Form 8-K
8-K — UNITED RENTALS, INC.
Accession: 0001104659-26-120211
Filed: 2026-10-29
Period: 2026-10-23
CIK: 0001067701
SIC: 7359 (SERVICES-EQUIPMENT RENTAL & LEASING, NEC)
Item: Entry into a Material Definitive Agreement
Item: Termination of a Material Definitive Agreement
Item: Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant
Item: Other Events
Item: Financial Statements and Exhibits
Documents
8-K — tm2628016d6_8k.htm (Primary)
EX-1.1 — EXHIBIT 1.1 (tm2628016d6_ex1-1.htm)
EX-4.1 — EXHIBIT 4.1 (tm2628016d6_ex4-1.htm)
EX-4.2 — EXHIBIT 4.2 (tm2628016d6_ex4-2.htm)
EX-5.1 — EXHIBIT 5.1 (tm2628016d6_ex5-1.htm)
EX-10.1 — EXHIBIT 10.1 (tm2628016d6_ex10-1.htm)
XML — IDEA: XBRL DOCUMENT (R1.htm)
8-K — FORM 8-K
8-K (Primary)
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
October 23, 2026
UNITED RENTALS, INC.
UNITED RENTALS (NORTH AMERICA), INC.
(Exact name of registrant as specified in its
charter)
Delaware
001-14387
06-1522496
Delaware
001-13663
86-0933835
(State
or other Jurisdiction of
Incorporation)
(Commission
File Number)
(IRS
Employer Identification No.)
100 First Stamford Place, Suite 700
Stamford, Connecticut
06902
(Address
of Principal Executive Offices)
(Zip
Code)
Registrant’s telephone number, including
area code: (203) 622-3131
(Former name or former address if changed since
last report.)
Check the appropriate box below if the Form 8-K filing
is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
¨ Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
¨ Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
¨ Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
Indicate by check mark whether
the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this
chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth
company ¨
If an emerging growth company, indicate
by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial
accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨
Securities registered pursuant to Section 12(b) of the Act:
Title of each class
Trading
Symbol(s)
Name of each exchange
on which
registered
Common Stock, $0.01 par value
URI
NYSE
Co-Registrant CIK
0001047166
Co-Registrant Amendment Flag
false
Co-Registrant Form Type
8-K
Co-Registrant DocumentPeriodEndDate
2026-10-23
Co-Registrant Written Communications
false
Co-Registrant Solicitating Materials
false
Co-Registrant PreCommencement Tender Offer
false
Co-Registrant PreCommencement Issuer Tender Offer
false
Emerging growth company
false
Item 1.01 Entry into a Material Definitive Agreement.
$700,000,000 aggregate principal amount of 5.550% Senior Notes
due 2029, $800,000,000 aggregate principal amount of 5.750% Senior Notes due 2031 and $1,000,000,000 aggregate principal amount of 6.200%
Senior Notes due 2036
On October 29, 2026, United Rentals (North America),
Inc. (“URNA”) completed an offering of (i) $700,000,000 aggregate principal amount of its 5.550% Senior Notes due 2029 (the
“2029 Notes”), (ii) $800,000,000 aggregate principal amount of its 5.750% Senior Notes due 2031 (the “2031 Notes”)
and (iii) $1,000,000,000 aggregate principal amount of its 6.200% Senior Notes due 2036 (the “2036 Notes” and, together with
the 2029 Notes and the 2031 Notes, the “Notes”). The Notes were sold pursuant to United Rentals, Inc. (“URI”)
and URNA’s shelf registration statement on Form S-3 (File No. 333-299595) (the “Registration Statement”) previously
filed with the Securities and Exchange Commission (the “SEC”) under the Securities Act of 1933, as amended, as supplemented
by the final prospectus supplement, dated as of October 26, 2026, and filed with the SEC on October 27, 2026.
The Notes were issued pursuant to an indenture,
dated as of October 29, 2026 (the “Base Indenture”), and a first supplemental indenture, dated as of October 29, 2026 (the
“Supplemental Indenture” and, together with the Base Indenture, the “Indenture”), among URNA, URI and Truist Bank,
as trustee.
The 2029 Notes mature on October 15, 2029 and bear
interest at a rate of 5.550% per year payable semi-annually in cash in arrears on April 15 and October 15 of each year. The 2031 Notes
mature on October 15, 2031 and bear interest at a rate of 5.750% per year payable semi-annually in cash in arrears on April 15 and October
15 of each year. The 2036 Notes mature on October 15, 2036 and bear interest at a rate of 6.200% per year payable semi-annually in cash
in arrears on April 15 and October 15 of each year. The first interest payment on each series of Notes will be made on April 15, 2027.
The Notes are senior unsecured obligations of URNA
and rank equally in right of payment with all of its existing and future senior indebtedness, effectively junior to any of its existing
and future secured indebtedness to the extent of the value of the assets securing such indebtedness and senior in right of payment to
any of its existing and future subordinated indebtedness.
The Notes are not guaranteed by any of URNA’s
subsidiaries and are structurally subordinated to all existing and future indebtedness and other liabilities, including trade payables,
of URNA’s subsidiaries.
The Notes are guaranteed on a senior unsecured
basis by URI. The guarantee is a senior unsecured obligation of URI and ranks equally in right of payment with all of URI’s existing
and future senior indebtedness, effectively junior to any of URI’s existing and future secured indebtedness to the extent of the
value of the assets securing such indebtedness and senior in right of payment to any of URI’s existing and future subordinated indebtedness.
The guarantee will be structurally subordinated to all existing and future indebtedness and other liabilities, including trade payables,
of URI’s subsidiaries (other than URNA).
Prior to September 15, 2029 for the 2029 Notes,
prior to September 15, 2031 for the 2031 Notes and prior to July 15, 2036 for the 2036 Notes (each such date, a “Par Call Date”),
URNA may redeem the relevant series of Notes at its option, in whole or in part, at any time and from time to time, at a redemption price
equal to 100% of the aggregate principal amount of the relevant series of Notes to be redeemed, plus a “make-whole” premium
and accrued and unpaid interest, if any, to, but excluding, the redemption date. On or after the applicable Par Call Date, URNA may redeem
the Notes of the relevant series, in whole or in part, at any time and from time to time, at a redemption price equal to 100% of the principal
amount of the Notes being redeemed plus accrued and unpaid interest thereon to, but excluding, the redemption date.
If a Change of Control Triggering Event occurs
with respect to a series of Notes, URNA will be required, subject to certain exceptions, to offer to repurchase the Notes of that series
at a price of 101% of their principal amount, plus accrued and unpaid interest, if any, to, but excluding, the purchase date. A Change
of Control Triggering Event requires both a Change of Control and a Rating Event, each as defined in the Indenture.
The Indenture governing the Notes contains certain
covenants applicable to URI and its subsidiaries, including limitations on liens, sale-leaseback transactions and mergers, consolidations
and sale of assets. Each of these covenants is subject to important exceptions and qualifications.
The Indenture provides for customary events of
default, including the following (subject to any applicable cure period): nonpayment, breach of covenants in the Indenture, acceleration
of certain other indebtedness, certain events of bankruptcy, insolvency and reorganization. If an event of default with respect to a series
of Notes occurs and is continuing, the trustee or holders of at least 25% in aggregate principal amount of the outstanding Notes of that
series may declare the principal of and accrued and unpaid interest on the Notes of that series to be due and payable immediately. In
the case of certain events of bankruptcy, insolvency or reorganization, those amounts will become due and payable automatically.
URNA received approximately $2.476 billion in net
proceeds from the sale of the Notes, after underwriting discounts and commissions and payment of estimated fees and expenses. URNA used
the net proceeds from the sale of the Notes (i) to repay in full the $975 million aggregate principal amount of term loans outstanding
under that certain Credit and Guaranty Agreement, dated as of October 31, 2018, as amended and restated as of February 14, 2024 and as
further amended by Amendment No. 1 to the Amended and Restated Credit and Guaranty Agreement, dated as of August 7, 2025, among URNA,
as borrower, URI, certain of its subsidiaries as the guarantors party thereto, the lenders party thereto from time to time and Bank of
America, N.A., as agent (the “Term Loan Facility”) and (ii) for general corporate purposes, including to reduce borrowings
under the Fifth Amended and Restated Credit Agreement (as defined below).
The description above is qualified in its entirety
by reference to the Base Indenture and Supplemental Indenture, which are filed as Exhibits 4.1 and 4.2, respectively, to this Current
Report on Form 8-K and are incorporated by reference into this Item 1.01.
Amendment to Fifth Amended and Restated Credit Agreement
On October 23, 2026, URNA entered into an amendment
(the “Amendment”) to the Fifth Amended and Restated Credit Agreement, dated as of July 10, 2025 (the “Fifth Amended
and Restated Credit Agreement”), among URI, URNA, the other borrowers party thereto, the other guarantors party thereto, the financial
institutions party thereto from time to time and Bank of America, N.A., as agent for the lenders (in such capacity, the “Agent”)
that, among other things, provides that any domestic wholly-owned subsidiary of URI or URNA is required to become a subsidiary guarantor
under the Fifth Amended and Restated Credit Agreement only if it incurs or guarantees indebtedness in the form of capital markets debt
securities or term loans in excess of $300,000,000 and that the existing U.S. subsidiary guarantors shall be automatically released from
their obligations as guarantors thereunder if they cease to guarantee, or be an obligor under, any such debt in excess of such threshold
(such release, the “ABL Guarantor Release”). The Amendment also increases the $15,000,000 sub-limit for European swingline
loans to $40,000,000.
Each of the indentures governing URNA’s senior
secured and unsecured notes (collectively, the “Existing Notes”) provides that during any period when the relevant notes are
rated investment grade by certain rating agencies as specified in the applicable indenture, as long as at such time no default under such
indenture has occurred and is continuing, URNA may request the release of all subsidiary guarantees in favor of such notes and, in the
case of the indentures governing senior secured notes, the release of all of the collateral securing such notes. On October 9, 2026, URNA
received an investment grade rating for each series of the Existing Notes from S&P Global Ratings, and on October 23, 2026, URNA received
an investment grade rating for each series of the Existing Notes from Moody’s Investors Service, Inc.
On October 23, 2026, the liens on the collateral
securing URNA’s secured Existing Notes, and the guarantees by URNA’s subsidiaries of those notes and URNA’s unsecured
Existing Notes, were released in accordance with the terms of the applicable indentures and related security documents (the “Existing
Notes Collateral and Existing Notes Subsidiary Guarantee Release”). Following these releases, the Existing Notes are senior unsecured
obligations of URNA, are no longer guaranteed by any of URNA’s subsidiaries and continue to be guaranteed on a senior unsecured
basis by URI.
As a result of the Existing Notes Collateral and
Existing Notes Subsidiary Guarantee Release on October 23, 2026, and the repayment in full of the indebtedness outstanding under the Term
Loan Facility on October 29, 2026, the ABL Guarantor Release occurred on October 29, 2026. Upon the ABL Guarantor Release, the related
liens on the relevant subsidiaries’ assets were released. The obligations under the Fifth Amended and Restated Credit Agreement remain
senior secured obligations of URI and URNA.
The description above is qualified in its entirety
by reference to the Amendment, which is filed as Exhibit 10.1 to this Current Report on Form 8-K and is incorporated by reference into
this Item 1.01.
Item 1.02 Termination of a Material Definitive Agreement.
On
October 29, 2026, URNA repaid all of its outstanding obligations under the Term Loan Facility using
a portion of the net proceeds from the Notes.
Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
Information set forth in Item 1.01 above is incorporated
by reference into this Item 2.03.
Item 8.01 Other Events.
Underwriting Agreement
In connection with the Notes offering, on October
26, 2026, URNA and URI, as guarantor, entered into an underwriting agreement with J.P. Morgan Securities LLC, BofA Securities, Inc. and
Goldman Sachs & Co. LLC, as representatives of the several underwriters named therein (the “Representatives”), relating
to the sale of the Notes (the “Underwriting Agreement”). A copy of the Underwriting Agreement is attached hereto as Exhibit
1.1 and is incorporated herein by reference.
Also in connection with the Notes offering, URI
and URNA are filing an opinion of their outside counsel, Sullivan & Cromwell LLP, regarding the validity of the Notes and URI’s
guarantees thereof as Exhibit 5.1 to this Current Report on Form 8-K, which is incorporated herein by reference.
Item 9.01 Financial Statements and Exhibits.
URI and URNA hereby incorporate Exhibits 1.1, 4.1, 4.2, 4.3, 4.4, 4.5,
5.1 and 23.1 into the Registration Statement.
Exhibits
Exhibit 1.1
Underwriting Agreement for the Notes, dated as of October 26, 2026, among URNA, URI and the Representatives.
Exhibit 4.1
Indenture, dated as of October 29, 2026, among URNA, URI and Truist Bank, as trustee.
Exhibit 4.2
First Supplemental Indenture for the Notes, dated as of October 29, 2026, among URNA, URI and Truist Bank, as trustee (including the Forms of Note for the Notes).
Exhibit 4.3
Form of Note for URNA’s 5.550% Senior Notes due 2029 (contained in Exhibit 4.2).
Exhibit 4.4
Form of Note for URNA’s 5.750% Senior Notes due 2031 (contained in Exhibit 4.2).
Exhibit 4.5
Form of Note for URNA’s 6.200% Senior Notes due 2036 (contained in Exhibit 4.2).
Exhibit 5.1
Opinion of Sullivan & Cromwell LLP relating to the Notes and URI’s guarantees thereof.
Exhibit 10.1
Amendment No. 1 to the Fifth Amended and Restated Credit Agreement, dated as of October 23, 2026, by and among URNA, the financial institutions party thereto and the Agent.
Exhibit 23.1
Consent of Sullivan & Cromwell LLP (included in Exhibit 5.1).
Exhibit 104
Cover Page Interactive Data File (embedded within the Inline XBRL document).
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf
by the undersigned hereunto duly authorized.
Date: October 29, 2026
UNITED RENTALS, INC.
By:
/s/ Joli L. Gross
Name:
Joli L. Gross
Title:
Senior Vice President, Chief Legal and Sustainability Officer, and Corporate Secretary
UNITED RENTALS (NORTH AMERICA), INC.
By:
/s/ Joli L. Gross
Name:
Joli L. Gross
Title:
Senior Vice President, Chief Legal and Sustainability Officer, and Corporate Secretary
EX-1.1 — EXHIBIT 1.1
EX-1.1
Filename: tm2628016d6_ex1-1.htm · Sequence: 2
Exhibit 1.1
EXECUTION VERSION
UNITED RENTALS (NORTH AMERICA), INC.
$700,000,000
5.550% SENIOR NOTES DUE 2029
$800,000,000
5.750% SENIOR NOTES DUE 2031
$1,000,000,000
6.200% SENIOR NOTES DUE 2036
UNDERWRITING AGREEMENT
October 26, 2026
J.P. Morgan Securities LLC
270 Park Avenue
New York, New York 10017
BofA Securities, Inc.
One Bryant Park
New York, New York 10036
Goldman Sachs & Co. LLC
200 West Street
New York, New York 10282
As Representatives of the Several Underwriters
Ladies and Gentlemen:
1. Introductory.
United Rentals (North America), Inc., a Delaware corporation (the “Company”), agrees with the several Underwriters
named in Schedule A hereto (the “Underwriters”) for whom you are acting as representatives (the “Representatives”)
to issue and sell to the several Underwriters $700,000,000 principal amount of its 5.550% Senior Notes due 2029 (the “2029 Notes”),
$800,000,000 principal amount of its 5.750% Senior Notes due 2031 (the “2031 Notes”) and $1,000,000,000 principal amount
of its 6.200% Senior Notes due 2036 (the “2036 Notes” and, together with the 2029 Notes and the 2031 Notes, the “Notes”).
The Notes will be fully and unconditionally guaranteed (the “Guarantee”) on a senior unsecured basis by United Rentals,
Inc., a Delaware corporation and parent of the Company (the “Guarantor”). The Notes will be issued under an indenture,
to be dated as of October 29, 2026 (the “Base Indenture”), as supplemented by the First Supplemental Indenture to be
dated as of October 29, 2026 (the “First Supplemental Indenture” and, together with the Base Indenture, the “Indenture”),
among the Company, the Guarantor and Truist Bank, as trustee (the “Trustee”). The Notes and the Guarantee are together
referred to as the “Offered Securities.”
This Agreement, the Indenture
and the Offered Securities are referred to herein as the “Operative Documents.”
For purposes of this Underwriting
Agreement (this “Agreement”):
“430B Information”
means information included in a prospectus then deemed to be a part of the Registration Statement pursuant to Rule 430B(e) or retroactively
deemed to be a part of the Registration Statement pursuant to Rule 430B(f).
“430C Information”
means information included in a prospectus then deemed to be a part of the Registration Statement pursuant to Rule 430C.
“Act” means
the Securities Act of 1933, as amended.
“Applicable
Time” means 4:25 P.M. New York City time on the date of this Agreement.
“Commission”
means the Securities and Exchange Commission.
“Effective Time”
of the Registration Statement relating to the Offered Securities means the time of the first contract of sale for the Offered Securities.
“Exchange Act”
means the Securities Exchange Act of 1934, as amended.
“Final Prospectus”
means the Statutory Prospectus that discloses the public offering price, other 430B Information and other final terms of the Offered Securities
and otherwise satisfies Section 10(a) of the Act.
“General Use Issuer
Free Writing Prospectus” means any Issuer Free Writing Prospectus that is intended for general distribution to prospective investors,
as evidenced by its being so specified in Schedule B to this Agreement.
“Issuer Free Writing
Prospectus” means any “issuer free writing prospectus,” as defined in Rule 433, relating to the Offered Securities
in the form filed or required to be filed with the Commission or, if not required to be filed, in the form retained in the Company’s
records pursuant to Rule 433(g).
“Limited Use Issuer
Free Writing Prospectus” means any Issuer Free Writing Prospectus that is not a General Use Issuer Free Writing Prospectus.
“Rules and Regulations”
means the rules and regulations of the Commission.
“Securities Laws”
means, collectively, the Sarbanes-Oxley Act of 2002 (“Sarbanes-Oxley”), the Act, the Exchange Act, the Trust Indenture
Act, the Rules and Regulations, the auditing principles, rules, standards and practices applicable to auditors of “issuers”
(as defined in Sarbanes-Oxley) promulgated or approved by the Public Company Accounting Oversight Board and the rules of the New York
Stock Exchange (“Exchange Rules”).
“Significant Subsidiary”
of any person means a subsidiary of such person which would be a significant subsidiary of such person as determined in accordance with
the definition in Rule 1-02(w) of Article 1 of Regulation S-X promulgated by the Commission and as in effect on the Closing
Date.
2
“Statutory Prospectus”
with reference to any particular time means the prospectus relating to the Offered Securities that is included in the Registration Statement
immediately prior to that time, including all 430B Information and all 430C Information with respect to the Registration Statement. For
purposes of the foregoing definition, 430B Information shall be considered to be included in the Statutory Prospectus only as of the actual
time that form of prospectus (including a prospectus supplement) is filed with the Commission pursuant to Rule 424(b) and not retroactively.
“Trust Indenture
Act” means the Trust Indenture Act of 1939, as amended.
Unless otherwise specified,
a reference to a “rule” is to the indicated rule under the Act.
The Company and the Guarantor
jointly and severally agree with the several Underwriters as follows:
2. Representations
and Warranties of the Company and the Guarantor. The Company and the Guarantor jointly and severally represent and warrant to, and
agree with, the several Underwriters that:
(a) The
Company has filed with the Commission a registration statement on Form S-3 (No. 333-299595), including a related prospectus or
prospectuses, covering the registration of the Offered Securities under the Act, which became effective upon filing. “Registration
Statement” at any particular time means such registration statement in the form then filed with the Commission, including any
further amendment thereto, any document incorporated by reference therein and all 430B Information and all 430C Information with respect
to such registration statement, that in any case has not been superseded or modified. “Registration Statement” without
reference to a time means the Registration Statement as of the Effective Time. For purposes of this definition, 430B Information shall
be considered to be included in the Registration Statement as of the time specified in Rule 430B. No stop order suspending the effectiveness
of the Registration Statement is in effect, the Commission has not issued any order or notice preventing or suspending the use of the
Registration Statement, any Preliminary Prospectus or the Final Prospectus, and no proceedings for such purpose have been instituted or
are pending or, to the knowledge of the Company or the Guarantor, are contemplated or threatened by the Commission.
(b) (i)
At the time the Registration Statement initially became effective, (ii) at the time of each amendment thereto for the purposes of complying
with Section 10(a)(3) of the Act (whether by post-effective amendment, incorporated report or form of prospectus), (iii) at the time the
Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c)) made any offer relating to the Offered
Securities in reliance on the exemption of Rule 163 and (iv) at the Effective Time relating to the Offered Securities, the Company was
a “well known seasoned issuer” as defined in Rule 405, including not having been an “ineligible issuer” as defined
in Rule 405.
(c) (i)(A)
At the time the Registration Statement initially became effective, (B) at the time of each amendment thereto for the purposes of complying
with Section 10(a)(3) of the Act (whether by post-effective amendment, incorporated report or form of prospectus), (C) at the Effective
Time relating to the Offered Securities and (D) on the Closing Date, the Registration Statement conformed and will conform in all respects
to the requirements of the Act, the Trust Indenture Act and the Rules and Regulations and did not and will not include any untrue statement
of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading
and (ii) (A) on its date, (B) at the time of filing the Final Prospectus pursuant to Rule 424(b) and (C) on the Closing Date, the Final
Prospectus will conform in all respects to the requirements of the Act, the Trust Indenture Act and the Rules and Regulations, and will
not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not
apply to statements in or omissions from any such document based upon written information furnished to the Company by any Underwriter
through the Representatives specifically for use therein, it being understood and agreed that the only such information will be described
in a separate letter agreement between the parties hereto.
3
(d) The
date of this Agreement is not more than three years subsequent to the initial effective time of the Registration Statement. If, immediately
prior to the third anniversary of the initial effective time of the Registration Statement, any of the Offered Securities remain unsold
by the Underwriters, the Company will prior to that third anniversary file, if it has not already done so, a new shelf registration statement
relating to the Offered Securities, in a form satisfactory to the Representatives, and if such registration statement is not automatically
effective will use its best efforts to cause such registration statement to be declared effective within 180 days after that third anniversary,
and will take all other action necessary or appropriate to permit the public offering and sale of the Offered Securities to continue as
contemplated in the expired registration statement relating to the Offered Securities. References herein to the Registration Statement
shall include such new shelf registration statement.
(e) As
of the Applicable Time, neither (i) the General Use Issuer Free Writing Prospectus(es) issued at or prior to the Applicable Time, the
preliminary prospectus supplement, dated October 23, 2026, including the base prospectus, dated October 23, 2026 (such preliminary
prospectus supplement, together with the base prospectus, the “Preliminary Prospectus”) (which is the most recent Statutory
Prospectus distributed to investors generally), and the other information, if any, stated in Schedule B to this Agreement to be included
in the General Disclosure Package, all considered together (collectively, the “General Disclosure Package”), nor (ii)
any individual Limited Use Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included any
untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from
any Statutory Prospectus or any Issuer Free Writing Prospectus in reliance upon and in conformity with written information furnished to
the Company by any Underwriter through the Representatives specifically for use therein; it being understood and agreed that the only
such information will be described in a separate letter agreement between the parties hereto.
(f) Each
Issuer Free Writing Prospectus, as of its issue date and at all subsequent times through the completion of the public offer and sale of
the Offered Securities or until any earlier date that the Company notified or notifies the Representatives as described in the next sentence,
did not, does not and will not include any information that conflicted, conflicts or will conflict with the information then contained
in the Registration Statement. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event
or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information then contained
in the Registration Statement or as a result of which such Issuer Free Writing Prospectus, if republished immediately following such event
or development, would include an untrue statement of a material fact or would omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were made, not misleading, (i) the Company has promptly notified
or will promptly notify the Representatives and (ii) the Company has promptly amended or will promptly amend or supplement such Issuer
Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.
4
(g) Each
of the Guarantor, the Company and each Significant Subsidiary of the Guarantor has been duly incorporated or organized, as applicable,
and is an existing corporation or limited liability company, as applicable, in good standing under the laws of the jurisdiction in which
it is chartered or organized, with power and authority (corporate or limited liability company, as applicable, and other) to own its properties
and conduct its business as described in the General Disclosure Package and to enter into and perform its obligations under each of the
Operative Documents, to the extent a party thereto; and each of the Guarantor, the Company and each Significant Subsidiary of the Guarantor
is duly qualified to do business as a foreign corporation or limited liability company, as applicable, in good standing in all other jurisdictions
in which its ownership or lease of property or the conduct of its business requires such qualification, except where the failure so to
qualify or to be in good standing would not reasonably be expected to result in a material adverse effect on the condition (financial
or other), business, properties, results of operations or prospects of the Guarantor and its subsidiaries taken as a whole (a “Material
Adverse Effect”).
(h) All
of the issued and outstanding capital stock or limited liability company interests, as applicable, of each of the Guarantor, the Company
and each Significant Subsidiary of the Guarantor has been duly authorized and validly issued and, in the case of capital stock, is fully
paid and nonassessable; the capital stock or limited liability company interests, as applicable, of the Company and each Significant Subsidiary
of the Guarantor is owned by the Guarantor, directly or indirectly, free from liens, encumbrances and defects, except Permitted Liens,
as defined in the General Disclosure Package (“Permitted Liens”).
(i) The
Notes have been duly authorized by the Company; the Guarantee has been duly authorized by the Guarantor; the Indenture has been duly authorized
by the Company and the Guarantor and has been duly qualified under the Trust Indenture Act; on the Closing Date, each of the Base Indenture
and the First Supplemental Indenture will have been duly executed and delivered, and, when the Offered Securities are delivered and paid
for pursuant to this Agreement on the Closing Date, such Offered Securities will have been duly executed, authenticated, issued and delivered,
will conform in all material respects to the description thereof in the General Disclosure Package and will conform in all material respects
to the description thereof contained in the Final Prospectus, and the Indenture and such Offered Securities will constitute valid and
legally binding obligations of the Company and the Guarantor, enforceable in accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights
and to general equity principles.
5
(j) This
Agreement (i) has been duly authorized, executed and delivered by the Company and the Guarantor and (ii) conforms in all material respects
to the description thereof contained in the General Disclosure Package.
(k) No
consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required for the Guarantor’s
or the Company’s (i) execution, delivery and performance of the Operative Documents, to the extent a party thereto, (ii) issuance
and delivery of the Offered Securities or (iii) consummation of the transactions contemplated hereby and thereby.
(l) Neither
the Guarantor nor any of its Significant Subsidiaries is in (i) violation of its respective charter, by-laws or other constitutive documents
or (ii) default in the performance of any obligation, agreement, covenant or condition contained in any indenture, loan agreement, mortgage,
lease or other agreement or instrument that is material to the Guarantor and its subsidiaries, taken as a whole, to which the Guarantor
or any of its Significant Subsidiaries is a party or by which the Guarantor or any of its Significant Subsidiaries or any of their respective
properties is bound, except for any default that would not reasonably be expected to have a Material Adverse Effect.
(m) The
execution, delivery and performance of each of the Operative Documents, the issuance and delivery of the Offered Securities and the consummation
of the transactions contemplated hereby and thereby, including without limitation the issuance and sale of the Offered Securities and
compliance with the terms and provisions thereof, will not result in a breach or violation of (i) any of the terms and provisions of,
or constitute a default under or pursuant to, any statute, any rule, regulation or order of any governmental agency or body or any court,
domestic or foreign, having jurisdiction over the Guarantor or any Significant Subsidiary of the Guarantor or any of their respective
properties, or any agreement or instrument to which the Guarantor or any such Significant Subsidiary is a party or by which the Guarantor
or any such Significant Subsidiary is bound or to which any of the properties of the Guarantor or any such Significant Subsidiary is subject,
in each case, except as would not reasonably be expected to have a Material Adverse Effect or (ii) the charter or by-laws or similar organizational
documents of the Guarantor or any such Significant Subsidiary.
(n) The
Guarantor and its Significant Subsidiaries have good and marketable title to all real property described in the General Disclosure Package
as owned by the Guarantor and its Significant Subsidiaries and good title to all other properties described in the General Disclosure
Package as owned by them, in each case, free and clear as of the Closing Date of all mortgages, pledges, liens, security interests, claims,
restrictions or encumbrances of any kind except such as (i) are Permitted Liens or (ii) do not individually or in the aggregate materially
interfere with the use made and proposed to be made of such property by the Guarantor or any of its Significant Subsidiaries; and all
of the leases and subleases material to the business of the Guarantor and its subsidiaries, taken as a whole, and under which the Guarantor
or any of its Significant Subsidiaries holds properties described in the General Disclosure Package, are in full force and effect, and
neither the Guarantor nor any such Significant Subsidiary has any notice of any material claim of any sort that has been asserted by anyone
adverse to the rights of the Guarantor or any such Significant Subsidiary under any of the leases or subleases mentioned above, or affecting
or questioning the rights of the Guarantor or such Significant Subsidiary to the continued possession of the leased or subleased premises
under any such lease or sublease that would reasonably be expected to result in a Material Adverse Effect.
6
(o) The
Guarantor and its Significant Subsidiaries possess adequate certificates, authorities or permits issued by appropriate governmental agencies
or bodies necessary to conduct the business now operated by them, except where the lack thereof would not reasonably be expected to have
a Material Adverse Effect; and the Guarantor and its Significant Subsidiaries have not received any notice of proceedings relating to
the revocation or modification of any such certificate, authority or permit that, if determined adversely to the Guarantor or any of its
Significant Subsidiaries, would individually or in the aggregate have a Material Adverse Effect.
(p) No
labor dispute with the employees of the Guarantor or any of its Significant Subsidiaries exists or, to the knowledge of the Company or
the Guarantor, is imminent that would individually or in the aggregate reasonably be expected to have a Material Adverse Effect.
(q) The
Guarantor and its Significant Subsidiaries own, possess or can acquire on reasonable terms, adequate trademarks, trade names and other
rights to inventions, know-how, patents, copyrights, confidential information and other intellectual property (collectively, “intellectual
property rights”) necessary to conduct the businesses now operated by them, or presently employed by them (except where the
lack thereof would not reasonably be expected to have a Material Adverse Effect), and have not received any notice of infringement of,
or conflict with, asserted rights of others with respect to any intellectual property rights that, if determined adversely to the Guarantor
or any of its Significant Subsidiaries, would individually or in the aggregate reasonably be expected to have a Material Adverse Effect.
(r) Except
as disclosed in the General Disclosure Package, neither the Guarantor nor any of its Significant Subsidiaries (i) is in violation of any
statute, any rule, regulation, decision or order of any governmental agency or body or any court, domestic or foreign, relating to the
use, disposal or release of hazardous or toxic substances or relating to the protection or restoration of the environment or human exposure
to hazardous or toxic substances (collectively, “environmental laws”), (ii) owns or operates any real property contaminated
with any substance that could be expected to require remediation or result in liability pursuant to any environmental laws, (iii) is liable
for any off-site disposal or contamination pursuant to any environmental laws, or (iv) is subject to any claim relating to any environmental
laws, which violation, contamination, liability or claim would individually or in the aggregate reasonably be expected to have a Material
Adverse Effect; and neither the Company nor the Guarantor is aware of any pending investigation which would reasonably be expected to
lead to such a claim.
(s) To
the knowledge of the Company or the Guarantor, there are no costs or liabilities associated with environmental laws (including, without
limitation, any capital or operating expenditures required for clean-up, closure of properties or compliance with environmental laws or
any certificates, authorities or permits, any related constraints on operating activities and any potential liabilities to third parties)
which would individually or in the aggregate be reasonably expected to have a Material Adverse Effect.
(t) Except
as disclosed in the General Disclosure Package, there are no pending actions, suits or proceedings against or affecting the Guarantor,
any of its Significant Subsidiaries or any of their respective properties that, if determined adversely to the Guarantor or any of its
Significant Subsidiaries, would individually or in the aggregate reasonably be expected to have a Material Adverse Effect, or would materially
and adversely affect the ability of the Company or the Guarantor to perform their obligations under the Operative Documents, to the extent
a party thereto, or which are otherwise material in the context of the sale of the Offered Securities; and no such actions, suits or proceedings
are, to the knowledge of the Company and the Guarantor, threatened or contemplated.
7
(u) The
accountant, Ernst & Young LLP, that has certified the financial statements and supporting schedules of the Guarantor included or incorporated
by reference in the General Disclosure Package and the Final Prospectus is a registered public accounting firm and an independent public
accountant with respect to the Guarantor and the Company, as required by the Act and the Exchange Act. The historical financial statements,
together with related schedules and notes, set forth or incorporated by reference in the General Disclosure Package and Final Prospectus
comply as to form in all material respects with the accounting requirements of the Act and the related published Rules and Regulations.
(v) The
interactive data in eXtensible Business Reporting Language of the Guarantor included or incorporated by reference in the General Disclosure
Package and the Final Prospectus fairly presents the information called for in all material respects and has been prepared in accordance
with the Commission’s rules and guidelines applicable thereto.
(w) The
historical financial statements of the Guarantor, together with related schedules and notes forming part of the General Disclosure Package,
present fairly the consolidated financial position, results of operations and changes in financial position of the Guarantor and its subsidiaries
on the basis stated in the General Disclosure Package at the respective dates or for the respective periods to which they apply; such
statements and related schedules and notes have been prepared in accordance with generally accepted accounting principles in the United
States consistently applied throughout the periods involved, except as disclosed therein; and the other financial and statistical information
and data with respect to the Guarantor and its subsidiaries set forth in the General Disclosure Package are, in all material respects,
accurately presented and prepared on a basis consistent with such financial statements and the books and records of the Guarantor.
(x) At
September 30, 2026, on a consolidated basis, the Guarantor had and, after giving effect to the adjustments described therein, would have
an outstanding capitalization as set forth in the General Disclosure Package and the Final Prospectus under the “Actual” and
“As Adjusted” columns, respectively, under the caption “Capitalization.”
(y) Since
the date of the latest audited financial statements included or incorporated by reference in the General Disclosure Package, there has
been no material adverse change, nor any development or event involving a prospective material adverse change, in the condition (financial
or other), business, properties, results of operations or prospects of the Guarantor and its subsidiaries, taken as a whole.
(z) Neither
the Company nor the Guarantor is an open-end investment company, unit investment trust or face-amount certificate company that is or is
required to be registered under Section 8 of the United States Investment Company Act of 1940 (the “Investment Company Act”);
and neither the Company nor the Guarantor is and, after giving effect to the offering and sale of the Offered Securities and the application
of the proceeds thereof as described in the General Disclosure Package, will be an “investment company” as defined in the
Investment Company Act.
8
(aa) On
the Closing Date, the Indenture will conform in all material respects to the requirements of the Trust Indenture Act, and the Rules and
Regulations applicable to an indenture which is qualified thereunder.
(bb) There
are no contracts, agreements or understandings between the Company or the Guarantor and any person granting such person the right to require
the Company or the Guarantor to file a registration statement under the Act with respect to any securities of the Company or the Guarantor
or to require the Company or the Guarantor to include such securities with the Offered Securities registered pursuant to any Registration
Statement, except for agreements pursuant to which the Guarantor or the Company has already filed a registration statement covering all
the securities entitled to registration thereunder.
(cc) Neither
the Guarantor nor any of its subsidiaries or any agent thereof acting on the behalf of them has taken, and none of them will take, any
action that might cause this Agreement or the issuance or sale of the Offered Securities to violate Regulation T (12 C.F.R. Part 220),
Regulation U (12 C.F.R. Part 221) or Regulation X (12 C.F.R. Part 224) of the Board of Governors of the Federal Reserve System.
(dd) No
“nationally recognized statistical rating organization” as such term is defined in Section 3(a)(62) under the Exchange Act,
except as disclosed in the General Disclosure Package, has indicated to the Company or the Guarantor that it is considering (A) the downgrading,
suspension, or withdrawal of, or any review for a possible change that does not indicate the direction of the possible change in, any
rating assigned to the Company, the Guarantor or any securities of the Company or the Guarantor or (B) any change in the outlook for any
rating of the Company, the Guarantor or any securities of the Company or the Guarantor.
(ee) Each
certificate signed by any officer of the Company or the Guarantor and delivered to the Underwriters or counsel for the Underwriters shall
be deemed to be a representation and warranty by the Company or the Guarantor, as applicable, to the Underwriters as to the matters covered
thereby.
(ff) Neither
the Guarantor nor any of its subsidiaries or affiliates, nor any director, officer, or employee, nor, to the Company’s and the Guarantor’s
knowledge, any agent or representative of the Guarantor or of any of its subsidiaries or affiliates, has taken or will take any action
in furtherance of an unlawful offer, payment, promise to pay, or authorization or approval of the payment or giving of money, property,
gifts or anything else of value, directly or indirectly, to any “government official” (including any officer or employee of
a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity
for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) to influence official
action or secure an improper advantage; and the Guarantor and its subsidiaries and affiliates have conducted their businesses in compliance
with applicable anti-corruption laws and have instituted and maintained and will continue to maintain, policies and procedures designed
to promote and achieve compliance with such laws.
9
(gg) The
operations of the Guarantor and its subsidiaries are and have been conducted at all times in material compliance with all applicable financial
recordkeeping and reporting requirements, including those of the Bank Secrecy Act, as amended by Title III of the Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), and the applicable
anti-money laundering statutes of jurisdictions where the Guarantor and each of its subsidiaries conduct business, the rules and regulations
thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively,
the “Anti-Money Laundering Laws”), and no action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Guarantor or any of its subsidiaries with respect to the Anti-Money Laundering Laws
is pending or, to the best knowledge of the Company and the Guarantor, threatened.
(hh) (i)
Neither the Guarantor nor any of its subsidiaries or, to the knowledge of the Company and the Guarantor or any of its subsidiaries, any
director, officer, employee, agent, affiliate or representative of the Guarantor or any of its subsidiaries, is an individual or entity
that is, or is owned or controlled by an individual or entity that is:
(A) the
subject of any sanctions administered or enforced by the U.S. Department of Treasury’s Office of Foreign Assets Control, the United
Nations Security Council, the European Union, His Majesty’s Treasury or other relevant sanctions authority (collectively, “Sanctions”),
or
(B) located,
organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Cuba, Iran, North Korea,
the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, the non-Ukrainian government controlled
areas of the Kherson and Zaporizhzhia regions of Ukraine, or any other Covered Region of Ukraine identified pursuant to Executive Order
14065 and the Crimea region of Ukraine).
(ii) The
Company will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds
to any subsidiary, joint venture partner or other individual or entity:
(A) to
fund or facilitate any activities or business of or with any individual or entity or in any country or territory that, at the time of
such funding or facilitation, is the subject of Sanctions; or
(B) in
any other manner that will result in a violation of Sanctions by any individual or entity (including any individual or entity participating
in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) Neither
the Guarantor nor any of its subsidiaries has knowingly engaged in, is now knowingly engaged in, or will engage in, any dealings or transactions
with any individual or entity, or in any country or territory, that at the time of the dealing or transaction is or was the subject of
Sanctions.
10
(ii) There
are no contracts, agreements or understandings between the Company or the Guarantor and any person (other than the Underwriters) that
would give rise to a valid claim against the Company, the Guarantor or, to the knowledge of the Company and the Guarantor, any Underwriter
for a brokerage commission, finder’s fee or other like payment in connection with the offering and sale of the Offered Securities.
(jj) Neither
the Company nor the Guarantor has taken, directly or indirectly, any action that is designed to or that has constituted or that would
reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company or the Guarantor
to facilitate the sale or resale of the Offered Securities.
(kk) The
Guarantor, its subsidiaries and the Guarantor’s Board of Directors (the “Board”) are in compliance in all material
respects with Sarbanes-Oxley and all applicable Exchange Rules. The Guarantor maintains a system of internal controls, including, but
not limited to, disclosure controls and procedures, internal controls over accounting matters and financial reporting, an internal audit
function and legal and regulatory compliance controls (collectively, “Internal Controls”) that comply with the Securities
Laws and are sufficient to provide reasonable assurances that (i) transactions are executed in accordance with management’s general
or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with
generally accepted accounting principles in the United States and to maintain accountability for assets, (iii) access to assets is permitted
only in accordance with management’s general or specific authorization and (iv) the recorded accountability for assets is compared
with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. The Internal Controls
are overseen by the Audit Committee (the “Audit Committee”) of the Board in accordance with Exchange Rules. The Guarantor
has not publicly disclosed or reported to the Audit Committee or the Board, and within the next 90 days the Guarantor does not reasonably
expect to publicly disclose or report to the Audit Committee or the Board, a significant deficiency, material weakness, change in Internal
Controls or fraud involving management or other employees who have a significant role in Internal Controls, any violation of, or failure
to comply with, the Securities Laws, or any matter which, if determined adversely, would reasonably be expected to have a Material Adverse
Effect.
(ll) Except as would not
reasonably be expected to have a Material Adverse Effect, (a) the Guarantor’s and its Significant Subsidiaries’ information
technology assets and equipment, computers, systems, networks, hardware, software, websites, applications, and databases (collectively,
“IT Systems”) are adequate for, and operate and perform as required in connection with the operation of the business
of the Guarantor and its subsidiaries as currently conducted, and (b) IT Systems are free and clear of all bugs, errors, defects, Trojan
horses, time bombs, malware and other corruptants. Except as would not reasonably be expected to have a Material Adverse Effect, (i) the
Guarantor and its Significant Subsidiaries have implemented and maintained commercially reasonable controls, policies, procedures, and
safeguards to maintain and protect their confidential information and the integrity, continuous operation, redundancy and security of
all material IT Systems and data (including all personal, personally identifiable, sensitive, confidential or regulated data (“Personal
Data”)) used in connection with their businesses, and (ii) there have been no breaches, violations, outages or unauthorized
uses of or accesses to same, except for those that have been remedied without material cost or liability, nor any incidents under internal
review or investigations relating to the same. Except as would not reasonably be expected to have a Material Adverse Effect, the Guarantor
and its Significant Subsidiaries are presently in compliance with all applicable laws or statutes and all judgments, orders, rules and
regulations of any court or arbitrator or governmental or regulatory authority, internal policies and contractual obligations relating
to the privacy and security of IT Systems and Personal Data and to the protection of such IT Systems and Personal Data from unauthorized
use, access, misappropriation or modification.
11
Each of the Company and the
Guarantor acknowledges that the Underwriters and, for purposes of the opinions to be delivered to the Underwriters pursuant to this Agreement,
counsel to the Company and the Guarantor and counsel to the Underwriters will rely upon the accuracy and truth of the foregoing representations
and hereby consents to such reliance.
3. Purchase,
Sale and Delivery of Offered Securities. On the basis of the representations, warranties and agreements and subject to the terms and
conditions set forth herein, the Company agrees to sell to the Underwriters, and each of the Underwriters agrees, severally and not jointly,
to purchase from the Company the respective principal amounts of Offered Securities set forth opposite the names of the Underwriters
in Schedule A hereto, at a purchase price of (i) in the case of the 2029 Notes, 99.522% of the principal amount thereof, (ii) in the case
of the 2031 Notes, 99.284% of the principal amount thereof and (iii) in the case of the 2036 Notes, 99.060% of the principal amount thereof,
in each case plus accrued interest, if any, from October 29, 2026, to the Closing Date.
The
Company will deliver against payment of the purchase price the Offered Securities of each series in the form of permanent Global Securities
in definitive form (the “Global Securities”) deposited with the Trustee as custodian for The Depository Trust Company
(“DTC”) and registered in the name of Cede & Co., as nominee for DTC. Interests in any permanent Global
Securities will be held only in book-entry form through DTC, except in the limited circumstances described in the General Disclosure Package.
Payment for the Offered Securities shall be made by the Underwriters in Federal (same day) funds by wire transfer to an account at a bank
acceptable to the Representatives on October 29, 2026, or at such other time not later than seven full business days thereafter as the
Representatives and the Company determine, such time being herein referred to as the “Closing Date,” against delivery
to the Trustee as custodian for DTC of the Global Securities representing all of the Offered Securities at the office of Cravath, Swaine
& Moore LLP, Two Manhattan West, 375 Ninth Avenue, New York, NY 10001 at 10:00 A.M. (New York time) on such date. Time shall be of
the essence, and delivery at the time and place specified in this Agreement is a condition to the obligations of the Underwriters.
4. Offering
by Underwriters. It is understood that the several Underwriters propose to offer the Offered Securities for sale to the public
as set forth in the Final Prospectus.
5. Certain
Agreements of the Company. The Company agrees with the several Underwriters that:
(a) The
Company has filed or will file each Statutory Prospectus (including the Final Prospectus) pursuant to and in accordance with Rule 424(b)(2)
(or, if applicable, subparagraph (5)) not later than the second business day following the earlier of the date it is first used or the
execution and delivery of this Agreement. The Company has complied and will comply with Rule 433.
12
(b) The
Company will promptly advise the Representatives of any proposal to amend or supplement the Registration Statement or any Statutory Prospectus
at any time and will offer the Representatives a reasonable opportunity to comment on any such amendment or supplement; and the Company
will also advise the Representatives promptly of (i) the filing of any such amendment or supplement, (ii) any request by the Commission
or its staff for any amendment to the Registration Statement, for any supplement to any Statutory Prospectus or for any additional information,
(iii) the institution by the Commission of any stop order proceedings in respect of the Registration Statement or the threatening of any
proceeding for that purpose, and (iv) the receipt by the Company of any notification with respect to the suspension of the qualification
of the Offered Securities in any jurisdiction or the institution or threatening of any proceedings for such purpose. The Company
will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to
obtain as soon as possible the withdrawal thereof.
(c) The
Company will advise the Representatives promptly of any proposal to amend or supplement the Preliminary Prospectus or Final Prospectus
and will not effect such amendment or supplementation without the Representatives’ consent, which shall not be unreasonably withheld.
If, at any time when a prospectus relating to the Offered Securities is (or but for the exemption in Rule 172 would be) required to be
delivered under the Act by any Underwriter or dealer, any event occurs as a result of which the Final Prospectus, as then amended or supplemented,
would include an untrue statement of a material fact or would omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the
Registration Statement or supplement the Final Prospectus to comply with the Act, the Company promptly will notify the Representatives
of such event and promptly will prepare and file with the Commission and furnish, at its own expense, to the Underwriters and the dealers
and any other dealers upon request of the Representatives, an amendment or supplement which will correct such statement or omission or
an amendment which will effect such compliance. Neither the Representatives’ consent to, nor the Underwriters’ delivery of,
any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 7 hereof.
(d) As
soon as practicable, but not later than 16 months, after the date of this Agreement, the Company will make generally available to its
securityholders an earnings statement covering a period of at least 12 months beginning after the date of this Agreement and satisfying
the provisions of Section 11(a) of the Act and Rule 158.
(e) The
Company will furnish to the Representatives copies of the Registration Statement, including all exhibits, any Statutory Prospectus, the
Final Prospectus and all amendments and supplements to such documents, in each case as soon as available and in such quantities as the
Representatives may from time to time reasonably request. The Company will pay the expenses of printing and distributing to the
Underwriters all such documents.
13
(f) The
Company will promptly from time to time take such action as any Underwriter may reasonably request to arrange for the qualification of
the Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions in the
United States and Canada as any Underwriter designates and will continue such qualifications in effect so long as required for the distribution;
provided, however, that neither the Company nor the Guarantor will be required to qualify as a foreign corporation
or to file a general consent to service of process in any such state or province.
(g) [Reserved.]
(h) The
Company will pay all expenses incidental to the performance of its obligations under the Operative Documents, including (i) the fees and
expenses of the Trustee and its professional advisers; (ii) all expenses in connection with the execution, issue, authentication, packaging
and delivery of the Offered Securities, the preparation and printing of this Agreement, the Offered Securities, the Indenture, the Preliminary
Prospectus, any other documents comprising any part of the General Disclosure Package, the Final Prospectus, all amendments and supplements
thereto, and any other document relating to the issuance, offer, sale and delivery of the Offered Securities; (iii) any expenses (including
fees and disbursements of counsel) incurred in connection with qualification of the Offered Securities for sale under the laws of such
jurisdictions in the United States and Canada as any Underwriter designates and the printing of memoranda relating thereto; (iv) any fees
charged by investment rating agencies for the rating of the Offered Securities; (v) expenses incurred in distributing the Preliminary
Prospectus, any other documents comprising any part of the General Disclosure Package and the Final Prospectus (including any amendment
and supplements thereto) to the Underwriters; (vi) costs and expenses related to the review, if any, by the Financial Industry Regulatory
Authority, Inc. (“FINRA”) of the Offered Securities (including filing fees and the fees and expenses of counsel for
the Underwriters relating to such review); and (vii) all travel expenses of the Company’s officers and employees and any
other expenses of the Company in connection with attending meetings with prospective purchasers of the Offered Securities. It is understood
that, except as provided in this Section and in Sections 9 and 12 hereof, the Underwriters will pay for all travel expenses of the Underwriters’
employees and any other out-of-pocket expenses of the Underwriters in connection with attending or hosting meetings with prospective purchasers
of the Offered Securities, the fees of their counsel, transfer taxes on the resale of any of the Offered Securities by them and any advertising
expenses connected with any offers they make.
(i) The
Company will use the net proceeds received in connection with this offering in the manner described in the “Use of Proceeds”
section of the Final Prospectus and, except as disclosed in the Final Prospectus in compliance with Rule 5121 of the rules of FINRA, the
Company does not intend to use any of the proceeds from the sale of the Offered Securities hereunder to repay any outstanding debt owed
to any Underwriter or any affiliate of any Underwriter.
(j) The
Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to
cause or result in, stabilization or manipulation of the price of any securities of the Company to facilitate the sale or resale of the
Offered Securities.
14
(k) From
the date hereof through and including the Closing Date, the Guarantor will not and will not permit any of its subsidiaries to, without
the prior written consent of the Representatives (which consent may be withheld at the sole discretion of the Representatives), directly
or indirectly, sell, offer, contract or grant any option to sell, pledge, transfer or establish an open “put equivalent position”
within the meaning of Rule 16a-1 under the Exchange Act, or otherwise dispose of or transfer, or announce the offering of, or file
any registration statement under the Act in respect of, any United States dollar-denominated debt securities (other than the Offered Securities)
that are substantially similar to the Offered Securities and are issued or guaranteed by the Company or guaranteed by the Guarantor, and
having a maturity of more than one year from the date of issue.
(l) The
Company will obtain the approval of DTC for “book-entry” transfer of the Offered Securities, and will comply with all of its
agreements set forth in the representation letters of the Company and the Guarantor to DTC relating to the approval of the Offered Securities
by DTC for “book-entry” transfer.
(m) The
Company will use its reasonable best efforts to do and perform all things required or necessary to be done and performed under this Agreement
by it prior to the Closing Date and to satisfy all conditions precedent to the delivery of the Offered Securities.
6. Free
Writing Prospectuses. (a) The Company represents and agrees that, unless it obtains the prior consent of the Representatives, and
each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it has not made
and will not make any offer relating to the Offered Securities that would constitute an Issuer Free Writing Prospectus, or that would
otherwise constitute a “free writing prospectus,” as defined in Rule 405, required to be filed with the Commission.
Any such free writing prospectus consented to by the Company and the Representatives is hereinafter referred to as a “Permitted
Free Writing Prospectus.” The Company represents that it has treated and agrees that it will treat each Permitted Free Writing
Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements
of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including timely Commission filing where required, legending
and record keeping.
(b) The
Company will prepare a final term sheet relating to the Offered Securities, containing only information that describes the final terms
of the Offered Securities and otherwise in a form consented to by the Representatives, and will file such final term sheet within the
period required by Rule 433(d)(5)(ii) following the date such final terms have been established for all classes of the offering of the
Offered Securities. Any such final term sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus for
purposes of this Agreement. The Company also consents to the use by any Underwriter of a free writing prospectus that contains only (i)(x)
information describing the preliminary terms of the Offered Securities or their offering or (y) information that describes the final terms
of the Offered Securities or their offering and that is included in the final term sheet of the Company contemplated in the first sentence
of this subsection or (ii) other information that is not “issuer information,” as defined in Rule 433, it being understood
that any such free writing prospectus referred to in clause (i) or (ii) above shall not be an Issuer Free Writing Prospectus for purposes
of this Agreement.
15
7. Conditions
of the Obligations of the Underwriters. The several obligations of the Underwriters to purchase and pay for the Offered Securities
as provided herein on the Closing Date are subject to the satisfaction or waiver, as determined by the Representatives in their sole discretion,
of the following conditions precedent on or prior to the Closing Date:
(a) Subsequent
to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred:
(i) any
downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that
does not indicate the direction of the possible change, in the rating accorded the Guarantor or the Company or any of the securities of
the Guarantor, the Company or any of their respective subsidiaries or in the rating outlook for the Guarantor or the Company or any of
the securities of the Guarantor or the Company by any “nationally recognized statistical rating organization,” as such term
is defined in Section 3(a)(62) under the Exchange Act; and
(ii) any
change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or results
of operations of the Guarantor and its subsidiaries, taken as a whole, from that set forth in the General Disclosure Package as of the
date of this Agreement that, in the judgment of the Representatives, is material and adverse and that makes it, in the judgment of the
Representatives, impracticable or inadvisable to proceed with the offer, sale or delivery of the Offered Securities on the terms and in
the manner contemplated in the General Disclosure Package or the Final Prospectus.
(b) The
representations and warranties of the Company and the Guarantor contained in this Agreement shall be true and correct on and as of the
Applicable Time and on and as of the Closing Date as if made on and as of the Closing Date; the statements of the officers of the Company
and the Guarantor made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct on and
as of the date made and on and as of the Closing Date; the Company and the Guarantor shall have performed all covenants and agreements
and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date.
(c) The
Underwriters shall have received on the Closing Date certificates, dated the Closing Date, signed by the President, Senior Vice President
or any Vice President and a principal financial or accounting officer of each of the Company and the Guarantor to the effect set forth
in Sections 7(a)(i) and 7(a)(ii), and further to the effect that, to the best of their knowledge and belief, the representations and warranties
of the Company and the Guarantor contained in this Agreement were true and correct as of the Applicable Time and true and correct as of
the Closing Date; that the Company and the Guarantor have complied with all of the agreements and satisfied all of the conditions on their
part to be performed or satisfied hereunder on or before the Closing Date; and that no stop order suspending the effectiveness of the
Registration Statement or of any part thereof shall have been issued and no proceedings for that purpose have been instituted or, to their
knowledge, are contemplated by the Commission.
16
(d) The
Final Prospectus shall have been filed with the Commission in accordance with the Rules and Regulations and Section 5(a) hereof.
No stop order suspending the effectiveness of the Registration Statement or of any part thereof shall have been issued and no proceedings
for that purpose shall have been instituted or, to the knowledge of the Guarantor, the Company or any Underwriter, shall be contemplated
by the Commission.
(e) The
Underwriters shall have received from (i) Sullivan & Cromwell LLP, counsel for the Company and the Guarantor, their opinion, dated
the Closing Date, to the effect set forth in Annex I hereto, and their letter, dated the Closing Date, to the effect set forth in Annex
II hereto, and (ii) Joli Gross, Senior Vice President, Chief Legal & Sustainability Officer, Corporate Secretary of the Guarantor,
her opinion, dated the Closing Date, to the effect set forth in Annex III hereto. Such opinions and letter shall be rendered to the Underwriters
at the request of the Company and shall so state therein.
(f) The
Underwriters shall have received from Cravath, Swaine & Moore LLP, counsel for the Underwriters, such opinion or opinions, dated the
Closing Date, with respect to such matters as the Representatives may require, and the Company shall have furnished to such counsel such
documents as they request for the purpose of enabling them to pass upon such matters.
(g) On
the date hereof, the Underwriters shall have received from Ernst & Young LLP, the independent registered public accounting firm for
the Guarantor, a “comfort letter” dated the date hereof addressed to the Underwriters, in form and substance satisfactory
to the Representatives, covering certain financial information in the General Disclosure Package and other customary matters. In addition,
on the Closing Date, the Underwriters shall have received from such accountant a “bring-down comfort letter” dated the Closing
Date addressed to the Underwriters, in form and substance satisfactory to the Representatives, in the form of the “comfort letter”
delivered on the date hereof, except that (i) it shall cover the financial information in the Final Prospectus and any amendment or supplement
thereto and (ii) procedures shall be brought down to a date no more than three (3) days prior to the Closing Date.
(h) The
Company, the Guarantor and the Trustee shall have executed and delivered each of the Base Indenture and the First Supplemental Indenture,
each in form and substance reasonably satisfactory to the Underwriters, and the Underwriters shall have received an executed copy thereof.
(i) On
or before the Closing Date, the Underwriters and counsel for the Underwriters shall have received such information, documents, letters
and opinions as they may reasonably require for the purposes of enabling them to pass upon the issuance and sale of the Offered Securities
as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any
of the conditions or agreements, herein contained.
If any condition specified
in this Section 7 is not satisfied when and as required to be satisfied, this Agreement may be terminated by the Representatives by notice
to the Company at any time on or prior to the Closing Date, which termination shall be without liability on the part of any party to any
party, except that Sections 5(h), 9 and 12 hereof shall at all times be effective and shall survive such termination.
17
8. [Reserved.]
9. Indemnity
and Contribution. (a) Each of the Company and the Guarantor, jointly and severally, agrees to indemnify and hold harmless
each Underwriter, its partners, directors and officers and each person, if any, who controls any Underwriter within the meaning of either
Section 15 of the Act or Section 20 of the Exchange Act, and each affiliate of each Underwriter within the meaning of Rule 405 under the
Act (each, an “Indemnified Party”) from and against any and all losses, claims, damages or liabilities (or actions
in respect thereof) that arise out of, or are based upon, any untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement, any Statutory Prospectus, the General Disclosure Package, the Final Prospectus or any Issuer Free Writing
Prospectus (or any amendment or supplement to any of the foregoing), or that arise out of, or are based upon, any omission or alleged
omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein (other than
in the case of the Registration Statement, in light of the circumstances under which they were made) not misleading, including any losses,
claims, damages or liabilities arising out of or based upon the Company’s failure to perform its obligations under Section 5(c)
of this Agreement, and, subject to Section 9(c) of this Agreement, will reimburse each Indemnified Party for any reasonable and documented
legal or other expenses incurred by such Indemnified Party in connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that neither the Company nor the Guarantor will be
liable in any such case to the extent that any such losses, claims, damages or liabilities arise out of, or are based upon, any such untrue
statement or omission or alleged untrue statement or omission based upon information relating to any Underwriter furnished to the Guarantor
or the Company by such Underwriter through the Representatives expressly for use in the General Disclosure Package or the Final Prospectus
(or any amendment or supplement thereto). The indemnity agreement set forth in this Section 9(a) shall be in addition to any liabilities
that the Company and the Guarantor may otherwise have.
(b) Each
Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, the Guarantor, each of their respective directors
and officers and each person, if any, who controls the Company or the Guarantor within the meaning of either Section 15 of the Act or
Section 20 of the Exchange Act, and each affiliate of the Company and the Guarantor within the meaning of Rule 405 under the Act (each,
an “Underwriter Indemnified Party”), to the same extent as the foregoing indemnity from the Company and the Guarantor
to such Underwriters, but only with reference to information relating to such Underwriter furnished to the Guarantor or the Company by
such Underwriter through the Representatives expressly for use in the General Disclosure Package or the Final Prospectus (or any amendment
or supplement thereto) and will reimburse any reasonable and documented legal or other expenses incurred by such Underwriter Indemnified
Party in connection with investigating or defending any such loss, claim, damage, liability or action as such expenses are incurred; provided,
however, that no Underwriter shall be liable for any losses, claims, damages or liabilities arising out of or based upon the Company’s
failure to perform its obligations under Section 5(c) of this Agreement. Each of the Company and the Guarantor hereby acknowledges that
the only information that the Underwriters through the Representatives have furnished to the Guarantor and the Company expressly for use
in the General Disclosure Package or the Final Prospectus (or any amendment or supplement thereto) will be described in a separate letter
agreement between the parties hereto. The indemnity agreement set forth in this Section 9(b) shall be in addition to any liabilities
that each Underwriter may otherwise have.
18
(c) In
case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity
may be sought pursuant to Section 9(a) or 9(b), such person (the “indemnified party”) shall promptly notify the person
against whom such indemnity may be sought (the “indemnifying party”) in writing; provided, however, that
the failure to so notify the indemnifying party will not relieve it from any liability which it may have to any indemnified party under
this Section 9 except to the extent that it has been materially prejudiced by such failure (through the forfeiture of substantive rights
and defenses) and shall not relieve the indemnifying party from any liability that the indemnifying party may have to an indemnified party
other than under this Section 9. In case any such action is brought against any indemnified party and it notifies the indemnifying party
of the commencement thereof, the indemnifying party will be entitled to participate therein and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified
party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party will not be liable
to such indemnified party under this Section 9 for any legal or other expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than reasonable costs of investigation. In any such proceeding, any indemnified party shall have
the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless
(i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel; (ii) the indemnifying
party has failed within a reasonable time to retain counsel reasonably satisfactory to the indemnified party; (iii) the indemnified party
shall have reasonably concluded that there may be legal defenses available to it that are different from or in addition to those available
to the indemnifying party; or (iv) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying
party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel)
for all such indemnified parties, and that all such fees and expenses shall be reimbursed as they are incurred. Such firm shall be designated
in writing by the Representatives, in the case of parties indemnified pursuant to Section 9(a), and by the Guarantor, in the case of parties
indemnified pursuant to Section 9(b). No indemnifying party shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened action in respect of which any indemnified party is or could have been a party and indemnity
could have been sought hereunder by such indemnified party unless such settlement (i) includes an unconditional release of such indemnified
party from all liability on any claims that are the subject matter of such action and (ii) does not include a statement as to or an admission
of fault or failure to act by or on behalf of any indemnified party. An indemnifying party shall not be required to indemnify an indemnified
party hereunder with respect to any settlement or compromise of, or consent to entry of any judgment with respect to, any pending or threatened
action or claim in respect of which indemnification or contribution may be sought hereunder if (i) such settlement, compromise or consent
is entered into or made or given by the indemnified party without the consent of the indemnifying party and (ii) the indemnifying party
has not unreasonably withheld or delayed any such consent.
19
(d) To
the extent the indemnification provided for in Section 9(a) or 9(b) is unavailable to an indemnified party or insufficient in respect
of any losses, claims, damages or liabilities referred to therein, then each indemnifying party under such paragraph, in lieu of indemnifying
such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company and the
Guarantor on the one hand and the Underwriters on the other hand from the offering of the Offered Securities or (ii) if the allocation
provided by clause 9(d)(i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause 9(d)(i) above but also the relative fault of the Company and the Guarantor on the one hand and of the Underwriters
on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative benefits received by the Company and the Guarantor on the one hand and the
Underwriters on the other hand in connection with the offering of the Offered Securities shall be deemed to be in the same respective
proportions as the net proceeds from the offering of the Offered Securities (before deducting expenses) received by the Company and the
Guarantor and the total discounts and commissions received by the Underwriters bear to the aggregate offering price of the Offered Securities.
The relative fault of the Company and the Guarantor on the one hand and of the Underwriters on the other hand shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or the Guarantor, or by the Underwriters, and the parties’ relative
intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Underwriters’ respective
obligations to contribute pursuant to this Section 9 are several in proportion to the respective principal amount of Offered Securities
they have purchased hereunder as set forth opposite their names in Schedule A hereto, and not joint.
(e) The
Company and the Guarantor and the Underwriters agree that it would not be just or equitable if contribution pursuant to Section 9(d) were
determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation
that does not take account of the equitable considerations referred to in Section 9(d). The amount paid or payable by an indemnified
party as a result of the losses, claims, damages and liabilities referred to in Section 9(d) shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this subsection (e), no Underwriter shall be obligated to make
contributions hereunder that in the aggregate exceed the total discounts, commissions and other compensation received by such Underwriter
under this Agreement, less the aggregate amount of any damages that such Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
The remedies provided for in this Section 9 are not exclusive and shall not limit any rights or remedies which may otherwise be available
to any indemnified party at law or in equity.
20
(f) The
indemnity and contribution provisions contained in this Section 9 and the representations, warranties and other statements of the Company
and the Guarantor contained in this Agreement shall remain operative and in full force and effect regardless of (i) any termination of
this Agreement, (ii) any investigation made by or on behalf of any Underwriter, any person controlling any Underwriter or any affiliate
of any Underwriter or by or on behalf of the Company, its officers or directors or any person controlling the Company and (iii) acceptance
of and payment for any of the Offered Securities.
10. Effectiveness;
Defaulting Underwriters. This Agreement shall become effective upon the execution and delivery hereof by the parties hereto.
If,
on the Closing Date, any one or more of the Underwriters shall fail or refuse to purchase Offered Securities that it or they have agreed
to purchase hereunder on such date, and the aggregate principal amount of Offered Securities which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase is not more than one-tenth of the aggregate principal amount of Offered Securities to be purchased
on such date, the other Underwriters shall be obligated severally in the proportions that the principal amount of Offered Securities set
forth opposite their respective names in Schedule A bears to the aggregate principal amount of Offered Securities set forth opposite the
names of all such non-defaulting Underwriters, or in such other proportions as may be specified by the Representatives with the consent
of the non-defaulting Underwriters, to purchase the Offered Securities which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase on the Closing Date; provided that in no event shall the principal amount of Offered Securities that any
Underwriter has agreed to purchase pursuant to this Agreement be increased pursuant to this Section 10 by an amount in excess of one-ninth
of such principal amount of Offered Securities without the written consent of such Underwriter. If, on the Closing Date, any Underwriter
or Underwriters shall fail or refuse to purchase Offered Securities which it or they have agreed to purchase hereunder on such date and
the aggregate principal amount of Offered Securities with respect to which such default occurs is more than one-tenth of the aggregate
principal amount of Offered Securities to be purchased on the Closing Date, and arrangements satisfactory to the non-defaulting Underwriters
and the Company for the purchase of such Offered Securities are not made within 36 hours after such default, this Agreement shall terminate
without liability on the part of any non-defaulting Underwriter or of the Company or the Guarantor except that the provisions of Sections
5(h), 9 and 12 hereof shall at all times be effective and shall survive such termination. In any such case either the Representatives
or the Company shall have the right to postpone the Closing Date, but in no event for longer than seven days, in order that the required
changes, if any, in the General Disclosure Package, the Final Prospectus or in any other documents or arrangements may be effected. As
used in this Agreement, the term “Underwriter” shall be deemed to include any person substituted for a defaulting Underwriter
under this Section 10. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect of
any default of such Underwriter under this Agreement.
11. Termination.
The Representatives may terminate this Agreement by notice given by the Representatives to the Company, if after the execution and delivery
of this Agreement and prior to the Closing Date (i) there shall have occurred any suspension or limitation of trading in securities generally
on the New York Stock Exchange, or any suspension of trading of any securities of the Guarantor or the Company on any exchange or in the
over-the-counter market; (ii) there shall have occurred any banking moratorium declared by U.S. Federal or New York State authorities
or a material disruption in securities settlement or clearance services in the United States or (iii) there shall have occurred any outbreak
or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial
national or international calamity or emergency if, in the judgment of the Representatives, the effect of any such outbreak, escalation,
declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the offering or sale of and payment
for the Offered Securities.
21
12. Reimbursement
of the Expenses of the Underwriters. If this Agreement shall be terminated by the Representatives pursuant to Section 11 or because
of any failure or refusal on the part of the Company or the Guarantor to comply with the terms or to fulfill any of the conditions of
this Agreement, or if for any reason the Guarantor or the Company shall be unable to perform their obligations under this Agreement, the
Guarantor will reimburse the Underwriters, severally, upon demand for all documented out-of-pocket expenses (including the fees and disbursements
of their counsel) reasonably incurred by such Underwriters in connection with this Agreement or the offering contemplated hereunder.
13. Entire
Agreement. (a) This Agreement, together with any contemporaneous written agreements and any prior written agreements (to the extent
not superseded by this Agreement) that relate to the offering of the Offered Securities, represents the entire agreement between the Company,
the Guarantor and the Underwriters with respect to the preparation of the General Disclosure Package and the Final Prospectus, the conduct
of the offering, and the purchase and sale of the Offered Securities.
(b) This
Agreement supersedes all prior agreements and understandings (whether written or oral) among the Company, the Guarantor and the Underwriters,
or any of them, with respect to the subject matter hereof.
(c) Each
of the Guarantor and the Company acknowledges that in connection with the offering of the Offered Securities: (i) the Underwriters have
acted at arm’s length, are not agents of, and owe no fiduciary duties to, the Company, the Guarantor or any other person,
(ii) the Underwriters owe the Company and the Guarantor only those duties and obligations set forth in this Agreement and prior written
agreements (to the extent not superseded by this Agreement), if any, (iii) the Underwriters may have interests that differ from those
of the Company and the Guarantor and (iv) the Underwriters have not provided any legal, accounting, regulatory or tax advice with respect
to the offering contemplated hereby, and the Company and the Guarantor have consulted their own legal, accounting, regulatory and tax
advisors to the extent they deemed appropriate. Each of the Guarantor and the Company waives to the full extent permitted by applicable
law any claims it may have against the Underwriters arising from an alleged breach of fiduciary duty in connection with the offering of
the Offered Securities.
14. Notices.
All communications hereunder will be in writing and effective only upon receipt and, if sent to the Underwriters will be mailed, emailed,
delivered or telegraphed and confirmed to the Underwriters, c/o J.P. Morgan Securities LLC, 270 Park Avenue, New York, New York 10017,
Attention: Investment Grade Syndicate Desk – 3rd Floor, Facsimile: (212) 834-6081; BofA Securities, Inc., 114 West 47th Street,
NY8-114-07-01, New York, New York 10036, Attention: High Grade Debt Capital Markets Transaction Management/Legal, Facsimile: (212) 901-7881;
and Goldman Sachs & Co. LLC, 200 West Street, New York, New York 10282, Attention: Registration Department, Email: registration-syndops@ny.email.gs.com;
or, if sent to the Guarantor or the Company, will be mailed, delivered or telegraphed and confirmed to it at 100 First Stamford Place,
Suite 700, Stamford, Connecticut 06902, Attention: Corporate Secretary; provided, however, that any notice to an Underwriter
pursuant to Section 9 will be mailed, delivered or telegraphed and confirmed to such Underwriter.
22
15. Representation
of the Underwriters. The Representatives will act for the several Underwriters in connection with this Agreement, and any action under
this Agreement taken by the Representatives will be binding upon all the Underwriters.
16. Recognition
of the U.S. Special Resolution Regimes.
(a) In
the event that any Underwriter that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer
from such Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent
as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were
governed by the laws of the United States or a state of the United States.
(b) In
the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate of such Underwriter becomes subject to a proceeding under
a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Underwriter are permitted to
be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement
were governed by the laws of the United States or a state of the United States.
As used in this Section 16:
“BHC Act Affiliate”
has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k).
“Covered Entity” means
any of the following:
(i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R.
§ 252.82(b);
(ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R.
§ 47.3(b); or
(iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R.
§ 382.2(b).
“Default Right” has
the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“U.S. Special Resolution Regime”
means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall
Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
23
17. USA
Patriot Act. In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)), the Underwriters are required to obtain, verify and record information that identifies their respective clients, including the
Company and the Guarantor, which information may include the name and address of their respective clients, as well as other information
that will allow the Underwriters to properly identify their respective clients.
18. Successors.
This Agreement will inure to the benefit of and be binding upon the parties hereto, and to the benefit of the indemnified parties referred
to in Section 9 hereof, and in each case their respective successors, and no other person will have any right or obligation hereunder.
19. Counterparts.
This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts
shall together constitute one and the same Agreement. Delivery of an executed counterpart of a signature page to this Agreement
by telecopier, facsimile or other electronic transmission (i.e., a “pdf” or “tif”), including any electronic signature
covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other
applicable law, shall be effective as delivery of a manually executed counterpart thereof.
20. Headings.
The headings of the sections of this Agreement have been inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
21. Partial
Unenforceability. The invalidity or unenforceability of any section, paragraph or provision of this Agreement shall not affect
the validity or enforceability of any other section, paragraph or provision hereof. If any section, paragraph or provision of this Agreement
is for any reason determined to be invalid or unenforceable, there shall be deemed to be made such minor changes (and only such minor
changes) as are necessary to make it valid and enforceable.
22. Applicable
Law. This Agreement and any claim, controversy or dispute arising under or related to this Agreement shall be governed
by, and construed in accordance with, the internal laws of the State of New York, without regard to principles of conflicts of laws.
The parties hereto hereby
submit to the non-exclusive jurisdiction of the Federal and state courts in the Borough of Manhattan in The City of New York in any suit
or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
23. Waiver of Jury Trial.
The Company, the Guarantor and the Underwriters each hereby irrevocably waive any right they may have to a trial by jury in respect of
any claim based upon or arising out of this Agreement or the transactions contemplated hereby.
(The remainder of this page has been intentionally left
blank.)
24
If
the foregoing is in accordance with the Underwriters’ understanding of our agreement, kindly sign and return to us one of
the counterparts hereof, whereupon it will become a binding agreement among the Company, the Guarantor, and the several Underwriters in
accordance with its terms.
Very truly yours,
United Rentals (North America),
Inc.
by
/s/ Sybil F. Collins
Name:
Sybil F. Collins
Title:
VP, Treasurer
United Rentals, Inc.
by
/s/ Sybil F. Collins
Name:
Sybil F. Collins
Title:
VP, Treasurer
[Signature Page to Underwriting Agreement]
The foregoing Underwriting Agreement is hereby confirmed
and accepted as of the date first above written.
J.P. MORGAN SECURITIES LLC
by
/s/ Som Bhattacharyya
Name:
Som Bhattacharyya
Title:
Executive Director
BOFA SECURITIES, INC.
by
/s/ Cody Kiechle
Name:
Cody Kiechle
Title:
Managing Director
GOLDMAN SACHS & CO. LLC
by
/s/ Jonathan Zwart
Name:
Jonathan Zwart
Title:
Managing Director
Acting on behalf of themselves and as
Representatives of the several Underwriters.
[Signature Page to Underwriting Agreement]
SCHEDULE A
Underwriter
Principal
Amount
of 2029 Notes to
be Purchased
Principal
Amount
of 2031 Notes to
be Purchased
Principal
Amount
of 2036 Notes to
be Purchased
J.P. Morgan Securities LLC
$ 175,000,000
$ 200,000,000
$ 250,000,000
BofA Securities, Inc.
$ 105,000,000
$ 120,000,000
$ 150,000,000
Goldman Sachs & Co. LLC
$ 105,000,000
$ 120,000,000
$ 150,000,000
Wells Fargo Securities, LLC
$ 63,000,000
$ 72,000,000
$ 90,000,000
Scotia Capital (USA) Inc.
$ 49,000,000
$ 56,000,000
$ 70,000,000
MUFG Securities Americas Inc.
$ 28,000,000
$ 32,000,000
$ 40,000,000
PNC Capital Markets LLC
$ 28,000,000
$ 32,000,000
$ 40,000,000
Regions Securities LLC
$ 28,000,000
$ 32,000,000
$ 40,000,000
TD Securities (USA) LLC
$ 28,000,000
$ 32,000,000
$ 40,000,000
Truist Securities, Inc.
$ 28,000,000
$ 32,000,000
$ 40,000,000
M&T Securities, Inc.
$ 21,000,000
$ 24,000,000
$ 30,000,000
SMBC Nikko Securities America, Inc.
$ 21,000,000
$ 24,000,000
$ 30,000,000
U.S. Bancorp Investments, Inc.
$ 21,000,000
$ 24,000,000
$ 30,000,000
Total:
$ 700,000,000
$ 800,000,000
$ 1,000,000,000
SCHEDULE B
1. General Use Free Writing Prospectus (included in the General Disclosure Package)
“General Use Issuer Free Writing
Prospectus” includes each of the following documents:
1. Final Pricing Term Sheet, dated October 26, 2026, a copy of which is attached hereto as Schedule B-1.
2. Other Information Included in the General Disclosure Package
The following information is also included
in the General Disclosure Package:
None.
SCHEDULE B-1
Filed pursuant to Rule 433
Free Writing Prospectus dated October 26, 2026
Registration Statement No. 333-299595
UNITED
RENTALS (NORTH AMERICA), INC.
Pricing Term Sheet – October 26, 2026
$700,000,000 5.550% Senior Notes due 2029
$800,000,000 5.750% Senior Notes due 2031
$1,000,000,000 6.200% Senior Notes due 2036
This pricing term sheet (this “pricing
term sheet”) is qualified in its entirety by reference to the preliminary prospectus supplement, dated October 23, 2026 (the “preliminary
prospectus supplement”), and the related base prospectus, dated October 23, 2026 (the “base prospectus” and, together
with the preliminary prospectus supplement, including the documents incorporated by reference in the preliminary prospectus supplement
and the base prospectus, the “prospectus”), of United Rentals (North America), Inc. The information in this pricing term sheet
supplements the prospectus and updates and supersedes the information in the prospectus to the extent it is inconsistent with the information
in the prospectus. Capitalized terms used and not defined herein have the meanings assigned in the preliminary prospectus supplement.
Issuer:
United Rentals (North America), Inc. (the “Issuer”)
Guarantor:
United Rentals, Inc. (the “Guarantor”)
Title of Securities:
2029 Notes: 5.550% Senior Notes due 2029 (the “2029 Notes”)
2031 Notes: 5.750% Senior Notes due 2031 (the “2031 Notes”)
2036 Notes: 6.200% Senior Notes due 2036 (the “2036 Notes”
and, together with the 2029 Notes and the 2031 Notes, the “Notes”)
Aggregate Principal Amount:
2029 Notes: $700,000,000
2031 Notes: $800,000,000
2036 Notes: $1,000,000,000
Expected Ratings (Moody’s/S&P)*:
Baa3 / BBB-
Security Type:
Senior Unsecured Notes
Distribution:
SEC Registered
Maturity:
2029 Notes: October 15, 2029
2031 Notes: October 15, 2031
2036 Notes: October 15, 2036
Issue Price:
2029 Notes: 99.922% of the principal amount
2031 Notes: 99.884% of the principal amount
2036 Notes: 99.710% of the principal amount
in each case, plus accrued interest, if any, from October 29,
2026
Coupon:
2029 Notes: 5.550%
2031 Notes: 5.750%
2036 Notes: 6.200%
Benchmark Treasury:
2029 Notes:
4.875% due October 15, 2029
2031 Notes:
5.000% due September 30, 2031
2036
Notes: 4.625% due August 15, 2036
Benchmark Treasury Price / Yield:
2029 Notes: 100-08 ¼ / 4.780%
2031 Notes: 100-23 ¾ / 4.828%
2036 Notes: 97-06 / 4.990%
Spread to Benchmark Treasury:
2029 Notes: +80 bps
2031 Notes: +95 bps
2036 Notes: +125 bps
Yield to Maturity:
2029 Notes: 5.580%
2031 Notes: 5.778%
2036 Notes: 6.240%
Interest Payment Dates:
2029 Notes: April 15 and October 15
2031 Notes: April 15 and October 15
2036 Notes: April 15 and October 15
Record Dates:
2029 Notes: April 1 and October 1
2031 Notes: April 1 and October 1
2036 Notes: April 1 and October 1
First Interest Payment Date:
2029 Notes: April 15, 2027
2031 Notes: April 15, 2027
2036 Notes: April 15, 2027
Optional Redemption:
Make-Whole Call:
Par Call:
2029 Notes: At any time prior to September 15, 2029, at the greater
of (i) 100% of the principal amount being redeemed and (ii) a make-whole price calculated using a discount rate of Treasury plus 15 basis
points.
2031 Notes: At any time prior to September 15, 2031, at the greater
of (i) 100% of the principal amount being redeemed and (ii) a make-whole price calculated using a discount rate of Treasury plus 15 basis
points.
2036 Notes: At any time prior to July 15, 2036, at the greater of (i)
100% of the principal amount being redeemed and (ii) a make-whole price calculated using a discount rate of Treasury plus 20 basis points.
2029 Notes: At any time on or after September 15, 2029, at 100% of
the principal amount being redeemed.
2031 Notes: At any time on or after September 15, 2031, at 100% of
the principal amount being redeemed.
2036 Notes: At any time on or after July 15, 2036, at 100% of the principal
amount being redeemed.
In each case, for each series, the redemption price for any make-whole
call or par call will also include accrued and unpaid interest, if any, on the Notes being redeemed to, but excluding, the redemption
date.
2
Change of Control Triggering Event:
If a Change of Control Triggering Event occurs with respect to a series of Notes, the Issuer will be required, subject to the exceptions described in the preliminary prospectus supplement, to make an offer to purchase the Notes of that series at 101% of their principal amount, plus accrued and unpaid interest, if any, to, but excluding, the date of purchase.
Trade Date:
October 26, 2026
Settlement Date:
October 29, 2026 (T+3)**
CUSIP/ISIN
Numbers:
2029 Notes: 911365BT0 / US911365BT03
2031 Notes: 911365BU7 / US911365BU75
2036 Notes: 911365BV5 / US911365BV58
Denominations:
Minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof.
Bookrunners:
J.P. Morgan Securities LLC
BofA Securities, Inc.
Goldman Sachs & Co. LLC
Wells Fargo Securities, LLC
Co-Managers:
Scotia Capital (USA) Inc.
MUFG Securities Americas Inc.
PNC Capital Markets LLC
Regions Securities LLC
TD Securities (USA) LLC
Truist Securities, Inc.
M&T Securities, Inc.
SMBC Nikko Securities America, Inc.
U.S. Bancorp Investments, Inc.
Use of Proceeds:
Based on an offering of $2.5 billion aggregate principal amount of notes at par, we anticipate that we will receive approximately $2.476 billion in net proceeds from the sale of the notes, after underwriting discounts and commissions and payment of estimated fees and expenses. We expect to use the net proceeds (i) to repay in full the indebtedness outstanding under the Term Loan Facility and (ii) for general corporate purposes, including to reduce borrowings under the ABL Facility and the Accounts Receivable Securitization Facility.
*Note: A securities rating is not a recommendation to buy, sell or
hold securities and may be revised or withdrawn at any time.
** It is expected that delivery of the Notes will
be made against payment therefor on or about October 29, 2026, which will be the third business day following the date hereof (this settlement
cycle being referred to as “T + 3”). Under Rule 15c6-1 of the Securities Exchange Act of 1934, as amended, trades in the secondary
market generally are required to settle in one business day, unless the parties to a trade expressly agree otherwise. Accordingly, purchasers
who wish to trade the Notes on any day prior to one business day before delivery will be required to specify alternative settlement arrangements
at the time of any such trade to prevent a failed settlement and should consult their own advisors.
The Issuer and the Guarantor have filed a registration
statement (including a prospectus) and a preliminary prospectus supplement with the Securities and Exchange Commission (the “SEC”)
for the offering to which this communication relates. Before you invest, you should read the prospectus in that registration statement,
the preliminary prospectus supplement and other documents the Issuer and the Guarantor have filed with the SEC for more complete information
about the Issuer, the Guarantor and this offering. You may get these documents for free by visiting EDGAR on the SEC web site at www.sec.gov.
Alternatively, the Issuer, the Guarantor, any underwriter or any dealer participating in this offering will arrange to send you the prospectus
and the prospectus supplement if you request them by contacting BofA Securities, Inc. toll free at (800) 294-1322 or by emailing BofA
Securities, Inc. at dg.prospectus_requests@bofa.com, contacting Goldman Sachs & Co. LLC toll-free at (866) 471-2526 or by emailing
Goldman Sachs & Co. LLC at prospectus-ny@ny.email.gs.com or contacting J.P. Morgan Securities LLC collect at (212) 834-4533.
Any disclaimer or other notice that may appear
below is not applicable to this communication and should be disregarded. Such disclaimer or notice was automatically generated as a result
of this communication being sent by Bloomberg or another email system.
3
ANNEX I
FORM OF OPINION OF SULLIVAN & CROMWELL LLP
TO BE DELIVERED PURSUANT TO SECTION 7(E)
[ATTACHED]
ANNEX II
FORM OF LETTER OF SULLIVAN & CROMWELL LLP TO
BE DELIVERED PURSUANT TO SECTION 7(E)
[ATTACHED]
ANNEX III
FORM OF OPINION OF JOLI GROSS TO BE DELIVERED PURSUANT
TO SECTION 7(E)
[ATTACHED]
EX-4.1 — EXHIBIT 4.1
EX-4.1
Filename: tm2628016d6_ex4-1.htm · Sequence: 3
Exhibit 4.1
UNITED RENTALS (NORTH AMERICA), INC.
as Company
UNITED
RENTALS, INC.
as Parent Guarantor
INDENTURE
dated as of
October 29, 2026
DEBT SECURITIES
TRUIST
BANK
as Trustee
TRUST
INDENTURE ACT CROSS-REFERENCE TABLE*
Trust
Indenture Act Section
Indenture
Section
310(a)(1)
7.09
(a)(2)
7.09
(a)(3)
N.A.
(a)(4)
N.A.
(a)(5)
7.09
(b)
7.09, 7.10
311
7.13
312(a)
8.01
(b)
1.06
(c)
1.06
313(a)
8.02(a), (b)
(b)(1)
N.A.
(b)(2)
8.02(a)
(c)
8.02(c)
(d)
8.02(c)
314(a)(1)-(3)
8.03
(a)(4)
5.06
(b)
N.A.
(c)(1)
1.03
(c)(2)
1.03
(c)(3)
N.A.
(d)
N.A.
(e)
1.03
(f)
N.A.
315(a)
7.01(a)
(b)
7.02
(c)
7.01(b)
(d)
7.01(a), (c)
(e)
6.08
316(a) (last sentence)
1.01 (Definition of “Outstanding”)
(a)(1)
6.07
(a)(2)
N.A.
(b)
11.02
(c)
9.02, 11.02
317(a)
6.03
(b)
5.05
318(a)
1.08
N.A. means not applicable.
* This Cross-Reference
Table shall not, for any purpose, be deemed to be a part of this Indenture.
TABLE OF CONTENTS
Page
Article I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
1
1.01
Definitions
1
1.02
Other Definitions
11
1.03
Compliance Certificates and Opinions
11
1.04
Form of Documents Delivered to Trustee
11
1.05
Notices to the Trustee, the Company and Holders
12
1.06
Communications with Holders; Waiver of Notice
13
1.07
Incorporation by Reference of the Trust Indenture
Act
14
1.08
Trust Indenture Act Controls
14
1.09
Separability Clause
14
1.10
Benefits of Indenture
14
1.11
Governing Law; Submission to Jurisdiction; Jury
Trial Waiver
14
1.12
Legal Holidays
15
1.13
Electronic Signatures and Counterparts
15
1.14
No Adverse Interpretation of Other Agreements
15
1.15
Rules of Construction
15
1.16
U.S.A. PATRIOT Act
16
Article II
SECURITY FORMS
16
2.01
Forms Generally
16
2.02
Form of Trustee’s Certificate of Authentication
17
2.03
Forms of Securities
17
2.04
Book-Entry Provisions for Global Securities
17
Article III
THE SECURITIES
19
3.01
Amount Unlimited; Issuable in Series
19
3.02
Denominations
23
3.03
Execution, Authentication, Delivery and Dating
23
3.04
Temporary Securities
25
3.05
Registration; Registration of Transfer and Exchange
26
3.06
Mutilated, Destroyed, Lost and Stolen Securities
27
3.07
Payment of Interest; Interest Rights Preserved
28
3.08
Persons Deemed Owners
29
3.09
Cancellation
30
3.10
Computation of Interest; Calculations
30
3.11
CUSIP Numbers, ISINs and Common Code Numbers
30
Article IV
REDEMPTION OF SECURITIES
30
4.01
Applicability of Right of Redemption
30
4.02
Election to Redeem; Notice of Redemption; Partial
Redemption
31
i
4.03
Payment of Securities Called
for Redemption
32
4.04
Deposit of Funds for Redemption of Securities
33
4.05
Mandatory Redemption
33
4.06
Other Transactions
33
Article V
PARTICULAR COVENANTS
34
5.01
Payments of Principal, Premium, if Any, and Interest,
if Any
34
5.02
Office or Agency for Certain Purposes
34
5.03
Waiver of Certain Covenants
34
5.04
Appointments to Fill Vacancies in Trustee’s
Office
35
5.05
Provisions as to Paying Agent
35
5.06
Statement by Officers as to Default
35
5.07
Limitation on Liens
36
5.08
Limitation on Sale and Leaseback Transactions
39
Article VI
REMEDIES OF THE TRUSTEE AND HOLDERS ON EVENT OF DEFAULT
40
6.01
Events of Default
40
6.02
Acceleration of Maturity; Rescission and Annulment
42
6.03
Collection of Indebtedness by Trustee; Trustee May Prove
Debt
42
6.04
Application of Proceeds
44
6.05
Limitations on Suits by Holders
44
6.06
Powers and Remedies Cumulative; Delay or Omission
Not Waiver
44
6.07
Control by Holders; Waiver of Default
45
6.08
Undertaking for Costs
45
Article VII
CONCERNING THE TRUSTEE
46
7.01
Certain Duties and Responsibilities
46
7.02
Notice of Defaults
47
7.03
Certain Rights of Trustee
47
7.04
Not Responsible for Recitals or Issuance of Securities
49
7.05
May Hold Securities
49
7.06
Money Held in Trust
49
7.07
Compensation and Reimbursement
49
7.08
Conflicting Interests
50
7.09
Corporate Trustee Required; Eligibility
50
7.10
Resignation and Removal; Appointment of Successor
51
7.11
Acceptance of Appointment by Successor
52
7.12
Merger, Conversion, Consolidation or Succession
to Business
53
7.13
Preferential Collection of Claims Against the Company
or a Guarantor
53
7.14
Appointment of Authenticating Agent
53
Article VIII
HOLDERS LISTS AND REPORTS BY TRUSTEE AND PARENT GUARANTOR
54
8.01
Company to Furnish Trustee Names and Addresses of
Holders
54
ii
8.02
Reports by Trustee
55
8.03
Reports by the Parent Guarantor
55
Article IX
CONCERNING THE HOLDERS
55
9.01
Evidence of Action Taken by Holders
55
9.02
Proof of Execution of Instruments and of Holding
of Securities
56
9.03
Right of Revocation of Action Taken
57
Article X
HOLDERS’ MEETINGS
57
10.01
Rules for Meetings
57
Article XI
SUPPLEMENTAL INDENTURES
57
11.01
Supplemental Indentures Without Consent of Holders
57
11.02
Supplemental Indentures With Consent of Holders
59
11.03
Effect of Supplemental Indentures
61
11.04
Notation on Securities in Respect of Supplemental
Indentures
61
11.05
Opinion of Counsel and Officer’s Certificate
to Be Given to Trustee
61
Article XII
CONSOLIDATION, MERGER AND SALE
62
12.01
Conditions to the Company’s Consolidation
or Merger, etc.
62
12.02
Conditions to the Parent Guarantor’s Consolidation
or Merger, etc.
63
12.03
Conditions to Any Subsidiary Guarantor’s Consolidation
or Merger, etc.
63
12.04
Documents and Opinion to Be Furnished to the Trustee
64
Article XIII
SATISFACTION AND DISCHARGE OF INDENTURE; DEFEASANCE; UNCLAIMED MONEYS
65
13.01
Satisfaction and Discharge
65
13.02
Defeasance and Covenant Defeasance
67
13.03
Application by Trustee of Funds Deposited for Payment
of Securities
70
13.04
Repayment of Moneys Held by Paying Agent
71
13.05
Return of Unclaimed Moneys
71
13.06
Reinstatement
71
Article XIV
GUARANTEE
71
14.01
Guarantee
71
14.02
Reinstatement
73
14.03
Limitation of the Parent Guarantor’s Liability
73
14.04
Amendment
73
Article XV
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
74
15.01
Personal Immunity from Liability of Incorporators,
Stockholders, etc.
74
* The
Table of Contents is not a part of this Indenture.
iii
INDENTURE,
dated as of October 29, 2026, among United Rentals (North America), Inc., a Delaware corporation, as issuer (the “Company”),
United Rentals, Inc., a Delaware corporation, as parent guarantor (the “Parent Guarantor”), and Truist Bank,
a national banking association, as trustee (the “Trustee”).
WITNESSETH:
WHEREAS,
the Company has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its debt
securities to be issued in one or more series as provided in this Indenture (hereinafter called the “Securities”),
and the Parent Guarantor has duly authorized the execution and delivery of this Indenture to provide for the guarantee by the Parent
Guarantor of the Securities;
WHEREAS,
each series of Securities issued by the Company under this Indenture shall be fully and unconditionally guaranteed by the Parent Guarantor
subject to the provisions under this Indenture;
WHEREAS,
all things necessary to make this Indenture a valid and legally binding agreement of the Company and the Parent Guarantor, in accordance
with its terms, have been done; and
WHEREAS,
the Trustee has the power to enter into this Indenture and to accept and perform its duties as herein created.
NOW
THEREFORE, each party agrees as follows for the benefit of the other parties and for the equal and ratable benefit of the
Holders of the Securities:
Article I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
1.01 Definitions.
Unless the context otherwise requires, the terms
defined in this Section 1.01 shall for all purposes of this Indenture have the meanings hereinafter set forth:
“ABL Credit Agreement” means
the Fifth Amended and Restated Credit Agreement, dated as of July 10, 2025, among the Company and certain of its Subsidiaries, as
Borrowers, Parent Guarantor and certain of its Subsidiaries, as guarantors, Bank of America, N.A., as agent, U.S. swingline lender and
letter of credit issuer, Bank of America, N.A. (acting through its London branch), as ROW swingline lender, Bank of America, N.A. (acting
through its Canada branch), as Canadian swingline lender, Bank of America, N.A. (acting through its Australia branch), as ANZ swingline
lender, Bank of America Europe, Designated Activity Company, as European swingline lender, and the lenders and other financial institutions
party thereto, together with the related documents (including any term loans and revolving loans thereunder, any guarantees and any security
documents, instruments and agreements executed in connection therewith).
“Affiliate” of any specified
Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such
specified Person. For the purposes of this definition, “control” when used with respect to any specified Person means
the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities,
by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative
to the foregoing.
“Applicable Procedures” means,
with respect to any payment, tender, redemption, transfer, exchange, conversion or other corporate action of or for beneficial interests
in any Global Security, the rules and procedures of the Depositary that apply to such payment, tender, redemption, transfer, exchange,
conversion or other corporate action.
“Attributable Debt” in respect
of a Sale/Leaseback Transaction means, as at the time of determination, the present value (discounted at the interest rate implicit in
such transaction, compounded annually) of the total obligations of the lessee for rental payments during the remaining term of the lease
included in such Sale/Leaseback Transaction (including any period for which such lease has been extended); provided, however,
that if such Sale/Leaseback Transaction results in a Capital Lease Obligation, the amount of Debt represented thereby shall be determined
in accordance with the definition of “Capital Lease Obligation.”
“Authenticating
Agent” means any agent of the Trustee that at any time shall be appointed and acting pursuant to the provisions of Section 7.14.
“Authorized Officer” means
the Chairman of the Board of Directors, Chief Executive Officer, Chief Financial Officer, President or Vice President, Treasurer, Assistant
Treasurer, Secretary, Assistant Secretary and/or any other officer of the Company or any Guarantor, as the case may be.
“Board of Directors” means,
as to any Person, the board of directors or managers, sole member or managing member or other governing body, as applicable, of such
Person or any duly authorized committee thereof or any officers duly authorized so to act.
“Board Resolution” means a
copy of a resolution or resolutions certified by the Secretary, an Assistant Secretary or by another appropriate officer or authorized
natural person of such Person, as the case may be, to have been duly adopted by the Board of Directors or any duly authorized committee
thereof and to be in force and effect on the date of such certification.
“Borrowing Base” means:
a) 60% of the value of inventory owned by the Parent Guarantor or any
of its Subsidiaries, other than rental equipment held for sale or rental; plus
b) the lesser of (x) 100% of the net book value of rental equipment
of the Parent Guarantor and its Subsidiaries and (y) 85% of the liquidation value of
the rental equipment of the Parent Guarantor and its Subsidiaries.
in each case, as reasonably determined by the
Company from time to time.
2
“Business Day” means any day
other than a Legal Holiday.
“Capital Lease Obligation”
means any obligation under a lease of (or other agreement conveying the right to use) any property (whether real, personal or mixed)
that is required to be classified and accounted for as a finance lease under GAAP, and, for the purpose of this Indenture, the amount
of such obligation at any date shall be the capitalized amount thereof at such date, determined in accordance with GAAP.
“Capital Stock” means, with
respect to any Person, any and all shares, interests, participations, rights in or other equivalents (however designated) of such Person’s
capital stock or equity participations, and any rights (other than debt securities convertible or exchangeable into capital stock), warrants
or options exchangeable for or convertible into such capital stock and, including with respect to partnerships, limited liability companies
or business trusts, ownership interests (whether general or limited) and any other interest or participation that confers on a Person
the right to receive a share of the profits and losses of, or distributions of assets of, such partnerships, limited liability companies
or business trusts.
“Commission” means the U.S.
Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act or, if at any time after the execution
and delivery of this Indenture such Commission is not existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
“Company” means the corporation
named as the “Company” in the first paragraph of this instrument until a successor Person shall have become such pursuant
to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor Person.
“Consolidated Current Liabilities”
as of the date of determination means the aggregate amount of liabilities of the Parent Guarantor and its consolidated Subsidiaries which
may properly be classified as current liabilities (including taxes accrued as estimated), on a consolidated basis, after eliminating:
(1) all intercompany items between the Parent
Guarantor and any Subsidiary; and
(2) all current maturities of long-term Debt,
all as determined in accordance with GAAP consistently applied.
“Consolidated Net Tangible Assets”
as of any date of determination, means the total amount of assets (less the sum of goodwill and other intangibles, net) which would appear
on a consolidated balance sheet of the Parent Guarantor and its consolidated Subsidiaries, determined on a consolidated basis in accordance
with GAAP, and after giving effect to the acquisition or disposal of any property or assets consummated on or prior to such date and
after deducting therefrom Consolidated Current Liabilities and, to the extent otherwise included, the amounts of:
(1) minority interests in consolidated Subsidiaries
held by Persons other than the Parent Guarantor or a Subsidiary;
(2) treasury stock; and
3
(3) cash set apart and held in a sinking
or other analogous fund established for the purpose of redemption or other retirement of Capital Stock to the extent such obligation
is not reflected in Consolidated Current Liabilities.
“Corporate
Trust Office” means the principal office of the Trustee at which at any time its corporate trust business in respect of this
Indenture shall be administered, which office at the date hereof is located at 2713 Forest Hills Rd SW, Building 2, Floor 2, Wilson,
North Carolina 27893 or such other address as the Trustee may designate from time to time by notice to the Holders and the Company, or
the principal corporate trust office of any successor Trustee (or such other address as such successor Trustee may designate from time
to time by notice to the Holders and the Company).
“Credit Facility” means one
or more debt facilities or agreements (including the ABL Credit Agreement), commercial paper facilities, securities purchase agreements,
indentures or similar agreements, in each case, providing for revolving loans, term loans, receivables financing (including through the
sale of receivables to lenders or other purchasers or to special purpose entities formed to borrow from such lenders or other purchasers
against such receivables), notes, debentures, letters of credit, the issuance and sale of securities or other debt financing, including
any related notes, guarantees, collateral documents, instruments and agreements executed in connection therewith and in each case, as
amended, extended, renewed, restated, supplemented or otherwise modified (in whole or in part, and without limitation as to amount, terms,
conditions, covenants and other provisions) from time to time, and any agreements, indentures or other instruments (and related documents)
governing any form of Debt incurred to refinance or replace, in whole or in part, the borrowings and commitments at any time outstanding
or permitted to be outstanding under such facility or agreement or successor facility or agreement whether by the same or any other lender
or holder of Debt or group of lenders or holders of Debt and whether the same obligor or different obligors and whether for the same
or a different amount (including an increased amount) or on the same or different terms, conditions, covenants and other provisions.
“Currency Agreement” means
any foreign exchange contract, currency swap agreement or other similar agreement with respect to currency values.
“Debt” means any indebtedness
for borrowed money.
“debt securities” means notes,
bonds, debentures or other similar evidences of indebtedness for borrowed money.
“default” means, with respect
to the Securities of any series, any event which is, or after notice or lapse of time or both would become, an Event of Default with
respect to Securities of such series; provided that any default that results solely from the taking of an action that would
have been permitted but for the continuation of a previous default will be deemed to be cured if such previous default is cured prior
to becoming an Event of Default.
“Depositary” means, with respect
to the Securities of any series issuable or issued in whole or part in the form of one or more Global Securities, the Person designated
as Depositary pursuant to Section 3.01 until a successor Depositary shall have become such pursuant to the applicable provisions
of this Indenture, and thereafter “Depositary” shall mean or include each Person who is then a Depositary hereunder, and
if at any time there is more than one such Person, “Depositary” as used with respect to the Securities of any series shall
mean the Depositary with respect to the Securities of that series.
4
“Depositary Custodian” means
the Trustee as custodian with respect to the Global Securities or any successor entity thereto.
“Dollar” and “$”
mean the coin or currency of the United States that, at the time of payment, is legal tender for the payment of public and private debts.
“Exchange Act” means the U.S.
Securities Exchange Act of 1934, as amended.
“Foreign Currency” means a
currency issued by the government of any country other than the United States of America.
“Fuel Hedging Agreement” means
any forward contract, swap, option, hedge or other similar financial agreement designed to protect against fluctuations in fuel prices.
“GAAP” means, unless otherwise
specified with respect to any Securities pursuant to Section 3.01, such accounting principles as are generally accepted in
the United States, as of the date or time of any computation required hereunder.
“Global Security” means a Security
evidencing all or part of a series of Securities issued to the Depositary for such series in accordance with Section 2.04
and Section 3.03.
“Government Obligations” means,
with respect to the Securities of any series, unless otherwise specified with respect to such Securities pursuant to Section 3.01,
securities that are (i) if such Securities are denominated in the currency of the United States, direct obligations of the United
States or, if such Securities are denominated in a Foreign Currency, direct obligations of the other government or governments that issued
the Foreign Currency in which the relevant Security shall be payable, in each case where the payment or payments thereunder are supported
by the full faith and credit of such government or governments or (ii) if such Securities are denominated in the currency of the
United States, obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States or,
if such Securities are denominated in a Foreign Currency, obligations of a Person controlled or supervised by and acting as an agency
or instrumentality with such other government or governments described in the foregoing clause (i) with respect to such Securities,
in each case where the timely payment or payments thereunder are unconditionally guaranteed as a full faith and credit obligation by
the United States or such other government or governments, respectively, and which, in the case of clause (i) or (ii), are not callable
or redeemable at the option of the issuer or issuers thereof, and shall also include a depository receipt issued by a bank or trust company
as custodian with respect to any such Government Obligation or a specific payment of interest on, principal of or other amount with respect
to any such Government Obligation held by such custodian for the account of the holder of a depository receipt; provided that
(except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect of the Government Obligation or the specific payment of interest on or principal
of or other amount with respect to the Government Obligation evidenced by such depository receipt.
5
“Guarantee” means the guarantee
by the Parent Guarantor of the Company’s obligations under the Securities and this Indenture as provided in Article XIV
or a guarantee by any other Guarantor substantially in the form provided by Article XIV, in each case, as such guarantee
may from time to time be modified by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof,
unless, in each case, as otherwise specified as contemplated by Section 3.01 with respect to any series of Securities.
“Guarantors” means, with respect
to the Securities of any series, the Parent Guarantor and each other Person, if any, that may be designated in accordance with Section 3.01(23)
as a guarantor with respect to any such series, until, in each case, any such Person is released as a guarantor with respect to the Securities
of such series pursuant to the terms of this Indenture and, to the extent applicable, any supplemental indenture hereto.
“Hedging Obligations” of any
Person means the obligations of such Person pursuant to any Interest Rate Protection Agreement, Currency Agreement or Fuel Hedging Agreement.
“Holder” means a Person in
whose name such Security is registered in the Security Register.
“Indenture” means this indenture
as originally executed or as it may from time to time be supplemented or amended by one or more supplemental indentures entered into
pursuant to the applicable provisions hereof and shall include the form and terms of particular series of Securities established as contemplated
by Section 3.01; provided, however, that if at any time more than one Person is acting as Trustee under this
Indenture due to the appointment of one or more separate Trustees for any one or more separate series of Securities, “Indenture”
shall mean, with respect to such series of Securities for which any such Person is Trustee, this instrument as originally executed or
as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable
provisions hereof and shall include the terms of particular series of Securities for which such Person is Trustee established as contemplated
by Section 3.01, exclusive, however, of any provisions or terms which relate solely to other series of Securities for which
such Person is not Trustee, regardless of when such terms or provisions were adopted, and exclusive of any provisions or terms adopted
by means of one or more indentures supplemental hereto executed and delivered after such person had become such Trustee, but to which
such person, as such Trustee, was not a party; provided, further, that in the event that this Indenture is supplemented
or amended by one or more indentures supplemental hereto which are only applicable to certain series of Securities, the term “Indenture”
for a particular series of Securities shall only include the supplemental indentures applicable thereto.
“interest,” when used with
respect to an Original Issue Discount Security that by its terms bears interest only after maturity, means interest payable after maturity.
“Interest Payment Date,” when
used with respect to any Security, means the Stated Maturity of an installment of interest on such Security.
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“Interest Rate Protection Agreement”
means, with respect to any Person, any arrangement with any other Person whereby, directly or indirectly, such Person is entitled to
receive from time to time periodic payments calculated by applying either a floating or a fixed rate of interest on a stated notional
amount in exchange for periodic payments made by such Person calculated by applying a fixed or a floating rate of interest on the same
notional amount and shall include interest rate swaps, caps, floors, collars and similar agreements.
“Legal Holiday” means a Saturday,
a Sunday or a day on which banking institutions in the City of New York (or, in the case of a Security denominated in a Foreign Currency,
any other place of payment for such Security) are authorized or required by law, regulation or executive order to remain closed.
“Lien” means any mortgage,
charge, pledge, lien (statutory or other), security interest, hypothecation, assignment for security, claim, or preference or priority
or other encumbrance upon or with respect to any property of any kind.
“maturity” when used with respect
to any Security, means the date on which the principal (or a portion thereof) of such Security becomes due and payable as therein or
herein provided, whether at Stated Maturity or by declaration of acceleration, notice of redemption or otherwise.
“Officer’s Certificate”
means a certificate signed by an Authorized Officer.
“Opinion of Counsel” means
a written opinion of counsel, who may be counsel for or an employee of the Company or any Guarantor.
“Original Issue Discount Security”
means any Security that provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration
of the maturity thereof pursuant to Section 6.02.
“Outstanding,” when used with
reference to Securities, means, as of any particular time, all Securities authenticated and delivered by the Trustee under this Indenture,
except:
(i) Securities,
or portions thereof, theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;
(ii) Securities,
or portions thereof, for the payment or redemption of which moneys in the currency in which such Securities are then specified as payable
or, as provided in Section 13.01 or Section 13.02 hereof, Government Obligations, as the case may be, in the
necessary amount shall have been deposited in trust with the Trustee or with any Paying Agent (other than the Company) or shall have
been set aside and segregated in trust by the Company or any Guarantor (if the Company or any Guarantor shall act as its own Paying Agent)
(in each case, except as provided in Section 13.01 or Section 13.02, as the case may be); provided that
if such Securities are to be redeemed prior to the maturity thereof, notice of such redemption shall have been given as provided in Article IV
or provision satisfactory to the Trustee shall have been made for giving such notice;
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(iii) Securities
in lieu of or in substitution for which other Securities shall have been duly authenticated and delivered pursuant to Section 3.06;
(iv) Securities
paid pursuant to the third paragraph of Section 3.06; and
(v) Securities
exchanged for or converted into common stock, preferred stock or other equity securities pursuant to or in accordance with this Indenture
if the terms of such Securities provide for exchangeability or convertibility pursuant to Section 3.01;
provided,
however, that, in determining whether the Holders of the requisite principal amount of a series of Outstanding Securities have
taken any action or given any request, demand, authorization, direction, notice, consent or waiver hereunder or whether a quorum is present
at a meeting of Holders, (A) the principal amount of an Original Issue Discount Security that shall be deemed to be Outstanding
shall be the amount of the principal thereof that would be due and payable as of the date of such determination upon acceleration of
the maturity thereof pursuant to Section 6.02; (B) the principal amount of a Security denominated in one or more Foreign
Currencies or currency units which shall be deemed to be Outstanding shall be the U.S. dollar equivalent, determined as of such date
in the manner provided as contemplated by Section 3.01, of the principal amount of such Security; and (C) Securities
owned by the Company or any other obligor upon the Securities of such series or any Affiliate of the Company or of such other obligor
shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent, waiver or other action, only Securities of such series that
a Responsible Officer of the Trustee actually knows to be so owned shall be so disregarded. Securities so owned which have been pledged
in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right
so to act with respect to such Securities and that the pledgee is not the Company or any other obligor upon such Securities or any Affiliate
of the Company or of such other obligor. In case of a dispute as to such right, any decision by the Trustee, taken upon the advice of
counsel, shall be entitled to protection pursuant to Section 315(d) of the Trust Indenture Act.
“Parent Guarantee” means, with
respect to each series of Securities, a Guarantee by the Parent Guarantor of the Company’s obligations with respect to the Securities
of such series.
“Parent Guarantor” means the
Person named as the “Parent Guarantor” in the first paragraph of this instrument until a successor Person shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter “Parent Guarantor” shall mean such successor
Person.
“Paying Agent” means any Person
authorized (including any Affiliate) by the Company or any Guarantor, as applicable, to pay the principal of, premium, if any, and interest,
if any, on any Securities on behalf of the Company or any such Guarantor, as applicable.
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“Person” or “person”
means an individual, a corporation, a limited liability company, a partnership, a trust, a joint venture, an association, a joint stock
company, an unincorporated organization or a government or any agency or political subdivision thereof.
“Principal Property” means
(1) any office building, distribution facility, warehouse or similar facility (including fixtures incorporated into such facility
and including any parcel of real estate or group of contiguous parcels of real estate upon which it is erected) and (2) any parcel
of real estate or group of contiguous parcels of real estate, in the case of each of clauses (1) and (2), that is owned by the Parent
Guarantor or any of its Subsidiaries and located within the United States, and that individually has a book value on the date of which
the determination is being made, without deduction of any depreciation reserves, that exceeds 2% of Consolidated Net Tangible Assets,
other than any such office building, distribution facility, warehouse or similar facility or parcel or group of contiguous parcels that
the chief executive officer, an executive vice president, a senior vice president or a vice president and the chief financial officer
of the Parent Guarantor determines in good faith is not material to the business of the Parent Guarantor and its Subsidiaries taken as
a whole.
“Redemption Date,” when used
with respect to any Security to be redeemed, in whole or in part, means the date fixed for such redemption by or pursuant to this Indenture
or the terms of such Security, as applicable (and, unless the context otherwise requires, from and after any delay in such date by the
Company in accordance with Section 4.02, shall mean such date as so delayed).
“Regular Record Date” for the
interest payable on any Interest Payment Date on the Securities of any series means the day specified for that purpose as contemplated
by Section 3.01, whether or not such day shall be a Business Day.
“Responsible Officer,” when
used with respect to the Trustee, means any vice president, assistant vice president, senior associate, associate or trust officer of
the Trustee or any other officer of the Trustee customarily performing functions similar to those performed by any of the above designated
officers who, in all cases, at the time shall have direct responsibility for the administration of this Indenture and also means, with
respect to a particular corporate trust matter relating to this Indenture, any other officer to whom such matter is referred because
of his or her knowledge of and familiarity with the particular subject.
“Sale/Leaseback Transaction”
means an arrangement relating to any Principal Property owned by the Parent Guarantor or a Subsidiary of the Parent Guarantor whereby
the Parent Guarantor or a Subsidiary of the Parent Guarantor transfers such Principal Property to a Person (other than the Parent Guarantor
or a Subsidiary of the Parent Guarantor) and the Parent Guarantor or a Subsidiary of the Parent Guarantor leases it from such Person.
“Securities Act” means the
U.S. Securities Act of 1933, as amended.
“Security” or “Securities”
means one or more, as the case may be, of the Company’s debt securities authenticated and delivered under this Indenture.
“Significant Subsidiary” means
any Subsidiary that would be a “significant subsidiary” as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated
pursuant to the Securities Act.
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“Special Record Date” for the
payment of any Defaulted Interest on the Securities of any series means a date fixed by the Company pursuant to Section 3.07.
“Stated Maturity,” when used
with respect to any Security or any installment of principal thereof or interest thereon, means the date specified in such Security as
the fixed date on which the principal of such Security or such installment of principal or interest, as the case may be, is due and payable.
“stock” includes any and all
shares, interests, participations or other equivalents (however designated) of corporate stock.
“Subsidiary” means, as to any
Person, (i) a corporation a majority of whose Voting Stock is at the time, directly or indirectly, owned by such Person, by one
or more Subsidiaries of such Person or by such Person and one or more Subsidiaries thereof; and (ii) any other Person (other than
a corporation), including a partnership, limited liability company, business trust or joint venture, in which such Person, one or more
Subsidiaries thereof or such Person and one or more Subsidiaries thereof, directly or indirectly, at the date of determination thereof,
has a majority ownership interest entitled to vote in the election of directors, managers or trustees thereof (or other Person performing
similar functions). For purposes of this definition, any directors’ qualifying shares or investments by foreign nationals mandated
by applicable law shall be disregarded in determining the ownership of a Subsidiary.
“Subsidiary Guarantor” means,
with respect to the Securities of any series, any Person that may be designated in accordance with Section 3.01(23) as a
guarantor with respect to any such series, until, in each case, any such Person is released as a guarantor with respect to the Securities
of such series pursuant to the terms of this Indenture and, to the extent applicable, any indenture supplemental hereto.
“Trust Indenture Act” means
the U.S. Trust Indenture Act of 1939, as amended.
“Trustee” means the Person
named as the “Trustee” in the first paragraph of this Indenture until a successor Trustee shall have become such pursuant
to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include each Person who is then a
Trustee hereunder, and if at any time there is more than one such Person, “Trustee” as used with respect to the Securities
of any series shall mean the Trustee with respect to Securities of that series.
“U.S.A. PATRIOT Act” means
Title III of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of
2001.
“Voting Stock” means any class
or classes of Capital Stock pursuant to which the holders thereof have the general voting power under ordinary circumstances to elect
a majority of the board of directors, managers or trustees of any Person (irrespective of whether or not, at the time, stock of any other
class or classes shall have, or might have, voting power by reason of the happening of any contingency).
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1.02 Other
Definitions.
Term
Defined
in Section
“covenant defeasance”
13.02(c)
“Defaulted Interest”
3.07
“defeasance”
13.02(b)
“Event of Default”
6.01
“incur”
5.07
“notice of default”
6.01(3)
“obligor”
1.07
“Permitted Lien”
5.07
“Security Register”
3.05
“Security Registrar”
3.05
1.03 Compliance
Certificates and Opinions.
(a) Upon
any application or request by the Company or any Guarantor to the Trustee to take any action under any provision of this Indenture, the
Company shall furnish to the Trustee an Officer’s Certificate stating that all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with and an Opinion of Counsel stating that, in the opinion of such counsel,
all such conditions precedent, if any, have been complied with.
(b) Such
Officer’s Certificate or Opinion of Counsel with respect to compliance with a condition or covenant provided for in this Indenture
(other than the statement required by Section 5.06) shall also include:
(i) a
statement that such Authorized Officer or counsel has read such covenant or condition;
(ii) a
brief statement as to the nature and scope of such examination or investigation upon which the statements or opinions contained in such
Officer’s Certificate or Opinion of Counsel are based;
(iii) a
statement that, in the opinion of such Person, such Person has made such examination or investigation as is necessary to enable such
Person to express an informed opinion as to whether such covenant or condition has been complied with; and
(iv) a
statement as to whether or not, in the opinion of such Person, such condition or covenant has been complied with.
1.04 Form of
Documents Delivered to Trustee.
(a) In
any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary
that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by
only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons
as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
11
(b) Any
certificate, statement or opinion of an Authorized Officer may be based, insofar as it relates to legal matters, upon a certificate or
opinion of or representations by counsel, unless such Authorized Officer knows, or in the exercise of reasonable care should know, that
the certificate or opinion or representation with respect to the matters upon which the certificate, statement or opinion is based is
erroneous. Any certificate, statement or Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate,
statement or opinion of or representations by an officer or officers of the Company stating that the information with respect to such
factual matters is in the possession of the Company, unless such counsel knows, or in the exercise of reasonable care should know, that
the certificate, statement or opinion or representation with respect to such matters is erroneous.
(c) Where
any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and form one instrument.
1.05 Notices
to the Trustee, the Company and Holders. Any notice, request, direction, consent or communication made pursuant to the provisions
of this Indenture or the Securities is duly given if in writing and delivered in person or by e-mail, first-class mail (registered or
certified, return receipt requested), electronically or overnight air courier guaranteeing next day delivery, addressed as follows:
If to the Company or the Parent Guarantor:
United Rentals, Inc.
100 First Stamford Place, Suite 700
Stamford, Connecticut 06902
Attention: Treasurer
E-mail: scollins3@ur.com
Telecopy No.: 203-618-7202
with a copy to
United Rentals, Inc.
100 First Stamford Place, Suite 700
Stamford, Connecticut 06902
Attention: General Counsel
Email: jgross@ur.com
Telecopy No.: 203-621-3266
With a copy (which shall not constitute notice) to:
Sullivan & Cromwell LLP
125 Broad Street
New York, NY 10004
Attention: S. Neal McKnight
E-mail: Mcknightn@sullcrom.com
Telecopy No.: 212-558-3588
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If to the Trustee:
Truist
Bank
2713 Forest Hills Rd SW
Building 2, Floor 2
Wilson, North Carolina 27893
Attention: Patrick Giordano – Client Manager / United Rentals
E-mail: Patrick.giordano@truist.com
Phone: 904-463-6762
The Company, any Guarantor or the Trustee by notice
to each other may designate additional or different addresses for subsequent notices or communications.
All notices and communications (other than those
sent to Holders or the Trustee) will be deemed to have been duly given: at the time so delivered, if personally delivered or if e-mailed;
five calendar days after being deposited in the mail, postage prepaid, if mailed; and the next Business Day after timely delivery to
the courier, if sent by overnight air courier guaranteeing next day delivery. All notices and communications to the Trustee will be deemed
given upon actual receipt of such by a Responsible Officer of the Trustee or, if e-mailed, upon delivery.
Any notice or communication to a Holder may be
(a) e-mailed and be deemed duly given at the time so delivered, (b) mailed by first-class mail, certified or registered, return
receipt requested and be deemed duly delivered five calendar days after being deposited in the mail, or (c) mailed by overnight
air courier guaranteeing next day delivery and be deemed duly delivered the next Business Day, in each case, to its e-mail or physical
address shown on the register kept by the Security Registrar. Any notice or communication will also be so e-mailed or mailed to any Person
described in Section 313(c) of the Trust Indenture Act, to the extent required by the Trust Indenture Act. Failure to e-mail
or mail a notice or communication to a Holder or any defect in it will not affect its sufficiency with respect to other Holders.
In each case, if a notice or communication is
e-mailed or mailed in the manner provided above within the time prescribed, it is duly given, whether or not the addressee receives it.
Notwithstanding any other provision of this Indenture
or any Security, where this Indenture or any Security provides for notice of any event or any other communication (including any notice
of redemption or repurchase) to a holder of a Global Security (whether by e-mail, mail or otherwise), such notice shall be sufficiently
given if given to the Depositary (or its designee) pursuant to Applicable Procedures.
1.06 Communications
with Holders; Waiver of Notice.
(a) Holders
may communicate pursuant to Section 312(b) of the Trust Indenture Act with other Holders with respect to their rights under
this Indenture or the Securities. The Company, the Trustee and the Security Registrar shall have the protection of Section 312(c) of
the Trust Indenture Act.
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(b) Where
this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed
with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
1.07 Incorporation
by Reference of the Trust Indenture Act. Whenever this Indenture refers to a provision of the Trust Indenture Act, the provision
is incorporated by reference in and made a part of this Indenture.
The following Trust Indenture Act term used in
this Indenture has the following meaning:
“obligor” on the Securities
of any series means the Company, any Guarantor of the Securities of any series, including the Parent Guarantor, and any successor obligor
upon the Securities.
All other terms used in this Indenture that are
defined by the Trust Indenture Act, defined by reference in the Trust Indenture Act to another statute or defined by a Commission rule under
the Trust Indenture Act and not otherwise defined herein are used herein as so defined.
1.08 Trust
Indenture Act Controls. If any provision hereof limits, qualifies or conflicts with a provision of the Trust Indenture Act that is
required under such Act to be a part of and govern this Indenture, the latter provision shall be deemed to be a part of and govern this
Indenture and shall control. If any provision of this Indenture modifies or excludes any provision of the Trust Indenture Act that may
be so modified or excluded, the latter provision shall be deemed to apply to this Indenture as so modified or to be excluded, as the
case may be.
1.09 Separability
Clause. In case any provision in this Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
1.10 Benefits
of Indenture. Nothing in this Indenture or in the Securities, express or implied, shall give to any Person, other than the parties
hereto and their successors hereunder and the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture.
1.11 Governing
Law; Submission to Jurisdiction; Jury Trial Waiver. This Indenture, the Securities and any Guarantee of the Securities shall be governed
by, and construed in accordance with, the laws of the State of New York, as applied to contracts made and performed within the State
of New York, without regard to principles of conflicts of law that would result in the application of the laws of another jurisdiction.
Any legal suit, action or proceeding arising out of or based upon this Indenture or the transactions contemplated hereby may be instituted
in any state or Federal court in the Borough of Manhattan, New York, New York, and any appellate court from any thereof, and each of
the parties hereto and the Holders, by acceptance of the Securities, hereby irrevocably submits to the exclusive jurisdiction of such
courts in any such suit, action or proceeding.
EACH OF THE COMPANY, THE PARENT GUARANTOR, ANY
GUARANTOR, THE TRUSTEE AND EACH HOLDER OF A SECURITY, BY ITS ACCEPTANCE THEREOF, HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES
OR THE TRANSACTIONS CONTEMPLATED HEREBY.
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1.12 Legal
Holidays. Unless otherwise provided by, or pursuant to, Section 3.01, in any case where any Interest Payment Date, Redemption
Date or Stated Maturity of any Security is a Legal Holiday, then (notwithstanding any other provision of this Indenture or of the Securities)
payment of the principal of, premium, if any, or interest, if any, on such Security need not be made on such date, but may be made on
the next succeeding Business Day with the same force and effect as if made on the Interest Payment Date or Redemption Date, or at the
Stated Maturity; provided that no additional interest shall accrue with respect to the payment due on such date for the period
from and after such Interest Payment Date, Redemption Date or Stated Maturity, as the case may be, to the next succeeding Business Day.
1.13 Electronic
Signatures and Counterparts. This Indenture may be executed in any number of counterparts, each of which shall be an original, and
all of which taken together constitute one instrument. Signatures of the parties hereto transmitted by electronic PDF shall be deemed
to be their original signatures for all purposes. This Indenture may be executed by way of electronic signatures, and any such electronic
signature shall have the same binding effect as a physical signature. For the avoidance of doubt, the words “execution,”
“signed,” “signature,” “delivery” and words of like import in or relating to this Indenture or any
document to be signed in connection with this Indenture shall be deemed to include images of manually executed signatures transmitted
by electronic format (including, without limitation, “pdf,” “tif” or “jpg”) and electronic signatures
(including, without limitation, DocuSign and AdobeSign), deliveries or the keeping of records in electronic form, each of which shall
be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper
based recordkeeping system, as the case may be, and the parties hereto consent to conduct the transactions contemplated hereunder by
electronic means; provided that, notwithstanding anything herein to the contrary, the Trustee is not under any obligation to agree
to accept electronic signatures in any form or in any format unless expressly agreed to by the Trustee, pursuant to reasonable procedures
approved by the Trustee.
1.14 No
Adverse Interpretation of Other Agreements. This Indenture may not be used to interpret any other indenture, loan or debt agreement
of the Company, any Guarantor, including the Parent Guarantor, or any other Person. Any such indenture, loan or debt agreement may not
be used to interpret this Indenture.
1.15 Rules of
Construction. Unless the context otherwise requires:
(a) a
term has the meaning assigned to it;
(b) an
accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;
(c) “or”
is not exclusive;
15
(d) words
in the singular include the plural, and words in the plural include the singular;
(e) “will”
shall be interpreted to express a command;
(f) provisions
apply to successive events and transactions;
(g) “including”
means “including without limitation”;
(h) references
to sections of, or rules under, the Securities Act, the Exchange Act and the Trust Indenture Act will be deemed to include substitute,
replacement or successor sections or rules adopted by the Commission from time to time; and
(i) “herein,”
“hereof” and other words of similar import refer to this Indenture as a whole and not to any particular article, section
or other subdivision of this Indenture.
The article and section headings and the table
of contents are for convenience only and shall not affect the construction hereof.
1.16 U.S.A.
PATRIOT Act. The Company acknowledges that, in accordance with Section 326 of the U.S.A. PATRIOT Act, the Trustee, like all
financial institutions and in order to help fight the funding of terrorism and money laundering, is required to obtain, verify and record
information that identifies each person or legal entity that establishes a relationship or opens an account with the Trustee. The parties
to this Indenture agree that they will provide the Trustee with such information as it may request in order for the Trustee to satisfy
the requirements of the U.S.A. PATRIOT Act.
Article II
SECURITY FORMS
2.01 Forms
Generally. The Securities of each series shall be in substantially the form as shall be established by or pursuant to a Board Resolution,
and set forth in an Officer’s Certificate, or established in one or more supplemental indentures, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or permitted by this Indenture and may have such letters, numbers
or other marks of identification and such notations, legends or endorsements placed thereon as may be required by the Depositary or as
may be required to comply with any applicable law or with any rule or regulation made pursuant thereto or with any rule or
regulation of any securities exchange or automated quotation system on which the Securities of any series may be listed or quoted, or
to conform to usage, or to indicate any special limitations or restrictions to which any particular series of Securities are subject
or as may, consistently herewith, be determined by the Authorized Officers executing such Securities as evidenced by their execution
of the Securities. If the form of Securities of any series is established by action taken pursuant to one or more Board Resolution(s),
a copy of an appropriate record of any such action taken shall be certified by an Authorized Officer of the Company in an Officer’s
Certificate, as the case may be, and delivered to the Trustee at or prior to the delivery of the written order(s) contemplated by
Section 3.03 for the authentication and delivery of the initial Securities of each series. Any such Board Resolution or record
of such action shall have attached thereto a true and correct copy of the form of Security approved by or pursuant to such Board Resolution(s).
The Trustee’s certificate of authentication shall be in substantially the form set forth in Section 2.02.
16
The definitive Securities of each series shall
be typewritten, printed, lithographed or engraved or produced by any combination of these methods or may be produced in any other manner,
including any manner permitted by the rules of any securities exchange or automated quotation system on which the Securities of
such series may be listed or quoted, all as determined by the Authorized Officers executing such Securities, as evidenced by their execution
of such Securities.
2.02 Form of
Trustee’s Certificate of Authentication. The Trustee’s certificate of authentication on all Securities shall be in substantially
the following form:
TRUSTEE’S
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated
therein issued under the within-mentioned Indenture.
TRUIST BANK, as Trustee
By:
Authorized Signatory
Dated:
2.03 Forms
of Securities. Each Security shall be in one of the forms approved from time to time by or pursuant to a Board Resolution or one
or more supplemental indentures that shall set forth the information required by Section 3.01. Unless otherwise provided
as contemplated by Section 3.01 with respect to any series of Securities, the Securities of each series shall be issuable
in registered form without coupons.
2.04 Book-Entry
Provisions for Global Securities. If the Company shall establish, pursuant to or as contemplated by Section 3.01, that
the Securities of a series are to be issued in whole or in part in the form of one or more Global Securities, then the Company shall
execute and the Trustee shall, in accordance with Section 3.03, authenticate and deliver one or more Global Securities in
temporary or permanent form that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount
of the Outstanding Securities of such series to be represented by one or more Global Securities, (ii) shall be registered, if in
registered form, in the name of the Depositary for such Global Security or Global Securities or the nominee of such Depositary, (iii) shall
be delivered by the Trustee to such Depositary or pursuant to such Depositary’s instruction and (iv) shall bear a legend to
substantially the following effect:
“THIS SECURITY IS A GLOBAL SECURITY WITHIN
THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY
IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE AND, UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE REGISTERED FORM,
THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO THE NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY
OR TO A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.”
17
Each Depositary designated pursuant to, or as
contemplated by Section 3.01, for a Global Security to be delivered in the United States must, at the time of its designation
and at all times while it serves as Depositary, be a clearing agency registered under the Exchange Act and any other applicable statute
or regulation.
If at any time the Depositary for the Securities
of a series notifies the Company that it is unwilling or unable to continue as Depositary for the Securities of such series, or if at
any time the Depositary for the Securities of such series shall no longer be a clearing agency registered under the Exchange Act and
any other applicable statute or regulation at a time when the Depositary is required to be so registered to act as depositary, the Company
shall use its commercially reasonable efforts to appoint a successor Depositary with respect to the Securities of such series. If a successor
Depositary for the Securities of such series is not appointed by the Company within 90 days after the Company receives such notice or
becomes aware of such ineligibility, the Company’s election pursuant to Section 3.01(13) shall no longer be effective
with respect to the Securities of such series and the Company shall execute and the Trustee, upon receipt of a written order of the Company
for the authentication and delivery of definitive Securities of such series, shall authenticate and deliver as specified in such written
order(s), Securities of such series in definitive form and in an aggregate principal amount equal to the principal amount of the Global
Security or Securities representing such series in exchange for such Global Security or Securities.
The Company may, at any time and in its sole discretion
determine, that the Securities of any series issued in the form of one or more Global Securities shall no longer be represented by such
Global Security or Securities. In such event, the Company shall execute and the Trustee, upon receipt of a written order of the Company
for the authentication and delivery of definitive Securities of such series, shall authenticate and deliver as specified in such written
order(s), Securities of such series in definitive form and in an aggregate principal amount equal to the principal amount of the Global
Security or Securities representing such series in exchange for such Global Security or Securities.
18
If specified pursuant to Section 3.01
with respect to a series of Securities, the Depositary for such series of Securities may surrender a Global Security for such series
of Securities in exchange in whole or in part for Securities of such series in definitive form on such terms as are acceptable to the
Company and such Depositary. Thereupon, the Company shall execute and the Trustee shall, upon receipt of a written order of the Company
as described in Section 3.03, authenticate and deliver, without service charge:
(1) to
each Person specified by such Depositary, a new Security or Securities of the same series,
of any authorized denomination as requested by such Person, in aggregate principal amount
equal to, and in exchange for, such Person’s beneficial interest in the Global Security;
and
(2) to
such Depositary, a new Global Security in a denomination equal to the difference, if any,
between the principal amount of the surrendered Global Security and the aggregate principal
amount of Securities so delivered to Holders thereof.
In any exchange provided for in any of the preceding
three paragraphs, the Company shall execute and the Trustee, upon receipt of a written order of the Company as described in Section 3.03,
shall authenticate and deliver, Securities in definitive registered form in authorized denominations.
Upon the exchange of a Global Security for Securities
in definitive form, such Global Security shall be cancelled by the Trustee. Securities issued in exchange for a Global Security pursuant
to Section 3.05 shall be registered in such names and in such authorized denominations as the Depositary for such Global
Security shall instruct the Trustee. The Trustee shall deliver such Securities to the Persons in whose names such Securities are so registered.
Ownership of beneficial interests in a Global
Security shall be shown on, and transfers of such beneficial interests shall be effected only through, records maintained by the Depositary,
with respect to interests held by participants in the Depositary, and through records maintained by such participants, with respect to
interests held through such participants, in each case in accordance with the Applicable Procedures.
Notwithstanding anything to the contrary in this
Indenture, if any previously authenticated and delivered Global Securities are cancelled and Securities in definitive form are authenticated
and delivered in exchange thereof pursuant to this Section 2.04, the Company shall not be required to deliver any Officer’s
Certificate(s) or Opinion of Counsel to the Trustee.
The Company initially appoints the Trustee to
act as the Security Registrar and Paying Agent and to act as Depositary Custodian with respect to the Global Securities. The Company
has entered into (or will enter into in connection with the issuance of any series of Securities) a letter of representations with the
Depositary in the form provided by the Depositary and the Trustee and each agent of the Company or the Trustee are hereby authorized
to act in accordance with such letter and Applicable Procedures.
Article III
THE SECURITIES
3.01 Amount
Unlimited; Issuable in Series. The aggregate principal amount of Securities that may be authenticated and delivered under this Indenture
is unlimited.
19
The Securities may be issued in one or more series,
and each such series shall, except as otherwise provided by this Section 3.01, rank equally and pari passu with all
other unsecured and unsubordinated indebtedness of the Company. There shall be established, in or pursuant to a Board Resolution, and
set forth in an Officer’s Certificate, or established in one or more supplemental indentures, prior to the initial issuance of
Securities of any series:
(1) the
title of the Securities of such series (which shall distinguish the Securities of such series
from all other Securities, except to the extent that additional Securities of an existing
series are being, or will be, issued);
(2) any
limit upon the aggregate principal amount of the Securities of such series that may be authenticated
and delivered under this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other Securities of such
series pursuant to Section 3.04, 3.05, 3.06, 4.03 or 11.04);
provided, however, that the authorized aggregate principal amount of such series
may from time to time be increased above such amount by a Board Resolution or as provided
in the supplemental indenture establishing the Securities of such series;
(3) the
date or dates on which the principal and premium, if any, on the Securities of such series
are payable or the method used to determine such date or dates;
(4) the
rate or rates (which may be fixed or variable) at which the Securities of such series shall
bear interest, if any, or the method by which such rate or rates shall be determined, whether
such interest shall be payable in cash or additional Securities of the same series or shall
accrue and increase the aggregate principal amount outstanding of such series, the date or
dates from which such interest shall accrue, or the method of determination thereof, the
Interest Payment Dates on which such interest shall be payable and the Regular Record Date,
if any, for the interest payable on any Interest Payment Date;
(5) if
other than the currency of the United States, the currency or currencies or currency unit
or units, including composite currencies, in which payment of the principal of, premium,
if any, or interest, if any, on the Securities of such series shall be payable and the manner
of determining the equivalent thereof in the currency of the United States for any purpose,
including for purposes of the definition of “Outstanding” in Section 1.01;
(6) if
the principal of, premium, if any, or interest, if any, on the Securities of such series
are to be payable, at the election of the Company, or a Holder, in a currency or currencies
or currency unit or units other than that in which the Securities are stated to be payable,
the currency, currencies or currency units in which the principal of or any premium or interest
on such Securities as to which such election is made shall be payable, the period or periods
within which, and the terms and conditions upon which, such election may be made or the other
circumstances under which any of such Securities are to be so payable, the time and manner
of determining the exchange rate between the currency in which the Securities of such series
are payable without such election and the currency in which the principal of or any premium
or interest on such Securities are to be paid if such election is made, and any provision
requiring the Holder to bear currency exchange costs by deduction from such payments;
20
(7) if
the amount of payments of principal of, premium, if any, or interest, if any, on, any of
the Securities of such series may be determined with reference to an index, formula or other
method, the manner in which such amounts shall be determined;
(8) the
place or places, if any, in addition to or instead of the Corporate Trust Office of the Trustee,
where the principal of, premium, if any, and interest, if any, on, the Securities of such
series shall be payable, the place or places where the Securities of such series may be presented
for registration of transfer or exchange, and the place or places where notices and demands
to or upon the Company in respect of the Securities of such series may be made;
(9) if
applicable, the period or periods within or the date or dates on which, the price or prices
at which, and the terms and conditions upon which, Securities of such series may be redeemed,
purchased, exchanged or repaid, in whole or in part, at the option of the Company;
(10) if
applicable, the period or periods within or the date or dates on which, the price or prices
at which, and the terms and conditions upon which, Securities of such series may be redeemed,
in whole or in part, at the option of the Holders;
(11) the
obligation or right, if any, of the Company to redeem, purchase or repay Securities of such
series pursuant to any sinking fund or analogous provisions or at the option of a Holder
thereof and the period or periods within which, the price or prices at which, the currency
or currencies (including currency unit or units) in which and the other terms and conditions
upon which Securities of such series shall be redeemed, purchased or repaid, in whole or
in part, pursuant to such obligation;
(12) whether
the Securities of such series will be convertible into or exchangeable for other Securities,
Capital Stock or other securities of any kind of the Company or another Person, and, if so,
the terms and conditions upon which such Securities will be so convertible or exchangeable,
including the initial conversion or exchange price or rate or the method of calculation,
how and when the conversion price or exchange ratio may be adjusted, whether conversion or
exchange is mandatory, at the option of the holder or at the Company’s option, the
conversion or exchange period, and any other provision in addition to or in lieu of those
described herein;
(13) whether
the Securities shall be issued in whole or in part in the form of one or more Global Securities
and, in such case, the respective Depositaries for such Global Securities and the form of
any legend or legends which will be borne by any such Global Securities, and any circumstances
in which any such Global Security may be exchanged in whole or in part for Securities registered,
and any transfer of such Global Security in whole or in part may be registered, in the name
or names of persons other than the Depositary for such Global Security or a nominee thereof
and any other provisions governing exchanges or transfers of such Global Security;
21
(14) the
date as of which any Global Securities of such series shall be dated if other than the original
issuance of the first Security of such series to be issued;
(15) the
denominations in which Securities of such series, if any, shall be issuable, if other than
the denominations of $2,000 and any integral multiple of $1,000 in excess thereof;
(16) if
other than the principal amount thereof, the portion of the principal amount of any of the
Securities of such series which shall be payable upon declaration of acceleration of the
maturity thereof pursuant to Section 6.02;
(17) whether
the Securities of such series are to be issued with original issue discount, including whether
such security may be deemed an Original Issue Discount Security, and the amount of discount
with which such Securities may be issued;
(18) the
application, if any, of Section 13.01, or such other means of satisfaction and
discharge as may be specified for such Securities of such series;
(19) whether
the Securities of such series, in whole or any specified part, shall be subject to defeasance
or covenant defeasance pursuant to Section 13.02 and, if so, the provisions relating
thereto and the manner in which any election by the Company to provide for defeasance or
covenant defeasance of such Securities shall be evidenced if different from the provisions
herein relating thereto;
(20) the
appointment of any Paying Agent or agents, Security Registrar or Authenticating Agent for
the Securities of such series, if other than the Trustee;
(21) any
deletions from or modifications of or additions to the Events of Default set forth in Section 6.01
that apply to the Securities of such series, any change in the right of the Trustee or the
requisite Holders of such Securities to declare the principal amount thereof due and payable
pursuant to Section 6.02 or any other modifications to Article VI;
22
(22) any
deletions from or modifications of or additions to the covenants set forth in Article V
that apply to the Securities of such series;
(23) whether
the Securities of such series are to be guaranteed and, if so, the terms and conditions upon
which such Securities will be guaranteed, including (x) the form and terms of any Guarantor’s
guarantee (including provisions relating to seniority or subordination of such guarantee,
the release of such guarantee, any payment or other obligations on such Securities), (y) any
additions or changes to this Indenture to permit or facilitate guarantees of such Securities
and (z) any deletions from, modifications of or additions to the Guarantee set forth
in Article XIV;
(24) whether
payment of amounts due with respect to Securities of such series is subordinated in right
of payment to the prior payment of any other indebtedness, and, if so, the extent and the
manner of such subordinations and any other provisions relating thereto;
(25) any
additions or changes to this Indenture with respect to the Securities of such series as shall
be necessary to permit or facilitate the issuance of the Securities of such series in bearer
form, registrable or not registrable as to principal, and with or without interest coupons;
(26) the
form of the Securities of such series;
(27) provisions,
if any, granting special rights to Holders upon the occurrence of specified events; and
(28) any
other terms of the Securities of such series, and if applicable, the guarantees thereof,
and any other deletions from or modification of or additions to this Indenture in respect
of such Securities.
If any of the terms of the series are established
by action taken pursuant to one or more Board Resolutions, a copy of an appropriate record of such action shall be delivered to the Trustee
at or prior to the initial issuance of Securities of such series as may be requested by such Trustee. No Officer’s Certificate
may affect the Trustee’s own rights, duties or immunities under this Indenture or otherwise with respect to any series of Securities
except as the Trustee may agree in writing.
3.02 Denominations.
Unless otherwise provided as contemplated by Section 3.01 with respect to any series of Securities, and except as provided
in Section 3.03, the Securities of each series shall be issuable in denominations of $2,000 and any integral multiple of
$1,000 in excess thereof. Securities of each series shall be numbered, lettered or otherwise distinguished in such manner or in accordance
with such plan as the Authorized Officers executing the same may determine with the reasonable approval of the Trustee.
3.03 Execution,
Authentication, Delivery and Dating. The Securities shall be signed on behalf of the Company by an Authorized Officer. Such signatures
may be manual, facsimile or other electronic signatures, or electronic copies thereof, of any present or future Authorized Officer and
may be imprinted or otherwise reproduced on the Securities.
23
Only such Securities as shall bear thereon a certificate
of authentication substantially in the form set forth in Section 2.02, manually or electronically executed (or as otherwise
specified in a supplemental indenture with respect to a series of Securities) by the Trustee, shall be entitled to the benefits of this
Indenture or be valid or obligatory for any purpose. Such certificate by the Trustee upon any Security executed by the Company shall
be conclusive evidence that the Security so authenticated has been duly authenticated and delivered hereunder.
Securities bearing the manual or other electronic
signatures, or electronic copies thereof, of an individual who was at any time an Authorized Officer shall bind the Company, notwithstanding
that such individual has ceased to hold such office prior to the authentication and delivery of such Securities or did not hold such
office at the date of such Securities.
At any time and from time to time after the execution
and delivery of this Indenture, the Company may deliver Securities of any series executed by the Company to the Trustee for authentication.
The Trustee shall thereupon authenticate and deliver such Securities to or upon the written order of the Company, signed by an Authorized
Officer, or pursuant to such procedures reasonably acceptable to the Trustee and such recipients, without any further action by the Company.
In authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities,
the Trustee shall be entitled to receive, and shall be fully protected in relying upon:
(1) the
instrument or instruments establishing the form or forms and terms of the Securities of such
series, as provided in Section 2.01 and Section 3.01;
(2) an
Officer’s Certificate delivered in accordance with Section 1.03 hereof;
and
(3) an
Opinion of Counsel prepared in accordance with Section 1.03, to the following
effect, which Opinion of Counsel may contain such assumptions, qualifications and limitations
as such counsel shall deem appropriate:
(i) the
forms and terms of such Securities have been established in conformity with Section 2.01
and Section 3.01 of this Indenture;
(ii) all
conditions precedent set forth in Section 2.01, Section 3.01 and
Section 3.03 of this Indenture to the authentication and delivery of such Securities
have been complied with; and
(iii) such
Securities, when authenticated and delivered by the Trustee and issued by the Company in
the manner and subject to any conditions specified in such Opinion of Counsel, will constitute
valid and binding obligations of the Company entitled to the benefits provided by this Indenture,
and enforceable in accordance with their terms, subject to (a) bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer, fraudulent conveyance or other similar laws
affecting creditors’ rights generally, (b) general principles of equity (regardless
of whether enforceability is considered in a proceeding in equity or at law), (c) other
commonly recognized statutory and judicial constraints as to enforceability, including statutes
of limitations, and (d) public policy considerations which may limit the rights of parties
to obtain certain remedies.
24
The Trustee shall have the right to decline to
authenticate and deliver the Securities of such series if the Trustee on the advice of counsel reasonably determines that such action
may not lawfully be taken or would expose the Trustee to personal liability. The Trustee shall have no duty to make such an examination
or determination.
Each Security shall be dated the date of its authentication.
Notwithstanding the provisions of Section 3.01
and of this Section 3.03, if all Securities of a series are not to be originally issued at one time, it shall not be necessary
to deliver the Officer’s Certificate(s) otherwise required pursuant to Section 3.01 or the written order of the
Company and Opinion of Counsel otherwise required pursuant to this Section 3.03 at or prior to the time of authentication
of each Security of such series if such documents are delivered at or prior to the authentication upon original issuance of the first
Security of such series to be issued.
3.04 Temporary
Securities. Pending the preparation of a permanent Global Security or definitive Securities of any series, the Company may execute,
and upon compliance with Section 3.03, the Trustee shall authenticate and deliver, temporary Securities that are printed,
lithographed, typewritten, engraved or produced by any combination of these methods, in any authorized denomination, substantially of
the tenor of the definitive Securities in lieu of which they are issued and with such appropriate insertions, omissions, substitutions
and other variations as the Authorized Officers executing such Securities may determine, as evidenced by their execution of such Securities.
In the case of Securities of any series, such temporary Securities may be in global form, representing all or a portion of the Outstanding
Securities of such series.
If temporary Securities of any series are issued,
the Company will cause definitive Securities of that series to be prepared without unreasonable delay. After the preparation of definitive
Securities of such series, the temporary Securities of such series shall be exchangeable for definitive Securities of such series upon
surrender of the temporary Securities of such series. Upon surrender for cancellation of any one or more temporary Securities of any
series, the Company shall execute and the Trustee shall, upon receipt of a written order of the Company as described in Section 3.03,
authenticate and deliver in exchange therefor, a like principal amount of definitive Securities of the same series of authorized denominations
and of like tenor.
Until so exchanged, the temporary Securities of
any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of such series except
as otherwise specified as contemplated by Section 3.01 with respect to the payment of interest on Securities in temporary
form. Such exchanges shall be made by the Company at its expense and without any charge therefor.
25
Upon any exchange of a portion of a temporary
Global Security for a definitive Security pursuant to this Section 3.04 or Section 3.06, the temporary Global
Security shall be endorsed by the Trustee to reflect the reduction of the principal amount evidenced thereby, whereupon the principal
amount of such temporary Global Security shall be reduced for all purposes by the amount so exchanged and endorsed. Notwithstanding anything
to the contrary in this Indenture, if any portion of a temporary Global Security is cancelled and Securities in definitive form are authenticated
and delivered in exchange thereof pursuant to this Section 3.04, the Company shall not be required to deliver any Officer’s
Certificate(s) or Opinion of Counsel to the Trustee.
3.05 Registration;
Registration of Transfer and Exchange. The Company shall cause to be kept for each series of Securities a register or registers herein
sometimes collectively referred to as the “Security Register” in which, subject to such reasonable regulations
as it may prescribe, the Company shall provide for the registration of such Securities and of transfers of such Securities. Such register
shall be kept at the office or agency of the “Security Registrar” for the purpose of registering such Securities
and transfers of such Securities as herein provided.
Upon surrender for registration of transfer of
any Security of any series, the Company shall execute, and the Trustee shall, upon receipt of a written order of the Company as described
in Section 3.03, authenticate and deliver, in the name of the designated transferee or transferees, one or more new Securities
of the same series and of like tenor, of any authorized denominations and of a like aggregate principal amount and Stated Maturity. In
no case shall there be more than one Security Register for a series of Securities.
At the option of the Holder, Securities of any
series (except a Global Security) may be exchanged for other Securities of the same series and of like tenor, of any authorized denominations
and of a like aggregate principal amount and Stated Maturity upon surrender of the Securities to be exchanged. Whenever any Securities
are so surrendered for exchange, the Company shall execute, and the Trustee shall, upon receipt of a written order of the Company as
described in Section 3.03, authenticate and deliver the Securities that the Holder making the exchange is entitled to receive.
Notwithstanding any other provision of this Section 3.05,
unless and until it is exchanged in whole or in part for Securities in definitive registered form, a Global Security representing all
or a portion of the Securities of a series may not be transferred except as a whole by the Depositary to the nominee of the Depositary
or by a nominee of the Depositary to the Depositary or another nominee of the Depositary or by the Depositary or any such nominee to
a successor Depositary or to a nominee of such successor Depositary.
All Securities issued upon any registration of
transfer or exchange of Securities shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration
of transfer or for exchange shall (if so required by the Company or the Trustee) be duly endorsed, or be accompanied by a written instrument
of transfer in form satisfactory to the Company and the Trustee duly executed by the Holder thereof or its attorney duly authorized in
writing.
26
No service charge shall be made for any registration
of transfer or exchange of Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer or exchange of Securities.
The Company shall not be required to (i) issue,
register the transfer of or exchange Securities of any particular series during a period beginning at the opening of business 15 days
before the day of selection of Securities of such series to be redeemed under Section 4.02 and ending at the close of business
on the day of the sending of a notice of redemption of Securities of such series selected for redemption or (ii) register the transfer
of or exchange any Security so selected for redemption in whole or in part, except the unredeemed portion of any Security being redeemed
in part.
Each Holder agrees to indemnify the Company and
the Trustee against any liability that may result from the transfer, exchange or assignment of such Holder’s Security in violation
of any provision of this Indenture and/or applicable U.S. federal or state securities laws.
In connection with any transfer or exchange of
any Security outside the book-entry system of the Depositary, the Holder that is the transferor of the Security (or the Company, to the
extent the information is reasonably available to the Company) shall use commercially reasonable efforts to provide or cause to be provided
to the Trustee all information that is reasonably requested by the Trustee that is necessary to allow the Trustee to comply with any
applicable tax reporting obligations, including any cost basis reporting obligations under Section 6045 of the U.S. Internal Revenue
Code of 1986, as amended. The Trustee may conclusively rely on any such information provided to it and shall have no responsibility to
verify or ensure the accuracy of such information.
The Trustee shall have no obligation or duty to
monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law
with respect to any transfer of any interest in any Security (including any transfers between or among Depositary participants or beneficial
owners of interests in any Global Security) other than to require delivery of such certificates and other documentation or evidence as
are expressly required by, and to do so if and when expressly required by the terms of, this Indenture, and to examine the same to determine
substantial compliance as to form with the express requirements hereof.
None of the Trustee, any Paying Agent, the Security
Registrar, the Company or any Guarantor shall have any responsibility for any actions taken or not taken by the Depositary.
3.06 Mutilated,
Destroyed, Lost and Stolen Securities. If any mutilated Security is surrendered to the Trustee, the Company shall execute, and the
Trustee shall, upon receipt of a written order of the Company as described in Section 3.03, authenticate and deliver in exchange
therefor, a new Security of the same series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
27
If there shall be delivered to the Company and
the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Security and (ii) such security or
indemnity as may be requested by them to hold each of them and any agent of any of them harmless, then the Company shall execute and,
upon written request, the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security, a new Security
of the same series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or
stolen Security has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security,
pay such Security.
Upon the issuance of any new Security under this
Section 3.06, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant
to this Section 3.06 in lieu of any destroyed, lost or stolen Security shall constitute an original additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall
be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of that series duly issued
hereunder.
The provisions of this Section 3.06
are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities.
3.07 Payment
of Interest; Interest Rights Preserved. Interest on any Security that is payable, and is punctually paid or duly provided for, on
any Interest Payment Date shall be paid to the Person in whose name that Security (or one or more predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest and, with respect to any Global Security, in accordance with the
Applicable Procedures.
Any interest on any Security of any series that
is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (herein called “Defaulted Interest”)
shall forthwith cease to be payable to the Holder at the close of business on the relevant Regular Record Date, and such Defaulted Interest
shall be paid by the Company, at its election, as provided in either clause (1) or (2) below:
(1) The
Company may elect to make payment of any Defaulted Interest to the Persons in whose names
the Securities of such series (or their respective predecessor Securities) are registered
at the close of business on a Special Record Date for the payment of such Defaulted Interest,
which Special Record Date shall be fixed in the following manner. The Company shall notify
the Trustee, in writing, as to the amount of Defaulted Interest proposed to be paid on each
Security of such series and the date of the proposed payment, and at the same time the Company
shall deposit with the Trustee an amount of money equal to the aggregate amount proposed
to be paid in respect of such Defaulted Interest or shall make arrangements reasonably satisfactory
to the Trustee for such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest
as in this clause provided. Thereupon, the Company shall fix a Special Record Date for the
payment of such Defaulted Interest which shall be not more than 15 days and not less than
10 days prior to the date of the proposed payment and, unless otherwise agreed to by the
Trustee, not less than 10 days after the receipt by the Trustee of the written notice of
the proposed payment. The Company shall promptly notify the Trustee, in writing, of such
Special Record Date and, in the name and at the expense of the Company, shall cause notice
of the proposed payment of such Defaulted Interest and the Special Record Date therefor to
be e-mailed or mailed (first-class postage prepaid) to each Holder of Securities of such
series at such Holder’s e-mail or address as it appears in the Security Register or
sent pursuant to Applicable Procedures, not less than 10 days prior to such Special Record
Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date
therefor having been so given, such Defaulted Interest shall be paid to the Persons in whose
names the Securities of such series (or their respective predecessor Securities) are registered
at the close of business on such Special Record Date.
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(2) The
Company may make payment of any Defaulted Interest on the Securities of any series in any
other lawful manner not inconsistent with the requirements of any Depositary or any securities
exchange on which such Securities may be listed, and upon such notice as may be required
by such Depositary or securities exchange, if, after written notice given by the Company
to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall
be reasonably deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section 3.07,
each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security shall
carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security.
3.08 Persons
Deemed Owners. The Company and the Trustee, and their respective agents, shall treat the Person in whose name any Security is registered
as the owner of such Security for the purpose of receiving payment of principal of, premium, if any, and (subject to Section 3.07)
interest, if any, on such Security and for all other purposes whatsoever, whether or not such Security shall be overdue, and neither
the Company nor the Trustee, nor their respective agents, shall be affected by notice to the contrary.
None of the Company, any Guarantor, the Trustee,
any Paying Agent or the Security Registrar will have any responsibility or liability for any aspect of the records relating to or payments
made on account of beneficial ownership interests of a Global Security or for maintaining, supervising or reviewing any records relating
to such beneficial ownership interests. The Company, any Guarantor, the Trustee, any Paying Agent and the Security Registrar shall be
entitled to deal with the Depositary, and any nominee thereof, that is the registered holder of any Global Security for all purposes
of this Indenture relating to such Global Security (including the payment of principal, premium, if any, and interest and additional
amounts, if any, and the giving of instructions or directions by or to the owner or holder of a beneficial ownership interest in such
Global Security) as the sole holder of such Global Security and shall have no obligations to the beneficial owners thereof.
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3.09 Cancellation.
All Securities surrendered for payment, redemption, registration of transfer or exchange or for credit against any payment in respect
of a sinking fund or analogous obligation shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee and
shall be promptly cancelled by it. The Company may at any time deliver to the Trustee for cancellation any Securities previously authenticated
and delivered hereunder that the Company may have acquired in any manner whatsoever, and all Securities so delivered shall be promptly
cancelled by the Trustee. No Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as provided in
this Section 3.09, except as expressly permitted by this Indenture. All cancelled Securities held by the Trustee shall be
disposed of by the Trustee pursuant to its standing procedures, and the Trustee shall, upon written request therefor, deliver to the
Company a certificate of cancellation in respect thereof.
3.10 Computation
of Interest; Calculations. Except as otherwise specified as contemplated by Section 3.01 for Securities of any series,
any determination of interest, additional amounts, redemption price, premium, if any, and any other amounts payable with respect to the
Securities of each series shall be computed on the basis of a 360-day year of twelve 30-day months.
The Company shall be responsible for making calculations
called for under the Securities and this Indenture, including determination of interest, additional amounts, redemption price, premium,
if any, and any other amounts payable on the Securities. Absent manifest error, the Company’s calculations will be final and binding
on the Holders. The Trustee is entitled to rely conclusively on the accuracy of the Company’s calculations without independent
verification.
3.11 CUSIP
Numbers, ISINs and Common Code Numbers. The Company in issuing any Securities may use “CUSIP” numbers, “ISINs”
and/or “Common Code” numbers (if then generally in use), and, if so, the Trustee shall as a convenience use “CUSIP”
numbers, “ISINs” and/or “Common Code” numbers in notices to Holders; provided that any such notice may
state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any
notice and that reliance may be placed only on the other identification numbers printed on the Securities. The Company will promptly
notify the Trustee in writing of any change in the “CUSIP” numbers, “ISINs” and/or “Common Code”
numbers of any Securities.
Article IV
REDEMPTION OF SECURITIES
4.01 Applicability
of Right of Redemption. Redemption of Securities (other than pursuant to a sinking fund or analogous provision, if applicable) permitted
by the terms of any series of Securities shall be made in accordance with such terms and Section 4.02, Section 4.03,
Section 4.04 and (with respect to any redemptions for which Section 4.02 Section 4.03 and Section 4.04
are not applicable) Section 4.06; provided, however, that, notwithstanding anything to the contrary in this
Article IV, if any such terms of a series of Securities shall conflict with any provisions of this Article IV,
the terms of such series shall govern with respect to such Securities.
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4.02 Election
to Redeem; Notice of Redemption; Partial Redemption. The election of the Company to redeem any Securities of any series shall be
evidenced by, or effected pursuant to, an Officer’s Certificate delivered to the Trustee at least three Business Days prior to
the time notice of redemption is sent to the Holders of the Securities (or such lesser number of days as the Trustee shall approve).
In case the Company shall desire to exercise such right to redeem all, or, as the case may be, any part of the Securities of any series,
it shall give notice of such redemption to Holders of the Securities to be redeemed as hereinafter provided in this Section 4.02.
Any notice of redemption to be given to the Holders
of the Securities to be redeemed as a whole or in part shall be given in the manner provided in Section 1.05 not less than
10 nor more than 60 days prior to the date fixed for redemption, except that any notice of redemption may be mailed or electronically
delivered more than 60 days prior to a redemption date if the notice is issued in connection with a legal or covenant defeasance of the
Securities or a satisfaction and discharge of this Indenture or as a result of a delay in the redemption date in accordance with the
immediately succeeding sentence. Any such notice of redemption may, in the Company’s discretion, be given subject to the satisfaction
of one or more conditions precedent. In that case, such notice of redemption shall describe each such condition and, if applicable, shall
state that, in the Company’s discretion, the (i) redemption date may be delayed until such time (including by more than 60
days after the date the notice of redemption was mailed or delivered, including by electronic transmission) as any or all such conditions
shall be satisfied or waived by the Company in its sole discretion, or (ii) such redemption may not occur and such notice may be
rescinded in the event that any or all such conditions shall not have been satisfied or waived by the Company by the relevant redemption
date, or by the redemption date as so delayed. In addition, the Company may provide in such notice that payment of the redemption price
and performance of the Company’s obligations with respect to such redemption may be performed by another Person (but the Company
shall remain responsible in the event of any failure of such other Person to perform any such obligations).
Each such notice of redemption shall specify the
date fixed for redemption and the redemption price (or manner of calculation if not then known) at which Securities are to be redeemed,
shall state the section of this Indenture and the Securities authorizing redemption and shall state that payment of the redemption price
of the Securities to be redeemed, together with interest accrued thereon to, but excluding, the Redemption Date, will be made upon presentation
and surrender of such Securities and that, (unless the Company shall default in the payment of such Securities or portions thereof at
the redemption price, together with interest accrued thereon, if any, to, but excluding, the Redemption Date) from and after the Redemption
Date, any interest thereon will cease to accrue, such Securities subject to such redemption shall cease to be Outstanding and the Holder(s) thereof
shall have no rights with respect thereto other than the right to receive the redemption price upon such presentation and surrender.
The notice shall state the “CUSIP” number, “ISIN” and/or “Common Code” number and that no representation
is made as to the correctness or accuracy of the “CUSIP” number, “ISIN” and/or “Common Code” number,
if any, listed in such notice or printed on the Securities.
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In case any Security of a series is to be redeemed
in part only (which part shall be an authorized denomination of the Securities of such series as set forth pursuant to Section 3.01),
the notice that relates to such Securities shall state the portion of the principal amount to be redeemed, and that on and after the
Redemption Date, upon surrender of such Security, a new Security or Securities of the same series in principal amount equal to the unredeemed
portion thereof shall be issued (or transferred by book entry). No Security whose denomination is the minimum denomination, as set forth
pursuant to Section 3.01, of principal amount may be redeemed in part.
To the extent that the Securities of any series
have different terms, the Company shall designate the Securities to be redeemed if fewer than all of a series are to be redeemed. If
fewer than all the Securities of a series having the same terms are to be redeemed, the Company shall give the Trustee, not less than
three Business Days (or such lesser number of days as the Trustee shall approve) prior to the date such notice of redemption is to be
sent to the Holders of the Securities, written notice of the aggregate amount of the Securities to be redeemed.
If fewer than all of the Securities of a series
are to be redeemed at any time, and the Securities of such series are Global Securities, they will be selected for redemption in accordance
with Applicable Procedures. If the Securities of such series are not Global Securities, the Trustee shall select the Securities to be
redeemed among the Holders (1) in compliance with the requirements of the principal national securities exchange, if any, on which
the Securities are listed or (2) if the Securities are not so listed, on a pro rata basis, by lot or in accordance with any
other method the Trustee shall deem appropriate or in accordance with applicable Depositary procedures, and shall thereafter promptly
notify the Company and any Paying Agent (if other than the Trustee) in writing of the Securities selected for redemption and the principal
amount thereof to be redeemed.
Any notice of redemption may be given by the Company
pursuant to this Section 4.02. At the Company’s request, the Trustee shall provide the notice of redemption in the
Company’s name and at its expense; provided that the Company has delivered a written request to the Trustee at least three
Business Days (or such lesser number of days as the Trustee shall approve) prior to the date such notice is to be given, which request
shall set forth the information to be stated in such notice.
4.03 Payment
of Securities Called for Redemption. If notice of redemption shall have been given in the manner provided in Section 4.02,
the Securities or portions of Securities specified in such notice shall become due and payable on the date and at the place stated in
such notice at the applicable redemption price, together with interest accrued thereon, if any, to, but excluding, the Redemption Date,
and on and after such Redemption Date (unless the Company shall default in the payment of such Securities or portions thereof at the
redemption price, together with such interest accrued thereon), from and after the Redemption Date any interest on the Securities or
portions of Securities so called for redemption shall cease to accrue and such Securities and portions of Securities shall be deemed
not to be Outstanding hereunder and shall not be entitled to any benefit under this Indenture except for the right of the Holder(s) thereof
to receive, in accordance with the next sentence, payment of the redemption price, together, if applicable, with accrued interest thereon,
if any, to, but excluding, the Redemption Date. On presentation and surrender of such Securities, on or after the Redemption Date, such
Securities or specified portions thereof shall be paid and redeemed by the Company at the applicable redemption price, together with
interest accrued thereon, if any, to, but, excluding, the Redemption Date. Notwithstanding anything to the contrary in this Article IV,
unless otherwise specified with respect to Securities of such series as contemplated by Section 3.01, installments of interest
that mature on Securities on or prior to the Redemption Date shall be payable to the Holders of such Securities, or one or more predecessor
Securities, registered as such at the close of business on the relevant Regular Record Dates according to their terms and the provisions
of Section 3.07; provided, however, that with respect to any Global Security, if the procedures of the Depositary
require payment to be completed in an alternate manner, in such case the procedures of the Depositary shall control.
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Upon presentation and surrender of any Security
that is to be redeemed in part only, the Company shall execute, and the Trustee shall, upon receipt of a written order of the Company
as described in Section 3.03, authenticate and deliver to the Holder or transfer by book entry, at the expense of the Company,
a new Security or Securities of the same series of authorized denominations in principal amount equal to the unredeemed portion of the
Security so surrendered.
4.04 Deposit
of Funds for Redemption of Securities. On or prior to 11:00 a.m. Eastern Time on the Redemption Date of any Securities as hereinbefore
provided in this Article IV, the Company shall deposit in trust with the Trustee or with any Paying Agent (or if and to the
extent that the Company shall be acting as its own Paying Agent, the Company shall set aside, segregate and hold in trust) funds sufficient
to redeem the Securities or portions thereof to be redeemed on such Redemption Date, at the applicable redemption price, together with
interest accrued thereon, if any, to, but excluding, the Redemption Date. The Trustee or the Paying Agent, as applicable, will promptly
return to the Company any money deposited with the Trustee or the Paying Agent, as applicable, by the Company in excess of the amounts
necessary to pay the applicable redemption price, together with interest accrued thereon, if any, to, but excluding, the Redemption Date.
4.05 Mandatory
Redemption. Unless otherwise indicated for a particular series of Securities by an Officer’s Certificate, supplemental indenture
or Board Resolution, the Company shall not be required to make any mandatory redemption or sinking fund payment with respect to any series
of Securities.
4.06 Other
Transactions. Notwithstanding anything to the contrary in this Indenture, the Company, the Parent Guarantor and their respective
Affiliates, and their respective members of management, among other parties, may, at any time and from time to time, purchase, repurchase,
redeem, exchange, defease or otherwise acquire or retire the Securities by any means other than a redemption conducted pursuant to Section 4.02,
Section 4.03 and Section 4.04 of this Indenture (and, for the avoidance of doubt, without being subject to any
pro rata repurchase requirement), from any Person, upon such terms and conditions, at such prices and with such considerations as the
Company, the Parent Guarantor and their respective Affiliates and their respective members of management, among other parties, may determine,
including, without limitation, in negotiated transactions, open market purchases, by tender offer or any other transactions with one
or more Holders and/or beneficial owners of Securities.
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Article V
PARTICULAR COVENANTS
5.01 Payments
of Principal, Premium, if Any, and Interest, if Any. The Company covenants and agrees, for the benefit of each series of Securities,
that it will duly and punctually pay or cause to be paid the principal of, premium, if any, and interest, if any, on the Securities of
that series at the times and places and in the manner provided herein and in the Securities of that series.
Notwithstanding anything to the contrary contained
in this Indenture, the Company or the Paying Agent may, to the extent it is required to do so by law, deduct or withhold income or other
similar taxes imposed by the United States or other state, local or non-U.S. taxing authorities from principal or interest payments hereunder.
5.02 Office
or Agency for Certain Purposes. The Company will maintain an office or agency where Securities may be presented or surrendered for
payment, where Securities may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company
in respect of such Securities and this Indenture may be served. The Company will give prompt written notice to the Trustee of the location,
and any change in the location, of any such office or agency.
The Company may also from time to time designate
one or more other offices or agencies where the Securities of one or more series may be presented or surrendered for any or all such
purposes, and may from time to time rescind such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office or agency in accordance with the requirements set forth
above. The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location
of any such other office or agency.
5.03 Waiver
of Certain Covenants. The Company and any Guarantors may omit in any particular instance to comply with any term, provision or condition
with respect to the Securities of any series and, if expressly provided pursuant to Section 3.01, any additional covenants
applicable to the Securities of such series if, before the time for such compliance, the Holders of not less than a majority in principal
amount of the Outstanding Securities of all series to which such term, provision or condition apply, voting as a single class,
by act of such Holders, either shall waive such compliance in such instance or generally shall have waived compliance with such term,
provision or condition, but no such waiver shall extend to or affect such term, provision or condition except to the extent so expressly
waived, and, until such waiver shall become effective, the obligations of the Company and any Guarantors and the duties of the Trustee
in respect of any such term, provision or condition shall remain in full force and effect; provided, however, that, unless
otherwise specified with respect to any Securities pursuant to Section 3.01, no such waiver shall be permitted with respect to any
term, provision or condition which, under the terms of the Indenture, cannot be modified or amended without the consent of the Holder
of each Security of such series so affected.
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5.04 Appointments
to Fill Vacancies in Trustee’s Office. The Company, whenever necessary to avoid or fill a vacancy in the office of the Trustee,
will appoint, in the manner provided in Section 7.10, a Trustee, so that there shall at all times be a Trustee hereunder.
5.05 Provisions
as to Paying Agent.
(a) If
the Company shall appoint a Paying Agent other than the Trustee with respect to any series of Securities, the Company will cause such
Paying Agent to execute and deliver to the Trustee an instrument in which such agent shall agree with the Trustee subject to this Section 5.05,
that it will, in addition to fulfilling the duties provided in Section 317 of the Trust Indenture Act, at any time during the continuance
of any such default, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent.
(b) If
the Company or any Guarantor shall act as its own Paying Agent with respect to any series of Securities, it will comply with Section 317
of the Trust Indenture Act.
(c) Whenever
the Company shall have one or more Paying Agents for any series of Securities, it will, on or prior to 11:00 a.m. Eastern Time on
each due date of the principal of, premium, if any, or interest, if any, on any Securities of that series, deposit with a Paying Agent
a sum sufficient to pay the principal, premium, if any, or interest, if any, so becoming due, such sum to be held in trust for the benefit
of the Holders of such Securities, and (unless such Paying Agent is the Trustee) the Paying Agent shall promptly notify the Trustee of
the Company’s action or failure so to act.
(d) Anything
in this Section 5.05 to the contrary notwithstanding, the Company may, at its option, at any time, for the purpose of obtaining
a satisfaction and discharge with respect to one or more or all series of Securities hereunder, or for any other reason, pay or cause
to be paid to the Trustee (or Paying Agent) all sums held in trust for any such series by it, or by any Paying Agent hereunder, as required
by this Section 5.05, such sums to be held by the Trustee upon the trusts herein contained.
(e) Anything
in this Section 5.05 to the contrary notwithstanding, the agreement to hold sums in trust as provided in this Section 5.05
is subject to Section 13.04 and Section 13.05.
5.06 Statement
by Officers as to Default. The Company or, at its option, the Parent Guarantor shall deliver to the Trustee, prior to April 30
in each year, commencing with the year beginning on January 1, 2027 (or, if the fiscal year of the Company or Parent Guarantor does
not end on or around December 31 of each year, within 120 days after the end of its fiscal year), a written statement (which need
not be contained in or accompanied by an Officer’s Certificate) signed by one of the delivering Person’s Authorized Officers,
stating whether or not, to the best of his or her knowledge, the Company or any Guarantor (to the extent that such information as to
a Guarantor is required under the Trust Indenture Act) is in default in the performance and observance of any of the terms, provisions
and conditions of this Indenture (without regard to notice requirements or grace periods) and if the Company or any Guarantor (to the
extent that such information as to a Guarantor is required under the Trust Indenture Act) shall be in default, specifying all such defaults
and the nature and status thereof of which he or she may have knowledge. Such certificates need not comply with Section 1.03
of this Indenture.
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5.07 Limitation
on Liens. Subject to the defeasance and covenant defeasance provisions of Section 13.02, for so long as any of the Securities
remain Outstanding, neither the Parent Guarantor nor any of its Subsidiaries shall create, incur, issue, assume or guarantee (collectively,
“incur”), any Debt secured by a Lien, other than a Permitted Lien (as defined below), upon any Principal Property
or the Capital Stock of any Subsidiary that owns any Principal Property, without equally and ratably securing any Securities then Outstanding
(for so long as such Debt is so secured). Any of the following Liens is a “Permitted Lien”:
(a) Liens
securing any Hedging Obligations between the Parent Guarantor and any of its Subsidiaries, on the one hand, and one or more Persons that
are, at the time such Hedging Obligations is entered into, lenders under one or more Credit Facilities of the Parent Guarantor or any
of its Subsidiaries (or affiliates of such lenders), on the other hand, which Liens encumber assets that are also subject to Liens securing
Debt under Credit Facilities;
(b) Liens
on Capital Stock in any joint venture owned by the Parent Guarantor or any of its Subsidiaries securing Debt of such joint venture;
(c) Liens
in favor of the Parent Guarantor or any of its Subsidiaries, including, without limitation, Liens securing Debt between or among the
Parent Guarantor and any of its Subsidiaries;
(d) Liens
securing Debt under Credit Facilities in an aggregate principal amount that, together with the aggregate amount of outstanding Debt secured
by Liens pursuant to clause (w) that extended, renewed, substituted or replaced Debt originally secured by Liens pursuant to this
clause (d) (or successively extended, renewed, substituted or replaced Debt secured by Liens pursuant to clause (w) that was
originally secured by Liens pursuant to this clause (d)), do not exceed the greater of (A) $12,100,000,000 and (B) the Borrowing
Base at the time of incurrence;
(e) Liens
consisting of an agreement to sell, transfer or dispose of any asset or property to the extent not prohibited by Article XII of
this Indenture;
(f) Liens
created in connection with any equity interest repurchase program in favor of any broker, dealer, custodian, trustee or agent administering
or effecting transactions pursuant to an equity interest repurchase program;
(g) (A) Liens
on any Principal Property or on the Capital Stock of a Person holding such Principal Property to secure Debt existing at the time of
the acquisition of such Principal Property or Capital Stock of such Person holding such Principal Property and (B) Liens created
prior to, contemporaneously with or within 270 days after (or created pursuant to firm commitment financing arrangements obtained within
that period) the completion of the acquisition, improvement, alteration, construction or commencement of full operation of any Principal
Property (whichever is latest) to secure Debt incurred for the purposes of payment of the purchase price of such Principal Property or
the cost of such improvement, alteration, construction or commencement of full operation; provided, in the case of clauses (A) and
(B), that such Liens do not extend to any Principal Property or any Capital Stock of any Subsidiary that owns any Principal Property
other than (1) in the case of clause (A) such Principal Property so acquired or the Capital Stock of such Person so acquired
and (2) in the case of clause (B), such Principal Property so acquired, improved, altered, constructed or operationalized.
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(h) Liens
on property or assets of a Person existing at the time such Person is merged with or into or consolidated with the Parent Guarantor or
any Subsidiary of the Parent Guarantor; provided that such Liens were in existence prior to and not incurred in contemplation
of such merger or consolidation and do not extend to any assets other than those of the Person merged into or consolidated with the Parent
Guarantor or the applicable Subsidiary of the Parent Guarantor;
(i) Liens
on assets of any Person existing at the time such Person becomes a Subsidiary of the Parent Guarantor; provided that such Liens
were in existence prior to and not incurred in contemplation of such Person becoming a Subsidiary of the Parent Guarantor and do not
extend to any assets other than those of the Person that became a Subsidiary of the Parent Guarantor;
(j) Liens
of sellers of goods to the Parent Guarantor or any of its Subsidiaries arising under Article 2 of the Uniform Commercial Code or
similar provisions of applicable law in the ordinary course of business;
(k) Liens
in favor of customs and revenue authorities arising by operation of law to secure payment of customs duties in connection with the importation
of goods;
(l) Liens
created or assumed in the ordinary course of business in connection with workmen's compensation, unemployment insurance or other forms
of governmental insurance or benefits and other social security laws or similar laws or regulations (other than Liens arising under the
U.S. Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated thereunder), including
cash collateral for obligations in respect of letters of credit, guarantee obligations or similar instruments related to the foregoing
and deposits securing liability insurance carriers under insurance or self-insurance arrangements in the ordinary course of business,
or to secure the performance of bids, tenders or trade contracts (including, but not limited to, insurance contracts), leases, statutory
obligations, surety and appeal bonds (or deposits made to otherwise secure an appeal, stay or discharge in the course of any legal proceeding),
performance or completion bonds and other obligations of a like nature or other cash deposits required to be made, in each case in the
ordinary course of business;
(m) Liens
with respect to landlords', carriers', warehousemen's, mechanics', materialmen's, suppliers', processors', workman's, repairmen's and
other like Liens imposed by law, securing obligations that are not overdue by more than 60 days or are being contested;
(n) Liens
arising out of litigation or judgments being contested;
(o) Liens
imposed by law for taxes, assessments or governmental charges or levies that (i) are not yet delinquent or are being contested in
good faith by appropriate proceedings or for which adequate reserves have been set aside in accordance with GAAP or other applicable
accounting rules or (ii) would not reasonably be expected to have a material adverse effect on the Parent Guarantor and its
Subsidiaries taken as a whole;
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(p) any
interest or title of a lessor, sublessor, lessee, sublessee, licensee, sublicensee, licensor or sublicensor under any lease or license
agreement in the ordinary course of business;
(q) Liens
existing on the issue date of the applicable series of Securities;
(r)
Liens in favor of the United States or any state thereof, or in favor of any other country,
or political subdivision thereof, to secure certain payments pursuant to any contract or statute or to secure any Debt incurred for the
purpose of financing all or any part of the purchase price or improvements, or, in the case of real property, the cost of construction,
of the assets subject to such Liens, including, without limitation, Liens incurred in connection with pollution control, industrial revenue
or similar financing;
(s) zoning
restrictions, easements, rights-of-way, restrictions on the use of property, other similar encumbrances incurred in the ordinary course
of business and minor irregularities of title, which do not materially interfere with the ordinary conduct of the business of the Parent
Guarantor and its Subsidiaries taken as a whole;
(t) Liens
in connection with the operation of cash management programs and any statutory or common law provision relating to banker's Liens, rights
of set-off, revocation, refund, chargeback, overdraft or similar rights and remedies as to deposit, securities and commodities accounts
or other funds maintained with a creditor depository institution or a securities or commodities intermediary in the ordinary course of
business and not with the intent of granting security;
(u) Liens
of a collection bank arising under Section 4-210 of the Uniform Commercial Code;
(v) Liens
securing Debt in an aggregate principal amount that, together with (i) the aggregate amount of outstanding Attributable Debt in
respect of Sale/Leaseback Transactions entered into pursuant to Section 5.08(a) and (ii) the aggregate amount of
outstanding Debt secured by Liens pursuant to clause (w) that extended, renewed, substituted or replaced Debt originally secured
by Liens pursuant to this clause (v) (or successively extended, renewed, substituted or replaced Debt secured by Liens pursuant
to clause (w) that was originally secured by Liens pursuant to this clause (v)), do not exceed the greater of (A) $3,240,000,000
and (B) 15.0% of Consolidated Net Tangible Assets at the time of incurrence; and
(w) any
extension, renewal, substitution or replacement (and successive extensions, renewals, substitutions and replacements), in whole or in
part, of any Lien that was previously so secured, and permitted to be secured under this Indenture; provided that (i) such extension,
renewal, substitution or replacement Lien is limited to the same property that secured the original Lien (plus improvements and accessions
to such property) and (ii) the principal amount of the Debt secured by the new Lien is not greater than the principal amount of
any Debt secured by the Lien that is refinanced, replaced, refunded, renewed, exchanged, substituted, repaid or extended, plus accrued
interest and any fees and expenses, including, without limitation, premium or defeasance costs payable in connection with any such refinancing,
replacement, refunding, renewal, exchange, repayment or extension.
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For purposes of determining compliance with this
Section 5.07, (x) a Lien need not be incurred solely by reference to one category of Permitted Liens described in this
Section 5.07 but may be incurred under any combination of such categories (including in part under one such category and
in part under any other such category) and (y) in the event that a Lien (or any portion thereof) meets the criteria of one or more
of such categories of Permitted Liens, the Company shall, in its sole discretion, classify or reclassify such Lien (or any portion thereof)
in any manner that complies with this Section 5.07; provided, however, that any Liens under the ABL Credit
Agreement existing on the issue date of the applicable series of Securities shall be deemed to be incurred under clause (d) of the
definition of “Permitted Liens” above and may not be reclassified.
Any Lien created for the benefit of the Holders
of the Securities pursuant to this Section 5.07 shall provide by its terms that such Lien shall be automatically and unconditionally
released and discharged upon the release and discharge of the Lien giving rise to the obligation to equally and ratably secure the Securities.
5.08 Limitation
on Sale and Leaseback Transactions. Subject to the defeasance and covenant defeasance provisions of Section 13.02, for
so long as any of the Securities remain Outstanding, the Parent Guarantor shall not, and shall not permit any of its Subsidiaries to,
enter into any Sale/Leaseback Transaction with respect to a Principal Property and with a lease exceeding three years, other than leases
between or among the Parent Guarantor and its Subsidiaries, unless:
(a)
the Parent Guarantor and/or such Subsidiary or Subsidiaries would be entitled
to incur Debt in an amount equal to or greater than the Attributable Debt in respect of such Sale/Leaseback Transaction, secured by a
Lien on such Principal Property without being required to secure the Securities in accordance with Section 5.07 of this Indenture;
and
(b) within
180 days after such Sale/Leaseback Transaction, the Parent Guarantor or such Subsidiary applies an amount equal to the net proceeds of
such Sale/Leaseback Transaction to the retirement of funded Debt of Parent Guarantor or any of its Subsidiaries or the purchase, acquisition
or, in the case of real property, construction of other property that will constitute Principal Property; provided, however,
that the amount to be applied to the retirement of funded Debt shall be reduced by (a) the principal amount of any Securities delivered
within 180 days after such sale to the Trustee for retirement and cancellation, and (b) the principal amount of such funded Debt,
other than Securities, voluntarily retired by Parent Guarantor or any of its Subsidiaries within 180 days after such sale or transfer.
Notwithstanding the foregoing, no retirement referred to in this clause (b) may be effected by payment at maturity or pursuant to
any mandatory sinking fund payment or any mandatory prepayment provision.
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Article VI
REMEDIES OF THE TRUSTEE AND HOLDERS ON EVENT OF DEFAULT
6.01 Events
of Default.
“Event of Default,” wherever
used herein with respect to Securities of any series, means any one of the following events unless such event is specifically deleted
or modified in or pursuant to the supplemental indenture or Officer’s Certificate establishing the terms of the Securities of such
series pursuant to Section 3.01 of this Indenture:
(1) default
in the payment of any interest on any of the Securities of such series when such interest
becomes due and payable, and continuance of such default for a period of 30 days (unless
the entire amount of such payment is deposited by the Company or a Guarantor with the Trustee
or with a Paying Agent prior to 11:00 a.m., New York City time, on the 30th day of such period);
(2) default
in the payment of any principal of or premium, if any, on, any of the Securities of such
series when due;
(3) default
in the performance, or breach, of any covenant of the Company or any applicable Guarantor
in this Indenture or any Security of such series (other than a covenant for which the consequences
of breach or nonperformance are addressed elsewhere in this Section 6.01 or a
covenant that has expressly been included in this Indenture, whether or not by means of a
supplemental indenture, solely for the benefit of Securities of a series other than such
series), and continuance of such default or breach (without such default or breach having
been cured or waived in accordance with the provisions of this Indenture) for a period of
90 days (or, solely in the case of default in the performance, or breach, of Section 8.03,
180 days) after the Company has received written notice, by registered or certified mail
or overnight air courier guaranteeing next day delivery, delivered by the Trustee or after
the Company and the Trustee have received written notice, by registered or certified mail
or overnight air courier guaranteeing next day delivery, delivered by the Holders of at least
25% in aggregate principal amount of the Outstanding Securities of such series, specifying
such default or breach and requiring it to be remedied and stating that such notice is a
“notice of default” hereunder;
(4) default
or defaults under one or more indentures or instruments for indebtedness for borrowed money
under which the Company or any of its Significant Subsidiaries has outstanding an aggregate
principal amount of at least $300,000,000 and either (A) such indebtedness is already
due and payable in full or (B) such default or defaults results in an acceleration of
the payment of the maturity of such indebtedness; provided, however, that no
default or Event of Default shall be deemed to occur with respect to any such accelerated
indebtedness that is paid or is otherwise acquired or retired within 20 Business Days after
such acceleration;
(5) the
Guarantee of the Parent Guarantor or any Significant Subsidiary with respect to such series
of Securities is held in any judicial proceeding to be unenforceable or invalid or, except
as permitted by this Indenture, ceases for any reason to be in full force and effect, or
the Parent Guarantor or any Significant Subsidiary denies or disaffirms its obligations under
its Guarantee with respect to the Securities of such series in writing, in each case other
than by reason of release pursuant to the terms of this Indenture or the terms of any other
documents with respect to such series of Securities and such event continues for ten Business
Days;
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(6) the
entry by a court having jurisdiction in the premises of (A) a decree or order for relief
in respect of the Company, the Parent Guarantor or any Significant Subsidiary in an involuntary
case or proceeding under any applicable bankruptcy, insolvency, reorganization or other similar
law or (B) a decree or order adjudicating the Company, the Parent Guarantor or any Significant
Subsidiary bankrupt or insolvent, or appointing a custodian, receiver, conservator, liquidator,
assignee, trustee, sequestrator or other similar official of the Company, the Parent Guarantor
or any Significant Subsidiary or for substantially all of the properties and assets of the
Company, the Parent Guarantor or any Significant Subsidiary, or ordering the winding up or
liquidation of the affairs of the Company, the Parent Guarantor or any Significant Subsidiary,
other than as permitted under Article XII hereto, and the continuance of any such decree
or order for relief unstayed and in effect for a period of 90 consecutive days;
(7) the
commencement by the Company, the Parent Guarantor or any Significant Subsidiary of a voluntary
case or proceeding under any applicable bankruptcy, insolvency, reorganization or other similar
law or of any other case or proceeding to be adjudicated bankrupt or insolvent, or the consent
by the Company, the Parent Guarantor or any Significant Subsidiary to the entry of a decree
or order for relief in respect of the Company, the Parent Guarantor or any Significant Subsidiary
in an involuntary case or proceeding under any applicable bankruptcy, insolvency, reorganization
or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding
against the Company, the Parent Guarantor or any Significant Subsidiary or the consent by
the Company, the Parent Guarantor or any Significant Subsidiary to the filing of such petition
or to the appointment of a custodian, receiver, conservator, liquidator, assignee, trustee,
sequestrator or similar official of the Company, the Parent Guarantor or any Significant
Subsidiary or for substantially all of the properties and assets of the Company, the Parent
Guarantor or any Significant Subsidiary, or the making by the Company, the Parent Guarantor
or any Significant Subsidiary of an assignment for the benefit of creditors; or
(8) any
other Event of Default provided with respect to Securities of such series that is specified
in an Officer’s Certificate or supplemental indenture hereto pursuant to Section 3.01.
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6.02 Acceleration
of Maturity; Rescission and Annulment. If an Event of Default (other than an Event of Default specified in clauses (6) or
(7) of Section 6.01) with respect to the Securities of any series occurs and is continuing, then either the Trustee
or the Holders of not fewer than 25% in aggregate principal amount of the Outstanding Securities of such series may declare the principal
of all the Securities of such series, or such lesser amount as may be provided for in the Securities of such series, and accrued and
unpaid interest, if any, thereon to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given
by the Holders), and upon any such declaration such principal or such lesser amount, as the case may be, and such accrued and unpaid
interest shall become immediately due and payable. If an Event of Default specified in clauses (6) or (7) of Section 6.01
with respect to the Securities of any series occurs, then the principal of all of the Securities of such series, or such lesser amount
as may be provided for in the Securities of such series, and accrued and unpaid interest, if any, thereon shall ipso facto become
and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holder of the Securities of
such series.
At any time after Securities of any series have
been accelerated (whether by declaration of the Trustee or the Holders or automatically) and before a judgment or decree for payment
of the money due has been obtained by the Trustee as hereinafter in this Article VI provided, the Holders of not fewer than
a majority in aggregate principal amount of the Outstanding Securities of such series, by written notice to the Company and the Trustee,
may rescind and annul such acceleration and its consequences if all existing Events of Default with respect to that series have been
cured or waived as provided in Section 6.07, except non-payment of principal (or such lesser amount) or interest that has
become due solely because of the acceleration, and amounts owing to the Trustee pursuant to Section 7.07 have been paid.
No such rescission shall affect any subsequent default.
Any time period in this Indenture to cure any
actual or alleged default or Event of Default may be extended or stayed by a court of competent jurisdiction; provided that a
notice of default may not be given with respect to any action taken, and reported publicly or to the Holder of the Securities of such
series, more than two years prior to such notice of default.
The Company and the Trustee may, to the extent
provided in Section 11.01, enter into one or more supplemental indentures with respect to any series of the Securities that
may provide for additional, different or fewer Events of Default with respect to such series of Securities. Additional, different or
fewer Events of Default with respect to such series of Securities may also be set forth pursuant to Section 3.01.
6.03 Collection
of Indebtedness by Trustee; Trustee May Prove Debt. The Company covenants that (i) in case a default shall be made in the
payment of any installment of interest on any of the Securities, as and when the same shall become due and payable, and such default
shall have continued for a period in excess of 30 days, or (ii) in case a default shall be made in the payment of the principal
of or premium, if any, on any of the Securities when and as the same shall have become due and payable, whether upon maturity of the
Securities or upon redemption or upon declaration or otherwise, then, upon demand of the Trustee, the Company will pay to the Trustee,
for the benefit of the Holders of such Securities, the whole amount that then shall have become due and payable on such Securities for
principal and premium, if any, interest, if any, with interest upon the overdue principal and premium, if any, of each such Security
and (to the extent legally enforceable under applicable law) upon any installments of interest, at the rate borne by such Security, and,
in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including a reasonable
compensation to the Trustee, its agents, attorneys and counsel, and any expenses or liabilities incurred by the Trustee hereunder other
than through its gross negligence, willful misconduct or bad faith.
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All rights of action and of asserting claims under
this Indenture, or under any of the Securities of any series, may be enforced by the Trustee without the possession of any of the Securities
of such series, or the production thereof on any trial or other proceeding relative thereto, and any such suit or proceeding instituted
by the Trustee shall be brought, in accordance with Section 317 of the Trust Indenture Act as may be authorized therein, in its
own name as trustee of an express trust, and any recovery of judgment shall be for the ratable benefit of the Holders of the Securities
of such series. In any proceedings brought by the Trustee (and also any proceedings involving the interpretation of any provision of
this Indenture to which the Trustee shall be a party), the Trustee shall be held to represent all the Holders of the Securities of a
series, and it shall not be necessary to make any Holders of the Securities of such series parties to any such proceedings.
In case of an Event of Default hereunder with
respect to Securities of a particular series, the Trustee may, but shall not be under any obligation to, proceed to protect and enforce
the rights vested in it by this Indenture by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect
and enforce any of such rights, either by suit in equity or by action at law or by proceedings in bankruptcy or otherwise, whether for
the specific enforcement of any covenant or agreement contained in this Indenture or in aid of the exercise of any power granted in this
Indenture, or to enforce any other legal or equitable right vested in the Trustee by this Indenture or by law. The Trustee is authorized
to file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and
the Holders of the Securities allowed in any judicial proceedings relative to the Company (or any other obligor upon the Securities),
its creditors or their property and shall be entitled and empowered to collect, receive and distribute any money or other property payable
or deliverable on any such claims and any custodian in any such judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee, and in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay
to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.07. To the extent that the payment of any such compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.07
out of the estate in any such proceeding, shall be unpaid for any reason, payment of the same shall be secured by a lien on, and shall
be paid out of, any and all distributions, dividends, money, securities and other properties that the Holders may be entitled to receive
in such proceeding whether in liquidation or under any plan of reorganization or arrangement or otherwise. The Trustee may, on behalf
of the Holders, vote for the election of a trustee in bankruptcy or similar official and be a member of a creditors’ committee
or other similar committee. Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or
adopt on behalf of the Holder any plan of reorganization, arrangement, adjustment or composition affecting the Securities of any series
or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
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6.04 Application
of Proceeds. Any money or property collected by the Trustee with respect to a series of Securities pursuant to Section 6.03,
and after an Event of Default any money or other property distributable in respect of the Company’s obligations under this Indenture,
shall be applied in the following order, at the date or dates fixed by the Trustee for the distribution of such moneys or property:
FIRST: To the payment of all costs and expenses
in connection with the collection of such moneys, and all amounts payable to the Trustee, its agents and attorneys under Section 7.07;
and
SECOND: To the payment of the entire amounts then
due and unpaid upon the Securities in respect of which or for the benefit of which such moneys shall have been collected, without any
preference or priority, ratably according to the amounts due and payable upon such Securities upon presentation of the several Securities
and notation of such payment thereon, if partly paid, and upon surrender thereof, if fully paid.
Any surplus then remaining shall be paid to the
Company.
6.05 Limitations
on Suits by Holders. Except as set forth in Section 316(b) of the Trust Indenture Act, no Holder of any Security of any
series shall have any right by virtue or by availing itself of any provision of this Indenture to institute any suit, action or proceeding
in equity or at law upon or under or with respect to this Indenture or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless (1) such Holder previously shall have given to the Trustee written notice of an Event of Default and of
the continuance thereof with respect to the Securities of such series, (2) the Holders of no fewer than 25% in aggregate principal
amount of the Outstanding Securities of that series shall have made written request upon the Trustee to institute such action, suit or
proceeding in its own name as Trustee hereunder and shall have offered, and if requested, provided to the Trustee such security or indemnity
as it may require against the costs, expenses and liabilities which may be incurred therein or thereby, (3) the Trustee for 60 days
after its receipt of such notice, request and offer of security or indemnity, shall have failed to institute any such action, suit or
proceeding and (4) no direction inconsistent with such written request shall have been given to the Trustee pursuant to Section 6.07;
it being understood and intended, and being expressly covenanted by the Holder of every Security of such series with every other Holder
of Securities of such series and the Trustee, that no one or more Holders of the Securities of such series shall have any right in any
manner whatever by virtue or by availing itself of any provision of this Indenture to affect, disturb or prejudice the rights of the
Holders of any other of Securities or to obtain priority over or preference to any other such Holder, or to enforce any right under this
Indenture, except in the manner herein provided and for the equal, ratable and common benefit of all Holders of the Securities of such
series.
6.06 Powers
and Remedies Cumulative; Delay or Omission Not Waiver. All powers and remedies given by this Article VI to the Trustee
or to the Holders of the Securities of any series shall, to the extent permitted by law and subject to Section 6.05, be deemed
cumulative and not exclusive of any other such powers and remedies or of any other powers or remedies available to the Trustee or such
Holders, by judicial proceedings or otherwise, to enforce the performance or observance of the covenants and agreements contained in
this Indenture, and no delay or omission of the Trustee or of any Holder of the Securities of any series to exercise any right or power
accruing upon any default occurring and continuing as aforesaid, shall impair any such right or power, or shall be construed to be a
waiver of any such default or an acquiescence therein, and, subject to Section 6.05, every power and remedy given by this
Article VI or by law to the Trustee or to such Holders may be exercised from time to time, and as often as shall be deemed
expedient, by the Trustee or by such Holders.
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6.07 Control
by Holders; Waiver of Default. The Holders of not less than a majority in aggregate principal amount of the Outstanding Securities
of all series affected by an Event of Default voting as a single class shall have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee with
respect to Securities of each such series; provided, however, that such direction shall not be otherwise than in accordance
with law and the provisions of this Indenture, involve the Trustee in personal liability or have been determined by the Trustee to be
unduly prejudicial to the rights of other Holders (it being understood that the Trustee does not have an affirmative duty to ascertain
whether or not any such directions are unduly prejudicial to such Holders); provided, further, that nothing in this Indenture
shall impair the right of the Trustee to take any action deemed proper by the Trustee and that is not inconsistent with such direction
by such Holders. The Holders of not less than a majority in aggregate principal amount of the Outstanding Securities of all series with
respect to which a default shall have occurred and be continuing voting as a single class may on behalf of the Holders of all
of the Securities of such affected series waive any past default hereunder with respect to the securities of such affected series and
its consequences, except that, unless otherwise specified with respect to any Securities pursuant to Section 3.01, no such
waiver shall be permitted with respect to any default of any provision which, under the terms of the Indenture, cannot be modified or
amended without the consent of the Holder of each Security of such series so affected (including a default in the payment of the principal
of, premium, if any, or interest, if any, on any of the Securities of such series) (provided, however, that the Holders
of at least a majority in aggregate principal amount of the Outstanding Securities of all series so accelerated voting as a single
class may rescind an acceleration and its consequences, including any related payment default that resulted from such acceleration).
In the case of any such waiver, such default shall cease to exist, any Event of Default arising from such default shall be deemed to
have been cured for every purpose of this Indenture, and the Company, any Guarantors, the Trustee and the Holders of the Securities of
each series shall be restored to their former positions and rights hereunder, respectively, but no such waiver shall extend to any subsequent
or other default, except as may be provided for in the definition of “default.”
6.08 Undertaking
for Costs. In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any
action taken or omitted by it as a Trustee, a court in its discretion may require the filing by any party litigant in the suit of an
undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’
fees and expenses, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made
by the party litigant; provided, however, that this Section 6.08 shall not apply to a suit by the Trustee or
the Company, a suit by a Holder pursuant to Section 6.05 hereof, or a suit by Holders of more than 10% in principal amount
of the then Outstanding Securities of any series.
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Article VII
CONCERNING THE TRUSTEE
7.01 Certain
Duties and Responsibilities.
(a) The
Trustee, prior to the occurrence of an Event of Default and after the curing or waiver of all Events of Default that may have occurred,
undertakes to perform such duties and only such duties as are specifically set forth in this Indenture. If an Event of Default has occurred
and is continuing and is known to the Trustee, the Trustee shall exercise the rights and powers vested in it by this Indenture and use
the same degree of care and skill in its exercise as a prudent person would exercise or use under the circumstances in the conduct of
such person’s own affairs; provided that if an Event of Default occurs and is continuing, the Trustee will be under no obligation
to exercise any of the rights or powers under this Indenture at the request or direction of any of the Holders unless such Holders have
offered to the Trustee indemnity or security reasonably satisfactory to it against any loss, liability or expense that might be incurred
by it in compliance with such request or direction.
(b) Except
during the continuance of an Event of Default,
(i) the
Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants
or obligations shall be read into this Indenture against the Trustee; and
(ii) in
the absence of gross negligence, willful misconduct or bad faith on its part, the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming
to the requirements of this Indenture; but in the case of any such certificates or opinions which by the provisions hereof are specifically
required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform
to the requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated
therein).
(c) In
case an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a prudent Person would exercise or use under the circumstances
in the conduct of such Person’s own affairs.
(d) No
provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent
failure to act or its own willful misconduct except that (i) this Section 7.01(d) shall not be construed to limit the
effect of Section 7.01(a) and (ii) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible
Officer, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts; (iii) the Trustee shall not
be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with a direction received by it pursuant
to Section 6.07 and (iv) no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or if it shall
have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably
assured to it.
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(e) Whether
or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section 7.01.
(f) The
permissive rights or powers of the Trustee to do things enumerated in this Indenture shall not be construed as a duty of the Trustee.
(g) None
of the Trustee or any agent of the Trustee shall have any responsibility or liability for any actions taken or not taken by the Depositary.
7.02
Notice of Defaults. If a default or an Event of Default occurs and is continuing with
respect to the Securities of any series and is known to the Trustee, the Trustee shall deliver to all Holders of the Securities of
such series, as their names and addresses appear in the Security Register, notice of such default or Event of Default hereunder
known to the Trustee within 90 days after obtaining such knowledge, unless such default shall have been cured or waived; provided, however,
that, except in the case of a default or an Event of Default in the payment of the principal of, premium, if any, or interest on any
Security of such series, the Trustee shall be protected in withholding such notice to the Holders if and so long as it in good faith
determines that the withholding of such notice is in the interest of the Holders of the Securities of such series.
7.03
Certain Rights of Trustee. Subject to the provisions of
Section 7.01:
(a) the
Trustee may conclusively rely as to the truth of the statements and correctness of the opinions expressed therein and shall be fully
protected in acting or refraining from acting upon any resolution, Officer’s Certificate, certificate of auditors or any other
certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence
of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) any
request or direction of the Company mentioned herein shall be sufficiently evidenced by an instrument or written order signed in the
name of the Company by an Authorized Officer and any resolution of the Board of Directors of the Company may be sufficiently evidenced
by a Board Resolution of the Company;
(c) whenever
in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering
or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith
on its part, conclusively rely upon an Officer’s Certificate;
(d) the
Trustee may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
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(e) the
Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall have offered to the Trustee security or indemnity reasonably
satisfactory to the Trustee against the costs, expenses and liabilities which might be incurred by it in compliance with such request
or direction;
(f) the
Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see
fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled (subject to reasonable confidentiality
arrangements as may be proposed by the Company or any Guarantor) to make reasonable examination (upon prior notice and during regular
business hours) of the books, records and premises of the Company or a Guarantor, personally or by agent or attorney at the sole cost
of the Company and shall incur no liability or additional liability of any kind by reason of such inquiry or investigation;
(g) the
Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or
attorneys or custodians or nominees and the Trustee shall not be responsible for the supervision of, or any misconduct or negligence
on the part of any agent or attorney appointed with due care by it hereunder;
(h) the
Trustee shall not be liable for any action taken, suffered, or omitted to be taken by it in good faith and reasonably believed by it
to be authorized or within the discretion or rights or powers conferred upon it by this Indenture;
(i) the
rights, privileges, protections, immunities and benefits given to the Trustee, including its right to be indemnified, are extended to,
and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to
act hereunder;
(j) the
Trustee shall not be deemed to have notice of any default or Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee at the Corporate Trust
Office of the Trustee, and such notice references the Securities and this Indenture;
(k) in
no event shall the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever
(including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or
damage and regardless of the form of action;
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(l) the
Trustee may request that the Company deliver a certificate setting forth the names of individuals and/or titles of officers authorized
at such time to take specified actions pursuant to this Indenture;
(m) the
Trustee shall not be required to give any bond or surety in respect of the performance of its powers and duties hereunder;
(n) in
no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising
out of or caused by, directly or indirectly, forces beyond its control, including strikes, work stoppages, accidents, acts of war or
terrorism, civil or military disturbances, epidemics, recognized public emergencies, quarantine restrictions, nuclear or natural catastrophes
or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services, and
hacking, cyber-attacks, or other use or infiltration of the Trustee’s technological infrastructure exceeding authorized access
or other unavailability of the Federal Reserve Bank wire or electronic or other wire or communication facility; it being understood that
the Trustee shall use reasonable efforts that are consistent with accepted practices in the banking industry to resume performance as
soon as practicable under the circumstances; and
(o) before
the Trustee acts or refrains from acting, it may require an Officer’s Certificate and/or an Opinion of Counsel. The Trustee shall
not be liable for any action it takes or omits to take in good faith in reliance on an Officer’s Certificate or Opinion of Counsel.
7.04 Not
Responsible for Recitals or Issuance of Securities. The recitals contained herein and in the Securities, except the Trustee’s
certificates of authentication, shall be taken as the statements of the Company, and the Trustee or any Authenticating Agent assumes
no responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or
of the Securities. The Trustee shall not be accountable for the use or application by the Company of Securities or the proceeds thereof.
7.05 May Hold
Securities. The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar, any Depositary Custodian or any other
agent of the Company or any Guarantor, in its individual or any other capacity, may become the owner or pledgee of Securities and, subject
to Sections 7.08 and 7.13, may otherwise deal with the Company or a Guarantor with the same rights it would have if
it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar, Depositary Custodian or such other agent.
7.06 Money
Held in Trust. Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required
by law. The Trustee shall be under no liability for interest on any money received by it hereunder except as otherwise agreed in writing
with the Company.
7.07 Compensation
and Reimbursement. The Company and each Guarantor, jointly and severally, agrees (1) to pay to the Trustee, and the Trustee
shall be entitled to, from time to time such compensation as the Company and the Trustee shall from time to time agree in writing for
all services rendered by it hereunder (which compensation shall not be limited by any provision of law in regard to the compensation
of a trustee of an express trust); (2) except as otherwise expressly provided herein, to promptly reimburse the Trustee upon its
request for all reasonable and documented expenses, disbursements and advances incurred or made by the Trustee in accordance with any
provision of this Indenture (including the reasonable and documented compensation and the reasonable and documented expenses and disbursements
of its agents and counsel), except any such expense, disbursement or advance as shall have been determined to have been caused by its
own negligence or willful misconduct as determined by a final order of a court of competent jurisdiction; and (3) to indemnify the
Trustee, its directors, officers, agents and employees for, and to hold them harmless against, any and all loss, damage, claim, liability
or expense incurred without gross negligence or willful misconduct on its part, as determined by a final order of a court of competent
jurisdiction, including taxes (other than taxes based upon, measured by or determined by the revenue or income of the Trustee), arising
out of or in connection with the acceptance or administration of this trust, including the costs and expenses of defending itself against
any claim (whether asserted by the Company, a Holder or any other Person) or liability in connection with the exercise or performance
of any of its powers or duties hereunder, including enforcement of this Section 7.07.
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To secure the payment of obligations of the Company
and each Guarantor under this Section 7.07, the Trustee shall have a lien prior to the Securities as to all property and
funds held by it hereunder for any amount owing to it pursuant to this Section 7.07, except with respect to funds held in
trust for the benefit of the Holders of particular Securities.
When the Trustee incurs expenses or renders services
in connection with an Event of Default specified in Section 6.01(6) or Section 6.01(7), the expenses (including
the reasonable charges and expenses of its counsel) and the compensation for the services are intended to constitute expenses of administration
under any applicable federal or state bankruptcy, insolvency or other similar law.
Notwithstanding any provisions of this Indenture,
the provisions of this Section 7.07 shall survive the resignation or removal of the Trustee and any satisfaction and discharge
of this Indenture.
7.08 Conflicting
Interests. If the Trustee has or shall acquire a conflicting interest within the meaning of the Trust Indenture Act, the Trustee
shall either eliminate such interest or resign, to the extent and in the manner provided by, and subject to the provisions of, this Indenture.
7.09 Corporate
Trustee Required; Eligibility. There shall at all times be a Trustee hereunder which shall be a Person (a) that is a corporation
organized and doing business under the laws of the United States of America or of any state thereof that is authorized under such laws
to exercise corporate trustee power, (b) that is subject to supervision or examination by federal or state authorities, (c) that
has, or is a wholly owned subsidiary of a bank holding company that has, a combined capital and surplus of at least $50,000,000, and
(d) that is not the Company or any person directly or indirectly controlling, controlled by, or under common control with the Company.
If such Person publishes reports of condition at least annually, pursuant to law or to the requirements of a federal or state supervising
or examining authority, then for the purposes of this Section 7.09, the combined capital and surplus of such Person shall
be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the
Trustee shall cease to be eligible in accordance with the provisions of this Indenture, it shall resign immediately in the manner and
with the effect hereinafter specified in this Article VII.
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7.10 Resignation
and Removal; Appointment of Successor.
(a) No
resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article VII shall become effective
until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 7.11.
(b) The
Trustee may resign with respect to the Securities of one or more series at any time by giving written notice thereof to the Company.
If an instrument of acceptance by a successor Trustee with respect to such series in accordance with the applicable requirements of Section 7.11
shall not have been delivered to the Company and the resigning Trustee within 30 days after the giving of such notice of resignation,
the resigning Trustee may petition, at the expense of the Company, any court of competent jurisdiction for the appointment of a successor
Trustee with respect to such series.
(c) The
Trustee may be removed at any time with respect to the Securities of any series by (i) action of the Holders of a majority in principal
amount of the Outstanding Securities of such series, delivered to the Trustee and to the Company, or (ii) except during the continuance
of a default or Event of Default, the Company, by a Board Resolution. If an instrument of acceptance by a successor Trustee with respect
to such series in accordance with the applicable requirements of Section 7.11 shall not have been delivered to the Company
and the Trustee being removed within 30 days after the giving of such notice of removal, the Trustee being removed may petition,
at the expense of the Company, any court of competent jurisdiction for the appointment of a successor Trustee with respect to such series.
(d) If
at any time:
(i) the
Trustee shall fail to comply with Section 7.08 after written request therefor by the Company or by any Holder who has been
a bona fide Holder of a Security for at least six months, or
(ii) the
Trustee shall cease to be eligible under Section 7.09 and shall fail to resign after written request therefor by the Company,
any Guarantor or by any such Holder, or
(iii) the
Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation;
then, in any such case, (A) the Company or any Guarantor, in
each case by a Board Resolution, may remove the Trustee, or (B) subject to Section 6.08, any Holder who has been a bona
fide Holder of a Security for at least six months may, on behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.
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(e) If
the Trustee shall resign, be removed or become incapable of acting with respect to the Securities of any series, or if a vacancy shall
occur in the office of Trustee with respect to the Securities of any series for any cause, the Company, by a Board Resolution, shall
promptly appoint a successor Trustee with respect to such series. If, within one year after such resignation, removal or incapability,
or the occurrence of such vacancy, a successor Trustee shall be appointed by action of the Holders of a majority in principal amount
of the Outstanding Securities of such series delivered to the Company and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment in accordance with the applicable requirements of Section 7.11, become
the successor Trustee and supersede the successor Trustee appointed by the Company. If no successor Trustee shall have been so appointed
by the Company or the Holders and accepted appointment in accordance with the applicable requirements of Section 7.11, any Holder
who has been a bona fide Holder of a Security for at least six months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a successor Trustee.
(f) The
Company shall give notice of each resignation and each removal of the Trustee and each appointment of a successor Trustee to all Holders
in the manner provided in Section 1.05. Each notice shall include the name of the successor Trustee and the address of its Corporate
Trust Office.
(g) The
resignation or removal of the Trustee pursuant to this Section 7.10 shall not affect the obligation of the Company to indemnify
the Trustee pursuant to Section 7.07(3) in connection with the exercise or performance by the Trustee prior to its resignation
or removal of any of its powers or duties hereunder.
(h) No
Trustee under this Indenture shall be liable for any action or omission of any successor Trustee.
7.11 Acceptance
of Appointment by Successor. Every successor Trustee appointed hereunder shall execute, acknowledge and deliver to the Company and
to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall
become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee; but, on request of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of
the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder. Upon request of any such successor Trustee, the Company shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers and trusts.
No successor Trustee shall accept its appointment
unless at the time of such acceptance such successor Trustee shall be qualified and eligible under this Article VII.
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7.12 Merger,
Conversion, Consolidation or Succession to Business. Any corporation into which the Trustee may be merged or converted or with which
it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party,
or any corporation succeeding to all or substantially all the corporate trust business of the Trustee, shall be the successor of the
Trustee hereunder; provided, however, that such corporation shall be otherwise qualified and eligible under this Article VII,
without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Securities shall
have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor
Trustee had itself authenticated such Securities.
7.13 Preferential
Collection of Claims Against the Company or a Guarantor. If and when the Trustee shall be or become a creditor of the Company or
a Guarantor (or any other obligor upon the Securities), the Trustee shall be subject to the provisions of the Trust Indenture Act regarding
the collection of claims against the Company or such Guarantor (or any such other obligor).
7.14 Appointment
of Authenticating Agent. The Trustee may appoint an Authenticating Agent or Agents which shall be authorized to act on behalf of
the Trustee to authenticate Securities issued upon original issue and upon exchange, registration of transfer or partial redemption or
partial purchase or pursuant to Section 3.06, and Securities so authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. Wherever reference is made in this Indenture
to the authentication and delivery of Securities by the Trustee or the Trustee’s certificate of authentication, such reference
shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the Company and shall
at all times be a corporation organized and doing business under the laws of the United States of America, any State thereof or the District
of Columbia, authorized under such laws to act as Authenticating Agent, having a combined capital and surplus of not less than $50,000,000
and subject to supervision or examination by federal or state authority. If such Authenticating Agent publishes reports of condition
at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section 7.14,
the combined capital and surplus of such Authenticating Agent shall be deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published. If at any time an Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section 7.14, such Authenticating Agent shall resign immediately in the manner and with the effect specified
in this Section 7.14.
Any corporation into which an Authenticating Agent
may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation
to which such Authenticating Agent shall be a party, or any corporation succeeding to all or substantially all of the corporate agency
or corporate trust business of an Authenticating Agent, shall continue to be an Authenticating Agent; provided that such corporation
shall be otherwise eligible under this Section 7.14, without the execution or filing of any paper or any further act on the part
of the Trustee or the Authenticating Agent.
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An Authenticating Agent may resign at any time by
giving written notice thereof to the Trustee and to the Company. The Trustee may at any time terminate the agency of an Authenticating
Agent by giving written notice thereof to such Authenticating Agent and to the Company. Upon receiving such a notice of resignation or
upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the provisions
of this Section 7.14, the Trustee may appoint a successor Authenticating Agent which shall be acceptable to the Company and shall
give notice of such appointment in the manner provided in Section 1.05, to all Holders as their names and addresses appear in the
Security Register. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the rights,
powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating
Agent shall be appointed unless eligible under the provisions of this Section 7.14.
The Company agrees to pay to each Authenticating
Agent from time to time reasonable compensation for its services under this Section 7.14.
If an appointment is made pursuant to this Section 7.14,
the Securities may have endorsed thereon, in addition to the Trustee’s certificate of authentication, an alternative certificate
of authentication in the following form:
This is one of the Securities described in the within-mentioned
Indenture.
Dated:
TRUIST BANK, as Trustee
By
As Authenticating Agent
By
Authorized Signatory
Article VIII
HOLDERS LISTS AND REPORTS BY TRUSTEE AND PARENT GUARANTOR
8.01 Company
to Furnish Trustee Names and Addresses of Holders. In accordance with Section 312(a) of the Trust Indenture Act, the Company
(and to the extent applicable under Section 312(a) of the Trust Indenture Act, any other obligor) shall furnish, or cause to
be furnished to the Trustee:
(a) semi-annually
with respect to Securities of each series, within 15 days after each Regular Record Date, of each year or upon such other dates as are
set forth in or pursuant to the Board Resolution, Officer’s Certificate or supplemental indenture authorizing such series, a list,
in each case in such form as the Trustee may reasonably require, of the names and addresses of Holders as of the applicable date; and
(b) within
30 days after the receipt by the Company of any written request from the Trustee, a list of similar form and content as of a date not
more than 15 days prior to the time such list is furnished; provided, however, that so long as the Trustee is the Security
Registrar no such list shall be required to be furnished.
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8.02 Reports
by Trustee.
(a) The
Trustee shall transmit to Holders such reports concerning the Trustee and its actions under this Indenture as may be required pursuant
to the Trust Indenture Act at the times and in the manner provided pursuant thereto. If required by Section 313(a) of the Trust
Indenture Act, the Trustee shall, within 60 days after each anniversary date following the first issuance of Securities pursuant to Section 3.01,
transmit, pursuant to Section 313(c) of the Trust Indenture Act, a brief report dated as of such anniversary date with respect
to any of the events specified in said Sections 313(a) and 313(b)(2) of the Trust Indenture Act which may have occurred since
the later of the immediately preceding anniversary date and the date of this Indenture.
(b) The
Trustee shall transmit the reports required by Section 313(a) of the Trust Indenture Act at the times specified therein.
(c) Reports
pursuant to this Section 8.02 shall be transmitted in the manner and to the Persons required by Sections 313(c) and
313(d) of the Trust Indenture Act.
8.03 Reports
by the Parent Guarantor.
(a) To
the extent required by Section 314(a) of the Trust Indenture Act, the Parent Guarantor shall, so long as the Securities of
any series of Securities are Outstanding, file with the Trustee such information, documents and other reports as may be required to comply
with the provisions of Section 314(a) of the Trust Indenture Act.
(b) Reports,
information and documents filed by the Parent Guarantor with the SEC via EDGAR (or any successor system thereto) will be deemed filed
with the Trustee for purposes of this Section 8.03 as of the time that such reports, information and documents are filed
via EDGAR (or any successor system thereto).
(c) Delivery
of reports, information and documents to the Trustee under this Section 8.03 are for informational purposes only, and the
Trustee’s receipt of the foregoing shall not constitute constructive or actual notice or knowledge of any information contained
therein or determinable from information contained therein, including the Company’s, the Parent Guarantor’s or any Guarantor’s
compliance with any of their covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates).
The Trustee shall have no obligation whatsoever to determine whether or not such information, documents or reports have been filed under
any filing system or posted to any website.
Article IX
CONCERNING THE HOLDERS
9.01 Evidence
of Action Taken by Holders. Whenever in this Indenture it is provided that the Holders of a specified percentage or a majority in
aggregate principal amount of the Securities or of any or all series of Securities may take any action (including the making of any demand
or request, the giving of any notice, consent or waiver or the taking of any other action) the fact that at the time of taking any such
action the Holders of such specified percentage or majority have joined therein may be evidenced (i) by any instrument or any number
of instruments of similar tenor executed by Holders in person or by agent or proxy appointed in writing, (ii) by the record of the
Holders of the Securities voting in favor thereof at any meeting of Holders duly called and held in accordance with the rules and
procedures established pursuant to Article X or (iii) by a combination of such instrument or instruments and any such
record of such a meeting of Holders.
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Members of, or participants in, a Depositary shall
have no rights under this Indenture with respect to any Global Security held on their behalf by the Depositary or by the Depositary Custodian
or under such Global Security, and the Depositary may be treated by the Company, the Trustee and any agent of the Company or the Trustee
as the absolute owner of such Global Security for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent
the Company, the Trustee or any agent of the Company or the Trustee from giving effect to any written certification, proxy or other authorization
furnished by the Depositary or impair, as between the Depositary and its agent members, the operation of customary practices of the Depositary
governing the exercise of the rights of a holder of a beneficial interest in any Global Security.
9.02 Proof
of Execution of Instruments and of Holding of Securities. Subject to the provisions of Section 7.03 and Section 315
of the Trust Indenture Act, proof of the execution of any instrument by a Holder or its agent or proxy and proof of the holding by any
Person of any of the Securities shall be sufficient if made in the following manner:
The fact and date of the execution by any such
Person of any instrument may be proved by the certificate of any notary public or other officer authorized to take acknowledgments of
deeds to be recorded in any state within the United States, that the Person executing such instrument acknowledged to such notary or
other officer the execution thereof, or by an affidavit of a witness to such execution sworn to before any such notary or other such
officer. Where such execution is by an officer of a corporation or association or a member of a partnership on behalf of such corporation,
association or partnership, such certificate or affidavit shall also constitute sufficient proof of such officer’s or member’s
authority. The fact and date of the execution of any such instrument may also be proved in any other manner which the Trustee may deem
sufficient.
The ownership of Securities may be proved by the
Security Register or by a certificate of the Security Registrar.
If the Company shall solicit from the Holders
of the Securities of any series any request, demand, authorization, direction, notice, consent, waiver or other act, the Company may,
at its option, by Board Resolution, fix in advance a record date for the determination of Holders of the Securities entitled to give
such request, demand, authorization, direction, notice, consent, waiver or other act, but the Company shall have no obligation to do
so. Any such record date shall be fixed at the discretion of the Company. If such a record date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other act may be sought or given before or after the record date, but only the Holders of the Securities
of record at the close of business on such record date shall be deemed to be the Holders of the Securities for the purpose of determining
whether Holders of the requisite proportion of Securities of such series Outstanding have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or other act, and for that purpose the Securities of such series Outstanding
shall be computed as of such record date.
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The Trustee may require such additional proof,
if any, of any matter referred to in this Section 9.02 as it shall deem necessary.
9.03 Right
of Revocation of Action Taken. At any time prior to (but not after) the evidencing to the Trustee, as provided in Section 9.01,
of the taking of any action by the Holders of the percentage in aggregate principal amount of the Securities or of any series of Securities
specified in this Indenture in connection with such action, any Holder of a Security which is shown, by evidence, to be included in the
Securities the Holders of which have consented to such action may, by filing written notice with the Trustee at its principal office
and upon proof of holding as provided in Section 9.02, revoke such action so far as concerns such Security. Except as aforesaid,
any such action taken by the Holder of any Security shall be conclusive and binding upon such Holder and upon all future holders and
owners of such Security, and of any Security issued in exchange therefor or in place thereof, irrespective of whether or not any notation
in regard thereto is made upon such Security or any Security issued in exchange therefor or in place thereof. Any action taken by the
Holders of the percentage in aggregate principal amount of the Securities specified in this Indenture in connection with such action
shall be conclusively binding upon the Company, the Trustee and the Holders of all the Securities.
Article X
HOLDERS’ MEETINGS
10.01 Rules for
Meetings. The Trustee may make reasonable rules and procedures for meetings of Holders.
Article XI
SUPPLEMENTAL INDENTURES
11.01 Supplemental
Indentures Without Consent of Holders. The Company, any applicable Guarantor, and the Trustee may from time to time and at any time
enter into one or more supplemental indentures hereto (which shall, but only to the extent applicable, conform to the provisions of the
Trust Indenture Act as it shall be in force at the date of execution of such supplemental indenture or indentures) for one or more of
the following purposes:
(1) to
convey, transfer, assign, mortgage or pledge to the Trustee as security for all or any series
of Securities any property or assets that the Company may desire;
(2) to
evidence the succession of another entity to the Company or any Guarantor, as applicable,
and the assumption by the successor entity of the covenants, agreements and obligations of
the Company or such Guarantor, as applicable, pursuant to Article XII;
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(3) to
add to or modify the covenants and agreements of the Company for the protection of the Holders
of the Securities of all or any series (and if such covenants, agreements, restrictions or
conditions are to be for the benefit of fewer than all series of Securities, stating that
such covenants, agreements, restrictions or conditions are expressly being included solely
for the benefit of such series);
(4) to
add or modify any Events of Default for the benefit of the Holders of the Securities of all
or any series (and if such additional or modified Events of Default are to be for the benefit
of fewer than all series of Securities, stating that such additional or modified Events of
Default are expressly being included solely for the benefit of such series);
(5) to
prohibit the authentication and delivery of additional series of Securities under this Indenture;
(6) to
cure any ambiguity, omission, mistake, defect or inconsistency;
(7) to
make such other provisions in regard to matters or questions arising under this Indenture
as shall not be inconsistent with the provisions of this Indenture or any supplemental indenture;
provided that such action shall not adversely affect the rights of Holders of the
Securities of any series in any material respect;
(8) to
establish the form and terms of the Securities of any series as permitted in Section 2.01,
Section 3.01 and Section 3.03, or to authorize the issuance of additional
Securities of a series previously authorized or to add to the conditions, limitations or
restrictions on the authorized amount, terms or purposes of issue, authentication or delivery
of the Securities of any series, as herein set forth, or other conditions, limitations or
restrictions thereafter to be observed;
(9) to
evidence and provide for the acceptance of appointment hereunder by a successor Trustee with
respect to the Securities of one or more series or to add to or change any of the provisions
of this Indenture as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to Article VII;
(10) to
provide for uncertificated Securities in addition to or in place of certificated Securities;
(11) to
delete, amend or supplement any provision contained herein or in any supplemental indenture
(which deletion, amendment or supplement may apply to one or more series of Securities or
may apply to this Indenture generally, including the amendment and restatement of this Indenture),
provided that such amendment or supplement does not (i) apply to any Security
of any series then Outstanding created or issued prior to the date of the supplemental indenture
pursuant to which such deletion, amendment or supplement, as the case may be, is made and
entitled to the benefit of such provision deleted, amended or supplemented by such supplemental
indenture or (ii) adversely modify the rights of the Holder of any such Security;
58
(12) to
add Guarantors or co-obligors for the benefit of the Securities of all or any series or to
release Guarantors from their Guarantees of Securities in accordance with the terms of the
applicable series of Securities;
(13) to
evidence or facilitate the release, termination, defeasance or discharge of a Guarantee of
the Securities of all or any series when such release, termination or defeasance, discharge
is permitted under the provisions of this Indenture;
(14) to
secure the Securities or Guarantees of the Securities of all or any series or to release
or discharge security for the Securities in accordance with the terms of the applicable series
of Securities;
(15) to
comply with the applicable procedures of the applicable Depositary;
(16) to
comply with the Trust Indenture Act or maintain the qualification of this Indenture under
the Trust Indenture Act; and
(17) to
conform the provisions of this Indenture and the Securities or any Guarantees of the Securities
to the description thereof contained in the applicable prospectus and any related prospectus
supplement.
Upon request of the Company, the Trustee is hereby
authorized to join with the Company and any applicable Guarantor in the execution of any such supplemental indenture, to make any further
appropriate agreements and stipulations which may be therein contained and to accept the conveyance, transfer, assignment, mortgage or
pledge of any property thereunder, but the Trustee shall not be obligated to enter into any such supplemental indenture if the Trustee
reasonably concludes that such supplemental indenture adversely affects the Trustee’s own rights, duties or immunities under this
Indenture.
Any supplemental indenture authorized by the provisions
of this Section 11.01 shall be executed by the Company and the Trustee and shall not require the consent of the Holders of
any of the Securities at the time Outstanding, notwithstanding Section 11.02.
11.02 Supplemental
Indentures With Consent of Holders. With the consent of (i) the Holders of not less than a majority in principal amount of the
Outstanding Securities voting as a single class or (ii) if fewer than all of the series of the Outstanding Securities are
affected by such addition, change, elimination or modification, the Holders of not less than a majority in principal amount of the Outstanding
Securities of all series so affected by such supplemental indenture voting as a single class (including, for the avoidance of
doubt, consents obtained in connection with a purchase of, or tender offer or exchange for, such debt securities), the Company, any applicable
Guarantor, and the Trustee may from time to time and at any time enter into an indenture or supplemental indentures hereto (which shall,
but only to the extent applicable, conform to the provisions of the Trust Indenture Act as shall be in force at the date of execution
of such supplemental indenture or indentures) for the purpose, with respect to Securities affected by such supplemental indenture, of
adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of any supplemental indenture
with respect to Securities affected by such supplemental indenture or of modifying in any manner the rights of the Holders of the Securities
of each such series; provided, however, that no such supplemental indenture shall, without the consent of the Holder of
each Security so affected:
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(a) change
the Stated Maturity of the principal of, or any installment of principal of or interest, if any, on any Security, or reduce the principal
amount thereof or the rate (or modify the calculation of such rate) of interest thereon, or reduce the amount payable upon redemption
thereof at the option of the Company, or reduce the amount of the principal of any Original Issue Discount Security that would be due
and payable upon a declaration of acceleration of the maturity thereof pursuant to Section 6.02;
(b) adversely
affect the right of any Holder to receive payment of the principal of and interest on any Security on the Stated Maturity thereof or
impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof, in each case as such
Stated Maturity may, if applicable, be extended in accordance with the terms of such Security, or, in the case of redemption at the option
of the Company, on or after the Redemption Date;
(c) change
the currency in which the principal of, any premium or interest on, any Security is payable;
(d) reduce
the percentage in principal amount of the Outstanding Securities of any series the consent of whose Holders is required for any such
supplemental indenture or the consent of whose Holders is required for any waiver (of compliance with certain provisions of this Indenture
or certain defaults hereunder and their consequences) provided for in Section 5.03 or Section 6.07 of this Indenture;
(e) modify
any of the provisions of this Section 11.02, Section 5.03 or Section 6.07, except to increase any
such percentage or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the
Holder of each Outstanding Security affected thereby; or
(f) if
the Securities of any series are convertible or exchangeable into any other securities or property of the Company or any Affiliate, make
any change that adversely affects in any material respect the right to convert or exchange any Security of such series (except as permitted
by Section 11.01) or decrease the conversion or exchange rate or increase the conversion price of any such Security of such
series, unless such decrease or increase is permitted by the terms of such Security.
Upon the written request of the Company and upon
the filing with the Trustee of evidence of the consent of the Holders as aforesaid, the Trustee shall join with the Company and any applicable
Guarantor in the execution of such supplemental indenture unless the Trustee reasonably concludes that such supplemental indenture adversely
affects the Trustee’s own rights, duties or immunities under this Indenture, in which case the Trustee may in its discretion but
shall not be obligated to enter into such supplemental indenture.
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A supplemental indenture which changes or eliminates
any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular
series of Securities, or which modifies the rights of the Holders of Securities of such series with respect to such covenant or provision,
shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series.
It shall not be necessary for the consent of the
Holders under this Section 11.02 to approve the particular form of any proposed supplemental indenture, but it shall be sufficient
if such consent shall approve the substance thereof.
Promptly after the execution by the Company and
the Trustee of any supplemental indenture under this Section 11.02, the Company shall give notice, setting forth in general
terms the substance of such supplemental indenture, to the Holders of the applicable series of Securities in the manner provided in Section 1.05.
Any failure of the Company to give such notice, or any defect therein, shall not, however, in any way impair or affect the validity of
any such supplemental indenture.
The Company may set a record date for purposes
of determining the identity of the Holders of each series of Securities entitled to give a written consent or waive compliance by the
Company as authorized or permitted by this Section 11.02.
11.03 Effect
of Supplemental Indentures. Upon the execution of any supplemental indenture pursuant to the provisions of this Article XI,
this Indenture shall be and be deemed to be modified and amended in accordance therewith and the respective rights, limitation of rights,
obligations, duties and immunities under this Indenture of the Trustee, the Company, any Guarantors and the Holders of the Securities
shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments, and all
the terms and conditions of any such supplemental indenture shall be and be deemed to be part of the terms and conditions of this Indenture
for any and all purposes.
11.04 Notation
on Securities in Respect of Supplemental Indentures. Securities authenticated and delivered after the execution of any supplemental
indenture pursuant to the provisions of this Article XI or after any action taken at a Holders meeting pursuant to the provisions
of Article X may, and if required by the Trustee shall, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture or as to any such action. If the Company and the Trustee shall so determine, new Securities
of any series so modified as to conform, in the opinion of the Company and the Trustee, to any modification of this Indenture contained
in any such supplemental indenture may be prepared by the Company, authenticated by the Trustee and delivered in exchange for the Securities
of such series then Outstanding.
11.05 Opinion
of Counsel and Officer’s Certificate to Be Given to Trustee. The Trustee, subject to Section 7.03 and, to the extent
applicable, Section 315 of the Trust Indenture Act, shall be entitled to conclusively rely upon and shall be fully protected in
acting upon, or refraining from acting upon, an Opinion of Counsel and an Officer’s Certificate stating that any such supplemental
indenture is authorized or permitted by the terms of this Indenture.
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Article XII
CONSOLIDATION, MERGER AND SALE
12.01
Conditions to the Company’s Consolidation or Merger, etc.
(a) The
Company shall not consolidate with or merge with or into any other Person or sell, lease, transfer or otherwise dispose of all or substantially
all of the properties and assets of the Company and its Subsidiaries, taken as a whole, to any other Person (but excluding a sale, lease,
transfer or other disposition to the Parent Guarantor or any of its Subsidiaries) unless the successor entity is organized and validly
existing under the laws of the United States of America, any state thereof or the District of Columbia, and is treated as a corporation
for U.S. federal income tax purposes (or, if such entity is not treated as a corporation for U.S. federal income tax purposes, the Company
shall have delivered to the Trustee an Opinion of Counsel of a nationally recognized tax counsel to the effect that the beneficial owners
of such Outstanding Securities will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such consolidation,
merger, sale, lease, transfer or other disposition and will be subject to U.S. federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such consolidation, merger, sale, lease, transfer or other disposition had not occurred)
and (i) in the case of a merger, the Company shall be the continuing Person or (ii) in case the Company shall consolidate with
or merge into another Person (and the Company shall not be the continuing Person), or sell, lease, transfer or otherwise dispose of all
or substantially all of the properties and assets of the Company and its Subsidiaries, taken as a whole, to another Person (other than
the Parent Guarantor), (1) the Person formed by such consolidation or into which the Company is merged or the Person that acquires
by sale, lease, transfer or other disposition of all or substantially all of the properties and assets of the Company and its Subsidiaries,
taken as a whole, shall assume, by a supplemental indenture executed and delivered to the Trustee, the due and punctual payment of the
principal of (and premium, if any) and interest, if any, on the Securities, and the Company’s other obligations under this Indenture
and the Securities and (2) immediately after giving effect to such transaction, no Event of Default and no event which, after notice
or lapse of time or both, would become an Event of Default, shall have occurred and be continuing which has not otherwise been waived
or remedied in accordance with this Indenture.
(b) Every
such successor Person, upon executing such supplemental indenture, shall succeed to the Company, with the same effect as if it had been
an original party hereto and to the Securities (which succession shall (except in the case of a lease of all or substantially all of
the properties and assets of the Company and its Subsidiaries, taken as a whole) relieve the Company of all liabilities and discharge
the Company from all obligations and covenants, in each case under this Indenture and the Securities), and such successor Person shall
possess and from time to time may exercise each and every power hereunder of the Company, and any act or proceeding required by this
Indenture to be done or performed by any board, governing body or officer of the Company may be done or performed with like force and
effect by the like board or officer of such successor Person. In case of any such consolidation, merger, sale, lease, transfer or other
disposition, such changes in phraseology and form (but not in substance) may be made in the Securities thereafter to be issued as may
be appropriate.
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12.02 Conditions
to the Parent Guarantor’s Consolidation or Merger, etc.
(a) The
Parent Guarantor shall not consolidate with or merge with or into any other Person or sell, lease transfer or otherwise dispose of all
or substantially all of the properties and assets of the Parent Guarantor and its Subsidiaries, taken as a whole, to any other Person
(but excluding a sale, lease, transfer or other disposition to any Subsidiary of the Parent Guarantor) unless the successor entity is
organized and validly existing under the laws of the United States of America, any state thereof or the District of Columbia and (i) in
the case of a merger, the Parent Guarantor shall be the continuing Person or (ii) in case the Parent Guarantor shall consolidate
with or merge into another Person (and the Parent Guarantor shall not be the continuing Person), or sell, lease, transfer or otherwise
dispose of all or substantially all of the properties and assets of the Parent Guarantor and its Subsidiaries, taken as a whole, to another
Person, (1) the Person formed by such consolidation or into which the Parent Guarantor is merged or the Person that acquires by
sale, lease, transfer or other disposition of all or substantially all of the properties and assets of the Parent Guarantor and its Subsidiaries,
taken as a whole, shall assume, by a supplemental indenture executed and delivered to the Trustee, all of the Parent Guarantor’s
obligations under its Guarantee and this Indenture, and (2) immediately after giving effect to such transaction, no Event of Default
and no event which, after notice or lapse of time or both, would become an Event of Default, shall have occurred and be continuing which
has not otherwise been waived or remedied in accordance with this Indenture.
(b) Every
such successor Person, upon executing such supplemental indenture, shall succeed to the Parent Guarantor, with the same effect as if
it had been an original party hereto (which succession shall (except in the case of a lease of all or substantially all of the properties
and assets of Parent Guarantor and its Subsidiaries, taken as a whole) relieve the Parent Guarantor of all liabilities and discharge
the Parent Guarantor from all obligations and covenants, in each case under its Guarantee and this Indenture), and such successor Person
shall possess and from time to time may exercise each and every power hereunder of the Parent Guarantor, and any act or proceeding required
by this Indenture to be done or performed by any board, governing body or officer of the Parent Guarantor may be done or performed with
like force and effect by the like board or officer of such successor Person. In case of any such consolidation, merger, sale, lease,
transfer or other disposition, such changes in phraseology and form (but not in substance) may be made in the Securities thereafter to
be issued as may be appropriate.
12.03 Conditions
to Any Subsidiary Guarantor’s Consolidation or Merger, etc.
(a) No
Subsidiary Guarantor shall consolidate with or merge with or into any other Person or sell, lease, transfer or otherwise dispose of all
or substantially all of the properties and assets of such Subsidiary Guarantor and its Subsidiaries, taken as a whole, to another Person
(but excluding a sale, lease, transfer or other disposition to the Parent Guarantor or any of its Subsidiaries) unless the successor
entity is organized and validly existing under the laws of the United States of America, any state thereof or the District of Columbia
and (i) in the case of a merger, a Guarantor or the Company shall be the continuing Person or (ii) in case such Subsidiary
Guarantor shall consolidate with or merge into another Person (and a Guarantor or the Company shall not be the continuing Person), or
sell, lease, transfer or otherwise dispose of all or substantially all of the properties and assets of such Subsidiary Guarantor and
its Subsidiaries, taken as a whole, to another Person, (1) the Person formed by such consolidation or into which it is merged or
the Person that acquires by sale, lease, transfer or other disposition of all or substantially all of the properties and assets of such
Subsidiary Guarantor and its Subsidiaries, taken as a whole, shall assume, by supplemental indenture executed and delivered to the Trustee,
all of such Subsidiary Guarantor’s obligations and covenants, in each case under its Guarantee and this Indenture, and (2) immediately
after giving effect to such transaction, no Event of Default and no event which, after notice or lapse of time or both, would become
an Event of Default shall have occurred and be continuing which has not otherwise been waived or remedied in accordance with this Indenture;
provided, however, that the foregoing shall not apply to transactions pursuant to which such Subsidiary Guarantor will
be released from its obligations under its Guarantee and this Indenture in accordance with the terms of this Indenture.
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(b) Every
such successor Person, upon executing such supplemental indenture, shall succeed to the applicable Subsidiary Guarantor, with the same
effect as if it had been an original party hereto (which succession shall (except in the case of a lease of all or substantially all
of the properties and assets of such Subsidiary Guarantor and its Subsidiaries, taken as a whole) relieve such Subsidiary Guarantor of
all liabilities and discharge such Subsidiary Guarantor from all obligations and covenants, in each case under this Indenture and the
Securities), and such successor Person shall possess and from time to time may exercise each and every power hereunder of such Subsidiary
Guarantor, and any act or proceeding required by this Indenture to be done or performed by any board, governing body or officer of such
Subsidiary Guarantor may be done or performed with like force and effect by the like board or officer of such successor Person. In case
of any such consolidation, merger, sale, lease, transfer or other disposition, such changes in phraseology and form (but not in substance)
may be made in the Securities thereafter to be issued as may be appropriate.
(c) Notwithstanding
the foregoing in this Article XII, (i) the Parent Guarantor, the Company or any Subsidiary Guarantor may sell, lease,
transfer or otherwise dispose of all or part of its properties and assets to the Parent Guarantor or any of its Subsidiaries, (ii) the
Parent Guarantor or any Subsidiary Guarantor may convert into a corporation, partnership, limited partnership, limited liability company,
trust or other entity organized under the laws of the United States of America, any state thereof or the District of Columbia and (iii) any
Subsidiary Guarantor may consolidate with or merge with or into, or sell, lease, transfer or otherwise dispose of all or part of its
properties and assets to the Company, the Parent Guarantor or another Subsidiary Guarantor or Person that becomes a Subsidiary Guarantor.
12.04 Documents
and Opinion to Be Furnished to the Trustee. If the Company or any Guarantor shall consolidate with or merge into any other Person,
or if it shall sell or transfer all or substantially all of its properties and assets, it will promptly furnish to the Trustee an Officer’s
Certificate and an Opinion of Counsel, each stating that its covenants contained in Section 12.01, Section 12.02
or Section 12.03 as and to the extent applicable, have been complied with.
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Article XIII
SATISFACTION AND DISCHARGE OF INDENTURE; DEFEASANCE; UNCLAIMED MONEYS
13.01 Satisfaction
and Discharge. Unless pursuant to Section 3.01, this Section 13.01 is declared not applicable with respect
to the Securities of any series, upon the direction of the Company by a written order, this Indenture shall cease to be of further effect
with respect to any series of Securities specified in such written order, and the Trustee, on receipt of such written order, the amounts,
the Officer’s Certificate and the Opinion of Counsel required by this Section 13.01, at the expense of the Company, shall
execute instruments reasonably requested by the Company acknowledging satisfaction and discharge of this Indenture as to such series,
when
(a) either:
(i) all
Securities of such series theretofore authenticated and delivered (other than (1) Securities of such series that have been destroyed,
lost or stolen and that have been replaced or paid as provided in Section 3.06 and (2) Securities of such series for
whose payment money in the currency in which such Securities are then specified as payable has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust, as provided in Section 13.05)
have been delivered to the Trustee for cancellation; or
(ii) all
Securities of such series not theretofore delivered to the Trustee for cancellation:
(1) have
become due and payable,
(2) will
become due and payable at their Stated Maturity within one year, or
(3) if
redeemable at the option of the Company, are to be called for redemption within one year under arrangements reasonably satisfactory to
the Trustee for the giving of notice of redemption by the Trustee in the name,
and at the expense, of the Company, and the Company, in the
case of (1), (2) or (3) above, has deposited or caused to be deposited with the Trustee as trust funds in trust for such purpose,
money in the currency in which the Securities are payable, or Government Obligations (determined on the basis of the currency in which
such Securities are then specified as payable at Stated Maturity), or a combination thereof, as applicable, in an amount sufficient to
pay and discharge the entire indebtedness on such Securities not theretofore delivered to the Trustee for cancellation, including the
principal of, any premium and interest on such Securities, to the date of such deposit (in the case of Securities which have become due
and payable) or to the Stated Maturity thereof or Redemption Date, as the case may be; provided that in connection with any redemption
that requires the payment of the premium, the amount deposited shall be sufficient to the extent that an amount is deposited with the
Trustee equal to such premium calculated as of the date of the deposit, with any deficit as of the Redemption Date only required to be
deposited with the Trustee on or prior to 11:00 a.m. Eastern Time on the Redemption Date;
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(b) the
Company has paid or caused to be paid all other sums payable hereunder by the Company with respect to the Outstanding Securities of such
series; and
(c) the
Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this Indenture as to such series have been complied with; provided
that any such counsel may rely on any Officer’s Certificate as to matters of fact (including with respect to clauses (a) and
(b) above).
In the event there are Securities of two or more
series Outstanding hereunder, the Trustee of each such series shall be required to execute an instrument acknowledging satisfaction and
discharge of this Indenture only with respect to Securities of such series as to which it is Trustee and if the other conditions specified
in this Section 13.01 are met. Upon the Company being deemed to have been satisfied and discharged from its obligations with
respect to Securities of any series pursuant to this Section 13.01, each Guarantor of the Securities of such series shall
be automatically discharged, released from and relieved of all of its obligations under its Guarantee of such Securities, and the Trustee,
at the expense of the Company, shall execute instruments reasonably requested by the Company acknowledging such discharge, release and
relief with respect to each Guarantor.
Notwithstanding the satisfaction and discharge
of this Indenture with respect to any series of Securities, the obligations of the Company to the Trustee under Section 7.07
and, if money shall have been deposited with the Trustee pursuant to subclause (ii) of clause (a) of this Section 13.01,
the obligations of the Company and the Trustee with respect to the Securities of such series under Section 3.05, Section 3.06,
Section 5.02, Section 5.05, Section 13.03 and Section 13.06, any rights of Holders of
the Securities of such series (unless otherwise provided pursuant to Section 3.01 with respect to the Securities of such
series) to require the Company to repurchase or repay, and the obligations of the Company to repurchase or repay, such Securities at
the option of the Holders pursuant to Section 3.01, and any rights of Holders of the Securities of such series (unless otherwise
provided pursuant to Section 3.01 with respect to the Securities of such series) to convert or exchange, and the obligation
of the Company to convert or exchange, such Securities into common stock or other securities, shall survive; provided, however,
that following the satisfaction and discharge of this Indenture with respect to any series of Securities whose Holders have the right
to require the Company to repurchase or repay such Securities or to convert or exchange such Securities into common stock or other securities,
the right of the Holder to require repurchase, repayment, conversion or exchange, as the case may be, of any such Security and the Company’s
obligation to repurchase, repay, convert or exchange, as the case may be, any such Security shall (unless otherwise provided pursuant
to Section 3.01 with respect to the Securities of such series) terminate immediately following the close of business on the
final Stated Maturity of such Security or immediately following the close of business on any earlier Redemption Date of such Security
(so long as the Company does not default in the payment of the redemption price plus accrued and unpaid interest, if any, due on such
Redemption Date), as the case may be.
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13.02 Defeasance
and Covenant Defeasance.
(a) Unless
pursuant to Section 3.01, either or both of (i) defeasance of the Securities of or within a series under clause (b) of
this Section 13.02 or (ii) covenant defeasance of the Securities of or within a series under clause (c) of
this Section 13.02 shall not be applicable with respect to the Securities of such series, then such provisions, together
with the other provisions of this Section 13.02 (with such modifications thereto as may be specified pursuant to Section 3.01
with respect to any Securities), shall be applicable to such Securities, and the Company may at its option by Board Resolution, at any
time, with respect to the Securities of or within such series, elect to have Section 13.02(b) or Section 13.02(c) be
applied to such Outstanding Securities upon compliance with the conditions set forth below in this Section 13.02. Unless
otherwise specified pursuant to Section 3.01 with respect to the Securities of any series, defeasance under clause (b) of
this Section 13.02 and covenant defeasance under clause (c) of this Section 13.02 may be effected
only with respect to all, and not fewer than all, of the Outstanding Securities of any series. To the extent that the terms of any Security
established in or pursuant to this Indenture permit the Company or any Holder thereof to extend the date on which any payment of principal
of, or premium, if any, or interest, if any, on with respect to such Security is due and payable, then unless otherwise provided pursuant
to Section 3.01, the right to extend such date shall terminate upon defeasance or covenant defeasance, as the case may be.
(b) Upon
the Company’s exercise of the option applicable to this Section 13.02(b) with respect to any Securities of or
within a series, the Company and any applicable Guarantors shall be deemed to have been discharged from their respective obligations
with respect to such Outstanding Securities, on the date the conditions set forth in clause (d) of this Section 13.02
are satisfied (as used herein, “defeasance”). For this purpose, such defeasance means that the Company shall be deemed
to have paid and discharged the entire indebtedness represented by such Outstanding Securities, which shall thereafter be deemed to be
“Outstanding” only for the purposes of clause (e) of this Section 13.02 and the other Sections
of this Indenture referred to in clauses (i) through ( iv) of this paragraph, and to have satisfied all of its other
obligations under such Securities and this Indenture insofar as such Securities are concerned (and the Trustee, at the expense of the
Company, shall execute instruments reasonably requested by the Company acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such Outstanding Securities to receive,
solely (except as provided in clause (ii) below) from the trust fund described in clause (d) (1) of
this Section 13.02 and as more fully set forth in this Section 13.02 and Section 13.03, payments
in respect of the principal of (and premium, if any) and interest, if any, on such Securities when such payments are due, (ii) the
obligations of the Company and the Trustee with respect to such Securities under Section 3.05, Section 3.06,
Section 5.02 and Section 5.05, with respect to any rights of Holders of such Securities (unless otherwise provided
pursuant to Section 3.01 with respect to the Securities of such series) to require the Company to repurchase or repay, and
the obligations of the Company to repurchase or repay, such Securities at the option of the Holders pursuant to Section 3.01,
and with respect to any rights of Holders of such Securities (unless otherwise provided pursuant to Section 3.01 with respect
to the Securities of such series) to convert or exchange, and the obligations of the Company to convert or exchange, such Securities
into common stock or other securities, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (iv) this
Section 13.02 and Section 13.03 and Section 13.06; provided, however, that following
defeasance with respect to any series of Securities whose Holders have the right to require the Company to repurchase or repay such Securities
or to convert or exchange such Securities into common stock or other securities, the right of the Holder to require repurchase, repayment,
conversion or exchange, as the case may be, of any such Security and the Company’s obligation to repurchase, repay, convert or
exchange, as the case may be, any such Security shall (unless otherwise provided pursuant to Section 3.01 with respect to
the Securities of such series) terminate immediately following the close of business on the final Stated Maturity of such Security or
immediately following the close of business on any earlier Redemption Date of such Security (so long as the Company does not default
in the payment of the redemption price plus accrued and unpaid interest, if any, due on such Redemption Date), as the case may be.
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(c) Upon
the Company’s exercise of the option applicable to this Section 13.02(c) with respect to any Securities of or
within a series, the Company and any applicable Guarantors shall be released from their respective obligations under this Indenture and,
to the extent specified pursuant to Section 3.01, any other covenant applicable to such Securities with respect to such Securities
shall cease to be applicable to such Securities on and after the date the conditions set forth in clause (d) of this Section 13.02
are satisfied (as used herein, “covenant defeasance”), and such Securities shall thereafter be deemed to be not “Outstanding”
for the purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection
with any such covenant, but shall continue to be deemed “Outstanding” for all other purposes hereunder. For this purpose,
such covenant defeasance means that with respect to such Outstanding Securities, the Company may omit to comply with, and shall have
no liability in respect of, any term, condition or limitation set forth in any such Section or any such other covenant, whether
directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason of reference
in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply shall
not constitute a default or an Event of Default under Section 6.01(3) or Section 6.01(8), as the case may
be.
(d) The
following shall be the conditions to application of clause (b) or (c) of this Section 13.02 to any Outstanding
Securities of or within a series:
(1) The
Company shall irrevocably have deposited or caused to be deposited with the Trustee (or another entity satisfying the requirements of
Section 7.09 who shall agree to comply with the provisions of this Section 13.02 applicable to it) as trust funds
in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit
of the Holders of such Securities, (i) an amount in the currency in which such Securities are then specified as payable at Stated
Maturity or, if such defeasance or covenant defeasance is to be effected in compliance with clause (5) below, on the relevant
Redemption Date, as the case may be, (ii) Government Obligations applicable to such Securities (determined on the basis of the currency
in which such Securities are then specified as payable at Stated Maturity or, if such defeasance or covenant defeasance is to be effected
in compliance with clause (5) below, on the relevant Redemption Date, as the case may be) which through the scheduled payment
of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date
of any payment of principal of (and premium, if any) and interest, if any, on such Securities, money in an amount, or (iii) a combination
thereof, in any case, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally
recognized firm of independent public accountants or an investment bank expressed in a written certification thereof delivered to the
Trustee, to pay and discharge, and which shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, (y) the
principal of (and premium, if any) and interest, if any, on the Stated Maturity of such principal or installment of principal or interest
or the applicable Redemption Date, as the case may be, and (z) any mandatory sinking fund payments or analogous payments applicable,
if any, to such Outstanding Securities on the day on which such payments are due and payable in accordance with the terms of this Indenture
and of such Securities.
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(2) No
Event of Default or default (other than that resulting from borrowing funds to be applied to make the deposit under clause (1) above
and the granting of any liens in connection therewith) shall have occurred and be continuing on the date of such deposit, and, solely
in the case of defeasance under Section 13.02(b), no Event of Default or default with respect to such Securities under clause (6) or
(7) of Section 6.01 shall have occurred and be continuing on the date of such deposit.
(3) In
the case of defeasance pursuant to Section 13.02(b), the Company shall have delivered to the Trustee an Opinion of Counsel,
subject to customary assumptions and exclusions, stating that (x) the Company has received from, or there has been published by,
the Internal Revenue Service a ruling, or (y) since the date of this Indenture there has been a change in applicable U.S. federal
income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the beneficial owners
of such Outstanding Securities will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such defeasance
and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case
if such defeasance had not occurred; or, in the case of covenant defeasance pursuant to Section 13.02(c), the Company shall
have delivered to the Trustee an Opinion of Counsel, subject to customary assumptions and exclusions, to the effect that the beneficial
owners of such Outstanding Securities will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such
covenant defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would
have been the case if such covenant defeasance had not occurred.
(4) The
Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance or covenant defeasance, as the case may be, under this Indenture have been complied with.
(5) If
the monies or Government Obligations or combination thereof, as the case may be, deposited under clause (1) above are sufficient
to pay the principal of, and premium, if any, and interest, if any, on and, to the extent provided in such clause (1) with
respect to a particular Redemption Date, the Company shall have given the Trustee irrevocable instructions to redeem such Securities
on such date and to provide notice of such redemption to Holders as provided in or pursuant to this Indenture.
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(6) Notwithstanding
any other provisions of this Section 13.02(d), such defeasance or covenant defeasance shall be effected in compliance with
any additional or substitute terms, conditions or limitations which may be imposed on the Company in connection therewith pursuant to
Section 3.01.
(7) Upon
the defeasance or covenant defeasance of the Company’s obligations with respect to Securities of any series, each Guarantor of
the Securities of such series shall be automatically released from and relieved of all of its obligations under its Guarantee of such
Securities, and the Trustee, at the expense of the Company, shall execute instruments reasonably requested by the Company acknowledging
such release and relief with respect to each Guarantor.
(e) Subject
to Section 13.05, all money and Government Obligations (or other property as may be provided pursuant to Section 3.01)
(including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section 13.02(e) and
Section 13.03, the “Trustee”) pursuant to clause (d) (1) of Section 13.02
in respect of any Outstanding Securities of any series shall be held in trust and applied by the Trustee, in accordance with the provisions
of such Securities and this Indenture, to the payment, either directly or through any Paying Agent (other than the Company acting as
its own Paying Agent) as the Trustee may determine, to the Holders of such Securities of all sums due and to become due thereon in respect
of principal (and premium, if any) and interest, if any, but such money need not be segregated from other funds except to the extent
required by law.
The Company shall pay and the Company shall indemnify
the Trustee against any tax, fee or other charge, imposed on or assessed against the Government Obligations deposited pursuant to this
Section 13.02 or the principal or interest received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the Holders of such Outstanding Securities.
Anything in this Section 13.02 to
the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon written order any money or Government
Obligations (or other property and any proceeds therefrom) held by it as provided in clause (d) (1) of
this Section 13.02 which, in the opinion of a nationally recognized firm of independent public accountants or an investment
bank expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required
to be deposited to effect a defeasance or covenant defeasance, as applicable, in accordance with this Section 13.02(d) (1).
13.03 Application
by Trustee of Funds Deposited for Payment of Securities. All money deposited with the Trustee pursuant to Section 13.01
and Section 13.02, or received by the Trustee in respect of obligations deposited with the Trustee pursuant to Section 13.01
or Section 13.02, shall be held in trust until such time as such money is to be applied by it to the payment, either directly
or through any Paying Agent (including the Company acting as its own Paying Agent), to the Holders of the particular Securities, for
the payment of which such moneys have been deposited with the Trustee, of all sums due and to become due thereon for the principal thereof,
premium, if any, and interest, if any, thereon. Moneys held under this Section 13.03 need not be segregated from other funds
except to the extent required by law, and the Trustee shall be under no liability with respect to interest on any such moneys.
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13.04 Repayment
of Moneys Held by Paying Agent. In connection with the satisfaction and discharge of this Indenture, all moneys then held by any
Paying Agent, other than the Trustee, under this Indenture shall, upon and in accordance with demand of the Company, be paid to the Trustee,
and thereupon such Paying Agent shall be released from all further liability with respect to such moneys.
13.05 Return
of Unclaimed Moneys. Subject to applicable abandoned property law, any moneys deposited with the Trustee or any Paying Agent not
applied but remaining unclaimed by the Holders of the Securities for two years after the date upon which the principal of, premium, if
any, or interest, if any, on such Securities shall have become due and payable shall be repaid to the Company by the Trustee or such
agent on written demand. Thereafter, the Holder of any of the Securities entitled to receive such payment, as a general unsecured creditor,
shall look only to the Company for the payment thereof unless applicable law designates another person, and the Company and the Trustee
shall have no further liability with respect to such money.
13.06 Reinstatement.
If the Trustee (or other qualifying trustee appointed pursuant to Section 7.10) or any Paying Agent is unable to apply any
moneys or Government Obligations deposited pursuant to Section 13.01 or Section 13.02(d) (1) to
pay any principal of or premium, if any, or interest, if any, on, with respect to the Securities of any series by reason of any legal
proceeding or any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application,
then the Company’s obligations under this Indenture and the Securities of such series shall be revived and reinstated as though
no such deposit had occurred, until such time as the Trustee (or other qualifying trustee) or Paying Agent is permitted to apply all
such moneys and Government Obligations to pay the principal of and premium, if any, and interest, if any, on the Securities of such series
as contemplated by Section 13.01 or Section 13.02 as the case may be, and Section 13.03; provided,
however, that if the Company makes any payment of the principal of or premium, if any, or interest, if any, on, in respect of
the Securities of such series following the reinstatement of its obligations as aforesaid, the Company shall be subrogated to the rights
of the Holders of such payment from the funds held by the Trustee (or other qualifying trustee) or Paying Agent.
Article XIV
GUARANTEE
14.01 Guarantee.
(a) Subject
to the terms of this Article XIV and as may be otherwise specified as contemplated by Section 3.01 with respect
to any series of Securities, the Parent Guarantor unconditionally, fully and irrevocably guarantees the Securities and obligations of
the Company under this Indenture, and guarantees to each Holder of a Security authenticated and delivered by the Trustee, and to the
Trustee for itself and on behalf of such Holder, that (i) the principal of (and premium, if any) and interest on the Securities
will be paid in full when due, whether at Stated Maturity, by acceleration, redemption or other event set forth in this Indenture, together
with interest on the overdue principal of and interest on the Securities, if any, if lawful, and all other obligations of the Company
to the Holders or the Trustee hereunder or thereunder shall be promptly paid in full or performed, all in accordance with the terms hereof
and thereof; and (ii) in case of any extension of time of payment or renewal of any Securities or of any such other obligations,
the same shall be paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity,
by acceleration, redemption or other event set forth in this Indenture. For the avoidance of doubt, this Article XIV will
not become operative, and no Guarantee of the Parent Guarantor will be issued, unless and until the Company issues any series of Securities
under this Indenture.
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(b) The
Parent Guarantor hereby agrees that its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability
of the Securities or this Indenture or the absence of any action to enforce the same, any waiver or consent by any Holder with respect
to any provisions hereof or thereof (other than those which expressly release, discharge or otherwise affect the Guarantee of the Parent
Guarantor), any release of any other Guarantor, the recovery of any judgment against the Company, any action to enforce the same or any
other circumstance which might otherwise constitute a legal or equitable discharge or defense of the Parent Guarantor; provided,
however, that notwithstanding the foregoing, no such waiver, modification, or amendment shall, without the consent of the Parent
Guarantor, increase the principal amount of such Securities, or increase the interest rate thereon, or increase any premium payable upon
redemption thereof, or alter the Stated Maturity thereof, or increase the principal amount of any Original Issue Discount Security that
would be due and payable upon a declaration of acceleration or the maturity thereof.
(c) The
Parent Guarantor hereby waives (to the extent permitted by law) the benefits of diligence, presentment, demand for payment, filing of
claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company,
protest, notice and all demands whatsoever and covenants, that the Guarantee of the Parent Guarantor shall not be discharged, except
by complete performance of the obligations contained in the Securities and this Indenture. The Parent Guarantor acknowledges that its
Guarantee is a guarantee of payment and not of collection.
(d) The
Parent Guarantor hereby agrees that, in the Event of Default in payment of principal (or premium, if any) or interest on any Securities,
whether at Stated Maturity, by acceleration, redemption, repurchase or other event set forth in this Indenture, legal proceedings may
be instituted by the Trustee on behalf of itself or on behalf of, or by, the Holder of such Securities, subject to the terms and conditions
set forth in this Indenture, directly against the Parent Guarantor to enforce its Guarantee without first proceeding against the Company
or any other Guarantor.
(e) The
Parent Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations
guaranteed hereby until payment in full of all obligations guaranteed hereby. The Parent Guarantor further agrees that, as between the
Parent Guarantor, on the one hand, and the Holders and the Trustee, on the other hand (x) the maturity of the obligations guaranteed
hereby may be accelerated as provided in Article VI hereof for the purposes of this Guarantee, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event
of any acceleration of such obligations as provided in Article VI hereof, such obligations (whether or not due and payable)
shall forthwith become due and payable by the Parent Guarantor for the purpose of this Guarantee. The Parent Guarantor shall have the
right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders
under any Guarantee.
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(f) The
Guarantee of the Parent Guarantor shall be evidenced solely by the execution and delivery of this Indenture and no notation of the Guarantee
need be endorsed on any Security.
14.02 Reinstatement.
The Parent Guarantor hereby agrees that its Guarantee provided hereunder shall continue to be effective or be reinstated, as the case
may be, if at any time, payment, or any part thereof, of any obligations or interest with respect to its Guarantee is returned by a Holder
to the Company or the Parent Guarantor to the extent a court of competent jurisdiction requires the return of such payment, which was
previously discharged, to the Company, the Parent Guarantor or any custodian, trustee, liquidator or other similar official acting in
relation to either the Company or any applicable Guarantor.
14.03 Limitation
of the Parent Guarantor’s Liability. The Parent Guarantor and by its acceptance hereof, the Trustee, for itself and on behalf
of each Holder, confirms that it is the intention of all such parties that the Guarantee by the Parent Guarantor not constitute a fraudulent
transfer or conveyance for purposes of any Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act
or any similar federal or state law or the provisions of its local law relating to fraudulent transfer or conveyance. To effectuate the
foregoing intention, the Trustee, for itself and on behalf of the Holders, and the Parent Guarantor hereby irrevocably agree that the
obligations of such Guarantor under its Guarantee shall be limited to the maximum amount that will not, after giving effect to such maximum
amount and all other contingent and fixed liabilities of such Guarantor (and after giving effect to any collections from rights to receive
contribution or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor), result in
the obligations of such Guarantor under its Guarantee constituting such fraudulent transfer or conveyance. If the Parent Guarantor makes
a payment under its Guarantee, it shall be entitled upon payment in full of all guaranteed obligations under this Indenture to a contribution
from each other Guarantor (to the extent applicable) in an amount equal to such other Guarantor’s pro rata portion of such
payment based on the respective net assets of all the Guarantors at the time of such payment determined in accordance with GAAP.
14.04 Amendment.
No amendment, modification or waiver of any provision of this Indenture relating to the Parent Guarantor or consent to any departure
by the Parent Guarantor or any other Person from any such provision will in any event be effective unless it is signed by the Parent
Guarantor and the Trustee for the Securities of such series.
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Article XV
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
15.01 Personal
Immunity from Liability of Incorporators, Stockholders, etc. No recourse under or upon any obligation, covenant or agreement
of this Indenture or any supplemental indenture, or of any Security, or for any claim based thereon or otherwise in respect thereof,
shall be had against any incorporator or against any past, present or future stockholder, partner, Subsidiary, employee, officer, director,
Affiliate or controlling person, as such, of the Company, any Guarantor or of any predecessor or successor entity, either directly or
through the Company, Guarantor or any predecessor or successor entity, whether by virtue of any constitution, statute or rule of
law, or by the enforcement of any assessment or penalty or otherwise, all such liability and any and all such claims being hereby expressly
waived and released as a condition of, and as a consideration for, the execution of this Indenture and issue of the Securities.
[The Remainder of this Page Intentionally
Left Blank; Signature Page Follows]
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IN
WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of the date first above written.
UNITED RENTALS
(NORTH AMERICA), INC., as Company
By:
/s/
Sybil Collins
Name:
Sybil Collins
Title:
Vice President, Treasurer
UNITED RENTALS, INC.,
as Parent Guarantor
By:
/s/
Sybil Collins
Name:
Sybil Collins
Title:
Vice President, Treasurer
TRUIST BANK, as
Trustee
By:
/s/
Patrick Giordano
Name:
Patrick Giordano
Title:
Vice President
[Signature Page to Indenture]
EX-4.2 — EXHIBIT 4.2
EX-4.2
Filename: tm2628016d6_ex4-2.htm · Sequence: 4
Exhibit 4.2
UNITED RENTALS
(NORTH AMERICA), INC.
as Company
UNITED
RENTALS, INC.
as Parent Guarantor
TRUIST
BANK
as Trustee
FIRST SUPPLEMENTAL INDENTURE
Dated as of October 29, 2026
to
INDENTURE
Dated as of October 29, 2026
Relating to
5.550% Senior Notes due 2029
5.750% Senior Notes due 2031
6.200% Senior Notes due 2036
TABLE OF CONTENTS
Page
Article I DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
2
1.01
References
2
1.02
Definitions
2
Article II GENERAL TERMS AND CONDITIONS OF THE NOTES
8
2.01
Designation and Principal Amount; Series
Treatment
8
2.02
Maturity
8
2.03
Form and Payment
9
2.04
Depositary
9
2.05
Interest
10
2.06
Other Terms and Conditions
11
Article III REDEMPTION
12
3.01
Optional Redemption of the Notes
12
3.02
Additional Redemption Provisions
14
Article IV ADDITIONAL COVENANTS
14
4.01
Change
of Control
14
Article V GUARANTEE
16
5.01
Guarantee
16
5.02
Release of Parent Guarantor
16
Article VI MISCELLANEOUS
16
6.01
Application of First Supplemental Indenture
16
6.02
Trust Indenture Act
17
6.03
Conflict with Base Indenture
17
6.04
Governing Law; Waiver of Trial by Jury; Submission to Jurisdiction
17
6.05
Successors
17
6.06
Counterparts
17
6.07
Trustee Disclaimer
18
i
FIRST SUPPLEMENTAL INDENTURE
FIRST
SUPPLEMENTAL INDENTURE, dated as of October 29, 2026 (this “First Supplemental Indenture”), among United
Rentals (North America), Inc., a Delaware corporation, as issuer (the “Company”), United Rentals, Inc., a
Delaware corporation (the “Parent Guarantor”) and Truist Bank, a national banking association, as trustee (the “Trustee”),
to the Base Indenture (as defined below).
RECITALS
WHEREAS,
the Company has heretofore executed and delivered to the Trustee an indenture, dated as of October 29, 2026 (the “Base Indenture”
and, together with this First Supplemental Indenture, the “Indenture”), providing for the issuance from time to time
of its debt securities, to be issued in one or more series as therein provided;
WHEREAS,
the Base Indenture provides that the Company and the Trustee may enter into an indenture supplemental to the Base Indenture to establish
the form and terms of any series of Securities as provided by Sections 2.01 and 3.01 of the Base Indenture;
WHEREAS,
the Parent Guarantor has duly authorized the execution and delivery of this First Supplemental Indenture and the issuance of the guarantee
of each series of the Notes as set forth herein;
WHEREAS,
pursuant to the terms of the Base Indenture, on the date hereof, the Company desires to provide for the establishment of three new series
of notes to be known as its 5.550% Senior Notes due 2029 (the “2029 Notes”), 5.750% Senior Notes due 2031 (the “2031
Notes”) and 6.200% Senior Notes due 2036 (the “2036 Notes” and together with the 2029 Notes and the 2031
Notes, the “Notes”), the form and substance of the Notes and the terms, provisions and conditions thereof to be set
forth as provided in the Base Indenture and herein;
WHEREAS,
the conditions set forth in the Base Indenture for the execution and delivery of this First Supplemental Indenture have been met; and
WHEREAS,
the Company has requested and hereby requests that the Trustee join with it in the execution and delivery of this First Supplemental Indenture,
and all acts and requirements necessary to make this First Supplemental Indenture a legal, valid and binding agreement of the parties,
in accordance with its terms, and a valid supplement to, the Base Indenture with respect to the Notes have been done and performed.
WITNESSETH:
NOW
THEREFORE, for and in consideration of the premises contained herein, each party agrees for the benefit of each other party
and for the equal and ratable benefit of the Holders of the Notes, as follows:
Article I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
1.01 References.
Capitalized terms used but not defined in this First Supplemental Indenture shall have the meanings ascribed to them in the Base Indenture.
References in this First Supplemental Indenture to article and section numbers shall be deemed to be references to article and section
numbers of this First Supplemental Indenture unless otherwise specified. Any references in the Indenture or the Notes to the “close
of business” shall mean 5:00 p.m., New York City time.
1.02 Definitions.
For purposes of this First Supplemental Indenture, the following terms have the meanings ascribed to them as follows:
“Additional Notes” means any
additional Notes of a series that may be issued from time to time pursuant to Section 2.01(b) of this First Supplemental Indenture.
“Base Indenture” has the meaning
provided in the Recitals.
“Business Day” means, with respect
to any Note and this First Supplemental Indenture, any day, other than a Saturday, Sunday or any other day on which banking institutions
in New York, New York or the place of payment are authorized or obligated by law or executive order to close.
“Change of Control” means the
occurrence of any of the following events:
(a) any “person” or “group”
(as such terms are used in Sections 13(d) and 14(d) of the Exchange Act) is or becomes the “beneficial owner”
(as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of more than 50.0% of the total Voting Stock
of the Company or Parent Guarantor (other than, in the case of the Company, Parent Guarantor or a wholly owned Subsidiary of Parent Guarantor);
(b) (i) the Company or Parent Guarantor
consolidates with, or merges with or into, another Person, in any such event pursuant to a transaction in which the outstanding Voting
Stock of the Company or Parent Guarantor is converted into or exchanged for cash, securities or other property and, immediately after
such transaction, a “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of
the Exchange Act), excluding Parent Guarantor or any wholly owned Subsidiary of Parent Guarantor, is the “beneficial owner”
(as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that a person shall be deemed to have “beneficial ownership”
of all securities that such person has the right to acquire, whether such right is exercisable immediately or only after the passage of
time), directly or indirectly, of more than 50.0% of the total Voting Stock of the surviving or transferee corporation or (ii) the
Parent Guarantor sells, assigns, conveys, transfers, leases or otherwise disposes of all or substantially all of the properties and assets
of the Parent Guarantor and its Subsidiaries, taken as a whole, to any Person (other than to the Parent Guarantor or a wholly owned Subsidiary
of the Parent Guarantor);
(c) the Parent Guarantor or the Company is
liquidated or dissolved or adopts a plan of liquidation; or
2
(d) the Company shall cease to be a direct
or indirect Subsidiary of the Parent Guarantor (other than as a result of the merger or consolidation of the Parent Guarantor and the
Company, in each case, in compliance with the applicable provisions of the Indenture).
Notwithstanding the foregoing, a transaction will
not be a “Change of Control” if it is a consolidation or merger of the Company or Parent Guarantor with or into a (A) Person
or (B) wholly-owned direct or indirect Subsidiary of a Person that, in either case, immediately following the transaction, has no
“person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act) that
is the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that a person shall be
deemed to have “beneficial ownership” of all securities that such person has the right to acquire, whether such right is exercisable
immediately or only after the passage of time) of more than 50.0% of the total Voting Stock of such Person and, in the case of clause
(B), the parent of such wholly-owned Subsidiary guarantees the Company’s obligations under the Notes and the Indenture.
“Change of Control Offer” has
the meaning specified in Section 4.01(a).
“Change of Control Purchase Date”
has the meaning specified in Section 4.01(a).
“Change of Control Purchase Price”
has the meaning specified in Section 4.01(a).
“Change of Control Triggering Event”
means the occurrence of both a Change of Control and a Rating Event.
“Company” has the meaning provided
in the Preamble.
“Custodian” means the Trustee,
as custodian with respect to the Global Notes, or any successor entity thereto.
“Debt” means any indebtedness
for borrowed money.
“Definitive Note” means a Note
issued in definitive form pursuant to the Indenture that does not include the Global Notes legend.
“Depositary” means The Depository
Trust Company, its nominees and their respective successors and assigns, or such other depository institution hereinafter appointed by
the Company.
“Expiration Date” shall have
the meaning set forth in the definition of “Offer to Purchase.”
“First Supplemental Indenture”
has the meaning provided in the Preamble.
“Fitch” means Fitch Ratings
Inc., and its successors.
“GAAP” means generally accepted
accounting principles in effect from time to time in the United States of America.
3
“Global Note” means one or more
Notes that are Global Securities.
“Governmental Authority” means
any nation or government, any state or other political subdivision thereof and any entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government.
“Guarantee” has the meaning
provided in Section 5.01.
“Guarantor” means the Parent
Guarantor.
“Indenture” has the meaning
provided in the Recitals.
“Interest Payment Date” has
the meaning provided in Section 2.05.
“Investment Grade” means a rating
by Moody’s equal to or higher than Baa3 (or the equivalent under a successor rating category of Moody’s), a rating by S&P
or Fitch equal to or higher than BBB- (or the equivalent under any successor rating category of S&P or Fitch), and the equivalent
investment grade credit rating from any replacement rating agency or rating agencies selected by the Company under the circumstances permitting
the Company to select a replacement agency and in the manner for selecting a replacement agency, in each case as set forth in the definition
of “Rating Agency.”
“Issue Date” means October 29,
2026.
“Maturity Date” has the meaning
specified in Section 2.02.
“Moody’s” means Moody’s
Investors Service, Inc., and its successors.
“Notes” has the meaning provided
in the Recitals. For the avoidance of doubt, “Notes” of a series shall include any Additional Notes of such series, unless
the context provides otherwise.
“Offer to Purchase” means a
Change of Control Offer sent by or on behalf of the Company electronically or by first-class mail, postage prepaid (or, for so long as
the Notes of such series are held by the Depositary, otherwise transmitted in accordance with the Applicable Procedures), to each Holder
of a series of Notes at its address appearing in the register for the Notes of such series on the date of the Change of Control Offer
offering to purchase all or a portion (equal to a minimum of $2,000 or an integral multiple of $1,000 in excess thereof) of the Notes
of such series tendered by Holders pursuant to such Change of Control Offer at the purchase price specified in such Change of Control
Offer (as determined pursuant to this First Supplemental Indenture). Unless otherwise provided in Section 4.01 or otherwise required
by applicable law, the Change of Control Offer shall specify an expiration date (the “Expiration Date”) of the Offer
to Purchase, which shall be not less than 10 days nor more than 60 days after the date of such Change of Control Offer (or such later
date as may be necessary for the Company to comply with the Exchange Act), and a settlement date (the “Purchase Date”)
for purchase of Notes of such series to occur no later than five Business Days after the Expiration Date. The Company shall notify the
Trustee at least 10 days (or such shorter period as is acceptable to the Trustee) prior to the electronic delivery or mailing of the Change
of Control Offer of the Company’s obligation to make an Offer to Purchase, and the Change of Control Offer shall be delivered electronically
or mailed by the Company or, at the Company’s request, by the Trustee in the name and at the expense of the Company. The Change
of Control Offer shall contain all the information required by applicable law to be included therein. The Change of Control Offer shall
contain all instructions and materials necessary to enable such Holders to tender Notes of such series pursuant to the Offer to Purchase.
The Change of Control Offer shall also state:
(1) the Section of this First
Supplemental Indenture pursuant to which the Change of Control Offer to Purchase is being made;
4
(2) the Expiration Date and the
Purchase Date;
(3) the purchase price to be paid
by the Company for each $1,000 aggregate principal amount of Notes of such series accepted for payment (as specified pursuant to this
First Supplemental Indenture) (the “Purchase Price”), and the amount of accrued and unpaid interest to be paid;
(4) that the Holder may tender all
or any portion of the Notes of such series registered in the name of such Holder and that any portion of a Note tendered must be tendered
in an integral multiple of $1,000 principal amount;
(5) the place or places where Notes
of such series are to be surrendered for tender pursuant to the Offer to Purchase;
(6) that interest on any Note not
tendered or tendered but not purchased by the Company pursuant to the Offer to Purchase shall continue to accrue;
(7) that on the Purchase Date the
Purchase Price shall become due and payable upon each Note being accepted for payment pursuant to the Offer to Purchase and that interest
thereon shall cease to accrue on and after the Purchase Date;
(8) that each Holder electing to
tender all or any portion of a Note pursuant to the Offer to Purchase shall be required to surrender such Note at the place or places
specified in the Change of Control Offer prior to the close of business on the Expiration Date (such Note being, if the Company or the
Trustee so requires, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by the Holder thereof or his attorney duly authorized in writing);
(9) that Holders shall be entitled
to withdraw all or any portion of Notes of such series tendered if the Company (or its Paying Agent) receives, not later than the close
of business on the fifth Business Day next preceding the Expiration Date, a facsimile transmission or letter setting forth the name of
the Holder, the principal amount of the Note the Holder tendered, the certificate number of the Note the Holder tendered and a statement
that such Holder is withdrawing all or a portion of his tender; and
(10) that in the case of a Holder
whose Note is purchased only in part, the Company shall execute and the Trustee shall authenticate and deliver to the Holder of such Note
without service charge, a new Note or Notes, of any authorized denomination as requested by such Holder, in an aggregate principal amount
equal to and in exchange for the unpurchased portion of the Note so tendered.
5
“Par Call Date” means with respect
to the 2029 Notes, September 15, 2029, with respect to the 2031 Notes, September 15, 2031, and with respect to the 2036 Notes,
July 15, 2036.
“Parent Guarantor” has the meaning
provided in the Preamble.
“Person” means an individual,
corporation, partnership, limited liability company, joint venture, association, joint stock company, trust, unincorporated organization,
Governmental Authority or other entity of whatever nature.
“Purchase Date” shall have the
meaning set forth in the definition of “Offer to Purchase.”
“Purchase Price” shall have
the meaning set forth in the definition of “Offer to Purchase.”
“Rating Agency” means S&P,
Moody’s and Fitch, or if S&P, Moody’s or Fitch shall cease to rate the Notes of a series or fail to make a rating of the
Notes of a series publicly available, a “nationally recognized statistical rating organization” within the meaning of Section 3(a)(62)
under the Exchange Act selected by the Company as a replacement agency for one or any of them, as the case may be.
“Rating Event” means, with respect
to each series of the Notes, the rating on such series of Notes is lowered and the Notes of such Series are rated below Investment
Grade by at least two of the Rating Agencies on any date from the date of the public notice of a transaction that would result in a Change
of Control until the end of the 60-day period following public notice of the occurrence of the Change of Control (which 60-day period
shall be extended so long as the rating of the Notes of such Series is under publicly announced consideration for possible downgrade
below Investment Grade by any of the Rating Agencies as a result of such transaction); provided (i) that no such extension shall
occur if on such 60th day such Notes have an Investment Grade rating from at least two Rating Agencies and are not subject to review for
possible downgrade by such Rating Agencies as a result of such transaction and (ii) that a Rating Event otherwise arising by virtue
of a particular reduction in rating shall not be deemed to have occurred in respect of a particular Change of Control (and thus shall
not be deemed a Rating Event for purposes of the definition of Change of Control Triggering Event) if the Rating Agencies making the reduction
in rating to which this definition would otherwise apply do not announce or publicly confirm or inform the Company upon the Company’s
or the Trustee’s written request that the reduction was the result, in whole or in part, of the applicable Change of Control (whether
or not the applicable Change of Control shall have occurred at the time of the Rating Event). For the avoidance of doubt, no Change of
Control Triggering Event will be deemed to have occurred in connection with any particular Change of Control unless and until such Change
of Control has actually been consummated.
“Regular Record Date” has the
meaning provided in Section 2.05.
“S&P” means S&P Global
Ratings, a division of S&P Global Inc., and its successors.
6
“Treasury Rate” means, with
respect to any Redemption Date prior to the applicable Par Call Date pursuant to Section 3.01, the yield determined by the Company
in accordance with the following two clauses:
(a) The
Treasury Rate applicable to the series of Notes being redeemed shall be determined by the Company after 4:15 p.m., New York City time
(or after such time as yields on U.S. government securities are posted daily by the Board of Governors of the Federal Reserve System),
on the third Business Day preceding the Redemption Date based upon the yield or yields for the most recent day that appear after such
time on such day in the most recent statistical release published by the Board of Governors of the Federal Reserve System designated as
“Selected Interest Rates (Daily)-H.15” (or any successor designation or publication) (“H.15”) under the caption
“U.S. government securities-Treasury constant maturities-Nominal” (or any successor caption or heading) (“H.15 TCM”).
In determining the applicable Treasury Rate, the Company shall select, as applicable: (1) the yield for the Treasury constant maturity
on H.15 exactly equal to the period from the Redemption Date to the applicable Par Call Date (the “Remaining Life”); or (2) if
there is no such Treasury constant maturity on H.15 exactly equal to the Remaining Life, the two yields-one yield corresponding to the
Treasury constant maturity on H.15 immediately shorter than and one yield corresponding to the Treasury constant maturity on H.15 immediately
longer than the Remaining Life and shall interpolate to the applicable Par Call Date, on a straight-line basis (using the actual number
of days) using such yields and rounding the result to three decimal places; or (3) if there is no such Treasury constant maturity
on H.15 shorter than or longer than the Remaining Life, the yield for the single Treasury constant maturity on H.15 closest to the Remaining
Life. For purposes of this clause (a), the applicable Treasury constant maturity or maturities on H.15 shall be deemed to have a maturity
date equal to the relevant number of months or years, as applicable, of such Treasury constant maturity from such Redemption Date.
(b) If
on the third Business Day preceding the Redemption Date H.15 TCM or any successor designation or publication is no longer published or
does not contain the yields required to calculate the applicable Treasury Rate, the Company shall calculate the Treasury Rate based on
the rate per annum equal to the semi-annual equivalent yield to maturity at 11:00 a.m., New York City time, on the second Business Day
preceding such redemption date of the United States Treasury security maturing on, or with a maturity that is closest to, the applicable
Par Call Date, as applicable. If there is no United States Treasury security maturing on the applicable Par Call Date, but there are two
or more United States Treasury securities with a maturity date equally distant from the applicable Par Call Date, one with a maturity
date preceding the applicable Par Call Date, and one with a maturity date following the applicable Par Call Date, the Company shall select
the United States Treasury security with a maturity date preceding the applicable Par Call Date. If there are two or more United States
Treasury securities maturing on the applicable Par Call Date, or two or more United States Treasury securities meeting the criteria of
the preceding sentence, the Company shall select from among these two or more United States Treasury securities the United States Treasury
security that is trading closest to par based upon the average of the bid and asked prices for such United States Treasury securities
at 11:00 a.m., New York City time. In determining the Treasury Rate for the applicable series of Notes in accordance with the terms of
this clause (b), the semi-annual yield to maturity of the applicable United States Treasury security shall be based upon the average of
the bid and asked prices (expressed as a percentage of principal amount) at 11:00 a.m., New York City time, of such United States Treasury
security, and rounded to three decimal places.
7
“Trustee” has the meaning provided
in the Preamble.
Article II
GENERAL TERMS AND CONDITIONS OF THE NOTES
2.01 Designation
and Principal Amount; Series Treatment.
(a) The
Company hereby establishes three series of Securities designated the “5.550% Senior Notes due 2029”, the “5.750% Senior
Notes due 2031” and the “6.200% Senior Notes due 2036”, respectively, for issuance under the Indenture. Each series
of Notes may be authenticated and delivered under the Indenture in an unlimited aggregate principal amount. The 2029 Notes issued on the
date hereof pursuant to the terms of the Indenture shall be in an initial aggregate principal amount of $700,000,000.00. The 2031 Notes
issued on the date hereof pursuant to the terms of the Indenture shall be in an initial aggregate principal amount of $800,000,000.00.
The 2036 Notes issued on the date hereof pursuant to the terms of the Indenture shall be in an initial aggregate principal amount of $1,000,000,000.00.
The Notes are unsecured and unsubordinated Debt of the Company and shall rank equally with the Company’s other unsecured and unsubordinated
Debt.
(b) The
Company may, from time to time, without the consent of, or notice to, the Holders of the Notes of any series, issue Additional Notes of
such series, so that such Additional Notes and the Outstanding Notes of such series will be consolidated together and form a single series
of Securities under the Indenture. Any increase in the aggregate principal amount of any series of Notes shall be evidenced by an Officer’s
Certificate to be delivered to the Trustee.
(c) Any
Additional Notes issued under Section 2.01(b) shall have the same terms in all respects as the applicable series of Notes
herein provided for, except for the issue date, the public offering price, the payment of interest accruing prior to the issue date or
the first Interest Payment Date of such Additional Notes; provided that, if such Additional Notes are not fungible with the Notes for
U.S. Federal income tax purposes, such Additional Notes shall have a separate CUSIP number.
2.02 Maturity.
Unless an earlier redemption has occurred, the principal amount of the 2029 Notes shall mature and be due and payable on October 15,
2029 (the “2029 Notes Maturity Date”), the principal amount of the 2031 Notes shall mature and be due and payable on
October 15, 2031 (the “2031 Notes Maturity Date”) and the principal amount of the 2036 Notes shall mature and
be due and payable on October 15, 2036 (the “2036 Notes Maturity Date” and together with the 2029 Notes Maturity
Date and the 2031 Notes Maturity Date, the “Maturity Dates” and each individually, a “Maturity Date”).
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2.03 Form and
Payment.
(a) The
Notes of each series shall be issued initially in the form of one or more Global Notes in fully registered, book-entry form, in minimum
denominations of $2,000 and integral multiples of $1,000 in excess thereof.
(b) The
2029 Notes (other than, with respect to any Additional Notes of such series, changes relating to the issue date, the public offering price,
the payment of interest accruing prior to the issue date or the first Interest Payment Date of such Additional Notes) and the Trustee’s
certificate of authentication to be endorsed thereon are to be substantially in the form of Exhibit A, which form is hereby
incorporated in and made a part of this First Supplemental Indenture. The 2031 Notes (other than, with respect to any Additional Notes
of such series, changes relating to the issue date, the public offering price, the payment of interest accruing prior to the issue date
or the first Interest Payment Date of such Additional Notes) and the Trustee’s certificate of authentication to be endorsed thereon
are to be substantially in the form of Exhibit B, which form is hereby incorporated in and made a part of this First Supplemental
Indenture. The 2036 Notes (other than, with respect to any Additional Notes of such series, changes relating to the issue date, the public
offering price, the payment of interest accruing prior to the issue date or the first Interest Payment Date of such Additional Notes)
and the Trustee’s certificate of authentication to be endorsed thereon are to be substantially in the form of Exhibit C,
which form is hereby incorporated in and made a part of this First Supplemental Indenture.
(c) The
Notes of any series may have such letters, numbers or other marks of identification and such notations, legends, endorsements or changes
as may be required by the Depositary or as may be required to comply with any applicable law or with any rule or regulation made
pursuant thereto or with any rule or regulation of any securities exchange or automated quotation system on which the Notes of such
series may be listed, or to conform to usage, or to indicate any special limitations or restrictions to which any particular Notes of
such series are subject, or as the Authorized Officers executing the same may approve (execution thereof to be conclusive evidence of
such approval) and as are not inconsistent with the provisions of the Indenture.
(d) The
terms and provisions contained in the Notes of any series shall constitute, and are hereby expressly made, a part of this First Supplemental
Indenture, and the Parent Guarantor, the Company and the Trustee, by their execution and delivery of this First Supplemental Indenture,
expressly agree to such terms and provisions and to be bound thereby. Payments of principal, premium, if any, and/or interest, if any,
on the Global Notes shall be made to the Depositary.
2.04 Depositary.
(a) A
Global Note deposited with the Depositary or with the Custodian may be transferred to the beneficial owners thereof in the form of Definitive
Notes in an aggregate principal amount equal to the principal amount of such Global Note, in exchange for such Global Note, only if such
transfer complies with Section 2.04(d) and (i) the Depositary (A) has notified the Company that it is unwilling
or unable to continue as Depositary for such Global Note, or (B) has ceased to be a clearing agency registered under the Exchange
Act and any other applicable statute or regulation at a time when the Depositary is required to be so registered to act as depositary,
in each case, unless the Company has approved a successor Depositary within 90 days after receipt of such notice or after it has become
aware of such cessation or ineligibility or (ii) the Company in its sole discretion determines that such Global Note will be so exchangeable
or transferable.
9
(b) Any
Global Note that is transferable to the beneficial owners thereof pursuant to this Section 2.04 shall be surrendered by the
Depositary to the Trustee, to be so transferred, in whole or from time to time in part, without charge, and the Trustee shall authenticate
and deliver, upon such transfer of each portion of such Global Note, an equal aggregate principal amount of Definitive Notes of authorized
denominations. Any portion of a Global Note transferred pursuant to this Section 2.04 shall be executed, authenticated and
delivered only in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof and registered in such names as the
Depositary shall direct.
(c) At
such time as all beneficial interests in a Global Note have either been exchanged for Definitive Notes, transferred in exchange for an
interest in another Global Note, redeemed, repurchased or canceled, such Global Note shall be returned by the Depositary to the Trustee
for cancellation or retained and canceled by the Trustee. At any time prior to such cancellation, if any beneficial interest in a Global
Note is exchanged for Definitive Notes, transferred in exchange for an interest in another Global Note, redeemed, repurchased or canceled,
the principal amount of Notes represented by such Global Note shall be appropriately reduced or increased, and an adjustment shall be
made on the books and records of the Trustee (if it is then the Custodian for such Global Note) with respect to such Global Note, by the
Trustee or the Custodian, to reflect such reduction or increase. Notwithstanding anything to the contrary in this First Supplemental Indenture
or in the Base Indenture, if any previously authenticated and delivered Global Notes are cancelled and Definitive Notes are authenticated
and delivered in exchange therefor pursuant to this Section 2.04, the Company shall not be required to deliver any Officer’s
Certificate(s) or Opinion of Counsel to the Trustee.
(d) The
transfer and exchange of Global Notes or beneficial interests therein shall be effected through the Depositary, in accordance with the
Indenture and the Applicable Procedures. Definitive Notes shall be transferred and exchanged by the Holders thereof and the Trustee in
accordance with the terms and conditions set forth in Section 3.05 of the Base Indenture.
2.05 Interest.
The Company shall pay interest on the 2029 Notes in cash in Dollars in arrears on April 15 and October 15 of each year, with
the first payment on April 15, 2027, to the Holders in whose names such 2029 Notes are registered at the close of business on April 1
and October 1, as the case may be (in each case, whether or not a Business Day), immediately preceding the related Interest Payment
Date. The Company shall pay interest on the 2031 Notes in cash in Dollars in arrears on April 15 and October 15 of each year,
with the first payment on April 15, 2027, to the Holders in whose names such 2031 Notes are registered at the close of business on
April 1 and October 1, as the case may be (in each case, whether or not a Business Day), immediately preceding the related Interest
Payment Date. The Company shall pay interest on the 2036 Notes in cash in Dollars in arrears on April 15 and October 15 of each
year, with the first payment on April 15, 2027, to the Holders in whose names such 2036 Notes are registered at the close of business
on April 1 and October 1, as the case may be (in each case, whether or not a Business Day), immediately preceding the related
Interest Payment Date. Such interest payment dates and record dates for any series of Notes are the “Interest Payment Dates”
and “Regular Record Dates,” respectively, for such series of Notes.
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Interest payable on the applicable Maturity Date
of a series of Notes or any Redemption Date of a series of Notes shall be payable to the Holder to whom the principal of such series of
Notes shall be payable. Interest on each series of Notes shall be computed on the basis of a 360-day year of twelve 30-day months. The
Company shall make payments of principal, premium, if any, and interest through the Trustee to the Depositary. If any of the Notes are
no longer represented by a Global Note, payment of principal, premium, if any, and interest on Definitive Notes may, at the Company’s
option, be made by check mailed directly to Holders at their registered addresses appearing in the Security Register. Principal, premium,
if any, and interest shall be considered paid on the date due if it has been deposited with the Trustee or Paying Agent in accordance
with Section 5.05(c) of the Base Indenture.
Interest payable on any Interest Payment Date,
Redemption Date or Maturity Date shall be the amount of interest accrued from, and including, the next preceding Interest Payment Date
in respect of which interest has been paid or duly provided for (or from and including the original issue date, if no interest has been
paid or duly provided for with respect to the Notes) to, but excluding, such Interest Payment Date, Redemption Date or Maturity Date,
as the case may be. If any Interest Payment Date, Redemption Date or Maturity Date is not a Business Day, the payment otherwise required
to be made on such date will be made on the next succeeding Business Day with the same force and effect as if made on the Interest Payment
Date, Redemption Date or Maturity Date, as applicable; provided that no additional interest shall accrue with respect to the payment due
on such date for the period from and after such Interest Payment Date, Redemption Date or Maturity Date, as the case may be, to the next
succeeding Business Day.
The Company shall pay interest on overdue principal
and premium, if any, and (to the extent legally enforceable under applicable law) upon any overdue installments of interest, in each case,
on Notes of any series at the same rate borne by the Notes of such series.
2.06 Other
Terms and Conditions.
(a) The
Notes are not subject to or entitled to the benefit of any sinking fund.
(b) The
defeasance and covenant defeasance provisions of Section 13.02 of the Base Indenture will apply to the Notes, and the covenants set
forth in Article Four of this First Supplemental Indenture shall be subject to the provisions of Section 13.02 of the Base Indenture.
The provisions of Section 13.01 of the Base Indenture will apply to the Notes.
(c) The
Notes will be subject to Article Six of the Base Indenture.
(d) The
Trustee will initially be the Security Registrar and Paying Agent.
11
(e) The
Notes will be subject to the covenants provided in Article Five of the Base Indenture.
(f) The
Notes are not convertible into or exchangeable for other Securities, Capital Stock or other securities of any kind of the Company or another
Person.
(g) The
place of payment for the Notes, and the place where notices and demand to or upon the Company in respect of the Notes and the Indenture
may be served, shall be the Corporate Trust Office of the Trustee, which office at the date hereof is located at 2713 Forest Hills Rd
SW, Building 2, Floor 2, Wilson, North Carolina 27893, or such other address as the Trustee may designate from time to time by notice
to the Holders, the Company and the Parent Guarantor, or the principal corporate trust office of any successor Trustee (or such other
address as such successor Trustee may designate from time to time by notice to the Holders, the Company and the Parent Guarantor); provided,
that no office of the Trustee shall be an office or agency of the Company or the Parent Guarantor for purposes of service of legal process
on the Company or the Parent Guarantor.
Article III
REDEMPTION
3.01 Optional
Redemption of the Notes.
(a) Prior
to the applicable Par Call Date for each series of Notes, the Company may redeem the applicable series of Notes at its option, in whole
or in part, at any time and from time to time, at a redemption price (expressed as a percentage of principal amount and rounded to three
decimal places) equal to the greater of:
(i) 100%
of the principal amount of the applicable series of Notes to be redeemed on the Redemption Date; and
(ii) (A) the
sum of the present values of the remaining scheduled payments of principal and interest thereon discounted to the Redemption Date (assuming
the applicable series of Notes matured on the applicable Par Call Date) on a semi-annual basis (assuming a 360-day year consisting of
twelve 30-day months) at the applicable Treasury Rate plus (i) 15 basis points for the 2029 Notes, (ii) 15 basis points for
the 2031 Notes and (iii) 20 basis points for the 2036 Notes, less (B) interest accrued to the Redemption Date,
plus,
in each case, accrued and unpaid interest, if any, thereon to, but excluding, the Redemption Date.
(b) For
each series of Notes, on or after the applicable Par Call Date, the Company may redeem the applicable series of Notes at its option, in
whole or in part, at any time and from time to time, at a redemption price equal to 100% of the principal amount of the applicable series
of Notes being redeemed plus accrued and unpaid interest, if any, thereon to, but excluding, the Redemption Date.
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(c) Unless
the Company defaults in payment of the redemption price, on and after the Redemption Date interest will cease to accrue on the Notes or
portions thereof called for redemption.
(d) In
the case of a partial redemption of any series of Notes, selection of the Notes of such series for redemption will be made pro rata, by
lot or by such other method as the Trustee in its sole discretion deems appropriate and fair. No Notes of a principal amount of $2,000
or less will be redeemed in part. If any Note is to be redeemed in part only, the notice of redemption that relates to the Note will state
the portion of the principal amount of the Note being redeemed. Except in the case of Global Notes, a new Note in a principal amount equal
to the unredeemed portion of the Note will be issued in the name of the Holder of the Note upon surrender for cancellation of the original
Note. Notwithstanding the foregoing, for so long as the Notes are held by the Depositary, the redemption of the Notes shall be done in
accordance with the Applicable Procedures.
(e) In
the event of any redemption of Notes, the Company shall not be required to (i) register the transfer of or exchange any Note during
a period beginning at the opening of business 15 days before the mailing of notice of redemption of the Notes and ending at the close
of business on the day of such mailing, or (ii) register the transfer of or exchange any Note so selected for redemption, in whole
or in part, except the unredeemed portion of any Note being redeemed in part.
(f) Any
redemption of the Notes may, at the Company’s discretion, be subject to one or more conditions precedent, as provided in Section 4.02
of the Base Indenture. In addition, the Company may provide in such notice that payment of the redemption price and performance of the
Company’s obligations with respect to such redemption may be performed by another Person (but the Company shall remain responsible
in the event of any failure of such other Person to perform any such obligations).
(g) The
Company’s actions and determinations in determining the redemption price shall be conclusive and binding for all purposes, absent
manifest error. The Trustee shall have no duty to determine, or verify the calculation of, the redemption price.
(h) Notwithstanding
the foregoing, installments of interest on Notes that are due and payable on an Interest Payment Date falling on or prior to a Redemption
Date will be payable on such Interest Payment Date to the Holders as of the close of business on the relevant Regular Record Date immediately
preceding such Interest Payment Date, unless, with respect to any Global Security, the procedures of the Depositary require payment to
be completed in an alternate manner and in such case the procedures of the Depositary may control.
(i) Notwithstanding
anything to the contrary in this First Supplemental Indenture or the Base Indenture, the Company, the Parent Guarantor and their respective
Affiliates, and their respective members of management, among other parties, may, at any time and from time to time, purchase, repurchase,
redeem, exchange, defease or otherwise acquire or retire the Parent Guarantor’s or any of its Subsidiaries’ outstanding debt
securities or loans, including the Notes of any series, by any means other than a redemption conducted pursuant to Section 3.01 of
this First Supplemental Indenture and Sections 4.02, 4.03 and 4.04 of the Base Indenture (and, for the avoidance of doubt, without being
subject to any pro rata repurchase requirement) from any Person, upon such terms and conditions, at such prices and with such considerations
as the Company, the Parent Guarantor and their respective Affiliates and their respective members of management, among other parties,
may determine, including, without limitation, in negotiated transactions, open market purchases, by tender offer or any other transactions
with one or more Holders or beneficial owners of Notes.
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3.02 Additional
Redemption Provisions.
(a) Subject
to Section 6.03 of this First Supplemental Indenture, the provisions of Article Four of the Base Indenture, as supplemented
by the provisions of this First Supplemental Indenture, shall apply to the Notes.
Article IV
ADDITIONAL COVENANTS
4.01 Change
of Control.
(a) On
or before the 30th day after the date of the occurrence of a Change of Control Triggering Event with respect to a series of Notes, the
Company shall make an Offer to Purchase (a “Change of Control Offer”) on a Business Day not more than 60 nor less than
10 days following the delivery to each Holder of Notes of such series of the notice described in paragraph (b) below (the “Change
of Control Purchase Date”), all of the then Outstanding Notes of such series tendered at a purchase price in cash in Dollars
(the “Change of Control Purchase Price”) equal to 101% of the principal amount thereof plus accrued and unpaid interest,
if any, thereon to, but excluding, the Change of Control Purchase Date. Notwithstanding the foregoing, installments of interest on Notes
of such series that are due and payable on Interest Payment Dates falling on or prior to a Purchase Date shall be payable on the Interest
Payment Date to the registered Holders as of the close of business on the relevant Regular Record Date; provided, however,
that with respect to any Global Security, if the procedures of the Depositary require payment to be completed in an alternate manner,
in such case the procedures of the Depositary shall control. The Company shall be required to purchase all Notes of a series tendered
into the Change of Control Offer and not withdrawn.
(b) Within
30 days following any Change of Control Triggering Event with respect to a series of Notes, the Company shall deliver a notice to each
Holder of Notes of such series describing the transaction or transactions that constitute the Change of Control Triggering Event and stating
all other information as set forth in the definition of “Offer to Purchase.”
(c) On
the Change of Control Purchase Date, the Company shall (i) accept for payment Notes of each series or portions thereof (not less
than $2,000 principal amount and integral multiples of $1,000 in excess thereof) tendered pursuant to the Change of Control Offer, (ii) deposit
with the Paying Agent cash in Dollars sufficient to pay the Purchase Price of (including accrued and unpaid interest on) all Notes of
each series or portions thereof so tendered and accepted and (iii) deliver to the Trustee the Notes so accepted together with an
Officer’s Certificate setting forth the Notes of each series or portions thereof tendered to and accepted for payment by the Company.
The Paying Agent shall promptly mail or deliver to the Holders of Notes of each series so accepted payment in an amount equal to the purchase
price, and the Trustee shall promptly authenticate and make available for delivery to such Holders a new Note of like tenor equal in principal
amount to any unpurchased portion of the Note surrendered. Any Notes not so accepted shall be promptly mailed or delivered by the Company
to the Holder thereof. The Company shall publicly announce the results of the Change of Control Offer not later than the third Business
Day following the Change of Control Purchase Date.
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(d) The
Company shall not be required to make a Change of Control Offer upon a Change of Control Triggering Event with respect to a series of
Notes if (1) a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements
applicable to a Change of Control Offer made by the Company and purchases all Notes of such series validly tendered and not withdrawn
under such Change of Control Offer or (2) a notice of redemption for all Outstanding Notes of such series has been given pursuant
to Section 3.01, unless and until there is a default in payment of the applicable Redemption Price.
(e) If
Holders of not less than 90% in aggregate principal amount of the Outstanding Notes of a series validly tender and do not withdraw such
Notes in an offer to repurchase such Notes upon a Change of Control Triggering Event and the Company, or any third party making an offer
to repurchase such Notes upon a Change of Control Triggering Event in lieu of the Company, as described in the immediately preceding clause
(d), purchase all of the Notes of such series validly tendered and not withdrawn by such Holders, then the Company shall have the right,
upon not less than 10 days’ nor more than 60 days’ prior notice to each Holder of such Notes, with a copy to the Trustee,
given not more than 30 days following the Change of Control Purchase Date, to redeem all Notes of such series that remain Outstanding
following such purchase at a redemption price in cash in Dollars equal to 101% of the principal amount thereof, plus accrued and unpaid
interest, if any, to, but excluding, the Redemption Date (subject to the right of the Holders of record on the relevant Regular Record
Date to receive interest due on the relevant Interest Payment Date).
(f) The
Company shall comply with Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder, to the extent
such laws or regulations are applicable, in the event that a Change of Control Triggering Event with respect to a series of Notes occurs
and the Company is required to purchase Notes of such series as described above.
(g) Notwithstanding
anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control Triggering Event with respect
to any series of Notes, conditioned upon the consummation of such Change of Control Triggering Event, if a definitive agreement is in
place for the Change of Control Triggering Event at the time the Change of Control Offer is made.
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Article V
GUARANTEE
5.01 Guarantee.
The guarantee provisions of Article XIV of the Base Indenture will apply to the Notes and, subject to the terms of such Article XIV,
the Parent Guarantor unconditionally, fully and irrevocably guarantees the obligations of the Company under the Notes and the Indenture
on a senior unsecured basis as set forth in the Indenture, and guarantees to each Holder of a Note authenticated and delivered by the
Trustee, and to the Trustee for itself and on behalf of such Holder (collectively, the “Guarantees” and each individually,
a “Guarantee”), that (i) the principal of (and premium, if any) and interest on the Notes will be paid in full
when due, whether at the applicable Maturity Date, by acceleration, redemption or other event set forth in the Indenture, together with
interest on the overdue principal of and interest on the Securities, if any, if lawful, and all other obligations of the Company to the
Holders or the Trustee hereunder or thereunder shall be promptly paid in full or performed, all in accordance with the terms hereof and
thereof; and (ii) in case of any extension of time of payment or renewal of any Notes or of any such other obligations, the same
shall be paid in full when due or performed in accordance with the terms of the extension or renewal, whether at the applicable Maturity
Date, by acceleration, redemption or other event set forth in the Indenture.
5.02 Release
of Parent Guarantor.
(a) The
Guarantee of the Parent Guarantor shall be automatically and unconditionally released and discharged upon:
(i) defeasance
or discharge of the Notes, as provided in Article XIII of the Base Indenture, including pursuant to the provisions of Section 13.01
(Satisfaction and Discharge) and Section 13.02 (Defeasance and Covenant Defeasance) of the Base Indenture;
(ii) upon
the merger or consolidation of the Parent Guarantor and the Company, in each case, in compliance with the applicable provisions of the
Indenture; and
(iii) as
permitted by the provisions of Section 11.02 of the Base Indenture (Supplemental Indentures with Consent of Holders).
(b) At
the request of the Company, the Trustee will execute any documents reasonably requested by the Company evidencing such release.
(c) If
the Parent Guarantor is released from its obligations hereunder pursuant to this section, it shall cease to be a “Guarantor”
as defined in and for purposes of the Indenture.
Article VI
MISCELLANEOUS
6.01 Application
of First Supplemental Indenture. The Base Indenture, as supplemented by this First Supplemental Indenture, is in all respects ratified
and confirmed and all of the provisions contained in the Base Indenture in respect of the rights, privileges, immunities, powers and duties
of the Trustee shall be applicable in respect of this First Supplemental Indenture as fully and with like effect as if set forth herein
in full. This First Supplemental Indenture shall be deemed part of the Base Indenture in the manner and to the extent herein and therein
provided.
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6.02 Trust
Indenture Act. To the extent the Trust Indenture Act applies to the Indenture, the Notes or the Guarantee, if any provision of the
Indenture limits, qualifies or conflicts with a provision of the Trust Indenture Act that is required under the Trust Indenture Act to
be a part of and govern the Indenture, the latter provision shall control. To the extent the Trust Indenture Act applies to the Indenture,
the Notes or the Guarantee, if any provision of the Indenture modifies or excludes any provision of the Trust Indenture Act that may be
so modified or excluded, the latter provision shall be deemed to apply to the Indenture as so modified or to be excluded, as the case
may be.
6.03 Conflict
with Base Indenture. To the extent not expressly amended or modified by this First Supplemental Indenture, the Base Indenture shall
remain in full force and effect. If any provision of this First Supplemental Indenture relating to the Notes and the Guarantee is inconsistent
with any provision of the Base Indenture, the provision of this First Supplemental Indenture shall control.
6.04 Governing
Law; Waiver of Trial by Jury; Submission to Jurisdiction. This First Supplemental Indenture, the Notes and the Guarantee shall be
governed by, and construed in accordance with, the laws of the State of New York, as applied to contracts made and performed within the
State of New York, without regard to principles of conflicts of law that would result in the application of the laws of another jurisdiction.
Any legal suit, action or proceeding arising out of or based upon this First Supplemental Indenture or the transactions contemplated hereby
may be instituted in any state or Federal court in the Borough of Manhattan, New York, New York, and any appellate court from any thereof,
and each of the parties hereto and the Holders, by acceptance of the Notes, hereby irrevocably submits to the exclusive jurisdiction of
such courts in any such suit, action or proceeding.
EACH OF THE COMPANY, THE PARENT GUARANTOR, THE
TRUSTEE AND EACH HOLDER OF A NOTE, BY ITS ACCEPTANCE THEREOF, HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS FIRST SUPPLEMENTAL INDENTURE, THE
NOTES OR THE TRANSACTIONS CONTEMPLATED HEREBY.
6.05 Successors.
All agreements of the Company in the Base Indenture, this First Supplemental Indenture and the Notes shall bind its successors. All agreements
of the Trustee in the Base Indenture and this First Supplemental Indenture shall bind its successors. All agreements of the Parent Guarantor
in the Base Indenture and this First Supplemental Indenture shall bind its successors.
6.06 Counterparts.
This First Supplemental Indenture may be executed in any number of counterparts, each of which so executed shall be deemed to be an original,
but all such counterparts shall together constitute but one and the same instrument. The exchange of copies of this First Supplemental
Indenture and of signature pages by PDF transmission will constitute effective execution and delivery of this First Supplemental
Indenture as to the parties hereto and may be used in lieu of the original First Supplemental Indenture for all purposes. Signatures of
the parties hereto transmitted by email transmission with PDF attachment will be deemed to be their original signatures for all purposes.
For the avoidance of doubt, the words “execution,” “signed,” “signature,” “delivery” and
words of like import in this First Supplemental Indenture shall be deemed to include images of manually executed signatures transmitted
by electronic format (including, without limitation, “pdf”, “tif” or “jpg”) and other electronic signatures
(including, without limitation, DocuSign and AdobeSign), deliveries or the keeping of records in electronic form, each of which shall
be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper
based recordkeeping system, as the case may be, and the parties hereto consent to conduct the transactions contemplated hereunder by electronic
means; provided that, notwithstanding anything herein to the contrary, the Trustee is not under any obligation to agree to accept electronic
signatures in any form or in any format unless expressly agreed to by the Trustee, pursuant to reasonable procedures approved by the Trustee.
17
6.07 Trustee
Disclaimer. The Trustee makes no representation as to the validity, adequacy or sufficiency of this First Supplemental Indenture and
the Notes other than as to the validity of the execution and delivery of this First Supplemental Indenture by the Trustee and the authentication
of the Notes by the Trustee or any Authenticating Agent. The recitals and statements herein and in the Notes are deemed to be those of
the Parent Guarantor and the Company and not of the Trustee and the Trustee assumes no responsibility for the same and the Trustee does
not make any representation with respect to such matters. The Trustee or any Authenticating Agent shall not be accountable for the use
or application by the Company of Notes or the proceeds thereof.
[Remainder of page intentionally left blank]
18
IN
WITNESS WHEREOF, the parties to this First Supplemental Indenture have caused it to be duly executed as of the day and year
first above written.
UNITED RENTALS (NORTH AMERICA), INC.,
as Company
By:
/s/ Sybil Collins
Name:
Sybil Collins
Title:
Vice President, Treasurer
UNITED RENTALS, INC., as Parent Guarantor
By:
/s/ Sybil Collins
Name:
Sybil Collins
Title:
Vice President, Treasurer
TRUIST BANK, as Trustee
By:
/s/ Patrick Giordano
Name:
Patrick Giordano
Title:
Vice President
[Signature Page to First Supplemental
Indenture]
Exhibit A
FORM OF NOTE
Each Global Note shall bear the following legend:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE
AND, UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE REGISTERED FORM, THIS SECURITY MAY NOT
BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO THE NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY
OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR TO A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY.
Each Global Note having The Depository Trust Company as the Depositary
shall have the following legend:
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE
OR PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF [*], OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC (AND ANY PAYMENT IS MADE TO [*] OR TO SUCH OTHER ENTITY AS IS REQUIRED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, [*], HAS AN INTEREST HEREIN.
A-1
UNITED RENTALS (NORTH AMERICA), INC.
5.550% Senior Notes due 2029
No. [*]
CUSIP No.: 911365BT0
ISIN No.: US911365BT03
$[*]
UNITED RENTALS (NORTH AMERICA), INC., a Delaware
corporation (the “Company”), for value received promises to pay to [*] or registered assigns, the principal sum of [*] DOLLARS
(as may be adjusted by the increase or decrease as reflected on the Schedule of Increases or Decreases in the Global Note attached hereto)
on October 15, 2029 (the “Maturity Date”).
Interest Payment Dates: April 15 and October 15
(each, an “Interest Payment Date”), commencing on April 15, 2027, and upon the Maturity Date.
Interest Record Dates: April 1 and October 1
(each, a “Regular Record Date”).
Reference is made to the further provisions of
this 2029 Note contained herein, which will for all purposes have the same effect as if set forth at this place.
A-2
IN WITNESS WHEREOF, the Company has caused this
2029 Note to be duly executed.
Dated:
UNITED RENTALS (NORTH AMERICA), INC.,
By:
Name:
Title:
[Signature Page to Note]
A-3
This is one of the Securities of the series designated
therein issued under the within-mentioned Indenture.
Dated:
TRUIST BANK, as Trustee
By:
Authorized Signatory
[Signature Page to Note]
A-4
(REVERSE OF NOTE)
UNITED RENTALS (NORTH AMERICA), INC.
5.550% Senior Notes due 2029
1. Interest.
United Rentals (North America), Inc. (the “Company”) promises to pay interest on the principal amount of this
2029 Note at the rate per annum set forth above. Interest on the Notes shall be computed on the basis of a 360-day year of twelve 30-day
months. The Company shall pay interest on the Notes in cash in Dollars in arrears on April 15 and October 15 of each year, with
the first payment on April 15, 2027, to the Holders in whose names such Note is registered at the close of business on April 1
and October 1, as the case may be (in each case, whether or not a Business Day), immediately preceding the related Interest Payment
Date. Interest payable on the Maturity Date of the Notes or any Redemption Date of the Notes shall be payable to the Holder to whom the
principal of such Note shall be payable, except as otherwise provided in the Indenture. Interest payable on any Interest Payment Date,
Redemption Date or Maturity Date shall be the amount of interest accrued from, and including, the immediately preceding Interest Payment
Date in respect of which interest has been paid or duly provided for (or from and including October 29, 2026, if no interest has
been paid or duly provided for with respect to the Notes) to, but excluding, such Interest Payment Date, Redemption Date or Maturity Date,
as the case may be. If any Interest Payment Date, Redemption Date or Maturity Date is not a Business Day, the payment otherwise required
to be made on such date, will be made on the next succeeding Business Day with the same force and effect as if made on the Interest Payment
Date, Redemption Date or Maturity Date, as applicable; provided that no additional interest shall accrue with respect to the payment
due on such date for the period from and after such Interest Payment Date, Redemption Date or Maturity Date, as the case may be, to the
next succeeding Business Day.
Any interest on this 2029 Note that is payable,
but is not punctually paid or duly provided for, on any Interest Payment Date (herein called “Defaulted Interest”)
shall forthwith cease to be payable to the Holder at the close of business on the relevant Regular Record Date, and such Defaulted Interest
shall be paid by the Company in accordance with the provisions of Section 3.07 of the Base Indenture.
The Company shall pay interest on overdue principal
and premium, if any, and (to the extent legally enforceable under applicable law) upon any overdue installments of interest at the same
rate borne by this 2029 Note.
2. Paying
Agent. Initially, the Trustee (as defined below) will act as Paying Agent. The Company may at any time designate additional Paying
Agents or rescind the designation of any Paying Agent.
3. Indenture;
Defined Terms. This 2029 Note is one of the 5.550% Senior Notes due 2029 (the “Notes”) issued under the Indenture,
dated as of October 29, 2026 (as amended, modified or supplemented from time to time in accordance therewith, the “Base
Indenture” and, as supplemented by the First Supplemental Indenture, dated as of October 29, 2026, the “Indenture”),
by and between the Company, the Parent Guarantor and Truist Bank, as trustee (the “Trustee”). This 2029 Note is a “Security”
and the Notes are “Securities” under the Indenture.
A-5
For purposes of this 2029 Note, unless otherwise
defined herein, capitalized terms herein are used as defined in the Indenture. The terms of the Notes include those stated in the Indenture
and those made part of the Indenture by reference to the Trust Indenture Act. Notwithstanding anything to the contrary herein, the Notes
are subject to all such terms, and Holders of Notes are referred to the Indenture and the Trust Indenture Act for a statement of them.
To the extent the terms of the Indenture and this 2029 Note are inconsistent, the terms of the Indenture shall govern.
4. Denominations:
Transfer: Exchange. The Notes are in registered form, without coupons, in minimum denominations of $2,000 and integral multiples of
$1,000 in excess thereof. A Holder shall register the transfer or exchange of Notes in accordance with the Indenture. The Company or the
Security Registrar may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and to pay certain
transfer taxes or similar governmental charges payable in connection therewith as permitted by the Indenture.
5. Redemption.
The Notes are subject to optional redemption as further described in the Indenture. There is no sinking fund applicable to the Notes.
6. Offer
to Purchase Upon Change of Control Triggering Event. On or before the 30th day after the date of the occurrence of a Change of Control
Triggering Event with respect to the Notes, each Holder of Notes will have the right to require that the Company repurchase all or a portion
(equal to a minimum of $2,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s Notes, as further described
in the Indenture, except as otherwise provided in Section 4.01(d) of the First Supplemental Indenture.
7. Defaults
and Remedies. If certain Events of Default with respect to the Notes occur and are continuing, then the Trustee or the Holders of
not fewer than 25% in aggregate principal amount of the Outstanding Notes may declare the principal amount and accrued and unpaid interest,
if any, of all the Notes to be due and immediately payable, by a notice in writing to the Company (and to the Trustee if given by Holders),
and upon any such declaration such principal amount and such accrued and unpaid interest shall become immediately due and payable.
8. CUSIP
and ISIN Numbers. No representation is made as to the accuracy of CUSIP or ISIN numbers as printed on the Notes.
9. Guarantee.
The Company’s obligations under the Notes are fully, irrevocably and unconditionally guaranteed by the Parent Guarantor on an unsecured
and unsubordinated basis, to the extent set forth in the Indenture.
10. Governing
Law. This 2029 Note shall be governed by and construed in accordance with the laws of the State of New York.
11. Authentication.
This 2029 Note shall not be valid until an authorized signatory of the Trustee (or an Authenticating Agent) manually signs the certificate
of authentication on the other side of this 2029 Note.
A-6
ASSIGNMENT FORM
To assign this 2029 Note, fill in the form below:
I or we assign and transfer this
Note to
(Print or type assignee’s name, address and zip code)
(Insert assignee’s soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this
Note on the books of the Company. The agent may
substitute another to act for her.
Date:
Your Signature
Sign exactly as your name appears on the other
side of this 2029 Note.
Signature
Signature Guarantee:
Signature must be guaranteed
Signature
Signatures must be guaranteed by an “eligible
guarantor institution” meeting the requirements of the Registrar, which requirements include membership or participation in the
Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may
be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the United States Securities Exchange
Act of 1934, as amended.
A-7
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect
to have this Security purchased by the Company pursuant to Section 4.01 of the First Supplemental Indenture, check the box: ☐
If you want to elect to have only part of this
2029 Note purchased by the Company pursuant to Section 4.01 of the First Supplemental Indenture, state the amount: $______.
Date:
Your Signature
(Sign exactly as your name appears on the other side of the Security)
Tax I.D. number
Signature Guarantee:
(Signature must be guaranteed by a participant in a recognized signature guarantee medallion program)
A-8
SCHEDULE OF INCREASES OR DECREASES IN THE GLOBAL
NOTE*
The following increases or decreases in this Global
Note have been made.
Date of
Exchange
Amount of
decrease in
principal
amount of this
Global Note
Amount of
increase in
principal
amount of this
Global Note
Principal
amount of this
Global Note
following such
decrease (or
increase)
Signature of
authorized
signatory of
Trustee
* This schedule should be included only if the Note is issued in global
form.
A-9
Exhibit B
FORM OF NOTE
Each Global Note shall bear the following legend:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE
AND, UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE REGISTERED FORM, THIS SECURITY MAY NOT
BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO THE NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY
OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR TO A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY.
Each Global Note having The Depository Trust Company as the Depositary
shall have the following legend:
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE
OR PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF [*], OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC (AND ANY PAYMENT IS MADE TO [*] OR TO SUCH OTHER ENTITY AS IS REQUIRED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, [*], HAS AN INTEREST HEREIN.
B-1
UNITED RENTALS (NORTH AMERICA), INC.
5.750% Senior Notes due 2031
No. [*]
CUSIP No.: 911365BU7
ISIN No.: US911365BU75
$[*]
UNITED RENTALS (NORTH AMERICA), INC., a Delaware
corporation (the “Company”), for value received promises to pay to [*] or registered assigns, the principal sum of [*] DOLLARS
(as may be adjusted by the increase or decrease as reflected on the Schedule of Increases or Decreases in the Global Note attached hereto)
on October 15, 2031 (the “Maturity Date”).
Interest Payment Dates: April 15 and October 15
(each, an “Interest Payment Date”), commencing on April 15, 2027, and upon the Maturity Date.
Interest Record Dates: April 1 and October 1
(each, a “Regular Record Date”).
Reference is made to the further provisions of
this 2031 Note contained herein, which will for all purposes have the same effect as if set forth at this place.
B-2
IN WITNESS WHEREOF, the Company has caused this
2031 Note to be duly executed.
Dated:
UNITED RENTALS (NORTH AMERICA), INC.,
By:
Name:
Title:
[Signature Page to
Note]
B-3
This is one of the Securities of the series designated
therein issued under the within-mentioned Indenture.
Dated:
TRUIST BANK, as Trustee
By:
Authorized Signatory
[Signature Page to Note]
B-4
(REVERSE OF NOTE)
UNITED RENTALS (NORTH AMERICA), INC.
5.750% Senior Notes due 2031
1. Interest.
United Rentals (North America), Inc. (the “Company”) promises to pay interest on the principal amount of this
2031 Note at the rate per annum set forth above. Interest on the Notes shall be computed on the basis of a 360-day year of twelve 30-day
months. The Company shall pay interest on the Notes in cash in Dollars in arrears on April 15 and October 15 of each year, with
the first payment on April 15, 2027, to the Holders in whose names such Note is registered at the close of business on April 1
and October 1, as the case may be (in each case, whether or not a Business Day), immediately preceding the related Interest Payment
Date. Interest payable on the Maturity Date of the Notes or any Redemption Date of the Notes shall be payable to the Holder to whom the
principal of such Note shall be payable, except as otherwise provided in the Indenture. Interest payable on any Interest Payment Date,
Redemption Date or Maturity Date shall be the amount of interest accrued from, and including, the immediately preceding Interest Payment
Date in respect of which interest has been paid or duly provided for (or from and including October 29, 2026, if no interest has
been paid or duly provided for with respect to the Notes) to, but excluding, such Interest Payment Date, Redemption Date or Maturity Date,
as the case may be. If any Interest Payment Date, Redemption Date or Maturity Date is not a Business Day, the payment otherwise required
to be made on such date, will be made on the next succeeding Business Day with the same force and effect as if made on the Interest Payment
Date, Redemption Date or Maturity Date, as applicable; provided that no additional interest shall accrue with respect to the payment
due on such date for the period from and after such Interest Payment Date, Redemption Date or Maturity Date, as the case may be, to the
next succeeding Business Day.
Any interest on this 2031 Note that is payable,
but is not punctually paid or duly provided for, on any Interest Payment Date (herein called “Defaulted Interest”)
shall forthwith cease to be payable to the Holder at the close of business on the relevant Regular Record Date, and such Defaulted Interest
shall be paid by the Company in accordance with the provisions of Section 3.07 of the Base Indenture.
The Company shall pay interest on overdue principal
and premium, if any, and (to the extent legally enforceable under applicable law) upon any overdue installments of interest at the same
rate borne by this 2031 Note.
2. Paying
Agent. Initially, the Trustee (as defined below) will act as Paying Agent. The Company may at any time designate additional Paying
Agents or rescind the designation of any Paying Agent.
3. Indenture;
Defined Terms. This 2031 Note is one of the 5.750% Senior Notes due 2031 (the “Notes”) issued under the Indenture,
dated as of October 29, 2026 (as amended, modified or supplemented from time to time in accordance therewith, the “Base
Indenture” and, as supplemented by the First Supplemental Indenture, dated as of October 29, 2026, the “Indenture”),
by and between the Company, the Parent Guarantor and Truist Bank, as trustee (the “Trustee”). This 2031 Note is a “Security”
and the Notes are “Securities” under the Indenture.
B-5
For purposes of this 2031 Note, unless otherwise
defined herein, capitalized terms herein are used as defined in the Indenture. The terms of the Notes include those stated in the Indenture
and those made part of the Indenture by reference to the Trust Indenture Act. Notwithstanding anything to the contrary herein, the Notes
are subject to all such terms, and Holders of Notes are referred to the Indenture and the Trust Indenture Act for a statement of them.
To the extent the terms of the Indenture and this 2031 Note are inconsistent, the terms of the Indenture shall govern.
4. Denominations:
Transfer: Exchange. The Notes are in registered form, without coupons, in minimum denominations of $2,000 and integral multiples of
$1,000 in excess thereof. A Holder shall register the transfer or exchange of Notes in accordance with the Indenture. The Company or the
Security Registrar may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and to pay certain
transfer taxes or similar governmental charges payable in connection therewith as permitted by the Indenture.
5. Redemption.
The Notes are subject to optional redemption as further described in the Indenture. There is no sinking fund applicable to the Notes.
6. Offer
to Purchase Upon Change of Control Triggering Event. On or before the 30th day after the date of the occurrence of a Change of Control
Triggering Event with respect to the Notes, each Holder of Notes will have the right to require that the Company repurchase all or a portion
(equal to a minimum of $2,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s Notes, as further described
in the Indenture, except as otherwise provided in Section 4.01(d) of the First Supplemental Indenture.
7. Defaults
and Remedies. If certain Events of Default with respect to the Notes occur and are continuing, then the Trustee or the Holders of
not fewer than 25% in aggregate principal amount of the Outstanding Notes may declare the principal amount and accrued and unpaid interest,
if any, of all the Notes to be due and immediately payable, by a notice in writing to the Company (and to the Trustee if given by Holders),
and upon any such declaration such principal amount and such accrued and unpaid interest shall become immediately due and payable.
8. CUSIP
and ISIN Numbers. No representation is made as to the accuracy of CUSIP or ISIN numbers as printed on the Notes.
9. Guarantee.
The Company’s obligations under the Notes are fully, irrevocably and unconditionally guaranteed by the Parent Guarantor on an unsecured
and unsubordinated basis, to the extent set forth in the Indenture.
10. Governing
Law. This 2031 Note shall be governed by and construed in accordance with the laws of the State of New York.
11. Authentication.
This 2031 Note shall not be valid until an authorized signatory of the Trustee (or an Authenticating Agent) manually signs the certificate
of authentication on the other side of this 2031 Note.
B-6
ASSIGNMENT FORM
To assign this 2031 Note, fill in the form below:
I or we assign and transfer this
Note to
(Print or type assignee’s name, address and zip code)
(Insert assignee’s soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this
Note on the books of the Company. The agent may
substitute another to act for her.
Date:
Your Signature
Sign exactly as your name appears on the other
side of this 2031 Note.
Signature
Signature Guarantee:
Signature must be guaranteed
Signature
Signatures must be guaranteed by an “eligible
guarantor institution” meeting the requirements of the Registrar, which requirements include membership or participation in the
Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may
be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the United States Securities Exchange
Act of 1934, as amended.
B-7
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect
to have this Security purchased by the Company pursuant to Section 4.01 of the First Supplemental Indenture, check the box: ☐
If you want to elect to have only part of this
2031 Note purchased by the Company pursuant to Section 4.01 of the First Supplemental Indenture, state the amount: $______.
Date:
Your Signature
(Sign exactly as your name appears on the other side of the Security)
Tax I.D. number
Signature Guarantee:
(Signature must be guaranteed by a participant in a recognized signature guarantee medallion program)
B-8
SCHEDULE OF INCREASES OR DECREASES IN THE GLOBAL
NOTE*
The following increases or decreases in this Global
Note have been made.
Date of
Exchange
Amount of
decrease in
principal
amount of this
Global Note
Amount of
increase in
principal
amount of this
Global Note
Principal
amount of this
Global Note
following such
decrease (or
increase)
Signature of
authorized
signatory of
Trustee
* This schedule should be included only if the Note is issued in global
form.
B-9
Exhibit C
FORM OF NOTE
Each Global Note shall bear the following legend:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE
AND, UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE REGISTERED FORM, THIS SECURITY MAY NOT
BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO THE NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY
OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR TO A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY.
Each Global Note having The Depository Trust Company as the Depositary
shall have the following legend:
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE
OR PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF [*], OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC (AND ANY PAYMENT IS MADE TO [*] OR TO SUCH OTHER ENTITY AS IS REQUIRED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, [*], HAS AN INTEREST HEREIN.
C-1
UNITED RENTALS (NORTH AMERICA), INC.
6.200% Senior Notes due 2036
No. [*]
CUSIP No.: 911365BV5
ISIN No.: US911365BV58
$[*]
UNITED RENTALS (NORTH AMERICA), INC., a Delaware
corporation (the “Company”), for value received promises to pay to [*] or registered assigns, the principal sum of [*] DOLLARS
(as may be adjusted by the increase or decrease as reflected on the Schedule of Increases or Decreases in the Global Note attached hereto)
on October 15, 2036 (the “Maturity Date”).
Interest Payment Dates: April 15 and October 15
(each, an “Interest Payment Date”), commencing on April 15, 2027, and upon the Maturity Date.
Interest Record Dates: April 1 and October 1
(each, a “Regular Record Date”).
Reference is made to the further provisions of
this 2036 Note contained herein, which will for all purposes have the same effect as if set forth at this place.
C-2
IN WITNESS WHEREOF, the Company has caused this
2036 Note to be duly executed.
Dated:
UNITED RENTALS (NORTH AMERICA), INC.,
By:
Name:
Title:
[Signature Page to
Note]
C-3
This is one of the Securities of the series designated
therein issued under the within-mentioned Indenture.
Dated:
TRUIST BANK, as Trustee
By:
Authorized Signatory
[Signature Page to Note]
C-4
(REVERSE OF NOTE)
UNITED RENTALS (NORTH AMERICA), INC.
6.200% Senior Notes due 2036
1. Interest.
United Rentals (North America), Inc. (the “Company”) promises to pay interest on the principal amount of this
2036 Note at the rate per annum set forth above. Interest on the Notes shall be computed on the basis of a 360-day year of twelve 30-day
months. The Company shall pay interest on the Notes in cash in Dollars in arrears on April 15 and October 15 of each year, with
the first payment on April 15, 2027, to the Holders in whose names such Note is registered at the close of business on April 1
and October 1, as the case may be (in each case, whether or not a Business Day), immediately preceding the related Interest Payment
Date. Interest payable on the Maturity Date of the Notes or any Redemption Date of the Notes shall be payable to the Holder to whom the
principal of such Note shall be payable, except as otherwise provided in the Indenture. Interest payable on any Interest Payment Date,
Redemption Date or Maturity Date shall be the amount of interest accrued from, and including, the immediately preceding Interest Payment
Date in respect of which interest has been paid or duly provided for (or from and including October 29, 2026, if no interest has
been paid or duly provided for with respect to the Notes) to, but excluding, such Interest Payment Date, Redemption Date or Maturity Date,
as the case may be. If any Interest Payment Date, Redemption Date or Maturity Date is not a Business Day, the payment otherwise required
to be made on such date, will be made on the next succeeding Business Day with the same force and effect as if made on the Interest Payment
Date, Redemption Date or Maturity Date, as applicable; provided that no additional interest shall accrue with respect to the payment
due on such date for the period from and after such Interest Payment Date, Redemption Date or Maturity Date, as the case may be, to the
next succeeding Business Day.
Any interest on this 2036 Note that is payable,
but is not punctually paid or duly provided for, on any Interest Payment Date (herein called “Defaulted Interest”)
shall forthwith cease to be payable to the Holder at the close of business on the relevant Regular Record Date, and such Defaulted Interest
shall be paid by the Company in accordance with the provisions of Section 3.07 of the Base Indenture.
The Company shall pay interest on overdue principal
and premium, if any, and (to the extent legally enforceable under applicable law) upon any overdue installments of interest at the same
rate borne by this 2036 Note.
2. Paying
Agent. Initially, the Trustee (as defined below) will act as Paying Agent. The Company may at any time designate additional Paying
Agents or rescind the designation of any Paying Agent.
3. Indenture;
Defined Terms. This 2036 Note is one of the 6.200% Senior Notes due 2036 (the “Notes”) issued under the Indenture,
dated as of October 29, 2026 (as amended, modified or supplemented from time to time in accordance therewith, the “Base
Indenture” and, as supplemented by the First Supplemental Indenture, dated as of October 29, 2026, the “Indenture”),
by and between the Company, the Parent Guarantor and Truist Bank, as trustee (the “Trustee”). This 2036 Note is a “Security”
and the Notes are “Securities” under the Indenture.
C-5
For purposes of this 2036 Note, unless otherwise
defined herein, capitalized terms herein are used as defined in the Indenture. The terms of the Notes include those stated in the Indenture
and those made part of the Indenture by reference to the Trust Indenture Act. Notwithstanding anything to the contrary herein, the Notes
are subject to all such terms, and Holders of Notes are referred to the Indenture and the Trust Indenture Act for a statement of them.
To the extent the terms of the Indenture and this 2036 Note are inconsistent, the terms of the Indenture shall govern.
4. Denominations:
Transfer: Exchange. The Notes are in registered form, without coupons, in minimum denominations of $2,000 and integral multiples of
$1,000 in excess thereof. A Holder shall register the transfer or exchange of Notes in accordance with the Indenture. The Company or the
Security Registrar may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and to pay certain
transfer taxes or similar governmental charges payable in connection therewith as permitted by the Indenture.
5. Redemption.
The Notes are subject to optional redemption as further described in the Indenture. There is no sinking fund applicable to the Notes.
6. Offer
to Purchase Upon Change of Control Triggering Event. On or before the 30th day after the date of the occurrence of a Change of Control
Triggering Event with respect to the Notes, each Holder of Notes will have the right to require that the Company repurchase all or a portion
(equal to a minimum of $2,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s Notes, as further described
in the Indenture, except as otherwise provided in Section 4.01(d) of the First Supplemental Indenture.
7. Defaults
and Remedies. If certain Events of Default with respect to the Notes occur and are continuing, then the Trustee or the Holders of
not fewer than 25% in aggregate principal amount of the Outstanding Notes may declare the principal amount and accrued and unpaid interest,
if any, of all the Notes to be due and immediately payable, by a notice in writing to the Company (and to the Trustee if given by Holders),
and upon any such declaration such principal amount and such accrued and unpaid interest shall become immediately due and payable.
8. CUSIP
and ISIN Numbers. No representation is made as to the accuracy of CUSIP or ISIN numbers as printed on the Notes.
9. Guarantee.
The Company’s obligations under the Notes are fully, irrevocably and unconditionally guaranteed by the Parent Guarantor on an unsecured
and unsubordinated basis, to the extent set forth in the Indenture.
10. Governing
Law. This 2036 Note shall be governed by and construed in accordance with the laws of the State of New York.
11. Authentication.
This 2036 Note shall not be valid until an authorized signatory of the Trustee (or an Authenticating Agent) manually signs the certificate
of authentication on the other side of this 2036 Note.
C-6
ASSIGNMENT FORM
To assign this 2036 Note, fill in the form below:
I or we assign and transfer this
Note to
(Print or type assignee’s name, address and zip code)
(Insert assignee’s soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this
Note on the books of the Company. The agent may
substitute another to act for her.
Date:
Your Signature
Sign exactly as your name appears on the other
side of this 2036 Note.
Signature
Signature Guarantee:
Signature must be guaranteed
Signature
Signatures must be guaranteed by an “eligible
guarantor institution” meeting the requirements of the Registrar, which requirements include membership or participation in the
Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may
be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the United States Securities Exchange
Act of 1934, as amended.
C-7
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect
to have this Security purchased by the Company pursuant to Section 4.01 of the First Supplemental Indenture, check the box: ☐
If you want to elect to have only part of this
2036 Note purchased by the Company pursuant to Section 4.01 of the First Supplemental Indenture, state the amount: $______.
Date:
Your Signature
(Sign exactly as your name appears on the other side of the Security)
Tax I.D. number
Signature Guarantee:
(Signature must be guaranteed by a participant in a recognized signature guarantee medallion program)
C-8
SCHEDULE OF INCREASES OR DECREASES IN THE GLOBAL
NOTE*
The following increases or decreases in this Global
Note have been made.
Date of
Exchange
Amount of
decrease in
principal
amount of this
Global Note
Amount of
increase in
principal
amount of this
Global Note
Principal
amount of this
Global Note
following such
decrease (or
increase)
Signature of
authorized
signatory of
Trustee
* This schedule should be included only if the Note is issued in global
form.
C-9
EX-5.1 — EXHIBIT 5.1
EX-5.1
Filename: tm2628016d6_ex5-1.htm · Sequence: 5
Exhibit 5.1
[Letterhead of Sullivan & Cromwell LLP]
October 29, 2026
United Rentals (North America), Inc.,
100 First Stamford Place,
Stamford, Connecticut 06902.
Ladies and Gentlemen:
In connection with the registration under the Securities
Act of 1933 (the “Act”) of (i) $700,000,000 principal amount of 5.550% Senior Notes due 2029, (ii) $800,000,000 principal
amount of 5.750% Senior Notes due 2031, and (iii) $1,000,000,000 principal amount of 6.200% Senior Notes due 2036 (the “Securities”)
of United Rentals (North America), Inc., a Delaware corporation (the “Company”), and having the benefit of the guarantee (the
“Guarantee”) of United Rentals, Inc., a Delaware corporation and parent of the Company (the “Guarantor”), we,
as your counsel, have examined such corporate records, certificates and other documents, and such questions of law, as we have considered
necessary or appropriate for the purposes of this opinion.
Upon the basis of such examination, it is our opinion
that the Securities constitute valid and legally binding obligations of the Company and the Guarantee constitutes a valid and legally
binding obligation of the Guarantor, subject in each case, to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles.
In rendering the foregoing opinion, we are expressing
no opinion as to Federal or state laws relating to fraudulent transfers and we are not passing upon, and assume no responsibility for,
any disclosure in any registration statement or any related prospectus or other offering material relating to the offer and sale of the
Securities and the Guarantee.
The foregoing opinion is limited to the Federal laws
of the United States, the laws of the State of New York and the General Corporation Law of the State of Delaware, and we are expressing
no opinion as to the effect of the laws of any other jurisdiction.
We have relied as to certain factual matters on
information obtained from public officials, officers of the Company and the Guarantor and other sources believed by us to be responsible,
and we have assumed that the Indenture under which the Securities were issued has been duly authorized, executed and delivered by the
Trustee thereunder, that the Securities and the Guarantee endorsed thereon conform to the specimens thereof examined by us, that the
Trustee’s certificates of authentication of the Securities have been manually signed by one of the Trustee’s authorized officers,
and that the signatures on all documents examined by us are genuine, assumptions which we have not independently verified.
United Rentals (North America), Inc.,
-2-
We hereby consent to the filing of this opinion as
an exhibit to a Current Report on Form 8-K to be incorporated by reference into the Registration Statement relating to the Securities
and the Guarantee and to the reference to us under the heading “Validity of Securities” in the Prospectus Supplement relating
to the Securities and the Guarantee, dated October 26, 2026. In giving such consent, we do not thereby admit that we are in the category
of persons whose consent is required under Section 7 of the Act.
Very truly yours,
/s/ Sullivan & Cromwell LLP
EX-10.1 — EXHIBIT 10.1
EX-10.1
Filename: tm2628016d6_ex10-1.htm · Sequence: 6
Exhibit 10.1
EXECUTION VERSION
AMENDMENT
NO. 1
TO
FIFTH AMENDED AND RESTATED CREDIT AGREEMENT
AMENDMENT
NO. 1 TO FIFTH AMENDED AND RESTATED CREDIT AGREEMENT, dated as of October 23, 2026 (this “Amendment”), to that certain
Fifth Amended and Restated Credit Agreement, dated as of July 10, 2025 (as heretofore amended, restated, extended, supplemented or otherwise
modified, the “Existing Credit Agreement”), among United Rentals, Inc., a Delaware corporation, as Guarantor, United
Rentals (North America), Inc., a Delaware corporation, as Borrower (the “Borrowers’ Agent”), the other Borrowers
party thereto, the other Guarantors party thereto, the financial institutions party thereto from time to time (the “Lenders”)
and Bank of America, N.A., as agent for the Lenders (in such capacity, together with any successor in such capacity, the “Agent”),
and the other parties thereto.
WHEREAS,
the Borrowers’ Agent has requested that the Existing Credit Agreement be amended in order to modify the subsidiary guarantee provisions
therein.
WHEREAS,
pursuant to Section 1.9(a) of the Existing Credit Agreement, the Borrowers’ Agent and the Agent desire to designate certain ROW
Borrowers as Additional Designated European Borrowers (collectively, the “Specified Additional Designated European Borrowers”)
under the European Credit Facility and, in connection therewith, pursuant to Section 2.3(d) of the Existing Credit Agreement, the Borrowers’
Agent desires to increase the European Swingline Sublimit to $40,000,000.
WHEREAS,
the Lenders party hereto, constituting the Required Lenders, are willing to so amend the Existing Credit Agreement and consent to such
release, and the European Swingline Lender is willing to agree to such increase in the European Swingline Sublimit, in each case on the
terms set forth herein (the Existing Credit Agreement, as so amended, the “Amended Credit Agreement”).
NOW,
THEREFORE, in consideration of the premises and the mutual covenants herein contained, for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, it is agreed as follows:
SECTION
1 CAPITALIZED TERMS.
1.1
Capitalized terms used but not defined herein shall have the respective meanings assigned to such terms in the Existing Credit
Agreement.
SECTION
2 AMENDMENT TO THE EXISTING
CREDIT AGREEMENT.
2.1
Effective as of the Amendment No. 1 Effective Date (as defined below), the Existing Credit Agreement is hereby amended by inserting
the language indicated in single underlined text (indicated textually in the same manner as the following examples: single-underlined
text or double-underlined
text) in Exhibit A hereto and by deleting the language indicated by strikethrough text (indicated
textually in the same manner as the following example: stricken text or stricken
text) in Exhibit A hereto.
SECTION
3 RELEASE OF SPECIFIED U.S.
SUBSIDIARIES.
3.1
Effective at such time as each of United Rentals (Delaware), Inc., a Delaware corporation, United Rentals Highway Technologies
Gulf, LLC, a Delaware limited liability company and United Rentals Realty, LLC, a Delaware limited liability company (each, a “Specified
U.S. Subsidiary”) would not then be required to become a Guarantor in accordance with the terms of Section 7.16(a) of
the Amended Credit Agreement (for purposes of this Section 3.1, disregarding any Guarantee by each such Specified U.S. Subsidiary of
any Indebtedness to the extent that such Guarantee is, by the terms of such Indebtedness, only required to be provided for so long as
such Specified U.S. Subsidiary is a Guarantor in respect of the Obligations), each Specified U.S. Subsidiary shall be automatically released
from its obligations under the Loan Documents as a U.S. Guarantor, including its obligations as a Guarantor under (and as defined in)
the U.S. Guarantee Agreement and as a Grantor under (and as defined in) the U.S. Security Agreement, and from and after such time, shall
no longer be a party to any Loan Document to which it is a party. The Lenders party hereto, constituting the Required Lenders, hereby
consent to such release and authorize the Agent to execute and deliver or file, as the case may be, all documents and instruments (including
any termination statement, discharge or release) and take all such actions, in each case, as the Borrowers’ Agent may reasonably
request to evidence such release, all as contemplated by and in accordance with Section 13.11(b) of the Amended Credit Agreement.
SECTION
4 REPRESENTATIONS AND WARRANTIES.
The Borrowers’ Agent represents and warrants to the Agent and the Lenders that:
4.1
This Amendment has been duly executed and delivered by the Borrowers’ Agent and constitutes the legal, valid and binding
obligation of the Borrowers’ Agent, enforceable against it in accordance with its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, winding up, moratorium and other similar laws relating to or affecting creditors’
rights generally and general equitable principles (whether considered in a proceeding in equity or at law); and
4.2
On and as of the Amendment No. 1 Effective Date, (i) the representations and warranties contained in Article VI of the Amended
Credit Agreement are true and correct in all material respects on and as of the Amendment No. 1 Effective Date as if made on and as of
such date, except to the extent any such representation or warranty (A) relates solely to an earlier date, in which case it is true and
correct as of such earlier date, or (B) is qualified by materiality or subject to a Material Adverse Effect qualification, in which case
it is true and correct in all respects on and as of such date or such earlier date and (ii) no Default or Event of Default has occurred
and is continuing or would result from the effectiveness of this Amendment or the transactions contemplated hereby.
SECTION
5 EFFECTIVENESS OF THIS AMENDMENT.
This Amendment shall become effective on the first date (the “Amendment No. 1 Effective Date”) on which the following
conditions shall have been satisfied:
5.1
the Agent shall have executed a counterpart of this Amendment and shall have received a counterpart of this Amendment signed on
behalf of (a) Lenders collectively constituting the Required Lenders, (b) the European Swingline Lender and (c) the Borrowers’
Agent (which, in each case, subject to Section 6.4 hereof, may include any electronic signatures transmitted by emailed pdf or
any other electronic means that reproduces an image of an actual executed signature page of this Amendment);
2
5.2
the European Swingline Lender shall have received all “know your customer” documentation required pursuant to Section
1.9(a)(iii) of the Existing Credit Agreement with respect to each Specified Additional Designated European Borrower; and
5.3
the Agent shall have received reimbursement of all reasonable and documented, out-of-pocket expenses incurred by it in connection
with this Amendment that are required to be reimbursed or paid by the Borrowers’ Agent under the Existing Credit Agreement, to
the extent invoiced not less than three Business Days before the Amendment No. 1 Effective Date.
SECTION
6 MISCELLANEOUS.
6.1
Except as herein expressly amended, nothing herein shall be deemed to be a waiver of or amendment to any covenant, provision or
agreement contained in the Existing Credit Agreement or any other Loan Document. The Borrowers’ Agent, on behalf of itself and
the other Obligors, hereby (i) confirms and agrees that all Obligations outstanding under the Existing Credit Agreement immediately prior
to the Amendment No. 1 Effective Date shall, unless and until paid, continue to remain outstanding under the Amended Credit Agreement
(provided that all ROW Obligations of each Specified Additional Designated European Borrower outstanding under the Existing Credit
Agreement immediately prior to the Amendment No. 1 Effective Date are reaffirmed as, and shall constitute, European Obligations (as defined
in the Amended Credit Agreement)) and (ii) confirms and reaffirms the guarantees, pledges and grants of security interests, as applicable,
under each of the Loan Documents by each Obligor, and agrees that, notwithstanding the effectiveness of this Amendment and the transactions
contemplated hereby (including the redesignation of the Specified Additional Designated European Borrowers as European Swingline Borrowers),
such guarantees, pledges and grants of security interests, as applicable, shall continue to be in full force and effect and shall, to
the extent provided in the Loan Documents, accrue to the benefit of the Secured Parties in respect of, and to secure, the applicable
Obligations.
6.2
From and after the Amendment No. 1 Effective Date, all references in the Amended Credit Agreement to “this Agreement”,
“hereof”, “herein”, and similar terms shall mean and refer to the Existing Credit Agreement, as amended and modified
by this Amendment, and all references in other documents to the “Credit Agreement” shall mean such agreement as amended and
modified by this Amendment. This Amendment constitutes a Loan Document.
6.3
This Amendment may be executed in any number of counterparts, and by each party hereto in separate counterparts, each of which
shall be an original, but all of which shall together constitute one and the same agreement; signature pages may be detached from multiple
separate counterparts and attached to a single counterpart so that all signature pages are physically attached to the same document.
3
6.4
This Amendment may be executed by facsimile or other electronic communication and this Amendment and the signatures hereto shall
have the same force and effect as manually signed originals and shall be binding on all parties hereto. The words “execute,”
“execution,” “signed,” “signature,” and words of like import in or related to any document to be
signed in connection with this Amendment and the transactions contemplated hereby shall be deemed to include electronic signatures, the
electronic matching of assignment terms and contract formations on electronic platforms approved by the Agent, or the keeping of records
in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the
use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the
Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other
similar state laws based on the Uniform Electronic Transactions Act.
6.5
The provisions of Sections 14.2, 14.3 and 14.4 of the Amended Credit Agreement are hereby incorporated by reference and apply
mutatis mutandis hereto.
[Remainder
of page intentionally left blank]
4
IN
WITNESS WHEREOF, the parties have entered into this Amendment on the date first above written.
UNITED RENTALS (NORTH AMERICA), INC., as the Borrowers’
Agent
By:
/s/
Sybil Collins
Name:
Sybil Collins
Title:
Vice President, Treasurer
[Amendment
No. 1 to Fifth Amended and Restated Credit Agreement]
BANK OF AMERICA, N.A., as Agent
By:
/s/
Jenifer L. Medzi
Name:
Jenifer L. Medzi
Title:
Senior Vice President
[Amendment
No. 1 to Fifth Amended and Restated Credit Agreement]
BANK OF AMERICA EUROPE DESIGNATED ACTIVITY COMPANY, as European
Swingline Lender
By:
/s/
Lee Masters
Name:
Lee Masters
Title:
Director
[Amendment
No. 1 to Fifth Amended and Restated Credit Agreement]
SIGNATURE PAGE TO AMENDMENT NO. 1 TO
FIFTH AMENDED AND RESTATED CREDIT
AGREEMENT, DATED AS OF THE DATE FIRST
WRITTEN ABOVE
Name of Lender (with any Lender
that is an ANZ Revolving Credit Lender also signing in such capacity): BANK OF AMERICA, N.A.
By:
/s/
Jenifer L. Medzi
Name:
Jenifer L. Medzi
Title:
Senior Vice President
For any Lender requiring a second
signature line:
By:
Name:
Title:
SIGNATURE PAGE TO AMENDMENT NO. 1 TO
FIFTH AMENDED AND RESTATED CREDIT
AGREEMENT, DATED AS OF THE DATE FIRST
WRITTEN ABOVE
Wells Fargo Bank, National Association
as a Lender
By:
/s/
William H. Talbot
Name:
William H. Talbot
Title:
Executive Director
Wells Fargo Bank N.A., London Branch,
as an ANZ Revolving Credit Lender:
By:
/s/
Alison Powell
Name:
Allison Powell
Title:
SIGNATURE PAGE TO AMENDMENT NO. 1 TO
FIFTH AMENDED AND RESTATED CREDIT
AGREEMENT, DATED AS OF THE DATE FIRST
WRITTEN ABOVE
JPMORGAN CHASE BANK, N.A. as Lender
and an ANZ Revolving Credit Lender:
By:
/s/
Matthew Berindei
Name:
Matthew Berindei
Title:
Authorized Officer
SIGNATURE PAGE TO AMENDMENT NO. 1 TO
FIFTH AMENDED AND RESTATED CREDIT
AGREEMENT, DATED AS OF THE DATE FIRST
WRITTEN ABOVE
Goldman Sachs Bank USA (as a Lender):
By:
/s/
Elizabeth Tosin
Name:
Elizabeth Tosin
Title:
Authorized Signatory
Goldman Sachs Lending Partners LLC
(as an ANZ Revolving Credit Lender)
By:
/s/
Elizabeth Tosin
Name:
Elizabeth Tosin
Title:
Authorized Signatory
SIGNATURE PAGE TO AMENDMENT NO. 1 TO
FIFTH AMENDED AND RESTATED CREDIT
AGREEMENT, DATED AS OF THE DATE FIRST
WRITTEN ABOVE
THE BANK OF NOVA SCOTIA, as a Lender
and an ANZ Revolving Credit Lender
By:
/s/
Juna Paluka
Name:
Juna Paluka
Title:
Director
SIGNATURE PAGE TO AMENDMENT NO. 1 TO
FIFTH AMENDED AND RESTATED CREDIT
AGREEMENT, DATED AS OF THE DATE FIRST
WRITTEN ABOVE
MORGAN STANLEY BANK, N.A.,
as a Lender and an ANZ Revolving Credit Lender
By:
/s/
Margaret Stock
Name:
Margaret Stock
Title:
Authorized Signatory
SIGNATURE PAGE TO AMENDMENT NO. 1 TO
FIFTH AMENDED AND RESTATED CREDIT
AGREEMENT, DATED AS OF THE DATE FIRST
WRITTEN ABOVE
MORGAN STANLEY SENIOR FUNDING,
INC., as a Lender
By:
/s/
Margaret Stock
Name:
Margaret Stock
Title:
Vice President
SIGNATURE PAGE TO AMENDMENT NO. 1 TO
FIFTH AMENDED AND RESTATED CREDIT
AGREEMENT, DATED AS OF THE DATE FIRST
WRITTEN ABOVE
Name of Lender (with any Lender
that is an ANZ Revolving Credit Lender also signing in such capacity): MUFG BANK, LTD.
By:
/s/
Thomas Kainamura
Name:
Thomas Kainamura
Title:
Director
For any Lender requiring a second
signature line:
By:
Name:
Title:
SIGNATURE PAGE TO AMENDMENT NO. 1 TO
FIFTH AMENDED AND RESTATED CREDIT
AGREEMENT, DATED AS OF THE DATE FIRST
WRITTEN ABOVE
Name of Lender (with any Lender
that is an ANZ Revolving Credit Lender also signing in such capacity): M&T Bank
By:
/s/
Anthony Cole
Name:
Anthony Cole
Title:
Director
For any Lender requiring a second
signature line:
By:
Name:
Title:
SIGNATURE PAGE TO AMENDMENT NO. 1 TO
FIFTH AMENDED AND RESTATED CREDIT
AGREEMENT, DATED AS OF THE DATE FIRST
WRITTEN ABOVE
Name of Lender: PNC Bank, National
Association (with any Lender that is an ANZ Revolving Credit Lender also signing in such capacity):
By:
/s/
Biana Musiyenko
Name:
Biana Musiyenko
Title:
VP
For any Lender requiring a second
signature line:
By:
Name:
Title:
SIGNATURE PAGE TO AMENDMENT NO. 1 TO
FIFTH AMENDED AND RESTATED CREDIT
AGREEMENT, DATED AS OF THE DATE FIRST
WRITTEN ABOVE
Regions Bank, an Alabama Bank,
as a Lender and an ANZ Revolving Credit Lender
By:
/s/
Roger Dober
Name:
Roger Dober
Title:
MD
For any Lender requiring a second
signature line:
By:
Name:
Title:
SIGNATURE PAGE TO AMENDMENT NO. 1 TO
FIFTH AMENDED AND RESTATED CREDIT
AGREEMENT, DATED AS OF THE DATE FIRST
WRITTEN ABOVE
Name of Lender: Sumitomo Mitsui
Banking Corporation, as a Lender and an ANZ Revolving Credit Lender:
By:
/s/
Paul Dellova
Name:
Paul Dellova
Title:
Managing Director
SIGNATURE PAGE TO AMENDMENT NO. 1 TO
FIFTH AMENDED AND RESTATED CREDIT
AGREEMENT, DATED AS OF THE DATE FIRST
WRITTEN ABOVE
TD Bank, N.A., as a Lender
and as an ANZ Revolving Credit Lender:
By:
/s/
Edmundo Kahn
Name:
Edmundo Kahn
Title:
Vice-President
SIGNATURE PAGE TO AMENDMENT NO. 1 TO
FIFTH AMENDED AND RESTATED CREDIT
AGREEMENT, DATED AS OF THE DATE FIRST
WRITTEN ABOVE
Name of Lender: TRUIST BANK, as
a Lender and an ANZ Revolving Credit Lender:
By:
/s/
Hannah Schregardus
Name:
Hannah Schregardus
Title:
Vice President
SIGNATURE PAGE TO AMENDMENT NO. 1 TO
FIFTH AMENDED AND RESTATED CREDIT
AGREEMENT, DATED AS OF THE DATE FIRST
WRITTEN ABOVE
U.S. BANK NATIONAL ASSOCIATION:
as a Lender and an ANZ Revolving Credit Lender
By:
/s/ Adrian Avalos
Name:
Adrian Avalos
Title:
Senior Vice President
SIGNATURE PAGE TO AMENDMENT NO. 1 TO
FIFTH AMENDED AND RESTATED CREDIT
AGREEMENT, DATED AS OF THE DATE FIRST
WRITTEN ABOVE
Name of Lender: Australia and New
Zealand Banking Group Limited, as an ANZ Revolving Credit Lender
By:
/s/
Robert Grillo
Name:
Robert Grillo
Title:
Executive Director
EXHIBIT A
Amended Credit Agreement
EXECUTION VERSION
CONFIDENTIAL
EXHIBIT A
FIFTH AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of July 10, 2025
among
THE FINANCIAL INSTITUTIONS NAMED HEREIN
as the Lenders
and
BANK OF AMERICA, N.A.
as Agent, U.S. Swingline Lender and Letter of Credit Issuer
BANK OF AMERICA, N.A. (acting through its London
branch)
as ROW Swingline Lender
BANK OF AMERICA, N.A. (acting through its Canada
branch)
as Canadian Swingline Lender
BANK OF AMERICA, N.A. (acting through its Australia
branch)
as ANZ Swingline Lender
BANK OF AMERICA EUROPE DESIGNATED ACTIVITY COMPANY
as European Swingline Lender
and
WELLS FARGO BANK, NATIONAL ASSOCIATION, JPMORGAN
CHASE BANK, N.A., THE BANK OF NOVA SCOTIA, GOLDMAN SACHS BANK USA and MORGAN STANLEY SENIOR FUNDING, INC.
as Co-Syndication Agents
and
MUFG UNION BANK, N.A., M&T BANK, PNC BANK,
NATIONAL ASSOCIATION, REGIONS BANK, SUMITOMO MITSUI BANKING CORPORATION, TD BANK, N.A., TRUIST BANK and U.S. BANK NATIONAL ASSOCIATION
as Co-Documentation Agents
and
UNITED RENTALS (NORTH AMERICA), INC.
as a U.S. Borrower
UNITED RENTALS, INC.
and certain of its Subsidiaries
as the Guarantors
UNITED RENTALS OF CANADA, INC.
as a Canadian Borrower
UNITED RENTALS INTERNATIONAL, B.V.
and certain other Subsidiaries of United Rentals, Inc.
as ROW Borrowers
UNITED RENTALS S.A.S.
as a European Borrower
UNITED RENTALS AUSTRALIA PTY LTD ACN 069 244 417
as the Australian Borrower and an ANZ Borrower
UNITED RENTALS NEW ZEALAND
as the New Zealand Borrower and an ANZ Borrower
THE OTHER BORROWERS PARTY HERETO
and
BOFA SECURITIES, INC., WELLS FARGO BANK, NATIONAL
ASSOCIATION, JPMORGAN CHASE BANK, N.A., THE BANK OF NOVA SCOTIA, GOLDMAN SACHS BANK USA and MORGAN STANLEY SENIOR FUNDING, INC.
as the Joint Lead Arrangers
and
BOFA SECURITIES, INC., WELLS FARGO BANK, NATIONAL
ASSOCIATION, JPMORGAN CHASE BANK, N.A., THE BANK OF NOVA SCOTIA, GOLDMAN SACHS BANK USA and MORGAN STANLEY SENIOR FUNDING, INC.
as the Joint Book Runners
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
1.1 Defined Terms
2
1.2 Accounting Terms
6466
1.3 Interpretive Provisions
66
1.4 Classification of Loans and Borrowings
6971
1.5 Effectuation of Transactions
71
1.6 Currency
71
1.7 Additional Alternative Currencies
72
1.8 Pro Forma Calculations
7173
1.9 Additional Borrowers
7274
1.10 No Novation; Acknowledgement and Adjustment of Loans, Payment of Accrued Interest and Fees
76
1.11 Syndicated Facility Agreement
78
1.12 Interest Rates; Licensing
78
ARTICLE II
LOANS AND LETTERS OF CREDIT
2.1 Revolving Loans
7779
2.2 Revolving Loan Administration
80
2.3 Swingline Loans
8083
2.4 Letters of Credit
8285
2.5 Incremental Facility
88
2.6 Extension Amendments
90
2.7 Refinancing Amendments
9093
2.8 [Intentionally Omitted]
9497
2.9 Reserves
9497
2.10 Canadian Revolving Loans and ROW Revolving Loans; Intra-Lender Issues
97
ARTICLE III
INTEREST AND FEES
3.1 Interest
98101
3.2 Continuation and Conversion Elections
103
3.3 Maximum Interest Rate
102105
3.4 Closing Fees
105
3.5 Unused Line Fee
105
3.6 Letter of Credit Fees
103106
ARTICLE IV
PAYMENTS AND PREPAYMENTS
4.1 Payments and Prepayments
106
4.2 Out-of-Formula Condition
104107
4.3 Termination or Reductions of Facilities; Reallocation
107
4.4 Term SOFR Loan, Term CORRA Loan, EURIBOR Loan and Bank Bill Rate Loan Prepayments
108
4.5 Payments by the Borrowers
106109
4.6 Apportionment, Application and Reversal of Payments
109
4.7 Indemnity for Returned Payments
110
4.8 Payments by Borrower; Presumptions by Agent
110
4.9 Agent’s and Lenders’ Books and Records; Monthly Statements
108111
4.10 Borrowers’ Agent
111
i
4.11 [Intentionally Omitted]
111
4.12 Excess Resulting from Exchange Rate Change
111
4.13 Several Liability
112
4.14 Joint and Several Liability
110113
ARTICLE V
TAXES, YIELD PROTECTION AND ILLEGALITY
5.1 Taxes
114
5.2 Illegality
120
5.3 Increased Costs and Reduction of Return
121
5.4 Funding Losses
121
5.5 Inability to Determine Applicable Interest Rate
119122
5.6 Certificates of Agent
120123
5.7 Benchmark Replacement
123
5.8 Survival
124
5.9 Assignment of Commitments Under Certain Circumstances
122125
5.10 Designation of a Different Lending Office
125
ARTICLE VI
GENERAL WARRANTIES AND REPRESENTATIONS
6.1 Authorization, Validity, and Enforceability of this Agreement and the Loan Documents
123126
6.2 Validity and Priority of Security Interest
126
6.3 Organization and Qualification
125
6.4 Subsidiaries
124127
6.5 Financial Statements and Borrowing Base Certificate
124127
6.6 Capitalization
127
6.7 Solvency
127
6.8 Proprietary Rights
127
6.9 Litigation
127
6.10 Labor Disputes
127
6.11 Environmental Laws
125128
6.12 No Violation of Law
128
6.13 No Default
128
6.14 ERISA Compliance
128
6.15 Taxes
129
6.16 Regulated Entities
129
6.17 Use of Proceeds; Margin Regulations
129
6.18 No Material Adverse Effect
129
6.19 No Material Misstatements
129
6.20 Government Authorization
127130
6.21 Sanctions
130
6.22 Bail-In
130
6.23 Beneficial Ownership Certification
130
6.24 Belgian SME Financing Act
130
6.25 Related Parties
130
ARTICLE VII
AFFIRMATIVE COVENANTS
7.1 Books and Records
130
7.2 Financial Information
128131
7.3 Certificates; Other Information
129132
7.4 Collateral Reporting
132
7.5 Filing of Tax Returns; Payment of Taxes
133
7.6 Legal Existence and Good Standing
133
ii
7.7 Compliance with Law; Maintenance of License
133
7.8 Maintenance of Property
133
7.9 Inspection
131134
7.10 Insurance
132135
7.11 Insurance and Condemnation Proceeds
135
7.12 Use of Proceeds
135
7.13 Environmental Laws
133136
7.14 Compliance with ERISA
133136
7.15 Further Assurances
136
7.16 Additional Obligors
136
7.17 Bank and Securities Accounts; Cash Dominion
136139
7.18 Sanctions
137140
7.19 Anti-Money Laundering Laws
137140
7.20 Securitization Transactions
110
ARTICLE VIII
NEGATIVE COVENANTS
8.1 Indebtedness
140
8.2 Liens
141144
8.3 [Intentionally omitted]
147
8.4 Distributions; Restricted Investments
148
8.5 Mergers, Consolidations or Sales
145148
8.6 [Intentionally omitted]
149
8.7 Transactions with Affiliates
149
8.8 [Intentionally omitted].
150
8.9 Fixed Charge Coverage Ratio
150
ARTICLE IX
CONDITIONS OF LENDING
9.1 Conditions Precedent to Effectiveness of Agreement and Making of Loans on the Closing Date
148151
9.2 Conditions Precedent to Each Loan
150153
ARTICLE X
DEFAULT; REMEDIES
10.1 Events of Default
153
10.2 Remedies
153156
ARTICLE XI
TERM AND TERMINATION
11.1 Term and Termination
156
ARTICLE XII
AMENDMENTS; WAIVERS; PARTICIPATIONS; ASSIGNMENTS; SUCCESSORS
12.1 Amendments and Waivers
154157
12.2 Assignments; Participations
159
ARTICLE XIII
THE AGENT
13.1 Appointment and Authorization
161
13.2 Delegation of Duties
161
13.3 Liability of Agent
159162
iii
13.4 Reliance by Agent
162
13.5 Notice of Default
162
13.6 Credit Decision
162
13.7 Indemnification
160163
13.8 Agent in Individual Capacity
160162
13.9 Successor Agent
163
13.10 Withholding Tax
161164
13.11 Collateral Matters
161164
13.12 Restrictions on Actions by Lenders; Sharing of Payments
165
13.13 Agency for Perfection
163166
13.14 Payments by Agent to Lenders
163166
13.15 Settlement; Defaulting Lenders
167
13.16 Letters of Credit; Intra-Lender Issues
170
13.17 Concerning the Collateral and the Related Loan Documents
172
13.18 Field Audit and Examination Reports; Disclaimer by Lenders
170173
13.19 Relation Among Lenders
173
13.20 Arrangers; Agent
173
13.21 The Register
171174
13.22 Québec Collateral
175
13.23 Certain ERISA Matters
176
13.24 Recovery of Erroneous Payments
177
ARTICLE XIV
MISCELLANEOUS
14.1 No Waivers; Cumulative Remedies
174177
14.2 Severability
174177
14.3 Governing Law; Choice of Forum; Service of Process
174177
14.4 WAIVER OF JURY TRIAL
175178
14.5 Survival of Representations and Warranties
175178
14.6 Other Security and Guarantees
178
14.7 Fees and Expenses
178
14.8 Notices
176179
14.9 Binding Effect
180
14.10 Indemnity of the Agent and the Lenders
181
14.11 Limitation of Liability
178181
14.12 Final Agreement
181
14.13 Counterparts; Facsimile Signatures; Electronic Execution
181
14.14 Captions
179182
14.15 Right of Setoff
179182
14.16 Confidentiality
179182
14.17 Conflicts with Other Loan Documents
180183
14.18 Collateral Matters
180183
14.19 No Fiduciary Relationship
180183
14.20 Judgment Currency
180183
14.21 Incremental Indebtedness; Extended Commitments; Extended Loans; Refinancing Commitments and Refinancing Loans; Additional First Lien
Debt
183
14.22 Lenders
181184
14.23 USA PATRIOT Act
181184
14.24 Amendment and Restatement; Reaffirmation
181184
14.25 Waiver of Notices
182185
14.26 Acknowledgement and Consent to Bail-In of Affected Financial Institutions
182185
14.27 Canadian Anti-Money Laundering Legislation
185
14.28 Acknowledgement Regarding Any Supported QFCs
186
14.29 Australian Banking Code of Practice
183186
iv
EXHIBITS
AND SCHEDULES
EXHIBIT A
FORM OF BORROWING BASE CERTIFICATE
EXHIBIT B
FORM OF NOTICE OF BORROWING
EXHIBIT C
FORM OF NOTICE OF CONTINUATION/CONVERSION
EXHIBIT D
FORM OF COMPLIANCE CERTIFICATE
EXHIBIT E
FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT
EXHIBIT F
PERFECTION CERTIFICATE
EXHIBIT G
FORM OF SOLVENCY CERTIFICATE
EXHIBIT H
[INTENTIONALLY OMITTED]
EXHIBIT I
FORM OF LENDER JOINDER AGREEMENT
EXHIBIT J
FORMS OF U.S. TAX COMPLIANCE CERTIFICATES
SCHEDULE 1.1
LENDERS’ COMMITMENTS
SCHEDULE 1.1A
EXISTING LETTERS OF CREDIT
SCHEDULE 1.2
ROW BORROWERS
SCHEDULE 1.2A
GUARANTORS
SCHEDULE 1.3
IMMATERIAL SUBSIDIARIES
SCHEDULE 1.4
UNRESTRICTED SUBSIDIARIES
SCHEDULE 2.10A
PARTICIPATING CANADIAN LENDERS
SCHEDULE 2.10B
PARTICIPATING ROW LENDERS
SCHEDULE 6.4
SUBSIDIARIES
SCHEDULE 6.6
CAPITALIZATION
SCHEDULE 6.9
LITIGATION
SCHEDULE 6.11
ENVIRONMENTAL LAW
SCHEDULE 6.14
ERISA AND PENSION PLAN COMPLIANCE
SCHEDULE 6.15
TAXES
SCHEDULE 8.1
DEBT
SCHEDULE 8.2
LIENS
SCHEDULE 8.4
INVESTMENTS
v
FIFTH AMENDED AND RESTATED CREDIT AGREEMENT
This Fifth Amended and Restated
Credit Agreement, dated as of July 10, 2025, among the financial institutions from time to time parties hereto (such financial institutions,
together with their respective successors and assigns, are referred to hereinafter each individually as a “Lender”
and collectively as the “Lenders”), Bank of America, N.A., with an office at One Bryant Park, New York, New York 10036,
as Agent, U.S. Swingline Lender and Letter of Credit Issuer, Bank of America, N.A. (acting through its London branch), with an office
at 26 Elmfield Road, Bromley, Kent BR1 1LR, as ROW Swingline Lender, Bank of America, N.A. (acting through its Canada branch), with an
office at 181 Bay Street, Toronto, Ontario, M5J2V8, as Canadian Swingline Lender, Bank of America, N.A. (acting through its Australia
branch), with an office at 1 Farrer Place, Sydney NSW, Australia 2000, as ANZ Swingline Lender, Bank of America Europe Designated Activity
Company, with an office at 51 Rue de la Boetie, Paris 75008, France, as European Swingline Lender, Wells Fargo Bank, National Association,
JPMorgan Chase Bank, N.A., The Bank of Nova Scotia, Goldman Sachs Bank USA and Morgan Stanley Senior Funding, Inc., as co-syndication
agents (each, in its capacity as a co-syndication agent, a “Co-Syndication Agent”), MUFG Bank, Ltd., M&T Bank,
PNC Bank, National Association, Regions Bank, Sumitomo Mitsui Banking Corporation, TD Bank, N.A., Truist Bank and U.S. Bank National Association
as co-documentation agents (each, in its capacity as a co-documentation agent, a “Co-Documentation Agent”), United
Rentals, Inc., a Delaware corporation, with offices at 100 First Stamford Place, Suite 700, Stamford, CT 06902 (“Holdings”),
United Rentals (North America), Inc., a Delaware corporation, with offices at 100 First Stamford Place, Suite 700, Stamford,
CT 06902 (the “Company” and, together with each Additional Borrower organized under the Laws of the United States,
any state thereof or the District of Columbia made a party hereto from time to time in accordance with Section 1.9(a), the
“U.S. Borrowers”), United Rentals of Canada, Inc., a corporation amalgamated under the laws of the Province of
Ontario (“UR Canada” and, together with each Additional Borrower organized under the Laws of Canada or any territory
or province thereof made a party hereto from time to time in accordance with Section 1.9(a), the “Canadian Borrowers”),
United Rentals International B.V., a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid)
organized under the laws of the Netherlands and registered with the Dutch Chamber of Commerce (Kamer van Koophandel) under 20133298
, United Rentals S.A.S., a private company with limited liability (société par actions simplifiée) organized
under the laws of France, with a registered office at 5381, voie des Sarcelles, 76430 Saint-Vigor-d’Ymonville, France and registered
with the Le Havre Trade Companies Register under number 499 925 857 R.C.S. Le Havre (together with each Additional Borrower
organized under the laws of France made a party hereto from time to time as a European Borrower in accordance with Section 1.9(a) and
each Additional Designated European Borrower designated as such in accordance with Section 1.9(a)(i), the “European
Borrowers”), United Rentals Australia Pty Ltd ACN 069 244 417, an Australian proprietary company (together with each Additional
Borrower organized under the laws of Australia made a party hereto from time to time as an Australian Borrower in accordance with Section 1.9(a),
the “Australian Borrowers”), United Rentals New Zealand, a New Zealand incorporated company (together with each Additional
Borrower organized under the laws of New Zealand made a party hereto from time to time as a New Zealand Borrower in accordance with Section 1.9(a),
the “New Zealand Borrowers”, and together with the Australian Borrowers, the “ANZ Borrowers”), and
the Guarantors (as defined below) party hereto.
W I T N E S S E T H:
WHEREAS, Holdings, the Company,
UR Canada, the Guarantors, the Agent, certain of the Lenders party hereto and certain other parties thereto are party to a certain Fourth
Amended and Restated Credit Agreement, dated as of June 30, 2022, as amended to, but excluding, the date hereof (as so amended, the
“Existing Loan Agreement”);
WHEREAS, the parties hereto
desire to amend and restate the Existing Loan Agreement in its entirety, but not as a novation, on the terms and subject to the conditions
hereinafter set forth;
WHEREAS, the Borrowers have
requested that the Lenders continue to make available a revolving credit facility, which may be used from time to time by the U.S. Borrowers
and portions of which may be used from time to time by the Canadian Borrowers, the ROW Borrowers, the ANZ Borrowers, and the European
Borrowers, in each case on the terms and conditions specified herein;
WHEREAS, all Obligations incurred
pursuant to the Existing Loan Agreement or pursuant hereto are and shall continue to be secured by, among other things, the Security Documents
and the other Loan Documents, in each case as and to the extent set forth herein and therein; and
1
WHEREAS, each of the U.S. Guarantors
has agreed to continue to guarantee the Obligations of each of the Borrowers, and each of the Canadian Guarantors has agreed to continue
to guarantee the Obligations of the Canadian Borrowers and to guarantee the Obligations of the ROW Borrowers, the ANZ Borrowers and the
European Borrowers.
NOW, THEREFORE, in consideration
of the mutual conditions and agreements set forth in this Agreement, and for good and valuable consideration, the receipt of which is
hereby acknowledged, the parties hereto hereby agree that the Existing Loan Agreement shall be, and hereby is, amended and restated in
its entirety as follows:
ARTICLE I
DEFINITIONS
1.1 Defined
Terms. As used in this Agreement, the following terms shall have the meanings specified below:
“1L/2L Intercreditor
Agreement” means that certain amended and restated intercreditor agreement, dated as of November 4, 2019 and effective
as of November 20, 2019, among Bank of America, as Credit Agreement Agent, Bank of America and Truist Bank, as Additional First Lien
Agents, Computershare Trust Company, N.A. (as successor to Wells Fargo Bank, National Association), as Notes Trustee and Second Lien Collateral
Agent (as defined therein), and the other parties thereto from time to time.
“3¾% Senior
Note Indenture” means that certain Indenture dated as of August 13, 2021, among the Company, Holdings, certain subsidiaries
of the Company and Wells Fargo Bank, National Association, as Trustee.
“3¾% Senior
Notes” means the 3¾% Senior Notes due 2032 issued by the Company pursuant to the 3¾% Senior Note Indenture.
“3⅞% Senior
Note Indenture” means that certain Indenture dated as of August 10, 2020, among the Company, Holdings, certain subsidiaries
of the Company and Wells Fargo Bank, National Association, as Trustee.
“3⅞% Senior
Notes” means the 3⅞% Senior Notes due 2031 issued by the Company pursuant to the 3⅞% Senior Note Indenture.
“3⅞% Senior
Secured Note Indenture” means that certain Indenture dated as of November 4, 2019 among the Company, Holdings, certain
subsidiaries of the Company and Wells Fargo Bank, National Association, as Trustee and Notes Collateral Agent.
“3⅞% Senior
Secured Notes” means the 3⅞% Senior Secured Notes due 2027 issued by the Company pursuant to the 3⅞% Senior Secured
Note Indenture.
“4% Senior Note Indenture”
means that certain Indenture dated as of February 25, 2020, among the Company, Holdings, certain subsidiaries of the Company and
Wells Fargo Bank, National Association, as Trustee.
“4% Senior Notes”
means the 4% Senior Notes due 2030 issued by the Company pursuant to the 4% Senior Note Indenture.
“5¼% Senior
Note Indenture” means that certain Indenture dated as of May 10, 2019 among the Company, Holdings, certain subsidiaries
of the Company and Wells Fargo Bank, National Association, as Trustee.
“5¼% Senior
Notes” means the 5¼% Senior Notes due 2030 issued by the Company pursuant to the 5¼% Senior Note Indenture.
“5½% Senior
Note Indenture” means that certain Indenture dated as of November 7, 2016 among the Company, Holdings, certain subsidiaries
of the Company and Wells Fargo Bank, National Association, as Trustee.
2
“5½% Senior
Notes” means the 5½% Senior Notes due 2027 issued by the Company pursuant to the 5½% Senior Note Indenture.
“6% Senior Secured
Note Indenture” means that certain Indenture dated as of November 30, 2022 among the Company, Holdings, certain subsidiaries
of the Company and Truist Bank, as Trustee and Notes Collateral Agent.
“6% Senior Secured
Notes” means the 6% Senior Secured Notes due 2029 issued by the Company pursuant to the 6% Senior Note Indenture.
“6⅛% Senior
Note Indenture” means that certain Indenture dated as of March 11, 2024 among the Company, Holdings, certain subsidiaries
of the Company and Truist Bank, as Trustee.
“6⅛% Senior
Notes” means the 6⅛% Senior Notes due 2034 issued by the Company pursuant to the 6⅛% Senior Note Indenture.
“Acceleration”
has the meaning specified in Section 10.1(d).
“Acceptable Intercreditor
Agreement” means (a) the 1L/2L Intercreditor Agreement, (b) the Pari Passu Intercreditor Agreement and (c) any
other intercreditor agreement containing customary terms and conditions for comparable transactions that is in form and substance reasonably
acceptable to the Agent; provided that (i) any intercreditor agreement between the Agent and one or more representatives of
Persons (other than Holdings or any of its Subsidiaries) benefitting from a Lien on any Collateral of a U.S. Obligor that is intended
to be junior to the Agent’s Lien thereon having terms that are substantially consistent with, or not materially less favorable,
taken as a whole, to the Secured Parties than, the terms of the 1L/2L Intercreditor Agreement, shall be deemed to be reasonably acceptable
to the Agent and (ii) any intercreditor agreement between the Agent and one or more representatives of Persons (other than Holdings
or any of its Subsidiaries) benefitting from a Lien on any Collateral of a U.S. Obligor that is intended to be pari passu to the
Agent’s Lien having terms that are substantially consistent with, or not materially less favorable, taken as a whole, to the Secured
Parties than, the terms of the Pari Passu Intercreditor Agreement, shall be deemed to be reasonably acceptable to the Agent.
“Account Debtor”
means each Person obligated in any way on or in connection with an Account, Chattel Paper or General Intangible (including a payment intangible).
“Accounts”
means, with respect to each Obligor and its Subsidiaries, all of such Obligor’s or such Subsidiary’s now owned or hereafter
acquired or arising accounts, as defined in the UCC or the PPSA, as applicable, and Leases, including any rights to payment for the sale
or lease of goods or rendition of services, whether or not they have been earned by performance, all Progress Billings, and all rentals,
lease payments and other monies due and to become due under any Lease.
“ACPR”
means the French Autorité de Contrôle Prudentiel et de Résolution.
“Acquired Business”
has the meaning specified in the definition of “Permitted Acquisition”.
“Acquisition Transactions”
means, collectively, the RSC Merger Transactions, the National Pump Transactions, the NES Transactions, the Neff Transactions, the BakerCorp
Transactions, the BlueLine Transactions, the General Finance Transactions, the Ahern Transactions and the Yak Transactions.
“Act” has
the meaning specified in Section 14.23.
“Additional Borrower”
has the meaning specified in Section 1.9(a).
“Additional Designated
European Borrower” has the meaning specified in Section 1.9(a)(i).
3
“Additional Lender”
means any Person that has agreed to provide Incremental Facilities pursuant to Section 2.5 or Refinancing Commitments pursuant
to Section 2.7, whether or not such Person was a Lender hereunder immediately prior to such time.
“Adjustment Date”
means initially, the first day of the first calendar quarter beginning after the date that is the six-month anniversary of the Closing
Date and, thereafter, the first day of each calendar quarter (or, if earlier, the Termination Date).
“Affected Financial
Institution” means (a) any EEA Financial Institution or (b) any U.K. Financial Institution.
“Affiliate”
means, as to any Person, any other Person which, directly or indirectly, is in control of, is controlled by, or is under common control
with, such Person or which owns, directly or indirectly, 25% or more of the outstanding equity interests of such Person. A Person shall
be deemed to control another Person if the controlling Person possesses, directly or indirectly, the power to direct or cause the direction
of the management and policies of the other Person, whether through the ownership of voting securities, by contract, or otherwise. Without
limiting the generality of the foregoing, when used with respect to the Agent or any Lender, the term “Affiliate” shall include
any “authorized foreign bank” for purposes of the Income Tax Act (Canada) of such Person.
“Agent”
means the Bank, as the agent for the Lenders under this Agreement, or any successor agent.
“Agent Advance Period”
has the meaning specified in Section 2.2(b).
“Agent Advances”
has the meaning specified in Section 2.2(b).
“Agent’s Liens”
means the Liens on the Collateral granted to the Agent, for the benefit of the Secured Parties, pursuant to this Agreement and the other
Loan Documents.
“Agent-Related Persons”
means the Agent, together with its Affiliates and branches, and the respective officers, directors, employees, counsel, representatives,
agents and attorneys-in-fact of the Agent and such Affiliates and branches.
“Aggregate ANZ Revolver
Outstandings” means, at any date of determination and without duplication, the Equivalent Amount in Dollars of the aggregate
unpaid principal balance of ANZ Revolving Loans.
“Aggregate Canadian
Revolver Outstandings” means, at any date of determination and without duplication, the Equivalent Amount in Dollars of the
aggregate unpaid principal balance of Canadian Revolving Loans.
“Aggregate Canadian
Revolver Outstandings Funded On U.S. Borrowing Base” means, at any date of determination and without duplication, the Equivalent
Amount in Dollars of the difference (if positive) of (a) the Aggregate Canadian Revolver Outstandings, minus (b) the
lesser of (i) the Maximum Canadian Revolver Amount and (ii) the Canadian Borrowing Base.
“Aggregate Daily
SOFR Outstandings” means, at any date of determination, the aggregate unpaid principal balance of Daily SOFR Loans.
“Aggregate European
Swingline Outstandings” means, at any date of determination, the Equivalent Amount in Dollars of the aggregate unpaid principal
balance of European Swingline Loans.
“Aggregate Pro Rata
Revolver Outstandings” means, at any date of determination and without duplication, the Equivalent Amount in Dollars of the
sum of (a) the Aggregate U.S. Revolver Outstandings, (b) the Aggregate ROW Revolver Outstandings, (c) the Aggregate
Canadian Revolver Outstandings and (d) the Aggregate European Swingline Outstandings.
4
“Aggregate Revolver
Outstandings” means, at any date of determination and without duplication, the Equivalent Amount in Dollars of the sum of (a) Aggregate
Pro Rata Revolver Outstandings and (b) the Aggregate ANZ Revolver Outstandings.
“Aggregate ROW Revolver
Outstandings” means, at any date of determination and without duplication, the Equivalent Amount in Dollars of the aggregate
unpaid principal balance of ROW Revolving Loans.
“Aggregate U.S. Revolver
Outstandings” means, at any date of determination and without duplication, the Equivalent Amount in Dollars of the sum of (a) the
unpaid principal balance of U.S. Revolving Loans, (b) 100% of the aggregate maximum amount available to be drawn under all outstanding
Letters of Credit, and (c) the aggregate amount of any unpaid reimbursement obligations in respect of Letters of Credit.
“Agreement”
means this Fifth Amended and Restated Credit Agreement.
“Agreement Currency”
means Dollars, Canadian Dollars and each Alternative Currency.
“Agreement Date”
means the date of this Agreement.
“Ahern Acquisition”
means the acquisition by the Company of certain assets contemplated by the Ahern Asset Purchase Agreement.
“Ahern Asset Purchase
Agreement” means the Asset Purchase Agreement, dated November 11, 2022, among the Company, Ahern Rentals, Inc., a
Nevada corporation, and Xtreme Re-Rental, LLC, a Nevada limited liability company.
“Ahern Transactions”
means (a) the Ahern Acquisition and (b) any other transactions contemplated in connection with the Ahern Acquisition and any
other financing transaction in connection with the Ahern Acquisition.
“Alternative Currency”
means Euro, Sterling, Australian Dollars, New Zealand Dollars and any other currency (other than Dollars or Canadian Dollars) that is
approved in accordance with Section 1.7.
“Alternative Currency
Benchmark Replacement” has the meaning specified in Section 5.7(d).
“Amendment
No. 1 Effective Date” means the Amendment No. 1 Effective Date under (and as defined in) Amendment No. 1 to this
Agreement, which date was October 23, 2026.
“AML Legislation”
has the meaning specified in Section 14.27.
“ANZ Borrowers”
has the meaning specified in the introductory paragraph to this Agreement.
“ANZ Credit Facilities”
means the revolving credit and swingline facilities provided for by this Agreement extended to the ANZ Borrowers.
“ANZ Obligations”
means, with respect to the Indebtedness of the ANZ Borrowers under the Loan Documents, any principal, premium (if any), interest (including
interest accruing on or after the filing of any petition in bankruptcy or for reorganization relating to any ANZ Borrower whether or not
a claim for post-filing interest is allowed in such proceedings), fees, charges, expenses, reimbursement obligations, Guarantees of such
Indebtedness (or of Obligations in respect thereof), other monetary obligations of any ANZ Borrower of any nature and all other amounts
payable by any ANZ Borrower under the Loan Documents or in respect thereof; provided that, “ANZ Obligations” shall
in any event include Designated Bank Products Obligations of any ANZ Borrower; provided, further, that “ANZ Obligations”
shall not include any Canadian Obligations, European Obligations, U.S. Obligations or ROW Obligations.
5
“ANZ Revolving Credit
Commitment” means, at any date for any Lender, the obligation of such Lender to make ANZ Revolving Loans and to purchase participations
in ANZ Swingline Loans pursuant to the terms and conditions of this Agreement, which shall not exceed the aggregate principal amount set
forth on Schedule 1.1 under the heading “ANZ Revolving Credit Commitment” or on the signature page of the
Assignment and Acceptance by which it became a Lender, as modified from time to time pursuant to the terms of this Agreement or to give
effect to any applicable Assignment and Acceptance; and “ANZ Revolving Credit Commitments” means the aggregate principal
amount of the ANZ Revolving Credit Commitments of all Lenders, the maximum amount of which shall be the Maximum ANZ Revolver Amount.
“ANZ Revolving Credit
Lender” means a Lender with an ANZ Revolving Credit Commitment or an outstanding ANZ Revolving Loan.
“ANZ Revolving Loans”
means the revolving loans made to the ANZ Borrowers pursuant to Section 2.1(b) or any amendment to this Agreement entered
into pursuant to Section 2.5, 2.6 or 2.7 and each ANZ Swingline Loan.
“ANZ Swingline Commitment”
means the commitment of the ANZ Swingline Lender to make loans pursuant to Section 2.3(e).
“ANZ Swingline Lender”
means Bank of America, N.A. (acting through its Australia branch) or any successor entity thereto, or any other successor financial institution
agreed to by the Borrowers’ Agent and the Agent, in its capacity as provider of ANZ Swingline Loans.
“ANZ Swingline Loan”
and “ANZ Swingline Loans” have the meanings specified in Section 2.3(e).
“ANZ Swingline Loan
Minimum” means (a) in the case of an ANZ Swingline Loan denominated in Dollars, $100,000, (b) in the case of an ANZ
Swingline Loan denominated in Australian Dollars, A$100,000 and (c) in the case of an ANZ Swingline Loan denominated in New Zealand
Dollars, NZ$100,000.
“ANZ Swingline Loan
Multiple” means (a) in the case of an ANZ Swingline Loan denominated in Dollars, $50,000, (b) in the case of an ANZ
Swingline Loan denominated in Australian Dollars, A$50,000 and (c) in the case of an ANZ Swingline Loan denominated in New Zealand
Dollars, NZ$50,000.
“ANZ Swingline Sublimit”
has the meaning specified in Section 2.3(e).
“ANZ Unused Line
Fee” has the meaning specified in Section 3.5.
“Applicable Entities”
has the meaning specified in Section 14.19.
6
“Applicable Margin”
means, during the period from the Closing Date until the initial Adjustment Date, at the option of the applicable Borrower, for each Type
of Loan, the interest margin applicable at Level I set forth in the pricing grid below. From and after the initial Adjustment Date and
on each subsequent Adjustment Date, the interest margins for each Type of Loan will be subject to a pricing grid based on average daily
Combined Availability as a percentage of the average daily Maximum Revolver Amount for the previous calendar quarter (or portion thereof),
as set forth in the pricing grid below:
Level
Average daily Combined Availability as a percentage of the average daily Maximum Revolver Amount
Applicable Margin for U.S. Revolving Loans, ROW Revolving Loans (other than ROW Swingline Loans) denominated in Dollars and Canadian Revolving Loans denominated in Dollars, in each case that are Base Rate Loans
Applicable Margin for U.S. Revolving Loans and Canadian Revolving Loans that are Term SOFR Loans or Daily SOFR Loans, ROW Revolving Loans and European Swingline Loans that are Term SOFR Loans, Daily SOFR Loans, EURIBOR Loans, SONIA Rate Loans or Foreign Base Rate Loans and ANZ Revolving Loans that are Term SOFR Loans, Bank Bill Rate Loans or Base Rate Loans
Applicable Margin for Canadian Revolving Loans that are Canadian Prime Rate Loans
Applicable Margin for Canadian Revolving Loans that are Term CORRA Loans
I
> 50%
0.000%
1.000%
0.000%
1.000%
II
≤ 50%
0.250%
1.250%
0.250%
1.250%
Each change in the Applicable
Margin resulting from a change in the average daily Combined Availability as a percentage of the average daily Maximum Revolver Amount
for the most recent calendar quarter ended immediately preceding the first day of a calendar quarter shall be effective with respect to
all Loans and Letters of Credit outstanding on and after such first day of such calendar quarter. Notwithstanding anything to the contrary
contained above in this definition, Level II pricing shall apply for all Loans at all times once the Commitments have terminated or the
Termination Date has occurred.
“Appraisal”
means an appraisal, prepared on a basis reasonably satisfactory to the Agent, setting forth the Net Orderly Liquidation Value of all Rental
Equipment of the applicable Secured Obligors, which appraisal shall be prepared in accordance with Section 7.9(b).
“Approved Fund”
means any Person (other than a natural person or Disqualified Lender) that is engaged in making, holding or investing in bank loans and
similar extensions of credit in its ordinary course of business and is administered or managed by (a) a Lender, (b) an entity
or an Affiliate of an entity that administers or manages a Lender, or (c) an Affiliate or branch of a Lender.
“Approved Issuer
Levy” has the meaning given to it in section 86F of the Stamp and Cheque Duties Act 1971.
“Arrangers”
means BofA Securities, Inc., Wells Fargo Bank, National Association, JPMorgan Chase Bank, N.A., The Bank of Nova Scotia, Goldman
Sachs Bank USA and Morgan Stanley Senior Funding, Inc.
“Asset Disposition”
means any sale, issuance, conveyance, transfer, lease or other disposition of Collateral (including a disposition to a Delaware Divided
LLC pursuant to a Delaware LLC Division) by an Obligor or any Restricted Subsidiary to any Person other than an Obligor or a Restricted
Subsidiary consisting of:
(a) any
Capital Stock of any Restricted Subsidiary (other than directors qualifying shares or to the extent required by applicable law);
(b) all
or substantially all of the assets of any division or line of business of an Obligor or any Restricted Subsidiary; or
(c) any
other assets of an Obligor or any Restricted Subsidiary;
7
other than, in the case of clause (a),
(b) or (c) above,
(i) sales,
conveyances, transfers, leases or other dispositions of assets, including sales of equipment to equipment manufacturers and similar transactions,
in each case in the ordinary course of business;
(ii) sales,
conveyances, transfers, leases or other dispositions of obsolete, surplus or worn-out property or property that is no longer necessary
in the business of the Borrowers and their Subsidiaries;
(iii) sales,
conveyances, transfers, leases or other dispositions of assets in one or a series of related transactions for aggregate consideration
of less than (A) the greater of (x) $482,940,000 and (y) 3% of Consolidated Net Tangible Assets, or (B) if after giving
effect to such sale, conveyance, transfer, lease or other disposition on a pro forma basis Specified Availability is at least $1,000,000,000,
the greater of (x) $804,900,000 and (y) 5% of Consolidated Net Tangible Assets;
(iv) the
lease, assignment, license, sublicense or sublease of any real or personal property in the ordinary course of business;
(v) (x) a
disposition that constitutes a Permitted Distribution or a Permitted Investment, (y) a disposition governed by Section 8.5
(other than the clauses thereof specifically referring to Asset Dispositions) and (z) any sale, issuance, conveyance, transfer, lease
or other disposition of properties or assets in connection with a Securitization Transaction;
(vi) Like-Kind
Exchanges in the ordinary course of business;
(vii) any
disposition arising from foreclosure, condemnation or similar action with respect to any property or other assets, or exercise of termination
rights under any lease, license, concession or agreement, or necessary or advisable (as determined by the Company in good faith) in order
to consummate any acquisition of any Person, business or assets, or pursuant to buy/sell arrangements under any joint venture or similar
agreement or arrangement;
(viii) dispositions
of cash and Cash Equivalents pursuant to any transaction permitted under the Loan Documents;
(ix) any
disposition of Capital Stock, Indebtedness or other securities of an Unrestricted Subsidiary;
(x) the
unwinding of any Hedge Agreement;
(xi) the
sale, discount or forgiveness (with or without recourse, and on customary or commercially reasonable terms) of Accounts arising in the
ordinary course of business, or the conversion or exchange of accounts receivable for notes receivable;
(xii) a
disposition of Capital Stock of a Restricted Subsidiary pursuant to an agreement or other obligation with or to a person (other than an
Obligor or a Restricted Subsidiary) from which such Restricted Subsidiary was acquired, or from whom such Restricted Subsidiary acquires
its business and assets (having been newly formed in connection with such acquisition), entered into in connection with such acquisition;
(xiii) the
abandonment or other disposition of trademarks, copyrights, patents or other intellectual property that are, in the good faith determination
of the Company, no longer economically practicable to maintain or useful in the conduct of the business of Holdings and its Restricted
Subsidiaries taken as a whole; and
(xiv) licenses,
sublicenses, cross-licenses or other grant of rights to intellectual property or other general intangibles (A) in the ordinary course
of business or (B) otherwise which do not materially interfere with the business of Holdings and its Restricted Subsidiaries taken
as a whole.
“Assignee”
has the meaning specified in Section 12.2(a).
8
“Assignment and Acceptance”
means an assignment and acceptance agreement entered into by one or more Lenders and Eligible Assignees (with the consent of any party
whose consent is required by Section 12.2(a)), and accepted by the Agent, in substantially the form of Exhibit E
or any other form approved by the Agent.
“Associate”
means an “associate” as defined in section 128F(9) of the Australian Tax Act.
“Attorney Costs”
means and includes all reasonable and documented fees, expenses and disbursements of any law firm or other external counsel engaged by
the Agent (limited to one primary counsel and not more than one local counsel for each relevant jurisdiction (including relevant foreign
jurisdictions)).
“August 2017
4⅞% Senior Note Indenture” means that certain Indenture dated as of August 11, 2017 among the Company, Holdings,
certain subsidiaries of the Company and Wells Fargo Bank, National Association, as Trustee.
“August 2017
4⅞% Senior Notes” means the 4⅞% Senior Notes due 2028 issued by the Company pursuant to the August 2017 4⅞%
Senior Note Indenture.
“Australia”
means the Commonwealth of Australia.
“Australian Borrowers”
has the meaning specified in the introductory paragraph to this Agreement.
“Australian Dollars”
or “A$” means the lawful currency of Australia.
“Australian Tax Act”
means the Income Tax Assessment Act 1936 (Cth) (Australia) or the Income Tax Assessment Act 1997 (Cth) (Australia), as applicable.
“Australian Withholding
Tax” means any Tax imposed on or required to be withheld or deducted from any interest or other payment under Division 11A of
Part III of the Australian Tax Act or Subdivision 12-F of Schedule 1 to the Taxation Administration Act 1953 (Cth) (Australia).
“Availability”
means U.S. Availability or Canadian Availability, as the context requires.
“Availability Reserves”
means, without duplication of any other reserves or items that are otherwise addressed or excluded through eligibility criteria, subject
to Section 2.9, such reserves as the Agent, in its Reasonable Credit Judgment, determines as being appropriate to reflect
any impediments to the realization upon any Collateral consisting of Eligible Merchandise and Consumables Inventory or Eligible Rental
Equipment included in the U.S. Borrowing Base or Canadian Borrowing Base (including any claims that the Agent determines may need to be
satisfied in connection with the realization upon such Collateral).
“Available Incremental
Amount” means, on any date, without duplication, an amount equal to the difference between (a) the sum of (i) the
greater of (A) $2,000,000,000 and (B) Suppressed Availability (after giving pro forma effect to any Permitted Acquisitions and
other Permitted Investments), (ii) the amount of any voluntary reductions in Revolving Credit Commitments and (iii) the amount
of any voluntary prepayments of Indebtedness that is subject to the Pari Passu Intercreditor Agreement or is secured by Liens on the Collateral
that are not contractually subordinated to the Liens securing the Obligations hereunder (other than revolving indebtedness, including
Revolving Loans, unless the relevant revolving commitments are also reduced) and (b) the sum of the aggregate principal amount of
all Incremental ABL Term Loans made plus all Incremental Revolving Commitments established, in each case, prior to such date pursuant
to Section 2.5 and that shall be outstanding as of such date (it being understood that any Incremental ABL Term Loans that
shall be repaid, and any Incremental Revolving Commitment that shall be terminated, in connection with any proposed Incremental ABL Term
Loans or Incremental Revolving Commitments shall not be deemed outstanding for purposes of this definition).
“Available Tenor”
means, as of any date of determination and with respect to the then-current Benchmark for any Agreement Currency, as applicable, (x) if
the then-current Benchmark is a term rate, any tenor for such Benchmark that is or may be used for determining the length of an Interest
Period (or, if applicable, the Term CORRA Interest Period) or (y) otherwise, any payment period for interest calculated with reference
to such Benchmark, as applicable, pursuant to this Agreement as of such date.
9
“Bail-In Action”
means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected
Financial Institution.
“Bail-In Legislation”
means (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament
and of the Council of the European Union, the implementing law, regulation, rule or requirement for such EEA Member Country from
time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of
the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United
Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other
than through liquidation, administration or other insolvency proceedings).
“BakerCorp Acquisition”
means the acquisition of BakerCorp International Holdings, Inc. as contemplated by the Agreement and Plan of Merger, dated as of
June 30, 2018, by and among Holdings, UR Merger Sub IV Corporation and BakerCorp International Holdings, Inc.
“BakerCorp Transactions”
means (a) the BakerCorp Acquisition and (b) any other transactions contemplated in connection with the BakerCorp Acquisition
and any other financing transactions in connection with the BakerCorp Acquisition.
“Bank”
means, as the context requires, (a) the U.S. Bank, (b) the Canadian Bank, (c) the London Bank, (d) the European
Swingline Lender or (e) the ANZ Swingline Lender. Any general reference to the “Bank” shall refer to the U.S. Bank
with respect to the U.S. Credit Facilities and/or the Canadian Credit Facilities and/or the ROW Credit Facilities and/or the Canadian
Bank with respect to Canadian Swingline Loans and/or the London Bank with respect to ROW Swingline Loans and/or the European Swingline
Lender with respect to European Swingline Loans and/or the ANZ Swingline Lender with respect to the ANZ Swingline Loans, as applicable.
“Bank Bill Rate”
means, in relation to an Interest Period for any Loan denominated in Australian Dollars or New Zealand Dollars, the rate determined by
the Agent to be the average bid rate displayed at or about 10:30 a.m. (for Australian Dollars) or 10:45 a.m. (for New Zealand
Dollars) (local time) on the first day of such Interest Period on the Reuters screen BBSY page (for Australian Dollars) or BKBM page (for
New Zealand Dollars) (or, in each case, another commercially available source designated by the Agent from time to time) for bank-accepted
bills of exchange having a term equivalent to such Interest Period; provided that in no event shall the Bank Bill Rate be less
than zero.
“Bank Bill Rate Interest
Payment Date” means, with respect to a Bank Bill Rate Loan, the Termination Date and the last day of each Interest Period applicable
to such Loan and, with respect to each Interest Period of more than three months, each three-month anniversary of the commencement
of such Interest Period for such Bank Bill Rate Loan.
“Bank Bill Rate Loan”
means a Loan during any period in which it bears interest based on the Bank Bill Rate.
“Bank of America”
means Bank of America, N.A. and its successors.
“Bank Product Reserves”
means (i) all reserves which the Agent from time to time establishes in its Reasonable Credit Judgment for the Designated Bank Products
Obligations then outstanding and (ii) without duplication of clause (i), all Waterfall Priority Hedge Agreement Reserves.
“Bank Products”
means (a) Hedge Agreements, (b) products and services under Cash Management Documents and (c) to the extent not
otherwise included in the foregoing, other similar banking products or services (other than Loans and Letters of Credit) as, in the case
of each of clauses (a), (b) and (c), may be requested by any Borrower (on behalf of itself or any other
Obligor) and extended to any Obligor by the Agent or any Person that was a Lender or an Affiliate of the Agent or any Lender at the time
it entered into the same.
10
“Bankruptcy Code”
means Title 11 of the United States Code entitled “Bankruptcy”.
“Base Rate”
means for any day a fluctuating rate per annum equal to the highest of (a) the Federal Funds Rate plus ½ of 1%, (b) the
rate of interest in effect for such day as publicly announced from time to time by Bank of America as its “prime rate” and
(c) Term SOFR for a 30-day interest period as determined on such day, plus 1%; provided that in no event shall the Base Rate
be less than zero. The “prime rate” is a rate set by Bank of America based upon various factors including Bank of America’s
costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which
may be priced at, above, or below such announced rate. Any change in such rate announced by Bank of America shall take effect at the opening
of business on the day specified in the public announcement of such change. If the Base Rate is being used as an alternate rate of interest
pursuant to Section 5.5 or 5.7 hereof, then the Base Rate shall be the greater of clauses (a) and
(b) above and shall be determined without reference to clause (c) above.
“Base Rate Loan”
means (a) any U.S. Revolving Loan or any ROW Revolving Loan denominated in Dollars, in each case during any period for which
it bears interest based on the Base Rate, (b) any European Swingline Loan during any period for which it bears interest based on
the Foreign Base Rate, (c) any Canadian Revolving Loan denominated in Dollars during any period for which it bears interest based
on the Canadian Base Rate, (d) all Agent Advances made to a U.S. Borrower or a ROW Borrower and (e) all U.S. Swingline
Loans, ROW Swingline Loans and ANZ Swingline Loans.
“Basel III”
means:
(a) the
agreements on capital requirements, a leverage ratio and liquidity standards contained in “Basel III: A global regulatory framework
for more resilient banks and banking systems”, “Basel III: International framework for liquidity risk measurement, standards
and monitoring” and “Guidance for national authorities operating the countercyclical capital buffer” published by the
Basel Committee on Banking Supervision in December 2010;
(b) the
rules for global systemically important banks contained in “Global systemically important banks: assessment methodology and
the additional loss absorbency requirement – Rules text” published by the Basel Committee on Banking Supervision in November 2011;
and
(c) any
further guidance or standards published by the Basel Committee on Banking Supervision relating to “Basel III”.
“Benchmark”
means, initially, (a) with respect to any Loans denominated in Dollars, Daily SOFR or Term SOFR, as applicable, (b) with respect
to any Loans denominated in Cdn. Dollars, Term CORRA, (c) with respect to any Loans denominated in Euros, EURIBOR, (d) with
respect to any Loans denominated in Sterling, Daily Simple SONIA and (e) with respect to any Loans denominated in Australian Dollars
or New Zealand Dollars, the applicable Bank Bill Rate; provided that, in each case, if a replacement of the applicable Benchmark
has occurred pursuant to Section 5.7 with respect to the then-current Benchmark for such Agreement Currency, then “Benchmark”
means the applicable Benchmark Replacement or Alternative Currency Benchmark Replacement for such Agreement Currency to the extent that
such Benchmark Replacement or Alternative Currency Benchmark Replacement, as applicable has replaced such prior benchmark rate. Any reference
to “Benchmark” shall include, as applicable, the published component used in the calculation thereof.
“Benchmark Replacement”
means, with respect to the Dollar Benchmark, the sum of (a) the alternate benchmark rate and (b) an adjustment (which may be
a positive or negative value or zero), in each case, that has been selected by the Agent and the Borrowers’ Agent as the applicable
replacement Benchmark giving due consideration to any evolving or then-prevailing market convention, including any applicable recommendations
made by a Relevant Governmental Body, for Dollar denominated syndicated credit facilities at such time; provided that, if the Benchmark
Replacement would be less than zero, the Benchmark Replacement will be deemed to be zero for the purposes of this Agreement and the other
Loan Documents.
11
Any Benchmark Replacement
shall be applied in a manner consistent with market practice; provided that to the extent such market practice is not administratively
feasible for the Agent, such Benchmark Replacement shall be applied in a manner as otherwise reasonably determined by the Agent.
“Benchmark Replacement
Conforming Changes” means, with respect to any Benchmark Replacement or Alternative Currency Benchmark Replacement, any technical,
administrative or operational changes (including changes to the definition of “Base Rate”, the definition of “Business
Day” or “U.S. Government Securities Business Day”, the definition of “Interest Period” or “Term CORRA
Interest Period”, timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment,
conversion or continuation notices, the applicability and length of lookback periods, the applicability of breakage provisions and other
technical, administrative or operational matters) that the Agent decides may be appropriate to reflect the adoption and implementation
of such Benchmark Replacement or Alternative Currency Benchmark Replacement, as applicable, and to permit the administration thereof by
the Agent in a manner substantially consistent with market practice (or, if the Agent decides that adoption of any portion of such market
practice is not administratively feasible or if the Agent determines that no market practice for the administration of such Benchmark
Replacement or Alternative Currency Benchmark Replacement, as the case may be, exists, in such other manner of administration as the Agent
decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).
“Benchmark Transition
Event” means, with respect to any then-current Benchmark, the occurrence of a public statement or publication of information
by or on behalf of the administrator of such then-current Benchmark or a Governmental Authority with jurisdiction over such administrator
announcing or stating that all Available Tenors are or will no longer be representative, or made available, or used for determining the
interest rate of loans, or shall or will otherwise cease, provided that, at the time of such statement or publication, there is
no successor administrator that is satisfactory to the Agent, that will continue to provide any representative tenors of such Benchmark
after such specific date.
“Beneficial Ownership
Certification” means a certification regarding beneficial ownership required by the Beneficial Ownership Regulation, which certification
shall be substantially similar in form and substance to the form of “Certification Regarding Beneficial Owners of Legal Entity Customers”
published jointly, in May 2018, by the Loan Syndications and Trading Association and Securities Industry and Financial Markets Association
(or any successor or replacement form).
“Beneficial Ownership
Regulation” means 31 C.F.R. § 1010.230.
“BHC Act Affiliate”
of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of
such party.
“BIA” means
the Bankruptcy and Insolvency Act (Canada) and the regulations promulgated thereunder.
“BlueLine Acquisition”
means the acquisition of Vander Holding Corporation contemplated by the Agreement and Plan of Merger, dated as of September 10, 2018,
by and among Holdings, UR Merger Sub V Corporation and Vander Holding Corporation.
“BlueLine Transactions”
means (a) the BlueLine Acquisition, (b) the issuance of debt securities in connection with the BlueLine Acquisition and (c) any
other transactions contemplated in connection with the BlueLine Acquisition and any other financing transactions in connection with the
BlueLine Acquisition.
“Borrower DTTP Filing”
means an HM Revenue & Customs’ Form DTTP2, duly completed and filed by the relevant Borrower, which contains the scheme
reference number and jurisdiction of tax residence provided by the applicable Lender to the relevant U.K. Borrower and the Agent.
“Borrowers”
means the U.S. Borrowers, the ROW Borrowers, the Canadian Borrowers, the European Borrowers and the ANZ Borrowers.
12
“Borrowers’
Agent” means the Company, in its capacity as agent for itself and the other Borrowers pursuant to Section 4.10.
“Borrowing”
means (i) a borrowing hereunder consisting of Loans of one Type made on the same day by Lenders to any Borrower (or (a) by the
U.S. Bank in the case of a Borrowing funded by U.S. Swingline Loans or by the Agent in the case of a Borrowing consisting of
an Agent Advance made to a U.S. Borrower or a ROW Borrower, (b) by the London Bank in the case of a Borrowing funded by ROW Swingline
Loans, (c) by the Canadian Bank in the case of a Borrowing funded by Canadian Swingline Loans or by the Agent in the case of a Borrowing
consisting of an Agent Advance made to a Canadian Borrower, (d) by the European Swingline Lender in the case of a Borrowing funded
by European Swingline Loans or (e) by the ANZ Swingline Lender in the case of a Borrowing funded by ANZ Swingline Loans) or (ii) the
issuance by a Letter of Credit Issuer of a Letter of Credit hereunder.
“Borrowing Base”
means the U.S. Borrowing Base or the Canadian Borrowing Base, as the context requires.
“Borrowing Base Certificate”
means a certificate by a Responsible Officer of the Borrowers’ Agent, substantially in the form of Exhibit A (or another
form reasonably acceptable to the Agent) setting forth the calculation of the U.S. Borrowing Base and the Canadian Borrowing Base,
including a calculation of each component thereof, as adjusted pursuant to Section 2.9 of this Agreement and the definitions
of Pari Passu Debt Reserves and Waterfall Priority Hedge Agreement Reserves. All calculations of the U.S. Borrowing Base and the
Canadian Borrowing Base in connection with the preparation of any Borrowing Base Certificate shall be made by the U.S. Borrowers
and the Canadian Borrowers and certified to the Agent; provided that the Agent shall have the right to review and adjust, in the
exercise of its Reasonable Credit Judgment (or, with respect to Pari Passu Debt Reserves and Waterfall Priority Hedge Agreement Reserves,
as otherwise set forth in the definitions thereof) and in consultation with the Company, any such calculation to the extent that such
calculation is not in accordance with this Agreement, provided, further, that the Agent shall provide the applicable Borrower
or Borrowers prior written notice of any such adjustment.
“Borrowing Minimum”
means (a) with respect to Base Rate Loans or Canadian Prime Rate Loans, (i) in the case of a Borrowing denominated in Dollars,
$1,000,000, (ii) in the case of a Borrowing denominated in Canadian Dollars, Cdn $1,000,000, (iii) in the case of a Borrowing
denominated in Euro, €500,000 and (iv) in the case of a Borrowing denominated in Sterling, £500,000 (or, in each case,
if the applicable Commitment then available is less than the applicable amount specified in the foregoing, such lesser amount), and (b) with
respect to Term SOFR Loans, Daily SOFR Loans, Term CORRA Loans, EURIBOR Loans, SONIA Rate Loans or Bank Bill Rate Loans, (i) in the
case of a Borrowing denominated in Dollars, $5,000,000, (ii) in the case of a Borrowing denominated in Canadian Dollars, Cdn $5,000,000,
(iii) in the case of a Borrowing denominated in Euro, €500,000, (iv) in the case of a Borrowing denominated in Sterling,
£500,000, (v) in the case of a Borrowing denominated in Australian Dollars, A$500,000, (vi) in the case of a Borrowing
denominated in New Zealand Dollars, NZ$500,000 and (vii) in the case of a Borrowing denominated in any other Alternative Currency,
such amount as may be agreed by the Agent and the Borrowers’ Agent.
“Borrowing Multiple”
means (a) in the case of a Borrowing denominated in Dollars, $1,000,000, (b) in the case of a Borrowing denominated in Canadian
Dollars, Cdn $1,000,000, (c) in the case of a Borrowing denominated in Euro, €500,000, (d) in the case of a Borrowing denominated
in Sterling, £500,000, (e) in the case of a Borrowing denominated in Australian Dollars, A$500,000, (f) in the case of
a Borrowing denominated in New Zealand Dollars, NZ$500,000 and (g) in the case of a Borrowing denominated in any other Alternative
Currency, such amount as may be agreed by the Agent and the Borrowers’ Agent.
“Business Day”
means any day that is not a Saturday, Sunday, or a day on which banks in New York, New York are required or permitted to be closed;
provided, however, when used in connection with (a) a Canadian Revolving Loan, such day shall be a day on which banks
are open for business in Toronto, Canada and New York, New York but excluding Saturday, Sunday and any other day which is a legal holiday
in Toronto, Canada or New York, New York, (b) a European Swingline Loan, the term “Business Day” shall also exclude any
day which is a legal holiday in any of Paris, France, Amsterdam, the Netherlands, Brussels, Belgium and Munich, Germany or is a day on
which banking institutions located in any of Paris, France, Amsterdam, the Netherlands, Brussels, Belgium and Munich, Germany are authorized
or required by law or other governmental action to close, (c) a SONIA Rate Loan, the term “Business Day” shall also exclude
any day which is a legal holiday in London or is a day on which banking institutions located in London are authorized or required by law
or other governmental action to close, (d) a Loan denominated in Euro, the term “Business Day” shall also exclude any
day that is not a TARGET Day and (e) determining any date on which any amount is to be paid or made available in an Alternative Currency
(other than Euro or Sterling), the term “Business Day” shall also exclude any day on which commercial banks and foreign exchange
markets are not open for business in the principal financial center in the country of such Alternative Currency.
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“Canadian Availability”
means, at any time (a) the lesser of (i) the Maximum Canadian Revolver Amount and (ii) the sum of the Canadian Borrowing
Base and the U.S. Availability, minus (b) the Aggregate Canadian Revolver Outstandings.
“Canadian Bank”
means Bank of America, N.A. (acting through its Canada branch), or any successor entity thereto.
“Canadian Base Rate”
means for any day a fluctuating rate per annum equal to the highest of (a) the per annum rate of interest designated by the Canadian
Bank from time to time as its base rate for commercial loans made by it in Dollars, which rate is based on various factors, including
its costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans,
which may be priced at, above or below such rate, (b) the Federal Funds Rate plus ½ of 1% and (c) Term SOFR for a 30-day
interest period as determined on such day, plus 1%; provided that in no event shall the Canadian Base Rate be less than zero. Any
change in such rate shall take effect at the opening of business on the applicable Business Day. If the Canadian Base Rate is being used
as an alternate rate of interest pursuant to Section 5.5 or 5.7 hereof, then the Canadian Base Rate shall be the greater
of clauses (a) and (b) above and shall be determined without reference to clause (c) above.
“Canadian Borrowers”
has the meaning specified in the introductory paragraph to this Agreement.
“Canadian Borrowing
Base” means, at any time, an amount in Dollars equal to:
(a) the
lesser of (i) 100% of the Net Book Value of Eligible Rental Equipment of the Canadian Obligors and (ii) 85% of the Net Orderly
Liquidation Value of the Eligible Rental Equipment of the Canadian Obligors; minus
(b) the
sum of (i) the amount of Pari Passu Debt Reserves with respect to Indebtedness of the Canadian Obligors (without duplication for
any Pari Passu Debt Reserves imposed with respect to the U.S. Borrowing Base) plus (ii) the amount of all other Reserves related
to the Canadian Credit Facilities from time to time established by the Agent in accordance with Section 2.9 of this Agreement
or in accordance with the definition of “Waterfall Priority Hedge Agreement Reserve”.
“Canadian Collateral”
means all of the Canadian Obligors’ personal property from time to time subject to the Agent’s Liens securing payment or performance
of any Canadian Obligations pursuant to the Canadian Security Documents, other than Excluded Assets (as defined in the Canadian Security
Agreement); provided that the term “Canadian Collateral” shall not include U.S. Collateral.
“Canadian Credit
Facilities” means the revolving credit and swingline facilities provided for by this Agreement extended to the Canadian Borrowers.
“Canadian DB Pension
Plan” means any Canadian Pension Plan that contains a “defined benefit provision” as defined in the Income Tax
Act (Canada).
“Canadian Deed of
Hypothec Confirmation” means that certain Confirmation of Security, dated as of the Agreement Date, entered into by UR Canada
with respect to a certain deed of hypothec and related documents executed by UR Canada under or pursuant to the Original Loan Agreement
and/or the Existing Loan Agreement.
“Canadian Dollars”
or “Cdn $” or “Cdn. Dollars” means the lawful currency of Canada.
“Canadian Guarantee
Agreement” means the Third Amended and Restated Canadian Guarantee Agreement dated as of February 15, 2019 from the Canadian
Obligors party thereto in favor of the Agent for the benefit of the Canadian Secured Parties; provided that on and after the Closing
Date, the parties hereto (which include all signatories of the Canadian Guarantee Agreement) agree that the single reference to “French
Obligations” in the Canadian Guarantee Agreement shall instead refer to the European Obligations (as defined herein).
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“Canadian Guarantors”
means (a) any Subsidiary of Holdings that is organized under the Laws of Canada or any province or territory thereof, whether now
existing or hereafter created or acquired, and (b) each other Person (other than a U.S. Guarantor), who guarantees payment or
performance in whole or in part of the Canadian Obligations; provided that “Canadian Guarantors” shall not include
any Subsidiary that is an Excluded Subsidiary. The Canadian Guarantors as of the Agreement Date are set forth on Schedule 1.2A
under the heading “Canadian Guarantors”.
“Canadian Obligations”
means, with respect to the Indebtedness of the Canadian Obligors under the Loan Documents, any principal, premium (if any), interest (including
interest accruing on or after the filing of any petition in bankruptcy or for reorganization relating to any Canadian Obligor whether
or not a claim for post-filing interest is allowed in such proceedings), fees, charges, expenses, reimbursement obligations, Guarantees
of such Indebtedness (or of Obligations in respect thereof), other monetary obligations of any Canadian Obligor of any nature and all
other amounts payable by any Canadian Obligor under the Loan Documents or in respect thereof, excluding in each case Excluded Swap Obligations;
provided that “Canadian Obligations” shall in any event include Designated Bank Products Obligations of any Canadian
Obligor, any ROW Obligations guaranteed by the Canadian Obligors, any European Obligations guaranteed by the Canadian Obligors and any
ANZ Obligations guaranteed by the Canadian Obligors (in each case, to the extent such Obligations are not Excluded Swap Obligations);
provided, further, that “Canadian Obligations” shall not include any U.S. Obligations.
“Canadian Obligors”
means the Canadian Borrowers and the Canadian Guarantors.
“Canadian Pension
Plan” means any Pension Plan applicable solely to employees or former employees of any of the Canadian Obligors but shall not
include any Pension Plan maintained by the Government of Canada or the government of the Province of Québec.
“Canadian Prime Rate”
means, on any day, a fluctuating rate of interest per annum equal to the greater of (a) the rate of interest publicly announced from
time to time by the Canadian Bank as its reference rate of interest for loans made in Canadian Dollars and designated as its “prime”
rate being a rate set by the Canadian Bank based upon various factors, including the Canadian Bank’s costs and desired return, general
economic conditions and other factors and is used as a reference point for pricing some loans, and (b) Term CORRA plus ½ of
1% per annum; provided that in no event shall the Canadian Prime Rate be less than zero. Any change in the prime rate for loans
made in Canadian Dollars announced by the Canadian Bank shall take effect at the opening of business on the day specified in the public
announcement of such change. Each interest rate based on such prime rate hereunder shall be adjusted simultaneously with any change in
such prime rate.
“Canadian Prime Rate
Loan” means any Canadian Revolving Loan during any period for which it bears interest by reference to the Canadian Prime Rate
and all Canadian Swingline Loans and Agent Advances made to a Canadian Borrower.
“Canadian Revolving
Loans” means the revolving loans made to the Canadian Borrowers pursuant to Section 2.1(a)(ii) or any amendment
to this Agreement entered into pursuant to Section 2.5, 2.6 or 2.7, each Agent Advance made to a Canadian Borrower
and each Canadian Swingline Loan.
“Canadian Secured
Parties” means, collectively, the Agent, the Lenders, the Canadian Bank, any Letter of Credit Issuer, the Indemnified Persons
and each of the Agent, any Lender or any Affiliate or branch of the Agent or such Lender to which is owed any Designated Bank Products
Obligations, in each case in its capacity as an obligee of Canadian Obligations.
“Canadian Security
Agreement” means the Fifth Amended and Restated Canadian Security Agreement, dated as of the Closing Date, from the Obligors
party thereto in favor of the Agent, for the benefit of the Canadian Secured Parties, as further amended, amended and restated, modified
or supplemented from time to time.
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“Canadian Security
Documents” means, collectively, (a) the Canadian Security Agreement, (b) the Deed of Hypothec, (c) any security
agreements and/or deeds of hypothec executed and delivered prior or concurrently to the Agreement Date by one or more of the Obligors
party thereto in favor of the Agent, in its capacity as agent hereunder or as fondé de pouvoir for all purposes of Article 2692
of the Civil Code of Québec, (d) any security agreement and/or deed of hypothec executed and delivered after the Agreement
Date by a Person that is or becomes a Canadian Obligor hereunder in accordance with Section 7.16, and (e) any Control
Agreement or other agreements, instruments and documents heretofore, now or hereafter securing any of the Canadian Obligations.
“Canadian Swingline
Commitment” means the commitment of the Canadian Bank to make loans pursuant to Section 2.3(c).
“Canadian Swingline
Lender” means the Canadian Bank or any successor financial institution agreed to by the Agent, in its capacity as provider of
Canadian Swingline Loans.
“Canadian Swingline
Loan” and “Canadian Swingline Loans” have the meanings specified in Section 2.3(c).
“Canadian Swingline
Sublimit” has the meaning specified in Section 2.3(c).
“Capital Adequacy
Regulation” means any guideline, request or directive of any central bank or other Governmental Authority, or any other law,
rule or regulation, whether or not having the force of law, in each case, regarding capital adequacy or liquidity requirements of
any bank or of any corporation controlling a bank.
“Capital Expenditures”
means, with respect to any Person for any period, (a) the aggregate of all expenditures incurred by such Person and its consolidated
Subsidiaries during such period for purchases of property, plant and equipment as “capital expenditures” (exclusive of expenditures
for Investments not prohibited hereby or for Permitted Acquisitions) or similar items which, in accordance with GAAP, are or should be
included in the statement of cash flows of such Person and its consolidated Subsidiaries during such period, net of (b) (i) proceeds
received by Holdings or its Subsidiaries from dispositions of property, plant and equipment or similar items reflected in the statement
of cash flows of such Person and its consolidated Subsidiaries during such period, (ii) expenditures that are paid for by a third
party (excluding Holdings and any of its consolidated Subsidiaries) and for which neither Holdings nor any of its consolidated Subsidiaries
has provided or is required to provide or incur, directly or indirectly, any consideration or obligation to such third party or any other
Person, or (iii) expenditures made with the proceeds of any Capital Stock issued or capital contributions received, or Indebtedness
incurred, by Holdings or any of its consolidated Subsidiaries which, in accordance with GAAP, are included in “capital expenditures”,
including any such expenditures made for purchases of Rental Equipment.
“Capital Lease”
means any lease of property by an Obligor or any of its Subsidiaries which, in accordance with GAAP, should be reflected as a finance
lease on the balance sheet of the Consolidated Parties.
“Capital Lease Obligation”
means, with respect to any Capital Lease of any Person, the amount of the obligation of the lessee thereunder that, in accordance with
GAAP, would appear on a balance sheet of such lessee in respect of such Capital Lease.
“Capital Stock”
means, with respect to any Person, any and all shares, interests, participations, rights in or other equivalents (however designated)
of such Person’s capital stock or equity participations, and any rights (other than debt securities convertible or exchangeable
into capital stock), warrants or options exchangeable for or convertible into such capital stock and, including, with respect to partnerships,
limited liability companies or business trusts, ownership interests (whether general or limited) and any other interest or participation
that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, such partnerships,
limited liability companies or business trusts.
“Cash Dominion Period”
means (a) any period commencing on the date on which Specified Availability shall have been less than 10% of the Maximum Revolver
Amount for five consecutive Business Days and the Agent has notified the Borrowers’ Agent that a Cash Dominion Period is in effect,
and ending on the earliest of the date on which (i) Specified Availability shall have been at least 10% of the Maximum Revolver Amount
for 20 consecutive calendar days or (ii) Specified Availability shall have been at least 15% of the Maximum Revolver Amount
for five consecutive calendar days or (b) any period during which a Specified Default shall have occurred and be continuing.
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“Cash Equivalents”
means:
(a) direct
obligations of the United States of America or Canada, or any agency thereof, or obligations guaranteed or insured by the United States
of America or Canada, or any agency thereof, provided that such obligations mature within one year from the date of acquisition
thereof;
(b) (i) certificates
of deposit, guaranteed investment certificates or time deposits maturing within one year from the date of acquisition, bankers’
acceptances, Eurodollar bank deposits, or overnight bank deposits, in each case issued by, created by, or with (x) any Lender or
an Affiliate thereof or (y) any other bank or trust company organized under the laws of the United States of America or any state
thereof or Canada or any province or territory thereof, in each such case, having, at the time of acquisition thereof, capital and surplus
aggregating at least $500,000,000 (or the Equivalent Amount in Canadian Dollars, as applicable) and the commercial paper of the holding
company of which is rated at least “A2” by S&P or “P2” by Moody’s, and (ii) repurchase obligations
for underlying securities of the types described in clause (i) above entered into with any financial institution meeting
the qualifications specified in clause (i) above;
(c) commercial
paper maturing not more than one year from the date of creation thereof or corporate demand notes, in each case given a rating of “A2”
or better by S&P or “P2” or better by Moody’s;
(d) (i) marketable
direct obligations issued by any state of the United States of America or the District of Columbia or any political subdivision of any
such state or any public instrumentality thereof, in each case maturing within one year after such date and having, at the time of the
acquisition thereof, a rating of at least “A1” from S&P or at least “P1” from Moody’s or (ii) investments
in asset management accounts that are primarily invested in investments of the type specified in clause (i);
(e) any
repurchase agreement entered into with any commercial banking institution of the stature referred to in clause (b)(i)(B) which:
(i) is
secured by a fully perfected security interest in any obligation of the type described in any of clauses (a) and (b);
and
(ii) has
a market value at the time of such repurchase agreement is entered into of not less than 100% of the repurchase obligation of such commercial
banking institution thereunder;
(f) investments
in asset management accounts which are invested in indebtedness of any state or municipality of the United States or of the District of
Columbia and which are rated under one of the two highest ratings then obtainable from S&P or by Moody’s or primarily invested
in investments of the types described in clauses (a) through (e) above; and
(g) any
investment in (i) funds investing primarily in investments of the types specified in clauses (a) through (f) above
or (ii) money market funds complying with the risk limiting conditions of Rule 2a-7 or any successor rule of the SEC under
the Investment Company Act of 1940.
provided, that, in the case of any Investment
by any Foreign Subsidiary of Holdings, “Cash Equivalents” shall also include: (A) direct obligations of the sovereign
nation (or any agency thereof) in which such Foreign Subsidiary is organized and is conducting business or in obligations fully and unconditionally
guaranteed by such sovereign nation (or any agency thereof) (or, in the case of a Foreign Subsidiary organized under the Laws of a member
state of the European Union, any other sovereign nation (or agency thereof) in the European Union), in each case maturing within a year
after such date and having, at the time of the acquisition thereof, a rating equivalent to at least “A2” from S&P and
at least “P2” from Moody’s, (B) investments of the type and maturity described in clauses (a) through
(g) above of non-U.S. obligors, which investments or obligors (or the parents of such obligors) have ratings described in
such clauses or equivalent ratings from comparable non-U.S. rating agencies and (C) shares of money market mutual or similar funds
primarily investing in investments otherwise satisfying the requirements of this definition (including this paragraph).
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“Cash Management
Document” means any certificate, agreement or other document executed by any Obligor in respect of the Cash Management Obligations
of any such Person.
“Cash Management
Obligation” means any obligation of an Obligor or Restricted Subsidiary in connection with, or in respect of, cash management
services (including treasury, depository, return item, overdraft, controlled disbursement, credit, merchant store value or debit card,
purchase card, e-payables services, electronic funds transfer, interstate depository network, automatic clearing house transfer and other
cash management arrangements) provided after the Original Agreement Date (regardless of whether these or similar services were provided
prior to the Original Agreement Date by the Agent, any Lender or any Affiliate of any of them) by the Agent or any Person that was a Lender
or the Agent or an Affiliate of the Agent or any Lender at the time the applicable Cash Management Documents were entered into.
“CCAA”
means the Companies’ Creditors Arrangement Act (Canada) and the regulations promulgated thereunder.
“Change of Control”
means, at any time and for any reason whatsoever, (a) any “person” or “group” (as such terms are used in
Sections 13(d) and 14(d) of the Exchange Act) is or becomes the “beneficial owner” (as defined in Rules 13d-3
and 13d-5 under the Exchange Act), directly or indirectly, of more than 50% of the total Voting Stock of Holdings on a fully diluted basis,
(b) Holdings shall cease to own, directly or indirectly, 100% on a fully diluted basis of the total Voting Stock of the Company (or
any successor to the Company permitted pursuant to Section 8.5(b)) or (c) the occurrence of a “Change of Control”
as defined in (i) any indenture, loan agreement or similar instrument under which Existing Public Debt was issued, (ii) the
TLB Credit Agreement or (iii) any other indenture, loan agreement or similar instrument in each case evidencing or governing Indebtedness
in an outstanding principal amount in excess of $300,000,000 entered into or assumed by Holdings or the Company after the Agreement Date,
in each case for this clause (c) to the extent any such Indebtedness remains outstanding.
“Charter Documents”
means, with respect to any Person, the certificate or articles of incorporation or organization, memoranda of association, constitution,
by-laws or operating agreement, and other organizational or governing documents of such Person.
“Chattel Paper”
means all of each Borrower’s, each Guarantor’s and each of their Subsidiary’s now owned or hereafter acquired chattel
paper, as defined in the UCC or, with respect to any chattel paper of any Canadian Obligor, the PPSA, including electronic chattel paper.
“Closing Date”
means the later of the Agreement Date and the first date on which all of the applicable conditions set forth in Section 9.1
have been fulfilled (or waived in writing by the Agent and the Arrangers).
“CME” means
CME Group Benchmark Administration Limited.
“Co-Documentation
Agent” has the meaning specified in the preamble to this Agreement.
“Co-Syndication Agent”
has the meaning specified in the preamble to this Agreement.
“Code”
means the Internal Revenue Code of 1986 and the rules and regulations promulgated thereunder.
“Collateral”
means the U.S. Collateral and/or the Canadian Collateral, collectively or individually, as the context requires.
“Collateral Access
Agreements” means any landlord waiver, mortgagee waiver, bailee letter, or any similar acknowledgment or agreement of any warehouseman
or processor that owns or is in possession of property where Rental Equipment or Merchandise and Consumables Inventory is stored or located,
in each case in a form comparable to any acknowledgement or agreement that is in effect as of the Closing Date in respect of the Existing
Loan Agreement or otherwise reasonably satisfactory to the Agent.
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“Combined Availability”
means, at any time (a) the lesser of (i) the Maximum Revolver Amount and (ii) the Combined Borrowing Base, minus
(b) in each case, the Aggregate Revolver Outstandings.
“Combined Borrowing
Base” means, at any time, the sum of (a) the U.S. Borrowing Base at such time and (b) the lesser of (i) the
Canadian Borrowing Base at such time and (ii) the Maximum Canadian Revolver Amount at such time.
“Commitment”
means an ANZ Revolving Credit Commitment or a Pro Rata Revolving Credit Commitment (and including any Incremental Revolving Commitment
and Extended Commitment to make Revolving Loans), a U.S. Swingline Commitment, a ROW Swingline Commitment, a Canadian Swingline Commitment,
a European Swingline Commitment or an ANZ Swingline Commitment, or any Refinancing Revolving Commitment under this Agreement as the context
requires.
“Commodity Exchange
Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.) and any successor statute.
“Company”
has the meaning specified in the introductory paragraph to this Agreement.
“Compliance Certificate”
means a certificate substantially in the form of Exhibit D.
“Conforming Changes”
means, with respect to the use, administration of or any conventions associated with SOFR, Daily SOFR, Term CORRA or Term SOFR, as applicable,
any conforming changes to the definitions of “Base Rate”, “Canadian Base Rate”, “Canadian Prime Rate”,
“Term CORRA”, “SOFR”, “Daily SOFR”, “Term SOFR”, “Term CORRA Interest Period”
and “Interest Period”, timing and frequency of determining rates and making payments of interest and other technical, administrative
or operational matters (including, for the avoidance of doubt, the definitions of “Business Day” and “U.S. Government
Securities Business Day”, timing of borrowing requests or prepayment, conversion or continuation notices and length of lookback
periods) as may be appropriate, in the reasonable discretion of the Agent, to reflect the adoption and implementation of such applicable
rate(s) and to permit the administration thereof by the Agent in a manner substantially consistent with market practice (or, if the
Agent determines that adoption of any portion of such market practice is not administratively feasible or that no market practice for
the administration of such rate exists, in such other manner of administration as the Agent determines is reasonably necessary in connection
with the administration of this Agreement and any other Loan Document).
“Consolidated Current
Liabilities” means, as of the date of determination, the aggregate amount of liabilities of the Consolidated Parties which may
properly be classified as current liabilities (including taxes accrued as estimated), on a consolidated basis, after eliminating:
(a) all
intercompany items between any Consolidated Parties; and
(b) all
current maturities of long-term Indebtedness, all as determined in accordance with GAAP consistently applied.
“Consolidated EBITDA”
means, for any period:
(a) the
sum of, without duplication, the amounts for such period, taken as a single accounting period, of:
(i) Consolidated
Net Income;
(ii) Consolidated
Non-cash Charges;
(iii) Consolidated
Interest Expense;
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(iv) Consolidated
Income Tax Expense;
(v) any
fees, expenses or charges related to the Transactions or to any of the Acquisition Transactions or any issuance of Capital Stock, Investment,
merger, acquisition, disposition, consolidation, amalgamation, recapitalization or the incurrence or repayment of Indebtedness (including
any refinancing or amendment of any of the foregoing) (whether or not consummated or incurred);
(vi) the
amount of any restructuring charges or reserves, retention, severance, systems establishment cost, excess pension charges, contract termination
costs, including future lease commitments, costs related to start up, closure, relocation or consolidation of facilities, costs to relocate
employees, consulting fees, one time information technology costs, one time branding costs and losses on the sale of excess fleet from
closures; and
(vii) the
amount of net cost savings and synergies projected by the Company in good faith to be realized from actions taken or expected to be taken
(which shall be calculated on a pro forma basis as though such cost savings or synergies had been realized on the first day of such period),
net of the amount of actual benefits realized during such period from such actions; provided that (A) such cost savings or
synergies are reasonably identifiable and supportable, (B) such actions have been taken, or are to be taken within 24 months
after the date of determination to take such action and (C) solely for the purposes of determining compliance with the covenant contained
in Section 8.9, the aggregate amount of any cost savings and synergies added pursuant to this clause (vii) shall not
exceed 20% of Consolidated EBITDA for such period (calculated after giving effect to the amount added pursuant to this clause (vii)),
less
(b) (i) non-cash
items increasing Consolidated Net Income (other than revenue accruals in the ordinary course of business) and (ii) all cash payments
during such period relating to non-cash charges that were added back in determining Consolidated EBITDA for the most recent period of
four consecutive Fiscal Quarters.
“Consolidated Income
Tax Expense” means, for any period, the provision for federal, state, local and foreign taxes (whether or not paid, estimated
or accrued) based on income, profits or capitalization of the Consolidated Parties for such period as determined on a consolidated basis
in accordance with GAAP.
“Consolidated Interest
Expense” means, for any period, without duplication, the sum of:
(a) the
interest expense, net of any interest income, of the Consolidated Parties for such period as determined on a consolidated basis in accordance
with GAAP, including:
(i) any
amortization of debt discount;
(ii) the
net payments made or received under interest rate Hedge Agreements (including any amortization of discounts);
(iii) the
interest portion of any deferred payment obligation;
(iv) all
commissions, discounts and other fees and charges owed with respect to letters of credit, bankers’ acceptance financing or similar
facilities; and
(v) all
accrued interest; plus
(b) the
interest component of Capital Lease Obligations paid, accrued and/or scheduled to be paid or accrued by the Consolidated Parties during
such period as determined on a consolidated basis in accordance with GAAP, less
(c) to
the extent otherwise included in such interest expense referred to in clause (a) above, the amortization or write-off
of financing costs, commissions, fees and expenses.
20
“Consolidated Net
Income” means, for any period, the consolidated net income (or loss) of the Consolidated Parties determined on a consolidated
basis in accordance with GAAP; provided that there shall be excluded from such net income (to the extent otherwise included therein),
without duplication:
(a) any
extraordinary, unusual, infrequent or non-recurring gain, loss, expense or charge (including fees, expenses and charges associated with
any of the Acquisition Transactions or any merger, acquisition, disposition or consolidation after the Agreement Date);
(b) (i) the
portion of net income of the Consolidated Parties allocable to minority interests in unconsolidated Persons or to Investments in Unrestricted
Subsidiaries to the extent that cash dividends or distributions have not actually been received by the Consolidated Parties and (ii) the
portion of net loss of the Consolidated Parties allocable to minority interests in unconsolidated Persons or to Investments in Unrestricted
Subsidiaries shall be included to the extent of the aggregate investment of the Consolidated Parties in such Person;
(c) gains
or losses in respect of any sales or other dispositions of assets outside the ordinary course of business by any Consolidated Party (net
of fees and expenses relating to the transaction giving rise thereto), on an after-tax basis;
(d) the
net income of any Consolidated Party to the extent that the declaration of dividends or similar distributions by that Consolidated Party
of that income is not at the time permitted, directly or indirectly, by operation of the terms of its charter or any agreement, instrument,
judgment, decree, order, statute, rule or governmental regulations applicable to that Consolidated Party or its stockholders (other
than (i) restrictions that have been waived or otherwise released, (ii) restrictions pursuant to this Agreement and (iii) restrictions
in effect on the Agreement Date with respect to a Consolidated Party and other restrictions with respect to such Consolidated Party that
taken as a whole are not materially less favorable to the Lenders than such restrictions in effect on the Agreement Date);
(e) any
gain or loss realized as a result of the cumulative effect of a change in accounting principles;
(f) the
write-off of any issuance costs incurred by the Company in connection with the refinancing or repayment of any Indebtedness;
(g) any
net after-tax gain (or loss) attributable to the early repurchase, extinguishment or conversion of Indebtedness, obligations under Hedge
Agreements or other derivative instruments (including any premiums paid);
(h) any
non-cash income (or loss) related to the recording of the fair market value of any obligations under Hedge Agreements;
(i) any
unrealized gains or losses in respect of any foreign exchange contract, currency swap agreement or other similar agreement with respect
to currency values;
(j) (i) any
non-cash compensation deduction as a result of any grant of stock or stock related instruments to employees, officers, directors or members
of management and (ii) any cash charges associated with the rollover, acceleration or payout on stock or stock-related instruments
by management of Holdings, the Company or any of their Subsidiaries in connection with any of the Acquisition Transactions or any other
merger, acquisition, disposition or consolidation;
(k) any
income (or loss) from discontinued operations;
(l) any
unrealized foreign currency translation or transaction gains or losses in respect of Indebtedness or other obligations of any Person denominated
in a currency other than the functional currency of such Person;
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(m) to
the extent covered by insurance and actually reimbursed, or, so long as the Company has made a determination that there exists reasonable
evidence that such amount will in fact be reimbursed by the insurer and only to the extent that such amount is (i) not denied by
the applicable carrier in writing within 180 days and (ii) in fact reimbursed within 365 days of the date of such evidence
(with a deduction for any amount so added back to the extent not so reimbursed within 365 days), expenses with respect to liability
or casualty events or business interruption; provided that, to the extent included in Consolidated Net Income in a future period,
reimbursements with respect to expenses excluded from the calculation of Consolidated Net Income pursuant to this clause (m) shall
be excluded from Consolidated Net Income in such period up to the amount of such excluded expenses;
(n) any
non-cash charge, expense or other impact attributable to application of the purchase method of accounting (including the total amount
of depreciation and amortization, cost of sales or other non-cash expense resulting from the write-up of assets to the extent resulting
from such purchase accounting adjustments);
(o) any
goodwill or other intangible asset impairment charge;
(p) effects
of fair value adjustments in the merchandise inventory, property and equipment, goodwill, intangible assets, deferred revenue, deferred
rent and debt line items in such Person’s consolidated financial statements pursuant to GAAP resulting from the application of acquisition
accounting in relation to any of the Acquisition Transactions or any consummated acquisition and the amortization or write-off or removal
of revenue otherwise recognizable of any amounts thereof, net of taxes, shall be excluded or added back in the case of lost revenue;
(q) the
amount of loss on sale of assets to a Subsidiary in connection with a Securitization Transaction; and
(r) accruals
and reserves established after (i) the consummation of each of the Acquisition Transactions, in each case, that were established
as a result of such transactions and (ii) the closing of any acquisition or investment required to be established as a result of
such acquisition or investment in accordance with GAAP, or changes as a result of adoption or modification of accounting policies.
“Consolidated Net
Tangible Assets” means, as of any date of determination, the total amount of assets (less the sum of goodwill and other intangibles,
net) which would appear on a consolidated balance sheet of the Consolidated Parties, determined on a consolidated basis in accordance
with GAAP, on a pro forma basis, and after deducting therefrom Consolidated Current Liabilities and, to the extent otherwise included,
the amounts of:
(a) minority
interests in consolidated Subsidiaries held by Persons other than a Consolidated Party;
(b) treasury
stock;
(c) cash
set apart and held in a sinking or other analogous fund established for the purpose of redemption or other retirement of Capital Stock
to the extent such obligation is not reflected in Consolidated Current Liabilities; and
(d) Investments
in and assets of Unrestricted Subsidiaries.
“Consolidated Non-cash
Charges” means, for any period, the aggregate depreciation, amortization (including amortization of goodwill and other intangibles)
and other non-cash expenses of the Consolidated Parties reducing Consolidated Net Income for such period, determined on a consolidated
basis in accordance with GAAP.
“Consolidated Parties”
means Holdings and each of its Restricted Subsidiaries whose financial statements are consolidated with Holdings’ financial statements
in accordance with GAAP.
“Contaminant”
means any waste, pollutant, hazardous substance, toxic substance, hazardous waste, special waste, petroleum or petroleum-derived substance
or waste, asbestos in any form or condition, polychlorinated biphenyls, or any constituent of any such substance or waste, or any other
substance or material regulated under Environmental Law.
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“Continuation/Conversion
Date” means the date on which a Loan is converted into or continued as a Term SOFR Loan, a Term CORRA Loan, a EURIBOR Loan or
a Bank Bill Rate Loan, as applicable, or is converted into a Daily SOFR Loan.
“Control Agreement”
has the meaning specified in Section 7.17(a).
“Corporations Act”
means the Corporations Act 2001 (Cwlth) of Australia.
“CORRA”
means the Canadian Overnight Repo Average administered and published by the Bank of Canada (or any successor administrator).
“Covenant Trigger”
has the meaning specified in Section 8.9.
“Covenant Trigger
Date” has the meaning specified in Section 8.9.
“Covenant Trigger
Period” has the meaning specified in Section 8.9.
“Covered Entity”
means any of the following:
(i) a
“covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
(ii) a
“covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
(iii) a
“covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Covered Party”
has the meaning specified in Section 14.28.
“CRA” means
the Canada Revenue Agency.
“CRD IV”
means (a) Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements
for credit institutions and investment firms; and (b) Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013
on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms
“Credit Facilities”
means the revolving credit, swingline and letter of credit facilities provided for by this Agreement (which are the Canadian Credit Facilities,
the European Credit Facility, the ROW Credit Facilities, the U.S. Credit Facilities and the ANZ Credit Facilities).
“Credit Party”
has the meaning specified in Section 13.24.
“CRR” shall
mean Regulation (EU) no. 575/2013 of June 26, 2013 on prudential requirements for credit institutions and investment firms and amending
regulation (EU) no. 648/2012.
“Daily Simple SOFR”
means, for any date of determination, SOFR published on the day preceding such date corresponding to the period set forth for a Notice
of Borrowing deadline applicable to such Loan specified in Section 2.2(a) by the SOFR Administrator on the Federal Reserve
Bank of New York’s website (or any successor source); provided, however, that if such date is not a U.S. Government
Securities Business Day, then Daily Simple SOFR means such rate that applied on the first U.S. Government Securities Business Day immediately
prior thereto.
“Daily Simple SONIA”
means, for any day, an interest rate per annum equal to SONIA for (a) if such day is a Business Day, such day or (b) if such
day is not a Business Day, the Business Day immediately preceding such day; provided that if such rate as determined above is less
than zero, such rate shall be deemed to be zero. Any change in Daily Simple SONIA due to a change in SONIA shall be effective from and
including the effective date of such change in SONIA without notice to the Borrowers.
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“Daily SOFR”
means the rate per annum equal to Daily Simple SOFR determined for any day pursuant to the definition thereof. Any change in Daily SOFR
shall be effective from and including the date of such change without further notice. If the rate as so determined would be less than
zero, such rate shall be deemed to be zero for purposes of this Agreement.
“Daily SOFR Loan”
means a Loan that bears interest at a rate based on Daily SOFR.
“Deed of Hypothec”
means that certain Deed of Hypothec To Secure Payment of Bonds dated March 31, 2015, by UR Canada in favor of the Agent, for the
benefit of the Canadian Secured Parties, as amended by a deed of supplemental hypothec dated February 14, 2019, and a further deed
of supplemental hypothec dated as of, on or about the Agreement Date, and as further amended, amended and restated, modified or supplemented
from time to time.
“Default”
means any event or circumstance which, with the giving of notice, the lapse of time, or both, would (if not cured, waived, or otherwise
remedied during such time) constitute an Event of Default.
“Default Notice”
has the meaning specified in Section 10.1(d).
“Default Rate”
means a fluctuating per annum interest rate at all times equal to the sum of (a) the otherwise applicable Interest Rate plus (b) 2%
per annum. Each Default Rate shall be adjusted simultaneously with any change in the applicable Interest Rate.
“Default Right”
has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as
applicable.
“Defaulting Lender”
means any Lender that (a) has failed to perform any of its funding obligations hereunder, including in respect of its Loans or its
participations in respect of Letters of Credit or Swingline Loans, within one Business Day of the date required to be funded by it
hereunder, unless, with respect to the funding of any Loan, such Lender notifies the Agent and the Borrowers’ Agent in writing that
such failure is the result of such Lender’s good faith determination that one or more conditions precedent to funding of such Loan
has not been satisfied (each of which conditions precedent, together with any applicable default, shall be specifically identified in
such writing), (b) has notified any Borrower or the Agent that it does not intend to comply with its funding obligations or has made
a public statement to that effect with respect to its funding obligations hereunder or under other agreements in which it commits to extend
credit, (c) has failed, within three Business Days after request by the Agent or the Borrowers’ Agent, to confirm in a
manner satisfactory to the Agent or the Borrowers’ Agent, as the case may be, that it will comply with its funding obligations (provided
that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such confirmation
in writing by the Agent and the Borrowers’ Agent), or (d) has, or has a direct or indirect parent company that (i) has
become the subject of a proceeding under any of the federal Bankruptcy Code, the BIA, the CCAA, the Winding-up and Restructuring Act
(Canada), the Canada Deposit Insurance Corporation Act (Canada), the French Insolvency Laws or under any other state, provincial,
territorial, federal or other applicable jurisdictional bankruptcy or insolvency act or law, now or hereafter existing, (ii) has
had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization
or liquidation of its business or a custodian appointed for it, (iii) has taken any action in furtherance of, or indicated its consent
to, approval of or acquiescence in any such proceeding or appointment, (iv) is being subject to a forced liquidation or any Person
that directly or indirectly controls such Lender is being subject to a forced liquidation, (v) is making a general assignment for
the benefit of creditors or otherwise being adjudicated as, or determined by any Governmental Authority having regulatory authority over
such Lender or its assets to be, insolvent or bankrupt or subject to a resolution regime or (vi) has become the subject of a Bail-In
Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity
interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority.
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“Delaware Divided
LLC” means any Delaware LLC which has been formed upon the consummation of a Delaware LLC Division.
“Delaware LLC”
means any limited liability company organized or formed under the laws of the State of Delaware.
“Delaware LLC Division”
means the statutory division of any Delaware LLC into two or more Delaware LLCs pursuant to Section 18-217 of the Delaware Limited
Liability Company Act.
“Designated Bank
Products Obligations” means all obligations and liabilities of any Borrower or other Obligor in respect of Bank Products, except
for any Bank Product for which the provider of such Bank Product and the applicable Obligor have agreed in a writing delivered to the
Agent that the obligations and liabilities of the applicable Obligor under such Bank Product shall not be deemed “Designated Bank
Products Obligations” for purposes of this Agreement.
“Designated Non-cash
Consideration” means the Fair Market Value of non-cash consideration received by Holdings or one of its Restricted Subsidiaries
in connection with an Asset Disposition as determined in good faith by the Company.
“Designated Obligations”
means all Obligations of the Borrowers with respect to (a) principal of and interest on the Loans, (b) unreimbursed drawings
under Letters of Credit, and (c) Unused Line Fees and Letter of Credit Fees.
“Designation Date”
has the meaning specified in Section 2.6(f).
“Disqualified Lender”
means (a) any competitor of Holdings or any of its Subsidiaries, identified in writing by the Borrowers’ Agent to the Agent
from time to time, (b) such other Persons identified in writing by the Borrowers’ Agent to the Agent on or prior to the Agreement
Date and (c) in the case of any Person under clauses (a) and (b), any of its Affiliates (other than any bona
fide debt funds) that are either (i) readily identifiable or (ii) identified in writing to the Agent by the Borrowers’
Agent from time to time. The Agent shall provide a current list of Disqualified Lenders under clauses (a) and (b) and,
to the extent identified in writing to the Agent by the Borrowers’ Agent, clause (c) to any Lender (other than
a Disqualified Lender) upon written request for such list from such Lender.
“Disqualified Stock”
means (i) that portion of any Capital Stock which, by its terms (or by the terms of any security into which it is convertible or
for which it is exchangeable at the option of the holder thereof), or upon the happening of any event (other than an event which would
constitute a Change of Control or as a result of a sale of assets), matures (excluding any maturity as the result of an optional redemption
by the issuer thereof) or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable at the sole
option of the holder thereof (except, in each case, upon the occurrence of a Change of Control or as a result of a sale of assets) on
or prior to the six-month anniversary of the latest maturity date with respect to any of the Obligations then applicable hereunder at
the date of issuance of such Disqualified Stock and (ii) any other Capital Stock (other than common equity) designated by the Borrowers’
Agent in writing to the Agent as Disqualified Stock.
“Distribution”
means (a) the payment or making of any dividend or other distribution of property in respect of capital stock or other equity interests
(or any options or warrants for, or other rights with respect to, such stock or other equity interests) of any Person, other than distributions
in capital stock or other equity interests (or any options or warrants for such stock or other equity interests) of any class other than
Disqualified Stock, or (b) the direct or indirect redemption or other acquisition by any Person of any capital stock or other equity
interests (or any options or warrants for such stock or other equity interests) of such Person or any direct or indirect shareholder or
other equity holder of such Person.
“Documents”
means all “documents” as such term is defined in the UCC and, with respect to any document of a Canadian Obligor, all “documents
of title” as such term is defined in the PPSA, including bills of lading, warehouse receipts or other documents of title, now owned
or hereafter acquired by any Borrower, any Guarantor or any of their respective Subsidiaries.
25
“Dollar”
and “$” means dollars in the lawful currency of the United States. Unless otherwise specified, all payments under this
Agreement shall be made in Dollars.
“Domestic Subsidiary”
means any Subsidiary of Holdings other than a Foreign Subsidiary.
“DTTP Information”
has the meaning specified in Section 5.1(h)(ii).
“EEA Financial Institution”
means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of
an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in
clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary
of an institution described in clause (a) or (b) of this definition and is subject to consolidated supervision
with its parent.
“EEA Member Country”
means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority”
means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including
any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Eligible Assignee”
means (a) a commercial bank, commercial finance company or other asset-based lender, having total assets in excess of $2,000,000,000,
that extends credit or buys commercial loans in the ordinary course of business; (b) any Lender listed on the signature page of
this Agreement or that has become a Lender in accordance with the terms hereof; (c) any Affiliate or branch of any Lender; (d) any
Approved Fund; and (e) any other Person reasonably acceptable to the Agent; provided that, in any event, “Eligible Assignee”
shall not include (i) any natural Person, (ii) with respect to any Commitments or Loans (other than Incremental ABL Term Loans),
Holdings or any Borrower or any Affiliate thereof, (iii) any Disqualified Lender (other than any Disqualified Lender otherwise agreed
to by the Borrowers’ Agent in a writing delivered to the Agent), (iv) any Defaulting Lender or (v) any Person that is
not a PMP Lender.
“Eligible Merchandise
and Consumables Inventory” means Merchandise and Consumables Inventory of the Secured Obligors which the Agent in the exercise
of its Reasonable Credit Judgment determines to be Eligible Merchandise and Consumables Inventory; provided that such Merchandise
and Consumables Inventory:
(a) is
owned by a Secured Obligor which has good, valid and marketable title thereto;
(b) is
not damaged or defective, in each case, in any material respect;
(c) is
not obsolete, unmerchantable or slow moving;
(d) conforms
in all material respects to the warranties and representations set forth in this Agreement and the other Loan Documents pertaining to
Merchandise and Consumables Inventory and Collateral or Inventory in general;
(e) is
at all times subject to the Agent’s duly perfected first priority (other than with respect to any Permitted Priority Borrowing Base
Liens) security interest and subject to no other Lien except a Permitted Lien; and
(f) is
not outside, with respect to the U.S. Borrowing Base only, the continental United States or, with respect to the Canadian Borrowing
Base only, Canada or (if such Merchandise and Consumables Inventory is not Titled Goods) the continental United States, and is not consigned
to any Person;
and provided, further, that “Eligible
Merchandise and Consumables Inventory” shall in no event include (a) fuel or (b) extraneous and unboxed Inventory held
by a Secured Obligor.
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If any Merchandise and Consumables
Inventory ceases to be Eligible Merchandise and Consumables Inventory, then such Merchandise and Consumables Inventory shall promptly
be excluded from the calculation of Eligible Merchandise and Consumables Inventory. Notwithstanding the foregoing, the Agent may, from
time to time, in the exercise of its Reasonable Credit Judgment, on not less than 10 Business Days’ prior notice to the Borrowers’
Agent, change the criteria for Eligible Merchandise and Consumables Inventory as reflected on the Borrowing Base Certificate based on
either (i) an event, condition or other circumstance arising after the Closing Date or (ii) an event, condition or other circumstance
existing on the Closing Date to the extent the Agent had no knowledge thereof on or prior to the Closing Date, in either case under clause (i) or
(ii), which adversely affects, or would reasonably be expected to adversely affect, Eligible Merchandise and Consumables Inventory
in any material respect as determined by the Agent in the exercise of its Reasonable Credit Judgment. Any such change in criteria shall
have a reasonable relationship to the event, condition or other circumstance that is the basis for such change. Upon delivery of the notice
of such change pursuant to the foregoing sentence, the Agent shall be available to discuss the proposed change, and the applicable Secured
Obligor may take such action as may be required so that the event, condition or circumstance that is the basis for such change no longer
exists, in a manner and to the extent reasonably satisfactory to the Agent in the exercise of its Reasonable Credit Judgment.
“Eligible Rental
Equipment” means the Rental Equipment of the Secured Obligors that (x) is held for sale or rent by a Secured Obligor in
the ordinary course of its business, (y) is being rented by a Secured Obligor as lessor in the ordinary course of its business or
(z) is Titled Goods consisting of motor vehicles used by a Secured Obligor in its business, other than any Rental Equipment of a
Secured Obligor:
(a) that
is not classified as “rental equipment” on such Secured Obligor’s balance sheet (other than (i) new Rental Equipment
held for sale that is classified as “inventory” on Holdings’ balance sheet and (ii) Titled Goods consisting of
motor vehicles used by a Secured Obligor in its business);
(b) that
is not owned by such Secured Obligor free and clear of all Liens and rights of any other Person (including the rights of a purchaser that
has made progress payments and the rights of a surety that has issued a bond to assure performance by such Secured Obligor with respect
to that Equipment), except the Liens in favor of the Agent, on behalf of itself and the other Secured Parties (and other than (i) Permitted
Priority Liens and (ii) Permitted Liens permitted under Section 8.2(c) or Section 8.2(ii));
(c) that
(i) is not located in (A) if such Secured Obligor is a U.S. Obligor, a state of the United States of America or the District
of Columbia or (B) if such Secured Obligor is a Canadian Obligor, a province or territory of Canada or (in the case such Rental Equipment
is not Titled Goods) a state of the United States of America or the District of Columbia; or (ii) is stored by a Secured Obligor
at a location that is leased by such Secured Obligor from a third party, unless (A) the Agent has given its consent thereto, (B) a
reasonably satisfactory landlord waiver has been delivered to the Agent or (C) a Rent Reserve has been established with respect thereto;
(d) that
is covered by a negotiable document of title, unless such document has been delivered to the Agent with all necessary endorsements, free
and clear of all Liens except those in favor of the Agent and the applicable Secured Parties (and other than any bailee, warehouseman,
landlord or similar non-consensual Liens having priority by operation of law);
(e) that
is excess, obsolete, unsaleable, unrentable, damaged in any material respect or unfit for sale or rent;
(f) that
is not held for sale, rental or use in the ordinary course of business of such Secured Obligor;
(g) that
is not subject to a first priority Lien in favor of the Agent on behalf of itself and the applicable Secured Parties (other than with
respect to any Permitted Priority Borrowing Base Liens); provided that it shall not be necessary to identify the vehicle numbers
with respect to Rental Equipment located in Canada in any PPSA filings as a prerequisite for such Rental Equipment to constitute “Eligible
Rental Equipment” hereunder;
27
(h) as
to which there are any breaches of any of the representations or warranties pertaining to Rental Equipment set forth in any of the Loan
Documents in any material respect; or
(i) that
does not meet in all material respects the applicable standards pertaining to Rental Equipment imposed by any Governmental Authority having
regulatory authority over such Rental Equipment.
If any Rental Equipment at
any time ceases to be Eligible Rental Equipment, such Rental Equipment shall promptly be excluded from the calculation of Eligible Rental
Equipment. Notwithstanding the foregoing, the Agent may, from time to time, in the exercise of its Reasonable Credit Judgment, on not
less than 10 Business Days’ prior notice to the Borrowers’ Agent, change the criteria for Eligible Rental Equipment as
reflected on the Borrowing Base Certificate based on either (i) an event, condition or other circumstance arising after the Closing
Date or (ii) an event, condition or other circumstance existing on the Closing Date to the extent the Agent had no knowledge thereof
on or prior to the Closing Date, in either case under clause (i) or (ii), which adversely affects, or would reasonably
be expected to adversely affect, Eligible Rental Equipment in any material respect as determined by the Agent in the exercise of its Reasonable
Credit Judgment. Any such change in criteria shall have a reasonable relationship to the event, condition or other circumstance that is
the basis for such change. Upon delivery of the notice of such change pursuant to the foregoing sentence, the Agent shall be available
to discuss the proposed change, and the applicable Secured Obligor may take such action as may be required so that the event, condition
or circumstance that is the basis for such change no longer exists, in a manner and to the extent reasonably satisfactory to the Agent
in the exercise of its Reasonable Credit Judgment.
“Environmental Laws”
means all applicable federal, state, provincial or local or foreign laws, statutes, common law duties, rules, regulations, ordinances
and codes, together with all administrative orders, enforceable requirements, judgments, injunctions, licenses, authorizations, consents,
registrations, approvals, permits of, and agreements with, any Governmental Authority, in each case in connection with (i) environmental
matters (including Releases of Contaminants) or (ii) to the extent relating to exposure to Contaminants, health matters.
“Equipment”
means all of each Obligor’s and each of its Subsidiary’s now owned or hereafter acquired machinery, equipment, furniture,
furnishings, fixtures, and other tangible personal property (except Inventory), including embedded software, service and delivery vehicles
with respect to which a certificate of title has been issued, aircraft, dies, tools, jigs, molds and office equipment, as well as all
of such types of property leased by any Obligor or any of its Subsidiaries, and all of each Obligor’s and each of its Subsidiary’s
rights and interests with respect thereto under such leases (including options to purchase); together with all present and future additions
and accessions thereto, replacements therefor, component and auxiliary parts and supplies used or to be used in connection therewith,
and all substitutes for any of the foregoing, and all manuals, drawings, instructions, warranties and rights with respect thereto; wherever
any of the foregoing is located.
“Equipment Securitization
Transaction” means any sale, assignment, pledge or other transfer (a) by the Company or any Subsidiary of the Company of
rental fleet equipment, (b) by any ES Special Purpose Vehicle of leases or rental agreements between the Company and/or any Subsidiary
of the Company, as lessee, on the one hand, and such ES Special Purpose Vehicle, as lessor, on the other hand, relating to such rental
fleet equipment and lease receivables arising under such leases and rental agreements and (c) by the Company or any Subsidiary of
the Company of any interest in any of the foregoing, together in each case with (i) any and all proceeds thereof (including all collections
relating thereto, all payments and other rights under insurance policies or warranties relating thereto, all disposition proceeds received
upon a sale thereof, and all rights under manufacturers’ repurchase programs or guaranteed depreciation programs relating thereto),
(ii) any collection or deposit account relating thereto and (iii) any collateral, guarantees, credit enhancement or other property
or claims supporting or securing payment on, or otherwise relating to, any such leases, rental agreements or lease receivables.
“Equivalent Amount”
means, on any date, the amount of Dollars into which an amount of Euros, Sterling, Cdn. Dollars, Australian Dollars, New Zealand Dollars
or any other Alternative Currency, as applicable, may be converted or the amount of Euros, Sterling, Cdn. Dollars, Australian Dollars,
New Zealand Dollars or any other Alternative Currency, as applicable, into which an amount of Dollars may be converted, in any case, (a) at
the exchange rate reported by Bloomberg (or other commercially available source designated by the Agent from time to time) as of approximately
12:00 noon, New York City time, or (b) if such report is unavailable for any reason, the spot rate for the purchase of the first
currency with the second currency as in effect during the preceding business day in the Agent’s principal foreign exchange trading
office for the first currency, on such date, in each case rounded to the nearest unit of the applicable currency, with 0.5 of a unit being
rounded upward.
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“ERISA”
means the Employee Retirement Income Security Act of 1974, as the same may be amended from time to time and any final regulations promulgated
and the rulings issued thereunder.
“ERISA Affiliate”
means any trade or business (whether or not incorporated) under common control with any Borrower within the meaning of Section 414(b) or
(c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of
the Code).
“ERISA Event”
means (a) a Reportable Event with respect to a Pension Plan; (b) any failure by a Pension Plan to satisfy the minimum funding
standard (within the meaning of Section 412 of the Code or Section 302 of ERISA) applicable to such Pension Plan, in each case
whether or not waived; (c) the filing pursuant to Section 412(c) of the Code or Section 302(c) of ERISA, of an
application for a waiver of the minimum funding standard with respect to a Pension Plan; (d) a determination that a Pension Plan
is in “at-risk” status (as defined in Section 303(i)(4) of ERISA or Section 430(i)(4) of the Code); (e) a
withdrawal by any Borrower or ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it
was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations which is treated as such
a withdrawal under Section 4062(e) of ERISA; (f) a complete or partial withdrawal by any Borrower or ERISA Affiliate from
a Multi-employer Plan; (g) the filing of a notice of intent to terminate a Pension Plan under Section 4041(c) of ERISA
or a Pension Plan referred to in clause (a) of the definition thereof, the treatment of a Pension Plan amendment as a termination
under Section 4041(c) of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or the receipt by
any Borrower or any ERISA Affiliate of notice of the treatment of a Multi-employer Plan amendment as a termination under Section 4041A
of ERISA or of notice of the commencement of proceedings by the PBGC to terminate a Multi-employer Plan; (h) the occurrence of an
event or condition which might reasonably be expected to constitute grounds under Section 4042 of ERISA for the termination of, or
the appointment of a trustee to administer, any Pension Plan referred to in clause (a) of the definition thereof or Multi-employer
Plan; (i) the Borrowers or any of their Subsidiaries engaging in a non-exempt “prohibited transaction” with respect to
which any Borrower or any of its Subsidiaries is a “disqualified person” (within the meaning of Section 4975 of the Code),
or with respect to which such Borrower or any such Subsidiary could otherwise be liable; or (j) the imposition of any material liability
under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon any Borrower
or ERISA Affiliate.
“ES Special Purpose
Vehicle” means a trust, bankruptcy remote entity or other special purpose entity which is a Subsidiary of the Company or Holdings
(or, if not a Subsidiary of the Company or Holdings, the common equity of which is wholly owned, directly or indirectly, by the Company
or Holdings) and which is formed for the purpose of, and engages in no material business other than, acting as a lessor, issuer or depositor
in an Equipment Securitization Transaction (and, in connection therewith, owning the rental fleet equipment, leases, rental agreements,
lease receivables, rights to payment and other interests, rights and assets described in the definition of “Equipment Securitization
Transaction”, and pledging or transferring any of the foregoing or interests therein).
“EU Bail-In Legislation
Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in
effect from time to time.
“EU Insolvency Regulation”
means the Council of the European Union Regulation 2015/848 on insolvency proceedings (recast).
“EURIBOR”
means, for any Interest Period, the rate per annum equal to the Euro Interbank Offered Rate, as published on the applicable Reuters screen
page (or such other commercially available source providing such quotations as may be designated by the Agent from time to time)
on the day that is two TARGET Days preceding the first day of such Interest Period with a term equivalent to such Interest Period; provided
that if EURIBOR determined in accordance with this definition would otherwise be less than zero, EURIBOR shall be deemed zero for purposes
of this Agreement.
“EURIBOR Loan”
means a Loan during any period in which it bears interest based on EURIBOR.
29
“Euro”
or “€” means the single lawful currency of the Participating Member States.
“European Borrowers”
has the meaning specified in the introductory paragraph to this Agreement. As
of the Amendment No. 1 Effective Date, the European Borrowers are United Rentals S.A.S., United Rentals International B.V., United
Rentals B.V., United Rentals GmbH and United Rentals (Belgium) B.V.
“European Credit
Facility” means the swingline facility provided for by this Agreement extended to the European Borrowers.
“European Obligations”
means, with respect to the Indebtedness of the European Borrowers under the Loan Documents, any principal, premium (if any), interest
(including interest accruing on or after the filing of any petition in bankruptcy or for reorganization relating to any European Borrower
whether or not a claim for post-filing interest is allowed in such proceedings), fees, charges, expenses, reimbursement obligations, other
monetary obligations of any European Borrower of any nature and all other amounts payable by any European Borrower under the Loan Documents
or in respect thereof; provided that, “European Obligations” shall in any event include Designated Bank Products Obligations
of any European Borrower; provided, further, that “European Obligations” shall not include any Canadian Obligations,
ROW Obligations, U.S. Obligations or ANZ Obligations.
“European Swingline
Bank” means Bank of America Europe Designated Activity Company, acting through itself or through one or more branches or Affiliates
in its capacity as a Swingline Lender hereunder; provided that any loans made to a French Borrower shall be made by a financial
institution authorized to make loans in France (a) under European Union passport rules or (b) directly by the ACPR.
“European Swingline
Commitment” means the commitment of the European Swingline Lender to make loans pursuant to Section 2.3(d).
“European Swingline
Lender” means the European Swingline Bank or a branch or Affiliate of the European Swingline Bank or any successor financial
institution agreed to by the Borrowers’ Agent and the Agent, in its capacity as provider of European Swingline Loans; provided
that any European Swingline Lender providing loans hereunder to a French Borrower is (a) a French licensed credit institution (établissement
de credit) or a financial institution authorized to make loans in France (i) under European Union passport rules or (ii) directly
by the ACPR and (b) has opened an account or accounts, each of which is located outside France, for the purpose of making or receipt
of any advance, Loan or payment under the European Credit Facility to, from or for the benefit of any French Borrower.
“European Swingline
Loan” and “European Swingline Loans” have the meanings specified in Section 2.3(d).
“European Swingline
Loan Minimum” means (a) in the case of a European Swingline Loan denominated in Dollars, $100,000, (b) in the case
of a European Swingline Loan denominated in Euro, €100,000 and (c) in the case of a European Swingline Loan denominated in Sterling,
£100,000.
“European Swingline
Loan Multiple” means (a) in the case of a European Swingline Loan denominated in Dollars, $50,000, (b) in the case
of a European Swingline Loan denominated in Euro, €50,000 and (c) in the case of a European Swingline Loan denominated in Sterling,
£50,000.
“European Swingline
Sublimit” has the meaning specified in Section 2.3(d).
“Event of Default”
has the meaning specified in Section 10.1.
“Exchange Act”
means the Securities Exchange Act of 1934 and regulations promulgated thereunder.
30
“Excluded Subsidiary”
means any (a) Subsidiary of a Foreign Subsidiary other than any Canadian or U.S. Subsidiary of a Canadian Subsidiary, (b) Unrestricted
Subsidiary, (c) Immaterial Subsidiary, (d) Domestic Subsidiary or Canadian Subsidiary that, at the time such Subsidiary becomes
a Restricted Subsidiary (and for so long as such restriction or any replacement or renewal thereof is in effect), is prohibited by any
applicable contractual obligation or Requirement of Law from guaranteeing or granting Liens to secure the Obligations hereunder or if
guaranteeing or granting Liens to secure the Obligations hereunder would require governmental (including regulatory) consent, approval,
license or authorization unless such consent, approval, license or authorization has been received, (e) joint venture or Subsidiary
that is not a Wholly Owned Subsidiary (it being agreed that it shall be a condition for any such Subsidiary that was a Wholly Owned Subsidiary
to become an Excluded Subsidiary that either (i) at the time it became a non-Wholly Owned Subsidiary none of its assets comprised
part of the Borrowing Base or (ii) at the time it becomes (after giving effect to it becoming) an Excluded Subsidiary no Out-of-Formula
Condition would exist), (f) Subsidiary formed solely for the purpose of merging or amalgamating with another Person in connection
with a Permitted Acquisition or other Permitted Investment by the Company or another Obligor, (g) captive insurance subsidiary or
not-for-profit subsidiary or (h) Domestic Subsidiary or Canadian Subsidiary with respect to which, in the reasonable judgment of
the Agent (or, in the case of adverse tax consequences, the Borrowers’ Agent) (confirmed in writing by notice to the Borrowers’
Agent or the Agent, as applicable), the cost or other consequences (including any adverse tax consequences) of providing a Guarantee of
the Obligations hereunder shall be excessive in view of the benefits to be obtained by the Lenders therefrom; provided that any
Subsidiary that fails to meet the requirement in clause (c) as of the last day of the most recent four consecutive Fiscal
Quarters for which consolidated financial statements of the Consolidated Parties are available shall continue to be deemed an Excluded
Subsidiary hereunder until the date that is 60 days following the date on which such financial statements were required to be delivered
pursuant to Section 7.2 with respect to such period; provided, further, that in no event shall the Company be
an Excluded Subsidiary.
“Excluded Swap Obligation”
means, with respect to any Guarantor (in its capacity as a guarantor), any Swap Obligation if, and to the extent that, all or a portion
of the Guarantee of such Guarantor of, or the grant by such Guarantor of a security interest to secure, such Swap Obligation (or any Guarantee
thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission
(or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for any reason to constitute
an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder (determined after
giving effect to any keepwell, support or other agreement for the benefit of such Guarantor) at the time the Guarantee of such Guarantor
or the grant of such security interest becomes effective with respect to such Swap Obligation. If a Swap Obligation arises under an agreement
governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for
which such Guarantee or security interest is or becomes illegal.
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“Excluded Taxes”
means, in the case of each Lender and the Agent and each other recipient of any payment to be made on account of the Obligations, (a) Taxes
(including income Taxes, capital or franchise Taxes or other Taxes on net income) as are imposed on or measured by the Agent’s,
such Lender’s or such recipient’s overall net income or capital in the jurisdiction (whether federal, state or local and including
any political subdivision thereof) under the laws of which the Agent or such Lender or such recipient, as the case may be, is organized
or maintains a lending office from which the Loans are made or does business, (b) any branch profits Taxes imposed by the United
States of America or any similar Tax imposed by any other jurisdiction in respect of which the applicable recipient, as the case may be,
is subject to income or franchise Taxes imposed on (or measured by) its net income, (c) Taxes imposed on or measured by net income
(however denominated), franchise Taxes, and branch profits Taxes that are Other Connection Taxes, (d) any U.S. federal withholding
Tax, withholding Taxes pursuant to the laws of the Netherlands, the United Kingdom, France, Germany or Puerto Rico or withholding Tax
payable under Part XIII of the Income Tax Act (Canada) that is imposed on amounts payable to or for the account of a Lender, in each
case, with respect to an applicable interest in an Obligation pursuant to a law in effect on the date on which (i) such Lender becomes
a party hereto (other than pursuant to any assignment request by the Borrowers under Section 5.9 or Section 12.1(b))
or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 5.1, amounts
with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or
to such Lender immediately before it changed its lending office (and in each case assuming the completion of any necessary procedural
formalities), (e) any withholding Tax that arises (i) in the United Kingdom in respect of an advance to a U.K. Borrower and
is attributable to a Lender’s failure to comply with Section 5.1(h) or (ii) is attributable to a Lender’s
failure to comply with Section 5.1(f), (f) any Canadian federal withholding Tax imposed on amounts payable to or for
the account of a Lender as a consequence of (i) the Lender not dealing at arm’s length (within the meaning of the Income
Tax Act (Canada)) with the payer at the time of such payment, (ii) the Lender being, at any time, a “specified non-resident
shareholder” (within the meaning of subsection 18(5) of the Income Tax Act (Canada)) of any Canadian Borrower, or, at
any time, not dealing at arm’s length (within the meaning of the Income Tax Act (Canada)) with a “specified shareholder”
(within the meaning of subsection 18(5) of the Income Tax Act (Canada)) of any Canadian Borrower or (iii) any Canadian
Borrower being a “specified entity” (as defined in subsection 18.4(1) of the Income Tax Act (Canada)) in respect of a
Lender, other than, in the case of subclauses (i) to (iii) above, where the non-arm’s length relationship arises, where
the Lender is a specified shareholder of a Canadian Borrower or not dealing at arm’s length with such a specified shareholder, or
to any Canadian Borrower being a specified entity of a Lender, by virtue of the Lender having become a party to, received or perfected
a security interest under or enforced any rights under, any Loan Document, (g) any withholding Taxes imposed under FATCA, (h) any
Taxes imposed by France on amounts payable to a European Swingline Lender (or the Agent) if such Taxes are imposed solely because this
payment is made to (A) an account opened in the name of or for the benefit of that European Swingline Lender (or the Agent) in a
financial institution situated in a Non-Cooperative Jurisdiction or (B) a European Swingline Lender (or the Agent) incorporated,
domiciled, established or acting through a lending office (or the office of the Agent) situated in a Non-Cooperative Jurisdiction, (i) VAT,
(j) any Australian Withholding Tax imposed as a result of a Lender being an Offshore Associate of any Australian Borrower in relation
to the receipt of a payment, (k) any Tax under the laws of the Netherlands to the extent it becomes payable by reason of a Lender
or Agent having a substantial interest (aanmerkelijk belang) in the Borrower within the meaning of the Dutch income tax act 2001
(Wet inkomstenbelasting 2001), (l) any Tax payable by a Lender, Agent, Bank or any of their respective affiliates on the basis
of or in relation to some or all of its assets, its balance sheet or capital base or equity or any part of it or its liabilities or minimum
regulatory capital or any combination thereof, including the Dutch bank levy as set out in the bank levy act (Wet bankenbelasting)
and any tax in any jurisdiction levied on a similar basis or for a similar purpose and imposed in any jurisdiction by reference to the
assets and liabilities of a financial institution or other entity carrying out financial transactions, in each case in force (and the
rates) as at the date of this Agreement and (m) any Dutch withholding tax imposed as a result of the Dutch Withholding Tax Act 2021
(Wet Bronbelasting 2021) being applicable as a result of a Lender having a qualifying interest (kwalificerend belang) in
any Borrower organized under the laws of the Netherlands.
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“Existing Commitment”
has the meaning specified in Section 2.6(a).
“Existing Letters
of Credit” has the meaning specified in Section 1.10(b).
“Existing Loan Agreement”
has the meaning specified in the recitals to this Agreement.
“Existing Loans”
has the meaning specified in Section 2.6(a).
“Existing Public
Debt” means the 3¾% Senior Secured Notes, the 3⅞% Senior Notes, the 3⅞% Senior Secured Notes, the 4% Senior
Notes, the August 2017 4⅞% Senior Notes, the September 2017 4⅞% Senior Notes, the 5¼% Senior Notes, the
5½% Senior Notes, the 6% Senior Secured Notes and the 6⅛% Senior Notes.
“Existing Securitization
Facility” means the receivables facility established pursuant to the Third Amended and Restated Receivables Purchase Agreement,
dated as of September 24, 2012, among United Rentals Receivables LLC II, as seller, Holdings, as collection agent, Liberty Street
Funding LLC, as a purchaser, Gotham Funding Corporation, as a purchaser, GTA Funding LLC, as a purchaser, Reliant Trust, as a purchaser,
PNC Bank, National Association, as purchaser agent for itself and as a bank, MUFG Bank, Ltd., as a purchaser agent and as a bank,
Truist Bank, as a purchaser agent for itself and as a bank, The Toronto-Dominion Bank, as a purchaser agent for itself and as a bank,
Regions Bank, as a purchaser agent for itself and as a bank, and The Bank of Nova Scotia, as administrative agent, as a bank and as a
purchaser agent, and the other Transaction Documents under and as defined therein.
“Existing Tranche”
has the meaning specified in Section 2.6(a).
“Exiting Lender”
has the meaning specified in Section 1.10(c).
“Extended Commitments”
has the meaning specified in Section 2.6(a).
“Extended Loans”
has the meaning specified in Section 2.6(a).
“Extending Lender”
has the meaning specified in Section 2.6(b).
“Extension Amendment”
has the meaning specified in Section 2.6(c).
33
“Extension Date”
has the meaning specified in Section 2.6(d).
“Extension Election”
has the meaning specified in Section 2.6(b).
“Extension Request”
has the meaning specified in Section 2.6(a).
“Fair Market Value”
means, with respect to any asset, the fair market value of such asset as determined by the Company in good faith, whose determination
shall be conclusive.
“FATCA”
means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version if substantively comparable
and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements
entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, rules or practices adopted
pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and implementing such Sections of the
Code.
“FCPA”
means the Foreign Corrupt Practices Act of 1977.
“Federal Funds Rate”
means, for any day, the rate per annum equal to (a) the weighted average of interest rates on overnight federal funds transactions
with members of the Federal Reserve System on such day (or on the preceding Business Day, if such day is not a Business Day), as published
by the Federal Reserve Bank of New York on the next Business Day; or (b) if no such rate is published on the next Business Day, the
average rate (rounded upward to the next 1/100th of 1%) charged to the U.S. Bank on such day on such transactions, as determined by the
Agent.
“Federal Reserve
Board” means the Board of Governors of the Federal Reserve System or any successor thereto.
“Fee Letter”
means one or more fee or engagement letters among Bank of America, N.A. and/or an Arranger, Holdings and/or any Borrower, with respect
to the payment of certain fees in connection with this Agreement.
“Financial Statements”
means, according to the context in which it is used, the financial statements referred to in Sections 6.5 and 7.2.
“Fiscal Quarter”
means the period commencing on January 1 in any Fiscal Year and ending on the next succeeding March 31, the period commencing
on April 1 in any Fiscal Year and ending on the next succeeding June 30, the period commencing on July 1 in any Fiscal
Year and ending on the next succeeding September 30, or the period commencing on October 1 in any Fiscal Year and ending on
the next succeeding December 31, as the context may require.
“Fiscal Year”
means Holdings’, the Borrowers’, the Guarantors’ and their Subsidiaries’ fiscal year for financial accounting
purposes. As of the Agreement Date, the current Fiscal Year of Holdings, the Obligors and their Subsidiaries will end on December 31,
2025.
“Fitch”
means Fitch Ratings, Inc. and any successor to its rating agency business.
“Fixed Charge Coverage
Ratio” means the ratio of:
(a) (i) Consolidated
EBITDA for the most recent period of four consecutive Fiscal Quarters for which financial information in respect thereof is available,
minus, (ii) without duplication, the sum of the unfinanced portion of all Capital Expenditures of Holdings and its Subsidiaries
for such period (excluding any Capital Expenditures made in an amount equal to (x) all or part of the proceeds of any casualty insurance,
condemnation or eminent domain or any amount otherwise reimbursed by third parties or (y) all or part of the proceeds of any sale
of assets of Holdings and its Subsidiaries (other than any Special Purpose Vehicle) during such period); to
34
(b) the
sum, without duplication, of (i) Consolidated Interest Expense for such period paid or payable in cash (other than (w) fees
and expenses associated with the amendment and restatement of the Existing Loan Agreement and any agency fees, (x) costs associated
with obtaining, or breakage costs in respect of, Hedge Agreements, (y) fees and expenses associated with any Permitted Acquisitions,
Permitted Investments, mergers, consolidations or amalgamations, the issuance of Capital Stock or the incurrence of Indebtedness, in each
case permitted under this Agreement (in each case, whether or not the applicable Permitted Acquisition, Permitted Investment, merger,
consolidation, amalgamation, issuance of Capital Stock or incurrence of Indebtedness is consummated) and (z) amortization of deferred
financing costs), net of interest income, plus (ii) the aggregate amount of Federal, state, local and foreign income, capital
or profits taxes, including foreign withholding taxes, expensed during such period to the extent paid in cash, in each case, of or by
Holdings and its Subsidiaries for such period (including any Distribution made to Holdings to permit Holdings to pay such taxes) plus
(iii) the aggregate principal amount of all regularly scheduled principal or amortization payments on Indebtedness for borrowed money
of Holdings and its Subsidiaries for such period paid or payable in cash (other than prepaid amounts, any payments in respect of Capital
Lease Obligations, payments due at maturity, payment in respect of intercompany debt or any payments with respect thereto paid in cash
from the proceeds of any refinancing thereof) plus (iv) (x) solely for purposes of determining compliance with the covenant
contained in Section 8.9, the aggregate amount of scheduled mandatory payments in cash on account of Disqualified Stock of
Holdings and its Restricted Subsidiaries (other than any Special Purpose Vehicle) (whether in the nature of dividends, redemption, repurchase
or otherwise) required to be made during such period (other than prepaid amounts, payments due at maturity or mandatory redemption or
an offer to purchase, or any payments with respect thereto paid in cash from the proceeds of any refinancing thereof) or (y) solely
for purposes of calculating Fixed Charge Coverage Ratio to meet any basket test or threshold, the aggregate amount of cash Distributions
described in clause (a) of the definition thereof made by Holdings during such period other than one such cash Distribution made
by Holdings during any four consecutive Fiscal Quarter period (provided that unless and until Holdings publicly announces that
it is commencing or intending to pay dividends on its common shares in cash prior to any time the Fixed Charge Coverage Ratio is calculated,
all cash Distributions shall be excluded from the calculation of the Fixed Charge Coverage Ratio (but, following any such announcement,
such cash Distributions shall be included in the calculation of the Fixed Charge Coverage Ratio to the extent otherwise required in accordance
with this clause (iv) without giving effect to this proviso); provided, further, that if subsequent to any announcement
described in the immediately preceding proviso, Holdings publicly announces that it is suspending, pausing, or no longer intending to
pay dividends on its common shares in cash prior to any time the Fixed Charge Coverage Ratio is calculated, then all cash Distributions
shall be excluded from such calculation of the Fixed Charge Coverage Ratio.
“Foreign Base Rate”
means (a) with respect to any ROW Swingline Loans or any European Swingline Loans, in each case that are funded outside the United
States, the Term SOFR Rate (in the case of ROW Swingline Loans or European Swingline Loans denominated in Dollars) or EURIBOR (in the
case of ROW Swingline Loans or European Swingline Loans denominated in Euros) for a one-month interest period as in effect on the first
day of the current calendar month, (b) with respect to any ANZ Swingline Loans denominated in Australian Dollars, for any day, the
per annum rate of interest (rounded upward to the next 1/100th of 1%) equal to the Reserve Bank of Australia’s “cash rate”
(or a comparable or successor rate approved by the Agent (acting reasonably)), determined by the Agent at or about 10:30 a.m. (Sydney
time) on such day, as published on the applicable Reuters screen page (or other commercially available source designated by the Agent
from time to time (acting reasonably)), and (c) with respect to any ANZ Swingline Loans denominated in New Zealand Dollars, for any
day, the per annum rate of interest (rounded upward to the nearest 1/100th of 1%) equal to the rate announced from time to time by the
Reserve Bank of New Zealand as the “official cash rate” (or a comparable or successor rate approved by the Agent (acting reasonably)),
determined by the Agent on such day; provided that (x) in no event shall the Foreign Base Rate be less than zero and (y) any
change in such rate shall take effect at the opening of business on the applicable Business Day.
“Foreign Borrowing
Participation” has the meaning specified in Section 2.10(a).
“Foreign Borrowing
Participation Fee” has the meaning specified in Section 2.10(f).
“Foreign Borrowing
Participation Settlement” has the meaning specified in Section 2.10(b)(i).
“Foreign Borrowing
Participation Settlement Amount” has the meaning specified in Section 2.10(b)(ii).
35
“Foreign Borrowing
Participation Settlement Date” has the meaning specified in Section 2.10(b)(i).
“Foreign Borrowing
Participation Settlement Period” has the meaning specified in Section 2.10(b)(i).
“Foreign Lender”
means a Lender that is not a U.S. Person.
“Foreign Subsidiary”
means any Subsidiary of Holdings that is formed under the laws of a jurisdiction other than a State of the United States or the District
of Columbia. For the avoidance of doubt, any Subsidiary of Holdings which is organized and existing under the Laws of Puerto Rico or any
other territory of the United States of America shall be a Foreign Subsidiary.
“Foreign Subsidiary
Holding Company” means any Domestic Subsidiary the primary assets of which consist of Capital Stock in (a) one or more
Foreign Subsidiaries or (b) one or more Foreign Subsidiary Holding Companies.
“French Borrower”
means any European Borrower organized under the laws of France.
“French Insolvency
Laws” means the EU Insolvency Regulation, the provisions of the Livre VI and other relevant provisions related thereto of the
French Code de commerce or similar debtor relief laws of France from time to time in effect.
“FSRA”
means the Financial Services Regulatory Authority and any Person succeeding to the functions thereof and includes the Chief Executive
Officer under such statute and any other Governmental Authority (succeeding to the functions thereof) and established or appointed by
the Financial Services Regulatory Authority of Ontario Act, 2016.
“Full Payment”
or “Full Payment of the Obligations” means (a) the payment in full in cash or immediately available funds (except
for (i) contingent indemnities and cost and reimbursement obligations, in each case, to the extent no claim has been made, (ii) Obligations
under Hedge Agreements that have been novated or collateralized, to the extent required by the terms thereof or as otherwise reasonably
acceptable to the applicable counterparty and the Agent and (iii) Cash Management Obligations and Designated Bank Products Obligations,
to the extent such Cash Management Obligations or Designated Bank Products Obligations, as the case may be, are not then due) of all Obligations
then outstanding, if any, (b) with respect to Letters of Credit outstanding, delivery of cash collateral or backstop letters of credit
in respect thereof in the manner and as otherwise required under Section 2.4(g) and (c) the termination or expiration
of all Commitments and any Refinancing Term Commitments.
“Funded Foreign Borrowing
Participation” means, with respect to any Participating Canadian Lender or Participating ROW Lender, in respect of any Canadian
Revolving Loans or ROW Revolving Loans, respectively, funded by Bank of America and subject to Section 2.10, (a) the
aggregate amount paid by such Participating Canadian Lender or Participating ROW Lender, as applicable, to Bank of America pursuant to
Section 2.10(b) in respect of such Participating Canadian Lender’s or Participating ROW Lender’s participation
in the principal amount of such Canadian Revolving Loans or ROW Revolving Loans, respectively, funded by Bank of America minus
(b) the aggregate amount paid to such Participating Canadian Lender or Participating ROW Lender, as applicable, by Bank of America
pursuant to Section 2.10(b) in respect of such Participating Canadian Lender’s or Participating ROW Lender’s
participation in the principal amount of such Canadian Revolving Loans or ROW Revolving Loans, respectively, funded by Bank of America,
excluding in each case any payments made in respect of interest accrued on such Canadian Revolving Loans or ROW Revolving Loans funded
by Bank of America. Bank of America’s Funded Foreign Borrowing Participation in any Canadian Revolving Loans or ROW Revolving Loans
funded by Bank of America shall be equal to the outstanding principal amount of such Canadian Revolving Loans or ROW Revolving Loans minus
the total Funded Foreign Borrowing Participation of all other Lenders therein.
“Funding Date”
means the date on which a Borrowing occurs.
“GAAP”
means generally accepted accounting principles in the United States of America as in effect from time to time, including those set forth
in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements
and pronouncements of the Financial Accounting Standards Board (or, if applicable in the case of the Canadian Subsidiaries, such generally
accepted accounting principles and practices set forth from time to time in Canada by Chartered Professional Accountants of Canada) or
in such other statements by such other entity as approved by a significant segment of the accounting profession, subject to Section 1.2(b).
36
“General Finance
Acquisition” means the acquisition by the Company of General Finance Corporation contemplated by the Agreement and Plan of Merger,
dated as of April 15, 2021, by and among the Company, UR Merger Sub VI Corporation and General Finance Corporation, as amended from
time to time.
“General Finance
Transactions” means (a) the General Finance Acquisition and (b) any other transactions contemplated in connection
with the General Finance Acquisition and any other financing transactions in connection with the General Finance Acquisition.
“General Intangibles”
means all of each Obligor’s now owned or hereafter acquired “general intangibles” as defined in the UCC or, with respect
to any General Intangible of a Canadian Obligor, an “intangible” as defined in the PPSA, choses in action and causes of action
and all other intangible personal property of each Obligor of every kind and nature (other than Accounts), including all contract rights,
payment intangibles, Proprietary Rights, corporate or other business records, inventions, designs, blueprints, plans, specifications,
computer software, customer lists, registrations, licenses, franchises, Tax refund claims, any funds which may become due to any Obligor
in connection with the termination of any Plan or other employee benefit plan or any rights thereto and any other amounts payable to any
Obligor from any Plan or other employee benefit plan, rights and claims against carriers and shippers, rights to indemnification, business
interruption insurance and proceeds thereof, property, casualty or any similar type of insurance and any proceeds thereof, proceeds of
insurance covering the lives of key employees on which any Obligor is beneficiary, rights to receive dividends, distributions, cash, Instruments
and other property in respect of or in exchange for pledged equity interests or Investment Property and any letter of credit, guarantee,
claim, security interest or other security held by or granted to any Obligor.
“Goods”
means all “goods” as defined in the UCC or, with respect to any goods of a Canadian Obligor, the PPSA, now owned or hereafter
acquired by any Obligor, wherever located, including embedded software to the extent included in “goods” as defined in the
UCC, and manufactured homes.
“Governmental Authority”
means any nation or government, any state, provincial, territorial or other political subdivision thereof, any central bank (or similar
monetary or regulatory authority) thereof and any governmental entity exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
“Guarantee”
means any obligation, contingent or otherwise, of any Person directly or indirectly guaranteeing any Indebtedness of any other Person;
provided that the term “Guarantee” shall not include endorsements for collection or deposit in the ordinary course
of business.
“Guarantee Agreements”
mean the U.S. Guarantee Agreement and the Canadian Guarantee Agreement.
“Guarantors”
means (a) the U.S. Guarantors, (b) the Canadian Guarantors, and (c) each other Person, who, in writing received by
the Agent, guarantees payment or performance in whole or in part of any of the Obligations.
“Hedge Agreement”
means any and all transactions, agreements or documents now existing or hereafter entered into, which provides for an interest rate, credit,
commodity or equity swap, cap, floor, collar, forward foreign exchange transaction, currency swap, cross currency rate swap, currency
option, or any combination of, or option with respect to, these or similar transactions, for the purpose of hedging any Obligor’s
exposure to fluctuations in interest or exchange rates, loan, credit exchange, security or currency valuations or commodity prices.
“Hedge Termination
Value” shall mean, in respect of any one or more Hedge Agreements, after taking into account the effect of any legally enforceable
netting agreement relating to such Hedge Agreements, (a) for any date on or after the date such Hedge Agreements have been closed
out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the
date referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Hedge Agreements, as determined
based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Hedge Agreements (which
may include a Lender or any Affiliate of a Lender).
37
“Holdings”
has the meaning specified in the introductory paragraph to this Agreement.
“Immaterial Subsidiary”
means any Subsidiary of Holdings that, as of the last day of the Fiscal Quarter of Holdings most recently ended for which financial information
in respect thereof is available, (a) did not have assets with a value in excess of 3.0% of the total assets of Holdings and its Subsidiaries
as at such date and (b) did not have total revenues in excess of 3.0% of the total revenues of Holdings and its Subsidiaries for
the four consecutive Fiscal Quarter period then ended. Any determination of whether a Subsidiary shall cease to qualify as an Immaterial
Subsidiary shall be made on the date of the delivery of the Compliance Certificate pursuant to Section 7.2(d). To the extent
a Subsidiary ceases to be an Immaterial Subsidiary in connection with such determination, Holdings shall have 60 days (or such longer
period to which the Agent may reasonably agree) from the date of delivery of such Compliance Certificate to cause such Subsidiary to comply
with the requirements of Section 7.16 to the extent applicable. Each U.S. Subsidiary and Canadian Subsidiary that is an Immaterial
Subsidiary as of the Closing Date shall be set forth in Schedule 1.3.
“Increased Amount”
of any Indebtedness means any increase in the amount of such Indebtedness in connection with any accrual of interest, the accretion of
accreted value, the amortization of original issue discount, the payment of interest in the form of additional Indebtedness with the same
terms or in the form of common stock of any Borrower or Holdings and the accretion of original issue discount or liquidation preference.
“Incremental ABL
Term Loans” has the meaning specified in Section 2.5(a).
“Incremental Commitment
Amendment” has the meaning specified in Section 2.5(e)(ii).
“Incremental Facility”
and “Incremental Facilities” have the meanings specified in Section 2.5(a).
“Incremental Facility
Increase” has the meaning specified in Section 2.5(a).
“Incremental Indebtedness”
means any Indebtedness incurred by any Borrower pursuant to and in accordance with Section 2.5.
“Incremental Revolving
Commitment Effective Date” has the meaning specified in Section 2.5(e)(i).
“Incremental Revolving
Commitments” has the meaning specified in Section 2.5(a).
“Indebtedness”
means, without duplication, (a) all indebtedness for borrowed money or the deferred purchase price of property, excluding trade payables
and the endorsement of checks and other similar instruments in the ordinary course of business; (b) all obligations and liabilities
of any other Person secured by any Lien on an Obligor’s or any of its Subsidiaries’ property, even if such Obligor or Subsidiary
shall not have assumed or become liable for the payment thereof (the amount of such obligation being deemed to be the lesser of the value
of such property (as determined in good faith by the Company) or the amount of the obligation so secured); (c) all obligations or
liabilities created or arising under any Capital Lease; (d) all indebtedness created or arising under any conditional sale or other
title retention agreement with respect to property acquired by such Person (even if the rights and remedies of the seller or lender under
such agreement in the event of default are limited to repossession or sale of such property), but excluding trade accounts payable arising
in the ordinary course of business; (e) all obligations of such Person for the reimbursement of any obligor on any letter of credit,
banker’s acceptance or similar credit transaction; (f) all net obligations of such Person in respect of Hedge Agreements (with
the amount of such net obligations being deemed to be the Hedge Termination Value thereof); and (g) all obligations and liabilities
under Guarantees in respect of obligations of the type described in any of clauses (a) through (f) above,
provided, however, that Indebtedness shall not include (x) any holdback or escrow of the purchase price of property,
services, businesses or assets or (y) any contingent payment obligations incurred in connection with the acquisition of assets or
businesses, which are contingent on the performance of the assets or businesses so acquired.
38
“Indemnified Liabilities”
has the meaning specified in Section 14.10.
“Indemnified Person”
has the meaning specified in Section 14.10.
“Indemnified Taxes”
means (a) all Taxes other than Excluded Taxes and (b) to the extent not otherwise described in clause (a), Other Taxes.
“Instruments”
means all instruments as such term is defined in Article 9 of the UCC or as is defined in the PPSA, as applicable, now owned or hereafter
acquired by any Borrower, any Guarantor or any of their Subsidiaries.
“Intercreditor Agreement
Supplement” has the meaning specified in Section 13.17(b).
“Interest
Coverage Ratio” means the ratio of:
(a) Consolidated
EBITDA for the most recent period of four (4) consecutive Fiscal Quarters for which financial information in respect thereof is available,
to
(b) Consolidated
Interest Expense for such period paid in cash.
“Interest Payment
Date” means, with respect to any Term SOFR Loan or EURIBOR Loan, the Termination Date and the last day of each Interest Period
applicable to such Loan and, with respect to each Interest Period of more than three months, each three-month anniversary of the
commencement of such Interest Period for such Loan.
“Interest Period”
means, as to any Term SOFR Loan, EURIBOR Loan or Bank Bill Rate Loan, the period commencing on the Funding Date of such Loan or on the
Continuation/Conversion Date on which the Loan is converted into or continued as a Term SOFR Loan, EURIBOR Loan or Bank Bill Rate Loan,
as applicable, and ending on (i) the date ending on the numerically corresponding day in the calendar month that is one, three or
six months thereafter (in each case subject to the availability thereof), or (ii) in the case of Term SOFR Loans only, if such tenor
has become available, is agreed to by all the Lenders making or holding such Loan, and is determined to be administratively feasible for
the Agent in its sole discretion, ending on the date one or two weeks thereafter, as selected by the applicable Borrower in its Notice
of Borrowing or Notice of Continuation/Conversion, provided that:
(a) if
any Interest Period would otherwise end on a day that is not a Business Day, that Interest Period shall be extended to the following Business
Day unless, in the case of any Interest Period of one month or longer, the result of such extension would be to carry such Interest Period
into another calendar month, in which event such Interest Period shall end on the preceding Business Day;
(b) any
Interest Period of one month or longer pertaining to a Term SOFR Loan, a EURIBOR Loan or a Bank Bill Rate Loan that begins on the last
Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of
such Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest Period; and
(c) no
Interest Period shall extend beyond the Maturity Date.
“Interest Rate”
means each or any of the interest rates, including the Default Rate, set forth in Section 3.1.
“Inventory”
means all of each Obligor’s and each of its Subsidiaries’ now owned or hereafter acquired Rental Equipment, Merchandise and
Consumables Inventory and other inventory, goods and merchandise, wherever located, to be furnished under any contract of service or held
for sale or lease, all returned goods, raw materials, work-in-process, finished goods (including embedded software), other materials and
supplies of any kind, nature or description which are used or consumed in such Obligor’s or any of its Subsidiaries’ business
or used in connection with the packing, shipping, advertising, selling or finishing of such goods, merchandise, and all documents of title
or other Documents representing them.
39
“Investment”
means, with respect to any Person, (a) any loan or other extension of credit (including a guarantee) or capital contribution to any
other Person (by means of any transfer of cash or other property or any payment for property or services for consideration of Indebtedness
or Capital Stock of any other Person), other than in connection with leases of Equipment or leases or sales of Inventory on credit in
the ordinary course of business or (b) any purchase or acquisition by such Person of Capital Stock, bonds, notes, debentures or other
securities or evidences of indebtedness issued by any other Person, excluding the acquisition of inventory, supplies, equipment and other
assets used or consumed in the ordinary course of business of such Person and Capital Expenditures. The amount of any Investment outstanding
at any time shall be the original cost of such Investment, reduced (at the Company’s option) by any dividend, distribution, interest
payment, return of capital, repayment or other amount or value received in respect of such Investment.
“Investment Property”
means all of each Obligor’s now owned or hereafter acquired “investment property” as defined in the UCC or the PPSA,
as applicable, and includes all right title and interest of each Obligor in and to any and all: (a) securities whether certificated
or uncertificated; (b) securities entitlements; (c) securities accounts; (d) commodity contracts; or (e) commodity
accounts.
“IRS” means
the Internal Revenue Service and any Governmental Authority succeeding to any of its principal functions under the Code.
“Laws”
means, collectively, all international, foreign, federal, state, provincial, territorial and local statutes, treaties, rules, guidelines,
regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration
thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative
orders, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the
force of law.
“LCT Election”
has the meaning specified in Section 1.3(m)(ii).
“LCT Test Date”
has the meaning specified in Section 1.3(m)(ii).
“Leases”
means the written agreements between an Obligor and an Account Debtor entered into in the ordinary course of business of such Obligor
for rental or lease of Rental Equipment by such Obligor to such Account Debtor, including all schedules and supplements thereto.
“Lender”
and “Lenders” have the meanings specified in the introductory paragraph to this Agreement and shall include the Agent
to the extent of any Agent Advance outstanding and the Banks to the extent of any Swingline Loan outstanding.
“Lender Joinder Agreement”
has the meaning specified in Section 2.5(d)(i).
“Lending Office”
means, as to any Lender, the office or offices of such Lender set forth on the signature page hereto or as previously provided in
the Existing Loan Agreement, or on the Assignment and Acceptance for such Lender, as applicable, or such other office or offices as a
Lender may from time to time notify the Borrowers and the Agent, which office may include any Affiliate of such Lender or any domestic
or foreign branch of such Lender or such Affiliate. Unless the context otherwise requires each reference to a Lender shall include its
applicable Lending Office.
“Letter of Credit”
and “Letters of Credit” have the meanings specified in Section 2.4(a)(i).
“Letter of Credit
Fee” has the meaning specified in Section 3.6.
“Letter of Credit
Issuer” means the U.S. Bank, any Affiliate or branch of the U.S. Bank (including the Canadian Bank, in respect of
Letters of Credit denominated in Canadian Dollars) or any other Lender or Affiliate or branch of a Lender that issues any Letter of Credit
pursuant to this Agreement and agrees to provide reporting with respect to Letters of Credit reasonably required by the Agent.
40
“Letter of Credit
Subfacility” means $300,000,000.
“Lien”
means any mortgage, charge, pledge, lien (statutory or other), security interest, hypothecation, assignment for security, claim, or preference
or priority or other encumbrance upon or with respect to any property of any kind. A Person shall be deemed to own subject to a Lien any
property which such Person has acquired or holds subject to the interest of a vendor or lessor under any conditional sale agreement, finance
lease or other title retention agreement.
“Like-Kind Exchange”
means a substantially contemporaneous exchange or swap, including transactions covered by Section 1031 of the Code, of property or
assets (“Relinquished Property”) for property or assets with comparable or greater Fair Market Value or usefulness
to the business of the U.S. Borrowers and their Domestic Subsidiaries (“Replacement Property”); provided that
(a) the disposition of the Relinquished Property is permitted under the terms of this Agreement, (b) the transaction is entered
into in the normal course of business, (c) the applicable “exchange agreement” reflects arm’s-length terms with
a Qualified Intermediary who is not an Affiliate of Holdings and otherwise contains customary terms and (d) all net proceeds thereof
are deposited in one or more Like-Kind Exchange Accounts.
“Like-Kind Exchange
Account” means any account established jointly with a Qualified Intermediary pursuant to and solely for the purposes of facilitating
any Like-Kind Exchange, the amounts on deposit in which shall be limited to proceeds realized from the disposition of Relinquished Property
in connection with a Like-Kind Exchange.
“Limited Condition
Transaction” means (1) any Investment or acquisition (whether by merger, consolidation or otherwise) whose consummation
is not conditioned on the availability of, or on obtaining, third-party financing (it being understood that a “marketing period”
or similar concept is not a financing condition), (2) any redemption, repurchase, defeasance, satisfaction and discharge or repayment
of Indebtedness requiring irrevocable notice in advance of such redemption, repurchase, defeasance, satisfaction and discharge or repayment
and (3) any dividends or distributions on, or redemptions of, Capital Stock requiring irrevocable notice in advance thereof.
“Loan Documents”
means this Agreement, the Guarantee Agreements, each Guaranty Supplement referred to in any Guarantee Agreement, the Security Documents,
the Fee Letters, any TEG Letter, any Acceptable Intercreditor Agreement or any other intercreditor agreement entered into by the Agent
at any time in connection with this Agreement or any Security Document, any promissory note evidencing any Obligations, any other “Loan
Document” (as defined in the Existing Loan Agreement) in effect on the Closing Date (to the extent such document has not been amended
and restated, replaced or superseded), and any other agreements, instruments, and documents to which one or more Obligors is a party that,
for any such other agreement, instrument or document entered into after the Closing Date, expressly states that it is to be treated as
a “Loan Document” hereunder.
“Loans”
means, collectively, all loans and advances provided for in Article II.
“London Bank”
means Bank of America, N.A. (acting through its London branch), or any successor entity thereto.
“Market Disruption
Event” has the meaning specified in Section 5.5(b).
“Material Account”
means any bank account, securities account or commodities account of any Obligor, including in any case any account into which proceeds
from any Securitization Transaction (including, but not limited to, the Existing Securitization Facility) are deposited, but excluding
(a) any “Controlled Account” under and as defined in the documents evidencing the Existing Securitization Facility as
in effect as of the Agreement Date and any similar account under any Securitization Transaction, (b) any Like-Kind Exchange Account,
(c) any account which is exclusively used for disbursement purposes (including payroll accounts) and (d) other accounts to the
extent the daily collections in respect thereof do not exceed $35,000,000.
“Material Adverse
Effect” means a material adverse effect on (a) the business or financial condition of Holdings and its Restricted Subsidiaries,
taken as a whole, (b) the ability of Holdings, the Borrowers and the other Obligors (taken as a whole) to perform their payment obligations
under this Agreement or any other Loan Document or (c) the rights and remedies of the Agent and the Lenders under this Agreement
or any other Loan Document.
41
“Maturity Date”
means the date that is the fifth anniversary of the Closing Date.
“Maximum ANZ Revolver
Amount” means, at any time, the aggregate ANZ Revolving Credit Commitments at such time, as the same may be increased from time
to time in accordance with Section 2.5 or 4.3 or reduced from time to time in accordance with Section 4.3.
As of the Agreement Date, the Maximum ANZ Revolver Amount is $175,000,000. Anything contained herein to the contrary notwithstanding,
upon termination of the ANZ Revolving Credit Commitments, the Maximum ANZ Revolver Amount shall automatically be reduced to zero.
“Maximum Canadian
Revolver Amount” means $250,000,000 as of the Agreement Date, as the same may be increased or decreased from time to time in
accordance with Section 2.2(d). Anything contained herein to the contrary notwithstanding, (a) upon termination of the
Pro Rata Revolving Credit Commitments, the Maximum Canadian Revolver Amount shall automatically be reduced to zero and (b) in no
event shall the sum of the Maximum Canadian Revolver Amount and the Maximum ROW Revolver Amount at any time be greater than the Pro Rata
Revolving Credit Commitments at such time.
“Maximum Daily SOFR
Amount” means $500,000,000.
“Maximum Pro Rata
Revolver Amount” means, at any time, the aggregate Pro Rata Revolving Credit Commitments at such time, as the same may be increased
from time to time in accordance with Section 2.5 or 4.3 or reduced from time to time in accordance with Section 4.3.
As of the Agreement Date, the Maximum Pro Rata Revolver Amount is $4,325,000,000. Anything contained herein to the contrary notwithstanding,
upon termination of the Pro Rata Revolving Credit Commitments, the Maximum Pro Rata Revolver Amount shall automatically be reduced to
zero.
“Maximum Rate”
has the meaning specified in Section 3.3.
“Maximum Revolver
Amount” means, at any time, the sum of the Maximum ANZ Revolver Amount at such time and the Maximum Pro Rata Revolver Amount
at such time. As of the Agreement Date, the Maximum Revolver Amount is $4,500,000,000.
“Maximum ROW Revolver
Amount” means $125,000,000 as of the Agreement Date, as the same may be increased or decreased from time to time in accordance
with Section 2.2(d). Anything contained herein to the contrary notwithstanding, (a) upon termination of the Pro Rata
Revolving Credit Commitments, the Maximum ROW Revolver Amount shall automatically be reduced to zero and (b) in no event shall the
sum of the Maximum ROW Revolver Amount and the Maximum Canadian Revolver Amount at any time be greater than the Pro Rata Revolving Credit
Commitments at such time.
“Merchandise and
Consumables Inventory” means Inventory owned by a Borrower, a Guarantor or any of their Subsidiaries, other than Rental Equipment
held for sale or rental, including parts for Rental Equipment, parts to be sold, parts to be installed on Rental Equipment (which parts
are not then incorporated or installed in or on, or affixed or appurtenant to, any such Rental Equipment), and Inventory for the contractors
supply business of the Obligors.
“Merchandise and
Consumables Inventory Formula Amount” means, on any date of determination thereof, an amount equal to 60% of the Value of Eligible
Merchandise and Consumables Inventory on such date.
“Minimum Extension
Condition” has the meaning specified in Section 2.6(g).
“Moody’s”
means Moody’s Investors Service, Inc., or any successor thereto.
42
“Multi-employer Plan”
means a “multi-employer plan” as defined in Section 4001(a)(3) of ERISA which is or was at any time during the current
year or the immediately preceding six years contributed to by any of the Borrowers or any ERISA Affiliate.
“National Pump Acquisition”
means the acquisition of assets contemplated by the Asset Purchase Agreement, effective as of March 7, 2014, by and among the Company,
UR Canada, LD Services, LLC, National Pump & Compressor Ltd., Canadian Pump & Compressor, Ltd., Gulfco Industrial
Equipment, L.P. and the Owners named therein.
“National Pump Transactions”
means (a) the National Pump Acquisition, (b) the issuance of debt securities in connection with the National Pump Acquisition
and (c) any other transactions contemplated in connection with the National Pump Acquisition and any other financing transactions
in connection with the National Pump Acquisition.
“Neff Acquisition”
means the acquisition by the Company of Neff Corporation contemplated by the Agreement and Plan of Merger, dated as of August 16,
2017, by and among the Borrower, UR Merger Sub III Corporation and Neff Corporation.
“Neff Transactions”
means (a) the Neff Acquisition, (b) the issuance of debt securities in connection with the Neff Acquisition and (c) any
other transactions contemplated in connection with the Neff Acquisition and any other financing transactions in connection with the Neff
Acquisition.
“NES Acquisition”
means the acquisition of assets contemplated by the Agreement and Plan of Merger, dated as of January 25, 2017, by and among NES
Rentals Holdings II, Inc., the Borrower, UR Merger Sub II Corporation and Diamond Castle Holdings, LLC, as the Stockholder Representative
named therein.
“NES Transactions”
means (a) the NES Acquisition, (b) the issuance of debt securities in connection with the NES Acquisition and (c) any other
transactions contemplated in connection with the NES Acquisition and any other financing transactions in connection with the NES Acquisition.
“Net Book Value”
means, with respect to any Rental Equipment, cost minus accumulated depreciation for such Rental Equipment calculated in accordance with
GAAP.
“Net Orderly Liquidation
Value” means the orderly liquidation value (net of costs and expenses estimated to be incurred in connection with such liquidation)
that is estimated to be recoverable in an orderly liquidation of Rental Equipment or other Inventory, as applicable, as determined in
accordance with the most recent Appraisal received by the Agent in accordance with Section 7.9(b).
“New Zealand Borrowers”
has the meaning specified in the introductory paragraph to this Agreement.
“New Zealand Dollars”
or “NZ$” means the lawful currency of New Zealand.
“Non-Consenting Lender”
has the meaning specified in Section 12.1(b).
“Non-Cooperative
Jurisdiction” means a “non-cooperative state or territory” (Etat ou territoire non coopératif) as
set out in the lists referred to in Article 238-0 A of the French tax code (Code Général des Impôts),
as such lists may be amended from time to time or in the relevant article of the French tax code (Code Général des Impôts).
“Non-Core Business”
means any business which is not an essential part of the rental business of Holdings and its Restricted Subsidiaries taken as a whole,
as reasonably determined by Holdings.
“Non-Extended Commitments”
has the meaning specified in Section 2.6(a).
“Non-Extended Loans”
has the meaning specified in Section 2.6(a).
43
“Non-Extending Lender”
has the meaning specified in Section 2.6(e).
“Non-Extension Notice
Date” has the meaning specified in Section 2.4(b).
“Non-Recourse Indebtedness”
means Indebtedness of a Person (a) as to which no Obligor provides any Guarantee or credit support of any kind or is directly or
indirectly liable (as a guarantor or otherwise) and (b) which does not provide any recourse against any of the assets of any Obligor,
in each case other than Standard Securitization Undertakings.
“Notice of Borrowing”
has the meaning specified in Section 2.2(a).
“Notice of Continuation/Conversion”
has the meaning specified in Section 3.2(b).
“NZ Lender”
means a Lender that (a) is resident in New Zealand for New Zealand income tax purposes or (b) carries on business in New Zealand
through a fixed establishment and either (i) is a registered bank and is not associated with any ANZ Borrower or (ii) is party
to or performs this Agreement for the purposes of the business it carries on in New Zealand through such fixed establishment, provided
that for the purposes of this definition, the terms “associated”, “fixed establishment” and “registered
bank” shall have the meanings given in the Income Tax Act 2007.
“Obligations”
means the U.S. Obligations, the ROW Obligations, the Canadian Obligations, the European Obligations and the ANZ Obligations.
“Obligors”
means, collectively, each Borrower, each Guarantor, and any other Person that now or hereafter is primarily or secondarily liable for
any of the Obligations and/or grants the Agent a Lien on any collateral as security for any of the Obligations.
“Offshore Associate”
means an Associate (a) that is a non-resident of Australia and would not become a Lender, or does not receive a payment, in carrying
on a business in Australia at or through a permanent establishment of such Associate in Australia or (b) that is a resident of Australia
and would become a Lender, or does receive a payment, in carrying on a business in a country outside Australia at or through a permanent
establishment of such Associate in that country, and which, in either case, would not become a Lender in the capacity of a clearing house,
custodian, funds manager or responsible entity of a registered scheme, or does not receive such payment in the capacity of a clearing
house, paying agent, custodian, funds manager or responsible entity of a registered scheme.
“Original Agreement
Date” means June 9, 2008.
“Original Currency”
has the meaning specified in Section 14.20.
“Original Loan Agreement”
means that certain Credit Agreement, dated as of June 9, 2008, by and among Holdings, the Company, UR Canada, the Guarantors, the
Agent, the lenders party thereto and certain other parties thereto.
“Originating Lender”
has the meaning specified in Section 12.2(e).
“Other Connection
Taxes” means, with respect to any Agent, Lender or other such recipient, Taxes imposed as a result of a present or former connection
between such recipient and the jurisdiction imposing such Tax (other than connections arising from such recipient having executed, delivered,
become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged
in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).
44
“Other
Credit Facility” means one or more debt facilities or agreements, commercial paper facilities, securities purchase agreements, indentures
or similar agreements, in each case, with banks or other institutional lenders or investors providing for, or acting as underwriters of,
revolving loans, term loans, receivables financing (including through the sale of receivables to lenders or other purchasers or to special
purpose entities formed to borrow from such lenders or other purchasers against such receivables), notes, debentures, letters of credit
or the issuance and sale of securities or other debt financing, including any related notes, guarantees, collateral documents, instruments
and agreements executed in connection therewith and in each case, as amended, extended, renewed, restated, supplemented or otherwise modified
(in whole or in part, and without limitation as to amount, terms, conditions, covenants and other provisions) from time to time, and any
agreements, indentures or other instruments (and related documents) governing any form of Indebtedness incurred to refinance or replace,
in whole or in part, the borrowings and commitments at any time outstanding or permitted to be outstanding under such facility or agreement
or successor facility or agreement whether by the same or any other lender or holder of Indebtedness or group of lenders or holders of
Indebtedness and whether the same obligor or different obligors and whether for the same or a different amount (including an increased
amount) or on the same or different terms, conditions, covenants and other provisions.
“Other Taxes”
means any present or future stamp or documentary Taxes or any other excise or property Taxes, charges or similar levies which arise from
any payment made hereunder or from the execution, delivery or registration of, or otherwise with respect to, this Agreement or any other
Loan Documents, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than Other Connection
Taxes imposed on an assignor as a result of any assignment request by the Borrowers under Sections 5.9 or 12.1(b)).
“Out-of-Formula Condition”
has the meaning specified in Section 4.2.
“Pari Passu Debt
Reserves” means all reserves with respect to (a) any outstanding Indebtedness incurred pursuant to Section 8.1(c) or
otherwise secured pursuant to Section 8.2(c) or 8.2(ii) (other than the Obligations), (b)any Incremental
Indebtedness (other than increases to the Revolving Credit Commitments) or (c) any Refinancing Term Loans or Refinancing Revolving
Loans, in each case, that is secured by Liens on Collateral on a basis pari passu in priority with the Agent’s Liens thereon
securing extensions of credit under any of the Revolving Credit Commitments, which reserve for any such outstanding Indebtedness shall
be imposed automatically without any further action or notice by the Agent upon the incurrence of such Indebtedness and shall be in an
amount equal to the unpaid principal amount of such Indebtedness from time to time. For the avoidance of doubt, no Pari Passu Debt Reserves
shall be established with respect to any Indebtedness incurred pursuant to Section 8.1(c) or otherwise secured pursuant
to Section 8.2(c) or 8.2(ii) or any Incremental Indebtedness or any Refinancing Term Loans or Refinancing
Revolving Loans, in each case that is secured by Liens on Collateral solely in the event that all such Liens on the Collateral are junior
in priority to the Agent’s Liens thereon.
“Pari Passu Intercreditor
Agreement” means that certain intercreditor agreement, dated as of October 31, 2018, by and among Bank of America, as Agent
under this Agreement, Bank of America, as TLB Agent, and the other parties thereto from time to time.
“Participant”
means any Person who shall have been granted the right by any Lender to participate in the financing provided by such Lender under this
Agreement, and who shall have entered into a participation agreement in form and substance satisfactory to such Lender.
“Participant Register”
has the meaning specified in Section 13.21(b).
“Participating Canadian
Lender” means each Lender identified on Schedule 2.10A, solely as to the amount of the Revolving Credit Commitment
of such Lender set forth opposite such Lender’s name on Schedule 2.10A (as such Revolving Credit Commitment may be reduced
(but not increased, unless otherwise agreed in writing by Bank of America) from time to time pursuant to the terms of this Agreement or
any applicable Assignment and Acceptance), as such schedule may be amended, in the sole discretion of the Agent and Bank of America, by
written agreement of the Borrowers’ Agent, the Agent, Bank of America and any applicable Participating Canadian Lender.
“Participating Member
State” means any member state of the European Union that has the euro as its lawful currency in accordance with legislation
of the European Union relating to Economic and Monetary Union.
“Participating ROW
Lender” means each Lender identified on Schedule 2.10B, solely as to the amount of the Revolving Credit Commitment
of such Lender set forth opposite such Lender’s name on Schedule 2.10B (as such Revolving Credit Commitment may be reduced
(but not increased, unless otherwise agreed in writing by Bank of America) from time to time pursuant to the terms of this Agreement or
any applicable Assignment and Acceptance), as such schedule may be amended, in the sole discretion of the Agent and Bank of America, by
written agreement of the Borrowers’ Agent, the Agent, Bank of America and any applicable Participating ROW Lender.
45
“Payment Account”
means each bank account to which the proceeds of Collateral are deposited or credited, and which is maintained in the name of the Agent,
on terms reasonably acceptable to the Agent.
“Payment Conditions”
means, at any time of determination with respect to any payment, event or transaction described herein as being specifically subject to
satisfaction of the Payment Conditions, that (a) both before and immediately after such payment, event or transaction (including
any Loans made in connection therewith), no Specified Default has occurred and is continuing, (b) immediately after such payment,
event or transaction (including the making of any Loans in connection therewith), Specified Availability shall be greater than 10% of
the Maximum Revolver Amount, and (c) if Specified Availability is not greater than 15% of the Maximum Revolver Amount after giving
effect to such payment, event or transaction (including the making of any Loans in connection therewith), Holdings and the other
Obligors shall be in pro forma compliance with the covenant set forth in Section 8.9 (regardless of whether a Covenant Trigger
is in effect or such covenant is otherwise effective, and measured as of the last day of the most recently ended Fiscal Quarter for which
financial statements were required to be delivered in accordance with Section 7.2).
“PBA” means
the Pension Benefits Act (Ontario) or similar legislation of any other Canadian federal or provincial jurisdiction, and the regulations
promulgated thereunder applicable to a Pension Plan.
“PBGC”
means the Pension Benefit Guaranty Corporation, or any Governmental Authority succeeding to the functions thereof or any Governmental
Authority of another jurisdiction exercising similar functions in respect of any Plans of an Obligor.
“Pension Event”
means solely with respect to Canadian Pension Plans (a) the whole or partial withdrawal of a Canadian Obligor or any of its Subsidiaries
from a Canadian DB Pension Plan during a plan year; or (b) the filing of a notice of proposal to terminate in whole or in part a
Canadian DB Pension Plan; (c) the issuance of an order by any Governmental Authority to terminate in whole or in part or have an
administrator or like body appointed to administer a Canadian DB Pension Plan; or (d) any other event or condition which constitutes
grounds for an applicable Governmental Authority to order the termination of, winding up or partial termination or winding up or the appointment
of a trustee to administer, any Pension Plan.
“Pension Plan”
means a pension plan or an employee benefit plan (a) which is an employee pension benefit plan, as defined in Section 3(2) of
ERISA (other than a Multi-employer Plan), that is subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302
of ERISA, or (b) which is a “registered pension plan” under the Income Tax Act (Canada) or which is subject to
the PBA or any other applicable Laws, which in either case of clause (a) or (b) an Obligor sponsors, maintains,
or to which it makes, is making, or is obligated to make contributions, or has made contributions at any time during the immediately preceding
five plan years.
“Perfection Certificate”
means the Perfection Certificate substantially in the form of Exhibit F.
“Permitted Acquisition”
means the acquisition by an Obligor or a Restricted Subsidiary of all or a substantial portion of the assets or businesses of a Person
or of assets constituting a business unit, line of business or division of such Person (the “Acquired Business”) or
the acquisition by an Obligor or a Restricted Subsidiary of all of the Capital Stock of the Acquired Business (other than directors’
qualifying shares or nominee or other similar shares required pursuant to applicable law) or the merger, amalgamation or consolidation
of the Acquired Business with and into an Obligor or a Restricted Subsidiary (with such Obligor or Restricted Subsidiary, as the case
may be, as the surviving Person) or an Obligor or a Restricted Subsidiary with and into the Acquired Business (to the extent permitted
under Section 8.5), so long as:
(a) the
assets acquired shall be used or useful in or otherwise relate or are complementary to, or a reasonable diversification of, the business
or lines of business of the Borrowers and their Subsidiaries as of the Closing Date;
46
(b) all
transactions in connection with such acquisition shall be consummated in all material respects in accordance with all applicable laws
and governmental authorizations;
(c) after
giving effect to such transaction and any related refinancing of Indebtedness, none of the acquired assets are subject to any Lien other
than Permitted Liens; and
(d) (i) the
Payment Conditions are satisfied at the time of such Permitted Acquisition (or, at the option of the Borrowers’ Agent if such Permitted
Acquisition is a Limited Condition Transaction, as of the date definitive agreements for such Limited Condition Transaction are entered
into), (ii) the Fixed Charge Coverage Ratio determined on a pro forma basis, is not less than 1.10:1.00 at the time of such Permitted
Acquisition (or, at the option of the Borrowers’ Agent if such Permitted Acquisition is a Limited Condition Transaction, as of the
date definitive agreements for such Limited Condition Transaction are entered into), or (iii) the consideration for such transaction
consists solely of any combination of (A) Capital Stock of Holdings (other than Disqualified Stock), (B) cash and property in
an amount equal to the net proceeds from a substantially concurrent sale or issuance of Capital Stock of Holdings (other than Disqualified
Stock), (C) additional cash and property (excluding cash and property covered in clause (B) above) in an amount, together with
all cash and property under this clause (C) for all other Permitted Acquisitions consummated in the same Fiscal Year, not to
exceed the greater of (x) $1,609,800,000 and (y) 10% of Consolidated Net Tangible Assets, and (D) Indebtedness (whether
incurred or assumed) permitted hereunder.
“Permitted Distributions”
means:
(a) Distributions
by any Subsidiary of an Obligor to such Obligor (other than Holdings) and Distributions by any Subsidiary to the holders (other than Holdings)
of its Capital Stock on a pro rata basis;
(b) (i) Distributions
by Holdings to repurchase equity securities issued by Holdings from employees, officers or directors of Holdings, the Company or any Subsidiary,
or the authorized representatives of any of the foregoing, upon the death, disability or termination of employment of any such employee,
officer or director in an amount not to exceed $40,000,000 in the aggregate in any Fiscal Year and (ii) so long as no Default or
Event of Default has occurred and is continuing, Distributions to purchase Capital Stock of Holdings from employees, officers or directors
of Holdings, the Company or any Subsidiary in an amount not to exceed the sum of (x) $30,000,000 plus (y) $40,000,000
multiplied by the number of calendar years that have commenced since March 9, 2012;
(c) any
purchase or redemption of any Capital Stock of Holdings required pursuant to the terms thereof as a result of a Change of Control or an
asset disposition, so long as at such time no Default or Event of Default shall have occurred and be continuing (or would result therefrom);
(d) payments
to Holdings in an amount sufficient to enable Holdings to pay (i) its or the Consolidated Parties’ taxes, or its legal, accounting,
payroll, benefits, incentive compensation, insurance and corporate overhead expenses (including commission, stock exchange and transfer
agency fees and expenses); (ii) trade, lease, payroll, benefits, incentive compensation and other obligations in respect of goods
to be delivered to, services (including management and consulting services) performed for and properties used by, the Company and the
Restricted Subsidiaries; (iii) the purchase price for Investments in other Persons (including any amounts used to refinance or repay
any Indebtedness of any Person in connection with such Investment); (iv) reasonable and customary incidental expenses as determined
in good faith by the board of directors of Holdings; (v) costs and expenses incurred in relation to the issuance of Indebtedness
or Capital Stock by Holdings; (vi) costs and expenses incurred by Holdings in relation to the Transactions, any of the Acquisition
Transactions and any other acquisitions permitted hereunder and (vii) any amounts in respect of Disqualified Stock issued by Holdings
or Indebtedness incurred by Holdings not prohibited hereunder;
(e) payments
to Holdings in an amount sufficient to permit it to repay Indebtedness the proceeds of which were either contributed to the Company or
used to acquire assets that were contributed to the Company;
(f) cash
payments in lieu of the issuance of fractional shares in connection with the exercise of any warrants, options or other securities convertible
into or exchangeable for capital stock of Holdings;
47
(g) the
deemed repurchase of Capital Stock of Holdings on the cashless exercise of stock options;
(h) other
Distributions not to exceed the greater of (i) $1,103,850,000 and (ii) 15% of Consolidated EBITDA for the most recent period
of four consecutive Fiscal Quarters for which financial information in respect thereof is available in the aggregate during the term of
this Agreement; provided, however, that at the time of any such Distribution, no Default or Event of Default shall have
occurred and be continuing (or would result therefrom);
(i) any
Distributions, so long as the Payment Conditions are satisfied either at the time the Distribution is made or at the time the Distribution
is declared (so long as such Distribution is made within 60 days of declaration);
(j) payments
in respect of any dividend or distribution on the Capital Stock of Holdings and payments to purchase Capital Stock of Holdings, in each
case, not to exceed 6% of the market capitalization of Holdings at the time of such payment;
(k) the
making of any Distribution in exchange for, or out of the net cash proceeds of, a substantially concurrent sale (other than to a Subsidiary
of the Company) of Capital Stock of the Company or Holdings (other than Disqualified Stock) or from a substantially concurrent cash capital
contribution to the Company or Holdings;
(l) any
Investment made in a Special Purpose Vehicle in connection with a Securitization Transaction, which Investment consists of the assets
described in the definition of “Equipment Securitization Transaction” or “Receivables Securitization Transaction”;
and
(m) Investments
constituting Distributions made as a result of the receipt of non-cash consideration from any Asset Disposition or other sale of assets
or property made pursuant to and in compliance with this Agreement.
For purposes of determining
compliance with this definition, in the event that any Distribution meets the criteria of more than one of the types of Permitted Distributions
described in the above clauses, the Borrowers’ Agent, in its sole discretion, may from time to time classify and reclassify
such Distribution and only be required to include the amount and type of such Distribution in one of such clauses.
“Permitted Indebtedness”
has the meaning specified in Section 8.1.
“Permitted Investments”
means:
(a) Investments
in Cash Equivalents;
(b) Investments
existing on the Agreement Date and, to the extent involving aggregate consideration in excess of $5,000,000 (individually), identified
in Schedule 8.4 to this Agreement;
(c) Investments
by any Obligor or Restricted Subsidiary in any other Obligor or Restricted Subsidiary;
(d) Investments
by any Subsidiary which is not a Secured Obligor in any other Subsidiary;
(e) Investments
(i)(A) by any Subsidiary which is not an Obligor in another Subsidiary which is not an Obligor, (B) by any Subsidiary which
is not a Secured Obligor in another Subsidiary which is not a Secured Obligor or (C) by any Obligor in any Subsidiary which is not
a Secured Obligor, in each case by way of contributions to capital (including by way of organizing a Subsidiary after the Agreement Date
pursuant to Section 7.16) or (ii)(A) in less than all the business or assets of, or stock or other evidences of beneficial
ownership of, any Person, or (B) in any joint venture or similar arrangement; provided that the aggregate amount of Investments
made under this clause (e)(i)(C) and clause (e)(ii) (as reduced by any return of capital in respect
of any such Investment), taken together with the aggregate amount of Indebtedness incurred pursuant to Section 8.1(h)(ii) and
the aggregate amount of Investments made pursuant to clause (l)(ii) of this definition, shall not exceed the greater
of (x) $1,609,800,000 and (y) 10% of Consolidated Net Tangible Assets at any time;
48
(f) Investments
by any Obligor in any Special Purpose Vehicle pursuant to a Securitization Transaction;
(g) Investments
in the nature of pledges or deposits with respect to leases or utilities provided to third parties in the ordinary course of business;
(h) deposit
accounts maintained in the ordinary course of business;
(i) Investments
constituting Hedge Agreements entered into in the ordinary course of business;
(j) Investments
in securities or other Investments received in settlement of debts created in the ordinary course of business and owing to, or of other
claims asserted by, the Company or any Restricted Subsidiary, or as a result of foreclosure, perfection or enforcement of any Lien, or
in satisfaction of judgments, including in connection with any bankruptcy proceeding or other reorganization of another Person;
(k) loans
and advances to officers, directors or employees (i)(A) existing on the Closing Date and described in Schedule 8.4
or (B) for any purpose satisfactory to Holdings or its Subsidiaries; provided that the aggregate outstanding principal amount
of all such Investments under this clause (k)(i) shall not exceed $25,000,000 at any time; (ii) relating to indemnification
of any officers, directors or employees in respect of liabilities relating to their serving in any such capacity, and any reimbursement
of any such officer, director or employee of expenses relating to the claims giving rise to such indemnification; or (iii) in the
ordinary course of business related to reasonable travel, entertainment and relocation expenses;
(l) (i) Permitted
Acquisitions and (ii) Investments in (x) less than all business or assets of, or stock or other evidences of beneficial ownership
of, any Person, or (y) any joint venture or similar arrangement, in any such case in the same business or lines of business (or lines
of business substantially similar, or ancillary, complementary or related thereto) in which Holdings and its Subsidiaries are engaged
as of the Agreement Date; provided that for clause (l)(ii), (A) the aggregate amount of Investments made under
such clause, taken together with the aggregate amount of Indebtedness incurred pursuant to Section 8.1(h)(ii) and the
aggregate amount of Investments made pursuant to clause (e)(i)(C) and clause (e)(ii) of this definition,
shall not exceed the greater of (x) $1,609,800,000 and (y) 10% of Consolidated Net Tangible Assets at any time and (B) at
the time of such Investment, no Default or Event of Default shall have occurred and be continuing (or would result therefrom);
(m) any
Investment to the extent that the consideration therefor is Capital Stock (other than Disqualified Stock) of Holdings;
(n) guarantees
of Permitted Indebtedness (provided that no Canadian Obligor, ROW Borrower, European Borrower, ANZ Borrower or Excluded Subsidiary
may Guarantee any Indebtedness of a U.S. Obligor under this clause (n) unless such Person Guarantees the U.S. Obligations
pursuant to a Guarantee agreement reasonably acceptable to the Agent);
(o) Investments
acquired by an Obligor or a Restricted Subsidiary received in settlement of claims against any other Person or a reorganization or similar
arrangement of any debtor of such Obligor or Restricted Subsidiary, including upon the bankruptcy or insolvency of such debtor, or as
a result of foreclosure, perfection or enforcement of any Lien;
(p) Investments
in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers;
49
(q) advances
of payroll payments to employees in the ordinary course of business;
(r) Investments
acquired by Holdings or any Subsidiary in connection with an Asset Disposition permitted under Section 8.5(d) to the
extent such Investments are non-cash proceeds as permitted under Section 8.5(d);
(s) Investments
not to exceed the greater of (i) $1,609,800,000 and (ii) 10% of Consolidated Net Tangible Assets in the aggregate;
(t) any
Investment, so long as the Payment Conditions shall have been satisfied at the time of such Investment;
(u) Investments
in receivables owing to the Company or any Restricted Subsidiary created or acquired in the ordinary course of business; and
(v) any
transaction to the extent that it constitutes an Investment that is permitted by and made in accordance with Section 8.4.
For purposes of determining
compliance with this definition, in the event that any Investment meets the criteria of more than one of the types of Permitted Investments
described in the above clauses, the Borrowers’ Agent, in its sole discretion, may from time to time classify and reclassify such
Investment and only be required to include the amount and type of such Investment in one of such clauses.
“Permitted Liens”
has the meaning specified in Section 8.2.
“Permitted Priority
Borrowing Base Liens” means Permitted Liens described in clauses (f), (g), (j) and (z) of
Section 8.2.
“Permitted Priority
Liens” means Permitted Liens described in clauses (b), (f), (g), (h), (j), (n),
(o), (p) (to the extent the Liens that secured the Refinanced Indebtedness were Permitted Priority Liens), (q),
(t), (u), (v), (w), (x), (y), (z), (aa), (bb), (dd), (ff)
and (jj) of Section 8.2.
“Person”
means any individual, sole proprietorship, partnership, limited liability company, unlimited liability company, joint venture, trust,
unincorporated organization, association, corporation, Governmental Authority, or any other entity.
“Plan”
means any of (a) an “employee benefit plan” (including such plans as defined in Section 3(3) of ERISA) that
is subject to Title I of ERISA, (b) a “plan” as defined in Section 4975 of the Code or (c) any Person whose
assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code)
the assets of any such “employee benefit plan” or “plan”; in each case which an Obligor sponsors or maintains
or to which an Obligor or a Subsidiary of an Obligor makes, is making, or is obligated to make contributions and includes any Pension
Plan.
“PMP Lender”
means: (a) until the competent authority publishes its interpretation of the term “public” (as referred to in article 4.1(1) of
the Capital Requirements Regulation (No. 575/2013)), an entity that is a professional market party (any person advancing an amount
of at least €100,000 (or acquiring receivables in an aggregate amount of €100,000) is deemed to be a professional market party);
or (b) following publication by the competent authority of its interpretation of the term public (as referred to in article 4.1(1) of
the Capital Requirements Regulation (No. 575/2013)), such person which does not qualify as forming part of the “public”.
“PPSA”
means the Personal Property Security Act (Ontario) and the regulations promulgated thereunder, provided, however, if validity,
perfection and effect of perfection and non-perfection of the Agent’s security interest in any Collateral of any Canadian Obligor
are governed by the personal property security laws of any Canadian jurisdiction other than Ontario, PPSA means those personal property
security laws (including the Civil Code of Québec) in such other jurisdiction for the purposes of the provisions hereof relating
to such validity, perfection, and effect of perfection and non-perfection and for the definitions related to such provisions, as from
time to time in effect.
50
“Previously Absent
Financial Maintenance Covenant” means, at any time, any financial maintenance covenant that is not included in the Loan Documents
at such time.
“Priority Payable
Reserves” means reserves established in the Reasonable Credit Judgment of the Agent for amounts secured by any Liens, choate
or inchoate or any deemed trusts arising under Laws, which rank or are capable of ranking in priority to the Agent’s Liens.
“Pro Rata Revolving
Credit Commitment” means, at any date for any Lender, the obligation of such Lender to make Pro Rata Revolving Loans and to
purchase participations in Letters of Credit and Swingline Loans (other than European Swingline Loans and ROW Swingline Loans) pursuant
to the terms and conditions of this Agreement, which shall not exceed the aggregate principal amount set forth on Schedule 1.1
under the heading “Pro Rata Revolving Credit Commitment” or on the signature page of the Assignment and Acceptance by
which it became a Lender, as modified from time to time pursuant to the terms of this Agreement or to give effect to any applicable Assignment
and Acceptance; and “Pro Rata Revolving Credit Commitments” means the aggregate principal amount of the Pro Rata Revolving
Credit Commitments of all Lenders.
“Pro Rata Revolving
Credit Lender” means a Lender with a Pro Rata Revolving Credit Commitment or an outstanding Pro Rata Revolving Loan.
“Pro Rata Revolving
Loans” means the U.S. Revolving Loans, the ROW Revolving Loans, the Canadian Revolving Loans and the European Swingline
Loans, as the context requires.
“Pro Rata Share”
means (a) except as set forth in clauses (b) and (c) below, with respect to a Lender, a fraction (expressed
as a percentage), the numerator of which is the amount of such Lender’s Revolving Credit Commitments and the denominator of which
is the sum of the amounts of all of the Lenders’ Revolving Credit Commitments, or if no Revolving Credit Commitments are outstanding,
a fraction (expressed as a percentage), (i) the numerator of which is the Equivalent Amount in Dollars of the sum (without duplication)
of the aggregate amount of the Revolving Loans owed to such Lender plus such Lender’s participation in the aggregate maximum
amount available to be drawn under all outstanding Letters of Credit, plus such Lender’s participation in the aggregate amount
of any unpaid reimbursement obligations in respect of Letters of Credit and (ii) the denominator of which is the Equivalent Amount
in Dollars of the sum (without duplication) of the aggregate amount of the Revolving Loans owed to the Lenders, plus the aggregate
maximum amount available to be drawn under all outstanding Letters of Credit, plus the aggregate amount of any unpaid reimbursement
obligations in respect of Letters of Credit, in each case giving effect to a Lender’s participation in Swingline Loans and Agent
Advances.
(b) solely
in the context of the Pro Rata Revolving Credit Commitments, with respect to a Lender, a fraction (expressed as a percentage), the numerator
of which is the amount of such Lender’s Pro Rata Revolving Credit Commitment and the denominator of which is the sum of the
amounts of all of the Lenders’ Pro Rata Revolving Credit Commitments, or if no Pro Rata Revolving Credit Commitments are
outstanding, a fraction (expressed as a percentage), (i) the numerator of which is the Equivalent Amount in Dollars of the sum (without
duplication) of the aggregate amount of the Pro Rata Revolving Loans owed to such Lender plus such Lender’s participation in the
aggregate maximum amount available to be drawn under all outstanding Letters of Credit, plus such Lender’s participation in the
aggregate amount of any unpaid reimbursement obligations in respect of Letters of Credit and (ii) the denominator of which is the
Equivalent Amount in Dollars of the sum (without duplication) of the aggregate amount of the Pro Rata Revolving Loans owed to the Lenders,
plus the aggregate maximum amount available to be drawn under all outstanding Letters of Credit, plus the aggregate amount of any unpaid
reimbursement obligations in respect of Letters of Credit, in each case giving effect to a Lender’s participation in Swingline Loans
and Agent Advances; and
(c) solely
in the context of the ANZ Revolving Credit Commitments, with respect to a Lender, a fraction (expressed as a percentage), the numerator
of which is the amount of such Lender’s ANZ Revolving Credit Commitment and the denominator of which is the sum of the amounts of
all of the Lenders’ ANZ Revolving Credit Commitments, or if no ANZ Revolving Credit Commitments are outstanding, a fraction (expressed
as a percentage), (i) the numerator of which is the Equivalent Amount in Dollars of the sum (without duplication) of the amount of
the ANZ Revolving Loans owed to such Lender and (ii) the denominator of which is the Equivalent Amount in Dollars of the sum (without
duplication) of the aggregate amount of the ANZ Revolving Loans owed to the Lenders, in each case giving effect to a Lender’s participation
in Swingline Loans.
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“Pro Rata Unused
Line Fee” has the meaning specified in Section 3.5.
“Progress Billing”
means any invoice for goods sold or services rendered under a contract or agreement pursuant to which the Account Debtor’s obligation
to pay such invoice is conditioned upon any Obligor’s or any Subsidiary of an Obligor’s completion of any further performance
under the contract or agreement; provided that in no event will any invoice for rent under a Lease be considered a Progress Billing.
“Proposed Change”
has the meaning specified in Section 12.1(b).
“Proprietary Rights”
means all of each Obligor’s and each of its Subsidiary’s now owned or hereafter arising or acquired patents, patent rights,
industrial designs, copyrights, works which are the subject matter of copyrights, trademarks, service marks, trade names, trade dress,
designs, and patent, trademark and service mark applications, and all licenses and rights related to any of the foregoing, and all other
rights under any of the foregoing, all extensions, renewals, reissues, divisions, continuations, and continuations-in-part of any of the
foregoing, and all rights to sue for past, present and future infringement of any of the foregoing.
“PTE” means
a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
“Purchase Money Obligations”
means any Indebtedness incurred to finance or refinance the acquisition, leasing, construction or improvement of property (real or personal)
or assets (including Capital Stock), and whether acquired through the direct acquisition of such property or assets or the acquisition
of the Capital Stock of any Person owning such property or assets, or otherwise; provided that such Indebtedness is incurred within
180 days after such acquisition.
“QFC” has
the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C.
5390(c)(8)(D).
“QFC Credit Support”
has the meaning specified in Section 14.28.
“Qualified Intermediary”
means any Person acting in its capacity as a qualified intermediary to facilitate any Like-Kind Exchange or operate and/or own a Like-Kind
Exchange Account.
“Ratio Debt”
has the meaning specified in Section 8.1(j).
“Reaffirming Loan
Party” has the meaning specified in Section 14.24(c).
“Real Estate”
means all of each Obligor’s and each of its Subsidiaries now or hereafter owned or leased estates in real property, including all
fees, leaseholds and future interests, together with all of each Obligor’s and each of its Subsidiaries’ now or hereafter
owned or leased interests in the improvements thereon, the fixtures attached thereto and the easements appurtenant thereto.
“Reallocation”
has the meaning specified in Section 4.3(c).
“Reasonable Credit
Judgment” means, as applicable, the Agent’s reasonable (from the perspective of a secured asset-based lender) judgment,
exercised in good faith in accordance with customary business practices of the Agent for comparable asset-based lending transactions,
as to any reserve or eligibility criteria which the Agent, as applicable, reasonably determines as being appropriate to reflect: (a) items
that could reasonably be expected to adversely affect the Agent’s ability to realize upon the Collateral, (b) costs, expenses
and other amounts that the Agent reasonably determines will need to be satisfied in connection with the realization upon the Collateral
or (c) criteria, events, conditions, contingencies or risks that differ materially from facts or events occurring and known to the
Agent on the Agreement Date and which directly and adversely affect any component of the applicable Borrowing Base.
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“Receivables Entity”
means a trust, bankruptcy remote entity or other special purpose entity which is a Subsidiary of the Company or Holdings (or, if not a
Subsidiary of the Company or Holdings, the common equity of which is wholly owned, directly or indirectly, by the Company or Holdings)
and which is formed for the purpose of, and engages in no material business other than, acting as an issuer or a depositor in a Receivables
Securitization Transaction (and, in connection therewith, owning accounts receivable, lease receivables, other rights to payment, leases
and related assets and pledging or transferring any of the foregoing or interests therein).
“Receivables Securitization
Transaction” means any sale, discount, assignment, conveyance, participation, contribution to capital, grant of security interest
in, pledge or other transfer by the Company or any Subsidiary of the Company of accounts receivable, lease receivables or other payment
obligations owing to the Company or such Subsidiary of the Company or any interest in any of the foregoing, together in each case with
any collections and other proceeds thereof, any collection or deposit account related thereto, and any collateral, guarantees or other
property (other than Inventory or Equipment) or claims supporting or securing payment by the obligor thereon of, or otherwise related
to, or subject to leases giving rise to, any such receivables.
“Refinance”
has the meaning specified in the definition of “Refinancing Indebtedness”.
“Refinanced Debt”
has the meaning specified in Section 2.7(a).
“Refinancing Amendment”
has the meaning specified in Section 2.7(f).
“Refinancing Closing
Date” has the meaning specified in Section 2.7(d).
“Refinancing Commitments”
has the meaning specified in Section 2.7(a).
“Refinancing Indebtedness”
means with respect to any Indebtedness (the “Refinanced Indebtedness”), any other Indebtedness which extends, refinances,
refunds, replaces or renews (collectively, “Refinance”) such Indebtedness; provided that (a) the principal
amount (or accreted value, if applicable) of such Refinancing Indebtedness does not exceed the principal amount (or accreted value, if
applicable) of the Refinanced Indebtedness except by an amount equal to unpaid accrued interest and premium (including applicable prepayment
or redemption penalties) thereof plus fees and expenses incurred in connection therewith plus an amount equal to any existing
commitment unutilized and letters of credit undrawn thereunder, (b) any Liens securing such Refinancing Indebtedness do not attach
to any property of any Obligor that did not secure the Refinanced Indebtedness, (c) if the Refinanced Indebtedness is Subordinated
Indebtedness, such extension, refinancing, refunding, replacement or renewal does not result in the Refinancing Indebtedness having a
shorter maturity than the Refinanced Indebtedness (or if shorter, the Loans), and (d) if the Refinanced Indebtedness is Subordinated
Indebtedness, then the terms and conditions of the Refinancing Indebtedness shall include subordination terms and conditions that are
no less favorable to the Lenders in all material respects as those that were applicable to the Refinanced Indebtedness.
“Refinancing Lenders”
has the meaning specified in Section 2.7(c).
“Refinancing Loan”
has the meaning specified in Section 2.7(b).
“Refinancing Loan
Request” has the meaning specified in Section 2.7(a).
“Refinancing Revolving
Commitments” has the meaning specified in Section 2.7(a).
“Refinancing Revolving
Lender” has the meaning specified in Section 2.7(c).
“Refinancing Revolving
Loan” has the meaning specified in Section 2.7(b).
“Refinancing Term
Commitments” has the meaning specified in Section 2.7(a).
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“Refinancing Term
Lender” has the meaning specified in Section 2.7(c).
“Refinancing Term
Loan” has the meaning specified in Section 2.7(b).
“Register”
has the meaning specified in Section 13.21.
“Related Parties”
means with respect to any Person, such Person’s Affiliates and the partners, officers, directors, trustees, employees, shareholders,
members, attorneys and other advisors, agents and controlling persons of such Person and of such Person’s Affiliates and “Related
Party” shall mean any of them.
“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.
“Relevant Governmental
Body” means (a) with respect to a Benchmark Replacement in respect of Loans denominated in Dollars, the Federal Reserve
Board or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board or the Federal
Reserve Bank of New York, or any successor thereto, (b) with respect to an Alternative Currency Benchmark Replacement in respect
of Loans denominated in Sterling, the Bank of England, or a committee officially endorsed or convened by the Bank of England or, in each
case, any successor thereto, (c) with respect to an Alternative Currency Benchmark Replacement in respect of Loans denominated in
Euros, the European Central Bank, or a committee officially endorsed or convened by the European Central Bank or, in each case, any successor
thereto and (d) with respect to an Alternative Currency Benchmark Replacement in respect of Loans denominated in any other currency,
(i) the central bank for the currency in which such Alternative Currency Benchmark Replacement is denominated or any central bank
or other supervisor which is responsible for supervising either (A) such Alternative Currency Benchmark Replacement or (B) the
administrator of such Alternative Currency Benchmark Replacement or (ii) any working group or committee officially endorsed or convened
by (A) the central bank for the currency in which such Alternative Currency Benchmark Replacement is denominated, (B) any central
bank or other supervisor that is responsible for supervising either (x) such Alternative Currency Benchmark Replacement or (y) the
administrator of such Alternative Currency Benchmark Replacement, (C) a group of those central banks or other supervisors or (D) the
Financial Stability Board or any part thereof.
“Relinquished Property”
has the meaning specified in the definition of “Like-Kind Exchange”.
“Rent Reserves”
means such reserves as may be established from time to time by the Agent in its Reasonable Credit Judgment with respect to leased locations
or bailees of the Obligors where Eligible Rental Equipment or Eligible Merchandise and Consumables Inventory is located to the extent
the Agent has not received a Collateral Access Agreement from the lessor or bailee at any such location, provided that such reserves
for any location shall not exceed two months’ rent at such location.
“Rental Equipment”
means tangible personal property which is offered for sale or rent (or offered for sale as used equipment) by an Obligor in the ordinary
course of its business or used in the business of the Obligors and their Subsidiaries and included in fixed assets in the consolidated
accounts of Holdings, including Inventory that Holdings currently describes as “rental equipment” in such consolidated accounts,
but excluding any Merchandise and Consumables Inventory.
“Replacement Property”
has the meaning specified in the definition of “Like-Kind Exchange”.
“Report”
and “Reports” each has the meaning specified in Section 13.18(a).
“Reportable Event”
means any of the events set forth in Section 4043(c) of ERISA or the regulations thereunder, other than any such event for which
the 30-day notice requirement under ERISA has been waived in regulations issued by the PBGC.
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“Required Lenders”
means, at any time, Lenders having Revolving Credit Commitments representing at least 50.1% of the aggregate Revolving Credit Commitments
at such time (excluding the Revolving Credit Commitment of any Lender that is a Defaulting Lender); provided, however, that
if the Revolving Credit Commitments have been terminated, the term “Required Lenders” means Lenders holding Revolving Loans
(including Swingline Loans) representing at least 50.1% of the aggregate principal amount of Revolving Loans (including Swingline Loans)
outstanding at such time (excluding Revolving Loans of any Lender that is a Defaulting Lender).
“Requirement of Law”
means, as to any Person, any law (statutory or common), treaty, rule or regulation or determination of an arbitrator or of a Governmental
Authority, in each case applicable to or binding upon the Person or any of its property or to which the Person or any of its property
is subject.
“Rescindable Amount”
has the meaning specified in Section 4.8.
“Reserves”
means reserves that limit the availability of credit hereunder, consisting of reserves against Availability, Eligible Merchandise and
Consumables Inventory and Eligible Rental Equipment, including (a) Bank Product Reserves, (b) Rent Reserves, (c) warehousemen’s
and bailees’ charges, (d) Priority Payable Reserves and (e) Availability Reserves, established, in the case of reserves
other than Pari Passu Debt Reserves and Waterfall Priority Hedge Agreement Reserves, by the Agent from time to time in the Agent’s
Reasonable Credit Judgment in accordance with Section 2.9 of this Agreement and, in the case of Pari Passu Debt Reserves and
Waterfall Priority Hedge Agreement Reserves, in accordance with such definitions.
“Resolution Authority”
means an EEA Resolution Authority or, with respect to any U.K. Financial Institution, a U.K. Resolution Authority.
“Responsible Officer”
means the President, any Vice President, Chief Executive Officer, Chief Financial Officer, Secretary, Assistant Secretary, Treasurer,
Assistant Treasurer, legal counsel, or any other executive or financial officer of Holdings or any other Obligor, or any other officer
having substantially the same authority and responsibility; or, with respect to compliance with financial covenants and the preparation
of the Borrowing Base Certificate, the president, chief financial officer or treasurer of Holdings, or any other officer having substantially
the same authority and responsibility.
“Restricted Subsidiary”
means any Subsidiary of Holdings that is not an Unrestricted Subsidiary.
“Revolving Credit
Commitments” means the Pro Rata Revolving Credit Commitments and the ANZ Revolving Credit Commitments, as the context requires.
“Revolving Credit
Lender” means a Lender with a Revolving Credit Commitment or an outstanding Revolving Loan.
“Revolving Loans”
means the U.S. Revolving Loans, the ROW Revolving Loans, the Canadian Revolving Loans, the European Swingline Loans and the ANZ Revolving
Loans, as the context requires.
“ROW Borrowers”
means each of (i) each Subsidiary listed on Schedule 1.2 and (ii) any Additional Borrower made a party hereto from time
to time as a ROW Borrower in accordance with Section 1.9(a) (other than any Additional Designated European Borrower that
has ceased to be a ROW Borrower in accordance with Section 1.9(a)(i)). As
of the Amendment No. 1 Effective Date, United Rentals International B.V., United Rentals B.V., United Rentals GmbH and United Rentals
(Belgium) B.V. are no longer ROW Borrowers.
“ROW Credit Facilities”
means the revolving credit and swingline facilities provided for by this Agreement extended to the ROW Borrowers.
“ROW Obligations”
means, with respect to the Indebtedness of the ROW Borrowers under the Loan Documents, any principal, premium (if any), interest (including
interest accruing on or after the filing of any petition in bankruptcy or for reorganization relating to any ROW Borrower whether or not
a claim for post-filing interest is allowed in such proceedings), fees, charges, expenses, reimbursement obligations, Guarantees of such
Indebtedness (or of Obligations in respect thereof), other monetary obligations of any ROW Borrower of any nature and all other amounts
payable by any ROW Borrower under the Loan Documents or in respect thereof; provided that, “ROW Obligations” shall
in any event include Designated Bank Products Obligations of any ROW Borrower; provided, further, that “ROW Obligations”
shall not include any Canadian Obligations, European Obligations, U.S. Obligations or ANZ Obligations.
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“ROW Revolving Loans”
means the revolving loans made to the ROW Borrowers pursuant to Section 2.1(a)(iii) or any amendment to this Agreement
entered into pursuant to Section 2.5, 2.6 or 2.7, each Agent Advance made to a ROW Borrower and each ROW Swingline
Loan.
“ROW Swingline Commitment”
means the commitment of the ROW Swingline Lender to make loans pursuant to Section 2.3(b).
“ROW Swingline Lender”
means the London Bank or any successor financial institution agreed to by the Borrowers’ Agent and the Agent, in its capacity as
provider of ROW Swingline Loans.
“ROW Swingline Loan”
and “ROW Swingline Loans” have the meanings specified in Section 2.3(b).
“ROW Swingline Loan
Minimum” means (a) in the case of a ROW Swingline Loan denominated in Dollars, $100,000, (b) in the case of a ROW
Swingline Loan denominated in Euro, €100,000 and (c) in the case of a ROW Swingline Loan denominated in Sterling, £100,000.
“ROW Swingline Loan
Multiple” means (a) in the case of a ROW Swingline Loan denominated in Dollars, $50,000, (b) in the case of a ROW
Swingline Loan denominated in Euro, €50,000 and (c) in the case of a ROW Swingline Loan denominated in Sterling, £50,000.
“ROW Swingline Sublimit”
has the meaning specified in Section 2.3(b).
“RSC Merger”
means the merger of RSC Holdings Inc. with and into Holdings, as effected on and subsequent to April 30, 2012.
“RSC Merger Transactions”
means the transactions necessary to effect the RSC Merger, including (a) the RSC Merger, (b) the merger of all of the U.S. Subsidiaries
of RSC Holdings Inc. and their successors in interest into one or more Subsidiaries of Holdings, (c) the mergers of one or more U.S.
Subsidiaries of Holdings into one or more other U.S. Subsidiaries of Holdings, (d) the merger, amalgamation, consolidation and/or
liquidation of RSC Holdings Inc.’s Foreign Subsidiaries into one or more Foreign Subsidiaries of the Company, (e) the issuance
of debt securities and borrowings under the Existing Loan Agreement in connection with the RSC Merger and (f) any other transactions
contemplated in connection with the RSC Merger and any other financing transactions in connection with the RSC Merger.
“RWT-Exempt Status”
means “RWT-exempt status” as defined in section YA 1 of the Income Tax Act 2007.
“S&P”
means S&P Global Ratings, or any successor thereto.
“Sanctioned Country”
means a country, region or territory that is, or whose government is, the subject of economic sanctions administered or enforced by the
U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC), the U.S. Department of State, other relevant sanctions
authority of the United States or Canada, the United Nations Security Council, the Australian Department of Foreign Affairs and Trade,
the European Union or any member state thereof in which an Obligor is organized or His Majesty’s Treasury of the United Kingdom
under any Sanctions Law (at the Agreement Date, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic,
the Crimea Region of Ukraine, the Kherson and Zaporizhzhia regions of Ukraine, Cuba, Iran, North Korea and Syria).
“Sanctioned Person”
means a Person that is the target of any sanctions under any Sanctions Laws.
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“Sanctions Laws”
means any law relating to economic sanctions or anti-terrorism, including any law administered or enforced by the U.S. Department of the
Treasury’s Office of Foreign Assets Control (OFAC), U.S. Department of State, other relevant sanctions authority of the United States,
the government of Canada, the United Nations Security Council, the European Union or any member state thereof in which an Obligor is organized,
His Majesty’s Treasury of the United Kingdom or the Australian Department of Foreign Affairs and Trade.
“SEC” means
the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.
“Second Currency”
has the meaning specified in Section 14.20.
“Section 2.6
Additional Amendment” has the meaning specified in Section 2.6(c).
“Secured Obligors”
means, collectively, the U.S. Borrowers, the Canadian Borrowers, the U.S. Guarantors and the Canadian Guarantors.
“Secured Parties”
means, collectively, the Agent, each Lender, each affiliate or branch of any Lender that makes Loans pursuant to Section 2.2(c),
each Bank, each Letter of Credit Issuer, the Indemnified Persons and each of the Agent, any Lender or Affiliate or branch of the Agent
or such Lender to which is owed Designated Bank Products Obligations.
“Securitization Transaction”
means any Equipment Securitization Transaction or Receivables Securitization Transaction.
“Security Documents”
means the U.S. Security Documents and the Canadian Security Documents.
“September 2017
4⅞% Senior Note Indenture” means that certain Indenture dated as of September 22, 2017 among the Company, Holdings,
certain subsidiaries of the Company and Wells Fargo Bank, National Association, as Trustee.
“September 2017
4⅞% Senior Notes” means the 4⅞% Senior Notes due 2028 issued by the Company pursuant to the September 2017
4⅞% Senior Note Indenture.
“Settlement”
and “Settlement Date” have the meanings specified in Section 13.15(a)(i).
“Significant Subsidiary”
means any Restricted Subsidiary that would be a significant subsidiary of Holdings as determined in accordance with the definition in
Rule 1-02(w) of Article 1 of Regulation S-X promulgated by the SEC and as in effect on the Agreement Date.
“SOFR”
means the Secured Overnight Financing Rate as administered by the SOFR Administrator.
“SOFR Administrator”
means the Federal Reserve Bank of New York (or a successor administrator).
“Solidary Claim”
has the meaning specified in Section 13.22.
“Solvent”
or “Solvency” 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);
(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;
(c) it
is then able and expects to be able to pay its debts (including contingent debts and other commitments) as they mature; and
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(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.
“SONIA”
means, with respect to any Business Day, a rate per annum equal to the Sterling Overnight Index Average for such Business Day published
by the SONIA Administrator on the SONIA Administrator’s Website on the immediately succeeding Business Day.
“SONIA Administrator”
means the Bank of England (or any successor administrator of the Sterling Overnight Index Average).
“SONIA Administrator’s
Website” means the Bank of England’s website, currently at http://www.bankofengland.co.uk, or any successor source for
the Sterling Overnight Index Average identified as such by the SONIA Administrator from time to time.
“SONIA Rate”
when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to Daily Simple SONIA.
“SONIA Rate Loan”
means a Loan during any period in which it bears interest based on Daily Simple SONIA.
“Special Purpose
Vehicle” means any ES Special Purpose Vehicle or Receivables Entity.
“Specified Availability”
means, as of any date of determination, and without duplication, the sum of (a) Combined Availability, (b) Suppressed Availability
(if positive) and (c) Unrestricted Cash of Holdings, any Borrower and any Restricted Subsidiary (i) held in any bank account
or securities account in the United States or Canada subject to a Control Agreement or (ii) held in an account with the Agent (other
than an account referred to in clause (a), (b) or (c) of the definition of “Material Account”);
provided that for the purpose of calculating Specified Availability, not more than 50% of any threshold or test based on Specified
Availability may be satisfied with Suppressed Availability. The Company shall use its commercially reasonable efforts to afford the Agent
access to electronically monitor on a current basis any accounts referred to in clause (c); provided that, so long
as the Company uses its commercially reasonable efforts to provide such access, such access shall not be a condition to whether amounts
in such accounts are considered part of Specified Availability.
“Specified Default”
means any Event of Default pursuant to paragraphs (a), (e), (f) or (h) of Section 10.1,
any material misrepresentation of the Borrowing Base in a Borrowing Base Certificate, the failure to deliver a Borrowing Base Certificate
in a timely manner in accordance with Section 7.4(a) or any Event of Default arising from a material breach of Section 7.17.
“Specified Existing
Commitment” has the meaning specified in Section 2.6(a).
“Specified Transaction”
means any (a) Investment, (b) sale or other disposition of assets (including any disposal, abandonment or discontinuance of
operations) other than in the ordinary course of business, (c) incurrence, repayment or refinancing of Indebtedness, (d) Permitted
Distribution, (e) designation or redesignation of an Unrestricted Subsidiary or Restricted Subsidiary, (f) provision of Incremental
Revolving Commitment increases or (g) other event or transaction, in each case that by the terms of the Loan Documents requires pro
forma compliance with a test or covenant hereunder or requires such test or covenant to be calculated on a “pro forma basis.”
“Standard Securitization
Undertakings” means representations, warranties, covenants and indemnities entered into by Holdings or any of its Restricted
Subsidiaries that Holdings determines in good faith are customary or otherwise necessary or advisable in connection with any Securitization
Transaction.
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“Sterling”
or “£” means the lawful currency of the United Kingdom of Great Britain and Northern Ireland.
“Subordinated Indebtedness”
means any Indebtedness expressly subordinated in writing to, or required under the Loan Documents to be subordinated to, any Indebtedness
under the Loan Documents, except any Indebtedness that is subject to Lien subordination but not payment subordination.
“Subsidiary”
of a Person means any corporation, association, partnership, limited liability company, unlimited liability company, joint venture or
other business entity of which more than 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 Holdings.
“Supermajority Lenders”
means, at any time, Lenders having Revolving Credit Commitments representing at least 66% of the aggregate Revolving Credit Commitments
at such time (excluding the Revolving Credit Commitment of any Lender that is a Defaulting Lender); provided, however, that
if the Revolving Credit Commitments have been terminated, the term “Supermajority Lenders” means Lenders holding Revolving
Loans (including Swingline Loans) representing at least 66% of the aggregate principal amount of Revolving Loans (including Swingline
Loans) outstanding at such time (excluding Revolving Loans of any Lender that is a Defaulting Lender).
“Supported QFC”
has the meaning specified in Section 14.28.
“Supporting Letter
of Credit” has the meaning specified in Section 2.4(g).
“Suppressed Availability”
means (a) the amount of the Combined Borrowing Base minus (b) the Maximum Revolver Amount.
“Swap Obligation”
means, with respect to any Guarantor, any obligation to pay or perform under any agreement, contract or transaction that constitutes a
“swap” within the meaning of Section 1a(47) of the Commodity Exchange Act.
“Swingline Lender”
means the U.S. Swingline Lender, the ROW Swingline Lender, the Canadian Swingline Lender, the European Swingline Lender or the ANZ Swingline
Lender, as the context requires.
“Swingline Loan”
and “Swingline Loans” means the collective reference to the U.S. Swingline Loan or U.S. Swingline Loans,
the ROW Swingline Loan or ROW Swingline Loans, the Canadian Swingline Loan or the Canadian Swingline Loans, the European Swingline Loan
or the European Swingline Loans or the ANZ Swingline Loan or the ANZ Swingline Loans, in each case as the context requires.
“T2” means
the real time gross settlement system operated by the Eurosystem or any successor system.
“TARGET Day”
means any day on which T2 is open for the settlement of payments in Euro.
“Taxes”
means any and all present or future taxes, levies, imposts, deductions, charges or withholdings and all liabilities (including interest,
penalties and additions to tax) with respect thereto, in each case in the nature of a tax, imposed by any Governmental Authority.
“TEG Letter”
has the meaning specified in Section 3.1(c).
“Term CORRA”
means:
(a) for
any Term CORRA Interest Period with respect to a Term CORRA Loan, the rate per annum equal to the forward-looking term rate based on CORRA,
as published on the applicable Reuters screen page (or other commercially available source providing such quotations as may be designated
by the Agent from time to time) on the day that is two Business Days prior to the first day of such Term CORRA Interest Period (or if
such day is not a Business Day, then on the immediately preceding Business Day) with a term equivalent to such Term CORRA Interest Period;
and
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(b) for
any interest calculation with respect to a Canadian Prime Rate Loan on any date, the rate per annum equal to the forward-looking term
rate based on CORRA, as published on the applicable Reuters screen page (or other commercially available source providing such quotations
as may be designated by the Agent from time to time) on the day that is two Business Days prior to such date (or if such date is not a
Business Day, then on the immediately preceding Business Day) with a one-month term;
provided that, if Term CORRA shall be less
than zero, such rate shall be deemed zero for purposes of this Agreement.
“Term CORRA Interest
Payment Date” means, with respect to a Term CORRA Loan, (a) the last day of each Term CORRA Interest Period applicable
to such Term CORRA Loan, (b) if any Term CORRA Interest Period exceeds three months, the respective dates that fall every three months
after the beginning of such Term CORRA Interest Period shall be a Term CORRA Interest Payment Date and (c) the Termination Date.
“Term CORRA Interest
Period” means, with respect to each Term CORRA Loan, the period commencing on the Funding Date of such Loan or on the Continuation/Conversion
Date on which the Loan is converted into or continued as a Term CORRA Loan, and ending on (i) the date one or three months thereafter
(in each case, subject to availability for the interest rate applicable), or (ii) any other date agreed to by all the Lenders making
or holding such Loan, in each case, as selected by the applicable Canadian Borrower in its Notice of Borrowing or Notice of Continuation/Conversion,
provided that:
(a) the
initial Term CORRA Interest Period for any Borrowing of Term CORRA Loans shall commence on the date of such Borrowing (including the date
of any conversion from a Borrowing of Canadian Prime Rate Loans, as applicable) and each Term CORRA Interest Period occurring thereafter
in respect of such Borrowing shall commence on the day on which the next preceding Term CORRA Interest Period expires;
(b) if
any Term CORRA Interest Period of one month or longer relating to a Borrowing of a Term CORRA Loan begins on the last Business Day of
a calendar month or begins on a day for which there is no numerically corresponding day in the calendar month at the end of such Term
CORRA Interest Period, such Term CORRA Interest Period shall end on the last Business Day of the calendar month at the end of such Term
CORRA Interest Period;
(c) if
any Term CORRA Interest Period would otherwise expire on a day that is not a Business Day, such Term CORRA Interest Period shall expire
on the next succeeding Business Day, provided that if any Term CORRA Interest Period of one month or longer in respect of a Term
CORRA Loan would otherwise expire on a day that is not a Business Day but is a day of the month after which no further Business Day occurs
in such month, such Term CORRA Interest Period shall expire on the next preceding Business Day; and
(d) none
of the Canadian Borrowers nor the Borrowers’ Agent shall be entitled to elect any Term CORRA Interest Period in respect of any Term
CORRA Loan if such Term CORRA Interest Period would extend beyond the Maturity Date.
“Term CORRA Loan”
means a Canadian Revolving Loan (other than a Canadian Prime Rate Loan) that bears interest based on Term CORRA.
“Term SOFR”
means:
(a) for
any Interest Period with respect to a Term SOFR Loan, the rate per annum equal to the Term SOFR Screen Rate two U.S. Government Securities
Business Days prior to the commencement of such Interest Period with a term equivalent to such Interest Period; provided that if
the rate is not published prior to 11:00 a.m. (New York City time) on such determination date and a Benchmark Transition Event with
respect to such Term SOFR Loan has not occurred, then Term SOFR means the Term SOFR Screen Rate on the first U.S. Government Securities
Business Day immediately prior thereto; and
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(b) for
any interest calculation with respect to a Base Rate Loan on any date, the rate per annum equal to the Term SOFR Screen Rate two U.S.
Government Securities Business Days prior to such date with a term of one month commencing that day; provided, that if the rate
is not published prior to 11:00 a.m. (New York City time) on such determination date, the Term SOFR means the Term SOFR Screen Rate
on the first U.S. Government Securities Business Day immediately prior thereto;
provided that if the Term SOFR determined
in accordance with either of the foregoing clauses (a) or (b) of this definition would otherwise be less than zero, Term SOFR
shall be deemed zero for purposes of this Agreement.
“Term SOFR Loan”
means a Loan that bears interest at a rate based on clause (a) of the definition of “Term SOFR”.
“Term SOFR Screen
Rate” means the forward-looking SOFR term rate administered by CME (or any successor administrator satisfactory to the Agent)
and published on the applicable Reuters screen page (or such other commercially available source providing such quotations as may
be designated by the Agent from time to time).
“Termination Date”
means the earliest to occur of (a) the Maturity Date, (b) the date the Commitments are terminated either by the Borrowers pursuant
to Section 4.3 or by the Required Lenders pursuant to Section 10.2, and (c) the date this Agreement is otherwise
terminated pursuant to the terms of this Agreement.
“Titled Goods”
means vehicles and similar items that are (a) subject to certificate-of-title statutes or regulations under which a security interest
in such items are perfected by an indication on the certificates of title of such items (in lieu of filing of financing statements under
the UCC), (b) evidenced by certificates of ownership or other registration certificates issued or required to be issued under the
laws of any jurisdiction or (c) ”motor vehicles” for purposes of the PPSA.
“TLB Agent”
means Bank of America, as agent under the TLB Credit Agreement.
“TLB Credit Agreement”
means the Credit and Guaranty Agreement, dated as of October 31, 2018, as amended and restated as of February 14, 2024, among
Holdings, the Company, each subsidiary of the Company party thereto, the lenders from time to time party thereto and Bank of America,
N.A., as TLB Agent.
“Total Indebtedness
Leverage Ratio” means on any date of determination, a ratio (a) the numerator of which is the aggregate principal amount
(or accreted value, as the case may be) of Indebtedness for borrowed money of the Consolidated Parties on a consolidated basis outstanding
on such date, less the amount of cash and Cash Equivalents that (i) would be stated on the consolidated balance sheet of the
Consolidated Parties and held by the Consolidated Parties, as determined in accordance with GAAP, as of the date of determination, and
(ii) constitutes (A) Unrestricted Cash, (B) cash and Cash Equivalents restricted in favor of the Obligations (which may
also include cash and Cash Equivalents securing other Indebtedness that is secured by a Permitted Lien on the Collateral on a pari
passu or junior lien basis with the Obligations) or (C) to the extent such Indebtedness is included in clause (a) above,
proceeds of Indebtedness incurred to finance a Permitted Acquisition or other permitted Investment that are subject to customary escrow
or similar arrangements pending consummation of such Permitted Acquisition or other Investment, and (b) the denominator of which
is the Consolidated EBITDA for the most recent period of four consecutive Fiscal Quarters for which financial information in respect thereof
is available, in each case calculated on a pro forma basis.
“Transactions”
means, collectively, (a) the amendment and restatement of the Existing Loan Agreement, (b) the execution, delivery and performance
by the Obligors of the Loan Documents to which they are a party and the making of the borrowings hereunder and (c) the payment of
related fees and expenses in connection with each of the foregoing.
“Type”
means any type of a Loan determined with respect to the interest option applicable thereto, which shall be a Term SOFR Loan, a Daily SOFR
Loan, a Term CORRA Loan, a EURIBOR Loan, a Base Rate Loan, a Canadian Prime Rate Loan, a SONIA Rate Loan or a Bank Bill Rate Loan.
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“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.
“U.K. Borrower”
means any Borrower (a) that is organized or formed under the laws of any constituent part of the United Kingdom or (b) payment
from which under this Agreement or any other Loan Document are subject to withholding Taxes imposed by the laws of the United Kingdom.
“U.K. Financial Institution”
means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom
Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated
by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates
of such credit institutions or investment firms.
“U.K. Resolution
Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of
any U.K. Financial Institution.
“Unfunded Foreign
Borrowing Participation” means, in respect of any Participating Canadian Lender’s or Participating ROW Lender’s
Foreign Borrowing Participation in any Canadian Revolving Loan or ROW Revolving Loan, respectively, funded by Bank of America and subject
to Section 2.10, the outstanding principal amount of such Foreign Borrowing Participation minus the amount of such
Participating Canadian Lender’s or Participating ROW Lender’s Funded Foreign Borrowing Participation in such Canadian Revolving
Loan or ROW Revolving Loan, respectively.
“Unfunded Pension
Liability” means (a) with respect to a Pension Plan that is not a Canadian DB Pension Plan, the excess of a Pension Plan’s
benefit liabilities under Section 4001(a)(16) of ERISA or other applicable Law, over the current value of that Pension Plan’s
assets, determined in accordance with the assumptions used for funding the Pension Plan pursuant to Section 412 of the Code or other
applicable laws for the applicable plan year or, (b) with respect to any Canadian DB Pension Plan, any unfunded liability or solvency
deficiency as determined for the purposes of the PBA on a “wind-up basis” that is set out in the actuarial valuation report
most recently filed with a Governmental Authority.
“Unrestricted Cash”
means cash and Cash Equivalents, other than (a) as disclosed in the consolidated financial statements of the Consolidated Parties
as a line item on the balance sheet as “restricted cash” and (b) cash and Cash Equivalents of any Subsidiary to the extent
such cash and Cash Equivalents are not permitted by applicable law or regulation to be dividended, distributed or otherwise transferred
to a Borrower or any Restricted Subsidiary that is not subject to a similar restriction.
“Unrestricted Subsidiary”
means (a) United Rentals Receivables LLC II, (b) any other Special Purpose Vehicle, (c) any Subsidiary of Holdings (other
than a Borrower) designated by the Borrowers’ Agent as an Unrestricted Subsidiary hereunder by written notice to the Agent and (d) any
Subsidiary of an Unrestricted Subsidiary; provided that the Borrowers’ Agent shall only be permitted to designate a new Unrestricted
Subsidiary pursuant to clause (c) above after the Closing Date if (i) no Default or Event of Default has occurred
and is continuing or would result therefrom, (ii) such Unrestricted Subsidiary is capitalized (to the extent capitalized by Holdings
or any of the Subsidiaries) through Investments as permitted by, and in compliance with, Section 8.4, and any prior or concurrent
Investments in such Subsidiary by Holdings or any of its Restricted Subsidiaries shall be deemed to have been made under Section 8.4,
(iii) without duplication of clause (ii), any assets owned by such Unrestricted Subsidiary at the time of the initial
designation thereof are treated as Investments pursuant to Section 8.4, (iv) at the time such Subsidiary is designated
an Unrestricted Subsidiary, (x) the Fixed ChargeInterest
Coverage Ratio (as defined in the TLB Credit Agreement as in effect on the Agreement Date),
determined on a pro forma basis, is not less than 2.00:1.00 or (y) the Payment Conditions are satisfied and (v) after giving
effect to such designation, no Out-of-Formula Condition exists; provided, further, that at the time of such designation,
(x) the aggregate total assets of all Unrestricted Subsidiaries shall not exceed 10% of the total assets of Holdings and its Subsidiaries
as at such date and (y) the aggregate total revenues of all Unrestricted Subsidiaries shall not exceed 10% of the total revenues
of Holdings and its Subsidiaries for the four consecutive Fiscal Quarter period most recently ended for which financial statements are
available. The Borrowers’ Agent may designate any Unrestricted Subsidiary to be a Restricted Subsidiary for purposes of this Agreement
at any time; provided that (A) such Unrestricted Subsidiary, after giving effect to such designation, shall be a Wholly Owned
Subsidiary of Holdings and (B) no Default or Event of Default shall have occurred and be continuing or would result therefrom. Each
Unrestricted Subsidiary as of the Closing Date shall be set forth in Schedule 1.4. Notwithstanding the foregoing, for so long
as the TLB Credit Agreement is in effect or any other secured Indebtedness incurred pursuant to Section 8.1(c) or otherwise
secured pursuant to Section 8.2(c) or 8.2(ii) is outstanding in a principal amount in excess of $300,000,000,
in no event shall any Subsidiary that is a “Restricted Subsidiary” under the TLB Credit Agreement or such other secured Indebtedness,
as applicable, be designated as an Unrestricted Subsidiary hereunder.
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“Unused Letter of
Credit Subfacility” means an amount equal to the Letter of Credit Subfacility minus the Equivalent Amount in Dollars
of the sum of (a) the aggregate undrawn amount of all outstanding Letters of Credit plus, without duplication, (b) the
aggregate unpaid reimbursement obligations with respect to all Letters of Credit.
“Unused Line Fee”
has the meaning specified in Section 3.5.
“UR Canada”
has the meaning specified in the introductory paragraph to this Agreement.
“U.S. Availability”
means, at any time, (a) the lesser of (i) the Maximum Revolver Amount and (ii) the U.S. Borrowing Base, minus (b) the
sum of (i) the Aggregate U.S. Revolver Outstandings, (ii) the Aggregate ROW Revolver Outstandings, (iii) the Aggregate
European Swingline Outstandings, (iv) the Aggregate Canadian Revolver Outstandings Funded On U.S. Borrowing Base and (v) the
Aggregate ANZ Revolver Outstandings.
“U.S. Bank”
means Bank of America, N.A., a national banking association, or any successor entity thereto.
“U.S. Borrowers”
has the meaning specified in the introductory paragraph to this Agreement.
“U.S. Borrowing
Base” means, at any time, an amount in Dollars equal to:
(a) the
sum of
(i) the
Merchandise and Consumables Inventory Formula Amount with respect to the U.S. Obligors; plus
(ii) the
lesser of (x) 100% of the Net Book Value of Eligible Rental Equipment of the U.S. Obligors and (y) 85% of the Net Orderly
Liquidation Value of the Eligible Rental Equipment of the U.S. Obligors; minus
(b) the
sum of (i) the amount of Pari Passu Debt Reserves with respect to Indebtedness of the U.S. Obligors, plus (ii) the amount
of all other Reserves related to the U.S. Credit Facilities, the ROW Credit Facilities, the European Credit Facility and/or the ANZ Credit
Facilities from time to time established by the Agent in accordance with Section 2.9 of this Agreement or in accordance with
the definition of “Waterfall Priority Hedge Agreement Reserve”.
“U.S. Collateral”
means all of the U.S. Obligors’ personal property from time to time subject to the Agent’s Liens securing payment or
performance of any Obligations pursuant to the U.S. Security Documents, other than Excluded Assets (as defined in the U.S. Security Agreement).
“U.S. Credit
Facilities” means the revolving credit, swingline and letter of credit facilities provided for by this Agreement extended to
the U.S. Borrowers.
“U.S. Government
Securities Business Day” means any day except for (a) a Saturday, (b) a Sunday or (c) a day on which the Securities
Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for
purposes of trading in United States government securities.
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“U.S. Guarantee
Agreement” means the Third Amended and Restated U.S. Guarantee Agreement, dated as of February 15, 2019, from the U.S. Guarantors
in favor of the Secured Parties, as reaffirmed as of the Agreement Date.
“U.S. Guarantors”
means (a) Holdings, (b) each Domestic Subsidiary, whether now existing or hereafter created or acquired (other than any Subsidiary
that is an Excluded Subsidiary, Foreign Subsidiary Holding Company or Subsidiary of a Foreign Subsidiary,
unless the Company otherwise determines or that is not
required under Section 7.16(a) to provide a Guarantee of the U.S. Obligations), and (c) each other Person who
guarantees payment or performance in whole or in part of the U.S. Obligations. The U.S. Guarantors as of the Agreement Date are set forth
on Schedule 1.2A under the heading “U.S. Guarantors”.
“U.S. Intellectual
Property Security Agreement” means the Amended and Restated Intellectual Property Security Agreement, dated as of October 14,
2011, among the U.S. Obligors for the benefit of the Secured Parties, and as amended, amended and restated, modified or supplemented
from time to time.
“U.S. Obligations”
means, with respect to the Indebtedness of the U.S. Obligors under the Loan Documents, any principal, premium (if any), interest (including
interest accruing on or after the filing of any petition in bankruptcy or for reorganization relating to any U.S. Obligor whether or not
a claim for post-filing interest is allowed in such proceedings), fees, charges, expenses, reimbursement obligations, Guarantees of such
Indebtedness (or of Obligations in respect thereof), other monetary obligations of any U.S. Obligor of any nature and all other amounts
payable by any U.S. Obligor under the Loan Documents or in respect thereof, excluding in each case Excluded Swap Obligations; provided
that “U.S. Obligations” shall in any event include Designated Bank Products Obligations of any U.S. Obligor, any ROW Obligations
guaranteed by the U.S. Obligors, any Canadian Obligations guaranteed by the U.S. Obligors, any European Obligations guaranteed by the
U.S. Obligors and any ANZ Obligations guaranteed by the U.S. Obligors (in each case, to the extent such Obligations are not Excluded Swap
Obligations).
“U.S. Obligors”
means the U.S. Borrowers and the U.S. Guarantors.
“U.S. Person”
means any Person that is a “United States Person” as defined in Section 7701(a)(30) of the Code.
“U.S. Revolving
Loans” means the revolving loans made to the U.S. Borrowers pursuant to Section 2.1(a)(i), or any amendment to this
Agreement entered into pursuant to Section 2.5, 2.6 or 2.7, each Agent Advance made to a U.S. Borrower and each
U.S. Swingline Loan.
“U.S. Security Agreement”
means the Fifth Amended and Restated U.S. Security Agreement, dated as of the Closing Date, among Holdings, the U.S. Borrowers and
the U.S. Guarantors party thereto, for the benefit of the Secured Parties.
“U.S. Security
Documents” means, collectively, (a) the U.S. Security Agreement, (b) any security agreement executed and delivered
after the Agreement Date by a Person that is or becomes a U.S. Obligor hereunder in accordance with Section 7.16, (c) the
U.S. Intellectual Property Security Agreement, and (d) any Control Agreement or other agreements, instruments and documents
heretofore, now or hereafter securing any of the U.S. Obligations.
“U.S. Special Resolution
Regimes” has the meaning specified in Section 14.28.
“U.S. Swingline
Commitment” means the Commitment of the U.S. Bank to make loans pursuant to Section 2.3(a).
“U.S. Swingline
Lender” means the U.S. Bank or any successor financial institution agreed to by the Agent, in its capacity as provider
of U.S. Swingline Loans.
“U.S. Swingline
Loan” and “U.S. Swingline Loans” have the meanings specified in Section 2.3(a).
“U.S. Swingline
Sublimit” has the meaning specified in Section 2.3(a).
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“U.S. Tax Compliance
Certificate” has the meaning specified in Section 5.1(f)(ii).
“Value”
means, with reference to the value of Eligible Merchandise and Consumables Inventory, value determined on the basis of the lower of cost
or market value of such Eligible Merchandise and Consumables Inventory, with the cost thereof calculated on a first-in, first-out basis,
determined in accordance with GAAP.
“VAT” means
(a) any Tax imposed in compliance with the Council Directive of 28 November 2006 on the common system of value added tax (EC
Directive 2006/112) and (b) any other Tax of a similar nature, whether imposed in a member state of the European Union in substitution
for, or levied in addition to, such Tax referred to in clause (a) of this definition, or imposed elsewhere.
“VAT Recipient”
has the meaning specified in Section 5.1(i).
“VAT Subject Party”
has the meaning specified in Section 5.1(i).
“VAT Supplier”
has the meaning specified in Section 5.1(i).
“Vendor Lease”
means a lease pursuant to which any Person leases Inventory or Rental Equipment from a Vendor Lessor, whether or not such lease constitutes
an operating lease or a Capital Lease under GAAP and whether or not such lease constitutes a true lease or a secured transaction under
the Code or other applicable law.
“Vendor Lessor”
means any Person who leases Inventory or Rental Equipment to Holdings, a Borrower or a Guarantor pursuant to a Vendor Lease.
“Voting Stock”
means any class or classes of Capital Stock pursuant to which the holders thereof have the general voting power under ordinary circumstances
to elect a majority of the board of directors, managers or trustees of any Person (irrespective of whether or not, at the time, stock
of any other class or classes shall have, or might have, voting power by reason of the happening of any contingency).
“Waterfall Priority
Hedge Agreement” means a Hedge Agreement constituting a Bank Product entered into with an Obligor for which the Agent has received
a Waterfall Priority Hedge Agreement Reserve Notice that remains in effect; provided that such Hedge Agreement shall constitute
a Waterfall Priority Hedge Agreement only to the extent of the Waterfall Priority Hedge Agreement Reserve therefor.
“Waterfall Priority
Hedge Agreement Reserve” means, with respect to a Waterfall Priority Hedge Agreement, a reserve in an amount equal to the maximum
Designated Bank Products Obligations in respect thereof set forth in the Waterfall Priority Hedge Agreement Reserve Notice therefor (as
updated from time to time in accordance with the definition thereof) received by the Agent or, at the election of the Borrower (as reflected
in the most recent Borrowing Base Certificate delivered by the Borrowers’ Agent), the Hedge Termination Value with respect to the
obligations under such Waterfall Priority Hedge Agreement.
“Waterfall Priority
Hedge Agreement Reserve Notice” means, with respect to a Hedge Agreement constituting a Bank Product entered into with an Obligor,
a written notice by the provider of such Hedge Agreement and the Borrowers’ Agent to the Agent, in form and substance reasonably
satisfactory to the Agent, delivered to the Agent within 10 Business Days (or such later date as shall be agreed to by the Agent
in its sole discretion) after the later of the Closing Date and the date of creation of such Hedge Agreement that (a) describes such
Hedge Agreement in reasonable detail (including the date and parties to such Hedge Agreement) and (b) sets forth the maximum Designated
Bank Products Obligations in respect of such Hedge Agreement to be secured by the applicable Collateral, as such notice may be updated
from time to time (not more often than once per calendar month except to permanently revoke such notice), pursuant to a writing, in form
and substance reasonably satisfactory to the Agent, by the provider of such Hedge Agreement and the Borrowers’ Agent received by
the Agent, to increase or decrease (including to zero) the maximum Designated Bank Products Obligations in respect of such Hedge Agreement
to be secured by the applicable Collateral.
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“Wholly Owned Subsidiary”
means, with respect to any Person, a Subsidiary of such Person, all of the Capital Stock of which (other than directors’ qualifying
shares or nominee or other similar shares required pursuant to applicable law) are owned by such Person or another Wholly Owned Subsidiary
of such Person.
“Write-Down and Conversion
Powers” means, (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution
Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers
are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers of the applicable Resolution
Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any U.K. Financial Institution
or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations
of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised
under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related
to or ancillary to any of those powers.
“Yak Acquisition”
means the acquisition by the Company of Yak Access, LLC, a Mississippi limited liability company, contemplated by the Membership Interest
Purchase Agreement, dated as of March 1, 2024, by and between the Company and Yak Holdings III, LLC, as amended from time to time.
“Yak Transactions”
means (a) the Yak Acquisition and (b) any other transactions contemplated in connection with the Yak Acquisition and any other
financing transactions in connection with the Yak Acquisition.
1.2 Accounting
Terms. (a) Any accounting term used in this Agreement shall have, unless otherwise specifically provided herein, the meaning
customarily given in accordance with GAAP, and all financial computations in this 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.
(b) If
at any time any change in GAAP or the application thereof would affect the computation or interpretation of any financial ratio, basket,
requirement or other provision set forth in any Loan Document, and either the Borrowers’ Agent or the Required Lenders shall so
request, the Agent and the Borrowers’ Agent shall negotiate in good faith to amend such ratio, basket, requirement or other provision
to preserve the original intent thereof in light of such change in GAAP or the application thereof (and the Lenders hereby irrevocably
authorize the Agent to enter into any such amendment); provided that, until so amended, (i)(x) such ratio, basket, requirement
or other provision shall continue to be computed or interpreted in accordance with GAAP or the application thereof prior to such change
therein and (y) upon request by the Agent, the Borrowers’ Agent shall provide to the Agent and the Lenders a written reconciliation
between calculations of such ratio, basket, requirement or other provision made before and after giving effect to such change in GAAP
or the application thereof or (ii) the Borrowers’ Agent may elect to fix GAAP (for purposes of such ratio, basket, requirement
or other provision) as of another later date notified in writing to the Agent from time to time.
1.3 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 this Agreement as a whole and not
to any particular provision of this Agreement; and Subsection, Section, Schedule and Exhibit references are to this Agreement unless
otherwise specified.
(c) The
term “documents” includes any and all instruments, documents, agreements, certificates, indentures, notices and other writings,
however evidenced.
(d) The
term “including” is not limiting and means “including without limitation.”
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(e) 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.”
(f) The
word “or” is not exclusive.
(g) Unless
otherwise expressly provided herein, (i) references to agreements (including this Agreement) and other contractual instruments shall
be deemed to include all subsequent amendments, supplements and other modifications thereto, but only to the extent such amendments, supplements
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, replacing, supplementing or interpreting
the statute or regulation.
(h) The
captions and headings of this Agreement and other Loan Documents are for convenience of reference only and shall not affect the interpretation
of this Agreement.
(i) This
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.
(j) This
Agreement and the other Loan Documents are the result of negotiations among and have been reviewed by counsel to the Agent, the Borrowers,
the Guarantors and the other parties, and are the products of all parties. Accordingly, they shall not be construed against the Lenders
or the Agent merely because of the Agent’s or Lenders’ involvement in their preparation.
(k) For
purposes of any Collateral located in the Province of Québec or charged by any deed of hypothec (or any other Loan Document) and
for all other purposes pursuant to which the interpretation or construction of a Loan Document may be subject to the laws of the Province
of Québec or a court or tribunal exercising jurisdiction in the Province of Québec, (i) ”personal property”
shall be deemed to include “movable property”, (ii) ”real property” shall be deemed to include “immovable
property”, (iii) ”tangible property” shall be deemed to include “corporeal property”, (iv) ”intangible
property” shall be deemed to include “incorporeal property”, (v) ”security interest”, “mortgage”
and “lien” shall be deemed to include a “hypothec,” “prior claim” and a “resolutory clause”,
(vi) all references to filing, registering or recording under the UCC or the PPSA shall be deemed to include publication under the
Civil Code of Québec, (vii) all references to “perfection” of or “perfected” Liens shall be deemed
to include a reference to the “opposability” of such Liens to third parties, (viii) any “right of offset”,
“right of setoff” or similar expression shall be deemed to include a “right of compensation”, (ix) ”goods”
shall be deemed to include “corporeal movable property” other than chattel paper, documents of title, instruments, money and
securities, (x) an “agent” shall be deemed to include a “mandatary”, (xi) ”construction liens”
shall be deemed to include “legal hypothecs”, (xii) ”joint and several” shall be deemed to include “solidary”,
(xiii) ”gross negligence or willful misconduct” shall be deemed to be “intentional or gross fault”, (xiv) ”beneficial
ownership” shall be deemed to include “ownership on behalf of another as mandatary”, (xv) ”easement”
shall be deemed to include “servitude”, (xvi) ”priority” shall be deemed to include “prior claim”,
(xvii) ”survey” shall be deemed to include “certificate of location and plan”, (xviii) ”fee simple
title” shall be deemed to include “absolute ownership”, and (xix) ”foreclosure” shall be deemed to
include “the exercise of a hypothecary right”.
(l) In
connection with any action being taken in connection with a Limited Condition Transaction, for purposes of determining compliance with
any provision of this Agreement which requires that no Default, Event of Default or Specified Default, as applicable, has occurred, is
continuing or would result from any such action, as applicable, such condition shall, at the option of the Borrowers’ Agent, be
deemed satisfied, so long as no Default, Event of Default or Specified Default, as applicable, exists on the date the definitive agreements
for such Limited Condition Transaction are entered into. For the avoidance of doubt, if the Borrowers’ Agent has exercised its option
under the first sentence of this clause (l), and any Default or Event of Default occurs following the date the definitive
agreements for the applicable Limited Condition Transaction were entered into and prior to the consummation of such Limited Condition
Transaction, any such Default or Event of Default shall be deemed to not have occurred or be continuing for purposes of determining whether
any action being taken in connection with such Limited Condition Transaction is permitted hereunder.
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(m) In
connection with any action being taken in connection with a Limited Condition Transaction, for purposes of:
(i) determining
compliance with any provision of this Agreement which requires the calculation of the Fixed Charge Coverage Ratio; or
(ii) testing
baskets set forth in this Agreement (including baskets measured as a percentage of Consolidated Net Tangible Assets),
in each case, at the option of the Borrowers’
Agent (the Borrowers’ Agent’s election to exercise such option in connection with any Limited Condition Transaction, an “LCT
Election”), the date of determination of whether any such action is permitted hereunder, shall be deemed to be the date the
definitive agreements for such Limited Condition Transaction are entered into (the “LCT Test Date”), and if, after
giving pro forma effect to the Limited Condition Transaction and the other transactions to be entered into in connection therewith (including
any incurrence of Indebtedness and the use of proceeds thereof) as if they had occurred at the beginning of the most recent four consecutive
Fiscal Quarters ending prior to the LCT Test Date for which consolidated financial statements of the Consolidated Parties are available,
the Borrowers’ Agent could have taken such action on the relevant LCT Test Date in compliance with such ratio or basket, such ratio
or basket shall be deemed to have been complied with. For the avoidance of doubt, if the Borrowers’ Agent has made an LCT Election
and any of the ratios or baskets for which compliance was determined or tested as of the LCT Test Date are exceeded as a result of fluctuations
in any such ratio or basket, including due to fluctuations in Consolidated EBITDA or Consolidated Net Tangible Assets, at or prior to
the consummation of the relevant transaction or action, such baskets or ratios will not be deemed to have been exceeded as a result of
such fluctuations.
(n) In
this Agreement, where it relates to a French Borrower, a reference to:
(i) an
“insolvency” includes (A) a French Borrower is unable or admits inability to pay any of its debts (in full or a substantial
part) as they fall due or suspends making payments on any of its debts (in full or a substantial part) when they become due, (B) a
French Borrower is or becomes in cessation des paiements within the meaning of Article L.631-1 of the French Code de commerce
or encounters difficulties that it is not able to overcome within the meaning of Article L.620-1 of the French Code de commerce,
or becomes insolvent under any applicable insolvency law or (C) a moratorium is declared in respect of any indebtedness of a French
Borrower or a French Borrower is subject to alert procedure (procédure d’alerte) by its statutory auditors in accordance
with Article L.234-1, L.234-2 or L.612-3 of the French Code de commerce;
(ii) an
“attachment” includes a saisie;
(iii) a
“consolidation” or an “amalgamation” includes in relation to any company any contribution of part of its business
in consideration of shares (apport partiel d’actifs) and any demerger (scission) implemented in accordance with Articles
L.236-18 to L.236-30 of the French Code de commerce;
(iv) “financial
assistance” has the meaning stated in Article L.225-216 of the French Code de commerce or in any other foreign law on
financial assistance that is mandatorily applicable to a French Borrower;
(v) “gross
negligence” includes faute lourde;
(vi) a
“guarantee” means any type of sûreté personnelle;
(vii) an
“administration”, “insolvency proceeding”, “dissolution” or “winding-up” means (A) any
corporate action or legal proceeding is taken by a French Borrower in relation to (x) the suspension of payments, a moratorium of
all or any indebtedness, dissolution, the opening of proceedings for sauvegarde (including, for the avoidance of doubt, sauvegarde
accélérée), redressement judiciaire or liquidation judiciaire or reorganisation (in the context
of a mandat ad hoc or of a conciliation or otherwise) of a French Borrower other than a solvent liquidation or reorganisation,
(y) the appointment of a liquidator, receiver, administrator, administrative receiver, temporary administrator, mandataire adhoc,
conciliateur or other person exercising similar functions in respect of a French Borrower or in respect of all or any of their
respective assets, except in relation to the appointment of a liquidator in case of an amicable dissolution (liquidation amiable)
of a French Borrower, or (z) the enforcement of any Lien over any assets of any member of the group occurs and such enforcement is
likely to have a Material Adverse Effect, (B) a judgment opening proceedings for sauvegarde (including, for the avoidance
of doubt sauvegarde accélérée), redressement judiciaire or liquidation judiciaire or ordering
a cession totale ou partielle de l’entreprise is rendered in relation to a French Borrower in accordance with Articles L.620-1
to L.670-8 of the French Code de commerce, (C) any procedure, judgment or step is taken, which has effects that are substantially
the same as those referred to in paragraphs (A) and (B) above;
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(viii) “merger”
includes any fusion implemented in accordance with Articles L.236-1 to L.236-17 of the French Code de commerce;
(ix) “trustee”,
“fiduciary” and “fiduciary duty” has in each case the meaning given to such term under any applicable law;
(x) a
“person being unable to pay its debts” means that person being in a state of cessation des paiements in accordance
with the French Code de commerce;
(xi) a
“receiver” includes an administrateur judiciaire, a mandataire ad hoc or a conciliateur; and
(xii) “willful
misconduct” means dol.
(o) In
this Agreement, where it relates to a Borrower organized under the laws of Belgium, a reference to:
(i) a
“liquidator”, “(interim) receiver”, “administrator”, “trustee”, “monitor”,
“assignee”, “sequestrator”, “custodian”, “conservator” or similar official includes a
curator/curateur, vereffenaar/liquidateur, voorlopig bewindvoerder/administrateur provisoire, herstructureringsdeskundige/practicien
de la reorganization, vereffeningsdeskundige/practicien de la liquidation/, , gerechtsmandataris/mandataire de justice, , , as applicable;
(ii) a
“Lien” or “security interest” includes any mortgage (hypotheek/hypothèque), pledge (pand/nantissement),
privilege (voorrecht/privilège), a reservation of title (eigendomsvoorbehoud/réserve de propriété),
a real surety (zakelijke zekerheid/sûreté réelle), a transfer by way of security (overdracht ten titel van
zekerheid/transfert à titre de garantie) and a promise or mandate (mandaat/mandate) to create any of the security interests
mentioned above;
(iii) “commences
any action or proceeding seeking reorganization, arrangement, consolidation or readjustment of debts” includes any negotiations
conducted with a view to reaching a settlement agreement (minnelijk akkoord buiten gerechtelijke reorganisatie/accord amiable hors
reorganization judiciaire) with one or more of its creditors pursuant to Book XX of the Belgian Code of Economic Law;
(iv) a
person being “unable to pay its debts” is that person being in a state of cessation of payments (staking van betaling/cessation
de paiements);
(v) a
“reorganization”, “readjustment”, “moratorium”, “assignment”, “arrangement”,
or other relief includes a procedure van openbare of besloten gerechtelijke reorganisatie/procédure de réorganisation
judiciaire publique ou privée, een procedure van overdracht onder gerechtelijk gezag/une procédure de transfert sous
autorité judiciaire, minnelijk akkoord buiten gerechtelijke reorganisatie/accord amiable hors reorganization judiciaire, een procedure
van besloten voorbereiding van het faillissement/une procédure de preparation privée d’une faillite , as applicable;
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(vi) “insolvency”
includes any insolventieprocedure/procédure d’insolvabilité, faillissement/faillite, procedure van openbare
of besloten gerechtelijke reorganisatie/procédure de réorganisation judiciaire publique ou privée, een procedure
van overdracht onder gerechtelijk gezag/une procédure de transfert sous autorité judiciaire, minnelijk akkoord buiten gerechtelijke
reorganisatie/accord amiable hors reorganization judiciaire, een procedure van besloten voorbereiding van het faillissement/ une procédure
de preparation privée d’une faillite and any other concurrence between creditors (samenloop van schuldeisers/concours
des créanciers);
(vii) a
“bankruptcy”, “winding up”, “liquidation” or “dissolution” includes vereffening/liquidation,
ontbinding/dissolution, faillissement/faillite and sluiting van een onderneming/fermeture d’entreprise;
(viii) a
“warrant of attachment”, “execution” or similar process includes any uitvoerend beslag/saisie exécutoire,
sekwester/séquestre and bewarend beslag/saisie conservatoire;
(ix) an
“amalgamation”, “merger” or “consolidation” includes any overdracht van algemeenheid/transfert
d’universalité, overdracht van bedrijfstak/transfert de branche d’activité, splitsing/scission and fusie/fusion
and assimilated transaction in accordance with article 12:7 and 12:8 (gelijkgestelde verrichting/opération assimilée)
of the BCCA;
(x) the
“BCCA” means the Belgian Code of Companies and Associations (Wetboek van Vennootschappen en Verenigingen / Code des Sociétés
et des Associations), dated 23 March 2019 as amended from time to time;
(xi) the
“Belgian Code of Economic Law” means the Belgian Wetboek van Economisch Recht/Code de Droit Economique dated 28 February 2013,
as amended from time to time;
(xii) “Charter
Documents” includes the deed of incorporation (oprichtingsakte/acte de constitution) and the (co-ordinated) up-to-date articles
of association (statuten/statuts);
(xiii) “gross
negligence” means zware fout/faute lourde;
(xiv) “willful
misconduct” means bedrog/dol;
(xv) a
“Subsidiary” shall be deemed to include a dochtervennootschap / filiale as defined in Article 1:15 of the BCCA;
(xvi) “control”
has the meaning set out in Articles 1:14 et seq. of the BCCA, and the term “controlling” shall be construed accordingly;
(xvii) a
“successor” means an algemene rechtsopvolger/successeur universel; and
(xviii) “Other
Taxes” shall include (i) the documentary duty of €0.15 that is payable for each original copy of an agreement containing
a debt obligation, indebtedness or security interest for the benefit of credit institutions that is executed in Belgium, (ii) registration
duties relating to the registration of the relevant Transaction Security in the Belgian pledge register or, as the case may be, (iii) notarial,
registration and mortgage duties relating to any Security Documents entered into via a Belgian notarial deed.
(p)
(i) Notwithstanding
anything to the contrary herein, unless the Borrowers’ Agent otherwise notifies the Agent, (x) with respect to any amounts
incurred or transactions entered into (or consummated) in reliance on a provision of this Agreement (including any covenant or the definition
of “Available Incremental Amount”) that does not require compliance with a financial ratio or test (including any Fixed Charge
Coverage Ratio test and/or Total Indebtedness Leverage Ratio test) (any such amounts, the “Fixed Amounts”) substantially concurrently,
simultaneously or contemporaneously with any amounts incurred or transactions entered into (or consummated) in reliance on a provision
of this Agreement that requires compliance with a financial ratio or test (any such amounts, the “Incurrence-Based Amounts”
and any such test, a “Financial Incurrence Test”), it is understood and agreed that the Fixed Amounts shall be disregarded
in the calculation of the financial ratio or test applicable to the Incurrence-Based Amounts, (y) the incurrence of the Incurrence-Based
Amounts shall be calculated first without giving effect to any Fixed Amounts but giving full pro forma effect to the use of proceeds of
such Fixed Amounts and the related transactions and (z) the incurrence of the Fixed Amounts shall be calculated thereafter. Unless
the Borrowers’ Agent elects otherwise, the Borrowers’ Agent shall be deemed to have used an Incurrence-Based Amount then available
prior to utilization of a Fixed Amount then available.
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(ii) Notwithstanding
anything to the contrary herein, (x) if any Financial Incurrence Test would be satisfied in any subsequent fiscal quarter following
the utilization of (1) Fixed Amounts or (2) Incurrence-Based Amounts, then the reclassification of actions or transactions (or
portions thereof) within the applicable covenant, including the reclassification of utilization of any Fixed Amounts as incurred under
any available Incurrence-Based Amounts, shall be deemed to have automatically occurred even if not elected by the Borrowers’ Agent
(unless the Borrowers’ Agent otherwise notifies the Agent) (provided that Indebtedness incurred under the TLB Credit Agreement may
not be reclassified) and (y) in calculating any Incurrence-Based Amounts (including any Financial Incurrence Tests), any (1) Indebtedness
concurrently incurred to fund original issue discount and/or upfront fees and (2) amounts incurred, or transactions entered into
or consummated, in reliance on a Fixed Amount in a concurrent transaction, a single transaction or a series of related transactions with
the amount incurred, or transaction entered into or consummated, under the applicable Incurrence-Based Amount, in each case of the foregoing
clauses (1) and (2), shall not be given effect in calculating the applicable Incurrence-Based Amount (but giving pro forma effect
to all applicable and related transactions (including the use of proceeds of all Indebtedness to be incurred and any repayments, repurchases
and redemptions of Indebtedness); provided that this Section 1.3(p)(ii) shall not apply to clause (i) of the definition
of “Permitted Distributions”, clause (t) of the definition of “Permitted Investments”, Section 8.1(h)(iii),
Section 8.1(j)(iv) or Section 8.5(d).
1.4 Classification
of Loans and Borrowings. For purposes of this Agreement, Loans may be classified and referred to by class (e.g., a “Canadian
Revolving Loan” or “U.S. Revolving Loan”) or by Type (e.g., a “Term SOFR Loan”) or by class
and Type (e.g., a “Canadian Revolving Term CORRA Loan”). Borrowings also may be classified and referred to by class
(e.g., a “Canadian Revolving Borrowing” or “U.S. Revolving Borrowing”) or by Type (e.g., a
“Term SOFR Borrowing”) or by class and Type (e.g., a “Canadian Revolving Term CORRA Borrowing”).
1.5 Effectuation
of Transactions. Each of the representations and warranties of Holdings and the other Obligors contained in this Agreement (and all
corresponding definitions) are made after giving effect to the Transactions (or such portion thereof as shall be consummated as of the
date of the applicable representation or warranty), unless the context otherwise requires.
1.6 Currency.
(a) U.S.
Revolving Loans shall be made and denominated in Dollars. U.S. Revolving Loans, interest thereon, and any Obligor’s payment obligations
in respect thereof shall all be payable in Dollars.
(b) ROW
Revolving Loans shall be made and denominated in Dollars, Euros, Sterling or any other Alternative Currency, as applicable. ROW Revolving
Loans, interest thereon, and any Obligor’s payment obligations in respect thereof expressly payable in Dollars, Euros, Sterling
or such other Alternative Currency shall all be payable in Dollars, Euros, Sterling or such other Alternative Currency, as applicable.
(c) Canadian
Revolving Loans shall be made and denominated in Dollars or Cdn. Dollars, as applicable. Canadian Revolving Loans, interest thereon, and
any Obligor’s payment obligations in respect thereof expressly payable in Dollars or Cdn. Dollars shall all be payable in Dollars
or Cdn. Dollars, as applicable.
(d) European
Swingline Loans shall be made and denominated in Dollars, Euros or Sterling, as applicable. European Swingline Loans, interest thereon,
and any Obligor’s payment obligations in respect thereof expressly payable in Dollars, Euros or Sterling shall all be payable in
Dollars, Euros or Sterling, as applicable.
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(e) ANZ
Revolving Loans shall be made and denominated in Dollars, Australian Dollars or New Zealand Dollars, as applicable. ANZ Revolving Loans,
interest thereon, and any Obligor’s payment obligations in respect thereof expressly payable in Dollars, Australian Dollars or New
Zealand Dollars shall all be payable in Dollars, Australian Dollars or New Zealand Dollars, as applicable.
(f) Any
Obligor’s other payment obligations hereunder or under any other Loan Document expressly payable in Dollars, Cdn. Dollars, Euros,
Sterling, Australian Dollars, New Zealand Dollars or any other Alternative Currency shall all be payable in Dollars, Cdn. Dollars, Euros,
Sterling, Australian Dollars, New Zealand Dollars or such other Alternative Currency, as applicable. Any Obligor’s other payment
obligations hereunder or under any other Loan Document not expressly payable in another currency shall all be payable in Dollars.
(g) Notwithstanding
clauses (a), (b), (c), (d), (e) and (f) above, for purposes of determining compliance
with covenant and default limitations and other monetary thresholds, all fees and amounts payable hereunder and all calculations hereunder,
including the amount of each Borrowing Base, the Aggregate ROW Revolver Outstandings, the Maximum ROW Revolver Amount, the Aggregate Canadian
Revolver Outstandings, the Maximum Canadian Revolver Amount, the Aggregate European Swingline Outstandings, the U.S. Availability,
the Canadian Availability, the Aggregate ANZ Revolver Outstandings, the Maximum ANZ Revolver Amount and each Lender’s Commitments
as of any date shall all be calculated in Dollars or the Equivalent Amount in Dollars.
(h) Where
the permissibility of a transaction or a representation, warranty or covenant depends upon compliance with, or is determined by reference
to, amounts stated in Dollars, any amount stated in another currency shall be translated to the Equivalent Amount in Dollars at the applicable
time of determination hereunder and the permissibility of actions taken by a Borrower or any Subsidiary hereunder shall not be affected
by subsequent fluctuations in exchange rates. Further, if Indebtedness is incurred to refinance Indebtedness in a transaction otherwise
permitted hereunder and such Refinanced Indebtedness is denominated in a currency that is different from the currency of the Indebtedness
being incurred, such refinancing shall be deemed not to have exceeded the principal amount of the Refinanced Indebtedness so long as the
principal amount of such Refinancing Indebtedness incurred does not exceed (i) the outstanding committed or principal amount (whichever
is higher) of such Indebtedness being refinanced determined at the Equivalent Amount in Dollars as of the applicable date of determination
plus (ii) the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses incurred in connection with
such refinancing.
1.7 Additional
Alternative Currencies.
(a) The
Borrowers’ Agent may, from time to time, request that a Loan to a ROW Borrower or ANZ Borrower be made and/or Letters of Credit
be issued in a currency other than those specifically listed in the definition of the term “Alternative Currency”; provided
that such requested currency is a lawful currency (other than Dollars) that is readily available and freely transferable and convertible
into Dollars. In the case of any such request (i) with respect to the making of Loans to a ROW Borrower or ANZ Borrower, such request
shall be subject to the approval of the Agent and each Lender with a Pro Rata Revolving Credit Commitment or ANZ Revolving Credit Commitment,
as applicable, and (ii) with respect to the issuance of Letters of Credit, such request shall be subject to the approval of the Agent
and each Letter of Credit Issuer that will be required to issue Letters of Credit in such Alternative Currency.
(b) Any
request with respect to an additional Alternative Currency shall be made to the Agent not later than 11:00 a.m., New York City time, 10 Business
Days prior to the date of the desired Borrowing (or such other time or date as may be agreed by the Agent and, in the case of any such
request with respect to Letters of Credit, each applicable Letter of Credit Issuer). The Agent shall promptly notify each Lender with
a Pro Rata Revolving Credit Commitment or ANZ Revolving Credit Commitment, as applicable (in the case of any such request pertaining to
Loans) and each applicable Letter of Credit Issuer (in the case of any such request pertaining to Letters of Credit). Each Lender with
a Pro Rata Revolving Credit Commitment or ANZ Revolving Credit Commitment, as applicable, or each applicable Letter of Credit Issuer,
as applicable, shall notify the Agent, not later than 11:00 a.m., New York City time, 10 Business Days after receipt of such request
whether it consents, in its sole discretion, to the making of Loans to a ROW Borrower or ANZ Borrower or the issuance of Letters of Credit,
as applicable, in such requested currency.
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(c) Any
failure by a Lender or a Letter of Credit Issuer, as applicable, to respond to such request within the time period specified in the preceding
sentence shall be deemed to be a refusal of such Lender or such Letter of Credit Issuer, as applicable, to permit Loans to be made to
a ROW Borrower or ANZ Borrower or Letters of Credit to be issued in such requested currency. If the Agent and the applicable Lenders or
the applicable Letter of Credit Issuer, as applicable, consent to making of Loans to a ROW Borrower or ANZ Borrower or the issuance of
Letters of Credit in such requested currency, the Agent shall so notify the Borrowers’ Agent and, upon amendment of this Agreement
in such manner as shall be agreed by the Agent and the Borrowers’ Agent to implement the inclusion of such currency for such purposes,
such currency shall thereupon be deemed for all purposes to be an “Alternative Currency” hereunder for purposes of any Loans
made to a ROW Borrower or ANZ Borrower or any Letters of Credit, as applicable. If the Agent shall fail to obtain consent to any request
for an additional currency under this Section 1.7, the Agent shall promptly so notify the Borrowers’ Agent. Additionally,
if at any time, any Lender(s) and/or any Letter of Credit Issuer(s) notify the Agent that they will no longer be able to extend
Loans and/or issue Letters of Credit, as applicable, in an Alternative Currency approved pursuant to this Section 1.7, the
Agent shall promptly notify the Borrowers’ Agent, and such Alternative Currency shall no longer be an “Alternative Currency”
hereunder effective (i) in the case of any Loan or Letter of Credit to be made or issued after receipt of such notice, immediately
after receipt thereof and (ii) otherwise, five Business Days after receipt of such notice.
(d) For
the avoidance of doubt, any notice requirements applicable to Loans made to ROW Borrowers or ANZ Borrowers or Letters of Credit in Alternative
Currencies shall be substantially similar to those set forth in Sections 2.2 and 4.1(b) (with respect to EURIBOR
Loans) and Section 2.4 (with respect to Letters of Credit) or on such other terms as are mutually agreed by the Agent (and,
in the case of any Letters of Credit, each applicable Letter of Credit Issuer) and the Borrowers’ Agent.
1.8 Pro
Forma Calculations.
(a) Any
financial ratio or test or compliance with any covenants determined by reference to Consolidated EBITDA, Consolidated Net Tangible Assets
or any component definition thereof or satisfaction of the Payment Conditions shall be calculated in a manner prescribed by this Section 1.8.
In addition, whenever a financial ratio or test is to be calculated on a pro forma basis, the reference to the applicable period for purposes
of calculating such financial ratio or test shall be deemed to be a reference to, and shall be based on, the most recently ended period
for which the financial statements of the Consolidated Parties are available (as determined in good faith by the Company).
(b) For
purposes of determining compliance with any provision of this Agreement, including the determination of any financial ratio or test or
whether the Payment Conditions are satisfied, any Specified Transaction that has occurred (i) during the applicable period or (ii) subsequent
to such period and prior to or simultaneously with the event for which the determination of any such ratio, test or compliance with covenants
is being made shall be determined on a pro forma basis (including giving effect to those specified in accordance with the definitions
of “Consolidated EBITDA” and “Consolidated Net Income” and any component definitions thereof) assuming that all
such Specified Transactions (including such Specified Transaction for which such compliance is being determined) had occurred on the first
day of the applicable period. If since the beginning of any applicable period any Person that subsequently became a Restricted Subsidiary
or was merged, amalgamated or consolidated with or into an Obligor or any Restricted Subsidiary since the beginning of such period shall
have made any Specified Transaction that would have required adjustment pursuant to this Section 1.8, then for purposes of
determining compliance with any provision of this Agreement, including the determination of any financial ratio or test or whether the
Payment Conditions are satisfied, such Specified Transactions shall be calculated to give pro forma effect thereto in accordance with
this Section 1.8.
(c) In
the event that (i) any Obligor or Restricted Subsidiary incurs (including by assumption or guarantee) or repays or refinances (including
by redemption, repayment, retirement, discharge, defeasance or extinguishment) any Indebtedness (other than Indebtedness incurred or repaid
under any revolving credit facility unless such Indebtedness has been permanently repaid and not replaced) or (ii) any Borrower or
any Restricted Subsidiary issues, repurchases or redeems Disqualified Stock, (x) during the applicable period or (y) subsequent
to the end of the applicable period and prior to or simultaneously with the event for which the calculation of any such ratio or test
is made or compliance with any covenant is determined, then such financial ratio or test or determination of compliance shall be calculated
giving pro forma effect to such incurrence or repayment or refinancing of Indebtedness, or such issuance, repurchase or redemption of
Disqualified Stock, in each case to the extent required, as if the same had occurred on the last day of the applicable period (except
that, in making such computation, the amount of Indebtedness under any revolving credit facility shall be computed based upon the average
daily balance of such Indebtedness during the applicable period during the period from the date of creation of such facility to the date
of such calculation);
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(d) If
any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated
as if the rate in effect on the date of determination had been the applicable rate for the entire period (taking into account any interest
hedging arrangements applicable to such Indebtedness); provided, in the case of repayment of any Indebtedness, to the extent actual
interest related thereto was included during all or any portion of the applicable period, the actual interest may be used for the applicable
portion of such period. Interest on a Capital Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by
a responsible financial or accounting officer of the Company to be the rate of interest implicit in such Capital Lease Obligation in accordance
with GAAP. Interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate,
a eurocurrency interbank offered rate, Term SOFR, Daily SOFR, EURIBOR or other rate, shall be determined to have been based upon the rate
actually chosen, or if none, then based upon such optional rate chosen as the Company or a Restricted Subsidiary may designate.
(e) Whenever
pro forma effect is to be given to any Specified Transaction, the pro forma calculations shall be made in good faith by a responsible
financial or accounting officer of the Company.
1.9 Additional
Borrowers.
(a) Notwithstanding
anything in Section 12.1 to the contrary, following the Closing Date, the Borrowers’ Agent may request that one or more
of its Subsidiaries that is a Wholly Owned Subsidiary be added to this Agreement as an additional borrower (an “Additional Borrower”)
by delivering to the Agent a written notice; provided that:
(i) the
Agent shall have consented, which consent may not be unreasonably withheld, to the designation of such Additional Borrower and, in the
case of an Additional Borrower that is to become a European Borrower, the European Swingline Lender shall have consented, which consent
may not be unreasonably withheld, to such designation; provided that subject to the consent of the Agent, the Borrowers’
Agent and the Agent may agree to designate any ROW Borrower organized under the laws of Germany, the Netherlands, Belgium, or any other
jurisdiction within the European Union, as a European Borrower (each such designated entity, an “Additional Designated European
Borrower”) and, following (A) the Additional Designated European Borrower’s designation as such and (B) receipt
by the European Swingline Lender, with respect to each Additional Designated European Borrower, of “know your customer” documentation
required by Section 1.9(a)(iii) as if the Additional Designated European Borrower were an “Additional Borrower”
(or as otherwise may be required), the Additional Designated European Borrower shall cease to be a ROW Borrower; provided, further
that the ROW Borrowings of such Additional Designated European Borrower shall automatically be deemed to be European Swingline Loans upon
such Additional Designated European Borrower ceasing to be a ROW Borrower.
(ii) (A) such
Additional Borrower shall become a party to this Agreement as a U.S. Borrower, a ROW Borrower, a Canadian Borrower, a European Borrower
or an ANZ Borrower, as applicable, pursuant to joinder documentation in form and substance reasonably acceptable to the Agent and the
Borrowers’ Agent and (B) to the extent reasonably requested by the Agent, the Agent shall have received such opinions, certificates,
Charter Documents and other similar documents with respect to the Additional Borrower as are substantially consistent (as modified for
differences in jurisdiction or as otherwise modified in a manner reasonably acceptable to the Agent) with those delivered with respect
to the U.S. Borrowers, the ROW Borrowers, the Canadian Borrowers, the European Borrowers or ANZ Borrowers, as applicable, on the Closing
Date pursuant to Section 9.1(c);
(iii) (A) the
Agent shall have first received, with respect to such Additional Borrower, all documentation and other information that is required by
bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including
the Act (as defined in Section 14.23) to the extent reasonably requested in writing by the Agent and the Lenders and (B) any
Additional Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have first
delivered, to each Lender that so requested, a Beneficial Ownership Certification in relation to such Additional Borrower;
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(iv)
(A) in
the case of an Additional Borrower that is organized under the Laws of the United States of America, any state thereof or the District
of Columbia, to the extent such Additional Borrower is not already a U.S. Guarantor, such Additional Borrower shall (x) execute and
deliver to the Agent a Security Agreement Supplement (as defined in the U.S. Security Agreement), a Guaranty Supplement (as defined in
the U.S. Guarantee Agreement) and such other amendments to the U.S. Security Documents as the Agent may reasonably deem necessary or reasonably
advisable to grant to the Agent, for the benefit of the Secured Parties, a perfected security interest (as and to the extent provided
in the U.S. Security Documents) in the Collateral of such Additional Borrower, (y) deliver such other documentation as the Agent
may reasonably request in accordance with the U.S. Security Documents (and subject to the limitations set out therein) in order to cause
the Lien created by the U.S. Security Documents in such Additional Borrower’s Collateral to be duly perfected in accordance with
all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may reasonably be requested
by the Agent, and such other documents with respect to such Additional Borrower as the Agent may reasonably request that are consistent
with the documents in place or delivered to the Agent by the Obligors on the Closing Date, and (z) subject to Section 7.4(a)(ii),
prior to including such Additional Borrower’s assets in the U.S. Borrowing Base, the Agent shall conduct an Appraisal with respect
to such Additional Borrower, including of (A) such Additional Borrower’s practices in the computation of its Borrowing Base
and (B) the assets included in such Additional Borrower’s Borrowing Base and related financial information such as, but not
limited to, sales, gross margins, payables, accruals and reserves, in each case, prepared on a basis reasonably satisfactory to the Agent
and at the sole expense of the Obligors; or
(B) in
the case of an Additional Borrower that is organized under the Laws of Canada or any territory or province thereof, to the extent such
Additional Borrower is not already a Canadian Guarantor, such Additional Borrower shall (x) execute and deliver to the Agent a Security
Agreement Supplement (as defined in the Canadian Security Agreement), a Guarantee Supplement (as defined in the Canadian Guarantee Agreement)
and such other amendments to the Canadian Security Documents as the Agent may reasonably deem necessary or reasonably advisable to grant
to the Agent, for the benefit of the Canadian Secured Parties, a perfected security interest (as and to the extent provided in the Canadian
Security Documents) in the Collateral of such Additional Borrower and in the Capital Stock of such Additional Borrower and (y) deliver
such other documentation as the Agent may reasonably request in accordance with the applicable Security Documents (and subject to the
limitations set out therein) in order to cause the Lien created by the applicable Security Documents in such new Canadian Subsidiary’s
Collateral and in the Capital Stock of such new Canadian Subsidiary to be duly perfected in accordance with all applicable Requirements
of Law, including the filing of financing statements in such jurisdictions as may reasonably be requested by the Agent, and such other
documents with respect to such Additional Borrower as the Agent may reasonably request that are consistent with the documents in place
or delivered to the Agent by the Obligors on the Closing Date; and
(v) (A) with
respect to any Additional Borrower that would not be a U.S. Borrower (other than a European Borrower that will be an Additional Borrower
solely in respect of European Swingline Loans), the Borrowers’ Agent shall have provided the Lenders with at least 10 Business
Days’ (or such shorter notice as may be reasonably agreed by the Agent) prior written notice of the proposed designation, and (B) no
Lender (unless such Lender (with the prior written consent of such Lender, the Borrowers’ Agent and, in their sole discretion, the
Agent and Bank of America) shall have become a Participating ROW Lender or a Participating Canadian Lender, as applicable, in which case
this clause (B) shall not apply) with a Pro Rata Revolving Credit Commitment or an ANZ Revolving Credit Commitment, as applicable,
shall have advised the Agent and the Borrowers’ Agent in writing, on or prior to the end of such 10 Business Day period, that
(w) it is unlawful (or such Lender cannot or has not been able to determine that it is lawful) for such Lender to make Loans and
other extensions of credit under this Agreement to such Additional Borrower, (x) the making of Loans or other extensions of credit
under this Agreement to such Additional Borrower might subject such Lender to adverse tax consequences for which it is not reimbursed
hereunder, (y) such Lender would be required to, or has determined that it would be prudent to, register or file in the jurisdiction
of formation, organization or location of such Additional Borrower in order to make Loans or other extensions of credit under this Agreement
to such Additional Borrower, and such Lender does not wish to do so or (z) such Lender is restricted by operational or administrative
procedures or other applicable internal policies from making Loans or other extensions of credit under this Agreement to Persons formed,
organized or located in the jurisdiction in which such Additional Borrower is formed, organized or located.
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Any obligations in respect
of borrowings by any Additional Borrower under this Agreement will constitute “Obligations” for all purposes of the Loan Documents.
(b) Any
Additional Borrower that is not organized under the Laws of the United States of America or any state thereof or the District of Columbia,
Canada or any province or territory thereof, France, Australia or New Zealand shall become a ROW Borrower.;
provided that, in the case of an Additional Borrower organized under the law of any EEA Member Country, unless at such time the Agent
is satisfied that the designation of such Additional Borrower as a ROW Borrower does not and will not result in any violation of or conflict
with Article 21c of Directive (EU) 2024/1619 amending Directive 2013/36/EU, such Additional Borrower shall not become an ROW Borrower
and may instead be designated as an Additional Designated European Borrower consistent with the provisions of Section 1.9(a)(i).
(c) In
the case of any Additional Borrower, the Agent and the Borrowers’ Agent agree to enter into any amendment required to incorporate
the addition of the Additional Borrower and such other amendments as may be necessary or appropriate in the reasonable opinion of the
Agent and the Borrowers’ Agent in connection therewith. The Lenders hereby irrevocably authorize the Agent to enter into such amendments.
(d) The
Borrowers’ Agent may from time to time, upon not less than three Business Days’ written notice to the Agent (or such
shorter period as may be agreed by the Agent in its reasonable discretion), terminate a Borrower’s (other than the Company’s)
status as such, and such Person shall thereupon cease to be considered a “Borrower” (and cease to be considered a U.S. Borrower,
ROW Borrower, Canadian Borrower, European Borrower or ANZ Borrower, as applicable) for all purposes hereunder, provided that (i) there
are no outstanding Loans or Agent Advances payable by such Borrower, or other amounts payable by such Borrower on account of any Loans
made to it, as of the effective date of such termination, (ii) there are no amounts (including charges and fees payable to or reasonably
incurred by the applicable Letter of Credit Issuer) outstanding under any Letters of Credit issued to such Borrower as of the effective
date of such termination, (iii) after giving effect to the exclusion of such Borrower’s assets that were included in the applicable
Borrowing Base, no Out-of-Formula Condition would be created, (iv) to the extent such Borrower is otherwise required to be a Guarantor
hereunder, such Borrower shall continue to be a Guarantor for all purposes hereunder without any additional action by the Borrowers’
Agent upon such termination and (v) the Maximum Canadian Revolver Amount shall be deemed to be zero at all times when there is no
Canadian Borrower. The Agent will promptly notify the Lenders of any such termination of a Borrower’s status.
1.10 No
Novation; Acknowledgement and Adjustment of Loans, Payment of Accrued Interest and Fees.
(a) It
is the intent of the parties hereto that this Agreement not constitute a novation of the rights, obligations and liabilities of the respective
parties (including the Obligations) existing under the Existing Loan Agreement or evidence payment of all or any of such obligations and
liabilities, and such rights, obligations and liabilities shall continue and remain outstanding under the terms and conditions of, and
as amended and restated by, this Agreement, and that this Agreement amends and restates in its entirety the Existing Loan Agreement. Without
limiting the generality of the foregoing (i) all U.S. Revolving Loans, Canadian Revolving Loans, ROW Revolving Loans, ANZ Revolving
Loans, U.S. Swingline Loans, Canadian Swingline Loans, ROW Swingline Loans and European Swingline Loans outstanding under, and as defined
in, the Existing Loan Agreement shall on the Closing Date become U.S. Revolving Loans, Canadian Revolving Loans, ROW Revolving Loans,
ANZ Revolving Loans, U.S. Swingline Loans, Canadian Swingline Loans, ROW Swingline Loans and European Swingline Loans, respectively, hereunder,
(ii) all Letters of Credit outstanding under, and as defined in, the Existing Loan Agreement shall on the Closing Date become Letters
of Credit hereunder and (iii) all other Obligations outstanding under, and as defined in, the Existing Loan Agreement shall on the
Closing Date be Obligations under this Agreement.
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(b) The
Borrowers acknowledge and agree that as of the close of business on July 9, 2025, (i) the Aggregate Revolver Outstandings under,
and as defined in, the Existing Loan Agreement (excluding the aggregate undrawn amount of all outstanding Letters of Credit under the
Existing Loan Agreement) is approximately $2,049,371,800.00, (ii) the Aggregate U.S. Revolver Outstandings under, and as defined
in, the Existing Loan Agreement (excluding the aggregate undrawn amount of all outstanding Letters of Credit under the Existing Loan Agreement)
is $1,925,000,000.00, (iii) the Aggregate Canadian Revolver Outstandings under, and as defined in, the Existing Loan Agreement is
$0.00, (iv) the Aggregate ROW Revolver Outstandings under, and as defined in, the Existing Loan Agreement is $0.00, (v) the
Aggregate ANZ Revolving Outstandings under, and as defined in, the Existing Loan Agreement is $123,691,500.00, (vi) the Aggregate
European Swingline Outstandings under, and as defined in, the Existing Loan Agreement is $680,300.00 and (vii) the Letters of Credit
outstanding under, and as defined in, the Existing Loan Agreement are set forth on Schedule 1.1A (the “Existing Letters
of Credit”).
(c) As
of the date hereof, effective as of the amendment and restatement of the Existing Loan Agreement by this Agreement, each “Lender”
under, and as such term is defined in, the Existing Loan Agreement, that is not a party hereto (each, an “Exiting Lender”),
solely in its capacity as a “Lender” and a “Revolving Credit Lender” under the Existing Loan Agreement with respect
to its existing “Revolving Credit Commitments” and any existing “Revolving Loans” thereunder (as each such term
as defined in the Existing Credit Agreement), (i) shall cease to be a party to the Existing Loan Agreement and shall be released
from all further obligations thereunder, including in respect of such “Revolving Credit Commitments” and “Revolving
Loans” thereunder; provided that each such Exiting Lender shall continue to be entitled to the benefits (in accordance with
the Existing Loan Agreement) of Sections 5.1, 5.3, 5.4 and 14.10 of the Existing Loan Agreement as in effect
immediately prior to giving effect to the amendment and restatement of the Existing Loan Agreement by this Agreement, and (ii) shall
not be a Lender or a Revolving Credit Lender under this Agreement. On the date hereof, substantially concurrently with the amendment and
restatement of the Existing Loan Agreement by this Agreement, all “Revolving Loans” of each Exiting Lender outstanding under
the Existing Credit Agreement shall be prepaid in full, together with any and all unpaid interest, fees and other amounts accrued and
owing, as of the date hereof, to such Exiting Lender under the Existing Loan Agreement. On the date hereof, the Company shall pay to each
applicable Exiting Lender any amounts payable thereto in connection with the foregoing in accordance with Section 5.4.
(d) The
Borrowers acknowledge and agree that any and all unpaid interest and fees accrued under the Existing Loan Agreement as of (and including)
the Agreement Date shall be paid on the Agreement Date.
(e) After
giving effect to the transactions contemplated by the foregoing provisions of this Section 1.10 and the amendment and restatement
of the Existing Loan Agreement as provided for hereunder, on the date hereof, the outstanding Pro Rata Revolving Credit Commitments held
by one or more of the Lenders under, and as such terms are defined in, the Existing Loan Agreement shall be continued as Pro Rata Revolving
Credit Commitments hereunder and reduced or increased, as applicable, and reallocated amongst one or more Lenders hereunder so that, after
giving effect to the provisions of this Section 1.10(e), each Lender holds the Pro Rata Revolving Credit Commitment set forth
on Schedule 1.1 with respect to such Lender. After giving effect to such continuation and reallocation, the outstanding Pro
Rata Revolving Loans may not be held pro rata in accordance with the new Pro Rata Revolving Credit Commitments hereunder. In order
to remedy the foregoing, on the Agreement Date, the Lenders shall, as determined by the Agent, make advances among themselves and, for
purposes of the transactions contemplated by Section 2.10(c), to Exiting Lenders for the prepayments of principal owed thereto (through
the Agent) in the applicable currencies so that after giving effect thereto the Pro Rata Revolving Loans will be held by the Lenders on
a pro rata basis in accordance with each Lender’s Pro Rata Share (after giving effect to the foregoing Pro Rata Revolving
Credit Commitment reallocation) and the “Pro Rata Revolving Loans” of the Exiting Lenders under the Existing Loan Agreement
shall have been reduced to zero and, in such event, the Company shall pay to the applicable Lenders any amounts payable in respect thereof
in accordance with Section 5.4 (with any reduction in any Pro Rata Revolving Loans of any Lender pursuant to this Section 1.10(e) being
deemed a prepayment for purposes of Section 5.4). Each Lender agrees to wire immediately available funds in the applicable
currencies to the Agent in accordance with this Agreement as may be required by the Agent in connection with the foregoing. Notwithstanding
the provisions of Section 12.2, the advances so made by each Lender under this Section 1.10(e) shall be deemed
to be a purchase of a corresponding amount of the applicable Pro Rata Revolving Loans from the applicable Lender or Lenders which hold
such Pro Rata Revolving Loans in excess of their Pro Rata Share of the applicable aggregate outstanding Pro Rata Revolving Loans and shall
not be considered an assignment for purposes of Section 12.2.
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(f) After
giving effect to the transactions contemplated by the foregoing provisions of this Section 1.10 and the amendment and restatement
of the Existing Loan Agreement as provided for hereunder, on the date hereof, the outstanding ANZ Revolving Credit Commitments held by
one or more of the Lenders under, and as such terms are defined in, the Existing Loan Agreement shall be continued as ANZ Revolving Credit
Commitments hereunder and reduced or increased, as applicable, and reallocated amongst one or more Lenders hereunder so that, after giving
effect to the provisions of this Section 1.10(f), each Lender holds the ANZ Revolving Credit Commitment set forth on Schedule
1.1 with respect to such Lender. After giving effect to such continuation and reallocation, the outstanding ANZ Revolving Loans may
not be held pro rata in accordance with the new ANZ Revolving Credit Commitments hereunder. In order to remedy the foregoing, on
the Agreement Date, the Lenders shall, as determined by the Agent, make advances among themselves and, for purposes of the transactions
contemplated by Section 2.10(c), to Exiting Lenders for the prepayments of principal owed thereto (through the Agent) in the applicable
currencies so that after giving effect thereto the ANZ Revolving Loans will be held by the Lenders on a pro rata basis in accordance
with each Lender’s Pro Rata Share (after giving effect to the foregoing ANZ Revolving Credit Commitment reallocation) and the “ANZ
Revolving Loans” of the Exiting Lenders under the Existing Loan Agreement shall have been reduced to zero and, in such event, the
ANZ Borrowers shall pay to the applicable Lenders any amounts payable in respect thereof in accordance with Section 5.4 (with
any reduction in ANZ Revolving Loans of any Lender pursuant to this Section 1.10(f) being deemed a prepayment for purposes
of Section 5.4). Each Lender agrees to wire immediately available funds in the applicable currencies to the Agent in accordance
with this Agreement as may be required by the Agent in connection with the foregoing. Notwithstanding the provisions of Section 12.2,
the advances so made by each Lender under this Section 1.10(f) shall be deemed to be a purchase of a corresponding amount
of the applicable ANZ Revolving Loans from the applicable Lender or Lenders which hold such ANZ Revolving Loans in excess of their Pro
Rata Share of the applicable aggregate outstanding ANZ Revolving Loans and shall not be considered an assignment for purposes of Section 12.2.
1.11 Syndicated
Facility Agreement. This Agreement is a “syndicated facility agreement” for the purposes of section 128F(11)(a) of
the Australian Tax Act.
1.12 Interest
Rates; Licensing.
(a) The
Agent does not warrant, nor accept responsibility, nor shall the Agent have any liability with respect to the administration, submission
or any other matter related to any reference rate referred to herein or with respect to any rate (including, for the avoidance of doubt,
the selection of such rate and any related spread or other adjustment) that is an alternative or replacement for or successor to any such
rate (including, without limitation, any Benchmark Replacement or Alternative Currency Benchmark Replacement) (or any component of any
of the foregoing) or the effect of any of the foregoing, or of any Conforming Changes. The Agent and its affiliates or other related entities
may engage in transactions or other activities that affect any reference rate referred to herein, or any alternative, successor or replacement
rate (including, without limitation, any Benchmark Replacement or Alternative Currency Benchmark Replacement) (or any component of any
of the foregoing) or any related spread or other adjustments thereto, in each case, in a manner adverse to the Borrowers. The Agent may
select information sources or services in its reasonable discretion to ascertain any reference rate referred to herein or any alternative,
successor or replacement rate (including, without limitation, any Benchmark Replacement or Alternative Currency Benchmark Replacement)
(or any component of any of the foregoing), in each case pursuant to the terms of this Agreement, and shall have no liability to
the Borrowers, any Lender or any other person or entity for damages of any kind, including direct or indirect, special, punitive, incidental
or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any
error or other action or omission related to or affecting the selection, determination, or calculation of any rate (or component thereof)
provided by any such information source or service.
(b) By
agreeing to make Loans under this Agreement, each Lender is confirming it has all licenses, permits and approvals necessary for use of
the reference rates referred to herein and it will do all things necessary to comply, preserve, renew and keep in full force and such
licenses, permits and approvals.
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ARTICLE II
LOANS
AND LETTERS OF CREDIT
2.1 Revolving
Loans. (a) Subject to all of the terms and conditions of this Agreement, each Pro Rata Revolving Credit Lender severally, but
not jointly or jointly and severally, agrees to make (i) a U.S. Revolving Loan or U.S. Revolving Loans to the U.S. Borrowers,
(ii) a Canadian Revolving Loan or Canadian Revolving Loans to the Canadian Borrowers and (iii) a ROW Revolving Loan or ROW Revolving
Loans to the ROW Borrowers, as applicable, in amounts not to exceed such Pro Rata Revolving Credit Lender’s Pro Rata Share of the
aggregate Pro Rata Revolving Credit Commitments at such time; provided that no Pro Rata Revolving Credit Lender shall have any
obligation to make (A) a U.S. Revolving Loan or a ROW Revolving Loan if U.S. Availability is less than zero or to the extent that
such U.S. Revolving Loan or ROW Revolving Loan, as applicable, would result in U.S. Availability being less than zero, subject to the
Agent’s authority, in its sole discretion, to make Agent Advances pursuant to the terms of Section 2.2(b), (B) a
Canadian Revolving Loan if Canadian Availability is less than zero or to the extent that such Canadian Revolving Loan would result in
Canadian Availability being less than zero, subject to the Agent’s authority, in its sole discretion, to make Agent Advances pursuant
to the terms of Section 2.2(b), (C) a ROW Revolving Loan to the extent such ROW Revolving Loan would result in the Aggregate
ROW Revolver Outstandings exceeding the Maximum ROW Revolver Amount, (D) any Revolving Loan to the extent that such Revolving Loan
would result in the Aggregate Revolver Outstandings exceeding the Maximum Revolver Amount or the Aggregate Pro Rata Revolver Outstandings
exceeding the Maximum Pro Rata Revolver Amount or (E) a Daily SOFR Loan to the extent such Daily SOFR Loan would result in the Aggregate
Daily SOFR Outstandings exceeding the Maximum Daily SOFR Amount. The Pro Rata Revolving Credit Lenders, however, in their unanimous discretion,
may elect to make U.S. Revolving Loans or ROW Revolving Loans or issue or arrange to have issued Letters of Credit in excess of U.S. Availability
(but not in an amount that would result in the Aggregate Revolver Outstandings exceeding the Maximum Revolver Amount or the Aggregate
Pro Rata Revolver Outstandings exceeding the Maximum Pro Rata Revolver Amount) or make Canadian Revolving Loans in excess of the Canadian
Availability (but not in an amount that would result in the Aggregate Canadian Revolver Outstandings exceeding the Maximum Canadian Revolver
Amount or the Aggregate Pro Rata Revolver Outstandings exceeding the Maximum Pro Rata Revolver Amount), as applicable, on one or more
occasions, but if they do so, neither the Agent nor the Lenders shall be deemed thereby to have changed the limits of the U.S. Borrowing
Base or the Canadian Borrowing Base or to be obligated to exceed such limits on any other occasion.
(b) Subject
to all of the terms and conditions of this Agreement, each ANZ Revolving Credit Lender severally, but not jointly or jointly and severally,
agrees to make an ANZ Revolving Loan or ANZ Revolving Loans to the ANZ Borrowers, in amounts not to exceed such ANZ Revolving Credit
Lender’s Pro Rata Share of the aggregate ANZ Revolving Credit Commitments at such time; provided that no ANZ Revolving Credit
Lender shall have any obligation to make an ANZ Revolving Loan (i) if U.S. Availability is less than zero or to the extent that
such ANZ Revolving Loan would result in U.S. Availability being less than zero or (ii) to the extent that such Revolving Loan would
result in the Aggregate Revolver Outstandings exceeding the Maximum Revolver Amount or the Aggregate ANZ Revolver Outstandings exceeding
the Maximum ANZ Revolver Amount. The ANZ Revolving Credit Lenders, however, in their unanimous discretion, may elect to make ANZ Revolving
Loans in excess of U.S. Availability (but not in an amount that would result in the Aggregate Revolver Outstandings exceeding the Maximum
Revolver Amount or the Aggregate ANZ Revolver Outstandings exceeding the Maximum ANZ Revolver Amount) on one or more occasions, but if
they do so, neither the Agent nor the Lenders shall be deemed thereby to have changed the limits of the U.S. Borrowing Base or to
be obligated to exceed such limit on any other occasion.
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2.2 Revolving
Loan Administration.
(a) Procedure
for Borrowing. (i) Each of the applicable Borrowers may borrow under the applicable Commitments on any Business Day during the
period from the Closing Date until the Termination Date; provided that the Borrowers’ Agent shall give the Agent irrevocable
(in the case of any notice except notice with respect to the initial extension of Revolving Loans hereunder) notice in substantially the
form of Exhibit B or in such other form as may be agreed between the Borrowers’ Agent and the Agent (each, a “Notice
of Borrowing”) (which request must be received by the Agent prior to (v) 12:00 noon, New York City time, at least two Business
Days prior to the requested Funding Date, if all or any part of the requested Revolving Loans are to be initially Term SOFR Loans made
to a U.S. Borrower, (w) 12:00 noon, New York City time, at least one Business Day prior to the requested Funding Date, if all
or any part of the requested Revolving Loans are to be initially Daily SOFR Loans made to a U.S. Borrower, (x) 12:00 noon, New York
City time, at least three Business Days prior to the requested Funding Date, if all or any part of the requested Revolving Loans
are to be initially Term SOFR Loans or Daily SOFR Loans made to any Borrower other than a U.S. Borrower, Term CORRA Loans, EURIBOR Loans,
Bank Bill Rate Loans or SONIA Rate Loans, (y) 12:00 noon, New York City time, on the requested Funding Date, for Base Rate Loans
(other than Base Rate Loans made to a Canadian Borrower) or (z) 11:00 a.m., New York City time, on the requested Funding Date,
for Base Rate Loans made to a Canadian Borrower or Canadian Prime Rate Loans (or in the case of the initial Borrowing hereunder, in each
case, 10:00 a.m., New York City time, one Business Day prior to the date of the initial borrowing hereunder)) specifying (A) the
identity of the Borrower, (B) the currency of the requested Borrowing and the amount to be borrowed, (C) the requested Funding
Date, (D) whether the Borrowing is to be of Term SOFR Loans, Daily SOFR Loans, Term CORRA Loans, EURIBOR Loans, Base Rate Loans,
Canadian Prime Rate Loans, SONIA Rate Loans or Bank Bill Rate Loans (as applicable) or a combination thereof (and if not so specified,
it shall be deemed a request for Base Rate Loans (in the case of U.S. Revolving Loans, ROW Revolving Loans denominated in Dollars
or Canadian Revolving Loans denominated in Dollars), Term SOFR Loans with an Interest Period of one month (in the case of ANZ Revolving
Loans denominated in Dollars), Canadian Prime Rate Loans (in the case of Canadian Revolving Loans denominated in Canadian Dollars), EURIBOR
Loans with an Interest Period of one month (in the case of Revolving Loans denominated in Euros), SONIA Rate Loans (in the case of Revolving
Loans denominated in Sterling) or Bank Bill Rate Loans with an Interest Period of one month (in the case of Revolving Loans denominated
in Australian Dollars or New Zealand Dollars)) (provided that no such Notice of Borrowing shall request ANZ Revolving Loans that
are Base Rate Loans, and any such request shall be deemed to be a request for Term SOFR Loans or Bank Bill Rate Loans, as applicable,
in each case with an Interest Period of one month (for the avoidance of doubt, this proviso shall not apply to any ANZ Swingline Loans
requested pursuant to Section 2.3(e))), and (E) if the Borrowing is to be entirely or partly of Term SOFR Loans, Term
CORRA Loans, EURIBOR Loans or Bank Bill Rate Loans, the respective amounts of each such Type of Loan and the respective lengths of the
initial Interest Periods or Term CORRA Interest Periods therefor (and if not so specified, it shall be deemed a request for a period of
one month). Each Borrowing, except any Base Rate Loan or Canadian Prime Rate Loan to be used solely to pay a like amount of outstanding
reimbursement obligations in respect of Letters of Credit or Swingline Loans, shall be in an amount equal to an integral multiple of the
applicable Borrowing Multiple and not less than the applicable Borrowing Minimum. Upon receipt of any such notice from the Borrowers’
Agent, the Agent shall promptly notify each applicable Revolving Credit Lender thereof. Subject to the satisfaction of the conditions
precedent specified in Section 9.2 and except as otherwise set forth in Section 2.10, each applicable Revolving
Credit Lender will make the amount of its Pro Rata Share (or, in the case of Bank of America (for so long as it shall be a Revolving Credit
Lender), in the case of any Borrowing of Canadian Revolving Loans or ROW Revolving Loans, as applicable, its Pro Rata Share plus
an amount equal to the sum of the Pro Rata Share of each Participating Canadian Lender or Participating ROW Lender, as applicable, provided
that, so long as any Participating Canadian Lender or Participating ROW Lender is a Defaulting Lender, Bank of America shall not be required
to fund or otherwise make available the Pro Rata Share of such Participating Canadian Lender or Participating ROW Lender) of each Borrowing
of Revolving Loans available to the Agent for the account of the Borrower(s) identified in such notice to the account or accounts
from time to time designated by the Agent prior to 3:00 p.m., New York City time (or 10:00 a.m., New York City time, in the case of the
initial borrowing hereunder), or at such other time as to which the Agent shall notify the Borrowers’ Agent reasonably in advance
of the Funding Date with respect thereto, on the Funding Date requested by such Borrower(s) in Dollars, Euros, Sterling, Canadian
Dollars, Australian Dollars, New Zealand Dollars or any other Alternative Currency, as applicable, and in funds immediately available
to the Agent. Such Borrowing will then be made available to the relevant Borrower by the Agent, crediting the account of such Borrower
designated by the Borrowers’ Agent in writing, with the aggregate of the amounts made available to the Agent by the applicable Revolving
Credit Lenders and in like funds as received by the Agent.
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(ii) In
lieu of delivering a Notice of Borrowing, the Borrowers’ Agent may give the Agent telephonic notice of such request for advances
on or before the deadline set forth above. The Agent at all times shall be entitled to rely on such telephonic notice in making such Loans,
regardless of whether any written confirmation is received.
(iii) At
the election of the Agent or the Required Lenders, the Borrowers shall not be entitled to request a Term CORRA Loan, a Term SOFR Loan,
a Daily SOFR Loan or a Bank Bill Rate Loan while a Default or Event of Default has occurred and is continuing.
(iv) With
respect to SOFR, Daily SOFR, Term SOFR or Term CORRA, the Agent will have the right, in consultation with the Borrowers’ Agent,
to make Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments
implementing such Conforming Changes will become effective without any further action or consent of any other party to this Agreement
or any other Loan Document; provided that, with respect to any such amendment effected, the Agent shall post each such amendment
implementing such Conforming Changes to the Borrowers and the Lenders reasonably promptly after such amendment becomes effective.
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(b) Agent
Advances. (i) In the event any U.S. Borrower, ROW Borrower or Canadian Borrower is, as applicable, unable to comply with (x) the
U.S. Availability or Canadian Availability limitations set forth in Section 2.1, as applicable, or (y) the conditions
precedent to the making of Loans or the issuance of Letters of Credit set forth in Article IX or (ii) during the existence
of a Default or Event of Default, (x) the Lenders authorize the Agent (acting through any branch designated by it), for the account
of the applicable Lenders, to make U.S. Revolving Loans to the U.S. Borrowers in Dollars, ROW Revolving Loans to the ROW Borrowers in
Dollars or Canadian Revolving Loans to the Canadian Borrowers in Canadian Dollars, as applicable, each of which may only be made as Base
Rate Loans (in the case of U.S. Revolving Loans or ROW Revolving Loans) or Canadian Prime Rate Loans (in the case of Canadian Revolving
Loans) (each, an “Agent Advance”) for a period commencing on the date the Agent first receives a Notice of Borrowing
requesting an Agent Advance until the earliest of (A) the 30th Business Day after such date, (B) the date the respective
Borrowers or Borrower is again able to comply with the U.S. Availability or Canadian Availability limitations and the conditions precedent
to the making of Loans and issuance of Letters of Credit or obtains an amendment or waiver with respect thereto, or the Default or Event
of Default no longer exists, and (C) the date the Required Lenders instruct the Agent in writing to cease making Agent Advances (in
each case, the “Agent Advance Period”); provided that (I) the Equivalent Amount in Dollars of the aggregate
amount of Agent Advances outstanding at any time shall not exceed $250,000,000, (II) the Equivalent Amount in Dollars of the aggregate
amount of Agent Advances to the Canadian Borrowers outstanding at any time shall not exceed the product of $250,000,000 multiplied
by the Maximum Canadian Revolver Amount as a percentage of the Maximum Revolver Amount and (III) no Agent Advance shall be made
to the extent that such Agent Advance would result in (x) the Aggregate Revolver Outstandings exceeding the Maximum Revolver Amount
or (y) the Aggregate Pro Rata Revolver Outstandings exceeding the Maximum Pro Rata Revolver Amount. It is understood and agreed that
the Borrowers shall have no right to require that any Agent Advances be made.
(c) Each
Lender may make any Loan to the applicable Borrower through any branch or affiliate of such Lender that is an Eligible Assignee, provided
that such Lender shall retain all rights and obligations hereunder in respect of any such Loan and such Lender’s Commitment.
(d) Changes
to Maximum Canadian Revolver Amount and Maximum ROW Revolver Amount.
(i) Provided
no Default or Event of Default has occurred and is continuing, upon notice to the Agent, (i) the Borrowers’ Agent may request
an increase to the Maximum Canadian Revolver Amount by an amount not to exceed $200,000,000 (up to a total of $450,000,000), which increase
shall be subject to the prior written consent of the Agent (not to be unreasonably withheld) but shall not require the consent of any
Lender, and (ii) the Borrowers’ Agent may request an increase to the Maximum Canadian Revolver Amount by an amount in excess
of $200,000,000, which increase shall be subject to the prior written consent of the Agent (not to be unreasonably withheld) and the Required
Lenders; provided that the Maximum Canadian Revolver Amount may only be increased in amounts of at least $25,000,000 and in integral
multiples of $5,000,000 in excess thereof.
(ii) Provided
no Default or Event of Default has occurred and is continuing, upon notice to the Agent, (i) the Borrowers’ Agent may request
an increase to the Maximum ROW Revolver Amount by an amount not to exceed $125,000,000 (up to a total of $250,000,000), which increase
shall be subject to the prior written consent of the Agent (not to be unreasonably withheld) but shall not require the consent of any
Lender, and (ii) the Borrowers’ Agent may request an increase to the Maximum ROW Revolver Amount by an amount in excess of
$125,000,000, which increase shall be subject to the prior written consent of the Agent (not to be unreasonably withheld) and the Required
Lenders; provided that the Maximum ROW Revolver Amount may only be increased in amounts of at least $25,000,000 and in integral
multiples of $5,000,000 in excess thereof.
(iii) Upon
notice to the Agent, the Borrowers’ Agent may request a decrease to the Maximum Canadian Revolver Amount or the Maximum ROW Revolver
Amount, as applicable, in an amount equal to an integral multiple of $5,000,000.
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2.3 Swingline
Loans.
(a) U.S.
Swingline Loans. Subject to the terms and conditions hereof, the U.S. Swingline Lender agrees to make swing line loans (individually,
a “U.S. Swingline Loan” and collectively, the “U.S. Swingline Loans”) to any U.S. Borrower from
time to time on any Business Day during the period from the Closing Date until the Termination Date in an aggregate principal amount at
any one time outstanding not to exceed (i) $150,000,000 or (ii) such greater amount, not to exceed $250,000,000, as may be requested
by the Borrowers’ Agent and agreed to in writing by the Agent and the U.S. Swingline Lender (the “U.S. Swingline Sublimit”);
provided that the U.S. Swingline Lender shall not make any U.S. Swingline Loans if, after doing so, (A) U.S. Availability
would be less than zero, (B) the Aggregate Revolver Outstandings would exceed the Maximum Revolver Amount or (C) the Aggregate
Pro Rata Revolver Outstandings would exceed the Maximum Pro Rata Revolver Amount. Amounts borrowed by any U.S. Borrower under this Section 2.3(a) may
be repaid and, through but excluding the Termination Date, reborrowed. All U.S. Swingline Loans shall be made in Dollars as Base Rate
Loans and shall not be entitled to be converted into Term SOFR Loans or Daily SOFR Loans. The Borrowers’ Agent (on behalf of any
U.S. Borrower) shall give the U.S. Swingline Lender irrevocable notice (which notice must be received by the U.S. Swingline Lender prior
to 12:00 noon, New York City time) on the requested Funding Date specifying (1) the identity of the U.S. Borrower and (2) the
amount of the requested U.S. Swingline Loan, which shall be in a minimum amount of $100,000 or whole multiples of $50,000 in excess thereof.
The proceeds of the U.S. Swingline Loan will be made available by the U.S. Swingline Lender to the U.S. Borrower identified in such notice
at an office of the U.S. Swingline Lender by wire transfer to the account of such U.S. Borrower specified in such notice. Each U.S. Swingline
Loan shall be subject to all the terms and conditions applicable to other U.S. Revolving Loans except that all payments thereon (including
interest) shall be payable to the U.S. Swingline Lender solely for its own account.
(b) ROW
Swingline Loans. Subject to the terms and conditions hereof, the ROW Swingline Lender agrees to make swing line loans (individually,
a “ROW Swingline Loan” and collectively, the “ROW Swingline Loans”) to any ROW Borrower from time
to time on any Business Day during the period from the Closing Date until the Termination Date in an aggregate principal amount at any
one time outstanding not to exceed $25,000,000 (the “ROW Swingline Sublimit”); provided that the ROW Swingline
Lender shall not make any ROW Swingline Loans if, after doing so, (A) U.S. Availability would be less than zero, (B) the Aggregate
Revolver Outstandings would exceed the Maximum Revolver Amount, (C) the Aggregate ROW Revolver Outstandings would exceed the Maximum
ROW Revolver Amount or (D) the Aggregate Pro Rata Revolver Outstandings would exceed the Maximum Pro Rata Revolver Amount. Amounts
borrowed by any ROW Borrower under this Section 2.3(b) may be repaid and, through but excluding the Termination Date,
reborrowed. All ROW Swingline Loans shall be made in Dollars, Euros or Sterling, as requested by the applicable ROW Borrower, as Base
Rate Loans bearing interest based on the Foreign Base Rate or, in the case of Sterling denominated ROW Swingline Loans, as SONIA Rate
Loans, and shall not be entitled to be converted into Term SOFR Loans, Daily SOFR Loans or EURIBOR Loans. The Borrowers’ Agent (on
behalf of any ROW Borrower) shall give the ROW Swingline Lender irrevocable notice (which notice must be received by the ROW Swingline
Lender prior to 11:00 a.m., London time) on the requested Funding Date specifying (1) the identity of the ROW Borrower, and
(2) the amount and currency of the requested ROW Swingline Loan, which shall be in an amount equal to an integral multiple of the
applicable ROW Swingline Loan Multiple and not less than the applicable ROW Swingline Loan Minimum. The proceeds of the ROW Swingline
Loan will be made available by the ROW Swingline Lender to the ROW Borrower identified in such notice at an office of the ROW Swingline
Lender by wire transfer to the account of such ROW Borrower specified in such notice. Each ROW Swingline Loan shall be subject to all
the terms and conditions applicable to ROW Revolving Loans except that all payments thereon (including interest) shall be payable
to the ROW Swingline Lender solely for its own account.
(c) Canadian
Swingline Loans. Subject to the terms and conditions hereof, the Canadian Swingline Lender agrees to make swing line loans (individually,
a “Canadian Swingline Loan”; collectively, the “Canadian Swingline Loans”) to any Canadian Borrower
from time to time on any Business Day during the period from the Closing Date until the Termination Date in an aggregate principal amount
at any one time outstanding not to exceed $50,000,000 (the “Canadian Swingline Sublimit”); provided that the
Canadian Swingline Lender shall not make any Canadian Swingline Loans if, after doing so, (i) Canadian Availability would be less
than zero, (ii) the Aggregate Revolver Outstandings would exceed the Maximum Revolver Amount or (iii) the Aggregate Pro Rata
Revolver Outstandings would exceed the Maximum Pro Rata Revolver Amount. Amounts borrowed by any Canadian Borrower under this Section 2.3(c) may
be repaid and, through but excluding the Termination Date, reborrowed. All Canadian Swingline Loans shall be made in Canadian Dollars
as Canadian Prime Rate Loans and shall not be entitled to be converted into Term CORRA Loans. The Borrowers’ Agent (on behalf of
any Canadian Borrower) shall give the Canadian Swingline Lender irrevocable notice (which notice must be received by the Canadian Swingline
Lender prior to 12:00 noon, New York City time) on the requested Funding Date specifying (A) the identity of the Canadian Borrower
and (B) the amount of the requested Canadian Swingline Loan, which shall be in a minimum amount of Cdn $100,000 or whole multiples
of Cdn $50,000 in excess thereof. The proceeds of the Canadian Swingline Loan will be made available by the Canadian Swingline Lender
to the Canadian Borrower identified in such notice at an office of the Canadian Swingline Lender by wire transfer to the account of such
Canadian Borrower specified in such notice. Each Canadian Swingline Loan shall be subject to all the terms and conditions applicable
to other Canadian Revolving Loans except that all payments thereon (including interest) shall be payable to the Canadian Swingline
Lender solely for its own account.
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(d) European
Swingline Loans. Subject to the terms and conditions hereof, the European Swingline Lender agrees to make swing line loans (individually,
a “European Swingline Loan” and collectively, the “European Swingline Loans”) to any European Borrower
from time to time on any Business Day during the period from the Closing Date until the Termination Date in an aggregate principal amount
at any one time outstanding not to exceed $15,000,00040,000,000
(the “European Swingline Sublimit”, as may be increased from time to time in accordance
with the last sentence of this clause (d); provided that the European Swingline Sublimit shall
not exceed $40,000,000 (or such other amount as the Agent may approve in its sole discretion)); provided that the
European Swingline Lender shall not make any European Swingline Loans if, after doing so, (i) U.S. Availability would be less than
zero, (ii) the Aggregate Revolver Outstandings would exceed the Maximum Revolver Amount or (iii) the Aggregate Pro Rata Revolver
Outstandings would exceed the Maximum Pro Rata Revolver Amount. Amounts borrowed by any European Borrower under this Section 2.3(d) may
be repaid and, through but excluding the Termination Date, reborrowed. All European Swingline Loans shall be made in Dollars, Euros or
Sterling, as requested by the applicable European Borrower, as Base Rate Loans bearing interest based on the Foreign Base Rate, in the
case of Sterling denominated European Swingline Loans, as SONIA Rate Loans, or, as requested by the applicable European Borrower, as Term
SOFR Loans or EURIBOR Loans. The Borrowers’ Agent (on behalf of any European Borrower) shall give the European Swingline Lender
irrevocable notice (which notice must be received by the European Swingline Lender prior to (A) 11:00 a.m., London time, at
least two Business Days prior to the requested Funding Date, if the requested European Swingline Loan is to be initially a Term SOFR Loan
or a EURIBOR Loan or (B) 11:00 a.m., London time, on the requested Funding Date, if the requested European Swingline Loan is to be
initially a Base Rate Loan or a SONIA Rate Loan) specifying (1) the identity of the European Borrower, (2) the amount and currency
of the requested European Swingline Loan, which shall be in an amount equal to (x) in the case of a Base Rate Loan or a SONIA Rate
Loan, an integral multiple of the applicable European Swingline Loan Multiple and not less than the applicable European Swingline Loan
Minimum and (y) in the case of a Term SOFR Loan or a EURIBOR Loan, an integral of the applicable Borrowing Multiple and not less
than the applicable Borrowing Minimum, (3) the requested Funding Date, (4) whether the European Swingline Loan is to be a Base
Rate Loan, a SONIA Rate Loan, a Term SOFR Loan or a EURIBOR Loan (and if not so specified, it shall be deemed a request for a Base Rate
Loan or, in the case of a European Swingline Loan denominated in Sterling, a SONIA Rate Loan) and (5) if the European Swingline Loan
is to be a Term SOFR Loan or a EURIBOR Loan, the length of the initial Interest Period therefor (and if not so specified, it shall be
deemed a request for a period of one month). The proceeds of the European Swingline Loan will be made available by the European Swingline
Lender to the European Borrower identified in such notice at an office of the European Swingline Lender by wire transfer to the account
of such European Borrower specified in such notice. Each European Swingline Loan shall be subject to all the terms and conditions applicable
to Revolving Loans except that all payments thereon (including interest) shall be payable to the European Swingline Lender solely
for its own account. The European Swingline Lender may, in its sole discretion, agree to increase the
European Swingline Sublimit in an amount to be agreed upon (i) the designation of an Additional Designated European Borrower in accordance
with Section 1.9(a)(i) and (ii) receipt by the European Swingline Lender, with
respect to each Additional Designated European Borrower, of the “know your customer” documentation required by Section 1.9(a)(iii) as
if the Additional Designated European Borrower were an “Additional Borrower”, or as otherwise may be required.
(e) ANZ
Swingline Loans. Subject to the terms and conditions hereof, the ANZ Swingline Lender agrees to make swing line loans (individually,
an “ANZ Swingline Loan” and collectively, the “ANZ Swingline Loans”) to any ANZ Borrower from time
to time on any Business Day during the period from the Closing Date until the Termination Date in an aggregate principal amount at any
one time outstanding not to exceed $20,000,000 (the “ANZ Swingline Sublimit”); provided that the ANZ Swingline
Lender shall not make any ANZ Swingline Loans if, after doing so, (i) U.S. Availability would be less than zero, (ii) the Aggregate
Revolver Outstandings would exceed the Maximum Revolver Amount or (iii) the Aggregate ANZ Revolver Outstandings would exceed the
Maximum ANZ Revolver Amount. Amounts borrowed by any ANZ Borrower under this Section 2.3(e) may be repaid and, through
but excluding the Termination Date, reborrowed. All ANZ Swingline Loans shall be made in Dollars, Australian Dollars or New Zealand Dollars,
as requested by the applicable ANZ Borrower, as Base Rate Loans bearing interest based on the Base Rate or the Foreign Base Rate, as applicable,
and shall not be entitled to be converted into Term SOFR Loans, Daily SOFR Loans or Bank Bill Rate Loans. The Borrowers’ Agent (on
behalf of any ANZ Borrower) shall give the ANZ Swingline Lender irrevocable notice (which notice must be received by the ANZ Swingline
Lender prior to 10:00 a.m., Sydney time) on the requested Funding Date specifying (A) the identity of the ANZ Borrower, and
(B) the amount and currency of the requested ANZ Swingline Loan, which shall be in an amount equal to an integral multiple of the
applicable ANZ Swingline Loan Multiple and not less than the applicable ANZ Swingline Loan Minimum. The proceeds of the ANZ Swingline
Loan will be made available by the ANZ Swingline Lender to the ANZ Borrower identified in such notice at an office of the ANZ Swingline
Lender by wire transfer to the account of such ANZ Borrower specified in such notice. Each ANZ Swingline Loan shall be subject to all
the terms and conditions applicable to ANZ Revolving Loans except that all payments thereon (including interest) shall be payable
to the ANZ Swingline Lender solely for its own account.
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2.4 Letters
of Credit.
(a) Agreement
to Issue or Cause to Issue.
(i) Subject
to all of the terms and conditions of this Agreement, the Agent agrees to cause each Letter of Credit Issuer to issue for the account
of the Company (or for the account of any other Borrower or any Subsidiary of the Company, so long as the Company and such other Borrower
or such Subsidiary are co-applicants) one or more commercial/documentary and standby letters of credit denominated in Dollars, Canadian
Dollars or any Alternative Currency, as requested by the Borrowers’ Agent (each, a “Letter of Credit” and, collectively,
the “Letters of Credit”) and to amend, renew or extend Letters of Credit previously issued by the applicable Letter
of Credit Issuer (unless otherwise provided below).
(ii) Upon
the Closing Date, (x) all Existing Letters of Credit issued for the account of the Company shall constitute Letters of Credit issued
for the account of the Company hereunder with the same effect and status as if such Existing Letters of Credit were originally issued
for the account of the Company pursuant to this Agreement and (y) all Existing Letters of Credit issued for the account of the UR
Canada shall constitute Letters of Credit issued for the account of UR Canada (with the Company deemed to be a co-applicant thereof) hereunder
with the same effect and status as if such Existing Letters of Credit were originally issued for the account of UR Canada pursuant to
this Agreement. All fees payable with respect to the Existing Letters of Credit accruing through the Closing Date shall be paid on the
Closing Date. Until the Closing Date, the fees with respect to all Existing Letters of Credit shall accrue and be payable at the rates
set forth in the Existing Loan Agreement and on and after the Closing Date such fees shall accrue and be payable at the rates set forth
herein.
(b) Amounts;
Outside Expiration Date. The Agent shall not have any obligation to issue or cause to be issued any Letter of Credit at any time if
the Equivalent Amount in Dollars of (i) the maximum aggregate amount of the requested Letter of Credit for the term of such Letter
of Credit (in each case including any increases in amount referenced therein) is greater than the Unused Letter of Credit Subfacility
at such time, (ii) the maximum undrawn amount of the requested Letter of Credit would result in the U.S. Availability being less
than zero, (iii) such Letter of Credit would result in the Aggregate Revolver Outstandings exceeding the Maximum Revolver Amount
or the Aggregate Pro Rata Revolver Outstandings exceeding the Maximum Pro Rata Revolver Amount or (iv) such Letter of Credit has
an expiration date later than 12 months after the date of issuance, in the case of standby letters of credit (subject to customary
evergreen or automatic renewal provisions reasonably acceptable to such Letter of Credit Issuer), or later than 180 days after the
date of issuance, in the case of documentary letters of credit; provided that in no event shall any Letter of Credit have an expiration
date later than the date that is five Business Days prior to the Termination Date (except to the extent cash collateralized or backstopped
pursuant to arrangements reasonably acceptable to the relevant Letter of Credit Issuer). With respect to any Letter of Credit which contains
any “evergreen” or automatic renewal or extension provision, if such Letter of Credit permits the applicable Letter of Credit
Issuer to prevent any extension by giving notice to the beneficiary thereof no later than a date (the “Non-Extension Notice Date”),
once any such Letter of Credit has been issued, the Lenders shall be deemed to have authorized such Letter of Credit Issuer to permit
extensions of such Letter of Credit to an expiry date not later than the date that is five Business Days prior to the Termination
Date, unless the Agent shall have received written notice from the Required Lenders declining to consent to any such extension at least
30 days prior to the Non-Extension Notice Date; provided that no Lender may decline to consent to any such extension if all
of the requirements of this Section 2.4 are met and no Default or Event of Default has occurred and is continuing.
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(c) Other
Conditions. In addition to the conditions precedent contained in Article IX, the obligation of the Agent to issue or to
cause to be issued any applicable Letter of Credit is subject to the following conditions precedent having been satisfied in a manner
reasonably acceptable to the Agent:
(i) the
applicable Borrower shall have delivered to the applicable Letter of Credit Issuer, at least three Business Days (or such shorter
period as the applicable Letter of Credit Issuer may, in its reasonable discretion, agree) in advance of the proposed date of issuance
of any Letter of Credit, an application in form and substance reasonably satisfactory to such Letter of Credit Issuer for the issuance
of the Letter of Credit and such other documents as may be reasonably required pursuant to the terms thereof, and the form of the proposed
Letter of Credit shall be reasonably satisfactory to the Agent and the applicable Letter of Credit Issuer; and
(ii) as
of the date of issuance, no order of any court, arbitrator or Governmental Authority shall purport by its terms to enjoin or restrain
the applicable Letter of Credit Issuer from issuing letters of credit of the type and in the amount of the proposed Letter of Credit,
and no law, rule or regulation applicable to the applicable Letter of Credit Issuer and no request or directive (whether or not having
the force of law) from any Governmental Authority with jurisdiction over such Letter of Credit Issuer shall prohibit, or request that
the proposed Letter of Credit Issuer refrain from, the issuance of letters of credit generally or the issuance of such Letters of Credit.
(d) Issuance
of Letters of Credit.
(i) Request
for Issuance. The Borrowers’ Agent shall notify the Agent of a requested Letter of Credit at least three Business Days
(or such shorter period as the applicable Letter of Credit Issuer may agree) prior to the proposed issuance date. Such notice shall be
irrevocable and must specify (t) the applicant or applicants of the Letter of Credit, (u) the original face amount (and currency)
of the Letter of Credit requested, (v) the Business Day of issuance of such requested Letter of Credit, (w) whether such Letter
of Credit may be drawn in a single or in partial draws, (x) the Business Day on which the requested Letter of Credit is to expire,
(y) the purpose for which such Letter of Credit is to be issued, and (z) the beneficiary of the requested Letter of Credit.
The Borrowers’ Agent shall attach to such notice the proposed form of the Letter of Credit.
(ii) Responsibilities
of the Agent; Issuance. As of the Business Day immediately preceding the requested issuance date of each Letter of Credit, the Agent
shall determine the amount of the Unused Letter of Credit Subfacility and the U.S. Availability as of such date. If the Equivalent Amount
in Dollars of (x) the aggregate amount of the requested Letter of Credit for the term of such Letter of Credit (including any increases
in amount referenced therein) is no greater than the Unused Letter of Credit Subfacility, (y) the amount of such requested Letter
of Credit would not exceed the U.S. Availability and (z) such Letter of Credit would not result in the Aggregate Revolver Outstandings
exceeding the Maximum Revolver Amount or the Aggregate Pro Rata Revolver Outstandings exceeding the Maximum Pro Rata Revolver Amount,
the Agent shall cause such Letter of Credit Issuer to issue the requested Letter of Credit on the requested issuance date so long as the
other conditions to such issuance are met.
(iii) No
Extensions or Amendment. Except in the case of Letters of Credit subject to evergreen or automatic renewal provisions, the Agent shall
not be obligated to cause the applicable Letter of Credit Issuer to extend, renew or amend any Letter of Credit issued pursuant hereto
unless the requirements of this Section 2.4 are met as though a new Letter of Credit were being requested and issued.
(e) Payments
Pursuant to Letters of Credit. Each Borrower that is the account party of any Letter of Credit agrees to reimburse the applicable
Letter of Credit Issuer for any draw under such Letter of Credit within one Business Day (or such longer period as may be agreed
to by the Agent and the applicable Letter of Credit Issuer, in each case in its reasonable discretion) after notice of such drawing is
received by such Borrower, together with accrued interest thereon from the date of such drawing at the Base Rate (in the case of Letters
of Credit denominated in Dollars), at the Canadian Prime Rate (in the case of Letters of Credit denominated in Canadian Dollars), at the
SONIA Rate (in the case of Letters of Credit denominated in Sterling) and at the Foreign Base Rate (in the case of Letters of Credit denominated
in any Alternative Currency (other than Sterling)), and to pay the applicable Letter of Credit Issuer the amount of all other charges
and fees payable to or reasonably incurred by such Letter of Credit Issuer in connection with any Letter of Credit immediately when due,
irrespective of any claim, setoff, defense or other right which any Borrower may have at any time against such Letter of Credit Issuer
or any other Person. All payments required under this Section 2.4(e) shall be made in the currency in which the applicable
Letter of Credit was issued; provided, however, that the applicable Borrower may, subject to the conditions to borrowing
set forth herein, request in accordance with Section 2.2 that such payment be financed with, or, in the event not so requested
on such date, each drawing under any Letter of Credit issued for the account of a Borrower shall constitute a request by such Borrower
to the Agent for, a Borrowing in Dollars of a Base Rate Loan or a Borrowing in Canadian Dollars of a Canadian Prime Rate Loan, as applicable,
in the amount of such drawing (or, with respect to Letters of Credit issued in any Alternative Currency, a Borrowing in Dollars of a Base
Rate Loan in the Equivalent Amount in Dollars of such drawing) and, to the extent so financed, such Borrower’s obligation to make
such payment will be discharged and replaced by the resulting Base Rate Loan or Canadian Prime Rate Loan, as applicable.
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(f) Indemnification;
Exoneration; Power of Attorney.
(i) Indemnification.
In addition to amounts payable as elsewhere provided in this Section 2.4, the Borrowers agree to protect, indemnify, pay and
save the applicable Revolving Credit Lenders, the applicable Letter of Credit Issuer and the Agent harmless from and against any and all
claims, demands, liabilities, damages, losses, costs, charges and expenses (including Attorney Costs) which any Revolving Credit Lender,
such Letter of Credit Issuer or the Agent may incur or be subject to as a consequence, direct or indirect, of the issuance of any Letter
of Credit, except that the foregoing indemnity shall not apply to such Revolving Credit Lender, such Letter of Credit Issuer or the Agent,
as applicable, to the extent of the gross negligence, bad faith or willful misconduct of such Person. The Borrowers’ obligations
under this Section 2.4(f)(i) shall survive payment of all other Obligations and termination of this Agreement.
(ii) Assumption
of Risk by the Borrowers. As among the applicable Borrowers, the applicable Revolving Credit Lenders, the applicable Letter of Credit
Issuer and the Agent, the applicable Borrowers assume all risks of the acts and omissions of, or misuse of any of the Letters of Credit
by, the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of the foregoing, the applicable Revolving
Credit Lenders, the applicable Letter of Credit Issuer and the Agent shall not be responsible for (except in the case of any such Person
(but not with respect to any other Person), to the extent of the gross negligence, bad faith or willful misconduct of such Person in connection
with any of the following): (r) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted
by any Person in connection with the application for and issuance of and presentation of drafts with respect to any of the Letters of
Credit, even if it should prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (s) the validity
or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason; (t) the failure
of the beneficiary of any Letter of Credit to comply duly with conditions set forth in any separate agreement with an Obligor that are
required in order to draw upon such Letter of Credit; (u) errors, omissions, interruptions, or delays in transmission or delivery
of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they be in cipher; (v) errors in interpretation of
technical terms; (w) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under
any Letter of Credit or of the proceeds thereof; (x) the misapplication by the beneficiary of any Letter of Credit of the proceeds
of any drawing under such Letter of Credit; (y) any consequences arising from causes beyond the control of the applicable Revolving
Credit Lenders, the applicable Letter of Credit Issuer or the Agent, including any act or omission, whether rightful or wrongful, of any
present or future de jure or de facto Governmental Authority; or (z) the applicable Letter of Credit Issuer’s honor of a draw
for which the draw or any certificate fails to comply in any material respect with the terms of the Letter of Credit. None of the foregoing
shall affect, impair or prevent the vesting of any rights or powers of the Agent or any Revolving Credit Lender under this Section 2.4(f).
(iii) Exoneration.
Without limiting the foregoing, no action or omission whatsoever by the Agent, a Letter of Credit Issuer or any Revolving Credit Lender
shall result in any liability of the Agent, such Letter of Credit Issuer or any Revolving Credit Lender to any Borrower (except as provided
in the immediately succeeding clause (iv)), or relieve any Borrower of any of its obligations hereunder to any such Person.
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(iv) Rights
Against Letter of Credit Issuer. Nothing contained in this Agreement is intended to limit the Borrowers’ rights, if any, with
respect to any Letter of Credit Issuer which arise as a result of the letter of credit application and related documents executed by and
between any Borrower and such Letter of Credit Issuer or the gross negligence, bad faith or willful misconduct of such Letter of Credit
Issuer.
(v) Account
Party. The Borrowers hereby authorize and direct any Letter of Credit Issuer to name the applicable Borrower as the “Account
Party” in the Letters of Credit and to deliver to the Agent all instruments, documents and other writings and property received
by the applicable Letter of Credit Issuer pursuant to the Letters of Credit, and to accept and rely upon the Agent’s instructions
and agreements with respect to all matters arising in connection with the Letters of Credit or the applications therefor.
(g) Supporting
Letter of Credit. If, notwithstanding the provisions of Section 2.4(b) and Section 11.1, any Letter of
Credit is outstanding upon the Termination Date, then upon the Termination Date each applicable Borrower shall (i) deposit with the
Agent, for the ratable benefit of the Agent, the applicable Letter of Credit Issuer and the applicable Revolving Credit Lenders, with
respect to each Letter of Credit then outstanding, a standby letter of credit (a “Supporting Letter of Credit”) in
form and substance reasonably satisfactory to the Agent, issued by an issuer reasonably satisfactory to the Agent, in an amount equal
to 102% (or such lesser amount as the Agent and such Letter of Credit Issuer shall agree, but not less than 100%) of the sum of the greatest
amount for which such Letter of Credit may be drawn plus any fees and expenses then due with such Letter of Credit, under which Supporting
Letter of Credit the Agent is entitled to draw amounts necessary to reimburse the Agent, such Letter of Credit Issuer and the applicable
Revolving Credit Lenders for payments to be made by the Agent, such Letter of Credit Issuer and such Revolving Credit Lenders under such
Letter of Credit and any fees and expenses then due or to become due with such Letter of Credit, or (ii) cash collateralize each
Letter of Credit then outstanding, in an amount equal to 102% (or such lesser amount as the Agent and such Letter of Credit Issuer shall
agree) of the sum of the greatest amount for which such Letter of Credit may be drawn plus any fees and expenses then due with such Letter
of Credit, in a manner reasonably satisfactory to the Agent. Such Supporting Letter of Credit or cash collateral shall be held by the
Agent, for the ratable benefit of the Agent, the applicable Letter of Credit Issuer and the Revolving Credit Lenders, as security for,
and to provide for the payment of, the aggregate undrawn amount of such Letters of Credit remaining outstanding.
2.5 Incremental
Facility.
(a) So
long as no Specified Default exists or would arise therefrom, each applicable Borrower shall have the right, at any time and from time
to time after the Closing Date, to request (i) an increase of the aggregate amount of the then outstanding Pro Rata Revolving Credit
Commitments or ANZ Revolving Credit Commitments, as applicable (the “Incremental Revolving Commitments”) or (ii) one
or more term loans (the “Incremental ABL Term Loans” and together with the Incremental Revolving Commitments, collectively,
the “Incremental Facilities” and each, an “Incremental Facility”). Any request under this Section 2.5
shall specify, (A) in the case of a request for Incremental Revolving Commitments, whether the Pro Rata Revolving Credit Commitments
or the ANZ Revolving Credit Commitments (or a combination thereof) are requested to be increased and (B) in the case of a request
for Incremental ABL Term Loans, (x) whether such loans will be made to a U.S. Borrower, a ROW Borrower, a Canadian Borrower and/or
an ANZ Borrower (including in each case any Additional Borrower) and (y) the currency in which such loans will be denominated, which
shall be Dollars (to the extent made to a U.S. Borrower), Dollars, Euros, Sterling or any other Alternative Currency (to the extent made
to a ROW Borrower), Cdn. Dollars or Dollars (to the extent made to a Canadian Borrower) or Dollars, Australian Dollars or New Zealand
Dollars (to the extent made to an ANZ Borrower). Incremental ABL Term Loans will count as U.S. Revolving Loans (to the extent made to
a U.S. Borrower), ROW Revolving Loans (to the extent made to a ROW Borrower), Canadian Revolving Loans (to the extent made to a Canadian
Borrower) or ANZ Revolving Loans (to the extent made to an ANZ Borrower) for purposes of determining the Aggregate U.S. Revolver Outstandings,
the Aggregate ROW Revolver Outstandings, the Aggregate Canadian Revolver Outstandings and the Aggregate ANZ Revolver Outstandings, as
applicable. Notwithstanding anything to the contrary herein, after giving effect to any new Incremental Facility, the Equivalent Amount
in Dollars of the aggregate principal amount of any Incremental ABL Term Loans or Incremental Revolving Commitments shall not exceed the
Available Incremental Amount at such time. The Borrowers may seek to obtain Incremental Revolving Commitments or Incremental ABL Term
Loans from existing Lenders or any other Persons, as applicable (each, an “Incremental Facility Increase”), provided,
however, that (A) no Lender shall be obligated to provide an Incremental Facility Increase as a result of any such request
by any of the Borrowers, and (B) any Additional Lender which is not an existing Lender shall be subject to the approval of the Agent
and the Borrowers’ Agent and, in the case of Incremental Revolving Commitments, the Swingline Lenders and the Letter of Credit Issuers
(each such approval not to be unreasonably withheld).
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(b) Any
Incremental ABL Term Loans (i) may not be guaranteed by any Subsidiaries of Holdings other than the Guarantors and shall rank pari
passu or junior in right of (x) priority with respect to the Collateral and (y) payment with respect to the Obligations
in respect of the Revolving Credit Commitments and any corresponding existing Incremental ABL Term Loans, (ii) shall count against
the applicable Borrowing Base, (iii) shall not have a final maturity that is earlier than the Maturity Date (or, if later, the latest
final maturity of any Extended Loans or any then-existing Incremental Facility), except for Incremental ABL Term Loans in an aggregate
principal amount of up to the greater of (A) $1,207,350,000 and (B) 7.5% of Consolidated Net Tangible Assets, or customary bridge
loans, (iv) may not be secured by any Collateral or other assets of any Borrower or any Guarantor that do not also secure the Loans
(other than, in the case of Incremental ABL Term Loans incurred to finance a Permitted Acquisition or other permitted Investment, proceeds
of such Incremental ABL Term Loans that are subject to customary escrow or similar arrangements pending consummation of such Permitted
Acquisition or other Investment), (v) may provide for commitment, arrangement, upfront or similar fees and margins and interest rates
that may be agreed among the applicable Borrower and the Lenders providing such Incremental ABL Term Loans and (vi) except with respect
to pricing, fees, final maturity or amortization, which shall be on terms agreed between Holdings or the relevant Borrowers and the lenders
providing such Incremental ABL Term Loans, shall be on terms reasonably acceptable to the Agent; provided that terms that are substantially
consistent with, or not materially less favorable, taken as a whole, to the Lenders than, the terms of the TLB Credit Agreement or this
Agreement shall be deemed to be reasonably acceptable to the Agent.
(c) Any
Incremental Revolving Commitments (i) shall be guaranteed by the Guarantors and shall rank pari passu or junior in right of
(x) priority with respect to the Collateral and (y) payment with respect to the Obligations in respect of the Revolving Credit
Commitments in effect prior to the Incremental Revolving Commitment Effective Date, (ii) may not be secured by any Collateral or
other assets of any Borrower or any Guarantor that do not also secure the Loans, (iii) may provide for commitment, arrangement, upfront
or similar fees and margins and interest rates that may be agreed among the applicable Borrower and the Lenders providing such Incremental
Revolving Commitments and (iv) shall otherwise be on terms and pursuant to the documentation applicable to the existing relevant
Revolving Credit Commitments.
(d) No
Incremental Facility Increase shall become effective unless and until each of the following conditions has been satisfied:
(i) The
applicable Borrowers, the Agent, and any Additional Lender shall have executed and delivered a joinder to the Loan Documents (“Lender
Joinder Agreement”) in substantially the form of Exhibit I, or as otherwise reasonably acceptable to the Agent;
(ii) The
applicable Borrowers shall have paid such fees and other compensation to the Additional Lenders and to the Agent as the applicable Borrowers,
the Agent and such Additional Lenders shall agree;
(iii) The
Company shall deliver on the closing date of any Incremental Facility Increase a certificate certifying that (x) (other than with
respect to an Incremental Facility Increase in connection with a Permitted Acquisition permitted hereunder or any other Investment not
prohibited by the terms of this Agreement, unless required by the Lenders providing such Incremental Facility Increase) the representations
and warranties made by Holdings, each Borrower and each Guarantor contained herein and in the other Loan Documents are true and correct
in all material respects on and as of such closing date, except to the extent that such representations and warranties specifically refer
to an earlier date, in which case they are true and correct in all material respects as of such earlier date, and (y) no Specified
Default has occurred and is continuing; and
(iv) The
applicable Borrowers and Additional Lenders shall have delivered such other instruments, documents and agreements as the Agent may reasonably
have requested in order to effectuate the documentation of the foregoing.
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(e)
(i) In
the case of any Incremental Facility Increase constituting Incremental Revolving Commitments, the Agent shall promptly notify each Lender
as to the effectiveness of such Incremental Facility Increase (with each date of such effectiveness being referred to herein as an “Incremental
Revolving Commitment Effective Date”), and at such time (x) the Pro Rata Revolving Credit Commitments and/or the ANZ Revolving
Credit Commitments, as applicable, under, and for all purposes of, this Agreement shall be increased by the aggregate amount of such Incremental
Revolving Commitments, (y) Schedule 1.1 shall be deemed modified, without further action, to reflect the revised Commitments
of the Lenders and (z) this Agreement shall be deemed amended, without further action, to the extent necessary to reflect any such
Incremental Revolving Commitments.
(ii) In
the case of any Incremental Facility Increase, the Agent, the Additional Lenders and the Borrowers agree to enter into any amendment required
to incorporate the addition of the Incremental Revolving Commitments and the Incremental ABL Term Loans, the pricing of the Incremental
Revolving Commitments and the Incremental ABL Term Loans, the maturity date of the Incremental Revolving Commitments and the Incremental
ABL Term Loans and such other amendments as may be necessary or appropriate in the reasonable opinion of the Agent and the applicable
Borrowers in connection therewith, including amendments to provide for the inclusion, as appropriate, of Additional Lenders in any required
vote or action of the Required Lenders or the Supermajority Lenders, amendments to permit purchases of Incremental ABL Term Loans by Holdings
or any of its Affiliates (which shall be cancelled upon purchase by Holdings or any Subsidiary) (provided that such purchases by
an Affiliate of Holdings other than a Subsidiary shall be subject to customary restrictions to be agreed with the Additional Lenders providing
such Incremental ABL Term Loans and the Agent), and amendments to properly reflect the pari passu or junior right of payment or
priority with respect to the Collateral (each an “Incremental Commitment Amendment”). The Lenders hereby irrevocably
authorize the Agent to enter into such amendments.
(f) In
connection with the Incremental Facility Increases hereunder, the Lenders and the Borrowers agree that, notwithstanding anything to the
contrary in this Agreement, (i) the applicable Borrowers shall, in coordination with the Agent, (x) repay applicable outstanding
Revolving Loans of certain Lenders, and obtain applicable Revolving Loans from certain other Lenders (including the Additional Lenders),
or (y) take such other actions as reasonably may be required by the Agent to the extent necessary so that the Lenders effectively
participate in each of the outstanding Revolving Loans, as applicable, pro rata on the basis of their respective applicable Commitments
(determined after giving effect to any increase in such applicable Commitments pursuant to this Section 2.5), and (ii) the
applicable Borrowers shall pay to the applicable Lenders any costs of the type referred to in Section 5.4 in connection with
any repayment required pursuant to the preceding clause (i). Without limiting the obligations of the Borrowers provided for
in this Section 2.5, the Agent and the Lenders agree that they will use commercially reasonable efforts to attempt to minimize
the costs of the type referred to in Section 5.4 that the Borrowers would otherwise incur in connection with the implementation
of an increase in the applicable Commitments.
2.6 Extension
Amendments.
(a) The
applicable Borrowers may at any time and from time to time request that all or a portion of the Pro Rata Revolving Credit Commitments
and/or the ANZ Revolving Credit Commitments (including any Extended Commitments), each existing at the time of such request (each, an
“Existing Commitment” and any related Loans thereunder, “Existing Loans”; each Existing Commitment
and related Existing Loans together being referred to as an “Existing Tranche”) be converted to extend the termination
date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount
of Existing Loans related to such Existing Commitments (any such Existing Commitments which have been so extended, “Extended
Commitments” and any related Existing Loans, “Extended Loans”, with the commitments of the Existing Tranche
not so extended and any related Loans thereunder being referred to as “Non-Extended Commitments” and “Non-Extended
Loans”, respectively) and to provide for other terms consistent with this Section 2.6; provided that any
Minimum Extension Condition shall be satisfied unless waived by the applicable Borrowers. In order to establish any Extended Commitments,
the Borrowers’ Agent shall provide a notice to the Agent (who shall provide a copy of such notice to each of the Lenders of the
applicable Existing Tranche) (an “Extension Request”) setting forth the proposed terms of the Extended Commitments
to be established, which Extension Request may be modified, revoked, or revoked and reissued by the Borrowers’ Agent at any time
prior to the effectiveness of the Extension Amendment. The terms of the Extended Commitments to be established pursuant to an Extension
Request shall be identical to those applicable to the Existing Commitments from which they are to be extended (the “Specified
Existing Commitment”), except (x) all or any of the final maturity dates of such Extended Commitments may be delayed to
later dates than the final maturity dates of the Specified Existing Commitments and (y)(A) the interest margins with respect to the
Extended Commitments may be higher or lower than the interest margins for the Specified Existing Commitments and/or (B) additional
fees may be payable to the Lenders providing such Extended Commitments in addition to or in lieu of any increased margins contemplated
by the preceding clause (A); provided that, notwithstanding anything to the contrary in this Section 2.6,
(I) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with
respect to any Extended Commitments and Non-Extended Commitments shall be made on a pro rata basis with all such other outstanding
Extended Commitments and Non-Extended Commitments, (II) assignments and participations of Extended Commitments and Extended Loans
shall be governed by the same assignment and participation provisions applicable to relevant Commitments and the Revolving Loans related
to such Commitments set forth in Section 12.2, and (III) no termination of Extended Commitments and no repayment of Extended
Loans accompanied by a corresponding permanent reduction in Extended Commitments shall be permitted unless such termination or repayment
(and corresponding reduction) is accompanied by an at least pro rata termination or permanent repayment (and corresponding permanent
reduction), as applicable, of all earlier maturing corresponding Non-Extended Commitments and Revolving Loans related to such earlier
maturing corresponding Non-Extended Commitments (or all earlier maturing corresponding Non-Extended Commitments and Revolving Loans related
to such corresponding Non-Extended Commitments shall otherwise be or have been terminated and repaid in full). No Lender shall have any
obligation to agree to have any of its Existing Loans or Existing Commitments of any Existing Tranche converted into Extended Loans or
Extended Commitments pursuant to any Extension Request. Any Extended Commitments shall constitute a separate class of Commitments from
the Specified Existing Commitments and from any other Existing Commitments (together with any other Extended Commitments so established
on such date); provided that any Extended Commitments or Extended Loans may, to the extent provided in the applicable Extension
Amendment, be designated as part of any class of Pro Rata Revolving Credit Commitments and/or ANZ Revolving Credit Commitments or Revolving
Loans, as applicable, established on or prior to the date of such Extension Amendment.
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(b) The
Borrowers’ Agent shall provide the applicable Extension Request at least five (5) Business Days (or such shorter period
as may be agreed to by the Agent) prior to the date on which Lenders under the applicable Existing Tranche or Existing Tranches are requested
to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Specified Existing Commitments
converted into Extended Commitments shall notify the Agent (an “Extension Election”) on or prior to the date specified
in such Extension Request of the amount of its Specified Existing Commitments that it has elected to convert into Extended Commitments.
In the event that the aggregate amount of Specified Existing Commitments subject to Extension Elections exceeds the amount of Extended
Commitments requested pursuant to the Extension Request, the Specified Existing Commitments subject to Extension Elections shall be converted
to Extended Commitments on a pro rata basis based on the amount of Specified Existing Commitments included in each such Extension
Election. Notwithstanding the conversion of any Existing Commitment into an Extended Commitment, such Extended Commitment shall be treated
identically to all relevant Commitments for purposes of the obligations of a Lender in respect of Letters of Credit under Section 2.4
and Swingline Loans under Section 2.3, except that the applicable Extension Amendment may provide that the maturity date for
Swingline Loans and/or Letters of Credit may be extended and the related obligations to make Swingline Loans and issue Letters of Credit
may be continued so long as the U.S. Swingline Lender, the ROW Swingline Lender, the Canadian Swingline Lender, the European Swingline
Lender, the ANZ Swingline Lender and/or the applicable Letter of Credit Issuer, as applicable, have consented to such extensions in their
sole discretion (it being understood that no consent of any other Lender shall be required in connection with any such extension).
(c) Extended
Commitments shall be established pursuant to an amendment (an “Extension Amendment”) to this Agreement (which may include
amendments to provisions related to maturity, interest margins or fees referenced in Section 2.6(a), clauses (x) and
(y), and which, except to the extent expressly contemplated by the penultimate sentence of this Section 2.6(c) and
notwithstanding anything to the contrary set forth in Section 12.1, shall not require the consent of any Lender other than
the Extending Lenders with respect to the Extended Commitments established thereby) executed by the Borrowers, the Guarantors, the Agent
and the Extending Lenders. Notwithstanding anything to the contrary in this Agreement and without limiting the generality or applicability
of Section 12.1 to any Section 2.6 Additional Amendments, any Extension Amendment may provide for additional terms and/or
additional amendments other than those referred to or contemplated above (any such additional amendment, a “Section 2.6
Additional Amendment”) to this Agreement and the other Loan Documents; provided that such Section 2.6 Additional
Amendments do not become effective prior to the time that such Section 2.6 Additional Amendments have been consented to (including
pursuant to consents applicable to holders of any Extended Commitments provided for in any Extension Amendment) by such of the Lenders,
Borrowers, Guarantors and other parties (if any) as may be required in order for such Section 2.6 Additional Amendments to become
effective in accordance with Section 12.1; provided, further, that no Extension Amendment may provide for (i) any
Extended Commitment or Extended Loans to be secured by any Collateral or other assets of any Borrower or Guarantor that does not also
secure the Existing Tranches and (ii) so long as any Existing Tranches are outstanding, any mandatory or voluntary prepayment provisions
that do not also apply to the Existing Tranches (other than Existing Tranches secured on a junior basis by the Collateral or ranking junior
in right of payment, which may be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable
prepayment treatment for Existing Tranches than such Extended Commitments or Extended Loans). It is understood and agreed that each Lender
has consented for all purposes requiring its consent, and shall at the effective time thereof be deemed to consent to each amendment to
this Agreement and the other Loan Documents authorized by this Section 2.6 and the arrangements described above in connection
therewith except that the foregoing shall not constitute a consent on behalf of any Lender to the terms of any Section 2.6 Additional
Amendment.
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(d) Notwithstanding
anything to the contrary contained in this Agreement, (i) on any date on which any Existing Tranche is converted to extend the related
scheduled maturity date(s) in accordance with Section 2.6(a) (an “Extension Date”), in the case
of the Specified Existing Commitments of each Extending Lender, the aggregate principal amount of such Specified Existing Commitments
shall be deemed reduced by an amount equal to the aggregate principal amount of Extended Commitments so converted by such Lender on such
date, and such Extended Commitments shall, unless otherwise provided by the Extension Amendment, be established as a separate class of
Commitments from the Specified Existing Commitments and from any other Existing Commitments (together with any other Extended Commitments
so established on such date) and (ii) if, on any Extension Date, any Revolving Loans of any Extending Lender are outstanding under
the applicable Specified Existing Commitments, such Revolving Loans (and any related participations) shall be deemed to be allocated as
Extended Loans (and related participations) and Existing Loans (and related participations) in the same proportion as such Extending Lender’s
Specified Existing Commitments to Extended Commitments so converted by such Lender on such date.
(e) If,
in connection with any proposed Extension Amendment, any Lender declines to consent to the extension of its applicable Commitment on the
terms and by the deadline set forth in the applicable Extension Request (each such other Lender, a “Non-Extending Lender”)
then the applicable Borrowers may, on notice to the Agent and the Non-Extending Lender, (i) replace such Non-Extending Lender by
causing such Lender to (and such Lender shall be obligated to) assign pursuant to Section 12.2 (with the assignment fee and
any other costs and expenses to be paid by the applicable Borrowers in such instance) all of its rights and obligations under this Agreement
to one or more assignees; provided that neither the Agent nor any Lender shall have any obligation to the applicable Borrower to
find a replacement Lender; provided, further, that the applicable assignee shall have agreed to provide an applicable Commitment
on the terms set forth in such Extension Amendment; and provided, further, that all obligations of the Borrowers owing to
the Non-Extending Lender relating to the Revolving Loans and participations so assigned shall be paid in full by the assignee Lender to
such Non-Extending Lender concurrently with such Assignment and Acceptance or (ii) upon notice to the Agent, to prepay the Loans
and, at the applicable Borrowers’ option, terminate the applicable Commitments of such Non-Extending Lender, in whole or in part,
subject to Section 4.3 and Section 5.4, without premium or penalty. In connection with any such replacement under
this Section 2.6, if the Non-Extending Lender does not execute and deliver to the Agent a duly completed Assignment and Acceptance
and/or any other documentation necessary to reflect such replacement by the later of (x) the date on which the replacement Lender
executes and delivers such Assignment and Acceptance and/or such other documentation and (y) the date as of which all obligations
of the Borrowers owing to the Non-Extending Lender relating to the Loans and participations so assigned shall be paid in full by the assignee
Lender to such Non-Extending Lender, then such Non-Extending Lender shall be deemed to have executed and delivered such Assignment and
Acceptance and/or such other documentation as of such date and the applicable Borrowers shall be entitled (but not obligated) to execute
and deliver such Assignment and Acceptance and/or such other documentation on behalf of such Non-Extending Lender.
(f) Following
any Extension Date, with the written consent of the Borrowers’ Agent, any Non-Extending Lender may elect to have all or a portion
of its Existing Commitment deemed to be an Extended Commitment under the applicable Extended Commitment tranche on any date (each date
a “Designation Date”) prior to the maturity date of such Extended Commitments; provided that (i) such Lender
shall have provided written notice to the Borrowers’ Agent and the Agent at least 10 Business Days (or such shorter period
as may be agreed to by the Agent) prior to such Designation Date and (ii) no more than three Designation Dates may occur in
any one-year period without the written consent of the Agent (not to be unreasonably withheld). Following a Designation Date, the Existing
Commitments held by such Lender so elected to be extended will be deemed to be Extended Commitments of the applicable Extended Commitment
tranche, and any Existing Commitments held by such Lender not elected to be extended, if any, shall continue to be “Existing Commitments.”
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(g) With
respect to all extensions consummated by the Borrowers pursuant to this Section 2.6, (i) such extensions shall not constitute
payments or prepayments for purposes of Section 4.3 and (ii) no Extension Request is required to be in any minimum amount
or any minimum increment, provided that the applicable Borrowers may at their election specify as a condition (a “Minimum
Extension Condition”) to consummating any such extension that a minimum amount (to be determined and specified in the relevant
Extension Request in the applicable Borrowers’ discretion and may be waived by the applicable Borrowers) of Existing Commitments
of any or all applicable classes be extended. The Agent and the Lenders hereby consent to the transactions contemplated by this Section 2.6
(including, for the avoidance of doubt, payment of any interest, fees or premium in respect of any Extended Commitments on such terms
as may be set forth in the relevant Extension Request) and hereby waive the requirements of any provision of this Agreement (including
Sections 4.3, 4.7 and 13.12(b)) or any other Loan Document that may otherwise prohibit any such extension or any
other transaction contemplated by this Section 2.6.
2.7 Refinancing
Amendments.
(a) The
Borrowers’ Agent may, at any time or from time to time after the Closing Date, by notice to the Agent (a “Refinancing Loan
Request”), request (i) the establishment of one or more new classes of term loans under this Agreement (any such new class,
“Refinancing Term Commitments”) or (ii) the establishment of one or more new classes of revolving commitments
under this Agreement (any such new class, “Refinancing Revolving Commitments” and collectively with any Refinancing
Term Commitments, “Refinancing Commitments”), in each case, established in exchange for, or to replace, repurchase,
retire or refinance, in whole or in part, as selected by the Borrowers’ Agent, any one or more then-existing class or classes of
Loans or Commitments (with respect to a particular Refinancing Commitment or Refinancing Loan, such existing Loans or Commitments, “Refinanced
Debt”), whereupon the Agent shall promptly deliver a copy of each such notice to each of the Lenders holding such proposed Refinanced
Debt.
(b) Any
Refinancing Term Loans made pursuant to Refinancing Term Commitments or any Refinancing Revolving Commitments made on a Refinancing Closing
Date shall be designated a separate class of Refinancing Term Loans or Refinancing Revolving Commitments, as applicable, for all purposes
of this Agreement. On any Refinancing Closing Date on which any Refinancing Term Commitments of any class are effected, subject to the
satisfaction of the terms and conditions in this Section 2.7, (i) each Refinancing Term Lender of such class shall make
a term loan, severally, but not jointly or jointly and severally with the other Refinancing Term Lenders, to the applicable Borrowers
(a “Refinancing Term Loan”) in an amount equal to its Refinancing Term Commitment of such class and (ii) each
Refinancing Term Lender of such class shall become a Lender hereunder with respect to the Refinancing Term Commitment of such class and
the Refinancing Term Loans of such class made pursuant thereto. On any Refinancing Closing Date on which any Refinancing Revolving Commitments
of any class are effected, subject to the satisfaction of the terms and conditions in this Section 2.7, (x) each Refinancing
Revolving Lender of such class shall make its Refinancing Revolving Commitment available to the applicable Borrowers (when borrowed, a
“Refinancing Revolving Loan” and collectively with any Refinancing Term Loan, a “Refinancing Loan”)
and (y) each Refinancing Revolving Lender of such class shall become a Lender hereunder with respect to the Refinancing Revolving
Commitment of such class and the Refinancing Revolving Loans of such class made pursuant thereto.
(c) Each
Refinancing Loan Request from the Borrowers’ Agent pursuant to this Section 2.7 shall set forth the requested amount
and proposed terms of the relevant Refinancing Term Loans or Refinancing Revolving Commitments and identify the proposed Refinanced Debt
with respect thereto. Refinancing Term Loans may be made, and Refinancing Revolving Commitments may be provided, by any existing Lender
(but no existing Lender will have an obligation to make any Refinancing Commitment, nor will the Borrowers have any obligation to approach
any existing Lender to provide any Refinancing Commitment) or by any additional Lender (each such Additional Lender providing such Refinancing
Commitment or Refinancing Term Loan, a “Refinancing Revolving Lender” or “Refinancing Term Lender”,
as applicable, and, collectively, “Refinancing Lenders”); provided that the Agent shall have consented (not
to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term
Loans or providing such Refinancing Revolving Commitments to the extent such consent, if any, would be required under Section 12.2
for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Additional Lender.
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(d) The
effectiveness of any Refinancing Amendment, and the Refinancing Commitments thereunder, shall be subject to the satisfaction on the date
thereof (a “Refinancing Closing Date”) of each of the following conditions, together with any other conditions set
forth in the Refinancing Amendment:
(i) after
giving effect to such Refinancing Commitments, the conditions of Sections 9.2(a)(i) and 9.2(a)(ii) shall be satisfied
(it being understood that all references to “the date of such extension of credit” or similar language in such Section 9.2(a) shall
be deemed to refer to the applicable Refinancing Closing Date);
(ii) each
Refinancing Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,000
(provided that such amount may be less than $5,000,000 and not in an increment of $1,000,000 if such amount is equal to (x) the
entire outstanding principal amount of Refinanced Debt that is in the form of term loans or (y) the entire outstanding principal
amount of Refinanced Debt (or commitments) that is in the form of Revolving Credit Commitments); and
(iii) the
principal amount (or accreted value, if applicable) of such Refinancing Indebtedness does not exceed the principal amount (or accreted
value, if applicable) of the Refinanced Debt (plus the amount of unpaid accrued or capitalized interest and premiums thereon (including
make-whole premiums, prepayment premiums, tender premiums and amounts required to be paid in connection with defeasance and satisfaction
and discharge), underwriting discounts, original issue discount, defeasance costs, fees (including upfront fees), commissions and expenses).
(e) The
terms, provisions and documentation of the Refinancing Term Loans and Refinancing Term Commitments or the Refinancing Revolving Loans
and Refinancing Revolving Commitments, as the case may be, of any class shall be as agreed between the Borrowers, the applicable Refinancing
Lenders providing such Refinancing Commitments and the Agent (in the case of the Agent, only with respect to terms and provisions not
otherwise specified in this Section 2.7 that adversely affect the rights or obligations of the Agent), and except as otherwise
set forth herein, to the extent not substantially identical to any class of term loans or Revolving Credit Commitments, as applicable,
each existing on the Refinancing Closing Date, shall be consistent with clauses (i) or (ii) below, as applicable,
provided that the terms (other than (1) provisions applicable only to periods after the maturity date (as of the applicable
Refinancing Closing Date) of such class being refinanced or (2) pricing, fees, rate floors, optional prepayment, redemption terms,
amortization or maturity) of such Refinancing Term Loans, Refinancing Term Commitments, Refinancing Revolving Loans or Refinancing Revolving
Commitments, as applicable, shall not be materially more favorable (taken as a whole and as reasonably determined by the Borrowers’
Agent and conclusively evidenced by a certificate of the Company) to the Refinancing Lenders than the terms applicable to such class being
refinanced (other than terms that are conformed (or added) to the Loan Documents for the benefit of the Lenders under each such class
being refinanced). In any event:
(i) the
Refinancing Term Loans:
(A) as
of the Refinancing Closing Date, shall not have a final scheduled maturity date earlier than the maturity date of the Refinanced Debt,
(B) shall
have a weighted average life to maturity not shorter than the remaining weighted average life to maturity of the Refinanced Debt on the
date of incurrence of such Refinancing Loans (except by virtue of amortization or prepayment of the Refinanced Debt prior to the time
of such incurrence),
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(C) shall
have an applicable margin and, subject to clauses (e)(i)(A) and (e)(i)(B) above, amortization determined
by the applicable Borrowers and the applicable Refinancing Term Lenders,
(D) shall
not be subject to any guarantee by any person other than an Obligor and shall not include any borrower other than the applicable Borrowers
hereunder,
(E) in
the case of any Refinancing Term Loans secured on a pari passu basis with any then existing term loans hereunder, may provide for
the ability to participate on a pro rata basis, or on a less than pro rata basis (but not on a greater than pro rata
basis), in any voluntary or mandatory prepayments of such term loans hereunder, as specified in the applicable Refinancing Amendment,
and
(F) (I) shall
rank pari passu in right of payment with the Obligations under the then existing Loans, (II) shall either be (x) secured
by the Collateral (and shall not be secured by any assets of the Borrowers or any Restricted Subsidiary not constituting Collateral) and
shall rank pari passu or junior in right of security with the Obligations or (y) unsecured and (III) to the extent so
secured, shall count against the applicable Borrowing Base as provided herein; and
(ii) the
Refinancing Revolving Commitments and Refinancing Revolving Loans:
(A) (I) shall
rank pari passu in right of payment with the Obligations and (II) shall either be (x) secured by the Collateral (and
shall not be secured by any assets of any Borrower or any Guarantor not constituting Collateral) and shall rank pari passu or junior
in right of security with the Obligations or (y) unsecured,
(B) shall
not have a final scheduled maturity date earlier than, or mandatory scheduled commitment reductions prior to, the maturity date with respect
to the Refinanced Debt,
(C) shall
provide that the borrowing and repayment (except for (I) payments of interest and fees at different rates on Refinancing Revolving
Commitments (and related outstandings), (II) repayments required upon the maturity date of the Refinancing Revolving Commitments
and repayments to cure Out-of-Formula Conditions, (III) repayments made in connection with a permanent repayment and termination
of commitments (in accordance with clause (E) below), (IV) repayments from the proceeds of Collateral if the Refinancing
Revolving Loans are unsecured or are secured by the Collateral on a basis junior in right or priority with other Obligations, and (V) repayments
in respect of any Refinancing Revolving Loans in respect of ANZ Revolving Credit Commitments) of Loans with respect to Refinancing Revolving
Commitments after the associated Refinancing Closing Date shall be made on a pro rata basis with all other applicable Revolving
Credit Commitments,
(D) to
the extent dealing with Letters of Credit or Swingline Loans which mature or expire after the Maturity Date (either pursuant to Section 2.6(b) or
Section 2.7(g)) when there exists Refinancing Revolving Commitments with a later maturity date, all Letters of Credit and
Swingline Loans (other than European Swingline Loans and ROW Swingline Loans) shall be participated on a pro rata basis by all
applicable Lenders with relevant Revolving Credit Commitments in accordance with their applicable Pro Rata Share existing on the Refinancing
Closing Date,
(E) in
the case of any Refinancing Revolving Commitments secured on a pari passu basis with the Revolving Credit Commitments, shall provide
that the permanent repayment of Revolving Loans with respect to, and termination or reduction of, Refinancing Revolving Commitments after
the associated Refinancing Closing Date shall be made on a pro rata basis, or on a less than (but not greater than, except that
(I) Refinancing Revolving Commitments may participate on a greater than pro rata basis in any permanent prepayments and termination
with other Revolving Credit Commitments, other than the Revolving Credit Commitments in effect on the Closing Date or that have otherwise
agreed to such pro rata treatment, and (II) Refinancing Revolving Commitments in respect of ANZ Revolving Credit Commitments
may be permanently prepaid or terminated on a greater than pro rata basis than other Revolving Credit Commitments) pro rata
basis, with all other Revolving Credit Commitments, except that the applicable Borrowers shall be permitted to permanently repay and terminate
Commitments in respect of any such class of Revolving Loans on a greater than pro rata basis as compared to any other class of
Revolving Loans with a later maturity date than such class or in connection with any refinancing thereof permitted by this Agreement,
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(F) shall
provide that assignments and participations of Refinancing Revolving Commitments and Refinancing Revolving Loans shall be governed by
the same assignment and participation provisions applicable to Revolving Credit Commitments and Revolving Loans existing on the Refinancing
Closing Date,
(G) shall
provide that any Refinancing Revolving Commitments may constitute a separate class or classes, as the case may be, of Commitments from
the classes constituting the applicable Revolving Credit Commitments prior to the Refinancing Closing Date; provided at no time
shall there be Revolving Credit Commitments hereunder (including Refinancing Revolving Commitments and any original Revolving Credit Commitments)
which have more than two different maturity dates unless otherwise agreed to by the Agent,
(H) shall
have an Applicable Margin determined by the applicable Borrowers and the applicable Refinancing Revolving Lenders, and
(I) shall
not be subject to any guarantee by any person other than an Obligor and shall not include any borrower other than a Borrower hereunder.
(f) Commitments
in respect of Refinancing Term Loans and Refinancing Revolving Commitments shall become additional Commitments under this Agreement pursuant
to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed
by the applicable Borrowers, each Refinancing Lender providing such Commitments and the Agent. The Refinancing Amendment may, without
the consent of any other Obligor, agent or Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary
or appropriate, in the reasonable opinion of the Agent and the applicable Borrowers, to effect the provisions of this Section 2.7,
including, if applicable, amendments as deemed necessary by the Agent in its reasonable judgment to effect (i) any lien subordination
and associated rights of the applicable Lenders to the extent any Refinancing Loans are to rank junior in right of security and (ii) that
any Previously Absent Financial Maintenance Covenant does not benefit any term loan hereunder. The applicable Borrowers will use the proceeds,
if any, of the Refinancing Term Loans and Refinancing Revolving Commitments in exchange for, or to extend, renew, replace, repurchase,
retire or refinance, and shall permanently terminate applicable commitments under, substantially concurrently, the applicable Refinanced
Debt. In the event any Refinancing Revolving Commitments extend beyond the Maturity Date, any applicable Refinancing Amendment may provide
that the maturity date for Swingline Loans and/or Letters of Credit may be extended and the related obligations to make Swingline Loans
and issue Letters of Credit may be continued so long as the U.S. Swingline Lender, the ROW Swingline Lender, the Canadian Swingline Lender,
the European Swingline Lender, the ANZ Swingline Lender and/or the applicable Letter of Credit Issuer, as applicable, have consented to
such extensions in their sole discretion (it being understood that no consent of any other Lender shall be required in connection with
any such extension).
(g) Upon
any Refinancing Closing Date on which Refinancing Revolving Commitments are effected through the establishment of a new class of revolving
commitments pursuant to this Section 2.7, (i) if, on such date, there are any applicable Revolving Loans outstanding,
such Revolving Loans shall be prepaid from the proceeds of new Refinancing Revolving Loans under such new class of Refinancing Revolving
Commitments in such amounts as shall be necessary in order that, after giving effect to such Loans and all such related prepayments, all
applicable Revolving Loans will be held by all applicable Lenders under the applicable Revolving Credit Commitments (including Lenders
providing such Refinancing Revolving Commitments) ratably in accordance with their applicable Revolving Credit Commitments (after giving
effect to the establishment of such Refinancing Revolving Commitments), (ii) in the case of a Revolving Credit Commitment, there
shall be an automatic adjustment to the participations hereunder in applicable Letters of Credit and applicable Swingline Loans held by
each applicable Lender under the applicable Revolving Credit Commitments so that each such Lender shares ratably in such participations
in accordance with their applicable Revolving Credit Commitments (after giving effect to the establishment of such Refinancing Revolving
Commitments), (iii) each Refinancing Revolving Commitment shall be deemed for all purposes a Revolving Credit Commitment and each
Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (iv) each Refinancing Revolving Lender shall become
a Lender with respect to the Refinancing Revolving Commitments and all matters relating thereto.
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2.8 [Intentionally
Omitted].
2.9 Reserves.
Other than with respect to Pari Passu Debt Reserves and Waterfall Priority Hedge Agreement Reserves (which shall be established and changed
as set forth in the respective definitions thereof and not in accordance with this Section 2.9 (including any requirement
that they be established or changed in the exercise of the Agent’s Reasonable Credit Judgment)), the Agent may establish Reserves
or change any of the Reserves, in the exercise of its Reasonable Credit Judgment. Notwithstanding the foregoing, Reserves (other than
Pari Passu Debt Reserves and Waterfall Priority Hedge Agreement Reserves) shall not be established or changed after the Closing Date except
upon not less than five Business Days’ notice to the Borrowers. The Agent will be available during such period to discuss any
such proposed Reserve or change with the Borrowers and, without limiting the right of the Agent to establish or change such Reserves in
the Agent’s Reasonable Credit Judgment, the Borrowers may take such action as may be required so that the event, condition or matter
that is the basis for such Reserve no longer exists, in a manner and to the extent reasonably satisfactory to the Agent in the exercise
of its Reasonable Credit Judgment. The amount of any Reserve established by the Agent pursuant to this Section 2.9 shall have
a reasonable relationship as determined by the Agent in its Reasonable Credit Judgment to the event, condition or other matter that is
the basis for the Reserve. Notwithstanding anything herein to the contrary, a Reserve shall not be established pursuant to this Section 2.9
to the extent that such Reserve would be duplicative of any eligibility criteria contained in the definitions of “Eligible Merchandise
and Consumables Inventory” or “Eligible Rental Equipment”, and vice versa, or reserves or criteria deducted in computing
the Value of Eligible Merchandise and Consumables Inventory or Eligible Rental Equipment or the Net Orderly Liquidation Value of Eligible
Merchandise and Consumables Inventory or Eligible Rental Equipment, and vice versa. The establishment of any Reserve with respect to any
obligation, charge, liability, debt or otherwise shall in no event grant any rights or be deemed to have granted any rights in such reserved
amount to the holder of such obligation, charge, liability or debt or any other Person (except as explicitly set forth hereunder), but
shall solely be viewed as amounts reserved to protect the interests of the Secured Parties hereunder and under the other Loan Documents.
2.10 Canadian
Revolving Loans and ROW Revolving Loans; Intra-Lender Issues.
(a) Canadian
and ROW Revolving Participations. Notwithstanding anything to the contrary contained herein, all Canadian Revolving Loans and ROW
Revolving Loans shall be made solely by the Pro Rata Revolving Credit Lenders (other than, in the case of Canadian Revolving Loans, the
Participating Canadian Lenders and, in the case of ROW Revolving Loans, the Participating ROW Lenders), in accordance with their Pro Rata
Shares of the aggregate Pro Rata Revolving Credit Commitments. For the avoidance of doubt, each Pro Rata Revolving Credit Lender (other
than, in the case of Canadian Revolving Loans, the Participating Canadian Lenders and, in the case of ROW Revolving Loans, the Participating
ROW Lenders) shall be required to fund its Pro Rata Share of all Canadian Revolving Loans and ROW Revolving Loans in the applicable currency.
Each Pro Rata Revolving Credit Lender that is a Participating Canadian Lender or a Participating ROW Lender, as the case may be, shall
irrevocably and unconditionally purchase and acquire and shall be deemed to irrevocably and unconditionally purchase and acquire from
Bank of America, and Bank of America shall sell and be deemed to sell to each such Participating Canadian Lender or Participating ROW
Lender, as applicable, without recourse or any representation or warranty whatsoever, an undivided interest and participation (a “Foreign
Borrowing Participation”) in each Canadian Revolving Loan or ROW Revolving Loan, as applicable, funded by Bank of America in
an amount equal to such Participating Canadian Lender’s or Participating ROW Lender’s Pro Rata Share of the Borrowing that
includes such Canadian Revolving Loan or ROW Revolving Loan. Such purchase and sale of a Foreign Borrowing Participation shall be deemed
to occur automatically upon the making of the applicable Canadian Revolving Loan or ROW Revolving Loan by Bank of America, without any
further notice to any Participating Canadian Lender or Participating ROW Lender. The purchase price payable by each Participating Canadian
Lender or Participating ROW Lender, as the case may be, to Bank of America for each Foreign Borrowing Participation purchased by it from
Bank of America shall be equal to 100% of the principal amount of such Foreign Borrowing Participation (i.e., the product of (i) the
amount of the Borrowing that includes the relevant Canadian Revolving Loan or ROW Revolving Loan and (ii) such Participating Canadian
Lender’s or Participating ROW Lender’s Pro Rata Share thereof), and such purchase price shall be payable by each Participating
Canadian Lender or Participating ROW Lender, as the case may be, to Bank of America in accordance with the settlement procedure set forth
in Section 2.10(b) below. Bank of America and the Agent shall record on their books the amount of the Canadian Revolving
Loans and ROW Revolving Loans made by Bank of America that are subject to the provisions of this Section 2.10 and each Participating
Canadian Lender’s or Participating ROW Lender’s Foreign Borrowing Participation and Funded Foreign Borrowing Participation
therein, all payments in respect thereof and interest accrued thereon and all payments made by and to each Participating Canadian Lender
and each Participating ROW Lender pursuant to this Section 2.10.
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(b) Settlement
Procedures for Foreign Borrowing Participations. Each Participating Canadian Lender’s or Participating ROW Lenders’ Foreign
Borrowing Participation in the Canadian Revolving Loans or ROW Revolving Loans (other than Agent Advances) shall be in an amount equal
to its Pro Rata Share of all such Canadian Revolving Loans or ROW Revolving Loans, respectively. However, in order to facilitate the administration
of the Canadian Revolving Loans and ROW Revolving Loans made by Bank of America that are subject to this Section 2.10 and
the related Foreign Borrowing Participations, settlement among Bank of America and the Participating Canadian Lenders or the Participating
ROW Lenders, as the case may be, with regard to their respective Foreign Borrowing Participations shall take place in accordance with
the following provisions:
(i) Bank
of America and the Participating Canadian Lenders or Participating ROW Lenders, as applicable, shall settle (a “Foreign Borrowing
Participation Settlement”) by payments in respect of any Foreign Borrowing Participations as follows: so long as any Canadian
Revolving Loans or ROW Revolving Loans are outstanding, the related Foreign Borrowing Participation Settlements shall be effected through
the Agent on such Business Days as the Agent shall specify by a notice by facsimile, telephone or similar form of notice to each Participating
Canadian Lender or Participating ROW Lender, as applicable, requesting such Foreign Borrowing Participation Settlement (each such date
on which a Foreign Borrowing Participation Settlement in respect of any Foreign Borrowing Participations occurs being a “Foreign
Borrowing Participation Settlement Date” in respect thereof), such notice to be delivered no later than 2:00 p.m., New York
City time, at least one Business Day prior to the requested Foreign Borrowing Participation Settlement Date; provided that the
Agent shall have the option but not the obligation to specify a Foreign Borrowing Participation Settlement Date and, in any event, shall
not specify a Foreign Borrowing Participation Settlement Date prior to the occurrence of an Event of Default; provided, further
that if (A) such Event of Default is waived in writing in accordance with the terms hereof, (B) no Obligations have yet been
declared due and payable under Section 10.2 and (C) the Agent has actual knowledge of such waiver, all prior to the Agent’s
giving notice to the Participating Canadian Lenders or Participating ROW Lenders, as applicable, of the first Foreign Borrowing Participation
Settlement Date applicable to such Persons under this Agreement, then the Agent shall not give notice to the Participating Canadian Lenders
or Participating ROW Lenders, as the case may be, of a Foreign Borrowing Participation Settlement Date based upon such waived Event of
Default. If on any Foreign Borrowing Participation Settlement Date in respect of any Foreign Borrowing Participations the total principal
amount of the Canadian Revolving Loans or ROW Revolving Loans, as applicable, subject to this Section 2.10 that are made or
deemed made by Bank of America during the period ending on (but excluding) such Foreign Borrowing Participation Settlement Date and commencing
on (and including) the immediately preceding Foreign Borrowing Participation Settlement Date with respect to such Foreign Borrowing Participations
(or the Closing Date in the case of the period ending on the first Foreign Borrowing Participation Settlement Date with respect to any
Foreign Borrowing Participations) (each such period being a “Foreign Borrowing Participation Settlement Period”) is
greater than the principal amount of such Canadian Revolving Loans or ROW Revolving Loans, as applicable, subject to this Section 2.10
that are repaid during such Foreign Borrowing Participation Settlement Period to Bank of America, each Participating Canadian Lender or
Participating ROW Lender, as applicable, shall pay to Bank of America (through the Agent), no later than 2:00 p.m., New York City time,
on such Foreign Borrowing Participation Settlement Date, an amount equal to such Participating Canadian Lender’s or Participating
ROW Lender’s ratable share of the amount of such excess. If in any Foreign Borrowing Participation Settlement Period the outstanding
principal amount of the Canadian Revolving Loans or ROW Revolving Loans, as applicable, subject to this Section 2.10 that
are repaid to Bank of America in such period exceeds the total principal amount of the Canadian Revolving Loans or ROW Revolving Loans,
as applicable, subject to this Section 2.10 that are made or deemed made by Bank of America during such period, Bank of America
shall pay to each Participating Canadian Lender or Participating ROW Lender, as applicable (through the Agent), on such Foreign Borrowing
Participation Settlement Date an amount equal to such Participating Canadian Lender’s or Participating ROW Lender’s, as applicable,
ratable share of the amount of such excess. Foreign Borrowing Participation Settlements in respect of any Canadian Revolving Loans or
ROW Revolving Loans shall be made in the applicable currency of such Loans (or, at the option of Bank of America, the Equivalent Amount
in Dollars) on the applicable Foreign Borrowing Participation Settlement Date for such Canadian Revolving Loans or ROW Revolving Loans.
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(ii) If
any Participating Canadian Lender or Participating ROW Lender, as the case may be, fails to pay to Bank of America on any applicable Foreign
Borrowing Participation Settlement Date the full amount required to be paid by such Participating Canadian Lender or Participating ROW
Lender to Bank of America on such Foreign Borrowing Participation Settlement Date in respect of such Participating Canadian Lender’s
or Participating ROW Lender’s applicable Foreign Borrowing Participation (such Participating Canadian Lender’s or Participating
ROW Lender’s “Foreign Borrowing Participation Settlement Amount”) with Bank of America, Bank of America shall
be entitled to recover such unpaid amount from such Participating Canadian Lender or Participating ROW Lender, as applicable, together
with interest thereon (in the same currency as the relevant Canadian Revolving Loans or ROW Revolving Loans) at the Base Rate with respect
to ROW Revolving Loans denominated in Dollars, the Canadian Base Rate with respect to Canadian Revolving Loans denominated in Dollars,
the Canadian Prime Rate with respect to Loans denominated in Canadian Dollars, the SONIA Rate with respect to Loans denominated in Sterling
and the Foreign Base Rate with respect to Loans denominated in any Alternative Currency (other than Sterling). Without limiting Bank of
America’s rights to recover from any Participating Canadian Lender or Participating ROW Lender any unpaid Foreign Borrowing Participation
Settlement Amount payable by such Participating Canadian Lender or Participating ROW Lender to Bank of America, the Agent shall also be
entitled to withhold from amounts otherwise payable to such Participating Canadian Lender or Participating ROW Lender an amount equal
to such Participating Canadian Lender’s or Participating ROW Lender’s unpaid Foreign Borrowing Participation Settlement Amount
owing to Bank of America and apply such withheld amount to the payment of any unpaid Foreign Borrowing Participation Settlement Amount
owing by such Participating Canadian Lender or Participating ROW Lender to Bank of America.
(iii) If
Bank of America is required to make any payment with respect to any Letter of Credit issued for the account of any Canadian Borrower or
any ROW Borrower (or its participation therein) to (A) the Agent or (B) Bank of America in its capacity as a Letter of Credit
Issuer pursuant to Section 13.16(d), in each case other than as a Canadian Revolving Loan or ROW Revolving Loan, each Participating
Canadian Lender or Participating ROW Lender, as applicable, shall, upon request of Bank of America, pay to Bank of America an amount equal
to such Participating Canadian Lender’s or Participating ROW Lender’s ratable share of such payment.
(iv) Following
the first Foreign Borrowing Participation Settlement Date in respect of any Foreign Borrowing Participation, the Agent shall effect a
Foreign Borrowing Participation Settlement in respect of such Foreign Borrowing Participation on each subsequent Foreign Borrowing Participation
Settlement Date therefor or within one Business Day thereafter.
(c) Obligations
Irrevocable. The obligations of each Participating Canadian Lender or Participating ROW Lender, as the case may be, to purchase from
Bank of America a participation in each Canadian Revolving Loan or ROW Revolving Loan, as applicable, subject to this Section 2.10
made by Bank of America and to make payments to Bank of America with respect to such participation and to make payments to Bank of America
with respect to Letters of Credit issued for the account of any Canadian Borrower or any ROW Borrower, in each case as provided herein,
shall be irrevocable and not subject to any qualification or exception whatsoever, including any of the following circumstances:
(i) any
lack of validity or enforceability of this Agreement or any of the other Loan Documents or of any Revolving Loans, against any Borrower
or any Guarantor;
(ii) the
existence of any claim, setoff, defense or other right which any Borrower or any Guarantor may have at any time in respect of any Canadian
Revolving Loans, ROW Revolving Loans or Letters of Credit issued for the account of any Canadian Borrower or any ROW Borrower;
(iii) any
application or misapplication of any proceeds of any Canadian Revolving Loans or ROW Revolving Loans;
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(iv) the
surrender or impairment of any security for any Canadian Revolving Loans or ROW Revolving Loans;
(v) the
occurrence of any Default or Event of Default;
(vi) the
commencement or pendency of any events specified in paragraph (e), (f), (g) or (h) of Section 10.1,
in respect of Holdings or any Subsidiary thereof or any other Person; or
(vii) the
failure to satisfy the applicable conditions precedent set forth in Article IX or the occurrence of any of the circumstances
set forth in Section 13.16(b)(iv).
(d) Recovery
or Avoidance of Payments. In the event any payment by or on behalf of any Borrower or any other Obligor received by the Agent with
respect to any Canadian Revolving Loan or ROW Revolving Loan subject to this Section 2.10 made by Bank of America is thereafter
set aside, avoided or recovered from the Agent in connection with any proceeding or other event of the type described in paragraph
(e), (f), (g) or (h) of Section 10.1, in respect of Holdings or any Subsidiary thereof
or any other Person, or due to any mistake of law or fact, each Participating Canadian Lender or Participating ROW Lender, as applicable,
shall, upon demand by the Agent, pay to Bank of America (through the Agent) such Participating Canadian Lender’s or Participating
ROW Lender’s Pro Rata Share of such amount set aside, avoided or recovered, together with interest at the rate and in the currency
required to be paid by Bank of America or the Agent upon the amount required to be repaid by it.
(e) Indemnification
by Lenders. Each Participating Canadian Lender or Participating ROW Lender, as applicable, agrees to indemnify Bank of America (to
the extent not reimbursed by the Obligors and without limiting the obligations of the Obligors hereunder or under any other Loan Document)
ratably for any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses (including attorneys’
fees) or disbursements of any kind and nature whatsoever that may be imposed on, incurred by or asserted against Bank of America in any
way relating to or arising out of any Canadian Revolving Loans or ROW Revolving Loans, respectively, or any participations by Bank of
America in any Letters of Credit issued for the account of any Canadian Borrower or any ROW Borrower, respectively, or any action taken
or omitted by Bank of America in connection therewith; provided that no Participating Canadian Lender or Participating ROW Lender
shall be liable for any of the foregoing to the extent it arises from the gross negligence or willful misconduct of Bank of America. Without
limiting the foregoing, each Participating Canadian Lender or Participating ROW Lender, as applicable, agrees to reimburse Bank of America
promptly upon demand for such Participating Canadian Lender’s or Participating ROW Lender’s ratable share of any costs or
expenses payable by the Borrowers to Bank of America in respect of the Canadian Revolving Loans or the ROW Revolving Loans subject to
this Section 2.10 to the extent that Bank of America is not promptly reimbursed for such costs and expenses by the Borrowers
in accordance with the requirements of this Agreement. The agreements contained in this Section 2.10(e) shall survive
payment in full of all Canadian Revolving Loans and ROW Revolving Loans.
(f) Participation
Fee. In consideration for each Participating Canadian Lender’s or Participating ROW Lender’s, as the case may be, participation
in the relevant Canadian Revolving Loans or ROW Revolving Loans subject to this Section 2.10 made by Bank of America, Bank
of America agrees to pay to the Agent for the account of each Participating Canadian Lender or Participating ROW Lender, as applicable,
as and when Bank of America receives payment of interest on its related Canadian Revolving Loans or ROW Revolving Loans subject to this
Section 2.10, a fee (the “Foreign Borrowing Participation Fee”) at a rate per annum equal to the Applicable
Margin on such Canadian Revolving Loans or ROW Revolving Loans, as applicable, minus, with respect to each Participating Canadian
Lender or Participating ROW Lender, 0.75% on the Unfunded Foreign Borrowing Participation of such Participating Canadian Lender or Participating
ROW Lender in such Canadian Revolving Loans or ROW Revolving Loans of Bank of America. The Foreign Borrowing Participation Fee in respect
of any Unfunded Foreign Borrowing Participation in any such Canadian Revolving Loan or ROW Revolving Loan shall be payable to the Agent
in Dollars when interest on such Loan is received by Bank of America. If Bank of America does not receive payment in full of such interest
on any such Canadian Revolving Loan or ROW Revolving Loan, the Foreign Borrowing Participation Fee in respect of the Unfunded Foreign
Borrowing Participation in such Canadian Revolving Loan or ROW Revolving Loan shall be reduced proportionately. Any amounts payable under
this Section 2.10(f) by the Agent to the Participating Canadian Lenders or the Participating ROW Lender shall be paid
in Dollars.
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ARTICLE III
INTEREST
AND FEES
3.1 Interest.
(a) Interest
Rates. All outstanding Loans to the U.S. Borrowers shall bear interest on the unpaid principal amount thereof (including, to
the extent permitted by law, on interest thereon not paid when due) from the date made until paid in full in cash at a rate determined
by reference to the Base Rate, Term SOFR or Daily SOFR, as applicable, plus the Applicable Margin, but not to exceed the Maximum Rate.
All outstanding Loans to the ROW Borrowers shall bear interest on the unpaid principal amount thereof (including, to the extent permitted
by law, on interest thereon not paid when due) from the date made until paid in full in cash at a rate determined by reference to EURIBOR
(in the case of Loans denominated in Euros), Daily Simple SONIA (in the case of Loans denominated in Sterling), or the Base Rate, Term
SOFR or Daily SOFR (in each case, in the case of Loans denominated in Dollars), or, in the case of ROW Swingline Loans, the Foreign Base
Rate, as applicable, plus the Applicable Margin, but not to exceed the Maximum Rate. All outstanding Loans to the Canadian Borrowers shall
bear interest on the unpaid principal amount thereof (including, to the extent permitted by law, on interest thereon not paid when due)
from the date made until paid in full in cash at a rate determined by reference to the Canadian Prime Rate or Term CORRA (in each case,
in the case of Loans denominated in Canadian Dollars) or Term SOFR, Daily SOFR or the Canadian Base Rate (in each case, in the case of
Loans denominated in Dollars), as applicable, plus the Applicable Margin, but not to exceed the Maximum Rate. All outstanding European
Swingline Loans to the European Borrowers shall bear interest on the unpaid principal amount thereof (including, to the extent permitted
by law, on interest thereon not paid when due) from the date made until paid in full in cash at a rate determined by reference to the
Foreign Base Rate (in the case of European Swingline Loans denominated in Dollars or Euros), Term SOFR (in the case of European Swingline
Loans denominated in Dollars that are Term SOFR Loans), EURIBOR (in the case of European Swingline Loans denominated in Euros that are
EURIBOR Loans) or Daily Simple SONIA (in the case of European Swingline Loans denominated in Sterling), as applicable, plus the Applicable
Margin, but not to exceed the Maximum Rate. All outstanding Loans to the ANZ Borrowers shall bear interest on the unpaid principal amount
thereof (including, to the extent permitted by law, on interest thereon not paid when due) from the date made until paid in full in cash
at a rate determined by reference to the applicable Bank Bill Rate (in the case of Loans denominated in Australian Dollars or New Zealand
Dollars), Term SOFR (in the case of Loans denominated in Dollars) or, in the case of ANZ Swingline Loans, the Base Rate or the Foreign
Base Rate, as applicable, plus the Applicable Margin, but not to exceed the Maximum Rate. If at any time Loans are outstanding with respect
to which the applicable Borrower has not delivered to the Agent a notice specifying the basis for determining the interest rate applicable
thereto in accordance herewith, those Loans shall be treated as Base Rate Loans in the case of U.S. Revolving Loans, ROW Revolving
Loans denominated in Dollars, Canadian Revolving Loans denominated in Dollars or European Swingline Loans, as EURIBOR Loans with an Interest
Period of one month in the case of ROW Revolving Loans denominated in an Euros, Term SOFR Loans with an Interest Period of one month in
the case of ANZ Revolving Loans denominated in Dollars, as Canadian Prime Rate Loans in the case of Canadian Revolving Loans denominated
in Canadian Dollars, as SONIA Rate Loans in the case of ROW Revolving Loans denominated in Sterling and as Bank Bill Rate Loans with an
interest period of one month in the case of ANZ Revolving Loans denominated in Australian Dollars or New Zealand Dollars, until notice
to the contrary has been given to the Agent in accordance with this Agreement and such notice has become effective. Except as otherwise
provided herein, the outstanding Obligations shall bear interest as follows:
(i) For
all Base Rate Loans, at a fluctuating per annum rate equal to the Base Rate, the Foreign Base Rate or the Canadian Base Rate, as applicable,
plus the Applicable Margin;
(ii) For
all Canadian Prime Rate Loans, at a fluctuating per annum rate equal to the Canadian Prime Rate plus the Applicable Margin;
(iii) For
all Term SOFR Loans, at a per annum rate equal to Term SOFR plus the Applicable Margin;
(iv) For
all Daily SOFR Loans, at a fluctuating per annum rate equal to Daily SOFR plus the Applicable Margin;
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(v) For
all Term CORRA Loans, at a per annum rate equal to Term CORRA plus the Applicable Margin;
(vi) For
all EURIBOR Loans, at a per annum rate equal to EURIBOR plus the Applicable Margin;
(vii) For
all SONIA Rate Loans, at a fluctuating per annum rate equal to Daily Simple SONIA plus the Applicable Margin;
(viii) For
all Bank Bill Rate Loans, at a per annum rate equal to the Bank Bill Rate plus the Applicable Margin; and
(ix) For
all Obligations other than Loans, at the rate set forth therefor (if any) in the applicable agreements (if any) pursuant to which
such Obligations were incurred.
Each change in the Base Rate shall be reflected
in the interest rate applicable to relevant Base Rate Loans denominated in Dollars as of the effective date of such change, each change
in the Foreign Base Rate shall be reflected in the interest rate applicable to relevant Base Rate Loans denominated in Dollars or any
Alternative Currency as of the effective date of such change, each change in the Canadian Base Rate shall be reflected in the interest
rate applicable to Canadian Base Rate Loans as of the effective date of such change, each change in the Canadian Prime Rate shall be reflected
in the interest rate applicable to Canadian Prime Rate Loans as of the effective date of such change, each change in Daily SOFR shall
be reflected in the interest rate applicable to Daily SOFR Loans as of the effective date of such change and each change in Daily Simple
SONIA shall be reflected in the interest rate applicable to SONIA Rate Loans as of the effective date of such change. All computations
of interest for Base Rate Loans when the Base Rate is determined by Bank of America’s “prime rate”, for Base Rate Loans
when the Canadian Base Rate is determined by the Canadian Bank’s base rate for commercial loans made in Dollars, for Canadian Prime
Rate Loans when the Canadian Prime Rate is determined by the Canadian Bank’s “prime” rate for loans made in Canadian
Dollars, for Term CORRA Loans and for Loans denominated in Sterling, Australian Dollars and New Zealand Dollars shall be made on the basis
of a year of 365 or (other than for Canadian Base Rate Loans, Canadian Prime Rate Loans, Term CORRA Loans and Loans denominated in Sterling)
366 days, as the case may be, and actual days elapsed. All other computations of fees and interest shall be made on the basis of a 360-day
year and actual days elapsed (which results in more fees or interest, as applicable, being paid than if computed on the basis of a 365-day
year). For the purposes of the Interest Act (Canada), the yearly rate of interest to which any rate calculated on the basis of
a period of time different from the actual number of days in the year (360 days, for example) is equivalent is the stated rate multiplied
by the actual number of days in the year (365 or 366, as applicable) and divided by the number of days in the shorter period (360 days,
in the example). On the first Business Day of each calendar quarter hereafter and on the Termination Date, the applicable Borrower shall
pay to the Agent, for the ratable benefit of the applicable Lenders (provided that all interest on applicable Swingline Loans shall
be for the benefit of the applicable Bank and all interest on Agent Advances shall be for the benefit of the Agent), interest accrued
to the first day of such calendar quarter (or accrued to the Termination Date in the case of a payment on the Termination Date) on all
Base Rate Loans, Canadian Prime Rate Loans, Daily SOFR Loans and SONIA Rate Loans, in arrears. The applicable Borrowers shall pay to the
Agent, for the ratable benefit of the applicable Lenders (provided that all interest on applicable European Swingline Loans shall
be for the benefit of the European Swingline Lender), interest on all (x) Term SOFR Loans and EURIBOR Loans in arrears on each Interest
Payment Date applicable thereto, (y) Term CORRA Loans in arrears on each Term CORRA Interest Payment Date and (z) Bank Bill
Rate Loans in arrears on each Bank Bill Rate Interest Payment Date.
(b) Default
Rate. If any Borrower shall default in the payment of the principal of or interest on any Loan or any other amount becoming due hereunder,
by acceleration or otherwise, or under any other Loan Document, such Borrower shall on demand from time to time pay interest, to the extent
permitted by law, on such defaulted amount to but excluding the date of actual payment (after as well as before judgment) (i) in
the case of overdue principal, at the Default Rate, (ii) in the case of overdue interest, at the Default Rate that would be applicable
with respect to the applicable principal on which such interest is due, provided that, in the case of any French Borrower, the
Default Rate (if unpaid) arising on an overdue amount will be compounded with the overdue amount only if, within the meaning of Article 1343-2
of the French Code civil, such interest is due by such European Borrower for a period of at least one year, but will remain immediately
due and payable (it being specified for the avoidance of doubt that, from a general standpoint, no French Borrower shall be subject to
capitalized interest hereunder if the interest is due for a period of less than one year in accordance with Article 1343-2 of the
French Code Civil), and (iii) in all other cases, at a rate per annum equal to the rate that would be applicable to a Base
Rate Loan denominated in the applicable currency or, in the case of amounts denominated in Canadian Dollars, a Canadian Prime Rate Loan,
as applicable, plus 2%.
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(c) Effective
Global Rate (Taux effectif global) in relation to any French Borrower.
(i) For
the purposes of Articles L.314-1 to L.314-5 and R.314-1 et seq. of the French Code de la consommation, and Article L.313-4
of the French Code monétaire et financier, the French Borrowers and the European Swingline Lender acknowledge that, by virtue
of certain characteristics of the European Swingline Loans granted to any French Borrower (and in particular the floating rate of interest
applicable to the European Swingline Loans, the Borrowers’ right to select the duration of each Interest Period and the uncertainty
as to the amount to be effectively drawn from time to time under the European Swingline Loans granted to the French Borrowers), the taux
effectif global cannot be calculated on the date of this Agreement.
(ii) However,
each French Borrower acknowledges that it has received from the Agent, a letter containing an indicative calculation of the taux effectif
global on the date of this Agreement, based on figured examples calculated on assumptions as to the taux de période
and the durée de période set out in a letter and on the assumption that the interest rate and all other fees, costs
or expenses payable under this Agreement by such French Borrower will be maintained at their original level throughout the term of this
Agreement (a “TEG Letter”).
(iii) The
French Borrowers and the Lenders acknowledge that any TEG Letters delivered in accordance with clause (c)(ii) above form
part of this Agreement.
3.2 Continuation
and Conversion Elections.
(a) The
Borrowers’ Agent may, on behalf of each applicable Borrower (provided that, as applicable, the Borrowing of Term SOFR Loans,
the Borrowing of Daily SOFR Loans, the Borrowing of Term CORRA Loans, the Borrowing of EURIBOR Loans or the Borrowing of Bank Bill Rate
Loans is then permitted under Section 2.2(a)):
(i) elect,
as of any Business Day, to convert (A) any Base Rate Loans other than Agent Advances and Swingline Loans (or any part thereof in
an amount equal to an integral multiple of the Borrowing Multiple, but not less than the Borrowing Minimum applicable to Term SOFR Loans
or Daily SOFR Loans, as applicable) into Term SOFR Loans or Daily SOFR Loans, (B) any European Swingline Loans that are Base Rate
Loans (or any part thereof in an amount equal to an integral multiple of the Borrowing Multiple, but not less than the Borrowing Minimum
applicable to Term SOFR Loans or EURIBOR Loans, as applicable) into Term SOFR Loans (in the case of Loans denominated in Dollars) or EURIBOR
Loans (in the case of Loans denominated in Euros), or (C) any ANZ Swingline Loans that are Base Rate Loans (or any part thereof in
an amount equal to an integral multiple of the Borrowing Multiple, but not less than the Borrowing Minimum applicable to Bank Bill Rate
Loans) into Bank Bill Rate Loans;
(ii) elect,
as of the last day of the applicable Interest Period, to continue any Term SOFR Loans, EURIBOR Loans or Bank Bill Rate Loans having Interest
Periods expiring on such day (or any part thereof in an amount equal to an integral multiple of the Borrowing Multiple, but not less than
the Borrowing Minimum applicable to Term SOFR Loans, EURIBOR Loans or Bank Bill Rate Loans, as applicable);
(iii) elect,
as of any Business Day, to convert any Canadian Prime Rate Loans other than Canadian Swingline Loans and Agent Advances (or any part thereof
in an amount equal to an integral multiple of the Borrowing Multiple, but not less than the Borrowing Minimum applicable to Term CORRA
Loans) into Term CORRA Loans; or
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(iv) elect,
as of the last day of the applicable Term CORRA Interest Period, to continue any Term CORRA Loans having Term CORRA Interest Periods expiring
on such day (or any part thereof in an amount equal to an integral multiple of the Borrowing Multiple, but not less than the Borrowing
Minimum applicable to Term CORRA Loans);
provided, that if at any time the aggregate
amount of Term SOFR Loans, Daily SOFR Loans or Term CORRA Loans in respect of any Borrowing is reduced, by payment, prepayment, or conversion
of part thereof to be less than the Borrowing Minimum applicable thereto, such Term SOFR Loans, Daily SOFR Loans or Term CORRA Loans shall
automatically convert into Base Rate Loans or Canadian Prime Rate Loans, as applicable; provided, further, that if the Notice
of Continuation/Conversion (including any telephonic notice as contemplated below) shall fail to specify the duration of the Interest
Period or Term CORRA Interest Period, as applicable, such Interest Period or Term CORRA Interest Period shall be one month; provided,
further, that no Term SOFR Loan, Term CORRA Loan or Bank Bill Rate Loan may be continued as such (other than a Bank Bill Rate Loan,
which may be continued as a Bank Bill Rate Loan in the same currency with an Interest Period of one month), and no EURIBOR Loans may be
continued for an Interest Period other than an Interest Period of one month, when any Default or Event of Default has occurred and is
continuing and the Agent has or the Required Lenders have given notice to the Borrowers’ Agent that no such continuations may be
made.
(b) The
Borrowers’ Agent shall deliver a notice of continuation/conversion substantially in the form of Exhibit C (each, a “Notice
of Continuation/Conversion”) to the Agent not later than, (v) in the case of U.S. Revolving Loans and ROW Revolving
Loans (other than Daily SOFR Loans made to a U.S. Borrower), 1:00 p.m., New York City time, at least two Business Days in advance
of the Continuation/Conversion Date, (w) in the case of Daily SOFR Loans made to a U.S. Borrower, 1:00 p.m., New York City time,
at least one Business Day in advance of the Continuation/Conversion Date, (x) in the case of European Swingline Loans, 11:00
a.m., London time, at least two Business Days in advance of the Continuation/Conversion Date, (y) in the case of Bank Bill Rate Loans,
12:00 noon, New York City time, at least three Business Days in advance of the Continuation/Conversion Date and (z) in other cases,
12:00 noon, New York City time, at least two Business Days in advance of the Continuation/Conversion Date, if the Loans are to be
converted into or continued as Term SOFR Loans, Daily SOFR Loans, Term CORRA Loans, EURIBOR Loans or Bank Bill Rate Loans and specifying:
(i) the
proposed Continuation/Conversion Date;
(ii) the
aggregate principal amount of Loans to be converted or continued;
(iii) the
Type of Loans resulting from the proposed conversion or continuation; and
(iv) in
the case of Term SOFR Loans, Term CORRA Loans, EURIBOR Loans or Bank Bill Rate Loans, the duration of the requested Interest Period
or Term CORRA Interest Period, provided, however, the Borrowers may not select an Interest Period or Term CORRA Interest
Period that ends after the Maturity Date.
In lieu of delivering a Notice of Continuation/Conversion,
the Borrowers’ Agent may give the Agent telephonic notice of such request on or before the deadline set forth above. The Agent at
all times shall be entitled to rely on such telephonic notice with respect to such continuation or conversion, regardless of whether any
written confirmation is received.
(c) If
upon the expiration of any Interest Period applicable to any Term SOFR Loans, EURIBOR Loans or Bank Bill Rate Loans or any Term CORRA
Interest Period applicable to any Term CORRA Loans, the applicable Borrowers have failed to timely deliver a Notice of Continuation/Conversion
(or, in lieu thereof, telephonic notice as contemplated above) in respect of such Term SOFR Loans, EURIBOR Loans, Term CORRA Loans or
Bank Bill Rate Loans, the Borrowers shall be deemed to have elected to convert such Term SOFR Loans into Base Rate Loans in the case of
U.S. Revolving Loans, ROW Revolving Loans denominated in Dollars, Canadian Revolving Loans denominated in Dollars or European Swingline
Loans denominated in Dollars, to continue such Term SOFR Loans as Term SOFR Loans with an Interest Period of one month in the case of
ANZ Revolving Loans denominated in Dollars, to continue such EURIBOR Loans as EURIBOR Loans with an Interest Period of one month in the
case of ROW Revolving Loans denominated in Euros or European Swingline Loans denominated in Euros, to convert such Term CORRA Loans into
Canadian Prime Rate Loans and to continue such Bank Bill Rate Loans as Bank Bill Rate Loans in the same currency with an Interest Period
of one month in the case of ANZ Revolving Loans denominated in an Alternative Currency, in each case, effective as of the expiration date
of such Interest Period or Term CORRA Interest Period. If any Default or Event of Default exists, at the election of the Agent or the
Required Lenders, unless repaid, all Term SOFR Loans shall be converted into Base Rate Loans as of the expiration date of each applicable
Interest Period and all Daily SOFR Loans shall be converted into Base Rate Loans, in each case, in the case of U.S. Revolving Loans,
ROW Revolving Loans denominated in Dollars, Canadian Revolving Loans denominated in Dollars or European Swingline Loans denominated in
Dollars, all Term SOFR Loans shall be continued as Term SOFR Loans with an Interest Period of one month in the case of ANZ Revolving Loans
denominated in Dollars, all EURIBOR Loans shall be continued as EURIBOR Loans with an Interest Period of one month as of the expiration
date of each applicable Interest Period, all Bank Bill Rate Loans denominated in an Alternative Currency shall be continued as Bank Bill
Rate Loans in the same currency with an Interest Period of one month and all Term CORRA Loans shall be converted into Canadian Prime Rate
Loans as of the expiration date of each applicable Term CORRA Interest Period.
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(d) The
Agent will promptly notify each applicable Lender (or, in the case of European Swingline Loans, the European Swingline Lender) of its
receipt of a Notice of Continuation/Conversion. All conversions and continuations shall be made ratably according to the respective outstanding
principal amounts of the Loans, with respect to which the notice was given, held by each applicable Lender.
(e) The
total number of Term SOFR Loans, Term CORRA Loans, EURIBOR Loans and Bank Bill Rate Loans in effect hereunder at any time shall not exceed
25.
3.3 Maximum
Interest Rate. In no event shall any interest rate provided for hereunder exceed the maximum rate legally chargeable under applicable
law with respect to loans of the Type provided for hereunder (the “Maximum Rate”). If, in any month, any interest rate,
absent such limitation, would have exceeded the Maximum Rate, then the interest rate for that month shall be the Maximum Rate, and, if
in future months, that interest rate would otherwise be less than the Maximum Rate, then that interest rate shall remain at the Maximum
Rate until such time as the amount of interest paid hereunder equals the amount of interest which would have been paid if the same had
not been limited by the Maximum Rate. In the event that, upon payment in full of the Obligations, the total amount of interest paid or
accrued under the terms of this Agreement is less than the total amount of interest which would, but for this Section 3.3,
have been paid or accrued if the interest rate otherwise set forth in this Agreement had at all times been in effect, then the applicable
Borrowers shall, to the extent permitted by applicable law, pay the Agent, for the account of the applicable Lenders, an amount equal
to the excess of (a) the lesser of (i) the amount of interest which would have been charged if the Maximum Rate had, at all
times, been in effect or (ii) the amount of interest which would have accrued had the interest rate otherwise set forth in this Agreement,
at all times, been in effect over (b) the amount of interest actually paid or accrued under this Agreement. If a court of competent
jurisdiction determines that the Agent and/or any Lender has received interest and other charges hereunder in excess of the Maximum Rate,
such excess shall be deemed received on account of, and shall automatically be applied to reduce, the Obligations other than interest,
and if there are no Obligations outstanding, the Agent and/or such Lender shall refund to the Borrowers such excess.
3.4 Closing
Fees. The U.S. Borrowers agree to pay the Agent and each of the Arrangers on the Closing Date all fees due and payable on such date
as set forth in the applicable Fee Letters.
3.5 Unused
Line Fee. On the first Business Day of each calendar quarter and on the Termination Date, (a) the U.S. Borrowers agree
to pay to the Agent, for the account of the Pro Rata Revolving Credit Lenders, an unused line fee (the “Pro Rata Unused Line
Fee”) equal to 0.20% per annum times the amount by which the average daily Maximum Pro Rata Revolver Amount exceeded the sum
of the Equivalent Amount in Dollars of the average daily outstanding amount of Pro Rata Revolving Loans (other than Swingline Loans) and
the Equivalent Amount in Dollars of the average daily maximum amount available to be drawn under outstanding Letters of Credit during
the immediately preceding calendar quarter or shorter period if calculated for the first calendar quarter ending after the Agreement Date
or on the Termination Date and (b) the ANZ Borrowers agree to pay to the Agent, for the account of the ANZ Revolving Credit Lenders,
an unused line fee (the “ANZ Unused Line Fee” and, together with the Pro Rata Unused Line Fee, the “Unused
Line Fee”) equal to 0.20% per annum times the amount by which the average daily Maximum ANZ Revolver Amount exceeded the sum
of the Equivalent Amount in Dollars of the average daily outstanding amount of ANZ Revolving Loans (other than Swingline Loans) during
the immediately preceding calendar quarter or shorter period if calculated for the first calendar quarter ending after the Agreement Date
or on the Termination Date. All principal payments received by the Agent shall be deemed to be credited immediately upon receipt for purposes
of calculating the Pro Rata Unused Line Fee or the ANZ Unused Line Fee, as applicable, pursuant to this Section 3.5. Upon
receipt thereof, the Agent shall distribute (x) the Pro Rata Unused Line Fee to the Pro Rata Revolving Credit Lenders ratably based
on their Pro Rata Shares of the Pro Rata Revolving Credit Commitments and (y) the ANZ Unused Line Fee to the ANZ Revolving Credit
Lenders ratably based on their Pro Rata Shares of the ANZ Revolving Credit Commitments.
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3.6 Letter
of Credit Fees. The U.S. Borrowers agree to pay (a) to the Agent, for the account of the Lenders, in accordance with their respective
Pro Rata Shares, for each Letter of Credit, a fee (the “Letter of Credit Fee”) equal to, on a per annum basis, the
Applicable Margin for Term SOFR Loans, (b) to the Agent, for the benefit of the applicable Letter of Credit Issuer, a fronting fee
of 0.125% per annum of the maximum amount available to be drawn under each Letter of Credit issued by such Letter of Credit Issuer, and
(c) to the applicable Letter of Credit Issuer, all normal and customary out-of-pocket costs, fees and expenses incurred by such Letter
of Credit Issuer in connection with the application for, processing of, issuance of, or amendment to any Letter of Credit. The Letter
of Credit Fee and fronting fee shall be payable quarterly in arrears on the first Business Day of each calendar quarter following any
calendar quarter in which a Letter of Credit is outstanding and on the Termination Date.
ARTICLE IV
PAYMENTS
AND PREPAYMENTS
4.1 Payments
and Prepayments.
(a) Each
U.S. Borrower shall repay the outstanding principal balance of the U.S. Revolving Loans made to such U.S. Borrower, plus all
accrued but unpaid interest thereon, on the Termination Date. Each ROW Borrower shall repay the outstanding principal balance of the ROW
Revolving Loans made to such ROW Borrower, plus all accrued but unpaid interest thereon, on the Termination Date. Each Canadian Borrower
shall repay the outstanding principal balance of the Canadian Revolving Loans made to such Canadian Borrower, plus all accrued but unpaid
interest thereon, on the Termination Date. Each European Borrower shall repay the outstanding principal balance of the European Swingline
Loans made to such European Borrower, plus all accrued but unpaid interest thereon, on the Termination Date. Each ANZ Borrower shall
repay the outstanding principal balance of the ANZ Revolving Loans made to such ANZ Borrower, plus all accrued but unpaid interest
thereon, on the Termination Date.
(b) The
Borrowers may, upon notice to the Agent, at any time or from time to time voluntarily prepay the Loans in whole or in part without premium
or penalty; provided that (i) such notice must be received by the Agent not later than 11:00 a.m., New York City time, (w) four
Business Days prior to any date of prepayment of SONIA Rate Loans, (x) three Business Days prior to any date of prepayment of Bank
Bill Rate Loans, (y) two Business Days prior to any date of prepayment of Term SOFR Loans, Term CORRA Loans and EURIBOR Loans and
(z) on the date of prepayment of Base Rate Loans, Daily SOFR Loans, and Canadian Prime Rate Loans; and (ii) each prepayment
shall be in a minimum amount of $5,000,000 (or for Loans in Euros, €500,000, Loans in Sterling, £500,000, Loans in Canadian
Dollars, Cdn $5,000,000, Loans in Australian Dollars, A$500,000, Loans in New Zealand Dollars, NZ$500,000 or Loans in any other Alternative
Currency, such amount as may be agreed by the Agent and the Borrowers’ Agent) or an integral multiple of $1,000,000 (or for Loans
in Euros, €500,000, Loans in Sterling, £500,000, Loans in Canadian Dollars, Cdn $1,000,000, Loans in Australian Dollars, A$500,000,
Loans in New Zealand Dollars, NZ$500,000 or Loans in any other Alternative Currency, such amount as may be agreed by the Agent and the
Borrowers’ Agent) in excess thereof or, if less, the entire principal amount thereof then outstanding. Each such notice shall specify
the date and amount of such prepayment, the class(es) of Loans and the Type(s) of Loans to be prepaid and, if Term SOFR Loans, Term
CORRA Loans, EURIBOR Loans or Bank Bill Rate Loans are to be prepaid, the Interest Period(s) or Term CORRA Interest Period(s) of
such Loans. The Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s
ratable portion of such prepayment (based on such Lender’s Pro Rata Share). If such notice is given by any Borrower, such Borrower
shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein; provided
that such prepayment obligation may be conditioned on the occurrence of any subsequent event (including a Change of Control, refinancing
transaction or acquisition or other Investment). Subject to the other limitations expressly set forth in this Agreement, the applicable
Borrower may elect to apply voluntary prepayments of Loans to one or more Type(s) or class(es) of Loans selected by such applicable
Borrower in its sole discretion (provided that such voluntary prepayments of Loans shall be made pro rata within any such
Type(s) or applicable class(es) selected by such applicable Borrower). In the event that the applicable Borrower does not specify
the application of prepayments as between Types or classes of Loans, such Borrower shall be deemed to have elected that such prepayment
be applied on a pro rata basis among all Types and applicable classes of Loans. It is acknowledged and agreed that any payments
by a European Borrower pursuant to this clause shall only be in relation to European Obligations owed by the relevant European Borrower.
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4.2 Out-of-Formula
Condition. The U.S. Borrowers, the ROW Borrowers, the Canadian Borrowers, the European Borrowers and the ANZ Borrowers shall
promptly (and in any event within one Business Day) pay to the Agent, for the account of the applicable Lenders (or the applicable
Swingline Lenders) and/or to cash collateralize Letters of Credit pursuant to Section 2.4(g), upon demand, (a) in the
case of the U.S. Borrowers, the ROW Borrowers, the European Borrowers and the ANZ Borrowers, the amount, if any, by which the sum
of (i) the Aggregate U.S. Revolver Outstandings plus (ii) the Aggregate ROW Revolver Outstandings, plus (iii) the
Aggregate European Swingline Outstandings, plus (iv) the Aggregate ANZ Revolver Outstandings exceeds at any time (other than
as a result of an Agent Advance) the amount equal to (x) the lesser of (I) the Maximum Revolver Amount and (II) the U.S. Borrowing
Base minus (y) the Aggregate Canadian Revolver Outstandings Funded On U.S. Borrowing Base, and (b) in the case of the
Canadian Borrowers, the amount, if any, by which the amount of the Aggregate Canadian Revolver Outstandings exceeds at any time (other
than as a result of an Agent Advance) the lesser of (I) the Maximum Canadian Revolver Amount and (II) the sum of the Canadian
Borrowing Base and the U.S. Availability (any such condition under clause (a) or (b) being an “Out-of-Formula
Condition”); provided that no such payment shall be required if the Out-of-Formula Condition is created solely as a result
of an Agent Advance. Notwithstanding the foregoing, if at any time any prepayment of any Term SOFR Loans, Term CORRA Loans, EURIBOR Loans
or Bank Bill Rate Loans pursuant to this Section 4.2 would result in the relevant Borrower incurring breakage costs under
Section 5.5 as a result of Term SOFR Loans, Term CORRA Loans, EURIBOR Loans or Bank Bill Rate Loans being prepaid other than
on the last day of the Interest Period or Term CORRA Interest Period with respect thereto, then the relevant Borrower may, so long as
no Default or Event of Default shall have occurred and be continuing, in its sole discretion, deposit all or a portion of the amounts
that otherwise would have been paid under this Section 4.2 in respect of such Term SOFR Loans, Term CORRA Loans, EURIBOR Loans
or Bank Bill Rate Loans with the Agent (which deposit must be equal in amount to the amount of such Term SOFR Loans, Term CORRA Loans,
EURIBOR Loans or Bank Bill Rate Loans not immediately prepaid), to be held as security for the obligations of the applicable Borrowers
to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Agent, with
such cash collateral to be directly applied upon the first occurrence thereafter of the last day of an Interest Period or Term CORRA Interest
Period with respect to such Term SOFR Loans, Term CORRA Loans, EURIBOR Loans or Bank Bill Rate Loans (or such earlier date or dates as
shall be requested by the Borrowers’ Agent). It is acknowledged and agreed that any payments by a European Borrower pursuant to
this section shall only be in relation to European Obligations owed by the relevant European Borrower.
4.3 Termination
or Reductions of Facilities; Reallocation.
(a) The
Borrowers’ Agent (on behalf of the Borrowers) may terminate this Agreement, upon at least one Business Day’s notice to
the Agent (who will promptly distribute such notice to the Lenders), upon Full Payment of the Obligations and payment of amounts (if any)
due under Section 5.4.
(b) The
Borrowers’ Agent (on behalf of any Borrower) may from time to time reduce the amount of the Pro Rata Revolving Credit Commitments
or the ANZ Revolving Credit Commitments (on a pro rata basis as among the applicable Lenders based on the applicable Lenders’
respective Pro Rata Share, unless otherwise agreed to by the respective applicable Lenders), upon at least one Business Day’s
prior written notice to the Agent (who will promptly distribute such notice to the Lenders), which notice shall specify the amount of
the reduction and shall be irrevocable once given. Each reduction shall be in a minimum amount of $5,000,000 or an integral multiple of
$1,000,000 in excess thereof. If after giving effect to any reduction of the Commitments, (i) the Maximum Canadian Revolver Amount,
the Maximum ROW Revolver Amount, the Letter of Credit Subfacility, the U.S. Swingline Sublimit, the ROW Swingline Sublimit, the Canadian
Swingline Sublimit or the European Swingline Sublimit shall exceed the Pro Rata Revolving Credit Commitments at such time or (ii) the
ANZ Swingline Sublimit shall exceed the ANZ Revolving Credit Commitments at such time, in each case each such amount, subfacility or sublimit,
as the case may be, shall be automatically reduced by the amount of such excess and such reduction shall be accompanied by such payment
(if any) as may be required to be made such that after giving effect to such payment the Equivalent Amount in Dollars of the relevant
aggregate Canadian Revolving Loans, ROW Revolving Loans, Letters of Credit or Swingline Loans do not exceed the applicable amount, subfacility
or sublimit as so reduced. Each reduction in the Commitments shall be accompanied by such payment (if any) as may be required to avoid
an Out-of-Formula Condition.
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(c) The
Borrowers’ Agent may, from time to time (but not more than once per Fiscal Quarter, unless otherwise agreed by the Agent), request
that (i) Lenders with Pro Rata Revolving Credit Commitments convert a portion of such Commitments to ANZ Revolving Credit Commitments,
or that (ii) Lenders with ANZ Revolving Credit Commitments convert all or a portion of their ANZ Revolving Credit Commitments to
Pro Rata Revolving Credit Commitments, all pursuant to procedures to be specified by the Agent (each such conversion, a “Reallocation”).
Each Reallocation shall be offered to the applicable Lenders ratably; provided that no Lender shall be obligated to agree to any
such Reallocation, in which case such Reallocation shall not apply to the Commitments of any such non-consenting Lender. Each of the parties
hereto agrees that the Agent may, in consultation with the Borrowers’ Agent, take any and all actions as may be reasonably necessary
to ensure that, upon the effectiveness of any Reallocation, the outstanding Revolving Loans shall be held by the Lenders in accordance
with their new Pro Rata Shares. This may be accomplished at the discretion of the Agent, in consultation with the Borrowers’ Agent,
by causing the applicable Borrowers to prepay outstanding Revolving Loans with the proceeds of new Revolving Loans to be made in accordance
with the Lenders’ new Pro Rata Shares or any other method acceptable to the Agent and the Borrowers’ Agent. Any such prepayment
shall be subject to Section 5.4 but otherwise without premium or penalty. The Company shall deliver on the effective date
of any Reallocation, and it shall be a condition precedent to the effectiveness thereof, a certificate certifying that (x) the representations
and warranties made by Holdings, each Borrower and each Guarantor contained in this Agreement and the other Loan Documents are true and
correct in all material respects (and any representation and warranty that is qualified as to materiality or Material Adverse Effect is
true and correct in all respects) on and as of such effective date as though made on and as of such effective date, other than any such
representation or warranty which relates to a specified prior date (except that it is understood and agreed that the reference in Section 6.7
to “prior to and after giving effect to any Borrowings and the issuance of any Letters of Credit” shall be deemed to refer
instead to “as of the date of such Reallocation, immediately after giving effect to such Reallocation, including any Borrowings
and the issuance of any Letter of Credit”) and (y) as of such effective date, no Default or Event of Default has occurred and
is continuing, or would result from such Reallocation.
(d) [Intentionally
omitted].
(e) Any
notice of termination delivered by the Borrowers’ Agent pursuant to clause (a) of this Section 4.3
may state that such notice is conditioned upon the occurrence or non-occurrence of any event specified therein (including the effectiveness
of other credit facilities), in which case, subject to Section 5.4, such notice may be revoked by the Borrowers’ Agent
(by written notice to the Agent on or prior to the specified effective date) if such condition is not satisfied.
(f) [Intentionally
omitted].
(g) All
outstanding Commitments shall terminate on the Maturity Date.
(h) At
any time that the Maximum Canadian Revolver Amount has been permanently reduced to zero and Full Payment with respect to the Obligations
of the Canadian Borrowers has occurred, the Agent agrees, at the election of the Borrowers’ Agent, to (i) terminate the Canadian
Security Agreement, the Canadian Guarantee Agreement, and any other Canadian Security Document and (ii) release any security interest
granted under any Canadian Security Document and release each Guarantor from its obligations under the Canadian Guarantee Agreement.
4.4 Term
SOFR Loan, Term CORRA Loan, EURIBOR Loan and Bank Bill Rate Loan Prepayments. In connection with any prepayment, if any Term SOFR
Loans, Term CORRA Loans, EURIBOR Loans or Bank Bill Rate Loans are prepaid prior to the expiration date of the Interest Period or Term
CORRA Interest Period applicable thereto, the Borrowers shall comply with Section 5.4.
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4.5 Payments
by the Borrowers.
(a) All
payments to be made by the Borrowers shall be made without setoff, recoupment or counterclaim. Except as otherwise expressly provided
herein, all payments by the applicable Borrowers shall be made to the Agent for the account of the Lenders, at the account designated
by the Agent, and shall be made in Dollars, Euros, Sterling, Canadian Dollars, Australian Dollars, New Zealand Dollars or any other Alternative
Currency, as applicable, and in immediately available funds, no later than 12:00 noon, New York City time, on the date specified herein;
provided that:
(i) if
for any reason any Borrower is prohibited by any Requirement of Law from making any required payment hereunder in an Alternative Currency,
such Borrower shall make such payment in Dollars in the Equivalent Amount in Dollars; and
(ii) in
the case of any payment received or made under this Agreement or any other Loan Document by or to any French Borrower, the Agent shall
take any necessary action (including, if required, by entering into any agreement with any credit institution (établissement
de crédit) or financing company (société de financement) duly authorized) in order to ensure that (A) such
payments shall be made to or by the Agent in accordance with any applicable laws and regulations and (B) separate bank accounts are
opened and maintained by or on behalf of the Agent for each financing made to the French Borrowers under this Agreement or any other Loan
Document, so that the payments made by or to the Agent under each such financing are effected to a bank account of the Agent or from a
bank account of the Agent dedicated solely to the receipt and payment of funds to be paid or received under such financing, it being specified
that the Agent shall not be authorized to dispose of such funds for its own account (unless such funds were to be paid to the Agent under
any Loan Document for its own account) or for another financing transaction. For the avoidance of doubt, (x) the foregoing provisions
shall not be read so as to require the French Borrowers to open separate bank accounts for the purposes of payments to or receipt of payments
from the Agent and (y) this clause (a)(ii) shall not apply to any fees or commissions paid to the Agent.
(b) Any
payment received by the Agent after the time set forth in clause (a) above shall be deemed (for purposes of calculating interest
only) to have been received on the following Business Day and any applicable interest shall continue to accrue.
(c) Subject
to the provisions set forth in the definition of “Interest Period” and “Term CORRA Interest Period”, as applicable,
whenever any payment is due on a day other than a Business Day, such payment shall be due on the following Business Day, and such extension
of time shall in such case be included in the computation of interest or fees, as the case may be.
4.6 Apportionment,
Application and Reversal of Payments. Principal and interest payments in respect of any class(es) (but excluding payments to any tranche
established after the date of this Agreement pursuant to Section 2.5, 2.6 or 2.7 to the extent otherwise provided
in the applicable amendment to this Agreement relating to such tranche) shall be apportioned ratably among the Lenders of such class(es)
(according to the unpaid principal balance of the Loans to which such payments relate held by each such Lender) and payments of the fees
shall, as applicable, be apportioned ratably among the Lenders of each applicable class, except for fees payable solely to the Agent,
any Arranger or the applicable Letter of Credit Issuer. Principal and interest payments on any loans made pursuant to any tranche established
after the date of this Agreement pursuant to Section 2.5, 2.6 or 2.7 shall be allocated pro rata (or
as may otherwise be provided for in the applicable amendment to this Agreement relating to such tranche) among the Lenders with commitments
under any facility in respect thereof or with participations in such tranche (in each case subject to any limitations on non-pro rata
payments otherwise provided in any such section). All payments shall be remitted to the Agent and all such payments not relating to principal
or interest of specific Loans, or not constituting payment of specific fees, and all proceeds of Collateral received by the Agent in accordance
with the terms of the Loan Documents, shall be applied, ratably, subject to the provisions of this Agreement and any applicable Acceptable
Intercreditor Agreement, first, to pay any fees, indemnities or expense reimbursements then due to the Agent or the Arrangers from
the applicable Borrower or Borrowers; second, to pay any fees or expense reimbursements then due to the Lenders from the applicable
Borrower or Borrowers; third, to pay interest due in respect of all Loans of the applicable Borrower or Borrowers, including Swingline
Loans and Agent Advances; fourth, to pay or prepay principal of the Swingline Loans and Agent Advances of the applicable Borrower
or Borrowers; fifth, to pay or prepay principal of the Loans (excluding the applicable Swingline Loans and applicable Agent Advances)
and unpaid reimbursement obligations in respect of Letters of Credit of the Company and its Subsidiaries and, if an Event of Default has
occurred and is continuing at such time, to pay Designated Bank Products Obligations of the applicable Obligor or Obligors in respect
of any Waterfall Priority Hedge Agreements, in an amount not to exceed the amount of the Waterfall Priority Hedge Agreement Reserve with
respect to such Waterfall Priority Hedge Agreement; sixth, to pay an amount to the Agent equal to all outstanding Obligations (contingent
or otherwise) with respect to outstanding Letters of Credit issued for the account of the Company or any of its Subsidiaries to be held
as cash collateral for such Obligations; seventh, to the payment of any other applicable Obligations, including any amounts relating
to Bank Products not otherwise paid above, due to the Agent, any Lender, any Affiliate of the Agent or any Lender or any other Secured
Party, by the Obligors; and eighth, to pay any remaining amounts to the applicable Borrower or Borrowers for its or their own account;
provided that (a) no proceeds from the Canadian Collateral shall be applied to the outstanding principal amount of U.S. Revolving
Loans or to cash collateralize outstanding Letters of Credit (other than Letters of Credit issued for the account of any Canadian Obligor
or any ROW Borrower) and (b) proceeds from the U.S. Collateral shall be applied to the outstanding principal amount of U.S. Revolving
Loans, ROW Revolving Loans, European Swingline Loans and ANZ Revolving Loans, to cash collateralize outstanding Letters of Credit and
to pay other U.S. Obligations (in the order set forth above) before being applied to the payment or cash collateralization of any Canadian
Obligations. Notwithstanding anything to the contrary contained in this Agreement, unless so directed by the Borrowers, or unless an Event
of Default has occurred and is continuing, neither the Agent nor any Lender shall apply any payments which it receives to any Term SOFR
Loan, EURIBOR Loan or Term CORRA Loan, except (i) on the expiration date of the Interest Period or Term CORRA Interest Period applicable
to any such Term SOFR Loan, EURIBOR Loan or Term CORRA Loan, or (ii) in the event, and only to the extent, that there are no outstanding
Base Rate Loans and, in such event, the Borrowers shall pay Term SOFR Loan, EURIBOR Loan or Term CORRA Loan breakage losses in accordance
with Section 5.4. The Agent and the Lenders shall have the continuing and exclusive right to apply and reverse and reapply
any and all such proceeds and payments to any portion of the applicable U.S. Obligations, ROW Obligations, Canadian Obligations or
European Obligations. Notwithstanding anything to the contrary herein, this Section 4.6 may be amended in accordance with
Section 12.1(c) (and the Lenders hereby irrevocably authorize the Agent to enter into any such amendments) to the extent
necessary to reflect differing amounts payable, and priorities of payments, to Lenders participating in any new classes or tranches of
loans added pursuant to Section 2.5, 2.6 or 2.7, as applicable.
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4.7 Indemnity
for Returned Payments. If after receipt of any payment which is applied to the payment of all or any part of the Obligations, the
Agent, any Lender, either Bank or any Affiliate of either Bank or any other Secured Party is for any reason compelled to surrender such
payment or proceeds to any Person because such payment or application of proceeds is invalidated, declared fraudulent, set aside, determined
to be void or voidable as a preference, impermissible setoff, or a diversion of trust funds, or for any other reason, then the Obligations
or part thereof intended to be satisfied shall be revived and continued and this Agreement shall continue in full force as if such payment
or proceeds had not been received by the Agent, such Lender, such Bank or such Affiliate of such Bank or such other Secured Party, and
the Borrowers shall be liable to pay to the Agent, the Lenders, such Bank, such Affiliate of such Bank or such other Secured Party and
hereby do indemnify the Agent, the Lenders, such Bank, such Affiliate of such Bank or such other Secured Party and hold the Agent, the
Lenders, such Bank, such Affiliate of such Bank or such other Secured Party harmless for the amount of such payment or proceeds surrendered.
The provisions of this Section 4.7 shall be and remain effective notwithstanding any release of Collateral or guarantors,
cancellation or return of Loan Documents, or other contrary action which may have been taken by the Agent, any Lender, either Bank, such
Affiliate of such Bank or such other Secured Party in reliance upon such payment or application of proceeds, and any such contrary action
so taken shall be without prejudice to the Agent’s, the Lenders’, such Bank’s, such Affiliate of the Bank or such other
Secured Party’s rights under this Agreement and the other Loan Documents and shall be deemed to have been conditioned upon such
payment or application of proceeds having become final and irrevocable. The provisions of this Section 4.7 shall survive the
repayment of the Obligations and termination of this Agreement.
4.8 Payments
by Borrower; Presumptions by Agent. Unless the Agent shall have received notice from the Borrowers’ Agent prior to the date
on which any payment is due to the Agent for the account of any Lender or any Letter of Credit Issuer hereunder that any Borrower will
not make such payment, the Agent may assume that such Borrower has made such payment on such date in accordance herewith and may, in reliance
upon such assumption, distribute to the applicable Lenders or the applicable Letter of Credit Issuers, as the case may be, the amount
due.
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With respect to any payment
that the Agent makes for the account of any Lender or any Letter of Credit Issuer hereunder as to which the Agent determines (which determination
shall be conclusive absent manifest error) that any of the following applies (such payment referred to as the “Rescindable Amount”):
(1) a Borrower has not in fact made such payment; (2) the Agent has made a payment in excess of the amount so paid by a Borrower
(whether or not then owed); or (3) the Agent has for any reason otherwise erroneously made such payment; then each of the Lenders
or the applicable Letter of Credit Issuers, as the case may be, severally agrees to repay to the Agent forthwith on demand the Rescindable
Amount so distributed to such Lender or such Letter of Credit Issuer, in immediately available funds with interest thereon, for each day
from and including the date such amount is distributed to it to but excluding the date of payment to the Agent, at the greater of the
Federal Funds Rate and a rate determined by the Agent in accordance with banking industry rules on interbank compensation.
A notice of the Agent to any
Lender, any Letter of Credit Issuer or any Borrower with respect to any amount owing under this Section 4.8 shall be conclusive,
absent manifest error. The provisions of this Section 4.8 shall survive the repayment of the Obligations and termination of
this Agreement
4.9 Agent’s
and Lenders’ Books and Records; Monthly Statements. The Agent shall record the principal amount and currency of the Loans owing
to each Lender, the maximum amount available to be drawn under and the currency of all applicable outstanding Letters of Credit and the
aggregate amount of unpaid reimbursement obligations outstanding with respect to the Letters of Credit from time to time on its books.
In addition, each Lender may note the date and amount of each payment or prepayment of principal of such Lender’s Loans in its books
and records. Failure by the Agent or any Lender to make such notation shall not affect the obligations of the Borrowers with respect to
the Loans or the Letters of Credit. The Borrowers agree that the Agent’s and each Lender’s books and records showing the Obligations
and the transactions pursuant to this Agreement and the other Loan Documents shall be admissible in any action or proceeding arising therefrom,
and shall constitute rebuttably presumptive proof thereof (absent manifest error), irrespective of whether any Obligation is also evidenced
by a promissory note or other instrument. The Agent will provide to the Borrowers a monthly statement of Loans, payments, and other transactions
pursuant to this Agreement. Such statement shall be deemed correct, accurate, and binding on the Obligors and an account stated (absent
manifest error and except for reversals and reapplications of payments made as provided for in Section 4.6 and corrections
of errors discovered by the Agent), unless the Borrowers notify the Agent in writing to the contrary within 30 days after such statement
is rendered. In the event a timely written notice of objections is given by the Borrowers, only the items to which exception is expressly
made will be considered to be disputed by the Borrowers.
4.10 Borrowers’
Agent. Each of the Borrowers, other than the Company, hereby irrevocably appoints the Company, and the Company shall act under this
Agreement, as the agent, attorney-in-fact and legal representative of such other Borrowers for all purposes, including requesting Loans
and receiving account statements and other notices and communications to the Borrowers (or any of them) from the Agent, any Letter of
Credit Issuer or any Lender. The Agent, the Letter of Credit Issuers and the Lenders may rely, and shall be fully protected in relying,
on any Notice of Borrowing, Notice of Continuation/Conversion, request for a Letter of Credit, disbursement instruction, report, information
or any other notice or communication made or given by the Company, whether in its own name, as Borrowers’ Agent, on behalf of any
other Borrower or on behalf of the “Borrowers”, and neither the Agent nor the Letter of Credit Issuers or any Lender shall
have any obligation to make any inquiry or request any confirmation from or on behalf of any other Borrower as to the binding effect on
it of any such notice, request, instruction, report, information, other notice or communication; provided that the provisions of
this Section 4.10 shall not be construed so as to preclude any Borrower from taking actions permitted to be taken by a Borrower
hereunder.
4.11 [Intentionally
Omitted].
4.12 Excess
Resulting from Exchange Rate Change.
(a) If
at any time following one or more fluctuations in the exchange rate of any Alternative Currency against the Dollar, the Aggregate U.S.
Revolver Outstandings exceed the Maximum Pro Rata Revolver Amount, the applicable U.S. Borrowers shall, if such excess is in an aggregate
amount that is greater than or equal to 3% of the Maximum Pro Rata Revolver Amount, within three Business Days of notice of such
excess from the Agent, (i) make the necessary payments or repayments to reduce the Aggregate U.S. Revolver Outstandings to an amount
necessary to eliminate such excess or (ii) maintain or cause to be maintained with the Agent deposits as continuing collateral security
for the Aggregate U.S. Revolver Outstandings in an amount equal to the amount of such excess, such deposits to be maintained in such form
and upon such terms as are reasonably acceptable to the Agent.
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(b) If
at any time following one or more fluctuations in the exchange rate of any Alternative Currency against the Dollar, the Aggregate ROW
Revolver Outstandings exceeds the Maximum ROW Revolver Amount, the applicable ROW Borrowers shall, if such excess is in an aggregate amount
that is greater than or equal to 3% of the Maximum ROW Revolver Amount, within three Business Days of notice of such excess from
the Agent, (i) make the necessary payments or repayments to reduce the Aggregate ROW Revolver Outstandings to an amount necessary
to eliminate such excess or (ii) maintain or cause to be maintained with the Agent deposits as continuing collateral security for
the Aggregate ROW Revolver Outstandings in an amount equal to the amount of such excess, such deposits to be maintained in such form and
upon such terms as are reasonably acceptable to the Agent.
(c) If
at any time following one or more fluctuations in the exchange rate of the Canadian Dollar against the Dollar, the Aggregate Canadian
Revolver Outstandings exceeds the Maximum Canadian Revolver Amount, the applicable Canadian Borrowers shall, if such excess is in an aggregate
amount that is greater than or equal to 3% of the Maximum Canadian Revolver Amount, within three Business Days of notice of such
excess from the Agent, (x) make the necessary payments or repayments to reduce the Aggregate Canadian Revolver Outstandings to an
amount necessary to eliminate such excess or (y) maintain or cause to be maintained with the Agent deposits as continuing collateral
security for the Aggregate Canadian Revolver Outstandings in an amount equal to the amount of such excess, such deposits to be maintained
in such form and upon such terms as are reasonably acceptable to the Agent.
(d) If
at any time following one or more fluctuations in the exchange rate of any Alternative Currency or the Canadian Dollar against the Dollar,
the Equivalent Amount in Dollars of the aggregate unpaid principal balance of ROW Swingline Loans, Canadian Swingline Loans, European
Swingline Loans or ANZ Swingline Loans, as the case may be, exceeds the ROW Swingline Sublimit, the Canadian Swingline Sublimit, the European
Swingline Sublimit or the ANZ Swingline Sublimit, respectively, the applicable ROW Borrowers, Canadian Borrowers, European Borrowers or
ANZ Borrowers shall, if such excess is in an aggregate amount that is greater than or equal to 3% of the ROW Swingline Sublimit, the Canadian
Swingline Sublimit, the European Swingline Sublimit or the ANZ Swingline Sublimit, as applicable, within three Business Days of notice
of such excess from the Agent, make the necessary payments or repayments to reduce the aggregate unpaid principal balance of ROW Swingline
Loans, Canadian Swingline Loans, European Swingline Loans or ANZ Swingline Loans, as applicable, to an amount necessary to eliminate such
excess.
(e) If
at any time following one or more fluctuations in the exchange rate of any Alternative Currency or the Canadian Dollar against the Dollar,
the Aggregate Revolver Outstandings exceed the Maximum Revolver Amount, the applicable Borrowers shall, if such excess is in an aggregate
amount that is greater than or equal to 3% of the Maximum Revolver Amount, within three Business Days of notice of such excess from
the Agent, (i) make the necessary payments or repayments to reduce the Aggregate Revolver Outstandings to an amount necessary to
eliminate such excess or (ii) maintain or cause to be maintained with the Agent deposits as continuing collateral security for the
Aggregate Revolver Outstandings in an amount equal to the amount of such excess, such deposits to be maintained in such form and upon
such terms as are reasonably acceptable to the Agent.
(f) If
at any time following one or more fluctuations in the exchange rate of the Australian Dollar or the New Zealand Dollar against the Dollar,
the Aggregate ANZ Revolver Outstandings exceed the Maximum ANZ Revolver Amount, the applicable ANZ Borrowers shall, if such excess is
in an aggregate amount that is greater than or equal to 3% of the Maximum ANZ Revolver Amount, within three Business Days of notice
of such excess from the Agent, (i) make the necessary payments or repayments to reduce the Aggregate ANZ Revolver Outstandings to
an amount necessary to eliminate such excess or (ii) maintain or cause to be maintained with the Agent deposits as continuing collateral
security for the Aggregate ANZ Revolver Outstandings in an amount equal to the amount of such excess, such deposits to be maintained in
such form and upon such terms as are reasonably acceptable to the Agent.
4.13 Several
Liability. Each ROW Borrower shall be severally liable for any obligation created hereunder or under the other Loan Documents (including
for any payments) only if and to the extent that such obligation relates to any ROW Revolving Loan made to, or Letter of Credit issued
for the account of, such ROW Borrower. Each European Borrower shall be severally liable for any obligation created hereunder or under
the other Loan Documents (including for any payments) only if and to the extent that such obligation relates to any European Swingline
Loan made to a European Borrower. For the avoidance of doubt, no ROW Borrower and no European Borrower hereunder shall be held jointly
and severally liable with any other Obligor hereunder or under any other Loan Document. No French Borrower shall be considered “co-débiteur
solidaire” as to the obligations of any other Obligor hereunder and under the other Loan Documents. No Borrower organized under
the laws of Germany shall be considered “Gesamtschuldner” as to the obligations of any other Obligor hereunder and
under the other Loan Documents. No ROW Borrower organized under the laws of the Netherlands shall be considered “hoofdelijk schuldenaar”
as to the obligations of any other Obligor hereunder and under the other Loan Documents.
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4.14 Joint
and Several Liability.
(a) The
obligations of the U.S. Borrowers hereunder and under the other Loan Documents shall be joint and several and, as such, each U.S. Borrower
shall be liable for all of the obligations of the other U.S. Borrowers under this Agreement and the other Loan Documents. To the fullest
extent permitted by law, the liability of each U.S. Borrower for the obligations under this Agreement and the other Loan Documents of
the other U.S. Borrowers with whom it has joint and several liability shall be absolute, unconditional and irrevocable, without regard
to (i) the validity or enforceability of this Agreement or any other Loan Document, any of the obligations hereunder or thereunder
or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by
any applicable Secured Party, (ii) any defense, setoff or counterclaim (other than a defense of payment or performance hereunder;
provided that no U.S. Borrower hereby waives any suit for breach of a contractual provision of any of the Loan Documents) which
may at any time be available to or be asserted by any other U.S. Borrower or any other Person against any Secured Party or (iii) any
other circumstance whatsoever (with or without notice to or knowledge of any other U.S. Borrower or such U.S. Borrower) which constitutes,
or might be construed to constitute, an equitable or legal discharge of any other U.S. Borrower for the obligations hereunder or under
any other Loan Document or of such U.S. Borrower under this Section 4.14, in bankruptcy or in any other instance. Each U.S.
Borrower hereby expressly waives promptness, diligence, notice of acceptance and any other notice (except to the extent provided for herein
or in another Loan Document) with respect to any of the Obligations, this Agreement or any other Loan Documents and any requirement that
the Agent or any Lender protect, secure, perfect or insure any Lien or any property subject thereto or exhaust any right or take any action
against any U.S. Borrower or any other Person or any Collateral.
(b) The
obligations of the Canadian Borrowers hereunder and under the other Loan Documents shall be joint and several and, as such, each Canadian
Borrower shall be liable for all of the obligations of the other Canadian Borrowers under this Agreement and the other Loan Documents.
To the fullest extent permitted by law, the liability of each Canadian Borrower for the obligations under this Agreement and the other
Loan Documents of the other Canadian Borrowers with whom it has joint and several liability shall be absolute, unconditional and irrevocable,
without regard to (i) the validity or enforceability of this Agreement or any other Loan Document, any of the obligations hereunder
or thereunder or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time
to time held by any applicable Secured Party, (ii) any defense, setoff or counterclaim (other than a defense of payment or performance
hereunder; provided that no Canadian Borrower hereby waives any suit for breach of a contractual provision of any of the Loan Documents)
which may at any time be available to or be asserted by any other Canadian Borrower or any other Person against any Secured Party or (iii) any
other circumstance whatsoever (with or without notice to or knowledge of any other Canadian Borrower or such Canadian Borrower) which
constitutes, or might be construed to constitute, an equitable or legal discharge of any other Canadian Borrower for the obligations hereunder
or under any other Loan Document or of such Canadian Borrower under this Section 4.14, in bankruptcy or in any other instance.
Each Canadian Borrower hereby expressly waives promptness, diligence, notice of acceptance and any other notice (except to the extent
provided for herein or in another Loan Document) with respect to any of the Obligations, this Agreement or any other Loan Documents and
any requirement that the Agent or any Lender protect, secure, perfect or insure any Lien or any property subject thereto or exhaust any
right or take any action against any Canadian Borrower or any other Person or any Collateral.
(c) The
obligations of the ANZ Borrowers hereunder and under the other Loan Documents shall be joint and several and, as such, each ANZ Borrower
shall be liable for all of the obligations of the other ANZ Borrowers under this Agreement and the other Loan Documents. To the fullest
extent permitted by law, the liability of each ANZ Borrower for the obligations under this Agreement and the other Loan Documents of the
other ANZ Borrowers with whom it has joint and several liability shall be absolute, unconditional and irrevocable, without regard to (i) the
validity or enforceability of this Agreement or any other Loan Document, any of the obligations hereunder or thereunder or any other collateral
security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any applicable Secured
Party, (ii) any defense, setoff or counterclaim (other than a defense of payment or performance hereunder; provided that no
ANZ Borrower hereby waives any suit for breach of a contractual provision of any of the Loan Documents) which may at any time be available
to or be asserted by any other ANZ Borrower or any other Person against any Secured Party or (iii) any other circumstance whatsoever
(with or without notice to or knowledge of any other ANZ Borrower or such ANZ Borrower) which constitutes, or might be construed to constitute,
an equitable or legal discharge of any other ANZ Borrower for the obligations hereunder or under any other Loan Document or of such ANZ
Borrower under this Section 4.14, in bankruptcy or in any other instance. Each ANZ Borrower hereby expressly waives promptness,
diligence, notice of acceptance and any other notice (except to the extent provided for herein or in another Loan Document) with respect
to any of the Obligations, this Agreement or any other Loan Documents and any requirement that the Agent or any Lender protect, secure,
perfect or insure any Lien or any property subject thereto or exhaust any right or take any action against any ANZ Borrower or any other
Person or any Collateral.
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ARTICLE V
TAXES,
YIELD PROTECTION AND ILLEGALITY
5.1 Taxes.
(a) Unless
otherwise required by applicable law, any and all payments by an Obligor to a Lender or the Agent under this Agreement and any other Loan
Document shall be made free and clear of, and without deduction or withholding for, any Indemnified Taxes. In addition, the Obligors shall
pay all Other Taxes to the relevant Governmental Authority in accordance with applicable law.
(b) The
Obligors agree jointly and severally to indemnify and hold harmless each Lender and the Agent for the full amount of Indemnified Taxes
(including any Indemnified Taxes imposed on amounts payable under this Section 5.1) payable or paid by any Lender or the Agent
and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority. Payment under this indemnification shall be made within 30 days after
the date such Lender or the Agent makes written demand therefor in accordance with Section 5.6. For the avoidance of doubt,
an Obligor does not have to indemnify and hold harmless a Lender under this Section 5.1(b) to the extent that the Lender
is otherwise compensated under a separate clause of this Section 5.1.
(c) If
an Obligor shall be required by law to deduct or withhold any Indemnified Taxes from or in respect of any sum payable hereunder or under
any other Loan Document to any Lender or the Agent, then:
(i) an
additional amount shall be payable as necessary so that after making all required deductions and withholdings (including deductions and
withholdings applicable to additional sums payable under this Section 5.1) such Lender or the Agent, as the case may be, receives
an amount equal to the sum it would have received had no such deductions or withholdings been made;
(ii) the
Obligor shall make such deductions and withholdings; and
(iii) the
Obligor shall pay the full amount deducted or withheld to the relevant taxing authority or other Governmental Authority in accordance
with applicable law.
(d) At
the Agent’s request, within 30 days after the date of any payment by an Obligor of Indemnified Taxes, the relevant Obligor
shall furnish to the Agent the original or a certified copy of a receipt evidencing such payment, or other evidence of payment reasonably
satisfactory to the Agent.
(e) If
any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been
indemnified pursuant to this Section 5.1 (including by the payment of additional amounts pursuant to this Section 5.1),
it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section 5.1
with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and
without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying
party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this clause (e) (plus
any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required
to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this clause (e), in no event
will the indemnified party be required to pay any amount to an indemnifying party pursuant to this clause (e) the payment
of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if
the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification
payments or additional amounts with respect to such Tax had never been paid. This clause (e) shall not be construed to
require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential)
to the indemnifying party or any other Person.
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(f) Status
of Lenders.
(i) Any
Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document (other
than an exemption from or reduction of withholding Tax levied by the United Kingdom on interest under any applicable double taxation treaty
to which the United Kingdom is a party) shall deliver to the Borrowers’ Agent and the Agent, at the time or times reasonably requested
by the Borrowers’ Agent or the Agent, such properly completed and executed documentation reasonably requested by the Borrowers’
Agent or the Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender,
if reasonably requested by the Borrowers’ Agent or the Agent, shall deliver such other documentation prescribed by applicable law
or reasonably requested by the Borrowers’ Agent or the Agent as will enable the Borrowers’ Agent or the Agent to determine
whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary
in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth
in Sections 5.1(f)(ii)(A), (ii)(B) and (ii)(D) below) shall not be required if in the Lender’s
reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or
would materially prejudice the legal or commercial position of such Lender.
(ii) Without
limiting the generality of the foregoing, in the event that a Borrower is a U.S. Borrower,
(A) any Lender that is a U.S. Person shall deliver to the Borrowers’ Agent and the Agent, on or prior
to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of
the Borrowers’ Agent or the Agent), executed copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal
backup withholding Tax;
(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers’
Agent and the Agent (in such number of copies as shall be requested by the recipient), on or prior to the date on which such Foreign Lender
becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers’ Agent or the
Agent), whichever of the following is applicable:
(1) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States
is a party (x) with respect to payments of interest under any Loan Document, executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E
establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax
treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN or IRS Form W-8BEN-E
establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other
income” article of such tax treaty;
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(2) executed copies of IRS Form W-8ECI;
(3) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of
the Code, (x) a certificate substantially in the form of Exhibit J-1 to the effect that such Foreign Lender is not a
“bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of any Borrower
within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of
the Code (a “U.S. Tax Compliance Certificate”) and (y) executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E;
or
(4) to the extent a Foreign Lender is not the beneficial owner, executed copies of IRS Form W-8IMY, accompanied
by IRS Form W-8ECI, IRS Form W-8BEN, IRS Form W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the
form of Exhibit J-2 or Exhibit J-3, IRS Form W-9, and/or other certification documents from each beneficial
owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such
Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially
in the form of Exhibit J-4 on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers’
Agent and the Agent (in such number of copies as shall be requested by the recipient), on or prior to the date on which such Foreign Lender
becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the applicable Borrower or the
Agent), executed copies of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal
withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the applicable
Borrower or the Agent to determine the withholding or deduction required to be made; and
(D) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax
imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained
in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrowers’ Agent and
the Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers’ Agent or the Agent
such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional
documentation reasonably requested by the Borrowers’ Agent or the Agent as may be necessary for the Borrowers’ Agent and the
Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations
under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA”
shall include any amendments made to FATCA after the date of this Agreement.
(iii) Each
Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall
update such form or certification or promptly notify the Borrowers’ Agent and the Agent in writing of its legal inability to do
so.
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(g) Each
Lender agrees severally to indemnify and hold harmless the Agent for (i) any Indemnified Taxes attributable to such Lender (but only
to the extent that any Obligor has not already indemnified the Agent for such Indemnified Taxes and without limiting the obligation of
the Obligors to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 13.21(b) relating
to the maintenance of a Participant Register and (iii) any Excluded Taxes (other than VAT, which is instead governed by Section 5.1(i))
attributable to such Lender, in each case that are payable or paid by the Agent in connection with this Agreement or any other Loan Document
and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority. Payment under this indemnification shall be made within 30 days after the date the
Agent makes written demand therefor in accordance with Section 5.6(b).
(h) Additional
United Kingdom Withholding Tax Matters.
(i) Subject
to clauses (ii) and (iii) below, each U.K. Borrower shall, at the request of any Lender or the Agent, reasonably
assist such Lender in timely completing any procedural formalities (as may be applicable in the United Kingdom at the applicable time)
necessary for such Lender to receive payments under this Agreement or under any other Loan Document without withholding or deduction for
Taxes imposed under the laws of the United Kingdom, and such Lender shall complete such procedural formalities. Notwithstanding anything
to the contrary in the preceding sentence, the completion, execution and submission of such documentation shall not be required if in
the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed
cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Each
Lender that is entitled to an exemption from or reduction of withholding Tax on interest under any applicable double taxation treaty to
which the United Kingdom is a party, and that holds a passport number under the HMRC Double Taxation Treaty Passport Scheme and wishes
that scheme to apply to this Agreement and the other Loan Documents, shall include an indication of such choice by providing to the Agent
and each applicable U.K. Borrower such Lender’s scheme reference number, such Lender’s jurisdiction of tax residence, the
applicable rate of relief under the relevant double taxation treaty, and any other information the relevant U.K. Borrower reasonably requests
as is required for the U.K. Borrower to make a Borrower DTTP Filing (the “DTTP Information”).
(iii) Without
limiting clause (i) above, when a Lender provides the applicable DTTP Information to the Agent and each U.K. Borrower in accordance
with clause (ii) above, each U.K. Borrower shall make a Borrower DTTP Filing with respect to such Lender, and in each case
each U.K. Borrower shall promptly provide such Lender and the Agent with a proof of, and a copy of, such filing; provided that,
if
(A) each
U.K. Borrower making a payment to such Lender has not made a Borrower DTTP Filing in respect of such Lender; or
(B) each
U.K. Borrower making a payment to such Lender has made a Borrower DTTP Filing in respect of such Lender but:
(1) such Borrower DTTP Filing has been rejected by HM Revenue & Customs; or
(2) HM Revenue & Customs has not given such U.K. Borrower authority to make payments to such Lender
without a deduction for Tax within 60 days of the date of such Borrower DTTP Filing; or
(3) HM Revenue & Customs has given the U.K. Borrower authority to make payments to that Lender without
a deduction for Tax but such authority has subsequently been revoked or expired,
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and in each case, such U.K. Borrower has
notified that Lender in writing of (1), (2) or (3) above, then such Lender and such U.K. Borrower shall
cooperate in completing any additional procedural formalities necessary for such U.K. Borrower to obtain authorization to make that payment
without withholding or deduction for Taxes imposed under the laws of the United Kingdom.
(i) VAT.
(i) All
amounts set out or expressed in any Loan Document to be payable by any party to any Loan Document (for the purposes of this paragraph
(i), a “party”) to any Lender or Bank or the Agent that (in whole or in part) constitute the consideration for
any supply for VAT purposes shall be deemed to be exclusive of any VAT that is chargeable on such supply. Subject to clause (ii) below,
if VAT is or becomes chargeable on any supply made by any Lender or Bank or the Agent to any party under any Loan Document and such Lender
or Bank or the Agent, as applicable, is required to account to the relevant tax authority for such VAT, such party shall pay to such Lender
or Bank or the Agent (in addition to and at the same time as paying any other consideration for such supply), as applicable, an amount
equal to the amount of such VAT (and such Lender or Bank or the Agent, as applicable, shall promptly provide an appropriate VAT invoice
to such party).
(ii) If
VAT is or becomes chargeable on any supply made by any Lender or Bank or the Agent (the “VAT Supplier”) to any other
Lender, Bank or the Agent (the “VAT Recipient”) under any Loan Document, and any party other than the VAT Recipient
(the “VAT Subject Party”) is required by the terms of any Loan Document to pay an amount equal to the consideration
for such supply to the VAT Supplier (rather than being required to reimburse or indemnify the VAT Recipient in respect of such consideration):
(A) to
the extent the VAT Supplier is the Person required to account to the relevant tax authority for the VAT, the VAT Subject Party shall also
pay to the VAT Supplier (in addition to and at the same time as paying such amount) an amount equal to the amount of such VAT, and the
VAT Recipient shall, where this clause (A) applies, promptly pay to the VAT Subject Party an amount equal to any credit or repayment
the VAT Recipient receives from the relevant tax authority which the VAT Recipient reasonably determines relates to the VAT chargeable
on such supply; and
(B) to
the extent the VAT Recipient is the Person required to account to the relevant tax authority for the VAT, the VAT Subject Party shall
promptly, following demand from the VAT Recipient, pay to the VAT Recipient an amount equal to the VAT chargeable on such supply but only
to the extent that the VAT Recipient reasonably determines that it is not entitled to credit or repayment from the relevant tax authority
in respect of such VAT.
(iii) Where
a Loan Document requires any party to reimburse or indemnify any Lender or Bank or the Agent, as applicable, for any cost or expense,
such party shall reimburse or indemnify (as the case may be) such Lender or Bank or the Agent, as applicable, for the full amount of such
cost or expense, including such part thereof as represents VAT, except to the extent that such Lender or Bank or the Agent, as applicable,
reasonably determines that it is entitled to credit or repayment in respect of such VAT from the relevant tax authority.
(iv) Any
reference in this paragraph (i) to any party shall, at any time when such party is treated as a member of a group or unity
(or fiscal unity) for VAT purposes, include (where appropriate and unless the context otherwise requires) a reference to the Person that
is treated at that time as making the supply, or (as appropriate) receiving the supply, under the grouping rules (provided for in
Article 11 of Council Directive 2006/112/EC (or as implemented by the relevant member state of the European Union) or any other similar
provision in any jurisdiction that is not a member state of the European Union) so that a reference to a party shall be construed as a
reference to such party or the relevant group or unity (or fiscal unity) of which such party is a member for VAT purposes at the relevant
time or the relevant representative member (and “representative member” shall have the same meaning in relation to
a United Kingdom VAT group as in the United Kingdom Value Added Tax Act 1994) or head of such group or unity (or fiscal unity) at the
relevant time (as the case may be).
(v) In
relation to any supply made by a Lender or Bank or the Agent, as applicable, to any party under any Loan Document, if reasonably requested
by such Lender or Bank or the Agent, as applicable, such party must promptly provide such Lender or Bank or the Agent, as applicable,
with details of such party’s VAT registration and such other information as is reasonably requested in connection with the VAT reporting
requirements of such Lender or Bank or the Agent, as applicable, in relation to such supply.
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(j) Australian
Taxation. (i) The Agent represents to each Australian Borrower that (A) on behalf of each Australian Borrower, it
or its Affiliates have made invitations to become an ANZ Revolving Credit Lender under this Agreement to 10 or more Persons, each of whom,
as at the date the relevant invitation was made, the Agent’s or its Affiliates’ officers or employees involved in the day
to day syndication process reasonably believed was carrying on the business of providing finance or investing or dealing in securities
in the course of operating in financial markets and (B) the Agent’s or its Affiliates’ officers or employees involved
in the day to day syndication process reasonably believed 10 or more of such invitees were not Associates of each other or of any Australian
Borrower.
(ii) Each
Australian Borrower confirms that none of the potential invitees whose names were disclosed to it by the Agent before June 30, 2021
were known or suspected by it to be an Offshore Associate of any Australian Borrower. Each Australian Borrower also confirms that each
Australian Borrower under this Agreement is (A) a member of the same “wholly-owned group” (as defined in the Australian
Tax Act) or (B) an Associate of each other Australian Borrower.
(iii) Each
ANZ Revolving Credit Lender represents and warrants that (A) an invitation to become an ANZ Revolving Credit Lender under this Agreement
was made to it by the Agent or its Affiliates on behalf of the Australian Borrowers, (B) it was at the time of the invitation, and
will be at the time of making by it of any Loan to any Australian Borrower, carrying on a business of providing finance, or investing
or dealing in securities, in the course of operating in financial markets and (C) except as disclosed to the Borrowers’ Agent,
insofar as its officers and agents who were involved in its becoming a party to this Agreement have actual knowledge, it is not an Associate
of any other Person which was invited to become an ANZ Revolving Credit Lender under the Agreement.
(iv) At
the cost of the Obligors, each of the ANZ Revolving Credit Lenders and the Agent will, to the extent it is reasonably able to do so, do
or provide such other things (including information) which the Borrowers’ Agent reasonably requests it to do or provide in connection
with the invitations to become ANZ Revolving Credit Lenders under this Agreement which the Borrowers’ Agent considers practicable
and necessary to demonstrate that the requirements of section 128F of the Australian Tax Act are satisfied.
(k) New
Zealand Resident Withholding Tax. (i) Each NZ Lender (A) represents and warrants to the ANZ Borrowers that, as of
the Agreement Date or the date such NZ Lender becomes party to this Agreement, as applicable, such NZ Lender has RWT-Exempt Status and
(B) undertakes to maintain RWT-Exempt Status throughout the term of this Agreement, provided such NZ Lender is lawfully able
to do so.
(ii) If,
at any time, any such NZ Lender ceases to be entitled lawfully to have RWT-Exempt Status and, as a result, any ANZ Borrower is required
to make an additional payment under Section 5.1(c), such NZ Lender will notify the applicable ANZ Borrower (as soon as possible,
and in any event prior to any payment being made to such NZ Lender under this Agreement) and the applicable ANZ Borrower and such NZ Lender
shall negotiate in good faith for a period not exceeding 30 days with a view to agreeing upon an arrangement which will ensure, so far
as possible, that the applicable ANZ Borrower is not disadvantaged and such NZ Lender is not advantaged by reason of the loss of RWT-Exempt
Status. If no such arrangement is agreed within the 30 day period, Section 5.1(c) will continue to apply.
(l) New
Zealand Approved Issuer Status. (i) If at any time (A) any ANZ Borrower is entitled to make a payment of Approved
Issuer Levy in respect of interest paid by such ANZ Borrower to a Lender under this Agreement so that the rate of New Zealand non-resident
withholding tax otherwise payable is reduced to zero percent in respect of the interest payable to such Lender or (B) a Lender is
eligible for an exemption from tax on interest under a double tax agreement (as defined in section YA 1 of the Income Tax Act 2007 (NZ))
which is dependent on payment of Approved Issuer Levy and such Lender notifies the relevant ANZ Borrower that it is seeking to rely on
such exemption, then the applicable ANZ Borrower may or, where Section 5.1(l)(i)(B) applies, shall to the extent lawfully
able: (x) promptly apply to become an “approved issuer” as defined in section YA 1 of the Income Tax Act 2007 (if it
is not already) and ensure the ANZ Credit Facilities are registered with the Commissioner of Inland Revenue under section 86H of the Stamp
and Cheque Duties Act 1971, (y) use commercially reasonable efforts to maintain its status as an “approved issuer” during
the term of the ANZ Credit Facilities and (z) make payment of Approved Issuer Levy in accordance with section 86K of the Stamp and
Cheque Duties Act 1971.
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(ii) Where
Approved Issuer Levy is paid at the request of a Lender in accordance with Section 5.1(l)(i)(B), the applicable ANZ Borrower
will be entitled to deduct from any payment of interest (or deemed interest) in respect of which Approved Issuer Levy is entitled to be
so paid, an amount equal to the Approved Issuer Levy that is applicable for such payment, and shall not be required to indemnify, compensate
or reimburse the Lender for the amount so deducted (whether under Section 5.1(c) or otherwise). For the avoidance of
doubt, the ANZ Borrowers will not be entitled to deduct from any payment of interest (or deemed interest) to a Lender an amount equal
to the Approved Issuer Levy that is paid in accordance with Section 5.1(l)(i)(A).
(m) Notice
of Legal Requirements. Each Lender undertakes (i) to notify the Borrowers’ Agent (at least five Business Days prior to
any scheduled payment being made to such Lender under this Agreement) if such Lender is, becomes or ceases to be, a NZ Lender and (ii) to
provide to the Borrowers’ Agent such information as the Borrowers’ Agent may reasonably request to determine whether or at
what rate the applicable ANZ Borrower is required to make any deduction or withholding on payments made to such Lender under this Agreement
or to comply with the applicable ANZ Borrower’s record-keeping and disclosure obligations under applicable New Zealand tax law.
5.2 Illegality.
(a) If
any Lender determines that the introduction of any Requirement of Law, or any change in any Requirement of Law, or in the interpretation
or administration of any Requirement of Law, in each case after the later of the Agreement Date or the date such Lender became a party
to this Agreement, has made it unlawful, or that any central bank or other Governmental Authority has asserted after such date that it
is unlawful, for such Lender or its applicable lending office to make Term SOFR Loans, Daily SOFR Loans, Term CORRA Loans, EURIBOR Loans,
Bank Bill Rate Loans or Base Rate Loans bearing interest based on the Foreign Base Rate, then, on notice thereof by that Lender to the
Borrowers’ Agent through the Agent, any obligation of that Lender to make Term SOFR Loans, Daily SOFR Loans, Term CORRA Loans, EURIBOR
Loans, Bank Bill Rate Loans or Base Rate Loans bearing interest based on the Foreign Base Rate shall be suspended until that Lender notifies
the Agent and the Borrowers’ Agent that the circumstances giving rise to such determination no longer exist.
(b) If
a Lender determines that it is unlawful to maintain any Term SOFR Loan, Daily SOFR Loan, Term CORRA Loan, EURIBOR Loans, Bank Bill Rate
Loans or Base Rate Loan bearing interest based on the Foreign Base Rate as a result of the introduction of any Requirement of Law, or
any change in any Requirement of Law, or in the interpretation or administration of any Requirement of Law, in each case after the later
of the Agreement Date or the date such Lender became a party to this Agreement, the Borrowers shall, upon their receipt of notice of such
fact and demand from such Lender (with a copy to the Agent), prepay in full such Term SOFR Loans, Daily SOFR Loans, Term CORRA Loans,
EURIBOR Loans, Bank Bill Rate Loans or Base Rate Loans bearing interest based on the Foreign Base Rate of that Lender then outstanding,
together with interest accrued thereon and amounts required under Section 5.4, either on the last day of the Interest Period
or Term CORRA Interest Period thereof, if that Lender may lawfully continue to maintain such Term SOFR Loans, Term CORRA Loans, EURIBOR
Loans or Bank Bill Rate Loans to such day, or immediately, in the case of such Daily SOFR Loans or Base Rate Loans or if that Lender may
not lawfully continue to maintain such Term SOFR Loans, Term CORRA Loans, EURIBOR Loans or Bank Bill Rate Loans. If the Borrowers are
required to so prepay any Term SOFR Loans, Daily SOFR Loans, Term CORRA Loans, EURIBOR Loans, Bank Bill Rate Loans or Base Rate Loans
bearing interest based on the Foreign Base Rate, then concurrently with such prepayment, the Borrowers shall borrow from the affected
Lender (other than any affected ROW Swingline Lender or European Swingline Lender, as applicable), in the amount (or the Equivalent Amount
in Dollars, as applicable) of such repayment, a Base Rate Loan denominated in Dollars bearing interest based on the Base Rate or a Canadian
Prime Rate Loan, as the case may be.
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5.3 Increased
Costs and Reduction of Return.
(a) If
any Lender determines that due to any of (i) the introduction of or any change in the interpretation of any law or regulation (including
any law or regulation relating to Taxes (other than (x) Indemnified Taxes and (y) Excluded Taxes)), (ii) the compliance
by that Lender with any guideline or request from any central bank or other Governmental Authority (whether or not having the force of
law), in each case of clauses (i) and (ii), after the later of the Agreement Date or the date such Lender became
a party to this Agreement, (iii) compliance by that Lender with the Dodd-Frank Wall Street Reform and Consumer Protection Act or
any request, rule, guideline or directive thereunder or issued in connection therewith (whether or not having the force of law), regardless
of the date enacted, adopted or issued, or (iv) the compliance by that Lender with any requests, rules, guidelines or directives
promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority)
or United States regulatory authorities, in each case pursuant to Basel III, regardless of the date enacted, adopted or issued, there
shall be any increase in the cost to such Lender of agreeing to make or making, funding or maintaining any Term SOFR Loans, Daily SOFR
Loans, Term CORRA Loans, EURIBOR Loans, Bank Bill Rate Loans or Base Rate Loans bearing interest based on the Foreign Base Rate, then,
subject to clause (c) of this Section 5.3, the Borrowers shall be liable for, and shall from time to time,
upon demand (with a copy of such demand to be sent to the Agent), pay to the Agent for the account of such Lender, additional amounts
as are sufficient to compensate such Lender for such increased costs.
(b) If
any Lender shall have determined that (i) the introduction of or compliance with any Capital Adequacy Regulation, (ii) any change
in any Capital Adequacy Regulation, (iii) any change in the interpretation or administration of any Capital Adequacy Regulation by
any central bank or other Governmental Authority charged with the interpretation or administration thereof, in each case of clauses (i) through
(iii), after the later of the Agreement Date or the date such Lender became a party to this Agreement, (iv) compliance by
that Lender with the Dodd-Frank Wall Street Reform and Consumer Protection Act or any request, rule, guideline or directive thereunder
or issued in connection therewith (whether or not having the force of law), regardless of the date enacted, adopted or issued, or (v) any
requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision
(or any successor or similar authority) or United States regulatory authorities, in each case pursuant to Basel III, CRD IV or CRR, or
any regulation that implements or applies CRD IV or CRR, regardless of the date enacted, adopted or issued affects or would affect the
amount of capital required or expected to be maintained by such Lender or any corporation or other entity controlling such Lender and
(taking into consideration such Lender’s or such corporation’s or other entity’s policies with respect to capital adequacy
and such Lender’s desired return on capital) determines that the amount of such capital is increased as a consequence of its Commitments,
loans, credits or obligations under this Agreement, then, upon demand of such Lender to the Borrowers’ Agent through the Agent,
subject to clause (c) of this Section 5.3, the Borrowers shall pay to such Lender, from time to time as specified
by such Lender, additional amounts sufficient to compensate such Lender for such increase.
(c) Failure
or delay on the part of any Lender to demand compensation pursuant to the foregoing provisions of this Section 5.3 shall not
constitute a waiver of such Lender’s right to demand such compensation. Notwithstanding any other provision herein, no Lender shall
demand compensation pursuant to this Section 5.3 if it shall not at the time be the general policy or practice of such Lender
to demand such compensation in similar circumstances under comparable provisions of other credit agreements, if any (and such Lender so
certifies to the Borrowers).
5.4 Funding
Losses. The Borrowers shall reimburse each Lender and hold each Lender harmless from any loss or expense which such Lender may sustain
or incur as a consequence of:
(a) the
failure of the Borrowers to borrow a Term SOFR Loan, Daily SOFR Loan, Term CORRA Loan, EURIBOR Loan or Bank Bill Rate Loan after any Borrower
has given (or is deemed to have given) a Notice of Borrowing;
(b) the
failure of the Borrowers to continue a Term SOFR Loan, Term CORRA Loan, EURIBOR Loan or Bank Bill Rate Loan or convert a Loan into a Term
SOFR Loan, Daily SOFR Loan, Term CORRA Loan, EURIBOR Loan or Bank Bill Rate Loan after any Borrower has given (or is deemed to have given)
a Notice of Continuation/Conversion; or
(c) the
prepayment or other payment (including after acceleration thereof) of any Term SOFR Loans, Term CORRA Loans, EURIBOR Loans or Bank Bill
Rate Loans on a day that is not the last day of the relevant Interest Period or Term CORRA Interest Period (including any payment in respect
thereof pursuant to Section 5.9),
including any loss or expense arising from the
liquidation or reemployment of funds obtained by it to maintain its Term SOFR Loans, Daily SOFR Loans, Term CORRA Loans, EURIBOR Loans
or Bank Bill Rate Loans or from fees payable to terminate the deposits from which such funds were obtained. The Borrowers shall also pay
any customary administrative fees charged by any Lender in connection with the foregoing.
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5.5 Inability
to Determine Applicable Interest Rate. If prior to the commencement of any Interest Period or Term CORRA Interest Period for a Term
SOFR Loan, Term CORRA Loan, EURIBOR Loan or Bank Bill Rate Loan (or, in the case of any Base Rate Loan bearing interest based on the Foreign
Base Rate, prior to the commencement of any calendar month) or in the case of any Daily SOFR Loan:
(a) the
Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining
Term SOFR, Term CORRA, EURIBOR or the Bank Bill Rate for such Interest Period or Term CORRA Interest Period (or, in the case of any Base
Rate Loan bearing interest based on the Foreign Base Rate, Term SOFR or EURIBOR for such calendar month) or SOFR (in the case of any Daily
SOFR Loan); or
(b) the
Agent is advised by Lenders whose Pro Rata Shares aggregate more than 50% that Term SOFR, Term CORRA, EURIBOR or the Bank Bill Rate for
such Interest Period or Term CORRA Interest Period (or, in the case of any Base Rate Loan bearing interest based on the Foreign Base Rate,
Term SOFR or EURIBOR for such calendar month) or SOFR (in the case of any Daily SOFR Loan), as applicable, will not adequately and fairly
reflect the cost to such Lenders of making or maintaining such Loans included for such Interest Period or Term CORRA Interest Period (or
of making or maintaining such Base Rate Loans or Daily SOFR Loans) (each of clauses (a) and (b), a “Market
Disruption Event”),
then the Agent shall promptly give notice thereof
to the Borrowers’ Agent and the applicable Lenders by telephone, facsimile transmission or PDF attachment to an e-mail or other
electronic communication as promptly as practicable thereafter and, until the Agent notifies the Borrowers’ Agent and the Lenders
that the circumstances giving rise to such notice no longer exist, (i) any Notice of Continuation/Conversion that requests the conversion
of any applicable Loan to, or continuation of any such Loan as, a Term SOFR Loan, a Daily SOFR Loan, a Term CORRA Loan, a EURIBOR Loan,
a Bank Bill Rate Loan or a Base Rate Loan bearing interest based on the Foreign Base Rate, as applicable, shall be ineffective and (A) such
Loan (other than any such Loan denominated in an Alternative Currency or any such ROW Swingline Loan or European Swingline Loan, as applicable)
shall be converted to or continued as, on the last day of the Interest Period or Term CORRA Interest Period applicable thereto, a Base
Rate Loan bearing interest based on the Base Rate or a Canadian Prime Rate Loan, as applicable, and (B) any such Loan denominated
in an Alternative Currency or any such ROW Swingline Loan or European Swingline Loan, as applicable, shall be prepaid in full, together
with interest accrued thereon, either on the last day of the Interest Period thereof, in the case of a Term SOFR Loan or EURIBOR Loan,
or immediately, in the case of a Base Rate Loan, and (ii) if any Notice of Borrowing requests a Term SOFR Loan, Daily SOFR Loan,
a Term CORRA Loan, a EURIBOR Loan, a Bank Bill Rate Loan or a Base Rate Loan bearing interest based on the Foreign Base Rate, (A) such
Loan (other than any such Loan denominated in an Alternative Currency or any such ROW Swingline Loan or European Swingline Loan, as applicable)
shall be made as a Base Rate Loan denominated in Dollars bearing interest based on the Base Rate or a Canadian Prime Rate Loan, as applicable,
and (B) any such Loan denominated in an Alternative Currency or any such ROW Swingline Loan or European Swingline Loan, as applicable,
shall not be made; provided that with respect to clause (i)(B) above, if the Borrowers are required to so prepay
any such Loans, then concurrently with such prepayment, the Borrowers shall borrow from the applicable Lenders (other than any ROW Swingline
Lender or European Swingline Lender, as applicable), in the Equivalent Amount in Dollars of such repayment, a Base Rate Loan denominated
in Dollars bearing interest based on the Base Rate. Upon receipt of such notice, the Borrowers may revoke any Notice of Borrowing or Notice
of Continuation/Conversion then submitted by them. During any period in which a Market Disruption Event is in effect, the Borrowers’
Agent may request that the Agent or the Lenders whose Pro Rata Shares aggregate more than 50%, as applicable, confirm that the circumstances
giving rise to the Market Disruption Event continue to be in effect; provided that (x) the Borrowers’ Agent shall not
be permitted to submit any such request more than once in any 30-day period and (y) nothing contained in this Section 5.5
or the failure to provide confirmation of the continued effectiveness of such Market Disruption Event shall in any way affect the Agent’s
right or the right of the applicable Lenders to provide any additional notices of a Market Disruption Event as provided in this Section 5.5.
If the Agent or such Lenders, as applicable, have not confirmed within 10 Business Days after request of such confirmation from the
Borrowers’ Agent that a Market Disruption Event has occurred, then such Market Disruption Event shall be deemed to be no longer
existing.
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5.6 Certificates
of Agent.
(a) If
the Agent or any Lender claims reimbursement or compensation under this Article V (other than under Section 5.1(g)),
the Agent or the affected Lender shall determine the amount thereof and shall deliver to the Borrowers’ Agent (with a copy to the
Agent, in the case of a Lender) a certificate setting forth in reasonable detail the amount payable to the Agent or the affected Lender,
and such certificate shall be conclusive and binding on the Borrowers in the absence of manifest error; provided that, except for
compensation under Section 5.1, the Borrowers shall not be obligated to pay the Agent or such Lender any compensation attributable
to any period prior to the date that is 90 days prior to the date on which the Agent or such Lender first gave notice to the Borrowers’
Agent of the circumstances entitling such Lender to compensation. The Borrowers shall pay such Lender the amount shown as due on any such
certificate within 30 days after receipt thereof.
(b) If
the Agent claims reimbursement or compensation under Section 5.1(g), the Agent shall determine the amount thereof and shall
deliver to the applicable Lender a certificate setting forth in reasonable detail the amount payable to the Agent, and such certificate
shall be conclusive and binding on such Lender in the absence of manifest error. Such Lender shall pay to the Agent the amount shown as
due on any such certificate within 30 days after receipt thereof.
5.7 Benchmark
Replacement. Notwithstanding anything to the contrary herein or in any other Loan Document:
(a) [Reserved].
(b) (i) Upon
the occurrence of a Benchmark Transition Event in respect of Dollars, the Benchmark Replacement will replace the then-current Dollar Benchmark
for all purposes hereunder and under any Loan Document in respect of any Dollar Benchmark setting at or after 5:00 p.m., New York City
time, on the fifth Business Day after the date notice of such Benchmark Replacement is provided to the Lenders without any amendment to,
or further action or consent of any other party to, this Agreement or any other Loan Document so long as the Agent has not received, by
such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders (and any such objection
shall be conclusive and binding absent manifest error).
(c) At
any time that the administrator of the then-current Dollar Benchmark has permanently or indefinitely ceased to provide such Benchmark
or such Benchmark has been announced by the regulatory supervisor for the administrator of such Benchmark pursuant to public statement
or publication of information to be no longer representative of the underlying market and economic reality that such Benchmark is intended
to measure and that representativeness will not be restored, the Borrowers’ Agent may revoke any request for a Borrowing of, conversion
to or continuation of Loans to be made, converted or continued that would bear interest by reference to such Benchmark until the receipt
of notice by Borrowers’ Agent from the Agent that a Benchmark Replacement has replaced such Benchmark, and, failing that, the Borrowers’
Agent will be deemed to have converted any such request into a request for a Borrowing of or conversion to Base Rate Loans. During the
period referenced in the foregoing sentence, the component of Base Rate based upon the Benchmark will not be used in any determination
of Base Rate.
(d) Notwithstanding
anything to the contrary in this Agreement or any other Loan Document, if the Agent determines (which determination shall be conclusive
absent manifest error), or the Borrowers’ Agent or the Required Lenders notify the Agent (with, in the case of the Required Lenders,
a copy to the Borrowers’ Agent) that the Borrowers’ Agent or the Required Lenders (as applicable) have determined that a Benchmark
Transition Event has occurred with respect to the applicable Benchmark for any Agreement Currency (other than Dollars), then, reasonably
promptly after such determination by the Agent or receipt by the Agent of such notice, as applicable, the Agent and the Borrowers’
Agent may amend this Agreement solely for the purpose of replacing the Benchmark for such currency in accordance with this Section 5.7
at the end of any Interest Period, relevant interest payment date or payment period for interest calculated, as applicable, with an alternate
benchmark rate giving due consideration to any evolving or then prevailing market convention for similar credit facilities syndicated
and agented in the United States and denominated in the applicable currency for such alternative benchmark and, in each case, including
any mathematical or other adjustments to such benchmark giving due consideration to any evolving or then prevailing market convention
for similar credit facilities syndicated and agented in the United States and denominated in the applicable currency for such Benchmark,
each of which adjustments or methods for calculating such adjustments shall be published on one or more information services as selected
by the Agent from time to time in its reasonable discretion and may be periodically updated (any such proposed rate, an “Alternative
Currency Benchmark Replacement”), and any such amendment shall become effective at 5:00 p.m., New York City time, on the fifth
Business Day after the Agent shall have posted such proposed amendment to all Lenders unless, prior to such time, Lenders constituting
the Required Lenders have delivered to the Agent written notice that such Required Lenders object to such amendment. Such Alternative
Currency Benchmark Replacement for the applicable currency shall be applied in a manner consistent with market practice; provided
that to the extent such market practice is not administratively feasible for the Agent, such Alternative Currency Benchmark Replacement
shall be applied in a manner as otherwise reasonably determined by the Agent.
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(e) If
no Alternative Currency Benchmark Replacement has been determined for the applicable currency and the circumstances under Section 5.7(d) above
exist, the Agent shall promptly so notify the Borrowers’ Agent and each Lender. Thereafter, the obligation of the Lenders to make
or maintain Term CORRA Loans, EURIBOR Loans or Bank Bill Rate Loans (or SONIA Rate Loans, if applicable) in such currency, as applicable,
shall be suspended (to the extent of the affected Types of Loans or Interest Periods or Term CORRA Interest Periods). Upon receipt of
such notice (i) any Notice of Continuation/Conversion that requests the conversion of any applicable Loan to, or continuation of
any such Loan as, a Term CORRA Loan, a EURIBOR Loan or a Bank Bill Rate Loan, as applicable, in such currency shall be ineffective and
any such Loan shall be prepaid in full, together with interest accrued thereon, on the last day of the Interest Period or Term CORRA Interest
Period with respect thereto and (ii) if any Notice of Borrowing requests a Term CORRA Loan, a EURIBOR Loan, a Bank Bill Rate Loan
or a SONIA Rate Loan, as applicable, in such currency, such loan shall not be made; provided that with respect to clause (i) above,
if any Borrower is required to so prepay any such Loans, then concurrently with such prepayment, such Borrower shall borrow from the applicable
Lenders (other than any ROW Swingline Lender or European Swingline Lender, as applicable), in the Equivalent Amount in Dollars of such
repayment, a Base Rate Loan denominated in Dollars bearing interest based on the Base Rate. Upon receipt of such notice, the Borrowers
may revoke any affected Notice of Borrowing or Notice of Continuation/Conversion then submitted by them.
(f) In
connection with the implementation and administration of a Benchmark Replacement or Alternative Currency Benchmark Replacement, the Agent
will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein
or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without
any further action or consent of any other party to this Agreement.
(g) The
Agent will promptly notify the Borrowers’ Agent and the Lenders of (i) the implementation of any Benchmark Replacement or Alternative
Currency Benchmark Replacement and (ii) the effectiveness of any Benchmark Replacement Conforming Changes. Any determination, decision
or election that may be made by the Agent or, if applicable, any Lender (or group of Lenders) pursuant to this Section 5.7,
including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance
or date and any decision to take or refrain from taking any action, will be conclusive and binding absent manifest error and may be made
in its or their sole discretion and without consent from any other party hereto, except, in each case, as expressly required pursuant
to this Section 5.7.
(h) At
any time (including in connection with the implementation of a Benchmark Replacement or Alternative Currency Benchmark Replacement), (i) if
any then-current Benchmark is a term rate (including Term SOFR, EURIBOR, Term CORRA or the Bank Bill Rate), then the Agent may remove
any tenor of such Benchmark that is unavailable or non-representative for Benchmark (including Benchmark Replacement) settings and (ii) the
Agent may reinstate any such previously removed tenor for Benchmark (including Benchmark Replacement) settings.
5.8 Survival.
The agreements and obligations of the Borrowers in this Article V shall survive the payment of all other Obligations and termination
of this Agreement.
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5.9 Assignment
of Commitments Under Certain Circumstances. In the event (a) any Lender requests compensation pursuant to Section 5.3,
(b) any Lender delivers a notice described in Section 5.2, (c) any Obligor is required to pay additional amounts
to any Lender or any Governmental Authority on account of any Lender pursuant to Section 5.1 and such Lender has declined or is
unable to designate a different Lending Office in accordance with Section 5.10(a), (d) any Lender is, or becomes an Affiliate
of a Person that is, engaged in the business in which the Borrowers are engaged, (e) any amount payable under the Loans Documents
by a European Borrower becomes not deductible from such French Borrower’s taxable income for French tax purposes by reason of that
amount being paid or accrued to a European Swingline Lender incorporated, domiciled or established in a Non-Cooperative Jurisdiction
or (f) any Lender fails to approve an additional Alternative Currency pursuant to Section 1.7 or delivers a notice
that it will no longer be able to extend Loans in an Alternative Currency approved pursuant to Section 1.7, the Borrowers
may, at their sole expense and effort (including with respect to the processing fee referred to in Section 12.2(a)), upon
notice to such Lender and the Agent, require such Lender to transfer and assign, without recourse (in accordance with and subject to
the restrictions contained in Section 12.2), all of its interests, rights and obligations under the Loan Documents to an
Eligible Assignee that shall assume such assigned obligations (which assignee may be another Lender, if a Lender accepts such assignment),
provided that (i) such assignment shall not conflict with any law, rule or regulation or order of any court or other
Governmental Authority having jurisdiction, (ii) except in the case of clause (d) above, no Event of Default
shall have occurred and be continuing, (iii) the Borrowers or such assignee shall have paid to such Lender in immediately available
funds an amount equal to the sum of 100% of the principal of and interest accrued to the date of such payment on the outstanding Loans
of such Lender, plus all fees and other amounts accrued for the account of such Lender hereunder (including any amounts under Sections 5.1,
5.2, 5.3 and 5.4), (iv) such assignment is consummated within 180 days after the date on which the Borrowers’
right under this Section 5.9 arises, and (v) if the consent of the Agent, any Letter of Credit Issuer or any Swingline
Lender is required pursuant to Section 12.2, such consents are obtained; provided, further, that if prior
to any such assignment the circumstances or event that resulted in such Lender’s request or notice under Section 5.2
or 5.3, demand for additional amounts under Section 5.1 or failure to approve or notice of inability to extend Loans
in an Alternative Currency under Section 1.7 or the Borrowers’ right to replace any European Swingline Lender under
clause (e) above, as the case may be, shall cease to exist or become inapplicable for any reason, or if such Lender shall
waive its rights in respect of such circumstances or event under Section 1.7, 5.1, 5.2 or 5.3,
as the case may be, then such Lender shall not thereafter be required to make such assignment hereunder. In the event that a replaced
Lender does not execute an Assignment and Acceptance pursuant to Section 12.2 within two Business Days after receipt
by such replaced Lender of notice of replacement pursuant to this Section 5.9 and presentation to such replaced Lender of
an Assignment and Acceptance evidencing an assignment pursuant to this Section 5.9, the Borrowers shall be entitled (but
not obligated), upon receipt by the replaced Lender of all amounts required to be paid under this Section 5.9, to execute
such an Assignment and Acceptance on behalf of such replaced Lender, and any such Assignment and Acceptance so executed by the Borrowers,
the replacement Lender and, to the extent required pursuant to Section 12.2, the Agent shall be effective for purposes of
this Section 5.9 and Section 12.2.
5.10 Designation
of a Different Lending Office. Each Lender may make any Borrowing to a Borrower through any Lending Office, provided that (i) the
exercise of this option shall not affect the obligation of such Borrower to repay the Borrowing in accordance with the terms of this
Agreement and (ii) in the case of any Borrowing made to a French Borrower, that such Lending Office shall not be established in
a Non-Cooperative Jurisdiction, unless the prior consent of such French Borrower has been obtained. If any Lender requests compensation
under Section 5.3, or requires a Borrower to pay any Indemnified Taxes or additional amounts to any Lender, any Letter of
Credit Issuer, or any Governmental Authority for the account of any Lender or any Letter of Credit Issuer pursuant to Section 5.1,
or if any Lender gives a notice pursuant to Section 5.3, then at the request of the Company such Lender or any Letter of
Credit Issuer, as applicable, use reasonable efforts to designate a different Lending Office for funding or booking its Loans hereunder
or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender
or any Letter of Credit Issuer, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 5.1
or 5.3, as the case may be, in the future, or eliminate the need for the notice pursuant to Section 5.2, as applicable,
and (ii) in each case, would not subject such Lender or any Letter of Credit Issuer, as the case may be, to any unreimbursed cost
or expense and would not otherwise be disadvantageous to such Lender or any Letter of Credit Issuer, as the case may be. The Company
hereby agrees to pay (or to cause the applicable Borrower to pay) all reasonable costs and expenses incurred by any Lender or any Letter
of Credit Issuer in connection with any such designation or assignment.
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ARTICLE VI
GENERAL
WARRANTIES AND REPRESENTATIONS
Holdings, each Borrower and
each Guarantor warrants and represents to the Agent and the Lenders that:
6.1 Authorization,
Validity, and Enforceability of this Agreement and the Loan Documents.
(a) Each
Obligor (i) has the power and authority to execute, deliver and perform this Agreement and the other Loan Documents to which it is
a party, to incur the Obligations, and to grant the Agent’s Liens and (ii) has taken all necessary corporate, limited liability
company or partnership, as applicable, action (including obtaining approval of its stockholders if necessary) to authorize its execution,
delivery and performance of this Agreement and the other Loan Documents to which it is a party.
(b) This
Agreement and the other Loan Documents to which it is a party have been duly executed and delivered by each Obligor party thereto, and
constitute the legal, valid and binding obligations of each such Obligor, enforceable against it in accordance with their respective terms,
subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, winding up, moratorium and other similar laws
relating to or affecting creditors’ rights generally and general equitable principles (whether considered in a proceeding in equity
or at law).
(c) Each
Obligor’s execution, delivery, and performance of this Agreement and the other Loan Documents to which it is a party, and the consummation
of the Transactions, do not and will not (i) conflict with, or constitute a violation or breach of, the terms of (x) any contract,
mortgage, lease, agreement, indenture, or instrument to which such Obligor or any of its Restricted Subsidiaries is a party or which is
binding upon it, (y) any Requirement of Law applicable to such Obligor or any of its Restricted Subsidiaries, or (z) any Charter
Documents of such Obligor or any of its Restricted Subsidiaries or (ii) result in the imposition of any Lien (other than the Liens
created by the Loan Documents) upon the property of such Obligor or any of its Restricted Subsidiaries by reason of any of the foregoing,
except in the case of clause (i) or (ii) above, as would not reasonably be expected to have a Material Adverse
Effect.
6.2 Validity
and Priority of Security Interest. Upon execution and delivery thereof by the parties thereto, the Security Documents will be effective
to create legal and valid Liens on all the applicable Collateral in favor of the Agent for the benefit of the Agent, the Letter of Credit
Issuers, the Lenders and the other Secured Parties, except as may be limited by applicable foreign and domestic bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, general
equitable principles (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing and,
upon the taking of such actions set forth in the Security Documents, such Liens (a) constitute perfected and continuing Liens on
all of the applicable Collateral, (b) have priority over all other Liens on the Collateral, except for (i) Liens on the Collateral
pursuant to the TLB Credit Agreement and the security documents contemplated therein and (ii) Permitted Priority Liens and Permitted
Liens permitted under Section 8.2(c) or Section 8.2(ii) that are pari passu in priority with
the Agent’s Liens, and (c) are enforceable against each Obligor granting such Liens.
6.3 Organization
and Qualification. Each Obligor (a) is duly organized and validly existing and, to the extent applicable, in good standing under
the laws of the jurisdiction of its organization (except as a result of a transaction permitted under Section 8.5(b)), other
than, solely in the case of Obligors that are not Borrowers, in such jurisdictions where the failure to be so in good standing would not
reasonably be expected to have a Material Adverse Effect, (b) is duly qualified as a foreign corporation, partnership or limited
liability company, as applicable, in each jurisdiction where the conduct of its business requires such qualification, other than such
jurisdictions in which the failure to be so qualified would not reasonably be expected to have a Material Adverse Effect, and (c) has
all requisite power and authority to conduct its business and to own its property, except to the extent that the failure to have such
power and authority would not reasonably be expected to have a Material Adverse Effect.
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6.4 Subsidiaries.
Schedule 6.4 is a correct and complete list in all material respects of each and all of Holdings’ Subsidiaries as of
the Agreement Date, the jurisdiction of their organization and the direct or indirect ownership interest of Holdings therein.
6.5 Financial
Statements and Borrowing Base Certificate.
(a) Holdings
has delivered to the Agent (for distribution to the Lenders) (i) the audited consolidated balance sheet of the Consolidated Parties
as of December 31, 2024, and the related consolidated statements of operations, shareholders’ equity and cash flows, accompanied
by the report thereon of Holdings’ independent certified public accountants, Ernst & Young LLP and (ii) the unaudited
consolidated balance sheet of the Consolidated Parties as of March 31, 2025, and the related consolidated statements of operations,
shareholders’ equity and cash flows. All such financial statements, including the schedules and notes thereto, have been prepared
in accordance with GAAP in all material respects and present fairly, in all material respects, the Consolidated Parties’ financial
position as at the dates thereof and their results of operations for the periods then ended, subject, in the case of the unaudited financial
statements referred to in clause (ii), to normal year-end adjustment and the absence of footnotes.
(b) The
latest Borrowing Base Certificate furnished to the Agent presents accurately and fairly in all material respects each Borrowing Base and
the calculation thereof as at the date thereof.
6.6 Capitalization.
Schedule 6.6 sets forth, in each case as of the Agreement Date, the number of authorized shares of capital stock or similar
equity interests of each of Holdings’ Subsidiaries, the number of such shares or other interests that are outstanding, and the names
of the record and beneficial owners of all such shares of Holdings’ Subsidiaries. All such issued and outstanding shares or other
interests are validly issued, fully paid and non-assessable, in each case, to the extent applicable.
6.7 Solvency.
As of the Agreement Date, Holdings and its Subsidiaries (on a consolidated basis) are Solvent prior to and after giving effect to any
Borrowings and the issuance of any Letters of Credit.
6.8 Proprietary
Rights.
(a) To
Holdings’ and the Borrowers’ knowledge, (i) the conduct of the businesses of Holdings and its Restricted Subsidiaries
as presently conducted do not infringe on or conflict with any other Person’s intellectual property rights, and (ii) no other
Person’s property infringes on or conflicts with the Proprietary Rights owned by Holdings or its Restricted Subsidiaries, in each
case, except as would not reasonably be expected to have a Material Adverse Effect.
(b) Holdings
and each of its Restricted Subsidiaries owns or is licensed or otherwise has the right to use all Proprietary Rights that are reasonably
necessary for the operation of its businesses as presently conducted, except as would not reasonably be expected to have a Material Adverse
Effect. No claim or litigation regarding any of the foregoing is pending which would reasonably be expected to have a Material Adverse
Effect.
6.9 Litigation.
Except as set forth on Schedule 6.9, there is no pending, or to Holdings’, any Borrower’s or any Guarantor’s
knowledge, threatened action, suit, proceeding, or counterclaim by any Person, or to Holdings’, any Borrower’s or any Guarantor’s
knowledge, investigation by any Governmental Authority, which, in any case, either (a) would reasonably be expected to have a Material
Adverse Effect or (b) is so pending or threatened at any time on or prior to the Closing Date and purports to affect the legality,
validity or enforceability of this Agreement or any other Loan Document or the transactions contemplated hereby or thereby.
6.10 Labor
Disputes. There is no strike, work stoppage, unfair labor practice claim, or other labor dispute pending or, to Holdings’, any
Borrower’s or any Guarantor’s knowledge, reasonably expected to be commenced against Holdings or any of its Restricted Subsidiaries,
which, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect.
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6.11 Environmental
Laws. Except as set forth on Schedule 6.11 and except for any matters that, individually or in the aggregate, would not
reasonably be expected to have a Material Adverse Effect:
(a) Holdings
and its Restricted Subsidiaries are in compliance with all Environmental Laws.
(b) Each
of Holdings and its Restricted Subsidiaries has obtained all permits necessary for their current operations under Environmental Laws,
all such permits are in good standing, each of Holdings and its Restricted Subsidiaries are in compliance with all terms and conditions
of such permits and none of such permits are, since the Closing Date, subject to any modification or revocation.
(c) (i) Neither
Holdings nor any of its Restricted Subsidiaries, nor, to Holdings’ or any Borrower’s knowledge, any of its predecessors in
interest with respect to the Real Estate has stored, treated or Released any hazardous waste or Contaminant, which storage, treatment
or Release would reasonably be expected to result in a claim against or liability of Holdings or any Restricted Subsidiary under any Environmental
Law and (ii) neither Holdings nor any Restricted Subsidiary nor any of the presently owned or leased real property or presently conducted
operations, nor, to any of Holdings’ or any Borrower’s knowledge, its previously owned or leased real property or prior operations,
is subject to any claim or liability arising out of or in connection with any (x) Environmental Law or (y) Release or threatened
Release of a Contaminant.
(d) None
of the present or, to any of Holdings’ or any Borrower’s knowledge, former operations or real estate interests of Holdings
or any of its Restricted Subsidiaries is the subject of any investigation by any Governmental Authority against or involving Holdings
or any of its Restricted Subsidiaries evaluating whether any remedial action is needed to respond to a Release or threatened Release of
a Contaminant.
6.12 No
Violation of Law. Neither Holdings nor any of its Restricted Subsidiaries is in violation of any Law, judgment, order or decree applicable
to it, where such violation would reasonably be expected to have a Material Adverse Effect. No Australian Borrower has contravened or
will contravene part 2J.3 of the Corporations Act in connection with its execution, delivery or performance of any Loan Document in any
material respect.
6.13 No
Default. Neither Holdings nor any of its Restricted Subsidiaries is in default with respect to any note, indenture, loan agreement,
mortgage, lease, deed, or other agreement to which Holdings or such Restricted Subsidiary is a party or by which it is bound except as
would not reasonably be expected to have a Material Adverse Effect.
6.14 ERISA
Compliance. Except as specifically disclosed in Schedule 6.14:
(a) Except
as would not, either individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, each Plan is in
compliance with the applicable provisions of ERISA, the Code, the PBA, the Income Tax Act (Canada) and other federal, state or
provincial law or other applicable Law. Each Plan which is intended to qualify under Section 401(a) of the Code has received
a favorable determination letter from the IRS and, to the knowledge of the Obligors, nothing has occurred which would cause the loss of
such qualification. Each Borrower, each Guarantor and each ERISA Affiliate, as applicable, has made all required contributions to any
Plan subject to Section 412 or 430 of the Code or Section 302 or 303 of ERISA, the PBA or other applicable Laws when due, and
no application for a funding waiver or an extension of any amortization period (pursuant to Section 412 of the Code, or otherwise)
has been made with respect to any Plan.
(b) There
are no pending or, to the knowledge of Holdings and the other Obligors, threatened, claims, actions or lawsuits, or action by any Governmental
Authority, with respect to any Plan which has resulted or would reasonably be expected to result in a Material Adverse Effect. To the
knowledge of Holdings, there has been no prohibited transaction or violation of fiduciary responsibility by an Obligor, or, to the knowledge
of any Obligor, any administrator, trustee or their respective agents with respect to any Plan which has resulted or would reasonably
be expected to result in a Material Adverse Effect.
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(c) No
Pension Event exists with respect to any Obligor or any of its Subsidiaries that would reasonably be expected to have a Material Adverse
Effect. No Lien exists in respect of any Obligor or its Subsidiaries or their property in favor of any Plan or PBGC (save for contribution
amounts not yet due).
(d) (i) No
ERISA Event or Pension Event has occurred or is reasonably expected to occur that would reasonably be expected to have a Material Adverse
Effect; (ii) no Pension Plan has any Unfunded Pension Liability that would reasonably be expected to have a Material Adverse Effect;
(iii) neither any Borrower nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability under Title IV of
ERISA with respect to any Pension Plan (other than premiums due and not delinquent under Section 4007 of ERISA) that would reasonably
be expected to have a Material Adverse Effect; and (iv) neither any Borrower nor any ERISA Affiliate has incurred, or reasonably
expects to incur, any liability (and no event has occurred which, with the giving of notice under Section 4219 of ERISA, would result
in such liability) under Section 4201 of ERISA with respect to a Multi-employer Plan that would reasonably be expected to have a
Material Adverse Effect.
(e) No
Borrower is or will be using “plan assets” (within the meaning of 29 CFR § 2510.3-101, as modified by Section 3(42)
of ERISA) of one or more Plans in connection with the Loans or the Commitments.
6.15 Taxes.
Except as set forth on Schedule 6.15, each of Holdings and its Restricted Subsidiaries has filed (or has been included in)
all United States and Canadian federal and provincial income Tax returns and all other material Tax returns that are required to be filed,
and has paid all federal, provincial and other material Taxes and other governmental charges levied or imposed upon each of them or their
properties, income or assets otherwise due and payable, (a) except any such Taxes or charges which are being contested in good faith
and by appropriate proceedings diligently conducted, if Holdings or any such Restricted Subsidiary has set aside on its books adequate
reserves therefor in conformity with GAAP, or (b) unless such failure to file or pay such Taxes, individually or in the aggregate,
would not reasonably be expected to have a Material Adverse Effect. There is no proposed tax assessment against Holdings or any Restricted
Subsidiary that would, if made, reasonably be expected to have a Material Adverse Effect.
6.16 Regulated
Entities. None of Holdings or any Obligor is an “Investment Company” or a company “controlled” by an “Investment
Company” within the meaning of the Investment Company Act of 1940. None of Holdings or any Obligor is subject to regulation under
any federal or state statute or regulation (other than Regulation X of the Federal Reserve Board) limiting its ability to incur indebtedness
or issue Guarantees as contemplated hereby.
6.17 Use
of Proceeds; Margin Regulations. The proceeds of the Loans are to be used to pay related fees and expenses of the Transactions and
to finance ongoing working capital needs (including purchases of Equipment) and for general corporate purposes (including Permitted Acquisitions
and repayment or prepayment of Indebtedness) of the U.S. Borrowers, the ROW Borrowers, the Canadian Borrowers, the European Borrowers
and the ANZ Borrowers. No part of the proceeds of any Loans will be used by Holdings or any Subsidiary for any purpose that violates the
provisions of the Regulations of the Board of Governors of the Federal Reserve System, including Regulation T, Regulation U or Regulation
X. For the avoidance of doubt, no part of the proceeds of any Loans shall be used directly or indirectly for any purpose that violates
the financial assistance prohibitions within the meaning of Article L. 225-216 of the French Code de commerce and/or
would constitute or lead to a misuse of corporate assets within the meaning of Article L. 241-3, L. 242-6 or L. 244-1 of
the French Code de commerce or any other law or regulations having the same effect, as interpreted by French courts, in each case
in any material respect.
6.18 No
Material Adverse Effect. No Material Adverse Effect has occurred since the date of the audited Financial Statements delivered to the
Lenders pursuant to Section 6.5(a).
6.19 No
Material Misstatements. None of the statements contained in any exhibit, report, written statement or certificate furnished by or
on behalf of Holdings or any Restricted Subsidiary in connection with the Loan Documents (excluding projections, estimates, pro forma
information and forecasts) as of the date furnished, taken as a whole and taking into account all documents filed or furnished by Holdings
or any Borrower to the SEC, contains any untrue statement of a material fact or omits any material fact necessary to make the statements
made therein, in light of the circumstances under which they are made, not materially misleading as of the time when made or delivered.
No representation or warranty is made herein concerning any projections, estimates, pro forma information, or forecasts, and the assumptions
on which they were based, or concerning any information of a general economic nature or general information about the Consolidated Parties’
industry contained in any information, reports, financial statements, exhibits or schedules (it being understood that such projections,
estimates, pro forma information and forecasts are subject to significant contingencies and uncertainties, many of which are beyond the
control of any Consolidated Party, and no assurances can be given that such projections, estimates, pro forma information and forecasts
will be realized), except that such projections, estimates, pro forma information and forecasts, as at the date they were prepared, were
based on assumptions of the management of Holdings believed by the management of Holdings to be reasonable at the time submitted to the
Lenders.
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6.20 Government
Authorization. No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental
Authority or other Person is required in connection with the execution, delivery or performance by, or enforcement against, any Obligor
of this Agreement or any other Loan Document, other than (a) those that have been obtained or made and are in full force and effect,
(b) those required to perfect the Liens created pursuant to the Security Documents, and (c) where failure to obtain, effect
or make any such approval, consent, exemption, authorization, or other action, notice or filing would not reasonably be expected to have
a Material Adverse Effect.
6.21 Sanctions.
Holdings and each Restricted Subsidiary are not, nor, to Holdings’ knowledge, are any of them owned or controlled by any Person
that is: (a) a Sanctioned Person, or (b) located, organized or resident in a Sanctioned Country.
6.22 Bail-In.
Neither Holdings nor any other Obligor is an Affected Financial Institution.
6.23 Beneficial
Ownership Certification. As of the Agreement Date, to the knowledge of Holdings and the Borrowers, the information included in the
Beneficial Ownership Certification is true and correct.
6.24 Belgian
SME Financing Act. The Belgian Act of 21 December 2013 regulating the financing for small and medium sized enterprises does not
apply to the transactions contemplated by the Loan Documents or any other agreement, arrangement or document entered into, made or executed
in anticipation of, under or in connection with any Loan Document.
6.25 Related
Parties. No Obligor subject to the Corporations Act has contravened or will contravene section 208 or section 209 of the Corporations
Act in any material respect by executing and delivering any Loan Document or performing its obligations thereunder or participating in
any transaction in connection with any Loan Document.
ARTICLE VII
AFFIRMATIVE
COVENANTS
Holdings and each other Obligor
or Secured Obligor, as applicable, covenant to the Agent and each Lender that, from and after the Agreement Date, so long as any of the
Commitments remain in effect, and thereafter until Full Payment of the Obligations:
7.1 Books
and Records. Holdings shall maintain, and shall cause each of the Restricted Subsidiaries to maintain, at all times, proper books
and records and accounts in a manner to allow financial statements to be prepared in conformity with GAAP (or applicable local standards)
in all material respects in respect of all material financial transactions and matters involving all material assets, business and activities
of Holdings and its Restricted Subsidiaries, taken as a whole. Holdings shall maintain, and shall cause each of its Restricted Subsidiaries
to maintain, at all times books and records pertaining to the Collateral in such detail, form and scope as is consistent in all material
respects with good business practice (as determined in good faith by Holdings).
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7.2 Financial
Information. Holdings shall furnish to the Agent (and the Agent agrees to promptly deliver or make available to the Lenders):
(a) As
soon as available, but in any event not later than 90 days after the close of each Fiscal Year (commencing with the Fiscal Year ending
December 31, 2025), audited consolidated balance sheets of the Consolidated Parties, as at the end of such Fiscal Year, and the related
consolidated statements of operations, shareholders’ equity and cash flows, setting forth, in each case, in comparative form the
figures for and as of the end of the previous Fiscal Year, plus a customary narrative review for such Fiscal Year, fairly presenting in
all material respects the financial position and the results of operations of the Consolidated Parties as at the date thereof and for
the Fiscal Year then ended, and prepared in accordance with GAAP in all material respects. Such consolidated statements shall be reported
on by independent public accountants of recognized national standing (without a “going concern” or like qualification or exception,
or qualification arising out of the scope of the audit unless such qualification or exception is solely with respect to, or resulting
solely from, (i) an upcoming maturity date of any Indebtedness, (ii) the activities, operations, financial results, assets or
liabilities of any Unrestricted Subsidiaries, (iii) any actual or potential inability to satisfy any financial maintenance covenant
included in any Indebtedness of Holdings or any Subsidiary on a future date or in a future period) (iv) any change in accounting
principles or practice reflecting a change in GAAP and required or approved by such independent public accountants and (v) an “emphasis
of matter” paragraph);
(b) As
soon as available, but in any event not later than 45 days after the end of each of the first three Fiscal Quarters of each Fiscal
Year (commencing with the Fiscal Quarter ending June 30, 2025), unaudited consolidated balance sheets of the Consolidated Parties,
as at the end of such Fiscal Quarter, and the related unaudited consolidated statements of operations and comprehensive income and cash
flows of the Consolidated Parties for such Fiscal Quarter and for the period from the beginning of the Fiscal Year to the end of such
Fiscal Quarter, setting forth, in each case, in reasonable detail, in comparative form, the figures for and as of the corresponding period
in the prior Fiscal Year, and prepared in all material respects in conformity with GAAP, subject to normal year-end adjustments and the
absence of footnotes, and certified by a Responsible Officer of Holdings as being prepared in all material respects in conformity with
GAAP and fairly presenting in all material respects the Consolidated Parties’ financial position as at the dates thereof and their
results of operations for the periods then ended, subject to normal year-end adjustments and the absence of footnotes;
(c) As
soon as available, but in any event not later than 60 days after the beginning of each Fiscal Year (or such longer period as is reasonably
acceptable to the Agent), annual forecasts (to include forecasted consolidated balance sheets, and the related forecasted consolidated
statements of operations and cash flows, and U.S. Borrowing Base, Canadian Borrowing Base, U.S. Availability and Canadian Availability
projections) for the Consolidated Parties as at the end of and for each Fiscal Quarter of such Fiscal Year;
(d) Substantially
concurrently with the delivery of the annual audited Financial Statements pursuant to Section 7.2(a) and the quarterly
Financial Statements pursuant to Section 7.2(b), a duly completed Compliance Certificate signed by a Responsible Officer of
Holdings; and
(e) Such
additional information as the Agent on its own behalf or on behalf of any Lender (acting through the Agent) may from time to time reasonably
request regarding the financial and business affairs of any Obligor or any of its Subsidiaries; provided that nothing in this Section 7.2(e) shall
require Holdings or its Subsidiaries to disclose any document, information or other matter (i) that constitutes non-financial trade
secrets or non-financial proprietary information of Holdings or its Subsidiaries, (ii) in respect of which disclosure to the Agent
or any Lender (or any of their respective representatives or contractors) is prohibited by applicable Laws, (iii) that is subject
to attorney-client or similar privilege or constitutes attorney work product or (iv) in respect of which the Borrowers or any of
their Subsidiaries owes confidentiality obligations to any third party (provided such confidentiality obligations were not entered
into in contemplation of the requirements of this Section 7.2(e).
Documents required to be delivered pursuant to
Section 7.2(a) or (b) (to the extent any such documents are included in materials otherwise filed with the SEC) may be
delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which such documents are (i) posted
on Holdings’ behalf on an Internet or intranet website, if any, to which each Lender and the Agent have access (whether a commercial,
third-party website or whether sponsored by the Agent); or (ii) available on the SEC’s website on the Internet at www.sec.gov;
provided that Holdings shall notify the Agent (which shall notify each Lender) of the posting of any such documents.
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7.3 Certificates;
Other Information.
Holdings, the Borrowers or
the Guarantors shall notify the Agent (and the Agent agrees to promptly distribute or make available to the Lenders) in writing of the
following matters at the following times:
(a) promptly
after a Responsible Officer knows of any Default or Event of Default, which notice shall specify the nature thereof and what action Holdings
proposes to take with respect thereto;
(b) promptly
after a Responsible Officer knows of any action, suit, or proceeding, by any Person, in each case affecting any Obligor or any of the
Restricted Subsidiaries that would reasonably be expected to have a Material Adverse Effect;
(c) promptly,
and in any event within 30 days, after (or, in the case of any Canadian Obligor, at least 15 days prior to) (or, in each case, within
such time period as may be agreed by the Agent) any change in any Obligor’s jurisdiction of incorporation or organization (or, in
the case of a U.S. Obligor, chief executive office, if not a registered organization), name as it appears in the jurisdiction of its incorporation
or other organization, type of entity, form of organization or, in the case of a Canadian Obligor, location of its chief executive office
or registered office, each as applicable;
(d) promptly
after a Responsible Officer of any Obligor or any ERISA Affiliate knows that an ERISA Event or a Pension Event has occurred, that, alone
or together, would reasonably be expected to have a Material Adverse Effect, and, in the case of such a Pension Event, any action taken
(or threatened in writing) by the CRA or the FSRA with respect thereto; and
(e) in
the event that Canadian Availability is less than Cdn $100,000,000 (other than as a result of cancellation of Commitments hereunder),
the Borrowers’ Agent shall notify the Agent promptly after a Responsible Officer of any Obligor knows of any Unfunded Pension Liability
in respect of any Pension Plan referred to in clause (b) of the definition thereof in an amount exceeding Cdn $25,000,000.
7.4 Collateral
Reporting.
(a)
(i) The
Secured Obligors will furnish to the Agent (and the Agent agrees to promptly distribute or make available to the Lenders) (x) a Borrowing
Base Certificate prepared as of the last Business Day of each Fiscal Quarter (commencing with the Fiscal Quarter ending June 30,
2025) by the close of business on the 25th day of the following calendar month, (y) for each calendar month in which the daily
Combined Availability on any day is less than 65% of the daily Maximum Revolver Amount, a Borrowing Base Certificate prepared as of the
last Business Day of such month by the close of business on the 25th day of the following calendar month; provided that notwithstanding
the foregoing, the Secured Obligors shall not be required to furnish to the Agent a Borrowing Base Certificate pursuant to this clause
(y) for so long as on each day of such month (A) the daily Combined Availability is greater than or equal to 25% of the
daily Maximum Revolver Amount, (B) the Suppressed Availability is greater than or equal to 75% of the Maximum Revolver Amount and
(C) the Borrowers’ Agent has at least two of the following corporate credit ratings: (1) equal to or higher than Ba1 (or
the equivalent) from Moody’s, (2) equal to or higher than BB+ (or the equivalent) from Fitch and (3) equal to or higher
than BB+ (or the equivalent) from S&P, and (z) a Borrowing Base Certificate prepared as of the effective date of each Appraisal
and delivered to the Agent substantially contemporaneously with the delivery of such Appraisal to the Agent. The Agent and the Lenders
acknowledge and agree that the applicable Obligors may deliver updated Borrowing Base Certificates (which the Agent agrees to promptly
distribute or make available to the Lenders) on a more frequent basis at such Obligors’ option.
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(ii) At
any time and from time to time on or after the consummation of an acquisition or investment permitted hereunder, the applicable Secured
Obligors are entitled to calculate the Borrowing Base on a pro forma basis to give effect to such acquisition or investment (including
an acquisition of or investment in Inventory) for which no Appraisal as to the acquired Rental Equipment is available, and to adjust the
Borrowing Base accordingly, prior to the completion of any Appraisal; provided that the aggregate amount of all such adjustments
pursuant to this clause (ii) shall not exceed $1,250,000,000 prior to the date that an Appraisal in respect of or that
includes such Rental Equipment is delivered (and no such adjustment shall be permitted after delivery of such Appraisal).
(iii) To
the extent Holdings or any of its Subsidiaries effects a transaction permitted hereunder on the basis of Specified Availability and relies
on the inclusion of Unrestricted Cash as a component of Specified Availability in order to meet the relevant test or threshold, the Borrowers’
Agent will deliver to the Agent, prior to or substantially concurrently with such transaction, a certificate showing the calculation of
Specified Availability and attaching a summary report showing the Unrestricted Cash of Holdings, the Borrowers and the Restricted Subsidiaries
as of a date that is no more than three Business Days prior to the date of such certificate.
(b) The
Secured Obligors will furnish to the Agent (and the Agent shall distribute or make available to each Lender that has made a request for
such information through the Agent), as soon as reasonably practicable following the Agent’s request, such other reports as to the
Collateral of the applicable Obligors as the Agent shall reasonably request from time to time.
(c) If
any of any Borrower’s or Guarantor’s records or reports of the Collateral are prepared by an accounting service or other agent,
such Obligor hereby authorizes such service or agent to deliver such records, reports, and related documents to the Agent.
7.5 Filing
of Tax Returns; Payment of Taxes. Holdings shall, and shall cause each of its Restricted Subsidiaries to, (a) file when due all
United States and Canadian federal, state and provincial Tax returns, as applicable, and all other material Tax returns which it is required
to file; and (b) pay, or provide for the payment of, when due, all its material Taxes, except where (i) the amount or validity
thereof is being contested in good faith and by appropriate proceedings diligently conducted, provided that adequate reserves with
respect thereto are maintained on the books of Holdings or such Restricted Subsidiary in conformity with GAAP or (ii) such failure
to file such Tax returns or pay any such material Taxes, individually or in the aggregate, would not reasonably be expected to have a
Material Adverse Effect.
7.6 Legal
Existence and Good Standing. Holdings shall, and shall cause each of its Restricted Subsidiaries to, (a) maintain its legal
existence and, to the extent applicable, good standing in its jurisdiction of organization (except as a result of a transaction permitted
under Section 8.5(b)), and (b) take all reasonable action to maintain all rights, privileges and franchises necessary
or desirable in the normal conduct of the business of Holdings and its Restricted Subsidiaries, taken as a whole, except, other than in
the case of the legal existence of the Company under clause (a), where the failure to do so would not reasonably be expected
to have a Material Adverse Effect.
7.7 Compliance
with Law; Maintenance of License. Holdings shall comply, and shall cause each of its Restricted Subsidiaries to comply, with all Requirements
of Law of any Governmental Authority having jurisdiction over it or its business, except where noncompliance would not reasonably be expected
to have a Material Adverse Effect; provided that this sentence shall not apply to (a) laws related to Taxes, which are the
subject of Section 7.5, (b) Environmental Laws, which are the subject of Section 7.13, (c) anti-money
laundering laws, which are the subject of Section 7.19 and (d) ERISA and the PBA, which is the subject of Section 7.14.
Holdings shall, and shall cause each of its Restricted Subsidiaries to, take all reasonable action to obtain and maintain all licenses,
permits, and governmental authorizations necessary to own its property and to conduct its business, except where the failure to so obtain
and maintain such licenses, permits, and governmental authorizations would not reasonably be expected to have a Material Adverse Effect.
7.8 Maintenance
of Property. Holdings shall, and shall cause each of its Restricted Subsidiaries to, maintain all of its material tangible property
necessary and useful in the conduct of its business, taken as a whole, in good operating condition and repair (or, in the case of Rental
Equipment and Inventory that constitutes Collateral, in saleable, useable or rentable condition), except where failure to do so would
not reasonably be expected to have a Material Adverse Effect.
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7.9 Inspection.
(a) Holdings
shall, and shall cause each of its Restricted Subsidiaries to, permit representatives of the Agent (at the expense of the Borrowers) to
visit and inspect any of its properties, to examine its corporate, financial and operating records, and, to the extent reasonable, make
copies thereof or abstracts therefrom, to examine and audit the Collateral, and to discuss its affairs, finances and accounts with its
directors, officers and independent public accountants (subject to reasonable requirements of confidentiality, including requirements
imposed by law or by contract), in each case at reasonable times during normal business hours, upon reasonable advance notice to the Borrowers’
Agent; provided, however, (i) representatives of Holdings may be present during any such visits, discussions and inspections,
and (ii) any visit or inspection conducted pursuant to this Section 7.9(a) shall be limited to once per 12-month
period in the absence of the occurrence and continuance of an Event of Default; provided, further, that if Specified Availability
is less than 20% of the Maximum Revolver Amount for a period of 20 consecutive Business Days at any time during any 12-month period,
the Agent may (at the expense of the Borrowers) conduct one additional visit or inspection during such 12-month period. The Agent may
in its reasonable discretion waive any visit or inspection conducted pursuant to this Section 7.9(a).
(b) The
U.S. Obligors and, subject to clause (d) below, the Canadian Obligors, will grant access to the Agent and its representatives
and independent contractors to such Person’s premises, books, records, accounts, Inventory and Rental Equipment in order to
enable the Agent to obtain an Appraisal of the Rental Equipment at reasonable times during normal business hours and upon reasonable prior
notice that the Agent may request in its discretion, independently of or in connection with the visits and inspections provided for in
clause (a) above. The Agent shall select any and all appraisers with the consent (not to be unreasonably withheld) of
the Borrowers’ Agent (unless an Event of Default exists, in which case the Agent shall be entitled to select such appraisers in
its sole discretion), and the Borrowers’ Agent hereby consents to the use of Rouse Asset Services.
(c) Absent
the occurrence of an Event of Default, during each period of 12 consecutive calendar months commencing on or after the Agreement Date,
the Agent shall, at the Borrowers’ expense, conduct Appraisals of the Rental Equipment of the U.S. Obligors not more than one time
during any such period; provided, that if at any time during such period (i) Specified Availability is less than 20% of the
Maximum Revolver Amount for a period of 20 consecutive Business Days or (ii) the Company or any of its Subsidiaries enters into
an Equipment Securitization Transaction (x) at a time when Suppressed Availability is less than zero or (y) that would result
in Suppressed Availability being less than zero, then, in each case, the Borrowers shall, at the Agent’s request, be responsible
for the expense of one additional Appraisal of the Rental Equipment of the U.S. Obligors during such period; provided, further,
that for so long as (i) the Borrowers’ Agent has at least two of the following corporate credit ratings: (A) equal to
or higher than Baa3 (or the equivalent) from Moody’s, (B) equal to or higher than BBB- (or the equivalent) from Fitch and (C) equal
to or higher than BBB- (or the equivalent) from S&P and (ii) neither the Company nor any of its Subsidiaries have entered into
an Equipment Securitization Transaction, the Agent shall not conduct any Appraisals of the Rental Equipment of the U.S. Obligors at the
Borrowers’ expense more than one time during each period of 24 consecutive calendar months commencing on or after the Agreement
Date (provided that the Agent may conduct Appraisals of the Rental Equipment of the U.S. Obligors in its reasonable discretion at its
own expense not more than one time during any 12-month period). The Agent may in its reasonable discretion waive any Appraisal conducted
pursuant to this Section 7.9(c) if at the time of determination (i) Suppressed Availability is greater than or equal
to 75% of the Maximum Revolver Amount or (ii) the Total Indebtedness Leverage Ratio is less than 2.00 to 1.00. Additionally, at any
time an Event of Default has occurred and is continuing, the Agent shall have the right to conduct further Appraisals of the Rental Equipment
of the U.S. Obligors in its reasonable discretion at the Borrowers’ expense. Furthermore, at the Borrowers’ Agent’s
request, the Agent may conduct further Appraisals of the Rental Equipment of the U.S. Obligors in its reasonable discretion at the Borrowers’
expense.
(d) The
Agent may conduct Appraisals of the Rental Equipment of the Canadian Obligors in its reasonable discretion at the Borrowers’ expense;
provided that any such Appraisals shall be subject to the same limitations as those applicable to the Appraisals of the Rental
Equipment of the U.S. Obligors in accordance with clause (c) above; provided, further that the number of
Appraisals the Agent may conduct during each Fiscal Year pursuant to this clause (d) shall never exceed the number of
Appraisals the Agent conducts during such Fiscal Year pursuant to clause (c) above.
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(e) Nothing
in this Section 7.9 shall require Holdings or its Subsidiaries to disclose, permit the inspection, examination or making of
copies of or taking abstracts from, or discuss any document, information or other matter (i) that constitutes non-financial trade
secrets or non-financial proprietary information of Holdings or its Subsidiaries, (ii) in respect of which disclosure to the Agent
or any Lender (or any of their respective representatives or contractors) is prohibited by applicable Laws, (iii) that is subject
to attorney-client or similar privilege or constitutes attorney work product or (iv) in respect of which the Borrowers or any of
their Subsidiaries owes confidentiality obligations to any third party (provided such confidentiality obligations were not entered
into in contemplation of the requirements of this Section 7.9).
7.10 Insurance.
(a) Each
of the Obligors and the Restricted Subsidiaries shall maintain, with financially sound and reputable insurance companies, insurance on
(or self-insure) all property material to the business of the Obligors, taken as a whole, in at least such amounts and against at least
such risks as customarily insured against by companies engaged in the same or similar business, all as determined in good faith by the
Obligors and the Restricted Subsidiaries.
(b) Each
of the Secured Obligors shall, and Holdings shall cause the Restricted Subsidiaries to, (i) furnish to the Agent, upon written request,
information in reasonable detail as to the insurance carried; and (ii) cause the Agent, for the ratable benefit of the Agent and
the other Secured Parties, to be named as co-loss payees (with respect to property insurance covering Inventory and Rental Equipment that
constitutes Collateral) or additional insureds (with respect to liability policies), as applicable, in a manner reasonably acceptable
to the Agent, under any material insurance policies required to be maintained by the Obligors and the Restricted Subsidiaries under clause (a) above.
The Secured Obligors will use commercially reasonable efforts to procure that each such material policy of insurance shall contain a clause
or endorsement requiring the insurer to give not less than 30 days, prior written notice to the Agent in the event of cancellation
of the policy for any reason whatsoever. Certificates of insurance and, if requested by the Agent, photocopies of the policies shall be
delivered to the Agent. If Holdings, the Borrowers or their Restricted Subsidiaries fail to procure any such material insurance or to
pay the premiums therefor when due, the Agent may, and at the direction of the Required Lenders shall, do so from the proceeds of Revolving
Loans, on a pro rata basis, in each case following written notice to Holdings.
7.11 Insurance
and Condemnation Proceeds. While an Event of Default has occurred and is continuing and subject to the Pari Passu Intercreditor Agreement,
the Agent is hereby authorized to collect all insurance and condemnation proceeds in respect of Collateral directly and, after deducting
from such proceeds the reasonable expenses, if any, incurred by the Agent in the collection or handling thereof, to apply such proceeds,
ratably, to the reduction of the applicable Obligations in the order provided for in Section 4.6. If an Event of Default has
occurred and is continuing and subject to the Pari Passu Intercreditor Agreement, the Obligors shall remit an amount equal to such proceeds
(if the Agent has not received such proceeds) to the Agent for application to the applicable Obligations in accordance with Section 4.6.
So long as no Event of Default has occurred and is continuing, (i) the Agent shall, except to the extent a prepayment or other application
of such amounts is required under Section 4.2, (x) permit the Obligors to use all insurance and condemnation proceeds,
or any part thereof, for any purpose permitted under this Agreement and (y) turn over to the Obligors any amounts received by it
as a co-loss payee under any property insurance maintained by the Obligors or their Subsidiaries, and (ii) the Agent agrees that
Holdings and/or the applicable Subsidiary shall have the sole right to adjust or settle any claims under such insurance.
7.12 Use
of Proceeds. The proceeds of the Loans are to be used to refinance the facility under the Existing Loan Agreement, to pay related
fees and expenses of the Transactions and to finance ongoing working capital needs (including purchases of Equipment) and for general
corporate purposes (including Permitted Acquisitions and repayment or prepayment of Indebtedness) of the U.S. Borrowers, the ROW
Borrowers, the Canadian Borrowers, the European Borrowers and the ANZ Borrowers. No part of the proceeds of any Loans shall be used by
Holdings or any Subsidiary for any purpose that violates the provisions of the Regulations of the Board of Governors of the Federal Reserve
System, including Regulation T, Regulation U and Regulation X. For the avoidance of doubt, no part of the proceeds of any Loans shall
be used directly or indirectly for any purpose that violates the financial assistance prohibitions within the meaning of Article L.
225-216 of the French Code de commerce and/or would constitute or lead to a misuse of corporate assets within the meaning of Articles
L. 241-3, L. 242-6 or L. 244-1 of the French Code de commerce or any other law or regulations having the same effect, as interpreted
by French courts. No part of the proceeds of any Loans shall be used directly or indirectly in a manner or for a purpose that would (or
would, but for any applicable limitation in any Loan Document) result in a contravention of Part 2J.3 of the Corporations Act. The
Letters of Credit may be used for general corporate purposes of the Company, any other Borrower or any Subsidiary of the Company and any
other purpose not prohibited by the terms of the Loan Documents.
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7.13 Environmental
Laws. Holdings shall, and shall cause each of its Restricted Subsidiaries to, comply substantially with all applicable Environmental
Laws, except where such noncompliance would not reasonably be expected to have a Material Adverse Effect. Holdings shall, and shall cause
each of its Restricted Subsidiaries to, upon learning of any actual noncompliance, promptly undertake reasonable efforts, if any, to achieve
compliance, except to the extent such noncompliance would not reasonably be expected to have a Material Adverse Effect.
7.14 Compliance
with ERISA. Except as would not, either individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect,
Holdings shall, and shall cause each of its Subsidiaries to: (a) maintain each Plan in compliance with the applicable provisions
of ERISA, the Code, the PBA, the Income Tax Act (Canada) and other applicable federal, state, provincial, territorial or foreign
Law; (b) cause each applicable Pension Plan intended to be qualified under Section 401 of the Code to be so qualified; (c) make
all required contributions to any Plan when due; (d) not knowingly engage in a prohibited transaction or violation of the fiduciary
responsibility rules with respect to any Plan; (e) not engage in a transaction that would be subject to Section 4069 or
4212(c) of ERISA, and (f) ensure that no Plan has an Unfunded Pension Liability.
7.15 Further
Assurances. The Secured Obligors shall promptly execute and deliver, or cause to be promptly executed and delivered, to the Agent
and/or the Lenders, such documents and agreements, and shall promptly take or cause to be taken such actions, as the Agent may, from time
to time, reasonably request to effectuate the transactions contemplated by the Loan Documents or to grant, preserve, protect or perfect
the Liens created or intended to be created by the Security Documents or the validity or priority of any such Lien. Notwithstanding anything
to the contrary in this Agreement or any Loan Document, (a) the foregoing requirements shall be subject to the terms of any applicable
Acceptable Intercreditor Agreement and, in the event of any conflict with such terms, the terms of the applicable Acceptable Intercreditor
Agreement shall control, (b) no security interest or Lien is or will be granted pursuant to any Loan Document or otherwise in any
right, title or interest of any of Holdings or any of its Restricted Subsidiaries in, and “Collateral” shall not include,
any asset to the extent excluded from “Collateral” under the applicable Security Documents (c) no Obligor shall have
any obligation to make any filings or take any other action to perfect any Liens on any intellectual property created, registered or applied-for
in any jurisdiction other than the United States (other than Canada, in the case of a Canadian Obligor) and (d) no Obligor or any
Affiliate thereof shall be required to take any action in any non-U.S. jurisdiction (other than Canada, in the case of a Canadian Obligor)
or required by the laws of any non-U.S. jurisdiction (other than Canada, in the case of a Canadian Obligor) in order to create any security
interests in assets located or titled outside of the United States (other than Canada, in the case of a Canadian Obligor) or to perfect
any security interests (it being understood that there shall be no security agreements or pledge agreements governed under the laws of
any non-U.S. jurisdiction (other than Canada, in the case of a Canadian Obligor)).
7.16 Additional
Obligors.
(a) In
the event that after the Agreement DateIf any Wholly Owned
Subsidiary of any U.S. Obligor organizes, creates or acquires any Wholly Owned Subsidiary
that is a Domestic Subsidiary (other than an Excluded Subsidiary, a Foreign Subsidiary Holding Company or a Subsidiary
of a Foreign Subsidiary, unless the Company otherwise determines))
(1) incurs any Indebtedness in the form of capital markets debt securities or term loans or (2) Guarantees or is otherwise an
obligor in respect of any Indebtedness in the form of capital markets debt securities or term loans of any U.S. Obligor, in each case
in an aggregate principal amount outstanding in excess of $300,000,000, the U.S. Obligors shall, concurrently with the
delivery of the Compliance Certificate pursuant to Section 7.2(d) for the Fiscal Quarter
during which such Domestic Subsidiary was organized, created or acquiredincurring,
providing a Guarantee or otherwise becoming an obligor in respect of such Indebtedness, notify the Agent thereof and,
promptly, and in any event within 60 days
after the date such notice is given (or such longer period to which the Agent may reasonably agree), (i) cause such new Domestic
Subsidiary to become a party to this Agreement as a U.S. Guarantor, (ii) cause such new Domestic Subsidiary to execute and deliver
to the Agent a Security Agreement Supplement (as defined in the U.S. Security Agreement), a Guaranty Supplement (as defined in the U.S.
Guarantee Agreement) and such other amendments to the U.S. Security Documents as the Agent may reasonably deem necessary or reasonably
advisable to grant to the Agent, for the benefit of the Secured Parties, a perfected security interest (as and to the extent provided
in the U.S. Security Documents) in the Collateral of such new Domestic Subsidiary, (iii) deliver such other documentation as the
Agent may reasonably request in accordance with the U.S. Security Documents (and subject to the limitations set out therein) in order
to cause the Lien created by the U.S. Security Documents in such new Domestic Subsidiary’s Collateral and in the Capital Stock of
such new Domestic Subsidiary to be duly perfected in accordance with all applicable Requirements of Law, including the filing of financing
statements in such jurisdictions as may reasonably be requested by the Agent, and such other documents with respect to such new Domestic
Subsidiary as the Agent may reasonably request that are consistent with the documents in place or delivered to the Agent by the Obligors
on the Closing Date, and (iv) subject to Section 7.4(a)(ii), prior to including such new Domestic Subsidiary’s
assets in the Borrowing Base, the Agent shall conduct an Appraisal with respect to such new Domestic Subsidiary, including of (x) such
new Domestic Subsidiary’s practices in the computation of its Borrowing Base and (y) the assets included in such new Domestic
Subsidiary’s Borrowing Base and related financial information such as, but not limited to, sales, gross margins, payables, accruals
and reserves, in each case, prepared on a basis reasonably satisfactory to the Agent and at the sole expense of the Obligors.
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(b) In
the event that after the Agreement Date (i) any Canadian Obligor organizes, creates or acquires any Wholly Owned Subsidiary or (ii) any
U.S. Obligor organizes, creates or acquires any Wholly Owned Subsidiary, in each case, that is organized under the Laws of Canada or any
province or territory thereof and other than an Excluded Subsidiary, the Obligors shall, concurrently with the delivery of the Compliance
Certificate pursuant to Section 7.2(d) for the Fiscal Quarter during which such new Canadian Subsidiary was organized,
created or acquired, notify the Agent thereof and, within 60 days after the date such notice is given (or such longer period to which
the Agent may reasonably agree), (1) cause such new Canadian Subsidiary to become a party to this Agreement as a Canadian Guarantor,
(2) cause such new Canadian Subsidiary to execute and deliver to the Agent a Security Agreement Supplement (as defined in the Canadian
Security Agreement), a Guarantee Supplement (as defined in the Canadian Guarantee Agreement) and such other amendments to the Canadian
Security Documents as the Agent may reasonably deem necessary or reasonably advisable to grant to the Agent, for the benefit of the Canadian
Secured Parties, a perfected security interest (as and to the extent provided in the Canadian Security Documents) in the Collateral of
such new Canadian Subsidiary and in the Capital Stock of such new Canadian Subsidiary and (3) deliver such other documentation as
the Agent may reasonably request in accordance with the applicable Security Documents (and subject to the limitations set out therein)
in order to cause the Lien created by the applicable Security Documents in such new Canadian Subsidiary’s Collateral and in the
Capital Stock of such new Canadian Subsidiary to be duly perfected in accordance with all applicable Requirements of Law, including the
filing of financing statements in such jurisdictions as may reasonably be requested by the Agent, and such other documents with respect
to such new Canadian Subsidiary as the Agent may reasonably request that are consistent with the documents in place or delivered to the
Agent by the Obligors on the Closing Date.
(c) Subject
to the limitations set out in the U.S. Security Documents, in the event that after the Agreement Date any U.S. Obligor (other than
an Excluded Subsidiary) organizes, creates or acquires (i) any Foreign Subsidiary, (ii) any Foreign Subsidiary Holding Company,
or (iii) any Domestic Subsidiary that is not a Wholly Owned Subsidiary (in either case, other than a Subsidiary referred to in clause (a),
(b), (c), (d), (f) or (g) of the definition of “Excluded Subsidiary”), the Capital
Stock of which is directly owned by such U.S. Obligor, the U.S. Obligors shall, concurrently with the delivery of the Compliance
Certificate pursuant to Section 7.2(d) for the Fiscal Quarter during which such Foreign Subsidiary or Domestic Subsidiary
was organized, created or acquired, notify the Agent thereof and, within 30 days after the date such notice is given (or such longer
period to which the Agent may reasonably agree), (x) execute and deliver to the Agent for the benefit of the Secured Parties a new
pledge agreement or such amendments to the U.S. Security Documents as the Agent shall reasonably deem necessary or reasonably advisable
to grant to the Agent, for the benefit of the Secured Parties, a perfected security interest (as and to the extent provided in the U.S.
Security Documents) in the Capital Stock of such new Foreign Subsidiary or Domestic Subsidiary that is directly owned by such U.S. Obligor
(provided that in no event shall more than 65% of the Capital Stock of either (A) any Foreign Subsidiary or (B) any Foreign
Subsidiary Holding Company be required to be so pledged and, provided, further, that no such pledge or security shall be
required with respect to any Subsidiary that is not a Wholly Owned Subsidiary to the extent that the grant of such pledge or security
interest would violate the terms of any agreements under which the Investment by such U.S. Obligor or any of its Subsidiaries was made
therein other than any agreement entered into primarily for the purposes of imposing such a restriction) and (y) to the extent reasonably
deemed advisable by the Agent, deliver to the Agent (subject to the terms of any applicable Acceptable Intercreditor Agreement) the certificates,
if any, representing such Capital Stock, together with undated stock powers, executed and delivered in blank by a duly authorized officer
of the relevant parent of such new Foreign Subsidiary or Domestic Subsidiary and take such other action as may be reasonably deemed by
the Agent to be necessary or desirable to perfect the Agent’s security interest therein.
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(d) Subject
to the limitations set out in the Canadian Security Documents, in the event that after the Agreement Date any Canadian Obligor (other
than an Excluded Subsidiary) organizes, creates or acquires any Domestic Subsidiary or Canadian Subsidiary that, in either case, is not
a Wholly Owned Subsidiary (other than a Subsidiary referred to in clause (a), (b), (c), (d), (f) or
(g) of the definition of “Excluded Subsidiary”), the Capital Stock of which is directly owned by such Canadian Obligor,
the Canadian Obligors shall, concurrently with the delivery of the Compliance Certificate pursuant to Section 7.2(d) for
the Fiscal Quarter during which such new Subsidiary was organized, created or acquired, notify the Agent thereof and, within 30 days
after the date such notice is given (or such longer period to which the Agent may reasonably agree), (i) execute and deliver to the
Agent for the benefit of the Canadian Secured Parties a new pledge agreement or such amendments to the Canadian Security Documents as
the Agent shall reasonably deem necessary or reasonably advisable to grant to the Agent, for the benefit of the Canadian Secured Parties,
a perfected security interest (as and to the extent provided in the Canadian Security Documents) in the Capital Stock of such new Subsidiary
that is directly owned by such Canadian Obligor (provided that no such pledge or security shall be required with respect to any
such new Subsidiary to the extent that the grant of such pledge or security interest would violate the terms of any agreements under which
the Investment by such Canadian Obligor or any of its Subsidiaries was made therein other than any agreement entered into primarily for
the purposes of imposing such a restriction) and (ii) to the extent reasonably deemed advisable by the Agent, deliver to the Agent
(subject to the terms of any applicable Acceptable Intercreditor Agreement) the certificates, if any, representing such Capital Stock,
together with undated stock powers, executed and delivered in blank by a duly authorized officer of the relevant parent of such new Subsidiary
and take such other action as may be reasonably deemed by the Agent to be necessary or desirable to perfect the Agent’s security
interest therein.
(e) Subject
to the limitations set out in the U.S. Security Documents, in the event that after the Agreement Date any U.S. Obligor organizes,
creates or acquires any Wholly Owned Subsidiary that is a Foreign Subsidiary Holding Company (other than an Excluded Subsidiary), the
U.S. Obligors shall, concurrently with the delivery of the Compliance Certificate pursuant to Section 7.2(d) for
the Fiscal Quarter during which such new Subsidiary was organized, created or acquired, notify the Agent thereof and, within 30 days
after the date such notice is given (or such longer period to which the Agent may reasonably agree), (i) cause such new Subsidiary
to become a party to this Agreement as a Guarantor in respect of any Canadian Obligations, (ii) cause such new Subsidiary to execute
and deliver to the Agent a Security Agreement Supplement (as defined in the U.S. Security Agreement), a Guaranty Supplement (as defined
in the U.S. Guarantee Agreement, but in respect of Canadian Obligations only), and such other amendments to the U.S. Security Documents
as the Agent may reasonably deem necessary or reasonably advisable to grant to the Agent, for the benefit of the Canadian Secured Parties,
a perfected security interest (as and to the extent provided in the U.S. Security Documents) in the Collateral of such new Subsidiary,
and (iii) deliver such other documentation as the Agent may reasonably request in accordance with the U.S. Security Documents (and
subject to the limitations set out therein) in order to cause the Lien created by the U.S. Security Documents in such new Subsidiary’s
Collateral and in the Capital Stock of such new Subsidiary to be duly perfected in accordance with all applicable Requirements of Law,
including the filing of financing statements in such jurisdictions as may reasonably be requested by the Agent, and such other documents
with respect to such new Subsidiary as the Agent may reasonably request that are consistent with the documents in place or delivered to
the Agent by the Obligors on the Closing Date.
(f) Notwithstanding
anything to the contrary in this Agreement, (i) the foregoing requirements shall be subject to the terms of any applicable Acceptable
Intercreditor Agreement and, in the event of any conflict with such terms, the terms of the applicable Acceptable Intercreditor Agreement
shall control, (ii) no security interest or Lien is or will be granted pursuant to any Loan Document or otherwise in any right, title
or interest of any Obligor or any of their respective Subsidiaries in, and “Collateral” shall not include, any asset excluded
from “Collateral” under the applicable Security Documents, (iii) no Obligor or any Affiliate thereof shall be required
to take any action in any non-U.S. jurisdiction (other than Canada, in the case of a Canadian Obligor) or required by the laws of any
non-U.S. jurisdiction (other than Canada, in the case of a Canadian Obligor) in order to create any security interests in assets located
or titled outside of the United States (other than Canada, in the case of a Canadian Obligor) or to perfect any security interests (it
being understood that there shall be no security agreements or pledge agreements governed under the laws of any non-U.S. jurisdiction
(other than Canada, in the case of a Canadian Obligor)), (iv) nothing in this Section 7.16 shall require that any Obligor
or any of its Subsidiaries grant a Lien or take actions to perfect a security interest with respect to any property or assets of such
Person to the extent that the Agent, in its reasonable judgment, determines that the granting of such a Lien or the perfection of such
security interest, as the case may be, is impracticable or inadvisable, (v) at no time shall (x) any asset of a Foreign Subsidiary
or a Subsidiary of a Foreign Subsidiary or more than 65% of the voting equity or other voting ownership interests of a Foreign Subsidiary
or a Foreign Subsidiary Holding Company serve as Collateral for any U.S. Obligations of a U.S. Obligor, or (y) a Foreign Subsidiary,
a Foreign Subsidiary Holding Company or a Subsidiary of a Foreign Subsidiary, unless the Company otherwise determines, guarantee any U.S.
Obligations of a U.S. Obligor, (vi) the Agent may grant extensions of time for the creation or perfection of security interests
in particular assets or for the grant of any Guarantee where it determines, in consultation with the Borrowers’ Agent, that such
extension of time is reasonable and (vii) only the Secured Obligors shall be required to grant security, or take any action to perfect
a security interest in, Collateral, or to provide a Guarantee for the Obligations.
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7.17 Bank
and Securities Accounts; Cash Dominion.
(a) To
the extent not previously delivered under the Existing Loan Agreement, within 90 days after the Closing Date (or such longer period
to which the Agent may reasonably agree), the Secured Obligors shall cause to be delivered to the Agent a deposit account control agreement
or securities account control agreement, as applicable, in each case in form and substance reasonably satisfactory to the Agent (each,
a “Control Agreement”), with respect to each Material Account of each Secured Obligor, duly executed by such Obligor
and the applicable depositary bank or securities intermediary. Thereafter, the Secured Obligors shall cause (i) each Material Account
to be subject to a Control Agreement at all times and (ii) all cash proceeds of Collateral (other than those (x) required under
a Like-Kind Exchange to be deposited in a Like-Kind Exchange Account or (y) required under a Securitization Transaction to be deposited
into a “Controlled Account” or similar account under and as defined in the documents governing such Securitization Transaction)
to be deposited into a Material Account subject to a Control Agreement or any deposit account that is a zero balance account the balance
of which is swept no less frequently than weekly into a Material Account subject to a Control Agreement promptly upon receipt in accordance
with historical practices. Notwithstanding anything herein to the contrary, the provisions of this Section 7.17(a) shall
not apply to any deposit account or securities account that is acquired by an Obligor in connection with a Permitted Acquisition or other
Investment permitted under this Agreement prior to the date that is 90 days (or such longer period to which the Agent may reasonably
agree) following the date of such Permitted Acquisition or other Investment, as applicable.
(b) With
respect to the Material Accounts:
(i) Each
Control Agreement shall require, upon the commencement and during the continuance of a Cash Dominion Period and following delivery of
notice of commencement thereof by the Agent to the Borrowers’ Agent, the ACH or wire transfer no less frequently than once per Business
Day (unless this Agreement has been terminated, the Commitments have been terminated and Full Payment of the Obligations has occurred)
of all available cash balances and cash receipts, including the then contents or then entire ledger balance of each Material Account subject
to such Control Agreement, net of (x) such minimum balance (not to exceed $500,000 per account and $2,000,000 in the aggregate),
if any, required by the bank at which such Material Account is maintained and (y) all cash and cash receipts received in such Material
Accounts during the first two Business Days of any Cash Dominion Period to the Payment Account.
(ii) All
collected amounts received in the Payment Account shall be distributed and applied in accordance with Section 4.6 on a daily
basis, with any excess, unless an Event of Default shall have occurred and be continuing, to be remitted to the applicable Secured Obligor.
(iii) The
Secured Obligors may close Material Accounts or open new deposit accounts or securities accounts, subject to the substantially contemporaneous
execution and delivery to the Agent of a Control Agreement for any Material Account consistent with the provisions of this Section 7.17.
The Secured Obligors shall maintain no fewer than one Material Account at any time.
(iv) The
Payment Account shall at all times be under the sole dominion and control of the Agent.
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(v) So
long as (x) no Event of Default has occurred and is continuing and (y) no Cash Dominion Period has commenced and is continuing,
the Obligors shall have full and complete access to, and may direct the manner of disposition of, funds in the Material Accounts.
(vi) Any
amounts held or received in the Payment Account (including all interest and other earnings with respect thereto, if any) at any time (x) after
this Agreement has been terminated, the Commitments have been terminated and the Full Payment of the Obligations has occurred or (y) when
all Events of Default have been cured or any Cash Dominion Period has ceased to exist shall be remitted to the Secured Obligors as the
applicable Obligors may direct.
7.18 Sanctions.
The Obligors will not, and will not permit any Subsidiary to, directly or, to the knowledge of Holdings, indirectly, use the proceeds
of the Loans or Letters of Credit, or lend, contribute or otherwise make available such proceeds to any Subsidiary, joint venture partner
or other Person, to fund any activities or business of or with any Sanctioned Person, or in any Sanctioned Country. Holdings will maintain
in effect policies and procedures reasonably designed to promote compliance by the Obligors, their respective Restricted Subsidiaries,
and their respective directors, officers, employees, and agents with Sanctions Laws.
7.19 Anti-Money
Laundering Laws. No part of the proceeds of the Loans or Letters of Credit will be used by Holdings or any of its subsidiaries, directly
or indirectly, in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else
of value, to any Person in material violation of the FCPA, the Corruption of Foreign Public Officials Act (Canada) or any other
applicable anti-money laundering or anti-corruption law.
7.20 Securitization
Transactions.
(a) The
Borrowers shall cause to be delivered to the Agent such reports and information about any Securitization Transaction as may be reasonably
requested by the Agent from time to time.
(b) At
any time that a Specified Default has occurred and is continuing, Holdings and the other Obligors shall, within five Business Days
following written notice by the Agent to do so, cause further sales or other transfers of rental fleet equipment pursuant to any Equipment
Securitization Transaction, that would otherwise constitute Collateral hereunder but for such Equipment Securitization Transaction, to
cease and to otherwise cause such new rental fleet equipment to be excluded from any Equipment Securitization Transaction.
(c) In
the case of any Securitization Transaction resulting in the sale of Rental Equipment having a Fair Market Value exceeding (i) the
greater of (x) $482,940,000 and (y) 3% of Consolidated Net Tangible Assets as of the date of the applicable Securitization Transaction
or (ii) if after giving effect to such Securitization Transaction on a pro forma basis Specified Availability is at least $1,000,000,000,
the greater of (x) $804,900,000 and (y) 5% of Consolidated Net Tangible Assets, the Agent shall have received an updated Borrowing
Base Certificate giving effect to such Securitization Transaction on a pro forma basis.
ARTICLE VIII
NEGATIVE
COVENANTS
Holdings and each other Obligor
covenant to the Agent and each Lender that, from and after the Agreement Date, so long as any of the Commitments remain in effect, and
thereafter until Full Payment of the Obligations:
8.1 Indebtedness.
Neither Holdings nor any of the Restricted Subsidiaries shall create, incur, assume or otherwise become directly or indirectly liable
with respect to any Indebtedness, except as follows (collectively, “Permitted Indebtedness”):
(a) Indebtedness
created hereunder or under the other Loan Documents (including Indebtedness incurred pursuant to a Refinancing Amendment and Indebtedness
created under Incremental Facilities) and any Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
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(b) Indebtedness
described on Schedule 8.1 and any Refinancing Indebtedness in respect thereof;
(c) Indebtedness
incurred by any Borrower or any Restricted Subsidiary pursuant to Other
Credit Facilities (as such term is defined in the TLB Credit Agreement as in effect on the
Agreement Date) and any Refinancing Indebtedness in respect thereof; provided, however, that,
immediately after giving effect to any such incurrence, the aggregate principal amount of all Indebtedness incurred under this clause (c) and
then outstanding does not exceed (i) the greater of (x) $13,683,300,000 and (y) 85% of Consolidated Net Tangible
Assets, less (ii) the sum of the Maximum Revolver Amount at such time plus any additional outstanding Indebtedness under
this Agreement at such time incurred pursuant to Section 2.5, 2.6 or 2.7 not included under the Maximum
Revolver Amount;
(d) Indebtedness
of a Borrower or any of the Restricted Subsidiaries under equipment purchase or lines of credit, or for Capital Lease Obligations or Purchase
Money Obligations; provided that, immediately after giving effect to any such incurrence, the aggregate principal amount of Indebtedness
incurred under this clause (d) and then outstanding does not exceed the greater of the greater of (x) $1,207,350,000
and (y) 7.5% of Consolidated Net Tangible Assets;
(e) Indebtedness
of a Borrower or any Restricted Subsidiary incurred in respect of (i) performance bonds, completion guarantees, surety bonds, bankers’
acceptances, letters of credit or other similar bonds, instruments or obligations, including Indebtedness evidenced by letters of credit
issued to support the insurance or self-insurance obligations of a Borrower or any of the Restricted Subsidiaries (including to secure
workers’ compensation and other similar insurance coverages), but excluding letters of credit issued in respect of or to secure
money borrowed, (ii) obligations under Hedge Agreements entered into for bona fide hedging purposes of any Borrower and not for speculative
purposes or (iii) cash management obligations and netting, overdraft protection and other similar facilities or arrangements, in
each case arising under standard business terms of any bank at which a Borrower or any Restricted Subsidiary maintains such facility or
arrangement;
(f) Indebtedness
consisting of accommodation guarantees for the benefit of trade creditors of any Borrower or any Restricted Subsidiary;
(g) Indebtedness
of any Obligor to another Obligor;
(h) Indebtedness
of (i) any Subsidiary which is not an Obligor to another Subsidiary which is not an Obligor, (ii) any Subsidiary that is not
an Obligor to any Obligor; provided that the aggregate amount of Indebtedness incurred under this clause (h)(ii), when
taken together with the aggregate amount of Investments made under clause (e)(i)(C), clause (e)(ii) and clause
(l)(ii) of the definition of “Permitted Investments” (as reduced by any return of capital in respect of any such
Investment), shall not exceed the greater of (x) $1,609,800,000 and (y) 10% of Consolidated Net Tangible Assets in the aggregate
outstanding at any time or (iii) any Subsidiary that is not an Obligor to any Obligor so long as the Payment Conditions shall have
been satisfied at the time such Indebtedness is incurred;
(i) (i) Indebtedness
arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient
funds in the ordinary course of business and (ii) customer deposits and advance payments received in the ordinary course of business
from customers for goods or services purchased or rented in the ordinary course of business;
(j) unsecured
Indebtedness of an Obligor or any Restricted Subsidiary (including any Indebtedness assumed in connection with a Permitted Acquisition
or Investment) so long as (i) on a pro forma basis, the Fixed ChargeInterest
Coverage Ratio (as defined in the TLB Credit Agreement as in effect on the Agreement Date) is
at least 2.00:1.00 (“Ratio Debt”), provided that
for the purposes of calculating the Fixed Charge Coverage Ratio (as defined in the TLB Credit Agreement as in effect on the Agreement
Date), the denominator shall be limited to Consolidated Interest Expense paid in cash; (ii) such Indebtedness matures
on or after, and requires no scheduled payments of principal prior to, the date that is six months after the latest maturity date
with respect to any of the Obligations then applicable hereunder; (iii) with respect to Indebtedness incurred under this clause
(j)(iii), the aggregate principal amount of such Indebtedness does not exceed at any time the greater of (x) $1,609,800,000 and
(y) 10% of Consolidated Net Tangible Assets or (iv) the Obligors are in compliance with the Payment Conditions, and any Refinancing
Indebtedness incurred to Refinance any of the foregoing Indebtedness; provided that the proceeds of any of the foregoing Indebtedness
may be deposited in an escrow account secured pursuant to Section 8.2(jj) pending the application of such proceeds to a Permitted
Acquisition or other Investment permitted hereunder or any discharge, redemption, defeasance or refinancing;
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(k) Indebtedness
of Foreign Subsidiaries (other than the Canadian Obligors any assets of which comprise part of the Canadian Borrowing Base) incurred to
finance the working capital, including funding acquisitions or Investments, of such Foreign Subsidiaries;
(l) Indebtedness
of any Foreign Subsidiary (other than the Canadian Obligors any assets of which comprise part of the Canadian Borrowing Base) that is
secured by a Lien on the assets of such Foreign Subsidiary incurring such Indebtedness, in an aggregate amount for all such Foreign Subsidiaries
under this clause (l) not to exceed the greater of (i) $1,609,800,000 and (ii) 10% of Consolidated Net Tangible
Assets at any time; provided that any such Lien on assets comprising Canadian Collateral shall be subject to an intercreditor agreement
reasonably satisfactory to the Agent;
(m) Indebtedness
arising from agreements of Holdings or any Restricted Subsidiary providing for guarantees, indemnification, obligations in respect of
earnouts or other purchase price adjustments or holdback of purchase price or similar obligations, in each case, incurred or assumed in
connection with the acquisition or disposition of any business, assets or Subsidiary permitted hereunder, other than guarantees of Indebtedness
incurred by any person acquiring all or any portion of such business, assets or Subsidiary for the purpose of financing such acquisition;
(n) [intentionally
omitted];
(o) Indebtedness
by any Special Purpose Vehicle to a Canadian Obligor in connection with any Securitization Transaction arising from the purchase of equipment,
leases, agreements, accounts or receivables by such Special Purpose Vehicle from such Canadian Obligor;
(p) Guarantees
by Holdings or any Restricted Subsidiary of Indebtedness permitted to be incurred by an Obligor or any Restricted Subsidiary hereunder;
provided that if the Indebtedness being Guaranteed is subordinated to or pari passu with any of the Obligations, then the
Guarantee shall be subordinated or pari passu, as applicable, to the same extent as the Indebtedness Guaranteed; provided,
further, that no Canadian Obligor may guarantee any Indebtedness of a U.S. Obligor under this clause (p) unless
such Person Guarantees the U.S. Obligations;
(q) Guarantees
or other Indebtedness in respect of Indebtedness of (i) an Unrestricted Subsidiary, (ii) a Person in which the Company or a
Restricted Subsidiary has a minority interest or (iii) joint ventures or similar arrangements, provided, however, that
at the time of incurrence of any Indebtedness pursuant to this clause (q) the aggregate principal amount of all Guarantees
and other Indebtedness incurred under this clause (q) and then outstanding does not exceed the greater of (x) $804,900,000
and (y) 5% of Consolidated Net Tangible Assets;
(r) Indebtedness
of any Obligor or Restricted Subsidiary that is subordinated to the payment in full of the Obligations on terms and conditions satisfactory
to the Agent; provided that both before and on a pro forma basis immediately after the incurrence of such Indebtedness, the Obligors
are in compliance with the financial covenant set forth in Section 8.9 (regardless of whether a Covenant Trigger is in effect
or such covenant is otherwise effective);
(s) Indebtedness
representing deferred compensation, severance and health and welfare retirement benefits to current and former employees of Holdings and
its Subsidiaries incurred in the ordinary course of business;
(t) Indebtedness
consisting of the financing of insurance premiums;
(u) Indebtedness
incurred in connection with customary cash management practices of any Obligor or any Subsidiary of an Obligor owing to any Obligor or
any Subsidiary of an Obligor;
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(v) (i) Non-Recourse
Indebtedness of any Special Purpose Vehicle in respect of any Securitization Transactions and (ii) any Indebtedness under Standard
Securitization Undertakings;
(w) Indebtedness
of any Restricted Subsidiary that is not an Obligor; provided that (i) such Indebtedness is not guaranteed by any Obligor,
(ii) the holder of such Indebtedness does not have, directly or indirectly, any recourse to any Obligor, whether by reason of representations
or warranties, agreement of the parties, operation of law or otherwise, and (iii) such Indebtedness is not secured by any assets
other than assets of such Restricted Subsidiary or other Restricted Subsidiaries that are not Obligors;
(x) unsecured
Indebtedness of Holdings, provided that on a pro forma basis immediately after the incurrence of such Indebtedness, the Obligors
are in compliance with the financial covenant set forth in Section 8.9 (regardless of whether a Covenant Trigger is in effect
or such covenant is otherwise effective); and
(y) Indebtedness
of any Obligor or any Restricted Subsidiary, in addition to that described in clauses (a) through (x) above;
provided that immediately after giving effect to any such incurrence, the aggregate principal amount of Indebtedness incurred pursuant
to this clause (y) and then outstanding does not exceed the greater of (i) $1,609,800,000 and (ii) 10% of Consolidated
Net Tangible Assets.
For purposes of determining
compliance with, and the outstanding principal amount of Indebtedness (including Guarantees) incurred pursuant to and in compliance with,
this Section 8.1, (i) in the event that Indebtedness (including Guarantees) meets the criteria of more than one type
of Indebtedness (including Guarantees) described in this Section 8.1, the Borrowers’ Agent, in its sole discretion,
shall classify, and may from time to time reclassify, such item of Indebtedness and only be required to include the amount and type of
such Indebtedness in one or a combination of the clauses of this Section 8.1, (ii) at any time Holdings and its Restricted
Subsidiaries would be entitled to incur any then outstanding unsecured Indebtedness under clause (j) of this Section 8.1,
such Indebtedness shall be automatically reclassified as Indebtedness incurred pursuant to such clause, (iii) if any Indebtedness
is incurred to refinance Indebtedness initially incurred in reliance on a basket measured by reference to a percentage of Consolidated
Net Tangible Assets at the time of incurrence, and such refinancing would cause the percentage of Consolidated Net Tangible Assets restriction
to be exceeded if calculated based on the Consolidated Net Tangible Assets on the date of such refinancing, such percentage of Consolidated
Net Tangible Assets restriction shall not be deemed to be exceeded so long as the principal amount of such Refinancing Indebtedness does
not exceed the principal amount of such Indebtedness being Refinanced, plus the aggregate amount of fees, underwriting discounts, premiums
and other costs and expenses (including accrued and unpaid interest) incurred or payable in connection with such refinancing, (iv) the
amount of Indebtedness issued at a price that is less than the principal amount thereof shall be equal to the amount of the liability
in respect thereof determined in accordance with GAAP and (v) the principal amount of Indebtedness outstanding under any clause of
Section 8.1 shall be determined after giving effect to the application of proceeds of any such Indebtedness to refinance any
such other Indebtedness. In addition, with respect to any Indebtedness that was permitted to be incurred hereunder on the date of such
incurrence, any Increased Amount of such Indebtedness shall also be permitted hereunder after the date of such incurrence.
Except as provided in the
paragraph below, with respect to Indebtedness denominated in a foreign currency, the amount of any Indebtedness outstanding as of any
date shall be:
i. the accreted value of the Indebtedness, in the case of any Indebtedness issued with original issue discount;
ii. the principal amount of the Indebtedness, in the case of any other Indebtedness; and in respect of Indebtedness
of another Person secured by a Lien on the assets of the specified Person, the lesser of: (A) the Fair Market Value of such assets
at the date of determination; and (B) the amount of the Indebtedness of the other Person.
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For purposes of determining
compliance with any Dollar-denominated restriction on the incurrence of Indebtedness denominated in a foreign currency, the Dollar-equivalent
principal amount of such Indebtedness incurred pursuant thereto shall be calculated based on the relevant currency exchange rate in effect
on the date that such Indebtedness was incurred, in the case of term Indebtedness, or first committed, in the case of revolving credit
Indebtedness; provided that (A) the Dollar-equivalent principal amount of any such Indebtedness outstanding on the Closing
Date shall be calculated based on the relevant currency exchange rate in effect on the Closing Date, (B) if such Indebtedness is
incurred to refinance other Indebtedness denominated in a foreign currency (or in a different currency from such Indebtedness so being
incurred), and such refinancing would cause the applicable Dollar-denominated restriction to be exceeded if calculated at the relevant
currency exchange rate in effect on the date of such refinancing, such Dollar-denominated restriction shall be deemed not to have been
exceeded so long as the principal amount of such refinancing Indebtedness, calculated as described in the following sentence, does not
exceed (x) the outstanding or committed principal amount (whichever is higher) of such Indebtedness being refinanced plus (y) the
aggregate amount of fees, underwriting discounts, premiums and other costs and expenses incurred in connection with such refinancing and
(C) the Dollar-equivalent principal amount of Indebtedness denominated in a foreign currency and incurred pursuant to aan
Other Credit Facility (as such term is defined in the TLB Credit Agreement as in effect on
the Agreement Date) shall be calculated based on the relevant currency exchange rate in effect on, at the Borrower’s
option, (I) the Closing Date, (II) any date on which any of the respective commitments under such Credit Facility shall be reallocated
between or among facilities or subfacilities thereunder, or on which such rate is otherwise calculated for any purpose thereunder or (III) the
date of such incurrence. The principal amount of any Indebtedness incurred to refinance other Indebtedness, if incurred in a different
currency from the Indebtedness being refinanced, shall be calculated based on the currency exchange rate applicable to the currencies
in which such respective Indebtedness is denominated that is in effect on the date of such refinancing.
8.2 Liens.
Neither Holdings nor any of its Restricted Subsidiaries shall create, incur, assume or suffer to exist any Lien of any kind on any of
their respective properties or assets, whether now owned or hereafter acquired, except for the following (collectively, “Permitted
Liens”):
(a) Liens
created pursuant to the Security Documents;
(b) Liens
existing on, or provided for under written arrangements existing on, the Closing Date and described on Schedule 8.2 or securing
any Refinancing Indebtedness in respect of such Indebtedness so long as the Lien securing such Refinancing Indebtedness is limited to
all or part of the same property or assets (plus improvements, accessions, proceeds or dividends or distributions in respect thereof)
that secured (or under such written arrangements could secure) the original Indebtedness;
(c) Liens
granted pursuant to documentation separate from any Security Document securing (i) Indebtedness permitted under Section 8.1(c) or
(ii) other Permitted Indebtedness of Holdings and any other Obligor or Restricted Subsidiary incurred after the Closing Date in an
aggregate outstanding principal amount of all such secured Indebtedness under this clause (ii) for Holdings and all such
other Obligors and Restricted Subsidiaries not to exceed at any time the greater of (x) $1,609,800,000 and (y) 10% of Consolidated
Net Tangible Assets at such time; provided that, (A) with respect to any Liens under this clause (c), (I) no
such Lien on any Collateral may be senior or prior to the Agent’s Liens thereon and (II) such Liens on any Collateral are subject
to the terms of an Acceptable Intercreditor Agreement, (B) no such Lien on any Collateral which is pari passu in priority
with the Agent’s Liens thereon may be granted if, after giving effect to the automatic imposition of the Pari Passu Debt Reserves
with respect to the Indebtedness secured by such Lien, an Out-of-Formula Condition exists and (C) subject to Section 1.3(l),
no Event of Default shall be continuing at the time of the granting or imposition of such Lien or would result therefrom;
(d) Liens
in favor of an Obligor or a Restricted Subsidiary; provided that such Liens on any Collateral are subject to an intercreditor agreement
reasonably satisfactory to the Agent;
(e) Liens
on and pledges of the assets or Capital Stock of any Unrestricted Subsidiary securing any Indebtedness or other obligations of such Unrestricted
Subsidiary and Liens on the Capital Stock or assets of Foreign Subsidiaries (other than the Canadian Obligors any assets of which comprise
any part of the Canadian Borrowing Base) securing Indebtedness permitted under Section 8.1(l);
(f) Liens
(i) for Taxes (other than those described under clause (ii) below) not delinquent or statutory Liens for taxes,
the nonpayment of which in the aggregate would not reasonably be expected to have a material adverse effect on Holdings and its Restricted
Subsidiaries, or which are being contested in good faith and by appropriate proceedings diligently conducted, provided that adequate
reserves with respect thereto are maintained on the books of Holdings or any of the Restricted Subsidiaries, as applicable, in accordance
with GAAP or (ii) in the case of any Canadian Obligor, securing claims for unpaid wages, vacation pay, workers’ compensation,
unemployment insurance, pension plan contributions, Unfunded Pension Liabilities, employee or non-resident withholding tax source deductions,
unremitted goods and services, harmonized sales or sales taxes, realty taxes (including utility charges and business taxes which are collectable
like realty taxes), customs duties or similar statutory obligations secured by a Lien on any property; provided that such claims
under this clause (ii) are not past due, unless they are being contested in good faith and by appropriate proceedings
diligently conducted, provided that adequate reserves with respect thereto are maintained on the books of such Canadian Obligor
in accordance with GAAP;
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(g) statutory
Liens of landlords and Liens of carriers, warehousemen, mechanics, suppliers, materialmen, repairmen and other like Persons and other
Liens imposed by law for sums not yet delinquent for a period of more than 60 days or being contested in good faith and by appropriate
proceedings diligently conducted, provided that adequate reserves with respect thereto are maintained on the books of Holdings
or any of the Restricted Subsidiaries, as applicable, to the extent required in accordance with GAAP;
(h) Liens
incurred or deposits or pledges of cash or Cash Equivalents made in connection with workers’ compensation, unemployment insurance
and other types of social security and other similar laws, or to secure the performance of bids, tenders, contracts, statutory or regulatory
obligations, surety and appeal bonds, bids, leases, government or other contracts, performance and return-of-money bonds and other similar
obligations (in each case, exclusive of obligations for the payment of borrowed money);
(i) (i) mortgages,
Liens, security interests, restrictions, encumbrances or any other matters of record that have been placed by any developer, landlord
or other third party on real property over which Holdings or any Subsidiary has easement rights or on any leased real property and subordination
or similar agreements relating thereto; and (ii) any condemnation or eminent domain proceedings affecting any real property;
(j) judgment
Liens not giving rise to an Event of Default so long as any appropriate legal proceedings which may have been duly initiated for the review
or appeal of such judgment shall not have been finally terminated or the period within which such proceedings may be initiated shall not
have expired;
(k) easements,
rights-of-way, zoning restrictions, utility agreements, covenants, restrictions and other similar charges, encumbrances or title defects
or leases or subleases granted to others, in respect of real property not interfering in the aggregate in any material respect with the
ordinary conduct of the business of any Borrower or Restricted Subsidiary;
(l) any
interest or title of a lessor under any Capital Lease Obligation or operating lease;
(m) [intentionally
omitted];
(n) Liens
securing Indebtedness incurred pursuant to Section 8.1(d); provided, however, that any such Lien may not extend
to any other property owned by any Borrower or Restricted Subsidiary at the time the Lien is incurred (other than assets and property
affixed or appurtenant thereto or that are expansions or enhancements thereof), and the Indebtedness (other than any interest thereon)
secured by such Lien may not be incurred more than 180 days after the later of the acquisition, completion of construction, repair,
improvement, addition or commencement of full operation of the property subject to the Lien;
(o) Liens
securing reimbursement obligations with respect to commercial letters of credit which encumber documents and other property relating to
such letters of credit and products and proceeds thereof;
(p) Liens
securing Refinancing Indebtedness to the extent such Liens are permitted in the definition of “Refinancing Indebtedness”;
(q) Liens
encumbering deposits made to secure obligations arising from statutory, regulatory, contractual, or warranty requirements of an Obligor
or Restricted Subsidiary, including rights of offset and setoff;
(r) Liens
securing obligations under Hedge Agreements not entered into for speculative purposes;
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(s) customary
Liens on assets of a Special Purpose Vehicle arising in connection with a Securitization Transaction;
(t) any
interest or title of a lessor, sublessor, licensee or licensor under any lease, sublease, sublicense or license agreement not prohibited
by this Agreement;
(u) Liens
attaching solely to cash earnest money deposits in connection with any letter of intent or purchase agreement in connection with an acquisition
permitted under the terms of this Agreement;
(v) Liens
on cash set aside at the time of the incurrence of any Indebtedness or government securities purchased with such cash, in either case
to the extent that such cash or government securities prefund the payment of interest on such Indebtedness and are held in an escrow account
or similar arrangement to be applied for such purpose;
(w) Liens
arising out of conditional sale, title retention, consignment or similar arrangements for the sale of goods entered into in the ordinary
course of business;
(x) any
encumbrance or restriction (including put and call agreements or buy/sell arrangements) with respect to Capital Stock of any joint venture
or similar arrangement pursuant to any joint venture or similar agreement;
(y) Liens
on insurance proceeds or unearned premiums incurred in connection with the financing of insurance premiums;
(z) Liens
arising by operation of law in the ordinary course of business;
(aa) Liens
on property or assets under construction (and related rights) in favor of a contractor or developer or arising from progress or partial
payments by a third party relating to such property or assets;
(bb) Liens
relating to pooled deposit or sweep accounts to permit satisfaction of overdraft, cash pooling or similar obligations incurred in the
ordinary course of business;
(cc) licenses,
sublicenses, leases, subleases or other rights granted to other Persons (i) in the ordinary course of business or (ii) otherwise
not materially interfering with the conduct of the business of the Borrowers and the Restricted Subsidiaries taken as a whole or the Agent’s
rights with respect to the Collateral;
(dd) Liens
(i) on inventory or goods and proceeds securing the obligations in respect of bankers’ acceptances issued or created to facilitate
the purchase, shipment or storage of such inventory or other goods of the Company or any Subsidiary in the ordinary course of its business,
(ii) that are contractual rights of setoff, (iii) relating to purchase orders and other agreements entered into with customers
or suppliers of Holdings or any Subsidiary in the ordinary course of business, to the extent not securing Indebtedness under Section 8.1(d),
(iv) in favor of a banking institution encumbering deposits (including the right of setoff) held by such banking institution incurred
in the ordinary course of business or which are within the general parameters customary in the banking industry or (v) in favor of
customs and revenue authorities arising as a matter of law to secure the payment of customs duties in connection with the importation
of goods;
(ee) Liens
arising from precautionary UCC filings or PPSA filings regarding a “true sale” to a Special Purpose Vehicle pursuant to a
Securitization Transaction or “true” operating leases or the bailment or consignment of goods to any Obligor or any Subsidiary,
to the extent such lease, bailment or consignment is not otherwise in violation of this Agreement;
(ff) Liens
existing on property or assets of a Person at the time such Person becomes a Restricted Subsidiary (or at the time an Obligor or a Restricted
Subsidiary acquires such property or assets, including any acquisition by means of a merger, amalgamation or consolidation with or into
an Obligor or any Restricted Subsidiary) or securing Permitted Indebtedness assumed or incurred in connection with an acquisition permitted
under the terms of this Agreement; provided, that such Liens do not extend to any property or assets other than such acquired property
or assets (plus improvements, accessions, proceeds or dividends or distributions in respect thereof);
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(gg) Liens
on any Like-Kind Exchange Account and any Replacement Property that is acquired in a Like-Kind Exchange, in each case granted pursuant
to and in connection with a Like-Kind Exchange in favor of any applicable Qualified Intermediary to facilitate such Like-Kind Exchange;
(hh) Liens
securing Indebtedness of any Subsidiary that is not an Obligor pursuant to Section 8.1(w);
(ii) Liens
incurred by any Borrower or Restricted Subsidiary; provided that at the time any such Lien is incurred, the obligations secured
by such Lien, when added to all other obligations secured by Liens incurred pursuant to this clause (ii), do not exceed at
any time the greater of (i) $1,609,800,000 and (ii) 10% of Consolidated Net Tangible Assets at such time; provided that,
(x) with respect to any Liens under this clause (ii), (A) no such Lien on any Collateral may be senior or prior
to the Agent’s Liens thereon and (B) such Liens on any Collateral are subject to the terms of an Acceptable Intercreditor Agreement,
(y) no such Lien on any Collateral comprising any Rental Equipment, Merchandise and Consumables Inventory, any proceeds of any of
the foregoing, any Material Accounts into which any such proceeds are deposited, any books or records related to any of the foregoing,
or any other assets related to any of the foregoing which is pari passu in priority with the Agent’s Liens thereon may be
granted if, after giving effect to the automatic imposition of the Pari Passu Debt Reserves with respect to the Indebtedness secured by
such Lien, an Out-of-Formula Condition exists and (z) subject to Section 1.3(l), no Event of Default shall be continuing
at the time of the granting or imposition of such Lien or would result therefrom;
(jj) Liens
on the proceeds of Indebtedness or other amounts held in favor of the lenders or holders of such Indebtedness and their agents or representatives
pending the application of such proceeds to a Permitted Acquisition or other Investment permitted hereunder or any discharge, redemption,
defeasance or refinancing;
(kk) Liens
arising in connection with (A) a lease for a term of more than one year (as defined in the Personal Property Securities Act 1999
(New Zealand)), (B) a transfer of an account receivable or chattel paper (in each case as defined in the Personal Property Securities
Act 1999 (New Zealand)) or (C) a commercial consignment (as defined in the Personal Property Securities Act 1999 (New Zealand)),
in each case, to the extent such lease, transfer or consignment is not otherwise in violation of this Agreement;
(ll) Liens,
whether or not the transaction concerned, in substance, secures payment or performance of an obligation arising in connection with (A) the
interest of a transferee under a transfer of an account or chattel paper (in each case as defined in the Personal Property Securities
Act 2009 (Cth)(Australia)), (B) the interest of a consignor who delivers goods to a consignee under a commercial consignment
(as defined in the Personal Property Securities Act 2009 (Cth)(Australia)) or (C) the interest of a lessor or bailor of goods
under a PPS lease (as defined in the Personal Property Securities Act 2009 (Cth)(Australia)), in each case, to the extent such
lease, transfer or consignment is not otherwise in violation of this Agreement; and
(mm) Liens
on any assets of any Foreign Subsidiary that is not a Canadian Subsidiary securing obligations other than Indebtedness for borrowed money.
For purposes of determining
compliance with this Section 8.2, (i) a Lien need not be incurred solely by reference to one category of Permitted Liens
but may be incurred under any combination of such categories (including in part under one such category and in part under any other such
category) and (ii) in the event that a Lien (or any portion thereof) meets the criteria of one or more of such categories of Permitted
Liens, the Borrowers’ Agent shall, in its sole discretion, classify or reclassify such Lien (or any portion thereof) in any manner
that complies with the definition of “Permitted Liens”. In addition, with respect to any Lien securing Indebtedness that was
permitted to secure such Indebtedness at the time of the incurrence of such Indebtedness, such Lien shall also be permitted to secure
any Increased Amount of such Indebtedness.
8.3 [Intentionally
omitted].
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8.4 Distributions;
Restricted Investments. Neither Holdings nor any of its Restricted Subsidiaries shall (a) directly or indirectly declare or make,
or incur any liability to make, any Distribution, except Permitted Distributions, or (b) make any Investment, except Permitted Investments;
provided that in the case of any Distribution or Investment resulting in the disposition or transfer to third parties in a single
transaction or series of related transactions of Rental Equipment having a Fair Market Value exceeding (i) the greater of (x) $482,940,000
and (y) 3% of Consolidated Net Tangible Assets as of the date of the applicable Distribution or Investment, as applicable, or (ii) if
after giving effect to such Distribution or Investment, as applicable, on a pro forma basis Specified Availability is at least $1,000,000,000,
the greater of (x) $804,900,000 and (y) 5% of Consolidated Net Tangible Assets, the Agent shall have received an updated Borrowing
Base Certificate giving effect to such Distribution or Investment, as applicable, on a pro forma basis.
8.5 Mergers,
Consolidations or Sales. Neither Holdings nor any of the Restricted Subsidiaries shall merge into, or consolidate or amalgamate with,
any other Person or permit any other Person to merge into or consolidate or amalgamate with it, or consummate any Asset Disposition, or
wind up, liquidate or dissolve, except:
(a) transfers
of condemned or expropriated property to the applicable Governmental Authority or agency that has condemned or expropriated the same (whether
by deed in lieu of condemnation or otherwise), and transfers of properties that have been subject to a casualty to the applicable insurer
of such property or its designee as part of an insurance settlement;
(b)
(i) any
Obligor or any Restricted Subsidiary may be merged, consolidated or amalgamated with or into (x) (1) in the case of a Secured
Obligor, any other Secured Obligor that is domiciled and is resident in the same country as such Secured Obligor, or any Secured Obligor
that is a U.S. Obligor or (2) otherwise, any Obligor, (y) any other Person that is domiciled and is resident in the same country
as such Obligor or Restricted Subsidiary or (z) any other Person if the Person formed by or surviving such merger, consolidation
or amalgamation is domiciled and is resident in the same country as such Obligor or Restricted Subsidiary; provided, that (A) if
Holdings is involved in such merger, consolidation or amalgamation, the continuing or surviving Person shall be Holdings, (B) if
the Company is involved in such merger, consolidation or amalgamation, the continuing or surviving Person shall be (I) the Company
or (II) a Person organized or existing under the laws of the United States, any state thereof, or the District of Columbia, and such
Person expressly assumes all of the obligations of the Company under this Agreement and the other Loan Documents pursuant to a supplement
or joinder to the Loan Documents in a form reasonably satisfactory to the Agent, and (C) in the case of such a merger, consolidation
or amalgamation involving an Obligor, the continuing or surviving Person shall be an Obligor and (except to the extent such continuing
or surviving Person is Holdings) a Wholly Owned Subsidiary of the Company (and, to the extent such continuing or surviving Person was
not an Obligor prior to such merger, consolidation or amalgamation, it shall expressly assume all obligations as an Obligor under the
Loan Documents pursuant to documentation reasonably satisfactory to the Agent);
(ii) any
Obligor or any Restricted Subsidiary of an Obligor (in either case, other than Holdings and the Company) may be liquidated, wound up or
dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of,
in one transaction or a series of transactions, to its direct parent Obligor (but in no case, to Holdings);
(iii) any
Restricted Subsidiary that is not an Obligor may be merged or amalgamated with or into any other Restricted Subsidiary that is not an
Obligor, or be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased,
transferred or otherwise disposed of, in one transaction or a series of transactions, to any other Restricted Subsidiary that is not an
Obligor; and
(iv) any
Excluded Subsidiary may be liquidated, wound up or dissolved;
(c) Asset
Dispositions of any Non-Core Business; and
148
(d) Asset
Dispositions not otherwise permitted by this Section 8.5 so long as (i) after giving effect thereto the Payment Conditions
are satisfied, (ii)(x) the transferor receives consideration (including by way of relief from, or by any other Person repaying or
assuming responsibility for, any liabilities, contingent or otherwise) at the time of such Asset Disposition at least equal to the Fair
Market Value of the shares or assets sold or otherwise disposed of and (y) such Asset Disposition is for consideration at least 75%
of which consists of cash or Cash Equivalents; provided, however, that this limitation shall not apply to any Asset Disposition
in which the cash or Cash Equivalent portion of the consideration received therefrom, determined in accordance with the foregoing clause (x),
is equal to or greater than what the after-tax proceeds would have been had such Asset Disposition complied with the aforementioned 75%
limitation, and (iii) before and after giving effect thereto, no Event of Default has occurred and is continuing;
provided that in the case of any Asset
Disposition to third parties in a single transaction or series of substantially concurrent related transactions of Rental Equipment having
a Fair Market Value exceeding (A) the greater of (x) $482,940,000 and (y) 3% of Consolidated Net Tangible Assets as of
the date of the applicable Asset Disposition, or (B) if after giving effect to such Asset Disposition on a pro forma basis Specified
Availability is at least $1,000,000,000, the greater of (x) $804,900,000 and (y) 5% of Consolidated Net Tangible Assets, the
Agent shall have received an updated Borrowing Base Certificate giving effect to such Asset Disposition on a pro forma basis.
(e) For
the purposes of Section 8.5(d), the following are deemed to be cash: (i) the repayment or assumption of Indebtedness
of the Company or any Restricted Subsidiary to the extent the Company or such Restricted Subsidiary is released from all liability on
payment of the principal amount of such Indebtedness in connection with such Asset Disposition, (ii) Indebtedness of any Restricted
Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Disposition to the extent that the Company and each other
Restricted Subsidiary are released in full from any guarantee of payment of the principal amount of such Indebtedness in connection with
such Asset Disposition, (iii) securities, notes or other obligations received by the Company or any Restricted Subsidiary from the
transferee that are converted by the Company or such Restricted Subsidiary into cash within 180 days, (iv) consideration consisting
of Indebtedness of the Company or any Restricted Subsidiary (provided that such Indebtedness is not expressly subordinated in right
of payment to the Obligations), (v) properties or assets that are used or useful in the business of the Company and the Restricted
Subsidiaries conducted at such time or in businesses reasonably related thereto or Capital Stock of a Person, the principal portion of
whose assets consists of such property or assets, or (vi) any Designated Non-cash Consideration received by the Company or any of
the Restricted Subsidiaries in an Asset Disposition; provided, however, that the aggregate Fair Market Value of all Designated
Non-cash Consideration received and treated as cash pursuant to this clause is not to exceed, at any time, an aggregate amount outstanding
equal to the greater of (x) $804,900,000 and (y) 5% of Consolidated Net Tangible Assets as of the date of the applicable Asset
Disposition, without giving effect to changes in value subsequent to the receipt of such Designated Non-cash Consideration.
8.6 [Intentionally
omitted].
8.7 Transactions
with Affiliates. Holdings will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, enter into
any transaction or series of related transactions (including the sale, transfer, disposition, purchase, exchange or lease of assets, property
or services) with, or for the benefit of, any Affiliates of Holdings involving aggregate consideration in excess of $75,000,000, unless
such transaction is on terms that are not materially less favorable to Holdings or such Restricted Subsidiary, as the case may be, than
those which could have been obtained in a comparable transaction at such time from Persons who are not Affiliates of Holdings, except
that this Section 8.7 shall not prohibit:
(a) transactions
with or among Obligors and the Restricted Subsidiaries;
(b) transactions
in the ordinary course of business, or approved by a majority of the board of directors of Holdings (or a relevant committee thereof),
between an Obligor or any Restricted Subsidiary and any Affiliate of Holdings;
(c) (i) customary
directors’ fees, indemnification and similar arrangements, consulting fees, employee salaries, bonuses or employment agreements,
collective bargaining agreements, compensation or employee benefit arrangements and incentive arrangements with any officer, director
or employee of an Obligor or any Restricted Subsidiary entered into in the ordinary course of business and (ii) any transaction with
an officer or director not involving more than $10,000,000 in any one year or that has been approved by the board of directors of Holdings
or a committee thereof;
149
(d) Distributions
or Investments made in compliance with Section 8.4;
(e) loans
and advances to officers, directors and employees of an Obligor or any Restricted Subsidiary for travel, entertainment, moving and other
relocation expenses, in each case made in the ordinary course of business;
(f) transactions
pursuant to agreements in effect on the Closing Date;
(g) any
sale, conveyance or other transfer of assets transferred in a Securitization Transaction to a Special Purpose Vehicle;
(h) transactions
with customers, clients, suppliers, licensees, licensors, joint venture partners, joint ventures, including their members or partners,
or purchasers or sellers of goods or services, in each case in the ordinary course of business, including pursuant to joint venture agreements,
and otherwise in compliance with the terms of this Agreement which are, in the aggregate (taking into account all the costs and benefits
associated with such transactions), materially no less favorable to the applicable Obligor or Restricted Subsidiary than those that would
have been obtained in a comparable transaction by such Obligor or Restricted Subsidiary with an unrelated person or entity, in the good
faith determination of Holdings’ board of directors or its senior management, or are on terms at least as favorable as might reasonably
have been obtained at such time from an unaffiliated party;
(i) any
purchase by Holdings or its Subsidiaries of the Capital Stock of any Wholly Owned Subsidiary; provided that such Capital Stock
shall be pledged to the Agent on behalf of the Secured Parties to the extent required by this Agreement or the Security Documents;
(j) any
issuance or sale of Capital Stock (other than Disqualified Stock) of the Company or any capital contribution to the Company; and
(k) transactions
in which Holdings or a Restricted Subsidiary, as the case may be, delivers to the Agent a letter from an accounting, appraisal or investment
banking firm of national standing stating that the financial terms of such transaction either (i) are fair to Holdings or such Restricted
Subsidiary, as applicable, from a financial point of view (or words of similar import) or (ii) are not materially less favorable
to Holdings or such Restricted Subsidiary, as the case may be, than those which could have been obtained in a comparable transaction at
such time from Persons who are not Affiliates of Holdings.
8.8 [Intentionally
omitted].
8.9 Fixed
Charge Coverage Ratio. In the event that Specified Availability is less than 10% of the Maximum Revolver Amount for five consecutive
Business Days (any such event being a “Covenant Trigger”), then, as of the date of such Covenant Trigger (each such
date, a “Covenant Trigger Date”) and thereafter until the date on which Specified Availability shall have been (a) at
least equal to 10% of the Maximum Revolver Amount for 20 consecutive calendar days or (b) at least equal to 15% of the Maximum
Revolver Amount for five consecutive calendar days (each such period commencing on a Covenant Trigger Date and ending on such date, a
“Covenant Trigger Period”), and during any Covenant Trigger Period thereafter, the Borrowers will not permit the Fixed
Charge Coverage Ratio, measured on a pro forma basis as of the last day of the most recently ended Fiscal Quarter for which financial
statements were required to have been delivered in accordance with Section 7.2, and for the period of four Fiscal Quarters
then ending, to be less than 1.0 to 1.0; provided that no Lender shall have an obligation to fund any Borrowing or issue any Letter
of Credit while Specified Availability is less than 10% of the Maximum Revolver Amount and the Fixed Charge Coverage Ratio, as measured
in accordance with this Section 8.9, is less than 1.0 to 1.0.
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ARTICLE IX
CONDITIONS
OF LENDING
9.1 Conditions
Precedent to Effectiveness of Agreement and Making of Loans on the Closing Date. The effectiveness of this Agreement, the obligation
of the Lenders to make any Loans on the Closing Date, and the obligation of the Agent to cause the applicable Letter of Credit Issuer
to issue any Letter of Credit on the Closing Date, are subject to the satisfaction (or waiver in writing by the Agent and the Arrangers)
of the following conditions precedent:
(a) This
Agreement, the U.S. Security Agreement, the Canadian Security Agreement, the Perfection Certificate and the Fee Letter among the Agent,
Holdings and the Borrowers shall have been executed by each party thereto.
(b) Since
December 31, 2024, there shall not have occurred a Material Adverse Effect.
(c) The
Agent and the Lenders shall have received (i) customary opinions of counsel for the Obligors (including Canadian counsel to the Canadian
Obligors, French counsel to any French Borrower, and local counsels to the ROW Obligors in Germany, the Netherlands, Puerto Rico, Belgium
and the U.K.) or of counsel for the Agent and Lenders (including Australia and New Zealand counsel) (as applicable) reasonably satisfactory
to the Agent; (ii) a copy of the certificate or articles of constitution/incorporation/amalgamation/amendment or memoranda of association
(or similar Charter Documents, including all amendments thereto to the extent such amendments are in full force and effect) of each Obligor,
certified as of a recent date by the Secretary of State of the state of its organization or other Governmental Authority (to the extent
applicable), and a certificate as to the good standing or status, to the extent applicable, of each Obligor as of a recent date, from
such Secretary of State or other Governmental Authority; (iii) a certificate of the Secretary or Assistant Secretary, director or
other officer or authorized signatory of each Obligor dated the Closing Date and certifying (1) that attached thereto is a true and
complete copy of the by-laws (or similar Charter Documents) of such Obligor as in effect on the Closing Date and at all times since a
date prior to the date of the resolutions described in clause (2) below, (2) that attached thereto is a true and
complete copy of resolutions duly adopted by the board of directors (or the equivalent governing body) of such Obligor authorizing the
execution, delivery and performance of the Loan Documents to which such Person is a party and, in the case of the Borrowers, the borrowings
hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (3) that the
certificate or articles of constitution/incorporation/amalgamation/amendment or memoranda of association/statuts (or similar Charter
Documents) of such Obligor have not been amended since the date of the last amendment thereto provided to the Agent and the Lenders, (4) as
to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith
on behalf of such Obligor and (5) in the case of each French Borrower, as to (I) a true, accurate and complete copy of a certificat
de non-faillite dated no earlier than 15 days prior to the Closing Date and (II) a true, accurate and complete copy of a Kbis
extract dated no earlier than 15 days prior to the Closing Date; and (iv) a certificate of another director or officer as to the
incumbency and specimen signature of the Secretary or Assistant Secretary, director or other officer or authorized signatory executing
the certificate pursuant to clause (iii) above.
(d) (i) The
Agent on behalf of the Secured Parties shall have been granted a first priority (subject to Permitted Priority Liens) and perfected security
interest in the Collateral pursuant to the applicable Loan Documents; and (ii) the Agent shall have received the following:
(A) to the extent not received prior to the Closing Date pursuant to the Original Loan Agreement or the Existing
Loan Agreement, certificates representing the equity interests (to the extent certificated and required to be pledged under the Loan Documents)
listed on Schedule 7 to the Perfection Certificate held by any Secured Obligor accompanied by undated stock powers executed in blank and
instruments listed on Schedule 8 to the Perfection Certificate held by any Secured Obligor, indorsed in blank,
(B) to the extent not received and filed prior to the Closing Date pursuant to the Original Loan Agreement
or the Existing Loan Agreement, proper financing statements in form appropriate for filing under the UCC and the PPSA of all jurisdictions
that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created
under the Security Documents, covering the Collateral described in the Security Documents, and
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(C) completed requests for information, dated on or before the Closing Date, listing all effective financing
statements filed in the jurisdictions referred to in clause (B) above that name any Obligor as debtor, together with
copies of such other financing statements.
(e) The
Borrowers shall have paid (i) all fees required to be paid and payable by the Obligors on the Closing Date under the Fee Letters,
(ii) reasonable and documented, out-of-pocket expenses of the Agent and the Attorney Costs incurred in connection with any of the
Loan Documents and the transactions contemplated thereby to the extent invoiced at least three Business Days prior to the Closing
Date and payable by the Obligors, (iii) all unpaid interest and fees accrued under the Existing Loan Agreement as of (and including)
the Closing Date pursuant to Section 1.10(d), (iv) any amounts payable under Section 5.4 of the Existing
Loan Agreement as required pursuant to Section 1.10(c) hereof and (v) any amounts payable under Section 5.4
as required pursuant to Section 1.10(e) or (f).
(f) To
the extent not received prior to the Closing Date pursuant to the Existing Loan Agreement, the Agent shall have received evidence of all
coverage and endorsements with respect to insurance required by this Agreement relating to the Collateral, including the requirements
set forth in Section 7.10.
(g) The
Agent and the Lenders shall have received a Borrowing Base Certificate prepared as of the last Business Day of the calendar month ended
May 31, 2025.
(h) The
Agent shall have received a certificate, dated the Closing Date and signed by a Responsible Officer of the Company, confirming compliance
with the conditions precedent set forth in this Section 9.1.
(i) The
Agent shall have received the financial statements referred to in Section 6.5(a).
(j) The
Agent shall have received a certificate, in substantially the form of Exhibit G, attesting to the Solvency of Holdings and
its Subsidiaries, taken as a whole, after giving effect to the Transaction, from Holdings’ Chief Financial Officer.
(k) (i) Upon
the reasonable request of any Lender made at least 10 days prior to the Agreement Date, Holdings and the Borrowers shall have provided
to such Lender the documentation and other information so requested in connection with applicable “know your customer” and
anti-money laundering rules and regulations, including the Act, in each case at least three days prior to the Agreement Date, and
(ii) at least three days prior to the Agreement Date, any Borrower that qualifies as a “legal entity customer” under
the Beneficial Ownership Regulation shall deliver, to each Lender that so requests in writing, at least 10 days prior to the Agreement
Date, a Beneficial Ownership Certification in relation to such Borrower.
(l) The
Combined Availability as of the Closing Date (after giving effect to the consummation of the Transactions, including the amendment and
restatement of the Existing Loan Agreement in the form hereof) shall not be less than $1,000,000,000.
(m) The
TEG Letter, dated the Closing Date, as required by Section 3.1(c) (Effective Global Rate in relation to any French Borrower),
shall have been executed by the Agent and countersigned by the applicable European Borrower.
Execution and delivery to
the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent
in this Section 9.1 have been fulfilled to the satisfaction of such Lender, (ii) the decision of such Lender to execute
and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Agent
or any other Lender as to the satisfaction of any condition precedent set forth in this Section 9.1, and (iii) all documents
sent to such Lender for approval, consent, or satisfaction were acceptable to such Lender.
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9.2 Conditions
Precedent to Each Loan. Subject to Section 1.3(l) with respect to Incremental ABL Term Loans the proceeds of which
are being used to finance a Limited Condition Transaction, the obligation of applicable Lenders to make each Loan, including Loans on
the Closing Date, and the obligation of the Agent to cause the applicable Letter of Credit Issuer to issue any Letter of Credit shall
be subject to the further conditions precedent that on and as of the date of any such extension of credit:
(a) The
following statements shall be true, and the acceptance by the applicable Borrowers of any extension of credit shall be deemed to be a
statement to the effect set forth in clauses (i) and (ii) with the same effect as the delivery to the Agent
and the Lenders of a certificate signed by a Responsible Officer, dated the date of such extension of credit, stating that:
(i) The
representations and warranties contained in this Agreement and the other Loan Documents are correct in all material respects (and any
representation and warranty that is qualified as to materiality or Material Adverse Effect is correct in all respects) on and as of the
date of such extension of credit as though made on and as of such date, other than any such representation or warranty which relates to
a specified prior date and except to the extent the Agent and the Lenders have been notified in writing by the Borrowers that any representation
or warranty is not correct in all material respects (or that any representation and warranty that is qualified as to materiality or Material
Adverse Effect is not correct in all respects) and the Required Lenders have explicitly waived in writing compliance with such representation
or warranty;
(ii) No
Default or Event of Default has occurred and is continuing, or would result from such extension of credit; and
(iii) The
Borrowing or issuance of the Letter of Credit is in compliance with the provisions of Article II.
(b) No
such Borrowing or issuance of the Letter of Credit shall exceed U.S. Availability or Canadian Availability, as applicable.
Notwithstanding anything to the contrary, the
foregoing conditions precedent in this Section 9.2 are not conditions to any Lender participating in or reimbursing the applicable
Bank or the Agent for such Lender’s Pro Rata Share of any applicable Swingline Loan or Agent Advance made in accordance with the
provisions of Sections 2.3 or Section 2.2(b), as applicable.
ARTICLE X
DEFAULT;
REMEDIES
10.1 Events
of Default. It shall constitute an event of default (“Event of Default”) if any one or more of the following shall
occur for any reason:
(a) any
failure by any of the Borrowers to pay: (i) the principal of any of the Loans when due, whether upon demand or otherwise, or the
reimbursement of any Letter of Credit issued pursuant to this Agreement when the same is due and payable; or (ii) any interest, fee
or other amount owing hereunder or under any of the other Loan Documents within five Business Days after the due date therefor, whether
upon demand or otherwise;
(b) any
representation or warranty made or deemed made by Holdings, any Borrower or any Guarantor in this Agreement or by any Obligor in any of
the other Loan Documents or any certificate furnished by any Obligor at any time to the Agent shall prove to be untrue in any material
respect as of the date on which made, deemed made, or furnished; provided that if any such representation or warranty is capable
of being cured, no Event of Default shall occur hereunder if such misrepresentation or breach of warranty is cured within 30 days
after a Responsible Officer of the Company shall have discovered or should have discovered such misrepresentation or breach of warranty;
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(c) (i) any
default shall occur in the observance or performance of any of the covenants and agreements contained in any of Section 7.3(b),
7.6 (with respect to maintenance of legal existence of the Company), 7.12, or 7.20(b), or Article VIII
of this Agreement; (ii) any default shall occur in the observance or performance of any of the covenants and agreements contained
in any of Section 7.4 or 7.17 of this Agreement, and such default shall continue for five Business Days or more;
or (iii) any other default shall occur in the observance or performance of any of the other covenants or agreements contained in
any other Section of this Agreement or any other Loan Document, and such default shall continue for 30 days or more after notice
thereof to the Borrowers by the Agent or the Required Lenders (or, in the case of Section 7.18 or 7.19, such default
shall continue for 30 days or more after the earlier of (x) notice thereof to the Borrowers by the Agent or the Required Lenders
and (y) any Obligor having knowledge of such default) (provided that a notice of default may not be given by the Agent or
the Required Lenders with respect to any action taken, and reported publicly or to the Agent and the Lenders, more than two years prior
to such notice of default; provided, further, that such two year limitation shall not apply if (A) the Agent has commenced
any remedial action in respect of any such Event of Default or (B) the Borrowers or any other Obligor has actual knowledge that such
action constitutes a Default or Event of Default and has not notified the Agent thereof);
(d) (i) any
payment default shall occur with respect to any payment of principal of or interest on any Indebtedness of Holdings, any Borrower or any
Significant Subsidiary, in each case (excluding the Loans and any Indebtedness owed to any Borrower or any other Obligor) in excess of
$300,000,000 and such default shall continue beyond the period of grace, if any, provided in the instrument or agreement under which such
Indebtedness was created, (ii) any default shall occur with respect to the observance or performance by Holdings, any Borrower or
any Significant Subsidiary of any other agreement relating to any Indebtedness of Holdings, such Borrower or such Significant Subsidiary
(excluding Indebtedness hereunder) referred to in clause (i) above or contained in any instrument or agreement evidencing,
securing or relating thereto (other than a failure to provide notice of a default or an event of default under such instrument or agreement
or default in the observance of or compliance with any financial maintenance covenant), or any other event shall occur or condition exist,
the effect of which default or other event or condition is to cause, or to permit the holder or holders of such Indebtedness (or a trustee
or agent on behalf of such holder or holders) to cause, with the giving of notice or lapse of time if required, such Indebtedness to become
due prior to its stated maturity (an “Acceleration”) and such time shall have lapsed and, if any notice (a “Default
Notice”) shall be required to commence a grace period or declare the occurrence of an event of default before notice of Acceleration
may be delivered, such Default Notice shall have been given and (in the case of the preceding clause (i) or this clause
(ii)) such default, event or condition shall not have been remedied or waived by or on behalf of such holder or holders (provided
that this clause (ii) shall not apply to (x) secured Indebtedness that becomes due as a result of the voluntary
sale or transfer of the property or assets securing such Indebtedness, if such sale or transfer is permitted hereunder, or (y) any
termination event or similar event pursuant to the terms of any interest rate Hedge Agreement) or (iii) there shall have been an
Acceleration of any Indebtedness (excluding Indebtedness hereunder) referred to in clause (i) above and, if the Agent has
not yet commenced the exercise of remedies under the Loan Documents, such Acceleration shall not have been rescinded;
(e) Holdings,
any Borrower or any Significant Subsidiary shall (i) file a voluntary petition in bankruptcy or file a voluntary petition, proposal,
notice of intention to file a proposal or an answer or otherwise commence any action or proceeding seeking reorganization, arrangement
or readjustment of its debts or for any other relief under the federal Bankruptcy Code, the BIA, the CCAA or under any other bankruptcy
or insolvency act or law, state, provincial, federal or foreign, now or hereafter existing, or consent to, approve of, or acquiesce in,
any such petition, action or proceeding; (ii) apply for or acquiesce in the appointment of a receiver, interim receiver, assignee,
liquidator, sequestrator, custodian, monitor, trustee or similar officer for it or for all or any part of its property; (iii) make
an assignment for the benefit of creditors; (iv) be unable generally to pay its debts as they become due; or (v) in the case
of a French Borrower, become the subject of an insolvency;
(f) an
involuntary petition shall be filed or an action or proceeding otherwise commenced seeking reorganization, arrangement, consolidation
or readjustment of the debts of Holdings, any Borrower or any Significant Subsidiary or for any other relief under the federal Bankruptcy
Code, the BIA, the CCAA or under any other applicable bankruptcy or insolvency act or law, state, provincial, federal or foreign, now
or hereafter existing, or any creditor shall file a notice of intention under the BIA to commence such a proceeding under the BIA, and
such petition, proceeding or notice shall not be dismissed within 60 days after the filing or commencement thereof or an order of
relief shall be entered with respect thereto;
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(g) (i) a
receiver, interim receiver, receiver and manager, administrative receiver, administrator, compulsory manager, assignee, liquidator, sequestrator,
custodian, monitor, trustee or similar officer for Holdings, any Borrower or any Significant Subsidiary or for all or any material part
of the property of Holdings, such Borrower or such Significant Subsidiary shall be appointed, (ii) a warrant of attachment, execution
or similar process shall be issued against any material part of the property of Holdings, any Borrower or any Significant Subsidiary and
such warrant or similar process shall not be vacated, discharged, stayed or bonded pending appeal within 60 days after the entry
thereof or (iii) in relation to an Obligor incorporated in New Zealand, any step is taken to appoint, or with a view to appointing,
a statutory manager (including the making of any recommendation in that regard by the Financial Markets Authority (NZ) under the Corporations
(Investigation and Management) Act 1989 in respect of such Obligor, or such Obligor or any related person (as that term is defined in
that Act) of such Obligor is declared at risk pursuant to the provisions of that Act);
(h) other
than as permitted under Section 8.5, Holdings, any Borrower or any Significant Subsidiary shall file a certificate of dissolution
under applicable state or provincial law or shall be liquidated, dissolved or wound-up or shall commence or have commenced against it
any action or proceeding for dissolution, winding-up or liquidation;
(i) this
Agreement or any Acceptable Intercreditor Agreement shall be terminated (other than in accordance with its terms), revoked or declared
void or invalid or unenforceable in any material respect or challenged by any Obligor;
(j) one
or more judgments, orders, decrees or arbitration awards is entered against Holdings, any Borrower or any Significant Subsidiary involving
in the aggregate, for Holdings, all Borrowers and all Significant Subsidiaries, liability as to any single or related or unrelated series
of transactions, incidents or conditions, in excess of $300,000,000 (except to the extent covered by insurance through an insurer who
does not deny or dispute coverage), and the same shall remain unsatisfied, unbonded, unvacated and unstayed pending appeal for a period
of 60 days after the entry thereof;
(k) (i) any
of the Security Documents or Guarantee Agreements shall cease for any reason to be in full force and effect in all material respects (other
than in accordance with its terms or the terms hereof, including Section 4.3(h)), or the Company or any Obligor, in each case
that is a party to any of the Security Documents or Guarantee Agreements shall so assert in writing, or (ii) the Lien created by
any of the Security Documents shall cease to be perfected and enforceable in accordance with its terms or of the same effect as to perfection
and priority purported to be created thereby, in each case in any material respect, with respect to any significant portion of the Collateral
(other than in connection with any termination of such Lien in respect of any Collateral as permitted hereby or by any Security Document),
and, in the case of the failure of a Lien solely on Collateral not comprising any Rental Equipment, Merchandise and Consumables Inventory,
any proceeds of any of the foregoing, any Material Accounts into which any such proceeds are deposited, any books or records related to
any of the foregoing, or any other assets related to any of the foregoing, such failure to be perfected and enforceable with such priority
shall have continued unremedied for a period of 30 days;
(l) (i) an
ERISA Event shall occur with respect to a Pension Plan or Multi-employer Plan which has resulted or would reasonably be expected to result
in liability of an Obligor under Title IV of ERISA to the Pension Plan, Multi-employer Plan or the PBGC; or (ii) an Obligor or any
ERISA Affiliate shall fail to pay when due, after the expiration of any applicable grace period, any installment payment with respect
to its withdrawal liability under Section 4201 of ERISA under a Multi-employer Plan and, in each case, such event or condition, together
with all other such events or conditions, if any, would reasonably be expected to have a Material Adverse Effect;
(m) a
Pension Event shall occur which has resulted or would reasonably be expected to result in liability of a Canadian Obligor to a Canadian
Pension Plan, a Canadian Obligor or any of the Restricted Subsidiaries is in default with respect to payments to a Canadian Pension Plan
resulting from their complete or partial withdrawal from such Canadian Pension Plan or any Lien arises (save for contribution amounts
not yet due) in connection with any Canadian Pension Plan and, in each case, such event or condition, together with all other such events
or conditions, if any, would reasonably be expected to have a Material Adverse Effect; or
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(n) there
occurs a Change of Control.
10.2 Remedies.
If an Event of Default has occurred and is continuing, with the consent of the Required Lenders (other than as provided in the proviso
to clause (e) below), the Agent may, or at the direction of the Required Lenders, the Agent shall, do one or more of
the following at any time or times and in any order, with notice to the Borrowers’ Agent (except no notice shall be required with
respect to an Event of Default referred to in the proviso to clause (e) below):
(a) reduce
the Maximum Pro Rata Revolver Amount, the Maximum ANZ Revolver Amount, the Maximum ROW Revolver Amount and/or the Maximum Canadian Revolver
Amount or the advance rates against Eligible Rental Equipment and/or Eligible Merchandise and Consumables Inventory used in computing
each Borrowing Base, or reduce one or more of the other elements used in computing each Borrowing Base, in each case to the extent determined
by the Agent or the Required Lenders, as the case may be;
(b) restrict
the amount of or refuse to make Loans;
(c) instruct
the Letter of Credit Issuers to restrict or refuse to provide Letters of Credit;
(d) terminate
the Commitments;
(e) declare
any or all Obligations (other than Designated Bank Products Obligations) to be immediately due and payable (the declaration of Designated
Bank Products Obligations becoming immediately due and payable to be governed by the documents evidencing, creating or otherwise governing
such Obligations); provided, however, that upon the occurrence of any Event of Default described in Section 10.1(e),
10.1(f), 10.1(g), or 10.1(h), the Commitments shall automatically and immediately expire and terminate and all Obligations
shall automatically become immediately due and payable without notice, demand or consent of any kind;
(f) require
the Obligors to cash collateralize all Obligations (contingent or otherwise) with respect to outstanding Letters of Credit; and
(g) pursue
its other rights and remedies under the Loan Documents and applicable law.
ARTICLE XI
TERM
AND TERMINATION
11.1 Term
and Termination. The term of this Agreement shall end on the Maturity Date unless sooner terminated in accordance with the terms hereof.
Upon the effective date of termination of this Agreement, all Obligations other than Designated Bank Products Obligations (including all
unpaid principal, accrued and unpaid interest and any amounts due under Section 5.4) shall become immediately due and payable
(the becoming immediately due and payable of Designated Bank Products Obligations to be governed by the documents evidencing, creating
or otherwise governing such Obligations) and the Borrowers shall immediately arrange, with respect to all Letters of Credit then outstanding,
for (a) the cancellation and return thereof or (b) the cash collateralization thereof or issuance of Supporting Letters of Credit
with respect thereto in accordance with Section 2.4(g). Notwithstanding the termination of this Agreement, until Full Payment
of all Obligations, the Borrowers shall remain bound by the terms of this Agreement and shall not be relieved of any of their Obligations
hereunder or under any other Loan Document, and the Agent and the Lenders shall retain all their rights and remedies hereunder (including
the Agent’s Liens on and all rights and remedies with respect to all then existing and after-arising Collateral).
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ARTICLE XII
AMENDMENTS;
WAIVERS; PARTICIPATIONS; ASSIGNMENTS; SUCCESSORS
12.1 Amendments
and Waivers.
(a)
(i) No
amendment or waiver of any provision of this Agreement or any other Loan Document, and no consent with respect to any departure by any
Borrower or other Obligor therefrom, shall be effective unless the same shall be in writing and, except as provided in Sections 1.7,
1.9, 2.2(d), 2.5, 2.6, 2.7 and 5.7, signed by the Required Lenders (or by the Agent with the
consent of the Required Lenders) and the Obligors party thereto (except that no consent of any Obligors shall be required in the case
of amendments of Article XIII, other than amendments of Section 13.9 which affect the Borrowers’ rights
thereunder) and then any such waiver or consent shall be effective only in the specific instance and for the specific purpose for which
given;
(ii) Notwithstanding
the foregoing, no such waiver, amendment, or consent shall be effective to modify eligibility criteria, reserves or sublimits contained
in the definition of “U.S. Borrowing Base”, “Canadian Borrowing Base”, “Merchandise and Consumables
Inventory Formula Amount”, “Eligible Rental Equipment” or “Reserves” or any successor or related definition,
in each case that would have the effect of increasing Combined Availability or any Borrowing Base unless it is consented to in writing
by the Supermajority Lenders and the Borrowers; provided that to the extent (x) that any change shall have been made to any
eligibility criteria or reserves after the Agreement Date based solely on the Agent’s Reasonable Credit Judgment pursuant to the
terms of this Agreement (and not by an amendment or modification of this Agreement or any consent of the Lenders), and (y) such change
has the effect of decreasing Combined Availability or any Borrowing Base, the Agent may thereafter reverse such change, in whole or in
part, if it determines to do so in the exercise of its Reasonable Credit Judgment;
(iii) Notwithstanding
the foregoing, except as provided in Sections 1.7, 1.9, 2.2(d), 2.5, 2.6, 2.7 and 5.7,
no such waiver, amendment, or consent shall be effective with respect to the following, unless consented to in writing by all Lenders
(or the Agent with the consent of all Lenders) and the Borrowers:
(A) decrease
the percentage of the Commitments or of the aggregate unpaid principal amount of the Loans which is required for the Lenders or any of
them to take any action hereunder;
(B) amend
this Section 12.1 or any provision of this Agreement providing for consent or other action by all Lenders;
(C) release
all or substantially all of the value of the Guarantees of the Guarantors with respect to any Obligations owing under the U.S. Guarantee
Agreement or the Canadian Guarantee Agreement other than as permitted by Section 13.11;
(D) release
all or substantially all of the value of the U.S. Collateral or the Canadian Collateral other than as permitted by Section 13.11;
(E) change
the definition of “Required Lenders” or “Supermajority Lenders”;
(F) increase
the Maximum Revolver Amount (other than as contemplated in Section 2.5); or
(G) contractually
subordinate the payment of all the Obligations to any other Indebtedness or contractually subordinate the priority of any of the Agent’s
Liens to the Liens securing any other Indebtedness;
(iv) Notwithstanding
the foregoing, except as provided in Sections 1.7, 1.9, 2.2(d), 2.5, 2.6, 2.7 and 5.7,
no such waiver, amendment, or consent shall be effective with respect to the following, unless consented to in writing by all affected
Lenders (or the Agent with the consent of all affected Lenders) and the Borrowers:
(A) increase
or extend any Commitment of any Lender;
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(B) increase
any of the advance rates set forth in the definition of “U.S. Borrowing Base” or “Canadian Borrowing Base”;
(C) postpone
or delay any date fixed by this Agreement or any other Loan Document for any (i) scheduled payment of principal, interest or fees
or (ii) other amounts due to the Lenders (or any of them) hereunder or under any other Loan Document;
(D) reduce
the principal of, or the rate of interest specified herein (other than waivers of the Default Rate) on any Loan, or any fees or other
amounts payable hereunder or under any other Loan Document; or
(E) increase
the Maximum ROW Revolver Amount or the Maximum Canadian Revolver Amount (other than as contemplated in Section 2.2(d) or
2.5, as applicable), or the Letter of Credit Subfacility;
(v) Notwithstanding
the foregoing, except as provided in Sections 1.7, 1.9, 2.2(d), 2.5, 2.6, 2.7 and 5.7,
no such waiver, amendment, or consent shall be effective to change Section 4.6 in a manner that would alter the pro rata
sharing of payments required thereby without the written consent of each Lender;
(vi) Notwithstanding
the foregoing, no such waiver, amendment, or consent shall be effective to increase the obligations or adversely affect the rights of
the Agent, any Letter of Credit Issuer or any Swingline Lender without the consent of the party affected thereby;
provided, however, that (A) the
Agent may, in its sole discretion and notwithstanding the limitations contained in clauses (ii), (iii)(B) and
(iii)(F) above and any other terms of this Agreement, make applicable Agent Advances in accordance with Section 2.2(b);
(B) Schedule 1.1 hereto (Lenders’ Commitments) may be amended from time to time by the Agent alone to reflect assignments
of Commitments in accordance herewith and changes in Commitments in accordance with Section 2.5 or Section 4.3;
(C) no amendment or waiver shall be made to Section 13.20 or to any other provision of any Loan Document as such provisions
relate to the rights and obligations of any Arranger without the written consent of such Arranger; (D) no amendment or waiver shall
be made to Section 2.10 (or the defined terms used therein as they relate to such Section), Schedule 2.10A, Schedule
2.10B or the definition of “Participating Canadian Lender” or “Participating ROW Lender”, in each case without
the written consent of the Agent, Bank of America and the Borrowers’ Agent; (E) any applicable Fee Letter may be amended or
waived in a writing signed by Holdings, the Borrowers, the applicable Arranger party thereto and the Agent; (F) any applicable TEG
Letter may be amended in a writing signed by the Agent and the applicable French Borrower party thereto; (G) any Loan Document relating
to Hedge Agreements and other Bank Products may be amended by the applicable Obligors and the Agent, the Lender or Affiliate of the Agent
or such Lender providing such Hedge Agreement or other Bank Product without the consent or approval of the Agent (unless the Agent is
providing such Bank Product) or any other Lender; and (H) notwithstanding anything to the contrary herein, the Agent and the Borrowers’
Agent may amend, modify or supplement this Agreement in order to (i) effect administrative and operational changes, and other changes
deemed by the Agent and the Borrowers’ Agent to be reasonably necessary to reflect or implement regulatory matters or changes regarding
the Additional Designated European Borrowers and the facilities made available to them, and such amendment shall become effective without
further consent of any other party, (ii) create a new tranche of Commitments and related Loans that will be made available to one
or more European Borrowers (and the creation of such tranche may include the reallocation of Pro Rata Revolving Commitments of consenting
Lenders to such new tranche (and the Pro Rata Revolving Commitments of such consenting Lenders will be correspondingly decreased upon
any such reallocation)); provided that any amendment to effectuate this clause (H)(ii) shall, in addition to the consent of
the Agent and the Borrowers’ Agent, require the consent of the Lenders in respect of such new tranche; provided further that
each such Lender must be approved by the Agent, and/or (iii) revise Section 2.10 (and any defined terms used therein
and other Schedules and provisions of this Agreement relating thereto) to implement participation mechanics with respect to the Pro Rata
Revolving Commitments of Pro Rata Revolving Lenders to the extent necessary to permit such Pro Rata Revolving Lenders to participate in
Loans made to European Borrowers; provided that any amendment to effectuate this clause (H)(iii) shall, in addition to the
consent of the Agent and the Borrowers’ Agent, require the consent of such Pro Rata Revolving Lenders.
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Notwithstanding anything to
the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except
that (x) the Commitment of such Lender may not be increased or extended and (y) the accrued and unpaid amount of any principal,
interest or fees payable to such Lender shall not be reduced, in either case, without the consent of such Lender.
(b) If,
in connection with any proposed amendment, waiver or consent (a “Proposed Change”) requiring the consent of all Lenders
or all affected Lenders, the consent of Required Lenders is obtained, but the consent of other Lenders is not obtained (any such Lender
whose consent is not obtained being referred to as a “Non-Consenting Lender”), then, so long as the Agent is not a
Non-Consenting Lender, at the Borrowers’ request (and, if applicable, payment by the Borrowers of the processing fee referred to
in Section 12.2(a)), the Agent or an Eligible Assignee shall have the right (but not the obligation) with the Agent’s
approval, to purchase from the Non-Consenting Lenders, and the Non-Consenting Lenders agree that they shall sell, all of the Non-Consenting
Lenders’ interests, rights and obligations under the Loan Documents, in accordance with the procedures set forth in clauses (i) through
(v) in the proviso to Section 5.9 and the last sentence in Section 5.9, as if each such Non-Consenting
Lender is an assignor Lender thereunder; provided that no action by or consent of the Non-Consenting Lenders shall be necessary
in connection with any assignment under this Section 12.1(b), and such assignment shall be immediately and automatically effective
upon payment by the Agent or Eligible Assignee of the applicable purchase price.
(c) Notwithstanding
any provision herein to the contrary, this Agreement and the other Loan Documents may be amended: (i) (A) to cure any ambiguity,
mistake, omission, defect, inconsistency, obvious error or technical errors (as reasonably determined by the Agent and the Borrowers’
Agent), (B) to effect administrative changes of a technical or immaterial nature, and such amendment shall be deemed approved by
the Lenders if the Lenders shall have received at least five Business Days’ prior written notice of such change and the Agent shall
not have received, within five Business Days of the date of such notice to the Lenders, a written notice from the Required Lenders stating
that the Required Lenders object to such amendment, and (C) to comply with local laws or on the advice of local counsel and to cause
any guarantee, collateral security documents or other documents to be consistent with this Agreement and the other Loan Documents; (ii) in
accordance with Section 2.5 to incorporate the terms of any Incremental ABL Term Loans and Incremental Revolving Commitments
and to provide for non-pro rata borrowings and payments of any amounts hereunder as between the Loans or other loans and any Commitments
or other commitments in connection therewith; (iii) in accordance with Section 2.6 to effectuate an Extension Amendment
and to provide for non-pro rata borrowings and payments of any amounts hereunder as between the Loans and any Commitments in connection
therewith; (iv) in accordance with Section 2.7 to incorporate the terms of any Refinancing Commitments and to provide
for non-pro rata borrowings and payments of any amounts hereunder as between the Loans or other loans and any Commitments or other
commitments in connection therewith; (v) in accordance with Section 1.2(b) in connection with a change in GAAP or
the application thereof; (vi) in accordance with Section 1.9 to modify any existing definitions or terms or incorporate
any additional definitions or terms related, incidental or complementary to the designation of any Additional Borrower or the termination
of a Borrower’s status as such; (vii) to reflect the inclusion of any additional Alternative Currency, in accordance with Section 1.7;
(viii) to reflect changes to the Maximum Canadian Revolver Amount or the Maximum ROW Revolver Amount, in each case, in accordance
with Section 2.2(d); or (ix) to replace any Benchmark and reflect any Benchmark Replacement Conforming Changes pursuant
to Section 5.7; in each case, with the consent of the Agent but without the consent of any Lender (except as expressly provided
in Section 1.7, 1.9, 2.2(d), 2.5, 2.6, 2.7 or 5.7, as applicable).
12.2 Assignments;
Participations.
(a) Any
Lender may, with the written consent of (i) the Agent, (ii) the Swingline Lenders (other than the European Swingline Lender
and the ROW Swingline Lender) and the Letter of Credit Issuers, and (iii) so long as no Event of Default pursuant to paragraph
(a), (e), (f), (g) or (h) of Section 10.1 has occurred and is continuing, the Borrowers’
Agent (which consents shall not be unreasonably withheld or delayed), assign and delegate to one or more Eligible Assignees (provided
that no such consent shall be required in connection with any assignment to an Approved Fund or to a Lender or to an Affiliate or branch
of a Lender) (each an “Assignee”) all, or any ratable part of all, of the Loans, the Commitments and the other rights
and obligations of such Lender hereunder, in a minimum amount of $5,000,000; provided, however, that (w) written notice
of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall be given
to the Borrowers’ Agent and the Agent by such Lender and the Assignee; (x) such Lender and its Assignee shall deliver to the
Borrowers’ Agent and the Agent an Assignment and Acceptance; (y) the Assignee, if it shall not be a Lender, shall deliver to
the Agent any tax forms and information required by Section 5.1(f) and Section 5.1(h); and (z) the assignor
Lender or Assignee shall pay to the Agent a processing fee in the amount of $3,500; provided, further, that the Agent may
elect to waive such processing fee in its sole discretion.
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(b) From
and after the date that the Agent has received an executed Assignment and Acceptance, the Agent has received any tax forms and information
required by Section 5.1(f) and Section 5.1(h) (unless the Assignee shall already be a Lender hereunder),
the Agent has received payment of the above-referenced processing fee and the Agent has recorded such assignment in the Register as provided
in Section 13.21 herein, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations,
including, but not limited to, the obligation to participate in Letters of Credit, have been assigned to it pursuant to such Assignment
and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor Lender shall, to
the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment
and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and in the case of an Assignment and
Acceptance covering all or the remaining portion of an assignor Lender’s rights and obligations under this Agreement, such assignor
Lender shall cease to be a party hereto).
(c) By
executing and delivering an Assignment and Acceptance, the assignor Lender thereunder and the Assignee thereunder confirm to and agree
with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assignor
Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations
made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto or the attachment, perfection, or priority
of any Lien granted by any Obligor to the Agent or any Lender in the applicable Collateral; (ii) such assignor Lender makes no representation
or warranty and assumes no responsibility with respect to the financial condition of any Obligor or the performance or observance by any
Obligor of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto; (iii) such Assignee
confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate
to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such Assignee will, independently
and without reliance upon the Agent, such assignor Lender or any other Lender, and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such
Assignee appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers under this Agreement
as are delegated to the Agent by the terms hereof, together with such powers, including the discretionary rights and incidental powers,
as are reasonably incidental thereto; and (vi) such Assignee agrees that it will perform in accordance with their terms all of the
obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately
upon satisfaction of the requirements of Section 12.2(a), this Agreement shall be deemed to be amended to the extent, but
only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom.
Each Commitment allocated to each Assignee shall reduce the applicable Commitment of the assignor Lender pro tanto.
(e) Any
Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of the Borrowers
(a “Participant”), in each case that is not a Disqualified Lender, participating interests in any Loans, any Commitment
of that Lender and the other interests of that Lender (the “Originating Lender”) hereunder and under the other Loan
Documents; provided, however, that (i) the Originating Lender’s obligations under this Agreement shall remain
unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) the applicable
Borrowers and the Agent shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender’s
rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender shall transfer or grant any participating
interest under which the Participant has rights to approve any amendment to, or any consent or waiver with respect to, this Agreement
or any other Loan Document except the matters set forth in Sections 12.1(a)(iii)(C) and (D) and Section 12.1(a)(iv),
and all amounts payable by the Borrowers hereunder shall be determined as if such Lender had not sold such participation; except that,
if amounts outstanding under this Agreement are due and unpaid, or shall have become due and payable upon the occurrence of an Event of
Default, each Participant shall be deemed to have the right of setoff in respect of its participating interest in amounts owing under
this Agreement to the same extent and subject to the same limitation as if the amount of its participating interest were owing directly
to it as a Lender under this Agreement. Subject to paragraph (g) of this Section 12.2, each Borrower agrees that
each Participant shall be entitled to the benefits of Sections 5.1, 5.2 and 5.3 to the same extent as if it
were a Lender and had acquired its interest by assignment pursuant to paragraph (a) of this Section 12.2.
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(f) Notwithstanding
any other provision in this Agreement, any Lender may at any time create a security interest in, or pledge, all or any portion of its
rights under and interest in this Agreement in favor of any Federal Reserve Bank in accordance with Regulation A of the FRB or U.S. Treasury
Regulation 31 CFR § 203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner
permitted under applicable law.
(g) A
Participant shall not be entitled to receive any greater payment under Section 5.1 or 5.3 than the Originating Lender
would have been entitled to receive with respect to the participating interest sold to such Participant, unless the sale of the participating
interest to such Participant is made with the applicable Borrowers’ prior written consent and the applicable Borrowers expressly
waive the benefit of this provision at the time of such sale. A Participant that would be subject to the requirements of Section 5.1(f) if
it were a Lender shall not be entitled to the benefits of Section 5.1 unless the applicable Borrowers are notified of the
participating interest sold to such Participant and such Participant agrees, for the benefit of the applicable Borrowers, to comply with
Section 5.1(f) as though it were a Lender.
ARTICLE XIII
THE
AGENT
13.1 Appointment
and Authorization. Each Lender hereby designates and appoints Bank as its Agent under this Agreement and the other Loan Documents
and each Lender hereby irrevocably authorizes the Agent to take such action on its behalf under the provisions of this Agreement and each
other Loan Document and to exercise such powers and perform such duties as are expressly delegated to it by the terms of this Agreement
or any other Loan Document, together with such powers as are reasonably incidental thereto. The Agent agrees to act as such on the express
conditions contained in this Article XIII. The provisions of this Article XIII (other than Sections 13.9,
13.11(a), 13.11(b) and 13.15(c)) are solely for the benefit of the Agent and the Lenders, and the Borrowers
shall have no rights as third party beneficiaries of any of the provisions contained herein. Notwithstanding any provision to the contrary
contained elsewhere in this Agreement or in any other Loan Document, the Agent shall not have any duties or responsibilities, except those
expressly set forth herein, nor shall the Agent have or be deemed to have any fiduciary relationship with any Lender, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or otherwise
exist against the Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement
with reference to the Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine
of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative
relationship between independent contracting parties. Except as expressly otherwise provided in this Agreement, the Agent shall have and
may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining
from taking any actions which the Agent is expressly entitled to take or assert under this Agreement and the other Loan Documents, including
(a) the determination of the applicability of ineligibility criteria with respect to the calculation of the U.S. Borrowing Base
or the Canadian Borrowing Base, as applicable, (b) the making of Agent Advances pursuant to Section 2.2(b), and (c) the
exercise of remedies pursuant to Section 10.2, and any action so taken or not taken shall be deemed consented to by the Lenders.
13.2 Delegation
of Duties. The Agent may execute any of its duties under this Agreement or any other Loan Document by or through agents, employees
or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. The Agent shall not
be responsible for the negligence or misconduct of any agent or attorney-in-fact that it selects as long as such selection was made without
gross negligence or willful misconduct. Without limiting the generality of the foregoing, the Agent hereby appoints the Borrowers’
Agent to be a subagent solely of the Agent solely for the purpose of (a) causing (i) the Agent to be named as lienholder, secured
party, legal owner or such other capacity, as appropriate, on the certificate of title for any Titled Goods or (ii) on any filing
or registration statement in favor of the Agent, effected under the Loan Documents in the PPSA or otherwise, the addition of any Titled
Goods by its VIN or serial number, in either case in order to create and/or perfect the security interest of the Secured Parties therein
and (b)(i) releasing any such security interest upon a sale of the Titled Goods covered thereby in compliance with the terms of this
Agreement and (ii) removing the VIN or serial number of Titled Goods upon a sale thereof; provided that (x) the Borrowers’
Agent in such capacity may appoint other third-party subagents reasonably acceptable to the Agent, (y) neither the Borrowers’
Agent nor any such subagent shall be authorized to take any other action with respect to any such Collateral unless and except to the
extent expressly authorized in writing by the Agent, and (z) such appointment, and any further subagency, may be terminated by the
Agent at any time by notice to the Borrowers’ Agent.
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13.3 Liability
of Agent. None of the Agent-Related Persons shall (a) be liable for any action taken or omitted to be taken by any of them under
or in connection with this Agreement or any other Loan Document or the transactions contemplated hereby (except for its own gross negligence
or willful misconduct), or (b) be responsible in any manner to any of the Lenders for any recital, statement, representation or warranty
made by any Obligor or any Subsidiary or Affiliate of any Obligor, or any officer thereof, contained in this Agreement or in any other
Loan Document, or in any certificate, report, statement or other document referred to or provided for in, or received by the Agent under
or in connection with, this Agreement or any other Loan Document, or the validity, effectiveness, genuineness, enforceability or sufficiency
of this Agreement or any other Loan Document, or for any failure of any Obligor or any other party to any Loan Document to perform its
obligations hereunder or thereunder. No Agent-Related Person shall be under any obligation to any Lender to ascertain or to inquire as
to the observance or performance of any of the agreements contained in, or conditions of, this Agreement or any other Loan Document, or
to inspect the properties, books or records of any Obligor or any of its Subsidiaries or Affiliates.
13.4 Reliance
by Agent. The Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent,
certificate, affidavit, letter, telegram, facsimile, telex or telephone message, statement or other document or conversation believed
by it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons, and upon advice and statements
of legal counsel (including counsel to any Obligor), independent accountants and other experts selected by the Agent. The Agent shall
be fully justified in failing or refusing to take any action under this Agreement or any other Loan Document unless it shall first receive
such advice or concurrence of the Required Lenders as it deems appropriate and, if it so requests, it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense which may be incurred by it by reason of taking or continuing to
take any such action. The Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement or
any other Loan Document in accordance with a request or consent of the Required Lenders (or all Lenders if so required by Section 12.1)
and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Lenders.
13.5 Notice
of Default. The Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless
the Agent shall have received written notice from a Lender or the Borrowers referring to this Agreement, describing such Default or Event
of Default and stating that such notice is a “notice of default.” The Agent will notify the Lenders of their receipt of any
such notice. The Agent shall take such action with respect to such Default or Event of Default as may be requested by the Required Lenders
in accordance with Article X; provided, however, that unless and until the Agent has received any such request,
the Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Default or Event
of Default as they shall deem advisable.
13.6 Credit
Decision. Each Lender acknowledges that none of the Agent-Related Persons has made any representation or warranty to it, and that
no act by the Agent hereinafter taken, including any review of the affairs of the Borrowers and their Affiliates, shall be deemed to constitute
any representation or warranty by any Agent-Related Person to any Lender. Each Lender represents to the Agent that it has, independently
and without reliance upon any Agent-Related Person and based on such documents and information as it has deemed appropriate, made its
own appraisal of and investigation into the business, prospects, operations, property, financial and other condition and creditworthiness
of the Obligors and their Affiliates, and all applicable bank regulatory laws relating to the transactions contemplated hereby, and made
its own decision to enter into this Agreement and to extend credit to the Borrowers. Each Lender also represents that it will, independently
and without reliance upon any Agent-Related Person and based on such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in taking or not taking action under this Agreement and the other Loan
Documents, and to make such investigations as it deems necessary to inform itself as to the business, prospects, operations, property,
financial and other condition and creditworthiness of the Obligors and their Affiliates. Except for notices, reports and other documents
expressly herein required to be furnished to the Lenders by the Agent, the Agent shall not have any duty or responsibility to provide
any Lender with any credit or other information concerning the business, prospects, operations, property, financial and other condition
or creditworthiness of the Obligors or any of their Affiliates which may come into the possession of any of the Agent-Related Persons.
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13.7 Indemnification.
Whether or not the transactions contemplated hereby are consummated, the Lenders shall indemnify upon demand the Agent-Related Persons
(to the extent not reimbursed by or on behalf of the Borrowers and without limiting the obligation of the Borrowers to do so), ratably
in accordance with their respective Pro Rata Shares, from and against any and all Indemnified Liabilities as such term is defined in Section 14.10;
provided, however, that no Lender shall be liable for the payment to such Agent-Related Persons of any portion of such Indemnified
Liabilities to the extent resulting from such Person’s gross negligence or willful misconduct. Without limitation of the foregoing,
each Lender shall ratably reimburse the Agent upon demand for its share of any costs or out-of-pocket expenses (including Attorney Costs)
incurred by the Agent in connection with the preparation, execution, delivery, administration, modification, amendment or enforcement
(whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under, this
Agreement, any other Loan Document, or any document contemplated by or referred to herein, to the extent that the Agent is not reimbursed
for such expenses by or on behalf of the Borrowers. The undertaking in this Section 13.7 shall survive the payment of all
Obligations hereunder and the resignation or replacement of the Agent.
13.8 Agent
in Individual Capacity. The Bank and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits
from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting or other business
with the Obligors and their Subsidiaries and Affiliates as though the Bank were not the Agent hereunder and without notice to or consent
of the Lenders. The Bank and its Affiliates may receive information regarding the Obligors, their Affiliates and Account Debtors (including
information that may be subject to confidentiality obligations in favor of the Obligors, such Affiliates or such Account Debtors) and
the Lenders hereby acknowledge that the Agent and the Bank shall be under no obligation to provide such information to them. With respect
to its Loans, the Bank shall have the same rights and powers under this Agreement as any other Lender and may exercise the same as though
it were not the Agent, and the terms “Lender” and “Lenders” include the Bank in its individual capacity.
13.9 Successor
Agent. The Agent may resign as Agent upon at least 30 days’ prior notice to the Lenders and the Borrowers’ Agent,
such resignation to be effective at the end of such 30-day period (or such earlier date on which a successor agent shall have accepted
its appointment or as shall be agreed by the Required Lenders). In the event the Bank sells all of its Loans and/or Commitments as part
of a sale, transfer or other disposition by the Bank of substantially all of its loan portfolio, the Bank shall resign as Agent and such
purchaser or transferee shall become the successor Agent hereunder. Subject to the foregoing, if the Agent resigns under this Agreement,
the Required Lenders (with the prior consent of the Borrowers’ Agent, such consent not to be unreasonably withheld and such consent
not to be required if an Event of Default pursuant to paragraphs (a), (e), (f), (g) or (h) of
Section 10.1 has occurred and is continuing) shall appoint from among the Lenders a successor agent for the Lenders, which
successor agent shall be a Lender and a commercial bank, commercial finance company or other asset-based lender having total assets in
excess of $5,000,000,000. If no successor agent is appointed prior to the effective date of the resignation of the Agent, the Agent may
appoint, after consulting with the Lenders and the Borrowers’ Agent, a successor agent from among the Lenders. Notwithstanding the
above, no successor Agent may be incorporated, domiciled or established in a Non-Cooperative Jurisdiction without the prior consent of
the Borrowers’ Agent, which shall not be unreasonably withheld. Upon the acceptance of its appointment as successor agent hereunder,
such successor agent shall succeed to all the rights, powers and duties of the retiring Agent and the term “Agent” shall mean
such successor agent and the retiring Agent’s appointment, powers and duties as Agent shall be terminated. After any retiring Agent’s
resignation hereunder as Agent, the provisions of this Article XIII and Section 14.10 shall continue to inure
to its benefit as to any actions taken or omitted to be taken by it while it was Agent under this Agreement.
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13.10 Withholding
Tax.
(a) If
any Lender is entitled to a reduction in the applicable withholding Tax, the Agent may withhold from any interest payment to such Lender
an amount equivalent to the applicable withholding Tax after taking into account such reduction. If the forms or other documentation required
by Section 5.1(f) or Section 5.1(h) are not delivered to the Agent and the Borrowers’ Agent (or,
in the case of Section 5.1(h), the Agent only), then the Agent may withhold from any interest payment to such Lender not providing
such forms or other documentation an amount equivalent to the applicable withholding Tax.
(b) If
the IRS or any other Governmental Authority of the United States of America or other jurisdiction asserts a claim that the Agent did not
properly withhold Tax from amounts paid to or for the account of any Lender (because the appropriate form was not delivered, was not properly
executed, or because such Lender failed to notify the Agent of a change in circumstances which rendered the exemption from, or reduction
of, withholding Tax ineffective, or for any other reason) such Lender shall indemnify the Agent fully for all amounts paid, directly or
indirectly, by the Agent as Tax or otherwise, including, for the avoidance of doubt, penalties and interest, and including any Taxes imposed
by any jurisdiction on the amounts payable to the Agent under this Section 13.10, together with all costs and expenses (including
Attorney Costs). The obligation of the Lenders under this subsection shall survive the payment of all Obligations and the resignation
or replacement of the Agent.
(c) Each
Lender hereby represents and warrants to the other parties hereto that it is and at all relevant times will be dealing at arm’s
length for the purposes of the Income Tax Act (Canada) with the Canadian Borrowers and the Agent.
13.11 Collateral
Matters.
.
(a) The
Lenders hereby irrevocably authorize the Agent (and if applicable, any subagent appointed by the Agent under Section 13.2
or otherwise), and the Agent (and if applicable, any subagent appointed by the Agent under Section 13.2 or otherwise) shall
hereby have the obligation to release, subject to the satisfaction of any conditions to release (if any) set forth herein, including the
continuance of the applicable Agent’s Lien on any proceeds of released Collateral, any such Agent’s Liens upon any Collateral
(i) upon Full Payment of the Obligations; (ii) constituting property being sold, transferred or disposed of (to any Person that
is not an Obligor), if the sale, transfer or disposition is made in compliance with this Agreement (which shall, upon reasonable request
by the Agent, be certified by the Borrowers’ Agent, and the Agent may rely conclusively on any such certification without further
inquiry; provided that no certification shall be required at any time with respect to any sales of items of Rental Equipment in
the ordinary course of business so long as such Agent’s Lien continues in the proceeds of such Collateral); (iii) constituting
property in which the Obligors owned no interest at the time the Lien was granted or at any time thereafter; (iv) constituting property
leased to an Obligor under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) constituting
Relinquished Property, if such Relinquished Property shall have been delivered to the applicable Qualified Intermediary in accordance
with the applicable exchange agreement and a first priority perfected security interest shall have been granted by the applicable exchanger
to the Agent for the benefit of the Secured Parties of a first priority perfected security interest in the rights of such exchanger in,
to and under the related exchange agreement; (vi) constituting any Like-Kind Exchange Account; (vii) subject to Section 7.20(b),
constituting property being sold, assigned, pledged or otherwise transferred pursuant to any Securitization Transaction; (viii) being
or becoming an Excluded Asset (as defined in the U.S. Security Agreement or the Canadian Security Agreement, as applicable); (ix) constituting
property that is owned by a Guarantor that has been released from its obligations under the U.S. Guarantee Agreement or the Canadian Guarantee
Agreement, as applicable, pursuant to this Section 13.11 or Section 4.3(h) or (x) constituting property
that is not required to be Collateral. Except as provided above or in Section 12.1, the Agent will not release any of such
Agent’s Liens without the prior written authorization of the Required Lenders; provided that, in addition to the foregoing,
(x) the Agent may, in its discretion, release such Agent’s Liens on Collateral valued, in the aggregate for any such release,
not in excess of (A) the greater of (1) $804,900,000 and (2) 5% of Consolidated Net Tangible Assets, or (B) if after
giving effect to such sale, conveyance, transfer, lease or other disposition on a pro forma basis Specified Availability is at least $1,000,000,000,
the greater of (1) $1,207,350,000 and (2) 7.5% of Consolidated Net Tangible Assets; and (y) the Agent may release the Agent’s
Liens on Collateral with the prior written authorization of Required Lenders, so long as all proceeds received in connection with any
such release under clause (x) or (y) above are applied to the Obligations in accordance with Section 4.6
and, after giving effect to the application of such proceeds and the updating of the U.S. Borrowing Base or the Canadian Borrowing
Base, as the case may be, to reflect the deletion of any assets subject to such release, U.S. Availability or Canadian Availability,
as the case may be, shall be no less than the U.S. Availability or the Canadian Availability, as the case may be, immediately prior
to such release. In addition, the Lenders hereby irrevocably authorize the Agent to (I) subordinate any Lien on any property granted
to or held by the Agent under any Loan Document to the holder of any Lien on such property that is permitted by Section 8.1(d) and
(II) release any Guarantor from its obligations under the U.S. Guarantee Agreement or the Canadian Guarantee Agreement (1) if
such Person ceases to be a Subsidiary as a result of a transaction permitted hereunder or becomes an Excluded Subsidiary, (2) as
provided in Section 4.3(h) with respect to the obligations of the Canadian Guarantors to guarantee the Obligations of
the Canadian Borrowers or,
(3) as provided in Section 12.1. or
(4) in the case of any U.S. Guarantor that is required to be a Guarantor pursuant to Section 7.16(a) as a result of its
incurrence, guarantee or other obligation in respect of the relevant Indebtedness as described therein, upon the repayment in full of
all such applicable Indebtedness or other obligations, or the release or discharge of such guarantee, as the case may be.
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(b) Upon
request by the Agent or the Borrowers at any time, the Required Lenders will confirm in writing the Agent’s authority to release
or subordinate the applicable Agent’s Liens upon particular types or items of Collateral, or to release any Guarantor from its obligations
pursuant to this Section 13.11(a).
(b) Upon
receipt by the Agent of any authorization required pursuant to Section 13.11(a) from the Required Lenders of the Agent’s
authority to release or subordinate the applicable Agent’s Liens upon particular types or items of Collateral, or to release any
Guarantor from its obligations under the U.S. Guarantee Agreement or the Canadian Guarantee Agreement, and upon prior written request
by the Borrowers, the Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary
to evidence the release of such Agent’s Liens upon such Collateral or to subordinate its interest therein, or to release such Guarantor
from its obligations under the U.S. Guarantee Agreement or the Canadian Guarantee Agreement; provided, however, that
(i) the Agent shall not be required to execute any such document on terms which, in the Agent’s opinion, would expose the Agent
to liability or create any obligation or entail any consequence other than the release of such Liens or Guarantee without recourse or
warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Liens (other than those
expressly being released) upon (or obligations of the Obligors in respect of) all interests retained by the Obligors, including the proceeds
of any sale, all of which shall continue to constitute part of such Collateral.
(c) The
Agent shall have no obligation whatsoever to any of the Lenders to assure that the Collateral exists or is owned by the Obligors or is
cared for, protected or insured or has been encumbered, or that the applicable Agent’s Liens have been properly or sufficiently
or lawfully created, perfected, protected or enforced or are entitled to any particular priority, or to exercise at all or in any particular
manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted
or available to the Agent pursuant to any of the Loan Documents, it being understood and agreed that in respect of the Collateral, or
any act, omission or event related thereto, the Agent may act in any manner it may deem appropriate, in its sole discretion, given the
Agent’s own interest in the Collateral in its capacity as one of the Lenders and that the Agent shall have no other duty or liability
whatsoever to any Lender as to any of the foregoing.
13.12 Restrictions
on Actions by Lenders; Sharing of Payments.
(a) Each
of the Lenders agrees that it shall not, without the express consent of the Required Lenders, and that it shall, to the extent it is lawfully
entitled to do so, upon the request of the Required Lenders, set off against the Obligations, any amounts owing by such Lender to any
Obligor or any accounts of any Obligor now or hereafter maintained with such Lender. Each of the Lenders further agrees that it shall
not, unless specifically requested to do so by the Agent, take or cause to be taken any action to enforce its rights under this Agreement
or against any Obligor, including the commencement of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce
any security interest in, any of the applicable Collateral.
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(b) Except
as otherwise expressly provided herein, if at any time or times any Lender shall receive (i) by payment, foreclosure, setoff or otherwise,
any proceeds of Collateral or any payments with respect to the Obligations of any Obligor to such Lender arising under, or relating to,
this Agreement or the other Loan Documents, except for any such proceeds or payments received by such Lender from the Agent pursuant to
the terms of this Agreement, or (ii) payments from the Agent in excess of such Lender’s ratable portion of all such distributions
by the Agent, such Lender shall promptly (x) turn the same over to the Agent, in kind, and with such endorsements as may be required
to negotiate the same to the Agent, or in same day funds, as applicable, for the account of all of the Lenders and for application to
the Obligations in accordance with the applicable provisions of this Agreement, or (y) purchase, without recourse or warranty, an
undivided interest and participation in the Obligations owed to the other Lenders so that such excess payment received shall be applied
ratably as among the Lenders in accordance with their Commitments; provided, however, that if all or part of such excess
payment received by the purchasing party is thereafter recovered from it, those purchases of participations shall be rescinded in whole
or in part, as applicable, and the applicable portion of the purchase price paid therefor shall be returned to such purchasing party,
but without interest except to the extent that such purchasing party is required to pay interest in connection with the recovery of the
excess payment. If following the occurrence of an Event of Default and realization upon the Collateral and the Guarantee Agreements, any
Lender shall have suffered or incurred a loss not recovered from available Collateral, each Lender shall make such payments to the others
of them so that the loss is shared by all Lenders in accordance with each such Lender’s Pro Rata Share, subject to any agreement
by any applicable Lenders as to the priority of their respective rights of distribution from such Collateral.
13.13 Agency
for Perfection. Each Lender hereby appoints each other Lender as agent for the purpose of perfecting the Lenders’ security interest
in assets which, in accordance with the UCC or the PPSA or under other applicable law, as applicable, may be perfected by possession.
Should any Lender (other than the Agent) obtain possession of any such Collateral, such Lender shall notify the Agent thereof, and, promptly
upon the Agent’s request therefor, shall deliver such Collateral to the Agent or in accordance with the Agent’s instructions.
13.14 Payments
by Agent to Lenders. All payments to be made by the Agent to the applicable Lenders shall be made by bank wire transfer or internal
transfer of immediately available funds to each such Lender pursuant to wire transfer instructions delivered in writing to the Agent on
or prior to the Agreement Date (or if such Lender is an Assignee, on the applicable Assignment and Acceptance), or pursuant to such other
wire transfer instructions as each party may designate for itself by written notice to the Agent. Concurrently with each such payment,
the Agent shall identify whether such payment (or any portion thereof) represents principal, interest or fees on the Loans or otherwise.
Unless the Agent receives notice from the applicable Borrowers prior to the date on which any payment is due to the Lenders that such
Borrowers will not make such payment in full as and when required, the Agent may assume that such Borrowers have made such payment in
full to the Agent on such date in immediately available funds and the Agent may (but shall not be so required), in reliance upon such
assumption, distribute to each such Lender on such due date an amount equal to the amount then due such Lender. If and to the extent the
Borrowers have not made such payment in full to the Agent, each applicable Lender shall repay to the Agent on demand such amount distributed
to such Lender, together with interest thereon for each day from the date such amount is distributed to such Lender until the date repaid
(a) in the case of amounts denominated in Dollars, at the greater of the Federal Funds Rate and a rate determined by the Agent in
accordance with banking industry rules on interbank compensation, (b) in the case of amounts denominated in Canadian Dollars,
at the greater of the interest rate charged by the Bank of Canada for one-day loans and a rate determined by the Agent in accordance with
banking industry rules on interbank compensation and (c) if denominated in an Alternative Currency, a rate determined by the
Agent in accordance with banking industry rules on interbank compensation.
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13.15 Settlement;
Defaulting Lenders.
(a) Except
as otherwise set forth in Section 2.10, each Lender’s funded portion of the applicable Loans is intended by the applicable
Lenders to be equal at all times to such Lender’s Pro Rata Share of the outstanding applicable Loans. Notwithstanding such agreement,
the Agent, the Bank, and the other applicable Lenders agree (which agreement shall not be for the benefit of or enforceable by the applicable
Borrowers) that in order to facilitate the administration of this Agreement and the other Loan Documents, settlement among them as to
the applicable Loans (including the applicable Swingline Loans and the applicable Agent Advances) shall take place on a periodic basis
in accordance with the following provisions; provided that, notwithstanding anything to the contrary contained herein or in any
other Loan Document, this Section 13.15(a) shall not apply to European Swingline Loans or ROW Swingline Loans (and each
reference in this Section 13.15(a) to a “Swingline Loan” or the “Swingline Loans” shall be deemed
not to include or refer to European Swingline Loans or ROW Swingline Loans):
(i) The
Agent shall request settlement (“Settlement”) with the applicable Lenders at least once every two weeks, or on
a more frequent basis at the Agent’s election, (x) on behalf of the Bank, with respect to each applicable outstanding Swingline
Loan, (y) for itself, with respect to each applicable Agent Advance, and (z) with respect to collections received, in each case,
by notifying the Lenders of such requested Settlement by telecopy or other electronic communication, no later than 12:00 noon, New York
City time, on the date of such requested Settlement (the “Settlement Date”). Each Lender (other than the Bank, in the
case of applicable Swingline Loans, and the Agent, in the case of applicable Agent Advances) shall transfer the amount of such Lender’s
Pro Rata Share of the outstanding principal amount of the applicable Swingline Loans and the applicable Agent Advances with respect to
each Settlement to the Agent, to the Agent’s account, not later than 2:00 p.m., New York City time, on the Settlement Date
applicable thereto. Settlements shall occur during the continuation of a Default or an Event of Default and whether or not the applicable
conditions precedent set forth in Article IX have then been satisfied. Such amounts made available by the applicable Lenders
to the Agent shall be applied against the amounts of the applicable Swingline Loan or Agent Advance and, together with the portion of
such Swingline Loan or Agent Advance representing the Bank’s Pro Rata Share thereof, shall cease to constitute Swingline Loans or
Agent Advances, but shall constitute Revolving Loans of such Lenders. If any such amount is not transferred to the Agent by any Lender
on the Settlement Date applicable thereto, the Agent shall be entitled to recover such amount (on behalf of the Bank, with respect to
each outstanding Swingline Loan, and for itself, with respect to each applicable Agent Advance) on demand from such Lender together with
interest thereon (A) in the case of amounts denominated in Dollars, at the greater of the Federal Funds Rate and a rate determined
by the Agent, in accordance with banking industry rules on interbank compensation, (B) in the case of amounts denominated in
Canadian Dollars, at the greater of the interest rate charged by the Bank of Canada for one-day loans and a rate determined by the Agent
in accordance with banking industry rules on interbank compensation and (C) in the case of amounts denominated in an Alternative
Currency, a rate determined by the Agent in accordance with banking industry rules on interbank compensation, as applicable, in each
case for the first three days from and after the Settlement Date and thereafter at the Interest Rate then applicable to Base Rate
Loans, for amounts due in Dollars or any Alternative Currency, or the Interest Rate then applicable to Canadian Prime Rate Loans, for
amounts due in Canadian Dollars.
(ii) Notwithstanding
the foregoing, not more than one Business Day after demand is made by the Agent (whether before or after the occurrence of a Default
or an Event of Default and regardless of whether the Agent has requested a Settlement with respect to an applicable Swingline Loan or
applicable Agent Advance), each other applicable Lender (x) shall irrevocably and unconditionally purchase and receive from the Bank
or the Agent, as applicable, without recourse or warranty, an undivided interest and participation in such Swingline Loan or Agent Advance
equal to such Lender’s Pro Rata Share of such Swingline Loan or Agent Advance and (y) if Settlement has not previously occurred
with respect to such Swingline Loans or Agent Advances, upon demand by the Bank or the Agent, as applicable, shall pay to the Bank or
the Agent, as applicable, as the purchase price of such participation an amount equal to 100% of such Lender’s Pro Rata Share of
such Swingline Loans or Agent Advances. If such amount is not in fact made available to the Agent by any applicable Lender, the Agent
shall be entitled to recover such amount (on behalf of the Bank, with respect to each outstanding Swingline Loan, and for itself, with
respect to each applicable Agent Advance) on demand from such Lender together with interest thereon (A) in the case of amounts denominated
in Dollars, at the greater of the Federal Funds Rate and a rate determined by the Agent in accordance with banking industry rules on
interbank compensation, (B) in the case of amounts denominated in Canadian Dollars, at the greater of the interest rate charged by
the Bank of Canada for one-day loans and a rate determined by the Agent in accordance with banking industry rules on interbank compensation
and (C) in the case of amounts denominated in an Alternative Currency, a rate determined by the Agent in accordance with banking
industry rules on interbank compensation, as applicable, in each case for the first three days from and after such demand and
thereafter at the Interest Rate then applicable to Base Rate Loans, for amounts due in Dollars or any Alternative Currency, or the Interest
Rate then applicable to Canadian Prime Rate Loans, for amounts due in Canadian Dollars.
(iii) Notwithstanding
any provisions of Section 2.2 or Section 2.3, as applicable, to the contrary, from and after the date, if any,
on which any Lender purchases an undivided interest and participation in any applicable Swingline Loan or applicable Agent Advance pursuant
to clause (ii) above, the Agent shall promptly distribute to such Lender, such Lender’s Pro Rata Share of all payments
of principal and interest and all proceeds of Collateral received by the Agent in respect of such Swingline Loan or Agent Advance.
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(iv) Between
Settlement Dates, the Agent, to the extent no applicable Agent Advances are outstanding, may pay over to the Bank any payments received
by the Agent, which in accordance with the terms of this Agreement would be applied to the reduction of the applicable Loans, for application
to the Bank’s Loans, including applicable Swingline Loans. If, as of any Settlement Date, collections received since the then immediately
preceding Settlement Date have been applied to the Bank’s Loans (other than to applicable Swingline Loans or applicable Agent Advances
in which such Lender has not yet funded its purchase of a participation pursuant to clause (ii) above), as provided for
in the previous sentence, the Bank shall pay to the Agent for the accounts of the applicable Lenders, to be applied to the applicable
outstanding Loans of such Lenders, an amount such that each Lender shall, upon receipt of such amount, have, as of such Settlement Date,
its Pro Rata Share of the applicable Loans. During the period between Settlement Dates, the Bank with respect to applicable Swingline
Loans, the Agent with respect to applicable Agent Advances, and each Lender with respect to the applicable Loans other than applicable
Swingline Loans and applicable Agent Advances, shall be entitled to interest at the applicable rate or rates payable under this Agreement
on the actual average daily amount of funds employed by the Bank, the Agent and the other Lenders, respectively.
(v) Unless
the Agent has received written notice from a Lender to the contrary, the Agent may assume that the applicable conditions precedent set
forth in Article IX have been satisfied.
(b) Lenders’
Failure to Perform. Except as otherwise set forth in Section 2.10, all Loans (other than Swingline Loans and Agent Advances)
shall be made by the Lenders simultaneously and in accordance with their Pro Rata Shares thereof. It is understood that (i) no Lender
shall be responsible for any failure by any other Lender to perform its obligation to make any applicable Loans hereunder, nor shall any
applicable Commitment of any Lender be increased or decreased as a result of any failure by any other Lender to perform its obligation
to make any Loans hereunder, (ii) no failure by any Lender to perform its obligation to make any Loans hereunder shall excuse any
other Lender from its obligation to make any Loans hereunder, and (iii) the obligations of each Lender hereunder shall be several,
not joint and several.
(c) Defaulting
Lenders. Unless the Agent receives notice from a Lender on or prior to the Closing Date or, with respect to any Borrowing after the
Closing Date, at least one Business Day prior to the date of such Borrowing, that such Lender will not make available as and when
required hereunder to the Agent that Lender’s Pro Rata Share of a Borrowing, the Agent may assume that each such Lender has made
such amount available to the Agent in immediately available funds on the Funding Date. Furthermore, the Agent may, in reliance upon such
assumption, make available to the applicable Borrowers on such date a corresponding amount. If any Lender has not transferred its full
Pro Rata Share to the Agent in immediately available funds, and the Agent has transferred the corresponding amount to the applicable Borrowers,
on the Business Day following such Funding Date such Lender shall make such amount available to the Agent, together with interest for
that day (i) in the case of amounts denominated in Dollars, at the greater of the Federal Funds Rate and a rate determined by the
Agent in accordance with banking industry rules on interbank compensation, (ii) in the case of amounts denominated in Canadian
Dollars, at the greater of the interest rate charged by the Bank of Canada for one-day loans and a rate determined by the Agent in accordance
with banking industry rules on interbank compensation and (iii) in the case of amounts denominated in an Alternative Currency,
a rate determined by the Agent in accordance with banking industry rules on interbank compensation. A notice by the Agent submitted
to any Lender with respect to amounts owing shall be conclusive, absent manifest error. If each Lender’s full Pro Rata Share is
transferred to the Agent as required, the amount transferred to the Agent shall constitute that Lender’s applicable Loan for all
purposes of this Agreement. If that amount is not transferred to the Agent on the Business Day following the Funding Date, the Agent will
notify the Borrowers’ Agent of such failure to fund and, upon demand by the Agent, the applicable Borrowers shall pay such amount
to the Agent for the Agent’s account, together with interest thereon for each day elapsed since the date of such Borrowing, at a
rate per annum equal to the Interest Rate applicable at the time to the applicable Loans comprising that particular Borrowing. The failure
of any Lender to make any applicable Loan on any Funding Date shall not relieve any other Lender of its obligation hereunder to make an
applicable Loan on that Funding Date. No Lender shall be responsible for any other Lender’s failure to advance such other Lender’s
Pro Rata Share of any Borrowing. Notwithstanding anything contained in this Agreement to the contrary, if any Lender becomes a Defaulting
Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(i) no
Unused Line Fee shall accrue for the account of a Defaulting Lender so long as such Lender shall be a Defaulting Lender (except to the
extent it is payable to a Letter of Credit Issuer pursuant to clause (iv)(E) below);
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(ii) in
determining the Required Lenders or Supermajority Lenders, any Lender that at the time is a Defaulting Lender (and the Loans and/or Commitment
of such Defaulting Lender) shall be excluded and disregarded;
(iii) the
Company shall have the right, at its sole expense and effort, (i) to seek one or more Persons reasonably satisfactory to the Agent
and the Company to each become a substitute Lender and assume all or part of the Revolving Credit Commitments of any Defaulting Lender
and the Company, the Agent and any such substitute Lender shall execute and deliver, and such Defaulting Lender shall thereupon be deemed
to have executed and delivered, an appropriately completed Assignment and Acceptance to effect such substitution or (ii) upon notice
to the Agent, to prepay the Loans and, at the Company’s option, terminate the Revolving Credit Commitments of such Defaulting Lender,
in whole or in part, without premium or penalty;
(iv) if
any Swingline Loans exist or any Letters of Credit exist at the time a Lender becomes a Defaulting Lender then:
(A) all or any part of such Defaulting Lender’s Pro Rata Share of any outstanding Swingline Loans and
Letters of Credit shall be re-allocated among the applicable non-Defaulting Lenders in accordance with their respective applicable Pro
Rata Shares but only to the extent the sum of all such non-Defaulting Lenders’ utilized applicable Revolving Credit Commitments
(in each case before giving effect to each reallocation) plus such Defaulting Lender’s Pro Rata Share of such outstanding Swingline
Loans and Letters of Credit does not exceed the total of all non-Defaulting Lenders’ Revolving Credit Commitments;
(B) if the reallocation described in clause (A) above cannot, or can only partially, be effected,
the applicable Borrowers shall within one Business Day (or such longer period as may be agreed to by the Agent) following notice
by the Agent (x) first, prepay such Defaulting Lender’s Pro Rata Share of any outstanding Swingline Loans and (y) second,
cash collateralize with cash and/or Cash Equivalents such Defaulting Lender’s Pro Rata Share of any outstanding Letters of Credit
(after giving effect to any partial reallocation pursuant to clause (A) above) on terms reasonably satisfactory to the
Agent for so long as such Letters of Credit are outstanding;
(C) if any portion of such Defaulting Lender’s Pro Rata Share of outstanding Letters of Credit is cash
collateralized pursuant to clause (B) above, the Borrowers shall not be required to pay the Letter of Credit Fee for
participation with respect to such portion of such Defaulting Lender’s Pro Rata Share of outstanding Letters of Credit so long as
it is cash collateralized;
(D) if any portion of such Defaulting Lender’s Pro Rata Share of outstanding Letters of Credit is re-allocated
to the non-Defaulting Lenders pursuant to clause (A) above, then the Letter of Credit Fee with respect to such portion
shall be allocated among the non-Defaulting Lenders in accordance with their Pro Rata Shares; or
(E) if any portion of such Defaulting Lender’s Pro Rata Share of outstanding Letters of Credit is neither
cash collateralized nor re-allocated pursuant to clause (A) or (B) above, then, without prejudice to any
rights or remedies of any Letter of Credit Issuer or any Lender hereunder, the Unused Line Fee that otherwise would have been payable
to such Defaulting Lender (with respect to the portion of such Defaulting Lender’s Pro Rata Share that was utilized by such outstanding
Letters of Credit) and the Letter of Credit Fee payable with respect to such Defaulting Lender’s Pro Rata Share of outstanding Letters
of Credit shall be payable to the applicable Letter of Credit Issuer until such outstanding Letters of Credit are cash collateralized
and/or re-allocated;
provided that, notwithstanding anything
to the contrary contained herein or in any other Loan Document, this Section 13.15(c)(iv) shall not apply to European
Swingline Loans or ROW Swingline Loans (and each reference in this Section 13.15(c)(iv) to a “Swingline Loan”
or the “Swingline Loans” shall be deemed not to include or refer to European Swingline Loans or ROW Swingline Loans);
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(v) so
long as any Lender is a Defaulting Lender, no Swingline Lender shall be required to fund any Swingline Loan and no Letter of Credit Issuer
shall be required to issue, amend or increase any Letter of Credit, unless they are respectively reasonably satisfied that the related
exposure will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateralized on terms reasonably
satisfactory to the Agent, and participations in any such newly issued or increased Letter of Credit or newly made Swingline Loan shall
be allocated among non-Defaulting Lenders in accordance with their respective Pro Rata Shares (and Defaulting Lenders shall not participate
therein); provided that, notwithstanding anything to the contrary contained herein or in any other Loan Document, this Section 13.15(c)(v) shall
not apply to European Swingline Loans or ROW Swingline Loans (and each reference in this Section 13.15(c)(v) to a “Swingline
Loan” or the “Swingline Loans” or to a “Swingline Lender” shall be deemed not to include or refer to European
Swingline Loans or the European Swingline Lender, or ROW Swingline Loans or the ROW Swingline Lender, respectively); and
(vi) any
amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount
that would otherwise be payable to such Defaulting Lender pursuant to Section 13.12(b)) may, in lieu of being distributed
to such Defaulting Lender, be retained by the Agent in a segregated non-interest bearing account and, subject to any applicable Requirement
of Law, be applied at such time or times as may be determined by the Agent (1) first, to the payment of any amounts owing
by such Defaulting Lender to the Agent hereunder, (2) second, pro rata, to the payment of any amounts owing by such
Defaulting Lender to any Letter of Credit Issuer or any Swingline Lender hereunder, (3) third, to the funding of any Revolving
Loan or the funding or cash collateralization of any participation in any Swingline Loan or Letter of Credit in respect of which such
Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Agent, (4) fourth,
if so determined by the Agent and the Company, held in such account as cash collateral for future funding obligations of the Defaulting
Lender under this Agreement, (5) fifth, pro rata, to the payment of any amounts owing to the Borrowers or the Lenders
as a result of any judgment of a court of competent jurisdiction obtained by a Borrower or any Lender against such Defaulting Lender as
a result of such Defaulting Lender’s breach of its obligations under this Agreement and (6) sixth, to such Defaulting
Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is a prepayment of the principal
amount of any Loans or Letter of Credit reimbursement obligations in respect of which a Defaulting Lender has funded its participation
obligations, such payment shall be applied solely to prepay the Loans of, and Letter of Credit reimbursement obligations owed to, all
non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or Letter of Credit reimbursement obligations
owed to, any Defaulting Lender.
(d) In
the event that the Agent, the Borrowers’ Agent, each applicable Letter of Credit Issuer and each applicable Swingline Lender, as
the case may be, each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender,
then the Pro Rata Share of any outstanding Swingline Loans and Letters of Credit of the Lenders that have been adjusted pursuant to Section 13.15(c) shall
be readjusted to reflect the inclusion of such Lender’s Revolving Credit Commitments and on such date such Lender shall purchase
at par such of the Revolving Loans of the other Lenders as the Agent shall determine may be necessary in order for such Lender to hold
such Revolving Loans in accordance with its Pro Rata Share. Subject to Section 14.26, the rights and remedies against a Defaulting
Lender under this Section 13.15 are in addition to other rights and remedies that the Borrowers, the Agent, the Letter of
Credit Issuers, the Swingline Lenders and the non-Defaulting Lenders may have against such Defaulting Lender. The arrangements permitted
or required by this Section 13.15 shall be permitted under this Agreement, notwithstanding any limitation on Liens or the
pro rata sharing provisions or otherwise.
13.16 Letters
of Credit; Intra-Lender Issues.
(a) Notice
of Letter of Credit Balance. On each Settlement Date the Agent shall notify each Pro Rata Revolving Credit Lender of the issuance
of all Letters of Credit, in each case, since the prior Settlement Date. In addition, upon the reasonable request of a Pro Rata Revolving
Credit Lender from time to time, the Agent shall provide such Lender with a list of the then outstanding Letters of Credit.
(b) Participations
in Letters of Credit.
(i) Purchase
of Participations. Immediately upon issuance of any Letter of Credit in accordance with Section 2.4(d), each Pro Rata
Revolving Credit Lender shall be deemed to have irrevocably and unconditionally purchased and received without recourse or warranty, an
undivided interest and participation equal to the Equivalent Amount in Dollars of such Pro Rata Revolving Credit Lender’s Pro Rata
Share in respect of the Pro Rata Revolving Credit Commitments of the face amount of such Letter of Credit (as of the date of issuance),
in connection with the issuance or acceptance of such Letter of Credit (including all obligations of the applicable Borrowers with respect
thereto, and any security therefor or guaranty pertaining thereto).
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(ii) Sharing
of Reimbursement Obligation Payments. Whenever the Agent receives a payment from any Borrower on account of reimbursement obligations
in respect of a Letter of Credit as to which the Agent has previously received for the account of the applicable Letter of Credit Issuer
thereof payment from a Pro Rata Revolving Credit Lender, the Agent shall promptly pay to such Pro Rata Revolving Credit Lender such Pro
Rata Revolving Credit Lender’s applicable Pro Rata Share in respect of the Pro Rata Revolving Credit Commitments of such payment
from the applicable Borrower. Each such payment shall be made by the Agent on the next Settlement Date.
(iii) Documentation.
Upon the request of any applicable Pro Rata Revolving Credit Lender, the Agent shall furnish to such Pro Rata Revolving Credit Lender
copies of any Letter of Credit, reimbursement agreements executed in connection therewith, applications for any Letter of Credit, and
such other documentation relating to such Letter of Credit as may reasonably be requested by such Pro Rata Revolving Credit Lender.
(iv) Obligations
Irrevocable. The obligations of each applicable Pro Rata Revolving Credit Lender to make payments to the Agent with respect to any
applicable Letter of Credit or with respect to their participation therein or, except as otherwise set forth in Section 2.10,
with respect to the U.S. Revolving Loans, the ROW Revolving Loans or the Canadian Revolving Loans, as applicable, made as a result
of a drawing under a Letter of Credit and the obligations of the applicable Borrowers for whose account the Letter of Credit was issued
to make payments to the Agent, for the account of the applicable Pro Rata Revolving Credit Lenders, shall be irrevocable and shall
not be subject to any qualification or exception whatsoever, including any of the following circumstances:
(A) any
lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(B) the
existence of any claim, setoff, defense or other right which the applicable Borrowers may have at any time against a beneficiary named
in a Letter of Credit or any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), any Pro Rata
Revolving Credit Lender, the Agent, the applicable Letter of Credit Issuer, or any other Person, whether in connection with this Agreement,
any applicable Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transactions
between the applicable Borrowers or any other Person and the beneficiary named in any Letter of Credit);
(C) any
draft, certificate or any other document presented under the Letter of Credit proving to be forged, fraudulent, invalid or insufficient
in any respect or any statement therein being untrue or inaccurate in any respect;
(D) the
surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents;
(E) the
occurrence of any Default or Event of Default; or
(F) the
failure of the Borrowers to satisfy the applicable conditions precedent set forth in Article IX.
(c) Recovery
or Avoidance of Payments; Refund of Payments In Error. In the event any payment by or on behalf of the applicable Borrowers received
by the Agent with respect to any Letter of Credit and distributed by the Agent to the Pro Rata Revolving Credit Lenders on account of
their respective participations therein is thereafter set aside, avoided or recovered from the Agent or the applicable Letter of Credit
Issuer in connection with any receivership, liquidation or bankruptcy proceeding, the Pro Rata Revolving Credit Lenders shall, upon demand
by the Agent, pay to the Agent their respective applicable Pro Rata Shares in respect of the Pro Rata Revolving Credit Commitments of
such amount set aside, avoided or recovered, together with interest at the rate required to be paid by the Agent or the applicable Letter
of Credit Issuer upon the amount required to be repaid by it. Unless the Agent receives notice from the applicable Borrowers prior to
the date on which any payment is due to the Pro Rata Revolving Credit Lenders that the applicable Borrowers will not make such payment
in full as and when required, the Agent may assume that the applicable Borrower(s) have made such payment in full to the Agent on
such date in immediately available funds and the Agent may (but shall not be so required), in reliance upon such assumption, distribute
to each Pro Rata Revolving Credit Lender on such due date an amount equal to the amount then due such applicable Pro Rata Revolving
Credit Lender. If and to the extent the applicable Borrower(s) have not made such payment in full to the Agent, each Pro Rata Revolving
Credit Lender shall repay to the Agent on demand such amount distributed to such Pro Rata Revolving Credit Lender, together with interest
thereon for each day from the date such amount is distributed to such Pro Rata Revolving Credit Lender until the date repaid (i) in
the case of amounts denominated in Dollars, at the greater of the Federal Funds Rate and a rate determined by the Agent in accordance
with banking industry rules on interbank compensation, (ii) in the case of amounts denominated in Canadian Dollars, at the greater
of the interest rate charged by the Bank of Canada for one-day loans and a rate determined by the Agent in accordance with banking industry
rules on interbank compensation and (iii) in the case of amounts denominated in an Alternative Currency, a rate determined by
the Agent in accordance with banking industry rules on interbank compensation.
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(d) Indemnification
by Pro Rata Revolving Credit Lenders. To the extent not reimbursed by the applicable Borrowers and without limiting the obligations
of the applicable Borrowers hereunder, the Pro Rata Revolving Credit Lenders agree to indemnify the applicable Letter of Credit Issuer
ratably in accordance with their respective Pro Rata Shares in respect of the Pro Rata Revolving Credit Commitments, for any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses (including attorneys’ fees) or disbursements
of any kind and nature whatsoever that may be imposed on, incurred by or asserted against such Letter of Credit Issuer in any way relating
to or arising out of any Letter of Credit or the transactions contemplated thereby or any action taken or omitted by such Letter of Credit
Issuer under any Letter of Credit or any Loan Document in connection therewith; provided that no Pro Rata Revolving Credit Lender
shall be liable for any of the foregoing to the extent it arises from the gross negligence or willful misconduct of the Person to be indemnified.
Without limitation of the foregoing, each Pro Rata Revolving Credit Lender agrees to reimburse the applicable Letter of Credit Issuer
promptly upon demand for its Pro Rata Share in respect of the Pro Rata Revolving Credit Commitments of any costs or expenses payable by
the applicable Borrowers to such Letter of Credit Issuer, to the extent that such Letter of Credit Issuer is not promptly reimbursed for
such costs and expenses by the applicable Borrowers. The agreement contained in this Section 13.16(d) shall survive payment
in full of all other Obligations.
13.17 Concerning
the Collateral and the Related Loan Documents.
(a) Each
Lender authorizes and directs the Agent to enter into the other Loan Documents, including any Acceptable Intercreditor Agreement, for
the ratable benefit and obligation of the Agent and the Lenders. Each Lender agrees that any action taken by the Agent or the Required
Lenders, as applicable, in accordance with the terms of this Agreement or the other Loan Documents, and the exercise by the Agent or the
Required Lenders, as applicable, of their respective powers set forth therein or herein, together with such other powers that are reasonably
incidental thereto, shall be binding upon all of the Lenders. The Lenders acknowledge that the Loans, applicable Agent Advances, applicable
Swingline Loans, Bank Products (including all Hedge Agreements) and all interest, fees and expenses hereunder constitute one Indebtedness,
secured pari passu by all of the applicable Collateral, subject to the order of distribution set forth in Section 4.6.
(b) Each
Lender authorizes and directs the Agent to enter into (i) the Security Documents, (ii) any Acceptable Intercreditor Agreement
for the benefit of the Lenders and the other Secured Parties, (iii) any amendments to, waivers of or supplements to or other modifications
of the Security Documents or any Acceptable Intercreditor Agreement, in each case with respect to the preceding clauses (i),
(ii) and (iii), in connection with the incurrence by any Obligor of Incremental Indebtedness, Refinancing Loans, or
other Indebtedness secured by a Permitted Lien pursuant to Section 8.2(c) or 8.2(ii) (each, an “Intercreditor
Agreement Supplement”) to permit such Incremental Indebtedness, Refinancing Loans, or other Indebtedness to be secured by a
valid, perfected Lien on Collateral (with such priority as may be designated by the relevant Obligor, as and to the extent such priority
is permitted by the Loan Documents) (it being agreed that any Lien securing such Indebtedness (other than Incremental Indebtedness and
Refinancing Loans) shall be granted pursuant to security documents separate from the Security Documents) and (iv) any Incremental
Commitment Amendment, any Lender Joinder Agreement, Extension Amendment or Refinancing Amendment as provided in Sections 2.5, 2.6
and 2.7, respectively, and any amendment as provided in Section 1.2(b). Each Lender hereby agrees, and each participant
in a Letter of Credit by the acceptance thereof will be deemed to agree, that, except as otherwise set forth herein, any action taken
by the Agent or the Required Lenders in accordance with the provisions of this Agreement, the Security Documents, any applicable intercreditor
agreement, including any applicable Acceptable Intercreditor Agreement, any Intercreditor Agreement Supplement, any Incremental Commitment
Amendment, any Lender Joinder Agreement, any Extension Amendment or any Refinancing Amendment and the exercise by the Agent or the Required
Lenders of the powers set forth herein or therein, together with such other powers as are reasonably incidental thereto, shall be authorized
and binding upon all of the Lenders.
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13.18 Field
Audit and Examination Reports; Disclaimer by Lenders. By signing this Agreement, each Lender:
(a) is
deemed to have requested that the Agent furnish such Lender, promptly after it becomes available, a copy of each field audit or examination
report (each a “Report” and collectively, “Reports”) prepared by or on behalf of the Agent;
(b) expressly
agrees and acknowledges that neither the Bank nor the Agent (i) makes any representation or warranty as to the accuracy of any Report,
or (ii) shall be liable for any information contained in any Report;
(c) expressly
agrees and acknowledges that the Reports are not comprehensive audits or examinations, that the Agent or the Bank or other party performing
any audit or examination will inspect only specific information regarding the applicable Obligors and will rely significantly upon the
applicable Obligors’ books and records, as well as on representations of the applicable Obligors’ personnel;
(d) agrees
to keep all Reports confidential and strictly for its internal use, and not to distribute except to its participants, or use any Report
in any other manner; and
(e) without
limiting the generality of any other indemnification provision contained in this Agreement, agrees: (i) to hold the Agent and any
such other Person preparing a Report harmless from any action the indemnifying Lender may take or conclusion the indemnifying Lender may
reach or draw from any Report in connection with any loans or other credit accommodations that the indemnifying Lender has made or may
make to the Borrowers, or the indemnifying Lender’s participation in, or the indemnifying Lender’s purchase of, a loan or
loans of the Borrowers; and (ii) to pay and protect, and indemnify, defend and hold the Agent and any such other Person preparing
a Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses and other amounts (including Attorney Costs)
incurred by the Agent and any such other Person preparing a Report as the direct or indirect result of any third parties who might obtain
all or part of any Report through the indemnifying Lender.
13.19 Relation
Among Lenders. The Lenders are not partners or co-venturers, and no Lender shall be liable for the acts or omissions of, or (except
as otherwise set forth herein in the case of the Agent) authorized to act for, any other Lender.
13.20 Arrangers;
Agent.
(a) Each
of the parties to this Agreement acknowledges that, other than any rights and duties explicitly assigned to the Arrangers under this Agreement,
the Arrangers do not have any obligations hereunder and shall not be responsible or accountable to any other party hereto for any action
or failure to act hereunder. Without limiting the foregoing, no Arranger shall have or be deemed to have any fiduciary relationship with
any Lender. Each Lender acknowledges that it has not relied, and will not rely, on the Arrangers in deciding to enter into this Agreement
or in taking or not taking action hereunder.
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(b) No
Lender identified on the facing page of this Agreement as a “Co-Syndication Agent” or a “Co-Documentation Agent”
shall have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders
as such. Without limiting the foregoing, no Lender identified as a “Co-Syndication Agent” or a “Co-Documentation Agent”
shall have or be deemed to have any fiduciary relationship with any Lender. Each Lender acknowledges that it has not relied, and will
not rely, on any of the Lenders so identified in deciding to enter into this Agreement or in taking or not taking action hereunder.
13.21 The
Register.
(a) The
Agent shall maintain a register (each, a “Register”), which shall include a master account and a subsidiary account
for each applicable Lender and in which accounts (taken together) shall be recorded (i) the date and amount of each Borrowing made
hereunder, the Type of each Loan comprising such Borrowing and any Interest Period or Term CORRA Interest Period applicable thereto, (ii) the
effective date and amount of each Assignment and Acceptance delivered to and accepted by it and the parties thereto, (iii) the amount
of any principal or interest due and payable or to become due and payable from the applicable Borrowers to each Lender hereunder or under
the notes payable by the applicable Borrowers to such Lender, and (iv) the amount of any sum received by the Agent from the applicable
Borrowers or any other Obligor and each Lender’s ratable share thereof. Each Register shall be available for inspection by the applicable
Borrowers or any applicable Lender (with respect to its own interest only) at the respective offices of the Agent at any reasonable time
and from time to time upon reasonable prior notice. Any failure of the Agent to record in the applicable Register, or any error in doing
so, shall not limit or otherwise affect the obligation of the applicable Borrowers hereunder (or under any Loan Document) to pay any amount
owing with respect to the Loans or provide the basis for any claim against the Agent. The Obligations and Letters of Credit are registered
obligations and the right, title and interest of any Lender and their assignees in and to such Obligations and Letters of Credit as the
case may be, shall be transferable only upon notation of such transfer in the applicable Register. Solely for purposes of this Section 13.21
and for Tax purposes only, the Agent shall be the applicable Borrowers’ agent for purposes of maintaining the applicable Register
(but the Agent shall have no liability whatsoever to any applicable Borrower or any other Person on account of any inaccuracies contained
in the applicable Register). This Section 13.21 shall be construed so that the Obligations and Letters of Credit are at all
times maintained in “registered form” within the meaning of Sections 163(f), 871(h)(2) and 881(c)(2) of the
Code and any related regulations (and any other relevant or successor provisions of the Code or such regulations). The entries in the
Register shall be conclusive absent manifest error, and the Borrowers, the Agent and the Lenders shall treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement.
(b) In
the event that any Lender sells participations in any Loan, Commitment or other interest of such Lender hereunder or under any other Loan
Document, such Lender shall maintain a register on which it enters the name of all participants in the Obligations held by it and the
principal amount (and stated interest thereon) of the portion of the Obligations which is the subject of the participation (the “Participant
Register”). An Obligation may be participated in whole or in part only by registration of such participation on the Participant
Register (and each note shall expressly so provide). Any participation of such Obligations may be effected only by the registration of
such participation on the Participant Register. The entries in the Participant Register shall be conclusive absent manifest error, and
such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes
of this Agreement notwithstanding any notice to the contrary. The Participant Register shall be available for inspection by the Borrowers
at any reasonable time and from time to time upon reasonable prior notice. For the avoidance of doubt the Agent (in its capacity as Agent)
shall have no responsibility for maintaining a Participant Register.
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13.22 Québec
Collateral.
For greater certainty, and
without limiting the powers of the Agent or any other Person acting as mandatary (agent) of the Agent pursuant to the terms hereof or
of the Canadian Security Documents, each of the Canadian Secured Parties hereby irrevocably constitutes the Agent as the holder of an
irrevocable power of attorney (fondé de pouvoir within the meaning of Article 2692 of the Civil Code of Québec) of
all present and future Canadian Secured Parties in order to hold hypothecs and security granted by any Canadian Obligor or U.S. Obligor
on property pursuant to the laws of the Province of Québec in order to secure obligations of any Canadian Obligor or U.S. Obligor
under any bond, debenture or similar title of indebtedness, issued by any Canadian Obligor or U.S. Obligor, and hereby agrees that the
Agent may act as the bondholder and mandatary (i.e. agent) with respect to any shares, capital stock or other securities or any bond,
debenture or similar title of indebtedness that may be issued by any Canadian Obligor or U.S. Obligor and pledged in favour of the Agent,
for the benefit of the Canadian Secured Parties. The execution by the Agent, acting as fondé de pouvoir and mandatary, prior to
this Agreement of any deeds of hypothec or other security documents is hereby ratified and confirmed. Notwithstanding the provisions of
Section 32 of An Act respecting the special powers of legal persons (Québec), the Agent may acquire and be the holder of any
bond or debenture issued by any Canadian Obligor or U.S. Obligor (i.e. the fondé de pouvoir may acquire and hold the first bond
issued under any deed of hypothec by any Canadian Obligor or U.S. Obligor). The constitution of the Agent as fondé de pouvoir and
as bondholder and mandatary with respect to any bond, debenture, shares, capital stock or other securities that may be issued and pledged
from time to time to the Agent for the benefit of the Canadian Secured Parties, shall be deemed to have been ratified and confirmed by
each Person accepting an assignment of, a participation in or an arrangement in respect of, all or any portion of any Canadian Secured
Party’s rights and obligations under this Agreement by the execution of an Assignment and Acceptance pursuant to which it becomes
such assignee or participant, and by each successor Agent by the execution of an Assignment and Acceptance, or by the compliance with
other formalities, as the case may be, pursuant to which it becomes a successor Agent under this Agreement. The Agent acting as fondé
de pouvoir shall have the same rights, powers, immunities, indemnities and exclusions from liability as are prescribed in favour of the
Agent in this Agreement, which shall apply mutatis mutandis to the Agent acting as fondé de pouvoir. Each Borrower acknowledges
that any bond or other similar instrument executed by it or any other Canadian Obligor or U.S. Obligor shall constitute a title of indebtedness
as such expression is defined in Article 2692 of the Civil Code of Québec. The Agent accepts to act as fondé de pouvoir
of the Canadian Secured Parties.
For greater certainty, and
without limiting the powers of the Agent or any other Person acting as mandatary (agent) of the Agent pursuant to the terms hereof or
of the Canadian Security Documents, for the purposes of holding any hypothec granted pursuant to the laws of the Province of Québec,
each of the Secured Parties hereby irrevocably appoints and authorizes the Agent and, to the extent necessary, ratifies the appointment
and authorization of the Agent, to act as the hypothecary representative of the applicable Secured Parties as contemplated under Article 2692
of the Civil Code of Québec, and to enter into, to take and to hold on their behalf, and for their benefit, any hypothec, and to
exercise such powers and duties that are conferred upon the Agent under any related deed of hypothec. The Agent shall have the sole and
exclusive right and authority to exercise, except as may be otherwise specifically restricted by the terms hereof, all rights and remedies
given to the Agent pursuant to any such deed of hypothec and applicable Law. Any person who becomes a Secured Party shall, by its execution
of an Assignment and Acceptance, be deemed to have consented to and confirmed the Agent as the person acting as hypothecary representative
holding the aforesaid hypothecs as aforesaid and to have ratified, as of the date it becomes a Secured Party, all actions taken by the
Agent in such capacity. The substitution of the Agent pursuant to the provisions of this Article XIII also constitute the substitution
of the Agent as hypothecary representative as aforesaid.
For the purposes of creating
a solidarité active in accordance with Article 1541 of the Civil Code of Québec between each Secured Party, taken individually,
on the one hand, and the Agent, on the other hand, each Secured Obligor and each such Secured Party acknowledge and agree with the Agent
that such Secured Party and the Agent are hereby conferred the legal status of solidary creditors of each such Secured Obligor in respect
of all Canadian Obligations owed by each such Secured Obligor to the Agent and such Secured Party hereunder and under the other Loan Documents
(collectively, the “Solidary Claim”) and that, accordingly, but subject (for the avoidance of doubt) to Article 1542
of the Civil Code of Québec, each such Secured Obligor is irrevocably bound towards the Agent and each Secured Party in respect
of the entire Solidary Claim of the Agent and such Secured Party. As a result of the foregoing, the parties hereto acknowledge that the
Agent and each Secured Party shall at all times have a valid and effective right of action for the entire Solidary Claim of the Agent
and such Secured Party and the right to give full acquittance for it. Accordingly, and without limiting the generality of the foregoing,
the Agent, as solidary creditor with each Secured Party, shall at all times have a valid and effective right of action in respect of the
Solidary Claim and the right to give a full acquittance for same. By its execution of the Loan Documents to which it is a party, each
such Secured Obligor not a party hereto shall also be deemed to have accepted the stipulations hereinabove provided. The parties further
agree and acknowledge that such Liens (hypothecs) under the Security Documents and the other Loan Documents shall be granted to the Agent,
for its own benefit and for the benefit of the Secured Parties, as solidary creditor as hereinabove set forth.
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13.23 Certain
ERISA Matters.
(a) Each
Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the
date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Agent
and not, for the avoidance of doubt, to or for the benefit of any Borrower or any Guarantor, that at least one of the following is and
will be true:
(i) such
Lender is not using “plan assets” (within the meaning of Section 3(42) of ERISA or otherwise) of one or more Plans with
respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit,
the Commitments or this Agreement,
(ii) the
transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent
qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts),
PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption
for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined
by in-house asset managers), is applicable with respect to such Lender’s entrance into, participation in, administration of and
performance of the Loans, the Letters of Credit, the Commitments and this Agreement,
(iii) (A) such
Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE
84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate
in, administer and perform the Loans, the Letters of Credit, the Commitments and this Agreement, (C) the entrance into, participation
in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement satisfies the requirements
of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Lender, the requirements
of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into, participation
in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement, or
(iv) such
other representation, warranty and covenant as may be agreed in writing between the Agent, in its sole discretion, and such Lender.
(b) In
addition, unless either (i) paragraph (i) in the immediately preceding clause (a) is true with
respect to a Lender or (ii) a Lender has provided another representation, warranty and covenant in accordance with clause (iv) in
the immediately preceding clause (a), such Lender further (x) represents and warrants, as of the date such Person became
a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases
being a Lender party hereto, for the benefit of, the Agent and not, for the avoidance of doubt, to or for the benefit of the Borrowers
or any other Obligor, that the Agent is not a fiduciary with respect to the assets of such Lender involved in such Lender’s entrance
into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement (including
in connection with the reservation or exercise of any rights by the Agent under this Agreement, any Loan Document or any documents related
hereto or thereto).
(c) The
Agent and the Arrangers hereby inform the Lenders that each such Person is not undertaking to provide investment advice or to give advice
in a fiduciary capacity, in connection with the transactions contemplated hereby, and that such Person has a financial interest in the
transactions contemplated hereby in that such Person or an Affiliate thereof (i) may receive interest or other payments with respect
to the Loans, the Commitments, this Agreement and any other Loan Documents, (ii) may recognize a gain if it extended the Loans or
the Commitments for an amount less than the amount being paid for an interest in the Loans or the Commitments by such Lender, and (iii) may
receive fees or other payments in connection with the transactions contemplated hereby, the Loan Documents or otherwise, including structuring
fees, commitment fees, arrangement fees, facility fees, upfront fees, underwriting fees, ticking fees, agency fees, administrative agent
or collateral agent fees, utilization fees, minimum usage fees, fronting fees, deal-away or alternate transaction fees, amendment fees,
processing fees, term out premiums, banker’s acceptance fees, breakage or other early termination fees or fees similar to the foregoing.
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13.24 Recovery
of Erroneous Payments. Without limitation of any other provision in this Agreement, if at any time the Agent makes a payment hereunder
in error to any Lender or any Letter of Credit Issuer (each, a “Credit Party”), whether or not in respect of an Obligation
due and owing by any Borrower at such time, where such payment is a Rescindable Amount, then in any such event, each Credit Party receiving
a Rescindable Amount severally agrees to repay to the Agent forthwith on demand the Rescindable Amount received by such Credit Party in
immediately available funds in the currency so received, with interest thereon, for each day from and including the date such Rescindable
Amount is received by it to but excluding the date of payment to the Agent, at the greater of the Federal Funds Rate and a rate determined
by the Agent in accordance with banking industry rules on interbank compensation. Each Credit Party irrevocably waives any and all
defenses, including any “discharge for value” (under which a creditor might otherwise claim a right to retain funds mistakenly
paid by a third party in respect of a debt owed by another) or similar defense to its obligation to return any Rescindable Amount. The
Agent shall inform each Credit Party promptly upon determining that any payment made to such Credit Party comprised, in whole or in part,
a Rescindable Amount.
ARTICLE XIV
MISCELLANEOUS
14.1 No
Waivers; Cumulative Remedies. No failure by the Agent or any Lender to exercise any right, remedy, or option under this Agreement
or any present or future supplement hereto, or in any other agreement between or among the Obligors and the Agent and/or any Lender, or
delay by the Agent or any Lender in exercising the same, will operate as a waiver thereof. No waiver by the Agent or any Lender will be
effective unless it is in writing, and then only to the extent specifically stated. No waiver by the Agent or the Lenders on any occasion
shall affect or diminish the Agent’s and each Lender’s rights thereafter to require strict performance by the Obligors of
any provision of this Agreement. The Agent and the Lenders may proceed directly to collect the Obligations without any prior recourse
to the Collateral. The Agent’s and each Lender’s rights under this Agreement will be cumulative and not exclusive of any other
right or remedy which the Agent or any Lender may have.
14.2 Severability.
The illegality or unenforceability of any provision of this Agreement or any other Loan Document or any instrument or agreement required
hereunder shall not in any way affect or impair the legality or enforceability of the remaining provisions of this Agreement or any other
Loan Document or any instrument or agreement required hereunder.
14.3 Governing
Law; Choice of Forum; Service of Process.
(a) THIS
AGREEMENT SHALL BE INTERPRETED AND THE RIGHTS AND LIABILITIES OF THE PARTIES HERETO DETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW YORK; PROVIDED THAT TO THE EXTENT THE LAWS OF ANY JURISDICTION OTHER THAN NEW YORK SHALL GOVERN IN REGARD TO THE VALIDITY,
PERFECTION OR EFFECT OF PERFECTION OF ANY LIEN OR IN REGARD TO PROCEDURAL MATTERS AFFECTING ENFORCEMENT OF ANY LIENS ON COLLATERAL, SUCH
LAWS OF SUCH OTHER JURISDICTIONS SHALL CONTINUE TO APPLY TO THAT EXTENT.
(b) ANY
LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT SHALL BE BROUGHT IN THE COURTS OF THE STATE OF NEW
YORK OR OF THE UNITED STATES OF AMERICA LOCATED IN NEW YORK COUNTY, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE OBLIGORS,
THE AGENT AND THE LENDERS CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH OF
THE OBLIGORS, THE AGENT AND THE LENDERS IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED
ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION
IN RESPECT OF THIS AGREEMENT OR ANY DOCUMENT RELATED HERETO. NOTWITHSTANDING THE FOREGOING: (i) THE AGENT AND THE LENDERS SHALL HAVE
THE RIGHT TO BRING ANY ACTION OR PROCEEDING AGAINST ANY BORROWER, ANY GUARANTOR OR ANY PROPERTY IN THE COURTS OF ANY OTHER JURISDICTION
THE AGENT OR THE LENDERS DEEM NECESSARY OR APPROPRIATE IN ORDER TO REALIZE ON THE COLLATERAL OR OTHER SECURITY FOR THE OBLIGATIONS AND
(ii) EACH OF THE PARTIES HERETO ACKNOWLEDGES THAT ANY APPEALS FROM THE COURTS DESCRIBED IN THE IMMEDIATELY PRECEDING SENTENCE MAY HAVE
TO BE HEARD BY A COURT LOCATED OUTSIDE THOSE JURISDICTIONS.
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(c) SECTIONS
5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK SHALL APPLY TO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
(d) EACH
BORROWER AND EACH GUARANTOR HEREBY WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS UPON IT AND CONSENTS THAT ALL SUCH SERVICE OF PROCESS
MAY BE MADE BY REGISTERED MAIL (RETURN RECEIPT REQUESTED) DIRECTED TO THE BORROWERS’ AGENT AT ITS ADDRESS SET FORTH IN SECTION 14.8
AND SERVICE SO MADE SHALL BE DEEMED TO BE COMPLETED FIVE DAYS AFTER THE SAME SHALL HAVE BEEN SO DEPOSITED IN THE U.S. MAILS POSTAGE
PREPAID. NOTHING CONTAINED HEREIN SHALL AFFECT THE RIGHT OF THE AGENT OR THE LENDERS TO SERVE LEGAL PROCESS BY ANY OTHER MANNER PERMITTED
BY LAW.
14.4 WAIVER
OF JURY TRIAL. THE OBLIGORS, THE LENDERS AND THE AGENT EACH IRREVOCABLY WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM
OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE OTHER LOAN DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER PARTY
OR ANY AGENT-RELATED PERSON, PARTICIPANT OR ASSIGNEE, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. THE OBLIGORS,
THE LENDERS AND THE AGENT EACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING
THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS
TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF
THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR ANY PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS,
SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
14.5 Survival
of Representations and Warranties. All of the Borrowers’ and other Obligors’ representations and warranties contained
in this Agreement and the other Loan Documents shall survive the execution, delivery, and acceptance thereof by the parties, notwithstanding
any investigation by the Agent or the Lenders or their respective agents.
14.6 Other
Security and Guarantees. The Agent may, without notice or demand and without affecting the Borrowers’ or any Obligor’s
obligations hereunder, from time to time: (a) take from any Person and hold collateral (other than the Collateral) for the payment
of all or any part of the Obligations and exchange, enforce or release such collateral or any part thereof; and (b) accept and hold
any endorsement or guaranty of payment of all or any part of the Obligations and release or substitute any such endorser or guarantor,
or any Person who has given any Lien on any other collateral as security for the payment of all or any part of the Obligations, or any
other Person in any way obligated to pay all or any part of the Obligations.
14.7 Fees
and Expenses. Except for Taxes other than any Taxes that represent losses, claims or damages arising from any non-Tax claim, each
Borrower agrees to pay to the Agent, for its benefit, on demand, all reasonable and documented, out-of-pocket costs and expenses that
the Agent pays or incurs in connection with the negotiation, preparation, syndication, consummation, administration, enforcement, and
termination of this Agreement or any of the other Loan Documents, including: (a) Attorney Costs; (b) reasonable and documented,
out-of-pocket costs and expenses for any amendment, supplement, waiver, consent, or subsequent closing in connection with the Loan Documents
and the transactions contemplated thereby; (c) reasonable and documented, out-of-pocket costs and expenses of lien and title searches
and title insurance; (d) documented, out-of-pocket Taxes, and reasonable and documented fees and other charges for filing financing
statements and continuations and other actions to perfect, protect, and continue the Agent’s Liens (including reasonable costs and
expenses paid or incurred by the Agent in connection with the consummation of this Agreement); (e) reasonable sums paid or incurred
to pay any amount or take any action required of the Obligors under the Loan Documents that the Obligors fail to pay or take; (f) reasonable
and documented, out-of-pocket costs of appraisals (including all Appraisals), inspections, and verifications of the Collateral, including
travel, lodging, and meals for inspections of the Collateral and the Obligors’ operations by the Agent plus the Agent’s then
customary charge for field examinations and audits and the preparation of reports thereof (such charge is currently $1,100 per day (or
portion thereof) for each Person employed by the Agent with respect to each field examination or audit); and (g) reasonable and documented,
out-of-pocket costs and expenses of forwarding loan proceeds, collecting checks and other items of payment, and establishing and maintaining
Payment Accounts and lock boxes, and costs and expenses of preserving and protecting the applicable Collateral. In addition, the Borrowers
agree to pay, during or after the existence of an Event of Default, (i) on demand to the Agent, for its benefit, all costs and expenses
incurred by the Agent (including Attorney Costs), and (ii) to the Lenders (other than the applicable Bank), on demand, all reasonable
and actual fees, expenses and disbursements incurred by the applicable Lenders for one law firm retained by such Lenders (and, in the
event of any conflict of interest among Lenders, one additional law firm for Lenders subject to such conflict), in each case, paid or
incurred to obtain payment of the Obligations, enforce the Agent’s Liens, sell or otherwise realize upon the applicable Collateral,
and otherwise enforce the provisions of the Loan Documents, or to defend any claims made or threatened against the Agent or any Lender
arising out of the transactions contemplated hereby (including preparations for and consultations concerning any such matters). The foregoing
shall not be construed to limit any other provisions of the Loan Documents regarding costs and expenses to be paid by the Borrowers and
other Obligors.
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14.8 Notices.
Except as otherwise provided herein, all notices, demands and requests that any party is required or elects to give to any other shall
be in writing, or by a telecommunications device capable of creating a written record, and any such notice shall become effective (a) upon
personal delivery thereof, including, but not limited to, delivery by overnight mail and courier service, (b) four days after
it shall have been mailed by United States and/or Canada Post mail, first class, certified or registered, with postage prepaid, or (c) in
the case of notice by such a telecommunications device, when properly transmitted, in each case addressed to the party to be notified
as follows:
If to the Agent or the U.S. Bank:
Bank
of America, N.A.
101 E. Kennedy Blvd.
Tampa, Florida 33602
MAIL CODE: FL1-400-05-03
Attention: Jenifer Medzi
Telecopy No.: (813) 225-7594
E-mail address: jenifer.medzi@bofa.com
If to the Canadian Bank:
Bank of America, N.A.
101 E. Kennedy Blvd.
Tampa, Florida 33602
MAIL CODE: FL1-400-05-03
Attention: Jenifer Medzi
Telecopy No.: (813) 225-7594
E-mail address: jenifer.medzi@bofa.com
If to the London Bank:
Bank of America, N.A.
101 E. Kennedy Blvd.
Tampa, Florida 33602
MAIL CODE: FL1-400-05-03
Attention: Jenifer Medzi
Telecopy No.: (813) 225-7594
E-mail address: jenifer.medzi@bofa.com
179
If to the European
Swingline Lender:
Bank of America,
N.A.
101 E. Kennedy Blvd.
Tampa, Florida 33602
MAIL CODE: FL1-400-05-03
Attention: Jenifer Medzi
Telecopy No.: (813) 225-7594
E-mail address: jenifer.medzi@bofa.com
If to the ANZ Swingline Lender:
Bank of America, N.A.
101 E. Kennedy Blvd.
Tampa, Florida 33602
MAIL CODE: FL1-400-05-03
Attention: Jenifer Medzi
Telecopy No.: (813) 225-7594
E-mail address: jenifer.medzi@bofa.com
If to the Borrowers:
United Rentals, Inc.
100 First Stamford Place,
Suite 700
Stamford, CT 06902
Attention: Treasurer
Telecopy No.: 203-618-7202
E-mail address: scollins3@ur.com
with a copy to
United Rentals, Inc.
100 First Stamford Place,
Suite 700
Stamford, CT 06902
Attention: General Counsel
Telecopy No.: 203-621-3266
E-mail address: jgross@ur.com
with a copy (which shall not
constitute notice) to
Sullivan & Cromwell
LLP
125 Broad Street
New York, NY 10004
Fax: 212-558-3588
Attention: S. Neal McKnight
E-mail address: Mcknightn@sullcrom.com
If to a Lender:
To the address of such Lender set forth on the signature page hereto
or as previously provided in the Existing Loan Agreement, or on the Assignment and Acceptance for such Lender, as applicable.
or to such other address as each party may designate
for itself by like notice. Failure or delay in delivering copies of any notice, demand, request, consent, approval, declaration or other
communication to the persons designated above to receive copies shall not adversely affect the effectiveness of such notice, demand, request,
consent, approval, declaration or other communication.
14.9 Binding
Effect. The provisions of this Agreement shall be binding upon and inure to the benefit of the respective successors and permitted
assigns of the parties hereto; provided, however, that no interest herein may be assigned (except pursuant to a transaction
expressly permitted hereunder) by any Borrower or any Guarantor without prior written consent of the Agent and each Lender. The rights
and benefits of the Agent and the Lenders hereunder shall, if such Persons so agree, inure to any party acquiring any interest in the
Obligations or any part thereof in accordance with the terms hereof.
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14.10 Indemnity
of the Agent and the Lenders. The Obligors agree to defend, indemnify and hold all Agent-Related Persons, each Arranger and each Lender
and each of their respective Affiliates, officers, directors, employees, counsel, representatives, agents and attorneys-in-fact (each,
an “Indemnified Person”) harmless from and against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits (whether brought by a Borrower or any other Person), costs, charges, expenses and disbursements (including Attorney
Costs and reasonable legal costs and expenses of the Lenders for one law firm retained by such Lenders (and, in the event of any conflict
of interest among Lenders, one additional law firm in each relevant jurisdiction for Lenders subject to such conflict)) of any kind or
nature whatsoever which may at any time (including at any time following repayment of the Loans and the termination, resignation or replacement
of the Agent or replacement of any Lender) be imposed on, incurred by or asserted against any such Person in any way relating to or arising
out of this Agreement or any document contemplated by or referred to herein, or the transactions contemplated hereby, or directly or indirectly
arising out of the use, generation, manufacture, production, storage, release, threatened release, discharge, disposal or presence of
a Contaminant relating to any Borrower’s, any Guarantor’s or any of their Subsidiaries’ operations, business or property,
or any action taken or omitted by any such Person under or in connection with any of the foregoing, including with respect to any investigation,
litigation or proceeding (including any bankruptcy, insolvency or similar proceedings, and any appellate proceeding) related to or
arising out of this Agreement, any other Loan Document, or the Loans or the use of the proceeds thereof, whether or not any Indemnified
Person is a party thereto (all the foregoing, collectively, the “Indemnified Liabilities”); provided, that the
Obligors shall have no obligation hereunder to any Indemnified Person with respect to Indemnified Liabilities to the extent resulting
from (i) the gross negligence, bad faith (including any breach of this Agreement constituting bad faith) or willful misconduct of
such Indemnified Person (or any Related Party thereof), (ii) a material breach of any of the Loan Documents by such Indemnified Person
(or any Related Party thereof) or (iii) claims of any Indemnified Person (or any Related Party thereof) solely against one or more
Indemnified Persons (or any Related Party thereof) or disputes between or among Indemnified Persons (or any Related Party thereof) in
each case except to the extent such claim is determined to have been caused by an act or omission by Holdings or any of its Subsidiaries
or such dispute involves the Agent in its capacity as such. This Section 14.10 shall not apply with respect to Taxes other
than any Taxes that represent losses, claims or damages arising from any non-Tax claim. The agreements in this Section 14.10
shall survive payment of all other Obligations.
14.11 Limitation
of Liability. NO CLAIM MAY BE MADE BY ANY BORROWER, ANY GUARANTOR, ANY LENDER OR OTHER PERSON AGAINST ANY BORROWER, ANY GUARANTOR,
THE AGENT, ANY LENDER, OR THE AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, COUNSEL, REPRESENTATIVES, AGENT OR ATTORNEYS-IN-FACT OF ANY
OF THEM FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES IN RESPECT OF ANY CLAIM FOR BREACH OF CONTRACT OR ANY OTHER
THEORY OF LIABILITY ARISING OUT OF OR RELATED TO THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY ACT,
OMISSION OR EVENT OCCURRING IN CONNECTION THEREWITH, AND EACH BORROWER, EACH GUARANTOR AND EACH LENDER HEREBY WAIVES, RELEASES AND AGREES
NOT TO SUE UPON ANY CLAIM FOR SUCH DAMAGES, WHETHER OR NOT ACCRUED AND WHETHER OR NOT KNOWN OR SUSPECTED TO EXIST IN ITS FAVOR.
14.12 Final
Agreement. This Agreement and the other Loan Documents are intended by the Obligors, the Agent and the Lenders to be the final, complete,
and exclusive expression of the agreement between them relating to the subject matter hereof. This Agreement supersedes any and all prior
oral or written agreements relating to the subject matter hereof except for the Fee Letters.
14.13 Counterparts;
Facsimile Signatures; Electronic Execution. This Agreement may be executed in any number of counterparts, and by the Agent, each Lender
and the Obligors in separate counterparts, each of which shall be an original, but all of which shall together constitute one and the
same agreement; signature pages may be detached from multiple separate counterparts and attached to a single counterpart so that
all signature pages are physically attached to the same document. This Agreement and the other Loan Documents may be executed by
facsimile or other electronic communication and the effectiveness of this Agreement and the other Loan Documents and signatures thereon
shall have the same force and effect as manually signed originals and shall be binding on all parties thereto. The Agent may require that
any such documents and signatures be confirmed by a manually signed original thereof, provided that the failure to request or deliver
the same shall not limit the effectiveness of any facsimile signature. The words “execute,” “execution,” “signed,”
“signature,” and words of like import in or related to any document to be signed in connection with this Agreement and the
transactions contemplated hereby (including amendments or other modifications, notices, waivers and consents) shall be deemed to include
electronic signatures, the electronic matching of assignment terms and contract formations on electronic platforms approved by the Agent,
or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually
executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable
law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records
Act, or any other similar state laws based on the Uniform Electronic Transactions Act; provided that notwithstanding anything contained
herein to the contrary the Agent is under no obligation to agree to accept electronic signatures in any form or in any format unless expressly
agreed to by the Agent pursuant to procedures approved by it.
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14.14 Captions.
The captions contained in this Agreement are for convenience of reference only, are without substantive meaning and should not be construed
to modify, enlarge, or restrict any provision.
14.15 Right
of Setoff. In addition to any rights and remedies of the Lenders provided by law, if an Event of Default exists or the Loans have
been accelerated, each Lender is authorized at any time and from time to time, without prior notice to any Borrower or any Guarantor,
any such notice being waived by each Obligor to the fullest extent permitted by law, to set off and apply any and all deposits (general
or special, time or demand, provisional or final) at any time held by, and other indebtedness at any time owing by, such Lender or
any Affiliate of such Lender to or for the credit or the account of any Borrower or any Guarantor against any and all Obligations owing
to such Lender, now or hereafter existing, irrespective of whether or not the Agent or such Lender shall have made demand under this Agreement
or any Loan Document and although such Obligations may be contingent or unmatured. Each Lender agrees promptly to notify the Borrowers’
Agent and the Agent after any such setoff and application made by such Lender; provided, however, that the failure to give
such notice shall not affect the validity of such setoff and application. NOTWITHSTANDING THE FOREGOING, NO LENDER SHALL EXERCISE ANY
RIGHT OF SET-OFF, BANKER’S LIEN, OR THE LIKE AGAINST ANY DEPOSIT ACCOUNT OR PROPERTY OF ANY BORROWER OR ANY GUARANTOR HELD OR MAINTAINED
BY SUCH LENDER WITHOUT THE PRIOR WRITTEN CONSENT OF THE REQUIRED LENDERS.
14.16 Confidentiality.
(a) The
Borrowers hereby acknowledge that the Agent and each Lender may, in each case with the prior written consent of the Borrowers’ Agent
(such consent not to be unreasonably withheld), issue and disseminate to the public general information describing the credit accommodation
entered into pursuant to this Agreement, including the name and address of the Borrowers and a general description of the Borrowers’
and the Guarantors’ business and may use the Borrowers’ and the Guarantors’ names in advertising and other promotional
material.
(b) Each
Lender and the Agent severally agrees to keep confidential all information relating to Holdings or any of its Subsidiaries (i) provided
to the Agent or such Lender by or on behalf of Holdings or any of its Subsidiaries under this Agreement or any other Loan Document or
(ii) obtained by the Agent or such Lender based on a review of the books and records of Holdings or any of its Subsidiaries, except
to the extent that such information (x) was or becomes generally available to the public other than as a result of disclosure by
the Agent or such Lender or any Affiliates thereof, or (y) was or becomes available on a nonconfidential basis from a source other
than the Borrowers or the Guarantors other than by breach of this Section 14.16, provided that such source is not bound
by a confidentiality agreement with the Borrowers or the Guarantors known to the Agent or such Lender; provided, however,
that the Agent and any Lender may disclose such information (in the case of items (A) through (B) below, except for any
routine examination by any Governmental Authority or regulatory authority, after notice to the Borrowers’ Agent, unless such notice
is prohibited by applicable law) (A) at the request or pursuant to any requirement of any Governmental Authority or regulatory
authority (including any self-regulatory authority) to which the Agent or such Lender is subject or in connection with an examination
of the Agent or such Lender by any such Governmental Authority or regulatory authority; (B) pursuant to subpoena or other court process;
(C) when required to do so in accordance with the provisions of any applicable Requirement of Law; (D) to the extent reasonably
required in connection with any litigation or proceeding (including, but not limited to, any bankruptcy proceeding) to which the Agent,
any Lender or their respective Affiliates may be party; (E) to the extent reasonably required in connection with the exercise of
any remedy hereunder or under any other Loan Document; (F) to the Agent’s or such Lender’s independent auditors, accountants,
attorneys, other professional advisors and service providers (it being understood that the Persons to whom such disclosure is made will
be informed of the confidential nature of such information and shall agree to keep such information confidential to the same extent required
of the Agent and the Lenders hereunder); (G) to any prospective Participant or Assignee under any Assignment and Acceptance, actual
or potential, provided that such prospective Participant or Assignee agrees to keep such information confidential to the same extent
required of the Agent and the Lenders hereunder; (H) as expressly permitted under the terms of any other document or agreement regarding
confidentiality to which a Borrower or a Guarantor is a party or is deemed a party with the Agent or such Lender; and (I) to its
Affiliates (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such information
and shall agree to keep such information confidential to the same extent required of the Agent and the Lenders hereunder).
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14.17 Conflicts
with Other Loan Documents. Unless otherwise expressly provided in this Agreement (or in another Loan Document by specific reference
to the applicable provision contained in this Agreement), if any provision contained in this Agreement conflicts with any provision of
any other Loan Document, the provision contained in this Agreement shall govern and control.
14.18 Collateral
Matters. Each of the Agent and the Lenders acknowledges and agrees that, fixture filings have not and will not be made under the provisions
of the UCC, the PPSA or other applicable Requirements of Law in any jurisdiction both because of the administrative difficulty of determining
whether any item of Rental Equipment is or becomes a fixture and the inability of the applicable Obligors to provide the relevant information
that would be required in order to make such filings.
14.19 No
Fiduciary Relationship. Each Obligor acknowledges and agrees that, in connection with all aspects of each transaction contemplated
by this Agreement, the Obligors, on the one hand, and the Bank, the Arrangers, the Lenders and each of their Affiliates through which
they may be acting (collectively, the “Applicable Entities”), on the other hand, have an arms-length business relationship
that creates no fiduciary duty on the part of any Applicable Entity, and each Obligor expressly disclaims any fiduciary relationship.
14.20 Judgment
Currency. If for the purpose of obtaining judgment in any court it is necessary to convert an amount due hereunder in the currency
in which it is due (the “Original Currency”) into another currency (the “Second Currency”), the
rate of exchange applied shall be that at which, in accordance with normal banking procedures, the Agent could purchase in the New York
foreign exchange market, the Original Currency with the Second Currency on the date two Business Days preceding that on which judgment
is given. Each Obligor agrees that its obligation in respect of any Original Currency due from it hereunder shall, notwithstanding any
judgment or payment in such other currency, be discharged only to the extent that, on the Business Day following the date the Agent receives
payment of any sum so adjudged to be due hereunder in the Second Currency, the Agent may, in accordance with normal banking procedures,
purchase, in the New York foreign exchange market, the Original Currency with the amount of the Second Currency so paid; and if the amount
of the Original Currency so purchased or could have been so purchased is less than the amount originally due in the Original Currency,
each Obligor agrees as a separate obligation and notwithstanding any such payment or judgment to indemnify the Agent against such loss.
The term “rate of exchange” in this Section 14.20 means the spot rate at which the Agent, in accordance with normal
practices, is able on the relevant date to purchase the Original Currency with the Second Currency, and includes any premium and costs
of exchange payable in connection with such purchase.
14.21 Incremental
Indebtedness; Extended Commitments; Extended Loans; Refinancing Commitments and Refinancing Loans; Additional First Lien Debt. In
connection with the incurrence by any Borrower of any Incremental Indebtedness, Extended Commitments, Extended Loans, Refinancing Commitments
or Refinancing Loans, the Agent agrees to execute and deliver any amendments, amendments and restatements, restatements or waivers of
or supplements to or other modifications to, any Security Document or intercreditor agreement, and to make or consent to any filings or
take any other actions in connection therewith, as may be reasonably deemed by Holdings to be necessary or reasonably desirable for any
Lien on the assets of any Obligor permitted to secure such Incremental Facility, Extended Commitments, Extended Loans, Refinancing Commitments
or Refinancing Loans to become a valid, perfected lien (with such priority as may be designated by the relevant Obligor, to the extent
such priority is permitted by the Loan Documents) pursuant to the Security Document being so amended, amended and restated, restated,
waived, supplemented or otherwise modified or otherwise. In connection with the incurrence by any Borrower or Restricted Subsidiary of
any Indebtedness that is intended to be secured on a pari passu basis, upon the written request of the Borrowers’ Agent,
the Agent agrees to provide written consent to the Company with respect to the designation of such Indebtedness as “Additional First
Lien Debt” (or any similar term) under any applicable Acceptable Intercreditor Agreement, so long as (a) the Liens securing
such Indebtedness are permitted pursuant to Section 8.2(c) or 8.2(ii) and (b) the Agent shall have received
an officer’s certificate from the Company designating such Indebtedness as “Additional First Lien Debt” (or any similar
term) under such Acceptable Intercreditor Agreement and certifying that such Indebtedness is “Additional First Lien Obligations”
(or any similar term) under such Acceptable Intercreditor Agreement permitted to be so incurred in accordance with each of the First Lien
Documents and each of the Second Lien Documents (or any similar term) (as defined in such Acceptable Intercreditor Agreement).
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14.22 Lenders.
Each Lender (a) severally represents and warrants that, as of the date such Lender becomes a party to this Agreement, such Lender
(i) is a United States person for purposes of the Code or (ii) has complied with the provisions of Section 5.1(f),
and (b) covenants and agrees that at all material times such Lender will (i) continue to be a United States person for purposes
of the Code or (ii) continue to comply with the ongoing requirements of Section 5.1(f). Each Lender shall promptly notify
the Borrowers’ Agent in writing upon becoming aware that it is not in compliance with this Section 14.22.
14.23 USA
PATRIOT Act. Each Lender that is subject to the Act (as hereinafter defined) and the Agent (for itself and not on behalf of any Lender)
hereby notifies the Borrowers that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the “Act”), it is required to obtain, verify and record information that identifies each Obligor, which information
includes the name and address of each Obligor and other information that will allow such Lender or the Agent, as applicable, to identify
each Obligor in accordance with the Act. The Borrowers shall, promptly following a request by the Agent or any Lender, provide all documentation
and other information that the Agent or such Lender requests in order to comply with its ongoing obligations under the Beneficial Ownership
Regulation or other applicable “know your customer” and anti-money laundering rules and regulations, including the Act.
14.24 Amendment
and Restatement; Reaffirmation.
(a) The
Borrowers hereby confirm and agree that all Obligations outstanding under the Existing Loan Agreement immediately prior to the amendment
and restatement thereof as contemplated hereby (such Obligations, the “Existing Loan Agreement Obligations”; provided
that (i) the Borrowers confirm and agree that all “French Obligations” (as defined in the Existing Loan Agreement immediately
prior to the amendment and restatement thereof as contemplated hereby) outstanding under the Existing Loan Agreement immediately prior
to the amendment and restatement thereof as contemplated hereby are reaffirmed as, and shall constitute, European Obligations as defined
herein (and that such European Obligations shall constitute Existing Loan Agreement Obligations) and (ii) on and after the Closing
Date, the parties hereto (which include all signatories of the Canadian Guarantee Agreement) agree that the single reference to “French
Obligations” in the Canadian Guarantee Agreement shall instead refer to the European Obligations as defined herein) shall, unless
and until paid, continue to remain outstanding under this Agreement and shall not constitute new Obligations incurred by any of the Borrowers
on or after the Closing Date. The Borrowers hereby confirm that all Existing Loan Agreement Obligations are due and owing without offset,
defense, counterclaim or recoupment of any kind or nature and as of the Closing Date, none of the Obligors or any of their respective
Affiliates has offset rights, counterclaims or defenses of any kind against any of their respective obligations, indebtedness or liabilities
under the Existing Loan Agreement or any other Loan Document (as defined in the Existing Loan Agreement). As of the Closing Date, immediately
prior to the amendment and restatement of the Existing Loan Agreement contemplated herein, there exists no Default or Event of Default
under and as defined in the Existing Loan Agreement.
(b) It
is the intention of each of the parties hereto that the Existing Loan Agreement be amended and restated so as to preserve the perfection
and priority of all Liens securing indebtedness and obligations of the Obligors under the Existing Loan Agreement and the other Loan Documents
(as defined in the Existing Loan Agreement) and that this Agreement does not constitute a novation of the obligations and liabilities
of the Obligors existing under the Existing Loan Agreement.
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(c) Each
of Holdings, each Borrower and each other Guarantor (collectively, the “Reaffirming Loan Parties”) hereby acknowledges
that it expects to receive substantial direct and indirect benefits as a result of this Agreement and the transactions contemplated hereby.
Each Reaffirming Loan Party hereby confirms its respective guarantees, pledges and grants of security interests, as applicable, under
each of the Loan Documents to which it is party, and agrees that, notwithstanding the effectiveness of this Agreement and the transactions
contemplated hereby, such guarantees, pledges and grants of security interests, as applicable, shall continue to be in full force and
effect and shall, to the extent provided in the Loan Documents, accrue to the benefit of the Secured Parties in respect of, and to secure,
the applicable Obligations. Each Reaffirming Loan Party hereby reaffirms its obligations under each provision of each Loan Document to
which it is party.
14.25 Waiver
of Notices. Unless otherwise expressly provided herein, each Obligor waives presentment, and notice of demand or dishonor and protest
as to any instrument, notice of intent to accelerate the Obligations and notice of acceleration of the Obligations, as well as any and
all other notices to which it might otherwise be entitled. No notice to or demand on any Obligor which the Agent or any applicable Lender
may elect to give shall entitle any Obligor to any or further notice or demand in the same, similar or other circumstances.
14.26 Acknowledgement
and Consent to Bail-In of Affected Financial Institutions. Notwithstanding anything to the contrary in any Loan Document or in any
other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Affected
Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the Write-Down and
Conversion Powers of the applicable Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
(a) the
application of any Write-Down and Conversion Powers by the applicable Resolution Authority to any such liabilities arising hereunder which
may be payable to it by any party hereto that is an Affected Financial Institution; and
(b) the
effects of any Bail-In Action on any such liability, including, if applicable:
(i) the
reduction in full or in part or cancellation of any such liability;
(ii) a
conversion of all, or a portion of, such liability into shares or other instruments of ownership in such Affected Financial Institution,
its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments
of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document;
or
(iii) the
variation of the terms of such liability in connection with the exercise of the Write-Down and Conversion Powers of the applicable Resolution
Authority.
14.27 Canadian
Anti-Money Laundering Legislation. If the Agent has ascertained the identity of any Canadian Obligor or any authorized signatories
of any Canadian Obligor for the purposes of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada) and other
applicable anti-terrorism Laws and “know your client” policies, regulations, laws or rules (such Act and such other anti-terrorism
Laws, applicable policies, regulations, laws or rules, collectively, including any guidelines or orders thereunder, “AML Legislation”),
then the Agent:
(a) shall
be deemed to have done so as an agent for each Lender and this Agreement shall constitute a “written agreement” in such regard
between each Lender and the Agent within the meaning of the applicable AML Legislation; and
(b) shall
provide to each Lender, copies of all information obtained in such regard without any representation or warranty as to its accuracy or
completeness.
Notwithstanding the preceding sentence and except
as may otherwise be agreed in writing, each Lender agrees that the Agent has no obligation to ascertain the identity of the Canadian Obligors
or any authorized signatories of the Canadian Obligors on behalf of any Lender, or to confirm the completeness or accuracy of any information
it obtains from any Canadian Obligor or any such authorized signatory in doing so.
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14.28 Acknowledgement
Regarding Any Supported QFCs. To the extent that the Loan Documents provide support, through a guarantee or otherwise, for Swap Obligations
or any other agreement or instrument that is a QFC (such support, “QFC Credit Support” and each such QFC a “Supported
QFC”), the parties acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation
under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the
regulations promulgated thereunder, the “U.S. Special Resolution Regimes”) in respect of such Supported QFC and QFC
Credit Support (with the provisions below applicable notwithstanding that the Loan Documents and any Supported QFC may in fact be stated
to be governed by the laws of the State of New York and/or of the United States or any other state of the United States):
In the event a Covered Entity that is party to
a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding under a U.S. Special Resolution Regime, the
transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported
QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered
Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported
QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the United States
or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding
under a U.S. Special Resolution Regime, Default Rights under the Loan Documents that might otherwise apply to such Supported QFC or any
QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default
Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents were governed by the laws
of the United States or a state of the United States. Without limitation of the foregoing, it is understood and agreed that rights and
remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to a
Supported QFC or any QFC Credit Support.
14.29 Australian
Banking Code of Practice. The parties hereto agree that the Australian Banking Code of Practice (published by the Australian Banking
Association, as amended, revised or amended and restated from time to time) does not apply to the Loan Documents, nor the transactions
under them.
[Remainder of
Page Left BlankSIGNATURE PAGES OMITTED]
186
IN WITNESS
WHEREOF, the parties have entered into this Agreement on the date first above written.
HOLDINGS
UNITED RENTALS, INC.,
as a Guarantor
By:
Name:
Title:
[Signature Page to Fifth Amended and Restated
Credit Agreement]
BORROWERS
UNITED RENTALS
(NORTH AMERICA), INC., and as a Guarantor
By:
Name:
Title:
UNITED RENTALS
OF CANADA, INC., and as a Guarantor
By:
Name:
Title:
UNITED RENTALS
INTERNATIONAL B.V.
By:
Name:
Title:
UNITED RENTALS
UK LIMITED
By:
Name:
Title:
UNITED RENTALS
S.A.S.
By:
Name:
Title:
UNITED RENTALS
B.V.
By:
Name:
Title:
[Signature Page to Fifth Amended and Restated
Credit Agreement]
UNITED RENTALS
GMBH
By:
Name:
Title:
UNITED RENTALS PR, INC.
By:
Name:
Title:
UNITED RENTALS (BELGIUM) BV
By:
Name:
Title:
[Signature Page to Fifth Amended and Restated
Credit Agreement]
ANZ BORROWERS
Executed by United Rentals Australia Pty Ltd ACN 069 244 417 in accordance with section 127 of the Corporations Act 2001:
Director/company secretary
Director
Name
of director/company secretary
Name
of director
(BLOCK LETTERS)
(BLOCK LETTERS)
UNITED RENTALS
NEW ZEALAND
By:
Name:
Title:
[Signature Page to Fifth Amended and Restated
Credit Agreement]
GUARANTORS
UNITED RENTALS HIGHWAY TECHNOLOGIES
GULF, LLC
By:
Name:
Title:
UNITED RENTALS (DELAWARE), INC.
By:
Name:
Title:
UNITED RENTALS REALTY, LLC
By:
Name:
Title:
[Signature Page to Fifth Amended and Restated
Credit Agreement]
Bank
of America, N.A., as Agent, U.S. Swingline
Lender and Letter of Credit Issuer
by:
Name:
Title:
Bank
of America, N.A. (acting through
its Australia branch), as ANZ Swingline Lender and as ANZ Revolving Credit Lender
by:
Name:
Title:
Bank
of America, N.A., (acting through
its Canada branch), as Canadian Swingline Lender
by:
Name:
Title:
BANK
OF AMERICA EUROPE DESIGNATED ACTIVITY COMPANY, as European Swingline Lender
By:
Name:
Title:
BANK
OF AMERICA, N.A. (acting through its London branch), as ROW Swingline Lender
By:
Name:
Title:
[Signature Page to
Fifth Amended and Restated Credit Agreement]
Name of Lender (with any Lender that is an ANZ Revolving Credit Lender also signing in such capacity):
By:
Name:
Title:
For any Lender requiring a second signature line:
By:
Name:
Title:
ANZ Revolving
Credit Lender notice address:
Address:
Attn:
Telecopy No.:
[Signature Page to
Fifth Amended and Restated Credit Agreement]
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