“LIBOR Loans” means US LIBOR Revolving Loans and UK Sterling LIBOR Revolving Loans.
“Lien” means: (a) any interest in property securing an obligation owed to, or a claim by, a Person other than the owner of the property, whether such interest is based on the common law, statute, or contract, and including a security interest, charge, claim, or lien arising from a mortgage, deed of trust, encumbrance, standard security, pledge, hypothecation, assignment as collateral, assignation, deposit arrangement, agreement, security agreement, conditional sale or trust receipt or a lease, consignment or bailment for security purposes; (b) to the extent not included underclause (a), any reservation, exception, encroachment, easement, right-of-way, covenant, condition, restriction, lease or other title exception or encumbrance affecting real property; and (c) any contingent or other agreement to provide any of the foregoing. For the avoidance of doubt, “Lien” shall not be deemed to include any license of Proprietary Rights.
“Loan Account” means the loan account of the Applicable Borrower, which account shall be maintained by the Administrative Agent.
“Loan Documents” means the US Loan Documents and the UK Loan Documents.
“Loans” means, collectively, all loans and advances provided for inArticle 1 of the US Credit Agreement and the UK Credit Agreement, as applicable.
“Luxembourg Debt” means the Intercompany Debt of the (i) UK Borrower to the Luxembourg Subsidiary in an aggregate principal amount not to exceed £30,000,000 and (ii) the Luxembourg Subsidiary to UK-LP in an aggregate principal amount not to exceed £30,000,000.
“Luxembourg Security Agreement” means the receivables pledge agreement, dated as of August 1, 2006, and entered into by the UK Security Trustee and UK-LP, as amended, restated, supplemented or otherwise modified from time to time.
“Luxembourg Security Documents” means the Luxembourg Share Charge, the Luxembourg Security Agreement and the UK Intercreditor Deed.
“Luxembourg Share Charge” means the share pledge agreement, dated as of August 1, 2006, and entered into by the UK Security Trustee, UK-LP and the Luxembourg Subsidiary, as amended, restated, supplemented or otherwise modified from time to time.
“Luxembourg Subsidiary” shall mean shall mean Liko Luxembourg International S.à r.l., a private limited liability company (société à responsabilité limitée) incorporated under the laws of the Grand Duchy of Luxembourg, with registered office at 74, rue de Merl, L-2146 Luxembourg, Grand Duchy of Luxembourg, incorporated with the Luxembourg Register of Commerce and Companies under the number B-62.639 and with a corporate capital of GBP 10,000.
“Machinery and Equipment” of a Person means all of such Person’s now owned and hereafter acquired machinery, equipment, transportation equipment, furniture, furnishings, fixtures, and other tangible personal property (except Inventory), including embedded software, motor vehicles and trailers with respect to which a certificate of title has been issued, aircraft, dies, tools, jigs, molds and office equipment, as well as all of such types of property leased by such Person and all of the such Person’s rights and interests with respect thereto under such leases (including options to purchase); together with all present and future additions and accessions thereto, replacements therefor, component and auxiliary parts and supplies used or to be used in connection therewith, and all substitutes for any of
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the foregoing, and all manuals, drawings, instructions, warranties and rights with respect thereto; wherever any of the foregoing is located, but excluding Inventory of such Person.
“Mandatory Cost” means the percentage rate per annum calculated by the UK Agent in accordance withAnnex B.
“Margin Stock” means “margin stock” as such term is defined in Regulation T, U or X of the Federal Reserve Board.
“Material Adverse Effect” means a material adverse effect on (a) the Acquisition, (b) the business assets, property or condition (financial or otherwise) of the Parent Guarantor, each Borrower and their Subsidiaries taken as a whole, (c) the validity or enforceability of this Agreement or any of the other Loan Documents or the rights or remedies of the Administrative Agent or the Lenders hereunder or thereunder or (d) the ability of the Credit Parties to perform any of their material obligations under the Loan Documents.
“Material Compliance Issue” has the meaning specified inSection 7.7(a).
“Maximum Aggregate Eligible Sales Inventory Amount” means an amount equal to the Dollar Equivalent of $25,000,000;provided that upon the occurrence of the Eligible Sales Inventory Appraisal Date such amount will increase to the Dollar Equivalent of $35,000,000.
“Maximum Amount” means an amount equal to $300,000,000 subject to any increase pursuant to Section 1.7.
“Maximum Liability” is defined in Section 1.6(f).
“Maximum Rate” is defined inSection 2.3.
“Maximum UK Amount” means £85,000,000.
“Maximum US Amount” means the Maximum Amountminus the Dollar Equivalent of the UK Aggregate Outstandings.
“Mezzanine Debt” means, collectively, the senior subordinated indebtedness of the Parent Guarantor outstanding pursuant to the Mezzanine Notes permitted to be issued pursuant to the Loan Documents.
“Mezzanine Notes” means the unguaranteed senior subordinated notes due 2015 issued on the Closing Date by the Parent Guarantor in an aggregated face amount of $90,000,000, together with all instruments and other agreements entered into by the Parent Guarantor in connection therewith, as may be amended, supplemented, refinanced, replaced or otherwise modified from time to time pursuant to the Loan Documents.
“Mobile Services” means Mobile Services Group, Inc., a Delaware corporation.
“Mobile Storage (UK)” means Mobile Storage (UK) Limited, a company formed under the laws of England and Wales.
“Mortgaged Property” has the meaning specified in Section 8.1(cc) of the US Credit Agreement.
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“Mortgages” means and includes any and all of the mortgages, standard security, deeds of trust, deeds to secure debt, assignments and other instruments executed and delivered by the US Borrower or any other Credit Party to or for the benefit of the Applicable Security Agent and the Applicable Lenders, including the US Mortgages, by which the Applicable Security Agent, on behalf of the Applicable Lenders, acquires a Lien on the owned Real Estate or a collateral assignment of the applicable Credit Party’s interest under leases of Real Estate, and all amendments, modifications and supplements thereto.
“Motor Vehicle Trust Agreement” has the meaning set forth in the US Security Agreement.
“MSG” means Mobile Storage Group, Inc., a Delaware corporation.
“MSG Investments” means MSG Investments, Inc., a California corporation.
“Multicurrency Letter of Credit Sublimit” means the Dollar Equivalent of $5,000,000.
“Multiemployer Plan” means a “multiemployer plan” as defined in Sections 3(37) or 4001(a)(3) of ERISA which is or was at any time during the current year or the immediately preceding six (6) years contributed to by any Borrower or any ERISA Affiliate.
“M&E Disposition Certificate” has the meaning specified inSection 5.2(k) of the US Credit Agreement andSection 5.2(k) of the UK Credit Agreement.
“Net Amount of Eligible Accounts” means, at any time, but without duplication of amounts already deducted in determining Eligible Accounts of the Applicable Borrower, the gross amount of Eligible Accounts of the Applicable Borrower less sales, excise or similar taxes, and less returns, discounts, claims, credits, allowances, rebates accrued or due, offsets, deductions, counterclaims, disputes and other defenses of any nature at any time issued, owing, granted, outstanding, available or claimed.
“Non-Consenting UK Lender” has the meaning specified inSection 11.1(g) of the UK Credit Agreement.
“Non-Consenting US Lender” has the meaning specified inSection 11.1(g) of the US Credit Agreement.
“Non-Guarantor Subsidiaries” shall mean any Subsidiary of the Parent Guarantor which has not become a guarantor under a Subsidiary Guaranty and is not required to become a Subsidiary Guarantor pursuant to either of the Credit Agreements.
“Non-Ratable Loan” and “Non-Ratable Loans” have the meanings specified inSection 1.2(h)(1) of the US Credit Agreement andSection 1.2(h)(1) of the UK Credit Agreement, as applicable.
“Notice of Borrowing” has the meaning specified inSection 1.2(b) of the US Credit Agreement andSection 1.2(b) of the UK Credit Agreement, as applicable.
“Notice of Business Activities Report” shall mean any report required for the then current year by any state or jurisdiction as a condition to access the courts of such jurisdiction and in order to
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permit the Applicable Borrower to seek judicial enforcement in such jurisdiction of payment of any Account.
“Notice of Continuation/Conversion” has the meaning specified inSection 2.2(b) of the US Credit Agreement andSection 2.2(b) of the UK Credit Agreement, as applicable.
“Obligation” and “Obligations” means each of the US Obligations and UK Obligations and all of them.
“Orderly Liquidation Value” means the gross proceeds that would reasonably be expected from a properly advertised and conducted orderly liquidation sale of the applicable business and assets of the Applicable Borrower over a period not to exceed 15 months, as determined by the Appraiser in an appraisal in scope, form and substance satisfactory to the Administrative Agent.
“Other Taxes” means any present or future stamp or documentary taxes or duties or any other excise or property taxes, VAT or other charges or similar levies which arise from any payment made hereunder or from the execution, delivery or registration of, or otherwise with respect to, the US Credit Agreement, the UK Credit Agreement or any other Loan Document (including any penalty or interest payable in connection with any failure to pay or any delay in paying any of the same).
“Parent Guarantor” means MSG WC Holdings Corp., a Delaware corporation.
“Participant” has the meaning specified inSection 11.2(e) of the US Credit Agreement andSection 11.2(e) in the UK Credit Agreement, as applicable.
“Participation Fee” has the meaning specified inSection 2.1(b) of the UK Credit Agreement.
“Patent and Trademark Security Agreement” means, collectively, the patent and trademark security agreement, dated as of August 1, 2006, and entered into by the Administrative Agent and Mobile Services, as amended, restated, supplemented or otherwise modified from time to time and the patent and trademark security agreement, dated as of August 1, 2006, and entered into by the Administrative Agent and MSG, as amended, restated, supplemented or otherwise modified from time to time.
“Payment Account” means each bank account established pursuant to the US Security Agreement or the UK Debenture, to which the proceeds of Accounts and other Collateral of any Credit Party are deposited or credited, and which is maintained in the name of the Applicable Security Agent or a Credit Party, as the Applicable Security Agent may determine, on terms acceptable to the Applicable Security Agent.
“PBGC” means the Pension Benefit Guaranty Corporation or any Governmental Authority succeeding to the functions thereof.
“Permitted Acquisitions” means an acquisition of all or substantially all of the assets, a unit or division or a line of business or all of the Capital Stock of any Person pursuant to a transaction or any series of related transactions;providedthat (a) no Default of Event of Default shall have occurred and be continuing on the date such Permitted Acquisition is consummated, immediately before or after giving effect thereto, (b) the business acquired (or Person acquired) is principally engaged in a Similar Business, (c) after giving effect to such Permitted Acquisition and the consideration to be paid (including Debt and other liabilities and obligations assumed or acquired) in connection with such Permitted Acquisition (i) if
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the acquiror is the UK Borrower or UK Subsidiary, UK Availability must be at or above the Dollar Equivalent of $15,000,000 or (ii) if the acquiror is a US Borrower or US Subsidiary, US Availability must be at or above the Dollar Equivalent of $15,000,000 and (iii) in any case, Total Excess Availability must be at or above the Dollar Equivalent of $30,000,000;providedfurtherthat if the consideration to be paid (including Debt and other liabilities and obligations assumed or acquired) in connection with such Permitted Acquisition is to be at or above the Dollar Equivalent of $15,000,000, the Required Lenders shall have given their prior written consent to such Permitted Acquisition.
“Permitted Liens” means:
(a) Liens (including statutory Liens) for taxes not delinquent and Liens (including statutory Liens) for taxes which are due and payable in an amount not to exceed the Dollar Equivalent of $500,000providedthat the payment of such taxes which are due and payable is being contested in good faith and by appropriate proceedings diligently pursued and as to which adequate financial reserves have been established in accordance with GAAP on the books and records of the Parent Guarantor or its Subsidiaries, as applicable, and a stay of enforcement of any such Lien is in effect;
(b) the Agents’ Liens and any Liens created by this Agreement or the Loan Documents;
(c) Liens consisting of deposits made in the ordinary course of business in connection with, or to secure payment of, obligations under worker’s compensation, unemployment insurance, social security and other similar laws, or to secure the performance of bids, tenders or contracts (other than for the repayment of Debt) or to secure indemnity, performance or other similar bonds for the performance of bids, tenders or contracts (other than for the repayment of Debt) or to secure statutory obligations (other than liens arising under ERISA or Environmental Liens) or surety or appeal bonds, or to secure indemnity, performance or other similar bonds;
(d) Liens securing the claims or demands of materialmen, mechanics, carriers, warehousemen, landlords and other like Persons,providedthat if any such Lien arises from the nonpayment of such claims or demand when due, such claims or demands do not exceed the Dollar Equivalent of $500,000 in the aggregate, or (ii) are being contested in good faith by appropriate proceedings diligently pursued and as to which adequate financial reserves have been established in accordance with GAAP on the books or records of the Borrowers or their Subsidiaries;
(e) Liens constituting encumbrances in the nature of reservations, exceptions, encroachments, easements, rights of way, covenants running with the land, condition restrictions, zoning, building codes and other land use laws or environmental restrictions regulating the use or occupancy of any Real Estate or the activities conducted thereon which are imposed by any governmental authority having jurisdiction over such Real Estate which are not violated by the current use or occupancy of such Real Estate or the operation of the business or any violation of which would not have a material adverse effect on the business and other similar title exceptions, charges, defects in title or encumbrances affecting any Real Estate (other than UK Property);providedthat they do not in the aggregate materially detract from the value of the Real Estate or materially interfere with its use in the ordinary course of a business of the Borrowers or any of their Subsidiaries;
(f) Liens arising from judgments and attachments in connection with court proceedings;providedthat the attachment or enforcement of such Liens would not result in an Event of Default hereunder and such Liens are being contested in good faith by appropriate proceedings, adequate reserves have been set aside and no material property is subject to a material risk of loss or forfeiture and
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the claims in respect of such Liens are fully covered by insurance (subject to ordinary and customary deductibles) and a stay of execution pending appeal or proceeding for review is in effect;
(g) any Lien in existence on the date hereof and disclosed onSchedule 7.13 to the Agreement and any Liens securing refinanced Debt permitted by Section 7.13(d) hereof;
(h) Liens reflected by Uniform Commercial Code financing statements filed in respect of true leases and not financing leases of any Credit Party or Liens resulting from financing statements on form UCC-1 filed erroneously or without proper authorization;
(i) Liens referred to in the UK Properties Report on Title;
(j) Liens securing Capital Leases and Debt permitted by clauses (b), (c), (d), (h), (j)(i), (k) and (l) ofSection 7.13 of this Agreement.
(k) Liens in favor of the Borrowers or any of the Subsidiary Guarantors;
(l) purchase money liens attached to assets acquired in the ordinary course of business of the Borrowers and its Subsidiaries, provided that such liens cover only the assets so acquired;
(m) inchoate statutory Liens arising under ERISA incurred in the ordinary course of business;
(n) leases or subleases granted to other that do not materially interfere with the ordinary course of business of the Borrower and its Subsidiaries, taken as a whole, or the rights and remedies of the Administrative Agent in respect of the Collateral;
(o) Liens existing on the assets of any Person that becomes a Subsidiary Guarantor, or existing on assets acquired, pursuant to a Permitted Acquisition;provided that such Liens attach at all times only to the same assets that such Liens attached to immediately prior to such Permitted Acquisition;
(p) Liens on cash deposits and other funds maintained with a depositary institution, in each case arising in the ordinary course of business by virtue of any statutory or common law provision relating to banker’s liens, including Section 4-210 of the UCC;
(q) Liens arising from the rights of lessors under leases (including financing statements regarding property subject to lease).
(r) Liens in favor of customs and revenue authorities in connection with custom duties;
(s) Liens securing insurance premium financing; provided that such Liens do not extend to any property or assets other than the insurance policies and proceeds thereof; and
(t) Liens on assets of the Borrower or any Subsidiaries with respect to obligations (other than in respect of Debt) that do not exceed $2,000,000 at any one time outstanding; provided that the assets subject to such Lien shall not exceed at any time $2,000,000 in the aggregate.
“Person” means any individual, sole proprietorship, partnership, limited liability company, joint venture, trust, unincorporated organization, association, corporation, Governmental Authority, or any other entity.
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“Plan” means an employee benefit plan (as defined in Section 3(3) of ERISA) which the US Borrower or any of its Subsidiaries sponsors or maintains or to which the US Borrower or any of its Subsidiaries makes, is making, or is obligated to make contributions and includes any Pension Plan (as defined in Section 3(2) of ERISA).
“Pounds Sterling” and “£” each mean lawful currency of the United Kingdom. Unless otherwise specified, all payments under the Loan Documents by the UK Credit Parties shall be made in Pounds Sterling.
“Preferred Stock” means any Capital Stock with preferential rights of payment of dividends, rights to mandatory redemption or other distributions or upon liquidation, dissolution, or winding up.
“Prior Claims” means all Liens created by applicable laws (in contrast to those granted voluntarily) which rank or are capable of ranking prior or pari passu with the Agents’ Liens against all or part of the Collateral, including for amounts owing for vacation pay, employee remuneration, deductions and contributions, goods and services taxes, sales taxes, VAT, corporate taxes, realty taxes, business taxes, workers’ compensation, pension plan or fund obligations, overdue rents and remuneration and expenses incurred in insolvency or similar proceedings and all UK Preferential Claims.
“Pro Forma EBITDA” means, with respect to any fiscal period, EBITDA for Mobile Services and its Subsidiaries for such periodplus, for each Permitted Acquisition consummated during such period, an amount (each a “Pro Forma Adjustment Amount”) equal to the EBITDA of each such Person or business so acquired (to the extent not otherwise included in the EBITDA for the Credit Parties and their Subsidiaries), calculated on a pro forma basis, as if the Permitted Acquisition had occurred on the first day of such period and calculated by the Applicable Borrower based on financial information related to such Person or business so acquired, including tax returns, which the US Borrower Representative (in the case of acquisitions by the US Credit Parties) or the UK Borrower (in the case of acquisitions by the UK Borrower and the UK Borrowing Base Parties) has reasonably determined to be satisfactory to support the calculation of the consolidated EBITDA of such Person or business so acquired, on a pro forma basis;
providedthat the aggregate Pro Forma Adjustment Amounts that may be so added to EBITDA of Mobile Services and its Subsidiaries in connection with all acquisitions of any Persons or businesses with respect to any fiscal period shall in any event not exceed, in aggregate, $4,000,000 plus any additional amount approved by the Administrative Agent in its sole discretion. Together with each Compliance Certificate delivered as set forth above, the US Borrower Representative or the UK Borrower shall deliver to the Administrative Agent and the UK Agent the financial information related to such Person or business so acquired, including tax returns, if any, upon which the US Borrower Representative (in the case of acquisitions by the US Credit Parties) or the UK Borrower (in the case of acquisitions by the UK Borrower and the UK Borrowing Base Parties) has based its determinations as to the calculation of the consolidated EBITDA of such Person or business so acquired.
“Proposed Changes” has the meaning specified inSection 11.1(g).
“Proprietary Rights” means all of the Applicable Borrower’s now owned and hereafter arising or acquired: licenses, franchises, permits, patents, patent rights, copyrights, works which are the subject matter of copyrights, trademarks, service marks, trade names, trade styles, patent, trademark and service mark applications, and all licenses and rights related to any of the foregoing, including those patents, trademarks, service marks, trade names and copyrights set forth onSchedule 6.12 hereto, and all other rights under any of the foregoing, all extensions, renewals, reissues, divisions, continuations, and
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continuations-in-part of any of the foregoing, and all rights to sue for past, present and future infringement of any of the foregoing.
“Pro Rata Share” means, as of any date,
(a) with respect to the Pro Rata Share ascribed to any US Lender, a fraction (expressed as a percentage), the numerator of which is the amount of such US Lender’s US Commitments and the denominator of which is the sum of the amounts of all of the US Lenders’ US Commitments, or if no US Commitments are outstanding, a fraction (expressed as a percentage), the numerator of which is the amount of US Obligations owed to such US Lender and the denominator of which is the aggregate amount of the US Obligations owed to all of the US Lenders, in each case giving effect to the US Lenders’ participation in Non-Ratable Loans and Agent Advances,
(b) with respect to the Pro Rata Share ascribed to any UK Lender, a fraction (expressed as a percentage), the numerator of which is the amount of such UK Lender’s UK Commitments and the denominator of which is the sum of the amounts of all of the UK Lenders’ UK Commitments, or if no UK Commitments are outstanding, a fraction (expressed as a percentage), the numerator of which is the amount of UK Obligations owed to such UK Lender and the denominator of which is the aggregate amount of the UK Obligations owed to all of the UK Lenders, in each case giving effect to the UK Lenders’ participation in Non-Ratable Loans and Agent Advances,
(c) with respect to the Pro Rata Share ascribed to any Lender (without reference to such Lender being a US Lender or a UK Lender), a fraction (expressed as a percentage), the numerator of which is the amount of such Lender’s Aggregate Commitments and the denominator of which is the sum of the amounts of all of the Lenders’ Aggregate Commitments, or if no US Commitments and no UK Commitments are outstanding, a fraction (expressed as a percentage), the numerator of which is the amount of Obligations owed to such Lender and the denominator of which is the aggregate amount of the Obligations owed to all of the Lenders, in each case giving effect to the Lenders’ participation in Non-Ratable Loans and Agent Advances.
“Public Debt” means any unsecured Debt offered or sold (i) without registration pursuant to the Securities Act in transactions qualifying for a resale exemption under the Securities Act pursuant to Rule 144A or Regulation S of the Securities Act, or (ii) pursuant to registration under the Securities Act.
“Put Date” has the meaning specified inSection 1.7 of the UK Credit Agreement.
“Put Notice” has the meaning specified inSection 1.7 of the UK Credit Agreement.
“Ravenstock” means Ravenstock MSG Limited, a company formed under the laws of England and Wales.
“Ravenstock Tam Hire” means Ravenstock Tam (Hire) Limited, a company formed under the laws of England and Wales.
“Real Estate” means, with respect to any Person, all of such Person’s now or hereafter owned or leased estates, or other interests, in real property or heritable property, including all fees, leaseholds and future interests, together with all of such Person’s now or hereafter owned or leased interests in the improvements thereon, the fixtures attached thereto and the easements or servitudes appurtenant thereto.
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“Refinancing” means the following transactions referred to collectively: (a) termination of the Existing US Credit Agreement and Existing UK Credit Agreement, (b) payment of any principal, interest, fees or other amounts owing thereunder, and (c) all other transactions related thereto.
“Release” means a release, spill, emission, leaking, pumping, injection, deposit, disposal, discharge, dispersal, leaching or migration of a Contaminant into the indoor or outdoor environment or into or out of any Real Estate or other property, including the movement of Contaminants through or in the air, soil, surface water, groundwater or Real Estate or other property.
“Rental Fleet Assets” as distinguished from Sales Inventory, means Inventory of the applicable Credit Parties consisting of new and used manufactured or remanufactured portable storage containers, portable storage trailers, cartage trailers, and portable mobile office units or cabins owned by the applicable Credit Parties and in the ordinary course of business either (a) held for lease or to be furnished under a contract of service or (b) leased to a customer by the applicable Credit Parties as lessor or furnished by the applicable Credit Parties to a customer under a contract of service.
“Replies to Enquiries” means replies to enquiries of the legal and beneficial owner of the UK Property to which the enquiries relate in the forms referred to in the UK Properties Report on Title and dated August 1, 2006.
“Reportable Event” means, any of the events set forth in Section 4043(b) of ERISA or the regulations thereunder, other than any such event for which the 30-day notice requirement under ERISA has been waived in regulations issued by the PBGC.
“Required Lenders” means at any date of determination Lenders holding, in the aggregate, more than 50% of the sum of (a) the US Commitments (or, if no US Commitments are outstanding, the amount of Obligations owed to all US Lenders) and, (b) the UK Commitments (or if no UK Commitments are outstanding the amount of Obligations owed to all UK Lenders).
“Requirement of Law” means, as to any Person, any law (statutory or common), treaty, rule or regulation or determination of an arbitrator or of a Governmental Authority, in each case applicable to or binding upon the Person or any of its property or to which the Person or any of its property is subject.
“Reserves” means, without duplication, reserves that limit the availability of credit under the (I) US Credit Agreement, consisting of reserves against US Availability or the US Borrowing Base, established by the Administrative Agent from time to time in the Administrative Agent’s reasonable credit judgment and (II) the UK Credit Agreement, consisting of reserves against UK Availability or the UK Borrowing Base, established by the UK Agent from time to time in the UK Agent’s sole credit judgment. Without limiting the generality of the foregoing, the following reserves shall be deemed to be a reasonable exercise of the Administrative Agent’s credit judgment and within the discretion of the UK Agent in its sole credit judgment: (a) Bank Product Reserves, (b) a reserve for accrued, unpaid interest on the Obligations, (c) reserves in the amount of three-months rent in respect of UK Leased and Subleased Real Estate and other properties disclosed in Schedule 6.11 (excluding UK Owned Real Estat) provided that in the event that the Borrower obtains a waiver letter in the agreed form (even though not obliged to do so), there shall be no reserve against that particular property and a reserve in the amount of 3 months rent in respect of future acquired leasehold property until such time as the Borrower obtains a waiver letter in the agreed form, (d) Inventory shrinkage, (e) Environmental Compliance Reserves, (f) customs charges, (g) dilution, (h) warehousemen’s or bailees’ charges, (i) reserves for Prior Claims, (j) reserves for any Debt or other obligations outstanding under any Capital Lease or lease which contains a no-cost purchase option, (k) during any period in which Total Excess Availability is not greater than or equal to
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$30,000,000, reserves, from time to time, for the next payment due under the Welsh Carson Management Agreement, (l) reserves in the amount of two-months mortgage payments in respect of owned Real Estate subject to a mortgage or deed of trust for which a mortgagee waiver and access agreement acceptable to the Administrative Agent shall not have been obtained, (m) US Trailer Reserves and (n) Appraisal Reserves. Neither the Administrative Agent nor the UK Agent will establish Reserves after the Closing Date on account of any circumstances, conditions, events or contingencies known to the Administrative Agent or the UK Agent on or prior to the Closing Date and which have not changed in a material respect since the Closing Date;provided,however, that to the extent the Administrative Agent or the UK Agent establishes new criteria or revises existing criteria in respect of existing Reserves to address any circumstances, conditions, events or contingencies, neither the Administrative Agent nor the UK Agent shall establish a new Reserve or increase another Reserve for the same purpose. Any Reserve established or increased by the Administrative Agent or the UK Agent shall in any case have a reasonable relationship to the circumstances, condition, event or contingency which is the basis for such Reserve, as reasonably determined by the Administrative Agent and the UK Agent in good faith according to its reasonable credit judgment.
“Responsible Agent” means (a) with respect to matters relating to the US Credit Agreement, the Administrative Agent and (b) with respect to matters relating to the UK Credit Agreement, the UK Agent.
“Responsible Officer” of any Person means the chairman, president, chief executive officer, chief financial officer, chief operating officer, general counsel, executive vice president or vice president, or any other senior officer having substantially the same authority and responsibility; or, with respect to compliance with financial covenants and the preparation of the Borrowing Base Certificates, the chief financial officer or the director of finance of the Applicable Borrower, or any other officer having substantially the same authority and responsibility.
“Restricted Investment” means, as to any Credit Party, any acquisition of property by such Credit Party in exchange for cash or other property, whether in the form of an acquisition of stock, debt, or other indebtedness or obligation, or the purchase or acquisition of any other property, or a loan, advance, capital contribution, or subscription, except the following acquisitions that are permitted by Credit Parties other than the Parent Guarantor;provided that nothing in this definition shall prevent or restrict the Parent Guarantor from consummating the Acquisition:
(a) acquisitions of Machinery and Equipment, Rental Fleet Assets and Fixed Assets to be used in the ordinary course of business of such Credit Party so long as the acquisition costs thereof constitute Capital Expenditures permitted hereunder;
(b) acquisitions of Sales Inventory in the ordinary course of business of such Credit Party;
(c) acquisitions of current assets acquired in the ordinary course of business of such Credit Party;
(d) cash, cash equivalents, and direct obligations of the United States of America, or any agency thereof, or obligations guaranteed by the United States of America,providedthat such obligations mature within one year from the date of acquisition thereof;
(e) acquisitions of certificates of deposit maturing within one year from the date of acquisition, bankers’ acceptances, Eurodollar bank deposits, or overnight bank deposits, in each case
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issued by, created by, or with a bank or trust company organized under the laws of the United States of America or any state thereof having capital and surplus aggregating at least $100,000,000;
(f) acquisitions of commercial paper given a rating of “A2” or better by Standard & Poor’s Corporation or “P2” or better by Moody’s Investors Service, Inc. and maturing not more than 90 days from the date of creation thereof;
(g) Hedge Agreements;
(h) Intercompany Debt permitted hereunder;
(i) Permitted Acquisitions for which the consideration is paid in (i) Capital Stock of the Parent Guarantor or (ii) cash (including the amount of any Debt or other obligations or liabilities assumed or acquired in connection with such Permitted Acquisition) and the fair market value of such consideration does not exceed:
| | |
| (A) | in the Fiscal Year ended December 31, 2006 (taking into account all Permitted Acquisitions occurring in Fiscal Year 2006 occurring prior to the Closing Date), the Dollar Equivalent of $50,000,000; |
| | |
| (B) | in the Fiscal Year ended December 31, 2007, the Dollar Equivalent of $50,000,000; |
| | |
| (C) | in the Fiscal Year ended December 31, 2008, the Dollar Equivalent of $55,000,000; |
| | |
| (D) | in the Fiscal Year ended December 31, 2009, the Dollar Equivalent of $60,000,000; |
| | |
| (E) | in the Fiscal Year ended December 31, 2010, the Dollar Equivalent of $65,000,000; and |
| | |
| (F) | in the Fiscal Year ended December 31, 2011, the Dollar Equivalent of $70,000,000; |
in each caseplus the Capital Expenditure to Acquisition Transfer Amount andless the Acquisition to CapEx Transfer Amount in any Fiscal Year (the “Maximum Permitted Acquisitions Amount”);providedthat (1) the US Borrower shall, and shall cause its Subsidiaries to, comply with the requirements ofSections 7.31 and7.32 with respect to each such acquisition, and (2) such Maximum Permitted Acquisitions Amount for any Fiscal Year shall be increased by an amount equal to the sum of (X) the excess, if any of (A) the Maximum Permitted Acquisitions Amount for the previous Fiscal Year (without giving effect to any adjustment in accordance with this proviso) over the amount of Permitted Acquisitions actually made during the immediately preceding Fiscal Year (the “Acquisition Carry Forward Amount”), up to an aggregate maximum increase equal to the Dollar Equivalent of $15,000,000 for such Fiscal Year (any such amount to be certified by the US Borrower Representative to the Administrative Agent in the Compliance Certificate delivered for the last Fiscal Quarter of the previous fiscal year);providedfurtherthat, notwithstanding the foregoing restrictions, any Permitted Acquisition or portion thereof (including all costs, fees and other related expenses) funded solely by the issuance of Capital Stock, net cash proceeds and/or marketable securities received by the US Borrower from the issuance of Capital Stock (but not Preferred Stock other than Preferred Stock of the Parent Guarantor
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which complies withSection 7.34) of the Parent Guarantor shall not be counted in the calculation of such limitations;
(j) acquisitions of Real Estate, subject to compliance withSections 7.26 and7.33;
(k) transactions between the US Borrowers and Ravenstock subject to compliance withSection 7.15(e);
(l) transactions that would otherwise be Restricted Investments existing as of the Closing Date, and any extensions, renewals or reinvestments thereof, so long as the aggregate amount thereof is not increased at any time above the amount existing on the Closing Date;
(m) acquisition or holding of assets received in connection with the bankruptcy or reorganization of trade creditors, trade counterparties, suppliers or customers and in settlement of delinquent obligations of, and other disputes with, customers;
(n) the acquisition or holding of the Capital Stock and Intercompany Debt in any Borrower and each of their Subsidiaries by Parent Guarantor and each of its Subsidiaries;
(o) acquisitions made to repurchase or retire common stock of any Borrower or any of its Subsidiaries owned by any employee stock ownership plan or key employee, directors and officers, or other stock ownership plans of any Borrower or any of its Subsidiaries;
(p) acquisition of assets pursuant to transaction described in Sections 7.9, 7.15 or 7.20 or resulting from transactions permitted in Sections 7.13(c), (k), (l) or (m);
(q) workers’ compensation, utility, lease and similar deposits and prepaid expenses in the ordinary course of business, and the endorsement of instruments for collection or deposit in the ordinary course of business;
(r) transactions arising from agreements providing for adjustment of the purchase price, deferred payment, earnout or similar obligations, in each case, in connection with the disposal or acquisition of any business or assets not prohibited hereunder; and
(s) loans and advances to employees, directors or officers of any Borrower or its Subsidiaries for any purpose not to exceed the principal amount of $3,000,000 in the aggregate at any time outstanding.
“Revolving Loans” means the US Revolving Loans and the UK Revolving Loans.
“Sales Inventory” means Inventory, other than Rental Fleet Assets, of the applicable Credit Parties, which is held for sale to customers in the ordinary course of such Credit Parties’ business.
“Second Lien Security Agreement” means the second lien security agreement, dated as of August 1, 2006, entered into by and among, the Administrative Agent, MSG Asset Trust, in its capacity as agent for and on behalf of the Administrative Agent and the Lenders, MSG, Mobile Services, ABMSC, Mobile Services, the Parent Guarantor, Texas LP and MSG Investments, as amended, restated, supplemented or otherwise modified from time to time.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
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“Senior Unsecured Note Indenture” means the Indenture entered into by Mobile Services, MSG and the guarantors in respect thereof in connection with the issuance of the Senior Unsecured Notes, together with all instruments and other agreements entered into by the Mobile Services and such guarantors in connection therewith.
“Senior Unsecured Notes” means the senior unsecured notes of Mobile Services and MSG issued on the Closing Date pursuant to the Senior Subordinated Note Indenture.
“Senior Unsecured Noteholders” shall mean the holders from time to time of the Senior Unsecured Notes.
“Set Off” includes any right of retention, claim of compensation or right to balance accounts on insolvency.
“Settlement” and “Settlement Date” have the meanings specified inSection 12.15(a)(ii) of the US Credit Agreement andSection 12.14(a)(ii) of the UK Credit Agreement.
“Similar Business” means the same line of business or business activities that are substantially similar or related to the business of the Borrowers as existing on the Closing Date.
“Software” means, with respect to any Person, all “software” as such term is defined in the UCC, now owned or hereafter acquired by such Person, other than software embedded in any category of Goods, including all computer programs and all supporting information provided in connection with a transaction related to any program.
“Solvent” means, when used with respect to any Person, that at the time of determination:
(a) the assets of such Person, at a fair valuation, are in excess of the total amount of its debts (including contingent liabilities); and
(b) the present fair saleable value of its assets is greater than its probable liability on its existing debts as such debts become absolute and matured; and
(c) it is then able and expects to be able to pay its debts (including contingent debts and other commitments) as they mature; and
(d) it has capital sufficient to carry on its business as conducted and as proposed to be conducted.
For purposes of determining whether a Person is Solvent, the amount of any contingent liability shall be computed as the amount that, in light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.
“Spot Rate” for any applicable currency means the rate quoted by the Administrative Agent as the spot rate for the purchase by the Administrative Agent of the applicable currency with Dollars or Dollars with the applicable currency, as the case may be, at approximately 9:00 a.m. (Administrative Agent’s local time) on such date as of which the foreign exchange computation is made for delivery two US Business Days later.
“Stated Termination Date” means August 1, 2011.
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“Sterling Equivalent” means, at any time, (a) as to any amount denominated in Pounds Sterling, the amount thereof at such time and (b) as to any amount denominated in Dollars or any other currency other than Pounds Sterling, the equivalent amount in Pounds Sterling as determined by the Administrative Agent at such time on the basis of the Spot Rate for the purchase of Pounds Sterling with Dollars or such other currency on the most recent computation date.
“Subsidiary” of a Person means any corporation, association, partnership, limited liability company, joint venture or other business entity of which more than fifty percent (50%) of the Voting Stock or other equity interests (in the case of Persons other than corporations), is owned or controlled directly or indirectly by the Person, or one or more of the Subsidiaries of the Person, or a combination thereof. Unless the context otherwise clearly requires, references herein to a “Subsidiary” refer to a Subsidiary of the Parent Guarantor.
“Subsidiary Guarantors” means all US Subsidiaries and Foreign Subsidiaries which are or become a party to a Subsidiary Guaranty;providedthat MSG Investments and any Foreign Subsidiaries shall not be Subsidiary Guarantors with respect to the Obligations of the US Borrowers.
“Subsidiary Guaranty” means each of the US Subsidiary Guaranty and the UK Guaranty, which have been executed and delivered by one or more US Subsidiary Guarantors and /or one or more Foreign Subsidiary Guarantors to guarantee, for the benefit of the Agents, the UK Security Trustee and the Lenders, as applicable the Obligations of the US Borrower and/or the UK Borrower.
“Supporting Obligations” means all supporting obligations as such term is defined in the UCC, including letters of credit and guaranties issued in support of Accounts, Chattel Paper, Documents, General Intangibles, Instruments, or Investment Property.
“Taxes” means any and all present or future taxes, levies, imposts, deductions, charges or withholdings, and all liabilities with respect thereto, including value added taxes but excluding, in the case of each Lender and each Agent, such taxes (including income taxes or franchise taxes) as are imposed on or measured by each Agent’s or Lenders’ net income as a result of a connection between such Agent or Lender and the jurisdiction of the governmental authority imposing such tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely from such Agent or Lender having executed, delivered or performed its obligations or received a payment under, or enforced by, the US Credit Agreement or the UK Credit Agreement).
“Termination Date” means the earliest to occur of (i) the Stated Termination Date, (ii) the date the Total Facility is terminated either by the Borrowers pursuant toSection 3.2 or by the Required Lenders pursuant toSection 9.2), and (iii) the date the Agreement is otherwise terminated for any reason whatsoever pursuant to the terms of the Agreement.
“Texas-LP” means Mobile Storage Group (Texas), L.P., a Texas limited partnership.
“Title Insurance Company” has the meaning specified in Section 8.1(cc) of the US Credit Agreement.
“Total Excess Availability” means, at any time, the lesser of (i) the Maximum Amount minus Aggregate Outstandings or (ii) Aggregate Availability.
“Total UK Facility” has the meaning specified inSection 1.1 of the UK Credit Agreement.
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“Total US Facility” has the meaning specified inSection 1.1 of the US Credit Agreement.
“Transaction Documents” shall mean, collectively, the Loan Documents and the Senior Unsecured Note Indenture.
“Transferee” has the meaning specified inSection 11.2(a) of the UK Credit Agreement.
“Tudorgrade” means Tudorgrade (Container Repairs) Limited, a company formed under the laws of England and Wales.
“UCC” means the Uniform Commercial Code, as in effect from time to time, of the State of New York or of any other state the laws of which are required as a result thereof to be applied in connection with the issue of perfection of security interests;provided,that to the extent that the UCC is used to define any term herein or in any other documents and such term is defined differently in different Articles or Divisions of the UCC, the definition of such term contained in Article or Division 9 shall govern.
“UK 2006 Debenture” means the debenture, dated as of August 1, 2006, and entered into by Ravenstock, Mobile Storage (UK), the Luxembourg Subsidiary, and Ravenstock Tam Hire, among others, and any document entered into pursuant thereto, as amended, restated, supplemented or otherwise modified from time to time.
“UK 2006 Share Charge” means the share charge, dated as of August 1, 2006, and entered into by the UK Security Trustee and MSG, as amended, restated, supplemented or otherwise modified from time to time.
“UK Advance Rate” means, (a) from the date hereof until such time as an appraisal by the Appraiser of the Rental Fleet Assets of the UK Borrower and the UK Borrowing Base Parties is delivered to the Administrative Agent (such appraisal to be reasonably satisfactory to the Administrative Agent), 100% and (b) thereafter, upon the receipt from time to time by the Administrative Agent of an appraisal pursuant toSection 7.4(d), a percentage equal to (a) the lesser of (i) 90% of the Orderly Liquidation Value of the Eligible Rental Fleet Assets of the UK Borrower and the UK Borrowing Base Parties set forth in such appraisal or (ii) 100% of the net book value, determined in accordance with GAAP, of such Eligible Rental Fleet Assets of the UK Borrower and the UK Borrowing Base Partiesdivided by (b) the aggregate net book value of the Eligible Rental Fleet Assets of the UK Borrower and the UK Borrowing Base Parties.
“UK Agent” means The CIT Group/Business Credit, Inc., solely in its capacity as agent for the UK Lenders, and any successor agent.
“UK Agents” means, collectively, the Administrative Agent, the UK Agent, the Solicitation Agent, the Documentation Agents, if any, and the UK Security Trustee.
“UK Agents’ Liens” means the Liens in the UK Collateral granted to the UK Security Trustee for the benefit of the UK Lenders, and UK Agents pursuant to the UK Credit Agreement and the other UK Loan Documents.
“UK Aggregate Outstandings” means, without duplication, at any date of determination the Sterling Equivalent of an amount equal to: the sum of (a) the unpaid balance of UK Revolving Loans, (b) the aggregate amount of UK Pending Revolving Loans, (c) one hundred percent (100%) of the aggregate undrawn face amount of all outstanding Letters of Credit issued in respect of the UK Borrower,
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and (d) the aggregate amount of any unpaid reimbursement obligations in respect of Letters of Credit issued in respect of the UK Borrower not included in clause (a).
“UK Availability” means, at any time, an amount equal to: (a) the lesser of (i) the Maximum UK Amount or (ii) the UK Borrowing Base,minus (b) Reserves relating to the UK Borrower and their Subsidiaries and assets, other than Reserves deducted in the calculation of the UK Borrowing Base,minus (c) the UK Aggregate Outstandings.
“UK Bank Products” means any one or more of the following types of services or facilities extended to the UK Borrower or other UK Credit Party by a Bank Product Provider at the UK Borrower’s request: (i) credit cards; (ii) ACH Transactions; (iii) Hedge Agreements; and (iv) cash management, including controlled disbursement services.
“UK Base Rate” means the UK Agent’s reference rate for Pounds Sterling loans, being the rate from time to time set by the UK Agent based on various factors including the cost of funds, desired return and general economic conditions and which is used as a reference point for pricing loans made by it in Pounds Sterling.
“UK Base Rate Revolving Loan” means a UK Revolving Loan during any period in which it bears interest based on the UK Base Rate.
“UK Borrower” means Ravenstock.
“UK Borrowing” means a borrowing under the UK Credit Agreement consisting of UK Revolving Loans made on the same day by the UK Lenders to the UK Borrower or by the UK Agent in the case of a UK Borrowing funded by Non-Ratable Loans or by the Agent in the case of a UK Borrowing consisting of an Agent Advance, or the issuance of Letters of Credit hereunder for the account of the UK Borrower.
“UK Borrowing Base” means, at any time, an amount determined in Dollars equal to (i) the sum of (A) eighty-five percent (85%) of the Net Amount of Eligible Accounts of the UK Borrower and the UK Borrowing Base Parties;plus (B) the UK Advance Ratemultiplied by the Book Value of Eligible Rental Fleet Assets of the UK Borrower and the UK Borrowing Base Parties;plus (C) the lesser of (i) ninety percent (90%) of the Book Value of Eligible Machinery and Equipment of the UK Borrower and the UK Borrowing Base Parties or (ii) eighty percent (80%) of the Orderly Liquidation Value of Eligible Machinery and Equipment of the UK Borrower and the UK Borrowing Base Parties;plus (D) the Value of Eligible Sales Inventory of the UK Borrower and the UK Borrowing Base Parties;minus (ii) Reserves from time to time established by the UK Agent in its commercially reasonable discretion relating to the UK Borrower and the UK Borrowing Base Parties or their assets. In connection with and subsequent to any Permitted Acquisition, the Accounts and Rental Fleet Assets acquired by the UK Borrower or any UK Borrowing Base Party, or, subject to compliance withSection 7.32 of the US Credit Agreement, of the Person so acquired, may be included in the calculation of the UK Borrowing Base for Loans incurred in connection with such Permitted Acquisition and thereafter if all criteria set forth in the definitions of Eligible Accounts and Eligible Inventory have been satisfied and, if the aggregate purchase price is greater than or equal to $15,000,000, the Responsible Agent shall have received from the Appraiser a “desktop appraisal” of such Rental Fleet Assets acquired by the applicable Credit Parties or owned by such Person acquired by the applicable Credit Parties which shall be reasonably satisfactory in scope, form and substance to the Responsible Agent.
“UK Borrowing Base Party” means MSG Investments and each of the Subsidiary Guarantors that are Foreign Subsidiaries.
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“UK Business Day” means (a) any day that is not a Saturday, Sunday, or a day on which banks in London, England or New York, New York are required or permitted to be closed, and (b) with respect to all notices, determinations, fundings and payments in connection with the UK Sterling LIBOR Revolving Loans, any day that is a UK Business Day pursuant toclause (a) above and that is also a day on which trading in Pounds Sterling is carried on by and between banks in the London interbank market.
“UK Collateral” means all of the UK Obligors’ real, heritable, personal, movable and immovable property and all other assets and undertakings of any Person from time to time subject to the UK Agents’ Liens securing payment or performance of the UK Obligations.
“UK Commitment” means, at any time with respect to a UK Lender, the principal amount set forth beside such UK Lender’s name under the heading “UK Commitment” onSchedule 1 attached to the UK Credit Agreement or on the signature page of the UK Transfer Agreement pursuant to which such UK Lender became a UK Lender under the UK Credit Agreement in accordance with the provisions ofSection 11.2 of the UK Credit Agreement, as such UK Commitment may be adjusted from time to time in accordance with the provisions ofSection 11.2, and “UK Commitments” means, collectively, the aggregate amount of the UK Commitments of all of the UK Lenders. For the avoidance of doubt, “UK Commitment” shall include the UK Revolver Participant Commitment.
“UK Credit Agreement” shall have the meaning given such term in the recitals hereto.
“UK Credit Party” means the UK Borrower, the Parent Guarantor, MSG Investments and each of the Subsidiary Guarantors that are Foreign Subsidiaries.
“UK Fronting Lender” means the UK Agent, solely in its capacity as fronting lender for the UK Revolver Participants.
“UK GAAP” means accounting principles, standards and practices generally accepted from time to time in the United Kingdom and issued or adopted by the Accounting Standards Branch of the United Kingdom (or successor thereof from time to time).
“UK Guaranty” means the UK guarantee, dated as of August 1, 2006, and entered into by UK Security Trustee, the Parent Guarantor, ABMSC, Texas-LP, Mobile Storage (UK), Ravenstock Tam Hire, UK-LP, MSG Investments and the Luxembourg Subsidiary, among others, as amended, restated, supplemented or otherwise modified from time to time.
“UK Intercreditor Deed” means the intercreditor deed, dated as of August 1, 2006, and entered into by and among the UK Security Trustee, Mobile Services, MSG, Ravenstock, the Luxembourg Subsidiary, Mobile Storage (UK), among others, as amended, restated, supplemented or otherwise modified from time to time.
“UK Lender” means any Lender listed onSchedule 1 of the UK Credit Agreement under the heading “UK Lender,” and any other Lender (including, for the avoidance of doubt, any UK Revolver Participant and the UK Fronting Lender) that may, from time to time, hold UK Revolving Loans (or UK Revolver Participant Commitments, as applicable) and shall include the Responsible Agent to the extent of any Agent Advance outstanding under the UK Credit Agreement and the UK Agent to the extent of any Non-Ratable Loan outstanding under the UK Credit Agreement;providedthat no such Agent Advance or Non-Ratable Loan shall be taken into account in determining any UK Lender’s Pro Rata Share.
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“UK Loan Documents” means the UK Credit Agreement, the UK Guaranty, the US Security Documents, the UK Security Documents and the Luxembourg Security Documents and any other agreements, instruments, and documents heretofore, now or hereafter evidencing, securing, guaranteeing or otherwise relating to the UK Obligations, the UK Collateral, or any other aspect of the transactions contemplated by the UK Credit Agreement.
“UK-LP” means Mobile Storage UK Finance LP, a limited partnership formed under the laws of England and Wales.
“UK Obligations” means, with respect to any UK Obligor, all present and future loans, advances, liabilities, obligations, covenants, duties, and debts owing by such UK Obligor to the UK Agents and/or any UK Lender, and/or any indemnitee arising under or pursuant to the UK Credit Agreement or any of the other UK Loan Documents, whether or not evidenced by any note, or other instrument or document, whether arising from an extension of credit, opening of a letter of credit, acceptance, loan, guaranty, indemnification or otherwise, whether direct or indirect, absolute or contingent, due or to become due, primary or secondary, as principal or guarantor, and including all principal, interest, charges, expenses, fees, attorneys’ fees, filing fees and any other sums chargeable to any UK Obligor hereunder or under any of the other Loan Documents. “UK Obligations” includes (a) all debts, liabilities, and obligations now or hereafter arising from or in connection with the Letters of Credit issued under the UK Credit Agreement and (b) all debts, liabilities and obligations now or hereafter arising from or in connection with UK Bank Products, including all debts, liabilities and obligations now or hereafter arising from or in connection with any Hedge Agreement entered into with the UK Agent or any UK Lender.
“UK Obligors” means the UK Credit Parties, each other Credit Party party to any UK Loan Document and any other Person who, from time to time, may be a guarantor of the UK Obligations of any UK Credit Party or have granted a Lien to secure the UK Obligations of any UK Credit Party.
“UK Pending Revolving Loans” means, at any time, the aggregate principal amount of all UK Revolving Loans requested in any Notice of Borrowing received by the UK Agent which have not yet been advanced.
“UK Preferential Claims” means (a) £600,000 for each UK Borrowing Base Party being the amount subject to unsecured creditor dilution pursuant to the United Kingdom Enterprise Act 2002 and the United Kingdom Insolvency Act 1986 or such other amount as may be specified as a matter of English law plus (b) an amount determined by the UK Agent representing an estimate of potential prior ranking capital gains or other taxes.
“UK Properties” means all the freehold and leasehold properties and other Real Estate real properties and interests in real properties owned by or vested in the UK Borrower or any of its Subsidiaries including all buildings and other structures from time to time erected thereon and all fixtures and fittings (trade or otherwise) and fixed plant or machinery from time to time thereon or therein (and “UK Property” shall be construed accordingly).
“UK Properties Report on Title” means a report on title to the UK Properties listed inSchedule 6.11 by Messrs. BP. Collins in respect of UK Properties in England and Wales, McClure Naismith in respect of UK Properties in Scotland and McGrigors in respect of UK Properties in Northern Ireland in form acceptable to the UK Security Trustee dated August 1, 2006.
“UK Required Lenders” means at any date of determination UK Lenders holding, in the aggregate, more than 50% of the sum of commitments under the UK Revolving Facility.
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“UK Revolver Participant” means those UK Lenders having UK Revolver Participant Commitments.
“UK Revolver Participant Commitment” means the commitment of each UK Revolver Participant to make its purchases of the risk participation from the UK Fronting Lender in the principal amount set forth beside such UK Revolver Participant’s name under the heading “UK Revolver Participant Commitment” on Schedule 1 attached to the UK Credit Agreement or on the signature page of the UK Transfer Agreement pursuant to which such UK Revolver Participant became a UK Revolver Participant under the UK Credit Agreement in accordance with the provisions ofSection 11.2 of the UK Credit Agreement, as such UK Revolver Participant Commitment may be adjusted from time to time in accordance withSection 11.2, and “UK Revolver Participant Commitments” means, collectively, the aggregate amount of the UK Revolver Participant Commitments of all UK Revolver Participants.
“UK Revolving Facility” has the meaning specified inSection 1.2(a) of the UK Credit Agreement.
“UK Revolving Loans” has the meaning specified inSection 1.2 of the UK Credit Agreement and includes each Agent Advance and Non-Ratable Loan made to the UK Borrower.
“UK Security Documents” means the UK Guaranty, the UK 2006 Share Charge, the UK 2006 Debenture, the UK Intercreditor Deed and the UK Security Trust Deed.
“UK Security Trust Deed” means the security trust deed, dated as of August 1, 2006, and entered into by the Administrative Agent, the UK Agent, the UK Security Trustee, MSG, Mobile Services, Ravenstock, Mobile Storage (UK), Ravenstock Tam Hire, the Luxembourg Subsidiary, UK-LP, among others, as amended, restated, supplemented or otherwise modified from time to time.
“UK Security Trustee” means The CIT Group/Business Credit, Inc., solely in its capacity as security trustee for the Lenders under the UK Security Documents, and any successor security trustee.
“UK Sterling LIBOR Rate” means, for any Interest Period, with respect to UK Sterling LIBOR Revolving Loans, the rate of interest per annum appearing on Telerate Page 3750 (or any successor page) as the London interbank offered rate for deposits in Pounds Sterling at approximately 11:00 a.m. (London time) two UK Business Days prior to the first day of such Interest Period for a term comparable to such Interest Period. If for any reason such rate is not available, the UK Sterling LIBOR Rate shall be, for any Interest Period, the rate per annum appearing on Reuters Screen LIBOR Page as the London interbank offered rate for deposits in Pounds Sterling at approximately 11:00 a.m. (London time) two UK Business Days prior to the first day of such Interest Period for a term comparable to such Interest Period;provided,however, if more than one rate is specified on Reuters Screen LIBOR Page, the applicable rate shall be the arithmetic mean of all such rates. If for any reason none of the foregoing rates is available, the UK Sterling LIBOR Rate shall be, for any Interest Period, the rate per annum determined by the UK Agent as the rate of interest at which Pounds Sterling deposits in the approximate amount of the relevant UK Loan comprising part of such Borrowing would be offered by JPMorgan Chase Bank’s London Branch to major banks in the London interbank market at their request at or about 11:00 a.m. (London time) two UK Business Days prior to the first day of such Interest Period for a term comparable to such Interest Period.
“UK Sterling LIBOR Revolving Loan” means a UK Revolving Loan during any period in which it bears interest based on the UK Sterling LIBOR Rate.
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“UK Transfer Agreement” has the meaning specified inSection 11.2(a) of the UK Credit Agreement.
“UK Unused Letter of Credit Subfacility” means an amount equal to the Letter of Credit Subfacilityminus the sum of (a) the aggregate undrawn amount of all outstanding Letters of Credit issued under the UK Credit Agreementplus, without duplication, (b) the aggregate unpaid reimbursement obligations with respect to all drawn Letters of Credit issued under the UK Credit Agreement to the extent not included in the Loans outstanding under the UK Credit Agreement,plus (c) the aggregate undrawn amount of all outstanding Letters of Credit issued under the US Credit Agreement,plus, without duplication, (d) the aggregate unpaid reimbursement obligations with respect to all drawn Letters of Credit issued under the US Credit Agreement to the extent not included in the Loans outstanding under the US Credit Agreement.
“UK Unused Multicurrency Letter of Credit Sublimit” means an amount equal to the Multicurrency Letter of Credit Sublimitminus the sum of (a) the aggregate undrawn amount of all outstanding Letters of Credit issued under the UK Credit Agreement and denominated in Dollars, Canadian Dollars or Europlus, without duplication, (b) the aggregate unpaid reimbursement obligations with respect to all drawn Letters of Credit issued under the UK Credit Agreement and denominated in Dollars, Canadian Dollars or Euro to the extent not included in the Loans outstanding under the UK Credit Agreement,plus (c) the aggregate undrawn amount of all outstanding Letters of Credit issued under the US Credit Agreement and denominated in Pounds Sterling, Canadian Dollars or Euro,plus, without duplication, (d) the aggregate unpaid reimbursement obligations with respect to all drawn Letters of Credit issued under the US Credit Agreement and denominated in Pounds Sterling, Canadian Dollars or Euro to the extent not included in the Loans outstanding under the US Credit Agreement.
“UK Unused Line Fee” has the meaning specified inSection 2.5 of the UK Credit Agreement.
“Unfunded Pension Liability” means the excess of a Plan’s benefit liabilities under Section 4001(a)(16) of ERISA, over the current value of that Plan’s assets, determined in accordance with the assumptions used for funding the Pension Plan pursuant to Section 412 of the Code for the applicable plan year.
“Unpaid Drawing” means any payment or disbursement made by the Letter of Credit Issuer under any Letter of Credit (including the Dollar Equivalent thereof) so paid until reimbursed.
“Unused Line Fee” means the US Unused Line Fee and the UK Unused Line Fee.
“US Advance Rate” means, (a) from the date hereof until such time as an appraisal by the Appraiser of the Rental Fleet Assets of the US Borrower and the US Subsidiary Guarantors is delivered to the Administrative Agent (such appraisal to be reasonably satisfactory to the Administrative Agent), 100% and (b) thereafter, upon the receipt from time to time by the Administrative Agent of an appraisal pursuant toSection 7.4(d), a percentage equal to (a) the lesser of (i) 90% of the Orderly Liquidation Value of Eligible Rental Fleet Assets of the US Borrowers and the US Subsidiary Guarantors set forth in such appraisal or (ii) 100% of the net book value, determined in accordance with GAAP, of such Eligible Rental Fleet Assets of the US Borrower and the US Subsidiary Guarantorsdivided by (b) the aggregate net book value of the Eligible Rental Fleet Assets of the US Borrowers and the US Subsidiary Guarantors.
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“US Agents” means, collectively, the Administrative Agent, in its capacity as Administrative Agent hereunder and any successor in such capacity and in its capacity as security agent or collateral agent in respect of any US Security Documents and any successor in such capacity.
“US Agents’ Liens” means (a) the Liens in the US Collateral granted to the Administrative Agent for the benefit of the US Lenders and US Agents pursuant to the US Credit Agreement and the other US Loan Documents, and (b) the Liens in any motor vehicles or any other US Collateral granted to any motor vehicle agent or other agent acting on behalf of and for the benefit of the Administrative Agent pursuant to the Second-Lien Security Agreement or otherwise.
“US Aggregate Outstandings” means, without duplication and at any date of determination: the sum of (a) the unpaid balance of US Revolving Loans, (b) the aggregate amount of US Pending Revolving Loans, (c) one hundred percent (100%) of the aggregate undrawn face amount of all outstanding Letters of Credit issued in respect of the US Borrowers, and (d) the aggregate amount of any unpaid reimbursement obligations in respect of Letters of Credit issued in respect of the US Borrowers not included in clause (a).
“US Availability” means, at any time (a) the lesser of (i) the Maximum US Amount or (ii) the US Borrowing Base,minus (b) Reserves, without double counting, relating to the US Borrower and its Subsidiaries and assets, other than Reserves deducted in the calculation of the US Borrowing Base,minus (c) the US Aggregate Outstandings.
“US Bank Products” means any one or more of the following types of services or facilities extended to a US Borrower or other US Credit Party by a Bank Product Provider at a US Borrower’s request: (i) credit cards; (ii) ACH Transactions; (iii) Hedge Agreements; and (iv) cash management, including controlled disbursement services.
“US Base Rate” means, for any day, a rate per annum equal to the greater of (a) the Prime Rate in effect on such day and (b) the Federal Funds Rate in effect on such day plus ½ of 1% or for purposes hereof: “Prime Rate” shall mean the rate of interest in effect for such day for transaction in Dollars as publicly announced from time to time by JPMorgan Chase Bank, N.A. The Prime Rate is a rate set by JPMorgan Chase Bank, N.A. based upon various factors including JPMorgan Chase Bank, N.A. costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate. Any change in such rate announced by JPMorgan Chase Bank, N.A. shall take effect at the opening of business on the day specified in the public announcement of such change.
“US Base Rate Revolving Loan” means a Revolving Loan during any period in which it bears interest based on the US Base Rate.
“US Borrower” means each of Mobile Services and MSG.
“US Borrower Representative” has the meaning specified in Section 1.2(c)(1) of the US Credit Agreement.
“US Borrowing” means a borrowing consisting of US Revolving Loans made on the same day by the Applicable Lenders to a US Borrower or by the Administrative Agent in the case of a US Borrowing funded by Non-Ratable Loans or by the Agent in the case of a US Borrowing consisting of an Agent Advance, or the issuance of Letters of Credit hereunder for the account of the US Borrower.
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“US Borrowing Base” means, at any time, an amount determined in Dollars equal to (i) the sum of (A) eighty-five percent (85%) of the Net Amount of Eligible Accounts of the US Borrowers and the US Subsidiary Guarantors;plus (B) the US Advance Ratemultiplied by the Book Value of Eligible Rental Fleet Assets of the US Borrowers and the US Subsidiary Guarantors;plus (C) the lesser of (i) ninety percent (90%) of the Book Value of Eligible Machinery and Equipment of the US Borrowers and the US Subsidiary Guarantors or (ii) eighty percent (80%) of the Orderly Liquidation Value of Eligible Machinery and Equipment of the US Borrowers and the US Subsidiary Guarantors;plus (D) the Value of Eligible Sales Inventory of the US Borrowers and the US Subsidiary Guarantors;minus (ii) Reserves from time to time established by the US Agent in its commercially reasonable discretion relating to the US Borrowers and the US Subsidiary Guarantors or their assets. In connection with and subsequent to any Permitted Acquisition, the Accounts and Rental Fleet Assets acquired by any US Borrower or any US Subsidiary Guarantor, or, subject to compliance withSection 7.32 of the US Credit Agreement, of the Person so acquired, may be included in the calculation of the US Borrowing Base for Loans incurred in connection with such Permitted Acquisition and thereafter if all criteria set forth in the definitions of Eligible Accounts and Eligible Inventory have been satisfied and, if the aggregate purchase price is greater than or equal to $15,000,000, the Responsible Agent shall have received from the Appraiser a “desktop appraisal” of such Rental Fleet Assets acquired by the applicable Credit Parties or owned by such Person acquired by the applicable Credit Parties which shall be reasonably satisfactory in scope, form and substance to the Responsible Agent.
“US Business Day” means (a) any day that is not a Saturday, Sunday, or a day on which banks in Los Angeles, California or New York, New York are required or permitted to be closed, and (b) with respect to all notices, determinations, fundings and payments in connection with the US LIBOR Revolving Loans, any day that is a US Business Day pursuant toclause (a) above and that is also a day on which trading in Dollars is carried on by and between banks in the London interbank market.
“US Collateral” means all of the US Obligors’ real, personal, movable and immovable property and all other assets and undertakings of any Person from time to time subject to the US Agents’ Liens securing payment or performance of the US Obligations;provided that in no event shall more than 66% of the total outstanding Capital Stock of any Foreign Subsidiary or MSG Investments be pledged hereunder.
“US Commitment” means, at any time with respect to a US Lender, the principal amount set forth beside such US Lender’s name under the heading “US Commitment” onSchedule 1 attached to the US Credit Agreement or on the signature page of the Assignment and Acceptance pursuant to which such US Lender became a US Lender under the US Credit Agreement in accordance with the provisions ofSection 1.7 orSection 11.2 of the US Credit Agreement, as such US Commitment may be adjusted from time to time in accordance with the provisions ofSection 11.2, and “US Commitments” means the aggregate amount of the US Commitments of all of the US Lenders.
“US Credit Agreement” is defined in the preamble to the US Credit Agreement.
“US Credit Party” means each of the US Borrowers, the Parent Guarantor and each Subsidiary Guarantor that is a US Subsidiary.
“US Lender” means any Lender listed onSchedule 1 of the US Credit Agreement under the heading “US Lender,” and any other Lender that may, from time to time, hold US Revolving Loans and shall include the Responsible Agent to the extent of any Agent Advance outstanding under the US Credit Agreement and the Administrative Agent to the extent of any Non-Ratable Loan outstanding under the US Credit Agreement;providedthat no such Agent Advance or Non-Ratable Loan shall be taken into account in determining any US Lender’s Pro Rata Share.
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“US LIBOR Rate” means, for any Interest Period, with respect to US LIBOR Revolving Loans, the rate of interest per annum determined pursuant to the following formula:
| | | |
| | US Offshore Base Rate | |
LIBOR Rate = | |
| |
| | 1.00 - Eurodollar Reserve Percentage | |
Where,
“US LIBOR Revolving Loan” means a Revolving Loan during any period in which it bears interest based on the US LIBOR Rate.
“US Loans” means, collectively, all loans and advances provided for in Article 1 of the US Credit Agreement, except for US Bank Products.
“US Loan Documents” means the US Credit Agreement, US Parent Guaranty, the Fee Letter, the US Subsidiary Guaranty, the US Security Documents and any other agreements, instruments, and documents heretofore, now or hereafter evidencing, securing, guaranteeing or otherwise relating to the US Obligations, the US Collateral, or any other aspect of the transactions contemplated by the US Credit Agreement.
“US Mortgages” means any Mortgage hereafter executed and delivered to the Administrative Agent by any US Obligor, as amended, restated, supplemented or otherwise modified from time to time.
“US Obligations” means, with respect to any US Obligor, all present and future loans, advances, liabilities, obligations, covenants, duties, and debts owing by such US Obligor to the US Agents and/or any US Lender, and/or any indemnitee arising under or pursuant to the US Credit Agreement or any of the other US Loan Documents, whether or not evidenced by any note, or other instrument or document, whether arising from an extension of credit, opening of a letter of credit, acceptance, loan, guaranty, indemnification or otherwise, whether direct or indirect, absolute or contingent, due or to become due, primary or secondary, as principal or guarantor, and including all principal, interest, charges, expenses, fees, attorneys’ fees, filing fees and any other sums chargeable to any US Obligor hereunder or under any of the other Loan Documents whether arising before, during or after the initial or any renewal term of this Agreement or after the commencement of any case with respect to such Borrower or Guarantor under the United States Bankruptcy Code or any similar statute (including the payment of interest and other amounts which would accrue and become due but for the commencement of such case, whether or not such amounts are allowed or allowable in whole or in part in such case). “US Obligations” includes (a) all debts, liabilities, and obligations now or hereafter arising from or in connection with the Letters of Credit issued under the US Credit Agreement and (b) all debts, liabilities and obligations now or hereafter arising from or in connection with US Bank Products, including all debts, liabilities and obligations now or hereafter arising from or in connection with any Hedge Agreement entered into with the Administrative Agent or any US Lender or any Affiliates of any US Lender or other Bank Product Provider.
“US Obligors” means the US Credit Parties, each other Credit Party party to any US Loan Document and any other Person who, from time to time, may be a guarantor of the US Obligations of any US Credit Party or have granted a Lien to secure the US Obligations of any US Credit Party. For the avoidance of doubt, US Obligors does not include (i) any Foreign Subsidiary of any US Obligor or (ii) MSG Investments.
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“US Offshore Base Rate” means the rate per annum appearing on Telerate Page 3750 (or any successor page) as the London interbank offered rate for deposits in Dollars at approximately 11:00 a.m. (London time) two US Business Days prior to the first day of such Interest Period for a term comparable to such Interest Period. If for any reason such rate is not available, the US Offshore Base Rate shall be, for any Interest Period, the rate per annum appearing on Reuters Screen LIBOR Page as the London interbank offered rate for deposits in Dollars at approximately 11:00 a.m. (London time) two US Business Days prior to the first day of such Interest Period for a term comparable to such Interest Period;provided,however, if more than one rate is specified on Reuters Screen LIBOR Page, the applicable rate shall be the arithmetic mean of all such rates. If for any reason none of the foregoing rates is available, the US Offshore Base Rate shall be, for any Interest Period, the rate per annum determined by the Administrative Agent as the rate of interest at which dollar deposits in the approximate amount of the US LIBOR Revolving Loan, comprising part of such Borrowing would be offered by JPMorgan Chase Bank N.A.’s London Branch to major banks in the offshore dollar market at their request at or about 11:00 a.m. (London time) two US Business Days prior to the first day of such Interest Period for a term comparable to such Interest Period.
“US Parent Guaranty” means the parent guaranty, dated as of August 1, 2006, and entered into by the Administrative Agent and the Parent Guarantor, as amended, restated, supplemented or otherwise modified from time to time.
“US Pending Revolving Loans” means, at any time, the aggregate principal amount of all US Revolving Loans requested in any Notice of Borrowing received by the Administrative Agent which have not yet been advanced.
“US Required Lenders” means at any date of determination US Lenders holding, in the aggregate, more than 50% of the sum of commitments under the US Revolving Facility.
“US Revolving Facility” has the meaning specified inSection 1.2(a) of the US Credit Agreement.
“US Revolving Loans” has the meaning specified inSection 1.2 of the US Credit Agreement and includes each Agent Advance and Non-Ratable Loan made to the US Borrowers.
“US Security Agreement” means the security agreement, dated as of August 1, 2006, and entered into by and among the Administrative Agent, MSG, Mobile Services, ABMSC, the Parent Guarantor, Texas-LP and MSG Investments, as amended, restated, supplemented or otherwise modified from time to time.
“US Security Documents” means the Patent and Trademark Security Agreement, the US Security Agreement, the US Stock Pledge Agreement, the Second-Lien Security Agreement, the US Subsidiary Guaranty and the US Mortgages.
“US Stock Pledge Agreement” means the stock pledge agreement, dated as of August 1, 2006, and entered into by and among the Administrative Agent, MSG, Mobile Services, ABMSC, the Parent Guarantor, Texas-LP and MSG Investments, as amended, restated, supplemented or otherwise modified from time to time.
“US Subsidiary” means any Subsidiary of Mobile Services organized under the laws of the United States or any State thereof that is not a direct or indirect Subsidiary of the UK Borrower.
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“US Subsidiary Guarantor” means the U.S. Subsidiaries of MSG (other than MSG Investments).
“US Subsidiary Guaranty” means the guaranty, dated as of August 1, 2006, and entered into by and among the US Subsidiary Guarantors, as amended, restated, supplemented or otherwise modified from time to time.
“US Trailer Reserves” means all reserves which the Administrative Agent from time to time establishes in its reasonable discretion for the trailers titled in states where the Credit Party which owns the applicable trailers is not a licensed dealer and where the lien of the Security Agent or the Motor Vehicle Agent (as defined in the Motor Vehicle Trust Agreement) has not been reflected on the applicable certificate of title.
“US Unused Letter of Credit Subfacility” means an amount equal to the Letter of Credit Subfacilityminus the sum of (a) the aggregate undrawn amount of all outstanding Letters of Credit issued under the US Credit Agreementplus, without duplication, (b) the aggregate unpaid reimbursement obligations with respect to all drawn Letters of Credit to the extent not included in the Loans outstanding under the US Credit Agreement,plus (c) the aggregate undrawn amount of all outstanding Letters of Credit issued under the UK Credit Agreement,plus, without duplication, (d) the aggregate unpaid reimbursement obligations with respect to all drawn Letters of Credit issued under the UK Credit Agreement to the extent not included in the Loans outstanding under the UK Credit Agreement.
“US Unused Multicurrency Letter of Credit Sublimit” means an amount equal to the Multicurrency Letter of Credit Sublimitminus the sum of (a) the aggregate undrawn amount of all outstanding Letters of Credit issued under the US Credit Agreement and denominated in Pounds Sterling, Canadian Dollars or Europlus, without duplication, (b) the aggregate unpaid reimbursement obligations with respect to all drawn Letters of Credit issued under the US Credit Agreement and denominated in Pounds Sterling, Canadian Dollars or Euro to the extent not included in the Loans outstanding under the US Credit Agreement,plus (c) the aggregate undrawn amount of all outstanding Letters of Credit issued under the UK Credit Agreement and denominated in Dollars, Canadian Dollars or Euro,plus, without duplication, (d) the aggregate unpaid reimbursement obligations with respect to all drawn Letters of Credit issued under the UK Credit Agreement and denominated in Dollars, Canadian Dollars or Euro to the extent not included in the Loans outstanding under the UK Credit Agreement.
“US Unused Line Fee” has the meaning specified inSection 2.5 of the US Credit Agreement.
“USA Patriot Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. No. 107-56, 115 Stat. 272 (2001).
“Value of Eligible Sales Inventory” shall mean (i) until the Eligible Sales Inventory Appraisal Date, ninety percent (90%) of the net book value, determined in accordance with GAAP, of Eligible Sales Inventory of the Applicable Borrowers and the US Subsidiary Guarantors (in relation to the US Borrowing Base) and the UK Borrower and the UK Borrowing Base Parties (in relation to the UK Borrowing Base) up to an amount equal to (a) the Maximum Aggregate Eligible Sales Inventory Amountless (b) the Value of Eligible Sales Inventory included in the Applicable Borrowing Base (as set forth in the Borrowing Base Certificate) of the other Applicable Borrowers and the US Subsidiary Guarantors (in relation to the US Borrowing Base) and the UK Borrower and the UK Borrowing Base Parties (in relation to the UK Borrowing Base), and (ii) after the Eligible Sales Inventory Appraisal Date, the lesser of (a) ninety percent (90%) of the net book value, determined in accordance with GAAP, of Eligible Sales
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Inventory of the Applicable Borrowers and the US Subsidiary Guarantors (in relation to the US Borrowing Base) and the UK Borrower and the UK Borrowing Base Parties (in relation to the UK Borrowing Base) or (b) ninety percent (90%) of the Orderly Liquidation Value of Eligible Sales Inventory of the Applicable Borrowers and the US Subsidiary Guarantors (in relation to the US Borrowing Base) and the UK Borrower and the UK Borrowing Base Parties (in relation to the UK Borrowing Base), up to an amount equal to (a) the Maximum Aggregate Eligible Sales Inventory Amountless (b) the Value of Eligible Sales Inventory included in the Applicable Borrowing Base (as set forth in the Borrowing Base Certificate) of the other Applicable Borrowers and the US Subsidiary Guarantors (in relation to the US Borrowing Base) and the UK Borrower and the UK Borrowing Base Parties (in relation to the UK Borrowing Base).
“VAT” shall mean value added tax provided for in the Value Added Tax Act 1994 and any other tax of a similar nature.
“Vehicle Sales Certificate” has the meaning specified inSection 5.2(l) of the US Credit Agreement.
“Voting Stock” means with respect to any Person, Capital Stock of any class or kind ordinarily having the power to vote for the election of directors, managers or other voting members of the governing body of such Person.
“Welsh Carson” means Welsh Carson, Anderson & Stowe X, L.P., a Delaware limited partnership.
“Welsh Carson Management Agreement” dated as of August 1, 2006, by and among Mobile Services, the Parent Guarantor and WCAS Management Corporation.
“Wholly-owned” means, with respect to any Person, any direct or indirect Subsidiary of such Person of which all of the outstanding Capital Stock (other than director’s qualifying shares or investments by foreign nationals mandated by applicable laws) is owned directly or indirectly by such Person.
Accounting Terms. Any accounting term used in the Agreement shall have, unless otherwise specifically provided herein, the meaning customarily given in accordance with GAAP, and all financial computations in the Agreement shall be computed, unless otherwise specifically provided therein, in accordance with GAAP as consistently applied and using the same method for inventory valuation as used in the preparation of the Financial Statements.
Interpretive Provisions. (a) The meanings of defined terms are equally applicable to the singular and plural forms of the defined terms.
(b) The words “hereof,” “herein,” “hereunder” and similar words refer to the Agreement as a whole and not to any particular provision of the Agreement; and Subsection, Section, Schedule and Exhibit references are to the Agreement unless otherwise specified.
(c) (i) The term “documents” includes any and all instruments, documents, agreements, certificates, indentures, notices and other writings, however evidenced.
| |
| (ii) The term “including” is not limiting and means “including without limitation.” |
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| |
| (iii) In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including,” the words “to” and “until” each mean “to but excluding” and the word “through” means “to and including.” |
| |
| (iv) The word “or” is not exclusive. |
(d) Unless otherwise expressly provided herein, (i) references to agreements (including the Agreement and the other Loan Documents) and other contractual instruments shall be deemed to include all subsequent amendments and other modifications thereto, but only to the extent such amendments and other modifications are not prohibited by the terms of any Loan Document, and (ii) references to any statute or regulation are to be construed as including all statutory and regulatory provisions consolidating, amending, re-enacting, replacing, supplementing or interpreting the statute or regulation.
(e) The captions and headings of the Agreement and other Loan Documents are for convenience of reference only and shall not affect the interpretation of the Agreement.
(f) The Agreement and other Loan Documents may use several different limitations, tests or measurements to regulate the same or similar matters. All such limitations, tests and measurements are cumulative and shall each be performed in accordance with their terms.
(g) For purposes ofSection 9.1, a breach of a financial covenant contained inSections 7.23-7.26 shall be deemed to have occurred as of any date of determination thereof by the Agent or as of the last day of any specified measuring period, regardless of when the Financial Statements reflecting such breach are delivered to the Agent.
(h) The Agreement and the other Loan Documents are the result of negotiations among and have been reviewed by counsel to the Agents, the Borrowers and the other parties, and are the products of all parties. Accordingly, they shall not be construed against the Lenders or the Agents merely because of any Agent’s or Lenders’ involvement in their preparation.
ANNEX B
to
Credit Agreement
Mandatory Cost Formulae
The Mandatory Cost is an addition to the interest rate to compensate UK Lenders for the cost of compliance with (a) the requirements of the Bank of England and/or the Financial Services Authority (or,
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in either case, any other authority which replaces all or any of its functions) or (b) the requirements of the European Central Bank.
On the first day of each Interest Period (or as soon as possible thereafter) the UK Agent shall calculate, as a percentage rate, a rate (the “Additional Cost Rate”) for each UK Lender, in accordance with the paragraphs set out below. The Mandatory Cost will be calculated by the UK Agent as a weighted average of the UK Lenders’ Additional Cost Rates (weighted in proportion to the percentage participation of each UK Lender in the relevant Loan) and will be expressed as a percentage rate per annum.
The Additional Cost Rate for any UK Lender lending from a facility office in a Participating Member State will be the percentage notified by that UK Lender to the UK Agent. This percentage will be certified by that UK Lender in its notice to the UK Agent to be its reasonable determination of the cost (expressed as a percentage of that UK Lender’s participation in all Loans made from that facility office) of complying with the minimum reserve requirements of the European Central Bank in respect of loans made from that facility office.
The Additional Cost Rate for any UK Lender lending from a facility office in the United Kingdom will be calculated by the UK Agent as follows:
| | |
| (a) | in relation to a sterling Loan: |
| | | |
| | AB +C (B –D) +E Î 0.01 | |
| |
| per cent. per annum |
| | 100 – (A +C) | |
| | |
| (b) | in relation to a Loan in any currency other than sterling: |
| | | |
| | E Î 0.01 | |
| |
| per cent. per annum. |
| | 300 | |
| | | |
| | Where: |
| | |
| A | is the percentage of Eligible Liabilities (assuming these to be in excess of any stated minimum) which that UK Lender is from time to time required to maintain as an interest free cash ratio deposit with the Bank of England to comply with cash ratio requirements. |
| | |
| B | is the percentage rate of interest (excluding the Margin and the Mandatory Cost and, if the Loan is due and payable but unpaid, the Default Rate) payable for the relevant Interest Period on the Loan. |
| | |
| C | is the percentage (if any) of Eligible Liabilities which that UK Lender is required from time to time to maintain as interest bearing Special Deposits with the Bank of England. |
| | |
| D | is the percentage rate per annum payable by the Bank of England to the UK Agent on interest bearing Special Deposits. |
| | |
| E | is designed to compensate UK Lenders for amounts payable under the Fees Rules and is calculated by the UK Agent as being the average of the most recent rates of charge supplied |
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| | |
| | by the Reference Banks to the UK Agent pursuant to paragraph 7 below and expressed in pounds per £1,000,000. |
For the purposes of this Schedule:
| | |
| (a) | “Eligible Liabilities” and “Special Deposits” have the meanings given to them from time to time under or pursuant to the Bank of England Act 1998 or (as may be appropriate) by the Bank of England; |
| | |
| (b) | “Fees Rules” means the rules on periodic fees contained in the FSA Supervision Manual or such other law or regulation as may be in force from time to time in respect of the payment of fees for the acceptance of deposits; |
| | |
| (c) | “Fee Tariffs” means the fee tariffs specified in the Fees Rules under the activity group A.1 Deposit acceptors (ignoring any minimum fee or zero rated fee required pursuant to the Fees Rules but taking into account any applicable discount rate); |
| | |
| (d) | “Reference Banks” means banks customarily referred to as reference banks for the purposes of calculating the Additional Cost Rate agreed to by the UK Agent and the UK Borrower (in each case acting reasonably); and |
| | |
| (e) | “Tariff Base” has the meaning given to it in, and will be calculated in accordance with, the Fees Rules. |
In application of the above formulae, A, B, C and D will be included in the formulae as percentages (i.e. 5 per cent. will be included in the formula as 5 and not as 0.05). A negative result obtained by subtracting D from B shall be taken as zero. The resulting figures shall be rounded to four decimal places.
If requested by the UK Agent, each Reference Bank shall, as soon as practicable after publication by the Financial Services Authority, supply to the UK Agent, the rate of charge payable by that Reference Bank to the Financial Services Authority pursuant to the Fees Rules in respect of the relevant financial year of the Financial Services Authority (calculated for this purpose by that Reference Bank as being the average of the Fee Tariffs applicable to that Reference Bank for that financial year) and expressed in pounds per £1,000,000 of the Tariff Base of that Reference Bank.
Each UK Lender shall supply any information required by the UK Agent for the purpose of calculating its Additional Cost Rate. In particular, but without limitation, each UK Lender shall supply the following information on or prior to the date on which it becomes a UK Lender:
| | |
| (a) | the jurisdiction of its facility office; and |
| | |
| (b) | any other information that the UK Agent may reasonably require for such purpose. |
| | |
| Each UK Lender shall promptly notify the UK Agent of any change to the information provided by it pursuant to this paragraph. |
The percentages of each UK Lender for the purpose of A and C above and the rates of charge of each Reference Bank for the purpose of E above shall be determined by the UK Agent based upon the information supplied to it pursuant to paragraphs 7 and 8 above and on the assumption that, unless a UK Lender notifies the UK Agent to the contrary, each UK Lender’s obligations in relation to cash ratio
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deposits and Special Deposits are the same as those of a typical bank from its jurisdiction of incorporation with a facility office in the same jurisdiction as its facility office.
The UK Agent shall have no liability to any person if such determination results in an Additional Cost Rate which over or under compensates any UK Lender and shall be entitled to assume that the information provided by any UK Lender or Reference Bank pursuant to paragraphs 3, 7 and 8 above is true and correct in all respects.
The UK Agent shall distribute the additional amounts received as a result of the Mandatory Cost to the UK Lenders on the basis of the Additional Cost Rate for each UK Lender based on the information provided by each UK Lender and each Reference Bank pursuant to paragraphs 3, 7 and 8 above.
Any determination by the UK Agent pursuant to this Schedule in relation to a formula, the Mandatory Cost, an Additional Cost Rate or any amount payable to a UK Lender shall, in the absence of manifest error, be conclusive and binding on all parties.
The UK Agent may from time to time, after consultation with the UK Borrower and the UK Lenders, determine and notify to all parties any amendments which are required to be made to this Schedule in order to comply with any change in law, regulation or any requirements from time to time imposed by the Bank of England, the Financial Services Authority or the European Central Bank (or, in any case, any other authority which replaces all or any of its functions) and any such determination shall, in the absence of manifest error, be conclusive and binding on all parties.
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