(b) No such US Borrowing shall exceed US Availability or cause the Aggregate Outstandings to exceed Total Excess Availability (with Total Excess Availability for this purpose only calculated as if Aggregate Outstandings, US Aggregate Outstandings and UK Aggregate Outstandings were equal to zero);
(a) any failure by any Borrower to pay the principal of any of its Obligations when due, whether on demand or otherwise, or failure by any Borrower to pay any interest on any of its Obligations or any fee or other amount owing under either Credit Agreement or under any other Loan Document when due, whether upon demand or otherwise, and if such amount is not paid by a charge to the Loan Account of the Applicable Borrowers, such failure (with respect to any Obligation other than the payment of principal) is not cured by the payment in full within 2 Applicable Business Days from the due date;
(b) any representation or warranty made or deemed made by any Credit Party in either Credit Agreement or in any of the other Loan Documents, any Financial Statement, or any certificate furnished by any Credit Party at any time to any Agent or any Lender shall prove to be untrue in any material respect as of the date on which made, deemed made, or furnished;
(c) (i) any default shall occur in the observance or performance of any of the covenants and agreements contained inSections 5.2(k),7.2,7.5,7.8through7.15, inclusive,7.17through7.19, inclusive and7.21through7.36,inclusive, of the US Credit Agreement and the UK Credit Agreement,Section 11of the Security Agreement orSection 5of the UK Debenture, (ii) any default shall occur in the observance or performance of any of the covenants and agreements contained inSections 5.2(other than5.2(k)) or5.3of the US Credit Agreement or the UK Credit Agreement and such default shall continue for three (3) days or more; or (iii) any default shall occur in the observance or performance of any of the other covenants or agreements contained in any other Section of either Credit Agreement or any other Loan Document, or any other agreement entered into at any time to which any Credit Party and any Agent or any Lender are party (including in respect of any Bank Products) and such default shall continue for fifteen (15) days or more;
(d) any default shall occur with respect to any Debt (other than the Obligations) of any Credit Party or any of its Subsidiaries in an outstanding principal amount which exceeds the Dollar Equivalent of $5,000,000, or under any agreement or instrument under or pursuant to which any such Debt may have been issued, created, assumed, or guaranteed by any Credit Party or any of its Subsidiaries, and such default shall continue for more than the period of grace, if any, therein specified, if the effect thereof (with or without the giving of notice or further lapse of time or both) is to accelerate, or to permit the holders of any such Debt to accelerate, the maturity of any such Debt; or any such Debt shall be declared due and payable or be required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof;
(e) any Credit Party or any of its Subsidiaries shall (i) file a voluntary petition in bankruptcy or file a voluntary petition or application or an answer or otherwise commence any action or proceeding seeking reorganization, arrangement, consolidation, compromise or readjustment of its debts or seeking a stay which has the effect of staying any creditor or for any other relief under the federal Bankruptcy Code, as amended, or under any other bankruptcy, insolvency, liquidation, winding-up, corporate or similar, equivalent, or applicable act or law, state, federal, provincial or foreign, in any jurisdiction, now or hereafter existing, or consent to, approve of, or acquiesce in, any such petition, action or proceeding; (ii) apply for or acquiesce in the appointment of an interim receiver, a receiver, a receiver and manager, assignee, liquidator, sequestrator, custodian, monitor, administrator, trustee or similar officer for it or for all or any part of its property; (iii) make an assignment for the benefit of creditors; or (iv) be unable generally to pay its debts as they become due;
(f) an involuntary petition shall be filed or application made or an action or proceeding otherwise commenced seeking reorganization, arrangement, consolidation, compromise, or readjustment of the debts of any Credit Party or any of its Subsidiaries or for any other relief under the federal Bankruptcy Code, as amended, or under any other bankruptcy, insolvency, liquidation, winding-up, corporate or similar, equivalent, or applicable act or law, state, federal, provincial or foreign, in any jurisdiction, now or hereafter existing and such petition or proceeding shall not be dismissed within sixty (60) days after the filing or commencement thereof or an order of relief shall be entered with respect thereto;
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(g) an interim receiver, administrator, administrative receiver, receiver, assignee, liquidator, sequestrator, custodian, monitor, trustee or similar officer for any Credit Party or any of its Subsidiaries or for all or any part of its property shall be appointed or a warrant of attachment, execution or similar process shall be issued in any jurisdiction against any part of the property of any Credit Party or any of their respective Subsidiaries;
(h) any Credit Party shall file a certificate of dissolution or like process under applicable state, federal, provincial or foreign, law or shall be liquidated, dissolved or wound-up or shall commence or have commenced against it any action or proceeding for dissolution, winding-up or liquidation, or shall take any corporate action in furtherance thereof except for the dissolution of any Non-Guarantor Subsidiary or as otherwise permitted by this Agreement;
(i) all or any material part of the property of any Credit Party or any of its Subsidiaries shall be nationalized, expropriated or condemned, seized or otherwise appropriated, or custody or control of such property or of any Credit Party or such Subsidiary shall be assumed by any Governmental Authority or any court of competent jurisdiction at the instance of any Governmental Authority, except where contested in good faith by proper proceedings diligently pursued where a stay of enforcement is in effect;
(j) any Loan Document shall be terminated, revoked or declared void or invalid or unenforceable by a court of competent jurisdiction or the enforceability thereof is challenged by any Credit Party or any of its Subsidiaries or any other obligor;
(k) one or more judgments, orders, decrees or arbitration awards is entered against any Credit Party or any of its respective Subsidiaries involving, in the aggregate, liability (to the extent not covered by independent third-party insurance as to which the insurer does not dispute coverage) as to any single or related or unrelated series of transactions, incidents or conditions, of the Dollar Equivalent of $5,000,000 or more, and the same shall remain unsatisfied, unvacated and unstayed pending appeal for a period of thirty (30) days after the entry thereof;
(l) any loss, theft, damage or destruction of any item or items of Collateral or other property of any Credit Party or any of its Subsidiary occurs which could reasonably be expected to cause a Material Adverse Effect and is not adequately covered by insurance;
(m) there is filed against any Credit Party or any of its Subsidiaries any action, suit or proceeding under any federal or state racketeering statute (including the Racketeer Influenced and Corrupt Organization Act of 1970), which action, suit or proceeding (i) is not dismissed within one hundred twenty (120) days, and (ii) could reasonably be expected to result in the confiscation or forfeiture of any material portion of the Collateral;
(n) for any reason other than the failure of the Applicable Security Agent to take any action available to it to maintain perfection of the Applicable Agents’ Liens pursuant to the Loan Documents, any Loan Document ceases to be in full force and effect or any Lien with respect to any material portion of the Collateral intended to be secured thereby ceases to be, or is not, valid, perfected and prior to all other Liens (other than Permitted Liens) or is terminated, revoked or declared void by a court of competent jurisdiction;
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(o) an ERISA Event shall occur with respect to a Pension Plan or Multiemployer Plan which has resulted or could reasonably be expected to result in liability of any Credit Party under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount in excess of the Dollar Equivalent of $1,000,000; (ii) the aggregate amount of Unfunded Pension Liability among all Pension Plans at any time exceeds the Dollar Equivalent of $1,000,000; or (iii) any Borrower or any of its ERISA Affiliates shall fail to pay when due, after the expiration of any applicable grace period, any installment payment with respect to its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount in excess of the Dollar Equivalent of $1,000,000;
(p) there occurs a Change in Control;
(q) there occurs an event having a Material Adverse Effect;
(r) (i) any UK Credit Party is unable or admits inability to pay its debts as they fall due, suspends making payments on any of its debts or, by reason of actual or anticipated financial difficulties, commences negotiations with one or more of its creditors with a view to rescheduling any of its indebtedness; (ii) the value of the assets of any UK Credit Party is less than its liabilities (taking into account contingent and prospective liabilities); or (iii) a moratorium is declared in respect of any indebtedness of any UK Credit Party;
(s) any corporate action, legal proceedings, application, petition or other procedure or step is taken in relation to: (i) the suspension of payments, a moratorium of any indebtedness, winding-up, dissolution, administration or reorganization (by way of voluntary arrangement, scheme of arrangement or otherwise and including, without limitation, under or in connection with Chapter 11 of the United States Bankruptcy Code) of any UK Credit Party; (ii) a composition, assignment or arrangement with any creditor of any UK Credit Party; (iii) the appointment of a liquidator, receiver, examiner, administrator, administrative receiver, compulsory manager or other similar officer in respect of any UK Credit Party or any of its assets; or (iv) enforcement of any lien over any assets of any UK Credit Party, (v) or any analogous procedure or step is taken in any jurisdiction; or
(t) there occurs any Event of Default under or in connection with the UK Credit Agreement.
9.2Remedies.
(a) (i) Subject to clauses (iv) and (v) below, if a Default or an Event of Default exists: (A) the Administrative Agent under the US Credit Agreement and the UK Agent under the UK Credit Agreement may, in their collective discretion, and shall, at the direction of the Required Lenders, without notice to or demand on the Borrowers or any other Credit Party reduce the Maximum Amount; (B) the Administrative Agent, in its capacity as Administrative Agent under the US Credit Agreement, may, in its discretion, and shall, at the direction of the US Required Lenders (I) reduce the Maximum US Amount and/or the advance rates against Eligible Accounts and/or Eligible Rental Fleet Assets and/or Eligible Machinery and Equipment and/or Eligible Sales Inventory used in computing the US Borrowing Base or reduce one or more of the other elements used in computing the US Borrowing Base; (II) restrict the amount of or refuse to
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make US Revolving Loans to one or more of the US Borrowers; and (III) restrict or refuse to provide Letters of Credit or Credit Support to one or more of the US Borrowers; or (C) the UK Agent, in its capacity as UK Agent under the UK Credit Agreement, may, in its discretion, and shall, at the direction of the UK Required Lenders shall (I) reduce the Maximum UK Amount and/or the advance rates against Eligible Accounts and/or Eligible Rental Fleet Assets and/or Eligible Machinery and Equipment and/or Eligible Sales Inventory used in computing the UK Borrowing Base or reduce one or more of the other elements used in computing the UK Borrowing Base; (II) restrict the amount of or refuse to make UK Revolving Loans to one or more of the UK Borrowers; and (III) restrict or refuse to provide Letters of Credit or Credit Support to one or more of the UK Borrowers.
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| (ii) If an Event of Default exists, the Administrative Agent, in its capacity as Administrative Agent under the US Credit Agreement, may, in its discretion, and shall, at the direction of the US Required Lenders, do one or more of the following, in addition to the actions described in the preceding sentence, at any time or times and in any order, without notice to or demand on the US Borrowers or any other Credit Party: (A) terminate the US Commitments with respect to the Total US Facility and the US Credit Agreement; (B) declare any or all US Obligations of the US Borrowers to be immediately due and payable;provided,however, that upon the occurrence of any Event of Default described inSections 9.l(e),9.1(f),9.1(g) or9.1(h) of the US Credit Agreement with respect to any US Borrower, the US Commitments shall automatically and immediately expire and all US Obligations shall automatically become immediately due and payable without notice or demand of any kind; (C) require the US Borrowers to cash collateralize all US Letter of Credit Obligations outstanding under the US Credit Agreement; and (D) pursue its other rights and remedies under the US Loan Documents and applicable law. |
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| (iii) If an Event of Default exists, the UK Agent, in its capacity as UK Agent under the UK Credit Agreement, may, in its discretion, and shall, at the direction of the UK Required Lenders, do one or more of the following, in addition to the actions described in the preceding sentence, at any time or times and in any order, without notice to or demand on the UK Borrowers or any other Credit Party: (A) terminate the UK Commitments with respect to the Total UK Facility, and Agreement; (B) declare any or all UK Obligations of the UK Borrowers to be immediately due and payable; (C) require the UK Borrowers to cash collateralize all Letter of Credit Obligations outstanding under the UK Credit Agreement; and (D) pursue its other rights and remedies under the UK Loan Documents and applicable law. |
(b) Event of Default has occurred and is continuing and without prejudice to all or any rights it may otherwise have under the laws of any jurisdiction or under the terms of any other Loan Document: (i) the Administrative Agent shall have for the benefit of the US Agents and the US Lenders, in addition to all other rights of the US Agents and the US Lenders, the rights and remedies of a secured party under the US Loan Documents, the UCC and the Companies Act; (ii) the Administrative Agent may, at any time, take possession of any or all of the US Collateral and keep it on the applicable US Credit Party’s premises, at no cost to the
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Administrative Agent, any US Agent or any US Lender, or remove any part of it to such other place or places as the Administrative Agent may desire; and (iii) the Administrative Agent may sell and deliver any US Collateral at public or private sales, for cash, upon credit or otherwise, at such prices and upon such terms as the Administrative Agent deems advisable, in its sole discretion, and may, if the Administrative Agent deems it reasonable, postpone or adjourn any sale of the US Collateral by an announcement at the time and place of sale or of such postponed or adjourned sale without giving a new notice of sale. Without in any way requiring notice to be given in the following manner, the US Borrowers agree that any notice by the Administrative Agent of sale, disposition or other intended action hereunder or in connection herewith, whether required by the UCC, other applicable laws or otherwise, shall constitute reasonable notice to the US Borrowers if such notice is mailed by registered or certified mail, return receipt requested, postage prepaid, or is delivered personally against receipt, at least five US Business Days prior to such action to the US Borrowers’ address specified in or pursuant toSection 13.8 of the US Credit Agreement. If any US Collateral is sold on terms other than payment in full at the time of sale, no credit shall be given against the US Obligations until the Administrative Agent or the US Lenders receive payment, and if the buyer defaults in payment, the Administrative Agent may resell the US Collateral without further notice to the Borrowers. In the event the Administrative Agent seeks to take possession of all or any portion of the US Collateral by judicial process, the US Borrowers irrevocably waive: (A) the posting of any bond, surety or security with respect thereto which might otherwise be required; (B) any demand for possession prior to the commencement of any suit or action to recover the Collateral; and (C) any requirement that the Administrative Agent retain possession and not dispose of any US Collateral until after trial or final judgment. The US Borrowers agree that the Administrative Agent has no obligation to preserve rights to the US Collateral or marshal any US Collateral for the benefit of any Person. The Administrative Agent is hereby granted a license or other right to use, without charge, the US Borrowers’ labels, patents, copyrights, name, industrial designs, trade secrets, trade names, trademarks, and advertising matter, or any similar property, in completing production of, advertising or selling any US Collateral, and such US Borrowers’ rights under all licenses and all franchise agreements shall inure to the Administrative Agent’s benefit for such purpose. The proceeds of sale of the US Collateral of any US Obligor shall be applied first to all expenses of sale, including attorneys’ fees, and then to the Obligations of such US Obligor. The Administrative Agent will return any excess to the US Borrowers and the US Credit Parties shall remain liable for any deficiency.
(c) If an Event of Default occurs, the US Borrowers hereby waive all rights to notice and hearing prior to the exercise by the Administrative Agent of the Administrative Agent’s rights to repossess the Collateral without judicial process or to reply, attach or levy upon the US Collateral without notice or hearing.
ARTICLE 10.
TERM AND TERMINATION
10.1Term and Termination. The term of this Agreement shall end on the Stated Termination Date unless sooner terminated in accordance with the terms hereof. The Administrative Agent upon direction from the Required Lenders may terminate the US Commitments under this Agreement without notice upon the occurrence of an Event of Default. Upon the effective date of termination of this Agreement for any reason whatsoever, all US
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Obligations (including all unpaid principal, accrued and unpaid interest and any early termination or prepayment fees or penalties) shall become immediately due and payable and the Applicable Borrower shall immediately arrange for the cancellation and return of Letters of Credit then outstanding. Notwithstanding the termination of this Agreement, until all Obligations are paid and performed in full in cash, each US Borrower shall remain bound by the terms of this Agreement and shall not be relieved of any of its Obligations hereunder or under any other Loan Document, and the Agents and the Lenders shall retain all their rights and remedies hereunder (including the Agents’ Liens in and all rights and remedies with respect to all then existing and after-arising Collateral).
ARTICLE 11.
AMENDMENTS; WAIVERS; PARTICIPATIONS; ASSIGNMENTS; SUCCESSORS
11.1Amendments and Waivers.
(a) No amendment or waiver of any provision of this Agreement or any other Loan Document, including, without limitation, the UK Credit Agreement and the UK Loan Documents, and no consent with respect to any departure by the Credit Parties therefrom shall be effective unless the same shall be consented to in writing by the Required Lenders and executed by the Applicable Required Lenders (or by the Responsible Agent at the written request of the Applicable Required Lenders) and the Applicable Borrowers and then any such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given.
(b) No amendment or waiver of any provision of this Agreement or any other Loan Document, including, without limitation, the UK Credit Agreement and the UK Loan Documents shall be effective unless the same shall be consented to in writing by 100% of the Lenders and executed by the Applicable Lenders (or by the Responsible Agent at the written request of the Applicable Lenders and the Applicable Borrowers), if such waiver, amendment or consent shall do any of the following:
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| (i) increase or extend the US Commitment or the UK Commitment; |
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| (ii) postpone or delay any date fixed by this Agreement or any other Loan Document, for any payment of principal, interest, fees or other amounts due to the Lenders (or any of them) hereunder or under any other Loan Document, including, without limitation, the UK Credit Agreement; |
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| (iii) reduce the principal of, or the rate of interest specified herein on any Loan, or any fees or other amounts payable hereunder or under any other Loan Document, including, without limitation, the UK Credit Agreement; |
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| (iv) change the percentage of the US Commitments, the UK Commitments or of the aggregate unpaid principal amount of the Loans which is required for the Lenders or any of them to take any action hereunder or under any other Loan Document; |
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| (v) increase any of the percentages set forth in the definition of the US Borrowing Base or the UK Borrowing Base (other than as the result of delivery of new Appraisals); |
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| (vi) amend thisSection 11.1 or any provision of this Agreement or the UK Credit Agreement providing for consent or other action by all Lenders; |
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| (vii) release any Guaranties other than as permitted bySection 12.11; |
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| (viii) change the definition of “Required Lenders,” “US Required Lenders,” “UK Required Lenders,” or “Pro Rata Share”; |
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| (ix) increase the Maximum Amount, the Maximum US Amount, the Maximum UK Amount, the Maximum Consolidated Borrowing Base Amount or the Letter of Credit Subfacility; or |
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| (x) release any Collateral other than as permitted bySection 12.11 hereof andSection12.11 of the UK Credit Agreement. |
provided,however, that the Responsible Agent may, in its sole discretion and notwithstanding the limitations contained inclauses (v) and(ix) above and any other terms of this Agreement, make Agent Advances in accordance withSection 1.2(i) hereof orSection 1.2(i) of the UK Credit Agreement and,providedfurther, that no amendment, waiver or consent shall, unless in writing and signed by the Responsible Agent, affect the rights or duties of the Responsible Agent under this Agreement or any other Loan Document; andprovidedfurther, thatSchedule 1 hereto andSchedule 1 to the UK Credit Agreement may be amended from time to time by the Responsible Agent alone to reflect assignments of US Commitments and the UK Commitments or increases or decreases in US Commitments and UK Commitments in accordance herewith and the UK Credit Agreement.
(c)[Intentionally deleted]
(d)[Intentionally deleted]
(e)[Intentionally deleted]
(f)[Intentionally deleted]
(g) If, in connection with any proposed amendment, waiver or consent (a “Proposed Change”) requiring the consent of all Lenders, the consent of Required Lenders is obtained, but the consent of other US Lenders is not obtained (any such Lender whose consent is not obtained as described in this clause and being referred to as a “Non-Consenting US Lender”), then, so long as the Administrative Agent is not a Non-Consenting US Lender, at the US Borrower Representative’s request, the Administrative Agent or an Eligible Assignee shall have the right (but not the obligation) with the Administrative Agent’s approval, to purchase from the Non-Consenting US Lenders, and the Non-Consenting US Lenders agree that they shall sell, all
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the Non-Consenting US Lenders’ US Commitments and UK Commitments and/or US Revolving Loans and UK Revolving Loans (including, for the avoidance of doubt, all of such Non-Consenting US Lender’s UK Commitments and UK Revolving Loans by way of a UK Transfer Agreement) for an amount equal to the principal balances of such Loans and all accrued interest and fees with respect thereto through the date of sale pursuant to Assignment and Acceptance(s), without premium or discount.
11.2Assignments; Participations.
(a) Any US Lender may, with the written consent of the Administrative Agent (which consent, in each case, shall not be unreasonably withheld), assign and delegate to one or more Eligible Assignees (provided that no consent of the Administrative Agent shall be required in connection with any assignment and delegation by a US Lender to an Affiliate of such US Lender) (each an “Assignee”) all, or any ratable part of all, of the US Revolving Loans, the US Commitments and the other rights and obligations of such US Lender hereunder, in the case of US Revolver Loans in a minimum amount of the Dollar Equivalent of $10,000,000;provided that, unless an assignor US Lender has assigned and delegated all of its rights and obligations with respect to all of its Revolving Loans (including its US Revolving Loans and UK Revolving Loans) and/or Aggregate Commitments (including its US Commitments and its UK Commitments), no such assignment and/or delegation shall be permitted unless, after giving effect thereto, such assignor US Lender retains an Aggregate Commitment (including its aggregate US Commitments, its aggregate UK Commitments, and the aggregate of any UK Commitments of any Affiliate of the US Lender) in a minimum amount of the Dollar Equivalent of $20,000,000 andprovided further that any such assignment shall effect an assignment of a ratable part of such US Lender’s Aggregate Commitments and other rights and obligations;provided,however, that the US Borrowers and the Administrative Agent may continue to deal solely and directly with such US Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to the US Borrowers and the US Agent by such US Lender and the Assignee; (ii) such US Lender and its Assignee shall have delivered to the US Borrowers and the Administrative Agent an Assignment and Acceptance in the form ofExhibit F (“Assignment and Acceptance”) together with any note or notes subject to such assignment and (iii) the assignor US Lender or Assignee has paid to the Administrative Agent a processing fee in the amount of $3,500 andprovided further that no such assignment shall be effective unless and until the assignor US Lender, in its capacity as a UK Lender, shall also have novated aprorata portion of its interest in its UK Revolving Loans and/or UK Commitments under the UK Credit Facility pursuant to and in accordance withSection 11.2(a) of the UK Credit Facility and delivered to the UK Agent a UK Transfer Agreement with respect to such novation (provided that no such novation of UK Revolving Loans and/or UK Commitments shall be required in connection with transfer by a US Lender to its Affiliate). The US Borrowers agree to promptly execute and deliver new promissory notes and replacement promissory notes as reasonably requested by the Administrative Agent to evidence assignments of the US Revolving Loans, the UK Revolving Loans, the US Commitments and the UK Commitments in accordance herewith.
(b) From and after the date that the Administrative Agent notifies the assignor US Lender that it has received the executed Assignments and Acceptance and the UK Agent has
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received the executed UK Transfer Agreement required hereby and payment of the above-referenced processing fee, and (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations, including, but not limited to, the obligation of a US Lender to participate in Letters of Credit and Credit Support, have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a US Lender under the Loan Documents, and (ii) the assignor US Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning US Lender’s rights and obligations under this Agreement, such US Lender shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Acceptance, the assigning US Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning US Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto or the attachment, perfection, or priority of any Lien granted by any US Borrower or any of its Subsidiaries to the Administrative Agent or any US Lender in the Collateral; (ii) such assigning US Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Credit Party or any of its Subsidiaries or the performance or observance by any Credit Party or any of its Subsidiaries of any of their respective obligations under this Agreement or any other Loan Document furnished pursuant hereto; (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such Assignee will, independently and without reliance upon the Administrative Agent, such assigning US Lender or any other US Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such Assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative Agent by the terms hereof, together with such powers, including the discretionary rights and incidental power, as are reasonably incidental thereto; and (vi) such Assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a US Lender.
(d) Immediately upon satisfaction of the requirements ofSection 11.2(a), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the US Commitments arising therefrom. The US Commitment, if any, allocated to each Assignee shall reduce such US Commitments of the assigning US Lender pro tanto.
(e) Any US Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of the Borrowers (a “Participant”) participating interests in any US Revolving Loans, the US Commitment of that Lender and the
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other interests of that Lender (the “originating US Lender”) hereunder and under the other US Loan Documents;provided, however, that (i) the originating US Lender’s obligations under this Agreement shall remain unchanged, (ii) the originating US Lender shall remain solely responsible for the performance of such obligations, (iii) the US Borrowers and the US Agents shall continue to deal solely and directly with the originating US Lender in connection with the originating US Lender’s rights and obligations under this Agreement and the other US Loan Documents, and (iv) no US Lender shall transfer or grant any participating interest under which the Participant has rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other US Loan Document except the matters set forth inSection 11.1(b)(i),(ii) and(iii), and all amounts payable by the US Borrowers hereunder shall be determined as if such US Lender had not sold such participation;providedfurther that no such sale of a participating interest shall be effective unless and until the originating US Lender, in its capacity as a UK Lender, shall also have sold apro rata participating portion of its interest in its UK Revolving Loans and/or UK Commitments under the UK Credit Facility pursuant to and in accordance withSection 11.2(e) of the UK Credit Facility. Notwithstanding the foregoing, if amounts outstanding under this Agreement are due and unpaid, or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent and subject to the same limitation as if the amount of its participating interest were owing directly to it as a US Lender under this Agreement.
(f) Notwithstanding any other provision in this Agreement, any US Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Board or U.S. Treasury Regulation 31 CFR §203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
ARTICLE 12.
THE AGENTS
12.1Appointment and Authorization. Each US Lender hereby redesignates and reappoints Bank as its Administrative Agent under this Agreement and the other Loan Documents and each US Lender hereby irrevocably authorizes the Administrative Agent to take such action on its behalf under the provisions of this Agreement and each other Loan Document and to exercise such powers and perform such duties as are expressly delegated to it by the terms of this Agreement or any other Loan Document, together with such powers as are reasonably incidental thereto. The Administrative Agent agrees to act as such on the express conditions contained in thisArticle 12. The provisions of thisArticle 12 are solely for the benefit of the Administrative Agent and the US Lenders and the Credit Parties shall have no rights as third party beneficiaries of any of the provisions contained herein. Notwithstanding any provision to the contrary contained elsewhere in this Agreement or in any other Loan Document, the US Agents shall not have any duties or responsibilities, except those expressly set forth herein, nor shall the US Agents have or be deemed to have any fiduciary relationship with any US Lender, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against the US Agents. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this
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Agreement with reference to any US Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties. Except as expressly otherwise provided in this Agreement, each US Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which an Agent is expressly entitled to take or assert under this Agreement and the other Loan Documents, including (a) the determination of the applicability of ineligibility criteria with respect to the calculation of the US Borrowing Base, (b) the making of Agent Advances pursuant toSection 1.2(i), and (c) the exercise of remedies pursuant toSection 9.2, and any action so taken or not taken shall be deemed consented to by the Lenders.
12.2Delegation of Duties. Each Agent may execute any of its duties under this Agreement or any other Loan Document by or through agents, employees or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. No US Agent shall be responsible for the negligence or misconduct of any agent or attorney-in-fact that it selects as long as such selection was made without gross negligence or willful misconduct.
12.3Liability of Agent. None of the Agent-Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement or any other Loan Document or the transactions contemplated hereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Lenders for any recital, statement, representation or warranty made by any US Borrower or any Subsidiary or Affiliate of any US Borrower, or any officer thereof, contained in this Agreement or in any other Loan Document, or in any certificate, report, statement or other document referred to or provided for in, or received by any US Agent under or in connection with, this Agreement or any other Loan Document, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Loan Document, or for any failure of any US Borrower or any other party to any Loan Document to perform its obligations hereunder or thereunder. No Agent-Related Person shall be under any obligation to any US Lender to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement or any other Loan Document, or to inspect the properties, books or records of such US Borrower or any of the US Borrowers’ Subsidiaries or Affiliates.
12.4Reliance by Each Agent. Each US Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, telex or telephone message, statement or other document or conversation believed by it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons, and upon advice and statements of legal counsel (including counsel to the Borrower), independent accountants and other experts selected by such US Agent. Each US Agent shall be fully justified in failing or refusing to take any action under this Agreement or any other Loan Document unless it shall first receive such advice or concurrence of the Required Lenders as it deems appropriate and, if it so requests, it shall first be indemnified to its satisfaction by the Lenders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. Each US Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement or any other Loan
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Document in accordance with a request or consent of the Required Lenders (or all Lenders if so required bySection 11.1) and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the US Lenders.
12.5Notice of Default. No US Agent shall be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless such US Agent shall have received written notice from a Lender or the US Borrower Representative referring to this Agreement, describing such Default or Event of Default and stating that such notice is a “notice of default.” Each US Agent will notify the US Lenders of its receipt of any such notice. Each US Agent shall take such action with respect to such Default or Event of Default as may be requested by the Required US Lenders;provided,however, that unless and until such US Agent has received any such request, such US Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Default or Event of Default as it shall deem advisable.
12.6Credit Decision. Each US Lender acknowledges that none of the Agent-Related Persons has made any representation or warranty to it, and that no act by any US Agent hereinafter taken, including any review of the affairs of the US Borrowers and their Affiliates, shall be deemed to constitute any representation or warranty by any Agent-Related Person to any US Lender. Each US Lender represents to each US Agent that it has, independently and without reliance upon any Agent-Related Person and based on such documents and information as it has deemed appropriate, made its own appraisal of and investigation into the business, prospects, operations, property, financial and other condition and creditworthiness of the US Borrowers and their Affiliates, and all applicable bank regulatory laws relating to the transactions contemplated hereby, and made its own decision to enter into this Agreement and to extend credit to the US Borrowers. Each US Lender also represents that it will, independently and without reliance upon any Agent-Related Person and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under this Agreement and the other Loan Documents, and to make such investigations as it deems necessary to inform itself as to the business, prospects, operations, property, financial and other condition and creditworthiness of the US Borrowers. Except for notices, reports and other documents expressly herein required to be furnished to the US Lenders by a US Agent, such US Agent shall not have any duty or responsibility to provide any US Lender with any credit or other information concerning the business, prospects, operations, property, financial and other condition or creditworthiness of the Credit Parties or any of their Subsidiaries which may be or come into the possession of any of the Agent-Related Persons.
12.7Indemnification. Whether or not the transactions contemplated hereby are consummated, the US Lenders shall indemnify upon demand the Agent-Related Persons (to the extent not reimbursed by or on behalf of the US Borrowers and without limiting the obligation of the Borrowers to do so), in accordance with their Pro Rata Shares, from and against any and all Indemnified Liabilities as such term is defined inSection 13.11 and any liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, charges, expenses and disbursements (including Attorney Costs) related to or resulting from any claim or the assertion of any defense based on equitable subordination;provided,however, that no US Lender shall be liable for the payment to the Agent-Related Persons of any portion of such Indemnified Liabilities resulting
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solely from such Person’s gross negligence or willful misconduct. Without limitation of the foregoing, each US Lender shall reimburse each US Agent upon demand for its Pro Rata Share of any costs or out-of-pocket expenses (including Attorney Costs) incurred by such US Agent in connection with the preparation, execution, delivery, administration, modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under, this Agreement, any other Loan Document, or any document contemplated by or referred to herein, to the extent such the US Agent is not reimbursed for such expenses by or on behalf of the US Borrowers. The undertaking in this Section shall survive the payment of all Obligations hereunder and the resignation or replacement of any US Agent.
12.8Agent in Individual Capacity. The Bank and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting or other business with the Borrowers and their Subsidiaries and Affiliates as though the Bank were not a US Agent hereunder and without notice to or consent of the US Lenders. The Bank or its Affiliates may receive information regarding the Borrowers, their Affiliates and Account Debtors (including information that may be subject to confidentiality obligations in favor of the Borrowers or their Affiliates) and acknowledge that each US Agent and the Bank shall be under no obligation to provide such information to them. With respect to its US Revolving Loans, the Bank shall have the same rights and powers under this Agreement as any other Lender and may exercise the same as though it were not an Agent, and the terms “Lender” and “Lenders” include the Bank in its individual capacity.
12.9Successor Agent. Each US Agent may resign as US Agent upon at least 30 days’ prior notice to the Lenders and the Applicable Borrower Representative, such resignation to be effective upon the acceptance of a successor agent to its appointment as the appropriate Agent;provided that, prior to the occurrence and continuation of a Default or Event of Default, the Administrative Agent shall not resign unless the Bank shall also resign as UK Agent under the UK Credit Agreement. In the event the Bank sells all of its Aggregate Commitment and Loans as part of a sale, transfer or other disposition by the Bank of substantially all of its loan portfolio containing this Agreement, the Bank shall resign as Agent and such purchaser or transferee shall become the successor Administrative Agent, in each respective capacity, hereunder. Subject to the foregoing, if any US Agent resigns under this Agreement, the Required Lenders shall appoint from among the US Lenders a successor agent in such capacity for the US Lenders. If no successor agent is appointed prior to the effective date of the resignation of an US Agent, such US Agent may appoint, after consulting with the US Lenders and the Borrower, a successor agent in such capacity from among the Lenders. Upon the acceptance of its appointment as successor agent hereunder, such successor agent shall succeed to all the rights, powers and duties of the relevant retiring US Agent and the term “Administrative Agent”, “UK Agent” or “UK Security Trustee”, as applicable, shall mean such successor agent and the retiring US Agent’s appointment, powers and duties as such a US Agent shall be terminated. After any retiring US Agent’s resignation hereunder as a US Agent, the provisions of thisArticle 12 shall continue to inure to its benefit as to any actions taken or omitted to be taken by it while it was US Agent under this Agreement.
12.10Withholding Tax.
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(a) If any US Lender is a “foreign corporation, partnership or trust” within the meaning of the Code and such US Lender claims exemption from, or a reduction of, US withholding tax under Sections 1441 or 1442 of the Code, such US Lender agrees with and in favor of the Administrative Agent, to deliver to the Administrative Agent:
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| (i) if such US Lender claims an exemption from, or a reduction of, withholding tax under a United States of America tax treaty, properly completed IRS Forms W-8BEN and W-8ECI before the payment of any interest in the first calendar year and before the payment of any interest in each third succeeding calendar year during which interest may be paid under this Agreement; |
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| (ii) if such US Lender claims that interest paid under this Agreement is exempt from United States of America withholding tax because it is effectively connected with a United States of America trade or business of such US Lender, two properly completed and executed copies of IRS Form W-8ECI before the payment of any interest is due in the first taxable year of such US Lender and in each succeeding taxable year of such US Lender during which interest may be paid under this Agreement, and IRS Form W-9; and |
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| (iii) such other form or forms as may be required under the Code or other laws of the United States of America as a condition to exemption from, or reduction of, United States of America withholding tax. |
Such US Lender agrees to promptly notify the Administrative Agent of any change in circumstances which would modify or render invalid any claimed exemption or reduction.
(b) If any US Lender claims exemption from, or reduction of, withholding tax under a United States of America tax treaty by providing IRS Form W-8BEN and such US Lender sells, assigns, grants a participation in, or otherwise transfers all or part of the Obligations owing to such US Lender, such US Lender agrees to notify the Administrative Agent of the percentage amount in which it is no longer the beneficial owner of Obligations of the Borrower to such Lender. To the extent of such percentage amount, the Administrative Agent will treat such Lender’s IRS Form W-8BEN as no longer valid.
(c) If any US Lender claiming exemption from United States of America withholding tax by filing IRS Form W-8ECI with the Administrative Agent sells, assigns, grants a participation in, or otherwise transfers all or part of the Obligations owing to such US Lender, such US Lender agrees to undertake sole responsibility for complying with the withholding tax requirements imposed by Sections 1441 and 1442 of the Code.
(d) If any US Lender is entitled to a reduction in the applicable withholding tax, the Administrative Agent may withhold from any interest payment to such US Lender an amount equivalent to the applicable withholding tax after taking into account such reduction. If the forms or other documentation required by subsection (a) of this Section are not delivered to
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the Administrative Agent, then the Administrative Agent may withhold from any interest payment to such US Lender not providing such forms or other documentation an amount equivalent to the applicable withholding tax.
(e) If the IRS or any other Governmental Authority of the United States of America or other jurisdiction asserts a claim that the Administrative Agent did not properly withhold tax from amounts paid to or for the account of any US Lender (because the appropriate form was not delivered, was not properly executed, or because such Lender failed to notify the Administrative Agent of a change in circumstances which rendered the exemption from, or reduction of, withholding tax ineffective, or for any other reason) such US Lender shall indemnify the Administrative Agent fully for all amounts paid, directly or indirectly, by the Administrative Agent as tax or otherwise, including penalties and interest, and including any taxes imposed by any jurisdiction on the amounts payable to the Administrative Agent under this Section, together with all costs and expenses (including Attorney Costs). The obligation of the US Lenders under this subsection shall survive the payment of all Obligations and the resignation or replacement of the Administrative Agent.
12.11Collateral Matters and Release of Guaranties.
(a) The US Lenders hereby irrevocably authorize the Administrative Agent, at its option and in its sole discretion, to release any Agents’ Liens upon any US Collateral (i) upon the termination of the US Commitments and payment and satisfaction in full by US Borrowers of all US Revolving Loans and reimbursement obligations in respect of Letters of Credit and Credit Support, and the termination of all outstanding Letters of Credit or the provision of cash collateral or a Supporting Letter of Credit pursuant toSection 1.4(g) hereof andSection 1.4(g) of the UK Credit Agreement (whether or not any of such obligations are due) and all other Obligations; (ii) constituting property being sold or disposed of if the US Borrower Representative certifies to the Administrative Agent that the sale or disposition is made in compliance withSection 7.9 (and the Administrative Agent may rely conclusively on any such certificate, without further inquiry); (iii) constituting property in which the Credit Parties owned no interest at the time the Lien was granted or at any time thereafter; or (iv) constituting property leased to a Credit Party under a lease which has expired or been terminated in a transaction permitted under this Agreement. Except as provided above, the Administrative Agent will not release any of the Applicable Agents’ Liens without the prior written authorization of the Lenders;providedthat the Administrative Agent may, in its discretion, release the Agents’ Liens on Collateral valued in the aggregate (including all UK Collateral so released under the UK Credit Agreement) not in excess of the Dollar Equivalent of $2,000,000 in the aggregate for all Borrowers during each Fiscal Year without the prior written authorization of any Lenders and the Administrative Agent may release the Applicable Agents’ Liens on Collateral valued in the aggregate (including all UK Collateral so released under the UK Credit Agreement) not in excess of the Dollar Equivalent of an additional $4,000,000 in the aggregate for all Borrowers during each Fiscal Year with the prior written authorization of Required Lenders, Upon request by the Administrative Agent or the US Borrower Representative at any time, the US Lenders will confirm in writing the Administrative Agent’s authority to release any Agents’ Liens upon particular types or items of Collateral pursuant to thisSection 12.11.
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(b) Upon receipt by the Applicable Security Agent of any authorization required pursuant toSection 12.11 of the US Agent’s authority to release Agents’ Liens upon particular types or items of US Collateral, and upon at least five (5) Applicable Business Days prior written request by the US Borrower Representative, the Administrative Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary to evidence the release of the Agents’ Liens upon such Collateral;provided,however, that (i) the Administrative Agent shall not be requited to execute any such document on terms which, in the Administrative Agent’s opinion, would expose the Administrative Agent to liability or create any obligation or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of the Credit Parties in respect of) all interests retained by the Credit Parties, including the proceeds of any sale, all of which shall continue to constitute part of the Collateral.
(c) The Administrative Agent shall have no obligation whatsoever to any of the Lenders to assure that the Collateral exists or is owned by the applicable Credit Party or is cared for, protected or insured or has been encumbered, or that the Administrative Agents’ Liens have been properly or sufficiently or lawfully created, perfected, protected or enforced or are entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the Administrative Agent pursuant to any of the Loan Documents, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Administrative Agent may act in any manner it may deem appropriate, in its sole discretion given the Administrative Agent’s own interest in the Collateral in its capacity as one of the US Lenders and that the Administrative Agent shall have no other duty or liability whatsoever to any US Lender as to any of the foregoing.
(d) The Lenders hereby irrevocably authorize the Administrative Agent and the UK Agent, at their option and in their sole discretion, to release any Subsidiary Guaranty: (i) upon the termination of the US Commitments and payment and satisfaction in full by US Borrowers of all US Revolving Loans and reimbursement obligations in respect of Letters of Credit and Credit Support, and the termination of all outstanding Letters of Credit or the provision of cash collateral or a Supporting Letter of Credit pursuant toSection 1.4(g) hereof andSection 1.4(g) of the UK Credit Agreement (whether or not any of such obligations are due) and all other Obligations; (ii) granted by any Subsidiary Guarantor which is being sold or disposed of if the US Borrower Representative certifies to the Administrative Agent that the sale or disposition is made in compliance withSection 7.9 (and the Administrative Agent may rely conclusively on any such certificate, without further inquiry). Except as provided above, the Administrative Agent will not release any of the Subsidiary Guaranties granted by any Subsidiary Guarantor without the prior written authorization of the Lenders;providedthat the Administrative Agent may, in its discretion, release the Subsidiary Guaranties of any Subsidiary Guarantor if such Subsidiary Guarantor shall own assets with a fair market value of less than $100,000. Upon request by the Administrative Agent or the US Borrower Representative at any time, the US Lenders will confirm in writing the Administrative Agent’s authority to release any Subsidiary Guaranties pursuant to thisSection 12.11.
12.12Restrictions on Actions by Lenders; Sharing of Payments.
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(a) Each of the US Lenders agrees that it shall not, without the express consent of all US Lenders, and that it shall, to the extent it is lawfully entitled to do so, upon the request of all US Lenders, set off against the Obligations, any amounts owing by such US Lender to any US Credit Party or any accounts of a US Credit Party now or hereafter maintained with such US Lender. Each of the US Lenders further agrees that it shall not, unless specifically requested to do so by the Administrative Agent, take or cause to be taken any action to enforce its rights under this Agreement or against a US Credit Party, including the commencement of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any of the US Collateral.
(b) If at any time or times any US Lender shall receive (i) by payment, foreclosure, setoff or otherwise, any proceeds of US Collateral or any payments with respect to the Obligations of any US Obligor to such US Lender arising under, or relating to, this Agreement or the other Loan Documents, except for any such proceeds or payments received by such US Lender from the Applicable Security Agent pursuant to the terms of this Agreement, or (ii) payments from the Applicable Security Agent in excess of such US Lender’s ratable portion of all or such portion of any distributions due such US Lender upon application of the order of payments set forth underSection 3.7 hereof by the Applicable Security Agent, such US Lender shall promptly turn the same over to the Applicable Security Agent, in kind, and with such endorsements as may be required to negotiate the same to the Applicable Security Agent, or in same day funds, as applicable, for the account of all of the US Lenders and for application to the Obligations in accordance with the applicable provisions of this Agreement.
12.13Agency for Perfection. Each Lender hereby appoints each other US Lender, the Administrative Agent and the Applicable Security Agent as agent for the purpose of perfecting the Lenders’ security interest in assets which, in accordance withArticle 9 of the UCC or other applicable law can be perfected only by possession, Should any US Lender (other than the Administrative Agent) obtain possession of any such US Collateral, such US Lender shall notify the Administrative Agent thereof, and, promptly upon the Administrative Agent’s request therefor shall deliver such US Collateral to the Administrative Agent or in accordance with the Administrative Agent’s instructions.
12.14Payments by Responsible Agent to Applicable Lenders. All payments to be made by any US Agent to the US Lenders shall be made by bank wire transfer or internal transfer of immediately available funds to each US Lender pursuant to wire transfer instructions delivered in writing to the Administrative Agent on or prior to the Closing Date (or if such US Lender is an Assignee, on the applicable Assignment and Acceptance), or pursuant to such other wire transfer instructions as each party may designate for itself by written notice to the Administrative Agent. Payments shall be made in Dollars. Concurrently with each such payment the Administrative Agent shall identify whether such payment (or any portion thereof) represents principal, premium or interest on the US Revolving Loans, or otherwise. Unless the Administrative Agent receives notice from the US Borrower Representative prior to the date on which any payment is due to the US Lenders that the US Borrowers will not make such payment in full as and when required, the Administrative Agent may assume that the US Borrowers have made such payment in full to the Administrative Agent on such date in immediately available funds and the Administrative Agent may (but shall not be so required), in reliance upon such assumption, distribute to each US Lender on such due date an amount equal to the amount then due to such
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US Lender. If and to the extent the US Borrowers have not made such payment in full to the US Agent, each US Lender shall repay to the Administrative Agent on demand such amount distributed to such US Lender, together with interest thereon at the Federal Funds Rate for each day from the date such amount is distributed to such US Lender until the date repaid.
12.15Settlement.
(a) (i) Each US Lender’s funded portion of the US Revolving Loans is intended by the US Lenders to be equal at all times to such US Lender’s Pro Rata Share of the outstanding US Revolving Loans. Notwithstanding such agreement, each US Agent, the Bank, and the other US Lenders agree (which agreement shall not be for the benefit of or enforceable by the US Borrowers) that in order to facilitate the administration of this Agreement and the other Loan Documents, settlement among them as to the Loans, the Non-Ratable Loans and the Agent Advances shall take place on a periodic basis in accordance with the following provisions:
(ii) The Administrative Agent shall request settlement (“Settlement”) with the US Lenders on at least a weekly basis, or on a more frequent basis at Administrative Agent’s election, (A) on behalf of the Bank, with respect to each outstanding Non-Ratable Loan made under this Agreement, (B) for itself, with respect to each Agent Advance made under this Agreement, and (C) with respect to collections received, in each case, by notifying the US Lenders of such requested Settlement by telecopy, telephone or other similar form of transmission, of such requested Settlement, no later than 10:00 a.m. (California time) on the date of such requested Settlement (the “Settlement Date”). Each US Lender (other than the Bank, in the case of Non-Ratable Loans and the Administrative Agent in the case of Agent Advances) shall transfer the amount of such US Lender’s Pro Rata Share of the outstanding principal amount of the Non-Ratable Loans and Agent Advances with respect to each Settlement to the Administrative Agent, to Administrative Agent’s account in Dollars not later than 2:00 p.m. (California time) on the Settlement Date applicable thereto. Settlements may occur during the continuation of a Default or an Event of Default and whether or not the applicable conditions precedent set forth inArticle 8 have then been satisfied. Such amounts made available to the Administrative Agent shall be applied against the amounts of the applicable Non-Ratable Loan or Agent Advance and, together with the portion of such Non-Ratable Loan or Agent Advance representing the Bank’s Pro Rata Share thereof, shall constitute US Revolving Loans of such US Lenders. If any such amount is not transferred to the Administrative Agent by any US Lender on the Settlement Date applicable thereto, the Administrative Agent shall be entitled to recover such amount on demand from such US Lender together with interest thereon at the Federal Funds Rate for the first three (3) days from and after the Settlement Date and thereafter at the Interest Rate then applicable to the US Revolving Loans (A) on behalf of the Bank, with respect to each outstanding Non-Ratable Loan, and (B) for itself, with respect to each Agent Advance.
(iii) Notwithstanding the foregoing, not more than one (1) US Business Day after demand is made by the Administrative Agent (whether before or after the occurrence of a Default or an Event of Default and regardless of whether the Administrative Agent has requested a Settlement with respect to a Non-Ratable Loan or Agent Advance), each other US Lender (A) shall irrevocably and unconditionally purchase and receive from the Bank or the Administrative Agent, as applicable, without recourse or warranty, an undivided interest and participation in such Non-Ratable Loan or Agent Advance equal to such US Lender’s Pro Rata
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Share of such Non-Ratable Loan or Agent Advance and (B) if Settlement has not previously occurred with respect to such Non-Ratable Loans or Agent Advances, upon demand by the Bank or the Administrative Agent, as applicable, shall pay to the Bank or the Administrative Agent, as applicable, as the purchase price of such participation an amount equal to one-hundred percent (100%), in Dollars of such US Lender’s Pro Rata Share of such Non-Ratable Loans or Agent Advances. If such amount is not in fact made available to the Administrative Agent by any US Lender, the Administrative Agent shall be entitled to recover such amount on demand from such US Lender together with interest thereon at the Federal Funds Rate for the first three (3) days from and after such demand and thereafter at the Interest Rate then applicable to Base Rate Revolving Loans.
(iv) From and after the date, if any, on which any US Lender purchases an undivided interest and participation in any Non-Ratable Loan or Agent Advance pursuant toclause (iii) above, the Administrative Agent shall promptly distribute to such US Lender, such US Lender’s Pro Rata Share of all payments of principal and interest and all proceeds of US Collateral received by the Agent in respect of such Non-Ratable Loan or Agent Advance.
(v) Between Settlement Dates, the Administrative Agent, to the extent no Agent Advances are outstanding, may pay over to the Bank any payments received by the Administrative Agent, which in accordance with the terms of this Agreement would be applied to the reduction of the US Revolving Loans, for application to the Bank’s US Revolving Loans to the US Borrowers including Non-Ratable Loans. If, as of any Settlement Date, collections received since the then immediately preceding Settlement Date have been applied to the Bank’s US Revolving Loans (other than to Non-Ratable Loans or Agent Advances in which such Lender has not yet funded its purchase of a participation pursuant to clause (iii) above), as provided for in the previous sentence, the Bank shall pay to the Administrative Agent for the accounts of the US Lenders, to be applied to the outstanding Revolving Loans to the US Borrowers of such US Lenders, an amount such that each US Lender shall, upon receipt of such amount, have, as of such Settlement Date, its Pro Rata Share of the US Revolving Loans to the US Borrowers. During the period between Settlement Dates, the Bank with respect to Non-Ratable Loans, the Administrative Agent with respect to Agent Advances, and each US Lender with respect to the US Revolving Loans other than Non-Ratable Loans and Agent Advances, shall be entitled to interest at the applicable rate or rates payable under this Agreement on the actual average daily amount of funds employed by the Bank, the Administrative Agent and the other US Lenders.
(vi) Unless the Administrative Agent has received written notice from a US Lender to the contrary, the Administrative Agent may assume that the applicable conditions precedent set forth inArticle 8 have been satisfied and following the requested US Borrowing, US Aggregate Outstandings will not exceed US Availability (with US Availability for such purpose calculated as if US Aggregate Outstandings, and UK Aggregate Outstandings were equal to zero) and Aggregate Outstandings will not exceed Total Excess Availability (with Total Excess Availability for this purpose calculated as if Aggregate Outstandings, US Aggregate Outstandings, and UK Aggregate Outstandings were equal to zero) on any Funding Date for a US Revolving Loan or Non-Ratable Loan.
(b)Lenders’ Failure to Perform. All US Revolving Loans (other than Non-Ratable Loans and Agent Advances) shall be made by the US Lenders simultaneously and in
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accordance with their Pro Rata Shares. It is understood that (i) no US Lender shall be responsible for any failure by any other US Lender to perform its obligation to make any US Revolving Loans hereunder, nor shall any US Commitment of any US Lender be increased or decreased as a result of any failure by any other US Lender to perform its obligation to make any US Revolving Loans hereunder, (ii) no failure by any US Lender to perform its obligation to make any US Revolving Loans hereunder shall excuse any other Lender from its obligation to make any US Revolving Loans hereunder, and (iii) the obligations of each US Lender hereunder shall be several, not joint and several.
(c)Defaulting Lenders. Unless the Administrative Agent receives notice from an US Lender on or prior to the Closing Date or, with respect to any US Borrowing after the Closing Date, at least one US Business Day prior to the date of such US Borrowing, that such US Lender will not make available as and when required hereunder to the Administrative Agent that US Lender’s Pro Rata Share of a US Borrowing, the Administrative Agent may assume that each US Lender has made such amount available to the Administrative Agent in immediately available funds on the Funding Date. Furthermore, the Administrative Agent may, in reliance upon such assumption, make available to the US Borrowers on such date a corresponding amount. If any US Lender has not transferred its full Pro Rata Share of a US Borrowing to the Administrative Agent in immediately available funds and the Administrative Agent has transferred a corresponding amount to the US Borrowers on the US Business Day following such Funding Date that US Lender shall make such amount available to the Administrative Agent, together with interest at the Federal Funds Rate for that day. A notice by the Administrative Agent submitted to any US Lender with respect to amounts owing shall be conclusive, absent manifest error. If each US Lender’s full Pro Rata Share of a US Borrowing is transferred to the Administrative Agent as required, the amount transferred to the Administrative Agent shall constitute that US Lender’s US Revolving Loan for all purposes of this Agreement. If that amount is not transferred to the Administrative Agent on the US Business Day following the Funding Date, the Administrative Agent will notify the US Borrower Representative of such failure to fund and, upon demand by the Administrative Agent, the US Borrowers shall pay such amount to the Administrative Agent for the Administrative Agent’s account, together with interest thereon for each day elapsed since the date of such US Borrowing, at a rate per annum equal to the Interest Rate applicable at the time to the US Revolving Loans comprising that particular US Borrowing. The failure of any US Lender to make any US Revolving Loan on any Funding Date (any such Lender, prior to the cure of such failure, being hereinafter referred to as a “Defaulting Lender”) shall not relieve any other US Lender of its obligation hereunder to make a US Revolving Loan on that Funding Date. No US Lender shall be responsible for any other US Lender’s failure to advance such other US Lenders’ Pro Rata Share of any US Borrowing.
(d)Retention of Defaulting Lender’s Payments. The US Agent shall not be obligated to transfer to a Defaulting Lender any payments made by a US Borrower to the Administrative Agent for the Defaulting Lender’s benefit; nor shall a Defaulting Lender be entitled to the sharing of any payments hereunder. Amounts payable to a Defaulting Lender shall instead be paid to or retained by the Administrative Agent. In its discretion, the Agent may loan the US Borrower the amount of all such payments received or retained by it for the account of such Defaulting Lender. Any amounts so loaned to the US Borrowers shall bear interest at the rate applicable to US Base Rate Revolving Loans and for all other purposes of this Agreement shall be treated as if they were US Revolving Loans,provided,however, that for purposes of
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voting or consenting to matters with respect to the Loan Documents and determining Pro Rata Shares, such Defaulting Lender shall be deemed not to be a “Lender”. Until a Defaulting Lender cures its failure to fund its Pro Rata Share of any Borrowing (A) such Defaulting Lender shall not be entitled to any portion of the Unused Line Fee and (B) the Unused Line Fee shall accrue in favor of the US Lenders which have funded their respective Pro Rata Shares of such requested US Borrowing and shall be allocated among such performing US Lenders ratably based upon their relative US Commitments. This Section shall remain effective with respect to such US Lender until such time as the Defaulting Lender shall no longer be in default of any of its obligations under this Agreement. The terms of this Section shall not be construed to increase or otherwise affect the US Commitment of any US Lender, or relieve or excuse the performance by the US Borrowers of their duties and obligations hereunder.
(e)Removal of Defaulting Lender. At the US Borrower Representative’s request, the Administrative Agent or an Eligible Assignee reasonably acceptable to the Administrative Agent shall have the right (but not the obligation) to purchase from any Defaulting Lender, and each Defaulting Lender shall, upon such request, sell and assign to the Administrative Agent or such Eligible Assignee, all of the Defaulting Lender’s outstanding US Commitments and Loans hereunder. Such sale shall be consummated promptly after Administrative Agent has arranged for a purchase by Administrative Agent or an Eligible Assignee pursuant to an Assignment and Acceptance, and at a price equal to the outstanding principal balance of the Defaulting Lender’s US Revolving Loans, plus accrued interest and fees, without premium or discount.
12.16Letters of Credit; Intra-Lender Issues.
(a)Notice of Letter of Credit Balance. On each Settlement Date the Administrative Agent shall notify each US Lender of the issuance of all Letters of Credit since the prior Settlement Date.
(b)Participations in Letters of Credit.
(i)Purchase of Participations. Immediately upon issuance of any Letter of Credit in accordance withSection 1.4(d), each US Lender shall be deemed to have irrevocably and unconditionally purchased and received without recourse or warranty, an undivided interest and participation equal to such US Lender’s Pro Rata Share of the face amount of such Letter of Credit or the Credit Support provided through the Administrative Agent to the Letter of Credit Issuer, if not the Bank, in connection with the issuance of such Letter of Credit (including all obligations of the US Borrowers with respect thereto, and any security therefor or guaranty pertaining thereto).
(ii)Sharing of Reimbursement Obligation Payments. Whenever the Administrative Agent receives a payment from a US Borrower on account of reimbursement obligations in respect of a Letter of Credit or Credit Support as to which the Administrative Agent has previously received for the account of the Letter of Credit Issuer thereof payment from a US Lender, the Administrative Agent shall promptly pay to such US Lender such US Lender’s Pro Rata Share of such payment from the US Borrowers. Each such payment shall be made by the Administrative Agent on the next Settlement Date.
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(iii)Documentation. Upon the request of any US Lender, the Administrative Agent shall furnish to such US Lender copies of any Letter of Credit, Credit Support for any Letter of Credit, reimbursement agreements executed in connection therewith, applications for any Letter of Credit, and such other documentation as may reasonably be requested by such Lender.
(iv)Obligations Irrevocable. The obligations of each US Lender to make payments to the Administrative Agent with respect to any Letter of Credit or with respect to their participation therein or with respect to any Credit Support for any Letter of Credit or with respect to the US Revolving Loans made as a result of a drawing under a Letter of Credit and the obligations of the US Borrowers for whose account the Letter of Credit or Credit Support was issued to make payments to the Administrative Agent, for the account of the US Lenders, shall be irrevocable and shall not be subject to any qualification or exception whatsoever, including any of the following circumstances:
(1) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(2) the existence of any claim, setoff, defense or other right which any US Borrower may have at any time against a beneficiary named in a Letter of Credit or any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), any US Lender, the Administrative Agent, the issuer of such Letter of Credit, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transactions between the US Borrowers or any other Person and the beneficiary named in any Letter of Credit);
(3) any draft, certificate or any other document presented under the Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(4) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents;
(5) the occurrence of any Default or Event of Default; or
(6) the failure of the US Borrowers to satisfy the applicable conditions precedent set forth inArticle 8.
(c)Recovery or Avoidance of Payments; Refund of Payments In Error. In the event any payment by or on behalf of any US Borrower received by the Administrative Agent with respect to any Letter of Credit or Credit Support provided for any Letter of Credit and distributed by the Administrative Agent to the US Lenders on account of their respective participations therein is thereafter set aside, avoided or recovered from the Administrative Agent in connection with any receivership, liquidation or bankruptcy proceeding, the US Lenders shall, upon demand by the Administrative Agent, pay to the Administrative Agent their respective Pro Rata Shares of such amount set aside, avoided or recovered, together with interest at the rate required to be paid by the Administrative Agent upon the amount required to be repaid by it.
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Unless the Administrative Agent receives notice from the US Borrower Representative prior to the date on which any payment is due to the US Lenders that the US Borrowers will not make such payment in full as and when required, the Administrative Agent may assume that the US Borrower has made such payment in full to the Administrative Agent on such date in immediately available funds and the Administrative Agent may (but shall not be so required), in reliance upon such assumption, distribute to each US Lender on such due date an amount equal to the amount then due such US Lender. If and to the extent the US Borrowers have not made such payment in full to the Responsible Agent, each US Lender shall repay to the Administrative Agent on demand such amount distributed to such US Lender, together with interest thereon at the Federal Funds Rate for each day from the date such amount is distributed to such US Lender until the date repaid.
(d)Indemnification by US Lenders. To the extent not reimbursed by the US Borrowers and without limiting the obligations of any US Borrower hereunder, the US Lenders agree to indemnify each applicable Letter of Credit Issuer ratably in accordance with their respective Pro Rata Shares, for any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses (including attorneys’ fees) or disbursements of any kind and nature whatsoever that may be imposed on, incurred by or asserted against the Letter of Credit Issuer in any way relating to or arising out of any Letter of Credit or the transactions contemplated thereby or any action taken or omitted by the Letter of Credit Issuer under any Letter of Credit or any Loan Document in connection therewith;providedthat no US Lender shall be liable for any of the foregoing to the extent it arises from the gross negligence or willful misconduct of the Person to be indemnified. Without limitation of the foregoing, each US Lender agrees to reimburse the Letter of Credit Issuer promptly upon demand for its Pro Rata Share of any costs or expenses payable by the US Borrowers to the Letter of Credit Issuer, to the extent that the Letter of Credit Issuer is not promptly reimbursed for such costs and expenses by the US Borrowers. The agreement contained in this Section shall survive payment in full of all other Obligations.
12.17Concerning the Collateral and the Related Loan Documents. The Administrative Agent and each US Lender authorizes and directs the Administrative Agent to enter into the other US Loan Documents, for the ratable benefit and obligation of the US Agents and the US Lenders. The US Agents and each US Lender agree that any action taken by any US Agent or the Required Lenders, in accordance with the terms of this Agreement or the other Loan Documents, and the exercise by any US Agent or the Required Lenders, as applicable, of their respective powers set forth therein or herein, together with such other powers that are reasonably incidental thereto, shall be binding upon all of the US Lenders. The US Lenders acknowledge that the US Revolving Loans, Agent Advances, Non-Ratable Loans, US Bank Products and all interest, fees and expenses hereunder constitute one Debt, securedparipassu by all of the US Collateral.
12.18Field Audit and Examination Reports; Disclaimer by Lenders. By signing this Agreement, each US Lender:
(a) is deemed to have requested that the Administrative Agent furnish such US Lender, promptly after it becomes available, a copy of each field audit or examination report
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(each a “Report” and collectively, “Reports”) prepared by or on behalf of the Administrative Agent;
(b) expressly agrees and acknowledges that neither the Bank nor any Agent (i) makes any representation or warranty as to the accuracy of any Report, or (ii) shall be liable for any information contained in any Report;
(c) expressly agrees and acknowledges that the Reports are not comprehensive audits or examinations, that any US Agent or the Bank or other party performing any audit or examination will inspect only specific information regarding the Credit Parties and will rely significantly upon the Credit Parties’ books and records, as well as on representations of the Credit Parties’ personnel;
(d) agrees to keep all Reports confidential and strictly for its internal use, and not to distribute except to its participants, or use any Report in any other manner; and
(e) without limiting the generality of any other indemnification provision contained in this Agreement, agrees: (i) to hold each US Agent and any such other US Lender preparing a Report harmless from any action the indemnifying US Lender may take or conclusion the indemnifying US Lender may reach or draw from any Report in connection with any loans or other credit accommodations that the indemnifying US Lender has made or may make to any US Borrower, or the indemnifying US Lender’s participation in, or the indemnifying US Lender’s purchase of, a loan or loans of the US Borrower; and (ii) to pay and protect, and indemnify, defend and hold each US Agent and any such other US Lender preparing a Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses and other amounts (including Attorney Costs) incurred by any US Agent and any such other US Lender preparing a Report as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying US Lender.
12.19Relation Among Lenders. The US Lenders are not partners or co-venturers, and no US Lender shall be liable for the acts or omissions of, or (except as otherwise set forth herein in case of any US Agent) authorized to act for, any other US Lender.
12.20Administrative Agent as Security Agent. Notwithstanding any other provision of this Agreement, the US Lenders and the Administrative Agent have also appointed the Administrative Agent as security agent under and pursuant to the US Security Documents. Each of the US Lenders acknowledges that pursuant to the US Security Documents, the US Lenders and the Administrative Agent have irrevocably authorized the Administrative Agent to execute and deliver the US Security Documents on each of their respective behalf (thereby, among other things, designating and appointing the Administrative Agent as their security agent in accordance with the terms thereof and authorizing the Administrative Agent to execute and deliver the US Security Documents and to take such action or to refrain from taking such action on their behalf (and otherwise exercising its powers) in accordance with the terms thereof).
12.21Protection of Administrative Agent as Security Agent. The benefits conferred on the Agents pursuant to thisArticle 12 regarding rights to indemnification and the exercise of rights, powers, authorizations, discretions, duties and responsibilities pursuant to this Agreement
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and any other Loan Document shall also be conferred, where appropriate, on the Administrative Agent in its capacity as security agent under or in respect of any of the US Security Documents and references to US Agent, as well as references to all or any US Agents, in thisArticle 12 shall be read and construed as references to the Administrative Agent in its capacity as Administrative Agent hereunder and security agent under such US Security Documents accordingly. The Administrative Agent, in its capacity as security agent under the US Security Documents, shall have all the powers of an absolute owner of the security constituted by the US Security Documents and all the rights and powers granted to it by the US Security Documents.
12.22Co-Agents. (a) None of the US Lenders identified on the facing page, the preamble or the signature pages to this Agreement as a “Documentation Agent”, if any, shall have any right (except as expressly set forth in this Agreement), power, obligation, liability, responsibility or duty under this Agreement or any other Loan Document other than those applicable to all US Lenders as such. Without limiting the foregoing, none of the US Lenders identified as a “Documentation Agent”, if any, shall have or be deemed to have any fiduciary relationship with any US Lender. Each US Lender acknowledges that it has not relied, and will not rely, on any of the US Lenders so identified in deciding to enter into this Agreement or in taking any action hereunder or under any Loan Document.
(b) Upon consultation with each of the US Borrower and the UK Borrower and for a period of thirty (30) days from the Closing Date in connection with the general syndication of the Facilities, the Administrative Agent shall have the right to appoint and grant titles to additional “Agents” and “Co-Agents” (other than, for the avoidance of doubt, any Administrative Agent, Collateral Agents, Security Agents or other agents with similar responsibilities or functions), which such additional Agents or Co-Agents shall become a party hereto pursuant to appropriate documentation (including by way of any Assignment and Acceptance Agreement or UK Transfer Agreement executed by such Agent or Co-Agents (or any affiliate thereof) in its capacity as a Lender hereunder. Following such appointment, the provisions set forth in the first two sentences of this Section 12.22 shall apply to such Agent or Co-Agent as if such Agent or Co-Agent were a “Documentation Agent” as referred to in this Section 12.22.
ARTICLE 13.
MISCELLANEOUS
13.1No Waivers; Cumulative Remedies. No failure by any US Agent or any US Lender to exercise any right, remedy, or option under this Agreement or any present or future supplement thereto, or in any other agreement between or among any US Borrower or any other US Obligor and any US Agent and/or any US Lender, or delay by any US Agent, or any US Lender in exercising the same, will operate as a waiver thereof, No waiver by any US Agent or any US Lender will be effective unless it is in writing, and then only to the extent specifically stated. No waiver by any US Agent or the US Lenders on any occasion shall affect or diminish such US Agent’s and each US Lender’s rights thereafter to require strict performance by the US Borrowers and the other Credit Parties of any provision of this Agreement and the other Loan Documents. The US Agents and the US Lenders may proceed directly to collect the US Obligations without any prior recourse to the US Collateral. The US Agents’ and each US Lender’s rights under this Agreement will be cumulative and not exclusive of any other right or remedy which any US Agent or any US Lender may have.
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13.2Severability. The illegality or unenforceability of any provision of this Agreement or any Loan Document or any instrument or agreement required hereunder shall not in any way affect or impair the legality or enforceability of the remaining provisions of this Agreement or any instrument or agreement required hereunder.
13.2Governing Law; Choice of Forum; Service of Process.
(a) THIS AGREEMENT SHALL BE INTERPRETED AND THE RIGHTS AND LIABILITIES OF THE PARTIES HERETO DETERMINED IN ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO THE CONFLICT OF LAWS PROVISIONS) OF THE STATE OF CALIFORNIA;PROVIDEDTHAT PERFECTION ISSUES WITH RESPECT TO DIVISION 9 OF THE UCC MAY GIVE EFFECT TO APPLICABLE CHOICE OR CONFLICT OF LAW RULES SET FORTH IN DIVISION 9 OF THE UCC) OF THE STATE OF CALIFORNIA;PROVIDEDTHAT EACH US AGENT AND THE LENDERS SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL US LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF CALIFORNIA OR OF THE UNITED STATES OF AMERICA LOCATED IN LOS ANGELES COUNTY, CALIFORNIA, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE US BORROWERS, THE US AGENTS, AND THE US LENDERS CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH OF THE US BORROWER, THE US AGENTS AND THE US LENDERS IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY DOCUMENT RELATED HERETO. NOTWITHSTANDING THE FOREGOING: (1) THE US AGENTS AND THE US LENDERS SHALL HAVE THE RIGHT TO BRING ANY ACTION OR PROCEEDING AGAINST THE BORROWERS OR THEIR PROPERTY IN THE COURTS OF ANY OTHER JURISDICTION THE US AGENTS OR THE US LENDERS DEEM NECESSARY OR APPROPRIATE IN ORDER TO REALIZE ON THE US COLLATERAL OR OTHER SECURITY FOR THE US OBLIGATIONS AND (2) EACH OF THE PARTIES HERETO ACKNOWLEDGES THAT ANY APPEALS FROM THE COURTS DESCRIBED IN THE IMMEDIATELY PRECEDING SENTENCE MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE THOSE JURISDICTIONS.
(c) Arbitration. Notwithstanding any other provision of this Agreement to the contrary, any controversy or claim among the parties relating in any way to any Obligations or Loan Documents, including any alleged tort, shall at the request of any party hereto be determined by binding arbitration conducted in accordance with the United States Arbitration Act (Title 9 U.S. Code). Arbitration proceedings will be determined in accordance with the Act, the then-current rules, and procedures for the arbitration of financial services disputes of the American Arbitration Association (“AAA”), and the terms of this Section. In the event of any inconsistency, the terms of this Section shall control. If AAA is unwilling or unable to serve as the provider of arbitration or to enforce any provision of this Section, Administrative Agent may
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designate another arbitration organization with similar procedures to serve as the provider of arbitration. The arbitration proceedings shall be conducted in Los Angeles or Pasadena, California. The arbitration hearing shall commence within 90 days of the arbitration demand and close within 90 days thereafter. The arbitration award must be issued within 30 days after close of the hearing (subject to extension by the arbitrator for up to 60 days upon a showing of good cause), and shall include a concise written statement of reasons for the award. The arbitrator shall give effect to applicable statutes of limitation in determining any controversy or claim, and for these purposes, service on AAA under applicable AAA rules of a notice of claim is the equivalent of the filing of a lawsuit. Any dispute concerning this Section or whether a controversy or claim is arbitrable shall be determined by the arbitrator. The arbitrator shall have the power to award legal fees to the extent provided by this Agreement. Judgment upon an arbitration award may be entered in any court having jurisdiction. The institution and maintenance of an action for judicial relief or pursuant to a provisional or ancillary remedy shall not constitute a waiver of the right of any party, including the plaintiff, to submit the controversy or claim to arbitration if any other party contests such action for judicial relief. No controversy or claim shall be submitted to arbitration without the consent of all parties if, at the time of the proposed submission, such controversy or claim relates to an obligation secured by Real Estate, but if all parties do not consent to submission of such a controversy or claim to arbitration, it shall be determined as provided in the next sentence. At the request of any party, a controversy or claim that is not submitted to arbitration as provided above shall be determined by judicial reference; and if such an election is made, the parties shall designate to the court a referee or referees selected under the auspices of the AAA in the same manner as arbitrators are selected in AAA sponsored proceedings and the presiding referee of the panel (or the referee if there is a single referee) shall be an active attorney or retired judge; and judgment upon the award rendered by such referee or referees shall be entered in the court in which proceeding was commenced. None of the foregoing provisions of this Section shall limit the right of the Administrative Agent or US Lenders to exercise self-help remedies, such as setoff, foreclosure or sale of any Collateral or to obtain provisional or ancillary remedies from a court of competent jurisdiction before, after or during any arbitration proceeding. The exercise of a remedy does not waive the right of any party to resort to arbitration or reference. At Administrative Agent’s option, foreclosure under a Mortgage may be accomplished either by exercise of power of sale thereunder or by judicial foreclosure.
13.4WAIVER OF JURY TRIAL. SUBJECT TO THE PROVISIONS OFSECTION 13.3(c), EACH US BORROWER, THE US LENDERS AND THE US AGENTS EACH IRREVOCABLY WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE OTHER LOAN DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR ANY AGENT-RELATED PERSON, PARTICIPANT OR ASSIGNEE, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. THE US BORROWERS, THE US LENDERS, AND THE US AGENTS EACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER
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PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR ANY PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
13.5Survival of Representations and Warranties. All of the US Borrowers’ and the other Credit Parties’ representations and warranties contained in this Agreement and the other Loan Documents shall survive the execution, delivery, and acceptance thereof by the parties, notwithstanding any investigation by the US Agents or the US Lenders or their respective agents.
13.6Other Security and Guaranties. The Administrative Agent, may, without notice or demand and without affecting the US Borrowers’ obligations hereunder, from time to time: (a) take from any Person and hold collateral (other than the US Collateral) for the payment of all or any part of the US Obligations and exchange, enforce or release such collateral or any part thereof; and (b) accept and hold any endorsement or guaranty of payment of all or any part of the US Obligations of any US Obligor and release or substitute any such endorser or guarantor, or any Person who has given any Lien in any other collateral as security for the payment of all or any part of the US Obligations of any US Obligor, or any other Person in any way obligated to pay all or any part of the US Obligations of any US Obligor.
13.7Fees and Expenses. Each US Borrower agrees to pay to the Administrative Agent for their respective benefit, on demand, all costs and expenses that each US Agent pays or incurs in connection with the negotiation, preparation, syndication, consummation, administration, enforcement, and termination of this Agreement or any of the other Loan Documents, including: (a) Attorney Costs; (b) costs and expenses (including attorneys’ and paralegals’ fees and disbursements) for any amendment, supplement, waiver, consent, or subsequent closing in connection with the Loan Documents and the transactions contemplated thereby; (c) costs and expenses of lien and title searches and title insurance; (d) taxes, fees and other charges for recording the Mortgages, if any, filing (and similar) financing statements and continuations, and other actions to perfect, protect, and continue each Applicable Agents’ Liens (including costs and expenses paid or incurred by each Responsible Agent in connection with the consummation of this Agreement); (e) sums paid or incurred to pay any amount or take any action required of the US Borrowers under the Loan Documents that the US Borrowers fail to pay or take; (f) subject toSection 7.4 hereof, costs of appraisals, environmental audits, inspections, and verifications of the Collateral, including travel, lodging, and meals for inspections of the Collateral and the US Borrower’s operations by the Applicable Security Agent plus the Applicable Security Agent’s then customary charge for field examinations and audits and the preparation of reports thereof (such charge is currently $850 per day (or portion thereof) for each Person retained or employed by the Applicable Security Agent with respect to each field examination or audit); and (g) costs and expenses of forwarding loan proceeds, collecting checks and other items of payment, and establishing and maintaining Payment Accounts and lock boxes, and costs and expenses of preserving and protecting the Collateral. In addition, the US Borrowers agree to pay costs and expenses incurred by the Applicable Security Agent (including Attorneys’ Costs) to the Applicable Security Agent, for its benefit, on demand, and to the other Lenders for their benefit, on demand, and all reasonable fees, expenses and disbursements incurred by such other Lenders for one law firm in each applicable jurisdiction retained by such
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other Lenders, in each case, paid or incurred to obtain payment of the Obligations, enforce the Applicable Security Agents’ Liens, sell or otherwise realize upon the Collateral, and otherwise enforce the provisions of the Loan Documents, or to defend any claims made or threatened against any Agent or any Lender arising out of the transactions contemplated hereby (including preparations for and consultations concerning any such matters). The foregoing shall not be construed to limit any other provisions of the Loan Documents regarding costs and expenses to be paid by the US Borrowers. All of the foregoing costs and expenses shall be charged to the US Borrower’s Loan Account as Revolving Loans as described inSection 3.6.
13.8Notices. Except as otherwise provided herein, all notices, demands and requests that any party is required or elects to give to any other shall be in writing, or by a telecommunications device capable of creating a written record, and any such notice shall become effective (a) upon personal delivery thereof, including, but not limited to, delivery by overnight mail and courier service, (b) four (4) days after it shall have been mailed by United States mail or UK post, as applicable, in each case, first class, certified or registered, and with postage prepaid, or (c) in the case of notice by such a telecommunications device, when properly transmitted, in each case addressed to the party to be notified as follows:
| | |
| If to the Administrative Agent or to the Bank: |
| | |
| | Bank of America, N.A.
55 South Lake Avenue, Suite 900
Pasadena, California 91101
Attention: Business Credit-Account Executive-Mobile Storage
Facsimile No.: +1 626 397 1273 |
| | |
| | with copies to: |
| | |
| | Bank of America, N.A.
5 Canada Square
London El4 5AQ
Attention: Business Credit
Facsimile No.: +44 (0) 20 7809 5807 |
| | |
| | and |
| | |
| | Latham & Watkins LLP
633 West Fifth Street
Los Angeles, CA 90071
Attention: Andrew A. Fayé, Esq.
Facsimile No.: +1 213 891 8763 |
| | |
| If to UK Agent or the UK Security Trustee: |
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| | |
| | Bank of America, N.A.
5 Canada Square
London El4 5AQ
Attention: Business Credit
Facsimile No.: +44 (0) 20 7174 6427 |
| | |
| | with copies to: |
| | |
| | Bank of America, N.A.
55 South Lake Avenue, Suite 900
Pasadena, California 91101
Attention: Business Credit-Account Executive-Mobile Storage
Facsimile No.: +1 626 397 1273 |
| | |
| | and |
| | |
| | Latham & Watkins LLP
633 West Fifth Street
Los Angeles, CA 90071
Attention: Andrew A. Fayé, Esq.
Facsimile No.: +1 213 891 8763 |
| | |
| If to any US Borrower or any other Credit Party: |
| | |
| | Mobile Storage Group, Inc.
7590 North Glenoaks Boulevard
Burbank, CA 91504
Attention: Allan Villegas
Facsimile No.: (818) 253-3154 |
| | |
| | with copies to: |
| | |
| | Christopher A. Wilson, Esq.
Mobile Storage Group, Inc.
7590 North Glenoaks Boulevard
Burbank, CA 91504
Facsimile No.: (818) 253-3154 |
| | |
| | and |
| | |
| | Munger, Tolles and Olson LLP
355 South Grand Avenue, 35th Floor
Los Angeles, CA 90071
Facsimile No.: (213) 687-3702
Attention: Judith Kitano, Esq. |
or to such other address as each party may designate for itself by like notice. Failure or delay in delivering copies of any notice, demand, request, consent, approval, declaration or other
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communication to the persons designated above to receive copies shall not adversely affect the effectiveness of such notice, demand, request, consent, approval, declaration or other communication. Notwithstanding any terms or provisions herein to the contrary, the US Borrowers shall simultaneously deliver to the UK Agent any notice, report, certificate, document or other information delivered to any US Agent pursuant to the terms hereof, and the US Borrowers shall cause the UK Borrowers to simultaneously deliver to the Administrative Agent any notice, report, certificate, document or other information delivered to any UK Agent pursuant to the terms of the UK Credit Agreement.
13.9Waiver of Notices. Unless otherwise expressly provided herein, the US Borrowers waive presentment, and notice of demand or dishonor and protest as to any instrument, notice of intent to accelerate the US Obligations and notice of acceleration of the US Obligations, as well as any and all other notices to which it might otherwise be entitled. No notice to or demand on the US Borrowers which any US Agent or any US Lender may elect to give shall entitle the US Borrowers to any or further notice or demand in the same, similar or other circumstances.
13.10Binding Effect. The provisions of this Agreement shall be binding upon and inure to the benefit of the respective representatives, successors, and assigns of the parties hereto;provided,however, that no interest herein may be assigned by any US Borrower without prior written consent of the Administrative Agent and each Lender. The rights and benefits of each US Agent and the US Lenders hereunder shall, if such Persons so agree, inure to any party acquiring any interest in the US Obligations or any part thereof.
13.11Indemnity of the Agents and the Lenders by the Borrowers.
(a) The US Borrowers agree, jointly and severally, to defend, indemnify and hold each US Agent, the Agent-Related Persons, and each US Lender and each of its respective officers, directors, employees, counsel, representatives, agents and attorneys-in-fact (each, an “Indemnified Person”) harmless from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, charges, expenses and disbursements (including Attorney Costs) of any kind or nature whatsoever which may at any time (including at any time following repayment of the Loans and the termination, resignation or replacement of any US Agent or replacement of any Lender) be imposed on, incurred by or asserted against any such Person in any way relating to or arising out of this Agreement or any document contemplated by or referred to herein, or the transactions contemplated hereby, or any action taken or omitted by any such Person under or in connection with any of the foregoing, including with respect to any investigation, litigation or proceeding (including any insolvency proceeding or appellate proceeding) related to or arising out of this Agreement, any other Loan Document, or the Loans or the use of the proceeds thereof, whether or not any Indemnified Person is a party thereto (all the foregoing, collectively, the “Indemnified Liabilities”);provided,that the US Borrowers shall have no obligation hereunder to any Indemnified Person with respect to Indemnified Liabilities resulting solely from the gross negligence or willful misconduct of such Indemnified Person as determined in a final non-appealable judgment of a court of competent jurisdiction. The agreements in this Section shall survive payment of all other Obligations.
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(b) The US Borrowers agree, jointly and severally, to indemnify, defend and hold harmless each US Agent and the US Lenders from any loss or liability directly or indirectly arising out of the use, generation, manufacture, production, storage, release, threatened release, discharge, disposal or presence of a hazardous substance relating to the operations, business or property of each US Borrower or any of its respective Subsidiaries. This indemnity will apply whether the hazardous substance is on, under or about the property or operations of or property leased to any US Borrower or any of its Subsidiaries. The indemnity includes but is not limited to Attorneys Costs. The indemnity extends to the Agents and the US Lenders, their parents, affiliates, subsidiaries and all of their directors, officers, employees, agents, successors, attorneys and assigns. “Hazardous substances” means any substance, material or waste that is or becomes designated or regulated as “toxic,” “hazardous,” “pollutant,” or “contaminant” or a similar designation or regulation under any federal, state or local law (whether under common law, statute, regulation or otherwise) or judicial or administrative interpretation of such, including petroleum or natural gas. This indemnity will survive repayment of all other Obligations.
(c) Notwithstanding any of the other provisions of this Agreement or any other Loan Document, nothing contained herein or in any of the other Loan Documents shall require the US Borrowers or any of their Subsidiaries to take any action which constitutes or will constitute unlawful financial assistance for the purposes of sections 151 to 158 (inclusive) of the Companies Act.
13.12Limitation of Liability. NO CLAIM MAY BE MADE BY ANY US BORROWER, ANY US LENDER OR OTHER PERSON AGAINST ANY US AGENT, ANY US LENDER OR THE AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, COUNSEL, REPRESENTATIVES, AGENTS OR ATTORNEYS-IN-FACT OF ANY OF THEM FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES IN RESPECT OF ANY CLAIM FOR BREACH OF CONTRACT OR ANY OTHER THEORY OF LIABILITY ARISING OUT OF OR RELATED TO THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY ACT, OMISSION OR EVENT OCCURRING IN CONNECTION THEREWITH, AND EACH US BORROWER AND EACH US LENDER HEREBY WAIVES, RELEASES AND AGREES NOT TO SUE UPON ANY CLAIM FOR SUCH DAMAGES, WHETHER OR NOT ACCRUED AND WHETHER OR NOT KNOWN OR SUSPECTED TO EXIST IN ITS FAVOR.
13.13Final Agreement. This Agreement and the other Loan Documents, including without limitation the UK Credit Agreement and the UK Loan Documents are intended by the US Borrowers, the US Agents, and the US Lenders to be the final, complete, and exclusive expression of the agreement between them. This Agreement and the other Loan Documents supersede any and all prior oral or written agreements relating to the subject matter hereof between the US Borrowers and the Administrative Agent or any Lender. No modification, rescission, waiver, release, or amendment of any provision of this Agreement or any other Loan Document shall be made, except by a written agreement signed by the US Borrowers and a duly authorized officer of each of the US Agents and the Required Lenders (or where required hereunder, all Lenders).
13.14Counterparts. This Agreement may be executed in any number of counterparts, and by the US Agents, each US Lender and each US Borrower in separate counterparts, each of
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which shall be an original, but all of which shall together constitute one and the same agreement; signature pages may be detached from multiple separate counterparts and attached to a single counterpart so that ail signature pages are physically attached to the same document.
13.15Captions. The captions contained in this Agreement are for convenience of reference only, are without substantive meaning and should not be construed to modify, enlarge, or restrict any provision.
13.16Right of Setoff. In addition to any rights and remedies of the US Lenders provided by law, if an Event of Default exists or the Loans have been accelerated, each US Lender is authorized at any time and from time to time, without prior notice to the US Borrowers, any such notice being waived by the US Borrowers to the fullest extent permitted by law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held by, and other indebtedness at any time owing by, such US Lender or any Affiliate of such US Lender to or for the credit or the account of either US Borrower against any and all Obligations owing to such US Lender by a US Borrower, now or hereafter existing, irrespective of whether or not the Administrative Agent or such US Lender shall have made demand under this Agreement or any Loan Document and although such Obligations may be contingent or unmatured. Each US Lender agrees promptly to notify the US Borrowers and the Administrative Agent after any such set-off and application made by such US Lender;provided,however, that the failure to give such notice shall not affect the validity of such set-off and application. NOTWITHSTANDING THE FOREGOING, NO US LENDER SHALL EXERCISE ANY RIGHT OF SET-OFF, BANKER’S LIEN, OR THE LIKE AGAINST ANY DEPOSIT ACCOUNT OR PROPERTY OF ANY US BORROWER HELD OR MAINTAINED BY SUCH US LENDER WITHOUT THE PRIOR WRITTEN UNANIMOUS CONSENT OF THE US LENDERS.
13.17Confidentiality.
(a) The US Borrowers hereby consent that each US Agent and each US Lender may issue and disseminate to the public general information describing the credit accommodation entered into pursuant to this Agreement, including the name and address of the US Borrowers and a general description of the US Borrowers’ businesses and may use the US Borrowers’ name in advertising and other promotional material.
(b) Each US Agent and each US Lender severally agrees to take normal and reasonable precautions and exercise due care to maintain the confidentiality of all information identified as “confidential” or “secret” by the US Borrowers and provided to such US Agent or US Lender by or on behalf of the US Borrowers, under this Agreement or any other Loan Document, except to the extent that such information (i) was or becomes generally available to the public other than as a result of disclosure by such US Agent or US Lender, or (ii) was or becomes available on a nonconfidential basis from a source other than the US Borrowers,providedthat such source is not bound by a confidentiality agreement with the US Borrowers known to such US Agent or US Lender;provided,however, that any US Agent and any US Lender may disclose such information (1) at the request or pursuant to any requirement of any Governmental Authority to which such US Agent or US Lender is subject or in connection with an examination of such US Agent or US Lender by any such Governmental Authority; (2)
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pursuant to subpoena or other court process; (3) when required to do so in accordance with the provisions of any applicable Requirement of Law; (4) to the extent reasonably required in connection with any litigation or proceeding (including, but not limited to, any bankruptcy proceeding) to which any US Agent, any US Lender or their respective Affiliates may be party; (5) to the extent reasonably required in connection with the exercise of any remedy hereunder or under any other Loan Document; (6) to such US Agent’s or such US Lender’s independent auditors, accountants, attorneys and other professional advisors; (7) to any prospective Participant or Assignee in connection with the syndication of the Loans and the Aggregate Commitments under any Assignment and Acceptance, actual or potential,providedthat such prospective Participant or Assignee agrees to keep such information confidential to the same extent required of any US Agent and the US Lenders hereunder; (8) as expressly permitted under the terms of any other document or agreement regarding confidentiality to which any US Borrower is party with such US Agent or such US Lender, and (9) to its Affiliates,providedthat any US Agent or US Lender agrees to cause its Affiliate to keep such information confidential to the same extent required of any US Agent or US Lender hereunder. Notwithstanding anything herein to the contrary, the information subject to thisSection 13.17(b) shall not include, and each US Agent and each US Lender may disclose without limitation of any kind, any information with respect to the “tax treatment” and “tax structure” (in each case, within the meaning of Treasury Regulation Section 1.6011-4) of the transactions contemplated hereby and all materials of any kind (including opinions or other tax analyses) that are provided to such US Agent or such US Lender relating to such tax treatment and tax structure;providedthat with respect to any document or similar item that in either case contains information concerning the tax treatment or tax structure of the transactions as well as other information, this sentence shall only apply to such portions of the document or similar item that relate to the tax treatment or tax structure of the Loans, Letters of Credit and transactions contemplated hereby.
13.18Conflicts with Other Loan Documents. Unless otherwise expressly provided in this Agreement (or in another Loan Document by specific reference to the applicable provision contained in this Agreement), if any provision contained in this Agreement conflicts with any provision of any other Loan Document, the provision contained in this Agreement shall govern and control.
13.19Currency Indemnity. If, for the purposes of obtaining judgment in any court in any jurisdiction with respect to this Agreement or any of the other Loan Documents, it becomes necessary to convert into the currency of such jurisdiction (the “Judgment Currency”) any amount due under this Agreement or under any of the other Loan Documents in any currency other than the Judgment Currency (the “Currency Due”), then conversion shall be made at the Spot Rate at which the Administrative Agent is able, on the relevant date, to purchase the Currency Due with the Judgment Currency prevailing on the Applicable Business Day before the day on which judgment is given. In the event that there is a change in the rate of Exchange Rate prevailing between the Applicable Business Day before the day on which the judgment is given and the date of receipt by the Administrative Agent of the amount due, the US Borrowers will, on the date of receipt by the Administrative Agent, pay such additional amounts, if any, or be entitled to receive reimbursement of such amount, if any, as may be necessary to ensure that the amount received by the Administrative Agent and the US Lenders on such date is the amount in the Judgment Currency which when converted at the rate of exchange prevailing on the date of receipt by the Administrative Agent is the amount then due under this Agreement or such other
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of the Loan Documents in the Currency Due. If the amount of the Currency Due which the US Agent is able to purchase is less than the amount of the Currency Due originally due to it, the US Borrowers shall indemnify and save the Administrative Agent and the US Lenders harmless from and against loss or damage arising as a result of such deficiency. The indemnity contained herein shall constitute an obligation separate and independent from the other obligations contained in this Agreement and the other Loan Documents, shall give rise to a separate and independent cause of action, shall apply irrespective of any indulgence granted by the Administrative Agent from time to time and shall continue in full force and effect notwithstanding any judgment or order for a liquidated sum in respect of an amount due under this Agreement or any of the other Loan Documents or under any judgment or order.
13.20Reinstatement. To the maximum extent permitted by law, this US Credit Agreement, and the US Obligations, shall continue to be effective or be reinstated, as the case may be, if at any time any amount received by any Agent or Lender in respect of the US Obligations is rescinded or must otherwise be restored or returned by any such Person upon the insolvency, administration, bankruptcy, dissolution, liquidation or reorganization of US Borrower or any other Person or upon the appointment of any receiver, intervenor, conservator, trustee or similar official for the US Borrower or any other Person or any substantial part of its assets, or otherwise, all as though such payments had not been made.
13.21Waiver of Counterclaims. Each Credit Party waives all rights to interpose any claims, deductions, setoffs, or counterclaims of any nature (other than compulsory counterclaims) in any action or proceeding brought by the Administrative Agent or any US Lender, the Obligations, the Collateral or any matter arising therefrom or relating hereto or thereto.
13.22USA Patriot Act Notice. The US Lenders hereby notifies the Borrowers that pursuant to the requirements of the USA Patriot Act, it is required to obtain, verify and record information that identifies the Borrowers, which information includes the name and address of the Borrowers and other information that will allow the US Lenders to identify the Borrowers in accordance with the Patriot Act.
[Signature pages follow]
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IN WITNESS WHEREOF, the parties have entered into this Agreement on the date first above written.
| | | |
| “US BORROWER” |
| | | |
| MOBILE STORAGE GROUP, INC. |
| | | |
| By: |  |
| |
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| | Name: | Allan A. Villegas |
| | Title: | Chief Financial Officer |
| | | |
| “PARENT GUARANTOR” |
| | | |
| MOBILE SERVICES GROUP INC. |
| | | |
| By: | |
| |
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| | Name: | Allan A. Villegas |
| | Title | Chief Financial Officer |
Signature page to Amended and Restated Credit Agreement
| | | |
| “ADMINISTRATIVE AGENT” |
| | | |
| BANK OF AMERICA, N.A., as the Administrative Agent |
| | | |
| By: |  |
| |
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| | Name: | Kevin R. Kelly |
| | Title: | Senior Vice President |
Signature page to Amended and Restated Credit Agreement
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| “LENDERS” |
| | | |
| BANK OF AMERICA, N.A., as a Lender |
| |
| By: | |
| |
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| | Name: | Kevin R. Kelly |
| | Title: | Senior Vice President |
Signature page to Amended and Restated Credit Agreement
