United Rentals 8-K 2011
AMENDED AND RESTATED CANADIAN URFLP GUARANTEE
TO: BANK OF AMERICA, N.A., as Agent
for itself and as agent for certain financial institutions who are or may become a party from time to time to the Credit Agreement as such term is hereinafter defined (as Lenders).
AMENDED AND RESTATED CANADIAN URFLP GUARANTEE AGREEMENT dated as of June 9, 2008 and as amended and restated as of October 14, 2011 (this Guarantee) made by United Rentals of Nova Scotia (No. 1), ULC, a Nova Scotia unlimited company (NS ULC1), United Rentals of Nova Scotia (No. 2), ULC, a Nova Scotia unlimited company (NS ULC2), and the Additional Guarantors (as defined in Section 18) (NS ULC1, NS ULC2 and the Additional Guarantors being, collectively, the Guarantors and, individually, each a Guarantor) in favour of the Secured Parties (as defined in the Credit Agreement referred to below).
WHEREAS the undersigned are party to a guarantee agreement dated as of June 9, 2008 (as amended, restated, extended, supplemented or otherwise modified in writing prior to the date hereof, the Existing Guarantee) entered into in connection with a Credit Agreement, dated as of June 9, 2008 (as amended, restated, extended, supplemented or otherwise modified in writing prior to the date hereof, the Existing Credit Agreement) between, among others, the undersigned, United Rentals, Inc., a Delaware corporation (Holdings), United Rentals (North America), Inc., a Delaware corporation (the Company), the other U.S. Subsidiary Borrowers named therein (together with the Company, the U.S. Borrowers), United Rentals of Canada, Inc., a company amalgamated under the laws of the Province of Ontario (the Canadian Borrower), United Rentals Financing Limited Partnership (the Specified Loan Borrower), the other guarantors party thereto, the Lenders from time to time party thereto, and Bank of America, N.A., as the Agent;
WHEREAS, as of the date hereof, the Existing Credit Agreement is being amended and restated, without constituting a novation, pursuant to an Amended and Restated Credit Agreement, dated as of October 14, 2011 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the Credit Agreement; capitalized terms used but not defined herein are used herein as therein defined), among the U.S. Borrowers, the Canadian Borrower, the Specified Loan Borrower, the other guarantors party thereto, the Lenders from time to time party thereto, and Bank of America, N.A., as the Agent;
WHEREAS, it is a condition precedent to the amendment and restatement of the Existing Credit Agreement by the entering into of the Credit Agreement that each Guarantor shall have executed and delivered this Guarantee;
NOW, THEREFORE, in consideration of the premises and in order to induce the Agent and the Lenders to amend and restate the Existing Credit Agreement by the entering into of the Credit Agreement, the Lenders to maintain and make Loans and to issue Letters of Credit under the Credit Agreement and the Lenders and their Affiliates to provide Bank Products from time to time, each Guarantor, jointly and severally with each other Guarantor, hereby agrees that the Existing Guarantee shall be amended and restated as follows:
Each of the undersigned waives any defence arising by reason of any disability or other defence of any U.S. Obligor, or the cessation from any cause whatsoever of the liability of any U.S. Obligor, or any claim that each of the undersigneds obligations exceed or are more burdensome than those of any U.S. Obligor, each of the undersigned waives any right of subrogation, reimbursement, indemnification, and contribution (contractual, statutory or otherwise), arising from the existence or performance of this Guarantee and each of the undersigned waives any right to enforce any remedy which the Agent and/or the Lenders now have or may hereafter have against any U.S. Obligor, and waives any benefit of, and any right to participate in, any security now or hereafter held by the Agent or the Lenders. The Agent may foreclose, either by judicial foreclosure or by exercise of power of sale, or realize any deed of trust or other security securing the indebtedness, and, even though the foreclosure or other realization may destroy or diminish each of the undersigneds rights against any U.S. Obligor or may result in security being sold at an under value, each of the undersigned shall be liable to the Agent and the Lenders for any part of the indebtedness remaining unpaid after the foreclosure or other realization. Each of the undersigned waives all presentments, demands for performance, notices of nonperformance, protests, notices of protest, notices of dishonour, and notices of acceptance of this Guarantee and of the existence, creation, or incurring of new or additional indebtedness.
[remainder of page intentionally left blank]
IN WITNESS WHEREOF, each Guarantor has caused this Guarantee to be duly executed and delivered by its officer thereunto duly authorized as of the date first above written.
FORM OF GUARANTEE SUPPLEMENT
_________ __, ____
To: Bank of America, N.A., as Agent
Ladies and Gentlemen:
Reference is made to (i) Credit Agreement, dated as of October 14, 2011 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the Credit Agreement), among United Rentals, Inc., a Delaware corporation (Holdings), United Rentals (North America), Inc., a Delaware corporation (the Company), the other U.S. Subsidiary Borrowers named therein (together with the Company, each a U.S. Borrower and collectively the U.S. Borrowers), United Rentals of Canada, Inc. (URC), a company amalgamated under the laws of the Province of Ontario (the Canadian Borrower), United Rentals Financing Limited Partnership (the Specified Loan Borrower), the Lenders from time to time party thereto (the Lenders), and Bank of America, N.A., as Agent (the Agent) and (ii) the Canadian URFLP Guarantee Agreement, as in effect on the date hereof and as it may hereafter be amended, supplemented or otherwise modified from time to time, together with this Guarantee Supplement, being the Guarantee). The capitalized terms defined in the Guarantee or in the Credit Agreement and not otherwise defined herein are used herein as therein defined.
Section 1. Guarantee; Limitation of Liability. For valuable consideration, the undersigned hereby unconditionally guarantees and promises to pay to the Agent, or order to be paid, whether at scheduled maturity or on any earlier date of a required prepayment by reason of acceleration, demand or otherwise, any and all Obligations of any of the U.S. Obligors (as such term is defined in the Credit Agreement) and each of their respective successors and assigns, (each a U.S. Obligor and collectively the U.S. Obligors) whether now or hereafter existing (including, without limitation, any extensions, modifications, substitutions, amendments or renewals of any or all of the foregoing Obligations), whether direct or indirect, absolute or contingent, and whether for principal, interest, premiums, fees, indemnities, contract causes of action, costs, expenses or otherwise (such Obligations being the Guaranteed Obligations), and agrees to pay any and all expenses (including, without limitation, Attorney Costs) incurred by the Agent or any other Secured Party (to the extent provided for in the Credit Agreement) in enforcing any rights under this Guarantee or any other Loan Document. Without limiting the generality of the foregoing, each Guarantors liability shall extend to all amounts that constitute part of the Guaranteed Obligations and would be owed by any U.S. Obligor to any Secured Party but for the fact that they are unenforceable or not allowable due to the existence of a bankruptcy, reorganization or similar proceeding involving such U.S. Obligor.
(b) The undersigned, and by its acceptance of this Guarantee Supplement, the Agent and each other Secured Party, hereby confirms that it is the intention of all such Persons that this Guarantee Supplement, the Guarantee and the Obligations of the undersigned hereunder and thereunder not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar foreign, federal or state law to the extent applicable to this Guarantee Supplement, the Guarantee and the Obligations of the undersigned hereunder and thereunder. To effectuate the foregoing intention, the Agent, the other Secured Parties and the undersigned hereby irrevocably agree that the Obligations of the undersigned under this Guarantee Supplement and the Guarantee at any time shall be limited to the maximum amount as will result in the Obligations of the undersigned under this Guarantee Supplement and the Guarantee not constituting a fraudulent transfer or conveyance.
Section 2. Obligations Under the Guarantee. The undersigned hereby agrees, as of the date first above written, to be bound as a Guarantor by all of the terms and conditions of the Guarantee to the same extent as each of the other Guarantors thereunder. The undersigned further agrees, as of the date first above written, that each reference in the Guarantee to an Additional Guarantor, a Guarantor, or the undersigned shall also mean and be a reference to the undersigned, and each reference in any other Loan Document to a Guarantor or a Obligor shall also mean and be a reference to the undersigned.
Section 3. Representations and Warranties. The undersigned hereby represents and warrants as follows: (a) There are no conditions precedent to the effectiveness of this guarantee that have not been satisfied or waived.
(b) The undersigned has, independently and without reliance upon any Secured Party and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Guarantee and each other Loan Document to which it is or is to be a party, and such Guarantor has established adequate means of obtaining from each other Obligor on a continuing basis information pertaining to, and is now and on a continuing basis will be completely familiar with, the business, condition (financial or otherwise), operations, performance, properties and prospects of such other Obligor.
Section 4. Delivery by Telecopier. Delivery of an executed counterpart of a signature page to this Guarantee Supplement by telecopier shall be effective as delivery of an original executed counterpart of this Guarantee Supplement.
Section 5. Governing Law; Jurisdiction; Waiver of Jury Trial, Etc. This Guarantee shall be governed by and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein, except as required by mandatory provisions of law and except to the extent that the validity or perfection of the security interests hereunder, or remedies hereunder, in respect of any particular Collateral are governed by the laws of a jurisdiction other than the Province of Ontario.
ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS GUARANTEE MAY BE BROUGHT IN THE COURTS OF THE PROVINCE OF ONTARIO OR OF THE FEDERAL COURTS OF CANADA THEREIN, AND BY EXECUTION AND DELIVERY OF THIS GUARANTEE, THE CORPORATION CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. THE CORPORATION IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION OR ANY OTHER JURISDICTION SELECTED BY THE LENDER IN RESPECT OF THIS GUARANTEE. THE CORPORATION WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY THE LAW OF ONTARIO.
The parties hereto hereby waive trial by jury in any action, proceeding, claim or counterclaim, whether in contract or tort, at law or in equity with respect to, in connection with, or arising out of this Guarantee, other financing agreements, the obligations of the Borrowers and the Corporation, the Collateral, or any instrument, document or guarantee delivered pursuant hereto or to any of the foregoing, or the validity, protection, interpretation, administration, collection or enforcement hereof or thereof, or any other claim or dispute hereunder or thereunder. The Corporation agrees that it will not assert against the Lender any claim for consequential, incidental, special, or punitive damages in connection with this Guarantee or the transactions contemplated hereby or thereby. No officer of the Lender has authority to waive, condition, or modify this provision.