.4. WAIVER OF JURY TRIAL.............................................................................................. 212214
14.5. Survival of Representations and Warranties...................................................................... 212214
14.6. Other Security and Guarantees.......................................................................................... 212214
14.7. Fees and Expenses............................................................................................................. 213214
14.8. Notices............................................................................................................................... 213215
14.9. Binding Effect.................................................................................................................... 214216
14.10. Indemnity of the Agent and the Lenders............................................................................ 215216
14.11. Limitation of Liability........................................................................................................ 215217
14.12. Final Agreement................................................................................................................. 216218
14.13. Counterparts; Facsimile Signatures; Electronic Execution................................................ 216218
14.14. Captions.............................................................................................................................. 216218
14.15. Right of Setoff.................................................................................................................... 217218
14.16. Confidentiality.................................................................................................................... 217219
14.17. Conflicts with Other Loan Documents............................................................................... 218220
14.18. Collateral Matters............................................................................................................... 218220
14.19. No Fiduciary Relationship.................................................................................................. 218220
14.20. Judgment Currency............................................................................................................. 219220
14.21. Incremental Indebtedness; Extended Commitments; Extended Loans; Refinancing Commitments and Refinancing Loans; Additional First Lien Debt............................................... 219221
14.22. Lenders............................................................................................................................... 220221
14.23. USA PATRIOT Act............................................................................................................ 220222
14.24. [Reserved]........................................................................................................................... 220222
14.25. Waiver of Notices............................................................................................................... 220222
v

14.26. Acknowledgement and Consent to Bail-In of Affected Financial Institutions................... 220222
14.27. Canadian Anti-Money Laundering Legislation.................................................................. 221223
14.28. Acknowledgement Regarding Any Supported QFCs......................................................... 221223

vi


EXHIBITS AND SCHEDULES
EXHIBIT AFORM OF BORROWING BASE CERTIFICATE
EXHIBIT BFORM OF NOTICE OF BORROWING
EXHIBIT CFORM OF NOTICE OF CONTINUATION/CONVERSION
EXHIBIT DFORM OF COMPLIANCE CERTIFICATE
EXHIBIT EFORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT
EXHIBIT F[INTENTIONALLY OMITTED]
EXHIBIT GFORM OF SOLVENCY CERTIFICATE
EXHIBIT H[INTENTIONALLY OMITTED]
EXHIBIT IFORM OF LENDER JOINDER AGREEMENT
EXHIBIT JFORMS OF U.S. TAX COMPLIANCE CERTIFICATES
EXHIBIT KFORM OF JUNIOR LIEN INTERCREDITOR AGREEMENT
EXHIBIT L[INTENTIONALLY OMITTED]
SCHEDULE 1.1LENDERS’ COMMITMENTS
SCHEDULE 1.2U.S. SUBSIDIARY BORROWERS
SCHEDULE 1.2AGUARANTORS
SCHEDULE 1.3IMMATERIAL SUBSIDIARIES
SCHEDULE 1.4UNRESTRICTED SUBSIDIARIES
SCHEDULE 6.4SUBSIDIARIES
SCHEDULE 6.6CAPITALIZATION
SCHEDULE 6.9LITIGATION
SCHEDULE 6.11ENVIRONMENTAL LAW
SCHEDULE 6.14ERISA AND PENSION PLAN COMPLIANCE
SCHEDULE 6.15TAXES
SCHEDULE 6.24(a)DEPOSIT ACCOUNTS
SCHEDULE 6.24(b)CREDIT CARD ARRANGEMENTS
SCHEDULE 8.1DEBT
SCHEDULE 8.2LIENS
SCHEDULE 8.4INVESTMENTS
vii

CREDIT AGREEMENT
This Credit Agreement, dated as of July 31, 2019, among the financial institutions from time to time parties hereto (such financial institutions, together with their respective successors and assigns, are referred to hereinafter each individually as a “Lender” and collectively as the “Lenders”), Bank of America, N.A., with an office at One Bryant Park, New York, New York 10036, as Agent, U.S. Swingline Lender and Letter of Credit Issuer, Bank of America, N.A., acting through its Canada branch, with an office at 000 Xxx Xxxxxx, Xxxxxxx Xxxxxxx, X0X0X0, as Multicurrency Canadian Swingline Lender, Bank of America, N.A., JPMorgan Chase Bank, N.A., Capital One, National Association, Xxxxx Fargo Bank, National Association, Bank of Montreal, Credit Agricole Corporate and Investment Bank, Xxxxxxx Xxxxx Bank USA, ING Capital LLC, MUFG Union Bank, N.A., and TD Bank, N.A., as co-syndication agents (each, in its capacity as a co-syndication agent, a “Co-Syndication Agent”), Herc Holdings Inc., a Delaware corporation, with offices at 00000 Xxxxxxxxx Xxxxxx Xxxx., Xxxxxx Xxxxxxx, XX 00000 (the “Company”), each Subsidiary that is listed on Schedule 1.2 (the “U.S. Subsidiary Borrowers” and, together with the Company and each Additional Borrower organized under the Laws of the United States, any state thereof or the District of Columbia made a party hereto from time to time in accordance with Section 1.9(a), the “U.S. Borrowers”), Xxxxxxxx Equipment Limited, a corporation amalgamated under the laws of the Province of Ontario (the “Initial Canadian Borrower” and the Initial Canadian Borrower, together with each Additional Borrower organized under the Laws of Canada or any territory or province thereof made a party hereto from time to time in accordance with Section 1.9(a), the “Canadian Borrowers”), the Guarantors (as defined below) party hereto, and Bank of America, N.A., Credit Agricole Corporate and Investment Bank, MUFG Union Bank, N.A., Xxxxx Fargo Bank, National Association, as Joint Lead Arrangers and Joint Book Runners (each, in its capacity as a joint lead arranger, a “Joint Lead Arranger”), Bank of Montreal, Capital One, National Association, JPMorgan Chase Bank, N.A. ING Capital LLC, TD Bank, N.A., NYCB Specialty Finance Company, LLC, PNC Bank, National Association, Sumitomo Mitsui Banking Corporation, as Joint Book Runners (each, in its capacity as a joint book runner, a “Joint Book Runner”).
W I T N E S E T H:
WHEREAS, the Borrowers have requested that the Lenders make available a revolving credit facility, portions of which may be used from time to time by the U.S. Borrowers, and portions of which may be used from time to time by the Canadian Borrowers, in each case on the terms and conditions specified herein;
WHEREAS, all Obligations incurred pursuant to this Agreement shall be secured by, among other things, the Security Documents and the other Loan Documents, in each case as and to the extent set forth herein and therein;
WHEREAS, each of the U.S. Guarantors and the Canadian Guarantors has agreed to guarantee the Obligations of each of the Borrowers, on the terms and conditions specified in the U.S. GCA and the Canadian GCA (each as defined herein); and
WHEREAS, on the Agreement Date, the proceeds of the Loans will be used by the Borrowers to refinance all outstanding obligations under that certain Credit Agreement, dated as of June 30,


2016 among certain of the U.S. Borrowers, the Initial Canadian Borrower, certain of the Guarantors, Citibank, N.A., certain of the Lenders party hereto and certain other parties thereto (as amended, restated or otherwise modified prior to the date hereof, the “Existing Citibank Loan Agreement”), to pay fees and expenses related to the Transactions, to finance ongoing working capital needs and for general corporate purposes;
NOW, THEREFORE, in consideration of the mutual conditions and agreements set forth in this Agreement, and for good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1.Defined Terms. As used in this Agreement, the following terms shall have the meanings specified below:
“Acceleration” has the meaning specified in Section 10.1(d).
“Acceptable Intercreditor Agreement” means any intercreditor agreement containing customary terms and conditions for comparable transactions that is in form and substance reasonably acceptable to the Agent; provided that (i) any intercreditor agreement between the Agent and one or more representatives of Persons (other than the Company or any of its Subsidiaries) benefitting from a Lien on any Collateral of a U.S. Obligor or a Canadian Obligor that is intended to be junior to the Agent’s Lien thereon having terms that are substantially consistent with, or not materially less favorable, taken as a whole, to the Secured Parties than, the terms of the Junior Lien Intercreditor Agreement, shall be deemed to be reasonably acceptable to the Agent and (ii) any Pari Passu Intercreditor Agreement.
“Account Debtor” means each Person obligated in any way on or in connection with an Account, Chattel Paper or General Intangible (including a payment intangible).
“Accounts” means, with respect to each Obligor and its Subsidiaries, all of such Obligor’s or such Subsidiary’s now owned or hereafter acquired or arising accounts, as defined in the UCC or the PPSA, as applicable, and Leases, including any rights to payment for the sale or lease of goods or rendition of services, whether or not they have been earned by performance, and all rentals, lease payments and other monies due and to become due under any Lease.
“Acquired Business” has the meaning specified in the definition of “Permitted Acquisition”.
“Act” has the meaning specified in Section 14.23.
“Additional Borrower” has the meaning specified in Section 1.9(a).
“Additional Lender” means any Person that has agreed to provide Incremental Facilities pursuant to Section 2.5 or Refinancing Commitments pursuant to Section 2.7, whether or not such
2

Person was a Lender hereunder immediately prior to such time; provided that such Person qualifies an Eligible Assignee.
“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.
“Affiliate” means, as to any Person, any other Person which, directly or indirectly, is in control of, is controlled by, or is under common control with, such Person or which owns, directly or indirectly, 25% or more of the outstanding equity interests of such Person. A Person shall be deemed to control another Person if the controlling Person possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of the other Person, whether through the ownership of voting securities, by contract, or otherwise. Without limiting the generality of the foregoing, when used with respect to the Agent or any Lender, the term “Affiliate” shall include any “authorized foreign bank” for purposes of the Income Tax Act (Canada) of such Person.
“Agent” means the Bank, as the agent for the Lenders under this Agreement, or any successor agent.
“Agent Advance Period” has the meaning specified in Section 2.2(b).
“Agent Advances” has the meaning specified in Section 2.2(b).
“Agent’s Liens” means the Liens on the Collateral granted to the Agent, for the benefit of the Secured Parties, pursuant to this Agreement and the other Loan Documents.
“Agent-Related Persons” means the Agent, together with its Affiliates and branches, and the respective officers, directors, employees, counsel, representatives, agents and attorneys-in-fact of the Agent and such Affiliates and branches.
“Aggregate Multicurrency Revolver Outstandings” means, at any date of determination and without duplication, the Equivalent Amount in Dollars of the sum of (a) the aggregate unpaid principal balance of Multicurrency Revolving Loans, (b) 100% of the aggregate maximum amount available to be drawn under all outstanding Multicurrency Letters of Credit, and (c) the aggregate amount of any unpaid reimbursement obligations in respect of Multicurrency Letters of Credit.
“Aggregate Revolver Outstandings” means, at any date of determination and without duplication, the Equivalent Amount in Dollars of the sum of (a) the Aggregate U.S. Revolver Outstandings, and (b) the Aggregate Multicurrency Revolver Outstandings.
“Aggregate U.S. Revolver Outstandings” means, at any date of determination and without duplication, the Equivalent Amount in Dollars of the sum of (a) the aggregate unpaid principal balance of U.S. Revolving Loans, (b) 100% of the aggregate maximum amount available to be drawn under all outstanding U.S. Facility Letters of Credit, and (c) the aggregate amount of any unpaid reimbursement obligations in respect of U.S. Facility Letters of Credit.
“Agreement” means this Credit Agreement.
3

“Agreement Date” means the date of this Agreement.
“Alternative Currency” means any currency (other than Dollars or Canadian Dollars) that is approved in accordance with Section 1.7.
“Amendment No. 1” means Amendment No. 1 to Credit Agreement, dated on or about the Amendment No. 1 Effective Date, by and among Agent, Xxxxxxx and Obligors.
“Amendment No. 1 Date” means the date of Amendment No. 1.
“Amendment No. 1 Effective Date” means the later of the Amendment No. 1 Date and the first date on which all of the applicable conditions set forth in Section 4 of Amendment No. 1 have been fulfilled (or waived in writing by the Agent).
“Amendment No. 2” means Amendment No. 2 to Credit Agreement, dated on or about the Amendment No. 2 Effective Date, by and among Agent, Xxxxxxx and Obligors.
“Amendment No. 2 Date” means the date of Amendment No. 2.
“Amendment No. 2 Effective Date” means the later of the Amendment No. 2 Date and the first date on which all of the applicable conditions set forth in Section 4 of Amendment No. 2 have been fulfilled (or waived in writing by the Agent).
“AML Legislation” has the meaning specified in Section 14.27.
“Anti-Corruption Laws” means any Laws concerning or relating to bribery or corruption, including the United States Foreign Corrupt Practices Act of 1977, as amended, the Corruption of Foreign Public Officials Act (Canada), the UK Bribery Act 2010, and any other similar anti- money laundering or anti-corruption law or regulations administered or enforced in any jurisdiction in which any Obligor or any of its Subsidiaries is organized or conducts business.
“Applicable Entities” has the meaning specified in Section 14.19.
“Applicable Margin” means, for each Type of Loan, the interest margin applicable thereto based on the Quarterly Average Excess Availability for the previous calendar quarter (or portion thereof), as set forth below:
4

Level
Quarterly Average Excess Availability
Applicable Margin for U.S. Revolving Loans denominated in Dollars and Canadian Revolving Loans denominated in Dollars, in each case that are Base Rate Loans
Applicable Margin for U.S. Revolving Loans and Canadian Revolving Loans that are Term SOFR Loans or Daily One Month SOFR Loans
Loans Applicable Margin for Canadian Revolving Loans that are Canadian Prime Rate Loans
Applicable Margin for Canadian Revolving Loans that are BA EquivalentTerm XXXXX Loans or Daily Simple XXXXX Loans

I

Equal to or greater than 50% of the Maximum Revolver Amount

0.25%

1.25%

0.25%

1.25%
IILess than 50% of the Maximum Revolver Amount0.50%1.50%0.50%1.50%
Notwithstanding the Applicable Margins set forth above, at any time and for so long as the Company has received a corporate or family credit rating from both Xxxxx’x and Standard & Poor’s of Ba2 and BB, respectively, or higher, the Level II pricing for each Type of Loan shall be reduced by 12.5 basis points and at any time thereafter, in the event that the Company has received a corporate or family credit rating from both Xxxxx’x and Standard & Poor’s lower than Ba2 and BB, respectively, the Level II pricing for each Type of Loan shall be increased by 12.5 basis points.
Each change in the Applicable Margin resulting from a change in the Quarterly Average Excess Availability for the most recent calendar quarter ended immediately preceding the first day of a calendar quarter shall be effective with respect to all Loans and Letters of Credit outstanding on and after such first day of such calendar quarter. Notwithstanding anything to the contrary contained above in this definition, Level II pricing shall apply for all Loans at all times once the Commitments have terminated or the Termination Date has occurred.
Notwithstanding the foregoing, in the event that any Borrowing Base Certificate delivered pursuant to Section 7.4(a) is shown to be inaccurate and such inaccuracy, if corrected, would have led to the application of a higher Applicable Margin for any period (an “Applicable Period”) than the Applicable Margin applied for such Applicable Period, then (i) the Company shall promptly deliver to the Agent a corrected Borrowing Base Certificate for such Applicable Period, (ii) the Applicable
5

Margin for such Applicable Period shall be determined as if the Quarterly Average Excess Availability in the corrected Borrowing Base Certificate were applicable for such Applicable Period, and (iii) promptly following the delivery of such corrected Borrowing Base Certificate, the applicable Borrowers shall pay to the Agent an amount equal to the excess of the amount of interest that should have been paid for such Applicable Period over the amount of interest actually paid for such Applicable Period, which payment shall be promptly applied by the Agent in accordance with Section 13.14. Nothing in this paragraph shall limit the rights of the Agent and Lenders with respect to Sections 3.1 and 10.2 nor any of their other rights under this Agreement or any other Loan Document.
References to “U.S. Revolving Loans” in the grid above are to both U.S. Revolving Loans and Multicurrency U.S. Revolving Loans and references to “Canadian Revolving Loans” in the grid above are to Multicurrency Canadian Revolving Loans.
“Appraisal” means an appraisal, prepared on a basis reasonably satisfactory to the Agent, setting forth the Net Orderly Liquidation Value of all Rental Equipment and all Service Vehicles of the applicable Secured Obligors, which appraisal shall be prepared in accordance with Section 7.9(b).
“Approved Fund” means any Person (other than a natural person or Disqualified Lender) that is engaged in making, holding or investing in bank loans and similar extensions of credit in its ordinary course of business and is administered or managed by (a) a Lender, (b) an entity or an Affiliate of an entity that administers or manages a Lender, or (c) an Affiliate or branch of a Lender.
“Arrangers” means Bank of America, N.A., Credit Agricole Corporate and Investment Bank, MUFG Union Bank, N.A., and Xxxxx Fargo Bank, National Association.
“Asset Disposition” means any sale, issuance, conveyance, transfer, lease or other disposition (including a disposition to a Divided LLC pursuant to an LLC Division) by an Obligor or any Restricted Subsidiary to any Person other than an Obligor or a Restricted Subsidiary of:
(a)any Capital Stock of any Restricted Subsidiary (other than directors qualifying shares or to the extent required by applicable law);
(b)all or substantially all of the assets of any division or line of business of an Obligor or any Restricted Subsidiary; or
(c)any other assets of an Obligor or any Restricted Subsidiary;
other than, in the case of clause (a), (b) or (c) above:
(i) sales, conveyances, transfers, leases or other dispositions of assets, including sales of equipment to equipment manufacturers and similar transactions, in each case in the ordinary course of business;
(ii) sales, conveyances, transfers, leases or other dispositions of obsolete, surplus or worn-out property or property that is no longer necessary in the business of the Borrowers and their Subsidiaries;
6

(iii) sales, conveyances, transfers, leases or other dispositions of assets in one or a series of related transactions for aggregate consideration of less than the greater of (A) $75,000,000 and (B) 2.0% of Consolidated Tangible Assets;
(iv) the lease, license, sublicense or sublease of any real or personal property in the ordinary course of business;
(v) (x) a disposition that constitutes a Permitted Distribution or a Permitted Investment, (y) a disposition governed by Section 8.5 (other than the clauses thereof specifically referring to Asset Dispositions) and (z) any sale, issuance, conveyance, transfer, lease or other disposition of properties or assets in connection with a Securitization Transaction; provided that (A) the aggregate amount of the book value (or in the case of Rental Equipment, Service Vehicles or Spare Parts and Merchandise, Net Book Value) of all such properties or assets of any Obligor sold, issued, conveyed, transferred, leased or otherwise disposed of in connection with all Equipment Securitization Transactions, whether permitted under this clause (v)(z) or any other provision of this Agreement, shall not exceed $510,000,000 in the aggregate during the term of this Agreement, (B) the properties or assets of any Obligor sold, issued, conveyed, transferred, leased or otherwise disposed of in connection with all Equipment Securitization Transactions, transferred in connection with an Equipment Securitization Transaction consist of the types described in the definition of the term Equipment Securitization Transaction and (C) the Obligors shall not select properties or assets for disposition in connection with a Securitization Transaction in a manner so as to intentionally adversely affect the Agent’s or Xxxxxxx’ interests hereunder;
(vi) Like-Kind Exchanges in the ordinary course of business;
(vii) any disposition arising from foreclosure, condemnation or similar action with respect to any property or other assets, or exercise of termination rights under any lease, license, concession or agreement, or necessary or advisable (as determined by the Company in good faith) in order to consummate any acquisition of any Person, business or assets, or pursuant to buy/sell arrangements under any joint venture or similar agreement or arrangement;
(viii)dispositions of cash and Cash Equivalents, Investment Grade Securities or Temporary Cash Investments pursuant to any transaction permitted under the Loan Documents;
(ix)any disposition of Capital Stock, Indebtedness or other securities of an Unrestricted Subsidiary;
(x)the unwinding of any Hedge Agreement;
(xi)the sale or discount (with or without recourse, and on customary or commercially reasonable terms) of Accounts arising in the ordinary course of business, or the conversion or exchange of accounts receivable for notes receivable;
(xii)a disposition of Capital Stock of a Restricted Subsidiary pursuant to an agreement or other obligation with or to a person (other than an Obligor or a Restricted Subsidiary) from which such Restricted Subsidiary was acquired, or from whom such Restricted Subsidiary
7

acquires its business and assets (having been newly formed in connection with such acquisition), entered into in connection with such acquisition;
(xiii)the lapse, abandonment (including failure to maintain) or other disposition of Intellectual Property (other than a non-exclusive license, sublicense, cross-license or other grant of rights to Intellectual Property) that is, in the good faith determination of the Company, no longer material or no longer commercially desirable to maintain or used or useful in the conduct of the business of the Company and its Restricted Subsidiaries taken as a whole;
(xiv)non-exclusive licenses, sublicenses, cross-licenses or other grants of rights to Intellectual Property not materially interfering with the conduct of the business of the Borrowers and the Restricted Subsidiaries taken as a whole or the Agent’s rights with respect to the Collateral; and
(xv)any disposition for Fair Market Value, to any Franchisee or any Franchise Special Purpose Entity; provided that (A) the aggregate Fair Market Value of all such properties or assets of any Obligor, together (but in each case without duplication) with (1) the aggregate Fair Market Value of any properties or assets transferred as permitted under any other provision hereof in connection with the disposition of properties or assets to any Franchisee or any Franchise Special Purpose Entity, (2) the amount of Investments under clause (x) of the definition of the term “Permitted Investments”, and (3) the amounts paid as consideration for all acquisitions in reliance on clause (d)(iii) of the definition of the term “Permitted Acquisition”, shall not exceed $120,000,000 in the aggregate during the term of this Agreement and (B) the properties or assets transferred to any Franchisee or any Franchise Special Purpose Entity shall consist of the types described in the definition of the term Equipment Securitization Transaction.
“Assignee” has the meaning specified in Section 12.2(a).
“Assignment and Acceptance” means an assignment and acceptance agreement entered into by one or more Xxxxxxx and Eligible Assignees (with the consent of any party whose consent is required by Section 12.2(a)), and accepted by the Agent, in substantially the form of Exhibit E or any other form approved by the Agent.
“Attorney Costs” means and includes all reasonable and documented fees, expenses and disbursements of any law firm or other external counsel engaged by the Agent (limited to one primary counsel and not more than one local counsel for each relevant jurisdiction (including relevant foreign jurisdictions)).
“Availability Reserves” means, without duplication of any other reserves or items that are otherwise addressed or excluded through eligibility criteria, subject to Section 2.9, Dilution Reserve and such other reserves as the Agent, in its Reasonable Credit Judgment, determines as being appropriate to reflect any impediments to the realization upon any Collateral consisting of Eligible Accounts, Eligible Unbilled Accounts, Eligible Rental Equipment, Eligible Spare Parts and Merchandise or Eligible Service Vehicles included in the U.S. Borrowing Base or Canadian Borrowing Base (including any claims that the Agent determines may need to be satisfied in connection with the realization upon such Collateral).
8

“Available Incremental Amount” means, on any date, without duplication, an amount equal to the difference between (a) the greater of (i) $1,000,000,000 and (ii) an amount equal to Suppressed Availability and (b) the sum of the aggregate principal amount of all Incremental ABL Term Loans made, plus all Incremental Revolving Commitments established, in each case, prior to such date pursuant to Section 2.5 and that shall be outstanding as of such date (it being understood that any Incremental ABL Term Loans that shall be repaid, and any Incremental Revolving Commitment that shall be terminated, in connection with any proposed Incremental ABL Term Loans or Incremental Revolving Commitments shall not be deemed outstanding for purposes of this definition).
“BA Equivalent Interest Payment Date” means, with respect to a BA Equivalent Loan, (a) the last day of each BA Equivalent Interest Period applicable to such BA Equivalent Loan and (b) the Termination Date.
“BA Equivalent Interest Period” means, with respect to each BA Equivalent Loan, the period commencing on the Funding Date of such Loan or on the Continuation/Conversion Date on which the Loan is converted into or continued as a BA Equivalent Loan, and ending on (a) the date one or three months thereafter, or (b) any other date agreed to by all the Lenders making or holding such Loan, in each case, as selected by the applicable Canadian Borrower in its Notice of Borrowing or Notice of Continuation/Conversion; provided that:
(a) the initial BA Equivalent Interest Period for any Borrowing of a BA Equivalent Loans shall commence on the date of such Borrowing (including the date of any conversion from a Borrowing of Canadian Prime Rate Loans, as applicable) and each BA Equivalent Interest Period occurring thereafter in respect of such Borrowing shall commence on the day on which the next preceding BA Equivalent Interest Period expires;
(b) if any BA Equivalent Interest Period of one month or longer relating to a Borrowing of a BA Equivalent Loan begins on the last Business Day of a calendar month or begins on a day for which there is no numerically corresponding day in the calendar month at the end of such BA Equivalent Interest Period, such BA Equivalent Interest Period shall end on the last Business Day of the calendar month at the end of such BA Equivalent Interest Period;
(c) if any BA Equivalent Interest Period would otherwise expire on a day that is not a Business Day, such BA Equivalent Interest Period shall expire on the next succeeding Business Day; provided that if any BA Equivalent Interest Period of one month or longer in respect of a BA Equivalent Loan would otherwise expire on a day that is not a Business Day but is a day of the month after which no further Business Day occurs in such month, such BA Equivalent Interest Period shall expire on the next preceding Business Day; and
(d) none of the Canadian Borrowers nor the Borrowers’ Agent shall be entitled to elect any BA Equivalent Interest Period in respect of any BA Equivalent Loan if such BA Equivalent Interest Period would extend beyond the Maturity Date.
“BA Equivalent Loan” means a Multicurrency Canadian Revolving Loan that bears interest based on the BA Rate.
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“BA Rate” means, for the BA Equivalent Interest Period of each BA Equivalent Loan, the rate of interest per annum equal to a per annum rate of interest equal to the Canadian Dollar bankers’ acceptance rate having such specified term (or a term as closely as possible comparable to such specified term), or comparable or successor rate approved by the Agent, determined by it, acting reasonably and in consultation with the Borrowers’ Agent, at or about 10:00 a.m. (Toronto time) on the applicable day (or the preceding Business Day, if the applicable day is not a Business Day), as published on the CDOR or other applicable Reuters screen page (or other commercially available source designated by the Agent, acting reasonably, from time to time); provided that in no event shall the BA Rate be less than zero.
“BA Successor Rate” has the meaning specified in Section 5.8.
“BA Successor Rate Conforming Changes” means, with respect to any proposed BA Successor Rate, any conforming changes to the definitions of Canadian Prime Rate, Interest Period, timing and frequency of determining rates and making payments of interest and other administrative matters as may be appropriate, in the discretion of the Agent, to reflect the adoption of such BA Successor Rate and to permit the administration thereof by the Agent in a manner substantially consistent with market practice (or, if the Agent determines that adoption of any portion of such market practice is not administratively feasible or that no market practice for the administration of such BA Successor Rate exists, in such other manner of administration as the Agent determines in consultation with the Borrowers’ Agent).
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.
“Bail-In Legislation” means, (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation, rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
“Bank” means, as the context requires, (a) the U.S. Bank, or (b) the Canadian Bank. Any general reference to the “Bank” refers to the U.S. Bank with respect to the U.S. Credit Facilities and/or the U.S. Bank with respect to U.S. Swingline Loan and/or Loans to U.S. Borrowers under the Multicurrency Credit Facilities and/or the Canadian Bank with respect to Multicurrency Canadian Swingline Loans, and/or Loans to Canadian Borrowers under the Multicurrency Credit Facilities.
“Bank of America” means Bank of America, N.A. and its successors.
“Bank Product Reserves” means (a) all reserves which the Agent from time to time establishes in its Reasonable Credit Judgment for the Designated Bank Products Obligations then outstanding and (b) without duplication of clause (a), all Waterfall Priority Hedge Agreement Reserves.
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“Bank Products” means (a) Hedge Agreements, (b) products and services under Cash Management Documents and (c) to the extent not otherwise included in the foregoing, other similar banking products or services (other than Loans and Letters of Credit) as, in the case of each of clauses (a), (b) and (c), may be requested by any Borrower (on behalf of itself or any other Restricted Subsidiary) and extended to any Borrower or any Restricted Subsidiary by a Lender Counterparty.
“Bankruptcy Code” means Title 11 of the United States Code entitled “Bankruptcy”.
“Base Rate” means for any day a fluctuating rate per annum equal to the highest of (a) the Federal Funds Rate plus 1/2 of 1%, (b) the rate of interest in effect for such day as publicly announced from time to time by Bank of America as its “prime rate” and (c) Term SOFR for a 30-day interest period as determined on such day, plus 1%; provided that in no event shall the Base Rate be less than zero. The “prime rate” is a rate set by Bank of America based upon various factors including Bank of America’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate. Any change in such rate announced by Bank of America shall take effect at the opening of business on the day specified in the public announcement of such change. If the Base Rate is being used as an alternate rate of interest pursuant to Section 5.5 or 5.7 hereof, then the Base Rate shall be the greater of clauses (a) and (b) above and shall be determined without reference to clause (c) above.
“Base Rate Loan” means (a) any U.S. Revolving Loan denominated in Dollars, in each case during any period for which it bears interest based on the Base Rate, (b) any Multicurrency Canadian Revolving Loan denominated in Dollars during any period for which it bears interest based on the Canadian Base Rate, (c) all Agent Advances made to a U.S. Borrower and (d) all U.S. Swingline Loans and Multicurrency U.S. Swingline Loans.
“Basel III” means:
(a)the agreements on capital requirements, a leverage ratio and liquidity standards contained in “Basel III: A global regulatory framework for more resilient banks and banking systems”, “Basel III: International framework for liquidity risk measurement, standards and monitoring” and “Guidance for national authorities operating the countercyclical capital buffer” published by the Basel Committee on Banking Supervision in December 2010;
(b)the rules for global systemically important banks contained in “Global systemically important banks: assessment methodology and the additional loss absorbency requirement — Rules text” published by the Basel Committee on Banking Supervision in November 2011; and
(c)any further guidance or standards published by the Basel Committee on Banking Supervision relating to “Basel III”.
“Beneficial Ownership Certification” means a certification regarding beneficial ownership required by the Beneficial Ownership Regulation, which certification shall be substantially similar in form and substance to the form of “Certification Regarding Beneficial Owners of Legal Entity
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Customers” published jointly, in May 2018, by the Loan Syndications and Trading Association and Securities Industry and Financial Markets Association (or any successor or replacement form).
“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.
“BIA” means the Bankruptcy and Insolvency Act (Canada) and the regulations promulgated thereunder.
“Borrowers” means the U.S. Borrowers and the Canadian Borrowers.
“Borrowers’ Agent” means the Company, in its capacity as agent for itself and the other Borrowers pursuant to Section 4.10.
“Borrowing” means a borrowing hereunder consisting of Loans of one Type made on the same day by Lenders to any Borrower (or (a) by the U.S. Bank in the case of a Borrowing funded by U.S. Swingline Loans or Multicurrency U.S. Swingline Loans or by the Agent in the case of a Borrowing consisting of an Agent Advance made to a U.S. Borrower, or (b) by the Canadian Bank in the case of a Borrowing funded by Multicurrency Canadian Swingline Loans or by the Agent in the case of a Borrowing consisting of an Agent Advance made to a Canadian Borrower).
“Borrowing Base” means the U.S. Borrowing Base or the Canadian Borrowing Base, as the context requires.
“Borrowing Base Certificate” means a certificate by a Responsible Officer of the Borrowers’ Agent, substantially in the form of Exhibit A (or another form reasonably acceptable to the Agent) setting forth the calculation of the U.S. Borrowing Base and the Canadian Borrowing Base, including a calculation of each component thereof, all in such detail as shall be reasonably satisfactory to the Agent, as adjusted pursuant to Section 2.9 and the definitions of Pari Passu Debt Reserves and Waterfall Priority Hedge Agreement Reserves. All calculations of the U.S. Borrowing Base and the Canadian Borrowing Base in connection with the preparation of any Borrowing Base Certificate shall be made by the Borrowers’ Agent and certified to the Agent; provided that the Agent shall have the right to review and adjust, in the exercise of its Reasonable Credit Judgment (or, with respect to Pari Passu Debt Reserves and Waterfall Priority Hedge Agreement Reserves, as otherwise set forth in the definitions thereof) and in consultation with the Company, any such calculation to the extent that such calculation is not in accordance with this Agreement; provided that the Agent shall provide the Borrowers’ Agent prior written notice of any such adjustment.
“Borrowing Minimum” means (a) with respect to Base Rate Loans or Canadian Prime Rate Loans, (i) in the case of a Borrowing denominated in Dollars, $1,000,000, and (ii) in the case of a Borrowing denominated in Canadian Dollars, Cdn $1,000,000 (or, in each case, if the applicable Commitment then available is less than the applicable amount specified in the foregoing, such lesser amount), (b) with respect to Daily One Month SOFR Loans, $1,000,000, and (c) with respect to Term SOFR Loans or BA EquivalentTerm XXXXX Loans, (i) in the case of a Borrowing denominated in Dollars, $5,000,000, (ii) in the case of a Borrowing denominated in Canadian Dollars, Cdn $5,000,000, and (iii) in the case of a Borrowing denominated in any other Alternative
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Currency, such amount as may be agreed by the Agent and the Borrowers’ Agent, and (d) with respect to Daily Simple XXXXX Loans, Cdn $5,000,000.
“Borrowing Multiple” means (a) in the case of a Borrowing denominated in Dollars, $1,000,000, (b) in the case of a Borrowing denominated in Canadian Dollars, Cdn $1,000,000, and (c) in the case of a Borrowing denominated in any other Alternative Currency, such amount as may be agreed by the Agent and the Borrowers’ Agent.
“Business Day” means any day that is not a Saturday, Sunday, or a day on which banks in New York, New York are required or permitted to be closed; provided that when used in connection with a Multicurrency Canadian Revolving Loan, such day shall be a day on which banks are open for business in Toronto, Canada and New York, New York but excluding Saturday, Sunday and any other day which is a legal holiday in Toronto, Canada or New York, New York.
“Canadian Bank” means Bank of America, N.A. (acting through its Canada branch), or any successor entity thereto or affiliate thereof.
“Canadian Base Rate” means for any day a fluctuating rate per annum equal to the highest of (a) the per annum rate of interest designated by the Canadian Bank from time to time as its base rate for commercial loans made by it in Dollars, which rate is based on various factors, including its costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above or below such rate, (b) the Federal Funds Rate plus 1/2 of 1%, and (c) Term SOFR for a 30-day interest period as determined on such day, plus 1%; provided that in no event shall the Canadian Base Rate be less than zero. Any change in such rate shall take effect at the opening of business on the applicable Business Day. If the Canadian Base Rate is being used as an alternate rate of interest pursuant to Section 5.5 or 5.7 hereof, then the Canadian Base Rate shall be the greater of clauses (a) and (b) above and shall be determined without reference to clause (c) above.
“Canadian Base Rate Loan” means any Multicurrency Canadian Revolving Loan during any period for which it bears interest by reference to the Canadian Base Rate.
“Canadian Borrowers” has the meaning specified in the introductory paragraph to this Agreement.
“Canadian Borrowing Base” means, at any time, an amount in Dollars equal to:
(a)the sum of
(i)90% of the amount of Eligible Canadian Accounts owing from Account Debtors which have an Investment Grade Rating; plus
(ii)85% of the amount of Eligible Canadian Accounts owing from Account Debtors which do not have an Investment Grade Rating; plus
(iii)75% of the amount of Eligible Unbilled Canadian Accounts (not to exceed 50% of the aggregate amount calculated under clauses (i) and (ii) above); plus
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(iv)the lesser of: (A) 100% multiplied by the then Net Book Value of Eligible Canadian Rental Equipment and Eligible Canadian Service Vehicles, and (B) 85% multiplied by the then extant Net Orderly Liquidation Value Percentage of Eligible Canadian Rental Equipment and Eligible Canadian Service Vehicles multiplied by the Net Book Value thereof; plus
(v)55% multiplied by the then Net Book Value of Eligible Canadian Spare Parts and Merchandise; minus
(b)the sum of (i) the amount of Pari Passu Debt Reserves with respect to Indebtedness of the Canadian Obligors; plus (ii) the amount of all other Reserves related to the Canadian Obligors from time to time established by the Agent in accordance with Section 2.9 or in accordance with the definition of “Waterfall Priority Hedge Agreement Reserve”.
“Canadian Collateral” means all of the Canadian Obligors’ personal property from time to time subject to the Agent’s Liens securing payment or performance of any Obligations pursuant to the Canadian Security Documents, other than Excluded Assets (as defined in the Canadian GCA); provided that the term “Canadian Collateral” shall not include U.S. Collateral.
“Canadian DB Pension Plan” means any Canadian Pension Plan that contains a “defined benefit provision” as defined in the Income Tax Act (Canada).
“Canadian Dollars” or “Cdn $” or “Cdn. Dollars” means the lawful currency of Canada.
“Canadian GCA” means the Canadian Guarantee and Collateral Agreement dated as of the Agreement Date from the Canadian Obligors in favor of the Agent for the benefit of the Secured Parties.
“Canadian Guarantors” means (a) any Subsidiary of the Company that is organized under the Laws of Canada or any province or territory thereof, whether now existing or hereafter created or acquired, and (b) each other Person (other than a U.S. Guarantor), who guarantees payment or performance in whole or in part of the Obligations; provided that “Canadian Guarantors” shall not include any Subsidiary that is an Excluded Subsidiary. The Canadian Guarantors as of the Agreement Date are set forth on Schedule 1.2A under the heading “Canadian Guarantors”.
“Canadian Obligations” means, with respect to the Indebtedness of the Canadian Obligors under the Loan Documents, any principal, premium (if any), interest (including interest accruing on or after the filing of any petition in bankruptcy or for reorganization relating to any Canadian Obligor whether or not a claim for post-filing interest is allowed in such proceedings), fees, charges, expenses, reimbursement obligations, Guarantees of such Indebtedness (or of Obligations in respect thereof), other monetary obligations of any Canadian Obligor of any nature and all other amounts payable by any Canadian Obligor under the Loan Documents or in respect thereof, excluding in each case Excluded Swap Obligations; provided that “Canadian Obligations” shall in any event include Designated Bank Products Obligations of any Canadian Obligor and all U.S. Obligations guaranteed by the Canadian Obligors (in each case, to the extent such Obligations are not Excluded Swap Obligations).
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“Canadian Obligors” means the Canadian Borrowers and the Canadian Guarantors.
“Canadian Pension Plan” means any Pension Plan applicable solely to employees or former employees of any of the Canadian Obligors but shall not include any Pension Plan maintained by the Government of Canada, the government of the Province of Québec or the government of the Province of Ontario.
“Canadian Prime Rate” means, onfor any day, a fluctuating rate of interest per annum equal to the greater of (a) the per annum rate of interest publicly announced from time to time by the Canadian Bankquoted or established as the “prime rate” of the Agent which it quotes or establishes for such day as its reference rate of interest for loans madein order to determine interest rates for commercial loans in Canadian Dollars and designated as its “prime” rate being a rate set by the Canadian Bank based uponin Canada to its Canadian borrowers; (b) from and after the Term XXXXX Activation Date, Term XXXXX for a one (1) month term that is two (2) Business Days prior to such date plus the Term XXXXX Adjustment plus 1% per annum; and (c) 1.00%, adjusted automatically with each quoted or established change in such rate, all without the necessity of any notice to any Borrower or any other Person. Such prime rate is based on various factors, including the Canadian Bank’s costscost and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, and (b) the BA Rate for a one month BA Equivalent Interest Period as determined on such day, plus 1%; provided that in no event shall the Canadian Prime Rate be less than zerowhich may be priced at, above, or below such announced rate. Any change in the prime rate for loans made in Canadian Dollars announced by the Canadian Bank shall take effect at the opening of business on the day specified in the public announcement of such change. Each interest rate based on such prime rate hereunder shall be adjusted simultaneously with any change in such prime rate.
“Canadian Prime Rate Loan” means any Multicurrency Canadian Revolving Loan during any period for which it bears interest by reference to the Canadian Prime Rate and all Multicurrency Canadian Swingline Loans and Agent Advances made to a Canadian Borrower.
“Canadian Security Documents” means, collectively, (a) the Canadian GCA, (b) any security agreement and/or deed of hypothec executed and delivered after the Agreement Date by a Person that is or becomes a Canadian Obligor hereunder in accordance with Section 7.16, and (c) any Control Agreement or other agreements, instruments and documents heretofore, now or hereafter securing any of the Canadian Obligations.
“Canadian Subsidiary” means any Subsidiary of the Company that is organized under the Laws of Canada or any province or territory thereof.
“Capital Adequacy Regulation” means any guideline, request or directive of any central bank or other Governmental Authority, or any other law, rule or regulation, whether or not having the force of law, in each case, regarding capital adequacy or liquidity requirements of any bank or of any corporation controlling a bank.
“Capital Expenditures” means, with respect to any Person for any period, the sum of (a) the aggregate of all expenditures incurred by such Person and its consolidated Subsidiaries during such
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period for purchases of property, plant and equipment as “capital expenditures” (exclusive of expenditures for Investments not prohibited hereby, including Permitted Acquisitions) or similar items which, in accordance with GAAP, are or should be included in the statement of cash flows of such Person and its consolidated Subsidiaries during such period, net of (b)(i) proceeds received by the Company or its Subsidiaries from dispositions of property, plant and equipment or similar items reflected in the statement of cash flows of such Person and its consolidated Subsidiaries during such period, (ii) expenditures that are paid for by a third party (excluding the Company and any of its consolidated Subsidiaries) and for which neither the Company nor any of its consolidated Subsidiaries has provided or is required to provide or incur, directly or indirectly, any consideration or obligation to such third party or any other Person or (iii) expenditures made with the proceeds of any equity securities issued or capital contributions received, or Indebtedness incurred, by the Company or any of its consolidated Subsidiaries which, in accordance with GAAP, are included in “capital expenditures,” including any such expenditures made for purchases of Rental Equipment.
“Capital Stock” means, with respect to any Person, any and all shares, interests, participations, rights in or other equivalents (however designated) of such Person’s capital stock or equity participations, and any rights (other than debt securities convertible into capital stock), warrants or options exchangeable for or convertible into such capital stock and, including, with respect to partnerships, limited liability companies or business trusts, ownership interests (whether general or limited) and any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, such partnerships, limited liability companies or business trusts.
“Cash Dominion Period” means (a) any period (i) commencing on the date on which Specified Availability shall have been less than the greater of (A) 10% of the Loan Cap and (B) $225,000,000 for five consecutive Business Days, and the Agent has notified the Borrowers’ Agent that a Cash Dominion Period is in effect, and (ii) ending on the earliest of (A) the date on which Specified Availability shall have been at least equal to the greater of (1) 10% of the Loan Cap and (2) $225,000,000 for 20 consecutive calendar days or (B) Specified Availability shall have been at least 15% of the Loan Cap for five consecutive calendar days or (b) any period during which a Specified Default shall have occurred and be continuing.
“Cash Equivalents” means:
(a)direct obligations of the United States of America or Canada, or any agency thereof, or obligations guaranteed or insured by the United States of America or Canada, or any agency thereof; provided that such obligations mature within one year from the date of acquisition thereof;
(b)(i) certificates of deposit, guaranteed investment certificates or time deposits maturing within one year from the date of acquisition, bankers’ acceptances, Eurodollar bank deposits, or overnight bank deposits, in each case issued by, created by, or with (x) any Lender or an Affiliate thereof or (y) any other bank or trust company organized under the laws of the United States of America or any state thereof or Canada or any province or territory thereof, in each such case, having, at the time of acquisition thereof, capital and surplus aggregating at least $500,000,000 (or the Equivalent Amount in Canadian Dollars, as applicable) and the commercial paper of the holding
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company of which is rated at least “A2” by S&P or “P2” by Xxxxx’x, and (ii) repurchase obligations for underlying securities of the types described in clause (i) above entered into with any financial institution meeting the qualifications specified in clause (i) above;
(c)commercial paper maturing not more than one year from the date of creation thereof or corporate demand notes, in each case given a rating of “A2” or better by S&P or “P2” or better by Xxxxx’x;
(d)(i) marketable direct obligations issued by any state of the United States of America or the District of Columbia or any political subdivision of any such state or any public instrumentality thereof, in each case maturing within one year after such date and having, at the time of the acquisition thereof, a rating of at least “A1” from S&P or at least “P1” from Xxxxx’x, (ii) Temporary Cash Investments or (iii) investments in short-term asset management accounts that are primarily invested in investments of the type specified in any of clauses (i) or (ii) above; and
(e)any investment in (i) funds investing primarily in investments of the types specified in clauses (a) through (d) above or (ii) money market funds complying with the risk limiting conditions of Rule 2a-7 or any successor rule of the SEC under the Investment Company Act of 1940;
provided that in the case of any Investment by any Foreign Subsidiary, “Cash Equivalents” shall also include: (A) direct obligations of the sovereign nation (or any agency thereof) in which such Foreign Subsidiary is organized and is conducting business or in obligations fully and unconditionally guaranteed by such sovereign nation (or any agency thereof) (or, in the case of a Foreign Subsidiary organized under the Laws of a member state of the European Union, any other sovereign nation (or agency thereof) in the European Union), in each case maturing within a year after such date and having, at the time of the acquisition thereof, a rating equivalent to at least “A2” from S&P and at least “P2” from Xxxxx’x, (B) investments of the type and maturity described in clauses (a) through (e) above of non-U.S. obligors, which investments or obligors (or the parents of such obligors) have ratings described in such clauses or equivalent ratings from comparable non-U.S. rating agencies and (C) shares of money market mutual or similar funds substantially all of the assets of which are invested in assets otherwise satisfying the requirements of this definition (including this paragraph).
“Cash Management Document” means any certificate, agreement or other document executed by any Obligor in respect of the Cash Management Obligations of any such Obligor.
“Cash Management Obligation” means any obligation of an Obligor or Restricted Subsidiary in connection with, or in respect of, cash management services (including treasury, depository, return item, overdraft, controlled disbursement, credit, merchant store value or debit card, purchase card, e-payables services, electronic funds transfer, interstate depository network, automatic clearing house transfer and other cash management arrangements) provided after the Agreement Date by the Agent or any Person that was a Lender or the Agent or an Affiliate of the Agent or any Lender at the time the applicable Cash Management Documents were entered into.
“CCAA” means the Companies’ Creditors Arrangement Act (Canada) and the regulations promulgated thereunder.
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“CDOR Screen Rate” means the CDOR on other applicable Reuters screen page the Agent (in its reasonable discretion) designates to determine CDOR (or such other commercially available source providing such quotations as may be designated by the Agent from time to time in its reasonable discretion).
“Change of Control” means, at any time and for any reason whatsoever, (a) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act), other than one or more Permitted Holders, is or becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of more than 50% of the total Voting Stock of the Company on a fully diluted basis, (b) the Company shall cease to own, directly or indirectly 100% of the Capital Stock of Herc Rentals, (c) the occurrence of a “Change of Control” as defined in (i) the Senior Note Indenture or (ii) any other indenture, loan agreement or similar instrument in each case evidencing or governing Indebtedness in an outstanding principal amount in excess of $250,000,000 entered into or assumed by the Company after the Agreement Date.
“Charter Documents” means, with respect to any Person, the certificate or articles of incorporation or organization, memoranda of association, by-laws or operating agreement, and other organizational or governing documents of such Person.
“Chattel Paper” means all of each Borrower’s, each Guarantor’s and each of their Subsidiary’s now owned or hereafter acquired chattel paper, as defined in the UCC or, with respect to any chattel paper of any Canadian Obligor, the PPSA, including electronic chattel paper.
“Closing Date” means the later of the Agreement Date and the first date on which all of the applicable conditions set forth in Section 9.1 have been fulfilled (or waived in writing by the Agent and the Arrangers).
“CME” means CME Group Benchmark Administration Limited.
“Co-Syndication Agent” has the meaning specified in the preamble to this Agreement.
“Code” means the Internal Revenue Code of 1986 and the rules and regulations promulgated thereunder.
“Collateral” means the U.S. Collateral and/or the Canadian Collateral, collectively or individually, as the context requires.
“Collateral Access Agreements” means any landlord waiver, mortgagee waiver, bailee letter, or any similar acknowledgment or agreement of any warehouseman or processor that owns or is in possession of property where Rental Equipment, Service Vehicles or Spare Parts and Merchandise is stored or located, in each case in a form reasonably satisfactory to the Agent.
“Combined Borrowing Base” means, at any time, the sum of (a) the U.S. Borrowing
Base at such time and (b) the Canadian Borrowing Base at such time.
“Commitment” means a Revolving Credit Commitment (and including any Incremental Revolving Commitment and Extended Commitment to make Revolving Loans), a U.S. Swingline
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Commitment, a Multicurrency Facility Swingline Commitment, or any Refinancing Revolving Commitment under this Agreement as the context requires.
“Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.) and any successor statute.
“Company” has the meaning specified in the introductory paragraph to this Agreement.
“Compliance Certificate” means a certificate substantially in the form of Exhibit D.
“Conforming Changes” means, (a) with respect to use, administration of or conventions associated with SOFR, Term SOFR, Daily One Month SOFR or any proposed Successor Rate, as applicable, any conforming changes to the definitions of Base Rate, Canadian Base Rate, SOFR, Term SOFR, Daily One Month SOFR, BA Rate, Canadian Prime Rate, BA Equivalent Interest Period and Interest Period, timing and frequency of determining rates and making payments of interest and other technical, administrative or operational matters (including, for the avoidance of doubt, the definitions of Business Day and U.S. Government Securities Business Day, timing of borrowing requests or prepayment, conversion or continuation notices, and length of lookback periods) as may be appropriate, in the Agent’s discretion, to reflect the adoption and implementation of such applicable rate(s) and to permit the administration thereof by the Agent in a manner substantially consistent with market practice (or, if the Agent determines that adoption of any portion of such market practice is not administratively feasible or that no market practice for the administration of such rate exists, in such other manner of administration as the Agent determines is reasonably necessary in connection with the administration of any Loan Document). and (b) with respect to use, administration of or conventions associated with XXXXX, Daily Simple XXXXX, Term XXXXX, the Daily Simple XXXXX Rate or the Term XXXXX Rate, as applicable, any conforming changes to the definitions of Canadian Prime Rate, Business Day and Term XXXXX Interest Period, timing and frequency of determining rates and making payments of interest and other technical, administrative or operational matters (including, for the avoidance of doubt, timing of borrowing requests or prepayment, conversion or continuation notices, and length of lookback periods, and the applicability of breakage provisions) as may be appropriate, in the Agent’s discretion, to reflect the adoption or implementation of such applicable rate(s) and to permit the administration thereof by the Agent in a manner substantially consistent with market practice (or, if the Agent determines that adoption of any portion of such market practice is not administratively feasible or if the Agent determines that no market practice for the administration of such rate exists, in such other manner of administration as the Agent determines is reasonably necessary in connection with the administration of any Loan Documents).
“Consolidated EBITDA” means, for any period:
(a)the sum of, without duplication, the amounts for such period, taken as a single accounting period, of:
(i)Consolidated Net Income;
(ii)Consolidated Non-cash Charges;
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(iii)Consolidated Interest Expense, all items excluded from the definition of Consolidated Interest Expense pursuant to clause (b) thereof, and to the extent not reflected in Consolidated Interest Expense, costs of surety bonds in connection with financing activities;
(iv)Consolidated Income Tax Expense;
(v)any fees, expenses or charges related to the Transactions, any issuance of Capital Stock, Investment, merger, acquisition, disposition, consolidation, recapitalization or the incurrence or repayment of Indebtedness permitted by this Agreement (including any refinancing or amendment of any of the foregoing) (whether or not consummated or incurred);
(vi)the amount of any restructuring charges or reserves (which shall include retention, severance, systems establishment cost, excess pension charges, contract termination costs, including future lease commitments, costs related to start up, closure, relocation or consolidation of facilities, costs to relocate employees, consulting fees, one time information technology costs, one time branding costs and losses on the sale of excess fleet from closures); provided that the aggregate amount of such charges or reserves added to Consolidated EBITDA for any period pursuant to this clause (vi) (when taken together with any amounts added pursuant to clause (vii) below) shall not exceed 20% of Consolidated EBITDA for such period;
(vii)the amount of net cost savings and synergies projected by the Company in good faith to be realized (which shall be calculated on a pro forma basis as though such cost savings or synergies had been realized on the first day of such period), net of the amount of actual benefits realized during such period from such actions; provided that (A) such cost savings or synergies are reasonably identifiable and supportable, (B) such actions have been taken or are to be taken within 18 months after the date of determination to take such action and (C) the aggregate amount of any cost savings and synergies added pursuant to this clause (vii) (when taken together with any amounts added pursuant to clause (vi) above) shall not exceed 20% of Consolidated EBITDA for such period;
(viii)the amount of any loss attributable to non-controlling interests;
(ix)the amount of any loss on any Franchise Financing Disposition;
(x)any costs or expenses pursuant to any management or employee stock option or other equity‑related plan, program or arrangement, or other benefit plan, program or arrangement, or any equity subscription or equityholder agreement, to the extent funded with cash proceeds contributed to the capital of the Company by a Person other than the Company or a Subsidiary of the Company or an issuance of Capital Stock of the Company (other than Disqualified Stock);
(xi)all deferred financing costs written off and premiums paid in connection with any early extinguishment of any obligations under Hedge Agreements or other derivative instruments; and
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(xii)realized foreign exchange losses resulting from the impact of foreign currency changes on the valuation of assets or liabilities on the balance sheet of the Company and its Restricted Subsidiaries; less
(b)the sum of:
(i) non-cash items increasing Consolidated Net Income; and
(ii)all cash payments during such period relating to non-cash charges that were added back in determining Consolidated EBITDA for the most recent period of four consecutive Fiscal Quarters.
“Consolidated Income Tax Expense” means, for any period, the provision for federal, state, local and foreign taxes (whether or not paid, estimated or accrued) based on income, profits or capitalization (including penalties and interest, if any) of the Consolidated Parties for such period as determined on a consolidated basis in accordance with GAAP.
“Consolidated Interest Expense” means, for any period, without duplication, the sum of:
(a)the interest expense to the extent deducted in calculating Consolidated Net Income, net of any interest income, of the Consolidated Parties for such period as determined on a consolidated basis in accordance with GAAP, including:
(i)any amortization of debt discount;
(ii)the net payments made or received under interest rate Hedge Agreements (including any amortization of discounts);
(iii)the interest portion of any deferred payment obligation;
(iv)all commissions, discounts and other fees and charges owed with respect to letters of credit, bankers’ acceptance financing or similar facilities;
(v)all accrued interest;
(vi)interest in respect of Indebtedness of any other Person that has been guaranteed by any Consolidated Party, but only to the extent that such interest is actually paid by any such Consolidated Party;
(vii)non-cash interest expense; and
(viii)the interest expense attributable to Finance Lease Obligations, minus
(b)to the extent otherwise included in such interest expense referred to in clause (a) above, (u) amortization or write‑off of financing costs, (v) accretion or accrual of discounted liabilities not constituting Indebtedness, (w) any expense resulting from discounting of Indebtedness in conjunction with recapitalization or purchase accounting, (x) any “additional interest” in respect of
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registration rights arrangements for any securities and (y) any expensing of bridge, commitment and other financing fees, in each case under clauses (a) and (b), as determined on a consolidated basis in accordance with GAAP; provided that gross interest expense shall be determined after giving effect to any net payments made or received by the Consolidated Parties with respect to interest rate Hedge Agreements.
“Consolidated Net Income” means, for any period, the consolidated net income (or loss) of the Consolidated Parties determined on a consolidated basis in accordance with GAAP; provided that there shall be excluded from such net income (to the extent otherwise included therein), without duplication:
(a)any net income (loss) of any Person if such Person is not a Consolidated Party, except that (A) any Consolidated Party’s equity in the net income of any such Person for such period shall be included in such Consolidated Net Income up to the aggregate amount actually dividended or distributed or that (as determined by the Company in good faith, which determination shall be conclusive) could have been dividended or distributed by such Person during such period to a Consolidated Party as a dividend or other distribution (subject, in the case of a dividend or other distribution to a Restricted Subsidiary, to the limitations contained in clause (b) below), to the extent not already included therein, and (B) any Consolidated Party’s equity in the net loss of such Person shall be included to the extent of the aggregate Investment of any such Consolidated Party in such Person;
(b)any extraordinary, unusual or non-recurring gain, loss, expense or charge (including fees, expenses and charges associated with the Transactions or any merger, acquisition, disposition or consolidation after the Agreement Date or any accounting change);
(c)(i) the portion of net income of the Consolidated Parties allocable to minority interests in unconsolidated Persons or to Investments in Unrestricted Subsidiaries to the extent that cash dividends or distributions have not actually been received by the Consolidated Parties and (ii) the portion of net loss of the Consolidated Parties allocable to minority interests in unconsolidated Persons or to Investments in Unrestricted Subsidiaries shall be included to the extent of the aggregate investment of the Consolidated Parties in such Person;
(d)any gain or loss realized upon the sale, abandonment or other disposition of any asset of the Consolidated Parties (including pursuant to any sale/leaseback transaction) that is not sold, abandoned or otherwise disposed of in the ordinary course of business (as determined in good faith by the Company, which determination shall be conclusive) and (y) any gain or loss realized upon the disposal, abandonment or discontinuation of operations of the Consolidated Parties;
(e)the net income of any Consolidated Party to the extent that the declaration of dividends or similar distributions by that Consolidated Party of that income is not at the time permitted, directly or indirectly, by operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulations applicable to that Consolidated Party or its stockholders (other than (i) restrictions that have been waived or otherwise released, (ii) restrictions pursuant to this Agreement and (iii) restrictions in effect on the Agreement Date with respect to a Consolidated Party and other restrictions with respect to such Consolidated Party that
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taken as a whole are not materially less favorable to the Lenders than such restrictions in effect on the Agreement Date);
(f)any gain or loss realized as a result of the cumulative effect of a change in accounting principles;
(g)the write-off of any deferred financing costs and premiums costs incurred by the Company in connection with the refinancing or repayment of any Indebtedness;
(h)any net after-tax gain (or loss) attributable to the early repurchase, extinguishment or conversion of Indebtedness, obligations under Hedge Agreements or other derivative instruments (including any premiums paid);
(i)any non-cash income (or loss) related to the recording of the fair market value of any obligations under Hedge Agreements or any ineffectiveness recognized in earnings related to qualifying hedge transactions or the fair value of changes therein recognized in earnings for derivatives that do not qualify as hedge transactions, in each case, in respect of any obligations under Hedge Agreements;
(j)(i) any unrealized gains or losses in respect of any foreign exchange contract, currency swap agreement or other similar agreement with respect to currency values, and (ii) any ineffectiveness recognized in earnings related to qualifying hedge transactions or the fair value of changes therein recognized in earnings for derivatives that do not qualify as hedge transactions, in each case of this clause (ii), in respect of any obligations under Hedge Agreements;
(k)any non-cash compensation deduction as a result of any grant of stock or stock related instruments to employees, officers, directors or members of management;
(l)any income (or loss) from discontinued operations;
(m)any unrealized foreign currency translation or transaction gains or losses in respect of Indebtedness or other obligations of any Person denominated in a currency other than the functional currency of such Person;
(n)to the extent covered by insurance and actually reimbursed, or, so long as the Company has made a determination that there exists reasonable evidence that such amount will in fact be reimbursed by the insurer and only to the extent that such amount is (i) not denied by the applicable carrier in writing within 180 days and (ii) in fact reimbursed within 365 days of the date of such evidence (with a deduction for any amount so added back to the extent not so reimbursed within 365 days), expenses with respect to liability or casualty events or business interruption; provided that, to the extent included in Consolidated Net Income in a future period, reimbursements with respect to expenses excluded from the calculation of Consolidated Net Income pursuant to this clause (n) shall be excluded from Consolidated Net Income in such period up to the amount of such excluded expenses;
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(o)any non-cash charge, expense or other impact attributable to application of the purchase or recapitalization method of accounting (including the total amount of depreciation and amortization, cost of sales or other non-cash expense resulting from the write-up of assets to the extent resulting from such purchase or recapitalization accounting adjustments) noncash charges for deferred tax valuation allowances and noncash gains, losses, income and expenses resulting from fair value accounting required by the applicable standard under GAAP;
(p)any goodwill or other intangible asset impairment charge;
(q)effects of fair value adjustments in the merchandise inventory, property and equipment, goodwill, intangible assets, deferred revenue, deferred rent and debt line items in such Person’s consolidated financial statements pursuant to GAAP resulting from the application of acquisition accounting in relation to the Transactions or any consummated acquisition and the amortization or write-off or removal of revenue otherwise recognizable of any amounts thereof, net of taxes, shall be excluded or added back in the case of lost revenue;
(r)the amount of loss on sale of assets to a Subsidiary in connection with a Securitization Transaction;
(s)the amount of any restructuring charge or reserve, integration cost or other business optimization expense or cost (including charges related to the implementation of strategic or cost-savings initiatives), including any severance, retention, signing bonuses, relocation, recruiting and other employee-related costs, future lease commitments, and costs related to the opening and closure and/or consolidation of facilities and to existing lines of business; and
(t)accruals and reserves established within 12 months after the closing of any acquisition or investment required to be established as a result of such acquisition or investment in accordance with GAAP, or changes as a result of adoption or modification of accounting policies.
“Consolidated Non-cash Charges” means, for any period, the aggregate depreciation, amortization (including amortization of goodwill and other intangibles) and other non-cash expenses of the Consolidated Parties reducing Consolidated Net Income for such period, determined on a consolidated basis in accordance with GAAP (excluding any such charges constituting an extraordinary item or loss).
“Consolidated Parties” means the Company and each of its Restricted Subsidiaries whose financial statements are consolidated with the Company’s financial statements in accordance with GAAP.
“Consolidated Tangible Assets” means, as of any date of determination, the total assets less the sum of goodwill, net, and other intangible assets, net, in each case as reflected on the consolidated balance sheet of the Company and its Restricted Subsidiaries as at the end of the most recently completed fiscal quarter of the Company for which such a balance sheet is available, determined on a consolidated basis in accordance with GAAP (and, in the case of any determination relating to any incurrence of Indebtedness or Liens or any Investment, on a pro forma basis including any property or assets being acquired in connection therewith).
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“Contaminant” means any waste, pollutant, hazardous substance, toxic substance, hazardous waste, special waste, petroleum or petroleum-derived substance or waste, asbestos in any form or condition, polychlorinated biphenyls, or any constituent of any such substance or waste, or any other substance or material regulated under Environmental Law.
“Continuation/Conversion Date” means the date on which a Loan is converted into or continued as a Term SOFR Loan or BA EquivalentTerm XXXXX Loan, as applicable, or is converted into a Daily One Month SOFR Loan or a Daily Simple XXXXX Loan, as applicable.
“Control Agreement” has the meaning specified in Section 7.17(b).
“Copyrights” means all rights, title and interests (and all related IP Ancillary Rights) in or relating to copyrights, whether or not registered or published, all registrations and recordations thereof and all applications in connection therewith.
“XXXXX” means the Canadian Overnight Repo Rate Average administered and published by the Bank of Canada (or any successor administrator).
“Covenant Trigger” has the meaning specified in Section 8.9.
“Covenant Trigger Date” has the meaning specified in Section 8.9.
“Covenant Trigger Period” has the meaning specified in Section 8.9.
“Credit Card Notification” has the meaning specified in Section 7.17.
“CRA” means the Canada Revenue Agency.
“Credit Facilities” means revolving credit, swingline and letter of credit facilities provided for by this Agreement (which are the Multicurrency Credit Facilities and the U.S. Credit Facilities).
“Daily One Month SOFR” means for any day a fluctuating rate per annum equal to the Term SOFR Screen Rate for a 30-day interest period determined as of two (2) U.S. Government Securities Business Days prior to such day (or if such rate is not published prior to 11:00 a.m. on the determination date, the applicable Term SOFR Screen Rate on the U.S. Government Securities Business Day immediately preceding such date), plus the SOFR Adjustment; provided, that in no event shall Daily One Month SOFR be less than zero.
“Daily One Month SOFR Loan” means any U.S. Revolving Loan during any period for which it bears interest by reference to Daily One Month SOFR.
“Daily Simple XXXXX” means the rate per annum equal to XXXXX determined for any day pursuant to the definition thereof. Any change in Daily Simple XXXXX shall be effective from and including the date of such change without further notice.
“Daily Simple XXXXX Adjustment” means 0.32138% (32.138 basis points) per annum.
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“Daily Simple XXXXX Rate” means, for any day, with respect to any Loan or Letter of Credit denominated in Canadian Dollars, the rate per annum equal to Daily Simple XXXXX determined pursuant to the definition thereof plus the Daily Simple XXXXX Adjustment; provided that the Daily Simple XXXXX Rate shall not be less than 0.50% per annum.
“Daily Simple XXXXX Rate Loan” means a Loan denominated in Canadian Dollars that bears interest at a rate based on the Daily Simple XXXXX Rate.
“Daily Simple SOFR” means, with respect to any applicable determination date, the secured overnight financing rate published on the FRBNY website (or any successor source satisfactory to Agent).
“Default” means any event or circumstance which, with the giving of notice, the lapse of time, or both, would (if not cured, waived, or otherwise remedied during such time) constitute an Event of Default.
“Default Notice” has the meaning specified in Section 10.1(d).
“Default Rate” means a fluctuating per annum interest rate at all times equal to the sum of (a) the otherwise applicable Interest Rate plus (b) 2% per annum. Each Default Rate shall be adjusted simultaneously with any change in the applicable Interest Rate.
“Defaulting Lender” means any Lender that (a) has failed to perform any of its funding obligations hereunder, including in respect of its Loans or its participations in respect of Letters of Credit or Swingline Loans, within one Business Day of the date required to be funded by it hereunder, unless, with respect to the funding of any Loan, such Lender notifies the Agent and the Borrowers’ Agent in writing that such failure is the result of such Xxxxxx’s good faith determination that one or more conditions precedent to funding of such Loan has not been satisfied (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing), (b) has notified any Borrower or the Agent in writing that it does not intend to comply with its funding obligations or has made a public statement to that effect with respect to its funding obligations hereunder or under other agreements in which it commits to extend credit, (c) has failed, within three Business Days after written request by the Agent or the Borrowers’ Agent, to confirm in a manner satisfactory to the Agent or the Borrowers’ Agent, as the case may be, that it will comply with its funding obligations (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such confirmation in writing by the Agent and the Borrowers’ Agent), or (d) has, or has a direct or indirect parent company that (i) has become the subject of a proceeding under any of the federal Bankruptcy Code, the BIA, the CCAA, the Winding-up and Restructuring Act (Canada), the Canada Deposit Insurance Corporation Act (Canada) or under any other state, provincial, territorial, federal or other applicable jurisdictional bankruptcy or insolvency act or law, now or hereafter existing, (ii) has had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or a custodian appointed for it, (iii) has taken any action in furtherance of, or indicated its consent to, approval of or acquiescence in any such proceeding or appointment, (iv) is being subject to a forced liquidation or any Person that directly or indirectly controls such Lender is being subject to a forced liquidation, (v) is making a general assignment for the benefit of creditors
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or otherwise being adjudicated as, or determined by any Governmental Authority having regulatory authority over such Lender or its assets to be, insolvent or bankrupt or subject to a resolution regime or (vi) has become the subject of a Bail-In Action; provided that a Lender shall not be a Defaulting Lender (a) solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such equity interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender, or (b) solely by virtue of a so-called undisclosed administration (being the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official by a supervisory authority or regulatory under or based on the law in the country where such Lender or any person that directly or indirectly controls such Lender is subject to home jurisdiction supervision if applicable Law requires that such appointment is not to be publicly disclosed).
“Designated Bank Products Obligations” means all obligations and liabilities of any Borrower or any other Restricted Subsidiary in respect of Bank Products, except for any Bank Product for which the applicable Lender Counterparty and the applicable Borrower or other Restricted Subsidiary have agreed in a writing delivered to the Agent that the obligations and liabilities of the applicable Borrower or other Restricted Subsidiary under such Bank Product shall not be deemed “Designated Bank Products Obligations” for purposes of this Agreement.
“Designated Non-cash Consideration” means the Fair Market Value of non-cash consideration received by the Company or one of its Restricted Subsidiaries in connection with an Asset Disposition as determined in good faith by the Company.
“Designation Date” has the meaning specified in Section 2.6(f).
“Dilution” means, as of any date of determination, a percentage concerning dilution of Accounts of the Secured Obligors as set forth in the most recent field examination with respect to Eligible Accounts included in the U.S. Borrowing Base or the Canadian Borrowing Base, in each case without duplication of any exclusion from the definition of “Eligible Accounts,” during the 12 month period covered by such report.
“Dilution Reserve” means, as of any date of determination, an amount equal to (a) if Dilution is less than or equal to five percent (5%), $0, and (b) if Dilution is greater than five percent (5%), an amount sufficient to reduce the advance rate against Eligible Accounts set forth in the definition of U.S. Borrowing Base or Canadian Borrowing Base, as applicable, by one percentage point (1.00%) for each percentage point by which Dilution is in excess of five percent (5%).
“Disqualified Lender” means (a) any competitor of the Company or any of its Subsidiaries, identified in writing by the Borrowers’ Agent to the Agent from time to time, (b) such other Persons identified in writing by the Borrowers’ Agent to the Agent on or prior to the Agreement Date and (c) in the case of any Person under clauses (a) and (b), any of its Affiliates (other than any bona fide debt funds) that are either (i) readily identifiable solely on the basis of name or (ii) identified in writing to the Agent by the Borrowers’ Agent from time to time. The Agent shall provide a current list of
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Disqualified Xxxxxxx under clauses (a) and (b) and, to the extent identified in writing to the Agent by the Borrowers’ Agent, clause (c) to any Lender (other than a Disqualified Lender) upon written request for such list from such Lender.
“Disqualified Stock” means that portion of any Capital Stock (other than Management Stock) which, by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable at the option of the holder thereof), or upon the happening of any event (other than an event which would constitute a Change of Control or as a result of a sale of assets), matures (excluding any maturity as the result of an optional redemption by the issuer thereof) or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable at the sole option of the holder thereof (except, in each case, upon the occurrence of a Change of Control or as a result of a sale of assets) on or prior to the six-month anniversary of the latest maturity date with respect to any of the Obligations then applicable hereunder at the date of issuance of such Disqualified Stock.
“Distribution” means (a) the payment or making of any dividend or other distribution of property in respect of capital stock or other equity interests (or any options or warrants for, or other rights with respect to, such stock or other equity interests) of any Person, other than any such dividend or other distribution in capital stock or other equity interests (or any options or warrants for such stock or other equity interests) of any class other than Disqualified Stock, or (b) the direct or indirect redemption or other acquisition by any Person of any capital stock or other equity interests (or any options or warrants for such stock or other equity interests) of such Person or any direct or indirect shareholder or other equity holder of such Person, other than any such redemption or other acquisition in capital stock or other equity interests (or any options or warrants for such stock or other equity interests) of any class other than Disqualified Stock.
“Divided LLC” means any limited liability company which was formed upon, or is a party to and continues in existence after giving effect to, the consummation of an LLC Division.
“Documents” means all “documents” as such term is defined in the UCC and, with respect to any document of a Canadian Obligor, all “documents of title” as such term is defined in the PPSA, including bills of lading, warehouse receipts or other documents of title, now owned or hereafter acquired by any Borrower, any Guarantor or any of their respective Subsidiaries.
“Dollar” and “$” means dollars in the lawful currency of the United States. Unless otherwise specified, all payments under this Agreement shall be made in Dollars.
“Domestic Subsidiary” means any Subsidiary of the Company other than a Foreign Subsidiary.
“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clause (a) or (b) of this definition and is subject to consolidated supervision with its parent.
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“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Eligible Assignee” means (a) a commercial bank, commercial finance company or other asset-based lender, having total assets in excess of $2,000,000,000, that extends credit or buys commercial loans in the ordinary course of business; (b) any Lender listed on the signature page of this Agreement; (c) any Affiliate or branch of any Lender; (d) any Approved Fund; and (e) any other Person reasonably acceptable to the Agent; provided that in any event, “Eligible Assignee” shall not include (i) any natural Person, (ii) with respect to any Commitments or Loans, the Company or any Borrower or any Affiliate thereof, (iii) any Disqualified Lender (other than any Disqualified Lender otherwise agreed to by the Borrowers’ Agent in a writing delivered to the Agent), or (iv) any Defaulting Lender.
“Eligible Accounts” means Accounts that comply in all material respects with each of the representations and warranties respecting Eligible Accounts made in the Loan Documents, and that are not excluded as ineligible by virtue of one or more of the excluding criteria set forth below. In determining the amount to be included, Eligible Accounts shall be calculated net of related customer deposits (or any other customer deposit that such customer may set-off or apply against such Account) and related unapplied cash. Eligible Accounts shall not include the following:
(a)Accounts that the Account Debtor has failed to pay within 120 days of original invoice date; provided that notwithstanding the foregoing, up to $25,000,000 of Accounts on extended terms shall not be deemed ineligible under this clause so long as the Account Debtor has not failed to pay within 150 days of the original invoice date;
(b)Accounts owed by an Account Debtor (or its Affiliates) where 50% or more of the total amount of all Accounts owed by that Account Debtor (or its Affiliates) are deemed ineligible under clause (a) above;
(c)Accounts with respect to which the Account Debtor is (i) an Affiliate of any Obligor or (ii) an employee or agent of any Obligor or any Affiliate of such Obligor;
(d)Accounts arising in a transaction wherein goods are placed on consignment or are sold pursuant to a guaranteed sale, a sale or return, a sale on approval, a bill and hold, or any other terms by reason of which the payment by the Account Debtor may be conditional (other than, for the avoidance of doubt, a rental or lease basis);
(e)Accounts that are not payable in Dollars; provided that Eligible Canadian Accounts may be payable in Canadian Dollars;
(f)Accounts with respect to which the Account Debtor is a Person other than a Governmental Authority unless: (i) the Account Debtor (A) is a natural person with a billing address
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in the United States or Canada, (B) maintains its Chief Executive Office in the United States or Canada, or (C) is organized under the laws of the United States, Canada or any state, territory, province or subdivision thereof; or (ii) (A) the Account is supported by an irrevocable letter of credit satisfactory to the Agent, in its Reasonable Credit Judgment (as to form, substance, and issuer or domestic confirming bank), that has been delivered to the Agent and is directly drawable by the Agent, or (B) the Account is covered by credit insurance in form, substance, and amount, and by an insurer, satisfactory to the Agent, in its Reasonable Credit Judgment;
(g)Accounts with respect to which to the knowledge of the Company the Account Debtor is the government of any country or sovereign state (other than the United States and Canada), or of any state, province, municipality, or other political subdivision thereof, or of any department, agency, public corporation, or other instrumentality thereof, unless (i) the Account is supported by an irrevocable letter of credit satisfactory to the Agent in its Reasonable Credit Judgment (as to form, substance, and issuer or domestic confirming bank) that has been delivered to the Agent and is directly drawable by the Agent, or (ii) the Account is covered by credit insurance in form, substance, and amount, and by an insurer, satisfactory to the Agent in its Reasonable Credit Judgment;
(h)Accounts with respect to which to the knowledge of the Company the Account Debtor is (i) the federal government of Canada or any department, agency or instrumentality of Canada or (ii) the federal government of the United States or any department, agency or instrumentality of the United States (exclusive, however, of Accounts with respect to which the applicable Obligor has complied, to the reasonable satisfaction of the Agent, in the case of clause (i) with the Financial Administration Act (Canada), and, in the case of clause (ii), the Assignment of Claims Act of 1940 (31 USC Section 3727));
(i)(i) Accounts with respect to which the Account Debtor is a creditor of any Obligor or any Subsidiary of an Obligor, has or has asserted a right of setoff with respect to, or has disputed its obligation to, pay all or any portion of such Accounts, to the extent of such claim, right of setoff, or dispute and (ii) Accounts which are subject to a rebate that has been earned but not taken or a chargeback, to the extent of such rebate or chargeback;
(j)Accounts with respect to an Account Debtor whose total obligations owing to Borrowers exceed 15% of all Eligible Accounts, to the extent of the obligations owing by such Account Debtor in excess of such percentage; provided that in each case, the amount of Eligible Accounts that are excluded because they exceed the foregoing percentage shall be determined by the Agent based on all of the otherwise Eligible Accounts prior to giving effect to any eliminations based upon the foregoing concentration limit;
(k)Accounts with respect to which the Account Debtor is not Solvent, is subject to a proceeding related thereto, has gone out of business, or as to which an Obligor has received notice of an imminent proceeding related to such Account Debtor being or alleged to not be Solvent or which proceeding is reasonably likely to result in a material impairment of the financial condition of such Account Debtor unless (x) such Account is supported by an irrevocable letter of credit satisfactory to the Agent in its Reasonable Credit Judgment (as to form, substance, and issuer or domestic confirming bank) that has been delivered to the Agent and is directly drawable by the
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Agent or (y) such Account Debtor has received debtor-in-possession financing sufficient as determined by the Agent in its Reasonable Credit Judgment to finance its ongoing business activities and, solely with respect to Accounts that constitute prepetition claims, the Company or other Obligor is designated as a “critical vendor” of the Account Debtor;
(l)Accounts with respect to which the Account Debtor is located in a state, province or 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 Obligor has so qualified, filed such reports or forms, or taken such actions (and, in each case, paid any required fees or other charges). The foregoing shall not apply to the extent that the applicable Obligor may qualify subsequently as a foreign entity authorized to transact business in such state, province or jurisdiction and gain access to such courts, without incurring any cost or penalty viewed by the Agent, in its Reasonable Credit Judgment, to be material in amount, and such later qualification cures any access to such courts to enforce payment of such Account (including, for greater certainty, the requirement for a creditor to extra-provincially register in a province or territory of Canada for such purposes);
(m)Accounts, the collection of which the Agent, in its Reasonable Credit Judgment, believe to be doubtful by reason of the Account Debtor’s financial condition, upon notice thereof to the Company;
(n)Accounts that are not subject to a valid and perfected first priority Lien in favor of the Agent pursuant to a Security Document (as and to the extent provided therein) (it being agreed that in no event shall any Excluded Assets be deemed to be Eligible Accounts hereunder);
(o)Accounts that have not been billed to the Account Debtor; or
(p)Accounts that represent the right to receive progress payments or other advance xxxxxxxx that are due prior to the completion of performance by the applicable Obligor of the subject contract for goods or services.
“Eligible Canadian Accounts” means the Eligible Accounts owned by the Canadian Obligors.
“Eligible Canadian Rental Equipment” means the Eligible Rental Equipment owned by the Canadian Obligors.
“Eligible Canadian Service Vehicles” means the Eligible Service Vehicles owned by the Canadian Obligors.
“Eligible Canadian Spare Parts and Merchandise” means the Eligible Spare Parts and Merchandise owned by the Canadian Obligors.
“Eligible Rental Equipment” means (x) Rental Equipment of the Obligors or (y) equipment of the Obligors available for sale, in each case that complies in all material respects with each of the representations and warranties respecting Eligible Rental Equipment made in the Loan Documents,
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and that is not excluded as ineligible by virtue of one or more of the excluding criteria set forth below. An item of Rental Equipment shall not be included in Eligible Rental Equipment if:
(a)an Obligor does not have good and valid title thereto;
(b)it is not located in the United States or Canada;
(c)it is not subject to a valid and perfected first priority Lien in favor of the Agent pursuant to a Security Document (as and to the extent provided therein (it being agreed that in no event shall any Excluded Assets be deemed to be Eligible Rental Equipment hereunder)); provided that this clause (c) will not apply to Rental Equipment represented by a certificate of title or subject to the parenthetical at the end of clause (f) (such Rental Equipment being subject to clause (f) below);
(d)it consists of Spare Parts and Merchandise or Service Vehicles;
(e)it is reflected on the books and records of the Company and its Subsidiaries maintained in accordance with GAAP and consistently with the Company’s and its Subsidiaries’ then current practices as, or has been written off as, or is determined in the most recent appraisal to be, both (i) damaged or defective and (ii) not repairable; provided that (A) any item of Rental Equipment that is damaged or defective and repairable will not be Eligible Rental Equipment if the repair cost estimated by Company is greater than $1,000.00 (or such greater amount as determined by the Agent in its sole discretion) or the repair cost estimated by the Company is equal to or exceeds the Net Book Value thereof, (B) the amount included in the Borrowing Base for Eligible Rental Equipment that is damaged or defective and repairable shall be reduced by the aggregated estimated repair cost of all damaged or defective Eligible Rental Equipment that is included in the Borrowing Base as a result of satisfying these criteria and (C) the aggregate amount included in the Borrowing Base attributable to such damaged or defective and repairable Eligible Rental Equipment will not exceed 5% of the portion of the Borrowing Base based on Eligible Rental Equipment (calculated without including any portion of the damaged or defective and repairable Rental Equipment for this purpose); or
(f)it is U.S. Rental Equipment represented by a certificate of title unless for all periods after the 150-day period following the Closing Date (or such later date as shall be agreed to by the Agent in its sole discretion), an Obligor has caused the certificate of title for such Rental Equipment to be registered with the applicable Governmental Authority showing “Wilmington Trust, National Association, as Agent” (or a successor Agent in such capacity, or a trustee or agent reasonably acceptable to the Agent) as the lienholder thereon, such that such Rental Equipment is subject to a valid and perfected first priority Lien in favor of the Agent (or such certificate of title or the requisite application therefor has been submitted to the applicable Governmental Authority for such registration or for issuance of such certificate of title as so registered); provided for the avoidance of doubt that on or prior to the 150-day period following the Closing Date (or such later date as shall be agreed to by the Agent in its sole discretion), Rental Equipment shall be included in Eligible Rental Equipment notwithstanding this clause (f), and the eligibility criteria specified in this clause (f) shall not apply during such period.
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If any Rental Equipment at any time ceases to be Eligible Rental Equipment, such Rental Equipment shall promptly be excluded from the calculation of Eligible Rental Equipment. Notwithstanding the foregoing, the Agent may, from time to time, in the exercise of its Reasonable Credit Judgment, on not less than 10 Business Days’ prior notice to the Borrowers’ Agent, change the criteria for Eligible Rental Equipment as reflected on the Borrowing Base Certificate based on either (i) an event, condition or other circumstance arising after the Closing Date or (ii) an event, condition or other circumstance existing on the Closing Date to the extent the Agent had no knowledge thereof on or prior to the Closing Date, in either case under clause (i) or (ii), which adversely affects, or would reasonably be expected to adversely affect, Eligible Rental Equipment in any material respect as determined by the Agent in the exercise of its Reasonable Credit Judgment. Any such change in criteria shall have a reasonable relationship to the event, condition or other circumstance that is the basis for such change. Upon delivery of the notice of such change pursuant to the foregoing sentence, the Agent shall be available to discuss the proposed change, and the applicable Obligor may take such action as may be required so that the event, condition or circumstance that is the basis for such change no longer exists, in a manner and to the extent reasonably satisfactory to the Agent in the exercise of its Reasonable Credit Judgment.
“Eligible Service Vehicles” means Service Vehicles of the Obligors that comply in all material respects with each of the representations and warranties respecting Eligible Service Vehicles made in the Loan Documents, and that are not excluded as ineligible by virtue of one or more of the excluding criteria set forth below. A Service Vehicle shall not be included in Eligible Service Vehicles if:
(a)an Obligor does not have good and valid title thereto;
(b)it is not located in the United States or Canada;
(c)it is not subject to a valid and perfected first priority Lien in favor of the Agent pursuant to a Security Document (as and to the extent provided therein); provided that this clause (c) will not apply to Service Vehicles represented by a certificate of title or subject to the parenthetical at the end of clause (f) (such Service Vehicle being subject to clause (f) below); provided, further, that with respect to Service Vehicles of any Canadian Obligor, this clause (c) will not apply if it is necessary to enhance perfection of the Agent’s Lien on such Vehicles by describing the vehicle identification number so long as there is no competing PPSA registration that does so;
(d)it is reflected on the books and records of the Company and its Subsidiaries maintained in accordance with GAAP and consistently with the Company’s and its Subsidiaries' then current practices as, or has been written off as, or is determined in the most recent appraisal to be, both (i) damaged or defective and (ii) not repairable; provided that (A) any Service Vehicle that is damaged or defective and repairable will not be an Eligible Service Vehicle if the repair cost estimated by Company is greater than $1,000.00 (or such greater amount as determined by the Agent in its sole discretion) or the repair cost estimated by the Company is equal to or exceeds the Net Book Value thereof, (B) the amount included in the Borrowing Base for Eligible Service Vehicles that are damaged or defective and repairable shall be reduced by the aggregated estimated repair cost of all damaged or defective Eligible Service Vehicles that are included in the Borrowing Base as a result of satisfying these criteria and (C) the aggregate amount included in the Borrowing Base
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attributable to such damaged or defective and repairable Eligible Service Vehicles will not exceed 5% of the portion of the Borrowing Base based on Eligible Service Vehicles (calculated without including any portion of the damaged or defective and repairable Service Vehicle for this purpose);
(e)it is not reflected in the records of an Obligor regularly maintained for recording the existence of Service Vehicles; or
(f)it is a Service Vehicle owned by a U.S. Obligor represented by a certificate of title unless for all periods after the 150-day period following the Closing Date (or such later date as shall be agreed to by the Agent in its sole discretion), an Obligor has caused the certificate of title for such Service Vehicle to be registered with the applicable Governmental Authority showing “Wilmington Trust, National Association, as Agent” (or a successor Agent in such capacity, or a trustee or agent reasonably acceptable to the Agent) as the lienholder thereon, such that such Service Vehicle is subject to a valid and perfected first priority Lien in favor of the Agent (or such certificate of title or the requisite application therefor has been submitted to the applicable Governmental Authority for such registration or for issuance of such certificate of title as so registered); provided, for the avoidance of doubt, that on or prior to the 150-day period following the Closing Date (or such later date as shall be agreed to by the Agent in its sole discretion), Service Vehicles shall be included in Eligible Service Vehicles notwithstanding this clause (f), and the eligibility criteria specified in this clause (f) shall not apply during such period.
If any Service Vehicle at any time ceases to be Eligible Service Vehicle, such Service Vehicle shall promptly be excluded from the calculation of Eligible Service Vehicles. Notwithstanding the foregoing, the Agent may, from time to time, in the exercise of its Reasonable Credit Judgment, on not less than 10 Business Days’ prior notice to the Borrowers’ Agent, change the criteria for Eligible Service Vehicle as reflected on the Borrowing Base Certificate based on either (i) an event, condition or other circumstance arising after the Closing Date or (ii) an event, condition or other circumstance existing on the Closing Date to the extent the Agent had no knowledge thereof on or prior to the Closing Date, in either case under clause (i) or (ii), which adversely affects, or would reasonably be expected to adversely affect, Eligible Service Vehicles in any material respect as determined by the Agent in the exercise of its Reasonable Credit Judgment. Any such change in criteria shall have a reasonable relationship to the event, condition or other circumstance that is the basis for such change. Upon delivery of the notice of such change pursuant to the foregoing sentence, the Agent shall be available to discuss the proposed change, and the applicable Obligor may take such action as may be required so that the event, condition or circumstance that is the basis for such change no longer exists, in a manner and to the extent reasonably satisfactory to the Agent in the exercise of its Reasonable Credit Judgment.
“Eligible Spare Parts and Merchandise” means Spare Parts and Merchandise of the Obligors that comply in all material respects with each of the representations and warranties respecting Eligible Spare Parts and Merchandise made in the Loan Documents and that are not excluded as ineligible by virtue of one or more of the excluding criteria below. Any piece of Spare Parts and Merchandise shall not be included in Eligible Spare Parts and Merchandise if:
(a)an Obligor does not have good and valid title thereto;
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(b)it is not located within the United States or Canada;
(c)it is reflected on the books and records of the Company and its Subsidiaries maintained in accordance with GAAP and consistently with the Company’s and its Subsidiaries’ then current practices as, or has been written off as, damaged or defective and not repairable;
(d)it is not reflected in the records of an Obligor regularly maintained for recording the existence of Spare Parts and Merchandise; or
(e)it is not subject to a valid and perfected first priority Lien in favor of the Agent, as applicable, pursuant to a Security Document (as and to the extent provided therein).
If any Spare Parts and Merchandise at any time ceases to be Eligible Spare Parts and Merchandise, such Spare Parts and Merchandise shall promptly be excluded from the calculation of Eligible Spare Parts and Merchandise. Notwithstanding the foregoing, the Agent may, from time to time, in the exercise of its Reasonable Credit Judgment, on not less than 10 Business Days’ prior notice to the Borrowers’ Agent, change the criteria for Eligible Spare Parts and Merchandise as reflected on the Borrowing Base Certificate based on either (i) an event, condition or other circumstance arising after the Closing Date or (ii) an event, condition or other circumstance existing on the Closing Date to the extent the Agent had no knowledge thereof on or prior to the Closing Date, in either case under clause (i) or (ii), which adversely affects, or would reasonably be expected to adversely affect, Spare Parts and Merchandise in any material respect as determined by the Agent in the exercise of its Reasonable Credit Judgment. Any such change in criteria shall have a reasonable relationship to the event, condition or other circumstance that is the basis for such change. Upon delivery of the notice of such change pursuant to the foregoing sentence, the Agent shall be available to discuss the proposed change, and the applicable Obligor may take such action as may be required so that the event, condition or circumstance that is the basis for such change no longer exists, in a manner and to the extent reasonably satisfactory to the Agent in the exercise of its Reasonable Credit Judgment.
“Eligible Unbilled Accounts” means Accounts (which are Eligible Accounts except for their failure to comply with clause (o) of the definition of “Eligible Accounts”) (a) which have not been billed but for which services have been rendered, (b) which have not been billed solely because either (i) the services were rendered pursuant to a customer agreement which provides for monthly billing at a date other than month-end, or (ii) the services were rendered pursuant to a customer agreement which provides for billing at the completion of the rental term, and such rental term has not yet ended, and (c) which shall be billed not more than 30 days after such Account is first included on the Borrowing Base Certificate or otherwise reported to the Agent as Collateral.
“Eligible Unbilled Canadian Accounts” means the Eligible Unbilled Accounts owned by
the Canadian Obligors.
“Eligible Unbilled U.S. Accounts” means the Eligible Unbilled Accounts owned by the U.S. Obligors.
“Eligible U.S. Accounts” means the Eligible Accounts owned by the U.S. Obligors.
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“Eligible U.S. Rental Equipment” means the Eligible Rental Equipment owned by the U.S. Obligors.
“Eligible U.S. Service Vehicles” means the Eligible Service Vehicles owned by the U.S. Obligors.
“Eligible U.S. Spare Parts and Merchandise” means the Eligible Spare Parts and
Merchandise owned by the U.S. Obligors.
“Employee Matters Agreement” means the Employee Matters Agreement, dated as of June 30, 2016, by and between Hertz Global Holdings, Inc. and the Company.
“Environmental Laws” means all applicable federal, state, provincial or local or foreign laws, statutes, common law duties, rules, regulations, ordinances and codes, together with all administrative orders, enforceable requirements, judgments, injunctions, licenses, authorizations, consents, registrations, approvals, permits of, and agreements with, any Governmental Authority, in each case in connection with (i) environmental matters (including Releases of Contaminants) or (ii) to the extent relating to exposure to Contaminants, health matters.
“Equipment” means all of each Obligor’s and each of its Subsidiary’s now owned or hereafter acquired machinery, equipment, furniture, furnishings, fixtures, and other tangible personal property (except Inventory), including embedded software, service and delivery vehicles with respect to which a certificate of title has been issued, aircraft, dies, tools, jigs, molds and office equipment, as well as all of such types of property leased by any Obligor or any of its Subsidiaries, and all of each Obligor’s and each of its Subsidiary’s rights and interests with respect thereto under such leases (including options to purchase); together with all present and future additions and accessions thereto, replacements therefor, component and auxiliary parts and supplies used or to be used in connection therewith, and all substitutes for any of the foregoing, and all manuals, drawings, instructions, warranties and rights with respect thereto; wherever any of the foregoing is located.
“Equipment Securitization Transaction” means any sale, assignment, pledge or other transfer (a) by the Company or any Subsidiary of the Company of rental fleet equipment, (b) by any ES Special Purpose Vehicle of leases or rental agreements between the Company and/or any Subsidiary of the Company, as lessee, on the one hand, and such ES Special Purpose Vehicle, as lessor, on the other hand, relating to such rental fleet equipment and lease receivables arising under such leases and rental agreements and (c) by the Company or any Subsidiary of the Company of any interest in any of the foregoing, together in each case with (i) any and all proceeds thereof (including all collections relating thereto, all payments and other rights under insurance policies or warranties relating thereto, all disposition proceeds received upon a sale thereof, and all rights under manufacturers’ repurchase programs or guaranteed depreciation programs relating thereto), (ii) any collection or deposit account relating thereto and (iii) any collateral, guarantees, credit enhancement or other property or claims supporting or securing payment on, or otherwise relating to, any such leases, rental agreements or lease receivables; provided that notwithstanding anything to the contrary contained in this Agreement, (A) the aggregate amount of the book value (or in the case of Rental Equipment, Service Vehicles or Spare Parts and Merchandise, Net Book Value) of all such properties or assets of any Obligor sold, assigned, pledged or otherwise transferred pursuant to such arrangements shall not
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exceed $510,000,000 in the aggregate during the term of this Agreement and (B) the properties or assets transferred in connection with any Equipment Securitization Transaction shall consist of the types described in this definition.
“Equivalent Amount” means, on any date, the amount of Dollars into which an amount of Cdn. Dollars or any other Alternative Currency, as applicable, may be converted or the amount of Cdn. Dollars or any other Alternative Currency, as applicable, into which an amount of Dollars may be converted, in any case, (a) at the exchange rate reported by Bloomberg (or other commercially available source designated by the Agent from time to time) as of approximately 12:00 noon, New York City time, or (b) if such report is unavailable for any reason, the spot rate for the purchase of the first currency with the second currency as in effect during the preceding business day in the Agent’s principal foreign exchange trading office for the first currency, on such date, in each case rounded to the nearest unit of the applicable currency, with 0.5 of a unit being rounded upward.
“ERISA” means the Employee Retirement Income Security Act of 1974, as the same may be amended from time to time and any final regulations promulgated and the rulings issued thereunder.
“ERISA Affiliate” means any trade or business (whether or not incorporated) under common control with any Borrower within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).
“ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) any failure by a Pension Plan to satisfy the minimum funding standard (within the meaning of Section 412 of the Code or Section 302 of ERISA) applicable to such Pension Plan, in each case whether or not waived; (c) the filing pursuant to Section 412(c) of the Code or Section 302(c) of ERISA, of an application for a waiver of the minimum funding standard with respect to a Pension Plan; (d) a determination that a Pension Plan is in “at-risk” status (as defined in Section 303(i)(4) of ERISA or Section 430(i)(4) of the Code); (e) a withdrawal by any Borrower or ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations which is treated as such a withdrawal under Section 4062(e) of ERISA; (f) a complete or partial withdrawal by any Borrower or ERISA Affiliate from a Multi-employer Plan; (g) the filing of a notice of intent to terminate, the treatment of a Plan amendment as a termination under Section 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multi-employer Plan; (h) the occurrence of an event or condition which might reasonably be expected to constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multi-employer Plan; (i) the Borrowers or any of their Subsidiaries engaging in a non-exempt “prohibited transaction” with respect to which any Borrower or any of its Subsidiaries is a “disqualified person” (within the meaning of Section 4975 of the Code), or with respect to which such Borrower or any such Subsidiary could otherwise be liable; or (j) the imposition of any material liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon any Borrower or ERISA Affiliate.
“ESG” has the meaning specified in Section 2.10.
“ESG Amendment” has the meaning specified in Section 2.10.
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“ESG Pricing Provisions” has the meaning specified in Section 2.10.
“ES Special Purpose Vehicle” means a trust, bankruptcy remote entity or other special purpose entity which is a Subsidiary of the Company (or, if not a Subsidiary of the Company, the common equity of which is wholly owned, directly or indirectly, by the Company) and which is formed for the purpose of, and engages in no material business other than, acting as a lessor, issuer or depositor in an Equipment Securitization Transaction (and, in connection therewith, owning the rental fleet equipment, leases, rental agreements, lease receivables, rights to payment and other interests, rights and assets described in the definition of “Equipment Securitization Transaction”, and pledging or transferring any of the foregoing or interests therein).
“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.
“EU Insolvency Regulation” means the Council of the European Union Regulation 2015/848 on insolvency proceedings.
“Event of Default” has the meaning specified in Section 10.1.
“Excess Availability” means, at any time (a) the lesser of (i) the Maximum Revolver Amount and (ii) the Combined Borrowing Base, minus (b) the Aggregate Revolver Outstandings, in each case at such time.
“Exchange Act” means the Securities Exchange Act of 1934 and regulations promulgated thereunder.
“Excluded Account” means any deposit account of an Obligor that is an Excluded Asset as defined in Section 3.3 of the U.S. GCA.
“Excluded Subsidiary” means any (a) Subsidiary of a Foreign Subsidiary other than any Canadian or Domestic Subsidiary of a Canadian Subsidiary, (b) Unrestricted Subsidiary, (c) Immaterial Subsidiary, (d) Domestic Subsidiary or Canadian Subsidiary that, at the time such Subsidiary becomes a Restricted Subsidiary (and for so long as such restriction or any replacement or renewal thereof is in effect), is prohibited by any applicable contractual obligation or Requirement of Law from guaranteeing or granting Liens to secure the Obligations hereunder or if guaranteeing or granting Liens to secure the Obligations hereunder would require governmental (including regulatory) consent, approval, license or authorization unless such consent, approval, license or authorization has been received, (e) joint venture or Subsidiary that is not a Wholly Owned Subsidiary (it being agreed that it shall be a condition for any such Subsidiary that was a Wholly Owned Subsidiary to become an Excluded Subsidiary that either (i) at the time it became a non-Wholly Owned Subsidiary none of its assets comprised part of the Borrowing Base or (ii) at the time it becomes (after giving effect to it becoming) an Excluded Subsidiary no Out-of-Formula Condition would exist), (f) Subsidiary formed solely for the purpose of merging or amalgamating with another Person in connection with a Permitted Acquisition or other Permitted Investment by the Company or another Obligor, or (g) Domestic Subsidiary or Canadian Subsidiary with respect to which, in the reasonable judgment of the Agent (or, in the case of adverse tax consequences, the Borrowers’
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Agent) (confirmed in writing by notice to the Borrowers’ Agent or the Agent, as applicable), the cost or other consequences (including any adverse tax consequences) of providing a Guarantee of the Obligations hereunder shall be excessive in view of the benefits to be obtained by the Lenders therefrom; provided that any Subsidiary that fails to meet the requirement in clause (c) as of the last day of the most recent four consecutive Fiscal Quarters for which consolidated financial statements of the Consolidated Parties are available shall continue to be deemed an Excluded Subsidiary hereunder until the date that is 60 days following the date on which such financial statements were required to be delivered pursuant to Section 7.2 with respect to such period; provided, further, that in no event shall the Company be an Excluded Subsidiary.
“Excluded Swap Obligation” means, with respect to any Guarantor (in its capacity as a guarantor), any Swap Obligation if, and to the extent that, all or a portion of the Guarantee of such Guarantor of, or the grant by such Guarantor of a security interest to secure, such Swap Obligation (or any Guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder (determined after giving effect to any keepwell, support or other agreement for the benefit of such Guarantor) at the time the Guarantee of such Guarantor or the grant of such security interest becomes effective with respect to such Swap Obligation. If a Swap Obligation arises under an agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such Guarantee or security interest is or becomes illegal.
“Excluded Taxes” means, in the case of each Lender and the Agent and each other recipient of any payment to be made on account of the Obligations, (a) Taxes (including income Taxes, capital or franchise Taxes or other Taxes on net income) as are imposed on or measured by the Agent’s, such Xxxxxx’s or such recipient’s overall net income or capital in the jurisdiction (whether federal, state or local and including any political subdivision thereof) under the laws of which the Agent or such Lender or such recipient, as the case may be, is organized or maintains a lending office from which the Loans are made or does business, (b) any branch profits Taxes imposed by the United States of America or any similar Tax imposed by any other jurisdiction in respect of which the applicable recipient, as the case may be, is subject to income or franchise Taxes imposed on (or measured by) its net income, (c) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes that are Other Connection Taxes, (d) any U.S. federal withholding Tax that is imposed on amounts payable to or for the account of a Lender, in each case, with respect to an applicable interest in an Obligation pursuant to a law in effect on the date on which (i) such Lender becomes a party hereto (other than pursuant to any assignment request by the Borrowers under Section 5.10 or Section 12.1(b)) or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 5.1, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office (and in each case assuming the completion of any necessary procedural formalities), (e) any withholding Tax that is attributable to a Lender’s failure to comply with Section 5.1(f), (f) any withholding Tax payable under Part XIII of the Income Tax Act (Canada) that is imposed on amounts payable to or for the account of a Lender
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as a consequence of the Lender (i) not dealing at arm’s length (within the meaning of the Income Tax Act (Canada)) with the payer at the time of such payment, or (ii) any withholding Tax payable under Part XIII of the Income Tax Act (Canada) that is imposed on amounts payable to or for the account of a Lender as a consequence of the Lender being, at any time, a “specified non-resident shareholder” (within the meaning of sub-section 18(5) of the Income Tax Act (Canada)) of any Canadian Borrower, or, at any time, not dealing at arm’s length (within the meaning of the Income Tax Act (Canada)) with a “specified shareholder” (within the meaning of sub-Section 18(5) of the Income Tax Act (Canada)) of any Canadian Borrower, except in the case of (i) or (ii) above, where the non-arm’s length relationship arises, or where the Lender is (or is deemed to be) a “specified shareholder”, in each case, on account of the Lender having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, or enforced this Agreement or any other Loan Document, and (g) any withholding Taxes imposed under FATCA.
“Existing Citibank Loan Agreement” has the meaning specified in the recitals to this Agreement.
“Existing Commitment” has the meaning specified in Section 2.6(a).
“Existing Credit Agreement” means this Agreement as in effect immediately prior to the effectiveness of Amendment No. 1.
“Existing Lender” has the meaning specified in Section 1.10(c).
“Existing Lender Assignment” has the meaning specified in Section 1.10(c).
“Existing Loans” has the meaning specified in Section 2.6(a).
“Existing Securitization Facility” means the receivables facility established pursuant to the Purchase and Contribution Agreement, dated as of September 17, 2018, among Herc Rentals Inc., as seller and collection agent, Cinelease, Inc., as seller, and Herc Receivables U.S. LLC, as purchaser, and the Receivables Financing Agreement, dated as of September 17, 2018, among Herc Receivables U.S. LLC, the Company, the lenders and managing agents from time to time party thereto and Credit Agricole Corporate and Investment Bank, as administrative agent, as amended, modified or supplemented from time to time.
“Existing Tranche” has the meaning specified in Section 2.6(a).
“Extended Commitments” has the meaning specified in Section 2.6(a).
“Extended Loans” has the meaning specified in Section 2.6(a).
“Extending Lender” has the meaning specified in Section 2.6(b).
“Extension Amendment” has the meaning specified in Section 2.6(c).
“Extension Date” has the meaning specified in Section 2.6(d).
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“Extension Election” has the meaning specified in Section 2.6(b).
“Extension Request” has the meaning specified in Section 2.6(a).
“Fair Market Value” means, with respect to any asset, the fair market value of such asset as determined by the board of directors (or the equivalent governing body) of the Company in good faith, whose determination shall be conclusive and, in the case of assets with a Fair Market Value in excess of $500,000,000, evidenced by a resolution of the board of directors of the Company.
“FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version if substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and implementing such Sections of the Code.
“FCPA” means the Foreign Corrupt Practices Act of 1977.
“Federal Funds Rate” means, for any day, the rate per annum equal to (a) the weighted average of interest rates on overnight federal funds transactions with members of the Federal Reserve System on such day (or on the preceding Business Day, if such day is not a Business Day), as published by FRBNY on the next Business Day; or (b) if no such rate is published on the next Business Day, the average rate (rounded upward to the next 1/100th of 1%) charged to the U.S. Bank on such day on such transactions, as determined by the Agent.
“Federal Reserve Board” means the Board of Governors of the Federal Reserve System or any successor thereto.
“Fee Letter” means one or more fee letters among Bank of America, N.A. and/or an Arranger, the Company and/or any Borrower, with respect to the payment of certain fees in connection with this Agreement.
“Finance Lease” means, as applied to any Person, any lease of any property (whether real, personal or mixed) by such Person as lessee that, in conformity with GAAP (but subject to Section 1.2(c)), is or should be accounted for as a finance lease on the balance sheet of that Person.
“Finance Lease Obligation” means, with respect to any Finance Lease of any Person, the amount of the obligation of the lessee thereunder that, in accordance with GAAP, would appear on a balance sheet of such lessee in respect of such Finance Lease; provided, that the amount of obligations attributable to any Finance Lease shall exclude any capitalized operating lease liabilities resulting from the adoption of ASC 842, Leases.
“Financial Statements” means, according to the context in which it is used, the financial statements referred to in Sections 6.5 and 7.2.
“Fiscal Quarter” means the period commencing on January 1 in any Fiscal Year and ending on the next succeeding March 31, the period commencing on April 1 in any Fiscal Year and ending
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on the next succeeding June 30, the period commencing on July 1 in any Fiscal Year and ending on the next succeeding September 30, or the period commencing on October 1 in any Fiscal Year and ending on the next succeeding December 31, as the context may require.
“Fiscal Year” means the Company’s, each Borrower’s, each Guarantor’s and their Subsidiaries’ fiscal year for financial accounting purposes. As of the Agreement Date, the current Fiscal Year of the Company, the other Obligors and their Subsidiaries will end on December 31, 2019.
“Fixed Charge Coverage Ratio” means the ratio of:
(a)(i) Consolidated EBITDA for the most recent period of four consecutive Fiscal Quarters for which financial information in respect thereof is available minus (ii) the unfinanced portion of all Capital Expenditures (excluding any Capital Expenditure made in an amount equal to all or part of the cash proceeds, of (x) any casualty insurance, condemnation or eminent domain or (y) any sale of assets of the Company and its Restricted Subsidiaries (other than to the Company or any of its Restricted Subsidiaries) during such period); to
(b)the sum, without duplication, of (i) Consolidated Interest Expense for such period paid or payable in cash (other than (w) fees and expenses associated with entering into this Agreement and the other Transactions and any agency fees, (x) costs associated with obtaining, or breakage costs in respect of, Hedge Agreements, (y) fees and expenses associated with any Permitted Acquisitions, Permitted Investments, mergers, consolidations or amalgamations, the issuance of Capital Stock or the incurrence of Indebtedness, in each case permitted under this Agreement (in each case, whether or not the applicable Permitted Acquisition, Permitted Investment, merger, consolidation, amalgamation, issuance of Capital Stock or incurrence of Indebtedness is consummated) and (z) amortization of deferred financing costs), net of interest income, plus (ii) the aggregate amount of Federal, state, local and foreign income, capital or profits taxes, including foreign withholding taxes, expensed during such period to the extent paid in cash (net of refunds received during such period), in each case, of or by the Company and its Subsidiaries for such period including any cash Distribution made to the Company to permit the Company to pay such taxes, plus (iii) the aggregate principal amount of all regularly scheduled principal or amortization payments on Indebtedness for borrowed money of the Company and its Subsidiaries for such period paid or payable in cash (other than prepaid amounts, payments due at maturity, payment in respect of intercompany debt or any payments with respect thereto paid in cash from the proceeds of any refinancing thereof), plus (iv) the aggregate amount of scheduled mandatory payments on account of Disqualified Stock of the Company and its Restricted Subsidiaries (other than any Special Purpose Vehicle) (whether in the nature of dividends, redemption, repurchase or otherwise) required to be made during such period, in each case determined on a consolidated basis in accordance with GAAP.
“Foreign Lender” means (a) if the Borrower is a U.S. Person, a Lender that is not a U.S. Person, and (b) if the Borrower is not a U.S. Person, a Lender that is resident or organized under the laws of a jurisdiction other than that in which the Borrower is resident for tax purposes.
“Foreign Subsidiary” means any Subsidiary of the Company that is formed under the laws of a jurisdiction other than a State of the United States or the District of Columbia. For the avoidance
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of doubt, any Subsidiary of the Company which is organized and existing under the Laws of Puerto Rico or any other territory of the United States of America shall be a Foreign Subsidiary.
“Foreign Subsidiary Holding Company” means any Domestic Subsidiary the primary assets of which consist of Capital Stock in (a) one or more Foreign Subsidiaries or (b) one or more Foreign Subsidiary Holding Companies.
“Franchise Equipment” means (a) any Franchise Vehicles and (b) any equipment owned by or leased to any Franchisee that is revenue earning equipment, or is of a type that would be classified as “revenue earning equipment” in the consolidated financial statements of the Company, including any such equipment consisting of (i) construction, industrial, commercial and office equipment, (ii) earthmoving, material handling, compaction, aerial and electrical equipment, (iii) air compressors, pumps and small tools and (iv) other personal property.
“Franchise Equipment Indebtedness” means as of any date of determination (a) Indebtedness of any Franchise Special Purpose Entity directly or indirectly incurred to finance or refinance the acquisition of, or secured by, Franchise Equipment and/or related rights and/or assets, (b) Indebtedness of any Franchisee or any Affiliate thereof that is attributable to the financing or refinancing of Franchise Equipment and/or related rights and/or assets, as determined in good faith by the Company and (c) Indebtedness of any Franchisee.
“Franchise Financing Disposition” means any sale, transfer, conveyance or other disposition of, or creation or incurrence of any Lien on, property or assets by the Company or any Subsidiary thereof to or in favor of any Franchise Special Purpose Entity, in connection with the incurrence by a Franchise Special Purpose Entity of Indebtedness, or obligations to make payments to the obligor on Indebtedness, which may be secured by a Lien in respect of such property or assets.
“Franchise Lease Obligation” means any Finance Lease, and any other lease, of any Franchisee relating to any property used, occupied or held for use or occupation by any Franchisee in connection with any of its Franchise Equipment operations.
“Franchise Special Purpose Entity” means any Person (a) that is engaged in the business of (i) acquiring, selling, collecting, financing or refinancing accounts receivable, accounts (as defined in the UCC, PPSA, or similar law, as in effect in any jurisdiction from time to time), other accounts and/or other receivables, and/or related assets, and/or (ii) acquiring, selling, leasing, financing or refinancing Franchise Equipment, and/or related rights (including under leases, manufacturer warranties and buy-back programs, and insurance policies) and/or assets (including managing, exercising and disposing of any such rights and/or assets) and (b) is designated in writing to Agent as a “Franchise Special Purpose Entity” by the Company.
“Franchise Vehicles” means vehicles owned or operated by, or leased or rented to or by, any Franchisee, including automobiles, trucks, tractors, trailers, vans, sport utility vehicles, buses, campers, motor homes, motorcycles and other motor vehicles.
“Franchisee” means any Person that is a franchisee or licensee of the Company or any of its Subsidiaries (or of any other Franchisee), or any Affiliate of such Person.
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“FRBNY” means the Federal Reserve Bank of New York.
“FSRA” means the Financial Services Regulatory Authority of Ontario or any other Governmental Authority of another jurisdiction in Canada exercising similar functions in respect of any Canadian Pension Plans of a Canadian Obligor.
“Full Payment” or “Full Payment of the Obligations” means (a) the payment in full in cash or immediately available funds (except for (i) contingent indemnities and cost and reimbursement obligations, in each case, to the extent no claim has been made, (ii) Obligations under Hedge Agreements that have been novated or collateralized, to the extent required by the terms thereof or as otherwise reasonably acceptable to the applicable counterparty and the Agent and (iii) Cash Management Obligations and Designated Bank Products Obligations, to the extent such Cash Management Obligations or Designated Bank Products Obligations, as the case may be, are not then due) of all Obligations then outstanding, if any, (b) with respect to Letters of Credit outstanding, delivery of cash collateral or backstop letters of credit in respect thereof in the manner and as otherwise required under Section 2.4(g) and (c) the termination or expiration of all Commitments and any Refinancing Term Commitments.
“Funding Date” means the date on which a Borrowing occurs.
“GAAP” means generally accepted accounting principles in the United States of America as in effect from time to time, including those set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board (or, if applicable in the case of the Canadian Subsidiaries, such generally accepted accounting principles and practices set forth from time to time in Canada by Chartered Professional Accountants of Canada) or in such other statements by such other entity as approved by a significant segment of the accounting profession, subject to Section 1.2(b).
“General Intangibles” means all of each Obligor’s now owned or hereafter acquired “general intangibles” as defined in the UCC or, with respect to any General Intangible of a Canadian Obligor, an “intangible” as defined in the PPSA, choses in action and causes of action and all other intangible personal property of each Obligor of every kind and nature (other than Accounts), including all contract rights, payment intangibles, Intellectual Property, corporate or other business records, inventions, designs, blueprints, plans, specifications, computer software, customer lists, registrations, licenses, franchises, Tax refund claims, any funds which may become due to any Obligor in connection with the termination of any Plan or other employee benefit plan or any rights thereto and any other amounts payable to any Obligor from any Plan or other employee benefit plan, rights and claims against carriers and shippers, rights to indemnification, business interruption insurance and proceeds thereof, property, casualty or any similar type of insurance and any proceeds thereof, proceeds of insurance covering the lives of key employees on which any Obligor is beneficiary, rights to receive dividends, distributions, cash, Instruments and other property in respect of or in exchange for pledged equity interests or Investment Property and any letter of credit, guarantee, claim, security interest or other security held by or granted to any Obligor.
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“Goods” means all “goods” as defined in the UCC or, with respect to any goods of a Canadian Obligor, the PPSA, now owned or hereafter acquired by any Obligor, wherever located, including embedded software to the extent included in “goods” as defined in the UCC, and manufactured homes.
“Governmental Authority” means any nation or government, any state, provincial, territorial or other political subdivision thereof, any central bank (or similar monetary or regulatory authority) thereof and any governmental entity exercising executive, legislative, judicial, taxing, regulatory or administrative functions of or pertaining to government, including the European Union.
“Guarantee” means any obligation, contingent or otherwise, of any Person directly or indirectly guaranteeing any Indebtedness of any other Person; provided that the term “Guarantee” shall not include endorsements for collection or deposit in the ordinary course of business.
“Guarantee Agreements” mean the U.S. GCA and the Canadian GCA.
“Guarantors” means (a) the U.S. Guarantors, (b) the Canadian Guarantors, and (c) each other Person, who, in a writing received by the Agent, guarantees payment or performance in whole or in part of any of the Obligations.
“Hedge Agreement” means any and all transactions, agreements or documents now existing or hereafter entered into, which provides for an interest rate, credit, commodity or equity swap, cap, floor, collar, forward foreign exchange transaction, currency swap, cross currency rate swap, currency option, or any combination of, or option with respect to, these or similar transactions, for the purpose of managing any Borrower’s or any other Restricted Subsidiary’s exposure to fluctuations in interest or exchange rates, loan, credit exchange, security or currency valuations or commodity prices.
“Herc Rentals” means Herc Rentals, Inc.
“Immaterial Subsidiary” means any Subsidiary of the Company that, as of the last day of the Fiscal Quarter of the Company most recently ended for which financial information in respect thereof is available, (a) did not have assets with a value in excess of 2.5% of the total assets of the Company and its Restricted Subsidiaries as at such date and (b) did not have total revenues in excess of 2.5% of the total revenues of the Company and its Restricted Subsidiaries for the four consecutive Fiscal Quarter period then ended; provided that at the time of such designation (x) the aggregate total consolidated revenues of all Immaterial Subsidiaries shall not exceed 10.0% of the total consolidated revenue of the Company and its Restricted Subsidiaries during the most recent four consecutive Fiscal Quarter period then ended and (y) the aggregate total consolidated assets of all Immaterial Subsidiaries shall not exceed 10.0% of the total consolidated assets of the Company and its Restricted Subsidiaries as of the last day of such period. Any determination of whether a Subsidiary shall cease to qualify as an Immaterial Subsidiary shall be made on the date of the delivery of the Compliance Certificate pursuant to Section 7.2(d). To the extent a Subsidiary ceases to be an Immaterial Subsidiary in connection with such determination, the Company shall have 60 days (or such longer period as shall be agreed to by the Agent in its sole discretion) from the date of delivery of such Compliance Certificate to cause such Subsidiary to comply with the requirements of
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Section 7.16 to the extent applicable. Each Immaterial Subsidiary as of the Closing Date is set forth in Schedule 1.3.
“Increased Amount” of any Indebtedness means any increase in the amount of such Indebtedness in connection with any accrual of interest, the accretion of accreted value, the amortization of original issue discount, the payment of interest in the form of additional Indebtedness with the same terms or in the form of common stock of the Company or any other Borrower and the accretion of original issue discount or liquidation preference.
“Incremental ABL Term Loans” has the meaning specified in Section 2.5(a).
“Incremental Commitment Amendment” has the meaning specified in Section 2.5(e)(ii).
“Incremental Facility” and “Incremental Facilities” have the meanings specified in Section 2.5(a).
“Incremental Facility Increase” has the meaning specified in Section 2.5(a).
“Incremental Indebtedness” means any Indebtedness incurred by any Borrower pursuant to and in accordance with Section 2.5.
“Incremental Revolving Commitment Effective Date” has the meaning specified in Section 2.5(e)(i).
“Incremental Revolving Commitments” has the meaning specified in Section 2.5(a).
“Indebtedness” means, without duplication, (a) all indebtedness for borrowed money or the deferred purchase price of property, excluding trade payables and the endorsement of checks and other similar instruments in the ordinary course of business; (b) all obligations and liabilities of any other Person secured by any Lien on an Obligor’s or any of its Subsidiaries’ property, even if such Obligor or Subsidiary shall not have assumed or become liable for the payment thereof (the amount of such obligation being deemed to be the lesser of the value of such property (as determined in good faith by the Company) or the amount of the obligation so secured); (c) all obligations or liabilities created or arising under any Finance Lease; (d) all indebtedness created or arising under any conditional sale or other title retention agreement with respect to property acquired by such Person (even if the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such property), but excluding trade accounts payable arising in the ordinary course of business; (e) all obligations of such Person for the reimbursement of any obligor on any letter of credit, banker’s acceptance or similar credit transaction; (f) all net obligations of such Person in respect of Hedge Agreements; and (g) all obligations and liabilities under Guarantees in respect of obligations of the type described in any of clauses (a) through (f) above.
“Indemnified Liabilities” has the meaning specified in Section 14.10.
“Indemnified Person” has the meaning specified in Section 14.10.
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“Indemnified Taxes” means (a) all Taxes other than Excluded Taxes and (b) to the extent not otherwise described in (a), Other Taxes.
“Instruments” means all instruments as such term is defined in Article 9 of the UCC or as is defined in the PPSA, as applicable, now owned or hereafter acquired by any Borrower, any Guarantor or any of their Subsidiaries.
“Intellectual Property” means all rights, title and interest in intellectual property and all IP Ancillary Rights relating thereto, including all Copyrights, Patents, Trademarks and IP Licenses.
“Intellectual Property Agreement” means the Intellectual Property Agreement, dated as of June 30, 2016, by and among The Hertz Corporation, Hertz Systems, Inc. and Herc Rentals.
“Intercreditor Agreement Supplement” has the meaning specified in Section 13.17(b).
“Interest Period” means, as to any Term SOFR Loan, the period commencing on the Funding Date of such Loan or on the Continuation/Conversion Date on which the Loan is converted into or continued as a Term SOFR Loan, and ending on (i) the date one, three or six months thereafter, or (ii) any other date agreed to by all the Lenders making or holding such Loan, in each case, as selected by the applicable Borrower in its Notice of Borrowing or Notice of Continuation/Conversion; provided that:
(a)if any Interest Period would otherwise end on a day that is not a Business Day, that Interest Period shall be extended to the following Business Day unless, in the case of any Interest Period of one month or longer, the result of such extension would be to carry such Interest Period into another calendar month, in which event such Interest Period shall end on the preceding Business Day;
(b)any Interest Period of one month or longer pertaining to a Term SOFR Loan that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest Period; and
(c)no Interest Period shall extend beyond the Maturity Date.
“Interest Rate” means each or any of the interest rates, including the Default Rate, set forth in Section 3.1.
“Inventory” means all of each Obligor’s and each of its Subsidiaries’ now owned or hereafter acquired Rental Equipment, Spare Parts and Merchandise and other inventory, goods and merchandise, wherever located, to be furnished under any contract of service or held for sale or lease, all returned goods, raw materials, work-in-process, finished goods (including embedded software), other materials and supplies of any kind, nature or description which are used or consumed in such Obligor’s or any of its Subsidiaries’ business or used in connection with the packing, shipping, advertising, selling or finishing of such goods, merchandise, and all documents of title or other Documents representing them.
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“Investment” means, with respect to any Person, (a) any loan or other extension of credit (including a guarantee) or capital contribution to any other Person (by means of any transfer of cash or other property or any payment for property or services for consideration of Indebtedness or Capital Stock of any other Person), other than in connection with leases of Equipment or leases or sales of Inventory on credit in the ordinary course of business or (b) any purchase or acquisition by such Person of Capital Stock, bonds, notes, debentures or other securities or evidences of indebtedness issued by any other Person, excluding the acquisition of inventory, supplies, equipment and other assets used or consumed in the ordinary course of business of such Person and Capital Expenditures. The amount of any Investment outstanding at any time shall be the original cost of such Investment, reduced (at the Company’s option) by any dividend, distribution, interest payment, return of capital, repayment or other amount or value received in respect of such Investment.
“Investment Grade Rating” means a rating equal to or higher than Baa3 (or, in the case of short-term obligations, P-3) (or the equivalent) by Xxxxx’x and BBB- (or, in the case of short-term obligations, A-3) (or the equivalent) by S&P, or any equivalent rating by any other rating agency recognized internationally or in the United States of America.
“Investment Grade Securities” means (i) securities issued or directly and fully guaranteed or insured by the United States of America government or any agency or instrumentality thereof (other than Cash Equivalents); (ii) debt securities or debt instruments with an Investment Grade Rating, but excluding any debt securities or instruments constituting loans or advances among the Company and its Subsidiaries; (iii) investments in any fund that invests exclusively in investments of the type described in clauses (i) and (ii) above, which fund may also hold immaterial amounts of cash pending investment or distribution; and (iv) corresponding instruments in countries other than the United States of America customarily utilized for high quality investments.
“Investment Property” means all of each Obligor’s now owned or hereafter acquired “investment property” as defined in the UCC or the PPSA, as applicable, and includes all right title and interest of each Obligor in and to any and all: (a) securities whether certificated or uncertificated; (b) securities entitlements; (c) securities accounts; (d) commodity contracts; or (e) commodity accounts.
“IP Ancillary Rights” means, with respect to any Intellectual Property, as applicable, all divisionals, reversions, continuations, continuations-in-part, reissues, reexaminations, renewals and extensions of, such Intellectual Property and all income, royalties and proceeds at any time due or payable or asserted under or with respect to any of the foregoing or otherwise with respect to such Intellectual Property, including all rights to sue or recover at law or in equity for any past, present or future infringement, misappropriation, dilution, violation or other impairment thereof, and, in each case, all rights to obtain any other IP Ancillary Right.
“IP License” means all written contracts, agreements, licenses, sublicenses or other legally binding agreement (and related IP Ancillary Rights), granting any right, title or interest in or relating to any Intellectual Property.
“IRS” means the Internal Revenue Service and any Governmental Authority succeeding to any of its principal functions under the Code.
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“Joint Book Runner” has the meaning specified in the preamble to this Agreement.
“Joint Lead Arranger” has the meaning specified in the preamble to this Agreement.
“Junior Lien Intercreditor Agreement” means an intercreditor agreement substantially in the form of Exhibit K or otherwise in form and substance reasonably satisfactory to the Borrowers’ Agent and the Agent.
“Laws” means, collectively, all international, foreign, federal, state, provincial, territorial and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law.
“LCA Election” has the meaning specified in Section 1.3(m)(ii).
“LCA Test Date” has the meaning specified in Section 1.3(m)(ii).
“Leases” means the written agreements between an Obligor and an Account Debtor entered into in the ordinary course of business of such Obligor for rental or lease of Rental Equipment by such Obligor to such Account Debtor, including all schedules and supplements thereto.
“Lender” and “Lenders” have the meanings specified in the introductory paragraph to this Agreement and shall include (i) the Agent to the extent of any Agent Advance outstanding and the Banks to the extent of any Swingline Loan outstanding and (ii) any Affiliates or branches of Lenders who make Loans pursuant to Section 2.2(c); provided that for all purposes of voting or consenting with respect to (a) any amendment, supplementation or modification of any Loan Document, (b) any waiver of any of the requirements of any Loan Document or any Default or Event of Default and its consequences or (c) any other matter as to which a Lender may vote or consent pursuant to Section 12.1, the bank or financial institution making such election shall be deemed the “Lender” rather than such Affiliate, which shall not be entitled to so vote or consent.
“Lender Counterparty” means any Person that was the Agent, a Lender or an Affiliate of the Agent or a Lender at the time it entered into a Bank Product (or with respect to any Bank Product in effect as of the Closing Date), any Person that was the Agent, a Lender or an Affiliate of the Agent or a Lender as of the Closing Date, whether or not such Person subsequently ceases to be the Agent, a Lender or an Affiliate of the Agent or a Lender, in its capacity as a counterparty to such Bank Product.
“Lender Joinder Agreement” has the meaning specified in Section 2.5(d)(i).
“Letter of Credit” and “Letters of Credit” have the meanings specified in Section 2.4(a)(i).
“Letter of Credit Fee” has the meaning specified in Section 3.6.
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“Letter of Credit Issuer” means the U.S. Bank, any Affiliate or branch of the U.S. Bank (including the Canadian Bank) or any other Lender or Affiliate or branch of a Lender that issues any Letter of Credit pursuant to this Agreement and agrees to provide reporting with respect to Letters of Credit reasonably required by the Agent.
“Letter of Credit Subfacility” means $250,000,000.
“Lien” means any mortgage, charge, pledge, lien (statutory or other), security interest, hypothecation, assignment for security, claim, or preference or priority or other encumbrance upon or with respect to any property of any kind. A Person shall be deemed to own subject to a Lien any property which such Person has acquired or holds subject to the interest of a vendor or lessor under any conditional sale agreement, finance lease or other title retention agreement.
“Like-Kind Exchange” means a substantially contemporaneous exchange or swap, including transactions covered by Section 1031 of the Code, of property or assets (“Relinquished Property”) for property or assets with comparable or greater Fair Market Value or usefulness to the business of the U.S. Borrowers and their Domestic Subsidiaries (“Replacement Property”); provided that (a) the disposition of the Relinquished Property is permitted under the terms of this Agreement, (b) the transaction is entered into in the normal course of business, (c) the applicable “exchange agreement” reflects arm’s-length terms with a Qualified Intermediary who is not an Affiliate of the Company and otherwise contains customary terms and (d) all net proceeds thereof are deposited in one or more Like-Kind Exchange Accounts.
“Like-Kind Exchange Account” means any account established jointly with a Qualified Intermediary pursuant to and solely for the purposes of facilitating any Like-Kind Exchange, the amounts on deposit in which shall be limited to proceeds realized from the disposition of Relinquished Property in connection with a Like-Kind Exchange.
“Limited Condition Acquisition” means any acquisition of any assets, business or Person permitted by this Agreement, the consummation of which is not conditioned on the availability of, or on obtaining, third-party financing.
“LLC Division” means the statutory division of any limited liability company into two or more limited liability companies pursuant to Section 18-217 of the Delaware Limited Liability Company Act or a comparable statute under a different jurisdiction’s law.
“Loan Cap” means, on any date of determination, an amount equal to the lesser of (a) the Maximum Revolver Amount and (b) the Combined Borrowing Base.
“Loan Documents” means this Agreement, the Guarantee Agreements, Supplemental Agreement referred to in any Guarantee Agreement, the Security Documents, the Fee Letters, any Acceptable Intercreditor Agreement or any other intercreditor agreement entered into by the Agent at any time in connection with this Agreement or any Security Document, any promissory note evidencing any Obligations, and any other agreements, instruments, and documents to which one or more Obligors is a party that, for any such other agreement, instrument or document entered into after the Closing Date, expressly states that it is to be treated as a “Loan Document” hereunder.
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“Loans” means, collectively, all loans and advances provided for in Article II.
“Management Investors” means the collective reference to the officers, directors, employees and other members of the management of the Company or any of its Subsidiaries, or family members or relatives of any thereof or trusts for the benefit of any of the foregoing, or any of their heirs, executors, successors and legal representatives who at any particular date shall beneficially own or have the right to acquire, directly or indirectly, common stock of the Company.
“Management Stock” means Capital Stock of the Company (including any options, warrants or other rights in respect thereof) held by any of the Management Investors.
“Market Disruption Event” has the meaning specified in Section 5.5(b).
“Material Account” means any bank account, securities account or commodities account of any Obligor, including in any case any account into which proceeds from any Securitization Transaction (including, but not limited to, the Existing Securitization Facility) are deposited, but excluding (a) any “Collection Account” under and as defined in the documents evidencing the Existing Securitization Facility as in effect as of the Agreement Date and any similar account under any Securitization Transaction, (b) any Like-Kind Exchange Account, (c) any account which is exclusively used for disbursement purposes (including payroll accounts) and (d) other accounts to the extent the aggregate amount of funds on deposit therein at the end of each Business Day does not exceed $10,000,000.
“Material Adverse Effect” means a material adverse effect on (a) the business or financial condition of the Company and its Restricted Subsidiaries, taken as a whole, (b) the ability of the Company, the Borrowers and the other Obligors (taken as a whole) to perform their payment obligations under this Agreement or any other Loan Document or (c) the rights and remedies of the Agent and the Lenders under this Agreement or any other Loan Document (taken as a whole).
“Material Intellectual Property” means any Intellectual Property that is material to the business of the Obligors.
“Maturity Date” means the date that is the fifth anniversary of the Amendment No. 1 Effective Date.
“Maximum Multicurrency Revolver Amount” means, at any time, the aggregate Multicurrency Facility Commitments at such time, as the same may be increased from time to time in accordance with Section 2.5 or reduced from time to time in accordance with Section 4.3. As of the Amendment No. 1 Effective Date, the Maximum Multicurrency Revolver Amount is $350,000,000. Anything contained herein to the contrary notwithstanding, (a) upon termination of the Commitments, the Maximum Multicurrency Revolver Amount shall automatically be reduced to zero and (b) in no event shall the sum of the Maximum Multicurrency Revolver Amount and the Maximum U.S. Revolver Amount at any time be greater than the Revolving Credit Commitments at such time.
“Maximum Rate” has the meaning specified in Section 3.3.
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“Maximum Revolver Amount” means, at any time, the aggregate Revolving Credit Commitments at such time, as the same may be increased from time to time in accordance with Section 2.5 or reduced from time to time in accordance with Section 4.3. As of the Amendment No. 1 Effective Date, the Maximum Revolver Amount is $3,500,000,000. Anything contained herein to the contrary notwithstanding, upon termination of the Commitments, the Maximum Revolver Amount shall automatically be reduced to zero.
“Maximum U.S. Revolver Amount” means, at any time, the aggregate U.S. Facility Commitments at such time, as the same may be increased from time to time in accordance with Section 2.5 or reduced from time to time in accordance with Section 4.3. As of the Amendment No. 1 Effective Date, the Maximum U.S. Revolver Amount is $3,150,000,000. Anything contained herein to the contrary notwithstanding, (a) upon termination of the Commitments, the Maximum U.S. Revolver Amount shall automatically be reduced to zero and (b) in no event shall the sum of the Maximum U.S. Revolver Amount and the Maximum Multicurrency Revolver Amount at any time be greater than the Revolving Credit Commitments at such time.
“Minimum Extension Condition” has the meaning specified in Section 2.6(g).
“Moody’s” means Xxxxx’x Investors Service, Inc., or any successor thereto.
“Multicurrency Canadian Revolving Loans” means the revolving loans made to the Canadian Borrowers pursuant to Section 2.1(b) under the Multicurrency Credit Facility, or any amendment to this Agreement entered into pursuant to Section 2.5, 2.6 or 2.7, each Agent Advance made to a Canadian Borrower and each Multicurrency Canadian Swingline Loan under the Multicurrency Credit Facilities.
“Multicurrency Canadian Swingline Loan” and “Multicurrency Canadian Swingline Loans” have the meanings specified in Section 2.3(c).
“Multicurrency Credit Facilities” means the revolving credit and swingline facilities provided for by this Agreement provided to the Canadian Borrowers and the U.S. Borrowers pursuant to Section 2 hereof.
“Multicurrency Excess Availability” means, at any time, (a) the lesser of (i) the Maximum Multicurrency Revolver Amount and (ii) the amount equal to (A) the Combined Borrowing Base, minus (B) the Aggregate U.S. Revolver Outstandings, minus (b) the Aggregate Multicurrency Revolver Outstandings, in each case at such time.
“Multicurrency Facility Commitment” means, at any date for any Lender, the obligation of such Lender to make Multicurrency Revolving Loans and to purchase participations in Multicurrency Letters of Credit and Multicurrency Swingline Loans pursuant to the terms and conditions of this Agreement, which shall not exceed the aggregate principal amount set forth on Schedule 1.1 under the heading “Multicurrency Facility Commitment” or on the signature page of the Assignment and Acceptance by which it became a Lender, as modified from time to time pursuant to the terms of this Agreement or to give effect to any applicable Assignment and Acceptance; and “Multicurrency Facility Commitments” means the aggregate principal amount of the Multicurrency Facility
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Commitments of all Lenders. The initial aggregate amount of the Multicurrency Lenders’ Multicurrency Facility Commitments is $350,000,000.
“Multicurrency Facility Lender” means each Lender that has a Multicurrency Facility Commitment (or an Affiliate or branch of any such Person that is acting on behalf of such Person, in which case the term “Multicurrency Facility Lenders” shall include any such Affiliate or branch with respect to the Multicurrency Revolving Loans made by such Affiliate or branch) as having a Multicurrency Facility Commitment and any other Person that shall acquire a Multicurrency Facility Commitment, other than any such Person that ceases to be a Multicurrency Facility Lender pursuant to an Assignment and Acceptance.
“Multicurrency Facility Letter of Credit” has the meaning specified in Section 2.4(a). Multicurrency Facility Letters of Credit shall be denominated in Dollars or Canadian Dollars.
“Multicurrency Letter of Credit Subfacility” means $100,000,000.
“Multicurrency Revolving Loans” means the Multicurrency U.S. Revolving Loans and the Multicurrency Canadian Revolving Loans, as the context requires.
“Multicurrency Swingline Commitment” means the commitment of the Canadian Bank to make loans to Canadian Borrowers and the commitment of the U.S. Bank to make loans to U.S. Borrowers pursuant to Section 2.3(c).
“Multicurrency Swingline Lender” means the Canadian Bank or any successor financial institution agreed to by the Agent, in its capacity as provider of Multicurrency Canadian Swingline Loans and U.S. Bank or any successor financial institution agreed to by the Agent, in its capacity as provider of Multicurrency U.S. Swingline Loans.
“Multicurrency Swingline Loan” and “Multicurrency Swingline Loans” have the meanings specified in Section 2.3(c).
“Multicurrency Swingline Sublimit” has the meaning specified in Section 2.3(c).
“Multicurrency Unused Letter of Credit Subfacility” means an amount equal to the Multicurrency Letter of Credit Subfacility minus the Equivalent Amount in Dollars of the sum of (a) the aggregate undrawn amount of all outstanding Multicurrency Facility Letters of Credit issued for the account of any Canadian Borrower or U.S. Borrower plus, without duplication, (b) the aggregate unpaid reimbursement obligations with respect to all Multicurrency Facility Letters of Credit issued for the account of any Canadian Borrower or U.S. Borrower.
“Multicurrency U.S. Revolving Loans” means the revolving loans made to the U.S. Borrowers pursuant to Section 2.1(b) under the Multicurrency Credit Facility, or any amendment to this Agreement entered into pursuant to Section 2.5, 2.6 or 2.7, each Agent Advance made to a U.S. Borrower and each Multicurrency U.S. Swingline Loan under the Multicurrency Credit Facility.
“Multicurrency U.S. Swingline Loan” and “Multicurrency U.S. Swingline Loans” have the meanings specified in Section 2.3(c).
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“Multi-employer Plan” means a “multi-employer plan” as defined in Section 4001(a)(3) of ERISA which is or was at any time during the current year or the immediately preceding six years contributed to by any of the Borrowers or any ERISA Affiliate.
“Net Book Value” means, with respect to any Rental Equipment, Service Vehicles or Spare Parts and Merchandise, cost minus accumulated depreciation for such Rental Equipment, Service Vehicles or Spare Parts and Merchandise, as applicable, calculated in accordance with GAAP.
“Net Orderly Liquidation Value Percentage” means the orderly liquidation value (net of costs and expenses estimated to be incurred in connection with such liquidation) of an Obligor’s Rental Equipment or Service Vehicles that is estimated to be recoverable in an orderly liquidation of such Rental Equipment or Service Vehicles expressed as a percentage of the Net Book Value thereof, such percentage to be as determined from time to time by reference to the most recent Appraisal of Rental Equipment or Service Vehicles received by the Agent in accordance with Section 7.9(b).
“Non-Consenting Lender” has the meaning specified in Section 12.1(b).
“Non-Core Business” means any business which is not an essential part of the rental business.
“Non-Extended Commitments” has the meaning specified in Section 2.6(a).
“Non-Extended Loans” has the meaning specified in Section 2.6(a).
“Non-Extending Lender” has the meaning specified in Section 2.6(e).
“Non-Extension Notice Date” has the meaning specified in Section 2.4(b).
“Non-Recourse Indebtedness” means Indebtedness of a Person (a) as to which no Obligor provides any Guarantee or credit support of any kind or is directly or indirectly liable (as a guarantor or otherwise) and (b) which does not provide any recourse against any of the assets of any Obligor, in each case other than Standard Securitization Undertakings.
“North American Borrowing Base” means the sum of (a) 85.0% of the book value of Inventory (excluding Equipment) of the Company and its Restricted Subsidiaries, (b) 85.0% of the book value of Accounts of the Company and its Restricted Subsidiaries, (c) 95.0% of the book value of Equipment of the Company and its Restricted Subsidiaries (or in the case of Rental Equipment, Service Vehicles or Spare Parts and Merchandise, Net Book Value thereof) and (d) cash, Cash Equivalents, Investment Grade Securities and Temporary Cash Investments of the Company and its Restricted Subsidiaries (in each case, determined as of the end of the most recently ended fiscal month of the Company for which internal consolidated financial statements of the Company are available, and, in the case of any determination relating to any incurrence of Indebtedness, on a pro forma basis including (x) any property or assets of a type described above acquired since the end of such fiscal month and (y) any property or assets of a type described above being acquired in connection therewith).
“Notice of Borrowing” has the meaning specified in Section 2.2(a).
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“Notice of Continuation/Conversion” has the meaning specified in Section 3.2(b).
“Obligations” means the U.S. Obligations and the Canadian Obligations.
“Obligors” means, collectively, each Borrower, each Guarantor, and any other Person that now or hereafter is primarily or secondarily liable for any of the Obligations and/or grants the Agent a Lien on any collateral as security for any of the Obligations.
“Original Currency” has the meaning specified in Section 14.20.
“Originating Lender” has the meaning specified in Section 12.2(e).
“Other Connection Taxes” means, with respect to any Agent, Lender or other such recipient, Taxes imposed as a result of a present or former connection between such recipient and the jurisdiction imposing such Tax (other than connections arising from such recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).
“Other Taxes” means any present or future stamp , court or documentary, intangible, recording, filing or similar Taxes or any other excise or property Taxes, charges or similar levies which arise from any payment made hereunder or from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, this Agreement or any other Loan Documents, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than Other Connection Taxes imposed on an assignor as a result of any assignment request by the Borrowers under Sections 5.10 or 12.1(b)).
“Out-of-Formula Condition” has the meaning specified in Section 4.2.
“Pari Passu Debt Reserves” means all reserves with respect to (a) any outstanding Indebtedness (other than the Obligations), (b) any Incremental Indebtedness (other than increases to the Revolving Credit Commitments) or (c) any Refinancing Term Loans or Refinancing Revolving Loans, in each case in respect of Indebtedness described in clauses (a), (b), or (c), that is secured by Liens on Collateral on a basis pari passu in priority with the Agent’s Liens thereon, which reserve for any such outstanding Indebtedness shall be imposed automatically without any further action or notice by the Agent upon the incurrence of such Indebtedness (or the maximum amount that may be borrowed under commitments in respect of any such Indebtedness) and shall be in an amount equal to the unpaid principal amount of such Indebtedness (or the maximum amount that may be borrowed under commitments in respect of such Indebtedness) from time to time. For the avoidance of doubt, no Pari Passu Debt Reserves shall be established with respect to any Indebtedness incurred pursuant to Section 8.1 or secured pursuant to Section 8.2 or any Incremental Indebtedness or any Refinancing Term Loans or Refinancing Revolving Loans, in each case that is secured by Liens on Collateral solely in the event that all such Liens on the Collateral are junior in priority to the Agent’s Liens thereon.
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“Pari Passu Intercreditor Agreement” means an intercreditor agreement between the Agent and one or more representatives of Persons (other than the Company or any of its Subsidiaries) benefitting from a Lien on any Collateral of a U.S. Obligor or Canadian Obligor that is intended to be pari passu to the Agent’s Lien having terms that are reasonably satisfactory to the Borrowers’ Agent and the Agent.
“Participant” means any Person who shall have been granted the right by any Lender to participate in the financing provided by such Lender under this Agreement, and who shall have entered into a participation agreement in form and substance satisfactory to such Lender.
“Participant Register” has the meaning specified in Section 13.21(b).
“Patents” means all rights, title and interests (and all related IP Ancillary Rights) in or relating to letters patent and applications therefor, industrial designs and applications therefor, and all divisionals, reversions, continuations, continuations-in-part, reissues, reexaminations, renewals and extensions of such, as applicable.
“Payment Account” means each bank account to which the proceeds of Collateral are deposited or credited, and which is maintained in the name of the Agent, on terms reasonably acceptable to the Agent.
“Payment Conditions” means, at any time of determination with respect to any payment, event or transaction described herein as being specifically subject to satisfaction of the Payment Conditions, that (a) both before and immediately after such payment, event or transaction (including any Loans made in connection therewith), no Specified Default has occurred and is continuing and (b) either (i) Specified Availability shall be greater than 10% of the Loan Cap immediately prior to such payment, event or transaction and immediately after such payment, event or transaction (including the making of any Loans in connection therewith) and the Company and the other Obligors shall be in pro forma compliance with the covenant set forth in Section 8.9 (regardless of whether a Covenant Trigger is in effect or such covenant is otherwise effective, and measured as of the last day of the most recently ended Fiscal Quarter for which financial statements were required to be delivered in accordance with Section 7.2) or (ii) Specified Availability shall be greater than 15% of the Loan Cap immediately prior to such payment, event or transaction and immediately after such payment, event or transaction (including the making of any Loans in connection therewith).
“PBA” means the Pension Benefits Act (Ontario) or similar legislation of any other Canadian federal or provincial jurisdiction, and the regulations promulgated thereunder applicable to a Pension Plan.
“PBGC” means the Pension Benefit Guaranty Corporation, or any Governmental Authority succeeding to the functions thereof or any Governmental Authority of another jurisdiction exercising similar functions in respect of any Plans of an Obligor.
“Pension Event” means solely with respect to Canadian Pension Plans (a) the filing of a notice of proposal to terminate in whole or in part a Canadian DB Pension Plan so as to result in a liability; or (b) the issuance of a notice of proposal by any Governmental Authority to terminate in
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whole or in part or have an administrator or like body appointed to administer a Canadian DB Pension 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 Canadian Pension Plan.
“Pension Plan” means a pension plan or an employee benefit plan (a) (as defined in Section 3(2) of ERISA) subject to Title IV of ERISA, other than a Multi-employer Plan, or (b) which is a “registered pension plan” under the Income Tax Act (Canada) or which is subject to the PBA or any other applicable Laws, which in either case of clause (a) or (b) an Obligor sponsors, maintains, or to which it makes, is making, or is obligated to make contributions, or has made contributions at any time during the immediately preceding five plan years.
“Permitted Acquisition” means the acquisition by an Obligor or a Restricted Subsidiary of all or a substantial portion of the assets or businesses of a Person or of assets constituting a business unit, line of business or division of such Person (the “Acquired Business”) or the acquisition by an Obligor or a Restricted Subsidiary of all of the Capital Stock of the Acquired Business (other than directors’ qualifying shares or nominee or other similar shares required pursuant to applicable law) or the merger, amalgamation or consolidation of the Acquired Business with and into an Obligor or a Restricted Subsidiary (with such Obligor or Restricted Subsidiary, as the case may be, as the surviving Person) or an Obligor or a Restricted Subsidiary with and into the Acquired Business (to the extent permitted under Section 8.5), so long as:
(a)the assets acquired shall be used or useful in or otherwise relate to, the business or lines of business of the Borrowers and their Subsidiaries as of the Closing Date;
(b)all transactions in connection with such acquisition shall be consummated in all material respects in accordance with all applicable laws and governmental authorizations;
(c)after giving effect to such transaction and any related refinancing of Indebtedness, none of the acquired assets are subject to any Lien other than Permitted Liens; and
(d)(i) the Payment Conditions are satisfied at the time of such Permitted Acquisition (or, at the option of the Borrowers’ Agent if such Permitted Acquisition is a Limited Condition Acquisition, as of the date definitive agreements for such Limited Condition Acquisition are entered into), or (ii) the consideration for such transaction consists solely of any combination of (A) Capital Stock of the Company (other than Disqualified Stock), which is issued to any Person that is not an Obligor, (B) cash and property in an amount equal to the net proceeds from a substantially concurrent sale or issuance of Capital Stock of the Company (other than Disqualified Stock) to any Person that is not an Obligor, (C) additional cash and property (excluding cash and property covered in clause (B) above); provided that the aggregate amount of consideration paid for all such Permitted Acquisitions pursuant to this clause (C), together with the aggregate amount of all Investments made in reliance on clause (s) of the definition of the term “Permitted Investments”, the aggregate amount of all Distributions made in reliance on clause (f) of the definition of the term “Permitted Distributions”, and the aggregate amount of Permitted Payments made in reliance on Section 8.6(k), shall not exceed $600,000,000 in the aggregate during the term of this Agreement, and (D) Indebtedness (whether incurred or assumed) permitted hereunder, or (iii) such acquisition is an
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acquisition of businesses of Franchisees (1) that have discontinued operations or that have indicated, or that the Company shall have reasonably determined, that if an acquisition is not made it is reasonably likely to imminently discontinue operations or (2) otherwise for a cash purchase price; provided that the aggregate amount of such cash purchase price paid pursuant to this clause (2), together with cash consideration paid in respect of acquisitions under clause (1), the Fair Market Value of all properties or assets of any Obligor sold, assigned, pledged or otherwise transferred pursuant to Franchise Financing Dispositions and all Investments under clause (x) of the definition of the term “Permitted Investments” shall not exceed $120,000,000 in the aggregate during the term of this Agreement;
provided that to the extent any Permitted Acquisition or other Permitted Investment results in the acquisition by any Borrower of Accounts, Rental Equipment, Service Vehicles and/or Spare Parts and Merchandise constituting Collateral consisting either of (x) assets of a type substantially different from those in the Canadian Borrowing Base or the U.S. Borrowing Base at such time, or (y) assets of a type substantially similar to those in the Borrowing Base at such time, in the case of this clause (y) with an aggregate Net Book Value in excess of $350,000,000, then (1) the Company may request that Agent obtain an Appraisal and conduct a field examination with respect to such acquired assets at the expense of Borrowers and (2) until such Appraisal is delivered and field examination completed, or waived in writing by the Agent, the assets acquired pursuant to such acquisition shall not be included in the Borrowing Base Certificate, the Canadian Borrowing Base or the U.S. Borrowing Base (and any such Appraisal shall be disregarded for purposes of the limitation on the number of Appraisals that may be conducted at Borrowers’ expense as set forth in Section 7.9).
“Permitted Credit Facility” means one or more debt facilities or agreements, commercial paper facilities, securities purchase agreements, indentures or similar agreements, in each case, with banks or other institutional lenders or investors providing for, or acting as underwriters of, revolving loans, term loans, receivables financing (including through the sale of receivables to such lenders or to special purpose entities formed to borrow from such lenders against such receivables), notes, debentures, letters of credit or the issuance and sale of securities including any related notes, guarantees, collateral documents, instruments and agreements executed in connection therewith and in each case, as amended, extended, renewed, restated, supplemented or otherwise modified (in whole or in part, and without limitation as to amount, terms, conditions, covenants and other provisions) from time to time, and any agreements, indentures or other instruments (and related documents) governing any form of Indebtedness incurred to refinance or replace, in whole or in part, the borrowings and commitments at any time outstanding or permitted to be outstanding under such facility or agreement or successor facility or agreement whether by the same or any other lender or holder of Indebtedness or group of lenders or holders of Indebtedness and whether the same obligor or different obligors.
“Permitted Distributions” means:
(a)Distributions by (i) any Subsidiary of an Obligor to such Obligor, (ii) any Subsidiary that is not an Obligor to any Subsidiary that is not an Obligor, (iii) any Subsidiary that is not an Obligor to a Subsidiary that is an Obligor, and (iv) any Subsidiary that is not a Wholly Owned Subsidiary to the holders of its Capital Stock on a pro rata basis;
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(b)(i) Distributions by the Company to repurchase equity securities issued by the Company from employees, officers or directors of the Company or any Subsidiary, or the authorized representatives of any of the foregoing, upon the death, disability or termination of employment of any such employee, officer or director in an amount not to exceed $20,000,000 in the aggregate in any Fiscal Year and (ii) so long as no Default or Event of Default has occurred and is continuing, Distributions to purchase Capital Stock of the Company from employees, officers or directors of the Company or any Subsidiary in an amount not to exceed the sum of (x) $20,000,000 plus (y) $5,000,000 multiplied by the number of calendar years that have commenced since June 30, 2016;
(c)any purchase or redemption of any Capital Stock of the Company required pursuant to the terms thereof as a result of a Change of Control or an asset disposition, so long as at such time no Default or Event of Default shall have occurred and be continuing (or would result therefrom);
(d)cash payments in lieu of the issuance of fractional shares in connection with the exercise of any warrants, options or other securities convertible into or exchangeable for capital stock of the Company;
(e)the deemed repurchase of Capital Stock of the Company on the cashless exercise of stock options;
(f)other Distributions made with cash, Cash Equivalents, Investment Grade Securities and Temporary Cash Investments by the Company and any of its Subsidiaries; provided that (i) the aggregate amount of all such Distributions, together with the aggregate amount of all Investments made in reliance on clause (s) of the definition of the term “Permitted Investments”, the amounts consideration paid for all acquisitions in reliance on clause (d)(ii)(C) of the definition of the term “Permitted Acquisition”, and the aggregate amount of Permitted Payments made in reliance on Section 8.6(k), shall not exceed $600,000,000 in the aggregate during the term of this Agreement, and (ii) at the time of any such Distribution, no Default or Event of Default shall have occurred and be continuing (or would result therefrom);
(g)any Distributions, so long as the Payment Conditions are satisfied either at the time the Distribution is made or at the time the Distribution is declared (so long as such Distribution is made within 60 days of declaration);
(h)payments in respect of any dividend or other distribution on the Capital Stock of the Company and payments to purchase Capital Stock of the Company, in each case, not to exceed 6% of the market capitalization of the Company at the time of such payment;
(i)the making of any Distribution in exchange for, or out of the net cash proceeds of, a substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of Capital Stock of the Company (other than Disqualified Stock) or from a substantially concurrent cash capital contribution to the Company (other than from an Obligor);
(j)any Distribution to a Special Purpose Vehicle in connection with a Securitization Transaction, which Distribution consists of the assets described in the definition of
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“Equipment Securitization Transaction” or “Receivables Securitization Transaction”; provided that the aggregate amount of all such Distributions, together with the book value (or in the case of Rental Equipment, Service Vehicles or Spare Parts and Merchandise, Net Book Value) of all such properties or assets of any Obligor sold, assigned, pledged or otherwise transferred (including Investments) pursuant to all Equipment Securitization Transactions shall not exceed $510,000,000 during the term of this Agreement;
(k)the Company and any of its Subsidiaries may pay, without duplication, the amount due or payable (A) pursuant to any Transaction Agreement and (B) in order to pay or permit the Company or any of its Subsidiaries to pay any related Taxes;
(l)the Company and any of its Subsidiaries may pay cash dividends in an amount sufficient to (x) pay all fees and expenses incurred in connection with the Transactions and the other transactions expressly contemplated by this Agreement and the other Loan Documents and (y) satisfy its obligations under the Separation Agreement and the other Transaction Agreements; and
(m)Investments constituting Distributions made as a result of the receipt of non-cash consideration from any Asset Disposition or other sale of assets or property made pursuant to and in compliance with this Agreement.
For purposes of determining compliance with this definition, in the event that any Distribution meets the criteria of more than one of the types of Permitted Distributions described in the above clauses, the Borrowers’ Agent, in its sole discretion, may from time to time classify and reclassify such Distribution and only be required to include the amount and type of such Distribution in one of such clauses.
“Permitted Holders” means (a) any of the Management Investors; and (b) any Person acting in the capacity of an underwriter in connection with a public or private offering of Capital Stock of the Company.
“Permitted Indebtedness” has the meaning specified in Section 8.1.
“Permitted Investments” means:
(a)Investments in cash, Cash Equivalents, Investment Grade Securities and Temporary Cash Investments;
(b)Investments existing on the Agreement Date and identified in Schedule 8.4 to this Agreement;
(c)[reserved];
(d)Investments by any Subsidiary which is not a Secured Obligor in any other Subsidiary;
(e)Investments (i) by any Obligor in any other Obligor, (ii) by any Subsidiary which is not a Obligor in another Subsidiary which is not an Obligor, (iii) by any Subsidiary which is
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not an Obligor in an Obligor; provided that any such Investment in the form of a loan or other extension of credit shall be subordinated in right of payment to the Obligations pursuant to a subordination agreement in form and substance reasonably satisfactory to Agent, or (iv) by any Obligor in any Subsidiary which is not an Obligor; provided that (A) the aggregate amount of all such Investments under this clause (e)(iv) shall not exceed $120,000,000 in the aggregate during the term of this Agreement, and (B) at the time of any such Investment, no Default or Event of Default shall have occurred and be continuing (or would result therefrom);
(f)Investments by any Obligor in any Special Purpose Vehicle pursuant to a Securitization Transaction; provided that, in the case of an Investment pursuant to an Equipment Securitization Transaction, (i) the aggregate amount of all such Investments, together with the book value (or in the case of Rental Equipment, Service Vehicles or Spare Parts and Merchandise, Net Book Value) of all such properties or assets of any Obligor sold, assigned, pledged or otherwise transferred (including Distributions) pursuant to all Equipment Securitization Transactions shall not exceed $510,000,000 during the term of this Agreement, (ii) the properties or assets transferred in connection with any Equipment Securitization Transaction shall consist of the types described in the definition of the term “Equipment Securitization Transaction”, and (iii) the properties or assets transferred in connection with a Receivables Securitization Transaction shall consist of the types described in the definition of the term “Receivables Securitization Transaction”;
(g)Investments in the nature of pledges or deposits with respect to leases or utilities provided to third parties in the ordinary course of business;
(h)deposit accounts maintained in the ordinary course of business;
(i)Investments constituting Hedge Agreements;
(j)Investments in securities or other Investments received in settlement of debts created in the ordinary course of business and owing to, or of other claims asserted by, the Company or any Restricted Subsidiary, or as a result of foreclosure, perfection or enforcement of any Lien, or in satisfaction of judgments, including in connection with any bankruptcy proceeding or other reorganization of another Person;
(k)loans and advances to officers, directors or employees (i)(A) in the ordinary course of business, (B) existing on the Closing Date and described in Schedule 8.4, (C) made after the Closing Date for relocation expenses in the ordinary course of business, and (D) for any other purpose satisfactory to the Company or its Subsidiaries; provided that the aggregate outstanding principal amount of all such Investments under this clause (k)(i) shall not exceed $20,000,000 at any time; and (ii) relating to indemnification of any officers, directors or employees in respect of liabilities relating to their serving in any such capacity, and any reimbursement of any such officer, director or employee of expenses relating to the claims giving rise to such indemnification;
(l)Permitted Acquisitions;
(m)any Investment to the extent that the consideration therefor is Capital Stock (other than Disqualified Stock) of the Company, or out of the net cash proceeds of, a substantially
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concurrent sale (other than to a Restricted Subsidiary of the Company) of Capital Stock of the Company (other than Disqualified Stock) or from a substantially concurrent cash capital contribution to the Company other than from an Obligor
(n)guarantees of Permitted Indebtedness (provided that no Canadian Obligor or Excluded Subsidiary may Guarantee any Indebtedness of a U.S. Obligor under this clause (n) unless such Person Guarantees the U.S. Obligations pursuant to a Guarantee agreement reasonably acceptable to the Agent);
(o)Investments acquired by an Obligor or a Restricted Subsidiary in the ordinary course of business received in settlement of claims against any other Person or a reorganization or similar arrangement of any debtor of such Obligor or Restricted Subsidiary, including upon the bankruptcy or insolvency of such debtor, or as a result of foreclosure, perfection or enforcement of any Lien;
(p)Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices;
(q)advances of payroll payments to employees in the ordinary course of business;
(r)Investments acquired by the Company or any Subsidiary in connection with an Asset Disposition permitted under Section 8.5(d) to the extent such Investments are non-cash proceeds as permitted under Section 8.5(d);
(s)other Investments made with cash, Cash Equivalents, Investment Grade Securities and Temporary Cash Investments; provided that (i) the aggregate amount of all such Investments made in reliance on this clause (s), together with all Distributions made in reliance on clause (f) of the definition of the term “Permitted Distributions”, the consideration paid for all acquisitions made in reliance on clause (d)(ii)(C) of the definition of the term “Permitted Acquisition”, and the aggregate amount of Permitted Payments made in reliance on Section 8.6(k), shall not exceed $600,000,000 in the aggregate during the term of this Agreement, and (B) at the time of any such Investment, no Default or Event of Default shall have occurred and be continuing (or would result therefrom);
(t)any Investments, so long as the Payment Conditions shall have been satisfied;
(u)Investments in receivables owing to the Company or any Restricted Subsidiary created or acquired in the ordinary course of business;
(v)any transaction to the extent that it constitutes an Investment that is permitted by and made in accordance with Section 8.4;
(w)Investments consisting of the licensing of Intellectual Property granted by the Company or any Restricted Subsidiary in the ordinary course of business;
(x)(i) Investments in Franchise Special Purpose Entities directly or indirectly to finance or refinance the acquisition of Franchise Equipment and/or related rights and/or assets, (ii)
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Investments in Franchisees attributable to the financing or refinancing of Franchise Equipment and/or related rights and/or assets, as determined in good faith by the Company, (iii) other Investments in Franchisees, (iv) Investments in Capital Stock of Franchisees and Franchise Special Purpose Entities (including pursuant to capital contributions) and (v) Investments in Franchisees arising as the result of guarantees in respect of Franchise Equipment Indebtedness or Franchise Lease Obligations; provided that the aggregate amount of all such Investments (and including for this purpose, in the case of any Rental Equipment, Service Vehicles, Spare Parts and Merchandise, the Net Book Value thereof) under this clause (x), together with cash consideration paid in respect of acquisitions under clause (d)(iii) of the definition of the term “Permitted Acquisition”, and the Fair Market Value of all properties or assets of any Obligor sold, assigned, pledged or otherwise transferred pursuant to all Franchise Financing Dispositions, shall not exceed $120,000,000 in the aggregate during the term of this Agreement;
(y)Investments in the nature of pledges or deposits with respect to (i) landlord leases, (ii) worker’s compensation, professional liability, unemployment insurance, other social security benefits and other insurance related obligations and (iii) other utility and surety liens provided to third parties in the ordinary course of business;
(z)Investments in industrial development or revenue bonds or similar obligations secured by assets leased to and operated by the Company or any of its Subsidiaries that were issued in connection with the financing or refinancing of such assets, so long as the Company or any such Subsidiary may obtain title to such assets at any time by optionally canceling such bonds or obligations, paying a nominal fee and terminating such financing transaction;
(aa)loans and advances to Management Investors in connection with the purchase by such Management Investors of Capital Stock of the Company of up to $25,000,000 outstanding at any one time;
(ab)any Investment pursuant to an agreement entered into in connection with any securities lending or other securities financing transaction to the extent such securities lending or other securities financing transaction is otherwise permitted under Sections 8.1 and 8.5; and
(ac)Investments made as part of an Islamic financing arrangement, including Sukuk, if such arrangement, if structured as Indebtedness, would be permitted under Section 8.1; provided that (i) the amount that would constitute Indebtedness if such arrangement were structured as Indebtedness, as determined in good faith by the Company, shall be treated by the Company as Indebtedness for purposes of Section 8.1 (including, to the extent applicable, with respect to the calculation of any amounts of Indebtedness outstanding thereunder) and (ii) any such Islamic financing arrangement shall not include any payment obligations of any Obligor secured by a Lien on the Collateral on a basis pari passu in priority with the Liens securing the amounts due under the Credit Facilities.
For purposes of determining compliance with this definition, in the event that any Investment meets the criteria of more than one of the types of Permitted Investments described in the above clauses, the Borrowers’ Agent, in its sole discretion, may from time to time classify and reclassify
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such Investment and only be required to include the amount and type of such Investment in one of such clauses.
“Permitted Liens” has the meaning specified in Section 8.2.
“Permitted Payments” has the meaning specified in Section 8.6.
“Permitted Priority Liens” means Permitted Liens described in clauses (b), (f), (g), (h), (j), (n), (o), (p) (to the extent the Liens that secured the Refinanced Indebtedness were Permitted Priority Liens), (q), (t), (u), (v), (w), (x), (y), (z), (aa), (bb), (dd), (ff), (jj) and (kk) of Section 8.2.
“Person” means any individual, sole proprietorship, partnership, limited liability company, unlimited liability company, joint venture, trust, unincorporated organization, association, corporation, Governmental Authority, or any other entity.
“Plan” means any of (a) an “employee benefit plan” (including such plans as defined in Section 3(3) of ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in Section 4975 of the Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”; in each case which an Obligor sponsors or maintains or to which an Obligor or a Subsidiary of an Obligor makes, is making, or is obligated to make contributions and includes any Pension Plan.
“PPSA” means the Personal Property Security Act (Ontario) and the regulations promulgated thereunder; provided that if validity, perfection and effect of perfection and non-perfection of the Agent’s security interest in any Collateral of any Canadian Obligor are governed by the personal property security laws of any Canadian jurisdiction other than Ontario, PPSA means those personal property security laws (including the Civil Code of Québec) in such other jurisdiction for the purposes of the provisions hereof relating to such validity, perfection, and effect of perfection and non-perfection and for the definitions related to such provisions, as from time to time in effect.
“Previously Absent Financial Maintenance Covenant” means, at any time, any financial maintenance covenant that is not included in the Loan Documents at such time.
“Priority Payable Reserves” means reserves established in the Reasonable Credit Judgment of the Agent for amounts secured by any Liens, xxxxxx or inchoate or any deemed trusts arising under Laws, which rank or are capable of ranking in priority to the Agent’s Liens.
“Pro Rata Share” means:
(a)with respect to a U.S. Facility Lender, a fraction (expressed as a percentage), the numerator of which is the amount of such Lender’s U.S. Facility Commitment and the denominator of which is the sum of the amounts of all of the Lenders’ U.S. Facility Commitments, or if no U.S. Facility Commitments are outstanding, a fraction (expressed as a percentage), (a) the numerator of which is the Equivalent Amount in Dollars of the sum (without duplication) of the aggregate amount of the U.S. Revolving Loans owed to such Lender plus such Lender’s participation
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in the aggregate maximum amount available to be drawn under all outstanding U.S. Facility Letters of Credit, plus such Lender’s participation in the aggregate amount of any unpaid reimbursement obligations in respect of U.S. Facility Letters of Credit and (b) the denominator of which is the Equivalent Amount in Dollars of the sum (without duplication) of the aggregate amount of the U.S. Revolving Loans owed to the Lenders, plus the aggregate maximum amount available to be drawn under all outstanding U.S. Facility Letters of Credit, plus the aggregate amount of any unpaid reimbursement obligations in respect of U.S. Facility Letters of Credit, in each case giving effect to a Xxxxxx’s participation in U.S. Swingline Loans and Agent Advances under the U.S. Credit Facilities.
(b)with respect to a Multicurrency Facility Lender, a fraction (expressed as a percentage), the numerator of which is the amount of such Lender’s Multicurrency Facility Commitment and the denominator of which is the sum of the amounts of all of the Lenders’ Multicurrency Facility Commitments, or if no Multicurrency Facility Commitments are outstanding, a fraction (expressed as a percentage), (a) the numerator of which is the Equivalent Amount in Dollars of the sum (without duplication) of the aggregate amount of the Multicurrency Revolving Loans owed to such Lender plus such Lender’s participation in the aggregate maximum amount available to be drawn under all outstanding Multicurrency Letters of Credit, plus such Lender’s participation in the aggregate amount of any unpaid reimbursement obligations in respect of Multicurrency Letters of Credit and (b) the denominator of which is the Equivalent Amount in Dollars of the sum (without duplication) of the aggregate amount of the Multicurrency Revolving Loans owed to the Lenders, plus the aggregate maximum amount available to be drawn under all outstanding Multicurrency Letters of Credit, plus the aggregate amount of any unpaid reimbursement obligations in respect of Multicurrency Letters of Credit, in each case giving effect to a Lender’s participation in Multicurrency Swingline Loans and Agent Advances under the Multicurrency Credit Facility.
(c)with respect to each Lender for all Credit Facilities, a fraction (expressed as a percentage), the numerator of which is the amount of such Lender’s Multicurrency Facility Commitment and such Lender’s U.S. Facility Commitment and the denominator of which is the sum of the amounts of all of the Lenders’ Commitments, or if no Commitments are outstanding, a fraction (expressed as a percentage), (a) the numerator of which is the Equivalent Amount in Dollars of the sum (without duplication) of the aggregate amount of the Revolving Loans owed to such Lender plus such Lender’s participation in the aggregate maximum amount available to be drawn under all outstanding Letters of Credit, plus such Lender’s participation in the aggregate amount of any unpaid reimbursement obligations in respect of Letters of Credit and (b) the denominator of which is the Equivalent Amount in Dollars of the sum (without duplication) of the aggregate amount of the Revolving Loans owed to the Lenders, plus the aggregate maximum amount available to be drawn under all outstanding Letters of Credit, plus the aggregate amount of any unpaid reimbursement obligations in respect of Letters of Credit, in each case giving effect to a Lender’s participation in Swingline Loans and Agent Advances under the Credit Facilities.
“Proposed Change” has the meaning specified in Section 12.1(b).
“PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
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“Purchase Money Obligations” means any Indebtedness incurred to finance or refinance the acquisition, leasing, construction or improvement of property (real or personal) or assets (including Capital Stock), and whether acquired through the direct acquisition of such property or assets or the acquisition of the Capital Stock of any Person owning such property or assets, or otherwise; provided that such Indebtedness is incurred within 180 days after such acquisition.
“Qualified Intermediary” means any Person acting in its capacity as a qualified intermediary to facilitate any Like-Kind Exchange or operate and/or own a Like-Kind Exchange Account.
“Quarterly Average Excess Availability” means, at any time, the daily average of the Excess Availability for the immediately preceding calendar quarter.
“Ratio Debt Test” means the ratio of (a) Consolidated EBITDA for the most recent period of four consecutive Fiscal Quarters for which financial information in respect thereof is available, to (b) the sum, without duplication, of (i) Consolidated Interest Expense for such period paid or payable in cash, plus (ii) the aggregate amount of dividends and other distributions paid in cash during such period in respect of Disqualified Stock by the Consolidated Parties on a consolidated basis.
“Real Estate” means all of each Obligor’s and each of its Subsidiaries now or hereafter owned or leased estates in real property, including all fees, leaseholds and future interests, together with all of each Obligor’s and each of its Subsidiaries’ now or hereafter owned or leased interests in the improvements thereon, the fixtures attached thereto and the easements appurtenant thereto.
“Reasonable Credit Judgment” means, as applicable, the Agent’s reasonable (from the perspective of a secured asset-based lender) judgment, exercised in good faith in accordance with customary business practices of the Agent for comparable asset-based lending transactions, as to any reserve or eligibility criteria which the Agent, as applicable, reasonably determines as being appropriate to reflect: (a) items that could reasonably be expected to adversely affect the Agent’s ability to realize upon the Collateral, (b) costs, expenses and other amounts that the Agent reasonably determines will need to be satisfied in connection with the realization upon the Collateral or (c) criteria, events, conditions, contingencies or risks that differ materially from facts or events occurring and known to the Agent on the Agreement Date and which directly and adversely affect any component of the applicable Borrowing Base.
“Receivables Entity” means a trust, bankruptcy remote entity or other special purpose entity which is a Subsidiary of the Company (or, if not a Subsidiary of the Company, the common equity of which is wholly owned, directly or indirectly, by the Company) and which is formed for the purpose of, and engages in no material business other than, acting as an issuer or a depositor in a Receivables Securitization Transaction (and, in connection therewith, owning accounts receivable, lease receivables, other rights to payment, leases and related assets and pledging or transferring any of the foregoing or interests therein).
“Receivables Securitization Transaction” means any sale, discount, assignment, conveyance, participation, contribution to capital, grant of security interest in, pledge or other transfer by the Company or any Subsidiary of the Company of accounts receivable, lease receivables or other payment obligations owing to the Company or such Subsidiary of the Company or any interest in any
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of the foregoing, together in each case with any collections and other proceeds thereof, any collection or deposit account related thereto, and any collateral, guarantees or other property (other than Inventory or Equipment) or claims supporting or securing payment by the obligor thereon of, or otherwise related to, or subject to leases giving rise to, any such receivables.
“Refinance” has the meaning specified in the definition of “Refinancing Indebtedness”.
“Refinanced Debt” has the meaning specified in Section 2.7(a).
“Refinancing Amendment” has the meaning specified in Section 2.7(f).
“Refinancing Closing Date” has the meaning specified in Section 2.7(d).
“Refinancing Commitments” has the meaning specified in Section 2.7(a).
“Refinancing Indebtedness” means with respect to any Indebtedness (the “Refinanced Indebtedness”), any other Indebtedness which extends, refinances, refunds, replaces or renews (collectively, “Refinance”) such Indebtedness; provided that (a) the principal amount (or accreted value, if applicable) of such Refinancing Indebtedness does not exceed the principal amount (or accreted value, if applicable) of the Refinanced Indebtedness except by an amount equal to unpaid accrued interest and premium (including applicable prepayment or redemption penalties) thereof plus fees and expenses incurred in connection therewith plus an amount equal to any existing commitment unutilized and letters of credit undrawn thereunder, (b) any Liens securing such Refinancing Indebtedness do not (i) attach to any property of any Obligor that did not secure the Refinanced Indebtedness and (ii) have the same (or junior) priority relative to the Agent’s Liens as the Liens securing the Refinanced Indebtedness, (c) such Refinancing Indebtedness shall not have a shorter maturity than the earlier of (i) the maturity of the Refinanced Indebtedness or (ii) the Maturity Date, and (d) if the Refinanced Indebtedness is Subordinated Indebtedness, then the terms and conditions of the Refinancing Indebtedness shall include subordination terms and conditions that are no less favorable to the Lenders in all material respects as those that were applicable to the Refinanced Indebtedness.
“Refinancing Lenders” has the meaning specified in Section 2.7(c).
“Refinancing Loan” has the meaning specified in Section 2.7(b).
“Refinancing Loan Request” has the meaning specified in Section 2.7(a).
“Refinancing Revolving Commitments” has the meaning specified in Section 2.7(a).
“Refinancing Revolving Lender” has the meaning specified in Section 2.7(c).
“Refinancing Revolving Loan” has the meaning specified in Section 2.7(b).
“Refinancing Term Commitments” has the meaning specified in Section 2.7(a).
“Refinancing Term Lender” has the meaning specified in Section 2.7(c).
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“Refinancing Term Loan” has the meaning specified in Section 2.7(b).
“Register” has the meaning specified in Section 13.21.
“Related Parties” means with respect to any Person, such Person’s Affiliates and the partners, officers, directors, trustees, employees, shareholders, members, attorneys and other advisors, agents and controlling persons of such Person and of such Person’s Affiliates and “Related Party” shall mean any of them (other than, in each case, the Company and its Subsidiaries and any of its controlling shareholders).
“Release” means a release, spill, emission, leaking, pumping, injection, deposit, disposal, discharge, dispersal, leaching or migration of a Contaminant into the indoor or outdoor environment or into or out of any Real Estate or other property, including the movement of Contaminants through or in the air, soil, surface water, groundwater or Real Estate or other property.
“Relinquished Property” has the meaning specified in the definition of “Like-Kind Exchange”.
“Rental Equipment” means tangible personal property which is offered for sale or rent (or offered for sale as used equipment) by an Obligor in the ordinary course of its business or used in the business of the Obligors and their Subsidiaries and included in fixed assets in the consolidated accounts of the Company, including Inventory that the Company currently describes as “rental equipment” in such consolidated accounts, but excluding any Spare Parts and Merchandise.
“Rent Reserves” means such reserves as may be established from time to time by the Agent in its Reasonable Credit Judgment with respect to leased locations or bailees of the Secured Obligors where Eligible Rental Equipment, Eligible Service Vehicles or Eligible Spare Parts and Merchandise is located to the extent the Agent has not received a Collateral Access Agreement from the lessor or bailee at any such location; provided that such reserves (i) for any location shall not exceed two months’ rent at such location and (ii) will not be established during a period of 90 days following the Closing Date (or such later date as shall be agreed to by the Agent in its sole discretion).
“Replacement Property” has the meaning specified in the definition of “Like-Kind Exchange”.
“Report” and “Reports” each has the meaning specified in Section 13.18(a).
“Reportable Event” means any of the events set forth in Section 4043(c) of ERISA or the regulations thereunder, other than any such event for which the 30-day notice requirement under ERISA has been waived in regulations issued by the PBGC.
“Required Lenders” means, at any time, Xxxxxxx having Revolving Credit Commitments representing at least 50.1% of the aggregate Revolving Credit Commitments at such time (excluding the Revolving Credit Commitment of any Lender that is a Defaulting Lender); provided that if the Revolving Credit Commitments have been terminated, the term “Required Lenders” means Lenders holding Revolving Loans (including Swingline Loans) representing at least 50.1% of the aggregate
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principal amount of Revolving Loans (including Swingline Loans) outstanding at such time (excluding Revolving Loans of any Lender that is a Defaulting Lender).
“Requirement of Law” means, as to any Person, any law (statutory or common), treaty, rule or regulation or determination of an arbitrator or of a Governmental Authority, in each case applicable to or binding upon the Person or any of its property or to which the Person or any of its property is subject.
“Rescindable Amount” has the meaning specified in Section 4.6(d).
“Reserves” means reserves that limit the availability of credit hereunder, consisting of reserves against Excess Availability, Eligible Accounts, Eligible Rental Equipment, Eligible Spare Parts and Merchandise, Eligible Service Vehicles or Eligible Unbilled Accounts, including (a) Bank Product Reserves, (b) Rent Reserves, (c) warehousemen’s and bailees’ charges, (d) Priority Payable Reserves and (e) Availability Reserves, established, in the case of reserves other than Pari Passu Debt Reserves and Waterfall Priority Hedge Agreement Reserves, by the Agent from time to time in the Agent’s Reasonable Credit Judgment in accordance with Section 2.9 and, in the case of Pari Passu Debt Reserves and Waterfall Priority Hedge Agreement Reserves, in accordance with such definitions.
“Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“Responsible Officer” means the president, any vice president, chief executive officer, chief financial officer, secretary, assistant secretary, treasurer, assistant treasurer, legal counsel, or any other executive or financial officer of the Company or any other Obligor, or any other officer having substantially the same authority and responsibility; or, with respect to compliance with financial covenants and the preparation of the Borrowing Base Certificate, the president, chief financial officer or treasurer of the Company, or any other officer having substantially the same authority and responsibility.
“Restricted Subsidiary” means any Subsidiary of the Company that is not an Unrestricted Subsidiary.
“Revolving Credit Commitments” means, at any date for any Lender, the U.S. Facility Commitment of such Lender and the Multicurrency Facility Commitment of such Lender, which shall not exceed the aggregate principal amount set forth on Schedule 1.1 under the heading “Revolving Credit Commitment” or on the signature page of the Assignment and Acceptance by which it became a Lender, as modified from time to time pursuant to the terms of this Agreement or to give effect to any applicable Assignment and Acceptance; and “Revolving Credit Commitments” means the aggregate principal amount of the Revolving Credit Commitments of all Lenders.
“Revolving Credit Lender” means a Lender with a Revolving Credit Commitment or an outstanding Revolving Loan.
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“Revolving Loans” means the U.S. Revolving Loans and the Multicurrency Revolving Loans, as the context requires.